A TREATISE ON THE TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION. BY THOMAS M. COOLEY, LL.D., FORMERLY ONE OF THE JUSTICES OF THE SUPREME COURT OF MICHIGAN, JAY PROFESSOR OF LAW IN THE UNIVERSITY OF MICHIGAN, AND CHAIRMAN OF THE INTERSTATE COMMERCE COMMISSION. SEVENTH EDITION, WITH LARGE ADDITIONS, GIVING THE RESULTS OF THE RECENT CASES, BY VICTOR H. LANE, PROFESSOR OF LAW IN THE UNIVERSITY OF MICHIGAN BOSTON: LITTLE, BROWN, AND COMPANY. 1903. \ Entered according to Act of Congress, in the year 1868, by LITTLE, BROWN, AND COMPANY, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the years 1871, 1874, 1878, 1883, 1890, by LITTLE, BKOWN, AND COMPANY, In the Office of the Librarian of Congress, at Washington. Copyright, 1896, Br THOMAS M. COOLKT. Copyright, 1903, BY THOMAS B. COOLEY, Trustee. All rightt reserved. />> UNIVERSITY PRESS JOHN WILSON AND SON CAMBRIDGE, U.S.A. PREFACE TO THE SEVENTH EDITION. AT the request of the heirs of the late Judge Cooley I have undertaken the preparation of this edition of the Constitutional Limitations. It seemed desirable, in view of all the circumstances, that the text of the last edition should stand as the text for this, and the work of the present editor has been confined to the bring- ing of the book down to date, by the addition of such matter to the notes as will fairly present the development of this branch of the law since the publication of the last edition. No effort has been made to exhaust the cases reported in this period, but a judicious selection from such cases has been attempted, and the additions appear in the bracketed matter of the notes. Where it seemed more appropriate to add the new matter through new references from the text, that course has been followed, and such matter is found in the single column annotations. The other new matter is incorporated in the old notes. The partic- ular experience, or better judgment of some, will suggest a dif- ferent selection in some cases, but it is hoped that what has been done will meet reasonably well the common need. When equally desirable on other grounds, cases found in one or the other, and sometimes in both, the Lawyers' Reports Annotated and the American State Reports have been chosen, that they might be available to a greater number. For a like reason, citations to the National Reporter System of reports have been added, not only for the new cases cited, but for the old cases as well so far as found in the Reporters. The editor desires to 'acknowledge his obligation to William J. Meyers for his most valuable assist- ance in preparing this edition. VICTOR H. LANE. UNIVERSITY OF MICHIGAN, ANN ARBOR, September, 1903. 116683 PREFACE TO THE SECOND EDITION. IN the Preface to the first edition of this work, the author stated its purpose to be, to furnish to the practitioner and the student of the law such a presentation of elementary constitu- tional principles as should serve, with the aid of its references to judicial decisions, legal treatises, and historical events, as a con- venient guide in the examination of questions respecting the constitutional limitations which rest upon the power of the sev- eral State legislatures. In the accomplishment of that purpose, the author further stated that he had faithfully endeavored to give the law as it had been settled by the authorities, rather than to present his own views. At the same time, he did not attempt to deny what he supposed would be sufficiently ap- parent that he had written in full sympathy with all those restraints which the caution of the fathers had imposed upon the exercise of the powers of government, and with faith in the checks and balances of our republican system, and in correct conclusions by the general public sentiment, rather than in re- liance upon a judicious, prudent, and just exercise of authority, when confided without restriction to any one man or body of men, whether sitting in legislative capacity or judicial. In this sympathy and faith, he had written of jury trials and the other safeguards to personal liberty, of liberty of the press, and of vested rights ; and he had also endeavored to point out that there are on all sides definite limitations which circumscribe the legislative authority, independent of the specific restrictions which the people impose by their State constitutions. But while not predisposed to discover in any part of our system the rightful existence of any unlimited power, created by the Constitution, viii PREFACE. neither on the other hand had he designed to advance new doctrines, or to do more than state clearly and with reasonable conciseness the principles to be deduced from the judicial decisions. The unexpected favor with which the work has been received having made a new edition necessary, the author has reviewed every part of it with care, but without finding occasion to change in any important particular the conclusions before given. Fur- ther reflection has only tended to confirm him in his previous views of the need of constitutional restraints at every point where agents are to exercise the delegated authority of the people ; and he is gratified to observe that in the judicial tribu-. uals the tendency is not in the direction of a disregard of these restraints. The reader will find numerous additional references to new cases and other authorities ; and some modifications have been made in the phraseology of the text, with a view to clearer and more accurate expression of his views. Trusting that these modifications and additions will be found not without value, he again submits his work " to the judgment of an enlightened and generous profession." THOMAS M. COOLEY. UNIVERSITY OF MICHIGAN, ANN ARBOR, July, 1871. TABLE OF CONTENTS. CHAPTER I. DEFINITIONS. Page Definition of a state, nation, people, sovereignty, and sovereign state 3 What sovereignty consists in 3, 4 Apportionment of sovereignty in America 4 Definition of constitution and constitutional government . . . 4, 5 Of unconstitutional law 5 The will of the people the final law 6 CHAPTER II. THE CONSTITUTION OF THE UNITED STATES. What the United States government the successor of; Colonial confederacies 7 The States never in a strict sense sovereign 8 The Continental Congress 8, 9 Limitations upon its power ; the Articles of Confederation, and the supersession thereof by the Constitution 9 Adoption of the Constitution by North Carolina, Rhode Island, and the New States 9, 10 United States government one of enumerated powers .... 11 General purpose of this government . ......... 11 Powers conferred upon Congress 11-13 Powers under the new amendments 13-18 Executive and judicial power of the nation 19-23 Constitution, laws, and treaties of United States to be supreme ; . final decision of questions under, to rest with national judiciar}* 24 Removal of causes from State courts ; decisions of State courts to be followed on points of State law 24-35 Restrictions upon State action 35-36 X TABLE OF CONTENTS. Page Protection to privileges and immunities of citizens .... 15-36 Extradition of fugitives from justice 37, 38 Faith and credit secured to records, &c . . 38-41 Guaranty of republican government 42-45 Implied prohibitions on the States 45, 46 Reservation of powers to States and people ...... 46 Construction of national bills of rights 46,47 Statutes necessary to jurisdiction of national courts . . . 47, 48 CHAPTER III. THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS. State governments in existence when Constitution of United States adopted . 49 Common law in force ; what it consists in 49-53 English and Colonial legislation 53, 54 Colonial charters and revolutionary constitutions .... 55 Constitutions of new States 55, 56 Sovereignty of the people 56-59 Who are the people, in a political sense 57 Proceedings in the formation and amendment of constitutions 58-69 Restraints imposed thereon by Constitution of the United States 62 What generally to be looked for in State constitutions . . . 64-68 Rights are protected by, but do not come from them ... 69 CHAPTER IV. CONSTRUCTION OF STllE CONSTITUTIONS. Interpretation and construction 70 Who first to construe constitutions 71-77 Final decision generally with the courts 76-78 The doctrine of res adjudicata and stare decisis 79-88 Construction to be uniform 88, 89 The intent to govern 89-91 The whole instrument to be examined 91, 92 Effect to be given to the whole 91, 92 Words to be understood in their ordinary meaning .... 92, 93 Common law to be kept in view 94, 95 Words sometimes employed in different senses 95-97 Operation of laws to be prospective 97 Implied powers 98 99 Consideration of the mischief to be remedied .... 100 TABLE OF CONTENTS. xi Page Proceedings of Constitutional Convention may be examined . 101, 102 Force of contemporaneous and practical construction . . . 102-107 Unjust provisions not invalid -108, 109 Duty in case of doubt on constitutional questions .... 109 Directory and mandatory provisions 109-119 Constitutional provisions are imperative 114-119 Self-executing provisions 119-122 Danger of arbitrary rules of construction 123 CHAPTER V. THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAT EXERCISE. Power of American legislatures compared to that of British Parliament 124-129 Grant of legislative power is grant of the complete power . . 128 But not of executive or judicial power 129-133 Definition of legislative and judicial authority 131-134 Declaratory statutes 134-140 Statute setting aside judgments, granting new trials, &c. . . 136-140 Recitals in statutes do not bind individuals 139 Statutes conferring power on guardians, &c. , to sell lands . 140-147 Statutes which assume to dispose of disputed rights .... 147-151 Statutes validating irregular judicial proceedings . . . .150,151 Legislative divorces 152-157 Legislative encroachments upon executive power .... 157-162 Legislative power not to be delegated 163-169 Conditional legislation 169-173 Local option laws 173, 174 Irrepealable laws not to be passed 174-176 Territorial limitations upon State legislative authority . . . 176-181 Inter-state comity 178-181 Other limitations by express provisions ....... 181-184 Limitations springing from nature of free government . . . 182-185 CHAPTER VI. THE ENACTMENT OF LAWS. Importance of forms in parliamentary law 186,187 The two houses of the legislature 187, 188 Differences in powers of 188 Meetings and adjournments 188 Xll TABLE OF CONTENTS. Page Contested elections, rules of proceeding, punishing disorderly behavior 189, 190 Contempts 191 Privileges of members 192 Legislative committees 193 Journal of proceedings 193-195 Corrupt contracts to influence legislation 196 Counsel before legislature ; lobby agents 196 The introduction and passage of bills 197-199 Evasions of constitutional provisions 199 n. Three readings of bills 199,200 Yeas and nays 201 Vote required for the passage of a bill 201 Title of statutes 202-214 Amendatory statutes 214-217 Signing of bills by presiding officers 218 Approval of bills by the governor 218-221 Other legislative powers of the governor 222 When acts to take effect 222-226 CHAPTER VII. THE CIRCUMSTANCES UNDER WHICH A LEGISLATIVE ACT MAT BE DECLARED UNCONSTITUTIONAL. Authority to declare statutes unconstitutional a delicate one . 227-229 Early cases of such declaration 229 n. Will not be done by bare quorum of court 230 Nor unless a decision upon the point is necessary .... 231 Nor on objection by a party not interested 232 Nor solely because of unjust or oppressive provisions . . . 232-237 Nor because conflicting with fundamental principles . . . 237-239 Nor because opposed to the spirit of the constitution . . . 239-241 Extent of legislative power 242 Difference between State and national governments .... 242 A statute in excess of legislative power void 243-246 Statutes invalid as encroaching on executive or judicial authority 244 Or conflicting with the bill of rights 245 Legislative forms are limitations of power 245,246 Statutes unconstitutional in part 246-250 Constitutional objection may be waived 250-252 Judicial doubts on constitutional questions 252-257 "K Inquiry into legislative motives not permitted 257-259 Consequences if a statute is void 259, 260 TABLE OF CONTENTS. Xlll CHAPTER VIII. THE SEVERAL GRADES OF MUNICIPAL GOVERNMENT. Page The American system one of decentralization 261-264 State constitutions framed in reference to it 264 Local government may be delegated to citizens of the mu- nicipality 264, 265 Legislative control of municipalities 265-269 Powers of public corporations 270 Strict construction of charters 271, 272 Contracts ultra vires void 272-274 Must act through corporate authorities 274-276 Corporations by prescription and implication ...... 276-278 Municipal by-laws 278-292 Delegation of powers by municipality not admissible . . . 293, 294 Irrepealable municipal legislation cannot be adopted . . . 295-299 Presumption of correct action 300-306 Power to indemnify officers 306-309 Powers to be construed with reference to purposes of their creation 309-311 Authority confined to corporate limits 312,313 Municipal subscriptions to works of internal improvement . 312-325 Negotiable paper of corporations 320-325 Municipal military bounties 326-333 Legislative control of municipal taxation 334-342 Legislative control of corporate propert}' 342-347 Towns and counties 347-355 Not liable for neglect of official duty 354, 355 Different rules govern chartered corporations 355, 356 In what respect the charter a contract 356-362 Validity of corporate organizations not to be questioned col- laterally 363, 364 The State sometimes estopped from questioning 364 n. CHAPTER IX. PROTECTION TO PERSON AND PROPERTY UNDER THE CONSTITUTION OF THE UNITED STATES. Bill of Rights, importance of 365-367 Addition of, by amendments to national Constitution . . . 367, 368 Bills of attainder 368-372 Ex post facto laws 372-383 XIV TABLE OF CONTENTS. Page Laws impairing the obligation of contracts 383-416 What charters are contracts 391-394 Contracting away powers of sovereignty 395-401 Grant of exclusive privileges 401,402 Changes in the general laws 402, 403 Obligation of a contract, what it is 403-406 Modification of remedies always admissible 406-416 Appraisal laws 412 Stay laws, when void 414 Laws taking away substantial rights 415 Validating imperfect contracts 415,416 State insolvent laws 416,417 The thirteenth and fourteenth amendments 417, 418 CHAPTER X. THE CONSTITUTIONAL PROTECTIONS TO PERSONAL LIBERTY. Villeinage in England 419-422 In Scotland 422,423 In America 423 Impressment of seamen 424 Unreasonable searches and seizures 424-429 Every man's house his castle 425-429 Search warrants 429-434 Inviolability of papers and correspondence 432-434 Quartering soldiers in private houses 435 Criminal accusations, how made 436, 437 Bail to persons accused of crime 437-439 Prisoner standing mute " 439 Trial to be speedy 440 To be public 441 Not to be inquisitorial 442 Prisoner's statement and confessions 443-449 Confronting prisoner with witnesses 450-452 Prisoner to be present at trial 452 Trial to be by jury 453-465 Number of jurors '. .454-459 Right of challenge 459 Jury to be of the vicinage 459 450 Verdict to be unanimous and free 460 Instructions of the judge, how limited 460-462 Power of jury to judge of law 461-465 Accused not to be twice put in jeopardy 466-470 TABLE OF CONTENTS. XV Page Excessive fines and cruel and unusual punishments .... 471-474 Right to counsel 474-482 Protection of professional confidence 477, 478 Duty of counsel 478-482 Whether counsel to address the jury on the law 480, 481 Punishment of misconduct in attorne}'s 481, 482 Writ of habeas corpus 483-497 Legal restraints upon personal liberty 484-491 Necessity of Habeas Corpus Act 489,490 What courts issue the writ 491-494 General purpose of writ, and practice upon 495-497 Right of discussion and petition 497,498 Right to bear arms 498, 499 Jealousy of standing armies 498, 499 CHAPTER XI. OF THE PROTECTION OF PROPERTY BY THE "LAW OF THE LAND." Magna Charta, chap. 29 500 Constitutional provisions insuring protection ' ' by the law of the land" 500 n. Meaning of " due process of law " and " law of the land" . 502-508 Vested rights not to be disturbed 508 What are vested rights 509-520 Interests in expectancy are not 511, 512 Legislative modification of estates 512,513 Control of rights springing from marriage 513-515 Legislative control of remedies 515-518 Vested rights of action are protected 517 Confiscation of rights and property 518-520 Statutes of limitation 520-524 Alteration in the rules of evidence 524-528 Retrospective laws 528-546 Curing irregularities in legal proceedings 530-533 Validating imperfect contracts 535-546 Pendency of suit does not prevent healing act 543 What the healing statute must be confined to 544-546 Statutory privilege not a vested right 546-548 Consequential injuries from changes in the laws 548, 549 Sumptuary and other like laws 549, 550 Betterment laws 550-553 Unequal and partial legislation 554-575 Local laws may vary in different localities 554-557 xvi TABLE OF CONTENTS. Page Suspension of general laws 558-562 Equality the aim of the law 562-564 Strict construction of special grants 564-567 Privileges and immunities of citizens 567-575 Judicial proceedings void if jurisdiction wanting 575 What constitutes jurisdiction 575 Consent cannot confer it 575, 576 Jurisdiction in divorce cases 577-582 Necessity for process 579-585 Process by publication 582-585 Courts of general and special jurisdiction 585, 586 Effect of irregularities in judicial proceedings 587, 588 Judicial power not to be delegated 589 Must be exercised under accustomed rules 589-592 Judge not to sit in his own cause 592-595 CHAPTER XII. LIBERTY OP SPEECH AND OF THE PRESS. Detection of, by the Constitution of the United States . . 596 State constitutional provisions 596 . Not well protected nor defined at common law 599 Censorship of the press ; publication of proceedings in Parlia- ment not formerly suffered 599, 600 Censorship of the press in America 600, 601 Secret sessions of public bodies in the United States . . . 601, 602 What liberty of the press consists in 602-605 Common-law rules of liability for injurious publications . . 605-609 Cases of privileged communications 609-612, 646 n. Libels on the government, whether punishable 612-615 Sedition law 613 Farther cases of privilege ; criticism of officers or candidates for office 616-628 Petitions and other publications in matters of public concern . 617, 618 Statements in course of judicial proceedings 629-631 by witnesses 629 by jurors 629, 630 by complainant, &c 630, 631 by counsel 631-633 Privileges of legislators 634-636 Publication of privileged communications through the press . 636-640 Accounts of judicial proceedings, how far protected .... 636-640 Privilege of publishers of news 640-650 TABLE OF CONTENTS. Page Publication of legislative proceedings 650-652 The jury as judges of the law in libel cases 652-655 Mr. Fox's Libel Act 653-655 " Good motives and justifiable ends," burden of showing is on defendant 656-658 What is not sufficient to show 657 n. CHAPTER XIII. RELIGIOUS LIBERTY. Care taken by State constitutions to protect 659 Distinguished from religious toleration 660-662 What it precludes 663-668 Does not preclude recognition of superintending Providence by public authorities 668-669 Nor appointment of chaplains, fast-da}^, &c 669 Nor recognition of fact that the prevailing religion is Christian 669 The maxim that Christianity is part of the law of the land . 670 Punishment of blasphemy 671-673 And of other profanity , 674 Sunday laws, how justified 674-676 Respect for religious scruples 676 Religious belief as affecting the competency or credibility of witnesses 676, 677 CHAPTER XIV. THE POWER OF TAXATION. Unlimited nature of the power 678-686 Exemption of national agencies from State taxation . . . 682-686 Exemption of State agencies from national taxation . . . 685, 686 Limitations on State taxation by national Constitution . . . 686, 687 Power of States to tax subjects of commerce 687-691 Discriminations in taxation between citizens of different States 693 Elements essential to valid taxation 695-751 Purposes must be public 696-705 Legislature to judge of purposes 698-705 Unlawful exactions 702-705 Necessity of apportionment 705-713 Taxation with reference to benefits in local improvements . . 713737 Local assessments distinguished from general taxation . . 715-717 Apportionment of the burden in local assessments .... 718-737 6 XViii TABLE OF CONTENTS. Page Taxation must be uniform throughout the taxing districts . . 722-737 Road taxes in labor 737 Inequalities in taxation inevitable 737, 738 Legislature must select subjects of taxation 739 Exemptions admissible 739-744 Constitutional provisions forbidding exemptions 743, 744 Legislative authority requisite for every tax 744-748 Excessive taxation 747, 748 The maxim de minimis lex non curat in tax proceedings . . 748 What errors and defects render tax sales void 748-750 Remedies for collection of taxes . 748-751 CHAPTER XV. THE EMINENT DOMAIN. Ordinarj* domain of State distinguished from eminent domain 752, 753 Definition of eminent domain 753, 754 Not to be bargained away ; general rights vested in the States 755 How far possessed by the general government 755, 756 What property subject to the right 756-759 Legislative authority requisite to its exercise 759. 760 Strict compliance with conditions precedent necessary . . . 760-763 Statutes for exercise of, not to be extended by intendment . 762, 763 Purpose must be public 763-766 What is a public purpose 766-775 Whether milldams are 771-773 Question of, is one of law 774, 775 How property to be taken 775, 776 Determining the necessity for 777, 778 How much may be taken 779-781 What constitutes a taking 781-810 Consequential injuries do not 781-788 Appropriation of highway to plank road or railroad .... 788-808 Whether the fee in the land can be taken 808-810 The damaging of property 810-812 Compensation to be made 812, 826-828 Time of making 813-817 Tribunal for assessing 817, 818 Principle on which it is to be assessed 819-828 Allowance of incidental injuries and benefits 823-828 What the assessment covers 825, 826 Action where work improperlj* constructed 826 TABLE OF CONTENTS. CHAPTER XVI. THE POLICE POWER OF THE STATES. Page Definition of police power 829 Pervading nature of 829-831 Power where vested 831, 832 Exercise of, in respect to charter contracts 833-844 License or prohibition of sales of intoxicating drinks . . .845-851 Payment of license fee to United States gives no right in oppo- sition to State law 851 Quarantine regulations and health laws 851-855 Inspection laws ; harbor regulations 855 Distinction between proper police regulation and an interfer- ence with commerce 856 State taxes upon commerce 857-859 Sunday police regulations 859 Regulation of highwa}'s by the States 860, 861 Control of navigable waters 861-868 What are navigable 861, 862 Congressional regulations of 863 Monopolies of, not to be granted by States 864 Power in the States to improve and bridge 865, 866 And to establish ferries and permit dams 867 Regulation of speed of vessels 867 Levees and drains 868 Regulation of civil rights and privileges 869 Regulation of business charges 870-877 Destruction of buildings to prevent spread of fire .... 878 Establishment of fire limits and wharf lines ; abatement of nui- sances, &c 878-883 Other State regulations of police 884-891 Power of States to make breach thereof a crime .... 890 CHAPTER XVII. THE EXPRESSION OP THE POPULAR WILL. People possessed of the sovereignty, but can only exercise it under legal forms 892 Elections the mode 893-898 Qualifications for office 894 W.-896 n. Officers de facto and dejure 896-899 XX TABLE OF CONTENTS. Page Who to participate in elections ; conditions of residence, pres- ence at the polls, &c 899-903 Residence, domicile, and habitation defined 903-907 Registration of voters 905-907 Other regulations 907, 908 Preliminary action by authorities, notice, proclamation, &c. . 908, 909 Mode of voting ; the ballot 910 Importance of secrecy ; secrecy a personal privilege . . .911-913 Ballot must be complete in itself 914 Parol explanations by voter inadmissible 914 Ballot must not contain too many names 915 Names on ballot should be full 916 Abbreviations, initials, &c 916, 917 Erroneous additions do not affect ' ' 917 Evidence of surrounding circumstances to explain ballot . . 919, 920 Boxes for different votes; errors in depositing 921 Plurality to elect 892 w., 921, 922 Freedom of elections ; bribery 922 Treating electors ; service of process 923 Betting on elections, contracts to influence them, &c. . . . 924 Militia not to be called out on election days 924, 925 Electors not to be deprived of votes 926, 927 Liability of officers for refusing votes 927, 928 Elector's oath when conclusive 927, 928 Conduct of election 928 Effect of irregularities 928-930 Effect if candidate is ineligible 931 Admission of illegal votes 932, 933 Fraud, intimidation, &c 932-934 Canvass and return of votes ; canvassers act ministerially . . 934-937 Contesting elections ; final decision upon, rests with the courts 937-944 Canvasser's certificate conclusive in collateral proceedings; courts may go behind 939-944 What proofs admissible 940-944 Whether qualification of voter may be inquired into by courts 942-944 INDEX 945 TABLE OF CASES. Abbett v. Com'rs Johnson Co. 305, 355 Abbott v. Commonwealth 516 v. Kansas City, &c. Co. 757 v. Lindenbower 526, 527, 645 v. Nat'l Bk. of Commerce 21, 28 Abell v. Douglass 62 Abels v. Supervisors of Ingham 896 Abendroth v. Greenwich 266 p. Manhattan Ry. Co. 799, 801, 815, 828 Abercrombie c. Baxter 412 Aberdeen v. Saunderson 343 v. Sykes 274, 322 Aberdeen Academy v. Aberdeen 347 Abington v. North Bridgewater 904 Ableman v. Booth 4, 493 Abraham v. Casey 32 Ackerman v. Jones 639 Ackley School Diet. v. Hall 206 A Coal Float v. Jeffersonville 282 Adams, Ex parte 453 v. Adams 42, 497 v. Beale 626 v. Beloit 182 v. Beman 743 v. Brenan 274 p. Chicago, &c. R. R. Co. 299, 791, 802, 828 v. Coulliard 850 v. Cowles 586 v. Field 86 v. Hachett 400 p. Howe 128, 185, 237, 254 v. Palmer 156, 402, 403 v. People 177 v. Rankin 607 t'. Rivers 808 v. Shelbyville 731 v. SomerviMe 725 v. State 262, 468 v. Tonnella 718 v. Vose 496 v. Wiscasset Bank 348, 352, 356 Adams Co. v. Burlington, &c. R. R. Co. 30, 81, 86 v. Quincy 695, 718, 731, 741 Adams Exp. Co. v. Kentucky 692 v. Ohio State Aud. (165 U. S.) 691 p. Ohio State Aud. (166 U. S.) 692 Adamson v. Davis 624 Addle v. Davenport 900 Addoms v. Marx 6'28 Addy v. Janesville 304 Page Addyston Pipe & S. Co. v. United States 687 Ad Hine, The, p. Trevor 45 Adirondack Ry. Co. v. New York 386 v. State ' 386 Adkins v. Richmond 690, 694, 853 Adler p. Whitbeck 709, 749 Adsit v. Sec'y of State 909 Agee v. Smith 877 Ah Fook, Matter of 607 Ah Foy, Ex parte 287 Ah Jow, In re 493 Ah Kow v. Nunan 557 Ah You, Re 290 Ahl v. Gleim 331, 533 A'Hern p. Iowa S. A. Society 305 Aikman v. Edwards 64 Aitken v. Wells River 300, 754, 878 Akron v. Chamberlain 296 Alabama, &c. Ins. Co. v. Boykin 539 Alabama, &c. R. R. Co. v. Kenney 398 Alabama G. S. Ry. Co. v. Hill 424 Alabama R. R. Co. v. Kidd 316 Albany p. Sikes S04 Albany Co. Suprs. v. Stanley 232 Albany Street, Matter of 232, 251, 508, 764, 778, 780, 815, 823 Albertson P. Landon 149, 528 Albrecht p. State 204, 205, 709, 713 Albrittin p. Huntsville 356 Albuquerque Nat'l Bk. p. Pera 712, 749 Alcock v. Cooke 609 Alcorn v. Hamer 166, 736 Alderman v. School Directors 262 Alderson v. Com'rs 936 Aldrieh p. Aldrich 193 p. Cheshire R. R. Co. 783, 819, 826 p. Kinney 41, 42, 583 p. Printing Co. 622 p. Sharp 689 Aldridge v. Railroad Co. 629, 777 p. Williams 101 Alexander v. Alexander 614, 605 p. Baltimore 728 p. Bennett 129 v. McKenzie 388 p. Milwaukee 296, 781, 786 p. Mt. Sterling 358 p. People 253 p. State 687 p. Taylor 82 v. Worthington 89, 100 Alexandria & F. Ry. Co. P. Alexan- dria, &c. R. R. Co. 807 XX11 TABLE OF CASES. Page Allbyer v. State 97, 629 Alleghany City v. McClurkan Allegheny Co. v. Gibson Allegheny County Home's Case 2\2t Allen v. Aldrich 484 v. Archer 631 v. Armstrong 626, 627, 545 v. Baltimore & O. R. R. Co. v. B'd of State Aud. 130 v. Cape Fear, &c. Ry. Co. 606 v. Chippewa Falls v. Crofoot 629 v. Dist. of Col. v. Drew 730, 734 v. Georgia v. Glynn 900 v. Jay 311, 316, 697, 700, 705, 772 v. Jones 760 v. La Fayette 272 v. Louisiana 249 r. McKeen 360 v. Pioneer Press Co. 660, 650 v. Southern P. Ry. Co. 28 v. Staples 430 v. State 458 v. Taunton 812 v. Tison 209 v. Wyckoff 20 Allen Co. Commissioners v. Silvers 248, 253 v. Simons 12, 680 Allentown v. Henry 728 Alley v. Edgecomb 327 Allgeyer r. Louisiana 12, 179, 833, 837 Allison, Re 469 t7. Blake 99 Allor v. Auditors 231, 689 Alloway v. Nashville 826 Almy v. California 687 Alston v. Newcomer 904 Altenburg v. Commonwealth 845, 885 Alter's Appeal 641, 558 Altgelt v. San Antonio 297, 749 Altnow v. Sibley 355 Alton v. Hope 363 Alton Woods, Case of 609 Altvater v. Baltimore 301 Alvin v. Collin 924 Alvord v. Collin 749 Amann v. Damm 612 Amberg v. Rogers 626 Atnboy v. Sleeper 280 Ambrose v. State 280 Amenia v. Stamford 737 American Bk. N. Co. v. N. Y. E. Ry. Co. 803 American Exp. Co. v. Michigan 22 v. People 879 American Fertilizing Co. v. Bd. of Ag. 686 American Fur Co. r. United States 850 American Print Works v. Lawrence 757, 878 American Pub. Co. v. Fisher 458, 460 American R. Tel. v. Hiss 298 Page American Ref. Tr. Co. v. Hall 691 American River Water Co. v. Am*- den 863 American Sugar R. Co. v. Louisiana 16, 663 American S. S. Union v. Taylor 741 American Telph. & Telne. v. Pearce 804 v. Smith 787 Americus v. Mitchell v. Perry 65, 24 Ames v. Boland 576 v. Lake Superior R. R. Co. 394, 817, 836 v. Port Huron Log Driving and Booming Co. 619, 594 Amey v. Mayor, &c. 167 Amis v. Smith Amory >;. Keokuk Amoskeag Mfg. Co. v. Concord Ampt. v. Cincinnati Amsbaugh v. Exchange Bank 683 Amsterdam Water Com'rs, Matter of 809 Amy . Selma 267, 268 . Smith 37 Anderdon v. Burrows 829 Anderson v. Dunn 190, 191 v. East 302 v. Hill 213, 327, 703 v. Jackson 84 v. Kerns Draining Co. 717, 735, 770 v. Louisville 16 v. Louisville & N. Ry. Co. 869 v. M. F. As. Co. 164 v. Millikin 564 . O'Conner 272 v. State 486 17. Wellington 289 v. Whatcomb Co. 121 Anderton v. Milwaukee 674 Andes v. Ely 322 Andover v. Grafton 320 Andres v. Wells 644 Andrew v. Bible Society 670, 672 Andrews, Ex parte 859 r. Andrews 579 v. Beane 138, 544, 546 v. Beck 589 v. Carney 133 r. Insurance Co. 279 v. Page 154, 634 v. People 217 v. Russell 537 v. Simms 478 v. State 128, 237, 452, 499 v. St. Louis Tunnel Co. 224 v. Swartz 22 r. Wheaton 576 Andrus v. Board of Police 654 Angle t7. Chicago M. & St. P. Ry. Co. 517 Annable v. Patch 513 Annapolis v. Harwood 194 v. State 207 Annis v. People 459 Anniston, &c. R. R. Co. v. Jackson- ville &c. R. R. Co. 807 Anonymous 515 TABLE OF CASES. XX111 Anthony v. State 452 Antisdel v. Chicago, &c. R. R. Co. 841 Antoni v. Greenliow 24, 406 v. Wright 232, 403 Antonio v. Gould 209, 211 Arayo v. Currell 178 Arbegust v. Louisville 720 Arbenz r. Wheeling & H. Ry. Co. 828 Arctander, Matter of 481 Argentine v. Atchison, T. & S. F. Ry. Co. 298 Arimond v. Green Bay Co. 757, 783, 787 Arkadelphia v. Windham 356 Arkansas V. L., &c. Co. v. Mann 590 Armington v. Barnet 395, 679, 757, 777 Arms v. Ayer 164, 558 Armstrong v. Harshaw 42, 583 v. Jackson 246, 553 v. Mayor 205 v. State 459, 464 v. United States 12 Arnold, Ex parte 911 v. Arnold . 677 v. Davis 903 . Decatur 760, 777 v. Kelley 137, 560 17. McKellur 220 v. Mundy 862 Arnson v. Murphy 23 Aron v. Wausau 302, 306 Arrington v. Arrington 44 Arrowsmith v. Burlingim 503 v. Harmoning 30 Arundel o. McCulloch 863 Asberry v. Roanoke 731 Ash v. Cummings 773, 814, 817 v. People 283, 857, 887 Ashbrook v. Commonwealth 853 r. Schaub 182 Ashcroft v. Bourne 587 Asher v. Louisville, &c. R. R. Co. 823 v. Texas 694 Ashland & C. S. Ry. Co. v. Faulkner 803 Ashley v. Peterson 430 v. Port Huron 304, 363, 786, 787 v. Ryan 397 Ashuelot R. R. Co. v. Elliott 144, 394, 412 Aspinwall v. Commissioners 266 Astley v. Younge 629 Astor v. New York . 531 A strom v. Hammond 259 Atchinson & N. Ry. Co. v. Boerner 827 Atchison v. Bartholow 266 v. King 363 Atchison, &c. R. R. Co. v. Betts 52 Atchison & Nebraska R. R. Co. v. Baty 528, 841 Atchison, T. & S. F. Ry. Co. v. Camp- bell 569, 874 v. Clark 558 v. Howe 706 v. Matthews 15, 571 Athearn v. Independent District 262 Athens v. Georgia R. R. Co. 291 Atherton v. Atherton 44 Atkins v. Com. 474 Atkins v. Phillips v. Plimpton v. Randolph Atkinson v. Bemis v. Detroit Free Press v. Doherty v. Dunlap Page 288 685 336, 360 278 646 510 137, 521, 529 v. Goodrich Transp. Co. 284 v. Marietta & Cincinnati R. R. Co. 762 Atlanta v. Central R. R. Co. 825 v. First Pres. Ch. 718, 741 v. Green 811, 812 v. Stein 274, 291 v. Warnock 303 v. Word 812 Atlantic Ex. Co. v. Wilmington & W. Ry. Co. 873 Atlantic & Ohio R. R. Co. v. Sulli- vant 762 Atlantic & P. Ry. Co. v. Mingus 149 Atlantic, &c. Telegraph Co. v. Chi- cago, &c. R. R. Co. 316, 787 Atlantic De Laine Co. v. Mason 275 Attaway v. Cartersville 305 Atty.-Gen. v. Barstow 935, 937, 939 v. Boston & A. Ry. Co. 574, 875 v. Brown 158, 217, 259 v. Brunst 86 v. Cambridge 269 v. Chicago, &c. R. R. Co. 238, 395, 838, 839, 873 v. Common Council of Detroit 121, 894, 895 v. Detroit 908 v. Detroit & Erin Plank Road Co. 89, 92 v. Eau Claire 55, 256, 700 v. Ely 915, 916, 919, 929, 935, 937, 941 v. Exeter 350 v. Geerlings 661 v. Jochem 159, 574 v. Joy 201, 209 t>. Marr 168 v. Marston 895 v. Morris & Essex R. R. Co. 789 v. New York 295 v. Old Colony Ry. Co. 572 v. Railroad Companies 217, 394, 875 v. Railway Co. 802 v. Rice 194, 205 v. Rogers 75, 134 v. Supervisors of Lake Co. 259 v. Supervisors of St. Clair 926 v. Weimer 166, 195 r. Williams 879 v. Winnebago, &c. Plank Road Co. 725 Atwater v. Woodbridge 353, 395 Atwill v. Mackintosh 610 Atwood v. Lincoln 275 v. Welton 677 Auburn v. Union Water P. Co. Auditor v. Holland 163 Auditor Gen. v. University 740 Auditor of State v. Atchison, &c R. R. Co. 130 XXIV TABLE OF CASES. Page Augusta r. Burum 296 17. Mackey v. Murphy v. Sweeney Augusta, &c. R. R. Co. v. Renz Augusta Bank v. Augusta 407, 738 Augusta Evening News v. Radford 628 Augusta Factory c. Augusta 740 Augustin t7. Eggleston Auld v. Butcher 406, 623 v. Walton Aurora v. Heed Aurora City v. West 80, 167 Austen v. Miller 35 Austin el a/., In re 481 v. Augusta T. Ry. Co. 810, 811 . Coggeshall 310 t7. Gas Co. 740 v.Murray 281,285,291,292 v. Tennessee 687, 848 Austine 17. State 445 Avent-Beattyville Coal Co. v. Com. 877 Avery v. Tyringham Avis v. Vineland 291 Axtell v. Gerlach 748 Aycock r. Martin 414 Ayers, In re 24, 495 r. Chicago Title T. Co. 709 v. Grider 606 r. Moan 925 Aylesworth v. St. John 631 Aynette v. State 499 Ayres t7. Methodist Church 670, 673 B. Babcock t?. Buffalo 362, 884 t7. Camp 80 Baccigalupo v. Commonwealth 437 Bachelder v. Moore 454 Backus i: Detroit 666 v. Fort St. U. D. Co. 22, 32, 814 v. Lebanon 392, 395, 589 Bacon v. Arthur 867 . Callender 616, 643, 553 t7. Fisher 478 v. Mich. Cent. R. R. Co. 605, 612 t7. Texas 31, 36 i7. Wayne County 477 . York County 986 Bacot, Ex parte 764 Bagg t7. Wilmington C. & A. Ry. Co. 845 Baprp's Appeal 138, 521 Baiznall v. London & N. W. R. Co. 819 Bahen, Ex parte 282 Bailey v. Boston & P. Ry. Co. 827 v. Commonwealth 109 w. Fisher 898 v. Fiske 664 r. Gentry 78 7. Milnef 36 t;. Miltenberger 766 v. New York 347, 357, 358, 390 v. People 673, 880 Page Bailey v. Philadelphia, &c. R. R. Co. 79, 228, 838, 867 v. Sweeney 800 v. Wright 425 Bailey's Case Bain, Ex parte Baird v. Mayor 691 v. State 200 Baity v. Cranfill Baker v. Boston 884 t7. Braman 232, 250, 251 t7. Cincinnati 717 r. Ducker 661 v. Gordon 497 v. Johnson 809, 814 r. Kelly 623 v. Kerr 688 r. Lewis 863 17. Mattocks 62 t7. Panola Co. 710 7. People 680 v. Portland 888 17.. Rand 81 17. State 468, 470 v. Stonebraker's Adm'rs 522 r. Windham 307 Balch v. Commissioners 770 Baldwin v. Bank of Newberry 417 17. Chicago 285 v. Douglas Co. 737 v. Flagg 413 v. Franks 18 f. Green 279 v. Hale 416, 417 17. Newark 406, 630 v. New York 341 v. North Branford 266, 327 v. State 222 Balfour v. Louisville, &c. R. R. Co. 823 Ball v. Chadwick 100 17. Commonwealth 437 r. Gilbert 924 v. Winchester 365 v. Woodbine 302 Ballard v. State 437 Ballentine v. Mayor, &c. 236 Ballot Act, Re ' 900 Ballon v. State 304 Balm v. Nunn 689 Baltes v Farmers' Irr. Dist. 929 Baltimore v. Baltimore, &c. R. R. Co. 665 r. Keeley Inst. 696 v. B. Tr. & G. Co. 299 r. Cemetery Co. 741 r. Clunet 165, 400 r. Eschbach 324 v. Hussey 694 17. Johns Hopkins Hosp. 722 v. Pendleton 362 P. Redecke 288 17. Scharf 505, 722 p. State 100, 104, 169, 239, 253 255, 257, 258, 657, 831 v. Stewart 731 Baltimore & E. S. Ry. Co. v. Spring 696 TABLE OF CASES. XXV Page Baltimore & F. T. R. v. Baltimore, &c. Ry. Co. 758 Baltimore & O. Ry. Co. v. Baugh 32 v. Maryland 872 Baltimore, &c. R. R. Co. v. P. W. & K. Ry. Co. 779 v. Fifth Bapt. Ch. 297, 785 v. Magruder 757 v. Nesbit 761 v. North 807 . Pittsburgh, &c. R. R. Co. 780, 818 Baltimore Tr. Co. v. B. B. Ry. Co. 32 Baltimore, &c. Turnpike Co. v. Union R. R. Co. 398 Baltzer v. North Carolina 410 Bamberger & Co. v. Schoolfield 32, 180 Banaz v. Smith 259, 731 Bancroft v. Dumas 174, 845 v. Lynnfleld 308 v. Thayer 262 Bandel v. Isaac 101 Banger's Appeal 709 Bangor v. Smith , 852, 858 Bangs v. Snow 745, 749 Banholzer 17. N. Y. L. Ins. Co. 39 Bank v. Hines 703 v. Supervisors 683 Bank of Augusta v. Earle 178 Bank of Chenango v. Brown, 166, 170, 173 Bank of Chillicothe v. Chillicothe 272 Bank of Columbia v. Okely 505, 564 Bank of Commerce r. New York 683 17. Tennessee 396, 738. 740 r. Wiltsie 182, 183 Bank of the Dominion v. McVeigh 392 Bank of Hamilton v. Dudley's Les- see 33, 247, 516 Bank of Illinois v. Sloo 86 Bank of Mich. v. Williams 244, 503 Bank of Republic v. Hamilton Bank of Rome v. Village of Rome 167 Bank of the State v. Bank of Cape Fear 392 v. Cooper 56( r. Dalton 4c Bank of United States 17. Daniel 33 v. Halstead 103 t7. Norton 2( Bank of Utica v. Mersereau 47 Bank Tax Case 68< Bankers' Case Bankhead v. Brown 764, 775, 778 Banks, Ex parte 439 Banks, The v. The Mayor i Banner Pub. Co. v. State 619, 656 Banning v. Commonwealth 88-; 17. Taylor 502 Bannon v. State 56( Banta v. Chicago 265 Baptist Church v. Wetherell 660, 66 Bar Association, Ex parte 69' Barbemeyer v. Iowa 18 Barber v. Pittsburgh, Ft. W. & C. Ry. Co. 17. Root 679, 580 v. St. Louis, &c. Co. 637 Page Jarber v. Trustees of Schools 262 Jarber Asphalt Co. v. Hunt 195 Barbier v. Connolly 11, 19,282, 832 iarbour v. Barbour 514 v. Camden 331, 543 17. Erwin 522 Barclay v. Barclay 487 . HowelFs Lessee 810 3ardwell 7. Anderson 673 Barfield v. Gleason 731 3arker, Ex parte 40 17. Cleveland 80 v. People 46, 99, 471, 894 v. Pittsburgh 389 Barling v. West 282, 285 Barlow v. Lambert 62 Barnaby v. State 858 Barnard v. Bartlett 434 v. Taggart 100 Barnes v. Campbell 644 i7. District of Columbia 266 r. Dyer 729 i7. First Parish in Falmouth 105 w. Lacon 340 17. McCrate 629 v. Pike Co. 929 v. Suddard 181 v. Supervisors 907 Barnet v. Barnet 638, 641 Barnett v. Dennison 319 17. People 470 u. Railroad Co. 841 r. Ward 607 Barnitz v. Beverley 413 Barnum v. Oilman 895, 932 v. Okolona 81, 168, 319, 326 Barr v. Moore 629 Barre R. R. Co. v. Montpelier 807 Barre Water Co., Re 696, 762 Barrett v. Crane 685 17. Failing 685 17. Holmes 623 17. Kemp 777 v. Taylor 908 Barren v. Baltimore 46 v. Burnside 24 t7. Dent 685 v. Detroit 306 Barronet, Matter of 438, 439 Barrow v. Page 760 Barrows v. Bell 637, 647 Barry, Ex parte 498 v. Lauck 908, 910, 927 v. Mercein 33, 497 Barry's Case 497 Bartemeyer v. Iowa 38, 849 Barthelemy v. People 658 Bartholomew v. Harwinton 330, 331, 643 Bartlett v. Christhilf 630 t7. Clarksburg 302 17. Columbus 800 v. Crozier 803, 355 t7. Kinsley 275 v. Knight 42, 683 w. Lang 615 v. Morris 91 XXVI TABLE OF CASES. Page Bartlett v. Wilson 631 Barto v. Himrod 163, 169, 170, 172 Barton n. Brown 251 v. State 453 v. Swepston 274 v. Syracuse 356, 362 t\ Thompson 81 Bartruffc. Remey . 629 Bass v. Fontleroy 176 v. Nashville 120, 400 v. Roanoke N. & W. P. Co. 512 Bassett v. Porter 277 Hasten r. Carew 687 Batchelder v. Batchelder 679 Bates v. Cullom 622 r. Delavan 683 v. Huston 661 v. Kimball 78, 132, 137, 228 v. McDowell 514 r. Relyea 84 v. Spooner 80 v. Taylor 162 Bates Co. v. Winters 319 Bathrick v. Detroit Post, &c. Co. 637 Baths, Ex purte 289 Batman v. Megowan 937 Batre v. State 464, 466 Battle r. Howard 209 Baugher v. Nelson 374, 672 Baughn v. State 670 Biium v. Clause 606 v. Raphael 216 Bauman v. Detroit 300 r. Ross 716, 826 Bauserman v. Blunt 27, 32 Baxter, Matter of 371 v. Brooks 937 v. Winooski Turnpike 355 Bay v. Gage 629 Bayard v. Klinge 892 v. Singleton 56 Bay City v. State Treasurer 104, 325, 338 Bay City, &c. Co. v. Austin 407 Bayerque v. Cohen 34 Baylis v. Lawrence 656 Bayly v. Fourchy 632 Bays t-. Hunt 628 v. State 262 Beach v. Ranney 607 v. Viles 33 v. Walker 629, 633 Beal v. Nason 621 v. State 177 Beale v. City of Boston 828 Beall r. Beall 612, 554 Beals v. Amador Co. 336 Bean v. State 434 Beard v. Beard 682, 585 v. Hopkinsville 318, 320 v. Wilson 200 Bearden v. Madison 287 Bcardsley v. Bridgman 607, 644 v. Erie Ry. Co. 873, 875 Smith 348, 354, 355 v. Tappan 611 Beardstown v. Virginia 89, 102, 914, 926, 942 Beasley v. Beckley 691 Beaty v. Knowler Beauchamp v. State 128, 237 Beaudeau v. Cape Girardeau 220 Beaufort Co. Comm'rs v. Old Domin- ion S. S. Co. 693 Beauregard v. New Orleans Beaver v. City of Harrisburg 763 Beck v. Stitzel 605 Becker v. La Crosse 312 Beckwith v. Racine 415 v. Rucker 900 v. Winters 900 Bedard v. Hall 195 Bedell, Ex parte 473 v: Bailey 692 Bedford v. E. Building & L. Ass'n 179 Bedle r. Beard 277 Beebe v. State 132, 137, 236, 237, 245, 849 Beecher v. Baldy 121, 251 Beeching's Case 490 Beef & P. Co. v. Best 417 Beekman v. Saratoga, &c. R. R. Co. 754, 764, 767, 770, 776, 776 Beeler v. Jackson 612 Beene v. State 481 Beer Co. v. Massachusetts 400, 831, 845, 846, 849, 854, 883 Beers v. Beers 590, 591 v. Botsford 352 v. Haughton 406, 407 Beets v. State 451 Begeroro, Re 440 Behrens v. Allen 638, 640 Beiling v. Evansville 290 Beirne v. Brown 370, 372 Belcher Sugar Ref. Co. v. St. Louis Kiev. Co. 766, 770, 804 Belden v. State Belknap v. Ball v. Louisville Bell v. Bell v. Clapp v. Morrison v. Norfolk, &c. R. R. Co. t>. Plattville v. Prouty v. Rice v. State v. Sun Printing Co. v. West Point Belles v. Bun- Belleville R. R. Co. v. Gregory 83 628 893 44, 579 428, 430 33, 34, 521 757 272 765 430 451 629 363 901 92 441, Bellinger v. New York Cent. R. R. Co. 757, 783, 807, 826 Beliingham Bay & B. C. Ry. Co. v. New Whatcom 26 Bellmeyer v. School District 261 Bellows v. Parsons 87 Bellport, Parish of v. Tooker 660 Belo v. Commissioners 738 Belvin v. Richmond 356 Bemis v. Becker 86 Benden v. Nashua 733 TABLE OF CASES. XXV11 Bender v. Crawford 414, 522 v. State 219 Bendey v. Townsend Benedict v. Goit 790 v. Smith v. State 478 v. Vanderbilt 856 Benford v. Gibson Benjamin v. Manistee, &c. Co. 865 v. Webster 294 Bennett v. Am. Exp. Co. 879 v. Bennett v. Boggs 237 v. Borough of Birmingham 272, 283 v. Brooks 859 v. Bull 236 v. Deacon 611 v. Fisher 631 v. Harms 38, 514 v. New Orleans 304 v. Pulaski 285 v. State 437, 677 Benoist v. St. Louis 726 Bensley v. Mountain Lake, &c. Co. 763 Benson v. Albany 239, 241 v. New York 235, 344, 345, 347, 390, 838, 843 Bentinck v. Franklin 522 Benton v. Town of Brookline 826 v. Trustees, &c. 305 Bents v. Graves 675 Benz o. Weber 206 Bergeman v. Backer 22, 32 v. Cleveland 285, 890 Berger v. U. S. Steel Cor'p. 396, 510 Berkley v. Board of Education 532 Berlin v. Gorham 166 Bernhardt v. Brown 570 Bernier v. Russell 559 Beroujohn v. Mobile 285 Berry v. Baltimore, &c. R. R. Co. 194, 247 v. Carter 607 v. Clary 539 v. Doane Point K. R. Co. 194 v. Ransdell 623, 624 Berthold v. Fox 413 Bertholf v. O'Reiley 851 Bertonneau v. School Directors 557 Beseman v. Pa. R. R. Co. 785 Bethany v. Sperry 275 Bethune v. Hayes 285 Bettman v. Coroley 404 Bettner v. Holt 606 Bevard v. Hoffman 927 Beveridge . Lewis 827 Bibb v. Bibb 81 v. Janney 252 Bibb County Loan Association v. Richards 200 Bickersdike v. Allen 571 Bicknell r. Comstock 621 Biddle v. Commonwealth 591 v. Hooven 621 Bidwell v. Whit taker 89 Bielenberg v. Montana N. Ry. Co. 528, 842 Bier v. McGehee 62, 384 Bigelow v. Bigelow v. Randolph v. W. Wisconsin R. R. Big Grove r. Wells Biggs, Ex parte v. McBride Bigham v. State Page 46 355, 356 92, 256, 823 320, 324 481 105, 158, 159 467 Bigler's Executors v. Penna. Canal Co. 762 Bill v. Norwich 363 Billings r. Detten 645 v. Fairbanks 611, 612 v. Wing 605 Billmeyer v. Evans 415 Bills v. Goshen 284 Bimeler v. Dawson 42, 683, 586 Binghamton Bridge Case 892, 398, 549 Bird, Ex parte 859 v. Benlisa 751 v. Daggett 324 v. Perkins 363 v. Smith 862 v. State 448 v. St. Mark's Ch. 661 v. Wasco County 216 Birdsall v. Carrick 221 Birdsong, In re 473 Birmingham v. McCary 362 Birmingham, &c. St. Ry. Co. v. Bir- mingham St. Ry. Co. 299 Birmingham M. Ry. Co. v. Parsons 164 Birmingham T. Co. i: Birmingham R. & E. Co. 803 Bischoff v. N. Y. El. 827 Bishop v. Marks 7-56 Bissell v. Briggs 41, 583 v. Davidson 880 v. Jeffersonville 321, 323 v. Kankakee 320 v. Penrose 104 v. Spring Valley 319 Bittenhaus v. Johnston 671 Bitzer v. Thompson 284 Black v. Black 681 v. Columbia 301 v. Gloucester City 182 v. Sherwood 695 v. State 468 Blackford v. Peltier 623 Blackhawk, Co. of, v. Springer 690 Blackinton v. Blackinton 80 Blackman v. Halves 765 Black well v. State 442 Blackwood v. Van Vleit 97, 412 Bladen v. Philadelphia 111 Blahnt v. State 676 Blain v. Bailey 217 Blair v. Charleston 828 r. Forehand 881 v. Kilpatrick 568, 889 v. Milwaukee, &c. R. R. Co. 836 i?. Ostrander 28, 417 v. Ridgely 57, 370 v. West Point 278 Blake v. Dubuque 818 v. McClung 21,38,813,825 XXV111 TABLE OF CASES. Page Blake v. Rich 808 v. St. Louis 356, 362 v. Winona, &c. R. R. Co. 839, 876 Blakely v. Devine 307 15 lake more v. Dolan 215 Blakeslee v. Carroll 629 Blauchard v. Raines 590 r. Stearns 927 Blandford v. State 41 Blandford School District v. Gibbs 932 Standing v. Burr 167, 336 Blatchley v. Moser 280 Bleakney v. Bank of Greencastle 633, 536 Bledsoe v. Commonwealth 435 Blessing v. Galveston 194, 200, 267 Blewett v. Wyandotte, &c. R. R. Co. 841 Blin v. Campbell 575 Bliss v. Commonwealth 237, 499 v. Hosmer 757 t>. Kraus 265 v. South Hadley 808 Bliss's Petition 37 Block v. Jacksonville 851 v. Salt Lake R. T. R. Co. 298 Blocker v. Burness 677 Blodgett, In re 211 Blood v. Mercelliott 207 Bloodgood v. Mohawk & Hudson R. R. Co. 228, 761, 764, 766, 777, 813, 814 Bloom v. Richards 52, 662, 670, 675, 859 Bloomer v. Stolley 175 v. Todd 901 Bloomfleld v. Charter Oak Bank 275 v. Trimble 280 Bloomfield, &c. Co. v. Calkins 791 Bloomington v. Bay 356 v. Brokaw 296, 304, 363 v. Latham 731, 813, 825 v. Pollock 828 v. Wahl 285 Blossburg, &c. R. R. Co. v. Tioga R. R. Co. 34 Blount v. Janesville 296, 639, 719 Blue v. Beach 880 Blumb v. Kansas City 302, 362 Blydenburg v. Miles 472, 886 Board of Commissioners v. Allman 305 v. Bearss 331 v. Bradford 310 v. Bright 642 v. Church 337 v. Lucas 307 v. Merchant 20 v. Pidge 861 Board of Dir. of A. Irr. Dist. v. Collins 767 Board of Education v. Blodgett 622 v. Brunswick 231 v. De Kay 319 v. McLandsborough 679 v. Minor 67, 263, 665, 670 v. State 131 v. Thompson 262, 263 v. Tinnon 667 Board of H. Com. v. Excelsior R. Co. 165 Board of Health v. Van Hoesen 770 Board of Improvement v. School Dist. 718, 741 Board of Pol. Com'rs v. Wagner 431, 885 Board of Public Works v. Columbia College 42 Board of Street Openings, Re 759, 768 Board of Supervisors v. Cowan 336 v. Heenan 204 Board of Trade Tel. Co. v. Barnett 787 Board Water Com. v. Dwight 210 Boardman v. Beckwith 531 Bode v. State 845, 846 Bodwell v. Osgood 619 Boehm r. Hertz 696 Bogardus v. Trinity Church 62 Bogert v. Indianapolis 285 Boggess v. Scott 750 Boggs v. Merced, &c. Co. 753 Bohanan v. Nebraska 31 Bohannan v. Commonwealth 434 Bohen, Re 881 v. Waseca 363 Bohl v. State 675 Bolilinan v. Green Bay, &c. R. R. Co. 760, 761 Bohmey . State 279 Bohon's Assignee v. Brown 13 Boice v. Boice 413 Boisdere v. Citizens' Bank 256 Boiling v. Lersner 30 Bollman and Swartout, Ex parte 495 Bolln v. Nebraska 30, 436, 456, 605 Bolton v. Johns 515, 540 v. Prentice 484 Bombaugh v. Bombaugh 613 Bonaparte, Prince Pierre, Trial of 442 Bonaparte v. Tax Court 694 Bond v. Appleton 86 v. Commonwealth 463 v. Kenosha 717, 718, 749 v. State 437 Bonds of Madera Irrig. Dist., Re 674, 715, 731 Bonham v. Needles 321 Bon Homme Co. v. Berndt 183 Bonnett v. Bonnett 497 Bonney v. Bowman 688 Bousall v. Lebanon 860 Boogher v. Knapp 606, 606 Booker v. Young 893 Boon c. Bowers 84, 146 Boonville v. Ormrod 817 v. Trigg 216 Boorman v. Santa Barbara 618, 722 Boorum v. Connelly 663 Booth v. Booth 633 v. People 885 v. Woodbury 331, 699, 812 Borden v. Fitch 42, 579 Boro v. Phillips Co. 736 Borough of Dunmore's Appeal 269, 336, 341, 391 Borough of York v. Forscht 310 Boske v. Comingore 35 Bosley v. Mattingley 89 TABLE OF CASES. XXIX Bossier v. Steele Bostick v. State Boston v. Cummins v. Schaffer v. Shaw Page 209 886 237, 376 283,710 288, 861 Boston, &c. Railroad Co. In re 806 Boston & A. Ry. Co. v. Cambridge 758 Boston, Concord, & M. R. li. Co. v. State 844 Boston & Lowell R. R. Co. v. Salem & Lowell R. R. Co. 398 Boston & M. R. R. Co. v. Cora'rs 839 Boston & Roxbury Mill-dam Cor- poration v. Newman 772, 777 Boston Mining, &o. Co., Matter of 214 Boston Water Power Co. v. Boston & Worcester R. R. Co. 398, 757 Bostwick v. Perkins 575, 576 Boswell v. Commonwealth 437 v. State 437, 467 Botts u. Williams 39 Boucher v. New Haven 363 Bougliton v. Carter 757 Boulder v. Niles 356 Boulware i>. Davis 179 Bounds v. Kirven 790 Bourgeois, Ex parte 281 Bourland v. Eidson 608 v. Hildreth 183, 903, 929 Bourn v. Hart 318 Bourne v. The King 473 Bow v. Allenstown 263, 276, 277 Bowditch v. City of Boston 826 Bowdoinham v. Richmond 268, 411 Bowen v. Byrne 685 v. Hixon 937 v. King 275 v. Preston 514 v. State 24 Bowers v. Smith 900 Bowie v. Lott 120 Bowler v. Eisenhood 937 Bowles v. Landaff 333 Bowling Green v. Carson 284, 887 Bowman v. Chicago &N. W. Ry. Co. 847 v. Middleton 234, 244, 509 v. Smiley 252, 415 Box well v. Affleck 660 Boyce v. Sinclair 632, 536, 542 Boyd, In re 160 v. Alabama 831 v. Bryant 174, 888 v. Ellis 46 v. Mills 900,911 v. Nebraska 12 v. Roane 686 v. Selma 720 . State 212, 400, 445 Boye v. Girardey 710 Boyer v. Grand Rapids F. I. Co. 212 Boyland v. New York 357 Boyle, Matter of 182, 225 v. Arledge 34 v. Zacharie 417 Braceville Coal v. People 574, 877 Brackett v. Norcross 615, 553 Page Bradbury v. Davis 86 Braddee v. Brownfield 237 Braddy v. Milledgeville 285 Braden v. Stumph 893 Bradfield v. Roberts 664 Bradford v. Brooks 138, 521 v. Gary 389 v. Shine 414, 522 v. Stevens 846 Bradley, Ex parte 454, 481 v. Bander 738 v. Baxter 163 v. Buffalo, &c. R. R. Co. 841, 844 v. Clarke 442, 893 v. Fall Brook Irr. Dist. 768 v. Fisher 481 v. Heath 611, 620, 633, 658 v. Me Atee 265, 396, 399, 719, 728, 730 v. New York & N. H. R. R. Co. 565, 765, 777 v. People 683 v. Pharr 764 v. State 130 Bradshaw v. Heath 42, 579, 583 v. Lankford 164 v. Omaha 258, 267, 721 v. Rogers 812 Bradstreet Co. v. Gill 611 Bradt v. Towsley 607 Brad well v. State 18, 38, 57, 568 Brady v. Bronson 761 v. King 546 v. New York 323, 324 v. Northwestern Insurance Co. 286, 878 v. Richardson 576 v. West 218 Bragg v. Meyer 36 v. People 547 Bragg's Case 681 Braggs v. Tuffts 35 Brainard v. Colchester 395, 396 Branahan v. Hotel Co. 291 Branch r. Tomlinson 252 Branch Bank of Mobile v. Murphy 223 Brand v. Multnomah Co. 168 Brandon v. Gowing 478 v. People 449 v. State 209 Branham v. Lange 161, 193, 216 Brann v. Chicago 710 Branson v. Gee 571, 814, 815 v. Philadelphia 299, 840 Brashear v. Madison 318 Brass v. North Dakota 871 Brassard v. Langevin 922 Brasso v. Buffalo 362 Braynard v. Marshall 26 Breeding v. Davis 614 Bregguglia v. Lord 290 Breidenthal v. Edwards 900 Breitenbach v. Bush 414 Breitung v. Lindauer 407, 408 Brenham v. Brenham Water Co. 271 v. German Am. Bk. 319 v. Story 146 XXX TABLE OF CASES. Page Brennan v. Titusville 687, 689, 694 Brent v. Chapman 621 Brevoort v. Detroit 631 v. Grace 144, 146 Brewer v. Bowman 765 v. Davis 389 v. Mayor, &c. 194 v. McClelland 908 v. New Gloucester 351 v. Weakley 624, 913 Brewer Brick Co. v. Brewer 163, 740, 742, 743 Brewster v. Davenport 302 v. Hough 176, 395, 741 v. Syracuse 207, 642, 543, 702 Brick Presbyterian Church v. New York 176, 295, 400, 881 Bricker v. Potts 606 Brickey, Re 499 Bridal Veil Lumbering Co. v. John- son 765, 767, 775 Bridge v. Ford 685 Bridge Co. v. Hoboken Co. 392 Bridgeport v. Housatonic B. R. Co. 167, 612, 542 Bridges, Ex parte ] 492 v. Shallcross 158 Bridge water v. Plymouth 648 Brien v. Williamson 95, 120 Brieswick v. Mayor, &c. of Bruns- wick 209 Brig Aurora v. United States 165 Briggs v. Garrett 624 v. Georgia 114 v. Hubbard 512, 622, 629 v. Johnson Co. 261 v. Lewiston, &c. Co. 795, 802 v. Russellville 720, 722 v. Walker 28 v. Whipple 308 Brigham v. Miller 107, 156 Bright v. Boyd 652 P. McCulloch 206, 712 Brightman v. Bristol 884 Brighton v. Wilkinson 266, 268 Brim v. Jones 671 Brimmer v. Boston 400 v. Rebman 855 Brinkmeyer v. Evansville 356 Brinton v. Seevere 640 Brisbin v. Cleary 913 Briscoe v. Anketell 410, 515 v. Bank of Kentucky 11, 35, 230 Bristol v. Johnson 308, 309 v. New Chester 268, 344 v. Supervisors, &c. 616 v. Washington County 21, 695 Britain v. Kinnard 686 British Plate Manuf. Co. v. Meredith 783 Brittle v. People 69 Britton v. Des Moines, &c. R. R. Co. 825 v. Election Commissioners 899 p. Ferry 104 Broadhent v. State 664 Broadfoot's Case 424 Broadfoot v. Fayetteville 669 Page Broadnax P. Baker 667 Broadway Baptist Church v. Mc- Atee 741 Broadwell v. Kansas City 304, 788 Brock P. Barnet 765 p. Hishen 814 v. Milligan 677 Brockway v. Kinney 81 Brodhead v. Milwaukee 331, 700 Broderick's Will 43 Brodnax v. Groom 194 Broil P. State 465 Bromage v. Prosser 647 Bromley v. People v. Reynolds 711 Bronson v. Bruce 624, 644, 646 v. Kinzie 406, 408, 409, 412 v. Newberry 406, 408 v. Oberlin 291, 888 v. Wallace 34 p. Wallingford 304 Bronson's Estate 720 Brook P. Montague 632 Brooke v. Philadelphia 321 Brooker p. Coffin 605, 607 Brooklyn, Re 383, 393, 758 Brooklyn p. Breslin 285 v. Long Island 756 Brooklyn & Newton R. R. Co. v. Coney Island R. R. Co. 796 Brooklyn Central R. R. Co. P. Brook- lyn City R. R. Co. 278, 794, 796 Brooklyn Park Commissioners v. Armstrong 770, 809 Brooklyn Trust Co. v. Hebron 275 Brooks P. Cedar Brook 782 p. Harison 605 p. Hyde 183 v. Missouri 31 p. Mobile School Commissioners 92 Brophy v. Hyatt 860 Brosnahan, In re 493 Brotherton p. People 437 Brow p. Hatheway 619 Brower p. O'Brien 935 Brown, Ex parte 41, 433, 438 In re 497 p. Beatty 754, 819 p. Brown 196 p. Calumet R. R. Co. 822 p. Cape Girardeau 258 p. Cayuga, &c. R. R. Co. 757, 784, 819 p. Chadbourne 861, 862 p. Chicago 816 p. Circuit Judge 129 v. Com'rs Rush Co. 936 p. Commonwealth 451, 867 P. Denver 722 P. Duffus 133, 496 v. Duplessis 681, 799 P. Epps 691 p. Fi field 95 p. Fleischner 170 p. Foster 686 p. Grover 99, 902 p. Guyandotte 306 TABLE OF CASES. XXXI Page Brown v. Hanson 605 v. Haywood 657, 659 v Hitchcock 407 v. Houston 686, 688 v. Hummel 392 v. Lei ten 252 ;. Lunt 898 v. Maryland 686, 688, 846, 847, 858 v. Massachusetts 30 v. McCollum 915 v. New Jersey 14, 34, 46, 456, 457, 505 v. New York 639 v. Ohio Valley Ry. Co. 232 v. Orangeburg Co. 346 v. Parker 622 v. People 382 v. Phillips 901 v. Pratt 62 v. Providence, W. & B. R. R. Co. 826 v. Russell 66 v. School Dist. 749 v. Seattle 784 v. Seay 120 v. Smart 416, 417 v. Smith 606, 719 v. State (5 Col.) 106 v. State (79 Ga.) 208, 468 v. State (7 S. E. Rep.) 400 v. State (32 Miss.) 452 v. State (8 Blackf.) 468, 577 v. State (16 Ind.) 458 v. Storm 652 v. Turner 895 v. United States 104 v. Walker 442 v. Wilcox 97 r. Worcester 815 Brown's App. 709 Brown & Allen v. Jacobs P. Co. 661 Brownback v. North Wales 694, 888 Brown Shoe Co. v. Hunt 569 Brown University v. Granger 740 Browne v. Scofield 861 Browning v. Springfield 356, 357 Brownville v. Cook 280 Bruce v. Bradshaw 146 Bruffet v. Great Western R. R. Co. 392 Bruley v. Garvin 478 Brumagin v. Tillinghast 687 Bruning v. N. O. Canal & Banking Co. 763 Bruns v. Crawford 414 Brunswick v. Finney 166, 167 Brunswick & W. Ry. Co. v. City of Way cross 762 Brush ;. Carbondale 296 v. Keeler 924 Bryan, Ex parte 452 v. Cattell 389 v. Page 274 v. Reynolds 196 v. Stephenson 893 v. Walker 518 Bryant v. Robbins 130, 868 Bryar v. Campbell 40 Bryrner v. Butler 872 Bryson v. Bryson v. Campbell Buchanan, A' v. Hubbard v. Jones v. Litchfield Bucher v. Cheshire R. R. Co. 33 Buchner r. Chicago, &c. R. R. Co. 791 Buck v. Miller 719 Bucki v. Cone 862 Buckingham v. Davis 695 v. Ludlum 82 v. Smith 759, 764 Buckles a. Ellers 52 Buckley v. N. Y. & N. H. R. R. Co. 844 Bucknall v. Story 748 Buckner v. Finley 42 v. Lynip 911 v. Gordon 902 Budd v. New York 871 v. State 669 Buddington, Matter of 495 Budge v. Grand Forks 751 Buell v. Ball 306, 721 Buffalo v. Holloway 362 v. Webster 284, 287, 887 Buffalo, &c. R, R. Co. v. Ferris 690, 814 Buffalo & N. Y. R. R. Co. r. Brainerd 765 Buffalo & Niagara R. R. Co. v. Buffalo 840 Buffalo, N. Y. & P. R. R. Co. v. Har- vey 817 Buffington v. Grosvenor 38 v. Overton 759 Buhl v. Fort St. Union Depot Co. 781 Bulger, In re 388 v. Eden 303 Bulkley v. Callanan 751 v. N. Y. & X. H. R. R. Co. 841, 843 Bull v. Conroe 647, 558 v. Read 165,166,171,237 Bullard v. Chandler 44 Bullock v. Bullock 43, 45 v. Curry 312, 318 Bumpass v. Taggart 685 Bumpus v. French 572 Bumsted v. Govern 183, 205 Bunn v. Gorgas 414 v. People 104 v. Riker 924 Bunton v. Worley 630 Buonaparte v. Camden & Amboy R. R. Co. 46, 316, 776 Bur, Ex parte 494 Burch v. Newberry 138 v. Savannah 710 Burckholter v. McConnellsville 265 Burden v. Stein 769 Burdeno v. Amperse 95 Burdett v. Abbott 191 v. Allen 674 Burdick v. Babcock 263 v. Missouri P. Ry. Co. 453 v. People 510, 886, 887 Bureau Co. v. Railroad Co. 706 Burford v. Grand Rapids 301 . Wible 607 XXX11 TABLE OF CASKS. Page Burger, In re 495 Burgess v. Clark 773 v. Pue 104, 166, 173, 266 v. Seligman 35 Burgett v. Burgett 202 Burghardt v. Turner 513 Burke v. Elliott 898 v. Gaines v. Mechanics' Savings Bank 144 v. St. Paul, M., &c. Ry. Co. 129 v. Supervisors of Monroe Co. 207, 983, 936 Burkett v. McCarty 902 v. McCurty 133 Burks v. Bennett 692 v. Hinton 87 Burley v. State 452 Burlingame v. Burlingame 630, 631 Burlington v. Bumgardner 283, 709 v. Gilbert 296 v. Kellar 279, 745 v. Leebrick 144, 165 v. Putnam Ins. Co. 283 Burlington C. K. & N. Ry. Co. v. Dey 873 Burlington & M. R. R. R. Co. v. Reinhackle 797 v. Webb 842 Burmeister v. Howard 272 Burnes v. Atohison 717 Burnett, Ex parte 281, 282, 291 v. Dean 184 v. Kinney 44 v. Maloney 183 v. Sacramento 717, 728, 730 Burnham v. Chelsea 331 v. Commonwealth 582 v. Morrissey 191, 193 v. Stevens 496 Burns, Ex parte 144 v. Clarion County 269, 336 v. Crawford 414 Burnside v. Lincoln Co. Ct. 232, 849 Burr v. Carbondale 337, 704 v. Ross 194 Burrel v. Associated Reform Ch. ' 660 Burridge v. Detroit 297 Burrill v. Augusta 305 v. Boston 327 v. West 82 Burritt v. Com'rs 218 v. New Haven 272 Burroughs v. Eastman 425 Burrows, In re 690 v. Delta Trans. Co. 853 Burson v. Huntington 685 Burt v. Advertiser N. Co. 644, 645 v. Brigham 761 v. Merchants' Ins. Co. 755 v. Williams 138, 414 Burton v. Burton 605 v. Chattanooga 304 Burtt v. Pyle 454 Buser v. Shepard 407, 514 Bush v. Bd. Suprs. of Orange Co. 333, 697 v. Indianapolis 216 v. Kentucky 19 Bush v. Seabury v. Shipman Bushel's Case Bushnell v. Beloit Bushnell's Case Buskett, Re Busk irk v. Strickland 284, 887 389, 391 461 167, 325 496 442 784 Butcher's Slaughtering & Melting Ass'n v. Commonwealth 827 Butcher's Union Co. v. Crescent City Co. 399, 402 Butler, Re 436 v. Board of Regents 895 v. Chambers 882 r. Dunham 325 v. Farnsworth 37 v. Gage 30 v. Gorely 416 v. Palmer 406, 413, 543 v. Pennsylvania 388, 389 v. Porter 750 v. Pultney 331 v. Rockwell 387 v. Shiver 252 . State 47, 161, 451 v. Supervisors of Saginaw 137, 712 v. Toledo 530 Butler's Appeal 237, 742 Butte, A. & P. R. Co. v. Montana U. R. Co. 758, 765, 767, 777 Butte & B. Consol. Min. Co. v. Mont. re. P. Co. 610 Butterworth v. Henrietta Tex. Civ. App. 301 Buttrick v. Lowell 305 Butts v. Swartwood 677 Buys v. Gillespie 607 Byam v. Collins 611 Byers v. Commonwealth 690 v. McAuley 27, 32 Byler v. Asher 906, 927 Byram v. Marion Co. Com'ra 740 Byrd, Ex parte 285, 888 Byrne v. Missouri 36 C. Cabanne v. Graf 682 Cabell v. Cabell 156 Cadwallader v. Harris 95 Cady v. Walker 478 Cage v. Trager 815 Cagwin v. Hancock 324 Gaboon v. Commonwealth 120 Cain v. Commissioners 174, 717 v. Syracuse 302 Cairo v. Bross 283 v. Zane 319, 321 Cairo, &c. R. R. Co. v. Sparta 319, 340 v. People 841 v. Trout 120 Calaveras Co. v. Brockway 937, 941 Calcote v. Stanton 30 Calder v. Bull 11, 131, 237, 373 v. Kurby 400 TABLE OF CASES. XXX111 Caldwell v. Alton v. Barrett v. Gale v. Justices of Burke v. Lincoln v. Texas Caldwell Co. v. Harbert Caledonian Ry. C Trustees Calhoun v. Fletcher v. Little v, McLendon California v. Centr. I Cal. Tel. Co. v. Alta Tel. Co. Calking v. Baldwin Calkins v. Cheney v. State v. Sumner Call v. Chadbourne v. Hagger v. Wilkesboro Callahan v. St. Lou Callam v. Saginaw Callan v. Wilson Callen v. Columbus v. Columbus M, Callendar v. Marsh Cailendar's Case Callison v. Hedrick Calvin v. Reed Calwell v. Boone Cambridge v. Lexington Camden v. Camdei Camden & Ambo Briggs Camden & S. Ry. ( Cameron v. Chicag v. Chicago, M Co. (42 Minn.) v. Chicago, M. & S Co. (60 Minn.) v. Chicago, M. & f Co. (63 Minn. v. Kenyon-Connell v. Parker v. P. & L. E. Ry. Co. v. Supervisors Camp v. State Campau v. Detroit v. Langley Campbell, Ex parte v. Bannister v. Board, &c. v. Campbell v. Chicago, M. < v. Dwiggins v. Evans r. Fields v. Holt r. Indianapolis v. Metr. St. Ry. Co. v. Morris v. Quinlin v. Spottiswoode v. State v. Union Bank Page Page 285 Campbell's Case 56, 125, 217 174 Canal Co. v. R. R. Co. 149 86 Canal Trustees v. Chicago 717 ce 167 Cancemi v. People 458, 677 709 Cannon, In re 41 14, 30, 457 v. Brame 80 rt 336, 522 v. Hemphill 209 v. Walker's v. Mathes 116, 116, 209 811,812 v. New Orleans 691 604 Canton v. Nist 279 289 Cantril v. Sainer 213 136 Cantwell v. Owens 89 R. R. Co. 683, 706 Cape Girardeau v. Honch 777 sL Co. 398 v. Riley 118 814, 816 Cape Girardeau Co. Ct. v. Hill 217 660, 661 Cape Girardeau, &c. Road v. Dennis 779 449 Cape May v. Cape M. Del. Bay & S. 629 P. Ry. Co. 297 166, 167 Capen v. Foster 906, 908, 927 410, 521, 523, 524 Caperton v. Martin 622 775 Capital City Dairy Co. v. Ohio 46 &.. B. T. Co. 570 Capital Nat'l Bk. v. First Nat. Bk. 31 338 Capital Traction Co. v. Hof 47, 458 691 Caplis, Ex parte 440 E. L. Co. 804 Cardigan v. Page 924 S. Ry. Co. 804 Card well v. American Bridge Com- 296, 783 pany 65, 864, 866 613 Carey v. Chicago, &c. Ry. Co. 841 814, 815 v. Giles 149, 237, 253 679 Cargill v. Power 250, 413 301, 305 Cargill Co. v. Minn. 887 a 269 Carleton v. Bickford 42 lage Corp. 695 v. Goodwin's Ex'r 138 . R. Co. v. v. Rugg 590 842, 874 v. Whitcher 198 . Stetson 424 Carlisle v. United States 160 c. Rv. Co. 823 Carlslake v. Mapledoram 606 St. Paul Ry. Carlson v. St. Louis Riv. D. & I. Co. 782 ) 827 Carlton v. People 898 5t. Paul Ry. Carman v. Steubenville & Indiana R. .) 556 R. Co. 786 3t. Paul Ry. Carmody v. State 439 ) 671 Carne v. Litchfield 448 Comm'l Co. 279 Carothers v. Hurly 525 389 Carpenter v. Bailey 644 to. 828 v. Dane County 477 761 v. Grand Trunk Ry. Co. 62 689 v. Jennings 825 249, 257 v. Landaff 823, 824, 825 620 v. Montgomery 224, 258 849 v. Oswego & Syracuse R. R. Co. 791 612 v. Pennsylvania 374, 638 215 v. People 93, 182, 464 605, 6011 i'. Snelling 685 . PaulRy. Co. 876 v. Strange 44 722 v. Tan-ant 606 520, 582 Carr, In re 177 63 v. Brown 670 20, 522 v. Coke 195 184 v. Georgia R. R. Co. 817 795, 811, 828 v. Nichols 505 37, 674, 693 v. Northern Liberties 301, 302, 303, 85 362 656 v. State (106 Ala.) 408 46, 470 v. State (127 Ind.) 24 149, 237, 246 v. St. Louis 279 c XXXIV TABLE OF CASES. Page Carrington v. St. Louis 305 Carroll v. Missouri P. Ry. Co. r. Olmsted's Lessee 145 v. State 499 v. St. Louis 302,311 v. Wis. Centr. R. R. Co. 784 Carroll Co. v. Smith 34 Carrollton v. Bazzette 290, 690, 888 Carson v. Blazer 752 v. Brockton Sewer Com'rs 713, 718, 722, 730 v. Carson 370, 403 . Coleman 813 v. McPhetridge 895, 932 Carter v. Balfour 62 . Commonwealth 456 v. Dow 284, 881 v. Dubuque 311 v. Rice 74 v. State 434 r. Walker 587 Carter Co. v. Siuton 206, 320 Carter's Adm'r v. Carter 252 Cartersville v. Lanham 286, 860 Carthage v. Frederick 298 v. National Bank 284 Carton v. Illinois Cent. R. R. Co. 840, 874 Caruthers v. Russell 924 Cary v. Western U. Tel. Co. 198 Cary Library v. Bliss 807 Casborus r. People 470 Case v. Dean 623, 527, 748 r. Dunmore 252, 415 t. New Orleans, &c. R. R. 80 v. Reeve 82 v. Rorabacker 192 v. State 898 v. Thompson 814 v. Wildridge 89 Cash, Appellant 148 v. Whitworth 769 Cass v. Dillon 167, 217, 333 Cass County . Chicago B. & Q. Ry. Co. 706 v. Johnson 893 v. Wilbarger County 322 Cass Farm Co. v. Detroit 714, 731 Cassard v. Tracy 616 Casselman v. Winship 606 Cassidy v. Old Colony 826 Castellaw t>. Guilmartin 80 Caster v. Texas 19 Castillo v. McConnico 750 Castleberry v. Kelly 605, 607 Castro v. De Uriarte 105 Caswell, Re 848 Cate v. Martin 219 Cater v. N. W. Tel. Exch. Co. 804 Cateril v. U. Pac. R. R. Co. 527 Cates v. Kellogg 644 v. Wadlington 861 Cathcart v. Robinson 52 Catlin v. Hull 694 r. Smith 58 Cattell r. Lowry 920 Caughran v. Oilman 42 Caulfield v. Bullock 927 Caw ley v. People Cayuga Bridge Co. v. Magee 666 Cearfoss v. State 91 Cedar Rapids Water Co. v. Cedar Rapids 872 Center Tp. v. Com'rs Marion Co. 80 Central, &c. R. R. Co. v. People 212 Central B. U. P. R. R. Co. v. An- drews 797 Central Branch U. P. R. R. Co. v. Atchison, &c. R. R. Co. 754, 817 Central Bridge Corp. v. Lowell 392, 757, 758 Central City Horse Railway Co. v. Fort Clark Horse Railway Co. 758 Central Georgia Ry. Co. v. State 201 Central la. Ry. Co. v. Board 706 Central Land Co. v. Lardley 36 Central L. & T. Co. v. Campbell Commn. Co. 21 Central Nat'l Bk. v. Stevens 25 Central Ohio R. R. Co. v. Holler 825 Central Pac. Ry. Co. v. California 680 Central Park Extension, Matter of 770 Central Plank Road Co. v. Hanna- man 209 Central R. & B. Co. v. Wright 741 Central R. R. Co. v. Board of Asses- sors 689, 706 v. Hetfield 791, 806 v. Rockafellow 677 v. State 396 Central Transp. Co. v. Pullman P. C. Co. 565 Centralia v. Scott 363 v. Wright 828 Centre St., In re 729 Chadbourne v. New Castle 346 Cliadwick v. Moore 414 Chafee r. Quidnick Co. 453 Cliaffe v. Aaron 6lfi Cliaffee Co. Com'rs v. Potter 322 Chagrin Falls, &c. Plank Road Co. v. Cane 790 Chalker v. Ives 516 Chamberlain v. Dover 275 r. Elizabethport, &c. Co. 789 v. Lyell 251 v. Sibley 162 Chamberlain of London v. Compton 281, 287 Chambers v. Church 868 v. Fisk 104 v. Satterlee 7.30 v. State (127 Ind.) 895 v. State (25 Tex.) 215 Champaign v. Pattison 363 Champaign Co. v. Church 269 Champer v. Greencastle 290 Champion v. Ames 687 Chance v. Marion Co. 91 93 Chandler v. Calumet & H. Min. Co. ' 22 ^ '--Nash 129,58!) Chaney v. Bryan 579 Chapin v. Paper Works 666 XXXV Page Chapman, Re 467 v. Albany & Schnectady R. E. Co. 796 v. Calder 619 v. Gates 814, 815 v. Macon 363 v. Morgan 675 v. Smith 80 Chappee v. Thomas 681 Chappel v. United States 768 Chappell Chem. & F. Co. v. Sulphur M. Co. 15, 28 Chariton v. Barber 292 Charles River Bridge v. Warren Bridge 374, 649, 665, 817 Charleston v. Benjamin 675 Charlestown Branch R. R. Co. v. Middlesex 814, 815 Chariton v. Alleghany City 783 v. Watton 638, 640 Charlotte C. & A. Ry. Co. v. Gibbes 844 Charpentier v. Bresnahan Chase v. Blodgett v. Chase v. Cheney v. Fish v. Merrimac Bank v. Miller v. Oshkosh v. People t?. Stephenson Chase's Case Chattaroi Ry. Co. v. Kinner Chauvin v. Valiton Chavannes v. Priestly Cheadle v. State Cheaney v. Hooser Cheever v. Shedd v. Wilson 262 43 578 661 193 351 903 297 437 657 654 406 712, 583 672 643 166, 331, 699, 702 296 43 Chenango Bridge Co. v. Bingham- ton Bridge Co. 565, 667 Cheney v. Atlantic City Water Works 763 v. Jones 253 Chenowith v. Commonwealth 474 Cherokee v. Fox 285 Cherokee Nation v. Georgia 3, 96 r.S. K. Ry. Co. 756,814 Cherokee Tobacco, The 25 Chesapeake, &c. Co. v. Hoard 217 Chesapeake & Ohio Canal Co. v. Baltimore & Ohio R. R. Co. 767 Chesapeake & O. Ry. Co. t>. Kentucky 869 Chesapeake, &c. Ry. Co. v. Miller 91 Chestnut v. Shane's Lessee 538 Chestnut St., In re 787 Chestnutwood v. Hood 893 Chester v. Black 308 Chetwynd v. Chetwynd 497 Chevrier v. Robert 622 Chicago v. Baptist Union 741 v. Bar tree 287 v. Blair 714 v. Brophy 362 v. Collins 289, 297 v. Hesing 363 v. Langlass 363 Chicago v. Lamed 717, 722 v. Manhattan Cement Co. 301, 346 v. McCarthy 358 v. McCoy 27-2 . v. McGinn 286 v. McGiven 363 v. Netcher 289, 658, 837 v. O'Brennan 362 v. O'Brien 286, 730 v. People 929 17, Robbins 33, 356 v. Rumpff 562 v. Stratton 293 v. Taylor 810 v. Wheeler 819 Chicago & E. I. R. R. Co. v. Wiltse 766 Chicago & G. T. Ry. Co. v. Chappell 705 v. Hough 781, 839 v. Wellman 267, 873 Chicago G. W. Ry. Co. v. First M. E. Church 297, 763 Chicago & N. W. Ry. Co. v. Chicago, &c. R. R. Co. 806, 807 v. Gait 763 v, Langdale Co. 168 v. Milwaukee R. & K. El. Ry. 803 v. Town of Cicero 762 Chicago, &c. R. R. Co. v. Ackley 875 v. Adler 617 v. Barrie 841 v. Boone Co. 711 v. Haggerty 840 v. Iowa 18, 840, 874 v. Joliet 282, 789, 798, 883 v. Lake 398, 759, 775, 778 v. Mallory 907, 930 v. Oconto 349 v. People 299, 840, 875 v. Smith 237, 760 v. Starkweather 758 v. Stein 787 v. Triplett 843 Chicago, B. & K. C. Ry. Co. v. Guffey 396 Chicago, B. & N. P. R. Co. v. Bow- man 823, 824 Chicago, B. & N. Ry. Co. v. Porter 767 Chicago, B. & Q. R. Co. v. Chicago 828 v. Jones 873 v. Nebraska 843 v. West Chicago S. Ry. Co. 803 v. Wilson 780 r. Wolf 222 Chicago, K. & N. Ry. Co. v. Hazels 811 Chicago, K. & W. Ry. Co. v. Parsons 826 17. Pontius 16 Chicago Life Ins. Co. v. Auditor 406 v. Needles 30, 392 Chicago, M. & St. P. Ry. Co. v. Becker 876 v. Milwaukee 715 17. Minnesota 873, 874 v. Solan 852 v. Tompkins 872, 874 Chicago Mun., &c. Co. v. Lake 391 Chicago Packing, &c. Co. v. Chicago 280, 293, 400 Chicago P. & St. L. Ry. Co. v. Eaton 827 XXXVI TABLE OF CASES. Page Chicago, R. I. &c. Co. v. McGlinn 177 Chicago, R. I. & P. Ry. Co. v. Ottumwa 715 v. Sturm 20, 43, 695 v. Zernecke 844 Chicago, S. F. & C. Ry. Co. v. Ward 822 Chicago, &c. Terminal Ry. Co. v. Whiting, H. & E. C. St. Ry. Co. 803 Chicago U. T. Co. v. Chicago 387 Chicago, W. I. R. R. Co. v. Ayres 811 v. Englewood, &c. Ry. Co. 785 v. 111. Centr., &c. Co. 807 Chicago W. & V. Coal Co. v. People 888 Chicot County v. Sherwood 27 r. Davis 200 Chidsey r. Canton 303, 355 Child ?. Bemus 290 Child r. Boston 303 Child's Case 494 Childress v. Mayor 286 Childs v. New Haven, &c. R. R. Co. 824 v. Shower 257, 553 Chiles v. Drake 209 v. Monroe 209 Chilton v. St. Louis & I. M. Ry. Co. 869 Chilvers v. People 283, 710, 867 Chincleclamouche L. & B. Co. v. Commonwealth 392 Chinese Exclusion Case 25 Chiniquy v. People 324 Chisholm v. Georgia 3, 8, 52 t>. Montgomery 272 Chittenden v. Wurster 158, 159 Choper v. Eureka 35H Chouteau v. Gibson 83 Chow Goo Pooi, In re 493 Chrisman v. Bruce 927, 928 Christ Church v. Philadelphia, 396, 402, 547 Christal v. Craig 605 Christensen, Matter of 580 Christian, In re 854 v. Commonwealth 473 Christian Union v. Yount 180 Christie v. Bayonne 215 Christmas . Russell 43 Christy v. Commissioners 389 Chumasero v. Potts 162 Chunn v. Gray 42 Church i'. Chapin 80 v. Kelsey 47 t7. Rowell 903 v. South Kingston 573, 589 Church of Jesus Christ of L. D. S. v. United States 54 Chute v. Winegnr 321 Cicero Lumber Co. v. Cicero 289, 297, 783 Cincinnati v. Batsche 731 Cincinnati i>. Bryson 283 v. Buckingham 285 v. Rice 676 Cincinnati, &c. R. R. Co. v. Carthage 391 v. Cook 840 17. Commissioners of Clinton Co. 132 Cincinnati College v. State 741 Cincinnati Gaslight Co. v. Avondale 299 . State ' 284, 710, 717 Page Cincinnati Gazette Co. v. Timber-lake 637, 638, 640 Cincinnati Health Ass'n v. Rosenthal, 38 Cincinnati, H. & D. Ry. Co. v. Bowl- ing Green 287 Cincinnati, H. & I. R. R. Co. v. Clifford 392 Cincinnati, L. & N. Ry. Co. v. Cincin- nati 731 Cincinnati, N. O. & T. Ry. Co. r. Commonwealth 706 Cincinnati, W. & M. R. Co. v. Ander- son 758, 806 Circleville v. Neuding 362 Cisco v. Roberts 856, 858 r. School Board 869 Citizens' El. Light &P. Co. v. Sands 508 Citizens' Gas, &c. Co. v. Elwood 299 Citizens' Ins. Co. v. Parsons 11 Citizens of Cincinnati, In re 130 Citizens & Taxpayers D. S. P. v. Williams 893 Citizens' Savings Bk. v. Owensboro 396, 547 Citizens' Savings & L. Assn. v. Perry Co. 322 Citizens' St. Ry. Co. v. Detroit 297 Citizens' Water Co. v. Bridgeport, &c. Co. 402 City Council v. Benjamin 859 v. Pepper 285 City National Bank v. Mahan 36 City Ry. Co. v. Citizens' St. Ry. Co. 392 Civil Rights Cases 18, 869 Claflin v. Hopkinton 310, 327 Claiborne Co. v. Brooks 320 Clapp v. Cedar County 323, 325 v. Ely 139 Clair v. State 436, 455 Clare v. People 206 Clarion Turnpike & B. Co. v. Clarion Co. 827 Clark, Ex parte 434, 492, 901 Re, (65 Conn.) 425, 571 Re, (195 Pa.) 65 Matter of 39, 40 r. Baltimore 529 v. Barnard 24 v. Bever 32 v. Binney 637 v. Board of Directors 557 v. Bridge Proprietors 269 v. Buchanan 935 v. Clark 154, 156, 403, 517, 530, 578 17. Commonwealth 898 v. County Court 588 . County Examiners 918, 919, 920, 935 v. Crane m v. Davenport 217, 745 t7. Des Moines 270, 274, 311, 320,' 323, 324 T7. Dram Com'r 818 v. Ellis 246 i7. Holmes 535, 5H6 t7. Janes ville 167, 224, 225, 325 v. Jeffersonville, &c. R. R. Co. 85 TABLE OF CASES. XXXVll Page Clark v. Kansas City 15, 231, 232 v. Lamb 692 v. Le Cren 281, 287 v. Martin 406, 414 v. McCreary 615 v. McKenzie 936 v. Miller 259, 818 v. Mobile 165 v. Mollyneaux 647 v. People 101, 253, 255, 453 v. Kobinson 903, 906, 917, 932 v. Russell 841 v. Sammons 80 v. School Directors 262, 272 v. South Bend 287 v. State ( 12 O. ) 376, 378, 437 v. State (142 N.Y.) 877 v. Washington 295, 356, 360 v. White 764 Clark's Adm'r v. Hannibal & St Joseph R. R. Co. 843 Clark's Case 423 Clarke r. Clarke 32, 43 v. Irwin 109 v. Jack 167 v. Rochester 256 v. Rogers 166 v. Smith 33 v. Van Surlay 144 Clarksburg El. L. Co. v. Clarksburg 299 Clason v. Milwaukee 282 Clay, Ex parte 495 v. Grand Rapids 719 v. Smith 417 Clay brook v. Owensboro 557 Clay Co. v. Chickasaw Co. 217, 268 Clayton, Re 674 v. Harris 99 v. Henderson 303 Cleburne v. Gulf, &c. Ry. Co. 271 Clee v. Saunders 700 Clegg v. Laffer 606 v. School District 348 Cleghorn v. Greeson 252 v. Postlewait 712 Cleland v. Anderson 573 w. Porter 929 Clem v. State 463 Clemens v. Conrad 685 Clement v. Mattison 484 Cleveland, In re 129, 130, 937 v. Augusta 299 r. Clement Bros. C. Co. 891 v. Creviston 83 v. Heisley 711 v. Rogers 585 r. Tripp 722 Cleveland, C. C. & St. L. Ry. Co. . Backus 691 v. Illinois 851 Cleveland C. & C. Ry. Co. v, Closser 875 Clifton v. Cook 929 Cline v. State 451 Clinton v. Cedar Rapids, &c. R. R. Co. 797 v. Draper 208 v. Englebrect 64 Clinton v. Phillips 289 v. St. Louis & I. M. Ry. Co. 869 Clippinger v. Hepbaugh 197 Clodfelter v. State 24 Cloud v. Pierce City 686 Clough v. Unity 818 Cloughessey v. Waterbury 363 Cloyd v. Trotter 683 Coal Run Co. v. Finlen 706 Coast Line Ry. Co. v. Savannah 387, 391 Coates v. Campbell 700 v. Muse 34 Coatesville Gas Co. v. Chester Co. 120 Coats v. Hill 518 v. New York 176, 286, 295, 881 Cobb v. Bord 184 Cobbett v. Hudson 494 Cobbett's Case 494 Coburn v. Ellenwood 278 i7. Harvey 52 Cochran v. Darcy 412 v. Jones 895 . Miller 409 v. Van Surlay 128, 144, 149, 237, 241 Coclirane v. Frostburg 302 Cochran's Case 484 Cock v. Weatherby 606 Cockagne v. Hodgkisson 611 Cocke t7. Halsey 898 Cockrum v. State 499 Coddington v. Bispham 413 Coe v. Errol 690 v. Schultz 853, 880 Coffee v. State 447 Coffey r. Edmonds 911 v. United States 80 Coffin v. Coffin 192, 636 v. Rich 407 v. State 388 v. Thompson 901 v. Tracy 575 Coffman v. Bank of Kentucky 414 v. Keightley 331 Cofrode v. Gartner 38 Coggswell v. N. Y., &c. R. R. Co. 785 Coglan v. Beard 941 Cohen, Ex parte 442 v. Barrett 202 v. Cleveland 296 17. .Hoff 139 17. Wright 372 Cohens v. Virginia 26, 29, 103 Colin, Ex parte 707 v. Beal 897 v. Hoffman 409 v. Kingsley 195 Coit v. Sutton 690 Colburn v. Colburn 579 v. Woodworth 81 Colby r. Jackson 829 Coldwater v. Tucker 312 Cole v. Bedford 333 y. Black River Falls 897 v. Cunningham 41 17. Eastman 752 t7. La Grange 317, 323, 700 XXXV111 TABLE OF CASES. Cole v. Medina v. Muscatine r. Tucker v. Wilson Coleman, Matter of v. Bellandi v. Carr v. Roberts v. Yesler Coles v. Madison Co. Collamer v. Page Collector v. Day Colley r. Merrill Collier v. Frierson Collins v. Collins r. Henderson v. Hills r. Howard v. Lean v. New Hampshire v. Philadelphia Colman v. Holmes Coloma v. Eaves Colony v. Dublin Page 301, 367 296 900 658 478 408 146 455 256 266, 391, 617 576 684, 685 62 60 412, 576 104, 262 846 862 428, 434 848, 882 302, 305 522 274, 321 529 Colorado E. Ry. Co. v. Union Pac. Ry. Co. 767, 778, 806 Colpetzer v. Trinity Church 508 Colt r. Eves 46, 114 Coltin v. Ellis 162 Colton v. Rossi 815 Columbia v. Guest 745 Columbia Co. 17. Davidson 324 v. King 324 Columbus v. Columbus 268 Columbus & W. Ry. Co. v. Witherow 786, 802, 811 Columbus G. L. &c. Co. v. Columbus 298 Columbus Ins. Co. v. Curtenius 866 v. Peoria Bridge Co. 866 Columbus S. Ry. Co. v. Wright 692 Col well v. Chamberlin 216 Comer v. Fulsom 331 Commercial Bank v. Tola 317, 700 Commercial Bank of Natchez v. State 392 Commercial Nat'l. Bk. v. Chambers 16 Commissioners, &c. v. Aspinwall 167, 321 v. Bearss 331 v. Beck with 760 v. Bowie 814 v. Cox 324 v. Duckett 304, 366, 361 v. Gas Co. 281 v. Holyoke Water Power Co. 666, 836 . Little 694 v. Martin 355 i'. Mighels 348 v. Morrison 690 v. Owen 707 v. Pidge 866 v Seabrook 690 v. Wallace 167 r. Withers 861 Commissioners Allegheny Co. v. Union Min. Co. 749 Commissioners Brown Co. v. Stan- dard Oil Co. 690 Page Commissioners Calhoun Co. v. Wood- stock Iron Co. 396 Commissioners Dickinson Co. v. Hogan 825 Commissioners Harford Co. v. Hamil- ton 485 Commissioners of Kensington v. Philadelphia 346 Commissioners Ottawa Co. v. Nelson 711 Commissioners of Revenue v. State 338 Commissioners Sinking Fund v. Green, &c. Nav. Co. 865 Commissioners of Stanley Co. v. Snuggs 195 Commissioners State Park v. Henry 814 Commonwealth v. Alderman 467 v. Alger 830, 878 v. Amer. Bell Tel. Co. 694 v. Andrews 177 r. Anthes 464 v. Archer 438 v. Austin 481 v. Aves 497 v. Bacon 388, 888 v. Bailey 388 v. Bakeman 468 v. Bean 286 v. Hearse 886 v. Bennett 174 v. Billings 466 v. Binns 895 v. Bird 396, 547 v. Blanding 603, 639 v. Blood 41 v. Bonner 448, 449 v. Boston, &c. Ry. Co. 844 v. Bowden 469 v. Breed 772, 865 v. Brennan 400 v. Brickett 487 r. Brooks 286 v. Brown 718 v. Byrne 603 . Certain Liquors 430 v. Chambers 644 v. Chapin 752, 861 v. Charlestown 862 v. Chase-Davidson Co. 879 v. Clap 608, 625, 628 Clapp 246, 846, 849 Clark 184, 247, 561 v. Clary 177 v. Cluley 932 v. Colton 859 v. Commissioners, &e. 515 v. Cook 467 v. County Commissioners 930 v. Coyningham 265 v. Crotty 430 v. Cullen 392 v. Cullins 177 v, Cummings 462 v. Curtis 444, 445, 446, 450, 800 v. Dailey 453 v. Dana 437 v. Davis (140 Mass.) 287 TABLE OF CASES. XXXIX Page Page Commonwealth v. Davis (162 Mass.) 603 Commonwealth v. Juanita Coke Co. 740 v. Dean 174 v. Keary 886, 887 v. Del. Div. Canal Co. 706 v. Kendall 849 v. Dorsey 382 v. Kenneson 215 v. Downing 469 v. Kimball 247, 437, 616, 644 v. Drewry 207 v. King 863 v. Duane 616, 544 v. Knapp 446, 464, 474 v. Duffy 374 v. Kneeland 671, 672, 673 v. Dunster 471 v. Knowlton 52 v. Eastern B. R. Co. 843 v. Leach 62 v. Eddy 437 v. Leech 190, 938 v. Edison El. Lt. Co. 680 v. Lehigh V. R. R. Co. 689, 875 v. Emery 694 v. Linn (571 v. Emminger 936, 940 v. Little 694 v. Erie & W. Tr. Co. 392 v. Locke 163 v. Erie & Northeast R. R. Co. 271, v. Lodge 62 279, 789, 791 v. Look 752 v. Erie R. R. Co. 690 v. Lottery Tickets 429 v. Essex Co. 394 v. Louisville, &c. R. R. Co. 859 v. Featherstone 619 v. Mann 388 v. Fells 468, 469 . Marshall 616, 631, 544 v. Fenton 287 v- Marzynski 859 v. Ferguson 708 v. Matthews 285 v. Fisher 676, 809 v. Maxwell 237, 246 v. Fitzpatrick 469 v. McClelland 906 t;. Fowler 845 v. McCloskey 236 v. Fredericks 174 v. McCombs 897, 928 v. Freelove 436 v. McHale 922, 927 v. Gage 285 v. McLane 692 v. Gallagher 449 . Me Williams 163, 167, 173 v. Gamble 389 v. Meeser 940 v. Germania L. I. Co. 707 v. Miller 849 v. Gilbert 879 v. Mitchell 445 v. Goddard 468 v. Moir 183, 233, 240, 244, 258, 265 v. Godshalk 636 v. Moore 237, 253, 709 v. Graves 375 v. Morey 446 v. Green 43, 207, 932 v. Morgan 448, 450 v. Griest 60 v. Morris 628 v. Hall 40, 382 v. Mullen 450 v. Hamilton Manuf. Co. 555, 890 v. Murphy (165 Mass.) 471 v. Harman 447 v. Murphy (166 Mass.) 499 v. Harmel 690 v. Myers 437, 690 v. Hart 468, 497 v. Nesbit 675 v. Hartman 242, 261 v. New Bedford Bridge 411 v. Hartnett 85 v. Newburvport 269, 338 v. Has 675, 859 v. New York L. E. & W. R. R. v. Hawes 41 Co. 694 v. Hawkins 467 v. Nichols 448, 644 v. Hillside Coal Co. 6C8 v. Odell 628 v. Hilton 37 v. Olds 469 v. Hinds 430 v. Painter 166, 167 >j. Hippie 129 v. Patch 279, 282, 286, 854 v. Hitchings 46, 246, 247 v. Patton 183 v. Holbrook 851 . Penn. Canal Co. 758, 838, 839, 840 . Holder 177 v. Perry 672, 877 v. Holt 444 v. Petty 13 v. Housatonic R. R. 875 v. Philadelphia Co. 680 v. Howe 849 v. Pittsburg 341 v. Hoxey 922 v. Pittsburg, &c. R. R. Co. 565, 757 v. Hubley 287 v. Plaisted 287, 334, 335, 665, 894 v. Hunt 52 v. Pomeroy 246 v. Hyneman 859 v. Porter 464, 481 v. Intoxicating Liquors 430, 845, 850 v. Potts 247, 249 v. Jeandelle 859 v. Pottsville 740 v. Jones 133, 144, 403, 471, 937 v. Preece 446 v. Judges of Quarter Sessions 166, 167 v. Putnam 680 TABLE OF CASES. Page Commonwealth v. Randall 486 v. Reed 694 v. Reeder 931 v. Richards 451 v. Richter 783 v. Roberts 880 v. Roby 470 r. Rock 464 v. Roxbury 263 v. Roy 284 v. Ryan 694 v. Savings Bank 748 v. Scott 448 v. Semmes 438 v. Snelling 658 v. Snyder 887 r. Starr 675 v. Stodder v. Stowell v. Sturtivant v. Taylor v. Tewksbury v. Towles v. Tuck v. Tuckerman v. Uprichard v. Van Tuyl . Vaughn v. Vrooman v. Waite v. Waldman v. Walter v. Ward well v. Wells 283, 285, 860, 888 469 445 446, 446, 879 830 37 467, 468 446 178 464 467 886, 889 882 860 895 626 924 v. Westinghouse Air Brake Co. 680 v. Westinghouse El. & Mfg. Co. 680 v. White 177 r. Whitney 591 v. Wilkins 285 v. Wilkinson 790 v. Williams 99, 525 v. Woelper 912 v. Wolf 676 v. Wood 466 v. Worcester 281, 860 v. Wright 232 v. Zelt 846 Commonwealth's Appeal 740 Commonwealth Bank v. Griffith 31 Compagnie F. v. New Orleans 853 Comstock v. Clearfield 827 v. Gay 513 . Parmelee 478 Page Dixon v. People 68, 455 v. Poe 886 Dixon Co. v. Field 322 Doane t>. Lake Street El. Ry. Co. 803 Dobbins v. Commissioners of Erie Co. 591, 682 v. State 469 Dobyns v. Weadon 930, 940 Dodd v. Thomas 607 Dodge v. Coffin 43 v. County Commissioners 826 v. Granger 305 v. Gridley 217 v. Mission Township 185 v. Woolsey 25, 62, 176, 395 Doe v. Beebe 755 r. Braden 25, 237 v. Douglass 54, 146, 237 v. McQuilkin 749 Dogge v. State 454 Dole . Lyon 644 v. Van Rensselaer 628 Doles v. State 469 Dominick v. Bowdoin 160 Doriahoe v. Richards 263, 66-3 Donahue v. Will Co. 159 Done v. People 471 Donkle v. Kohn 677 Donnaher's Case 789, 791 Donnell v. State 869 Donnelly v. Decker 868 v. State 452 v. Tripp 305 Donnersberger v. Prendergast 206, 212 247 Donoghue v. Philadelphia 346 Donohugh v. Roberts 215 Dooley v. Sullivan 356 v. United States (182 TJ. S.) 12 v. United States (183 U. S.) 12 Dooling v. Budget Pub. Co. 606 Doon Township v. Cummins 323, 324 Doonan v. Glynn 82 Doran v. De Long 190 Dore v. Milwaukee 296 Dorgan v. Boston 717 Dorfan v. East Brandywine, &c. R. R. Co. 825 Dorlin v. Shearer 663 Dorman v. Jacksonville 2915 Dorr, Ex parte 491, 493 Dorrance Street, Matter of 860 Dorsey, Matter of 99 v. Dorsey 138, 560, 579 v. Gilbert 146 Dorsey's Appeal 209, 212 Dortic v. Lockwood 691 Doss v. Commonwealth 464 Dothage v . Stuart 653 Dotton v. Albion 358 Doud v. Mason City, &c. Ry. Co. 822 Dougherty v. Austin 164 v. Commonwealth 453 Doughty v. Hope 114, 581 v. Somerville & Eastern R. R. Co. 823, 825 xlvi TABLE OF CASES. Page Douglas v. Byrnes 778 v. Freeholders, &c. 91 r. Kentucky 400, 885 Douglas Co. v. Bolles 321 Douglass v. Pike Co. 36, 405 v. Placerville 266, 272 v. Turnpike Co. 790 Dove v. School District Dover v. Portsmouth Bridge 865 Dow v. Beidelman 18, 218, 874 v. Norris 237, 253, 256 Dow's Case 39 Dowdell r. State 217 Dower v. Kichards Dowling v. Lancashire Ins. Co. 1(54 v. State 382 Dowling's Case 458 Downes v. Bidwell 12 Downing v. Porter 430 v. Wilson 607 Downs v. Bowdoin Sq. Bapt. Soc. 661 Doyle v. Continental Ins. Co. 258 v. Hallam 80 v. O'Doherty 630 >: Raleigh 895 Drady v. Des Moines, &c. Co. 404 Drainage of Lands, Matter of 770 Draining Co. Case 735, 737 Drake v. Drewry 908 v. Gilmore 629 v. Granger 42 v. Jordan 876, 381, 617 v. Phil., &c. R. R. Co. 842 Draper v. United States 26 Drath v. Burlington, &c. R. R. Co. 816 Drehman v. Stifle 870, 371, 411, 617 Drennan v. People 86 Dressen v. Brameier 661 Drew v. Davis 748, 749 v. Hilliker 868 Dreyer v. Illinois 469 v. People 689 Drinkall y. Spiegel 39 Driscoll v. Taunton 827 Dritt v. Snodgrass 263 Dronberger v. Reed 816 Druliner v. State 91 1 Drummond v. Leslie 607 Dryden v. Swinburne 932 Dry fuss v. Dridges 114 Duanesburgh v. Jenkins 340 Dubois v. McLean 147 Dubuque Co. v. R. R. Co. 256, 324 Ducat o. Chicago 37 Duche" v. Voisin 682 Duchess of Kingston's Case 80 Dudley v. Mayhew 676 Duffield v. School District 880 Duffy v. Dubuque 302, 362 v. Hobson 685 Dugan v. Rollins 84 v. State 869 Duke v. Ashbee 924 v. Rome 804 Dulany's Lessee v. Tilghman 637, 638 Dull v. Blackman 40 Page Dullam v. Willson 55, 159 Duluth & I. R. Ry. Co. v. St. Louis Co. 739 Duluth & W. Ry. Co. v. West 828 Dunbar v. Boston & P. Ry. Co. v. San Francisco 757 Duncan v. Barnett 408 r. Lynchburg 306 v. McCall 32 r. Missouri 22, 374 v. Thwaites 638, 640, 657 Duncombe v, Daniell 623 v. Prindle 194, 208 Dunden v. Snodgrass 631 Dunham v. Anders 617 v. Chicago 743 v. Cox 707 v. Hyde Park 296 . Powers 630 v. Rochester 271, 281, 284, 285, 291 Dunlap v. Glidden 629 v. State 547 v. Toledo, &c. Ry. Co. 617, 826 Dunman v. Bigg 611 Dunn v. Adams 62 v. Burleigh 668 v. City Council 780 v. Com. 286 v. Sargeant 616 v. State 452 v. Winters 619 Dunne v. People 13 Dunnovan v. Green 819, 893 Du Page Co. v. Jenks 98 v. People 929 Dupy v. Wickwire 137 Durach's Appeal 266, 710, 742 Durant t 1 . Essex Co. 85 v. Kauffman 704, 721 v. People 450 Durein v. Pontius 210 Durham v. Lewistown 137, 237, 659 Durkee v. Janesville 208, 660 v. Kenoslia 30(5 Durkin v. Kingston C. Co. 67 Duson v. Thompson 941 Duverge's Heirs v. Salter 216 Dwenger v. Chicago, &c. Ry. Co. 797 Dwyer v. Goran 80 v. Gulf C. & S. F. Ry. Co. 853 Dyckman v. New York 686 Dye v. Cook 409 Dyer v. Bayne 91 v. Morris 607 v. State 223 t>. Tuscaloosa Bridge Co. 168, 566 Dykes, Ex parte 439 E. Eagle Ins. Co. v. Ohio 838 Eakin v. Raub 101 Eames v. Savage 364, 506 w. Whittaker 619 Earle v. Board of Education 183 TABLE OF CASES. xlvii Earle v. Con way v. Grant v. Pennsylvania v. Picken Earley's Appeal Easley v. Morse Eason v. State Page 26 478 26 444 272 611 253 East & West India Dock, &c. Co. v . Gattke 819 East Brandywine, &c. R. R. Co. v. Ranck 822 East End St. Ry. Co. v. Doyle 803 Eastern Building & L. Ass'n v. Well- ing 30 Eastern R. R. Co. v. Boston, &c. R. R. Co. 398, 399 Easthampton v. Hampshire Co. Com'rs 760, 806 East Hartford v. Hartford Bridge Co. 295, 347, 390 East Kingston v. Towle 628 East Lincoln v. Davenport 322 Eastman v. Dearborn 583 v. McAlpin 202 v. Meredith 303, 305, 348, 355 v. State 237, 890 East Norway Lake Ch. v. Froislie 661 East Oakland v. Skinner 274, 320 Easton Bank v. Commonwealth 396 East Portland v. Multnomah Co. 711 East Saginaw Salt Manuf. Co. v. East Saginaw 395, 396, 402, 547 East St. Louis v. East St. Louis, &c. Co. 311 v. Maxwell 217 v. O'Flynn 812 v. Trustees 710 v. Wehrung 294, 710 v. Witts 339 East St. Louis Com. Ry. Co. v. East St. Louis, &c. Co. 806 East Tenn. V. & G. R. Co. . Frazier 392 Eaton, Matter of 495 v. Boston, &c. R. R. Co. 757, 777, 783, 786, 788, 826 v. Brown 900 v. Walker 211 Echols v. State 937 v. Staunton 764 Eckhart v. State 249 Eddings v. Seabrook 781, 785 Eddy v. Capron 198 Eden v. People 691, 837 Edgecombe v. Burlington 770 Edgerly v. Swain 606 Edgerton v. Goldsboro Water Co. 272 v. Hart 687 Edgewood R. R. Co.'s Appeal 764, 771 Edison Gen. El. Co. v. Canadian P. N. Co. 178 Edmonds v. Ban bury 906 Edmunds v. Herbrandson 182 Edmundson v. Pittsburgh, &c. R. R. Co. 810, 812 Edson v. Edson 41 Edwards, In re 440 Edwards v. Commonwealth v. Davenport v. Elliott v. Jagers v. James v. Johnson Page 160 35 46 392 114 413 v. Kearzey 407, 408, 409, 414 v. Pope 147, 149 v. State 458 v. Williamson 406 Edwards's Lessee v. Darby 104 Eells v. People 247, 250 Effinger v. Kenney 412 Egerer v. N. Y. C. & H. R. Ry. Co. 801 Eggleston v. Doolittle 661 Egyptian Levee Co. v. Hardin 717, 735, 868 Ehlers v Stoeckle 607 Eichels L: Evansville, &c. Co. 271, 795 Eidemiller v. Wyandotte 761 Eikenberry v. Edwards 690 Eikhoff v. Gilbert 620 Eimer v. Richards 80 Eingartner v. Illinois Steel Co. 38 Eisenbach v. Hatfleld 781 Eitel v. State 182, 225 Elam v. Badger 611 Elbin v. Wilson 927 Elder v. Barnes 861 v. Reel 679, 580 Eldredge v. Trezevant 26 Eldridge, Matter of 481 v. Kuehl 623, 751 v. Smith 757, 766 Election Law, Matter of 923 Electric Improvement Co. v. San Francisco 288 Elgin v. Eaton 296 v. Kimball 304 Eliason v. Coleman 895 Elijah v. State 469 Eliot v. McCormick 683 Elizabethtown, & P. R. R. Co. v. Thompson 791 Elk v. Wilkins 901 Elk Point v. Vaugn 279 Ellerbee v. State 441 Ellett v. Commonwealth 403 Elliot v. Ailsbury 607 Elliott v. Detroit 164 v. Fairhaven & Westfield R. R. Co. 794 v. People 473 v. Philadelphia 305 v. Wohlfrom 680 Ellis v. Davis 43 v. Frazier 184, 708 v. Jones 407 v. May 900, 912 v. Pacific R. R. Co. 761 v. State 446, 567 Ellison v. Barnes 1MO Ellsworth v. Chicago & I. W. Ry. Co. 826 Ellyson, Ex parte 937 Elmendorf v. Carmichael 139 v. New York 114 xlviii TABLE OF CASES. Elmendorf v. Taylor Elmwood r. Marcy Else v. Smith Elston v. Piggott Elwell v. Shaw Ely v. Holton v. Niagara Co. v. Thompson Embury v. Conner Emerick v. Harris Emerson v. Atwater Emert v. Missouri Emery v. Gas Co. v. Lowell v. Mariaville v. Reed Emery's Case Empire City Bank, Matter of Emporia v. Soden Encking v. Simmons Enfield v. Jordan Page 33 47, 320 429 23, 180 748, 749 530 346, 884 247, 257, 499 232, 251, 764, 780 591 84, 86 689, 693 717 308 320 86 193, 442 581, 582 807, 808 108 34 Enfield Toll Bridge Co. v. Hartford & N. H. R. R. Co. 398 Engle w. Shurtz 517, 544 English v. Chicot Co. 272 v. Dickey 937 v. New Haven, &c. Co. ' 549 v. Oliver 194 Enos v. Chicago, &c. Ry. Co. 797 Ensign v. Barse 209, 627 Ensworth v. Albin 183, 906, 907 Enterprise v. Smith 211 Enterprise Ditch Co. v. Moffitt 394 Entinck v. Carrington 428, 434 Epping v. Robinson 687 Equator Co. v. Hall 33 Equitable Life A. S. v. Clements 834 Equity G. & T. Co. v. Donahoe 212, 257 Erb v. Morasch 15, 859 Erber v. Dun 611 Erie Co. v. Com'rs Water- Works 695 v. Erie 120, 695 Erie R. R. Co. v. Commonwealth 396 v. New Jersey 690 v. Pennsylvania 176 Erie & N. E. R. R. Co. v. Casey 149 Erlinger v. Boneau 166, 16"7, 174, 210 Ernst o. Kunkle 730 Erskine v. Nelson Co. 535 Ervine's Appeal 132, 149, 150, 244, 502, 503 Esberg-Gunst Cigar Co. v. Portland 306 Escanaba Co. v. Chicago 65, 688, 866 Eshelman v. Chicago, &c. Ry. Co. 688, 690 Esmon v. State 470 Essex Co. v. Pacific Mills 106 Essex Public Road Bl. v. Skinkle 268 Essex Witches, Case of 444 Este v. Strong 82 Estep v. Hutchman 146, 148 Estea v. Owen 719 Esty v. Westminster 383 Etheredge v. Osborn 80 Bthridge v. Sperry W. & G. 29, 32 Eufaula v. McNab 271 Eureka Basin, &c. Co., Matter of 766, 770 Page Eureka Springs Ry. Co. v. Timmons 62 Eustis v. Parker 316 Evans v. Brown v. Montgomery 374, 406 v. Myers 105 v. Osgood 275 v. Phillipi 97, 182 v. Populus 388 v. Sliarpe '209 Evansville v. Dennett 322 v. Miller 883 v. Senhenn 300 v. State 158, 334, 894 Evansville, &c. R. R. Co. v. Dick 786 Evansville & R. Ry. Co. v. Swift 827 Evening News v. Tryon 650 Everett v. Council Bluffs 883 v. Marquette 884 Evergreen Cemetery v. New Haven 770 Everhart v. Holloway 583 Evernham v. Hulit 202, 212, 216 Eviston v. Cramer 629 Ewing v. Alabama & C. Ry. Co. 763 v. Filley 929, 938 v. Hoblitzelle 183, 206 v. Orville M. Co. 121 v. School Directors 262 Excelsior Mfg. Co. v. Keyser 544 Exchange Bank v. Hines 247, 707, 711 Executive Officers, Election of 938 Express Printing Co. v. Copeland 628 Exuiu v. State 13 Eyre v. Jacob 253 Ezekiel v. Dixon 89 F. Facey v. Fuller 686, 587 Fadness v. Braunborg 660, 661 Fagg, Exparte 281 Fahey v. State 203, 706 Fahr r. Hayes 611 Fair v. Philadelphia 302 Fairchild v. Adams 619, 627 v. Lynch 83 v. St. Louis 812 Fairfield v. Gallatin 33 v. McNany 80 v. Ratcliffe 717 Fairhurst v. Lewis 485 Fairman v. Ives 620, 648 Falconer v. Campbell 34, 376 v. Robinson 216 Fales v. East Hampton 827 v. Wadsworth 625 Falk, Exparte 118,183 Fall v. Hazelrigg 85, 106 Fallbrook Irr. Dist. v. Bradley 713, 714, 768, 774 Falvey, In re 193, 495 Fanning . Gregorie 867 v. Krapfl 687 Fargo v. Michigan 688 Faribault v. Misener 104 Farist Steel Co. v. Bridgeport 768, 782 TABLE OF CASES. xlix Farley v. Dowe Farm Ins. Co. v. Carpenter Page 408 134, 253, 582 Farmers' Loan & T. Co. v. Funk 122 v. Lake St. El. Ry. Co. 25 Farmers' & Mechanics' Bank r. Butch- ers' & Drovers' Bank 321, 323 17. Smith 104, 253, 416 Farneman 17. Mt. Pleasant Cem. Ass'n 768, 770 Farney v. Towle 30 Farnharu 17. Pierce 423 Farnsworth 17. Lime Rock Ry. Co. 767 i7. Storrs 619 17. Vance 414 Farnsworth Co. v. Lisbon 163, 740 Farnsworth Lumber Co. v. Fairley 747 Farnum v. Concord 355 v. Johnson 166 Farr v. Rasco 644 . Sherman 95 Farrar v. Clark 523 v. St. Louis 717, 730 Farrell v. West Chicago P. Co. 714, 731 Farrelly . Cole 74 Farrington v. Tennessee 395, 396, 738 v. Turner 930 Farwell v. Des Moines B. M. Co. 721 Fausler v. Parsons 907 Fawcett v. Charles 637 17. Clark 606 17. Fowliss 686, 587 17. York & North Midland R. R. Co. 841, 842 Fayetteville 17. Carter 283 Fearing v. Irwin 548, 781 Fechheimer 17. Washington 52 Feck i7. Bloomingdale 174 Fehr v. Schuylkill Nav. Co. 826 Feibleman v. State 99, 205 Feige v. Mich. Cent. R. R. Co. 139 Feineman v. Sachs 178 Feldman v. City Council 317, 700 Felix v. Schwarnweber 30 17. Wallace Co. Com'rs 131 Fell v. State 169, 174, 400 Fellows v. New Haven 296 v. Walker 700 Felton's Case 442 Fenelon v. Butts 928 Fennell v. Bay City 280 Fenton v. Garlick 42, 683 17. Scott 915, 941 w. Yule 205 Fenwick i?. Gill 553 Ferguson v. Landram 333, 554, 697, 705 17. Selma 884 17. Snohomish 721 v. Williams 538 Fernandez, Ex parte 495 Fernstler o. Siebert 661 Ferraria v. Vasconcellos 660, 661 Ferrell 17. Commonwealth 177 Ferrelle, In re 41 Ferrenbach v. Turner 880 Ferris 17. Bramble 766 Page Ferry v. Campbell 506, 528, 644 Fertich v. Michener 263 Fertilizing Co. v. Hyde Park 400, 836, 853, 883 884 Fetter, Matter of 39 Ficklen v. Shelby Tax Dist. 694 Fidelity & C. Co* 17. Allebone 886 Fidelity & D. Co. v. United States 453 Fidelity M. L. Ins. Ass'n v. Mettler 563, 564 Field v. Barling 784 v. Clark 247 u. Des Moines 272, 757 v. Gibbs 42 17. People 98, 160 Fielden v. Illinois 16 Fields v. Highland Co. Com. 308, 744 v. Osborne 900 Fifield i7. Close 684 i7. Phoenix 302 Figg i7. Thompson 289 Filber v. Dauhterman 605 Finch i7. Riverside & A. Ry. Co. 803 Finlayson v. Peterson 532 Finney v. Boyd 80 Fire Department v. Helfenstein 37, 710 t7. Noble 37 v. Wright 37 Firemen's Association v. Lounsbury 208, 209 First Natl. Bk. v. Ayers 32, 682 v. Chehalis Co. 32, 682 17. McGwire 693 17. Merchants' National Bank 433 v. Price 181 First National Bk. Rock Springs v. Foster 458 First Natl. Bk. Wellington v. Chap- man 682 First Parish, &c. v. Middlesex 822, 825 . Stearns 893, 932, 933 First Pres. Soc., Matter of 661 First Ref. Pres. Ch. v. Bowden 660 Fischli n. Cowan 80 Fish v. Collens 932 v. Kenosha 324 Fishburn v. Chicago 290 i7. Chicago M. & St. P. Ry. Co. 28 Fisher v. Boston 301 i7. Deering 85 t7. Dudley 900 v. Haldeman 33 v. Hildreth 924 17. Horricon Co. 772 v. McGirr 246, 431, 850, 881 t7. Wineman 673, 583 Fisher's Lessee v. Cockerell 30 Fisher's Negroes v. Dobbs 630 Fishkill r. Fishkill & Beekman Plank Road Co. 207 Fisk, Ex parte 45 v. Jefferson Police Jury 62, 383, 38M v. Kenosha 542 t7. Soniat Fiske v. Framingham Manuf. Co. 772 v. Hazzard 327 1 TABLE OF CASES. Page Fiske v. People 274, 291, 661, 891 Fitchburg R. R. Co. v. Grand Junc- tion R. R. Co. 836, 842 Fitts v. McGhee 24 Fitzgerald v. Robinson 661 v. St. Paul, &c. Ry. Co. 841 Fitzgerald & M. C. Co. v. Fitzgerald 582 Fitzpatrick v. United States 449 Flagg v. Baldwin 62, 178 v. School Dist. No. 70 322 v. Worcester 301 Flaherty, He 289 v. McCormick 690 Flanagan v. Philadelphia 867 v. Plainfield 709 Flatbush, In re 209, 720 Fleetwood v. Reed 368, 707 Fleischner v. Chad wick 216, 217 Fleishman v. Walker 577 Fleming, Ex parte 161 Fletcher v. Auburn & Syracuse R. R. Co. 814 v. Baxter 192 v. Ferrel 43 v. Fletcher 829 v. Lord Somers 84 v. Oliver 98, 204, 711 v. Peck 128, 237, 253, 370, 374, 385, 813 v. State 449 v. Tuttle 74 v. Wall 911 Flint v. Pike 637, 638, 640 Flint, &c. Plank Road Co. v. Wood- hull 138, 149, 259 Flint, &c. R. R. Co. v. Dewey 262 Flint River Steamboat Co. v. Foster 236, 253, 591 Flood v. State 279 Florence, Ex parte 89 Florentine v. Barton 144, 146 Florer v. Sheridan 718 Florida C. Ry. Co. v. Reynolds 708 Florsheim, &c. Co. v. Lester 180 Flournoy v. Jeffersonville 689 Flower v. Flower 679, 584 Floyd v. Mintsey 82 Flukes, Re 573 Flynn v. Flynn 828 Fobes v. Rome W. & O. Ry. Co. 799, 801, 802 Fogg v. Holcomb 640 Foley v. People 438 v. State 209, 212, 213 Folkenson v. Easton 97 Folsom v. New Orleans 346 v. Township Ninety-six 31, 696 Foltz v. Kerlin 895 v. State 859 Fond du Lac Water Co. v. Fond du Lac 720 Fong Yue Ting v. United States 14, 456 Foote v. Fire Department 881 v. State 473 Forbes v. Halsey 626 v. Johnson 619, 630 Page Ford v. Chicago & N. W. R. R. Co. 777, 778, 791 r. County Commissioners 807 . Delta Pine Land Co. 36, 740 Fordyce v. Godman 193, 194 Foreman v. Hardwick 924 v. Marianna 594 Forepaugh v. Del. L. & W. R. R. Co. 178 v. Delaware L. & W. Ry. Co. 48 Forster v. Forster 137, 631 Forsyth v. Hammond 722 Forsyth Boulevard v. Forsyth 826 Fort Dodge v. District Township 927 Fort Leaven worth R. R. Co. v. Lowe 177 Fort Scott v. Pelton 694 Fort Wayne v. Coombs 304 Fort Worth v. Crawford 302 Fort Worth & N. O. Ry. Co. v. Garoin 828 Fort Worth & R. G. Ry. Co. v. Jennings 803 Forward v. Hampshire, &c. Canal Co. 758 Fosdick v. Perrysburg 217 Foss, Re 41 v. Foss 679 v. Hildreth 656 Foster v. Byrne 408 v. Essex Bank 263, 416, 516, 539 v. Kansas 848, 849 v. Kenosha 745 v. Morse 691 v. Neilson 25 v. Scarff 909, 926 v. Scripps 629 v. St. Louis 302 Foule v. Mann 507, 612 Fourteen Diamond Rings v. United States 12 Fowler, Matter of 778 v. Beebe 898, 928 v. Chichester 644 v. Danvers 330 v. Halbert 653 17. Pierce 219 v. State 930, 934 Fowles v. Bowen 610 Fox, Ex parte 424 v. Cottage, &c. Ass. 688 v. McDonald 159 i7. Mohawk & H. R. H. Society 183 v. State of Ohio 46, 281 v. W. P. Railroad Co. 813 v. Wood 192 Foxcroft t7. Mallett 33 Foye v. Patch 83 Frain v. State 445 Francis v. Railroad Co. 707, 743 17. Wood 630 Francois, Ex parte 557 Frank, Ex parte 289, 709 Frankfort v. Aughe 280, 851 v. Winterport 198, 310 Frankfort, &c. R. Co. v. Philadelphia 285 Frankland v. Cassaday 81 Franklin c. Browne ' 606 TABLE OF CASES. li Franklin v. State 480 Franklin Bridge Co. v. Wood 237, 253 Franklin Co. v. Railroad 706 Franklin Co. Gram. Sch. v. Bailey 392 Franz v. Railroad Co. 797 Frary v. Frary 579 Frasher v State 657 Frazee, Matter of 289 n. Beattie 690 Frazer v. Lewiston 355 Free v. Buckingham 677 Freeborn v. Pettibone 413 Freedman v. Steel 684, 685 Free Fishers' Co. v. Gann 752 Freeholders v. Sussex 303 Freeholders, &c. v. Barber 283 Freel v. School City of Crawfords- ville Freeland v. Hastings 305 243, 311, 333, 698, 704 20,411 683 223 25 607 301 306 396 231 86 803 400 v. Williams Freeman v. Alderson w. Gaither v. Howe . Price Freeport v. Isbell v* Marks- Freeport W. Co. v. Freeport Frees v. Ford Freeze y. Tripp Freiday v. Sioux City R. T. Co. Freleigh v. State Frellsen v. Mahan 737 Fremont, E. & M. V. Ry. Co. v. Bates 826 French v. Barber Paving Co. 714, 731 v. Boston 302 v. Braintree Manuf. Co. 771 v. Camp 728 v. Commonwealth 388 v. Deane 375 v. Edwards 113 v. Kirkland 735 v. Nolan 932 t7. State (141 Ind.) 104 v. State (Tex. Cr. App.) 689, 853, 858 v. State (85 Wis.) 451 Fretwell v. Troy 285 Friedman v. Mathes 121 Friend v. Hamill 927 Fries c. New York & H. R. Ry. Co. 800 Frieszleben v. Shallcross 902 Frink v. Darst 84 Frisbie v. Fowler 607 Frith v. Dubuque 301 Fritts v. Palmer 181 Frolickstein v. Mobile 676, 859 Frommer v. Richmond 285 Frorer v. People 672, 877 Frost 17. Belmont 196, 266, 309 v. Chicago 289 v. Thomas 162 Fry v. Bennett 645 . Booth 114,929,930 t7. State 610,840,891 Fry's Election Case 903, 904, 905 Page Fryer v. Kinnersley 611 Fuller i7. Chicago, &c. R. R. Co. 875 v. Dame 197, 198 v. Edings 781 v. Gould 711 v. Groton 307, 308 v. Hampton 353 v. Morrison Co. 336 v. People 206 t7. State 425 Fullerton v. Bank of United States 33 Fulmer v. Commonwealth 93 Fulton v. Davenport 721 w. McAffee 31 Fuqua v. Pabst Brewing Co. 848, 876 Furgeson v. Jones 685 Furman v. New York 89 v. Nichol 403 Furman Street, Matter of 717, 783, 822 Furnell v. St. Paul 363 Furniss v. Hudson River R. R. Co. 819 G. Gabbert v. Railroad Co. Gabel v. Houston Gableman v. Peoria, D. & E. R. Co. Gaff v. Greer Gage t7. Bain v. Caraher 526, v. Censors v. Graham 339, v. Shelton Gagnet v. Reese Gaines v. Buford v. Coates 562, 565, v. Gaines Gainsville, H. & W. Ry. Co. v. Hall Gale, Matter of r. Kalamazoo 562, 854, v. Mead 17. South Berwick Galen v. Clyde & Rose Plank Road Co. Galena & Chicago Union R. R. Co. v. Appleby 836, v. Dill v. Loomis 836, Galesburg v. Hawkinson 144, Gall v. Cincinnati Gallatin v. Bradford 281, Galveston v. Posnainsky Galveston, H. & S. A. Ry. Co. v. State v. Texas Galveston, & W. Ry. Co. v. Galveston Gatnmel v. Potter Gannett v. Leonard Gannon, In re (16 R. I.) Re (16 R. I.) v. People Gano v. Minneapolis & St. L. Ry. Co. Gantly's Lessee v. Ewing Garbett, Ex parte 208 285 28 661 751 749 890 341 605 496 550 888 156 811, 826 481 887 114 310 355 843 843 843 267 888 291 356 384 384 266, 299 773 146 830 672 469 656 412 481 lii TABLE OF CASES. Page Garcia ?. Lee 26 v. Territory 473 Gardiner v. Johnston 296 Gardner v. Burke 932 v. Collins 81 v. Hope Ins. Co. 394 v. Michigan C. Ry. Co. 32 . Newburg 757, 769, 807, 808, 814 v. The Collector 194 v. Ward 927 Gargan v. Louisville, N. A. & C. Ky. Co. 298 Garland, Ex parte 370, 371, 374, 376 v. Brown's Adm'r 406 Garner v. Gordon 497 Garnett v. Jacksonville 789 Garr v. Selden 629, 634 Garrabad, Re 290 Garrett v. Beaumont 529 v. Cordell 411 v. Doe 529 v. Janes 293 v. Lake Roland Elevated R. Co. 784 v: State 854 v. St. Louis 728 Garrigas v. Board of Com'rs 202, 209 Garrigus v. State 453 Garrison v. Hollins 591 v. New York 358 v. Tillinghast 687 Gartin v. Penick 661 Garvey, In re 440 v. People 381 Garvey's Case 468 Garvin v. State 207 Gas Co. v. Parkersburg 299 v. San Francisco 860 v. Wheeling 92 Gascoigne v. Ambler 607 Gaskill v. Dudley 354 Gass v. Wilhite 660 Gassett v. Gilbert 610 Gastineau v. Cora. 289 Gaston v. Mace 862 v. Merriam 217 Gatch v. Des Moines 722 Gates v. Neal 927 Gathercole v. Miall 625, 644 Gatlin v. Tarboro 707 Gatton v. Chicago, R. I. & P. Ry. Co. 48 Gatzow v. Buening 324 Gaulden v. State 482 Geary v. Simmons 80 Gebhard v. Railroad Co. 517 Gebhardt v. Reeves 796, 809 Geildes v. Cunningham 750 Gee v. Williamson 80 Geebrick v. State 163, 171, 173 Geer v. Connecticut 852 Gehling v. School District 262 Gelpcke v. Dubuque 35, 167, 321, 324 Genet v. Brooklyn 825 Genther v. Fuller 751 Gentile v. State 183, 868 Gentry v. Griffith 192 George v. George 859 Page George v. Gillespie 80 v. Oxford 223 Georgetown, &c. R. R. Co. v. Eagles 786 Georgia u. Stanton 3 Georgia, &c. R. R. Co. v. Harris 575, 577 Georgia Packing Co. v. Macon 690 Georgia Pen. Cos. v. Nelms 386 Georgia R. R., &c. v. Smith 165, 874 Gerard v. People 468 Gerhard v. Seekonk, &c. Co. 788 German, &c. Cong. v. Pressler 660 German Reformed Church v. Seibert 661 German Savings Bank v. Franklin Co. 34 Germania Ins. Co. v. Wisconsin 30 Germania Trust Co. v. San Francisco 738 Gerrish v. Brown 861 Gerry v. Stoneham 529 Gertum v. Board 389 Gettys v. Gettys 579 Gianfortone v. New Orleans 347 Gibb v. Washington 898 Gibbons v. Dist. Columbia 739 v. Mobile, &c. R. R. Co. 167, 542 v. Ogden 10, 11, 92, 864 v. United States 24 Gibbs v. Gale 525 Giboney v. Cape Girardeau 721 Gibson, Ex parte 496 v. Armstrong 661 v. Choteau 30, 524 v. Emerson 129 i'. Harrison 882 v. Hibbard 639 r. Huntington 357 v. Lyon 36 v. Mason 506, 892 v. Mississippi 19, 382 v. School District 262 v. United States 769 v. Wood 904 Gidding v. Blacker 74, 931 Giesy v. Cincinnati, W. & Z. R. R. Co. 780, 809, 825 Gifford v. People 449 v. Railroad Co. 209 Gill v. Davis 198 Gilbert v. Ackerman 624 v. People 631, 633, 647 Gildersleeve v. People 681 Gilfillan v. Union Canal Co. 407 Gilkeson v. Frederick Justices 265 Gilkey v. Cook 97 Gill v. Parker 849 Gillespie v. Lincoln 305 v. Palmer 893, 927, 928, 931 v. People 573, 887 v. State 209, 213 Gillett v. McCarthy 210 Gillette v. Hartford 726 Gilliland v. Phillips 637 v. Sellers's Adm'r 675 Gillinwater v. Mississippi & Atlantic R. R. Co. 75, 760, 762 Gillison v. Charleston 363 Gilluly v. Madison 304 Gilman v. Cutts 512 TABLE OF CASES. liii Oilman v. Lockwood v. Lowell v. Philadelphia 11, 688, 856, 869, p. Sheboygan v. Tucker v. Williams Gilmer v. Lime Point 755, 763, 777, Gilmore v. Heutig Gilson v. Dayton v. Rush Ginn v. Rogers Giozza v. Tierman 22, Girard v. Philadelphia Girard Will Case Girdner . Stephens 62, Gladden v. State Gladson v. Minnesota Glasgow v. City of St. Louis Gleason v. Dodd 41, 42, v. Gleason v. Keteltas Glenn v. Garth Glide, The Glidewell v. Martin Gloucester Ferry Co. v. Pennsylvania 856, Gloucester Ins. Co. v. Younger Glover v. Powell 788, v. Taylor Godeharles v. Wigeman 234, 559, Goddard, Petitioner 279, 281, 286, v. Jacksonville 845, Goddin v. Crump 167, Godshalk v. Metzgar Goenen v. Schrceder Goetcheus v. Mathewson 581, 927, Goetz v. United States Goff v. Frederick Goggans v. Turnispeed Gohen v. Texas Pacific R. R. Co. Gold v. Fite Goldey v. Morning News Goldthwaite v. Montgomery Gold Water & Washing Co. v. Keyes Gonell v. Bier Gooch, Re Good v. Zercher Goodell, Matter of v. Jackson Goodenouph, In re Good hue, Re Goodin v. Thoman 99, Goodlett v. Kelly Goodman v. Munks v. State Goodrel v. Kreichbaum Goodrich a. Detroit v. Winchester, &c. Co. Goodsell v. Boynton Goodtitle v. Kibbee v. Otway Goodwin v. Thompson Goodwin, &c. Co.'s Appeal Goodwine v. Evans Page 417 605 864 396 672 252 815, 817 722 323 711 676 885 267 670 522 452 852 781 583 579 691 39 26 195 689, 867 35 863 924 877 860, 861 883 257 638 413 928 12 267 404 217 91 180 265 29 896 848 638 655 84 497 237 389 525 622 450 23 274 717 223 755 84 62 478 827 Page Gordon v. Appeal Tax Court 176, 395 v. Building Association 560. 564 p. Caldcleugh . 31 v. Cornes 337, 338, 703 v. Farrar 927 v. Ingram 132 v. M cores 159 v. People 215 v. Preston 276 Gore v. State 450, 453 Gorham v. Campbell 929 v. Cooperstown 363 v. Luckett 453 v. Springfield 166 Gorman v. Pacific R. R. Co. 394, 841 Gormley w. Taylor 253 Goshen v. Kern 285, 710 v. Richmond 648 v. Stonington 235, 633, 536 Goshorn v. Purcell 630. 538 Goslin t;. Cannon 612, 630 v. Veley 281, 932 Gosnell v. State 890 Gosselink v. Campbell 286, 860 Cosset v. Howard 191 Gossigi v. New Orleans 285, 888 Goszler v. Georgetown 295, 783 Gott v. Pulsifer 648 Gottbehuet v. Hubachek 606, 628 Gottschalk v. Chicago, &c. R. R. Co. 811 Gougar v. Timberlake 901 Gough v. Dorsey 129, 589 v. Pratt 136 Gould, Ex parte 443 v. Hudson River R. R. Co. 781, 786 v. Sterling 274, 320, 323, 542 v. Sullivan 750 v. Topeka 302 Goulding v. Clark 275 Govan v. Jackson 934 Gove v. Blethen 628 v. Epping 327, 704 Governor . Porter 77, 132, 137 Grace v. McElroy 86 v. Teague ' 898 Graffty v. Rushville 693 Graham, Ex parte 629 v. Chicago 732 v. Com'rs Chautauqua Co. 707 v. Greenville 166 t;. Weeks 32 Grammar School v. Burt 392 Granby v. Thurston 266 Grand Gulf R. R. Co. v. Buck 396 Grand Island & N. W. Ry. Co. v. Baker 321 Grand Lodge of Louisiana v. New Orleans 396 Grand Rapids v. Brandy 288 v. Hughes 271 v. Newton 291 v. Perkins 818 v. Powers 574 Grand Rapids, &c. R. R. Co. v. Heisel 786, 799 v. Weiden 761 liv TABLE OF CASES. Page Grand Rapids Booming Co. v. Jarvis 787 Grand Trunk Ry. Co. v. Ives 134, 560 Granger v. Pulaski Co. 348, 355 Grannahan v. Hannibal, &c. R. R. Co. 836, 844 Grant v. Brooklyn 362 v. Buckner 26 v. Courier 241 v. Erie 301 v. Leach 566 v. Spencer 114 v. State 461 Grattan v. Mattison 689 Graves v. Blanchet 607 v. Nor. Pac. R. R. Co. 590 v. Otis 296, 783 v. Saline 322 Gray v. Connecticut 568, 845 v. Danbury 363 v. First Division, &c. 791 v. Griffin 305 v. Hook 924 v. Knoxville 304 v. Navigation Co. 394 v. Pentland 618, 619 v. State 564 Gray's Lessee v. Askew 86 Great Falls Manufacturing Co. v. Fernald 773 v. Garland 814 Great Western R. R. Co. v. Decatur 840 Great Western Telegraph Co. v. Purdy 40 Greeley v. Jacksonville 217 Greeley S. L. Ry. Co. v. Yount 827 Green, Re 28 v. Aker 121 . Biddle 387 v. City 803 v. Chapman 645 v. Collins 575 z;. Creighton 576 v. Custard 583 v. Holway 685 v. Hotaling 695 v. Mayor, &c. 209 v. Neal's Lessee 33, 34 v. Portland 799 v. Reading 296, 783 v. Sarmiento 42 v. Savannah 854 v. Shumway 902 v. State 24, 557, 782, 869 v. Swift 782, 869 v. Telfair 656 v. Van Buskirk 43 v. Weller 92, 93, 194 Greencastte, &c. Co. v. State 87, 216 Greencastle Township v. Black 91, 92, 93, 107, 115 Greene, Re 336 v. Briggs 431, 502, 591 Greenfield i;. Dorris 413 Greenlaw v. Greenlaw 578 Greenough v. Greenough 129, 132, 136, 150, 540 Page Greensboro' v. Ehrenreich 287 v. Mullins 280 Greenstreet v. Thornton 681 Greenville v. Kemmis 280 Greenville & Columbia R. R. Co. v. Partlow 823, 824, 825 Greenwood v. Cobbey 620 v. Curtis 178 v. Freight Co. 394 i>. Louisville 301 v. State 280 Gregory, Exparte 283, 709 o. Bridgeport 308 v. Denver Bank 407 v. Gregory 679 v. State 133 Grenada Co. Supervisors v. Brogden 256 Grey v. Newark Plank R. Co. 183 ex rel Simmons v. Paterson 782 Gridley v. Bloomington 286, 861 Grier v. Shackleford 937 Griffin v. Cunningham 560 v. Goldsboro 873 v. Martin 788 v. McKenzie 622 v. Mixon 518 . New York 300 v. Ranney 685 v. Wilcox 410, 517 v. Williamstown 363 Griffin's Case 18 Griffin's Executor v. Cunningham 138, 153, 546 Griffing v. Gibb 34 Griffiths, In re 130 Griggs v. Foote 296 Grills v. Jonesboro' 285 Grim v. Weissenburg School Dis- trict 535, 701 Grimes v. Coyle 612, 619, 630 v. Doe 537 v. Eddy 854, 881 Grimmett v. State 441 Grissell v. Housatonic Ry. Co. 841 Griswold v. Bragg 553 v. School District 712 Grob t>. Cusliman 195 Groesbeck v. Seeley 623, 527 Groesch v. State ' 173 Groffs, In re 247 Grogan v. San Francisco 346, 386 v. State 468 Groorne v. Gwinn 162 Gross v. Rice 474 v. U. S. Mortgage Co. 30, 537 Grossman v. Oakland 290 Grosvenor v. Chesley 406 v. United Society 661 Grove v. Brandenburg 629 r. Todd 638 Grover & B. S. M. Co. v. Radcliffe 42 v. Huckins 620 v. Trustees Ocean Grove 213 Grubb v. Bullock 160 Grubbs v. State 212 Grube v. St. Paul 305 TABLE OF CASES. Iv Page Grumbine v. Washington 305, 362 Grundy v. Commonwealth 515 Grunewalds v. Cedar Rapids 272 Guaranty T. & S. D. Co. v. Green C. S. & M. Ry. Co. 42, 44 Guard r. Rowan 629 Gubasko v. New York 363 Guenther v. People 470 Guerin v. Moore 614 Guerrero, In re 283, 294, 694, 709 Guetig v. State 437 Guild v. Kidd 553 v. Rogers 406, 409 Guile v. Brown 590 Guilford v. Cornell 208 v. Supervisors of Chenango 309, 332, 335, 340, 543, 761 Guillotte v. New Orleans 286, 888 Guiterrez, Ex parte 383 Gulf, C. & S. F. Ry. Co. v. Ellis 16, 671 v. Fuller 811 v. Helfley & Lewis 872 v. Rambolt 92 v. State 875 Gulick v. New 932 v. Ward 197 Guiline v. Lowell 808 Gumm v. Hubbard 916 Gundling v. Chicago 15 Gunn, Re 189 v. Barry 62, 63, 407, 408 . White S. M. Co. 180 Gunnarssohn v. Sterling 174 Gunnison Co. Com'rs v. Rollins & Sons 322 Gunter v. Dale Co. 207 Gurnee v. Chicago 719 v. Speer 403, 407 Gurney v. Minneapolis Union Elev. Co. 804 Gustafson v. State 66 Gut v. Minnesota 375 v. State 382, 459 Guthrie v. Oklahoma 336 Guthrie Nat'l Bk. v. Guthrie 336 Gutman v. Virginia Iron Co. 237 Guy v. Baltimore 694 H. Haas v. Chicago, &c. R. R. Co. 840, 843 Habersham v. State 464 Hackett, In re 606, 590, 749 v. Wilson 667 Hackettstown r. Swackhamer 271 Hackney v. Vawter 661 v. Welsh 41 Hadden v. Chora 661 v. The Collector 202 Hadduck's Case 276 Hadley v. Mayor, &c. 937, 939 Hadsell v. Hancock 308 Hafford . New Bedford 301 Hagan v. Hendry 658 Hagany v. Cohnen 690 Page [la gar v. Reclamation Dist. 722 v. Supervisors of Yolo 735 Hagerstown v. Dechert 247, 250 v. Schuer 267 v. Whitmer 287, 297 Haggard v. Hawkins 208 Hagge v. State 935 Haggerty v. St. Louis I. M. & S. Co. 879 Hagood v. Southern 24 Hahn v. United States 106 Haigh v. Bell 860 Haight v. Grist 685 v. Lucia 454 Haines v. Hall 862 v. Levin 591 v. School District 275 Haines's Appeal 591 Hair v. State 451 Haislip /;. Wilmington, &c. R. R. Co. 824 Hakewell, Matter of 497 v. Ingram 656 Halbert v. San Saba Springs, L. & L. S. Ass'n 187 v. Sparks 262 Hale v. Everett 67, 93, 660, 664, 670 v. Kenosha 718, 741 v. Lawrence 878 v. State 130 v. Wilkinson 685 Haley v. Clarke 160 v. Philadelphia 136, 530 v. Taylor 486 Hall, In re 218 v. Armstrong 456 v. Bray 182 v. Bunte 207 v. De Cuir 668, 840, 881 v. Gavitt 924 v. Marks 589 v. Marshall 167, 925 v. Steele 195, 199 v. Thayer 593, 594 v. Washington Co. 474 v. Williams 41, 42, 583 v. Wisconsin 386, 389 Hallinger v. Davis 464, 456, 505 Hallock v. Franklin Co. 818 v. Miller 607 Halstead v. Buster 32 v. Nelson 620 v. New York 270, 309, 311, 323 Ham v. McClaws 234 v. Salem 769 v. Smith 924 . State 40 v. Wisconsin, &c. Ry. Co. 823 Hamblin v. Western Land Co. 30 Hamersley v. New York 814 Hamilton, Ex parte 496 v. Brown 22 v. Carthage 363 v. Eno 628 v. Hirsch 515 v. Kneeland 62 v. People 464 v. State 177, 218 Ivi TABLE OF CASES. Page Hamilton u. St. Louis County Court 69, 101 v. Vicksburg, &c. R. R. Co. 55, 784, 864, 866 v. Wilson 708 Hamilton Co. v. Massachusetts 30 v. Mighels 348 Hamilton Co. Com'rs v. Rasche 530, 555 Hamilton Gas Light & Coke Co. v. Hamilton 299, 383, 394 Hamlet v. Taylor 223 Hamlin v. Mack 606 v. Meadville 272, 319 Hammett v. Philadelphia 400, 704, 717, 719, 730 Hammond v. Anderson 84 v. Haines 173 v. People 496 v. Wilcher 891 Hampshire v. Franklin 268 Hampton v. Coffin 818 v. McConnel 43 u. Wilson 644 Hamrick v. Rouse 176 Hancock, Matter of 592 v. Louisville & N. Ry. Co. 32 v. State 441 v. Yaden 572, 877 Hancock Nat'l Bank v. Farnum 43 Hand v. Ballou 526 Hand Gold Mining Co. v. Packer 771 Handle . Chapin 852 Handy v. Chatfield 410, 415 v. State 464 v. St. Paul, &c. Pub. Co. 860 Haney v. Marshall 37 Hanford v. Davis 36 Hanger v. Des Moines 310 Hang Kie, In re 286 Hankins v. Lawrence 772 v. People 280 Hanley v. Donoghue 42 Hanlin v. Chicago, &c. Ry. Co. 791 Hanlon v. Doherty 478 Hanna v. Young 9S Hannel v. Smith 87 Hannibal v. Richards 884 Hannon v. Grizzard 894, 90.- v. St. Louis Co. Court 354 Hanoff v. State 449 Hanover v. Turner 578, 58C Hans v. Louisiana 24, 417 Hanscom v. Boston 36c Hansen v. Vernon 691 Hapgood v. Doherty 591 v. Whitman 529 Happel v. Brethauer 19( Happy v. Morton 66( v. Mosher 58* Happy Home Club v. Alpena Co. Harbaugh v. Cicott 905, 921, 932 Harbeck v. New York 257 Harbison v. Knoxville Iron Co. 509 Harbor Com'rs v. Pashley 69 Hard v. Burton 68? v. Nearing 504, 606 lardeman v. Downer larden v. Cumstock iardenburg v. Lock wood 3ardin v. Baptist Ch. iarding, Ex parte Page 634 788 660 496 v. Alden 679, 580, 584, 585 v. Funk 772, 823 f. Goodlet 772, 775 v. People 837 v. Rockford, &c.R. R. Co. 819 v. Stamford Water Co. 788 rlardwick v. Pawlet 485 Hardy v. Atchison, &c. R. R. Co. 875 v. Brooklyn 304 flare i: Hare 579 v. Kennedy 745 v. Mellor 619 Harkrader v. Wadley 25, 26 Harley v. Montana O. P. Co. 582 Harlan v. People 46 Harman v. Harwood 159 v. Lynchburg 305 Harmison v. Ballot Com'rs of Jeff. Co. 127 Harmon v. Auditor 83 v. Chicago 688, 690, 856, 859, 884 v. Dreher 661 v. Omaha 296, 812 v. Wallace 412 Harmony v. Mitchell 878 Harp v. Osgood 487 Harpending v. Haight 162, 220 r. Reformed Church 33 Harper ?. Commissioners 506 i?. Richardson 814, 815 v. Rowe 546 Harper County Comr's v. Rose 322 Harrigan v. Lumber Co. 868 Harriman v. Baptist Church 661 v. Boston 363 Harrington v. County Com'rs 818 v. Miles 605 v. Providence 883 v. State 466 Harris v. Austell 409 v. Colquit v. Dennie 30 v. Harris 80 17. Huntington 619 v. Inhabitants of Marblehead 553 v. McClanahan 686 v. Morris 484 v. People 209, 458 v. Roof 197 v. Rutledge 539 v. Schuylkill R. E. S. Ry. Co. 826, 827 17. State 212 17. Terry 606 Harrisburg, C. & C. T. R. Co. v. Har- risburg & M. E. Ry. Co. 814 Harris Co. v. Boyd 695 Harrison v. Baltimore 863 v. Bridgeton 267, 268, 345 r. Bush 610, 612, 647, 648 t7. Harrison 679, 684 t7. Leach 95 TABLE OF CASES. Ivii Page Harrison v. Metz 629 v. Morton '28 v. New Orleans, &c. Ry. Co. 798 v. Sager 86 v. Stacy 622 r. State 237 v. Supervisors 206, 209 v. Willis 617 Harrison Justices v. Holland 266 Harrodsburg v. Renfro 291 Harrow v. Myers 87 Hart v. Albany 292, 830, 878 v. Bostwick 623 v. Bridgeport 305 v. Brooklyn 358, 860 v. Evans 919 v. Henderson 527 v. Holden 331 v. Jewett 81 v. State 382 v. Von Gumpach 629 Harteau v. Harteau 680 Hartford v. State 606 Hartford Bridge Co. v. Union Ferry Co. 237, 263 Hartford F. Ins. Co. v. Chicago M. & St. P. Ry. Co. 32, 833 v. Reynolds 478 Hartland v. Church 719 Hartman, Ex parte 496 v. Aveline 39 v. Greenhow 85, 386, 403 Hartman Steel Co., Appeal of 703 Hartranft's Appeal 162 Hartt v. Harvey 935 Hartung v. People 379, 473, 616, 544 Harvey v. Com'rs Rush Co. 388 v. Farnie 580 v. Lackawanna R. R. Co. 781, 785, 823 v. Tama Co. 924 v. Thomas 237, 608, 765 Harward v. St. Clair, &c. Drainage Co. 643 Harwood v. Astley 624 v. Bloomington 826 Hasbrouck v. Milwaukee 313, 337, 338, 642 v. Shipman 414 Haskel v. Burlington 656 Haskell, Re 288 v. New Bedford 232, 251, 780 Hastings v. Lane 629 v. Lusk 633 Hastings & G. I. R. R. Co. v. Ingalls 803 Haswell's Case 613 Hatch v. Lane 611, 612 v. Stoneman 162 v. Vermont Central R. R. Co. 783, 807, 826 Hatcher v. State 655 v. Toledo, &c. R. R. Co. 629 Hatcheson w. Tilder 932 Hatchett v. Mount Pleasant Ch. 661 Hatfleld v. Commonwealth 177 Hathaway v. New Baltimore 209 Hatheway v. Sackett Hatlion v. Lyon Hathorne v. Panama Hatzfield v. Gulden Hauenstein v. Lynham Page 263, 267 613 456 198 25 Haugen v. Albina Light & W. Co. 877 Hausenfluck v. Commonwealth 436 Harvard v. Day 748 Haverhill Bridge Props, v. County Commissioners 814 Haverly I. M. Co. v. Howcutt 689 Hawbecker v. Hawbecker 89 Hawes v. Chicago 290 v. Miller 915, 925 Hawk v. Marion Co. 310 Hawker v. New York 890 Hawkins v. Barney's Lessee 387 v. Carrol 91 v. Commonwealth 266 v. Governor 132, 162, 228 v. Jones 80 v. Lumsden 644 v. Mangrum 706 v. Ragsdale 684 Hawthorn v. People 886 Hawthorne v. Calef 392, 407, 415 Hay v. Cohoes Company 773, 786 Hay den v. Foster 749 v. Goodnow 265 r. Noyes 281, 287, 291 Hayes v. Appleton 285 Ex parte 890 r. Douglas County 731 v. Holly Springs 322 v. Missouri 19, 459 v. Pratt 27 v. Press Co. 638 v. Reese 80 Haynes v. Burlington 757 v. Thomas 785 Hays v. Brierly 666 v. Risher 778 Hay wood v. Savannah 278 Hazen v. Essex Company 772 v. Lerche 262 Head v. Amoskeag Co. 773 v. Daniels 688 v. Providence, &c. R. R. Co. 323 Head Money Cases 25, 686, 832, 858 Health Dept. v. Rector of Trin. Church 671, 880 Heard v. Brooklyn 796 v. Heard 223 Hearn v. Brogan 217 Heath, Ex pnrte 114, 926, 929, 933, 935 Heather Children, Matter of 497 Hechinger v. Maysville 286 Hector v. State 445, 469 Hedderich v. State 845 Hedgecock v. Davis 104 Hedges v. Dixon County 320, 822 v. Madison Co. 865 Hedley v. Com'rs of Franklin Co. 263 Hegarty's Appeal 144, 149 Hegeman v. Western R. R. Co. 835, 838 Heilbron, Ex parte 287 Iviii TABLE OF CASES. Page Heilbron, Estate of 409 Hein v. Davidson 607 Heinlein v. Martin 81 Heiss v. Milwaukee, &c. Ry. Co. 791 Hekking v. Pfaff 40 Heldt v. State 446, 449 Helena v. Dwyer 289 v. Gray 284 v. Thompson 362 Helena Cons. Water Co. v. Steele 335 Heller v. Atchison, &c. R. R. Co. 648 v. Sedalia 301 Helverstine v. Yantes 691 I leman v. Allen 731 Hendershot v. State 818 Hendershott v. Ottumwa 296 Henderson v. Griffin 31 v. Hey ward 289 v. Lambert 726 v. McClain 784 v. Minneapolis 783, 786 v. New York 688 . Oliver 751 Henderson Petitioner in State v. Evans 474 Henderson's Distilled Spirits 429, 748 Henderson's Tobacco 217 Henderson Bridge Co. v. Henderson 691 v. Kentucky 692 Hendrick's Case 46 Hendrickson v. Decow 661 v. Hendrickson 223, 224, 258 Henisler v Freedman 433 Henke v. McCord 259 Henkel v. Cincinnati 30 v. Detroit 304 Henley v. Lyme Regis 356, 361 Henneberger, Re 183 Hennersdorf v. State 859 Hennepin Co. v. Bartleson 860 Hennessy v. St. Paul 883 Hennington v. Georgia 852, 859 Henry v. Chester 743 v. Deitrich 661 v. Dubuque & Pacific R. R. Co. 808, 817, 822 v. Henry 209, 409 v. Tilson 101 Henshaw v. Foster 123, 911 Hensley v. Force 42 Hensley Township v. People 704 Hensoldt v. Petersburg 194 Henson v. Moore 614 Kenwood v. Harrison 628, 649 Hepburn v. Curts 615, 634 Hepburn's Case 764 Herber v. State 378 Herdie v. Roessler 13 Herndon v. Imp. F. Ins. Co. 131 Herrick v. Randolph 396, 396, 679 Herrington v. Lansingburgh 362 Herrmann v. State 288 Hersey v. Supervisors of Milwaukee 743, 749 Hershfield v. State 466 Hershizer v. Florence 614, 616 Page Hess v. Johnson 411 v. Pegg 86, 182, 266, 267 v. Werts 636 v. White 460 Hessler v. Drainage Com'rs 643 Heth v. Fond du Lac 304 Hewison v. New Haven 304, 346, 360 Hewitt v. Normal School District 262 v. Prince 478 Hewitt's Appeal 722 Heydenfeldt v. Towns 695 Heyfron, Ex parte 683 Hey Sing Jeck v. Anderson 431 Heyward, Matter of 40 v. Judd 406, 413 v. New York 232, 251, 754, 801, 809 Hibbard v. People 431, 850 v. State 233 Hibbard S. B. & Co. v. Chicago 299 Hibernia R. R. Co. v. Camp 776 Hickerson v. Benson 924 Hit-key v. Hinsdale 114 Hickie v. Starke 30 Hickman's Case 765 Hickman v. Kansas City 754, 815, 824 Hickok v. Plattsburg 357 Hickox v. Tallman 625, 526 Hicks v. Steigleman 621 Higert v. Green Castle 363 Higginbotham v. State 460 Higgins v. Berg 900 v. Chicago 818, 819 v. Farmer Ins. Co. 65, 590 v. Lime 686 High v. Coyne 708 v. Shoemaker 606 High's Case 908 Highland Ave. & B. R. Co. v. Mat- thews 828 High School Dist. No. 137 v. Lan- caster Co. 707 Hightower v. Bailey & K. 616 Hightstown v. Glenn 183 Highway Com. v. Ely 302 v. Martin 303, 356 Hilands v. Commonwealth 469 Hilbish v. Catherman 333 Hildreth v. Lowell 770, 861 v. Mclntyre 898 Hill, Ex parte 494 v. Boston 302, 305, 355 v. Boyland 118 v. Charlotte 301 v. Commissioners 209 v. Higdon 717, 728, 730, 734, 742, 745 v. Hill 937 v. Kessler 408 v. Kricke 522, 623 v. Miles 619 v. Morse 80 v. People 458, 676, 677 v. Pride 685 v. Slade 99 p. Spear 850 v. State 221, 223 v. Sunderland 138 TABLE OF CASES. lix Page Hill v. Wella 594 Hill's Case 452 Hillebert v. Porter 414 Billiard v. Connelly 138 v. Miller 540 v. Moore 412 Hills v. Chicago 102, 121, 236 Hiimnan v. Warren 64 Himmelman v. Carpenter 625 Hinchman t>. Paterson Horse R. R. Co. 800, 805, 806, 867 v. Town 577 Hinckley v. Somerset 358 Hind v. Rice 209 Hinde v. Vattier 33 Hindman v. Piper 149 Hines v. Charlotte 301 v. Leaven worth 717, 730 v. Lockport 304, 363 Hingham, &c. Turnpike Co. v. Nor- folk Co. 232 Hing v. Crowley 258 Hingle v. State 203, 205 Hinkle, In re 898 Hinman o. Chicago, &c. R. R. Co. 842 Hinsou v. Lott 690 Hinton v. State 435 Hintrager v. Mahoney 750 Hintz v. Michigan C. Ry. Co. 454 Hipp v. Charlevoix Co. Superv. 937 Him v. State 217, 399, 400 Hiss o. Bartlett 190 v. Railway Co. 802 Hite i7. Hite 569 Hoag v. Hatch 605 v. Switzer 785 Hoagland v. Creed 589 Hoar v. Wood 632, 633, 647 v. Silverlocke 637 Hobart v. Supervisors, &c. 166, 167, 237 Hobbs & Johnson, Ex rel. 551 Hoboken v. Phinney 744 Hocking Valley Coal Co. v. Rosser 556, 571 Hodge v. Linn 913, 929 Hodges v. Bait. Pass. Ry. Co. 794 v. Buffalo 270, 310 v. Crowley 318 Hodgkins v. Rockport 263 Hodgson v. Milward 618, 519 v. New Orleans 710 v. Scarlett 632 v. Vermont 22, 456, 505 Hoefling v. San Antonio 718 Hoffman v. Circuit Judge 483 v. Hoffman 42, 579, 580 17. Locke 591 i7. State 467, 469 Hoge v. Railway Co. 396 Hogg, Ex parte 209 17. Mackay 739 v. Zanesville Canal Manuf. Co. 64, 867 Hoggard v. Monroe 306 Hoggatt v. Vicksburg, &c. R. R. Co. 804 Hoglan v. Carpenter 895 Page Hoisington 17. Hough 252 Hoke v. Henderson 603 Holbrook v. Finney 613 v. Murray 42 Holden v. Hardy (14 Utah) 456,457,605, 570, 891 v. James 237, 621, 658, 659 v. Minn. 376 Holder v. Aultmann M. & Co. 178 v. State 463 Holland v. Com'rs of Silver Bow Co. 720 v. Davis 921 17. Dickerson 406 v. Osgood 113 v. State 133 Hollenbeck v. Winnebago Co. 305 Holley v. Burgess 606 Hollida v. Hunt 12 Holliday v. Ont. Farmers', &c. Co. 610 Hollingsworth v. Duane 454 Hollis v. Meux 630 Hollister v. Hollister 579, 580 i7. Union Co. 549 Holloway v. Sherman 406, 515 Hoi man v. School Trustees 263 Holman's Heirs v. Bank of Norfolk 144, 583, 584 Holmes, Ex parte 41 v. Holmes 403, 585 v. Jennison 30, 41 Holt i7. Downs 660 v. State 379, 467 Holt's Appeal 275 Holton v. Com'rs Mecklenburg Co. 707 v. Milwaukee 728, 822, 823 Holyoke Co. v. Lyman 394, 565 Home v. Bentinck 630 Home Building, &c. Co. v. City of Roanoke 784 Home Ins. Co. v. Augusta 283, 404 17. Swigert 166, 707 17. Taxing District 216 Home Ins. & T. Co. v. Tennessee 397 Home & C. v. Wilkinsburg 718, 741 Home of the Friendless v. Rouse 395 Homer v. Commonwealth 217 Homestead Cases 408 Hong Wah, In re 286 Hood t7. Finch 818 i\ Lynn 310 f. State 42, 580 Hook 17. Hackney 606, 628 Hooker v. Hooker 138 v. New Haven, &c. Co. 781 , 786, 787, 815 Hooper, In re 39 v. Bradford 709 17. Bridgewater 769 v. California 179, 687, 834 v. Emery 272, 698, 704 Hoover v. McChesney 609 17. Mitchell 80 v. Wood 231 Hope v. Johnson 615 v. Mayor, &c. 205, 208 TABLE OF CASES. Hopkins v. Baker Bros. v. Duluth v. Hopkins v. Lewis Hopple v. Brown Hopps v. People Hopson, In re Hopt v. Utah Horbach v. Miller Page 720 166 679 848 272, 323, 348 437 494 447, 452, 469 522 Horn v. Atlantic, &c. R. R. Co. 841, 842 v. Chicago, &c. R. R. Co. 843 Horn Silver Mining Co. v. New York 179, 180 Home v. State 410 Horstman v. Kaufman 442 Horton v. Baptist Church 661 v. Watson 895 Hoskins v. Brantley 895 Hosmer v. Loveland 620, 630, 686 Hospes v. O'Brien 854 Hotchkiss v. Oliphant 642, 644 Hot Springs R. R. Co. v. Williamson 811 Hottentot Venus Case 494 Houdayer's Estate, lie 21, 720 Houghton v. Huron Copper M. Co. 312 v. Page 62 Houghton Co. Sup'rs v. Blacker 931 Houlton v. Nichol 196 House, Re 696 v. White 477 House Bill, In re 706 No. 99, Re 73 No. 1230, Re 886 No. 1291, Re 010 Householder v. Kansas City 121 Houseman v. Kent Circ. Judge 130, 531 House of Refuge v. Ryan 423 Houston, Re 689 v. Moore 13, 46 v. Stafe 606, 878 Houston, &c. R. R. Co. v. Odum 194, 791 Houston & E. T. Ry. Co. v. Adams 826 Houston & T. C. Ry. Co. v. State (90 Tex.) 884 v. Texas (170 U. S.) 384 v. Texas (177 U. S.) 35, 386 v. Texas & P. Ry. Co. 392 Houston D. Nav. Co. v. Ins. Co. of N. A. 848, 852 Houston E. & W. Ry. Co. v. Camp- bell 848 Hovelman v. Kansas City 387, 391 Hover v. Barkhoof 259 Hovey v. Elliot 455, 669 v. State 105, 158, 221 Howard, Ex'parte 161 v. Church 728 v . De Cordova 40 v. McDiamid 266, 939 v. Moot 409 t>. San Francisco 801 v. Schneider 212 v. Shields , 929 v. Shoemaker 895 v. Skinner 903 v. State 99 Page Howard v. Thompson 619 v. Worcester 802 v. Zeyer 653 Howard County, Division of, 201, 210, 267 v. State 627 Howe, Re 708 v. Plainfleld 690 Howell v. Bristol 725, 729 v. Buffalo 338 v. Fry 690 v. State 209, 555 Howes v. Crush 610, 548 Howison v. Weeden 81, 82 Howland v. Maynard 610 v. School Dist. 769 Hoxie v. Wright 42, 683 Hoyt v. East Saginaw 728, 730 v. Hudson 363 v. People 474 v. Shelden 30 v. Sprague 144 Hubbard v. Bell 862 v. Brainerd 618, 629 v. Patterson 292 v. Taunton 310 Hubbell v. Hubbell 679, 584 v. Viroqua 301 Huber v. People 209 v. Reily 372, 374, 502, 902 Huckle v. Money 434 Huddleston Admx. v. Eugene 804 Hudelson v. State 464 Hudson v. Geary 285, 675, 859 v. State 469 v. Thorne 283, 288 Hudson Tel. Co. v. Jersey City 295 Hudspeth v. Davis 414 Huesing v. Rock Island 271 Huff v. Bennett 688, 644 v. Cook 896 Huffmire v. Brooklyn 784 Hughes, Matter of 39 v. Auburn 302 v. Baltimore 304 v. Cannon 639 t;. County of Monroe 305 v. Hughes 104 v. People 280 v. Recorder's Court 285 Hughey's Lessee v. Horrell 546, 719 Ruling v. Kaw Valley Ry. Co. 818 Hull v. Homer 277 v. Hull 679, 684 v. Marshall Co. 324 v. Miller 184 Hulseman v. Reins 903, 939 Humboldt v. Long 321 Humboldt Co. v. Churchill Co. Com'rs 206, 258 Hume v. Commercial Bank 692 v. New York 358 Humes v. Mayor, &c. 296 v. Tabor 430 Humphrey v. Pegues 395 Humphries v. Brogden 831 Hunckel v, Voneiff 629 TABLE OF CASES. Ixi Hungerford's Appeal 80 Hung Hang, Ex parte 495 Hunsaker v. Wright 176, 742, 743 Hunscom v. Hunscom 616 Hunt v. Bennett 620, 623, 624, 656 v. Boonville 305 v. Iowa Cent. Ry. Co. 826 0. Lucas 518 v. Murray 226 v. State 195, 218, 464 Hunt's Lessee v. McMahan 553 Hunter, Ex parte 372 v. Cobb 685 v. Moore 667 v. Nolf 924 Hunting v. Johnson 514 Huntington v. Attrill 43 v. Cheesbro 286 Huntsville v. Phelps 284 Huntzinger v. Brock 406 Hurford v. Omaha 112, 114 Hurley v. Powell 751 v. Van Wagner 924 Hum, Ex parte 424 Huron, Re 455 v. Second Ward Natl. Bk. 322 Huron Water Works Co. v. Huron 342 Hurst v. Smith 496 v. State 467 v. Warner 272, 873 Hurtado v. California 436, 4o6, 505 Huse v. Glover 65, 688, 691, 864, 865 v. Merriam 748 Huson v. Dale 608 Hussey v. Davis 431 Hussman v. Durham 683 Huston v. Wadsworth 46, 589 Hutcheson v. Peck 485 v. Storrie 731 Hutchinson v. Brown 899 v. Concord 301 v. Lewis 629 v. Olympia 856 v. Parkersburg 812 v. Wheeler 608 Hutchinson & S. R. Co. v. Fox 322 Hutson v. New York 356 Hutton v. Camden 883 v. State 263 v. Webb 697 Huus v. New York & R. R. S. Co. 12 Hyatt v. Bates 80 v. Rondout 357 v. Taylor 89 Hyde v. Brush 906 i>. Cogan 346 r. Jamaica 303 v. Melvin 925 v. White 219 Hydes v. Joyes 294 Hylton v. United States 680 I. Idaho v. Rasmussen leek v. Anderson 854, 881 518 Page Igoe v. State 209 1 jams v. Duvall 100 Illinois, &c. Co. v. Peoria Bridge 865 Illinois & Mich. Canal v. Chicago & It. I. R. R. Co. 399 Illinois Cent. R. R. Co. v. Arnold 842 v. Chicago (138 111.) 763 v. Chicago (141 111.) 806 v. Chicago, &c. R. R. Co. 807 v. Decatur 741 v. Ihlenberg 121 v. Illinois 851 v. Irvin 396 v. McLean 742 v. People 394, 840 v. Willenborg 839 v. Wren 195 Illinois Conf. Fern. Col. v. Cooper 278 Illinois G. T. Ry. Co. v. Wade 320 Ilsley v. Nichols 425 Imlay v. Union Branch R. R. Co. 792, 795 Indiana Cent. R. R. Co. v. Potts 119, 205, 206, 207, 213 Indianapolis v. C. Gas T. Co. 298 v. Holt 731 Indianapolis, e. R. R. Co. v. Kerche- val 399, 830, 836, 841, 842 v. Smith 786 v. Townsend 841, 842 Indianapolis, B. & W. Ry. Co. v. Eberle 786, 791, 797 Indianapolis Sun v. Horrell 606 Indianapolis U. Ry. Co. v. Houlihan 889, 891 Ingalls v. Cole 89 Inge v. Police Jury 769 Ingersoll v. Nassau Elec. Ry. Co. 392 Inglee v. Coolidge 30 Inglis v. Sailors' Snug Harbor 33 v. Shepherd 921 Ingraham v. Geyer 178 v. Regan 85 Ingrum v. Colgan 696 Inman v. Foster 644 v. Tripp 304 Inman Steamship Co. v. Tinker 691 Innis v. Bolton 902 Inst. for Ed. Mute, &c. v. Henderson 188 Insurance Co. v. Morse 567 v. Ritchie 544 v. Treasurer 30 ?'. Yard 743 Intendant of Greensboro' v. Mullins 280 International T. B. Co. v. Weissin- ger 889 Inter Ocean P. Co. v. Associated Press 877 Inter State Com. Conn. 23 Intoxicating Liquors, In re 849 Invest. Com., In re 620 Investment Co. v. Carpenter 127 Inwood v. State 456 Iowa C. Ry. Co. v. Iowa 20, 22 Iowa Life Ins. Co. v. Lewis 563 Iowa R. R. Land Co. v. Soper 521, 555 Iowa Sav. & L. Ass'n v. Heidt 637 Ixii TABLE OF CASES. Page Ireland v. Mackintosh 622 v. Turnpike Co. 231, 414 Iron Mountain Co. v. Haight 219 Iron Mountain R. R. Co. v. Binghaiu 797 Iron R. R. Co. v. Ironton 777 Irons v. Field 606 Irrigation Resolution, In re 73 Irwin v. Great Southern Tel. Co. 804 Isenhour v. State 253 Isham v. Fullager 661 v. Trustees 661 Isom v. Mississippi, &c. R. R. Co. 247 Israel v. Arthur 151, 646 Ivanhoe v. Enterprise 729 Iverson v. State 217 J. Jack v. Thompson Jackson, Ex parte In re Matter of v. Butler v. Chew v. Commonwealth v. Hathaway v. Jackson v. Lyon v. Munson v. Newman v. Nimmo v. Reeves 681 432, 433 40 490, 494 411 33 450, 452 810 679, 585 515 371 283, 709 129 209 v. Rutland & B. R. R. Co. 810, 842 v. Shaw 183 i-. Vedder 82 v. Walker 924 v. Winn's Heirs 814 v. Young 114 Jackson Iron Co. v. Auditor-General 687 Jackson, &c. R. Co. v. Interstate, &c. Co. 299 Jacksonville v. Drew 362 . Led with 885, 887, 888 Jacksonville El. Lt. Co. v. Jackson- ville 696 Jacksonville, T. & K. W. Ry. Co. v. Adams 460 Jacob v. Louisville 824 Jacobs, In re 886 v. Cone 452 v. Marks 43 v. Small wood 414 Jacoway v. Denton 62, 405 Jacques v. Litle 389 Jahn, Re 691 James v. Commonwealth 46 v. Pine Bluff 281, 860 v. Rowland 136 v. Stull 412 v. Wood 879 Jameson v. People 276 Jamesville & W. Ry. Co. v. Fisher 896 Jamieson v. Ind. Nat. G. & O. C. 853 v. Wiggin 894 Jamison v. Burton 85, 86 Page Jane v. Commonwealth 46 Janes v. Reynolds 504 Janesville v. Carpenter 787, 837 Janson v. Stuart 606 January v. January 413 Janvrin, Re 131 v. Exeter 310 Jarnagan v. Fleming 608 Jarvis v. Hatheway 619, 630 Jaynes v. Omaha S. Ry. Co. 803 Jefferson Branch Bank v. Skelley 35, 62 176 Jefferson City *-. Courtmire 281 Jeffersonville, &c. R. R. Co. v. Dun- lap 217 v. Hendricks 38 v. Nichols 842 v. Parkhurst 842 Jeffrey v. Brokaw 751 Jeffries v. Ankeny 664, 927 v. Harrington 896 v. Lawrence 271 v. Williams 831 Jeliff v. Newark 719 Jenkins, Ex parte 492 v. Andover 313 v. Ballantyne 574 v. Charleston 694 v. Ewin 94 v. Jenkins 614 v. Thomasville 281 v. Waldron 927 Jennings v. Brown 911 v. Coal Ridge Imp. & Coal Co. 16 v. Paine 629, 633, 634 v. Stafford 685 Jensen v. Union Pac. Ry. Co. 842 Jentzsch, Ex parte 837 Jernigan v. Madisonville 163 Jerome v. Ross 766 Jersey City v. Elmendorf 213 v. Kiernan 363 J. E. Rumbell, The 26 Jesler v. Bd. Harbor Com'rs 30 Jessup v. Carnegie 180 Jett v. Commonwealth 46 Jewett v. New Haven 301 Joannes v. Bennett 611, 612 Jockleck v. Shawner Co. Com'rs 756, 759 John v. C. R. & F. W. R. R. Co. 167 John & Cherry Streets, Matter of 608, 764 John Hancock M. L. Ins. Co. v. Warren 886 Johns v. State 451, 676 Johnson v. Atlantic, &c. R. R. Co. 757 v. Beazley 80 v. Bentley 636 v. Bond 410 v. Bradstreet Co. 61 1 v. Brown . 647 v. Campbell 332, 543 v. Com'rs Wells Co. 182, 531 v. Common Council 324 v. Commonwealth 606 v. De Bary-Baya M. Line 719 v. Drummond 691 TABLE OF CASES. Ixiii Page Johnson v. Fletcher 408 v. Gebhaner 521 v. Goodyear Min. Co. 660 v. Higgins 207, 268, 404, 414 v. Hudson R. R. Co. 89 v. Joliet & Chicago R. R. Co. 107, 258 v. Jones 517, 618 v. Loper 691 v. Martin 173 v. Parkersburg 121; 784 v. People 206, 904 . Philadelphia .2, 283, 710 v. Powers 44 v. Railroad Co. 182 v. Rich 171 v. Richardson 538, 544 v. San Diego 269 v. School District 262 v. Spicer 207 v. Stack 167 v. Stark Co. 325 v. State (59 N. J.) 159 v. State (1 Tex. App.) 451 v. State (10 Tex.) 437 v. State (29 Ark.) 470 v. Taylor 538 v. Wallace 589 Johnson Co. v. January 321 John Spry Lumber Co. v. Sault Sav- ings Bank 508 Johnston v. Commonwealth 236, 675 v. Dist. Columbia 302 v. Louisville 272 v. Old Colony R. Co. 809 v. Riley 39, 40 Johnstone v. Sutton 631 Joliet v. Harwood 302, 362 v. Verley 304 Joliet, &c. R. R. Co. v. Jones 842 Jolly v. Hawesville 305 v. Terre Haute Drawbridge Co. 54, 866 Jones v. Black 232 v. Boston 728, 736 r. Brim 16, 22 v. Carter 653 v. Cavins 224 v. Columbus 209 v. Darnall 497 v. Davis 215 v. Driskell 682 v. Duncan 669 v. Erie & W. V. Ry. Co. 803,811 v. Fletcher 430 v. Galena, &c. R. R. Co. 841 v. Harris 677 v. Hutchinson 186, 193, 194, 221 v. Jones ( 18 Ala.) 622 r. Jones (104 N. Y.) 249 v. Jones (2 Overt.) 156, 376 v. Jones (12 Pa. St.) 156, 259 v. Keep's Estate 684 v. Leonard 39, 40 v. Meehan 612 v. Nebraska 262 v. New Haven 366, 361, 363 Page Jones v. People 846, 849 v. Perry 134, 141, 146, 148, 603 v. Richmond 265, 309, 878 v. Robbins 249, 591 v. Skinner 903 v. State 382, 478, 908 v. Surprise 178, 846, 849 v. Thompson 212, 213 v. Townsend 603, 624 v. Weathersbee 80 v. Williamsburg 301 Jonesboro v. Cairo, &c. R. R. Co. 206 Joplin Consol. Mining Co. v. Joplin 778 Jordan v. Bailey 99 v. Benwood 304, 782 v. Moore 692 v. Woodward 772 Jordan's Case 444 Joseph v. Randolph 693 Joslyn v. Detroit 362 Journeay v. Gibson 638, 641 Joy v. Grindstone-Neck Water Co. 828 v. St. Louis 396 v. Thompson 416 Joyce v. Woods 884 Joyner v. School District 748 Judd v. Judd 544 Judefind v. State 860 Judkins v. Hill 932 Judson v. Bridgeport 761 v. Reardon 283, 484 Jugiro v. Brush 16 Julia Bldg. Ass. v. Bell Tel. Co. 787 Julieu v. Model B. & L. I. Co. 237 v. Woodsmill 808 Justice v. Commonwealth 400 Justices v. Fennimore 694 v. Murray 46 K. Kahn v. Sutro Kaine, Matter of v. Commonwealth Kalloch v. Superior Court Kaminitsky v. R. R. Co. Kane v. Baltimore v. Commonwealth v. Cook v. N. Y. E. Ry. Co. v. People Kansas v. Ziebold Kansas City v. Baird v. Clark v. Corrigan v. Huling v. Ry. Co. v. Whipple Kansas City, &c. Ry. Co. , Kansas City, St. J., &c. R. St. Joseph, &c. Co. Kansas City, St. J. & C. B. v. Terminal Ry. Co. Kansas, N. & D. Ry. Co. v. dall 99 495 657 436, 506 843 769 464 42 801 474 690 729 232 278 618 231 706, 894 Pettes 763 R. Co. v. Ry. Co. Cuyken- 811 754 787 Ixiv TABLE OF CASES. Page Kansas Pacific R. R. Co. v. Mower 841 Karney v. Paisley 625 Katzenberger v. Aberdeen 320 v. Larvo 279 Kauclier v. Blinn 606 Kaufman v. Dostal 850 Kauffman v. Tacoma, O. & G. H. Ry. Co. 803 v. Wooters 16 Kaukauna W. P. Co. v. Green Bay & M. Canal Co. 32, 769, 782 Kayser v. Bremen 363 Kaysville City v. Ellison 721, 759 Kean v. McLaughlin 631 v. Stetson 862 Kearney, Ex parte (55 Cal.) 495 Ex parte (7 Wheat.) 495 Kearns v. Howley 899 Keasy v. Louisville 296 Keating v. Cincinnati 304 Keator L. Co. v. St. Croix B. Co. 865 Keddie v. Moore 590, 591 Kedrolivansky v. Niebaum 607 Keeler, Ex parte 456, 471, 474 Keen v. State 376, 382 Keen an v. Cook 906 Keene v. Clarke 30 Keese v. Denver 736 Kehrer v. Richmond 304, 783 Keith v. Clark 386 v. Keith 534 v. Kellogg 589 v. State 848 v. Ware 517 Keller v. Corpus Christi 757 v. State 209 Kelley v. Boston, &c. R. R. Co. 629 v. Corson 748, 750 v. Minneapolis 318 v. Partington 607 v. Pike 81 v. Rhodes 690 v. Schuyler 425 v. Sherlock 627, 648 Kellinger v. Railroad Co. 794 Kellogg, Ex parte 496, 587 v. Hickman 903, 911, 934 v. Janesville 356 v. Oshkosh 175 v. State Treasurer 254 v. Union Co. 865 Kelly v. Bemis 259 v. Flaherty 607 v. Marshall 311, 333, 705 v. McCarthy 615 v. Meeks ' 183, 253, 265 v. Milan 320 v. Minneapolis 297 v. People 474 v. Pittsburgh 46, 606, 722 v. Tinling 627, 628, 648 v. United States 177 Kelsey v. King 800 Kemmter, Re 473 Kemp, In re 454 Kemper v. McClelland 748, 749 Kendall, Ex parte In re v. Canton v. Dodge v. Kingston v. State v. United States Rendition v. Maltby Kendricks v. State Kennard v. Louisiana Page 439 898 388 617 73, 253, 625 469 48 620 451 20 Kennebec Purchase v. Laboree 509 Kennedy, Ex parte 174, 860 In re 408 v. Board of Health 883 v. Insurance Co. 614 v. McCarthy 83 v. Phelps 854, 883 v. Sacramento 110 Kennedy's Case 161 Kennett's Petition 781, 785 Kennisen v. Beverly 304 Kent v. Bongartz 618 v. Kentland 711 t>. Worthington Local Board 356 Kentish Artillery v. Gardiner 592 Kentucky v. Dennison 39, 40, 41 Kentucky R. R. Tax Cases 19 Kentworthy v. Ironton 363 Kenyon v. Stewart 406 Keokuk v. Packet Co. 65 Keokuk & H. Bridge Co. v. Illinois 691 Keokuk N. L. Packet Co v. Keokuk 247 Keokuk & W. Ry. Co. v. Missouri 397 Ker v. Illinois 81, 40, 41 Kermott v. Ayer 62 Kerr, Matter of 398 v. Dougherty 180 v. Jones 895 v. Kerr 679 v. Kitchen 146, 149 v. Union Bank 80 Kerrigan, Ex parte 454 Kershaw v. Bailey 619 Kersten v. Milwaukee 731 Kerwhacker r. Cleveland, &c. R. R. Co. 788 Ketchara v. McNamara 416 Ketchum v. Buffalo 270 Kettering v. Jacksonville 363, 845 Kettle Riv. Ry. Co. v. Eastern Ry. Co. 763, 767 Keymer, Re 158, 159 Keyser v. Stansifer 660, 661 Kibbe v. Kibbe 41 Kibby v. Chetwood's Adm'rs 146 Kibele v. Philadelphia 362 Kidd v. Pierson 848, 849 Kidder v. Parkhurst 629, 630 Kieffer, Ex parte 854 Kiehe v. South Bend 321 Kies v. Lowery 65 Kilbourn, Matter of 193 v. Thompson 190, 193 Kilburn v. Woodworth 41, 583 Kile v. Montgomery 574 Kiley v. Kansas City 302 TABLE OF CASES. Ixv Page Kilgore v. Commonwealth 217 v. Magee 183 Kilham v. Ward 927 Kilpatrick v. Smith 162 Kimball v. Alcorn 864, 898, 928 v. Grantsville City 74, 721 v. Kimball 679 r. Rosendale 645, 751 Kimble v. Whitewater Valley Canal 819 Kimbro v. Bank of Fulton 623 Kimmish v. Ball 38, 881 Kincaid v. Hardin 305 v. Indianapolis N. G. Co. 791, 804 Kincaid's Appeal 176, 295, 881 Kindel v. Beck & P. L. Co. 180 Kine v. Defenbaugh 121 v. Sewell 630 King v. Belcher 623 v. Burdett 688 v. Cross 20, 43, 605 v. Davenport 285, 878, 884 v. Dedham Bank 132, 392 v. Hayes 506 t7. Hopkins 689 v. Hunter 99, 389 v. Moore 223 v. Mullens 21, 749 v. Patterson 611 v. Portland 732 v. Reed 169 v. Root 623, 628, 642, 644, 656 v. Wilson 34 King, The, v. Abington 650 v. Almon 453 v. Bailie 648 v. Bedford Level 897 v. Campbell 609 w. Carlile 638, 671 v. Chancellor of Cambridge 581 v. Clement 643 v. Clewes 445 v. Cooper 447 v. Cox 84 v. Creevey 650 v. l)e Mannville 497 v. Dunn 445 v. Ellis 443 v. Enoch 445 v. Fisher 638, 640 v. Fletcher 473 v. Foxcroft 893, 931, 932 17. Gardner 361 v. Hagan 452 v. Hawkins 932 v. Howes 447 v. Inhal). of Hardwick 350 v. Inhab. of Hipswell 110 v. Inhab. of St. Gregory 1 10 v. Inhab. of Woburn 350 v. Kingston 445 v. Lee 638 v. Lewis 443 r. Locksdale 110 . Mayor of Stratford on Avon 276 v. Miller 652 v. Monday 932 King, The, v. Newman v. Paine 17. Parry i;. Partridge v. Richards v. River v. Rosewell v. Simpson v. Smith . St. Olaves v. Sutton v. Taylor i?. Thomas v. Tizzard v. Tubbs v. Waddington v. Walkley v. Webb v. Withers v. Woodfall v. Woolston v. Younger Kingley v. Cousins Kingman, Re v. Brockton Page 644 612 932 445 447 443 884 445 443 904 139 671 445 894 424 671, 673 445 443 931 652 671, 673 84 416 131, 267, 697, 713, 741 696 Kingman Co. Com'rs v. Leonard 21 Kingshury's Case 40 Kingsland v. Mayor, &c. 566, 787, 822 Kinkead v. McKee 661 Kinmundy v. Mahan 294 Kinne v. Hinman 689 Kinneen v. Wells 908 Kinney, Ex parte 557 v. Beverley 503 Kinney 's Case 657 Kinsworthy v. Mitchell 748 Kip y. Patterson 283, 285 Kipp v. Elwell 670 Kirby v. Boylston Market 286 v. Pennsylvania R. R. Co. 842 v. Shaw Kirk v. Nowill v. Rhodes v. State Kirkman v. Bird 242, 337, 338, 679 292 911 459 617 Kirkpatrick v. Eagle Lodge 619 Kirthind v. Hotchkiss 18, 20, 568, 679 Kisler v. Cameron 936 Kistler v. State 466 Kistner v. Indianapolis 301 Kittanning Coal Co. v. Common- wealth 707 Klein v. New Orleans 270 v. Valerius 129 Kleinschmidt v. Dumphy 458 Kleizer v. Symmes 619 Klewin v. Bauman 607 Klinck v. Colby 610, 619 Kline v. Kline 684 Kling v. Fries 850 Klingler v. Bickel 878 Klumph v. Dunn 605 Knapp w. Grant 338, 542 v. Thomas 161 Knapp, Stout, &c. Co. v. McCaffrey 23 Kneass's Appeal 149 Ixvi TABLE OF CASES. Page Knee v. Baltimore City P. Ry. Co. 87 Kneedler v. Lane 18 Kneedler v. Norristown 286, 292 Kneeland v. Milwaukee 84, 87, 108, 742 v. Pittsburgh 769 Kneetle v. Newcomb 252 Knight v. Begole 629 v. Foster 608, 644 v. Gibbs 608 Kniper v. Louisville 272 Knisely v. Cotterel 707, 887 Knobloch v. Chicago, &c. Ry. Co. 285 Knoop v. Piqua Bank 395 Knopf v. People 184 Knote v. United States 160 Knoulton v. Redenbaugh 529 Knowles v. People 449, 564 v. Yeates 930 Knowlton v. Moore 92, 684, 708 v. Williams 335, 340, 696 Knox v. Bd. of Education 272 v. Chaloner 861 v. Cleveland 521 v. Rossi 685 Knox Co. v. Aspinwall 323 v. Ninth Natl. Bk. 31, 322 Knoxville v. King 506 Knoxville Iron Co. v. Harbison 877 Knoxville, &c. R. R. Co. v. Hicks 128 Kobs v. Minneapolis 362 Kochersperger v. Drake 708 Koehler v. Hill 60, 194, 195, 892 v. Miller 515 Koenig v. Chicago B. & Q. R. Co. 181, 763 Koerper v. St. P. & N. P. Ry. Co. 828 Koestenbader v. Pierce 825 Kohe v. Lehlback 22 Kohl v. United States 755, 756 Kohlheimer v. State 468 Koontz v. Franklin Co. 388 v. Nabb ' 85 Kosciusco Co. v. Slomberg 290 Koser, Ex parte 676 Koshkonong v. Burton 523 Kountze v. Morris Aqueduct 767, 777 v. Omaha 259 Kraft v. Wickey 584 Kramer v. Cleveland, &c. R. R. Co. 760, 764 v. Kister 478 Kranz v. Mayor, &c. of Baltimore 304 Krebs v. Oliver 606 Kreidler v. State 898 Kreiger v. Shelby R. R. Co. 30 Kreitz v. Behrensmeyer 903, 904, 914, 916, 917, 919 Kremer v. C. M. & St. P. Ry. Co. 827 Kring v. Missouri 375, 381 Krone v. Krone 524 Kroop v. Form an 760 Krueger v. Wisconsin Tel'ne Co. 804 Kuback, Re 279 Kuckler v. People 381 Kuehner v. Freeport 715 Knlm v. Board of Education 267 . Common Council 558 Kuhns v. Kramis Kulp v. Flemming Kundinger v. Saginaw Kunkle v. Franklin Kuntz v. Sumption Kunz v. Troy Kurtz v. People Kuykendall v. Barker Kyle v. Jenkins v. Malin v. Texas & N. O. Ry. Co. L. Page 212 32 548 542 712 362 206, 207, 209, 859 907, 929 372 272 763, 766 Labrie v. Manchester 272 Lacey, Ex parte 287 v. Davis 526 Lackawana Iron Co. v. Little Wolf 114 Lackey v. United States 901 Lackland v. North Mo. R. R. Co. 266, 272, 788, 789 La Croix v. Co. Com'rs 400, 454, 548 Lacy, Ex parte 213, 853 v. Davis 749 v. Martin 162 Ladd v. Rice 478 Laefon v. Dufoe 209 Lafarier v. Grand Trunk Ry. Co. 870 La Fayette v. Bush 296, 783 v. Cox 270, 271, 318, 319 v. Fowler 296, 728, 730 v. Jenners 253 v. Nagle 296 v. Orphan Asylum 741 c. Timberlake 301 La Fayette Plank Road Co. v. New Albany, &c. R. R. Co. 785 Lafayette, &c. R. R. Co. v. Geiger 104, 166 v. Winslow 807 Lafferty v. Huffman 195 v. Schuylkill Riv. E. S. Ry. Co. 788 Lahr v. Metr. El. Ry. Co. 799 Lahr's Case 800 Laing v. Ridney 44 Lake, Matter of 527 Lake Erie, &c. R, R. Co. v. Heath 46, 690 Lake Erie & Western Ry. Co. v. Kokomo 806 v. Com'rs of Seneca Co. 768 v. Scott 785 Lake Pleasanton W. Co. v. Contra Costa W. Co. 769 Lake Roland El. Ry. Co. v. Baltimore 297 L. S. & M. S. Ry. Co. v. Chicago 827 v. Grand Rapids 741 v. Ohio (165 U. S.) 865 v. Ohio (173 U. S.) 852 v. Smith 875 Lake St. El. Ry. Co. v. Chicago 715 Lake Shore, &c. It. R. Co. v. Chicago, &c. R. R. Co. 754, 758, 785 Lake View v. Rose Hill Cemetery 268, 881 v. Tate 289, 290 TABLE OF CASES. Ixvii Page Lake View School Trustees v. People 263 Lamar W. E. L. Co. v. Lamar 318 Lamb v. Lane 120, 818 v. Lynd 189 v. Sehotter 815 Lambert, Re 681 v. Smith 194 Lambertson v. Hogan 137 Lamm v. Chicago M. & St. P. Ry. Co. 828 Lammert v. Lidwell 166, 173 Lancaster v. Barr 669 Lance v. Dugan 42 Lancey v. Clifford 861 v. King County 318, 756 Lander v. Seaver 486 Landers v. Frank St. M. E. Ch. 661 Landis v. Campbell 619 Landon v. Litchfield 396 Lane v. Commonwealth 159 v. Dorman 147, 253, 503 . Nelson 161, 529, 531 v. Spokane Falls & N. R, Co. 424 v. Vick 33 Lanfear v. Mayor 594 Lang v. Lynch 846, 848, 849 Langan i>, Atchison 362 Langdon v. Applegate 85, 216 v. Mayor 787 Lange, Ex parte 473 Langenberg v. Decker 425 Langford v. Fly 517 v. Kamsey Co. 814 v. United States 24 Langhammer v. Munter 903 Langhorne v. Robinson 720 Langworthy v. Dubuque 266, 721 Lanier v. Gallatas 137, 921, 930 Lankford v. Somerset Co. 195, 219 Lanning v. Carpenter 364, 926 v. Christy 630 Lansing v. Carpenter 629 v. Lansing 924 v. Smith 785 v. Stone 52 v. Toolan 302 v. Van Gorder 274 Lantz v. Hightstown 400 Lanzetti, Succession of 208 Lapeyre v. United States 160 La Plaisance Bay Harbor Co. v. Monroe 55 La Porte v. Gamewell 318 Laramie Co. v. Albany Co. 266 Larkin v. Noonan 618 v. Saginaw 302 Lamed v. Wheeler 927 Larrison v. Peoria, &c. R. R. Co. 194, 218 Larson v. Furlong 863 v. Grand Forks 363 Lascelles v. Georgia 41 Lashee v. People 184, 555, 561 Lassiter v. Lee 518 Lasure v. State 382 Latah County v. Peterson 765, 767 Lathrop v. Mills 246 v. Snyder 689 Latless v. Holmes 222 La uck's Appeal 415 Laude v. Chicago, &c. R. R. Co. 97 Lauer v. State 209 Laura, The 161 Laurens v. Elmore 694 Laurence v. Ingersoll 202 Laval v. Meyers 924 Lavalle v. Strobel 62 Law, Ex parte 370, 372 v. People 120 Lawler v. Earle 612 Lawrence, In re 612 v. Born 691 v. Great Nor. R. R. Co. 819 v. Louisville 622 v. Miller 614 v. Nelson 28 Lawrenceburg v. Wuest 280 Lawson v. Hicks 633 v. Jeffries 62, 138, 660 Lawton v. Steele 22, 831, 879, 885 v. Waite 624 Lawyer v. Cipperly 660 Lay r. Sheppard 633, 653 Layton v. New Orleans 269, 336, 341 Lea v. Lea 80 v. White 630, 633 Leach, Re 130 v. Money 434 v. People 897, 898 Leadville Coal Co. v. McCreery 27 League v. Journeay 880 Lea veil v. Western U. T. Co. 690 Leaven worth v. Duffy 296 v. Norton 272 v. Rankin 324 Leaven worth Co. v. Lang 712 v. Miller 167, 325 Leavitt v. Canadian P. Ry. Co. 570 v. Watson 751 Lebanon v. Olcott 777 Lebanon Sch. Dist. v. Female Sem. 507 Le Barron v. Le Barren 66 Le Claire v. Davenport 284, 887 Le Due v. Hastings 739 Lee v. Flemingsburgh 310 v. McClelland 423, 485 u. Minneapolis 296 ;. Murphy 161 . Pembroke Iron Co. 786 v. Sandy Hill 356, 362 v. Springfield Water Power Co. 8^7 v. State 69, 468 v. Rturges 738 v. Tillotson 251 Leeds v. Camden & A. Ry. Co. 826 Leep v. St. Louis I. M. & S. Ry. Co. 672 Leeper v. State 262 v. Texas 14, 22, 457 Leefe, Matter of 594 Lefever v. Detroit 741 Lefferts v. Supervisors 711 Leffingwell v. Warren 34, 521, 523 Legal Tender Case 14 Leger v. Warren 425 Ixviii TABLE OF CASES. Page Legg v. Annapolis 186, 218 Leggett v. Hunter 128, 146 Legislative Adjournment, Re 189 Lehew v. Brummell 574 Leliigh Co. v. Hoflbrt 301 Leliigh Iron Co. v. Lower Macungie 120 Leliigh Valley Ry. Co. v. Common- wealth 404 v. Dover, &c. R. R. Co. 785 v. Pennsylvania 680 Lehigh V. Water Co.'s Appeal 549 Lehigh Water Co. v. Easton 30, 383 Lehman v. McBride 216, 903 Lelm v. San Francisco 304 L'Hote v. New Orleans 21, 884 Leicht v. Burlington 726 Leigh v. State 936 Leisy v. Hardin 846, 847 Leith v. Leith 579 Leland v. Wilkinson 134 Leloup i7. Port of Mobile 689 Lemley v. State 848 Lemmon v. Chicago, &c. R. R. Co. 841 v. People 37 Lemmons v. People 118 v. Wells 605 Lemont v. Jenks 16 Lennon v. New York 516, 517, 531 Lent v. Tillson 22, 588 Lenz v. Charlton 506, 526 Leominster v. Conant 736 Leonard v. Commonwealth 895 v. Wiseman 91 Leprohon v. Ottawa 682 Leroy & W. R. R. Co. v. Ross 825 Les Bois v. Bramel 540 Leslie v. Bonte 82 t>. State 470 Lessley v. Phipps 408 Lester v. State 469 v. Thurmond 633 Levan v. Millholland 588 Levee District No. 9 v. Farmer 781 Levi r. Louisville 718 Levins v. Sleator 153, 156 Levy v. Hitsche 405 t7. State 279, 280 17. Superior Ct. of San Francisco 450 Lewis i 1 . Chapman 610,611 v. Clement 637 v. Commissioners 936 p. Few 622, 624, 644 v. Foster 537 v Garrett's Adm'r 581 v. Hawley 606 v. Lervelling 100 v. Levy 637, 638, 647 17. Lewis 415 t7. McElvain 615, 535 v. Monson 750 17. N. Y. & H. R. Co. 800 v. State 19 V. Thornton 84 v. Walter 637 v. Webb 137, 152, 237, 521, 559 Lewis Adm'r of Lewis v. Dunne 211, 216 Lewis's Appeal Lexington v. Butler v. Long v. McQuillan's Heirs v. Thompson Page 128, 237 321 822, 823, 824 717, 732 65, 240, 244 Lexington, &c. R. R. Co. v. Apple- gate 791 Ley man v. Latimer 606 Libby v. Burnham 749 License Cases 690, 831, 832, 845, 850, 881 License Tax Cases 238. 832, 846, 851 Lieberman v. State 454, 558 Life Association v. Assessors 111 Ligat v. Commonwealth 817 Lightburne v. Taxing District. 713 Liles v. Caster 629 Lillard v. State 474 Lima v. Cemetery Ass. 741 Limestone Co. v. Fagley 569 v. Rather 114 Lincoln v. Alexander 141, 145 17. Boston 302, 357 v. Com. 804, 827 v. Davis 752 17. Hapgood 904, 927 v. Iron Co. 321 v. Smith 46, 458, 591, 846, 849, 850 ?;. Tower 42 Lincoln Park, Re 815, 817 Lindenmuller v. People 859 Lindholm v. St. Paul 363 Lindsay v. Commissioners 228 Lindsay & P. Co. v. Mullen 21, 862 Lindsey v. Hill 181 v. Smith 606 Lindsley r. Coats 52 Lindstrom v. Bd. of Canvassers 900 Lindzey v. State 381 Linehan, In re 881 Liness v. Hesing 925 Linford v. Ellison 28 v. Fitzroy 439 Lining v. Bentham 454 Linn v. Chatnbersburg 696 i7. Minor 87 Linney v. Maton 607 Lin Sing v. Washburn 557,690, 725, 858 Linsley v. Hubbard 146 Linton v. Stanton 31 Lipes 17. Hand 590 Lippman v. People 425 Lisbon v. Bath 745 Litchfield v. McComber 406 v. Vernon 698 Litowich v. Litowich 680 Little, Re 41 v. Fitts 575 y. Madison 305 v. Merrill 275 t>. Smith 85, 86 Littlefield o. Brooks 903 r. State 283 Littlejohn v. Greeley 628 Little Miami R. R. v. Collett 823 v. Dayton 758 Little Rock v. Katzenstein 729 TABLE OF CASES. Ixix Page Little Rock v. Willis 304 Little Kock, &c. K. R. Co. v. Payne 527, 841 v. Brooks 861 v. Hanniford 566 v. McGehee 822 v. Woodruff 822 Littleton v. Richardson 581 v. Smith 586 Littlewort v. Davis 262 Live Stock, &c. Association v. Cres- cent City, &c. Co. 863, 854 (See Slaughter House Cases.) Liverman v. Roanoke & T. Ry. Co. 827 Livermore v. Waite 96 Liverpool & London & Globe Ins. Co. v. Bd. of Assessors (44 La. Ann.) 720 t>. Bd. of Assessors (51 La. Ann.) 719 Liverpool & L. L. & F. Ins. Co. v. Massachusetts 687 Livingston v. Los Angeles Sup. Ct. 487 . Mayor, &c. N. Y. 735 v. New York 717, 728, 735 v. Paducah 709 v. Rector, &c. 661 . Van In gen 49 Livingston Co. v. Darlington 337, 704 v. Weider 337, 704 Livingston's Lessee v. Moore 46 Lloyd v. Chambers 570 v. Matthews 39 v. New York 357, 361, 362 Loan Association v. Topeka 125, 317, 678, 700, 705 Lobrano v. Nelligan 146 Locke o. Bradstreet Co. 611 v. Dane 374, 531 v. Speed 130 Locke's Appeal 173 Lockhart v. Horn 522 w. Locke 42 v. Troy 209 Lock Haven Bridge Co. v. Clinton County 755 Lock port v. Gaylord 212 Lockwood, Ex parte 32, 568, 890 v. St. Louis 741 v. Wabash R. Co. 298 Lodi Tp. v. State 183 Loeb v. Attica 281 v. Columbia Tp. Trustees 32 v. Mathis 86 Loeffner v. State 437 Loesch v. Koehler 570 Logan v. Matthews 859 v. Onachita Parish 121 v. Pyne 272, 285 v. Stogdale 765 u. United States 23, 568 r. Walton 674 Logansport v. Dick 362 Logue v Commonwealth 434 Lombard v. Antioch College 618 Lommen r. Minneapolis 458 Lonas v. State 557 Page Londener v. Lichtenheim 677 London, Mayor, Case of 490 Londonderry v. Andover 276 Long r. Fuller 769, 814 17. Long 927 v. Peters 610 v. State 837, 885, 889 v. Taxing District 287 Long's Case 445 Long Island R. R. Co., Matter of 933 Long Island W. S. Co. v. Brooklyn, 393, 769 Longworth v. Worthington 653 Lonthan v. Com. 603 Look v. Dean 829 Looker v. Maynard 394 Loomis v. Colemau 262 v. Jackson 61, 929 v. Wadhams 588 Lord v. Chadbourne 615 v. Litchfield 396, 547 v. Steamship Co. 12 v. Thomas 404 v. Wilcox 82 Lorenzen, Ex parte 282,510 Lorillard v. Clyde 83 v. Monroe 355 Loring v. Hildreth 609 i\ Marsh 34 Lorman v. Benson 52, 861 t7. Clarke 48 Los Angeles v. Los Angeles Water Co. 386, 405 v. Water Co. 391 Los Angeles Co. v. Reyes 765 v. Spencer 882 Los Ass'n, Re 439 Lothrop v. Commercial Bank 180 v. Steadman 74, 139, 149, 165, 887 Lott v. Morgan 691 v. Ross 745 Loughbridge v. Harris 773, 775 Lougher v. Soto 183 Loughlin v. McCauley 25 Louisiana v. Bd. of Assessors 740 v. Jumel 24 v. New Orleans 20,387,411 v. Pilsbury 405 v. Police Jury 387 17. Texas 23 Louisiana C. &. I. Co. v. I. C. Ry. Co. 266 Louisiana State Lottery v. Richoux 194 Louisville v. Bank of Louisville 396 v Commonwealth 361 17. Hyatt 304, 717 17. Rolling Mill Co. 296 v. University 345 Louisville N. A. & C. Ry. Co. v. Wallace 674 Louisville N. O. & T. Ry. Co. t;. Blythe Louisville, &c. Co. v. Ballard Louisville, &c. R. R. Co. v. Baldwin v. Burke 147 209 19, 857 844 Ixx TABLE OF CASES. Page Louisville, &c. R. K. Co. v. Caster 843 v. Davidson 167 v. Palmes 35, 396 v. State 707, 743, 840 Louisville & N. Ry. Co. v. Baldwin 844 v. Com. (99 Ky.) 1(54 v. Com. (104 Ky.) 162 v. County Court 926 v. Enbank 856 v. Ingram 82!) v. Kentucky (99 Ky.) 164, 875 v. Kentucky (161 U. S.) 838, 852 v. Kentucky (183 U. S.) 856 v. Schmidt 20 v. Thompson 825 v. Whitely 758, 763, 806 Louisville City R. R. Co. v. Louis- ville 295, 299 Louisville Gas Co. v. Citizens' Gas Co. 35, 402 Louisville Ry. Co. v. Foster 811 Louisville Safety U. & T. Co. v. Louisville & N. R. Co. 574 Louisville Water Co. v. Clark 396 c. Kentucky 396 Loumand v. New Orleans 415 Love v. Moynahan 485 v. Raleigh 302 r. Shartzer 553 Loveland v. Detroit 310 Lovell v. Leeback 425 Lovingston v. Trustees 710 v. Wider 339, 543, 703 Low, Ex parts 706 v. Blanchard 86 v. Dunham 113 v. Galena & C. U. R. R. Co. 780 17. Towns 162 Low Rees Printing Co. 570 Lowe, Re 562 U. Commonwealth 99, 389 r. Harris 632 v. Kansas 16, 22 Lowell w. Boston 243, 317, 700 r. Hadley 113, 860 17. Oliver 330, 331 Lowenberg v. People 473 Loweree v. Newark 814, 816 Lowndes v. Town of Huntington 32 Lowndes Co. v. Hunter 247 Lowry v. Francis 386 v. Rainwater 431 Lucas v. Case 619, 661 v. Sawyer 514 r. Tucker 632 Ludeling v. Chaffe 27, 30 Ludlow v. Johnson 516 Ludlow's Heirs v. Johnson 89 Ludwig v. Cramer 606, 637 v. Stewart 523 Luehrman v. Taxing District 259, 267 Lunian v. Hitchins Bros. Co. 569 Lumbard v. Aldrich 180 Lumsden 17. Cross 526, 700, 717, 730 Lund 17. New Bedford 760 Lunt's Case 237 Page Luques v. Dresden 312 Lusher v. Scites 257 Luther v. Borden 46, 58, 59, 892 Luxton v. North River Bridge Co. 756 Lycoming v. Union 539 Lyddy v. Long Island City 217 Lydecker v. Palisade Land Co. 748 Lyle v. Richards 62 Lyman i?. Boston & Worcester R. R. Co. 841 v. Martin 902 v. Mower 517 Lyme v. Turner 356, 361 Lynch, Ex parte 707 v. Brudie 553 v. Forbes 777, 779 v. Hoffman 372 v. New York 296, 302 v. State 465, 480 Lynchburg v. Slaughter 322 Lynde v. County 319 v. Lynde 44 Lyon v. Circuit Judge 85 v. Jerome 294, 756, 778, 814 f. Lyon 580 r. Manhattan Ry. Co. 424 17. McDonald 804 v. Morris 258, 517 Lyon's Case 613 Lyons v. Chamberlain 324 Lythe v. Lansing 319, 320 M. Mabry v. Baxter 407 MacDougall v. Knight 687 Machette w. Wanless 478 Machine Co. v. Gage 693 Machir v. Moore 924 Mackaboy v. Commonwealth 687 Mackay c. Ford 632 Mackel v. Rochester 442 Mackin v. United States 436 Macon v. Hill 296 v. Jones 745 . Macon & Western R. R. Co. 272 v. Patty 717, 860 Macon & A. Ry. Co. v. Riggs 766 Macon & Western R. R. Co. v. Davis 237, 253 Macreiuly v. Wolcott 485 Macy v. Indianapolis 783 Mad'dox, Re 559 v. Graham 80 Maddrey v. Cox 267 Madison v. Daley 762 Madison Co. v. People 743 Madison & Ind. R. R. Co. v. Norwich Savings Society 321, 324 v. Whiteneck 237,841 Madisonville v. Bishop 306 Magee v. Commonwealth 730 17. Overshiner 804 , v. Supervisors 936 v. Young 614 TABLE OF CASES. Ixxi Magoun v. Illinois Tr. & Sav. Bank 663, 684, 708 Magruder, Ex parte 372 v. Governor 162 Maguire, Matter of 890 v. Maguire 403, 579, 580, 584, 585 Magurn v. Magurn 680, 584 Mahala v. State 469 Malian v. Cavender 690 Maher v. People 434, 450, 466 Mahomet v. Quackenbush 208 Mahon v. Justice 39 v. New York Central R. R. Co. 791 Mahoney v. Comry 702 Mahony v. Bank of the State 278 Mahony's Estate, Re 16, 30 Maiden v. Ingersoll 25 Maier, Ex parte 880 Maine v. Grand Trunk Ry. of Canada 692 Maine Water Co. v. Waterville 742 Mairs v. Manhattan, &c. Ass. 786 Maize v. State 163, 173, 237, 247 Malcolmson v. Scott 39 Malison, In re 439 Mallett o. Nortli Carolina 375, 382 Mallory ,: Hiles 223 v. Pioneer Press Co. 644 Malone v. Clark 588 v. Stewart 607 Maloy v. Marietta 75, 717, 728, 745, 746 Maltus v. Shields 702 Manchester, Matter of 40 W.Massachusetts 177,852,879 Maney, Re 40 Mankato v. Arnold 454 v. Fowler 283, 709 Man ley v. Manley 679, 584 Manly v. Raleigh 265 v. State 92, 93, 102, 459 Manning v. Van Buren 262 v. Weeks 22 Mannix v. Purcell 660 Mansfield v. Mclntyre 679, 584 v. Moore 356 Mansfield, &c. R. R. Co. v. Clark 777 Mansion v. Mclntosh 900 Manufacturer's G. & O. Co. v. Indi- ana N. G. & O. Co. 788, 858 Mapel v. John 880 Mapes v. Weeks 644 Marbury v. Madison 78 March v. Commonwealth 279 r. Portsmouth, &c. R. R. Co. 757 Marchant v. Langworthy 113 . Pa. Ry. Co. 16, 22 Marcum v. Ballot Com'rs 899 Marcy v. Oswego 321 Marietta v. Fearing 291, 389 Mariner v. Dyer 453 Marion v. Epler 717, 728 v. State 177, 381, 382 Marion, &c. Ry. Co. v. Champlin 707 Mark v. State 224 258 Markey v. Queen's County 305 Market v. St. Louis 363 Marks, Ex parte 161 Marks v. Baker v. Morris v. Purdue University Marlatt v. Silk Marler v. State Marlow v. Adams Marmet v. State Page 628 52 182, 337, 704 33 451 553 555 Marquette Co. v. Ishpeming Treas. 355 Marron, In re 691 Marsh v. Chesnut 112 v. Ellsworth 629, 634 v. Fulton Co. 320 r. New York & Erie R. R. Co. 842 v. Nichols S. & Co. 26 v. Putnam 417 v. Supervisors 324, 706 Marshall v. Baltimore & Ohio R. R. Co. 198 v. Donovon 232, 423 v. Grimes 256 867 v. Gunter 630, 633 v. Harwood 193 v. Kerns 926, 935, 937, 940 v. Silliman 339, 543 v. Vicksburg 691 Marshall Co. Court v. Galloway Co. Court 268 Marshalltown v. Blum 693 Marten v. Van Schaick 644 Martens v. People 288 Martin, Ex parte 687 v. Barbour 751 v. Bigelow 52 v. Broach 209 v. Brooklyn 357 v. Dix 237, 267, 721 v. Elliot 424, 568 v. Hughes 408 v. Hunter's Lessee 26, 30, 45, 103 v. Ingham 131, 162 v. Mott 74 v. State 851 v. Stovall 44 v. Tyler 318 v. Waddell 33 v. Wade 924 Martin's Appeal 149 Marx, Ex parte 456 v. Hanthorn 111, 526, 750 Mary Smith's Case 444 Mason, Matter of 496 v. Bridge Co. 664 v. Cumberland 297 v. Haile 407, 410 v. Harper's Ferry B. Co. 812, 822 v. Kennebec, &c. R. R. Co. 819, 826 v. Lancaster 711 v. Mason 644 v. McLeod 13 v. Messenger 582 i>. Missouri 16, 32 v. Spencer 786 v. State 893 v. Wait 128, 148 Massachusetts v. West U. Tel. Co. 691 Massuere v. Dickens 606 Ixxii TABLE OF CASES. Page Masten v. Olcutt 82 Masteron v. Mt. Vernon 362 Mather v. Chapman 633, 643 v. Hodd 687 v. Ottawa 317, 700 Mathews, Ex parte 86 v. Beach 638 v. Zane 223 Mato, Ex parte 144 Matre v. Sankey 45 Matter of Election Law 923 Matthews v. Board of Education 180 v. Densmore 688 v. Murphy 245, 284 v. St. Louis & S. F. Ry. Co. 150, 836, 841 Mattox v. U. S. 451 Mauch Chunk v. McGee 207 Maul v. State 376 Mauldin v. Greenville (33 S. C.) 696 t7. Greenville (42 S. C.) 717 17. Greenville (53 S. C.) 717 Maull v. Vaughn 408 Maulsby v. Reifsnider 633 Mauran v. Smith 162 Maurer v. People 452 Maurice v. Worden 631 Maxey v. Loyal 408 v. Williamson Co. 322 17. Wise 537 Maxmilian v. New York 357 Maxwell v. Com'rs Fulton Co. 591 t7. Dow 14, 38, 47, 454, 505 v. Goetchius 149, 153, 545 v. Jonesboro 285 v. Newbold 30 7. Reed 252 v. Stewart 43 May v. City of Boston 826 t7. Fletcher 614 t7. Holdridge 641 v. Logan Co. 524 t7. Rice 188 t7. Tenney 32 May & Co. v. New Orleans 687 May berry v. Kelly _ 231 Mayer, Ex parte 547 17. Schleichter 607 Maynard v. Bd. of Canvassers 922, 932 v. Hill 64, 156, 403 Maynes v. Moore 406 Mayo v. Freeland 935 v. Sample 620 v. Springfield 304 v. Washington 318 v. Wilson 62 Mayor, Matter of (99 N. Y.) 312 v. Cooper 29 v. Morgan 190 Mayor, &c., Matter of 741 v. Horn 137, 138 v. Maberry 860 v. The Queen 128, 174, 832 . Yuille 283, 284, 286, 287, 888 Mayor of Annapolis v. State 206 Mayor of Athens v. Georgia R. R. Co. 291 Page Mayor of Baltimore v. Hussey 694 v. State 234 Mayor of Cartersville v. Lanhara 860 Mayor of City of New York, Re 806 Mayor of Florence, Ex parte 89 Mayor of Hudson v. Thorne 283, 288 Mayor of Hull v. Horner 276, 277 Mayor of Huntsville v. Phelps 284 Mayor of London's Case 490 Mayor of Lyme v. Turner 356, 361 Mayor of Macon v. Macon & W. R. R. Co. 272 Mayor of Memphis v. Winfield 281, 288 Mayor of Mobile v. Allaire 279, 280 v. Dargan 49, 703, 717 v. Kimball 688, 856, 858 v. Rouse 280 Mayor of New York v. Furze 356 v. Hyatt 280 v. Lord 878 v. Nichols 279, 281, 291 v. Second Ave. R. R. Co. 283 Mayor of Savannah v. Hartridge 271 v. Spears 304 v. State 204, 247 Mayor of Wetumpka v. Winter 167 Mayrant v. Richardson 628 Mays v. Cincinnati 266, 279, 283, 745 v. Commonwealth 458 Maysville & B. S. Ry. Co. v. Ingraham 815 Maysville v. Wood 664 McAdoo v. Benbow 91 McAfee v. Covington 408 McAfee's Heirs v. Kennedy 773 McAlister v. Clark 286 McAllister v. Detroit Free Press Co. 644 v. Hoffman 924 McAndrews v. Hamilton County ' 300 McArthur v. Goddin 615 McAuley v. Boston 363 McAunich v. Mississippi, &c. R. R. Co. 183, 209 McBean v. Chandler 711, 730 v. Fresno 318 McBee v. Fulton 637, 647, 648 McBrayer v. Hill 607 McBride v. Chicago 717 McCabe, Ex parte 425 McCafferty v. Guyer 99, 372 McCain v. Des Moines 31 McCall v. California 179, 690 v. Peachy 575 McCampbell v. State 459 McCann v. Com. 849 v. Eddy 876 v. Sierra Co. 815 McCardle, Ex parte 138, 258, 644, 548 McCarroll v. Weeks 506 McCarthy, Matter of 481 v. Boston 305 v. Commonwealth 183 v. Froelke 894 v. Hoffman 540 McCarver, Ex parte 289 McCaslin v. State 209 McCauley v. Brooks 79, 411 TABLE OF CASES. Ixxiii McCauley v. Hargroves 42, 80 McClain, Ex parte 827 v. People 817 McClary v. Lowell 859 McClatchy v. Superior Court of Sac- ramento Co. 569 McClaughry v. Wetmore 631 McClellan v. Chipman 27 McClinch v. Sturgis 118, 194 McCloskey v. Kreling 878 McCloud v. Shelby 353 McClure v. Oxford 223, 319, 320 v. Redwing 302 McOluskey v. Cromwell 89 McCollum, Ex parte 253 McComas v. Krug 99 McComb v. Akron 296, 784 v. Bell 725 v. Gilkey 146, 147 McConkle v. Binns 656 McCool v. Smith 217 McCormick v. Fitch 707 v. Rusch 414, 515 MeCormick's Est. v. Harrisburg 730 McCoull v. Manchester 362 McCoy v. Grandy 653 v. Huffman 485 v. Michew 531 McCracken v. Hay ward 404, 406, 409, 412 McCracken Co. v. Merc. Trust Co. 522 McCready r. Sexton 527, 751 v. Virginia 37 McCrowell v. Bristol 293 McCuen v. Ludlum 605 McCulley v. State McCulloch v. Maryland 25, 43, 98, 679, 681, 682 v. State 116, 193, 195, 200, 246, 258 McCullough v. Brown 848 v. Virginia 31, 36, 324, 403 McCully v. Tracey 269 McCutchen v. Windsor 262 McDade v. Chester 301 McDaniel v. Correll 137, 151, 546 McDermott v. Evg. Journal Co. 631 McDermott's Appeal 579 McDevitt v. Peoples N. G. Co. 804 v. St. Paul 301 McDonald v. Hinton 900 v. Massachusetts 375 v. Mayor, &c. 311 v. People 375 v. Redwing 757, 878 v. Schell 691 v. State 473, 844 v. Woodruff 644 McDonogh v. Millaudon 31 McDuffee v. Sinnott 622 McEldowney v. Wyatt 622 McElmoyle v. Cohen 42 McElrath v. United States 47 McElroy v. Albany 305 McElvain v. Mudd 685 McElvaine v. Brush 46, 473 McFadden v. Commonwealth 408 McFarland v. Butler 411, 518 Page McFarland v. State 467 McGahey v. Virginia 31, 403 McGatrick r. Wason 675 McGear v. Woodruff 454 McGee v. Mathis 395 v. San Jose 387 McGeehan v. State Treasurer 530 McGehee v. Mathis 717, 736, 868 v. McKenzie 640 McGhee v. State 215 McGhee Irr. Ditch Co. v. Hudson 766 McGraw v. Dist. of Columbia 302 v. Marion 693, 887 McGregor v. Cove 848 McGiffert v. McGiffert 578, 579, 580 McGinity v. New York 358 McGinnis v. State 95 v. Watson 661, 672 McGinty v. Carter 691 McGlinchy v. Barrows 430 McGoon v. Scales 683 McGowan v. State 468 McGruder v. State 162, 217 McGuffee v. State 461, 463 McGuire v. Parker 693 v. State 375 McHaney v. Trustees of Schools 529 McHenry v. Alford 706 v. Downer 682 Mclnturf v. State 381 Mclntyre v. McBean 610 McKane v. Durston 22, 38 McKay v. Gordon 42 McKean, Ex parte 40, 492 McKee v. Cheney 198 v. McKee 265, 860 v. People 470 v. Wilcox 95 McKeen v. Delancy 33 McKenna v. Edmundstone 217 v. St. Louis 301 McKenzie v. Moore 218 v. State 437 McKibbin v. Fort Smith 286 McKim v. Odom 266 McKinney v. Carroll 30 v. O'Connor 921, 929 v. Salem 400 v. Springer 621 McKinnon v. Cotner 195 v. People 914 McKinsev v. Squires 690 McKune'r. Weller 114, 908 McLane v. Bonn 376, 644 McLaughlin, Ex parte 469 v. Corry 363 v. Cowley 630, 632 v. South Bend 689 v. State 382 McLaurine v. Monroe 42 M'Lean v. Hugarin 81 v. State 898 McLean Co. v. Humphrey 423 McLeod's Case 493 McLimans v. Lancaster 644 McLure v. Melton 405 Ixxiv TABLE OF CASES. McMahon v. Savannah 906 v. St. Louis, &c. Ry. Co. 811 McManus v. Carmichael 861 v. McDonough 590 v. O'Sullivan 30 v. State 883 Me Masters v. Commonwealth 728 McMatli v. State 464 McMerty v. Morrison 522 McMillan v. Birch 619, 632 v. Boyles 542 v. Lee County 270 v. McNeill 45, 417 McMillen v. Anderson 20, 505 McMinn v. Whelan 750 McMullen v. Hodge 109 McNaughton Co. v. McGirl 687 McNealy, Ex parte 459 McNeer v. McNeer 512 McNeill, In re 189 v. Somers 895 McNichol i7. U. S., &c. Agency 136 McNiel, Ex parte 688 v. Commonwealth 220 McNulty v. California McPherson v. Blacker v. Chebanse v. Foster v. Leonard 22, 31, 456, 505 17, 932 279, 883 271, 320, 324 118 McQuigan v. Delaware L. & W. Ry. Co. 424 McQuillen v. Hatton 766, 775 McRae v. Americus 280 v. Grand Rapids L. & D. Ry. Co. 454 McReynolds v. Smallhouse 207, 864, 865 McSorley's Liquors 591 McSpedon v. New York 311 McTwiggan v. Hunter 712, 722, 748 McVeigh v. United States 681, 582 Meacham v. Dow 924 v. Fitchburg R. R. Co. 824 Mead v. Acton 310, 333 v. County Treasurer 897 v. Derby 363 v. Larkin 581 v. McGraw 87 v. Walker 590 Meade v. Beale 34 v. Deputy Marshal 681 Meadowcraft v. People 526 Meagher v. Storey Co. 259 Mears v. Commissioners of Wilming- ton 356 Mechanics' & Farmers' Bank v. Smith 291 Mechanics' & Traders' Bank v. De- bolt 176, 385 v. Thomas 395 Mechanics', &c. Bank Appeal 406 Mechanics' Bank v. Smith 104 Meddock v. Williams 538 Medford v. Learned 628, 529 Meeker ?. Van Rensselaer 851, 878 Meguire v. Corwin 198, 924 Meighen v. Strong 640 Page Meister v. People 483 Vlelick v. Washington 284 Melizet's Appeal 156, 514 Mellen v. Western R. R. Corp. 784 Melvin v. Weiant 605 Memphis v. Bolton 825 v. Fisher 660 v. Water Co. 562 v. Winfield 281, 288 Memphis, &c. R. R. Co. v. Payne 817 Memphis & C. Ry. Co. v. Birming- ham S. & T. Ry. Co. 807 Memphis & L. R. R. R. Co. v. R. R, Com'rs 397 Memphis City Bank v. Tennessee 397 Memphis Freight Co v. Memphis 764 Memphis Gas Light Co. v. Shelby Co. 396 Menard Co. r. Kincaid 516 Menasha v. Hazard 321 Mendel v. Wheeling 301 Mendota v. Thompson 363 Menges v. Wertman 631, 533, 536 Menken v. Atlanta 281, 850 Menserdorff v. Dwyer 676 Mercantile Bank v. Tennessee 397 Mercer . Me Williams 813 Merchants' Bank v. Bergen Co. 323 v. Cook 351 Merchants' Bank of Danville v. Bal- lon 416, 516 Merchants' & M. Nat'l Bank v. Penn- sylvania 34, 682, 712 Merchant, Union Barb-wire Co. v. C. R. I. & P. Ry. Co. 816 Meredith v. Christy 895 v. Ladd 198 Merivale v. Carson 645 Meriwether v. Garrett 267, 268, 345 Merrick v. Amherst 313, 337, 704 v. Giddings 192 v. Van Santvoord 178 Merrifield v. Worcester 303, 304, 362 Merrill v. Eastern R. R. 844 v. Humphrey 711 v. Monticello 319, 322 v. Plainfield 309, 311 v. Sherburne 134, 137, 611 Merritt v. Cameron 105 v. Farris 743 Mershon v State 449 Merwin v. Ballard 629 Merz v. Missouri Pac. Ry. Co. 840 Meshmeier v. State 163, 173, 248, 257, 849, 850 Messenger r. Mason 30 Mestayer v. Corrige 283 Metcalf v. Gilmore 83 Methodist Church v. Ellis 740 w. Wood 661 Meth. Ep. Ch. v. Wyandotte 304, 783 Metropolitan Board v. Barrie 400, 845, 846 v. Heister 286, 853, 854, 883 Metropolitan Gas Light Co., Matter of 209, 212 TABLE OF CASES. Ixxv Page Metropolitan Nat'l Bk. v. Claggett 29 Metropolitan Police Board v. Wayne Co. Auditors 334 Metropolitan Tel., &c. Co. v. Colwell L. Co. 787 Metropolitan W. S. El. Ry. v. John- son 827 Metzger, Matter of 495, 496 Mewherter v. Price '209, 213 Meyer v. Berlandi 133, 249, 508 v. Muscatine 319 v. Richmond 21 v. San Diego 592 Meyers v. Baker 886 v. Chicago, R. I. & P. Co. 285 Miami Coal Co. o. Wigton 762 Michales v. Hine 589 Michigan State Bank v. Hastings 392 Michigan Sugar Co. v. Aud. Gen'l 697 Michigan Telephone Co. v. St. Joseph 130, 132, 392 Middlebrook v. State 453 Middlebrooks v. Ins. Co. 41 Middleport v. Ins. Co. 212 Middleton v. Lowe 162 v. Middleton 240 v. St. Augustine 319, 696 Middletown, Matter of 202 Re 250 Mifflin v. Railroad Co. 792 Mikesell v. Durkee 799 Milam Co. v. Batcman 344 Milan & R. P. R. Co. v. Husted 395 Milan M. & M. Co. v. Gorton 180 Milburn, Ex parte 495 v. Cedar Rapids, &e. R. R. Co. 797 Miles v. Albany 307 v. Caldwell 33 . State 381 v. Worcester 304 Milhau v. Sharp 272, 291, 299, 306, 789 Millard v. Board of Education 664 v. Webster City 296 Millaudon v. Gallagher 750 Milledgeville v. Cooley 363 Miller, In re 41, 375, 498 v. Ammon 850 v. Birch 884 v. Clark 900 v. Commonwealth 456, 487 v. Craig 880, 883 v. Dunn 88 v. English 661 v. Gable 660 v. Graham 543, 546 v. Grandy 333, 701 v. G. B. W. & St. P. Ry. Co. 803 v. Hixson 529 r. Hurford 220 v. Johnson 61 v. Jones 213 v. Max 121 v. Miller 513 v. New York & Erie R. R. Co. 838, 839 v. Nicholls 30 Page Miller v. Parish 607 v. People 444 v. Rucker 927 v. State (3 Ohio) 116, 193, 195, 200, 214, 231 v. State (8 Ind.) 469 v. State (149 Ind.) 454, 472, 473, 589 v. State (15 Wall.) 394 v. St. Paul 301 v. Texas 46, 879 o. Troost 772 Miller's Case 652 Miller's Executor v. Miller 583 Miller's Exec'rs v. Swann 32, 834 Millett v. People 659 Millholland v. Bryant 911 Milligan, Ex parte 436, 454 Milligan's Appeal 922 Milliken v. City Council 286 v. Pratt ' 834 Mills, Matter of 481 r. Brooklyn 302, 356, 361 v. Charleton 209, 210, 265, 338, 542, 700 v. Duryea 43 v. Gleason 271, 272, 750 v. Jefferson 225 v. Missouri 291 v. St. Clair Co. 567 v. United States 782 v. Williams 266, 389, 392, 393 Milne v. Davidson 883 Milner v. Pensacola 267 Milward v. Thatcher 894 Milwaukee v. Gross 286, 854 Milwaukee County v. Isenring 194 Milwaukee Gaslight Co. v. Schooner Gamecock 54 Milwaukee Ind. School v. Super- visors 423, 589 Milwaukee Town v. Milwaukee City 268 Miner v. Detroit Post & Tribune 629, 650 v. Markham 192 Miners' Bank v. Iowa 54 v. United States 149, 392 Minneapolis v. Tanney 697 v. Wilkin 648, 594 Minneapolis & N. EL Co. v. Traill Co. 508 Minneapolis & St. L. Ry. Co. v. Beckwith 18, 832 v. Emmons 841 v. Herrick 18 . Minn. W. R. Co. 758, 806, 807 Minneapolis Gas Light Co. v. Minne- apolis 294 Minnesota v. Barber 854, 855 v. Young 144 Minnetonka Lake Improvement, Re 782 Minor v. Board of Education 665 v. Happersett 18, 66, 57, 104, 568, 901 Minot v. West Roxbury 198 o. Winthrop 708 Misch v. Russell 926 Miskimins, Ex parte 442 Ixxvi TABLE OF CASES. Page Miss., &c. Boom Co. v. Prince 212 Miss. & R. R. Boom Co. v. Patterson 827 Mississippi Mills v. Cook 120, 706 Mississippi R. R. Co. v. McDonald 392 Mississippi Society v. Musgrove 392 Missouri v. Andriano 30 v. Lewis 14, 19, 555 v. Murphy 207 Missouri K. & T. Ry. Co. v. Haber 854 v. McCann & Swizer 34, 852 v. Simonson 21 Missouri K. & T. Trust Co. v. Krum- seig 833, 836 Missouri Pac. Ry. Co. v. Finley 881 v. Fitzgerald 27 v. Houseman 818 v. Humes 18, 528, 841 v. Mackey 18, 20, 556 v. Nebraska Bd. of T. 22, 125, 774, 804, 876 v. Porter 827 v. Richmond 620 v. Sherwood 852, 853 Mitchell v. Burlington 319 v. Clark 23, 383 v. Deeds 631, 635 v. Harmony 764 v. Illinois, &c. Coal Co. 121, 760 v. Negaunee 696 v. Rome 296 v. State 470 v. St. John 589 v. Tibbetts 177 v. Williams 881 Mitchell's Case 478 Mithoffv. Carrollton 769 Moberly v. Preston 607 Mobile v. Allaire 279, 280 v. Dargan 49, 703, 717 v. Kimball 688, 856, 858 v. Rouse 280 v. Watson 268, 415 Mobile & Ohio R. R. Co. v. Dis- mukes 876 v. Postal T. C. Co. 828 v. State 218, 231, 246, 251 v. Tennessee 31, 396 Mobile Trans. Co. v. Mobile 517 Moers v. City of Reading 104, 167 Moffatt v. Hardin 478 Mohan v. Jackson 895 Mohawk & Hudson R. R. Co., Matter of 114 Mohawk Bridge Co. v. Utica & Sche- nectady R. R. Co. 667 Mohr, In re 40 Mok v. Detroit, &c. Association 216 Moletor v. Sinnen 425 Monday v. Hah way 130 Monette v. Guilbert 508 Money v. Leach 428 Monford v. Barney 691 Monk v. Corbin 623 Monmouth v. Leeds 111 Monongahela Navigation Co. v. Coons 781, 786 Page Monongabela Navigation Co. r. United States 756, 778, 817, 827 Monopolies, Case of 401, 662 Monroe v. Collins 99, 249, 564, 906, 908 927 v. Hoffman 286, 878 Mon Suck v. Sears 850 Montana Catholic Mission v. L. & C. County 740 Montana Centr. Ry. Co. v. Helena, &c. Co. 807 Montana Co. v. St. Louis Mining & M. Co. 424, 568 Montclair v. New York, &c. Ry. Co. 839 v. Ramsdell 206 Montee v. Commonwealth 464 Montery Co. v. Gushing 765 Montgomery v. Deeley 605 v. Hobson 638 v. Kasson 386, 402 o. Meredith 631 v. Montgomery Water Works 311 v. Santa Ana & W. Ry. Co. 803 v. State 464, 655 v. Townsend 296, 811, 812 v. Waseni 749 Montgomery B. B. Wks. v. Gaston 194 Montgomery Co. v. Elston 683 Montgomery Co. Fiscal Ct. v. Trimble 202 Monticello v. Banks 730 Monticello Bank v. Coffin's Grove 262 Monticello D. Co. v. Mayor of Balti- more 231 Montjoy v. Pillow 649, 567 Montpelier v. East Montpelier 267, 268, 345, 391 Montpelier Academy v. George 267, 268 Montross v. State ' 129, 166, 468 Mooar v. Harvey 905 Moodalay v. East India Co. 360 Moody v. State 186, 193, 194, 218 v. Trimble 900 Moog v. Randolph 194 Moon v. Atlanta 812 v. Durden 97 v. Stevens 692 Moor v. Luce 621 Moore, Ex parte 212 Matter of 481 v. Atlanta 296 v. Cass 647 v. Detroit Locomotive Works 676 v. Greenhow 406 w. Holland 407 r. Houston 237 r. Indiana 363, 400 v. Irby 611 17. Kent 614 t7. Kessler 935 v. Maxwell 146 v. Meagher 608 v. Missouri 472 t7. Monroe 666 17. Moore 685 r. Napier 251 v. Nat'l Com. K. & L. of S. 507 TABLE OF CASES. Ixxvii Moore v. New Orleans v. People v. Quirk . Railway Co. v. Sanborne v. Sanford v. Smaw v. State v. Stephenson v. Strickling Moores v. Nat. Bank Moose v. Carson Page 250 46, 281 684, 685 760, 761 861, 862 775, 777 763 374, 406, 438, 467 657 389 34 298 Moran v. Commissioners of Miami Co. 321 v. New Orleans 691 v. Pullman Pal. Car Co. 305 v. Ross 777 v. Sturges 25, 27 Moreau v. Detchamendy 36 Morehead v. State 445 Morehouse Parish i;. Brigham 710 Morey v. Brown 881 v. New fane 355, 357 Morford v. Unger 166, 206, 209, 222, 546 697, 704, 720 Morgan, Re 66, 570, 891 v. Beloit 345 v. Bufflngton 161 v. Cree 176 v. Des Moines, &c. Ry. Co. 797 v. Elizabeth 711 v. Gloucester 908 . King 52, 808, 861, 862, 863 v. Livingston 606 v. Orange 283 v. Plumb 81 v. Potter 44 v. Quackenbush 935, 939, 940 v. Smith 176 v. State 452 Morgan's S. S. Co. v. Louisiana 688 Morley v. L. S. & M. S. Ry. Co. (95 N. Y.) 387 v. L. S. & M. S. Ry. Co. (146 U. S.) 32, 387 Morrell v. Dickey 584 v. Fickle 256 Morril v. Haines 930 Morrill v. State 709, 888 Morris v. Bark ley 607 v. Bd. of Canvassers 900 v. Carter 463 v. Claimants, The 184 v. Columbus 880 v. Council Bluffs 304 v. People 237, 253 v. Powell 99, 908 v. Royal Arch Masons 740 v. State 267, 391, 470, 542, 865 v. Stout 183 v. Vanlaningham 929 Morris & Essex R. R. Co. v. Newark 791 Morris Canal Banking Co. v. Fisher 323 Morrison v. M'Donald 453 v. Rice 514 v. Springer 237, 903 Morrison v. State Morrissey v. People Morrow v. Wood Morrow Co. v. Hendryx Morse ?;. Boston v. Goold Morton, Matter of v. Macon v. New York v. Sharkey v. Sims v. Skinner v. The Controller Mortun r. Valentine Mose v. State Moseley v. State Moser v. White Page 449 177 263, 486 268 363 85, 406, 408 431 282, 290 574 521, 523 829 39 207, 210 409 452 469 138 Moses v. Pittsburg, Fort Wayne, & C. R. R. Co. 797 v. Sanford 822 v. State 180 Moses Taylor, The, v. Hammons 45 Mosier v. "Hilton 210 Moss v. St. Louis, &c. Ry. Co. 757 Motes v. U. S. 450 Mott v. Comstock 606 v. Dawson 610, 628, 649 v. Pennsylvania R. R. Co. 176, 395 Motz v. Detroit 251, 654 Moulton v. Newburyport Water Co. 822 v. Raymond 700 v. Scarborough 306 Mount v. Commonwealth 468 v. Richey 185 Mount Carmel v. Shaw 298 v. Wabash Co. 268 Mount Pleasant v. Beckwith 268, 345 v. Breeze 272 Mount Veruon v. People 740 Mount Vernon First N. Bank v. Sarlls 290 Mount Washington Road Co.'s Peti- tion 777, 817, 824, 825 Mounts v. State 467, 468 Mower v. Leicester 351, 355 v. Watson 631, 633 Moxley v. Ragan 252 Moyer v. Van De Vanter 900, 906 v. Slate Co. 95 Moynier, Ex parte 286 Mugler v. Kansas 11, 18, 849, 850, 883 Muhlenbrinck v. Commissioners 283,285 Muhlker v. N. Y. & H. R. Co. 800 Mulcairns v. Janesville 306 Mulhearn v. Press Pub. Co. 483 Mulholland v. Des Moines, &c. Co. 404 Mulinx v. Mut. Ben. L. Ins. Co. (23 Col. 71) 228 v. Mut. Ben. L. Ins. Co. (23 Col. 85) 119 Mullan v. State 196 Muller v. So. Pac. B. Ry. Co. 826 Mulligan v. City of Perth- Amboy 814 Mull in v. People 455 Mullinex v. People 464 Mumford v. Sewall 694 Ixxviii TABLE OF CASES. Page Muncie Nat. Bank v. Miller 631 Mundt v. Sheboygan, &c. R. R. Co. 89, 202 Mundy v. Monroe 250, 412 Munger v. Tonawanda R. R. Co. 809 Municipal Full Plants, Re 696 Municipal Suffrage to Woman 164 Municipality v.Blanc 860 v. Cutting 888 v. Dunn 719 v. Wheeler 374 r. White 717, 733 Munn v. Illinois 18, 46, 287, 510, 831, 871, 874 v. People 870 v. Pittsburg 363 Munson v. Hungerford 861 Munster v. Lamb 633 Murdock v. Ward 684 Murphey v. Menard 208 Murphy, Ex parte 497, 932 In re 89, 376 v. Chicago 296, 783 v. Commonwealth 376 v. Commonwealth 468 v. Curry 900, 926 v. Directors 263 v. Jacksonville 272, 310 v. Lowell 302, 362 v. Massachusetts 469 v. People 647, 717 r. Ramsey 64, 902, 907, 927 v. San Luis Obisho 324, 911 v. State 468, 470, 480 Murray v. Bd. of Co. Com'rs 666 v. Charleston 415 v. Commissioners of Berkshire 790, 795 r. Hoboken Land Co. 681 v. Lehman 707 v. McCarty 37 v. Menifee 781, 787 v. Ramsey Co. Com'rs 184 v. Sharp Murray's Lessee v. Hoboken Land Co. 602 Murtaugh v. St. Louis 356 Musgrove v. Vicksburg, &c. R. R. Co. 516 Musselman v. Logansport 531 Mutual Assurance Co. v. Watts 33 Mut. Ben. Life Ins. Co. v. Elizabeth 631 Mutual R. F. Life Ass'n v. Boyer 180 Myers v. Baltimore Co. Com'rs 719 v. Chalmers 937 v. English 120, 237 v. Manhattan Bank 56 v. Park 606 v. People 177, 246 Mygatt v. Washburn 719 My rick v. Hasey 86 v. La Crosse 749 N. Narregang v. Brown County 194 Narron v. Wilmington & W. Ry. Co. 669 Page Nash n. Lowry 299 Nashville v. Althorp 289 v. Nichol 296 v. Ray 271, 272 Nashville, &c. R. R. Co. v. Hodges 740 Nashville, C. & St. L. Ry. Co. v. Alabama 19, 688, 844, 857 Nashville M. & S. Turnpike Co. v. Davidson Co. 392 Natchez, J. & C. R. R. Co. v. Currie 824 National Bank v. Commonwealth 682 v. Stevens 26 v. United States 681 v. Yankton 64 National Docks & N. J. J. C. Ry. Co. v. State 806 National Land & Loan Co. v. Mead 221 National Life Ins. Co. v Mead 323, 324 National Trust Co. v. Murphy 180 Nations v. Johnson 581, 582 Navasota v. Pearce 356 Naylor v. Field 217 N. C. Coal Co. v. G. C. Coal & Iron Co. 97 Neaderhouser v. State 867 Neasrle, In re 492 Neal v. Delaware 18, 19, 49, 901 v. Green 34 v. Shinn 925 Neass v. Mercer 409 Nebraska v. Campbell 356 v. Iowa 36 Nebraska Tel. Co. v. State 844, 873 Neeb v. Hope 628, 646 Needham v. Thayer 683 Neel v. State 453 Neeley v. Henkle 41 r. Henry 252 Neff v. Beauchamp 679 Nefzger v. Davenport 907 Negley v. Farrow 628, 644, 646 Nehasane Park Ass'n v. Lloyd 749 Neifing v. Pontiac 210 Neil v. State 689 Neill . Keese 676 Neilson v. Chicago, &c. Ry. Co. 826 Nels v. State 464 Nelson v. Allen 84, 653 v. Borchenius 606 v. Canisteo 366 v. Cheboygan Nav. Co. 865 v. Gorree 85 r. Milford 307, 308 v. Rountree 546 i\ State 465, 869 v. St. Martin's Parish 415 Nesbitt v. Ind. Dist. of Riverside 820 v. Trumbo 766 Nesmith v. Sheldon 34 Neumeyer v. Krakel 99, 168, 159 Nevins v. Peoria 296 New v. Walker 13 New Albany & Salem R. R. Co. v. Maiden 841 v. McNamara 841 v. O'Daily 786, 797 TABLE OF CASES. Ixxix New Albany & Salem R. R. Co. v. Tilton 830, 841, 844 Newark v. Watson 881 Newark & S. O. Co. v. Hunt 606 Newark Savings Bank v. Forman 406 Newbern v. McCann 289 Newberry v. Carpenter 424 v. Trowbridge 80, 81 New Boston, Petition of 592 v. Dunbarton 277 New Brighton v. Peirsol 812 New Brunswick v. Fitzgerald 183 v. Williamson 217 Newby v. Platte County 823, 824 Newby's Adm'rs v. Blakey 621 Newcastle, &c. R. R. Co. v. Peru & Indiana R. R. Co. 758 Newcomb v. Indianapolis 158, 159 v. Light 595 v. Peck 42 Newcome v. Smith 772 New Counties, In re 199 Newcum v. Kirtley 933, 937 Newell v. How 606 v. Minn., &c. Ry. Co. 802 v. Newton 683 v. People 89, 91 v. Smith 773 17. Wheeler 750 New England Screw Co. v. Bliven 34 New England Tr. & S. Club v. Mather 671 New Era Life Ass. v. Musser 409, 838 New Hampshire v. Louisiana 24 New Haven v. New H. & D. Ry. Co. 298 New Jersey v. Wilson 176, 395 v. Yard 395 New Jersey ex rel. Kennelly v. Jersey City 803 New Jersey Zinc Co. v. Morris Canal, &c. Co. 775 Newland v. Marsh 132, 237, 253, 256 New London v. Brainard 270, 310 Newman, Ex parte 237, 258 v. Ashe 312 New Orleans v. Abagnatto 347 v. Cannon 506 v. Cazelaer 721 N . Clark ^309, 332, 336 v. De Annas 30 17. Dubarry 707 v. Faber 887, 888 v. Fourchy 739, 743 v. Great South Tel. Co. 387 v. Home Ins. Co. 707 v. Houston 395, 400 t7. Kaufman 710 v. Miller 281 v. People's Bank 739 17. Poutz 374 17. Savings Bank 710, 742 t7. Southern Bank 217 17. Stafford 887 17. Stempel 695 . St. Romes 114 17. Turpin 265 Page New Orleans v. Warner (175 U. S.) 386 r. Warner (167 U. S.) 386, 695 New Orleans, &c. R. R. Co. v. Gay 775, 809 17. New Orleans 346, 789 New Orleans C. & L. R. Co. v. New Orleans 396 v. Southern, &c. Tel. Co. 759, 770 New Orleans Gas Co. v. Louisiana Light Co. 62, 383, 402 New Orleans Water Works v. Lou- isiana Sugar Co. 30 v. Rivers 402 Newport v. Com. 739 v. Horton 244, 334 v. Newport 290 New Providence v. Halsey 274, 322 Newsom v. Cocke 253 v. Earnheart 907 17. Greenwood 516 Newson v. Galveston 887 Newton v. Atchison 709 17. Belger 283 v. Commissioners 388, 610, 548 v. Newell 914, 916 New York, Matter of Mayor, &c. of 717, 741 New York v. Barker 16 t7. Furze 356 v. Hyatt 280 v. Lord 878 7. Miln 690, 858 17. Nichols 279, 281, 291 v. Ryan 265 v. Second Av. R. R. Co. 283, 295, 710 v. Squire 860 v. Williams 286 New York & A. R. R. Co. v. N. Y., &c. R. R. Co. 807 N. Y. & Harlaem R. R. Co. v. Kip 764, 766 v. New York 789 New York & L. B. R. R. Co. v. Drummond 807 N. Y., L. E. & W. Ry. Co. v. Estill 32, 180 v. Pennsylvania (153 U. S.) 384 17. Pennsylvania (158 U. S.) 692 N. Y. Life Ins. Co. v. Cravens 32, 34, 179, 687 i'. English 664 N. Y. & N. E. Ry. Co. v. Town of Bristol 843 N. Y., N. H. & H. R, Co. . New York 853 v. Welsh 763 New York & N. Tel. Co. v. Mayor of Bound Brook 130 New York, &c. R. R. Co., Matter of 769, 778, 806 17. Commonwealth 404 o. New York 306 u. Van Horn 253, 840, 639 New York Central, &c. R. R. Co. v. Gaslight Co. 778 Niagara, F. & W. Ry. Co., Matter of 770, 775 Niagara Ins. Co. v, Cornell 573 Ixxx TABLE OF CASES. Page Niccolls v. Rugg 661 Nichol v. Nashville 167 Nicholl v. New York & N. J. Tel. Co. 804 Nicholls v. Barriek 900 Nichols, Matter of 408, 560 v. A. A. & T. Ry. Co. 803 v. Bertram 392 v. Bridgeport 717, 728, 761, 823, 825 v. Duluth 296 v. Griffin 156 v. Guy 606 v. Mudgett 924 v. School Directors 663 v. Somerset, &c. R. R. Co. 813 Nicholson v. N. Y. & N. H. R. R. Co. 794, 823 Nickerson v. Boston 868 v. Howard 486 Nicks v. Chicago, St. P. & K. C. Ry. Co. 828 Nicolay v. St. Clair 322 Nicolls v. Ingersoll 487 Nielson, Petitioner 496 Nightingale, Petitioner 285 v. Bridges 609 Nightingale's Case 887 Niles Water Works v. Mayor 311 Nims v. Troy 363 Nishimura Ekin v. United States 129, 131 Nix v. Caldwell 619 Nixon v. Reid 66, 867 Noble v. Mitchell 179 v. Richmond 356 Noble & W. v. Mitchell 886 Noble v. Union Riv. Log Ry. Co. 22 Nobles v. Georgia 32 Noel v. Ewing 156, 514 v. People 248, 509, 837, 849, 886 Nolan v. State 468 Nolin v. Franklin 886 Nomaque v. People 452 Nomination of Public Officers, Re 895 Noonan v. Albany 363 v. Orton 611 v. State 52 Norfolk v. Ellis 717 v. Young 712 Norfolk & W. Ry. Co. v. Com. 859 v. Pendleton 397 v. Pennsylvania 179, 690 Norman v. Curry 210 v. Heist 504, 512, 540 v. Kentucky Bd. of Managers 176, 696 Norris, Ex parte 898 v. Abingdon Academy 237, 392 v. Atkinson 417 v. Beyea 515, 529 v. Boston 247 v. Clymer 104, 144, 146 v. Crocker 644 v. Doniphan 617, 518 v. Hall 751 v. Harris 52 v. Newton 494 Norris v. Norris v. Vt. Central R. R. Co. v. Waco v. Wrenshall Norristown v. Fitzpatrick Page 579 757, 784 722 407 305 Norristown, &c. Co. v. Burket 591 North & S. Ala. R. R. Co. v. Morris 664 North & W. B. Ry. Co. v. Swank 826 North Bloomfield G. M. Co. v. Keyser 592 North Carolina v. Temple 24 North Carolina, &c. R. R. Co. v. Car. Cent., &c. R. R. Co. 758 North Carolina Coal Co. v. Coal & Iron Co. 97 North Chicago C. R. Co. v. Lake View 884 North Milwaukee, Application of, Re 164 Northeastern Neb. Ry. Co. v. Frazier 823 Northern Bank v. Porter Township 322 Northern C. I. Trust v. Sears 68 Northern Indiana R. R. Co. v. Con- nelly 716, 717, 729, 746 Northern Liberties v. Gas Co. 286, 288 v. St. John's Church 717 Northern Pac. & M. Ry. Co. v. Forbis 826, 827 Northern Pac. Ry. Co. v. Colburn 28 v. Myers 683 Northern R. R. v. Concord R. R. 86 North Hempstead v. Hempstead 278, 312 North Missouri R. R. Co. v. Gott 778 v. Lackland 778 v. Maguire 46, 396 Northwestern Fertilizing Co. v. Hyde Park 98, 836 Northwestern Lumber Co. v. Che- halis County 691 Northwestern Mfg. Co. v. Judge 882 v. Wayne Cir. Judge 213 Northwestern & P. H. Bk. v. State 24 Northwestern Tel. & E. Co. v. Min- neapolis 837 North Yarmouth v. Skillings 345 Norton v. Dougherty 80 v. Ladd 677 v. Pettibone 633 v. Shelby Co. 33, 897, 898 Norwalk St. Ry. Co.'s App. 130 Norwich v. County Commissioners 237, 253 Norwich Gas Co. v. Norwich City Gas Co. 662 Norwood v. Baker 714, 731 v. Cobb 42 Nougues r. Douglass 119 Noyes v. Butler 42 Nugent i>. State 469 Nunn v. State 499 Nutting v. Massachusetts 834 o. Oakland v. Carpentier Oakley v. Aspinwall Oates v. National Bank Oatnian v. Bond TABLE OF CASES. Ixxxi Page O'Bannon v. Louisville, &c. R. R. Co. 624, 842 O'Brian t\ Commonwealth 468 O'Brien v. Baltimore 801 v. Commonwealth 451 v. Krenz 412, 413 v. Philadelphia 784 17. State 443 r. St. Paul 784 v. Wheelock 252 v. Young 387 Ocean Beach Ass. v. Brinley 87 O'Connell v. People 437 O'Conner v. Warner 137 O'Connor v. Fond du Lac 159, 244, 334 t>. Memphis 415 v. Pittsburg 296, 783, 826 i7. Sill 620 O'Dea v. O'Dea 42, 580, 584 Odiorne v. Rand 113 Odljn v. Woodruff 750 O'Donaghue v. McGovern 619 O'Donnell v. Bailey 396 O'Ferrall v. Simplot 514 O'Ferrell v. Colby 935 Officer v. Young 530, 560 Ogden v. Blackledge 134, 137 v. City of Madison 280, 454 v. Riley 606 t7. Saunders 104, 254, 374, 404, 405, 406, 409, 416, 417, 525 r. Strong 89, 92 Ogden City v. Armstrong 745, 747, 750 O'Grady v. Barnhisel 748 O'Hara v. Carpenter 331 v. Stack 660 O'Hare v. Chicago M. & N. Ry. Co. 777 Ohio v. Thomas 849 Ohio & Lexington R. R. Co. v. Ap- plegate 800 Ohio & M. R. R. Co. v. Lackey 150, 528, 842 v. McClelland 399, 830, 843, 844 v. Taber 848 Ohio 0. Co. v. Indiana 21, 880 Ohio, &c. R. R. Co. r. Ridge 316 Ohio Life Ins. & Trust Co. v. Debolt 176, 395 O'Kane v. Treat 183, 725, 743, 748 O'Kelly v. Athens Mauuf. Co. 517 v. Williams 514 Olcott v. Supervisors 35 Old Colony Ry. Co. v. Framingham Water Co. 814 Oldham, In re 453 Oldknow i7. Wainwright 893, 931 P'Leary, Ex parte 883 v. Cook Co. 210 . Mankato 363 Oleson 17. Green Bay, &c. R. R. Co. 175, 217, 253 Olive v. Ingram 895 v. State 863 Oliver, In re 171 i7. McClure 138, 406 v. Steiglitz 178 Oliver v. Union, &c. R. R. Co. v. Washington Mills Page 817 674, 6U3, 694, 706 v. Worcester 3o'U Oliver Lee & Co.'s Bank, Matter of (52, 69, 97 Olmstead v. Camp 772, 775, 777 v. Prop'rs Norris Aq. 769, 778 Olmsted v. Miller 608 Olney v. Harvey 267 v. Wharf 811 Olson v. Phillips 751 Olympia v. Mann 290 Omaha y. Olmstead 363 v. Shaller 824 Omaha Bell Ry. Co. v. McDermott 827 Omaha & R. V. R. R. Co. v. Standin 811, 812 Omaha Horse Ry. Co. v. Cable, &c. Co. 812 Omaha So. Ry. v. Todd 827 Omaha V. R.R. Co. v. Rogers 797 O'Maley v. Freeport 286 O'Nail v. Craig 252 O'Neil v. Am. F. Ins. Co. 1(54 y. Vermont 46, 471, 474, 848 Onslow v. Home 624 Opel v. Shoup 24 Opinions of Justices (30 Conn.) 903 (23 Fla.) 72 (79 Ky.) 73 (7 Mass.) 908 (15 Mass.) 908 (150 Mass.) 696 (155 Mass.) 696 (165 Mass.) 896 (166 Mass.) 158, 159 (175 Mass.) 696 (18 Pick.) 58 (1 Met.) 177, 905 (6 Cush.) 60 (99 Mass.) 219 (115 Mass.) 896 (117 Mass.) ( 99,388,937 (124 Mass.) 902 (138 Mass.) 158 (148 Mass.) 72 (16 Me.) 156 (18 Me.) 115, 119 (38 Me.) 917, 918, 932 (45 Me.) 911 (52 Me.) 330 (58 Me.) 243, 700, 701 (62 Me.) 901 (64 Me.) 917, 935 (49 Mo.) 73, 76 (55 Mo.) 167 (4 N. H.) 144 (41 N. H.) 458, 690 (44 N. H.) 903 (45 N. H.) 219, 903 (52 N. H.) 194 (53 N. H.) 935 (56 N. H.) 189 (58 N. H.) 936 (63 N. H.) 184 Ixxxii TABLE OF CASES. Page Opinions of Justices (3 R. I.) 137, 138 (19 R. I.) 910 (37 Vt.) 903 Orange, &c. R. R. Co. v. Alexandria 741 Ordineal v. Barry 198 Oregon v. Jennings 274, 322 Oregon & C. R. Co. v. Jackson County 693 v. Portland 572 Oregon Ry. & Nav. Co. v. Oregon, &c. Co. 761 Oregon Ry. Co. v. Portland 807 O'Keiley v. Kankakee Co. 735 O'Reilley v. Kingston 730 Oren v. Abbott 894 v. Pingree 327 Orient Ins. Co. v. Daggs 20, 21, 38 Oriental Bank v. Freeze 517, 547 Orkney St., Re 718 Orlando v. Pragg 292 Orman v. State 478 Ormicliund v. Barker 676 Ormond v. Martin 553 Ormsby v. Douglass 611 O'Rourke v. Sioux Falls 302 Orphan Asylum's Appeal 719, 730 Orphan House v. Lawrence 82 Orr v. Gilrnan 684, 708 v. Quimby 814 v. Skofield 606 Orth v. City of Milwaukee 827 Ortman v. Greenman 230 Orton n. Noonan 539 Ortwein v. Commonwealth 437 Osage, &c. R. R. Co. v. Morgan Co. 324 Osborn v. Adams Co. 700 v. Hart 508, 765 v. Jaines 523 17. Mobile 690 v. Nicholson 405, 410 17. State . 459 v. United States 160 v. United States Bank 29, 682 v. Wabash Ry. Co. 873 Osborne v. Florida 689 v. Humphrey 395 v. Lindstrom 524 Osburn v. Staley 193, 194, 231, 254 Oscanyan v. Arms Company 198 Osgood v. Jones 936 Oskaloosa Water Co. v. Bd. of Equalization 720 Otis v. Oregon S. S. Co. 30 Otis & G. v. Parker 673 Otken i7. Lamkin 262 Otoe Co. 17. Baldwin 210 Ottawa i. Carey 322 v. Nat. Bank 322 v. People 209 t7. Spencer 861 Ottawa, O. C. & C. G. Ry. Co. v. Larsen 828 Ottawa, &c. R. R. Co. v. Larson 797 Ottumwa v. Schwab 885 v. Zekind 291 Ould v. Richmond 266, 709, 712, 71J Page Our House v. State 849, 850 Over 17. Hildebrand 619 v. Schiffling 611 Overby v. Gordon 44 Overstreet v. Brown 675 Oviatt v. Pond 849, 850 Owen v. Jordan 585 17. State 499 Owens v. Henry 22 v. State 462, 911, 941 Owensboro v. Com. 740 v. Hickman 90t't v. Nat'l Bk., Owensboro 682 Owensboro & N. Y. Ry. Co. v. Todd 164 Owings v. Norwood's Lessee 25, 30 Owners of Ground v. Albany 770 Owners of the James Gray v. Owners of the John Frazer 856 P. Pace v. Alabama 19 v. Burgess 680 Pacheco v. Beck 936 Pacific Bridge Co. v. Kirkham 729 Pacific Coast Ry. Co. v. Porter 825 Pacific Coast S. S. Co. v. Board R. R. Com'rs 689 Pacific Exp. Co. ?7. Seibert 689 Pacific Ins. Co. v. Soule 680 Pacific Junction v. Dyer 693 Pacific Postal Telph. Cable Co. v. Irvine 804 Pacific R. R. Co. v. Chrystal 823, 824 v. Governor 194 v. Maguire 62, 395 Pack v. Barton 199 Packard v. Ryder 762 Packet Co. v. Gutlettsburg 691 17. Keokuk 691 17. Sickles 80 v. St. Louis 691 Packwood v. Kittitas County 909 Pacquette v. Pickness 653 Padmore v. Lawrence 630, 633 Page, Ex parte 473 Re 243, 678, 705, 707 v. Allen 906 v. Commonwealth 444 17. Fazackerly 286, 888 17. Fowler 81 v. Hardin 619 v. Kuykendall 921 17 Mathews' Adm'r 138 17. Mervin 607 Paine v. Wright 34. Paine's Case 612 Palairet's Appeal 404 Palfrey v. Boston 683 Palmer v. Commissioners of Cuya- hoga Co. 54, 55, 865 17. Concord 608, 642, 648 17. Fitts 346, 348 17. Laberee 404 v. Larchmont 302, 804 TABLE OF CASES. Ixxxiii Page Palmer v. Lawrence 84 v. McCormick 582 v. Napoleon 749 v. Smith 658 v. State 459 v. Stumph 717, 730, 741 v. Way 860 Palmer Co. v. Ferrill 824 Palmore v. State 591 Pana v. Bowler 274, 322, 583 Pangborn v. Westlake 86 v. Young 194 Paris v. Mason 761 ?;. Norway Water Co. 720 Parish v. Eager 521 Parish of Bellport v. Tooker 660 Park v. Detroit Free Press Co. 560, 650 Park Com'rs v. Common Council of Detroit 65 v. Detroit 340 Parke v. City of Seattle 784 Parkens' Case 475 Parker v. Bidwell 487 v. Commonwealth 163, 171, 173 v. Cutler Mill-dam Co. 867 v. Hett 897 v. Hubbard 217 v. Kane 33 v. McQueen 644 v. Metropolitan R. R. Co. 839, 867, 875 v. Mill-dam Co. 752 v. Ormsby 27 v. Orr 911 v. Phetteplace 34 v. Redfleld 395 v. Savage 92, 408, 517 v. School District 262 v. Sexton 748 v. Shannohouse 516 v. State 676, 898, 931 v. Sunbury & Erie R. R. Co. 565 Parkersburg v. Brown 317, 322, 700 Parkinson v. Brandenberg 223 v. State 92, 209, 223, 225 Parkland v. Gains 726 Parks, Ex parte 495 v. Boston 822 v. Goodwin 114 v. State (Ga.) 205 v. State (Ind.) 564 Parmelee v. Lawrence 30, 617, 533, 537 v. Thompson 139 Parmiter . Coupland 656 Parrish v. Commonwealth 435 Parroti's Chinese Case 25 Parsons v. Bangor 903 v. Casey 407 v. Clark 752 v. District of Columbia 711, 731 v. Goshen 311, 312 v. Howe 762 v. Russell 502 Parsons Oil Co. v. Boy 178 Parvin v. Wimberg 900 Pasadena r. Stimson 775, 777 Paschal v. Perez 406 Paschall v. Whitsett 615 Passavant v. United States 22 Passenger Cases 832, 858 Patapsco Guano Co. v. Bd. of Ag. of N. C. 855 Patch v. Covington 301 Paterson v. Society, &c. 166, 266, 741 Patten v. Florence 935 v. People 435 Patten Paper Co., Ltd. v. Eaukauna Water Power Co. 782 Patterson, Ex parte 272, 291 v. Barlow 74, 906 v. Collier 592 v. Commonwealth 832 v. Kentucky 13 v. Mississippi, &c. Boom Co. 770 v. Nutter 486 v. Philbrook 516, 631, 543 v. State 450 v. Wilkinson 607 v. Winn 62 v. Wollman 66 Pattison v. Jones 611 v. Yuba 89, 167 Patton v. Coates 922 v. Stephens 310 Patty v. Colgan 318 Paul, In re 213 o. Davis 87 v. Detroit 591, 780 v. Hazelton 37 v. Virginia 38, 687 Paulsen v. Portland 22, 86, 712, 722, 729 Pawlet v. Clark 343', 386, 391 Pawling v. Bird's Executors 42, 579 v. Willson 583 Paxson v. Sweet 860 Paxton & H. Irr. C. & L. Co. v. Farmers' & M. Irr. & L. Co. 768, 777 Payne v. Kansas, &c. Ry. Co. 763 v. Treadwell 346, 537 Pay son v. Payson 579 Peabody v. School Committee 190 Peak v. Swindle 63 Pearce v. Atwood 52, 592 v. Olney 42 v. Patten 522 Pearsall v. Eaton County Supervisors 781 v. Great N. Ry. Co. 837, 852 v. Kenan 522 Pearse v, Morrice 111 Pearson v. Int. Distill. Co. 207, 850 v. Portland 556 v. Yewdall 20, 505 Peart v. Meeker 754 Pease v. Chicago 333 v. Peck 33 Peavey v. Robbins 927 Peay v. Duncan 80 v. Little Rock 730 Peck v. Batavia 357 v. Freeholders of Essex 592 r. Holcombe 898 v. Jenness 26 Ixxxiv TABLE OF CASES. Page Peck v. Lock wood 291 r. Louisville, &c. Ry. Co. 754 v. Weddell 165, 920 Pecot v. Police Jury 97 Peddicord v. Baltimore, &c. R. R. Co. 791 Pedigo v. Grimes 905 Pedrick v. Bailey 281, 286 Peebles v. County Commissioner 935 Peel v. City of Atlanta 780 Peel Splint Coal Co. v. State 570, 572 Peerce v. Carskadon 370, 372 ' v. Kitzmiller 411 Peers v. Board of Education 262 Peete v. Morgan 691 Peik v. Chicago, &c. R. R. Co. 874, 875 Pekin v. Brereton 363, 786 v. McMahon 302 v. Reynolds 319 v. Winkel 363, 786 Pembina Mining Co. v. Pennsylvania 38 Pemble v. Clifford 52 Pendleton v. Russell 28 Pendleton Co. v. Amy 320, 321 Penhallow v. Doane's Administrator 9 Peninsula R. R. Co. v. Howard 595 Peninsular Lead & C. Wks. v. Union Oil & P. Co. 408 Penn v. Tollison 62 Penn Mutual Life Ins. Co. v. Austin 384 Penn's Case 461 Pennie v. lleis 402 Penniman's Case 408 Pennoyer v. McConnaughy 24 v. Neff 20, 505, 506 Pennsylvania Co. v. Commonwealth 738 v. James 285 v. McCann 525 v. Platt 815 Pennsylvania Hall, In re 341 Pennsylvania R. R. Co. v. Baltimore, &c. R. R. Co. 392 v. Canal Commissioners 565 v. Commonwealth 690 v. Duncan 392 v. Heister 823, 825 v. Jersey City 282, 285 v. Lewis 840 v. Lippincott 812 v. Marcliant 810, 812 v. Montgomery Co., &c. 808 v. Miller 392, 874 v. New York, &c. R. R. Co. 787 v. Riblet 237, 841, 844 Pennsylvania S. V. R. R. Co. v. Cleary 827 w.Walsh 810,811,812 Pennsylvania Tel. Co., Re 690 Penny wit v. Foote 42 Penrice v. Wallace 824 Penrose v. Erie Canal Co. 406, 410 People v. Alameda 336 v. Albany, &c. R. R. Co. 938 v. Albertson 65, 99, 237, 242, 364, 389 v. Allen 106, 113, 209, 262, 468, 584 v. Amer. Bell Tel. Co. 694 v. Angle .. 92 People v. Arensberg v. Armstrong v. Assessors v. Auditor-General v. Austin v. Baker Page 882 289 6'.)5 402, 647 695 42, 580, 584 v. Baltimore, &c. R. R. Co. 865 v. Bangs 898 v. Banvard 389 v. Barker 389, 446, 468, 478 v. Barrett 468 v. Batcliellor 243, 338, 340, 346, 360, 703 v. Bates 914, 921, 929 v. Bellet 860 v. Bennett 589 v. Berkeley 893 v. Berrien Cir. Judge 569 v. Biesecker 882 v. Bircham 160 v. Bissell 162 v. Blake 99 v. Blakely 478 v. Blanding 222 v. Blodgett 89, 101, 255, 903 v. Board of Assessors 684 v. Board of Canvassers 937 v. Board of Commissioners 454 v. Board of County Canvassers 900 v. Board of Education (55 Cal.) 262 v. Board of Education (101 III.) 557 v. Board of Education (18 Mich.) 557 v. Board of Education (13 Barb.) 2H2 v. Board of Managers, etc. 472 v. Board of Registration 936 v. Board of Supervisors 268, 344, 738 v. Board, &c. of Nankin 936 v. Boston, &c. R. R. Co. 875 v. Bowen 220 v. Bradley 121 v. Brady 40, 564 v. Bragle 452 v. Bray 568 v. Brenahm 275, 909 v. Bridges 879 v. Briggs 206, 212, 247 v. Brighton 761 v. Brislin 209 . Brooklyn 338, 340, 679, 716, 717, 729, 734, 812, 813 v. Brooklyn Board of Assessors 680 v. Brooklyn Common Council 895 v. Broom 931 v. Brown 161, 893 v. Budd 871, 893 v. Buffalo Fish Co. 879 v. Bull 99, 248, 388, 389 v. Bunker 251 v. Burns 92, 927 v. Burt 194 v. Butler 383 v. Butler St. F. & I. 5t>3 v. Butte 166 v. Campbell 116, 200 v. Canaday "" ! v. Canal Appraisers bu/ TABLE OF CASES. Ixxxv People v. Cannon v. Canty v. Carrigue v. Cassels v. Chase Page 451 339 894 496 134 v. Chicago 243, 326,339, 340, 346, 643, 695 v. Chicago Gas Trust Co. 562, 877 v. Chicago W. D. Ry. Co. 278 v. Chung ah Chue 452 v. Cicott 85, 591, 912, 913, 914, 916, 918, 920, 930, 931, 932, 938, 941, 943, 944 v. Cipperly 882 v. Clapp 712 v. Clark 223, 468 v. Clute 932 v. Coleman 37, 86 v. Coler 274, 673, 877 v. Collins 163, 172 v. Colman 742 v. Commissioners (59 N. Y.) 400 v. Commissioners (4 Wall.) 683 v. Commissioners of Highways 186, 194, 195, 201 v. Commissioners of Taxes 396,683 v. Common Council of Detroit 33i, 340, 343, 361, 364, 699, 703 v. Compagnie 686, 832, 858 v. Comstock 462 r. Conley 661 v. Coolidge 656, 561, 837, 887 v. Cook (14 Barb, and 8 N. Y.) 110, 914, 915, 916, 918, 921, 929, 935, 937, 941 v. Cook (10 Mich.) 467, 468 v. Cook 397 v. Corning 462 v. County Board of Cass 319 v. Courtney 447 v. Cover 940 v. Cowles 123, 276, 909 v. Croswell 465 v. Cullom 162 v. Cummings 160, 472, 589 v. Curry 222 v. Curtis 41, 469 v. Daniell 129 v. Davenport 396, 740 v. Dawell 42, 43, 579, 580 v. Dayton 104 v . Dean 564 v. Denahy 209, 213 v. D. G. H. & M. Ry. Co. 781 v. Dettenthaler 203 v. Devine 451 v. Devlin 219 v. Dill 462 v. Doe 114, 695 v. Donohue 39 v. Draper 78, 128, 239, 258, 265, 266, 831 v. Dubois 389 v. Dudley 209 v. Dunn 165, 195, 454 v. Durston 473 Page People v. Eaton 804 v. Eddy 744 v. Elk River, &c. Ry. Co. 757 v. Ewer 890 v. Fairman 496 v. Fancher 123 v. Father Mathew Society 207 v. Felker 474 v. Ferguson 916 v. Finley 437 v. Finnigan 464 v. Fire Ass. 707 v. Fisher 240 v. Flagg v. Flanagan v. Fleming v. Ford v. Freeman v. Freer v. Frisbie 258, 336, 703, 705 389, 435 166, 257 481 158 643 138, 559 v. Ft. Wayne & E. R. Ry. Co. 298 v. Gad way 213 v. Gallagher 241, 242, 657, 849 v. Garbutt 437, 466 v. Gardner 177, 450 v. Gastro 461 v. Gates 686 v. Gay 38 v. Gerke 25 v. German, &c. Church 661 v. Gies 101, 593 v. Gilbert 524 v. Gillson 888 v. Goddard 895 v. Goodwin 468, 469, 937 v. Gordon 928 v. Governor 162, 228 v. Gray 320 v. Green 62, 388, 814, 816, 895 r. Hall 189, 247, 403 v. Hanifan 894 v. Hanrahan 203, 279, 281, 884 v. Harding 102, 469 v. Hardisson 469 r. Hart well 114, 275, 909, 931 v. Haskell 389 v. Hatch 188, 220 v. Hauck 213 v. Haug 206, 473, 558, 851, 885 v. Ha v nor 837 t7. Hawes 340 v. Hawley 849 v. Hawker 376 v. Hawkins 855 v. Hayden 814,815 v. Hayes 375 v. Henderson 706 v. Hennessy 445 . Henshaw 183 v. Higgins 917, 929, 930. 934, 937, 941 v. Kill 246, 570 v. Milliard 035 v. Hobson 644 v. Hoffman 130, 894, 906 v. Hoge 121 Ixxxvi TABLE OF CASES. People v. Holden 905, 915, 941 v. Holley 114 v. Holly 310 v. Howard 180, 205, 451 v. Howland 389 v. Hubbard 425 v. Hurlbut 69, 194, 207, 209, 243, 263, 265, 334, 346, 360 v. Hutchinson 115 r. Imlav 37 v. Ingersoll 391, 404 v. Institution, &c. 205 r. Jackson & Michigan Plank R. Co. 392, 414, 838, 839 v. Jenkins 860, 868 v. Jenness 677 v. Jones 450, 935, 937 v. Kane 898 v. Keeler 193 v. Keenan 480 v. Kelly 496 v. Kelsey 265 v. Kennedy 919 v. Kenney 231, 247 v. Kent County Canvassers 922 v. Kerr 781, 794, 796, 801 v. Kerrigan 441 v. Kier 285 v. Kilduff 911, 935 v. Kipley 158, 159 v. Kniskern 817 v. Koeber 685 v. Kopplekom 906, 907 v. Lake Co. 120 v. Lake Shore, &c. Ey. Co. 781, 839 r. Lamb 466 v. Lambert 445, 450 v. Lambier 566 v. Lawrence 115, 119, 202, 247 257,309, 311 v. Leonard 895 v. Le Roy 447 v. Levee Dist. No. 6 182 v. Lippincott 388 v. Liscomb 471, 474, 495 v. Livingston 941 v. Londoner 911, 937 v. Loomis 915 v. Lothrop 364 v. Lott 581 v. Lowrey 453 v. Lynch 531, 545 v. Lyng 693, 846 v. Mahaney 189, 193, 194, 204, 206, 216,239, 346, 746 v. Majors 467 v. Mallett 375 v. Manhattan Co. 392 v. Martin 162, 908 v. Marx 882 v. Matteson 914, 920, 937, 940 v. Maynard 108, 276, 364, 926 v. Mayor, &c. of Brooklyn 735 v. May worm 916 v. McAdams 663 v. McCallum 207, 209, 216 Page People v. McCann 209, 211, 437 v. McCreery 336, 744 v. McDonald (Cal.) 468 v. McDonald (5 Wyo.) 375 v. McDonnell 437 v. McKlroy 92, 194, 199, 200 v. McFadden 173 v. McGowan 467, 470 v. McKay 452 v. McKinney 99, 389 v. McMahon 443, 445, 446 v. McManus 914, 920, 929 v. McNealy 468 v. McNulty R75 v. McRoberts 121, 761 v. Medical Society of Erie 292 v. Mellen 207 v. Mercein 497 v. Merrill 177 r. Mills 61 v. Miner 468 v. Mitchell 527, 543 v. Molliter 932 v. Mondon 446 v. Monroe Co. Ct. 160, 468 v. Moore 436 v. Morrell 89, 128 v. Morris 244, 268, 344, 360, 389 v . Mortimer 382 v. Morton 162 v. Mosher 158, 159 v. Most 603 . Mulholland 287 v. Murphy 451, 482 v. Murray 251, 441 v. Nally 167 v. Nearing 770 v. Newton 299 v. New York 399, 754, 756, 838, 867 v. New York Catholic Protectory 423 v. Nichols 748 v. Noelke 383, 449 v. Nostrand 894 v. N. Y. Central R. R. Co. 93, 101, 241, 242, 257 v. O'Brien 212, 449, 507 v. Olmstead 382 . O'Neil 852, 879 v. Ormsby 453 v. Osborne 128, 158 v. Otis 403 v. Parker 74 v. Pease 912, 914, 917, 920, 928, 935, 941, 943 r. Peck 114 v. Phelps 382 v. Phillips 445, 933 v. Phippin 37, 560, 890 v. Phyfe 891 r. Pine 464 v. Pinkerton 40 v. Pinkney 267 v. Plank Road 531 v. Platt 218, 386 v. Porter 445, 674, 908 v. Potrero, &c. R. R. Co. 55 TABLE OF CASES. Ixxxvii Page Page People . Potter 100 People r. Supervisors of Columbia 327, 17. Powell 469 528 t7. Power 266, 336, 341, 390 17. Supervisors of La Salle 77, 105 Pritchard 216 t7. Supervisors of New York 132, 135, . Purdy 89, 92 100, 101, 115, 219 340 17. Quigg 209, 217 v. Supervisors of Onondaga 218, i7. Railroad Co. 591 308 v. Raymond 99, 389 v. Supervisors of Orange 128, 237, v. Reardon 937 242, 256 v. Reed 868 v. Supervisors of Saginaw 698 v. Refining Co. 562 v Supervisors of San Francisco 336 v. Rensselaer, &c. R. R. Co. 232 v. Swafford 441 v. Rice (129 N. Y.) 932, 936 v. Tallman 817 7. Rice (135 N. Y.) 74 v. Tappan 346 v. Riordan 166 v. Tazewell County 319 v. Riverside 265 r. Terry 898 v. Roberts (148 N. Y.) 121, 158, v. Thacher 914 159 17. Thayers 465 v. Roberts (152 N. Y.) 180 v. Thomas 443, 450 v. Roberts (159 N. Y.) 15, 680 v. Thorn 450, 453 v. Roberts (171 U. S.) 15, 691 v. Thurber 37, 710 v. Robertson 937, 938, 940, 941 v. Tice 450 v. Rochester 209, 250 v. Tighe 881 v. Roe 860, 868 v. Tisdale 916, 917, 918 v. Roper 396, 547 r. Tompkins 114 v. Rotter 882 17. Townsend 720 r. Royal 462 w. Township Board of Salem 313, 562, v. Rucker 128, 228, 240 696, 697, 704, 773 17. Ruggles 671, 673 v. Toynbee 242 v. Rumsey 121 v. Truckee Lumber Co. 879, 880 v. Runkel 114 v. Trustees of Schools 741 v. Russell 13, 283, 709, 832 v. Turner 423, 523, 527 v. Sackett 941 v. Tweed 266 v. Salomon 167, 173, 259, 364, 695, v. Tyler 447, 448, 468 927 17. United States 683 v. Sanderson 895 v. Van Alstine 478 v. Saxton 914, 915, 916 v. Van Cleve 935, 937, 941 v. Schermerhorn 110 v. Van Eps 681 v. Schiellein 936 y. Van Home 438 v. Schryver 437 v. Van Pelt 879 v. Seaman 914, 915, 916, 937 v. Van Slyck 935 v. Seymour 535 v. Van Valkenburg 319 v. Shaw 900 v. Videto 465 v. Simon 134, 508 v. Wagner 288 17. Simpson 452 v. Waite 930 v. Sligh 452 v. Wallace 116, 183 17. Smith 438,577,777,778,854,891 v. Walsh 344 v. Spicer 530 17. Wands 206 v. Springwells 364, 703 v. Warden 886 v. Squire 400, 838 i7. Warden, &c. 67, 496, 510 r. Stapleton 646 v. Webb 462, 467, 470 v. Starne 116,119,194,200 v. Weissenbach 497 v. State Board of Canvassers 190 r. Welch 280 v. Stephens 467 v. Wemple (117 N. Y.) 689 v. Stevens 280 v. Wemple (138 N. Y.) 693 v. Stewart 161, 447, 464 r. White 469 v. Stout 163, 170 v. Whitlock 209 17. Stuart 133 v. Whitman 895 v. Sullivan 332, 434 v. Whyler 737 v. Supervisors 320, 936 v. Williams 47, 177, 894 17. Supervisor, &c. (16 Mich.) 325 v. Willsea 209 v. Supervisors, &c. (20 Mich ) 543 17. Wilson 453, 64?, 929 r. Supervisors, &c. (16 N. Y.) 137 v. Worden 26, 467 v. Supervisors, &c. (94 N. Y.) 268 17. Worthington 739 v. Supervisors of Chenango 115, 193, v Wright 92, 105, 128, 215 546,719 v. Yates 1C2 Ixxxviii TABLE OF CASES. Page People v. Yonkers 574 v. Young 129, 365 Peoria v. Callioun 281, 292 v. Kiclder 717, 728, 741 Peoria, &c. R. K. Co. v. Duggan 528, 556, 841 v. Peoria, &c. Co. 398 Peoria County v. Harvey 818 Percy, In re 481 Perdue v. Burnett 605 Pereless v. Watertown 524 Perkins, Ex parts, 454 v. Burlington 726 v. Carraway 915 v. Corbin 388 v. Grey 478 v. Heert 66 v. Lawrence 306 v. Lewis 325 v. Milford , 333 v. Mitchell 629 v. Perkins 529 v. St. Louis, I. M. & S. R. Co. 571 Perley i\ Mason 417 Perret v. New Orleans Times 650 Perrin v. New London 318 Perrine v. Chesapeake & Delaware Canal Co. 565 v. Farr 585 v. Serrell 80 Perry v. Keene 238 v. Lewis 80 v. Man 606 v. Reynolds 904, 927 v. State 495 v. Washburn 678 v. Wheeler 661 v. Whittaker 936 Perry County v. Con way Co. 269 Perry's Case 374, 677 Persons v. Jones 82 Peru v. French 356 Pesterfield v. Vickers 279 Peterman v. Huling 226 Peters v. Fergus Falls 304 v. Iron Mt. R. R. Co. 836, 844 v. State 879 Petersburg v. Cocke 719 v. Metzker 279 Petersilea v. Stone 898 Peterson v. Kittredge 749 v. Lothrop 82 Petit v. Minnesota 21, 860 Pettengill v. Chelsea 305 Pettibone v. La Crosse & Milwaukee R. R. Co. 819 Pettigrew v. Evansville 757 v. Washington Co. 595 Petty v. Tooker 661 Pfeiffer v. Board of Education 667 Pharis v. Dice 412 Phelps v. Goldthwaite 920 v. Meade 751 v. Phelps 252 v. Piper 900 v. Racey 879 Page Phelps v. Schroder 935, 936 Phelps' Appeal 516 Phenix Ins. Co. v. Burdett 38 v. Hart 671 v. Pollard 644 Philadelphia v. Commonwealth 681 v. Dickson 818 v. Dyer 818 v. Fox 266, 267, 360 v. Gray's Ferry Co.'s Appeal 398 v. Miller 712 i;. Rule 730 v. Scott 831, 868, 878 v. Smith 356 v. Tryon 736, 860 v. Ward 778 Philadelphia Assoc., &c. v. Wood 725 Philadelphia Fire Ass'n v. New York 20, 31, 687 Philadelphia M. & S. S. R. Co., Petition of 764 Philadelphia & Reading R. R. Co. v. Yeiser 826 Philadelphia & Trenton R. R. Co., Case of 791 Philadelphia, &c. R. R. Co. v. Bowers 874 v. Quigley 620 Philadelphia, &c. Ry. Co.'s Appeal 759 Philadelphia S. S." Co. v. Pennsyl- vania 688 Philips v. Bury 360 Philleo v. Hiles 706 Phillips v. Allen 292 v. Berick 81 v. Bridge Co. 902, 212 v. Council Bluffs 296 v. Covington, &c. Co. 209 v. Dunkirk, &c. R. R. Co. 760 v. Gallagher 899 v. People 281 v. South Park Com'rs 816 v. Stevens Point 712 v. Watson 766 v. Wickham 735 v. Wiley 607 Phillips Academy v. Andover 736 Phillpotts v. Blasdel 80 Phinizy v. Augusta 362 Phinney v. Phinney 413 Phipps c. State 868 v. West Md. R. R. Co. 791 Phoenix Ins. Co. v. Allen 480 v. Commonwealth 37 v. Welch 165, 707 Phoenix Fire Ass'n Co. v. Mont- gomery Fire Dept. 215, 696 Phoenix F. & M. Ins. Co. v. State v. Tennessee 397 Piatt v. People 929 Pickard r. Pullman, &c. Co. 689 Pickett v. Boyd 516, 630 v. Russell 908, 930, 933 v. School District 262 Picquet, Appellant 138 Piek v. Chicago, &c. R, R. Co. 830 Pierce v. Bartrum 854 TABLE OF CASES. Ixxxix Pierce v. Beck 262 v. Boston, &c. R. R. Corp. 804 F. Drew 770, 787 v. Getchell 927 v. Hubbard 589 v. Kimball 517, 890 v. Maryland 882 v. New Bedford 301 v. New Orleans Building Co. 275 v. Pierce 259 v. Somerset Ry. 36 v. State 464 v. Union Dist. 557 Pierpont v. Crouch 214 Pierson v. State 52 Pike v. Megoun 104, 927 v. Middleton 308 v. State 707 Pike Co. v. Barnes 167 v. Rowland 275 Pilkey v. Gleason 226, 275 Pirn v. Nicholson 118, 200, 214, 231 Pine Grove v. Talcott 711 Pingree v. Dix 706 v. Michigan Cent. Ry. Co. 836 Pingrey v. Washburn 197, 838 Pinney v. Providence L. & Inv. Co. 569 Piper v. Chappell 284 v. Moulton 263 Piqua v. Zimmerlin 885 Piqua Branch Bank v. Knoop 176, 392, 395 Piquet, Appellant 659 Piscataqua Bridge v. New Hampshire Bridge 395,398, 549, 757 Pitman v. Bump 522 v. Flint 89 Pittock v. O'Neil 461, 637, 639, 655 Pittsburg v. Coursin 111 v. Grier 356 v. Scott 764, 765 Pittsburg, &c. R. R. Co. v. Brown 883 v. Hixon 81 v. Reich 824 v. S. W. Penn. R. R. Co. 842 Pittsburg C. C. & St. Louis Ry. Co. v. Backus 692 v. Board of Pub. Wks. 606 v. Crown Point 298 v. Long Island L. & T. Co. 28 v. Montgomery 232 v. State 718 Pittsburg & S. Coal Co. v. Bates 688 v. Louisiana 856 Pittsburg & W. E. P. Ry. Co. v. Point Bridge Co. 758 Pittsburg W. & K. Co. v. Benwood Iron Works 766, 767 Pixley v. Clark . 831 Pizano v. State 468 Plante, Ex pctrte 495 Planter's Bank v. Black 136 Planter's Ins. Co. v. Tennessee 397 v. Sharp 175, 392 Plainer v. Best 81 Platt Bros. & Co. v. Waterbury 782 Page Platteville v. Bell 285 Pleasant v. Kost 737 v. State 464 Pleasant Tp. v. Aetna Life Ins. Co. 32 Pleasants v. Rohrer 521 Pledger v. Hathcock 607 Plessv v. Ferguson 16, 19, 869 Pleufer v. State 400, 709, 710 Plimpton v. Somerset 341, 454 Plitt v. Cox 801, 809 Plumb v. Christie 845 v. Sawyer 615, 529 Plumley v. Massachusetts 849, 858 Plummer v. Coler 683 v. Yost 99 v. Plummer 104 Plunkard v. State 19 Plurality Elections, In re 931 Plymouth v. Painter 897 898 Pocantico Water Wks. Co. v. Bird 767 Pocopson Road 765 Poertner v. Russell 86 Poindexter r. Greenhow 24, 386, 403 v. May 841 Police Commissioners v. Louisville 831 Police Jury v. Britton 320 v. Shreveport 267, 268- Polinsky v. People 286 Polk v. State 437 Polk Co. Sav. Bank v. State 695 Polk's Lessee v. Wendal 33 Pollard v. Lyon 605, 606 v. State 437 Pollard's Lessee v. Hagan 52, 754, 755 Polling Lists, In re 906 Pollock v. Farmers' Loan & Trust Co. (157 U. S.) 685 v. Farmers' L. & T. Co. (158 U. S.) 601 v. Hastings 605, 606 v. McClurken 655 Pollock's Adm. v. Louisville 805 Pomeroy v. Chicago, &c. R. R. Co. 791 Pomfrey v. Saratoga 863 Pond v. Irwin 86 v. Negus 113 v. People 434, 435 Ponder v. Graham 150 Pontiac v. Carter 296, 783 Pool v. Boston 310 Pope v. Macon 627, 653 v. Phifer 65, 209 o. State 451 Popham v. Pickburn 651 Porter r. Botkins 608 v. Hill 80 v. Mariner 406 v. Ritch 369 v. Sabin v. Sawyer 924 Porterfield v. Clark 33 Port Huron v. Jenkinson 281, 837, 860 Port Huron, &c. Ry. Co. v. Callanan 818 v. Voorheis 82S Portland v. Banger 18, 568 v. Portland Bit. Paving I. Co. 713 xc TABLE OF CASES. Portland v. Schmidt 257, 291 v. Water Co. 742 Portland & R. E. R. Co. v. Deering 822, 839 Portland & W. V. R. R. Co. v. Port- land 796 Portland Bank v. Apthorp 679 Portland H. B. Society v. Kelly 741 Port Wardens v. The Ward 856 Portwood v. Montgomery Co. 268, 341 Posnett v. Marble 628 Post v. Boston 363 v. Supervisors 83, 201 Postal Tel. Co. v. Adams 687, 692 Postal Tel. Cable Co. v. Baltimore 690 v. City Council of Charleston 689 v. Eaton 804 v. Richmond 689 Postmaster v. Early 136 Potter v. Brale 424 v. Hiscox 584 Potts v. Penn. S. V. R. R. Co. 823 Poughkeepsie Bridge Co., Matter of 754 Poundstone v. Baldwin 768, 770 Powell, Ex parte 40, 160 v. Board of Education 261 v. Brandon 52 v. Holman 941 v. Jackson Com. Council 206 v. Pennsylvania 882 v. Sims 52 v. Spackman 903 v. State 77, 137, 469 v. Sup'rs of Brunswick Co. 30 Power v. Athens 567 v. Bowdle 751 Powers v. Bears 815, 816 v. Bergen 148, 149 v. Com. 897 v. Dougherty Co. 167 v. Dubois ' 607, 624 v. Skinner 198 v. Wright 544 Powers's Appeal 760, 817, 818 Poyer v. Des Plaines 883 Pratt v. Brown 87,548,764,772,777 v. Donovan 681 v. Jones 625 v. Paris G. & C. Co. 26 v. People 925 v. Pioneer Press Co. 606, 644 v. Tefft 514 Pray v. Northern Liberties 741 Prentice v. Weston 748 Prentis v. Commonwealth 192 Prentiss v. Boston 363 v. Holbrook 80 Presbyterian Society v. Auburn, &c. R. R. Co. 791 Prescott v. City of Chicago 209 v. State ' 46, 423 v. Tousey 630 v. Trustees of Illinois & M. Ca- nal 195 President D. & H. C. Co. . Whitehall 807 Presser v. Illinois 18, 46, 245 Preston, Re 570, 887 v. Boston 575 v. Browder 33 Prettyman v. Supervisors, &c. 167, 326 Price v. Baker 932 v. Hopkin 224, 523, 524 Price v. Lush 900 v. Mott 97 v. New Jersey R. R. Co. 842 v. State 467, 469, 470 Prichard's Case 192 Priestly v. Watkins 403 Priewe v. Wisconsin State L. & Imp. Co. 571, 782 Primes Estate, Ee 740 Primm v. Belleville 707, 743 Prince v. Crocker 696 v. Skillin 935, 936, 937, 940 Princeton v. Gieske 304 Pritchard v. Citizen's Bank 515 v. Magown 696 Pritchett v. State 468 Pritz, Ex parte 182 Privett v. Bickford 894, 932 Proctor v. Andover 765 Prohibitory Amendment Cases 495, 849, 893 Proprietors, &c. v. Laboree 523 v. Nashua & Lowell R. R. Co. 757, 804, 823, 825 Proprietors Mt. Auburn Cemetery v. Cambridge 396 Prospect Park, &c. R. R. Co. v. Williamson , 807 Prosser v. Wapello Co. 787 v. Warner 583 Prother v. Lexington 356 Protho v. Orr 119, 209 Protzman v. Indianapolis, &c. R. R. Co. 785, 797 Prout v. Berry 138 Providence v. Clapp 363 Providence, &c. R. R. Co. v. Nor- wich, &c. R. R. Co. 807 Providence & W. Ry. Co., Petitioner 763, 807 Providence Bank v. Billings 396, 565, 679 Providence Coal Co. v. Prov. & W. R. R. Co. 875 Providence Savings Institute v. Skating Rink 407 Provident List. v. Jersey City 20 Pryor, Be 266 v. Downey 151, 546 Pueblo v. Robinson 717, 729 v. Strait 784 Pueblo Co. Com'rs v. Smith 168 Puitt v. Com'rs 667, 708 Pulford v. Fire Department 200 Pullman Palace C. Co. v. Hayward 692 v. Pennsylvania 32, 692 v. State 709 Pullen v. Raleigh 272 Pumpelly v. Green Bay, &c. Co. 783, 787 Purcell v. Sowler 628 TABLE OF CASES. XC1 Page Purdy v. Erie Ry. Co. 875 Purvear v. Commonwealth 46, 851 Puryear v. State 451 Putnam v. Johnson 903, 904 Q. Quackenbush v. Banks 408, 529 v. District of Columbia 816 v. Wisconsin, &c. B. R. Co. 842 Quarles, Re 568 v. State 860 Quarrier, Ex parte 372 Queen, The, v. Badger 439 v. Coaks 932 v. Collins 612-614 v. Hennessy 177 v. Justices of Hertfordshire 695 v. Justices of London 595 v. Justices of Suffolk 595 v. Lefroy 643 v. Newman 658 v. Pikesley 443 Quick v. Whitewater Township 92 Quigley v. Pa. S. V. R. R. Co. 811 Quill v. Indianapolis 321 Quimby v. Vermont Central R. R. Co. 808 Quincy v. Jackson 319, 745 v. Jones 296 Quinn v. Markoe 911, 929 ff. State 99, 902, 929 Quong Woo, Matter of, 294, 890, 891 R. Rabb v. Supervisors 524 Racine I. Co. v. McCommons 689 Radcliffe v. Eden 346 Radcliffe's Executors v. Brooklyn 296, 781, 783 Rader v. Road District 267 v. Union 212 Rae v. Flint 272 Rafferty v. Central Traction Co. 803 Ragatz v. Dubuque 815 Ragis v. State 213 Rahrer, Re (43 Fed.) 259 Re (140 U. S.) 847 Railway v. Munday 415 Rail v. Potts 927 Railroad Co. v. Alabama 24, 410 v. Bearss 915 v. Blake 779 v. Brown 20 v. Commissioners 694 v. Com'rs of Clinton Co. 163, 167 v. Dayton 806 v. Ellis 886 . Ferris 813 v. Foreman 824 v. Fuller 836, 840, 874 v. Georgia 34, 47 v. Gregory 209 Page Railroad Co. v. Hambleton 802 v. Hicks 237 v. Husen 881 v. Jackson 694 v. Lake 760 v. Lawrence 802 v. Maine 394 v. McClure 62 v. Mississippi 23, 29 v. National Bank 35 v. Peniston 684 v. Philadelphia 896, 740 v. Pounds 630 i;. Prescott 683 v. Renwick 787 v. Richmond 510, 781 v. Rock 30 v. Shurmeir 801 v. Tennessee 24, 410 v. Trimble 42 v. Warren Co. 114 v. Whiteneck 209 Railroad Com. Cases 18, 874 Railroad Commissioners v. Port- land, &c. R. R. Co. 394, 843 Railway Gross Receipts Tax 689 Raleigh v. Peace 730, 731 v. Sorrell 888 Raleigh, &c. R. R. Co. v. Davis 777 v. Reid 395 Ralston v. Lothain 515 Ramsey v. People 570, 877 Ramsey County v. Lewis Company (72 Minn.) 729, 731 v. Lewis Company (82 Minn.) 731 v. MacAlester College 740 Rand v. Commonwealth 382, 383 Randall v. Eastern R. R. Corp. 304 v. Jacksonville, &c. Co. 795 v. Kehlor 591 v. Railroad Co. 301 Randolph, Ex parte 231 v. Board of Freeholders 824 v. Good 99, 370 Randolph Co. v. Rails 588 Randolph's Executor v. Quidnick 32 Rangely v. Webster 421 Ranger v. Goodrich 607 v. Great Western R. R. 593 Rankin v. McCallum 267 v. West 95 Rape v. Heaton 42, 583, 586 Rash v. Farley 689 Rasmussen v. Baker 944 v. Idaho 853 Ratcliffe v. Anderson 138 Rathbone v. Bradford 223 v. Wirth 158, 244 Rathbun v. Wheeler 616 Hatterman v. W. U. Tel. Co. 689 Ratzky v. People Rauch v. Chapman 321 Rauenstein v. N. Y. L. & W. Ry. Co. 784 Raw ley v. Hooker 412 Rawson v. Spencer 261, 268, 269, 345 Ray v. Manchester 301 XC11 TABLE OF CASES. Kay v. St. Paul v. Sweeney Ray Co. v. Bentley Raymond v. Fish Rea v. Harrington Read v. Case v. Plattsmouth Reading v. Keppleman r. Savage Page 362 62 348 858, 854 606 487 183, 210, 336, 539 296 183 Reading & P. R. R. Co. v. Balthasar 822 Reagan v. Farmers' L. & T. Co. 24, 872 v. Mercantile T. Co. 873, 874 Ream v. Kearns 694, 595 Reardon v. San Francisco 296, 811 v. St. Louis 355 Rearick v. Wilcox 623, 624 Reaume v. Chambers 52 Recalling Bills, Re 219 Recht v. Kelly 252 Reciprocity Bank, Matter of the 62 Reckner v. Warner 691 Re-creation of New Counties 199 Rector v. Smith 612, 630, 631 Red River Bridge Co. v. Clarksville 757, 786 Red River Val. Nat'l Bk. v. Craig 407 Red Rock v. Henry 217 Reddall u. Bryan 31, 755, 769 Redell r. Moores 248 Redfield v. Florence 923 Redgate v. Roush 612 Redmond v. Tarboro 739 Redwood Co. v. Winona, &c. Co. 631, 712 Reed v. Beall 404 v. Belfast 303 v. Ohio, &c. Ry. Co. 761 v. Reed 42, 579 v. Rice 46 v. State 209 v. Toledo 271 v. Tyler 627 . Wright 603 Reelfoot Lake Levee Dist. v. Dawson 718 Rees's App. 770 Reetz t;. Michigan 890 Reeves v. Treasurer of Wood Co. 717, 728, 735, 754, 765, 770, 868 Reformed Church v. Schoolcraft 522, 661 Reformed P. D. Church v. Mott 146, 149 Regents of University v. Williams 149 176, 232, 250 Reggel, Ex parts. 39, 40 Regina. (See Queen.) Regnier v. Cabot 607 Rehoboth v. Hunt 386 Reich v. State 281 Reichert v. St. Louis 791, 828 Reid v. Delorme 618,619 v. Ham 41 v. Norfolk City Ry. Co. 804 v. Smoulter 99 Reilly v. Stephenson 607 Reimsdyke v. Kane 36 Reining v. N. Y., L. E. & W. R. Co. 799, 811 Page Reinken v. Fuehring 714 Reiser v. Tell Association 136, 137 Reitan v. Goebel 607 Reitenbaugh v. Chester Valley R. R. Co. 761 Reithmiller v. People 237 Remington, In re 454 r. Congdon 619 Remington Paper Co. v. Watson 31 Remsen v. People 466 Renner v. Bennett 933 Kennselaer v. Leopold 759 Reno Smelting Works v. Stevenson 52 Rentz v. Detroit 729 Requa v. Rochester 368 Re-reading of Bills 200 Response to House Resolution 166, 167 Respublica v. Dennie 603, 616 v. Duquet 286, 878 v. Gibbs 922, 923 v. Oswald 453, 643 v. Passmore 643 Reusch v. Chicago, &c. R. R. Co. 757 Revis v. Smith 629 Rex. (See King, The.) Rexford v. Knight 809, 814, 815 Reymann Brewing Co. v. Brister 694 Reynolds, Ex parte 104 v. Adden 44 v. Baker 66, 522, 817, 818 v. Baldwin 267, 268 v. Geary 849 v. New Salem 275 v. Shreveport 296 v. State 937 v. Stockton 41, 42, 43, 44 v. United States 662, 668 Rhine t'. McKinney 817 Rhinehart v. Lance 454 Rhines v. Clark 691 Rhodes v. Cincinnati 296 v. Cleveland 304 v. Iowa 847 v. Otis 861 v. Weldy 96 Rice v. Austin 162 v. Des Moines 363 v. Evansville 302 v. Foster 163, 171, 173 v. Parkman 141, 149 v. Ruddiman 224 v. State 183, 228 v. Turnpike Co. 824 Rice's Case 481 Rich v. Braxton 750 v. Chamberlain 160 v. Chicago 817 v. Flanders 253, 409, 611, 525, 630, 544 Richard Oliver, In re 171 Richards v. Raymond 261 r. Rote 151, 646 v. Wolf 764 Richardson v. Boston 695 v. M on son 146 v. Morgan 717, 730 TABLE OF CASES. XC111 Richardson v. Roberts v. Scott's Bluff Co. v. State v. Union Cong. Soc. v. Vermont Central R. R. Co. v. Webster City v. Welcome Riche v. Bar Harbor W. Co. Richland Co. v. Lawrence Co. 266, 339, 345 v. Richland Center Richman v. Muscatine Co. v. Supervisors Richmond v. Daniel v. Dudley 288 v. Long 306, 356, 357 v. McGirr v. Richmond, &c. R. R. Co. 390, v. Supervisors Richmond & A. R. R. Co. v. Lynch- burg v. Patterson Richmond & D. R. R. Co. v. Reids- ville Richmond, &c. Co. v. Rogers 781, Richmond, &c. R. R. Co. v. Louisa, &c. R. R. Co. 565, Richmond Co. Acad. v. Augusta Richmond & My. Ry. Co. v. Hum- phreys Richmond N. G. Co. v. Clawson Ricketts v. Spraker 251, 587, Riddle v. Proprietors of Locks, &c. 351, Ridge Street, In re Rigg v. Wilton Riggin's Ex'rs v. Brown Rigney v. Chicago 296, 810, Riley v. Rochester Riley's Case 383, Rima v. Cowan Rinard v. Burlington, &c. Ry. Co. Ring, Matter of 7. Wheeler Rio Grande, The Rippe i'. Becker Rison v. Farr 99, 406, 411. 518, Risser v. Hoyt 86, 129, Ritchie v. People River Rendering Co. v. Behr 286, Rivers v. Augusta Rixner's Succession Roach v. Board, &c. Roanoke, &c. R. R. Co. v. Davis Roanoke City v. Berkowitz Robards v. Brown Ro Bards v. Lamb Robb v. Connolly Robbins v. Fletcher v. Shelby Taxing Dist. 688 v. State Robbins v. Treadway 606, 628 Roberson i\ Rochester, &c. Co. Page 607 198 628 661 781, 785 296 595 769 268, 391 346 182 182 745 290 360 320 407, 565 630 717 852 709 785, 822 757 21 827 877 743 348, 356 783 85 82 811 312 496 751 797 496 633 80 327 519 590 570 291 301 708 261 316 809 412 20 494 607 ,694 464 629 510 Roberts, In re v. Caldwell v. Calvert v. Chicago v. Lewis v. Louisville v. Ogle v. People v. Reilly v. State Robertson v. Baldwin v. Bullions v. Land Commissioner v. Omaha v. Rockford Robeson v. Brown Robie v. Sedgwick Robinson, Ex parte Re v. Bank of Darien v. Bidwell Page 195, 201 42 922, 929, 933, 937 296, 783 27 130 286. 860, 884 445 39,40 453 14, 23 660 387 713 167, 266, 325 412 276 13, 453, 492, 707 425 212, 247 171, 247 v. Cheboygan Superv. 189 v. Commonwealth Insurance Co. 35 Estate of 272 v. Evansville 301 v. Greenville 302 v. Hamilton 890 v. Howe 413 t7. Kalbfleish 924 v. N. Y. & Erie R. R. Co. 786 v. Oceanic S. N. Co. 37 v. Pa. Ry. Co. 778 v. Richardson 434 v. Robinson 822 v. Schenck 253, 265 v. Skipworth 208 v. State 209 v. Swope 765 v. Ward's Ex'rs 41, 583 . West 588 v. White 388 Roby v. Colehour 30 v. Smith 38 i>. West 636 Roche v. Waters 632, 546 Rochester 17. Collins 271 v. Rush 312, 695 v. Upman 710 Rochester H. & L. R. R. Co., Matter of 807 . N. Y., &c. Co. 807 Rochester Water Com'rs. Re 758 Rochester White Lead Co. v. Roches- ter 356, 362 Rockford, &c. R. R. Co. v. Coppin- ger 825 v. Hilmer 843 Rockland Water Co. v. Camden, &c. Co. Rockport v. Walden Rockwell v. Hubbell's Adm'rs 549 522 406, 408, 515 520, 582 718 v. Nearing Rode v. Siebe Ro'demacher v. Milwaukee, &c. R. R. Co. 394, 841 XC1V TABLE OF CASES. Page Roderigas v. Savings Institution 80 Rodman v. Harcourt 895 Roe v. Deming 263 Roethke v. Philip Best Brewing Co. 850 Rogers v. Bradshaw 813 v. Buffalo 158, 159, 894 v. Burlington 167, 319 v. Coleman 42 v. Goodwin 106 v. Greenbush 529 v. Jacob 910 v. Jones 279 v. Manuf. Imp. Co. 213 v. State 216 v. Stephens 631 v. Vass 224 Rohan-Chabot's Estate, Re 709 Rohrbacker v. Jackson 901 Rolfs, In re 454 Roll o. Augusta 296 Roller v. Holly 20 Rollins, Ex parte 496 Rolpli v. Fargo 731 Rolston v. Missouri Fund Com'rs 24 Romaine, Re 708 Rome v. Omberg 296 Rood v. McCargar 246 Roosevelt v. Meyer 31 Roosevelt, Estate of, Re 709 Root v. Right 478 Root's Case 822 Roper v. Laurinburg 272 Ropes v. Clinch 25 Rosdeitscher, In re 177 Rose v. Hardie 860 v. Rose 513 v. Truax 198 Roseberry v. Huff 749 Rosenbaum v. Newbern 288 Rosenblat, Ex parte 39 Rosenblatt, Ex parte 259, 496, 694 Rosenbloom v. State 887 Rosenburg v. Des Moines 358 Rosenheim v. Hartsock 588 Rosenthal v. State Board of Can- vassers 935 Rosier v. Hale 515 Ross v. Clinton 307 v. Crockett 275 v. Davis 766, 825 v. Duval 33 v. Irving 552 v. Lister 252 ?'. Mclntyre 47, 456 v. McLung 33 v. State 446 v. Ward 620 v. Whitman 131 Ross's Case 383, 496 Rosser, Re 442 Rossmiller v. State 673 Roth v. Ehman 31 v. House of Refuge 423 Rothermel v. Meyerle 691, 693 Rothschild o. Grix 86 Rounds v. Mumford 296 Page Rounds v. Way mart 217 Roundtree v. Galveston 717 Rouse H. & Co. i>. Donovan 671 Roush v. Walter 867 Roushlange v. Chicago, &c. Ry. Co. 826 Rousseau v. New Orleans 406 Routsong v. Wolf 538 Rowan v. Runnels 33, 121 v. State 459, 503 Rowe v. Addison 757 v. Granite Bridge Corporation 786 v. Portsmouth 304, 363 Rowland v. Kalamazoo Supts. 306 v. State 400 Royal v. Thomas 592 Royal British Bank v. Turquand 323 Royall, Ex parte 493, 496 Rozier v. Fagan 148 Ruch v. New Orleans 475 Rude v. St. Louis 810, 812 Rue High's Case 903 Ruggles v. Collier 294 v. Nantucket 757 v. People 875 Rugh v. Ottenheimer 515 Ruhl, Re 161 Ruhstrat v. People 668 Rulison v. Post 263 Ruloff v. People 447 v. State 445 Rumney v. Keyes 484 Rumsey v. N. Y., &c. Ry. Co. 782 t-. People 108, 364 Rundle v. Foster 478 Runge v. Franklin 630 Runnels v. State 444 Runyon v. Coster's Lessee 178 Ruohs v. Backer 630, 633 Rupert v. Martz 406, 548 Rusch v. Davenport 356, 357 Rush v. Cavenaugh 482 Rushing v. Sebree 213 Rushville v. Rushville N. G. Co. 876 Rushville Gas Co. v. Rushville 202, 272 Russell v. Anthony 628 v. Ayer 120 v. Belcher 592 v. Burlington 296 v. Burton 196 v. Chittenden 751 v. Cooley 130 v. Croy 573, 708 v. Men of Devon 278,350,355 v. New York 767, 878 v. Perry 42 v. Pyland 924 v. Rumsey 614, 539 v. State 262 v. Whiting 495 Russellville v. White 284 Rust v. Gott 924 v. Lowe 810 Rutgers v. Mayor of Brunswick 563 Ruth, In re 851 Rutherford v. Hamilton 736 Rutland v. Mendon 85 TABLE OF CASES. XCV Rutledge v. Crawford Rutter v. Sullivan Ryalls v. Leader Ryan, In re v. L. & U. Terminal Co v. Lynch v. Thomas Rychlicki v. St. Louis Ryckman v. Delavan Ryder v. State Ryegate v. Wardsboro Ryerson v. Brown v. Utley 207, 209, Ryhiner v. Frank S. Sackett v. Sackett Sacramento v. Crocker Sadler r. Langham Safford v. People Sage v. New York Saginaw, &c. Ry. Co. v. Bordner Sahlinger v. People Sailly v. Smith Sala o. New Orleans Sale u. First Bapt. Ch. Salem v. Eastern R. R. Co. v. Maynes Salem Turnpike v. Essex Co. Saleno r. Neosho Salt Co. v. Brown Salt Creek V. T. Co. v. Parks Sailers v. Tobias Saltmarsh v. Bow Saltpetre Case Sam Kee, In re Sammons v. Hplloway Sams v. King San Antonio v. Jones v. Lane San Antonio & A. P. Ry. Co. v. S. W. Telpli. & Telne. Co. San Bernardino v. Southern P. Co. Sanborn v. Deerfield v. Rice Sanders, Re v. Cabaniss v. Getcliell v. Hillsboro Ins. Co. v. Metcalf v. Rollinson Sand ford v. Nichols San Diego v. Linda Vista Irrig. Dist. San Diego Land & T. Co. v. Nation- al City v. Neale San Diego W. Co. v. San Diego Sands v. Kimbark v. Mainstee Riv. Imp. Co. Sands v. Richmond Sanford v. Bennett Page Page 900,923 San Francisco v. Canaran 267, 346 167 v. Liverpool, &c. Co. 707 637, 639 v. Western U. Tel. Co. 690 217 Sangamon Co. v. Springfield 391 696, 768 Sanitary District of Chicago v. 116,200,201, Loughran 826 31 San Mateo Co. v. Sou. Pac. R. R. Co. 17, 304 505, 712, 723 609 San Mateo Waterworks v. Sharp- 474 stein 788 92 Sans v. Joerris 644 771. 773, 775 Santa Ana v. Harlan 827 , 213, 703, 706 Santa Clara Co. v. Sou. Pac. R. R. 624 Co. 19, 706 Santa Cruz v. Enright 777 Santo v. State 163, 170, 237, 246, 248, 846, 849 Sargent & Co. v. Tuttle 266 62 Sater v. Burlington & M. P. Plank 725 R. Co. 821, 822 106, 250, 764, Satterlee v. Matthewson 374, 637, 544 765, 773 v. San Francisco 202 464 Saul v. His Creditors 178, 217 782, 787 Sauls v. Freeman 594 'dner 777 Saulsbury v. Ithaca 363 453 Saunders v. Baxter 637 428 v. Haynes 932 415 v. Mills 637, 658 660 v. Rod way 485 884 v. Springstein 719 286 v. Wilson 553 o. 268 Savage v. Commonwealth 174 321 v. Salem 298 771 v. Walshe 114 ks 571 Savannah o. Hancock 775 136 v. Hartridge 271 ,363 v. Kelly 320 878 v. Spears 304 883 v. State 204, 247 685 v. Weed 718 92 Sa vannah, &c. R. R. Co. v. Savan- 167 nah 796 321 Savannah F. & W. Ry. Co. v. Geiger 213 Co. v. S. Saving Society v. Philadelphia 278 762 Savings Bank v. Allen 637 P. Co. 690 v. Bates 537 323 Savings & Loan Society v. Multno- 340, 703, 706 mah County 21, 695 853 Sawyer v. Alton 737 138 v. Conn. 827 905, 927 v. Corse 356 406 v. Insurance Co. 100 453 v. Northfield 303 680 v. Vermont, &c. R. R. Co. 841 430 Saxton v. St. Joseph 302 a Irrig. Sayer v. Phillips 290 740, 741 Sayles v. Davis 685 Nation- Sayre v. Wisner 529 874, 875 Sayward v. Denny 27 827 Scales v. Chattahoochee Co. 348 iego 872 v. State 216 696 Scanlan v. Childs 104, 106 ;o. 55, 864, Scanlon v. Wedger 306 865 Scates v. King 82 860 Schaaf v. Cleveland M. & S. Ry. Co. 803 644 Schaezlein v. Cabaniss 164 XCV1 TABLE OF CASES. Schattner v. Kansas City 296 Schee v. La Grange 687 Schenley v. Alleghany City 717 v. Commonwealth 515, 529, 535 Sehideler v. State 470 Schipper v. Aurora 274 Schliet v. State 859 Schlitz v. Roentz 574 Schmalz v. Woolley 66 Schmidt, Ex parte 217, 454 v. Failey 719 Schneider v. Detroit 785 Schnier v. People 435 Schoen Bros. v. Atlanta 290 Schoenheit v. Nelson 616 Seholle v. State 163 Schollenberger v. Pennsylvania 848 School Board v. Patten 120 School Directors v. Hart 262 School District v. Atherton 275 v. Board of Education 269, 275 v. Col v in 262 v. Fogelman 262 v. Fuess 362 v. Gage 262 v. Insurance Co. 182, 348 v. Merrills 748 v. Stone 322 v. Wood 348, 349, 350 Schoolfield Exec. v. Lynchburg 707 School Law Manual, In re 182 Schooner Paulina's Cargo v. United States 89 Schooner Rachel v. United States 516, 544 Schopp v. St. Louis 298 Schroers v. Fisk 80 Schuchardt v. People 896 Schular v. State 453 Schulherr v. Bordeaux 118, 120, 174 Schultz v. Milwaukee 301 Schurman v. Marley 62 Schurmeier v. St. Paul, &c. R, R. Co. 791 Schussler v. Hennepin County Com'rs 306 Schuster v. Weiss 386 Schuyler v. Curtis 510 Schwab v. Berggren 22 Schweiss v. First Jud. Dist. Ct 183 Scituate v. Weymouth 269 Scofield v. Walk ins 743 Scotland Co. v. Thomas 321 Scotland Co. Court v. United States 319 Scott, Re 442 Ex parte 161 v. Clark 225, 226 v. Coleman 43 v. Detroit Young Men's Soci- ety's Lessee 56, 63 v. Donald 24, 847 i;. Fishblate 306 v. Hooper 677 v. Jones 30 v. Manchester 356 . Mather 553 v. McKinnish 608 v. McNeal 80, 575 Scott r. Sandford v. School District v. Smart's Ex'rs v. Willson Scoville v. Canfield v. Cleveland Page 89 262 237 861 181 716, 728, 730 Scranton v. Penn. Coal Co. 730 v. Wheeler 782, 787 Scranton School Dist., App. of 183 Scribner v. Rapp 660 Scripps v. Reilly 637, 650 Scudder v. Coler 30 v. Trenton, &c. Co. 775 Scuffletown Fence Co. v. McAllister 594 699, 868 Seaman's Friend Society v. Boston 741 Seamster v. Blackstock 588 Searcy v. Grow 932 Searle v. Clark 941 v. Lead 754, 784 Sears v. Board of Aldermen 717 v. Com'rs of Warren Co. 37 v. Cottrell 128, 242, 253, 506 v. Terry 586 Seattle v. Smyth 891 Seattle & M. Ry. Co. v. Murphine 826 . State 756, 758, 778, 807 Secombe v. Kittelson 59, 63 v. Railroad Co. 760 Second Ward Sav. Bk. v. Schrank 404 Secord v. Foutch 910 Sedgwick v. Stanton 197 Sedgwick Co. v. Bunker 268, 515 Seeley v. Bridgeport 590 Seely v. Pittsburg 730 Seery v. Viall 605 Sego v. Stoddard 900, 911 Seibert v. Lewis 406, 415 v. Linton 137 Seifert v. Brooklyn 304 Selby v. Bard on s 84 Selden t;. Jacksonville 781, 783 Selin v. Snyder 586 Selkirk v. Stevens 879 Seller v. Jenkins 605 Selraa, &c. R. R. Co., Ex parte 167 Selman v. Wolfe 863 Selsby v. Redlon 533 Semayne's Case 428 Semler, Petition of 495 Semple v. Vicksburg 306 Senate Bill, Re 73 Senate File, In re 60 Senate of Happy Home Club v. Al- pena Co. 164 Senate Resolution, In re 73, 219 Seneca Min. Co. Sec'y of State 259 Senior, Ex parte 455 Sentell v. N. O. & C. Ry. Co. 881 Sequestration Cases 414 Sergeant v. Kuhn 146 Sen-ill v. Philadelphia 726 Servatius v. Pichel 619 Servis v. Beatty 101 Sessions v. Crunkilton 728, 735, 868 Sessums v. Bolts 259 TABLE OF CASES. XCV11 Page Settle v. Van Evrea 92 Setzler v. Va. &c. R. R. Co. 825 Seven Hickory v. Ellery 220 Severn v. Regina 832, 858 Sewall v. Sewall 580 v. St. Paul 363 Sewell v. Board of Education 263 v. State 60 Sewickley v. Sholes 213 Sexton v. Todd 607 Seymour v. Cummins 302 v. Hartford 741 v. Turnpike Co. 316 Shackford v. Newington 331, 701 Shackleford v. Coffey 773 Shadden v. McElwee 629 Shafer v. Mumma 280, 286 Shaffer v. Union Mining Co. 888 Shanahan v. City of Waterbury 826 Shannon v. Frost 660, 661 Shapleigh v. San Angelo 267 Sharon Ry. Co.'s App. 807 Sharp v. Contra Costa Co. 336 v. New York 210 v. Spier 717 v. State 159 v. Thompson 898 Sharpe v. United States 828 Sharp's Ex'rs v. Dunavan 702 Sharpless v. Mayor, &c. 167, 331, 679, 701 Shartle v. Minneapolis 363 Shattuck v. Allen 656 v. Chandler 52 Shaver v. Penn. Ry. Co. 556 Shaw, Ex parte 495 v. Charlestown 818 v. Crawford 861 v. Dennis 702, 738 v. Macon 176 v. Moore 677 v. Nachwes 497 v. Norfolk R. R. Corp. 541 v. Thompson 484 Shawnee County v. Carter 111 Shawneetown v. Mason 296 Sheahan v. Collins 644 Shealy v. Chicago, &c. Ry. Co. 786 Shear v. Box 68 Shearlock v. Beardsworth 609 Sheckell v. Jackson 642 Sheehan v. Sturges 486 Sheehy v. Kansas City, &c. Co. 812 Sheely v. Biggs 605 Shehan's Heirs v. Barnett's Heirs 146 Shelby v. Guy 33, 522 Shelby County v. Tennessee C. Exp. Co. 696 v. Union and Planters' Bk. 31, 738, 740 Shelbyville Water Co. v. People 720 Sheldon, Ex parte 40 v. Fox 288 v. Kalamazoo 362 v. Wright 685, 586, 587 Sheley v. Detroit 719, 728 Shelter v. Gooding 613 Page Shelly's Appeal 52 Shonandoah V. R. R. Co. v. Griffith 83 v. Shepherd 822, 825 Sliepard v. Dowling 240, 848 Shepard's Case 15 Sliepardson v. Milwaukee, &c. R. R. Co. 267, 815, 816, 817 Shephard v. Wheeling 132 Shepherd v. Chelsea 301 v. Commissioners 891 v. People 381 Shepherd's Fold v. Mayor, &c. N. Y. 698 Sheppard's Election Case 929 Sherbourne v. Yuba Co. 355, 357 Sheridan v. Salem 216 Sherman v. Buick 765 v. Carr 308 v. Langham 387 v. Milwaukee, &c. R. R. Co. 761 v. Story 194 Sherman Co. v. Simons 322, 348 Sherrard v. Lafayette Co. 320 Sherwood v. Dist. Columbia 363 v. Fleming 540 Shideler v. State 470 Shields v. Bennett 209, 216 v. Clifton H. Land Co. 535 v. Coleman 27 v. Durham 305 v. Jacob 900 v. McGregor 911, 932 Shifflet v. Commonwealth 444 Shiner v. Jacobs 402 Shipley v. Todhunter 612 Shipp v. McGraw 605 v. Miller 83 v. State 453 Shipper v. Pennsylvania R. R. Co. 38 Shires v. Commonwealth 13 Shissler v. People 577 Shobert v. May 454 Shock v. McChesney 629 Shoemaker v. United States 756, 768, 775, 778, 824, 826 Sholl v. German Coal Co. 765, 777 Shonk v. Brown 151, 529, 540 Shore v. State 438 Short v. Bullion B. & C. Mining Co. 891 Shorter, Matter of 371 v. People 434 v. Smith 398 Shotridge, Re 455, 638 Shotwell v. Moore 683 Shoultz v. McPheeters 129 Shover v. State 676, 859 Shrader, Ex parte 133,853 Shreveport v. Levy 658, 663 v. Prescott 279 Shrunk v. Schuylkill Nav. Co. 781, 782 Shuman v. Fort Wayne 425 Shumate v. Heman 714 Shumway v. Bennett 133, 143, 263 v. Stillman 42 Shurbun v. Hooper 895 Shurtleff v. Parker 619 v. Stevens 619, 637, 647, 648 XCVU1 TABLE OF CASES. ShurtleffV Wiscasset Sibley v. Williams Sic, In re Sidgreaves v. Myatt Sidwell v. Evans Siebold, Ex parte Siegfried v. Kaymond Sifers v. Johnson Sigourney v. Sibley Sikes, Ex parte Silberman v. Hay Page 322 62 281 607 861 281, 492, 901 687 879 592, 595 283 182 Silkman v. Bd. Water Com'rs 287 Sill v. Corning 237, 242 Silliman v. Cummins 538 Sills v. Brown 452 Silsbee v. Stockle 546, 751 Silver Bow Co. v. Strombaugh 618 Silver Lake Bank v. North 180 Silvey v. Lindsay 905 Silvus v. State 466 Simmer v. St. Paul 304 Simmonds v. Simmonds. 139 Simmons, Ex parte 495 v. Camden 296 v. Commonwealth 177 v. Holster 605 v. Saul 42, 43 v. United States 469 . West. U. T. Co. 656 v. Wilson 745 Simmons Hardware Co. v. McGuire 694 Simms v. Railroad Co. 814 Simon r. Craft (182 U. S.) 572, 581 v. Craft (118 Ala.) 672 v. Durham 936 v. Northrup 337 Simonds v. Simonds 154, 558 Simonds's Ex'rs v. Gratz 676 Simons v. People 930 Simpson v. Bailey 210 v. Savings Bank 406, 530 v. State 62, 177 Simrall v. Covington 290 Sims, Re (118 Fed. Rep.) 695 Re (54 Kan.) 425 v. Daniels 900 v. Gay 587 v. Irvine 33 v. Jackson 707 v. Sims 43 v. State 470 Sinclair v. Jackson 232 Singer v. Bender 606 v. State 886 Singer Mfg. Co. v. Fleming 180 v. McCollock 256 v. Wright 688, 690, 876 Single v. Supervisors of Marathon 209, 642 Sing Lee, Ex parte 291 Singleton v. State 160 Sinking Fund Cases 394 Sinks v. Roese 177, 905 Sinton v. Ashbury 267, 336 Sioux City v. School District 742 Sioux City B. Co. v. Dakota Co. 719 Page Sioux City, &c. R. R. Co. v. Washing- ton Co. 712 Sioux City T. & W. Co. v. Trust of N. A. 32 Sioux Falls v. Kirby 290 Sipe, Re 290 Skaggs v. State 450 Skaneateles Water Works Co. v. Skan- eateles 383, 393, 565 Skelding v. Whitney 80, 81 Skellenger v. Smith 539 Skillman v. Chicago, &c. Ry. Co. 404, 809 Skinner, Ex parte 497 i;. Hartford Bridge Co. 296, 783 v. Henderson 697 v. Santa Rosa 819 Slack v. Jacob 89, 253, 254, 258 v. Maysville, &c. R. R. Co. 99, 167, 325, 699 Slade v. Slade 80 Slater, Ex parte 436 Slatten v. Des Moines Valley R. R. Co. 785, 826 Slaughter v. Commonwealth 37 v. Louisville 706 v. O' Berry 289 v. People 281 Slaughter-House Cases 18, 38, 401, 402, 418, 457, 567, 668, 832 Slauson v. Racine 248, 249 Slave Grace, The 422 Slaven v. Wheeler 595 Slay maker v. Phillips 911 Slayton r. Hulings 110, 114 Sleght v. Kane , 370 Slemmer v. Wright 482 Slinger v. Henneman 167, 174 Sloan v. Biemiller 752 v. Cooper 80 v. Pacific R. R. Co. 392, 838, 839 v. State 2G6 Smails v. White 209 Small v. Danville 360 Smalley v. Anderson 607 Smead v. Indianapolis, &c. R. R. Co. 321 Smeaton v. Martin 778, 814 Smiley v. McDonald 562 Smith, Ex parte 39, 40, 278, 934 Matter of 46 Petition of 496 v. Adrian 173 v. Alabama 688, 844, 857 v. Appleton 415 v. Ballantyne 82 r. Bohler 208 v. Brown 422 v. Bryan 615 v. Burrus 645 v. Callanan 761 v. Cheshire 320 v. Clark Co. 324 v. Cleveland 627, 545 v. Commonwealth 210, 212, 444 v. Connelly 773 v. Eastern R. R. Co. 841 . Frisbie 689 TABLE OF CASES. XC1X Page Smith v. Good 63 v. Gould 422 v. Hard 631 v. Howard 629 v. Hoyt 225, 218 v. Hunter 30 v. Inge v. Jackson 687 v. Janesville 169, 171 v. Judge 131, 242 v. Kingston 730, 860 v. Knoxville 285 v. Leavenworth 363 v. Levinus 265 v. Long 478 v. Louisville 710 v. Macon 238 v. Maryland 46 v. McCarthy 166, 232 v. McDowell 572 v. Merchand's Ex'rs 533 v. Milwaukee B. & T. E. 288 w. Moore 895 v. Morrison 224, 524 v. Morse 272, 294 >. Myers 162 v. Nelson 660 v. Norment 162 v. Packard 406, 413 v. People 100, 452 v. Reeves 24 v. Rice 585 v, Scott 639 v. Sedalia 782 v. Sellinsgrove 301 v. Sherry 348, 523, 546, 722 t>. Short 684 v. St. Louis & S. W. Ry. Co. 854 v. Shriver 34 v. Silence 607 v. Smith 42, 44, 222, 679, 580, 606 v. Speed 231, 453 v. State 16, 40, 160, 473, 87!) v. Stewart 606 v. Strother 132 v. Swormstedt 661 v. Thomas 611 v. Thursby 89 v. Township Board 262 v. Trimble 589 v. Van Gilder 406 v. Washington 296, 783 v. Worcester 714 Smith, Mary, Case of 444 Smith M. P. Co. v. McGroosty 38 Smither v. Campbell 194 Smoot v. Wetumpka 356 Smyth v. Ames (169 U. S.) 20, 24 v. Ames (171 U.S.) 874,875 v. McMasters 924 v. Titcomb 166 Sneider v. Heidelberger 408 Snell, In re 496 Snider v. St. Paul 805 Snohomish Co. v. Hay wood 815 Snow v. Fitchburg 736 Snowhill v. Snowhill Snyder v. Andrews v. Bull v. Ft. Madison St. Ry. Co. .v. Fulton v. Pennsylvania R. R. Co. v. Rockport Society, &c. v. Wheeler Page 146 656 640 803 658 791 296 34, 523, 530, 553 Society for Savings v. Coite 683 Society of Scriveners v. Brooking 282 Sohier v. Massachusetts Hospital 146 v. Trinity Church 660 Solomon v. Cartersville 219 v. Commissioners 220 v. Oscoda 749 Somers v. Met. El. Ry. Co. 801 Somerset & Stoystown Road 217 Somerville v, Hawkins 610 Somerville & Eastou R. R. Co. ads. Doughty 821, 823, 825 Sommers v. Johnson 408 Sommersett's Case 422 Soon Hing v. Crowley 258 Soper v. Harvard College 888 Sorchan v. Brooklyn 114 Sorocco v. Geary 757, 878 Sortwell v. Hughes 850 South & North Alabama R. R. Co. v. Morris Southard v. Central R. R. Co. South Bend v. Martin v. Reynolds South Branch L. Co. v. Ott South Carolina R. R. Co. v. Steiner 246, 556 540 690 318, 321 32 791, 794 South Chicago Ry. Co. v. Dix 766 South Covington & C. S. Ry. Co. v. Berry 288 Southern B. & L. Ass'n v. Norman 180 Southern Express Co. v. Com. 472 Southern Pac. Ry. Co. v. Denton 27, 179 South Ottawa v. Perkins 194, 320 Southport v. Ogden 279 Southwark Bank v. Commonwealth 89, 193, 194 South-western R. R. Co. v. Paulk 844 v. Telegraph Co. 814, 817 Southwest Mo. L. Co. v. Toplin 383 South wick v. South wick 525 Southworth v. Edmonds 749 v. Palmyra & Jacksonburg R. R. Co. 201 Soutter v. Madison 415 Sovereign v. State 215 Sowders v. Edmunds 585 Spaids v. Barrett 634 Spain, Re 689 Spangler v. Jacoby 116, 193, 201 Spangler's Case 26, 494 Sparhawk v. Sparhawk 138, 156 Sparrow v. Kingman 86 Spaulding v. Lowell 888 Speakership, Re 190 Spealman r. Railroad Co. 841 Spears v. State 445 TABLE OF CASES. Specht v. Commonwealth Speer v. Athens v. Plank Road Co. v. School Directors Speidel v. Schlosser Speight v. People Page 675, 859 194, 732 218 330. 699 .121 183 Spencer v. Board of Registration 901 v. Dearth 80, 83 v. McMasters 607 v. Merchant 698, 699, 711, 714, 722, 729 v. Met. St. Ry. Co. 827 v. State 89,90,216,217 Spengler v. Trowbridge 271 Sperry v. Flygare 713 v. Willard 192 Spickler, Re 259 Spier v. Baker 900 Spiering v. Andrae 628 Spies v. Illinois 46, 457 459 Spill 17. Maule 647 Spiller v, Woburn 263, 665 Spillman v. Williams 588 Splane v. Commonwealth 860 Split Rock Cable Road Co., Re 767 Spooner v. McConnell 65, 56, 176 Sporrer v. Eifler 11, 685 Spragg v. Shriver 151 Sprague v. Birdsall 566 v. Brown 99 v. Fletcher 38 v. Norway 929 v. Tripp 306 v. Worcester 784, 786 Spraigue v. Thompson 688 Spreckler v. Wakeley 406, 408, 521 Spreckles v. Spreckles 513 Sprigg v. Telegraph Co. 394 Spriggins v. Houghton 928 Spring 17. Russell 700 Springer v. Foster 34, 417 v. United States 680, 748 Springfield v. Connecticut River R. R. Co. 757, 789, 791 v. Doyle 358, 363 v. Green 717 v. Le Claire 356, 362 t7. Springfield St. Ry. Co. 393 Springfield F. & M. Ins. Co. v. Kes- seville 305 Springfield, &c. R. R. Co. v. Cold Spring 319 v. Hall 760 Spring Valley Water Works v. Barber 720 v. San Francisco 565, 872 v. San Mateo W. Works 778 v. Schottler 394 Springville City v. Thomas 458, 460 Squire v. Mudgett 408 Staats v. Washington 285 Stackhonse v. Lafayette 356 Stackpole v. Hallahan 900 17. Hennen 633 Stacy 17. Vermont Central R. R. Co. 761 St. Albans v. Bush 583 Stamp v. Cass Co. 310 Stanchfield v. Newton 304 Stand if ord -.-. Wingate 389 Stanfield v. Boyer 607 Stanfill v. Court of Co. Kev. 265 Stanford, Matter of 317 17. Worn 760 Staniford v. Barry 136 Stanley, Ex parte 440 v. Colt 146 v. Davenport 797, 806 v. Schwalby 27, 28, 524 v. Stanley 844 t7. State 178 v. Wabash St. L. & P. Ry. Co. 853 17. Webb 637, 638, 640 Stannard's Corners R. C. A. v. Brandes 767, 770 Stanton v. Metropolitan R. C. Co. 859 St. Anthony Falls W. P. Co. v. Com'rs 26, 387, 863 Stanwood v. Maiden 781 Starbuck v. Murray 42, 583 Starin v. Genoa 140, 320 Starkweather v. Bible Society 180 Starr v. Camden, &c. R. R. Co. 791, 806 v. Pease 156, 157 State, Ex parte 1 19 v. Adams 138, 370, 372, 393, 534, 896, 941 17. Adams Exp. Co. 163, 570 v. Agee 694 v. Ah Chew 885 v. Ah Sam 205, 208 v. Aiken 848 v. Albee 459 17. Aldrich 904 v. Algood 195, 205 v. Allen 466, 656, 591, 655 17. Allmond 845 17. Alman 452, 468 17. Almy 454 17. Alston 709 v. Arabs 676, 869 v. Amery 250 v. Anderson 183, 456, 893, 899, 900 17. Applegarth 690, 713 v. Arlin 376, 377 v. Armington 680 17. Arms 899 t7. Armstrong 144 v. Ashbrook 558, 837 v. Ashley 237 r. Askew 99 17. Associated Press 877 v. Atwood 629 17. Avery 937 v. Auditor 517, 529 t7. Austin 288 v. Babcock 121, 272 v. Bacon 194 v. Bailey 224, 878 v. Baker 99, 906, 907 17. Balch 628 r. Baltimore, &c. R. R. Co. 517, 675 v. Bank 410 TABLE OF CASES. Cl Page Pag* State v. Bank of South Carolina 410 State v. Brewster 93, 99 v. Banker's, &c. Association 212 v. Broadbelt 882 v. Barbee 97, 529 v. Brock man 445 v. Harden 923 v. Brookhart 96 v. Barge 282 v. Brooks 441, 446, 469 v. Barker 244, 386, 859 v. Brown 129, 177, 195, 423, 462, 485 v. Barnes 101 v. Brown & S. Mfg. Co. 568 v. Barnett 46 v. Brunetto 452 v. Barrels of Liquor 850 v. Brunst 389 v. Barrett 402, 485 v. Buchanan 62, 73, 891 v. Bartlett 177, 448 v. Buck 451 v. Bate 941 v. Buckeley 897 v. Bates 47 v. Bundy 437 v. Battle 469 v. Bunker 276 v. Beacon 183 v. Burbridge 929 v. Beal 449 v. Burdge 164, 880 v. Beattie 287 v. Burdick 900 v. Beddo 215 v. Burgdoerfer 212, 574 v. Bee Pub. Co. 646 v. Burgoyne 400 v. Behimer 470 v. Burlington 303 v. Belvel 436 v. Burlington & Mo. Ry. Co. 194 v. Beneke 163, 170, 591 v. Burnett 938 v. Benham 470 v. Burnham 612, 619, 630, 636, v. Bennett 177, 709 648, 658 v. Berg 934, 936 v. Burns 462 v. Berka 205 v. Burr 481 v. Berkley 441 v. Butman 644 v. Berlin 555, 849 v. Butt 129 v. Bernoudy 372 v. Butts 906 v. Berry 217 v. Buzine 39 v. Beswick 451 v. Buzzard 499 v. Bibb St. Ch. 661 v. Cadigan 38 v. Bienvenu 619 v. Cain 215, 217 v. Billings 572 v. Caldwell 689 ;. Binder 893, 931 v. Callendine 467, 468 v. Bishop 66 v. Callicut 79,89l v. Bixman 686 v. Camden Common Pleas 183 v. Black 899, 900, 923 v. Cameron 447 v. Blaisdell 469 v. Campbell 12, 52, 451, 882 v. Bland 893 v. Canfield 507 v. Blasdel 89 v. Cape Girardeau, &c. R. R. Co. 49. v. Bloom 898 253 v. Blossom 897 v. Cape May (59 N. J. L.) 297 v. Board of Assessors (55 N. J. L.) 690 v. Cape May (59 N. J. L.) 297 v. Board of Assessors (57 N. J. L ) 690 v. Cape May (59 N. J. L.) 298 v. Board of Education 262, 263, 679 v. Capital City Dairy Co. 849, 882 v. Board of Health 853 v. Cardozo 253 v. Board of Ins. Com'rs 38 v. Carew 414 v. Board of Liquidation 262 v. Carman 458 v. Boardtnan 289 v. Can 363, 896 v. Bode 900 v. Carro 46 v. Bond 224, 906 v. Carroll 898, 928 v. Bonnell 275 v. Cassidy 284, 710 v. Bonney 575 v. Cavers 920, 935 v. Boone County Court 74 v. Cawood 62 v. Borowsky 458 v. Central N. J. T. Co. 762 v. Bostick 445 v. Chambers 444 v. Boswell 436 v. Champeau 468 v. Bott 675, 676 v. Chandler 43, 670, 671, 672 v. Boucher 159 v. Chapel v. Bowers 206, 209 f. Chapman 848 t\ Bracco 694 v. Charleston 691, 728, 745, 868, 935 v. Branin 266, 267 v. Chicago M. & St. P. Ry. Co. 837, v. Brassfield 893 889 v. Brecht 469 v. Chicago, &c. Ry. Co. (70 v. Brennan's Liquors 434, 591 Iowa) 787, 875 Cll TABLE OF CASES. Page Page State v. Chicago, &c. Ry. Co. (40 State v. Crawford 437 Minn.) 875 v. Creeden 848 v. Church 924 v. Crenshaw 284 v. Churchill 592 v. Crescent City C. Co. 882 v. Cincinnati 348, 722 v. Cross 216 i: Cincinnati Gas Co. 306, 562, v. Croteau 464 789, 797 v. Crounse 222 v. Circuit Court 174, 213, 455, 646 v. Crowell 661 v. City Council of Charleston 8r>9 v. Crummey 280 v. Clark 183, 202, 285, 470 v. Cumberland R. R. Co. 707 v. Clarke 247, 279, 284, 285, 286, 895, v. Cummings 52, 177, 372 932 v. Cunningham (81 Wis.) 74, 931, 932 v. Clausmeire 424, 425 v. Cunningham (83 Wis.) 74, 931 v. Cleaves 448 v. Curtis 469 v. Clerk of Passaic 935, 937, 941 v. Dahl 60 v. Click 114 ?'. Daley 616 v. Clinton 44!) v. Dalton 669, 885, 889 v. Coahoma Co. 220, 223 v. Danforth 472 v. Cobaugh 846 v. Daniels 927 v. Coffee 446 v. Davis 218, 458 v. Coleman 437 v. Dawson 478 v. Coleman & Maxcy 505 v. Dean 717 v. Colgate 467 v. De Gress 895 v. Collector of Jersey City 743 v. Demorest 331 v. Collier 924 r. Denny 158, 166, 194, 218, 243, 248, v. Colon 66 334, 894 v. Commissioners 217, 321 v. Dent 20, 890 v. Com'rs of Baltimore 247 v. Denton 459 v. Com'rs of Clinton Co. 167 v. De Ranee 437 v. Com'rs of Hancock 167 v. Des Moines 163 v. Com'rs of Ormsby Co. 130 v. Dews 389 v. Com'rs of Perry Co. 248, 249 v. Dierberger 898 v. Com'rs of R. R. Taxation 394 v. Dillon 900, 902 v. Com'rs of School, &c. Lands 414 v. Dimick 177 v. Common Council of Madison 272 v. District Board 666 v. Common Pleas 676 v. District Court 173, 722, 814 v. Cone . 901 v. Divine 437 v. Congdon 453 v. Dodson 160 v. Connor 468 v. Doherty 153, 159, 505, 546, 938 v. Constantino 931 v. Dombaugh 248 v. Constitution 858 v. Donehey 849 v. Cook 487 v. Donewirth 937 v. Cooke 174, 400 v. Donovan 183 v. Cooler 381 r. Doron 89, 101 v. Cooley 740 v. Dortch 937 v. Cooper 470 v. Douglass 388 v. Copeland 163, 173, 246 v. Dousman 249 v. Copp 453 v. Dow 879 v. Corbett 886, 887 v. Draper 216, 389, 940 v. Cornell (53 Neb.) 696 o. Duckworth 854 v. Cornell (60 Neb.) 212 v. Duffy 657, 559 v. Corner 906 . Dugan 751 v. Corson 382 v. Duket 154 . County Canvassers 935 v. Dunning 161 v. County Commissioners 555, 936 v. Du Paquier 882 v. County Com'rs of Baltimore 114, v. Dwyer 279 555 v. Eason 312 v. County Court 183, 742 v. Easterbrook 247 v. County Court of Boone 182 v. East Fifth St. Ry. Co. 297 v. County Judge 936 v. Eby 674 v. County Judge of Davis 205, 207 v. Echols 893, 908 v. Covington 158, 214 v. Edwards (La. Ann.) 381 v. Cowan 266, 280 v. Edwards (86 Me.) 871 v. Cox 246, 458 v. Eidson 722 v. Craig 694 v. Elder 938 v. Crane 594 v. Elizabeth (66 N. J. L.) 182 TABLE OF CASES. cm Page Page State v. Elizabeth (58 N. J. L.) 288 State v. George 159, 894 v. Elliott 451 v. Georgia Medical Society 279 17. Ellis 177, 225, 923 v. Gerger 215 r. Elting 925 v. Gerhardt 173, 845 r. Elwood 914, 917, 920 v. Gerry 591 i7. Emery 469 v. Gibbs 474, 936 v. Endom 707 v. Gibson 455, 557 v. Engle 487 v. Giles 932 v. Engleman 775 v. Oilman 3V, 189, 837, 849 v. Epliraitn 467, 468 v. Gladson 852 v. Estabrook 707 v. Gleason 132 v. Everett 458 v. Glenn 104, 115, 218, 455 v. Fagan 220, 259 v. Godwin 259 v. Falley 900 17. Goetze 909 v. Farris G61 t7. Goff 895 v. Feibleman 895 v. Goldstucker 99 v. Felton 437 17. Good 931 v. Ferguson 211, 270, 271, 292, 529 r. Goodwill 559, 572, 877 v Ferris 709 v. Gordon 280 v. Fetter 937 v. Gorham 690 v. Field 170, 173 17. Governor (5 Ohio St.) 162 v. Finch 289 v. Governor (25 N. J.) 162, 935 t7. Findley 902 w. Governor (39 Mo.) 162 v. Fire Creek, &c. Co. 234, 559, 572, v. Graham 262 877 v. Graves 295, 299, 449, 813, 816 v. Fireman's Fund Ins. Co. 66 v. Gravette 561, 563 v. Fisher 888 v. Green 467, 560, 748, 893 v. Fiske 294 17. Greer 393, 530 v. Fitzgerald 451 v. Gregory 676 v. Fitzpatrick 430, 591 v. Grey 62 . Fleming 138 v. Griffey 915, 920 v. Foley 160, 336, 414, 860 v. Griffin 754, 880 v. Fooks 441 v. Griswold 424, 442 v. Foraker 202 v. Guilbert 134, 569 v. Ford 628 v. Guild 445, 447 v. Forkner 164 v. Gurney 210, 591 v. Forshner 647 v. Gut ' 209 v. Fosdick 38 v. Gutierrez 242 v. Foster 887, 888, 936 v. Guttenberg 531 v. Fox 244 i7. Haben 337, 343, 703 v. Fraelich 832 v. Hager 469 17. Framburg 452 r. Hairston 557 v. Francis 173, 189, 194, 893, 937 v. Halifax 737 i?. Frank 194 v. Hall 39, 41 v. Franklin Falls Co. 524 r. Halliday 692 v. Franks 922 17. Hallock 98 v. Frederic 451 t?. Hamlin 708 v. Freeman 243, 281, 285, 335, 452 v. Hammer 183 v. French 708, 718 v. Hammonton 307 v. Frew 643 v. Hannibal, &c. R. R. Co. 740 v. Friedley 64 v. Harbourne 885 v. Fritz 589 v. Hardin 449 v. Fry 156 v. Harrington 233, 888 v. Fuller 711, 728 v. Harris 333 i'. Furnell 709 . Harrison 209, 275, 935, 937 17. Gaffney 695 v. Hart 311 v. Gaines 215 v. Hartley 458 t?. Gammon 91 v. Haskins 626 v. Garbroski 184 17. Haun 568, 570 v. Gardiner 443 v. Hawkins 159, 183 v. Garesche 372 77. Haworth 262 v. Garton 685 v. Hawthorn 411 t7. Garvey 447 i?. Hay 880 v. G ates 467, 917, 918 ?7. Hayden 495 v. Gatzweiler 405 v. Hayes 170 v. Geer 879 17. Hayne 709, 935 CIV TABLE OF CASES. Page Page State v. Hays 259 State v. Johnson 115, 177, 451, 530, 691, v. Heard 105 932, 937, 938 v. Hebrew Congregation 661 v. Johnson (30 Fla.) 159 v. Height 443 v. Johnson (61 Kan.) 130 v. Henderson 159, 215 v. Johnson (18 Mont.) 900 v. Henley 67 v. Jones (5 Ala.) 464, 466 v. Henry 466 v. Jones ( 19 Ind.) 275, 909, 929 v. Heppenheimer (54 N. J. L.) 768 v. Jones (21 Md.) 621 v. Heppenheimer (58 N. J. L.) 740 v. Jones (50 N. H.) 437 v. Hernan 580 v. Jones. (7 S. E. Rep.) 453 v. Herod 283 v. Jones (66 Ohio) 183 v. Heyward 392 v. Jones (6 Wash.) 195 v. Heywood 207 . Judge 225, 595, 675, 940, 941 f. Hicks 876 v. Judge of Co. Court 257 r. Higgins 425, 570 v. Judges 28, 144 v. Higgs 289 v. Julow 67, 560, 887 v. Hilbert 395, 396 v. Jumel 499 v. Hill 289, 935, 936 v. Justices of Middlesex 937 v. Hilmantel 906, 913, 914, 932, 941 v. Kalb 388 943 v. Kanouse 462 v. Hinman 560 v. Kansas City 741, 825 v. Hitchcock 74, 182 v. Karstendick 287, 884 v. Hoagland 173, 183, 208 v. Kason 468 v. Hoboken 283 v. Kattleman 470 v. Hocker 592 v. Kaufman 468 v. Hockett 133 v. Keenan 884 v. Hogan (63 Ohio) 16, 473, 558 v. Keith 62, 281, 376 v. Hogan (24 Mont.) 900 v. Kelly 177, 452 v. Hogriever 859 v. Kelsey 73, 104 r. Holcomb 286 v. Kemp 462 v. Holden 166 v. Kempf 190 v. Holladay 121 v. Kennedy 849 v. Holleyman 848 v. Kenney 557 v. Hooker 451 v. Kennon 101, 158 v. Hopper 134, 137, 138 f. Kent 460 v. Hoskins 845, 880 v. Keokuk 740 v. Hosmer 589 v. Kettle 470 v. Hostetter 896 v. Kiesewetter 118, 218 v. Howell 218, 220 v. King 90 v Hoyt 437 v. Kinsella 213 v. Hudson Co. 355 v. Kirke 481, 895 v. Hudson County Bd., &c. 827 v. Kirkley 165, 274 v. Hudson Co. Com'rs 163, 740 v. Kirkwood 162 v. Hufford 40 v. Kirschner 160 v. Humphreys 895 v. Klein 710 . Hundley 437 v. Klinger 437 v. Hunter 334, 573 v. Knight 177 v. Hurley 437 v. Knowles 19 v. Hutt 895 v. Kolsem 182 v. Hyde 159 v. Kramer 938 v. 111. Centr. R. R. Co. 205 v. Krebs 665 r. Ind. & I. S. R. Co. 853 v. Kreitzberg 887 v. Indiana & O. G. & M. Co. 853, 858 v. Kruttschnitt 236 v. Indianapolis 556, 741 v. Lafayette Co. Court 209, 213, 236 v. Ingersoll 215 i\ Laiche 199 v. Ins. Co. 707 v. Lamberton 937 r. Itzcovitch 290 v. Lancaster 37 v. Jackman 286, 784, 861 v. Lancaster Co. 212, 893 v. Jackson 331, 557, 683, 878 v. Langlie 893 v. Jacksonville St. Ry. Co. 803 v. Lansing 100 v. Jarrett 189 v. Lash 95 v. Jay 655 v. Lathrop 707 v. Jefcoat 453 v. Layton 882 r. Jennings 267 v. Laverack 790, 800, 804 v. Jersey City 281, 292, 294, 717, v. Lawrence 448 840, 861 v. Lean 113, 225 TABLE OF CASES. CV Page Page State v. Learned 382 State v. McNiell 167 v. Lebanon & N. T. Co. 392 v. Mead 218 v. Le Blanch 177 v. Meek 863 v. Lee 452, 467 v. Medbury 37, 674 v. Lehre 603, 608, 656 v. Menaugh 899 v. Leiber 887 v. Merchants' Ins. Co. 725 v. Leonard 262 v. Messenger 623, 814 v. Lewis 879, 938 v. Messmore 389 v. Linn Co. Court 167 v. Metschan 120 v. Litchfield 432 v. Metzger 685, 920 v. Little 467 v. Michel 187 v. Lock wood 458 r. Middleham 435 v. Loomis - 674,877 v. Mikesell 467 v. Lonsdale 611 v. Miller 119, 209, 212, 268, 496, 547 v. Losatee 204 v. Mills 740 v. Lowe 437 v. Milwaukee Gas Co. 562 v. Lowhorne 447 v. Minnetonka 721 v. Lowry 467 v. Missouri Pac. Ry. Co. 746 v. Ludwig 280, 285 v. Mitchell 499, 574 v. Lupton 591 v. Mobile 804, 806 v. Lurch 442 v. Moffltt 162, 193, 863 v. Lyles 237 v. Monahan 183 v. Mace 93, 102 v. Montana Ry. Co. 845 v. Mack 286 v. Montclair R. Co. 806 v. Macon Co. Court 97 v. Montgomery 322, 573 v. Main 177, 878, 881 v. Mooney 459 v. Maine Cent. R. R. Co. 394 v. Moore (Minn.) 900 v. Manning 382, 544 v. Moore (104 N. C.) 555 v. Mannion 451 v. Moore (113 N. C.) 67,885 v. Mansfield 458 v. Moran 900 v. Marler 437 v. Morrill 463, 643 v. Mario w 937 v. Morris 400 v. Marshall 882 v. Morris Co. 174 v. Martin 160, 470 v. Morristown 270 v. Mason 922 v. Mott 282, 883 v. Mathews 836 v. Mounts 202 v. Matthews 191, 453 v. Mrozinski 879 v. Maxwell 743 v. Munchrath 459 v. Mayhew 104, 106, 506 v. Murphy (130 Mo.) 298 v. Maynard 129 v. Murphy (134 Mo.) 297, 298 v. Mayor, &c. 262, 299, 893 v. Murray 894, 932 v. Mayor of Newark 394, 562 v. Myers 882 v. McAdoo 372 v. Myrick 453 v. McAllister 893 v. Nash 162 v. McBride 60, 201 v. Neal 61, 372, 902 v. McCabe 604 v. Ned 467 v. McCallister 99 v. Neff 244 v. McCann 119, 185, 212, 557 v. Nelson (26 Ind.) 467 v. McCarty 459 v. Nelson (66 Minn.) 288 v. McClaugherty 453,' 482, 509 v. Nelson (62 Ohio) 845, 880 v. McConnell 194, 200 v. Nelson (19 R. I.) 468, 470 v. McCracken 209,211 v. Nelson County 697 v. McDaniel 205, 933 v. Newark 210, 631, 535, 539, 748, v. McDonald 212 868 v. McElroy 900, 926 v. Newark (37 N. J. L.) 714 v. McGeary 932 v. Newark (53 N. J. L.) 182 v. McGinley 114 v. Newark (54 N. J. L.) 767 v. McGinnis 461 v. New Brunswick 129 v. McGuire 487 v. New Haven, &c. Co. 165, 836 v. Mclver 817 v. New Orleans 411, 517, 711 v. McKee 603 v. New Orleans & L. R. Co. 284 v. McKenna 436 v. Newton 466 v. McLellan 240 v. Nichols 161 v. McMahon 287 v. Noble 95, 129, 139 v. McNally 281 v. Nolan 436 v. McNaspy 41 v. North 742 CV1 TABLE OF CASES. Page Page te v. Northern Central R. R. Co. 138 State v. Prince 468, 469 v. Norvell 467, 470 v. Pritchard 468 v. Norwood 616, 539, 644 17. Pugh 183, 248 v. Noyes (47 Me.) 149, 171, 172, 265, v. Purdy 923, 924, 925 392, 399, 767, 838, 839 v. Quarrel 458 v. Noyes (87 Wis.) 436 v. Quick 452 v. Ober 449 v. Quimby 647 v. O'Brien 726 17. Railroad Co. 8" 7, 859 v. O'Day 929 v. Kankin 46, 281, 468 v. O'Flaherty 382, 436 17. Ranscher 888 v. Ohio O. Co. 880 17. Ranson 205, 206 v. Old 906 17. Read 459 v. Oleson 280 t7. Redemeier 437 v. Olin 914, 923, 942 17. Redman 469 v. Oliver 452 v. Reed 467 v. Omaha C. B. R. & B. Co. 690, 875 17. Reid 128, 499 v. O'Neil 474, 848, 850 17. Reis 736 v. O'Neill 171, 265 t7. Reynolds 167, 171, 462 v. Orange 925 17. Rice 464 v. Orr 288 17. Rich 232 v. Orton 495 t7. Richards 694 v. Orvis 275, 909 17. Richardson 40, 467 v. Osawkee 317, 700 v. Richland 530 v. Osborue 263 v. Richmond 392, 496 v. Oskins 175 17. Richter 39 v. Oswalt 467 t7. Rickards 199 17. Palmer 212 17. Robart 291 v. Parker 163, 165, 170, 172, 469, 742 17. Robb 928 v. Parkinson 104, 183 17. Robbins 182, 574 v. Passaic 516 i7. Roberts 283, 447 v. Paterson (34 N. J.) 294 v. Robertson 290 v. Patterson (45 Vt.) 466 17. Robinson 237, 253, 459, 462, 846, v Patterson (63 N. C.) 466 850, 888 v. Payne 437 . Robitshek 288 v. Peace 464 v. Roby 470, 885 v. Peacock 485 17. Rockafellow 438 v. Pendergrass 486 t7. Rodman 935, 936 v. Pennoyer 560, 887 v. Rogers 118, 217, 683, 849, 882 v. Peoples 657 i7. Rolle 710 17. Perth Amboy 815 17. Rollins 62 v. Peters 161 t7. Rook 467 v. Peterson 195, 454, 690 17. ROSS 470 v. Pettineli 275 17. Russell 900 v. Phalen 400, 410 v. Rutledge 923 v. Philadelphia, &c. R. R. Co. 690 t7. Ryan 20, 382, 456 v. Phillips 689, 911 t7. Sackett 459 v. Phipps 180, 687 17. Santee 563, 574 v. Pierce 118, 915, 940 t7. Sarradat 287, 887, 888 v. Pike 437 17. Saunders 449, 452 v. Piland 624 t7. Sauvinet 159 v. Pillsbury 731 17. Savannah 281 v. Pinckney 530 v. Saxon 923 v. Pittsburg, &c. Co. 686 v. Scheele 435 v. Plainfield 748 v. Scheve 667 t7. Platt 186, 193, 194 17. Schlemmer 754, 837, 891 v. Poison 458 17. Schlenker 882 v. Pond 174, 183 17. School Board Fund 226 v. Portage 734 v. School Dist. 508, 524 v. Poston 899 17. Schoonover 922 v. Powder Mfg. Co. 216 17. Schuman 669 v. Powell (77 Miss.) 96, 132, 187 17. Scott 166, 181, 587, 760, 876 v. Powell (58 Ohio) 859 17. Scougal 572 17. Pratt 437, 693 v. Seavey 334 v. Prescott 849 17. Seay 177 v. Price 207 t7. Seymour 761, 813 i7. Prichard 619 v. Shadle 209 bt. TABLE OF CASES. CV11 Page Page State v. Shattuck 496 State v. Stumpf 929 v. Shelby 499 v. Sullivan 543, 894 v. Shelly 486 v. Summons 438 v. Sheppard 290 v. Sumter Co. 182 v. Sherod 882 v. Superior Ct. King Co. 417, 827 v. Shores 222 v. Superior Ct. Milwaukee Co. 130 v. Shumpert 46 v. Supervisors of Portage 924 v. Silver 205, 206, 207 v. Sutfin 469 v. Simmons Hdwe. Co. 443 v. Sutterfield 324, 893 v. Simonds 265 v. Sutton 895 v. Simons 144, 163, 602, 505 . Swearingen 932 v. Simpson 467 v. Swift 61, 194, 893 v. Sioux City O. & W. Ry. Co. 571 v. Swisher 163, 170 v. Skirving 909 v. Switzler 696, 708 v. Slack 469 v. Swope 40 v. Slamon 431 v. Symonds 99, 372, 902 v. Slevin 406, 548 v. Syphrett 656 v. Smily 606 v. Taft 290 v. Smith (1 Bailey) 161 v. Tait 462 v. Smith (35 Minn.) 205 v. Tally 464 v. Smith (53 Mo.) 437 v. Tappan 309, 333, 338, 702, 703 v. Smith (90 Mo.) 453 v. Taylor 462, 931 v. Smith (35 Neb.) 159 v. Telephone Co. 13 v. Smith (44 Ohio) 185, 194, 240, 334 v. Tenant 291 v. Smith (44 Tex.) 217 v. Thierault 880 v. Smith (14 Wis.) 894,932 v. Thomas (47 Conn.) 451 v. Smyth 882 v. Thomas (64 N. C.) 450 v. Snow 246, 431, 465, 888 v. Thomas (25 Mont.) 183 v. Snowman 879 v. Thompson .. 97, 164 i\ Somer's Point 183 v. Thome 134 v. South Carolina R. R. Co. 707 v. Thornton 466 v. South Kingston 190 v. Thorson (54 v. Spier 467, 469 v. Thurston 216 v. Spokane 120 v. Tiedemann 262 v. Sponangle 748 v. Tim me 60 v. Springer 336 v. Tipton 453 v. Squires 182, 209, 213, 529, 543 v. Tisdale 464 v. Staley 445 v. Toledo 697 v. Standard Oil Co. 179, 180, 253, 443 v. Tombeckbee Bank 392, 414 v. Stanley 159 v. Tooker 96, 900 v. Stark 884 v. Tools 39 v. Starling 437 v. Topeka 279, 881 v. State Canvassers 935, 936 v. Towle 496 v. State Med. Ex. Board 890 v. Traders' Bank 236 v. Staten 99, 162, 240, 370, 502, 505, v. Travellers' Ins. Co. 705 509, 519 v. Treasurer 217 v. Steers 935 v. Trenton 183, 789 v. Sterling 400 v. Trenton (51 N. J. L.) 293 v. Stewart 41, 183, 458, 778 v. Trenton (53 N. J. L.) 298 v. St. Joseph 931 v. Trenton (61 N. J. L.) 713 v. St. Louis 893 v. Trenton Pass. Ry. Co. 803 v. St. Louis (145 Mo.) 804 v. Trumpf 932 v. St. Louis (161 Mo.) 298 v. Trustees of Union 167 v. St. Louis, &c. Ry. Co. 630 v. Tucker 182 v. St. Louis Cathedral 210 v. Tuckman 730 v. St. Louis Co. Court 345 v. Tufly 60, 214, 892 v. Stone 458 v. Tugwell 646 v. Stone (118 Mo.) 886 v. Turner 577 v. Stone (120 Mo.) 162 v. Tuttle 247, 902, 937 v. Stout 716 v. Underwood 177 v. Strauder 437 v. Union 206, 207, 531, 535 v. Strauss 885 v. Vaigneur 447 v. Street Commissioners 883 v. Vail 591, 932 v. Stripling 876 v. Van Baumbach 388 v. Stucker 846 v. Van Beek 894 v. Studt 217 v. Vanderbilt 263 cvm TABLE OF CASES. Page State v. Vanderpool 41 v. Vandersluis 887, 890 v. Van Home 167 v. Vansant 452 v. Virginia & T. Ry. Co. 693 v. Wabash, &c. Ry. Co. 843 v. Wagener (69 Minn.) 887 v. Wagener (74 Minn.) 456 v. Wagener (77 Minn.) 661, 569, 886, 887 v. Walker 205, 469 v. Wall 593 v. Walsh (62 Conn.) 923 v. Walsh (136 Mo.) 182 v. Wapello Co. 318, 325 v. Ward 449, 468, 469 v. Warford 215 v. Warmoth 162 v. Warren 540, 574, 937 v. Washington 469 v. Watson 911 v. Webber 261 v. Webster 890 v. Weir 163, 171, 173 v. Welch 281, 285 v. Wendler 194, 218 v. Wentworth 449 v. West 436 v. Western U. Tel. Co. 853 v. Weston 121, 895 v. Wheeler 247, 846, 849, 850 v. Wheelock 848 v. Whisner 221 v. Whitaker (48 La. Ann.) 471, 474 v. Whitaker (160 Mo.) 845,880 v. Whitcomb 162 v. White 184, 453, 658, 665 v. Whitworth 86 v. Wiggin 693 v. Wilburn 499 v. Wilcox 163, 166, 167, 170, 174, 265 v. Wilkesville 330 v. Wilkinson 464 v. Williams 99, 286, 878, 382, 431, 917 r. Williams (68 Conn.) 244, 269, 340 v. Williams (18 Wash) 437 v. Willingham 858 v. Wilmington City Council 895 v. Wilson 183, 382, 895, 935 v. Wilson (61 Kan.) 887 v. Wiltz 389, 451 v. Winkelmeier 893 v. Winters 687 v. Winton 482 v. Wiseman 469 r. Witham 449 v. Wolfer 674 v. Wollem 930 v. Woodfin 453 v. Woodmansie 672 v. Woodruff 68 v. Woodruff, &c. Co. 689 v. Woodson 129 v. Woodward 120, 400 v. Worden 458 State v. Workman 879 v. Wright 188, 216, 547 v. Wrightson 894 v. Wurts 61 v. Yard ley 408 v. Young 144, 207, 212, 213, 909 v. Young (31 Fla.) 592 v. Zeno 886 v. Zophy 690 State Auditor v. Jackson Co. 113 State Bank v. Curran 895 v. Knoop 85 State Board v. Central R. R. Co. 706 State Board of Tax Com'rs v. Holli- day 739 State Census, In re 74 State Center v. Barenstein 284 State Freight Tax Case 688 Staten Island Trans. Co., Matter of 764, 780 State Prison v. Day 389 State Railroad Tax Cases 706 State Tax on Foreign-Held Bonds 693, 694, 695, 720 State Tonnage Tax Cases 691 State Treasurer v. Auditor General 706, 720 Stay ton v. Rulings 114 St. Charles v. Nolle 720 St. Clair v. Cox 42, 856 Steamship Co. v. Jolliffe 858 v. Port Wardens 691 Stearns v. Barre 164, 753, 778, 815 v. Gittings 521, 522, 524 v. Minnesota 396, 739 Stebbins v. Com'rs Pueblo Co. 136 v. Jennings 278 Steck v. Colorado F. & I. Co. 590 Steckert v. East Saginaw 201 Steele v. Boston 301 v. Calhoun 911, 930 v. County Com'rs 765 v. Gellatly 614 v. Smith 43 v. Southwick 606, 607 v. Spruance 653 Steenerson v. Great N. Ry. Co. 873 Stein v. Bienville Water S. Co. 565 v. Burden 757 v. Mobile 167, 404 Steinecke i?. Marx 629 Steiner v. Ray 882 Steines v. Franklin Co. 324 Steinman, Ex parte 482, 509 Steketee v. Kimm 606 Stemper v. Higgins 930, 940 Stensoff v. State 894 Stephens v. People ( ,*08 Stephenson v. Bd. of El. Com'rs 899 Sterling v. Jackson 808 v. Jugenheimer 605 Sterling's Appeal 791 Sternberger r. Railroad Co. 875 Stetson v. Kempton 266, 327, 749 Stettinus v. United States 464 Steuart v. Baltimore 691 TABLE OF CASES. C1X Page Stevens v. Andrews 414 v. Middlesex Canal 777 v. Muskegon 300 v. Paterson, &c. R. R. Co. 786 v. Rutland, &c. R. R. Co. 394 r. Sampson 637 v. State 437, 509 Stevenson v. Colgan 255 v. Lexington 301 v. School Directors 262 Steward t;. Jefferson 166 Stewart v. Blaine 191 v. Clinton 304, 783 v. Father Mathew Society 212 v. Griffith 146 v. Hartman 765 v. Hunter 506 v. New Orleans 357 v. Peyton 936 v. Potts 709 17. Riopell 205 v. Ripon 363 v. Stewart 42 v. Supervisors of Polk Co. 167 v. Swift Spec. Co. 606 v. Trevor 712 v. W. & L. E. Ry. Co. 28 Stewarts' Application 758, 768 Sticknoth's Estate 538, 541 Stiefel v. Maryland Inst. 212 Stiles v. Nokes 637, 639 Stiltz v. Indianapolis 721 Stilwell v. Kellogg 590 Stine v. Bennett 224 Stingle v. Nevel 217 Stinson v. Smith 220 Stipp v. Brown 521 Stirling v. Winter 522 Stitzell 17. Reynolds 605 St. Johnsbury v. Thompson 279, 284 St. Joseph v. Anthony 717 r. Ernst 709 r. O'Donohue 717, 730 v. Rogers 320, 321 St. Joseph & Gr. Is. Ry. Co. v. Palmer 853 St. Joseph, &c. R. R. Co. v. Bu- chanan County Court 99, 167 v. Callender St. Louis v. Alexander v. Allen 761 167 266, 270 271 279, 280, 287 710 266, 279, 280, 859 v. Bell Tel. Co. v. Bentz r. Bowler v. Cafferata . Consol. Coal Co. v. Dorr 267, 278 r. Foster 118 v. Goebel 281 17. Green . 285 v. Gurno 296 v. Heitzeberg P. & P. Co. 289, 883 v. Hill 572, 787 v. Knox 282 v. Oeters 737 v. Russell 265, 266, 268, 347 St. Louis v. Russell (116 Mo.) 293 t?. Sclmuckelberg 883 v. Schoenbusch 280 v. Shields 182 v. Spiepel 287 v. St. Louis R. R. Co. 287 v. Tiefel 204, 207 v. Weber 279, 281, 282, 284 17. Western U. Tel. Co. 297, 689 St. Louis, A. & T. Ry. Co. v. Fire Ass'n 180 v. Henderson 827 St. Louis, H. & K. C. Ry. Co. v. Hannibal U. 1). Co. 758 St. Louis Iron M. & S. Ry. Co. v. Paul 1 5 v. Petty 766, 767, 778 v. Worthen 708 St. Louis & S. F. R. R. ' Co. v. Evans, &c. Brick Co. 817 17. Foltz 763, 777 v. Gill 397, 872, 873, 875 v. Matthews 16, 841, 842 St. Louis, &c. Co. v. Harbine 407 St. Louis, &c. R. R. Co. v. Clark 89 v. Loftin 396 v. Richardson 823 r. Teters 761 17. Vickers 25 St. Louis, I. M., &c. Co. v. Berry 397 v. McCormick 181 St. Mary's Industrial School v. Brown 698 Stock v. Boston 362 v. Jefferson 783 Stockard v. Morgan 689 Stockbridge v. West Stockbridge 277 Stockdale v. Hansard 193, 651 17. State 499 Stocking v. Hunt 406, 410, 516 u. State 237, 253, 465 Stockton 17. Powell 200, 864 v. Whitmore 766 Stockton, &c. R. R. Co. v. Stockton 167 Stockwell u. White Lake 692 Stoddard v. Martin 924 Stoddart v. Smith 237 Stokes, In re 495 u. New York 286 v. People 382 v. Scott Co. 318 Stone v. Basset 413 v. Charlestown 265, 268 v. Cooper 607 v. Dana 430 17. Graves 859 v. Inh. of Heath 825 v. Mississippi 176, 400, 885 v. New York 757 v. School District 275 Stoner v. Flournoy 722 Stoney v. Life Ins. Co. 321 Storey v. Challands 611 v. People 454, 643 v. Wallace 637 Stork v. Philadelphia 826 Storrie v. Houston City St. Ry. Co. 861 Storrs v. Utica 362 Storti, Re 473 ex TABLE OF CASES. Storti v. Com. 375 Story v. Furnam 406, 407 v. New York Elevated Railway Co. 799 Story's Case 799, 800 Stoughton v. State 867 Stout v. Hyatt 54 v. Keyes 521 v. Martin 751 Stoutenburg v. Frazier 425, 478 Stover v. People 449 Stow v. Wise 275, 449 Stowell v. Lord Zouch 91 Stowers v. Postal Telph. Co. 801, 804 St. Paul v. Coulter 292 v. Gilfillan 883 v. Seitz 362 v. Smith 285 v. Traeger 281, 285, 291 v. Umstetter 129 ?>. Chicago M. & St. P. Ry. Co. 298 St. Paul Gas Light Co. v. St. Paul 405 St. Paul M. & M. Ry. Co. v. Pbelps 105 p. Minneapolis 807 v. Todd Co. 396 St. Paul & N. P. Ry. Co., In re 756, 775, 778 St. Paul, &c. R. R. Co. i>. Gardner 689 v. Parcher 396 St. Paul Un. Depot Co. v. St. Paul 807 Strader v. Graham 64 Strafford v. Sharon 617 Strahl, Ex parte 495 Strang, Ex parte 897, 928 Strait v. Strait 680 Stratton v. Collins 711, 739, 750 Strauch v. Shoemaker 630 Strauder v. West Virginia 19, 655, 559 Strauss v. Heiss 218 v. Meyer 630, 647 v. Pontiac 291 Street v. New Orleans 346 Street Railroad Co. v. Morrow 531, 694, 738 Street Railway v. Cumminsville 785, 797, 802 Streety v. Wood 619, 620 Streight v. Durham 712 Streitwolf v. Streitwolf 44, 679 Streubel v. Milwaukee, &c. R. R. Co. 617 Striker v. Kelley 114 Stringfellow v. State 446 Strode v. Washer 626 Stroebel v. Whitney 606 Strong v. Clem 614 v. Daniel 259 v. State 376, 378 Strosser v. Fort Wayne 642 Stroud v. Philadelphia 736, 861 Strout v. Proctor 482 Struthers v. Phila. & D. C. Ry. Co. 827 v. R. R. Co. 791 Stryker v. Goodnow 33 St. Tammany Water Works v. New Orleans Water Works 383, 402 Stuart 17. Blair 896 Page Stuart v. Clark 8til v. Commonwealth 470 v. Hamilton 93 v. Kinsella 209, 213 v. Laird 103, lUo v. Mechanics', &c. Bank 693 v. Palmer 722 v. School District 261 v. Warren 642 Stubbs v. Lea 895 Stump c. Hornback 653 Stupp, Re 495 Sturdevant v. Norm 614 Sturgeon v. Kitchens 209 v. Korte 908 Sturges i7. Carter 631, 738 i;. Crowinshield 45, 89, 407, 409, 416, 449 Sturgis v. Hull 629 v. Spofford 645 Sturm v. Fleming 622 Sturoc's Case 643 Sturtevant v. State 497 Stutsman Co. v. Wallace 32 Stuyvesant v. New York 278, 843 Sublett v. Bedwell 895, 932 Suburban R. T. Co. v. New York (128N. Y.) 806 v. New York (135 N. Y.) 758 Succession of Lanzetti 208 Succession of Tanner 129 Succession of Townsend 681 Sue, The 840 Suesenbach v. Wagner 40 Suffolk Witches, Case of 444 Sullings 17. Shakespeare 658 Sullivan v. Adams 257 v. Blackwell 585 17. Haug 672 v. Oneida 282, 382, 431, 437 Sully v. Am. Natl. Bk. 30, 38 Sultan, Re 41 Summer v. Mitchell Summers v. Com'rs Daviess Co. 305 Summerville v. Pressley 837 Summons v. State 451 Sumner v. Beeler 259 17. Buel 608 v. Hicks 33 v. Miller 616 Sunberg 17. Babcock 607 Sunbury & Erie R. R. Co. v. Cooper 258 v. Hummel 786 Sunderlin v. Bradstreet 611 Sun Mutual Ins. Co. v. Board of Liquidation 262 t7. New York 204, 255 Sun P. & P. Ass'n v. New York 318, &M Supervisors v. Davis 940 t7. People 195, 208 v. United States 33 17. Wisconsin Cent. R. R. Co. 631 Supervisors, &c. v. Keenan 194 u. People 208 Supervisors of Doddridge v. Stout 120, 760 TABLE OF CASES. CXI Page Supervisors of Du Page v. People 9'29 Supervisors of Election 130, 133 Supervisors of Iroquois v. Keady 224 Supervisors of Jackson v. Brush 294, 324 Supervisors of Knox Co. v. Davis 246 Supervisors of Sadsbury v. Dennis 336 Supervisors of Schuyler Co. v. Peo- ple 200, 201 Surgett v. Lapice 104 Susquelianna Canal Co. v. Wright 786 Susquehanna Depot v. Barry 332 v. Simmons 362 Sutherland v. De Leon 615 Sutliff v. Board of Com'rs 320, 322, 323 Sutton v. Asken 514 v. Board 355 v. State 478 v. State (96 Tenn.) 556 v. Tiller 764 Sutton Hospital, Case of 278 Sutton's Heirs v. Louisville 823, 824 Suydam v. Moore 836, 842 v. Williamson 33, 34, 144 Suydham v. Broadnax 417 Swain v. McRae 937 v. Mizner 435 Swan v. Williams 54, 755, 777 Swann, Ex parte 473 v. Buck 118, 194, 217 Swan Point Cera. v. Tripp 741 Swanson v. Ottumwa 272 Swart v. Kimball 458, 459 Swartwout v. Railroad Co. 216 Swayze v. Hull 198 Swearingen, Ex parte 40 Sweeney r. Baker 624, 628 v. Chicago, &c. Ry. Co. 865 v. Hunter 408 v. McLeod 198 Sweet v. Rechel 754, 770, 814 Swepston v. Barton 929, 932 Swift v. Calnan 841 v. Fletcher 406 v. Newport 720 v. People 671 v. Sutphin 854 v. Tousey 62 v. Tyson 35, 130 v. United States 106 v. Williamsburg 273, 324 Swift's Estate, Re 709 Swindle v. Brooks 647 Swindell v. State 187 Sydnor v. Palmer 138 Symonds v. Carter 607 o. Clay Co. 355 Synod of Dakota v. State 664 Syracuse Bank v. Davis 531, 636 Syracuse W. Co. v. Syracuse 297, 383, 393 T. Tabor v. Cook Tacoma v. Kreech v. State 590 292 762 Page Tafoya v. Garcia 217 Taft v. Adams 389 Taggart v. Claypole 671 Tainter v. Worcester 274, 301 Tait's Exec. v. Central Lunatic Asy- lum 398, 777 Talbot v. Dent 167, 313 v. Fidelity & C. Co. 179 v. Hudson 253, 697, 770, 815 v. Talbot 614 v. Taunton 363 Talcott v. Philbrick 923 Talkington v. Turner 917 Tallman v. Janesville 540, 545 Tampa, St. R. & P. Co. v. Tampa S. Ry. Co. 595 Tanner v. Albion 265, 883 v. Alliance 860 Tappan v. School District 262 Tarble's Case 26, 494 Tarbox v. Sughrue 922, 932, 933 Tarleton v. Baker 924 Tarlton v. Fisher 192 v. Peggs 221 Tarpley v. Hamer 406 Tash v. Adams 310 Tate v. Bell 254 v. Greensboro 298 v. Railroad Co. 304 v. Stooltzfoos 638 Tate's Executors v. Bell 237, 254 Taunton v. Taylor 853 Tayloe, Ex parte 438 Taylor v. Beckham (Ky.) 64, 74 v. Beckham (178 U. S.) 509 v. Bleakeley 900 v. Boyd 716, 730 v. Chambers 80 w. Church 611 v. Commissioners of Ross Co. 242, 249 v. Commonwealth 159 v. Cumberland 801 v. French 87 t7. Hall 606 v. Hawkins 647, 649 v. Marcy 814, 816 v. McCracken 83 v. Miles 627 v. Nashville, &c. R. R. Co. 764 r. Newberne 167 17. Peckham 303 t7. Penn. Co. 181 17. Place 132, 137, 162 v. Plymouth 767 v. Porter 128, 134,. 503, 508, 754, 765 v. Sample 614 17. Skrine 898 v. State 469, 886 v. Stearns 414 t7. St. Louis 29(3 t7. Taylor 101, 892, 929, 930, 935, 037 v. Thompson 331 v. Wilson 218 v. Ypsilanti 33 Tebbe v. Smith 911, 929 CX11 TABLE OF CASES. Tecumseh v. Phillips 212 Teel v. Yancey 138 Teft v. Teft 154, 558 Telefson v. Fee 23 Telegram M. Co. v. Com. 455 Telegraph Co. v. Texas 689 Templar v. Examining Bd. of Bar- bers 889 Temple v. Mead 123, 911, 912 Templeton v. Linn Co. 68 Ten Eyck . D. & R. Canal 316, 764 Tennessee v. Davis 20, 24, 26, 29 v. Sneed 406 . Whitworth 397 Tennessee, &c. R. R. Co. v. Adams 789 v. Moore 162 Tenney v. Lenz 284 Tenney's Case 643 Terre Haute v. Evansville & T. H. Ry. Co. 159, 758 v. Hudnut 302 Terre Haute, &c. R. R. Co. v. Bissell 786, 791, 797 r. McKinley 826 Terrett v. Taylor 234, 244, 343, 386, 391 Terrill v. Rankin 517 Territorial Ins. Asylum v. Wolfley 162 Territory v. Ah Lim 572 v. Connell 845 v. Daniels 726 v. Evans 879 v. Guyot 849 v. Ketehum 473 P. O'Connor 174, 194, 849, 851 v. Pyle 389 v. Richardson 160 v. Romine 459 v. School District 183 v. Scott 165 v. Stewart 165 Terry, Ex parte 455 v. Anderson 623 v. Bright 607 v. Fellows 627, 629, 637, 639, 647 Teutonia Ins. Co. v. O'Connor 288 Texas v. White 8, 8, 11, 45, 63 Texas & P. Ry. Co. v. Rosedale, &c. Co. 794 v. So. Pac. Ry. Co. 30, 44 Texas & St. L. Ry. Co. v. Cella 825 Texas B. & I. Co. v. State 710 Texas, Mex. Ry. Co. v. Locke 409 Texas W. Ry. Co. v. Cave 826 Thacker v. Hawk 564 Thames Bank v. Lovell 865 Thames Manuf. Co. v. Lathrop 114, 545, 712 Tharp v. Fleming 149 Thatcher v. Powell 33 Theobold v. Louisville, &c. Ry. Co. 791, 802 Theresa Drainage Dist., Re 762, 770 The Slave Grace "422 Tliien v. Voegtlander 772 Thieson v. McDavid 280 Third Cong. Soc. v. Springfield 740 Page Third Nat. Bk. v. Divine Grocery Co. 880 Third Nat. Bank of Louisville v. Stone 682 Thistle v. Frostbury Coal Co. 407 Thomas's Appeal 252 Thomas, Ex parte 093 v. Board of Commissioners 182 v. Collins 218, 529 v. Croswell 629 v. Dakin 278 v. Dunnaway 608 v. Gain 712, 729, 736 v. Hubbell 82 v. Leland 338, 340, 543, 679, 735 v. Mason 696 v. Owens 99 v. People 455 v. Railroad Co. 52 v. Richmond 274, 320 v. Scott 225, 530 v. State 685 v. Stickle 751 v. Wabash, St. Louis & P. Ry. Co. 211 Thorn ason v. Ruggles 60 Thomasson v. State 845 Thompson, Ex parte 495, 547 v. Alexander 629 v. Bunton 14 v. Caldwell 622 v. Carr 370 v. Circuit Judge 935 v. Commonwealth 410, 447 v. Luverne 213 v. Missouri 382 v. Morgan 637, 640 . Pacific R. R. Co. 682 v. Pittston 311, 333 v. Read 522 v. Reed 522 v. Schermerhorn 294 v. State 447, 679, 684 r. Steamboat Morton 676 v. Taylor 43 v. United States 469 v. Utah 374, 453, 458 v. Waters 178, 180 v. Whitman 42, 43 Thomson v. Booneville 294 v. Lee Co. 167, 320, 542 v. Grand Gulf R. R. Co. 246 Thomson-Houston El. Co. v. Simon 762 Thorington v. Montgomery 4(5 v. Smith 412 Thorn v. Blanchard 618 Thorndike v. Camden 308 Thorndyke v. Boston 904 Thome v. Cramer 163 Thornton v. McGrath 629 v. Territory 174 v. Turner 517, 523 Thorpe v. Rutland & Burlington R. R. Co. 128, 176, 316, 396, 399, 831, 834, 841, 843 Thrap v. Fleming 149 TABLE OF CASES. CXU1 Threadgill v. Railroad Co. 898 Thrift v. Elizabeth City 279 Throop v. Langdon 895 Thunder Bay, &c. Co. v. Speedily 807, 865 Thurber v. Blackbourne 42 Tliursfield v. Jones 361 Thurston v. Little 749 v. St. Joseph 304 v. Thurston 80, 146 Thweatt v. Bank 544 v. Howard 751 Tide-water Canal Co. v. Archer 822, 823 Tide Water Co. v. Costar 704, 706 Tiernan v. Rinker 250, 687, 688, 846, 858 Tierney v. Tierney 156 Tiffany v. Stewart 82 v. U. S. 111. Co. 787 Tift v. Griffin 626, 585 Tildon v. Blair 834 Tillinghast v. Can- 193 Tillman v. Arlles 458 v. Cocke 132, 249 v. Shackleton 95 Tillson v. Robbins 629 Tilton v. Swift 531 Timm v. Harrison 208 Tims v. State 257, 454 Tindal v. Wesley 24 Tindley v. Salem 305 Tingue v. Port Chester 205 Tinicum Fishing Co. v. Carter 781 Tinkler v. Cox 52 Tinsley v. Anderson 15, 21, 453, 493 Tinsman v. Belvidere & Del. R. R. Co. 316, 786 Tioga R. R. Co. v. Blossburg, &c. R. R. Co. 80 Tipton, Re 194 v. Locomotive Works 564 v. Tipton 579 Title Guaranty Co. v. Wrenn 556 Titus v. Boston 808 Titusville Iron Works v. Keystone Oil Co. 136, 200 Tod, Ex parte 39 v. Wick 13 Todd v. Birdsall 348 v. Election Com'rs 900 v. Hawkins 611 v. Kankakee, &c. R. R. Co. 825 v. Kerr 679, 580 v. Munson 478 v. Rough 605 v. Troy 362 Toffey v. Atcheson 413 Toledo v. Cone 306 Toledo, &c. R. R. Co. v. Deacon 836 v. East Saginaw, &c. Co. 766 v. Jacksonville 285, 400, 843 Toledo, &c. Ry. Co. v. Detroit 806 v. Munson 825 Toledo Bank v. Bond 395 Tolen v. Tolen 679 Toll v. Wright 621 Tomlin v. Dubuque, &c. R. R. Co. 394, 786 Page Tomlinson v. Branch 394 v. Indianapolis 297 v. Jessup 394 Tonawanda v. Lyon 714 Tonawanda R. R. Co. v. Hunger 788, 842 Tong v. Marvin 95, 513 Toogood v. Spyring 647, 648 Tool Company v. Norris 198 Topeka v. Boutwell 288 Torbush v. Norwich 301 Toronto, &c. R. Co. v. Crookshank 237 Torrey v. Corliss 529 . Field 631, 637, 647 v. Milbury 112, 749 Touchard v. Touchard 360 Tourne v. Lee 884 Towanda Bridge Co., Re 758, 759 Tower v. Lamb 688 Towle v. Brown 269 v. Eastern Railroad 516, 528 v. Forney 146 r. Marrett 217 Towler v. Chatterton 525 Town of Pawlet v. Clark 343, 386, 391 Townsend v. Des Moines 363 v. Griffin 156, 585 v. Kendall 684 v. State 880 v. Todd 47 v. Townsend 114 Trabue v. Mays 606 Tracy v. Elizabethtown, &c. R. R. Co. 778 Trade-mark Cases 11 Tragesser v. Gray 848, 885, 889 Train v. Boston Disinfecting Co. 688, 854 Trainor v. Wayne Co. Aud. 159 Trammell v. Russellville 306 Transportation Co. v. Chicago 510, 781, 782 v. Parkersburg 691 v. Wheeling 691 Travellers' Ins. Co. v. Brouse 413 r. Connecticut 706 v. Frick 179 v. Johnson City 323 Traver v. Merrick Co. 700 Tray hern v. Colburn 83 Traylor v. Lide 682 Tread way o. Schnauber 64 Treat v. Lord 862, 863 Treat Mfg. Co. v. Standard Steel & I. Co. 590 Tredway v. Railway Co. 841 Tremain v. Cohoes Co. 786 Trenton Water P. Co. v. Roff 786 Trestor v. Missouri P. R. Co. 763 Trevett v. Weeden 55, 229 Trevino v. Trevino 579 Trice v. Hannibal, &c. R. R. Co. Trigally v. Memphis 265 Trim v. Macpherson Trimble v. Anderson 606 v. Foster 606 Trinitarian Cong. Soc. v. Union Cong. Soc. 660 Trinity & S. Ry. Co. v. Meadows 809, 812 CX1V TABLE OF CASES. Tripp v. Goff 202 v. Overocker 817 v. Santa Rosa St. Ry. Co. 27 Trist P. Child 198 Troia, Matter of 439 Trombley v. Auditor-General 765, 756 Troppman, Trial of 442 Trott v. Warren 277 Troup v. Haight 104 Trowbridge v. Spinning 44 Troy v. Winters 286 Troy & Boston R. R. Co. v. Lee 823 v. Northern Turnpike Co. 785 Truchelut v. Charleston 642 True v. Davis 267 v. Plumley 606 Truehart v. Addicks 929 Truman v. Taylor 607 Trussell v. Scarlett 611 Trustees v. Bailey 132, 138, 560 v. Davenport 722 v. McCaughy 615, 531, 536 v. McConnell 743 v. Schroeder 305 Trustees of Atlanta University v. Atlanta 758, 762 Trustees of Cass v. Dillon 330 Trustees of Erie Academy v. Erie 267 Trustees First M. E. Ch. v. Atlanta 669, 741 Trustees of Griswold College v. State 741 Trustees of Kentucky F. O. S. v. Louisville 741 Trustees of M. E. Church v. Ellis 740 Trustees of Paris v. Cherry 167 Trustees of Richmond Co. Academy v. Augusta 720 Trustees of Schools v. Tatman 266, 268, 339, 345, 389 Trustees of University v. Mclver 60 Trustees of Vincennes University v. Indiana 392 Trustees of W. & E. Canal v. Spears 786 Trustees, &c. v. Auburn & Rochester R. R. Co. 316, 806 v. Bailey 132 v. Champaign Co. 695 v. Shoemaker 167 Tuckahoe Canal Co. v. Railroad Co. 662, 665, 757 Tucker v. Aiken 898, 928 v. Harris 374 v. Magee 486 v. Virginia City 272, 312 Tucker et /., Trials of 476 Tuaman . Chicago 265, 282, 288 Toiler, In re 86, 529 Tullis v. Fleming 39 v. Lake Erie & W. Ry. Co. 15, 34 Tally, Ex parte 619 Tuolumne Redemption Co. v. Sedg- wick 411 Turin-vine v. Stampe 831 Turley v. Logan Co. 193 Turlock Irrig. Dist. v. Williams 736 Turnbull v. Giddings 191 Page Turner, Ex parte 18 Matter of 423 v. Com'rs 247 p. Com'rs of Wilkes Co. 31, 36 v. Malone 586 p. Maryland 687, 854 v. Newburgh 362 v. New York 524 p. Richardson 30 v. State 376, 687, 889 p. Thompson 680 Turnpike v. Champney 927 Turnpike Co. v. News Co. 770 v. Davidson Co. 392 v. People 85 v. State 549 p. Union R. R. Co. 399 p. Wallace 316 Tuscaloosa Bridge Co. v. Olmsted 209, 213, 216 Tuthill, Re 735, 768 Tuttle v. Cary 275 v. Justice of Knox Co. 814 v. Strout 207 Twambly v. Henley 82 Twenty -second Street, In re 398, 758 Twitchell v. Commonwealth 46 Tyler, Ex parte 24, 27 Tyler . Beacher 705, 765, 773, 775 v. Board of Registration 134, 508, 582 v. Judges of Registration 608 v. People 177, 237, 253 P. Tyler 85 Tyrone Sch. Disk, Appeal of 807 Tyson, In re 381 Tyson, Re (13 Col.) 375 v. School Directors 243, 311 332, 333, 630, 697, 701 Tyzee P. Commonwealth 458 u. Uhrig v. St. Louis 728 Uffert v. Vogt 182 Ulman v. Baltimore 730 Uline P. N. Y., &c. R. R. Co. 783, 786 Ullery v. Commonwealth 438 Umlauf v. Umlauf 83 Underbill v. Manchester 346 v. Welton 606, 607 Underwood, Matter of 495 v. Lily 633, 638, 541 p. McDuffee 589 p. McVeigh 581 p. Wood 696 Ungericht p. State 859 Union p. Durkes 304 Union Bank v. Com'rs of Oxford Co. 196 . Hill 684 P. State 62 Union C. Life Ins. Co. v. Chowning 671 Union El. Co. v. Kansas City S. B. Ry. Co. 828 Union Ferry Co., Matter of, 564, 757, 775, 777 TABLE OF CASES. CXV Page Union Imp. Co. v. Commonwealth 394 Union Ins. Co. v. Hoge 104 Union Iron Co. v. Pierce 136, 407, 544 Union Pac. Ry. Co. v. Botsford 424 Union Pac. R. R. Co. v. United States 105 Union Railway Co. v. Cambridge 285 Union Hef. Trail. Co. v. Lynch 691 Union R. R. Co. v. Traube 80 Union Savings Bank v. Taber 522 Union Trust Co. v. Durfee 709 Union Water P. Co. v. Auburn 719 United Cos. v. Weldon 406 United N. J. Ry. & C. Co. v. Natl. Docks, &c. 806 United States, Matter of Petition of 756 . Ala. G. S. Ry. Co. 104 r. Alexander 783 v. Ames 177 v. Aredondo 25 v. Barney 48 v. Barr 217 v. Battiste 464 v. Bellingham Bay, &c. 862 v. Benner 450 v. Brown 237 v. Callendar 480, 613 v. Cashiel 468 v. Cathcart 11 v. Claflin 217 v. Conway 410 v. Coolidge 48 v. Cooper 613, 768 v. Cornell 177 v. Cox 444 v. Cruikshank 14, 19, 38, 418, 423, 498, 568, 832, 922 v. Dallas M. R. Co. 524 v. Davenport 470 v. DeWalt 436 v. DeWitt 11, 831 v. Fisher 89, 98 v. Forty-three Gallons of Whisky 851 v. Fox 181, 440 v. French 493 v. Gale 251 v. Gettysburg E. Ry. 756, 758, 778, 780 v. Gilmore 104 v. Goldman 901 v. Greathouse 464 v. Guiteau 177 . Hamilton 438 v. Harris 18..777 v. Hartwell 388 v. Has well 613 v. Hoar 524 v. Hudson 48, 453, 613 v. Hunter 433 v. Jailer of Fayette 492 v. .Joint-Traffic Ass'n 687 v. Jones 438, 754, 756, 817 v. Kagama 177 p. Lancaster 48 v. Lee 24 r. Little 450 v. Lynch 30 Page United States v. Lyon 613 t. Mann 34 v. Marble 73 v. Marigold 46 r. McComb 451 v. McKee 160 t7. Minn., &c. R. R. Co. 813 v. More 462 v. Morris 464 r. Morrison 33 v. Nashville, &c. Ry. Co. 524 v. New Bedford Bridge 48, 54, 453, 866 i'. Northern Securities Co. 687 v. Ortega 450 v. Owens 684 v. Palmer 202 v. Parker 80 v. Parkhurst D. M. Co. 26 v. Passmore 616 v. Percheman 25 v. Perez 468, 469 v. Perkins 680 v. Ragsdale 89 v. Railroad Bridge Co. 755 v. Railroad Co. 685 v. Rauscher 41 v. Rector 494 v. Reed 760, 761 v. Reese 19, 120, 668, 832 v. Reynolds 54 v. Riley 464, 467 v. Rio Grande D. & I. Co. 863 v. Sacramento 441 v. Samperyac 515 v. Snyder 682 v. State 468, 470 v. Taylor 464 v. Texas 23 v. Tierney 177 . Tobacco Factory 25 v. Tract of Land, &c. 778 v. Tynen 618, 544 v. Union Pacific R. R. Co. 202, 560 a. Waddell 14 v. Wilson 48, 465 United States Bank v. Daniel 33 v. Halstead 103 v. Norton 26 v. Planters' Bank 360 United States Dist. Co. v. Chicago 283, 709 Unity v. Burrage 631, 555 Universalist Society v. Providence 741 University v. Illinois 395 v. Skidmore 739 University of N. C. v. Foy 386 Updegraph v. Commonwealth 671, 673 Upjohn . Board of .Health 881 Upshaw, Ex parte 207, 209, 212 Upton v. Hume 629, 644 v. South Reading Br. R. R. 823, 824 Urquhart v. Ogdenburg 302 Usher v. Colchester 333 v. McBratney 1S>8 v. Severance 638, 639, 640 Utley v. Campbell 606 Utter v. Franklin 535 CXV1 TABLE OF CASES. V. Vale Mills v. Nashau 303 Valin v. Langlois 128 Valparaiso v. Chicago & G. T. Ry. Co. 806 v. Hagen 782 Van Allen v. Assessors 683 Van Alstyne v. Railroad Co. 82 Van Ankin v. Westfall 606 Van Antwerp, Matter of 212 Van Arsdale v. Laverty 618 Van Baalen v. People 283 Van Baumbach v. Bade 404, 406 Van Bokelen v. Brooklyn City R. R. Co. 34 Van Bokkelin v. Ingersoll 82 Van Broeklin v. Tennessee 683 Van Camp v. Board of Education 564 Vance, Ex parte 291 v. Little Rock 272 v. Vance 407 v. Vandercook Co. 847 Vanderberg, Matter of 195 Vanderbilt v. Adams 400, 855 Vanderhurst v. Bacon 252 Vanderlip v. Grand Rapids 788 Vanderpoel v. O'Hanlon 904, 905 Vanderslice v. Philadelphia 358 Vanderzee v. McGregor 620 Van Deusen v. Newcomer 830 Vandine, Petitioner 286 Van Fossen v. State 42 Van Giesen v. Bloomfield 183 Van Hagan, Ex parte 495 Van Horn v. Des Moines 301 v. People 678, 881 Van Home v. Dorrance 237 Van Inwagen v. Chicago 517 Van Kleek v. Eggleston 80 Van Ness v. Hamilton 606 v. Pacard 48, 51 Van Norman v. Gordon 45 Van Orsdal v. Van Orsdal 579 Van Pelt v. Davenport 304, 363 Van Reipen v. Jersey City 768 Van Rensselaer v. Ball ' 406, 515 v. Hays 406, 515 v. Kearney 33 v. Read 516 v. Snyder 406,409,410 Van Riper v. North Plainfield 212 v. Parsons 183, 215, 563 Vansant v. Harlem Stage Co. 283 Van Sly ke v. Ins. Co. 129,139 Vanvactor v. State 486 Van Valkenburg v. Brown 568, 901 Van Witsen v. Gutman 764, 775, 777 Van Wormer v. Albany 853, 854 Van Wyck v. Aspinwall 620, 629 Vanzant v. Waddell 502, 504, 506, 559 Varden v. Mount 506 Varick v. Smith 237, 777, 788 Varner v. Martin 765 Varney v. Justice 115, 930 Vason v. Augusta 281 Vasser v. George 717 Vaughan v. Seade 458 Vaughn v. Ashland 745 Vaughn v. Harp Vausse v. Lee Veazie v. China v. Mayo v. Moore Veazie Bank v. Fenno Veeder v. Lima Page 130 630 110 836, 843 864 680, 681, 685 274, 323 Vega Steamship Co. v. Con. El. Co. 527 Venard r. Cross 772 Veneman v. Jones 285 Venice v. Murdoch 321 Veon v, Creaton 848 Verges v. Milwaukee Co. 561 Verner v. Carson 80 v. Simmons 896 v. Verner 629 Vesta Mills v. Charleston 164 Vestal v. Little Rock 721, 722 Vickers v. Stoneman 619 Vicksburg v. Tobin 691 Vicksburg & M. R. R. Co. v. Lowry 162 Vicksburg S. & P. R. R. Co. v. Den- nis 396 Vicksburg W. W. Co. v. Vicksburg 393 Victory, The 30 Vidal v. Girard's Executors 670 Vigo County v. Stout 130 Vilas v. Milwaukee, &c. R. R. Co. 819 Vinas v. Merch, &c. Co. 630 Vincennes v. Citizens Gas L. & C. Co. , 288, 297 v. Richards 302, 783 Vincennes University v. Indiana 54 Vincent v. Nantucket 309, 311 Violett v. Violett 550 Violette v. Alexandria 712, 731 Virginia, Ex parte 18, 19, 492, 555 v. Rives 19, 556 v. Tennessee 36 Vischer v. Vischer 578, 580 Vise v. Hamilton Co. 477 Vogel v. Gruaz 478 v. State 895 Vogle v. Pekoe 556 Voglesong v. State 676, 859 Voight v. Wright 655 Von Hoffman v. Quincy 415 Voorhees, Matter of 39 Vose v. Morton 677 W. Wabash, &c. Co. v. Beers 386 Wabash, &c. Ry. Co. i;. Illinois 874 Wabash Ry. Co. v. Defiance 297 v. Tourville 42 Wabash, St. L. & P. Ry. Co. v. McDougall 783 Waco v. Powell 286 Wade v. La Moille 320 v. Richmond 267 v. State 452 v. Travis Co. 32 v. Walnut 33 Wadleigh v. Gilman 286, 878 TABLE OF CASES. CXV11 Page Wadsworth's Adm'r v. Smith 86i Wadsworth v. Union Pac. Ry. Co. 67<5 Wagaman v. Byers Wager v. Troy Union R. R. Co. 791, 794 Wagner v. Bissell 5! v. Gage Co. 824 v. Railway Co. 817, 818 Wahoo v. Dickinson 144, 165 Wait v. Ray 26: Waite v. Merrill 660 Walcott v. People 690 Walcott W. M. Co. v. Upham 657 Waldo v. Portland 330 v. Waldo 679 Waldron v. Haverhill 306 v. Rensselaer, &c. R. R. Co. 836, 84i Wales v. Lyon v. Stetson v. Wales Walker o. Allen v. Caldwell v. Chapman v. Cincinnati 80 392, 56. 406 861 204, 216 712 109, 128, 167, 184 236, 240 r. Deaver 614 v. Dunham 207 v. Harbor Commissioners v. Jameson 562 v. New Mexico, &c. Ry. Co. 32 v. Oswald 893 v. Peelle 389 v. Sanford 929, 930 v. Sauvinet 18, 46 v. Southern Pac. Ry. Co. 690 v. Springfield 710 v. State 209, 212, 481 v. Taylor 31 v. Towle 881 v. Villavaso 30 v. Whitehead 411 Wall, Ex parte v. State v. Trumbull Walla Walla v. W. W. Water Co. Wallace, In re v. Georgia C. & N. Ry. Co. v. Menaslia i'. Meyers v. Richmond r. Sharon Trustees v. Shelton Waller v. Loch Walling v. Michigan Wallis v. Bazet Walls, Ex parte Wally's Heirs v. Kennedy Walnut v. Wade Walpole r. Elliott Walschlager v. Liberty Walsh, Re v. Barron . v. Columbus, H. V. & A. Ry. Co. r. State Walston v. Commonwealth v. Nevin Walter v. Bacon 121, 163, 170, 173, 482 176 585, 587 383 481 604 305 708 310, 878 267 717, 736 610 688, 693 651 481 502, 659 186, 218, 274, 546 242 327 442 714 26 187 382 20 631 Page Walter v. People 382 Walters v. Duke 710 Waltham v. Kemper 335, 356 Walther v. Warner 813, 817 Walton v. Develing 910 v. Greenwood 163 Walton's Lessee v. Bailey 638 Waltz v. Waltz 579 Wamesit Power Co. v. Allen 760 Warn mack v. Holloway 937 Wanek v. Winona 424 Wanser v. Atkinson 251, 511 Wantlan v. White 627 Wanzer v. Howland 587 Warbiglee v. Los Angeles 303 Warburton v. White 32 Ward v. Barnard 517 v. Boyce 42 v. Farwell 407, 589, 887 v. Flood 263, 657 v. Greencastle 292 v. Greenville 285 v. Maryland 37, 667, 684, 685, 693 v. Morris 693 v. New England, &c. Co. 146 v. Peck 788 v. Race Horse 291 v. State 446 v. Warner 862 Ward law v. Buzzard 522 Ware v. Hylton 9, 25 v. Little 751 v. Miller 408 v. Owens 514 Warickshall's Case 446 Waring v. Jackson 33 v. Savannah 707 Warner v. Bowdoin Sq. Bap. Ch. 660 v. Curran 656 v. Grand Haven 736 v. Paine 629, 634 v. People 388, 389 v. Scott 80 v. Trow 80 Warren v. Board Registration 903 v. Charlestown 246, 248 v. Chicago 722 v. Commonwealth 382 v. Glynn 588 v. Henley 732, 734, 737 v. Lyons City 344 v. McCarthy 42 v. Paul 684 v. Shuman 92 v. Sohn 20 v. State 465 r. St. Paul, &c. R. R. Co. 765, 778 Warren Manuf. Co. v. ./Etna Ins. Co. 38 Warshung v. Hunt 630 Wartman v. Philadelphia 888 Warwick v. Underwood 80 Wasliburn v. Franklin 517, 537 v. Milwaukee, &c. R. R. Co. 824 v. Oshkosh 722 Washburne v. Cooke 611, 619 Washington v. Hammond 281 cxvm TABLE OF CASES. Washington v. Meigs 881 v. Nashville 860 v. Page 104,118,214 Washington Avenue 698,716,717, 730, 734 Washington Bridge Co. v. State 838, 840 Washington Co. v. Berwick 330 v. Franklin R. R. Co. 206 Washington Gas Light Co. v. Dis- trict of Columbia 357 Washington Home v. Chicago 121 Washington Ins. Co. r. Price 592, 693, 595 Washington St., Re 184 Washington University v. Rouse 395 Wason v. Walter 600, 627, 628, 639, 647 882 Wasson v. Wayne Co. Com. 718 Waterbury v. Newton 846, 858 Waterhouse v. Public Schools 170 Waterloo W. Mfg. Co. v. Shanahan 697, 775 Waters v. Leech 281 Waters-Pierce Oil Co. v. Texas 179, 386 Watertown v. Mayo 854, 883, 886 Watertown Bank, &c. v. Mix 691 Waterville v. County Commissioners 336, 338 v. Kennebeck Co. 269 Water Works Co. v. Burkhart 217, 754 775, 777, 796, 809 Watkins, Ex parte 495, 496 v. County Court 354 v. De Armond 484 v. Haight 629 v. Holman's Lessee 146 v. Inge 897 v. Walker Co. 757 Watson v. Avery 660 v. Blackstone 129 v. Jones 660, 661 v. Kent 218 v. McCarthy 606 v. Mercer 374, 537, 638, 543 v. Needham 302 v. New York Cent. R. R. Co. 407, 409 v. State 177 r. Thurber 95 v. Town of Thorn 278 Watson's Case 177 Watt v. People 449 Watts v. Greenlee 607 v. Norfolk & Western Ry. Co. 827 v. State 440 Waxahachie v. Brown 272 Way v. Lewis 80 v. Way 91, 92 Wayland v. County Commissioners 695 Way man v. Southard 132 Wayne Co. v. Waller 477 Wayrick t. People 459 Weare v. Dearing 81 Weaver v. Cherry 312 v. Davidson County 66, 184 v. Lapsley 119, 138, 209, 212, 213 v. Mississippi, &c. Co. 787 Webb v. Baird 477, 563 Webb v. Beavan v. Den v. Dunn v. State Webber v. Donnelly Page 605 625, 526 691 437 850 Weber v. Harbor Commissioners 755 v. Morris, &c. 80 v. Reinhard 237, 707, 728 v. State 468 Webster v. Fargo 729 v. French 114 v. Harwinton 263, 266, 327 v. Reid 583, 586 v. Rose 414 Webster, Professor, Trial of 467 Wecherley v. Guyer 927 Weckler v. Chicago 813 Weed v. Black 198 r. Boston 731 v. Donovan 532 v. Foster 647 Weeks v. Gilmanton 268 v. Milwaukee 266, 545, 703, 717, 722, 725, 732, 735, 742, 746, 883, 884 Weet v. Brockport 356, 357 Wehn v. Commissioners 302 Weidenfield v. Sugar Run Ry. Co. 767 Weidenger v. Spruance 407, 511 Weightman v. Washington 304, 356 Weil v. Ricord 884 Weill v. Kenfield 200, 214 Weimer v. Bunbury 237, 506, 748 Weir v. Cram 248 v. Day 262 v. St. Paul, &c. R. R. Co. 754 Weis v. Ashley 203 Weise v. Smith 861, 862, 863 Weismer v. Douglas 317, 698, 700 Weiss -r. Guerineau 58S v. Whittemore 606 Weister v. Hade 11, 242, 253, 331, 332 633, 543, 679 Welborn v. Akin 411 Welch v. Hotchkiss 283, 286, 710 v. Post 212 v. State 38 v. Stowell 286, 884 v. Sykes 42 v. Wadsworth 416, 517, 633, 537 Weldon v. Winslow 544 Welker v. Potter 183 Weller v. Burlington 301 Wellington, Petitioner 232, 246, 253 v. Boston & M. Ry. Co. 827 Wellman, In re 194, 223 v. Wickerman 764 Wells, Ex parte 210 v. Bain 69, 61 v. Burbank 748 v. Hyattsville Com'rs 739 v. McClenning 80 v. Missouri Pac. Ry. Co 222 v. People 262 v. Salina v. Savannah 740 v. Scott 688 TABLE OF CASES. CX1X Wells v. Somerset, &c. R. R. Co. 757 v. Supervisors 320 v. Taylor 925, 929 v. Weston 546 Wells, Fargo & Co. Exp. v. Crawford 693 Welsh v. St. Louis 360 Welton v. Dickson 764, 765, 775 v. Missouri 687, 688, 693 Wendel r. Durbin 113 Wenliam v. State 891 Wenner v. Thornton 218 Wenzler v. People 209, 218 Werner, Re 212 v Galveston 167 Wernwag v. Pawling 43 Werth v. Springfield 296 West v. Bancroft 800 v. First Pres. Ch. 661 v. Sansom 410 West Branch, &c. Canal Co. v. Mul- liner 783 Westbrook, Appeal of 843 v. Deering 198 v. Miller 104 West Chicago Park Com'rs v. Mc- Mullen 183 Westerfield, Ex parte 182 Westerly Water- Works v. Westerly 383, 393 Western & A. Ry. Co. v. Atlanta 884 v. State 24 Western & A. R. R. Co. v. Young 293, 843 Western College v. Cleveland 301, 347, 360 Western Fund Savings Society v. Philadelphia 361 Western Ry. Co. v. Alabama G. T. Ry. Co. 803 Western R. R. Co. v. De Graff 162 Western Union Telegraph Co. v. Call Pub. Co. 48 v. Carew 281 v. Eubank 876 v. Freemont 689 v. Howell 853 v. Indiana 692 v. James 852 v. Massachusetts 683, 692 v. Mayer 679 v. Mayor 857 v. New Hope 690 v. Pendleton 862, 858 v. Philadelphia 709 r. State 249, 297 v. Taggart 691 v. Williams 787, 804 Westervelt v. Gregg 505, 513, 516, 517 v. Lewis 42 Westfall v. Preston . 750 Westfield Cem. Ass'n v. Danielson 770 West Hartford v. Water Commis- sioners 695 Westingliausen v. People 77, 132 West Jersey R. R. Co. v. Cape May, &c. R. R. Co. 791 Weston v. Barnicoat v. Charleston v. Foster v. Loyhed v. Syracuse West Orange v. Field 606 45, 682, 683 808 590 259, 306 304 West River Bridge Co. v. Dix 398, 757 West Virginia P. & T. Ry. Co. v. Gibson 826, 827 West Virginia Trans, v. Volcanic Oil Co. 761, 763, 770 West Wisconsin R. Co. v. Super- visors of Trempeleau Co. 394, 395 Wetherell v. Stillman 42 Wetmore v. Multonomah Co. 707 Wetumpka v. Winter 167 Weyerhauser v. Minnesota 21, 506, 748, 749 Weyl v. Sonoma R. R. Co. 791 Weymann v. Jefferson 296, 304 Weymouth, &c. Fire Commissioners v. County Com'rs 267, 269, 345 Weyrich v. People 436 Whalin v. Macomb 114 Whallon v. Ingham Circ. Judge 240 Wheat v. Ragsdale 941 v. Smith 894, 905, 908, 938, 940 Wheaton r. Beecher 624 v. Peters 48, 52 Wheeler v. Chicago 111,112 v. Chubbuck 223, 224 v. Cincinnati 301 v. Jackson 624 v. New York, N. H. & H. R. Ry. Co. 26, 247 v. Patterson 927 v. Philadelphia 183 v. Plymouth 301 v. Rochester, &c. R. R. Co. 809 v. Shields 644 v. Spencer 924 v. State 209 v. Wall 238, 459 Wheeling & B. Bridge Co. v. Wheel- ing Bridge Co. 396 Wheeling Bridge Case 863, 866 Wheelock v. Young 766 Wheelock's Election Case 929 Whipley v. McCune 929 Whipple v. Farrar' 616 Whitcomb's Case 454 White, Ex parte 40 Re 689 v. Barker 65 v. Buchanan 676 v. Carroll 629 v. Charleston 757 v. Clark 765 v. Com'rs of Norfolk Co. 825 v. Crow 587 v. Farmer's Highline C. & R. Co. 873 v. Flynn 627 v. Hart 62, 405, 505 v. Hinton 195 v. Kendrick v. Kent 285, 887 cxx TABLE OF CASES. White v. Manhattan Ry. Co. 816 v. Met. W. S. El. Ry. Co. 828 v. Multnomah Co. 906 v. Nashville, &c. R. R. Co. 814 v. N. W. N. C. Ry. Co. 803 v. Nichols v. People v. Phillipston v. Sanderson v. Schloerb v. Scott v. Smith v. Stamford v. Tallman v. The Mayor v. White r. Yazoo City v. Zane 610,611 716, 717, 730, 734 303 899 416 231 741 239, 312 282 281 164, 634, 764 296, 302 95 Whitebread v. The Queen Whitecar v. Michenor White County v. Given Whited v. Lewis Whitehead v. Latham 473 G61 130 209 407 Whitehouse v. Androscoggin R. R. Co. 826 Whitehurst v. Coleen 681 v. Rogers 80 Whiteley v. Adams 610, 648 v. Miss., &c. Co. 824 White Lick Meeting v. White Lick Meeting 661 Whiteman's Ex'rs v. Wilmington, &c. R. R. Co. 74, 777 White Mountains R. R. Co. v. White Mountains R. R. Co. of N. H. 541 White River Turnpike Co. v. Cen- tral R. R. Co. 757, 777 White School House v. Post 615 White Star Co. v. Gordon Co. 355 Whitfleld v. Longest 286, 860, 884 v. Paris 306 Whiting v. Barney 478 v. Earle 485 v. Mt. Pleasant 206 v. West Point 272 Whiting's Estate, Re 720 Whitley v. State 436, 452 Whitman v. Boston, &c. R. R. Co. 825 v. Nat'l Bk. of Oxford 122 Whitmore v. Harden 64 v. State 468 Whitney v. Allen 618, 619 v. Ragsdale 707 v. Richardson 652 v. Robertson 25 v. State 19, 436 v. Stow 268 v. Township Board 849, 850 v. Wyman 118 Whitsett v. Union D. & R. Co. 300 Whitson v. Franklin 285, 840 Whittaker v. Johnson Co. 80 Whittemore v. Weiss 668 Whitten v. State 468, 469 v. Tomlinson 39, 41 Whittier v. Wendell 42 Whittingham v. Bowen Whittington r. Polk Whittle v. Saluda Co. Whitwell, Ex parte Whorton v. Morange Whyte v. Nashville 765 79, 228, 237 474 886 677 294 Wick v. The Samuel Strong 34 Wicks v. De Witt 802 Wider v. East St. Louis 339 Wiggins r. Chicago 285 Wiggins .& Johnson v. Williams 591 Wiggins Ferry Co. v. East St. Louis 691, 710, 867 Wight v. Davidson 714, 731 Wilbraham v. Ludlow 904 Wilbur v. Springfield 730 Wilby v. Elston 607 Wilcox v. Chicago 305 v. Deer Lodge Co. 340, 702 v. Hemming 286, 860 v. Jackson 33 v. Kassick 42, 586 v. Luco 23 v. Meriden 824 v. Nolze 39 r. Smith 898 v. St. Paul, &c. Ry. Co. 823 v. Wilcox 579 Wild v. Deig 765 r. Paterson 355 Wilder v. Boston & A. Ry. Co. 763 v. Case 81 v. Chicago & W. M. Ry. Co. 628, 656, 84 1 v. Maine Cent. R. R. Co. 841 Wildes v. Van Voorhis 513 Wildey v. Collier 196 Wiley v. Bluffton 267 v. Flournoy 113 v. Parmer 691 v. Sinkler 668 Wilkerson v. Rahrer 259 Wilkes v. Wood 433 Wilkes's Case 428 Wilkes-Barre v. Meyers 183 Wilkes County v. Coler 324 Wilkins v. Detroit 717 v. Miller 209 v. Rutland 362 v. State 890 Wilkinson v. Cheatham 647, 648 v. Leland 134, 146, 149, 234, 244 Willamette Iron Bridge Co. v. Hatch 65, 688, 864, 866 Willamette Iron Wks. v. Oregon R. & N. Co. 784 Willard v. Harvey 530 v. Killingworth 266, 287 v. Longstreet 412 v. People 247, 250 v. Presbury 719, 730 Willey r. Belfast 363 Williams v. Augusta 881 v. Bank of Michigan 64 v. Bidleman 182 v. Brooklyn El. Ry. Co. 803 TABLE OF CASES. CXX1 Williams v. Bryant r. Clayton v. Commonwealth v. Conger v. Courtney v. Davidson 17. Detroit i7. Eggleston 17. Fears v. Haines 17. Heard v. Hill v. Johnson 17. Kirkland v. Mississippi 607 897 444, 467, 470 33 514 271, 272 120, 237, 716, 729, 735 269, 340, 711 16, 687, 693 407 29 607 529 83 16 v. Natural Bridge Plank R. Co. 790 v. Newport 388, 389 17. N. Y. Central R. R. Co. 791, 806 17. Norris 30 17. Oliver 30 v. Payson 209, 212, 247 77. People 209 v. Potter 930 v. Roberts 275 17. School District 113, 700, 743, 769 v. Smith 606 v. State 209,434,458,911 i?. State Board 706 v. Stein 912 v. Wing 398 Williamson v. Carlton 232 v. Lane 591, 938 17. Louisville Ind. Sch. 305 v. New Jersey ' 390 17. Suydam 144 v. Williamson 146 Williamsport v. Beck 719, 730 Williar v. Baltimore, &c. Ass. 617 Willis v. Baylis 495 v. Mabon 122 v. Owen 87, 163 v. State 459 17. St. Paul Sanitation Co. 122 v. Winona 784 Williston 17. Colkett 531 Willoughby v. George 530 Wills 17. State 441 Wilmarth v. Burt 193 Wilmington v. Ewing 356 v. Macks 713 r. Vandegrift 301 Wilmington R. R. Co. v. Reid 395 Wilmington & W. Ry. Co. v. Alsbrook 397 Wilmot v. Horton 346 Wilson, Ex parte 436 Re (8 Mackey) 687, 846 fie (ION. M.) 687 v. Ala. G. S. Ry. Co. 272, 291, 854 v. Blackbird Creek Marsh Co. 688, 767, 776, 863, 867 17. Brown 408, 909 v. Chilcott 717 v. Collins 630 v. Cottman 607 v. Crockett 764 v. Eureka City 21, 293 I Page Wilson w. Fitch 628 v. Franklin 764 t7. Hardesty 637 v. Jackson 42 v. Johns Island Church 661 v. King 895, 898 t7. McKenna 618, 527 t7. McNamee 688, 858 v. New York 742, 783, 856 17. Noonan 628, 658 17. North Carolina 20 v. Ohio, &c. R. R. Co. 374, 375 v. People 473 i?. Rockford, &c. R. R. Co. 825 v. Runyan 607 17. Salamanca 321 v. School District 262 v. Simon 516 v. Simonton 591 v. State 60, 425, 447, 466, 482, 499 v. Sullivan 630 17. Supervisors of Sutter 740 v. Troy 358 v. Wheeling 362 v. Wood 527 Wilson's Case 490 Wilson's Exec. v. Deen 80 Wimmer v. Eaton 917 Winbigler v. Los Angeles 363 Winchell v. State 452 Winchester v. Ayres 677, 589 17. Capron 804 Winchester & L. T. R. Co. v. Crox- ton 873, 875 Wind v. Her & Co. 690 Windham v. Portland 268 Wingate v. Sluder 679 Winkley v. Newton 719 Winklemans v. Des Moines 783 Winnsboro v. Smart 284 Winona, &c. R. R. Co. v. Dcnman 825 17. Waldron 823, 841 Wiuona & St. Peter L. Co. v. Minne- sota 22, 740 v. Plainview 322 Winslow, Ex parte 495 v. Grindall 80 r. State 445 " 17. Winslow 868 Winsor v. The Queen 469 Winter v. City Council 295 17. Jones 403 v. Thistlewood 937 Winterton v. State 217 Wires v. Farr 522 Wirth w. Wilmington 279 Wisconsin v. Pelican Ins. Co. 43, 181 Wisconsin Centr. R. R. Co. v. Corn- stock 683 v. Taylor Co. 101, 707, 739 Wisconsin Keeley Inst. v. Milwaukee Co. 696 Wisconsin M. & P. Ry. Co. v. Jacob- son 856 Wisconsin River Imp. Co. v. Lyons 54 Wisconsin Tel. Co. v. Oshkosh 283 cxxn TABLE OF CASES. Page Wisconsin Water Co. v. Winans 765, 768, 777 Wise v. Bigger 194 Wisners v. Monroe 209, 212 Witliam v. Osborn 765 Withers v. Buckley 755 v. State 481 Withington v. Corey 653 Witmer v. Schlatter 80 Witt v. State 452 v. St. Paul, &c. R. R. Co. 815 Wixon v. Newport 305, 355 Woart v. Winnick 374, 376, 522, 530 Wolcott v. Holcomb 903, 906, 928 v. Rickey 485 v. Wigton 92, 115 Wolcott Manuf. Co. v. Uphara 771 Wolf v. Lansing 283, 851 Wolfe v. Covington, &c. R. R. Co. 791 v. McCaull 187, 219, 220 Wolff v. New Orleans 415 Wonderly v. La Fayette 28 Wong v. Astoria 280, 454 Wong Kim Ark's Case 14 Wood v. Brady 32, 36 v. Brooklyn 279 v. Brush 16 v. Fitzgerald 18 v. Fort 223 v. Kennedy 416, 637 v. McCann 197, 198 v. Randall 688 v. Stephen 82 v. Watkinson 41 Wood's Estate, Re 580 Woodard v. Brien 655 Woodbridge v. Detroit 716, 732, 812, 860 Woodburn v. Kilbourn Manuf. Co. 55, 867 Woodbury v. Grimes 407 v. Thompson 607 Woodcock v. Bennett 603 Woodfall's Case 652 Woodfolk v. Nashville R. R. Co. 825 Woodhull v. Wagner 417 Woodlawn Cemetery v. Everett 881 Woodman v. Pitman 863 Woodmere Cem. v. Ruolo 755 Woodruff w. Bradstreet Co. 611 v. Fisher 735 v. Mississippi 32 v. Neal 788 v. Parham 687, 694 v. Scruggs 618, 637 v. Trapnall 35, 403 Woods v. Miller 433 v. State 845 Woods's Appeal 61 Woodside v. Wagg 898 Woodson v. Murdock 123, 206 Woodward v. Commonwealth 38 v. Lander 620 v. Worcester 362 Woodward Iron Co. v. Cabaniss 121 Wood worth v. Bowles 122 v. Spring 684 v. Tremere 41 Wool, Matter of Woollen v. Banker Woolsey, Matter of t\ Commercial Bank Wooten, Ex parte v. State Page 482 13 344 259 456 240 Worcester v. Norwich, &c. R. R. Co. 394 v. Worcester St. Ry. Co. 393 Worcester Co. v. Worcester 695 Worden v. New Bedford 306 Work v. Corrington 40, 41 v. State 458, 577 Worley v. Columbia 305 v. Harris 364 Worman v. Hagan 132, 163 Wormley v. Uist. Col. 714 Worsham v. Stevens 407 Worth v. Butler 607 v. Norton 192 v. Wilmington, &c. R. R. Co. 706 Worthen v. Badget 194 v. Prescott 487 Worthley v, Steen 183 Worthy r. Commissioners 30 Wortman, In re 894 Wray, Ex parte 438 v. Pittsburg 717 Wreford v. The People 286, 292, 730, 883 Wren, Ex parte 194 Wright, Re 382 v. Augusta 301 v. Boon 689 r. Boston 728, 736 v. Carter 790, 806 v. Chicago 717 v. Cradlebaugh, 527 v. De Frees 258, 259 v. Dressel 430 v. Dunham 626 v. Graham 544 v. Hawkins 517, 540 v. Le Glair 80 v. Lindsay 606 v. Lothrop 620, 629 v. Nagle - 662 v. Oakley 621 v. People 437 . State 467, 469 v. Straub 409 v. Woodgate 610 v. Wright 156 Wroth v. Johnson 924 Wurts v. Hoagland 868 Wyandotte v. Drennan 388 Wyatt v. Buell 630 v Smith 514 Wynehamer v. People 128, 237, 239, 241, 604, 606, 520, 831, 849, 850, 853 Wynne, In re 223 Y. Yancy v. Yancy Yarbrough, Ex parte Yates v. Lansing 237, 522 14, 18, 496 453 TABLE OF CASES. CXX111 Page Page Yates v. Milwaukee 286, 787, 788, 883 Young v. Commissioners, &c 355 r. People 434 v. Harrison 813 v. Yates 679 v. Joslin 111 Yazoo & M. R. R. Co. v. Thomas 396, v. McKenzie 765 740 v. Miller 605 Yazoo Delta Levee Board v. Daney 817 v. State Bank 137 Yeager v. Tippecanoe 365 v. Thomas 709 Yeaker v. Yeaker 25 v. Wolcott 514 Yeatman v. Crandell 71 7, 736, 868 Youngblood v. Sexton 266, 284, 336, 707, v. Day 546 709, 712, 851, 886 Yeaton v. Bank of Old Dominion 394 v. United States 616, 544 Yeazel v. Alexander 881 Z. Yerger v. Rains 120 Yick Wo, Matter of 286 Zabriskie v. R. R. Co. 167, 324 v. Hopkins 19, 35, 286, 657 Zanesville v. Auditor of Muskingum 744 Yonoski v. State 859 Zeiler v. Chapman 907 York v. Pease 619 Zeisweiss v. James 672 Yorty v. Paine 897 Zimmerman v. Canfield 760, 865 Yost v. Stout 764 v. Union Canal Co. 781, 867 Yost's Report 631 Zitske v. Goldberg 268 Young v. Beardsley 627 Zottman v. San Francisco 311 v. Black 80 Zumhoff v. State 849 v. Charleston 356 Zylstra's Case 605 CONSTITUTIONAL LIMITATIONS. CONSTITUTIONAL LIMITATIONS. CHAPTER I. DEFINITIONS. A STATE is a body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. 1 The terms nation and State are frequently employed, not only in the law of nations, but in common parlance, as importing the same thing ; 2 but the term nation is more strictly synonymous with people, and while a single State may embrace different nations or peoples, a single nation will sometimes be so divided politically as to consti- tute several States. In American constitutional law the word State is applied to the several members of the American Union, while the word nation is applied to the whole body of the people embraced within the jurisdiction of the federal government. Sovereignty, as applied to States, imports the supreme, absolute, uncontrollable power by which any State is governed. 3 A State is called a sovereign State when this supreme power resides within itself, whether resting in a single individual, or in a number of individuals, or in the whole body of the people. 4 In the view of international law, all sovereign States are and must be equal 1 Vattel, b. 1, c. 1, 1 ; Story on Const. rt Story on Const. 207 ; 1 Black. 207 ; Wheat. Int. Law. pt. 1, c. 2, 2 ; Com. 49 ; Wheat. Int. Law, pt 1, c. 2, Halleck, Int. Law, 63; Bouv. Law Diet. 6; Halleck, Int. Law, 63, 64 ; Austin, " State." " A multitude of people united Province of Jurisprudence, Lee. VI. ; together by a communion of interest, and Chipman on Government, 137. " The by common laws, to which they submit right of commanding finally in civil with one accord." Burlamaqui, Politic society." Burlamaqui, Politic Law, Law, c. 5. See Chishohn v. Georgia, 2 c. 6. Ball. 467 ; Georgia v. Stanton, 6 Wall. 65. 4 Vattel, b. 1, c. 1, 2 ; Story on 2 Thompson, J., in Cherokee Nation v. Const. 207 ; Halleck, Int. Law, 65. In Georgia, 5 Pet. 1, 52; Chase, Ch. J., in other words, when it is an independent Texas v. White, 7 Wall. 700, 720 ; Vattel, State. Chipman on Government, 137. supra. 4 CONSTITUTIONAL LIMITATIONS. [CH. L in rights, because from the very definition of sovereign State, it is impossible that there should be, in respect to it, any political superior. The sovereignty of a State commonly extends to all the sub- jects of government within the territorial limits occupied by the associated people who compose it ; and, except upon the high seas, which belong equally to all men, like the air, and no part of which can rightfully be appropriated by any nation, 1 the dividing line between sovereignties is usually a territorial line. In Amer- ican constitutional law, however, there is a division of the powers of sovereignty between the national and State governments by subjects : the former being possessed of supreme, absolute, and uncontrollable power over certain subjects throughout all the States and Territories, while the States have the like complete power, within their respective territorial limits, over other sub- jects. 2 In regard to certain other subjects, the States possess powers of regulation which are not sovereign powers, inasmuch as they are liable to be controlled, or for the time being to become altogether dormant, by the exercise of a superior power vested in the general government in respect to the same subjects. A constitution is sometimes defined as the fundamental law of a State, containing the principles upon which the government is founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confided, and the manner in which it is to be exercised. 3 Perhaps an equally complete and accurate definition would be, that body of rules and maxims in accordance with which the powers of sover- eignty are habitually exercised. In a much qualified and very imperfect sense every State may be said to possess a constitution ; that is to say, some leading 1 Vattel, b. 1, c.23, 281 ; Wheat. Int. 506, 516. See Tarble's Case, 13 Wall. Law, pt. 2, c. 4, 10. 397. That the general division of powers 2 McLean, J., in License Cases, 5 How. between the federal and State govern- 504, 588. " The powers of the general ments has not been disturbed by the new government and of the State, although amendments to the federal Constitution, both exist and are exercised within the see United States v. Cruikshank, 92 U. S. same territorial limits, are yet separate Rep. 542. and distinct sovereignties, acting sepa- 8 1 Bouv. Inst. 9 ; Duer, Const. Juris, rately and independently of each other, 26. " By the constitution of a State I within their respective spheres. And the mean the body of those written or un- fcphere of action appropriated to the written fundamental laws which regulate United States is as far beyond the reach the most important rights of the higher of the judicial process issued by a State magistrates and the most essential privi- judge or a State court, as if the line of leges of the subjects." Mackintosh on division was traced by landmarks and the Study of the Law of Nature and monuments visible to the eye." Taney, Nations. Ch. J., in Ableman v. Booth, 21 How. CH. I.] DEFINITIONS. 5 principle has prevailed in the administration of its government, until it has become an understood part of its system, to which obedience is expected and habitually yielded ; like the hereditary principle in most monarchies, and the custom of choosing the chieftain by the body of the people, which prevails among some barbarous tribes. But the term constitutional government is ap- plied only to those whose fundamental rules or maxims not only locate the sovereign power in individuals or bodies designated or chosen in some prescribed manner, but also define the limits of its exercise so as to protect individual rights, and shield them against the assumption of arbitrary power. 1 The number of these is not great, and the protection they afford to individual rights is far from being uniform. 2 hi American constitutional law, the word constitution is used in a restricted sense, as implying the written instrument agreed upon by the people of the Union, or of any one of the States, as the absolute rule of action and decision for all departments and officers of the government, in respect to all the points covered by it, which must control until it shall be changed "by the authority which established it, and in opposition to which any act or regu- lation of any such department or officer, or even of the people themselves, will be altogether void. The term unconstitutional law must have different meanings in different States, according as the powers of sovereignty are or are not possessed by the individual or body which exercises the pow- ers of ordinary legislation. Where the law-making department of a State is restricted in its powers by a written fundamental law, as in the American States, we understand by unconstitu- tional law one which, being opposed to the fundamental law, is therefore in excess of legislative authority, and void. Indeed, the term unconstitutional law, as employed in American jurispru- dence, is a misnomer, and implies a contradiction ; that enactment which is opposed to the Constitution being in fact no law at all. But where, by the theory of the government, the exercise of 1 Calhoun's Disquisition on Govern- a constitutional government, until the ment, Works, I. p. 11. monarch is deprived of power to set it 2 Absolute monarchs, under a pressure aside at will. The grant of Magna of necessity, or to win the favor of tlit-ir Charta did not make the English a con- people, sometimes grant them what is stitutional monarchy ; it was only after called a constitution ; but this, so long as repeated violations and confirmations of the power of the monarch is recognized that instrument, and when a further dis- as supreme, can be no more than his regard of its provisions had become dan- promise that he will observe its pro- gerous to the Crown, that fundamental visions, and conduct the government rights could be said to have constitu- accordingly. The mere grant of a con- tional guaranties, and the government to stitution does not make the government be constitutional. 6 CONSTITUTIONAL LIMITATIONS. [CH. L complete sovereignty is vested in the same individual or body which enacts the ordinary laws, any enactment, being an exercise of power by the sovereign authority, must be obligatory, and, if it varies from or conflicts with any existing constitutional principle, it must have the effect to modify or abrogate such principle, in- stead of being nullified by it. This must be so in Great Britain with every law not in harmony with pre-existing constitutional principles ; since, by the theory of its government, Parliament ex- ercises sovereign authority, and may even change the constitution at any time, as in many instances it has done, by declaring its -will to that effect. 1 And when thus the power to control and modify the constitution resides in the ordinary law-making power of the State, the term unconstitutional law can mean no more than this ; a law which, being opposed to the settled maxims upon which the government has habitually been conducted, ought not (to be, or to have been, adopted. 2 It follows, therefore, that in '< Great Britain constitutional questions are for the most part to be discussed before the people or the Parliament, since the declared will of the Parliament is the final law ; but in America, after a constitutional question has been passed upon by the legislature, ^ there is generally a right of appeal to the courts when it is attempted to put the will of the legislature in force. For the will of the people, as declared in the Constitution, is the final law ; and the will of the legislature is law only when it is in harmonv with, or at least is not opposed to, that controlling instrument which governs the legislative body equally with the private citizen. 3 1 1 Black. Cora. 161 ; De Tocqueville, gina, 2 Sup. Ct. R. (Ont.) 70; Leprohn*. Democracy in America, c. 6 ; Broom, Ottawa, 2 App. R. 522. Const. Law, 795 ; Fischel, English Con- 2 Mr. Austin, in his Province of Juris stitution, b. 7, c. 5. In the Dominion of prudence, Lee. VI., explains and enlarges Canada, where the powers of sovereignty upon this idea, and gives illustrations to are confided for exercise, in part to the show that in England, and indeed under Dominion Parliament and in part to the most governments, a rule prescribed by Provincial Parliaments, with a superin- the law-making authority may be un- tending authority over all in the imperial constitutional, and yet legal and obliga- government, the term unconstitutional tory. law has a meaning corresponding to its 8 See Chapter VII. post. use in the United States. Severn v. Re- CH. IL] THE CONSTITUTION OF THE UNITED STATES. CHAPTER II. THE CONSTITUTION OF THE UNITED STATES. THE government of the United States is the existing repre- sentative of the national government which has always in some form existed over the American States. Before the Revolution, the powers of government, which were exercised over all the colonies in common, were so exercised as pertaining either to the Crown of Great Britain or to the Parliament ; but the extent of those powers, and how far vested in the Crown and how far in the Parliament, were questions never definitely settled, and which constituted subjects of dispute between the mother country and the people of the colonies, finally resulting in hostilities. 1 That the power over peace and war, the general direction of commer- cial intercourse with other nations, and the general control of such subjects as fall within the province of international law, were vested in the home government, and that the colonies were not, therefore, sovereign States in the full and proper sense of that term, were propositions never seriously disputed in America, and indeed were often formally conceded ; and the disputes re- lated to questions as to what were or were not matters of internal regulation, the control of which the colonists insisted should be left exclusively to themselves. Besides the tie uniting the several colonies through the Crown, of Great Britain, there had always been a strong tendency to a more intimate and voluntary union, whenever circumstances of danger threatened them ; and this tendency led to the New Eng- land Confederacy of 1643, to the temporary Congress of 1690, to the plan of union agreed upon in Convention of 1754, but rejected by the Colonies as well as the Crown, to the Stamp Act Con- gress of 1765, and finally to the Continental Congress of 1774. When the difficulties with Great Britain culminated in actual war, the Congress of 1775 assumed to itself those powers of external control which before had been conceded to the Crown 1 1 Pitkin's Hist. U. S. c. 6 ; Life and Colonial Congress of 1765 ; Ramsay's Works of John Adams, Vol. I. pp. 122, Revolution in South Carolina, pp. 6-11; 161; Vol. II. p. 311 : Works of Jefferson, 5 Bancroft's U. S. c. 18; 1 Webster's Vol. IX. p. 294 ; 2 Marshall's Washing- Works, 128 ; Von Hoist, Const. Hist 5. ton, c. 2 ; Declaration of Rights by 1 ; Story on Const. 183 et seq. 8 CONSTITUTIONAL LIMITATIONS. [CH. II. or to the Parliament, together with such other powers of sov- ereignty as it seemed essential a general government should ex- ercise, and thus became the national government of the United Colonies. By this body, war was conducted, independence de- clared, treaties formed, and admiralty jurisdiction exercised. It is evident, therefore, that the States, though declared to be " sov- ereign and independent," were never strictly so in their individ- ual character, but were always, in respect to the higher powers of sovereignty, subject to the control of a central authority, and were never separately known as members of the family of na- tions. 1 The Declaration of Independence made them sovereign and independent States, by altogether abolishing the foreign jurisdiction, and substituting a national government of their own creation. But while national powers were assumed by and conceded to the Congress of 1775-76, that body was nevertheless strictly rev- olutionary in its character, and, like all revolutionary bodies, its 1 "All the country now possessed by the United States was [prior to the Revo- lution] a part of the dominions appertain- ing to the Crown of Great Britain. Every acre of land in this country was then held, mediately or immediately, by grants from that Crown. All the people of this country were then subjects of the King of Great Britain, and owed allegiance to him ; and all the civil authority then ex- isting or exercised here flowed from the head of the British empire. They were in a strict sense fellow-subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, namely, only that affinity and social connection which result from the mere circumstance of being governed by one prince ; differ- ent ideas prevailed, and gave occasion to the Congress of 1774 and 1775. " The Revolution, or rather the Dec- laration of Independence, found the people already united for general pur- poses, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the Crown of Great Britain the sovereignty of their country passed to the people of it ; and it was not then an uncommon opinion that the unappropriated lands which be- longed to the Crown passed, not to the people of the colony or State within whose limits they were situated, but to the whole people. On whatever princi- ples this opinion rested, it did not give way to the other, and thirteen sov- ereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations ; the people, nevertheless, continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accord- ingly. Afterwards, in the hurry of the war, and in the warmth of mutual confi- dence, they made a confederation of the States the basis of a general government. Experience disappointed the expectations they had formed from it ; and then the people, in their collective capacity estab- lished the present Constitution." Per Jay, Ch. J., in Chisholm v. Georgia, 2 Dall. 419, 470. See this point forcibly put and elaborated by Mr. A. J. Dallas, in his Life and Writings by G. M. Dallas, 200-207. Also in Texas . White, 7 Wall. 724. Professor Von Hoist, in his Constitutional History of the United States, c. 1, presents the same view clearly and fully. Compare Hurd, Theory of National Existence, 125. CH. II.] THE CONSTITUTION OF THE UNITED STATES. 9 authority was undefined, and could be limited only, first, by in- structions to individual delegates by the States choosing them ; second, by the will of the Congress ; and third, by the power to enforce that will. 1 As in the latter particular it was essentially feeble, the necessity for a clear specification of powers which should be exercised by the national government became speedily apparent, and led to the adoption of the Articles of Confederation. But those articles did not concede the full measure of power es- sential to the efficiency of a national government at home, the en- forcement of respect abroad, or the preservation of the public faith or public credit ; and the difficulties experienced induced the election of delegates to the Constitutional Convention held in 1787, by which a constitution was formed which was put into operation in 1789. As much larger powers were vested by this instrument in the general government than had ever been exer- cised in this country by either the Crown, the Parliament, or the Revolutionary Congress, and larger than those conceded to the Congress under the Articles of Confederation, the assent of the people of the several States was essential to its acceptance, and a provision was inserted in the Constitution that the ratifica- tion of the conventions of nine States should be sufficient for the establishment of the Constitution between the States so ratifying the same. In fact, the Constitution was ratified by conventions of delegates chosen by the people in eleven of the States, before the new government was organized under it ; and the remaining two, North Carolina and Rhode Island, by their refusal to accept, and by the action of the others in proceeding separately, were excluded altogether from that national jurisdiction which before had embraced them. This exclusion was not warranted by any- thing contained in the Articles of Confederation, which purported to be articles of " perpetual union ; " and the action of the eleven States in making radical revision of the Constitution, and exclud- ing their associates for refusal to assent, was really revolutionary in character, 2 and only to be defended on 4 the same ground of necessity on which all revolutionary action is justified, and which in this case was the absolute need, fully demonstrated by experi- ence, of a more efficient general government. 3 1 See remarks of Iredell, J., in Penhal- 8 " Two questions of a very delicate low v. Doane's Adm'r, 3 Dall. 54, 91, nature present themselves on this occa- and of Blair, J., in the same case, p. 111. sion : 1. On what principle the confedera- \ The true doctrine on this subject is very tion, which stands in the form of a solemn clearly explained by Chase, J., in Ware compact among the States, can be super- v. Hylton, 3 Dall. 199, 231. seded without the unanimous consent of 2 Mr. Van Buren has said of it that it the parties to it ; 2. What relation is to was " an heroic, though perhaps a law- subsist between the nine or more States, less, act." Political Parties, p. 50. ratifying the Constitution, and the re- 10 CONSTITUTIONAL LIMITATIONS. [CH. H. Left at liberty now to assume complete powers of sovereignty as independent governments, these two States saw fit soon to resume their place in the American family, under a permission contained in the Constitution ; and new States have since been added from time to time, all of them, with a single exception, organized by the consent of the general government, and embra- cing territory previously under its control. The exception was Texas, which had previously been an independent sovereign State, but which, by the conjoint action of its government and that of the United States, was received into the Union on an equal foot- ing with the other States. Without, therefore, discussing, or even designing to allude to any abstract theories as to the precise position and actual power of the several States at the time of forming the present Constitu- tion, 1 it may be said of them generally that they have at all times been subject to some common national government, which has exercised control over the subjects of war and peace, and other maining few who do not become parties to it. The first question is answered at once by recurring to the absolute neces- sity of the case ; to the great principle of self-preservation ; to the transcendent law of nature and of nature's God, which de- clares that the safety and happiness of society are the objects at which all politi- cal institutions aim, and to which all such institutions must be sacrificed. Perhaps, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted, among the defects of the confed- eration, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A com- pact between independent sovereigns, founded on acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the sub- ject of treaties, that all of the articles are mutually conditions of each other ; that a breach of any one article is a breach of the whole treaty ; and that a breach commit- ted by either of the parties absolves the others, and authorizes them, if they please, to pronounce the compact vio- lated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the multiplied and impor- tant infractions with which they may be confronted 1 The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate, and the flattering prospect of its being merely hypothetical forbids an over- curious discussion of it. It is one of those cases which must be left to pro- vide for itself. In general it may be ob- served, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled ; the rights of humanity must in all cases be duly and mutually respected ; whilst con- siderations of a common interest, and above all the remembrance of the endear- ing scenes which are past, and the antici- pation of a speedy triumph over the ob- stacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other." Federalist, No. 43 (\>y Madison). 1 See this subject discussed in Gib- bons v. Ogden, 9 Wheat. 1. CH. II.] THE CONSTITUTION OF THE UNITED STATES. 11 matters pertaining to external sovereignty; and that when the only three States which ever exercised complete sovereignty accepted the Constitution and came into the Union, on an equal footing with all the other States, they thereby accepted the same relative position to the general government, and divested them- selves permanently of those national powers which the others had never exercised. And the assent once given to the Union was irrevocable. "The Constitution in all its provisions looks to an indestructible Union composed of indestructible States." 1 / The government of the United States is one of enumerated powers; the national Constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the national government assumes to possess. 2 In this respect it differs from the constitutions of the several States, which are not grants of powers to the States, but which apportion and impose restrictions upon the powers which the States inherently possess. The general purpose of the Constitution of the United States is declared by its founders to be, "to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to our- selves and our posterity." To accomplish these purposes, the Congress is empowered by the eighth section of article one : 1 Chase, Ch. J., in Texas v. White, States respectively, or to the people." 7 Wall. 700, 725. See United States v. No power is conferred by the Constitu- Cathcart, 1 Bond, 556. tion upon Congress to establish mere 2 " The government of the United police regulations within the States. States can claim no powers which are United States v. Dewitt, 9 Wall. 41. Nor not granted to it by the Constitution ; is power conferred to provide for copy- and the powers actually granted must righting trademarks. Trademark Cases, be such as are expressly given, or given 100 U. S. 82. The fourteenth amend- by necessary implication." Per Marshall, ment does not take from the States police Ch. J., in Martin v. Hunter's Lessee, powers reserved to them at the time of 1 Wheat. 304, 326. "This instrument the adoption of the Constitution. See contains an enumeration of the powers Slaughter House Cases, 16 Wall. 36; expressly granted by the people to their Barbier v. Connolly, 113 U. S. 27, 5 Sup. government." Marshall, Ch. J., in Gib- Ct. Rep. 367 ; Mugler v. Kansas, 123 bonsr. Ogden, 9 Wheat. 1, 187. See Gal- U. S. 623, 8 Sup. Ct. Rep. 273. [But it der v. Bull, 3 Dall. 386; Briscoev. Bank of prevents their making, under the guise Kentucky, 11 Pet. 257; Gilman v. Phila- of police regulations, rules which abridge delphia, 3 Wall. 713 ; United States v. the liberty of the citizen to acquire con- Cruikshank, 92 U. S. 542, 650, 651, per tract rights outside his own State and to Waite, Ch. J. ; United States v. Harris, enjoy the same. Allgeyer v. Louisiana, 106 U. S. 629, 1 Sup. Ct. Rep. 601 ; Weis- 165 U. S. 578, 17 Sup. Ct. Rep. p. 427, ter v. Hade, 52 Pa. St. 474 ; Sporrer v. rev. 48 La. Ann. 104, 18 S. W. 904. See Eifler, 1 Heisk. 633. The tenth amend- note, infra, 883.] ment to the Constitution provides that As to the general division of powers " the powers not delegated to the United between the Dominion of Canada and States by the Constitution, nor prohibited the provinces, see Citizens' Ins. Co. . by it to the States, are reserved to the Parsons, 4 Can. Sup. Ct 216. 12 CONSTITUTIONAL LIMITATIONS. [CH. IL 1. 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, (a) 2. To borrow money on the credit of the United States. 3. To regulate commerce with foreign nations and among the several States, and with the Indian tribes. 1 4. To establish a uniform rule of naturalization, (i) and uni- form laws on the subject of bankruptcy, throughout the United States. 5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. 6. To provide for the punishment of counterfeiting the secur- ities and current coin of the United States. 7. To establish post-offices and post-roads. 2 8. To promote the progress of science and the useful arts, by securing; for limited terms to authors and inventors the exclusive right to their respective writings and discoveries. 3 1 Commerce on the high seas, though crimes by or against Indians. As to between ports of the same State, is held what lands of tribal Indians cannot be to be under the controlling power of Con- taxed by State, see Allen Co. Comrnrs. p. gress. Lord v. Steamship Co., 102 U. S. Simons, 129 Ind. 193, 28 N. E. 420, 13 641. See cases infra, 688, 847. [Acts L. R. A. 512.] committed by Indians within the limits 2 As to the power to exclude matter of their reservations are not subject to from the mail, see Ex parte Jackson, 96 the criminal laws of the State wherein U. S. 727. the reservation lies. State v. Campbell, This power is exclusive. The States 53 Minn. 354, 55 N. W. 553, 21 L. R. A. cannot pass laws regulating the sale of 169 and note on jurisdiction to punish patents. Hollida v. Hunt, 70 111. 109, (a) [Some interesting legal questions have grown out of the acquisition of the island of Porto Rico under the treaty with Spain, following the Spanish War, and among them the status of the island under the revenue clauses of the Constitution. In Downes v. Bid well, 182 U. S. 244, 21 Sup. Ct. Rep. 770, it is held that by the treaty of cession Porto Rico became territory appurtenant to the United States but not a part of it within the meaning of those clauses of the Constitution. That Section 8 of Article 1, requiring duties, imposts, and excises to be uniform " through- out the United States " did not apply to the island of Porto Rico. The other " Insular Cases," so called, involving the status of Porto Rico under the revenue clauses of the Constitution are De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. Rep. 743 ; Goetz v. United States and Grossman v. United States, 182 U. S. 221, 21 Sup. Ct. Rep. 742; Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. Rep. 762; Armstrong v. United States, 243, and Huus v. New York & Porto Rico Steamship Company, 182 U. S. 392, 21 Sup. Ct. Rep. 827. The same doctrine with reference to the Phillipine Islands is announced in Dooley v. United States, 183 U. S. 151, 22 Sup. Ct. Rep. 62, and Fourteen Diamond Rings v. United States, 183 U. S. 176, 22 Sup. Ct. Rep. 69.] (l>) [Naturalization may be by treaty, and also by organic act creating a State. Boyd v. Nebraska, 143 U. S. 135, 12 Sup Ct. Rep. 375, and cases there cited. But such naturalization applies only to those who were citizens of the admitted territory or country at the time of such admission. Contzen v. United States, 179 U. S. 191, 21 Sup. Ct. Rep. 98.3 CH. II.] THE CONSTITUTION OF THE UNITED STATES. 13 9. To constitute tribunals inferior to the Supreme Court; to define and punish piracies and felonies committed upon the high seas, and offences against the law of nations. 10. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. 11. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years. 12. To provide and maintain a navy. 13. To make rules for the government and regulation of the land and naval forces. 14. To provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions. 15. 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 prescribed by Congress. 1 16. To exercise exclusive legislation in all cases whatsoever, over such district not exceeding ten miles square as may, by cession of particular States, and the acceptance of Congress, become the seat of 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, dockyards, and other needful buildings, (a) 17. To make all laws which shall be necessary and proper 22 Am. Rep. 63; Crittenden v. White, articles. Patterson . Kentucky, 11 Bush, 23 Minn. 24, 23 Am. Rep. 676 ; Cranson 311 ; 21 Am. Rep. 220 ; s. c. in error, 97 v. Smith, 37 Mich. 309, 26 Am. Rep. 514; U. S. 501; State v. Telephone Co., 36 Ex parie. Robinson, 2 Hiss. 309 ; Woollen Ohio St. 296 ; 38 Am. Rep. 683. One v. Banker, 2 Flipp. 33, Swayne, J. In who peddles articles made under a patent some States, however, statutes are up- may be required to comply with an ordi- held which require that notes given for nance requiring licenses for all peddlers, a patent right shall express their purpose People v. Russell, 49 Mich. 617, 14 N. W. on the face of the paper. Tod v. Wick, 578. QState cannot require vendor of 36 Ohio St. 370 ; Herdic v. Roessler, 109 patent-rights to take out license. Com. N. Y. 127, 16 N. E. 198; Shires v. Com., v. Petty, 96 Ky. 452, 29 S. W. 291, 29 120 Pa. St. 368, 14 Atl. 251 ; New v. L. R. A. 786 ; and upon power of State Walker, 108 Ind. 365, 9 N. E. 386 ; QMa- over patent-rights, see note hereto in son v. McLeod, 57 Kan. 105, 45 Pac. 76, L. R. A.] 41 L. R. A. 548, 57 Am. St. 327; Bohon's * Houston v. Moore, 5 Wheat. 1 ; Mar- Assignee v. Brown, 101 Ky. 354, 41 S. W. tin v. Mott, 12 Wheat. 19 ; Kneedler v. 273, 38 L. R. A. 503.] The States may Lane, 45 Penn. St. 238 ; Dunne v. People, pass laws regulating the use of patented 94 111. 120, 34 Am. Rep. 213. (a) (^Perjury committed in a State court holden by permission of State law and of federal officials in a federal building, is not outside the jurisdiction of the State to punish. Exum v. State, 90 Tenn. 601, 17 S. W. 107, 15 L. B. A. 381-3 14 CONSTITUTIONAL LIMITATIONS. [CH. II. for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. 1 Congress is also empowered by the thirteenth, fourteenth, and fifteenth amendments to the Constitution to enforce the same by appropriate legislation. The thirteenth amendment abolishes slavery and involuntary servitude, (a) except as a punishment for crime, throughout the United States and all places subject to their jurisdiction. The fourteenth amendment (6) has several objects. 1. It declares all persons born or naturalized in the United States, and subject to the jurisdiction thereof, to be citizens of the United States and of the State wherein they reside ;(c) and it forbids any State to make or enforce any law 1 Within the legitimate scope of this expressly withheld from Congress by the grant Congress can determine for itself Constitution; we are irresistibly impelled what is necessary. Ex parte Curtis, 106 to the conclusion that the impressing U. S. 371. " Congress as the legislature upon the treasury notes of tlie United of a sovereign nation, being expressly States the quality of being a legal ten- empowered by the Constitution 'to lay der in payment of private debts is an and collect taxes, to pay the debts and appropriate means, conducive and plainly provide for the common defence and adapted to the undoubted powers of Con- general welfare of the United States,' gress, consistent with the letter and spirit and ' to borrow money on the credit of of the Constitution, and, therefore, within the United States,' and 'to coin money the meaning of that instrument, 'neces- and regulate the value thereof and of sary and proper for carrying into execu- foreign coin ; ' and being clearly author- tion the powers vested by this Constitu- ized, as incidental to the exercise of those tion in the government of the United great powers, to emit bills of credit, to States.' " Gray, J., in Legal Tender Case, charter national banks, and to provide a 110 U. S. 421. national currency for the whole people, Congress has implied power to protect in the form of coin, treasury notes, and voters at federal elections from intimi- national bank bills; and the power to dation : Ex parte Yarbrough, 110 U. S. make the notes of the government a legal 651 ; to protect the right to make home- tender in payment of private debts being stead entry upon public lands. United one of the powers belonging to sover- States v. Waddell, 112 U. S. 76. eignty in other civilized nations, and not (a) [This does not extend to the case of seamen compelled to serve in fulfilment of their contracts. Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. Rep. 326. Dissent by Harlan, J. But a law authorizing the hiring out of a vagrant to the highest bid- der for a specified term is void. Thompson v. Bunton, 117 Mo. 83, 22 S. W. 863, 20 L. R. A. 462.] (6) EThe adoption of the fourteenth amendment has not extended to the several States of the Union the restrictions imposed by the first ten amendments to the Constitution of the United States upon the Federal Government. See Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. Rep. 448; Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. Rep. 77; Leeper v. Texas, 139 U. S. 462, 11 Sup. Ct. Rep. 577; Caldwell v. Texas, 137 U. S. 692, 11 Sup. Ct. Rep. 224; Re Converse, 137 U. S. 624, 11 Sup. Ct. Rep. 191 ; Missouri v. Lewis, 101 U. S. 22 ; United States v. Cruikshank, 92 U. S. 542 ; Slaughter House Cases, 16 Wall. 36.] (o) QA child of alien parentage born in this country is a citizen. Wong Kim Ark's Case, 169 U. S. 649, 18 Sup. Ct. Rep. 456. See Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. Rep. 1016.] CH. II.] THE CONSTITUTION OF THE UNITED STATES. 15 which shall abridge the privileges or immunities of citizens of the United States, 1 or to deprive any person of life, liberty, or property, without due process of law, or to deny to any person within its jurisdiction the equal protection of the laws, (a) 1 As to this clause, see p. 667, note 4, infra. (a) A discrimination between agricultural lands and other lands with regard to the right of a city to annex them by extension of its corporate limits so as to include them is no denial of the equal protection of the laws. A State may classify the objects of legislation so long as its attempted classification is not clearly arbitrary )- and unreasonable. Clark i;. Kansas City, 176 U. S. 114, 20 Sup. Ct. Rep. 284, aff. 59 Kan. 427, 53 Pac. 468. Many cases upon the power of the legislature to annex rural lands to municipalities are collected in a note to this case in 44 L. ed. U. S. 392. Nor does a statute making a railroad company liable to an employee injured by the negligence of a fellow-servant deny to such company the equal protectioa of the laws, since there are peculiar hazards in the operation of a railroad which warrant the discrimination between railroad companies and ordinary employers in this regard. Tullis v. Lake Erie & Western R. Co., 175 U. S. 348, 20 Sup. Ct. Rep. 136. The act (Burns's An. Stat. of Ind., Rev. of 1894, 7083-7) applies in terms only to cor- porations. The point was raised in the defence that this discrimination between cor- porations operating railroads and other persons or associations operating railroads was unconstitutional, but it was not noticed by the court. That the exception of a dummy railroad operated by steam or of an electric railroad from an ordinance limiting the speed with which railroad trains may run within the city limits is not an arbitrary and unreasonable classification in denial of the equal protection of the laws, see Erb v. Morasch, 177 U. S. 584, 20 Sup. Ct. Rep. 819, aff. 60 Kan. 251, 56 Pac. 133. On validity of ordinance requiring possession of good character and repu- tation in one seeking license to sell cigarettes and vesting mayor with power to deter- mine whether or not applicant possesses such, see Gundling v. Chicago, 177 U. S- 183, 20 Sup. Ct. Rep. 633, aff. 176 111. 340, 52 N. E. 44. A county board of education maintained primary schools for white children and for negro children. They also maintained a high school for white children, but had discontinued a high school for negro children for the reason that the funds were needed for primary schools for a much larger number of negro children than attended the negro high school. Such discontinuance of high school privileges for negroes while high school privileges are continued for white children cannot be corrected by injunction against maintenance of high school for white children, and refusal to grant such injunction is no denial of the equal protection of the laws nor of any privileges and immunities of citizens of the United States. Gumming i;. Board of Education, 175 U. S. 528, 20 Sup. Ct. Rep. 197, aff. 103 Ga. 641, 29 S. E. 488. Upon equality of exemption under State taxation, see People v. Roberts, 171 U. S. 658, 19 Sup. Ct. Rep. 58, aff. 91 Hun, 158, 149 N. Y. 608, 44 N. E. 1127. State may abridge right of trial by jury in city courts without making same provision for county courts, Chappell Chem. & Fertilizer Co. v. Sulphur Mines Co., 172 IJ. S. 474, 19 Sup. Ct. Rep. 268, citing Hayes v. Missouri, 120 U. S. 68, 7 Sup. Ct. Rep. 350, and Missouri v. Lewis, 101 U. S. 22. Jury trial is not necessary in a commitment for contempt of court. Tinsley v. Anderson, 171 U. S. 101, 18 Sup. Ct. Rep. 805. Nor in disbarment proceedings, Shepard's Case, 109 Mich. 631, 67 N. W. 971. State may provide that plaintiff in an action against a railroad company for loss by fire caused by operation of the road shall, if successful, recover a reasonable attorney's fee in addition to damages, while, if unsuccessful, no attorney's fee shall be assessed against him. Atchison, T. & S. F. Ry. Co. v. Matthews, 174 U. S. 96, 19 Sup. Ct. Rep. 609. See in this case a vigorous dissenting opinion of Harlan, J., concurred in by Brown, Peckham, and McKenna, JJ. That state may require railroad companies to pay discharged employees at regular rate until time of full payment, not to exceed sixty days after discharge, see St. Louis, L M. & S. R. 16 CONSTITUTIONAL LIMITATIONS. [CH. II. 2. It provides that when the right to vote at any election for the choice of electors (a) for President or Vice-President of the Co. v. Paul, 173 U. S. 404, 19 Sup. Ct. Rep. 419, aff. 64 Ark. 83, 40 S. W. 705, 37 L. R. A. 504. A statute providing that if a tramp shall threaten to injure the person or property of any person he shall be imprisoned in the penitentiary, is not void as denying equal protection. State v. Hogan, 63 Ohio, 202, 58 N. E. 572, 81 Am. St. 626. The equal protection of the laws is not denied to negroes by those provisions of the Constitu- tion of Mississippi which place burdens and limitations upon persons subject to vices and guilty of crimes that are characteristic of the negro race, nor is there any discrimination thus brought about against the race itself. Williams v. Mississippi, 170 U. S. 213, 18 Sup. Ct. Rep. 583. Or by a law requiring whites and negroes to occupy different compartments of passenger-cars. Plessy v. Ferguson, 163 U. S. 637, 16 Sup. Ct. Rep. 1138. See Smith v. State, 100 Tenn. 494, 46 S. W. 566, and Anderson v. Louisville & N. Ry. Co., 62 Fed. 46. Accused cannot insist that his race be represented upon the jury, either trial or grand. Wood v. Brush, 140 U. S. 278, 370, 11 Sup. Ct. Rep. 738, 942 ; Jugiro v. Brush, 140 U. S. 291, 11 Sup. Ct. Rep. 770. A State may abolish the fellow-servant rule with regard to a particular class of employers only, e.g. railroad companies. Chicago, K. & W. R. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. Rep. 585. State may provide that coming into court to chal- lenge the validity of an alleged service upon the defendant shall constitute a general appearance. York v. Texas, 137 U. S. 15, 11 Sup. Ct. Rep. 9; Kauffman v. Wooters, 138 U. S. 285, 11 Sup. Ct. Rep. 298. Exemption by statute of " planters and farmers grinding and refining their own sugar and molasses " from a license tax upon per- sons and corporations carrying on the business of refining sugar and molasses is not a denial of the equal protection of the laws to the persons taxed. Am. Sugar Ref. Co. v. Louisiana, 179 D. S. 89, 21 Sup. Ct. Rep. 43. State may levy a specific tax upon persons engaged in the business of hiring laborers to be employed beyond the limits of the State, while levying none upon those hiring laborers to be employed within the State. Williams v. Fears, 179 U. S. 270, 21 Sup. Ct. Rep. 128, aff. 110 Ga. 584, 35 S. E. 699. A person cannot complain that he is denied the equal protec- tion of the laws when valid laws are fairly administered as to him, although there is maladministration as to his neighbors, as, e g. by underassessment of property for taxation, New York v. Barker, 179 U. S. 279, 21 Sup. Ct. Rep. 121. The levy of a tax upon owners of lands abutting on streets along which conduits for public water supply run, in excess of that levied upon owners of lands not so located, upon the theory that better fire protection is afforded is unconstitutional. Lemont v. Jenks, 197 111. 363, 64 N. E. 362. State may classify cities for regulation of registration of voters. Mason v. Missouri, 179 U. S. 328, 21 Sup. Ct. Rep. 125. In Cotting v. Kansas City Stock Yards Co. et al, 183 U. S. 79, 22 Sup. Ct. Rep. 30, a statute of Kansas defining what shall constitute public stock yards and regulating all charges thereof, is held to be in conflict with the fourteenth amendment for the reason that the definition of a " public stock yard " was made to depend upon the volume of business done and the facts showed that the Kansas City Stock Yards Co. was the only one within the definition, and the legislation was therefore a denial to the Kansas City Co. of the equal protection of the law. For other cases on " equal protection," see Lowe v. Kansas, 163 U. S. 81, 16 Sup. Ct. Rep. 1031 ; Jones v. Brim, 165 U. S. 180, 17 Sup. Ct. Rep. 282; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. Rep. 255, rev. 87 Tex. 19 ; 26 S. W. 985 ; St. L. & S. F. R. Co. v. Mathews, 165 U. S. 1, 17 Sup. Ct. Rep. 243 ; Merchant v. Pa. R. Co., 153 U. S. 380, 14 Sup. Ct. Rep. 894; Jennings v. Coal Ridge Imp. & Coal Co., 147 U. S. 147, 13 Sup. Ct. Rep. 282; Fielden v. Illinois, 143 U. S. 452, 12 Sup. Ct. Rep. 528; Commercial Nat'l Bank v. Chambers, 182 U. S. 556, 21 Sup. Ct. Rep. 863, aff. 21 Utah, 324, 61 Pac. 560; Estate of Mahoney, 133 Cal. 180, 65 Pac. 389, 85 Am. St. 155.] (a) The appointment and mode of appointment of electors from a State are within the power of the State acting in such manner as its legislature may direct; CH. II.] THE CONSTITUTION OF THE UNITED STATES. 17 United States, representatives in Congress, the executive and judicial officers of a State, or the members 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 is in any way abridged, except for participation in rebellion or other crime, the basis of congressional 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. 3. It disqualifies from holding Federal or. State offices certain persons who shall have engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof. 4. It declares the inviolability of the public debt of the United States, and forbids the United States or any State assuming or paying any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emanci- pation of any slave. 1 The fifteenth amendment declares that 1 " That amendment was undoubtedly proposed for the purpose of fully pro- tecting the newly-made citizens of the African race in the enjoyment of their freedom, and to prevent discriminating State legislation against them. The gen- erality of the language used necessarily extends its provisions to all persons, of every race and color. Previously to its adoption, the Civil Rights Act had been passed, which declared that citizens of the United States of every race and color, without regard to any previous condition of slavery or involuntary servi- tude, except as a punishment for crime, should have the same rights in every State and Territory to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, own, and convey real and personal prop- erty, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and should be subject to like punishments, pains, and pena'ties, and to none other. The validity of this act was questioned in many quarters, and complaints were made that, notwith- standing the abolition of slavery and in- voluntary servitude, the freedmen were in some portions of the country subjected to disabilities from which others were ex- empt. There were also complaints of the existence in certain sections of the South- ern States of a feeling of enmity, growing out of the collisions of the war, towards citizens of the North. Whether these complaints had any just foundation is im- material ; they were believed by many to be well founded, and to prevent any possible legislation hostile to any class from the causes mentioned, and to obvi- ate objections to legislation similar to that embodied in the Civil Rights Act, the fourteenth amendment was adopted. This is manifest from the discussions in Congress with reference to it. There was no diversity of opinion as to its object between those who favored and those who opposed its adoption." Mr. Justice Field in San Mateo County v. Sou. Pac. R. R. Co., 13 Fed. Rep. 722. "A State acts by its legislative, its executive, or its judicial authorities. It can act in no othe/ way. The constitu- tional provision, therefore, must mean and a law directing that one elector and one alternate shall be elected from each congressional district, and one elector and one alternate shall be elected at large in each of two districts into which the legislature divides the State for the purpose of electing the remaining two electors, is a valid exercise of the power of the legisla- ture in this regard. McPherson v. Blacker, 146 U. S. 1, 13 Sup. Ct. Rep. 3, aft 92 Mich. 377, 52 N. W. 469, 16 L. R. A. 475, 31 Am. St. 587.] 2 18 CONSTITUTIONAL LIMITATIONS. [CH. II. 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 account of race, color, or previous condition of servitude. 1 that no agency of the State, or of the officers or agents by whom its powers are executed, sliall deny to any person within its jurisdiction the equal protection of the laws. Whoever by virtue of public posi- tion under a State government deprives another of property, life, or liberty with- out due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition ; and as he acts in the name and for the State, and is clothed with the State's authority, his act is that of the State. This must be so, or the constitutional prohibition has no meaning." Strong, 3., in Ex parte Vir- ginia, 100 U. S. 339. Approved, Neal v. Delaware, 103 U. S. 370, 397. An act of Congress declaring that certain acts committed by individuals shall be deemed offences and punished in the United States courts is invalid. The fourteenth amend- ment does not " invest Congress with power to legislate upon subjects which are within the domain of State legisla- tion ; but to provide modes of relief against State legislation or State action of the kinds referred to. It does not authorize Congress to create a code of municipal law for the regulation of pri- vate rights ; but to provide modes of re- dress against the operation of State laws and the action of State officers, executive and judicial, when these are subversive of the fundamental rights specified in the amendment." Bradley, J., in Civil Bights Cases, 109 U. S. 3, 3 Sup. Ct. Rep. 18. See also United States v. Har- ris, 106 U. S. 629, 1 Sup. Ct. Rep. 601 ; Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. Rep. 656. But Congress may pun- ish the intimidation by individuals of voters at federal elections. Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. Rep. 152. 1 See, as to these amendments, Story on Const. (4th ed.) c. 46, 47, 48, and App. to Vol. II. The adoption of an amend- ment to the Federal Constitution has the effect to nullify all provisions of State constitutions and State laws which con- flict therewith. Ex parte Turner, Chase Dec. 157; Neal v. Delaware, 103 U. S. 370; Wood v. Fitzgerald, 3 Oreg. 568; Portland v. Bangor, 65 Me. 120, 20 Am. Rep. 681. See Griffin's Case, Chase Dec. 368. The new amendments do not en- large the privilege of suffrage so as to entitle women to vote. Bradwell v. State, 16 Wall. 130; Minor ;. Happersett, 21 Wall. 162. They do not prevent a State forbidding a body to parade without license from the Governor. The privi- lege of citizens of the United States is not thereby infringed. Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. Rep. 580. The four- teenth amendment does not entitle per- sons as of right to sell intoxicating drinks against the prohibitions of State laws; Bargprneyer v. Iowa, 13 Wall. 129 ; nor is property taken without due process of law by such a law, although without com- pensation an existing brewery is rendered valueless thereby: Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273; it is not violated by the grant by a State, under its police power, of an exclusive right for a term of years to have and maintain slaughter-houses, landings for cattle, and yards for inclosing cattle in- tended for slaughter, within certain speci- fied parishes : Slaughter House Cases, 16 Wall. 36 ; nor by denying the right of jury trial in State courts : Walker v. Sauvinet, 92 U. S. 90 ; it does not pre- clude a State from taxing its citizens for debts owing to them from foreign debtors : Kirtland v. Hotchkiss, 100 U. S. 491; nor from regulating warehouse charges ; Munn v. Illinois, 94 U. S. 113; or charges for the transportation of freight and passengers by common carriers : Chicago, &c. R. R. Co. v. Iowa, 94 U. S. 155 ; Rail- road Com. Cases, 116 U. S. 307, 6 Sup. Ct. Rep. 388 ; Dow v. Beidleman, 125 U. S. 680, 8 Sup. Ct. Rep. 1028; nor from mak- ing railroads, and not other masters, liable to servants for the negligence of fellow-servants : Missouri Pac. Ry. Co. v. Mackey, 127 U. S. 206, 8 Sup. Ct. Rep. 1161; Minneapolis & St. L. Ry. Co. v. Herrick, id. 210 ; nor from giving double damages for killing stock through failure to fence : Missouri Pac. Ry. Co. v. Humes, 116 U. S. 612, 6 Sup. Ct. Rep. 110; Min- neapolis & St. L. Ry. Co. v. Beck with, 129 U. S. 26, 9 Sup. Ct. Rep. 3; nor from CH. II.] THE CONSTITUTION OF THE UNITED STATES. 19 The executive power is vested in a president, who is made commander-iu-chief of the army and navy, and of the militia of requiring a railroad to pay for examina- tion of its servants for color-blindness : Nashville, C. & St. L. Ry. Co. v. Alabama, 128 U. S. 96, 9 Sup. Ct. Kep. 28 ; contra, Louisville & N. R. R. Co. v. Baldwin, 85 Ala. 619, 6 So. 311. The fourteenth amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great di- versities may and do exist in these re- spects in different States. One may have the common law and trial by jury; an- other the civil law and trial by the court. But like diversities may also exist in dif- ferent parts of the same State. The States frame their laws and organize their courts with some regard to local peculiarities and special needs, and this violates no constitutional requirement. All that one can demand under the last clause of 1 of the fourteenth amendment is, that he shall not be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances. Missouri v. Lewis, 101 U. S. 22 ; Hayes v. Missouri, 120 U. S. 68, 7 Sup. Ct. Rep. 350. So railroads, as a class, may be taxed differ- ently from other property, and if the law provides for a hearing and judicial con- test, it is due process of law. Kentucky R. R. Tax Cases, 115 U. S. 321, 6 Sup. Ct. Rep. 57. The fourteenth amendment not only gave citizenship to colored persons, but by necessary implication it conferred upon them the right to exemption from unfriendly legislation against them dis- tinctively as colored, exemption from discriminations imposed by public author- ity which imply legal inferiority in civil society, lessen the security of their rights, and are steps towards reducing them to the condition of a subject race. The de- nial by State authority of the right and privilege in colored persons to participate as jurors in the administration of justice is a violation of this amendment. Strau- der v. West Virginia, 100 U. S. 303 ; Vir- ginia v. Rives, 100 U. S. 313 ; Ex pirte Virginia, 100 U. S. 339 ; Neal v. Dela- ware, 103 U. S. 370 ; FJBush v. Kentucky, 107 U. S. 110, 1 Sup. Ct. Rep. 625 ; Gibson v. Mississippi, 162 U. S. 665, 16 Sup. Ct. Rep. 904; Carter v. Texas, 177 U. S. 442, 20 Sup. Ct. Rep. 687. On negroes as grand jurors see note to 44 L. ed. U. S. 839. State may require negroes and whites to occupy separate compartments in passenger cars on roads operating wholly within the State. Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. Rep. 1138, aff. 45 La. Ann. 80, 11 So. 948,18 L. R. A. 639.] A trial jury may be made up entirely of whites, if ne- groes are not excluded from jury lists, but an indictment is bad,.if found by a grand jury on which whites only are allowed by law. Bush v. Kentucky, 107 U. S. 110, 1 Sup. Ct. Rep. 625. See, further, United States v. Reese, 92 U. S. 214 ; QLewis v. State, 29 Tex. Ct. Ap. 201, 59 S. W. 1116, 25 Am. St. 720. Negroes called for jury- service may be peremptorily challenged if peremptory challenges are not yet ex- hausted. Whitney v. State, Tex. Cr. Ap. , 63 S. W. 879.] A law prohib- iting adultery between a white and a negro under heavier penalty than be- tween two whites or two blacks, is valid. Pace v. Alabama, 106 U. S. 683, 1 Sup. Ct. Rep. 637. See Plunkard v. State, 67 Md. 364. Since these amendments, as before, sovereignty for the protection of life and personal liberty within the re- spective States rests alone with the States ; and the United States cannot take cognizance of invasions of the privi- lege of suffrage when race, color, or pre- vious condition is not the ground thereof, United States v. Reese, 92 U. S. 214; United States v. Cruikshank, id. 542. Police regulations which affect alike all persons similarly situated are valid : Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357 ; so of regulations of the practice of medicine : Dent v. West Vir- ginia, 129 U. S. 114, 9 Sup. Ct. Rep. 231 ; rjState v. Knowles, 90 Md. 646, 45 Atl. 877, 49 L. R. A. 695 ;] but the adminis- tration of such police ordinances so as to deny to Chinese rights accorded to whites in similar circumstances is prohibited. Tick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064. Corporations are " persons " within the meaning of the amendment. Santa Clara Co. v. Southern Pac. R. R. Co., 118 U. S. 20 CONSTITUTIONAL LIMITATIONS. [OH. II. the several States when called into the service of the United States; and who has power, by and with the consent of the 394, 6 Sup. Ct. Rep. 1132; Missouri Pac. Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. Rep. 1161 ; [[Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. Rep. 418 ; Hawley v. Kurd et al., 72 Vt. 122, 47 Atl. 401. But are not " citizens " within the meaning of that term as used in the fourteenth amendment. Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. Rep. 281; Hawley v. Hurd et al., supra ;] but a for- eign corporation is not deprived of equal protection of the laws because it is taxed by the State at as high a rate as are cor- porations of that State in its home State. Phila. Fire Ass.r. New York, 119 U. S. 110, 7 Sup. Ct. Rep. 108. The repeal of a limitation statute after a personal debt is barred by it, does not deprive the debtor of property without due process of law. Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. Rep. 209. See, further, Railroad Co. v. Brown, 17 Wall. 446 ; Kennard v. Louisiana, 92 U. S. 480; Pennoyer v. Neff, 95 U. S. 714 ; Pearson v. Yewdall, 95 U. S. 294; McMillen v. Anderson, 95 U. S. 37; Davidson v. New Orleans, 96 U. S. 97 ; Kirkland v. Hotch- kiss, 100 U. S. 491 ; Tennessee v. Davis, 100 U. S. 257 ; Louisiana v. New Orleans, 109 U. S. 285, 3 Sup. Ct Rep. 211 ; Prov- ident Inst. . Jersey City, 113 U. S. 506, 5 Sup. Ct. Rep. 612; RoBards v. Lamb, 127 U. S. 58, 8 Sup. Ct. Rep. 1031 ; Wal- ston v. Nevin, 128 U. S. 578, 9 Sup. Ct. Rep. 192; Freeland v. Williams, 131 U. S. 405, 9 Sup. Ct. Rep. 794; Board of Com'rs v. Merchant, 103 N. Y. 143 ; State v. Ryan, 70 Wis. 676, 36 N. W. 823; Warren v. Sohn, 112 Ind. 213, 13 N. E. 863 ; State v. Dent, 25 W. Va. 1 ; Allen v. Wyckoff, 48 N. J. L. 90, 2 Atl. 659. Upon what constitutes "due process of law," see cases collected in valuable notes upon this topic appended to 42 L. ed. U. S. 865, and 24 L. ed. U. S. 436 ; see also latter part of note 1, page 605, and note 1, page 568, post. Personal ser- vice on non-residents outside the jurisdic- tion of the court may, if reasonable time is given in which to appear and answer, be due process of law in a suit for the foreclos- ure of a lien upon land within the jurisdic- tion of the court ; but five days' notice, one of those days being a Sunday, is insuffi- cient when, with the utmost diligence and without any accident or delay whatever, the party notified could not reach the court with less than four days of constant travelling, and the fact that by the local practice there would be several days after return day before the case could be called for trial or default taken, or that the court would probably, in view of the circumstances, set aside any default that might have been entered, will not nega- tive this conclusion of insufficiency, since non-residents are not presumed to know the law and practice of the State. Roller v. Holly, 176 U. S. 398, 20 Sup. Ct. Rep. 410, rev. 13 Tex. Civ. Ap. 636, 35 S. W. 1074. " It is no longer open to contention that the due process clause of the four- teenth amendment . . . does not control mere forms of procedure in State courts or regulate practice therein. All its require- ments are complied with, provided, in the proceedings which are claimed not to have been due process of law, the person condemned has had sufficient notice, and adequate opportunity has been afforded him to defend. Iowa C. R. Co. v. Iowa, 160 U. S. 389, 16 Sup. Ct. Rep. 344 ; Wil- son v. North Carolina, 169 U. S. 686, 18 Sup. Ct. Rep. 435," per Mr Justice White in Louisville & N. R. Co. v. Schmidt, 177 U. S. 230, 236, 20 Sup. Ct. Rep. 620, aff. 99 Ky. 148, 35 S. W. 135, 36 S. W. 168. In this case the L. & N. R. Co. had been an actual defendant, although never served with notice and not a party to the record. After judgment it was brought in by rule to show cause and upon appear- ing and claiming a set-off it was con- demned to pay the judgment. The garnishment of a resident debtor of a non-resident defendant to reach a debt due from the latter who has no other property within the jurisdiction of the court does not deprive him of his property without due process of law, the situs of debt being, for purposes of attachment, with the debtor. King v. Cross, 175 U. S. 396, 20 Sup. Ct. Rep. 131 ; Chicago, R. I. & P. R. Co. i>. Sturm, 174 U. S. 710, 19 Sup. Ct. Rep. 797. Upon right to cor- rect gross undervaluations of property assessed for taxation in prior years, even when ownership has since changed, see CH. II.] THE CONSTITUTION OF THE UNITED STATES. 21 Senate, to make treaties, provided two-thirds of the Senate concur, and, with the same advice and consent, to appoint Weyerhauser v. Minnesota, 176 U. S. 550, 20 Sup. Ct. Rep. 485, aft. 72 Minn. 519, 75 N. W. 718, in which right of State so to do is sustained. Assessment and col- lection of taxes upon money loaned within the State is not a taking without due process merely because creditor re- sides without the State, and such taxes if unpaid may be made a lien enforceable against estate of decedent creditor except as limited by Statute of Limitations. Bristol v. Washington County, 177 U. S. 133, 20 Sup. Ct. Rep. 585. A State may tax the interest of the non-resident mortgagee of lands within its boundaries, even though he holds the mortgage at his residence. Savings & L. Society v. Multonomah County, 169 U. S. 421, 18 Sup. Ct. Rep. 392. As to taxes on judgments, see Kingman Co. Com'rs v. Leonard, 57 Kan. 631, 46 Pac. 960, 34 L. R. A. 810; moneys of non-residents deposited in State, Re Houdayer, 150 N. Y. 37, 44 N. E. 718, 34 L. R. A. 235, 65 Am. St. 642; place of taxation of trust property, Richmond County Acad. v. Augusta, 90 Ga. 634, 17 S. E. 61, 20 L. R. A. 151, and note. Subjecting the logs of an individual who voluntarily runs them into a boom to a lien in favor of the surveyor-general for services of inspection compelled by law and ren- dered indiscriminately upon all logs in the boom is not a taking without due process. Lindsay & Phelps Co. v. Mul- len, 176 U. S. 120, 20 Sup. Ct. Rep. 325. Legislation restricting a land- owner's right to permit natural gas to escape from his oil wells and go to waste does not deprive him of property without due process. Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. Rep. 576. Denying a right of action for defamatory words used in a pleading is not a taking of property without due process, even if reputation could be considered property. Abbott v. National Bank of Commerce, 175 U. S. 409, 20 Sup. Ct. Rep. 153, aff. 20 Wash. 552, 56 Pac. 376. On power of State to declare keeping of barber-shops open on Sunday not a work of charity or necessity, see Petit v. Minnesota, 177 U. S. 164, 20 Sup. Ct. Rep. 666. On power of city to restrict prostitutes to certain localities, even though such re- striction depreciates the property in those localities, see L'Hote v. New Orleans, 177 U. S. 587, 20 Sup. Ct. Rep. 788. Valid commitment for contempt does not de- prive of liberty without due process, and jury trial is unnecessary. Tinsley v. Anderson, 171 U. S. 101, 18 Sup. Ct. Rep. 805. In the distribution of the assets of an insolvent, postponing a foreign corpo- ration's claims until after those of resi- dents of the State are satisfied, is not a denial of due process. Blake v. McClung, 172 U. S. 239, 19 Sup. Ct. Rep. 165. Nor is making the face of the policy conclu- sive as to the value of the property insured in case of total loss. Orient In- surance Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. Rep. 281, aff. 136 Mo. 382, 38 S. W. 85, 35 L. R. A. 227, 58 Am. St. 638. But see Missouri, K. & T. Ry. Co. v. Simonson, Kan. , 68 Pac. 653, where it is held that statute making state- ment of weight in a bill of lading conclu- sive evidence between the carrier and shipper was void. Nor is requirement of bond in attachment against a resident while none is required against a non-resi- dent. Central Loan & T. Co. v. Campbell Commn. Co., 173 U. S. 84, 19 Sup. Ct. Rep. 346. State may forfeit lands for non-payment of taxes if reasonable op- portunity is given the owner to redeem by payment of taxes and charges. King v . Mullins, 171 U. S. 404, 18 Sup. Ct. Rep. 925. Consequential damage arising from allowing an obstruction of a street is not a taking without due process. Meyer i>. Richmond, 172 U. S. 82, 19 Sup. Ct. Rep. 106. Discretion may be vested in a single officer to permit or refuse to permit a building to be moved through the streets. Wilson v. Eureka City, 173 U. S. 32, 19 Sup. Ct. Rep. 317. State cannot impose upon a non-resident lot owner a liability in personam in respect of the lot. Dewey v. Des Moines, 173 U. S. 193, 19 Sup. Ct. Rep. 379. For note on what constitutes due process of law, see 2 L. R. A. 258. In appropriation under eminent domain, the State may provide that the appropri- ator may go into possession upon giving adequate security that the duly assessed compensation will be paid, and may also 22 CONSTITUTIONAL LIMITATIONS. [CH. II. ambassadors and other public ministers and consuls, judges of the Supreme Court, and other officers of the United States, whose appointments are not otherwise provided for. 1 The judicial power of the United States extends to all cases (a) in law and equity arising under the national Constitution, the provide different tribunals for passing upon the necessity of the appropriation and upon the amount of compensation. Backus v. Fort St. Union Depot Co., 169 U. S. 557, 18 Sup. Ct. Rep. 445. If dur- ing the pendency of an appeal, the day set for the execution of a death sentence passes, it is no denial of due process to set another day, particularly when such is in conformity to the statute of the State. Craemer o. Washington, 168 U. S. 124, 18 Sup. Ct. Rep. 1. An information which charges a crime in the general words of a statute without specifying kind, quantity, price, etc., but sets out these and other particulars in a specifi- cation attached to the information, which specification the accused might lawfully require but has not in fact required, is not too defective to be due process. Hodgson v. Vermont, 168 U. S. 262, 18 Sup. Ct. Rep. 80, aff. 66 Vt. 134, 28 Atl. 1089. State may confiscate, without judicial process, nets and seines used in violation of its fish and game laws. Lawton o. Steele, 152 U. S. 133, 14 Sup. Ct. Rep. 499, aff. 119 N. Y. 226, 23 N. E. 878, 7 L. R. A. 134. Indictment by grand jury not necessary. McNulty v. California, 149 U. S. 645, 13 Sup. Ct. Rep. 959, aff. 93 Cal. 427, 26 Pac. 597, 29 Pac. 61. State can impeach title to lands granted by it only by suing in equity. A second patent to the lands issued before such impeach- ment of the former is void. Chandler v. Calumet & H. M. Co., 149 U. S. 79, 13 Sup. Ct. Rep. 798; Noble v. Union Riv. Logging R. Co., 147 U. S. 165, 13 Sup. Ct. Rep. 271. The State may provide that the acts of its de facto officers shall be valid. Man- ning r. Weeks, 139 U. S. 504, 11 Sup. Ct. Rep. 624. An erroneous decision upon a matter within the jurisdiction of the court is not a denial of due process. Ex parte Converse, 137 U. S. 624, 11 Sup. Ct. Rep. 191. Execution of a criminal by one officer or another, the executioner being duly appointed under the statute, is no part of due process. Davis v. Burke, 179 U. S. 399, 21 Sup. Ct. Rep. 210. For other important cases on due process, see Missouri Pac. Ry. v. Nebraska, 164 U. S. 403, 17 Sup. Ct. Rep. 130; Allen v. Geor- gia, 166 U. S. 138, 17 Snp. Ct. Rep. 525; Lowe v. Kansas, 163 U. S. 81, 16 Sup. Ct. Rep. 1031 ; Jones v. Brim, 165 U. S. 180, 17 Sup. Ct. Rep. 282 ; Kohl v. Lehlback, 160 U. S. 293, 16 Sup. Ct. Rep. 304; Winona & St. Peter Land Co. v. Minne- sota, 159 U. S. 526, 16 Sup. Ct. Rep. 83; Hamilton v. Brown, 161 U. S. 256, 16 Sup. Ct. Rep. 685; Iowa C. Ry. Co. v. Iowa, 160 U. S. 389, 16 Sup. Ct. Rep. 344; Cram v. United States, 162 U. S. 625, 16 Sup. Ct. Rep. 952 ; Owens v. Henry, 161 U. S. 642, 16 Sup. Ct. Rep. 693; Andrews v. Swartz, 156 U. S. 272, 15 Sup. Ct. Rep. 389; Bergeman v. Backer, 157 U. S. 655, 15 Sup. Ct. Rep. 727; Duncan v. Mis- souri, 152 U. S. 377, 14 Sup. Ct. Rep. 570; McKane v. Durston, 153 U. S. 684, 14 Sup. Ct. Rep. 913 ; Marchant v. Penn. Ry. Co., 153 U. S. 380, 14 Sup. Ct. Rep. 894; Giozza v. Tiernan, 148 U. S. 657, 13 Sup. Ct. Rep. 721 ; Passavant v. United States, 148 U. S. 214, 13 Sup. Ct. Rep. 572; Paulsen v. City of Portland, 149 U. S. 30, 13 Sup. Ct. Rep. 750 ; Schwab v. Berg- gren, 143 U. S. 442, 12 Sup. Ct. Rep. 525; Davis v. Texas, 139 U. S. 651, 11 Sup. Ct. Rep. 675 ; Leeper v. Texas, 139 U. S. 462, 11 Sup. Ct. Rep. 577; Lent v. Till- son, 140 U. S. 316, 11 Sup. Ct. Rep. 825. See also cases in note 1, page 568, postJ] 1 U. S. Const, art. 2. (a) fjlncludes a proceeding for mandamus. Am. Express Co. v. Michigan, 177 U. S. 404, 20 Sup. Ct. Rep. 695, reversing 118 Mich. 682, 77 N. W. 317. "Judicial power of United States extends only to the trial and determination of ' cases ' in courts of record, and . . . Congress is still at liberty to authorize the judicial officers of the several States to exercise such power as is ordinarily given to officers of courts, not of record ; such, for instance, as the power to take affidavits, to arrest and commit for trial offenders against the laws of the United States, to naturalize aliens, and to per- CH. II.] THE CONSTITUTION OF THE UNITED STATES. 23 laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; (a) to all cases of admiralty and maritime jurisdiction; (6) to controversies to which the United States shall be a party ;(V) to controversies between two or more States ; between a State and citizens of another State ; between citizens of different States ; between citizens of the same State claiming lands under grants of different States; and between a State or citizens thereof and foreign States, citizens or subjects. 1 But a State is not subject to be sued in the courts of the United States by citizens of another State, or by citizens or subjects of any foreign State. 2 1 U. S. Const, art. 3, 2. A State can- conspiring to kill one in the custody of not make it a condition to the doing of the United States Marshal. Logan v. business by a foreign corporation within United States, 144 U. S. 263, 12 Sup. Ct. its limits that the corporation shall agree Rep. 617. A mere maladministration of not to remove cases against it to the Fed- the quarantine laws of one State to the eral courts. Barron v. Burnside, 121 injury of the citizens of another does not U. S. 186, 7 Sup. Ct. Rep. 931 ; Goodrel constitute a controversy among States. v. Kreichbaum, 70 Iowa, 362, 30 N. W. Louisiana v. Texas, 176 U. S. 1, 20 Sup. 872. See Elston v. Pigsott, 94 Ind. 14. Ct. Rep. 251. Application of interstate Congress may vest exclusive jurisdic- commerce to a Federal court for the pun- tion in Federal courts of suits arising ishment of disobedience of the command from acts done under color of authority of the subpoena of the commission is not of the United States, and may regulate a "case" within the meaning of the all incidents of such suits. Mitchell v. Constitution, and the court has not juris- Clark, 110 U. S. 633, 4 Sup. Ct. Rep. 170. diction. Re Inter-State Commerce Corn- So, in an action to recover money exacted mission, 53 Fed. 476.] by a customs collector, the United States 2 U. S. Const, llth Amendment. But limitation law governs. Arnson v. Mur- a suit in a State court, to which a State is phy, 109 U. S. 238, 3 Sup. Ct. Rep 184. a party, may be removed to the Federal ["Federal courts have jurisdiction in a court for trial if a federal question is in- case of conspiracy, charging persons with volved. Railroad Co. v. Mississippi, 102 form such other duties as may be regarded as incidental to the judicial power rather than a part of the judicial power itself." Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. Rep. 326, holding that Congress may authorize justices of the peace to arrest deserting seamen and return them to their ships.] (a) rjlf a consul wishes to enjoy his exemption from the jurisdiction of a State court, he must specially plead it, and must plead it at the proper time. Wilcox v. Luco, 118 Cal. 639, 45 Pac. 676, 60 Pac. 758, 45 L. R. A. 579, 62 Am. St. 305, upon privileges and exemptions of consuls, see note to this case in L. R. A. And upon jurisdiction of consuls over actions between citizens of their own nations, temporarily in a State, to the exclusion of the State courts, see Telefsen v. Fee, 168 Mass. 188, 46 N. E. 562, 45 L. R. A. 481 and note, 60 Am. St. 379.] (b) A bill to enforce a lien for towage by foreclosure of the lien on a raft of lum- ber in complainant's possession, the suit being brought against individual defendants and seeking a decree against them and in default of payment a sale of the lumber to satisfy it is not a proceeding in rem within exclusive admiralty jurisdiction, but is a suit in personam and may be brought in a State court. Knapp, Stout, &c. Co. v. McCaffrey, 177 U. S. 638, 20 Sup. Ct. Rep. 824, aff. 178 111. 107, 52 N. E. 898; 69 Am. St. 290.] (c) F^This includes a suit by the United States against a State. United States Texas, 143 U. S. 621, 12 Sup. Ct. Rep. 488.] 24 CONSTITUTIONAL LIMITATIONS. [CH. II. The Constitution and the laws of the United States, made in pursuance thereof, and all treaties made under the authority of the United States, are declared to be the supreme law of the land ; 1 and the judges of every State are to be bound thereby, U. S. 135. That States are not suable except with their own consent, see Rail- road Co. v. Tennessee, 101 U. S. 337; Railroad Co. r. Alabama, 101 U. S. 832. A State by appearing in a suit against it may waive its immunity. Clark v. Bar- nard, 108 U. S. 436, 2 Sup. Ct. Rep. 878. It may attach any conditions it pleases to its consent. DeSaussure v. Gaillard, 127 U. S. 216, 8 Sup. Ct. Rep. 1053. But apart from such conditions its liability must be determined like that of an in- dividual. Green v. State, 73 Cal. 29, 11 Pac. 602, 14 Pac. 610; Bowen v. State, 108 N. Y. 166, 15 N. E. 56. [Statutes per- mitting suits against the State are to be strictly construed. Interest is not allow- able on the claim unless the statute ex- pressly so provides. Western & A. R. Co. v. State, Ga. , 14 L. 11. A. 438. And upon suits against a State, see in general, Carr v. State, 127 Ind. 204, 26 N. E. 778, 11 L. R. A. 370 and note ; 22 Am. St. 624 ; Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. Rep. 504 ; North Carolina c. Temple, 134 U. S. 22, 10 Sup. Ct. Rep. 509. A suit by one State against another will not lie, if in legal effect prosecuted in the name of the State by citizens thereof as the real parties in interest. New Hampshire v. Louisiana, 108 U. S. 76. A suit nominally against an officer, but really against a State, to enforce per- formance of its obligation in its political capacity, will not lie. Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. Rep. 128; Ha- good v. Southern, 117 U. S. 52, 6 Sup. Ct. Rep. 608 ; In re Ayers, 123 U. S. 443, 8 Sup. Ct. Rep. 104 ; [Smith v. Reeves, 178 U. S. 436, 20 Sup. Ct. Rep. 919. And as to suits against States, see notes to 33 L. ed. U. S. 842; 11 L. R. A. 370; 8 L. R. A. 399. See also Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. Rep. 269.] Other- wise if officers, claiming to act as such, invade private right under color of un- constitutional laws. United States v. Lee, 106 U. S. 196, 1 Sup. Ct. Rep. 240 ; Cunningham v. Macon, &c. R. R. Co., 109 U. S. 446, 3 Sup. Ct. Rep. 292; Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. Rep. 903, 962; [Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. Rep. 418 ; Scott v. Donald, 165 U. S. 58, 107, 17 Sup. Ct. Rep. 265, 262 ; Reagan v. Farmers' L. & J. Co., 154 U. S. 362, 14 Sup. Ct. Rep. 1047 ; Ex pane Tyler, 149 U. S. 164, 13 Sup. Ct. Rep. 785 ; Pen- noyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. Rep. 699. Where individuals claiming to be in possession as officers of a State, holding for the State, are sued in an action of ejectment and the State does not intervene and become a party to the record, the suit is not one against the State. Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct. Rep. 770.] See Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. Rep. 91. Allen v. Baltimore & O. R. R. Co., 114 U. S. 311, 6 Sup. Ct. Hep. 425, 962. An action lies to compel an officer to do what the statute requires. Rolston o. Missouri Fund Cora'rs, 120 U. S. 390, 7 Sup. Ct. Rep. 599. No claim arises against any government in favor of an individual, by reason of the misfeasance, laches, or unauthorized exercise of power by its officers or agents. Gibbons v. United States, 8 Wall. 269 ; Clodfelter v. State, 86 N. C. f>l, 53; Langford v. United States, 101 U. S. 341. [Upon what claims constitute valid demands against a State, see Northwestern & P. H. Bank v. State, 18 Wash. 73, 50 Pac. 586, 42 L. R. A. 33, and note. See, on suits against a State, 34 Am. L. Rev. 670.] 1 "The United States is a government with authority extending over the whole territory of the Union, acting upon the States and the people of the States. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. No State government can exclude it from the exercise of any au- thority conferred upon it by the Consti- tution, obstruct its authorized officers against its will, or withhold from it for a moment the cognizance of any subject which that instrument has committed to it." Strong, J., in Tennessee v. Davis, 100 U. S. 257, 263. [Iowa statute exclud- ing aliens from holding lands is overridden by treaty with Bavaria. Opel v. Shoup, 100 Iowa, 407, 69 N. W. 560, 37 L. R. A. CH. II.] THE CONSTITUTION OF THE UNITED STATES. 25 any thing in the constitution or laws of any State to the contrary notwithstanding. 1 It is essential to the protection of the national jurisdiction, and to prevent collision between State and national authority, () 683. And the Louisiana statute taxing inheritances and legacies, received by foreigners is overridden by the treaty with Italy. Succession of Rixner, 48 La. Ann. 552, 19 So. 697, 82 L. R. A. 177; upon effect of treaties upon aliens' right to inherit, see note hereto in L. R. A.] 1 U. S. Const, art. 6; Owings r. Nor- wood's Lessee, 5 Cranch,344; McCulloch v. Maryland, 4 Wheat. 316; Foster v. Neilson, 2 Pet. 253, 314; Cook v. Moffat, 6 How. 295; Dodge v, Woolsey, 18 How. 331. A State constitution cannot pro- hihit federal judges from charging juries as to matters of fact. St. Louis, &c. Ry. Co. v. Vickers, 122 U. S. 360, 7 Sup. Ct. Rep. 1216. Congress may empower a corporation to take soil under navigable water between two States for the build- ing of a bridge for use in interstate com- merce, although the legislature of one of the States protests against it. Decker v. Baltimore, &c. R. R. Co , 30 Fed. Kep. 723. When a treaty has been ratified by the proper formalities, it is, by the Constitution, the supreme law of the land, and the courts have no power to inquiie into the authority of the persons by whom it was entered into on behalf of the foreign nation. Doe v. Braden, 16 How. 635, 657 ; or the powers or rights recognized by it in the nation with which it was made. Maiden v. Ingersoll, 6 Mich. 373. Its force is such that it may even take away private property with- out compensation. Cornet v. Winton, 2 Yerg. 143. It may operate retroactively. Hauenstein v. Lynham, 100 U. S. 483. A State law in conflict with it must give way to its superior authority. Ware r. Hylton, 3 Dall. 99 ; Yeaker v. Yeaker, 4 Met. (Ky.) 33 ; People v. Gerke, 5 Cal. 381. So, a provision in a State constitution. Parrott's Chinese Case, 6 Sawy. 349. See, further, United States r. Aredondo, 6 Pet. 691 ; United States v. Percheman, 7 Pet. 61 ; Garcia v. Lee, 12 Pet. 511 ; Hauenstein v. Lynham, 100 U. S. 483 ; Ropes v. Clinch, 8 Blatch. 304 ; United States v. Tobacco Factory, 1 Dill. 264; The Cherokee Tobacco, 11 Wall. 616. In this last case it is decided, as before it had been at the Circuit, that a law of Congress repugnant to a treaty, to that extent abrogates it. To the same effect are Head Money Cases, 112 U. S. 580, 6 Sup. Ct. Rep. 247 ; Whitney v. Robert- son, 124 U. S. 190, 8 Sup. Ct. Rep. 456 ; Chinese Exclusion Case, 130 U. S. 581, 9 Sup. Ct. Rep. 623. FJA provision of a State constitution against limitation of liability for injuries resulting in death is overridden by an act of Congress permit- ting such limitation in maritime affairs. Loughin v. McCaulley, 186 Pa. 517, 40 Atl. 1020, 48 L. R. A. 33, 65 Am. St. 872.] (a) FJ" The possession of the res vests the court which has first acquired jurisdic- tion with the power to hear and determine all controversies relating thereto, and for the time being disables other courts of co-ordinate jurisdiction from exercising a like power. This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons. Nor is this rule restricted in its application to cases where property has been actually seized under judicial process before a second suit is instituted in an- other court, but it often applies as well where suits are brought to enforce liens against specific property, to marshal assets, administer trusts, or liquidate insolvent estates, and in suits of a similar nature where, in the progress of the litigation, the court may be compelled to assume the possession and control of the property to be affected. The rule has been declared to be of especial importance in its application to Federal and State courts. Peck v. Jenness, 7 How. 612; Freeman v. Howe, 24 How. 450; Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. Rep. 1019; Central Nat'l Bank v. Stevens, 169 U. S. 432, 18 Sup. Ct. Rep. 403; Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. Rep. 119." Per Shiras, J., in Farmers' Loan & T. Co. v. Lake St. Elevated R. Co., 177 U. S. 51, 20 Sup. Ct. Rep. 564, rev. 173 111. 439, 61 N. E. 55. Under U. S. Rev. Stat. 720, a Federal court is precluded from granting an in June- 26 CONSTITUTIONAL LIMITATIONS. [CH. II. that the final decision upon all questions arising in regard thereto should rest with the courts of the Union; 1 and as such questions 1 Martin v. Hunter's Lessee, 1 Wheat, tain act of legislature does not impair ob- 304, 334 ; Cohens v. Virginia, 6 Wheat, ligation of contract raises a federal ques- 264 ; Bank of United States v. Norton, 3 tion, see Walsh v. Columbus, H. V. & A. R. Marsh. 423 ; Braynard v. Marshall, 8 Pick. Co., 176 U. S. 469, 20 Sup. Ct. Rep. 393 ; 194, per Parker, Ch. J., Spangler's Case, also Bellingham Bay & B. C. R. Co. v. 11 Mich. 298; Tarble's Case, 13 Wall. New Whatcom, 172 U.S. 314, 19 Sup. Ct. 397 ; Tennessee v. Davis, 100 U. S. 257. Rep. 205. Whether an act, authorized QUpon necessity of federal question in by legislation decided by the courts of a jurisdiction of Federal over State courts, State to be in conformity to its Consti- see notes to 42 L. ed. U. S. 998, and 37 tution, amounts to a taking of property L. ed. U. S. 267. Upon what is federal without due process is a federal question, question, see note to 39 L. ed. U. S. 884. Wheeler v. N. Y. ( N. H. & H. R. Co., 178 That decision by a State court that a cer- U. S. 321, 20 Sup. Ct. Rep. 949J tion against enforcing claims against Indians in a State court. U. S. v. Parkhurst- Davis Mercantile Co., 176 U. S. 317, 20 Sup. Ct. Rep. 423. See, upon injunctions restraining proceedings in State courts, notes to 16 C. C. A. 90, and 27 C. C. A. 575. No State court has authority to order execution against a national bank in the hands of a receiver for the enforcement of a lien in attachment against the bank as garnishee, even though the lien were obtained before the receiver's appointment. Earle v. Pennsylvania, 178 U. S. 449, 20 Sup. Ct. Rep. 915. But the State court may entertain an action in attachment against such bank and its receiver, and the receiver must report such fact and the judgment upon the action to the Comptroller of the Currency whose duty it is to hold the proceeds of the bank's assets subject to all rights acquired by the plaintiff through the attachment proceedings. Earle v. Pennsylvania, above; Earle r. Con way, .178 U. S. 456, 20 Sup. Ct. Rep. 918, aff. 189 Pa. 610, 42 All. 303. A Federal court controlling receivership of bank cannot restrain a prosecution brought by State against an officer of the bank for crime committed in respect to the bank property before the civil suit was brought. Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. Rep. 119. A receiver appointed by a Federal court voluntarily going into a State court cannot question the right of the State court to determine the controversy. Grant v. Buckner, 172 U. S. 232, 19 Sup. Ct. Rep. 163, aff. 49 La. Ann. 668, 21 So. 580. A State court cannot compel the com- plainants in a suit pending in a Federal court to come into the State court and there relitigate the question in controversy in the Federal court, nor can it by injunction restrain them from proceeding under the final decree of sale of the Federal court, and from enforcing the other remedies adjudged to them by that decree. Central Nat. Bk. v. Stevens, 169 U. S. 432, 18 Sup. Ct. Rep. 403. Proceedings in rem for the enforcement of a lien against a vessel given by a State statute for repairs made upon her in her home port under contract with her owners or their agent are within the exclusive jurisdiction of the Federal courts, being in admiralty. The Glide, 167 U. S. 606, 17 Sup. Ct. Rep. 930, rev. 167 Mass. 525, 33 N. E. 163, 159 Mass. 60, 34 N. E. 258. That such lien will be enforced in admiralty, see The J. E. Rumbell, 148 U. S. 1, 13 Sup. Ct. Rep. 498. The same act may be a crime against both a State and the United States, and each then has jurisdiction to punish it. Crossley v. Cali- fornia, 168 U. S. 640, 18 Sup. Ct. Rep. 242, 8. c. below; People v. Worden, 113 Cal. 569, 45 Pac. 844. Where the question of the validity of a patent arises collaterally, the State court has jurisdiction to pass upon it. Pratt v. Paris Gaslight & Coke Co., 168 U. S. 255, 18 Sup. Ct. Rep. 62: see also Marsh v. Nichols, Shepard and Co., 140 U. S. 344, 11 Sup. Ct. Rep. 798. The rights of riparian owners are determined by the State law. St. Anthony Falls Water Power Co. v. Board of Water Com'rs, 168 U. S. 349, 18 Sup. Ct. Rep. 157; Eldredge v. Trezevant, 160 U. S. 452, 16 Sup. Ct. Rep. 245. State courts have jurisdiction of crimes committed on Indian reser- vations where crime is neither by nor against Indians. Draper v. United States, 164 U. S. 240, 17 Sup. Ct. Rep. 107. National banks are subject to State authority in CH. II.] THE CONSTITUTION OF THE UNITED STATES. 27 must frequently arise first in the State courts, provision is made by the Judiciary Act for removing to the Supreme Court of the all respects except where the attempted exercise of such authority "expressly conflicts with the laws of the United States, and either frustrates the purpose of the national legislation, or impairs the efficiency of these agencies of the Federal govern- ment to discharge the duties for the performance of which they were created." Davis v. Elmira Sav. Bk., 161 U. S. 283, 16 Sup. Ct. Rep. 502 ; and the power vested in a national bank by federal law to take property " such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its dealings" is not infringed by a State statute making such conveyances voidable in case of insolvency within a limited period thereafter by the transferor. McClellan v. Chipman, 164 U. S. 347, 17 Sup. Ct. Rep. 85. Appointment of a receiver by a Federal court does not divest a State court of its previously acquired control of the assets of a corpora- tion. Mo. Pac. R. Co. v. Fitzgerald, 160 U. S. 556, 16 Sup. Ct. Rep. 389 ; Shields v. Coleman, 157 U. S. 168, 15 Sup. Ct. Rep. 670. Upon effect of judgment of State court upon United States title to lands, see Stanley v. Schwalby, 162 U. S. 255, 16 Sup. Ct. Rep. 754. Federal court will not revise views of State court upon principles of general law. Sayward v. Denny, 158 U. S. 180, 15 Sup. Ct. Rep. 777. State decisions control interpretation of wills. Roberts v. Lewis, 153 U. S. 367, 14 Sup. Ct. Rep. 945. When a Federal court of competent jurisdiction has acquired posses- sion of property, and is proceeding to determine a controversy concerning it, a State court cannot enjoin the plaintiffs in the Federal court from proceeding in the case. Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. Rep. 1019, rev. 136 N. Y. 169, 32 N. E. 623,20 L. R. A. 391. A State court cannot adjudicate upon a maritime lien, nor can any action of such court divest property of such lien when it has once attached. Moran v. Sturges, above. State statutes of limitation are not binding upon the United States, but the United States may take advantage of them. Stanley v. Schwalby, 147 U. S. 608, 13 Sup. Ct. Rep. 418. Although the statutes of the State regulate the administration and descent of the assets of descendants, and exclusive jurisdiction of such matters may be conferred upon the State's probate courts, so far as its own citizens are concerned, the Federal courts have jurisdiction to adjudicate upon claims concerning sucli assets as between citizens of different States. Hayes v. Pratt, 147 U. S. 557, 13 Sup. Ct. Rep. 503. But if the probate court has secured possession of the assets, the Federal court cannot deprive it of such possession. Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. Rep. 906 ; see the dissenting opinion of Mr. Justice Shims in this case, concurred in by Chief Justice Fuller. The juris- diction of the Federal courts over suits between citizens of different States cannot be impaired by any statutory regulations of a State concerning the manner in which the validity of demands against its counties shall be established. Chicot County ". Sherwood, 148 U. S. 529, 13 Sup. Ct. Rep. 695. In absence of congrefsional legis- lation Federal courts follow State statutes of limitation. Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. Rep. 466. Federal courts will not entertain suit against a receiver appointed by State court without permission of such court. Porter v. Sabin, 149 U. S. 473, 13 Sup. Ct. Rep. 1008. Property in the hands of a receiver of a Federal court cannot be levied upon by a State officer to enforce the payment of taxes. Ex parte Tyler, 149 U. S. 164, 13 Sup. Ct. Rep. 785. Assignee in bankruptcy is bound if he appears in a State court -and answers. Ludeling v. Chaffe, 143 U. S.301, 12 Sup. Ct. Rep. 439 ; s. c. 40 La. Ann. 645, 4 So. 586. Federal courts are not bound by the rules of constructive notice and summons followed in the State courts. Tripp v. Santa Rosa St. R. Co., 144 U. S. 126, 12 Sup. Ct. Rep. 655. A State can neither enlarge nor restrict the jurisdiction of the Federal courts. Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. Rep. 44 ; Parker v. Ormsby, 141 U. S. 81, 11 Sup. Ct. Rep. 912. Nor can it regulate the practice thereof. Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. Rep. 712. Nor can a State court readjudicate matters deter- mined by a Federal court. Leadville Coal Co. v. McCreery, 141 U. S. 475, 12 Sup. Ct. Rep. 28. Where an administrator appointed under the laws of one State appears, 28 CONSTITUTIONAL LIMITATIONS. [CH. II. United States the final judgment or decree in any suit, rendered in the highest court of law or equity of a State in which a deci- sion could be had, in which is drawn in question the validity of a treaty, or statute of, or authority exercised under the United States, and the decision is against its validity ; (a) or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of its being repugnant without authority from the court appointing him, and defends upon the merits a suit brought against him in a Federal circuit court in another State, and the decree goes against him, and he later appears and files a bill of review in that court, the laws of the second State permitting administrators of other States to sue as such in its courts, the Federal court gets jurisdiction of the administrator and the decree in the suit for review is binding upon him and must be given full faith and credit in other States. Lawrence v. Nelson, 143 U. S. 215, 12 Sup. Ct. Rep. 440. "Judgments and decrees of a circuit court of the United States are to be accorded in the State courts the same effect as would be accorded to the judgments and decrees of a State tribunal of equal authority." Pendleton v. Russell, 144 U. S. 640, 12 Sup. Ct. Rep. 743. Federal Supreme Court will not issue mandamus to State Supreme Court to reinstate a dis- barred attorney. Re Green, 141 U. S. 325, 11 Sup. Ct. Rep. 11. Federal practice not subject to State control. Fishburn v. Chicago, M. & St. P. R. Co., 137 U. S. 60, 11 Sup. Ct. Rep. 8. A State court will not be permitted to try a United States marshal, deputed to protect one of the Federal judges in the performance of his duties, for an alleged murder where the killing was done by the marshal in affording such protec- tion and was necessary thereto. Cunningham v. Neagle, 135 U. S. 1, 10 Sup. Ct. Rep. 658. Receivers appointed by Federal court are, by act of Congress, suable in State courts. Gableman v. Peoria, D. & E. R. Co., 179 U. S. 335, 21 Sup. Ct. Rep. 171. Upon administration of federal laws in State courts, see valuable note in 48 L. R. A. 33. Except by permission of Congress a State cannot determine the territorial extent to which a judgment of a Federal court shall be a lien. Blair v. Ostrander, 109 Iowa, 204, 80 N. W. 330, 47 L. R. A. 469, 77 Am. St. 532 ; upon liens of judgments in Federal courts, see note to this case in L. R. A. That a State court will set aside a judgment obtained by fraud in a Federal court, see Wonderly v. La Fayette Co., 150 Mo. 635, 51 S. W. 745, 45 L. R. A. 386, 73 Am. St. 474. That Congress cannot com- pel State courts to entertain and act upon applications for naturalization, see State v. Judges of Inf. Ct. of Com. Pleas, 58 N. J. L. 97, 32 All. 743, 30 L. R. A. 761. Liens arising from federal decrees are not subject to State recording laws. Stewart v. W. & L. E. R. Co., 53 Ohio St. 151, 41 N. E. 247, 29 L. R. A. 438.3 (a) ^When the decision is in f ivor of its validity there is no ground for review. Abbott v. Nat'l Bk. of Commerce, 175 U. S. 409, 20 Sup. Ct. Rep. 153. Upon when validity is drawn in question, see Linford v. Ellison, 155 U. S. 503, 15 Sup. Ct. Rep. 179. Where officers of the United States are in possession of lands and claim to hold for the United States, and are sued as trespassers, the case may be reviewed in the Federal court. Stanley v. Schwalby, 147 U. S. 608, 13 Sup. Ct. Rep. 418. Whether a right given by act of Congress to "legal representatives" is for benefit of next of kin to the exclusion of creditors is a federal question. Briggs v. Walker, 171 U. S. 466, 19 Sup. Ct. Rep. 1. So is the effect of foreclosure proceed- ings in a Federal court. Pittsburg C. C. & St. L. Ry. Co. v. Long Island L. & T. Co., 172 U. S. 493, 19 Sup. Ct. Rep. 238. Where the decision of a State court may be supported upon grounds which do not involve a federal question, the United States Supreme Court will not review the case even though a federal question was also raised in the State court. Chappell Chemical & F. Co. v. Sulphur Mines Co., 172 U. S. 465, 19 Sup. Ct. Rep. 265; Allen v. Southern Pacific Ry. Co., 173 U. S. 479, 19 Sup. Ct. Rep. 618; Harrison v. Morton, 171 U. S. 38, 18 Sup. Ct. Rep. 742. Validity of title alleged to be derived through a congressional land grant when questioned raises a federal question. Northern Pac. Ry. Co. p. Colburn, 164 U. S. 383, 17 Sup. Ct. Rep. 98-3 CH. II.] THE CONSTITUTION OF THE UNITED STATES. 29 to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity ; or where any title, right, privilege, or immunity is claimed under the Constitution or any treaty or statute of or commission held or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commis- sion, or authority. 1 But to authorize the removal under that act, it must appear by the record, either expressly or by clear and necessary intend- ment, that some one of the enumerated questions did arise in the State court, and was there passed upon, (a) It is not suffi- i Acts 1789 and 1867 ; R. S. 1878, title 13, ch. 11. " It is settled law, as established by well-considered decisions of this court, pronounced upon full argument, and after mature deliberation, notably in Cohens v. Virginia, 6 Wheat. 264; Os- born t'. Bank of United States, 9 Wheat. 738; Mayor v. Cooper, 6 Wall. 247; Gold Water & Washing Co. v. Keyes, 96 U. S. 199; and Tennessee v. Davis, 100 U. S. 257 : "That while the eleventh amendment of the national Constitution excludes the judicial power of the United States from suits, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, such power is extended by the Constituti6n to suits commenced or prosecuted by a State against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Consti- tution and laws of the United States against the claim or demand of the State ; " That a case in law or equity consists of the right of one party, as well as of the other, and may properly be said to arise under the Constitution, or a law of the United States, whenever its correct decision depends upon a construction of either ; " That cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right, or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted ; " That except in the cases of which this court is given by the Constitution original jurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct ; and lastly, " That it is not sufficient to exclude the judicial power of the United States from a particular case that it involves questions which do not at all depend on the Constitution or laws of the United States ; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or law may be in- volved in it." Harlan, J., in Railroad Co. v. Mississippi, 102 U. S. 136, 140. QUpon removal of causes to the Federal court, see note to 36 L. ed. U. S. 346, and another at page 528. The Federal Supreme Court may review the decision of a State court as to what property of a bankrupt passes to his assignee in bankruptcy ; also as to when property arising under act of Con- gress begins. Williams v. Heard, 140 U. S. 529, 11 Sup. Ct. Rep. 885. For other cases upon power of review by the Supreme Court of the United States, see Metropolitan Nat'l Bk. v. Claggett, 141 U. S. 520, 12 Sup. Ct.Rep.60; Ktheridge v. Sperry, N. & G., 139 U. S. 266, 11 Sup. Ct Rep. 565.] (a) FJ" We have repeatedly decided that an appeal to the jurisdiction of the court must not be a mere afterthought, and that if any right, privilege, or immunity is 30 CONSTITUTIONAL LIMITATIONS. [CH. II. cient that it might have arisen or been applicable. 1 And if 1 Owings v. Norwood's Lessee, 5 Cranch, 344 ; Martin v. Hunter's Lessee, 1 Wheat. 304; Inglee v. Coolidge, 2 Wheat. 363; Miller t;. Nicholls, 4 Wheat. 311; Williams v. Norris, 12 Wheat. 117; Hickie v. Starke, 1 Pet. 94; Harris v. Dennie, 3 Pet. 292 ; Fisher's Lessee v. Cockerell, 6 Pet. 248 ; New Orleans v. De Armas, 9 Pet. 223, 234 ; Keene r. Clarke, 10 Pt t. 291 ; Crowell v. Randell. 10 Pet. 368 ; McKinny v. Carroll, 12 Pet. 66; Holmes r. Jennison, 14 Pet. 540; Scott v. Jones, 6 How. 343 ; Smith v. Hunter, 7 How. 738; Williams v. Oliver, 12 How. Ill ; Calcote v. Stanton, 18 How. 243; Maxwell v. Newbold, 18 How. 511; Hoyt v. Shelden, 1 Black, 518 ; Farney v. Towle, 1 Black, 350 ; Day v. Gallup, 2 Wall. 97 ; Walker v. Villavaso, 6 Wall. 124 ; The Victory, 6 Wall. 382 ; Hamilton Co. v. Mass., 6 Wall. 632; Gibson v. Chouteau, 8 Wall. 314; Worthy v. Com- missioners, 9 Wall. 611 ; Messenger v. Mason, 10 Wall. 507 ; Insurance Co. v. Treasurer, 11 Wall. 204 ; McManus v. O'Sullivan, 91 U. S. 578 ; Boiling v. Lers- ner, 91 U. S. 594 ; Adams Co. v. Burling- ton, &c. R. R. Co., 112 U. S. 123, 5 Sup. Ct. Rep. 77; Chicago Life Jns. Co. v. Needles, 113 U. S. 574, 6 Sup Ct. Rep. 681; Detroit Ry. Co. v. Guthard, 114 U. S. 133, 5 Sup. Ct. Rep. 811 ; Arrow- smith v. Harmoning, 118 U. S. 194, 6 Sup. Ct. Rep. 1023; Germania Ins. Co. v. Wisconsin, 119 L T . S. 473, 7 Sup. Ct. Rep. 360 ; Lehigh Water Co. v. Easton, 121 U. S. 388, 7 Sup. Ct. Rep. 916; New Orleans Water Works v. Louisiana Sugar Co., 125 U. S. 18, 8 Sup. Ct. Rep. 741 ; fJScudder v. Coler, 175 U. S. 32, 20 Sup. Ct. Rep. 26 ; Roby v. Colehour, 146 U. S. 153, 13 Sup. Ct. Rep. 47 ; Brown v. Massa- chusetts, 144 U. S. 573, 12 Sup. Ct. Rep. 757 ; Jesler v. Bd. of Harbor Com'rs, 146 U. S. 646, 13 Sup. Ct. Rep. 190 ; United States v. Lynch, 137 U. S. 280, 11 Sup. Ct. Rep. 114.J It is not sufficient that the presiding judge of the State court certifies that a right claimed under the national authority was brought in ques- tion. Railroad Co. v. Rock, 4 Wall. 177 ; Parmelee v. Lawrence, 11 Wall. 36 ; Felix v. Schwarnweber, 125 U. S. 54, 8 Sup. Ct. Rep. 759 ; QHenkel v. Cincinnati, 177 U. S. 170, 20 Sup. Ct. Rep. 573.J If the record does not show a federal question raised or necessarily involved, the opin- ion of the court will not be examined to see if one was in fact decided. Otis v. Oregon S. S. Co., 116 U. S. 648, 6 Sup. Ct. Rep. 523. But where an opinion is part of the record by law, it may be examined. New Orleans Water Works v. Louisiana Sugar Co., 125 U. S. 18, 8 Sup. Ct. Rep. 741; Kreiger v. Shelby R. R. Co., 125 U. S. 39, 8 Sup. Ct. Rep. 752; Gross v. U. S. Mortgage Co., 108 U. S. 477, 2 Sup. Ct. Rep. 940 ; and see Phila. Fire asserted under the Constitution or laws of the United States, it must be specially set up and claimed before the final adjudication of the case in the court from which the appeal is sought to be maintained." Per Mr. Justice Brown in Bolln v. Nebraska, 176 U. S. 83,20 Sup. Ct. Rep. 287; Caldwell r. Texas, 137 U. S.691, 11 Sup.Ct. Rep. 224 ; Eastern Building & L. Ass'n v. Welling, 181 U. S. 47, 21 Sup. Ct. Rep. 531 ; Yazoo & M. V. Ry. Co. v. Adams, 180 U. S. 1, 21 Sup. Ct. Rep. 240 ; Turner v. Rich- ardson, 180 U. S. 87, 21 Sup. Ct. Rep. 295 ; Texas & P. Ry. Co. v. So. Pac. Co., 137 U. S. 48, 11 Sup. Ct. Rep. 10; Butler v. Gage, 138 U. S. 52, 11 Sup. Ct. Rep. 235. And it must be set up by him who would avail himself of it in the Federal Supreme Court. He cannot avail himself of the fact that somebody else raised the question in the State court, even though it were in the same suit. Sully v. American National Bank, 178 U. S. 289, 20 Sup. Ct. Rep. 935; Missouri i;. Andriano, 138 U. S. 497, 11 Sup. Ct. Rep. 385. It is sufficient, however, if it be raised in the highest State court and there passed upon on its merits. Sully v. American National Bank, supra. It is sufficient if it be raised by some one under whom he claims. Ludeling v. Chaffe, 143 U. S. 301, 12 Sup. Ct. Rep. 439. The dispute must be real and substantial. Re Buchanan, 158 U. S. 31, 15 Sup. Ct. Rep. 723. And see in particular a note upon what is a federal question in 39 L. ed. U. S. 884. Also Powell v. Supervisors of Brunswick Co., 150 U. S. 433, 14 Sup. Ct. Rep. 166 ; Hamblin v. Western Land Co., 147 U. S. 531, 13 Sup. Ct. Rep. 353. And see also upon "Necessity of Federal Question," note to last case in 37 Law ed. U. S. 267.] CH. II.] THE CONSTITUTION OF THE UNITED STATES. 31 the decision of the State court is in favor of the right, title, privilege, or exemption so claimed, the Judiciary Act does not authorize such removal. 1 Neither does it where the validity of the State law is drawn in question, and the decision of the State court is against its validity. 2 But the same reasons which require that the final decision upon all questions of national jurisdiction should be left to the national courts will also hold the national courts bound to respect the decisions of the State courts upon all questions arising under the State constitutions and laws, where nothing is involved of national authority, or of right under the Consti- tution, laws, or treaties of the United States ; (a) and to accept Ass. i>.New York, 119 U. S. 110, 7 Sup. Ct. Rep. 108. The record should show that the right was claimed in the trial court. Brooks v. Missouri, 124 U. S. 394, 8 Sup. Ct. Rep. 443. It is a federal question whether a State court has given effect to the unreversed decision of a United States Circuit Court acting within its jurisdiction. Crescent City, &c. Co. v. Butcher's Union, &c. Co., 120 U. S. 141, 7 Sup. Ct. Rep. 472. So, whether a prisoner has been twice in jeopardy ; Bohanan v. Nebraska, 118 U. S. 231, 6 Sup. Ct. Rep. 1049 ; and whether one in a country with which we have an ex- tradition treaty can be brought back for trial except under the treaty provisions. Ker v. Illinois, 119 U. S. 436, 7 Sup. Ct. Rep. 225. That a State court has held valid a divorce in a foreign country raises no such question. Roth v. Ehman, 107 U. S. 319, 2 Sup. Ct. Rep. 312. [For other examples of cases held to involve no federal question, see Crystal Springs Land & W. Co. v. Los Angeles, 177 U. S. 169, 20 Sup. Ct. Rep. 573; De Lamar's Gold Mining Co. v. Nesbitt, 177 U. S. 523, 20 Sup. Ct. Rep. 715; McCain v. Des Moines, 174 U. S. 168, 19 Sup. Ct. Rep. 644 ; Remington Paper Co. v. Watson, 173 U. S. 443, 19 Sup. Ct. Rep. 456; Capital Nat'l Bk. v. First Nat'l Bk., 172 U. S. 426, 19 Sup. Ct. Rep. 202.] 1 Gordon v. Caldcleugh, 3 Cranch, 268 ; McDonogh v. Millaudon, 3 How. 693 ; Fulton v. McAffee, 16 Pet. 149 ; Linton v. Stanton, 12 How. 423 ; Burke v. Gaines, 19 How. 388; Reddall v. Bryan, 24 How. 420; Roosevelt v. Meyer, 1 Wall. 512; Ryan v. Thomas, 4 Wall. 603; p3ower r. Richards, 151 U. S. 658, 14 Sup. Ct. Rep. 452.] 2 Commonwealth Bank v. Griffith, 14 Pet. 56; Walker v. Taylor, 5 How. 64; QMcNulty v. California, 149 U. S. 645, 13 Sup. Ct. Rep. 959.] We take no notice here of the statutes for the removal of causes from the State to the Federal courts for the purposes of original trial, as they are not important to any discus- sion we shall have occasion to enter upon in this work. See Rev. Stat. of U: S. 1878, title 13, ch. 7 ; Cooley, Constitutional Principles, 122-128. Judge Dillon has published a convenient manual on this subject. (a) QBut this does not apply to cases involving the question of impairment of obli- gation of contracts : McCullough v. Virginia, 172 U. S. 102, 19 Sup. Ct. Rep. 134, and many cases there cited : Shelby Co. v. Union & Planter's Bk., 161 U. S. 149, 16 Sup. Ct. Rep. 558; Folsom v. Township Ninety-six, 159 U. S. 611, 16 Sup. Ct. Rep. 174; Mobile & O. Ry. Co. v. Tennessee, 153 U. S. 486, 14 Sup. Ct. Rep. 968 ; Barnum v. Okolona, 148 U. S. 393, 13 Sup. Ct. Rep. 638 ; Knox Co. v. Ninth National Bank, 147 U. S. 91, 13 Sup. Ct. Rep. 267 ; McGahey v. Virginia, 135 U. S. 662, 10 Sup. Ct. Rep. 972. It does not apply to cases involving the validity of alleged contracts. Turner v. Com'rs of Wilkes Co., 173 U. S.461, 19 Sup. Ct. Rep. 464. And see also the dis- senting opinion of Peckham, J., in McCullough v. Virginia, above. Also Bacon v. 32 CONSTITUTIONAL LIMITATIONS. [CH. II. the State decisions as correct, (a) and to follow them whenever Texas, 163 U. S. 207, 16 Sup. Ct. Rep. 1023. Upon revision by Federal courts of the construction by State courts of State laws, see notes to 7 L. ed. U. S. 679, and 12 L. ed. U. S. 169. In the interpretation of negotiable contracts the Supreme Court of the United States will follow the general principles of commercial law, and will not follow the particular construction of any State court. This is true, though such contracts be issued by municipalities of the State. Woodruff v. Mississippi, 162 U. S. 291, 16 Sup. Ct. Rep. 820. So with regard to the master's liability to servants for damage caused by negligence of fellow-servant. Baltimore & Ohio Ry. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. Rep. 914; Gardner v. Michigan C. Ry. Co., 150 U. S. 349, 14 Sup. Ct. Rep. 140. And so as to all questions of general law. Clark v. Bever, 139 U. S. 96, 11 Sup. Ct. Rep. 468; Pleasant Tp. v. -. Pittsburg Ft. W. & C. Ry. Co., 166 U. S. 83, 17 Sup. Ct. Rep. 488; Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. Rep. 466 ; Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. Rep. 406; Miller's Exrs. v. Swann, 150 U. S. 132, 14 Sup. Ct. Rep. 52; New York L. E. & W. Ry. Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. Rep. 444; Wood . Brady, 160 U. S. 18, 14 Sup. Ct. Rep. 6; May v. Tenney, 148 U. S. 60, 13 Sup. Ct. Rep. 491 ; Stutsman Co. v. Wallace, 142 U. S. 293, 12 Sup. Ct. Rep. 227 ; Yazoo & M. V. Ry. Co. v. Adams, 181 U. S. 680, 21 Sup. Ct. Rep. 729. So the construction put upon statutes by the courts of the State will usually be followed by the courts of other States. Kulp v. Fleming, 66 Ohio, 321, 62 N. E. 334, 87 Am. St. 611. See upon "rule of decision " in Federal courts, article in 60 Alb. L. Jour. 297.] CH. II.] THE CONSTITUTION OF THE UNITED STATES. 33 the same questions arise in the national courts. 1 With the power to revise the decisions of the State courts in the cases 1 In Beauregard v. New Orleans, 18 How. 497, 502, Mr. Justice Campbell says : "The constitution of this court requires it to follow the laws of the several States as rules of decision wherever they apply. And the habit of the court has been to defer to the decisions of their judicial tri- bunals upon questions arising out of the common law of the State, especially when applied to the title of lands." In Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492, 524, it was urged that the exclusive power of State courts to construe legislative acts did not extend to the paramount law, so as to enable them to give efficacy to an act which was contrary to the State con- stitution ; but Marshall, Ch. J., said : " We cannot admit this distinction. The judi- cial department of every government is the rightful expositor of its laws, and emphatically of its supreme law." Again, in Elmendorf v. Tailor, 10 Wheat. 152, 159, the same eminent judge says : " The judicial department of every government, where such department exists, is the ap- propriate organ for construing the legis- lative acts of that government. Tims no court in the universe which proposed to be governed by principle would, we pre- sume, undertake to say that the courts of Great Britain or France, or of any other nation, had misunderstood their own stat- utes, and therefore erect itself into a tribunal which should correct such misun- derstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction than to depart from the words of the statute. On this princi- ple, the construction given by this court to the Constitution and laws of the United States is received by all as the true con- struction ; and on the same principle the construction given by the courts of the several States to the legislative acts of those States is received as true, unless they come in conflict with the Consti- tution, laws, or treaties of the United States." In Green v. Neal's Lessee, 6 Pet. 291, 298, it is said by McLean, J. : " The decision of the highest judicial tribunal of a State should be considered as final by this court, not because the State tri- bunal in such a case has any power to bind this court, but because, in the lan- guage of the court in Shelby v. Guy, 11 Wheat. 361, a fixed and received con- struction by a State in its own courts makes a part of the statute law." And see Jackson v. Chew, 12 Wheat. 153, 162, per Thompson, J. ; also the follow- ing cases : Sims v. Irvine, 3 Dall. 425 ; McKeen v. Delancy, 5 Cranch, 22 ; Folk's Lessee v. Wendal, 9 Cranch, 87; Preston v. Browder, 1 Wheat. 115; Mutual As- surance Co. v. Watts, 1 Wheat. 279; Shipp v. Miller, 2 Wheat. 316 ; Thatcher v. Powell, 6 Wheat. 119; Bell v. Morri- son, 1 Pet. 351 ; Waring v. Jackson, 1 Pet. 570 ; De Wolf v. Rabaud, 1 Pet. 476 ; Fullerton v. Bank of United States, 1 Pet. 604; Gardner v. Collins, 2 Pet. 58 ; Beach v. Viles, 2 Pet. 675 ; Inglis v. Sailor's Snug Harbor, 3 Pet. 99 ; United States v. Mor- rison, 4 Pet. 124; Henderson v. Griffin, 6 Pet. 151 ; Hinde v. Vattier, 5 Pet. 398; Ross w. McLung, 6 Pet. 283 ; Marlatt v. Silk> 11 Pet. 1 ; Bank of United States v. Daniel, 12 Pet. 32 ; Clarke v. Smith, 13 Pet. 195; Ross v. Duval, 13 Pet. 45; Wil- cox v. Jackson, 13 Pet. 498; Harpending v. Reformed Church, 16 Pet. 455 ; Martin v. Waddell, 16 Pet. 307 ; Amis v. Smith, 16 Pet. 303 ; Porterfield v. Clark, 2 How. 76 ; Lane v. Vick, 3 How. 464 ; Foxcroft v. Mallett, 4 How. 353 ; Barry v. Mercein, 5 How. 103; Rowan v. Runnells, 5 How. 134; Van Rensselaer v. Kearney, 11 How. 297 ; Pease v. Peck, 18 How. 595 ; Fisher v. Haldeman, 20 How. 186; Parker v. Kane, 22 How. 1 ; Suydam v. Williamson, 24 How. 427 ; Sumner v. Hicks, 2 Black, 532 ; Chicago v. Robbins, 2 Black, 418 ; Miles v. Caldwell, 2 Wall. 35; Williams v. Kirkland, 13 Wall. 306; Walker v. Harbor Com'rs, 17 Wall. 648; Supervi- sors v. United States, 18 Wall. 71; Fair- field v. Gallatin, 100 U. S. 47 ; Wade v. Walnut, 105 U. S. 1 ; Post v. Supervi- sors, id. 667; Taylor v. Ypsilanti, id. 60; Equator Co. v. Hall, 106 U. S. 86, 1 Sup. Ct. Rep. 198 ; Bendey v. Townsend, 109 U. S. 665, 3 Sup. Ct. Rep. 482 ; Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. Rep. 1121 ; Stryker v. Goodnow, 123 U. S. 527, 8 Sup. Ct. Rep. 203 ; Williams w. Conger, 125 U. S. 397, 8 Sup. Ct. Rep. 933 ; Bucher 34 CONSTITUTIONAL LIMITATIONS. [CH. II. already pointed out, the due observance of this rule will prevent those collisions of judicial authority which would otherwise be v. Cheshire R. R. Co., id. 555, 8 Sup. Ct. Rep. 974; German Sav. Bank v. Franklin Co., 128 U. S. 526, 9 Sup. Ct. Rep. 159; Springer v. Foster, 2 Story C. C. 383; Neal v. Green, 1 McLean, 18; Paine v. Wright, 6 McLean. 395 ; Boyle v. Arledge, Hemp. 620; Griffing v. Gibb, McAll. 212; Bayerque v. Cohen, Me All. 113; Wick v. The Samuel Strong, Newb. 187; N. F. Screw Co. v. Bliven, 3 Blatch. 240 ; Bron- son v. Wallace, 4 Blatch. 465 ; Van Boke- len v. Brooklyn City R. R. Co., 5 Blatch. 379; United States v. Mann, 1 Gall. 3; Society, &c. v. Wheeler, 2 Gall. 105; Coates v. Muse, Brock. 529; Meade v. Beale, Taney, 339; Loring v. Marsh, 2 Cliff. 311; Parker v. Phetteplace, 2 Cliff. 70; King v. Wilson, 1 Dill. 555; fJNew York Life Ins. Co. v. Cravens, 178 U. S. 389, 20 Sup. Ct. Rep. 962. See also note to 12 L. ed. U. S. 169, and to 5 L. R. A. 508. Upon when Federal courts do not follow State decisions, see note to 19 L. ed. U. S. 490. See also Missouri, K. & T. Ry. Co. v. McCann, 174 U. S. 580, 19 Sup. Ct. Rep. 755.] The deci- sion of the State court, that a State statute has been enacted in accordance with the State constitution, is binding on the Federal courts. Railroad Co. v. Georgia, 98 U. S. 359; [[Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. Rep. 77 ; Tullis v. Lake Erie & W. Ry. Co., 175 U. S. 348, 20 Sup. Ct. Rep. 136; Missouri, K. & T. Ry. Co. v. McCann, 174 U. S. 680, 586, 19 Sup. Ct. Rep. 755 ; M. & M. Nat'l Bk. v. Pennsylvania, 167 U. S. 461, 17 Sup. Ct. Rep. 829.] In Green o. Neal's Lessee, 6 Pet. 291, an important question was presented as to the proper course to be pursued by the Supreme Court of the United States, under somewhat embar- rassing circumstances. That court had been called upon to put a construction upon a State statute of limitations, and had done so. Afterwards the same ques- tion had been before the Supreme Court of the State, and in repeated cases had been decided otherwise. The question now was whether the Supreme Court would follow its own decision, or reverse that, in order to put itself in harmony with the State decisions. The subject is considered at length by McLean, J., who justly concludes that " adherence by the Federal to the exposition of the local law, as given by the courts of the State, will greatly tend to preserve harmony in the exercise of the judicial power in the State and Federal tribunals. This rule is not only recommended by strong con- siderations of propriety, growing out of our system of jurisprudence, but it is sustained by principle and authority." The court, accordingly, reversed its rul- ings to make them conform to those of the State court. See also Suydam v. Williamson, 24 How. 427 ; Leffingwell v. Warren, 2 Black, 599; Blossburg, &c. R. R. Co. v. Tioga R. R. Co., 5 Blatch. 387 ; Smith v. Shriver, 3 Wall. Jr. 219. It is, of course, immaterial that the court may still be of opinion that the State court has erred, or that the decisions elsewhere are different. Bell v. Morrison, 1 Pet. 351. But where the Supreme Court had held that certain contracts for the price of slaves were not made void by the State constitution, and afterwards the State court held otherwise, the Supreme Court, regarding this decision wrong, de- clined to reverse their own ruling. Rowan v. Runnels, 5 How. 134. Compare this with Nesmith v. Sheldon, 7 How. 812, in which the court followed, without exam- ination or question, the State decision that a State general banking law was in violation of the constitution of the State. The United States Circuit Court had held otherwise previous to the State decision. Falconer v. Campbell, 2 McLean, 195. Under like circumstances the State Su- preme Court's ruling on a statute of limitations was followed, overruling the Federal circuit decision which followed that of a lower State court. Moores v. Nat. Bank, 104 U. S. 625. But the State court's construction of its constitution after the controversy arose, and in a suit between different parties as to the same subject-matter, is not binding on the Fed- eral court. Carroll Co. v. Smith, 111 U. S. 656, 4 Sup. Ct. Rep. 539 ; Enfield v Jordan, 119 U. S. 680, 7 Sup. Ct. Rep. 358. So, where after a ruling in the United States Circuit Court the State Supreme Court for the first time decides against such ruling, its decision will not en. IL] THE CONSTITUTION OF THE UNITED STATES. 35 inevitable, and which, besides being unseemly, would be dan- gerous to the peace, harmony, and stability of the Union. Besides conferring specified powers upon the national govern- ment, the Constitution contains also certain restrictions upon the action of the States, a portion of them designed to prevent encroachments upon the national authority, (#) and another portion to protect individual rights against possible abuse of State power. Of the first class are the following: No State shall enter into any treaty, alliance, or confederation, grant letters of marque or reprisal, coin money, emit bills of credit, 1 be followed of necessity in the Federal Supreme Court. Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. Rep. 10. See Gibson v. Lyon, 115 U. S. 439, 6 Sup. Ct. Rep. 129. This doctrine does not apply to ques- tions not at all dependent upon local statutes or usages ; as, for instance, to contracts and other instruments of a con- mercial and general nature, like bills of exchange: Swift p. Tyson, 16 Pet. 1; Gates v. National Bank, 100 U. S. 239 ; Railroad Co. v. National Bank, 102 U. S. 14 ; and insurance contracts. Robinson v. Commonwealth Ins. Co., 3 Sum. 220. And see Reimsdyke v. Kane, 1 Gall. 376; Austen v. Miller, 5 McLean, 153; Gloucester Ins. Co. v. Younger, 2 Curt. C. C. 322 ; Bragg v. Meyer, McAll. 408. Whether a lunatic's contract is void or voidable is a question of general juris- prudence. Edwards v. Davenport, 20 Fed. Rep. 756. And of course cases pre- senting questions of conflict with the Con- stitution of the United States cannot be within the doctrine. State Bank v. Knoop, 16 How. 369; Jefferson Branch Bank v. Skelley, 1 Black, 436. The Fed- eral court must decide for itself whether there exists a contract within the consti- tutional protection. Louisville & N. R. R. Co. v. Palmes, 109 U. S. 244, 3 Sup. Ct. Rep. 193; Louisville Gas Co. v. Citi- zens' Gas Co., 115 U. S. 683, 6 Sup. Ct. Rep. 265. So in determining the validity of municipal ordinances. Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064. And where a contract had been made under a settled construction of the State constitution by its highest court, the Supreme Court sustained it, not- withstanding the State court had since overruled its former decision. Gelpcke v. Dubuque, 1 Wall. 175. See Olcott v. Supervisors, 16 Wall. 67 ; Douglass v. Pike County, 101 U. S. 677. 1 To constitute a bill of credit within the meaning of the Constitution, it must be issued by a State, involve the faith of the State, and be designed to circulate as money on the credit of the State, in the ordinary uses of business. Briscoe v. Bank of Kentucky, 1 1 Pet. 257 ; Wood- ruff v. Trapnall, 10 How. 190. Treasury warrants designed so to circulate are bills of credit. Braggs v. Tuff ts, 49 Ark. 554, 6 S. W. 158. [But if they are to be re- tired, as soon as presented for payment at the State treasury, and paid, they are not bills of credit, even though the credi- tor to whom they are issued may demand at the time of receiving them that they be issued in denominations of one dollar each to the extent of the debt, the re- mainder being issued in denominations of not less than five dollars, and even though they may pass from hand to hand and are receivable from any person in payment of taxes. Houston & T. C. R. Co. v. Texas, 177 U. S. 66, 20 Sup. Ct. Rep. 545, rev. 41 S. W. 157.] The facts that a State owns the entire capital stock of a bank, elects the directors, makes its bills receivable for the public dues, and pledges its faith for their redemption, do not make the bills of such bank " bills of credit" in the constitutional sense. Dar- rington v. State Bank of Alabama, 13 (a) [^Regulations of the U. S. Treasury Department which prohibit an internal revenue collector from producing records of his office or copies thereof in any State court are valid, and no State court has any authority to punish him for refusing to produce such records or copies before it. Boske v. Comingore, 177 U. S. 459, 20 Sup. Ct. Rep. 701-3 36 CONSTITUTIONAL LIMITATIONS. [CH. II. or make anything but gold and silver coin a tender in payment of debts. No State shall, without the consent of Congress, lay any imposts or duties upon imports or exports, except what may be absolutely necessary for executing its 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 the United States, and all such laws shall be subject to the revision and control of 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 (a) with another State or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. Of the second class are the following: No State shall pass any bill of attainder, ex post facto law, or law impair- ing the obligation of contracts, 1 ^) or make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive 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, 2 nor base discriminations in suffrage on race, color, or previous condition of servitude. 3 Other provisions have for their object to prevent discrimi- nations by the several States against the citizens and pub- lic authority and proceedings of other States. Of this class are the provisions that the citizens of each State shall be en- How. 12. See, further, Craig v. Missouri, l Const, of U. S. art. 1, 10; Story on 4 Pet. 410 ; Byrne v. Missouri, 8 Pet. 40; Const, c. 33, 34. Curran v. Arkansas, 15 How. 304; Moreau 2 Const, of U. S. 14th Amendment; v. Detchamendy, 41 Mo. 431; Bailey v. Story on Const. (4th ed.) c. 47. Milner, 35 Ga. 330 ; City National Bank 3 Const, of U. S. 15th Amendment ; v. Mahan, 21 La. Ann. 751. Story on Const. (4th ed.) c. 48. (a) [[Agreement between two States to appoint commissioners to trace and mark their common boundary line is not prohibited. Virginia v. Tennessee, 148 U. S. 603, 13 Sup. Ct. Rep. 728. Upon judicial settlement of State boundaries, see Nebraska v. Iowa, 145 U. S. 519, 12 Sup. Ct. Rep. 976, and note to 36 L. ed. U. S. 798.] (b) [[Whether a State statute impairs the obligation of a contract is a federal question. Pierce v. Somerset Ry., 171 U. S. 641, 19 Sup. Ct. Rep. 64. But this provi- sion of the Constitution does not extend to the case where a State court overrules its prior decisions, even though they have become rules of property and contracts have been entered into whose obligation is seriously impaired by such overruling. Bacon v. Texas, 163 U. S. 207, 16 Sup. Ct. Rep. 1023; and see also Turner v. Com'rs of Wilkes Co., 173 U. S. 461, 19 Sup. Ct. Rep. 464, and dissenting opinion of Peckham, J., in McCullough v. Virginia, 172 U. S. 102, 19 Sup. Ct. Rep. 134. That impairing remedy impairs the obligation of a contract, see note to 26 L. ed. U. S. 132. This provision does not cover the case of an alleged impairment of a contract by State action other than legislative. Hanford v. Davies, 163 U. S. 273, 16 Sup. Ct. Rep. 1051 ; Turner v. Com'rs of Wilkes Co., 173 U. S. 461, 19 Sup. Ct. Rep. 464; Cen- tral Land Co. v. Laidley, 159 U. S. 103, 16 Sup. Ct. Rep. 80; Wood v. Brady, 150 U. S. 18, 14 Sup. Ct. Rep. 6. See also Ford v. Delta & Pine Land Co., 164 U. S. 662, 17 Sup. Ct. Rep. 230/] CH. II.] THE CONSTITUTION OF THE UNITED STATES. 37 titled to all the privileges and immunities of citizens in the several States; 1 that fugitives from justice shall be delivered 1 Const, of U. S. art. 4. " What are the privileges and immunities of citizens in the several States ? We feel no hesi- tation in confining these expressions to those privileges and immunities which are in their nature fundamental ; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the sev- eral States which compose this Union, from the time of their becoming free., in- 'dependent, and sovereign. What those - fundamental principles are, it would per- haps be more tedious than difficult to 'enumerate. They may, however, be all comprehended under the following gen- eral heads : Protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agri- culture, professional pursuits, or other- wise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of every kind in the courts of the State ; to take, hold, and dispose of prop- erty, either real or personal ; and an ex- emption from higher taxes or impositions than are paid by the citizens of the other State, may be mentioned as some of the particular privileges and immunities 'of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental ; to which may be added the elective franchise as regu- lated and established by the laws or con- stitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities ; and the enjoyment of them by the citizens of each State in every other State was manifestly calculated (to use the expres- sions of the preamble of the corresponding provision in the old Articles of Confed- eration) 'the better to secure and per- petuate mutual friendship and intercourse among the people of the different States of the Union.' " Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 380. The Supreme Court will not describe and define those privileges and immunities in a general classification ; preferring to decide each case as it may come up. Conner v. Elliott, 18 How. 591 ; Ward r. Maryland, 12 Wall. 418 ; McCready v. Virginia, 94 U. S. 391. The question in this last case was whether the State of Virginia could prohibit citi- zens of other States from planting oysters in Ware Hiver, a stream in that State where the tide ebbs and flows, and the right be granted by the State to its own citizens exclusively. \Vaite, Ch. J., in answering the question in the affirmative, said : " The right thus granted is not a privilege or immunity of general, but of special citizenship. It does not belong of right to the citizens of all free govern- ments, but only to the citizens of Virginia, on account of the peculiar circumstances in which they are placed ; they, and they alone, owned the property to be sold or used ; and they alone had the power to dispose of it as they saw fit. They owned it, not by virtue of citizenship merely, but of citizenship and domicile united ; that is to say, by virtue of a citizenship confined to that particular locality." See also Paul v. Hazelton, 37 N. J. 100; [Com. v. Hilton, 174 Mass. 29, 54 N. E. 3b'2, 45 L. R. A. 475.] For other discus- sions upon this subject, see Murray v. McCarty, 2 Munf. 393 ; Lemmon v. Peo- ple, 26 Barb. 270, and 20 N. Y. 562; Campbell v. Morris, 3 Har. & M'H. 554 ; Amy v. Smith, 1 Lit. 326; Crandall v. State, 10 Conn. 340; Butler v. Farns- worth, 4 Wash. C. C. 101 ; Common- wealth v. Towles, 5 Leigh, 743 ; Haney v. Marshall, 9 Md. 194 ; Slaughter v. Com- monwealth, 13 Gratt. 767 ; State v. Med- bury, 3 R. I. 138; People v. Imlay, 20 Barb. 68; People v. Coleman, 4 Cal. 46; People v. Thurber, 13 111. 544; Phoenix Insurance Co. v. Commonwealth, 5 Bush, 68 ; Ducat v. Chicago, 48 111. 172 ; Fire Department v. Noble, 3 E. D. Smith, 441; Same v. Wright, 3 E. D. Smith, 453 ; Robinson v. Oceanic S. N. Co., 112 N. Y. 315, 19 N. E. 625 ; Bliss's Petition, 63 N. H. 135 ; State v. Lancaster, id. 267 ; People f. Phippin, 70 Mich. 6, 37 N. W. Rep. 88; State v. Oilman, 33 W. Va. 146, 10 S. E. Rep. 283; Fire Dep't v. Hel- fenstein, 16 Wis. 136 ; Sears v. Commis- 38 CONSTITUTIONAL LIMITATIONS. [CH. II. up, 1 and that full faith and credit shall be given in each State sioners of Warren Co., 36 Ind. 267; Jeffersonville, &c. R. R. Co. v. Hendricks, 41 Ind. 48; Cincinnati Health Associa- tion v. Rosenthal, 55 111. 85 ; State v. Fos- dick, 21 La. Ann. 434 ; Slaughter House Cases, 16 Wall. 36; Brad well v. State, 16 Wall. 130; Bartmeyer v. Iowa, 18 Wall. 129; United States v. Cruikshank, 92 U. S. 542 ; Kimmish v. Ball, 129 U. S. 217, 9 Sup. Ct. Rep. 277; [Maxwell v. Dow, 176 U. S. 581, 558-593, 20 Sup. Ct. Rep. 448, 494. Upon privileges of citi- zens of States, see note to 1 L. R. A. 56 ; political rights of, note to 8 L. R. A. 337. This clause does not give a citizen the right to enjoy within his own State the privileges which citizens of other States enjoy under the laws of those States. McKane v. Durston, 153 U. S. 084, 14 Sup. Ct. Rep. 913. Nor to carry with him, when he goes into other States, the privileges which he enjoys in his home State. Detroit v. Osborne, 135 U. S. 492, 30 Sup. Ct. Rep. 1012. Exemptions from taxation must be granted to non-residents upon same terms as to residents. Sprague v. Fletcher, 69 Vt. 69, 37 Atl. 239, 37 L. R. A. 840. Citizen of sister State may sue defendant resident of his home State in any State where he can get ser- vice upon him, even though cause of action arose in home State, provided it be transitory. Eingartner v. Illinois Steel Company, 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 503; Cofrode v. Gartner, 79 Mich. 332, 44 N. W. 623, 7 L. R. A. 511. Insurance laws cannot place greater re- strictions upon citizens of other States than upon those of home State. State v. Board of Ins. Com'rs, 37 Fla. 564, 20 So. 772, 33 L. R. A. 288. Agents of non- resident insurers may be required to se- cure a certificate of authority from the insurance commissioner before insuring property within the State. People v. Gay, 107 Mich. 422, 65 N. W. 292, 30 L. R. A. 464. Citizens of other States cannot be denied right to become trustees by appointment through deeds, mort- gages, &c. Roby v. Smith, 131 Ind. 342, 30 N. E. 1093, 15 L. R. A. 792. Dower interests may be restricted to widows of residents. Buffington v. Grosvenor, 46 Kan. 730, 27 Pac. 137, 13 L. R. A. 282 ; Bennett v. Harms, 61 Wis. 251, 8 N. W. 222. Privilege of selling liquors may be restricted to male inhabitants of State. Welsh v. State, 126 Ind. 71, 25 N. E. 883, 9 L. R. A. 664. Discrimination in inher- itance tax law between nephews and nieces resident within the State and those resident without is void. Re Mahouey's Estate, 133 Cal. 180, 65 Pac. 389.] The constitutional provision does not apply to corporations. Warren Manuf. Co. v. JEtna. Ins. Co., 2 Paine, 501; Paul v. Virginia, 8 Wall. 168; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 8 Sup. Ct. Rep. 737; Woodward v. Com., 7 S. W. Rep. 613 (Ky.); Phenix Ins. Co. v. Burdett, 112 Ind. 204, 13 N. E. 705; [Blake v. McClung, 176 U. S. 59, 20 Sup. Ct. Rep. 307 ; s.'c. 172 U. S. 239, 19 Sup. Ct. Rep. 165; Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. Rep. 281.] A discrimination between local freight on railroads and that which is extra-territo- rial is not personal, and therefore not for- bidden by this clause of the Constitution. Shipper v. Pennsylvania R. R. Co., 47 Penn. St. 338. This clause does not for- bid requiring security for costs from non- resident plaintiffs. Cummings v. Wingo, 30 S. C. 611, 10 S. E. Rep. 107. See, for taxes which are forbidden by it, post, 688, note. [A State cannot give priority to creditors residing within its boundaries over those of the same class residing without. Blake v. McClung, 176 U. S. 59, 20 Sup. Ct. Rep. 307 ; s. c. 172 U. S. 239, 19 Sup. Ct. Rep. 165; Sully v. Amer- ican Nat'l Bk., 178 U. S. 289, 20 Sup. Ct. Rep. 935. A conveyance, which the courts of the State wherein it was made, hold void as against the citizens of that State, the Federal courts will hold void as against the citizens of other States. Smith M. P. Co. v. McGroarty, 136 U. S. 237, 10 Sup. Ct. Rep. 1017. The mere fact that a partnership was organized under the laws of another State is not sufficient to justify the imposition of conditions upon its doing business within the State not required of local partner- ships. State v. Cadigan, 73 Vt. 245, 50 Atl. 1079, 57 L. R. A. 666, 87 Am. St. 714. For an instructive discussion of the doctrine of the " Privileges and Immuni- ties of Citizens in the Several States," see article by Win. J. Meyers in 1 Mich. Law Rev. 286, 364.] 1 Extradition as between the States. CH. II.] THE CONSTITUTION OF THE UNITED STATES. 39 to the public acts, (a) records, and judicial proceedings of every The return by one State of fugitives from justice which have fled to it from another State is only made a matter of rightful demand by the provisions of the Federal Constitution. In the absence of such provisions, it might be provided for by State law ; but the Constitution makes that obligatory which otherwise would rest in the imperfect and uncertain re- quirements of interstate comity. The subject has received much attention from the courts when having occasion to con- sider the nature and extent of the consti- tutional obligation. It lias also been the subject of many executive papers ; and several controversies between the execu- tives of New York and those of more southern States, are referred to in the re- cent Life of William H. Seward, by his son. QUpon extradition between States, see note to 36 L. ed. U. S. 934 ; upon ex- tradition interstate and international, see note to 41 L. ed. U. S. 1064. See also Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. Rep. 297, and note to 40 L. ed. U. S. 406. The sufficiency of the pro- ceedings upon which a governor bases Ids issue of a warrant for the arrest of an alleged fugitive may be inquired into on habeas corpus. Ex parte Tod, 12 S. D. 886, 81 N. W. 637, 47 L. R. A. 566. A governor may revoke his warrant at any time before the alleged fugitive has been removed from the State. State v. Toole, 69 Minn. 104, 72 N. W. 53, 38 L. R. A. 224. An escaped prisoner is a fugitive. Drink- all v. Spiegel, 68 Conn. 441, 36 Atl. 830, 36 L. R. A. 486.] The following are among the judicial decisions: The offence for which extradition may be ordered need not have been an offence either at the common law or at the time the Constitu- tion was adopted ; it is sufficient that it was so at the time the act was committed, and when demand is made. Matter of Clark, 9 Wend. 212 ; People v. Donohue, 84 N. Y. 438; Johnston v. Riley, 13 Ga. 97 ; Matter of Fetter, 23 N. J. 311 ; Mat- ter of Voorhees, 32 N. J. 141 ; Morton v. Skinner, 48 Ind. 123; Matter of Hughes, Pliill. (N. C.) 57; Kentucky v. Dennison, 24 How. 66; Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. Rep. 748; In re Hooper, 52 Wis. 699, 58 N. W. 741. The offence must have been actually committed within the State making the demand, and the accused must have fled there- from. Ex parte Smith, 3 McLean, 121 ; Jones v. Leonard, 50 Iowa, 106, 32 Am. Rep. 116; Hartman v. Aveline, 63 Ind. 344; Wilcox v. Nolze, 34 Ohio St. 520. To be a fugitive it is not necessary that one should have left the State after in- dictment found, or to avoid prosecution ; but simply that, having committed a crime within it, he is when sought found in another State. Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. Rep. 291 ; s'tate v. Richter, 37 Minn. 436, 35 N. W. 9. [A person standing in one State and shoot- ing across the boundary line and injuring one in another State is not a fugitive from justice in the first State. State v. Hall, 115 N. C. 811, 20 S. E. 729, 44 Am. St. 501-3 The accused may be arrested to await demand. State v. Buzine, 4 Harr. 572; Ex parte Cubreth, 49 Cal. 436; Ex parte Rosenblat, 51 Cal. 285. See Tullis v. Fleming, 69 Ind. 15. But one cannot lawfully be arrested on a telegram from officers in another State and without warrant. Malcolrason v. Scott, 56 Mich. 459, 23 N. W. 166. Nor can he be surrendered before formal demand is made, and parties who seize and deliver him up without demand will be liable for doing so. Botts v. Williams, 17 B. Monr. 677. Still if he is returned without proper papers to the State from whence he fled, this will be no sufficient ground for his discharge from custody. Dow's Case, 18 Penn. St. 37. Even forceable and unlawful abduction of a citizen gives a State no right to demand his release. Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. Rep. 1204 ; fJCook v. Hart, (a) fJA mistake in understanding the true meaning of the statute of a sister State as interpreted by the courts thereof, is not a refusal to give full faith and credit to such statute, and does not give jurisdiction to the Supreme Court of the United States on writ of error. Banholzer v. N. Y. Life Ins. Co , 178 U. S. 402, 20 Sup. Ct. Rep. 972 ; Glenn v. Garth, 147 U. S. 360, 13 Sup. Ct. Rep. 350. And such statute is a matter of fact and must be proved as such. Lloyd v. Matthews, 155 U. S. 222, 15 Sup. Ct. Rep. 70.] 40 CONSTITUTIONAL LIMITATIONS. [CH. II. other State. 1 (a) Many cases have been decided under these 146 U. S. 183, 13 Sup. Ct. Rep. 40.] The question whether after such abduction in another country a State court will try a person, is not a federal question. Ker v. Illinois, 119 U. S. 436, 7 Sup. Ct. Rep. 225. The charge must be made before a magistrate of the State where the offence was committed. Smith v. State, 21 Neb. 552, 32 N. W. 594. The demand is to be made by the executive of the State, by which is meant the governor: Common- wealth v. Hall, 9 Gray, 262 ; and it is the duty of the executive of the State to which the offender has fled to comply : Johnston v. Riley, 13 Ga. 97 ; Ex parte Swearingen, 13 S. C. 74 ; People v. Pink- erton, 77 N. Y. 245; Work v. Corrington, 34 Ohio St. 64, 32 Am. Rep. 345; but if he refuses to do so, the courts have no power to compel him : Kentucky v. Dennison, 24 How. 66; Matter of Man- chester, 5 Cal. 237. It is his duty to de- termine in some legal way whether the person is a fugitive from justice; the mere requisition is not enough ; but his determination is prima facie sufficient. Ex parte Ueggel, 114 U. S. 642, 5 Sup. Ct. Rep. 1148; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. Rep. 291. See In re Jackson, 2 Flipp, 183. There must be a showing of sufficient cause for the arrest before the requisition can issue; but after it is issued and complied with, it is com- petent for the courts of either State on habeas corpus to look into the papers, and if they show no sufficient legal cause, to order the prisoner's discharge. Ex parte Smith, 3 McLean, 121; Matter of Clark, 9 Wend. 212; Matter of Manchester, 5 Cal. 237 ; Matter of Hey ward, 1 Sandf . 701 ; Ex parte White, 49 Cal. 434 ; State v Hufford, 28 Iowa, 391 ; People v. Brady, 56 N. Y. 182; Kingsbury's Case, 106 Mass. 223 ; Ex parte McKean, 3 Hughes, "23; Jones v. Leonard, 50 Iowa, 106, 32 Am. Rep. 116; Ex parte Powell, 20 Fla. 806; State v. Richardson, 34 Minn. 115, 24 N. W. 354 ; In re Mohr, 73 Ala. 503. As to the showing required, see State v. Swope, 72 Mo. 399; Ex parte Sheldon, 34 Ohio St. 319 ; Ham v. State, 4 Tex. App. 645. QA novel question was raised in In re Maney, 20 Wash. 509, 55 Pac. 930, 72 Am. St. 130. A sheriff while conduct- ing a prisoner from one part of Idaho to another part of the same State, passed through a portion of the State of Wash- ington His prisoner in this latter State invoked the aid of the writ of habeas cor- pus on the theory that he was unlaw- fully detained. Writ denied.] If one is brought under extradition proceedings into the State where the crime was com- mitted, he will not be discharged by it for defects in proceedings, except on ap- plication of officers of the State from which he has been taken. Ex parte Barker, 87 Ala. 4, 6 So. 7. The Federal courts have no power to compel the State authorities to fulfil their duties under 1 Const, of U. S. art. 4. This covers territorial judgments. Suesenbach v. Wagner, 41 Minn. 108, 42 N. W. Rep. 925. This clause of the Constitution has been (a) FJDpon conclusiveness and effect of judgments as between Federal and State courts, see notes to 21 C. C. A. 478 and 5 L. R. A. 508. A Federal court has jurisdic- tion of a suit to set aside a judgment of a State court relating to title to land in that State, when such judgment was obtained by fraud or without jurisdiction. Howard v. De Cordova, 177 U. S. 609, 20 Sup. Ct. Rep. 517 ; Cooper v. Newell, 173 U. S. 555, 19 Sup. Ct. Rep. 506. See also Bryar v. Campbell, 177 U. S. 649, 20 Sup. Ct. Rep. 794. In a suit to quiet title to land outside the State, service of process outside the State upon a non-resident of the State gives no jurisdiction of him. Dull v. Black- man, 169 U. S. 243, 18 Sup Ct. Rep. 333. Upon the question of fraud as a defence to a judgment of another State, see note to 18 L. ed. U. S. 475. An order of a court of a sister State is subject to the statute of limitations of the State in which it is sought to be enforced. Great W. Tel. Co. r. Purdy, 162 U. S. 329, 16 Sup. Ct. Rep. 810, aff. 83 Iowa, 430, 50 N. W. 45. A Federal court ma}' irfquire into the jurisdiction of a State court of another State to rentier a decree sued upon in the Federal court. Hekking v. Pfaff, 91 Fed. 60, 43 L. R. A. 618.] CH. II.] THE CONSTITUTION OF THE UNITED STATES. 41 several provisions, the most important of which are collected in the marginal notes. this clause of the Constitution. Ken- tucky v. Dennison, 24 How. 66. The executive may revoke his warrant, if sat- isfied it ought not to have issued. Work v. Corrington, 34 Ohio St. 64, 32 Am. Rep. 345. QWhen once within the cus- tody of the demanding State, he may be tried for any crime there charged against him. Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. Rep. 687 ; State v. McNaspy, 58 Kan. 691, 817, 38 L. R. A. 766, 50 Pac. 895; Re Little, Mich. , 89 N. W. 38, 57 L. R. A. 295. (Feb. 1902.) And may be sued in civil suit. Reid v. Ham, 54 Minn. 305, 56 N. W. 35, 21 L. R. A. 232, 40 Am. St. 333. Actual presence in demanding State is necessary to con- stitute flight. Constructive presence, as by firing bullet into it from another State, is insufficient. State v. Hall, 115 N. C. 811, 20 S. E. 729, 28 L. It. A. 289, and note, 44 Am. St. 501. For other cases on interstate extradition, see Re Sultan, 115 N. C. 57, 20 S. E. 375, 28 L. R. A. 294, 44 Am. St. 433 ; Ex parte Hart, 63 Fed. Rep. 249, 28 L. R. A. 801, and note.] Extradition to foreign countries is purely a national power, to be exercised under treaties. Holmes r. Jennison, 14 Pet. 540; Ex parte Holmes, 12 Vt. 631 ; People v. Curtis, 50 N. Y. 321. FJUpon interstate and international extradition, see note to 41 L. ed. U. S. 1046. See also Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. Rep 297, and note to 40 L. ed. U. S. 406. In Neeley v. Henkle, 180 U. S. 109, 126, 21 Sup. Ct. Rep. 308, the question of the validity of an act providing for extradi- tion to foreign countries or to countries occupied by the United States was before the court and the act sustained as appli- cable to Cuba before that island was turned over to the home government after the Spanish war.] In the absence of a treaty there is no obligation to de- liver a fugitive: U. S. v. llauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234 ; but by virtue of such a treaty an American criminal resident in a foreign country gets no right of asylum there so that he may not be removed therefrom by a State except under the provisions of the treaty. Ker v. Illinois, 119 U. S. 436, 7 Sup. Ct. Rep. 225. Foreign governments must make the application, not individ- uals. In re Ferrelle, 28 Fed. Rep. 878. That where a person is extradicted from another country or another State on one charge, he should be discharged if not held upon that, see Commonwealth v. Hawes, 13 Bush, 697 ; In re Cannon, 47 Mich. 481, 11 N. W. 280; State v. Van- derpool, 39 Ohio St. 272; Blandford v. State, 10 Tex. App. 627; State v. Hall, 40 Kan. 338, 19 Pac. 918; U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234. Contra, State v. Stewart, 60 Wis. 587, 19 N. W. 429. See also, Hackney v. Welsh, 107 Ind. 263, 8 N. E. 141 ; In re Miller, 23 Fed. Rep. 32 ; Ex parte Brown, 28 Fed. Rep. 653. QBut when he is surrendered as a matter of comity and not under treaty stipulations, and the indictment is set aside as being defective, he is liable to arrest upon a subsequent complaint for same offence. Re Foss, 102 Cal. 347, 36 Pac. 669, 25 L. R. A. 593, and note.] the subject of a good deal of discussion in the courts. [[See notes to 3 L. ed. U. S. 411, 12 L. R. A. 574, 7 L. R. A. 578, 4 L. R. A. 131, 1 L. R. A. 79. See also Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. Rep. 773 ; Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. Rep. 269, aff. 142 Mass. 47, 6 N. E. 782. See note on this case, 4 Har. L. Rev. 93.] It is well settled that if the record of a judgment shows that it was rendered without ser- vice of process or appearance of the defendant, or if that fact can be shown without contradicting the recitals of the record, it will be treated as void in any other State, notwithstanding this consti- tutional provision. Kibbe v. Kibbe, Kirby, 119; Aldrich v. Kinney, 4 Conn. 380; Middlebrooks v. Ins. Co., 14 Conn. 301 ; Wood v. Watkinson, 17 Conn. 500; Bart- lett v. Knight, 1 Mass. 401 ; Bissell v. Bripgs, 9 Mass. 46'2 ; Hall v. Williams, 6 Pick. 232; Woodworth v. Tremere, 6 Pick. 354; Gleason v. Dodd, 4 Met. 333; Commonwealth v. Blood, 97 Mass. 538; Edson v. Edson, 108 Mass. 590; 11 Am. Rep. 393; Kilburn r. Woodworth, 6 Johns. 37 ; Robinson v. Ward's Execu- 42 CONSTITUTIONAL LIMITATIONS. [CH. II. The last provisions that we shall here notice are that the tors, 8 Johns. 86; Fenton v. Garlick, 8 Johns. 194 ; Pawling v. Bird's Executors, 13 Johns. 192; Holbrook v. Murray, 5 Wend. 161 ; Bradshaw v. Heath, 13 Wend. 407 ; Noyes v. Butler, 6 Barb. 613 ; Hoff- man v. Hoffman, 46 N. Y. 30 ; 7 Am. Rep. 299; Thurber v. Blackbourne, 1 N. H. 242 ; Whittier v. Wendell, 7 N. H. 257 ; Kangely v. Webster, 11 N. H.299; Adams v. Adams, 51 N. H. 388; 12 Am. Rep. 134 ; Wilson v. Jackson, 10 Mo. 334. See McLaurine v. Monroe, 30 Mo. 462 ; Bime- ler v. Dawson, 5 111. 536 ; Warren v. McCarthy, 25 III. 95; Curtiss v. Gibbs, 1 Pa. 406 ; Rogers v. Coleman, Hard. 416 ; Armstrong r. Harshaw, 1 Dev. 187 ; Nor- wood v. Cobb, 24 Texas, 551 ; Rape v. Heaton, 9 Wis. 328 ; McCauley v. Har- groves, 48 Ga. 50; 15 Am. Rep. 660; People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260; Hood v. State, 56 Ind. 263; Lincoln v. Tower, 2 McLean, 473 ; West- ervelt v. Lewis, 2 McLean, 511 ; Railroad Co. . Trimble, 10 Wall. 367 ; Board of Public Works v. Columbia College, 17 Wall. 521 ; St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. Rep. 350; Van Fossen v. State, 37 Ohio St. 317 ; Cross v. Armstrong, 44 Ohio St. 613. See Drake v. Granger, 22 Fla. 348 ; ([Reynolds v. Stockton, 140 U. S. 254, 1 1 Sup. Ct. Rep. 773 ; Guaranty Tr. & S. Dep. Co. v. Green Cove Spr. & M. R. Co., 139 U. S. 137, 11 Sup. Ct. Rep. 92 ; Grover & B. S. M. Co. v. Radcliffe, 137 U. S. 287, 11 Sup. Ct. Rep. 92; Sim- mons v. Saul, 138 U. S. 439, 11 Sup. Ct. Rep. 369; Wabash R. Co. v. Tourville, 179 U. S. 322, 21 Sup. Ct. Rep. 113, aff. 148 Mo. 614, 60 S. W. 300; Ward v. Boyce, 152 N. Y. 191, 46 N. E. 180, 36 L. R. A. 549 ; Crumlish's Adm'r v. Central Imp. Co., 38 W. Va. 390, 18 S. E. 456, 23 L. R. A. 120. A judgment against a non- resident entered on a note under a power in the note, to confess judgment if valid in the State where rendered is entitled to full faith and credit in other States. Crim v. Crim, 162 Mo. 544, 63 S. W. 489, 64 L. R. A. 502.] But whether it would be competent to show, in opposition to the recitals of the record, that a judgment of another State was rendered without jurisdiction having been obtained of the person of the defendant, the authorities are not agreed. Many cases hold not. Field v. Gibbs, 1 Pet. C. C. 155 ; Green v. Sarmiento, 1 Pet. C. C. 74 ; Lincoln v. Tower, 2 McLean, 473 ; Westervelt v. Lewis, 2 McLean, 511; Roberts v. Cald- well, 5 Dana, 512; Hensley v. Force, 7 Eng. 756; Pearce v. Olney, 20 Conn. 544; Hoxie v. Wright, 2 Vt. 263 ; Newcomb v. Peck, 17 Vt. 302; Willcox v. Kassick, 2 Mich. 165 ; Bimeler v. Dawson, 5 111. 536 ; Welch v. Sykes, 8 111. 197; Wetherell v. Stillman, 65 Pa. St. 105; Lance v. Dugan, 13 Atl. Rep. 942 (Pa.) ; Lockhart v. Locke, 42 Ark. 17; Caughran v. Gil- man, 72 Iowa, 570, 34 N. W. 423. Other cases admit such evidence. Starbuck v. Murray, 5 Wend. 148, 21 Am. Dec. 172; Holbrook v. Murray, 5 Wend 161; Shumway v. Stillman, 6 Wend. 447 ; Bor- den v. Fitch, 15 Johns. 121 ; Bartlet v. Knight, 1 Mass. 401, 2 Am. Dec. 36; Hall v. Williams, 6 Pick. 232; Aldrich v. Kinney, 4 Conn. 380; Bradshaw v. Heath, 13 Wend. 407 ; Hoffman v. Hoff- man, 46 N. Y. 30 ; Gleason v. Dodd, 4 Met. 333 ; Kane v Cook, 8 Cal. 449 ; Nor- wood v. Cobb, 24 Texas, 551 ; Russell r. Perry, 14 N. H. 152; Rape v. Heaton, 9 Wis. 328 ; Carleton v. Bickford, 13 Gray, 591; McKay v. Gordon, 34 N. J. 286; Thompson v. Whitman, 18 Wall. 457; Stewart v. Stewart, 27 W. Va. 167; Chunn u. Gray, 51 Texas, 112. In People 17. Dawell, 25 Mich. 247, on an indictment for bigamy, in which the defendant re- lied on a foreign divorce from his first wife, it was held competent to show, in opposition to the recitals of the record, that the parties never resided in the for- eign State, and that the proceedings were a fraud. To the same effect are Hood v. State, 56 Ind. 263, 26 Am. Rep. 23; Penny wit v. Foote, 27 Ohio St. 600 ; Peo- ple v. Baker, 76 N. Y. 78, 32 Am. Rep. 274; O'Dea v. O'Dea, 101 N. Y. 23, 4 N. E. 110; Reed v. Reed, 52 Mich. 117, 17 N. W. 720; Smith v. Smith, 19 Neb. 706, 28 N. W. 296. [["Judgments recov- ered in one State in the Union, when proved in the courts of another, . . . (are not) re-examinable upon the merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties." Per Mr. Justice Gray in Hanley v. Donoghue, 116 U. S. 1,6 Sup Ct. Rep. 242; Buck- ner v. Finley, 2 Pet. 592; M'Elmoyle v. Cohen, 13 Pet. 312; D'Arcy v. Ketchum, CH. II.] THE CONSTITUTION OF THE UNITED STATES. 43 United States shall guarantee to every State a republican form 11 How. 165; Christmas v. Russell, 6 Wall. 290; and Thompson v. Whitman, 18 Wall. 457. See also Maxwell v. Stewart, 22 Wall. 77 ; Broderick's Will, 21 Wall. 603; Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. Hep. 327 ; and Simmons . Saul, 138 U. S. 439, 11 Sup. Ct. Rep. 369.] And see further, as to divorce cases, post, p. 678 el seq. Mr. Freeman discusses this general subject in his treat- ise on Judgments, c. 26. The same de- fences may be made to a judgment, when sued in another State, which could have been made to it in the State where ren- dered : Hampton v. McConnel, 3 Wheat. 234; Mills v. Duryea, 7 Cranch, 481; Steele v. Smith, 7 W. & S. 447; Bank of the State v. Dalton, 9 How. 522 ; Scott v. Coleman, 5 Litt. 349, 16 Am. Dec. 71 ; but no others : Green v. Van Buskirk, 7 Wall. 139; Christmas v. Russell, 6 Wall. 290; Cheever v. Wilson, 9 Wall. 108 ; Wernwag v. Pawling, 5 Gill & J. 600, 25 Am. Dec. 317; Fletcher v. Ferrel, 9 Dana, 372, 35 Am. Dec. 143; People v. Dawell, 25 Mich. 247, 12 Am. Hep. 260; Dodge v. Coffin, 15 Kan. 277 ; [^Hancock National Bank v. Farnum, 176 U. S. 640, 20 Sup. Ct. Rep. 506, rev. 20 R. I. 466, 40 Atl. 341 ; Thomp- son v. Taylor, 65 N. J. L. 107, 46 Atl. 667, 54 L. R. A. 585. Courts of one State will not enforce the judgments of a sister State, so a bill will not lie to en- force specific performance of a decree for alimony rendered in a court of a sister State. Bullock v. Bullock, 61 N. J. Eq. 444, 27 Atl. 435, 52 N. J. Eq. 561, 30 Atl. 676, 46 Am. St. 528.] A foreign decree not appropriate to any part of the issue raised by the record is not conclusive col- laterally. Reynolds v. Stockton, 43 N. J. Eq. 211. This provision of the Constitution of the United States does not require that disabilities imposed upon a person con- victed of crime in one State should follow him and be enforced in other States. Sims v. Sims, 75 N. Y. 466, approving Common- wealth v. Green, 17 Mass. 515, and disap- proving Chase v. Blodgett, 10 N. H. 22, and State i>. Chandler, 3 Hawks, 393. The courts of the United States cannot enforce the penal laws of a State, and where an action was brought in such court by a State upon a judgment recov- ered in its own courts, the Federal court looked back of the judgment to the orig- inal demand, and refused to enforce the judgment. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. Rep. 1370. FJBut in order that the law may be penal it must inflict the penalty as punishment for some offence against the State. It is not within the rule if the penalty is mere liquidated damages for a private wrong, still less if it is damages ascer- tained from the contract relations be- tween the parties. Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. Rep. 224, rev. 70 Md. 191, 16 Atl. 651, 2 L. R. A. 779, 14 Am. St. 344. See also upon "full faith and credit," note to this case in 36 L. ed. U. S. 1123. Where a discontinuance of the suit is entered by consent of the parties, the en- try reciting that it is upon a settlement of the suit, it may be shown in an action in another State upon the original cause that the settlement was by an executory agreement which has not been fulfilled. Jacobs v. Marks, 182 U. S. 583, 21 Sup. Ct. Rep. 865, aff. 183 111. 533, 56 N. E. 154. Execution cannot issue in one State upon a judgment rendered in an- other. The foreign judgment must first be reduced to a domestic judgment. Bennett v. Bennett, N. J. App. , 49 Atl. 501 (June 25, 1901). The situs of a debt is with the debtor, so far at least as attachment and gar- nishment are concerned, and a judgment against a garnishee is not invalidated by the fact that his creditor, the principal defendant, resides outside the State and has been served only constructively by publication. If otherwise sufficient, the judgment must be given "full faith and credit " in every State. Chicago, R. I. & P. R. Co. v. Sturm, 174 U. S. 710, 19 Sup. Ct. Rep. 797, followed in King v. Cross, 175 U. S. 396, 20 Sup. Ct. Rep. 139, aff. 19 R. I. 220, 33 Atl. 147. The judg- ment of the court of one State that a certain will works an equitable conver- sion into personalty of realty situated in another State is not binding upon the courts of that other State. Clarke v. Clarke, 178 U. S. 186, 20 Sup. Ct. Rep. 873, aff. 70 Conn. 195, 483, 39 Atl. 155, 40 Atl. 111. Upon effect of probate of will in another State, see Martin v. 44 CONSTITUTIONAL LIMITATIONS. [CH. II. of government, 1 and that no State shall grant any title of Stovell, 103 Tenn. 1, 52 S. W. 296, 48 L. R. A. 130, and note ; upon equitable conversion of real property into person- alt}-, see Cottman v. Grace, 112 N. Y. 299, 19 N. E. 839,3 L. R. A. 145, and note ; also Bullard v. Chandler, 149 Mass. 632,21 N. E. 951,5 L. R. A. 104, and note. An ex parte adjudication upon the domi- cil of decedent, made in grant of letters of administration, has no probative force outside the State. Overby v. Gordon, 177 U. S. 214, 20 Sup. Ct. Rep. 603. A guar- dian appointed in one State cannot exer- cise any authority in another except so far as permitted by the laws of that other. He cannot even sue in a Federal court held in that other. Morgan v. Potter, 157 U. S. 195, 15 Sup. Ct. Rep. 690. A voluntary assignment of his property made by an insolvent debtor for the payment of his debts and valid by the law of his residence covers his property in another State in which none of his creditors reside, provided the as- signee takes possession beiore the levy of judicial process, even though the assign- ment contains provisions for the prefer- ment of creditors which are prohibited by the law of the State where such prop- erty is situated. Burnett v. Kinney, 147 U. S. 476, 13 Sup. Ct. Rep. 403. But where the insolvency proceedings are in- voluntary and the assignee has not yet reduced the goods in the sister State to possession, the title does not pass to him. Reynolds v. Adden, 136 U. S. 348, 10 Sup. Ct. Rep. 843. A decree of a State court having jurisdiction of the parties that a conveyance of land outside the State was in fraud of the rignts of the plaintiff, but not directing defendant to reconvey, is of no force outside the State in which the decree is rendered. But a decree that defendant is indebted to plaintiff and shall pay certain sums of money is binding upon the courts of other States. Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct. Rep. 960. An ap- pointment of an administrator has no extra-territorial force, and a judgment in one State against the administrator of the estate of X. is a personal judgment, and therefore cannot be pleaded by the same plaintiff against the administrator of the estate of X. in another State, be- cause the defendants are neither the same person, nor are they in privity, and the matter is not therefore res judicata with respect to the defendant in the second action. Johnson v. Powers, 137 U. S. 156, 11 Sup. Ct. Rep. 525. A judgment cannot receive credit if it is not respon- sive to the issue presented by the plead- ings. Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. Rep. 773. And the jurisdiction of the court is always open to inquiry. Guaranty Tr. & S. Dep. Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137. 11 Sup. Ct. Rep. 512; Streit- wolf v. Streitwolf, 181 U. S. 179, 21 Sup. Ct. Rep. 553, aff. 58 N. J. Eq. 563, 41 All. 876, 43 Atl. 683, 78 Am. St. 630; Bell v. Bell, 181 U. S. 175, 21 Sup. Ct. Rep. 551, aff. 157 N. Y. 719, 53 N. E. 1123. For validity of a consent decree, see Texas & P. Ry. Co. v. Southern P. Co., 137 U. S. 48, 11 Sup. Ct. Rep. 10. But where the plaintiff is duly domiciled in the State in which he sues for divorce, and such State is the duly established matrimonial domicil of the parties, if the defendant is without the State, reason- able constructive service of notice if authorized by the laws of the State will give the court such jurisdiction that its decree of divorce will be valid through- out the United States. Atherton v. Atherton, 181 U. S. 155, 21 Sup. Ct. Rep. 544, rev. 155 N. Y. 129, 49 N. E. 933, 40 L. R. A. 291, 63 Am. St. 650. A decree of divorce granting alimony, the decree having been rendered by a court having jurisdiction, must be given full faith and credit in a sister State so far as the di- vorce and the alimony due at the date of the decree are concerned, but is of no force outside the State in which it is granted so far as it relates to alimony subsequently to become due. Lynde v. Lynde, 162 N. Y. 405, 56 N. E. 979, 48 L. R. A. 679, 76 Am. St. 332, affd. in 181 U. S. 183, 21 Sup. Ct. Rep. 555. fee also in this connection, Laing v. Rigney, 160 U. S. 531, 16 Sup. Ct. Rep. 366 ; Ar- rington v. Arrington, 127 N. C. 190, 37 S. E. 212, 52 L. R. A. 201, 80 Am. St. 791 ; Trowbridge v. Spinning, 23 Wash. 48, 62 Pac. 125, 64 L. R. A. 204, 83 Am. 1 Const, of U. S. art. 4, 4. CH. II.] THE CONSTITUTION OF THE UNITED STATES. 45 nobility. 1 The purpose of these is to protect a Union founded on republican principles, and composed entirely of republican members, against aristocratic and monarchical innovations. 2 So far as a particular consideration of'the foregoing provisions falls within the plan of our present work, it will be more con- venient to treat of them in another place, especially as all of them which have for their object the protection of person or property are usually repeated in the bills of rights contained in the State constitutions, and will require some notice at our hands as a part of State constitutional law. Where powers are conferred upon the general government, the exercise of the same powers by the States is impliedly prohibited, wherever the intent of the grant to the national government would be defeated by such exercise. On this ground it is held that the States cannot tax the agencies or loans of the general government; since the power to tax, if possessed by the States in regard to these objects, might be so exercised as altogether to destroy such agencies, and impair or even destroy the national credit. 3 And where by the national Constitution jurisdiction is given to the national courts with a view to the more efficient and harmonious working of the system organized under it, it is competent for Congress in its wisdom to make that jurisdiction exclusive of the State courts. 4 On some other subjects State laws may be valid until the power of Congress is exercised, when they become superseded, either wholly, or so far as they are found inconsistent. The States may legislate on the subject of bankruptcy if there be no national bankrupt law. 5 State laws for organizing and disci- St. 806. Judgment by confession entered not fall within our province to discuss by an attorney acting upon a warrant these provisions. They have been much contained in a promissory note made in discussed in Congress within a few years, the State and conformably to its laws but in a party rather than a judicial, must be granted full faith and credit in spirit. See Story on Const. (4th ed.) sister State. Van Norman v. Gordon, c. 41 ; Luther v. Borden, 7 How. 1 ; Texas 172 Mass. 576, 53 N. E. 267, 44 L. R. A. v. White, 7 Wall. 700 ; Cooley, Constitu- 840, 70 Am. St. 304 ; Crim v. Crim, 162 tional Principles, ch. xi. Mo. 544, 63 S. W. 489, 54 L. R. A. 602, McCulloch v. Maryland, 4 Wheat. 85 Am. St. 521. Judgment in rem upon 316,427; Weston v. Charleston, 2 Pet. 449. lands in another State is not binding in See cases collected, post, pp. 681-683. State where such lands are situated. * Martin v. Hunter's Lessee, 1 Wheat. Smithy. Smith, 174 111. 52, 60 N. E. 1083, 304; The Moses Taylor v. Hammons, 4 43 L. R. A. 403 ; Bullock v. Bullock, 52 Wall. 411 ; The Ad Hine v. Trevor, 4 N. J. Eq. 561, 30 Atl. 676, 46 Am. St. Wall. 555. And see note to these cases 628. Upon this provision, see also Van in the Western Jurist, Vol. I. p. 241. Matre v. Sankey, 148 111. 536, 36 N. E. 8 Sturges t>. Crowninshield, 4 Wheat. 628, 23 L. R. A. 665.] 122 ; McMillan v. McNeill, 4 Wheat. 209. 1 Const, of U. S. art. 1, 10. And see post, pp. 416, 417. 2 Federalist, Nos. 43 and 44. It does 46 CONSTITUTIONAL LIMITATIONS. [CH. II. plining the militia are valid, except as they may conflict with national legislation; 1 and the States may constitutionally pro- vide for punishing the counterfeiting of coin 2 and the passing of counterfeit money, 3 since these acts are offences against the State, notwithstanding they may be offences against the nation also. The tenth amendment to the Constitution provides that 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. And it is to be observed of this instrument, that being framed for the establishment of a national government, it is a settled rule of construction that the limita- tions it imposes upon the powers of government are in all cases to be understood as limitations upon the government of the Union only, except where the States are expressly mentioned. 4 As illustrations, the sixth and seventh amendments to the Constitution may be mentioned. These constitute a guaranty of the right of trial by jury ; but, as they do not mention the States, they are not to be understood as restricting their powers; and the States may, if they choose, provide for the trial of all offences against the States, as well as for the trial of civil cases in the State courts, without the intervention of a jury, or by some different jury from that known to the common law. 6 1 Houston v. Moore, 5 Wheat. 1. 51. State, 19 Ohio St. 184; State v. Shutnpert, 2 Harlan v. People, 1 Doug. (Mich.) 1 S. C. 85; Common wealth v. Hitchings, 207. 5 Gray, 482; Bigelow v. Bipelow, 120 3 Fox v. Ohio, 5 How. 410; United Mass. 320; Boyd v. Ellis, 11 Iowa, 97; States v. Marigold, 9 How. 560. And see Campbell v. State, 11 Ga. 353; State v. Hendrick's Case, 5 Leigh, 707 ; Jett v. Carro, 26 La. Ann. 377 ; Purvear v. Commonwealth, 18 Grat. 933; State v. Commonwealth, 5 Wall. 475; Twitchell Rankin, 4 Cold. 145; Moore v. People, v. Commonwealth, 7 Wall. 321. QSecond 14 How. 13. and fourth amendments do not operate * Ban-on v. Baltimore, 7 Pet. 243 ; Liv- on States. Miller v. Texas, 153 U. S. ingston's Lessee v. Moore, 7 Pet. 469 ; Fox 535, 14 Sup. Ct. Rep. 874. Nor does fifth. v. Ohio, 6 How. 410; Smith v. Maryland, Thorington v. City Council of Montgom- 18 How. 71 ; Kelly v. Pittsburgh, 104 U. ery, 147 U. S. 490, 13 Sup. Ct. Rep. 394; S. 78; Presser v. Illinois, 116 U. S. 252, 6 Brown v. New Jersey, 175 U. S. 172, 174, Sup. Ct. Rep. 580; Spies v. Illinois, 123 20 Sup. Ct. Rep. 77, 22 Sup. Ct. Rep. 120; U. S. 131, 8 Sup. Ct. Rep. 21 ; Buona- Capital City Dairy Co. v. Ohio, 183 U. S. parte v. Camden & Amboy R. R. Co., 238, 245. Nor the eighth. O'Neil v. Ver- Baldw. 220 ; James v. Commonwealth, 12 mont, 144 U. S. 323, 12 Sup. Ct. Rep. 693. S. & R. 220 ; Barker v. People, 3 Cow. Nor do the fifth and sixth. Davis v. 686; Colt v. Eves, 12 Conn. 243; Jane v. Texas, 139 U. S. 651, 11 Sup. Ct. Rep. Commonwealth, 3 Met. (Ky.) 18; Lincoln 675. See also McElvaine v. Brush, 142 . Smith, 27 Vt. 328 ; Matter of Smith, U. S 255, 12 Sup. Ct. Rep. 156.] 10 Wend. 449; State v. Barnett, 3 Kan. 6 Twitchell v. Commonwealth, 7 260; Reed v. Rice, 2 J. J. Marsh. 45, 19 Wall. 321 ; Justices v. Murray, 9 Wall. Am. Dec. 122 ; North Mo. R. R. Co. v. 274 ; Edwards v. Elliott, 21 Wall. 532 ; Maguire, 49 Mo. 490: Lake Erie, &c. R. Walker v. Sauvinet, 92 U. S. 90; Munn R. Co v. Heath, 9 Ind. 558 ; Prescott r. v. Illinois, 94 U. S. 113 ; Huston v. Wads- CH. II.] THE CONSTITUTION OF THE UNITED STATES. 47 With other rules for the construction of the national Consti- tution we shall have little occasion to deal. They have been the subject of elaborate treatises, judicial opinions, and legis- lative debates, which are familiar alike to the legal profession and to the public at large. So far as that instrument apportions powers to the national judiciary, it must be understood, for the most part, as simply authorizing Congress to pass the necessary legislation for the exercise of those powers by the Federal courts, and not as directly, of its own force, vesting them with that authority. The Constitution does not, of its own force, give to national courts jurisdiction of the several cases which it enumerates, but an act of Congress is essential, first, to create courts, and afterwards to apportion the jurisdiction among them. The exceptions are of those few cases of which the Constitution confers jurisdiction upon the Supreme Court by name. And although the courts of the United States administer the common law in many cases, 1 they can recognize as offences against the nation only those acts which are made criminal, and their punishment provided for, by acts of Congress. 2 It is worth, 5 Col. 213. See Butler v. State, 97 Ind. 378; People v. Williams, 35 Hun, 516. A State may give a court of equity jurisdiction of a suit to establish an equitable interest in land. Church v. Kelsey. 121 U. S. 282, 7 Sup. Ct. Rep. 897. The seventh amendment has no ap- plication to demands against the govern- ment, or to counter-claims. McElrath v. United States, 102 U. S. 426. [A jury of eight may be provided for criminal cases not capital. Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. Rep. 448, 494. See also State v. Bates, 14 Utah, 293, 47 Pac. 78, 43 L. R. A. 33, and note. The federal jury is the common-law jury of twelve men. It does not include statutory juries before justices of the peace, and facts ex- amined before such statutory juries may be re-examined otherwise than according to the course of the common law. Capi- tal Traction Co. v. Hot, 174 U. S. 1, 19 Sup. Ct. Rep. 580. The fifth amendment does not apply to trials in tlie consular courts of the U. S. held in non-Christian countries. Ross v. Mclntyre, 140 U. S. 453, 11 Sup. Ct. Rep. 897.] 1 Townsend v. Todd, 91 U. S. 452 ; Elmwood v. Marcy, 92 U. S. 289 ; Rail- road Co. v. Georgia, 98 U. S. 359. 2 Demurrer to an indictment for a libel upon the President and Congress. By the court : " The only question which this case presents is whether the circuit courts can exercise a common-law juris- diction in criminal cases. . . . The general acquiescence of legal men shows the prevalence of opinion in favor of the negative of the proposition. The course of reasoning which leads to this conclu- sion is simple, obvious, and admits of but little illustration. The powers of the general government are made up of con- cessions from the several States : what- ever is not expressly given to former, the latter expressly reserve. The judicial power of the United States is a constitu- tional part of these concessions : that power is to be exercised by courts organ- ized for the purpose, and brought into ex- istence by an effort of the legislative power of the Union. Of all the courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction de- rived immediately from the Constitution, and of which the legislative power cannot deprive it. All other courts created by the general government possess no juris- diction but what is given them by the power that created them, and can be vested with none but what the power ceded to the general government will authorize it to confer. It is not necessary 48 CONSTITUTIONAL LIMITATIONS. [CH. II. otherwise in the States ; for the State courts take notice of, and punish as crimes, those acts which were crimes at the common law, except in a few States where it is otherwise expressly pro- vided by statute or Constitution. to inquire whether the general govern- ment, in any and what extent, possesses the power of conferring on its courts a jurisdiction in cases similar to the pres- ent ; it is enough that such jurisdiction has not been conferred by any legis- lative act, if it does not result to those courts as a consequence of their crea- tion." United States v. Hudson, 7 Cranch, 32. See United States v. Cool- idge, 1 Wheat. 415. " It is clear there can be no common law of the United States. The Federal government is com- posed of twenty-four sovereign and inde- pendent States, each of which may have its local usages, customs, and common law. There is no principle which per- rades the Union, and has the authority of law, that is not embodied in the Con- stitution or laws of the Union. The common law could be made a part of our federal system only by legislative adop- tion." Per McLean, J., Wheaton v. Peters, 8 Pet. 691. See also Kendall t>. United States, 12 Pet. 524 ; Lorman v. Clarke, 2 McLean, 568 ; United States v. Lancaster, 2 McLean, 431 ; United States v. New Bedford Bridge, 1 Wood. & M. 403 ; United States v. Wilson, 3 Blatch. 435 ; United States v. Barney, 5 Blatch. 294. Upon this ground it was held in Gatton v. Chicago, R. I. & P. R. Co., 95 Iowa, 112, 63 N. W.589, 28 L. R! A. 556, that in the absence of congres- sional action, common carriers engaged in interstate commerce were not limited to reasonable charges. See also Fore- paugh v. Delaware, L. & W. R. Co., 128 Pa. 217, 18 Atl. 503, 5 L. R. A. 508, and note, 15 Am. St. 672. These cases how- ever are overruled in W. U. Tel. Co. v. Call Pub. Co., 181 U. S. 92, 21 Sup. Ct. Rep. 561, aff. 58 Neb. 192, 78 N. W. 619, holding that in the absence of con- gressional action, interstate telegraph companies are subject to the common- law rule of reasonable charges, and no unreasonable discrimination between pa- trons.] As to the adoption of the com- mon law by the States, see Van Ness v. Pacard, 2 Pet. 137, 144, per Story, J. ; and post, p. 51, and cases cited in notes. CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 49 CHAPTER III. THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS. THE Constitution of the United States assumes the existence of thirteen distinct State governments, over whose people its authority was to be extended if ratified by conventions chosen for the purpose. Each of these States was then exercising the powers of government under some form of written constitution, and that instrument would remain unaffected by the adoption of the national Constitution, except in those particulars in which the two would come in conflict ; and as to those, the latter would modify and control the former. 1 But besides this fundamental law, every State had also a body of laws, prescribing the rights, duties, and obligations of persons within its jurisdiction, and establishing those minute rules for the various relations of life which cannot be properly incorporated in a constitution, but must be left to the regulation of the ordinary law-making power. By far the larger and more valuable portion of that body of laws consisted of the common law of England, which had been transplanted in the American wilderness, and which the colo- nists, now become an independent nation, had found a shelter of protection during all the long contest with the mother country > brought at last to so fortunate a conclusion. The common law of England consisted of those maxims of freedom, order, enterprise, and thrift which had prevailed in the conduct of public affairs, the management of private business, the regulation of the domestic institutions, and the acquisition, con- trol, and transfer of property from time immemorial. It was the outgrowth of the habits of thought and action of the people, and was modified gradually and insensibly from time to time as those habits became modified, and as civilization advanced, and new in- ventions introduced new wants and conveniences, and new modes of business. Springing from the very nature of the people them- selves, and developed in their own experience, it was obviously the body of laws best adapted to their needs, and as they took with them their nature, so also they would take with them these 1 Livingston v. Van Ingen, 9 Johns. Dargan, 45 Ala. 310; Neal v. Delaware, 607 ; State v. Cape Girarcleau, &c. R. R. 103 U. S. 370. Co., 48 Mo. 468 ; Mayor, &c. of Mobile v. 4 50 CONSTITUTIONAL LIMITATIONS. [CH. III. laws whenever they should transfer their domicile from one coun- try to another. To eulogize the common law is no part of our present purpose. Many of its features were exceedingly harsh and repulsive, and gave unmistakable proofs that they had their origin in times of profound ignorance, superstition, and barbarism. The feudal system, which was essentially a system of violence, disorder, and rapine, 1 gave birth to many of the maxims of the common law ; aud some of these, long after that system has passed away, may still be traced in our law, especially in the rules which govern the acquisition, control, and enjoyment of real estate. The criminal code was also marked by cruel and absurd features, some of which have clung to it with wonderful tenacity, even after the most stupid could perceive their inconsistency with justice and civilization. But, on the whole, the system was the best founda- tion on which to erect an enduring structure of civil liberty which the world has ever known. It was the peculiar excellence of the common law of England that it recognized the worth, and sought especially to protect the rights and privileges, of the individual man. Its maxims were those of a sturdy and independent race, accustomed in an unusual degree to freedom of thought and ac- tion, and to a share in the administration of public affairs ; and arbitrary power and uncontrolled authority were not recognized in its principles. Awe surrounded and majesty clothed the king, but the humblest subject might shut the door of his cottage against him, and defend from intrusion that privacy which was as sacred as the kingly prerogatives. 2 The system was the oppo- site of servile ; its features implied boldness and independent self-reliance on the part of the people ; and if the criminal code was harsh, it at least escaped the inquisitorial features which were apparent in criminal procedure of other civilized countries, and which have ever been fruitful of injustice, oppression, and terror. For several hundred years, however, changes had from time to time been made in the common law by means of statutes. Origi- nally the purpose of general statutes was mainly to declare and reaffirm such common-law principles as, by reason of usurpations and abuses, had come to be of doubtful force, and which, there- fore, needed to be authoritatively announced, that king and sub- 1 " A feudal kingdom was a confed- was either a cipher or a tyrant, and a eracy of a numerous body, who lived in great portion of the people were reduced a state of war against each other, and of to personal slavery." Mackintosh, His- rapine towards all mankind ; in which the tory of England, c. 3. king, according to his ability and vigor, 2 See post, p. 425, 426. CH. III.] FOUMATION AND AMENDMENT OF CONSTITUTIONS. 51 ject alike might understand and observe them. Such was the purpose of the first great statute, promulgated at a time when the legislative power was exercised by the king alone, and which is still known as the Magna Charta of King John. 1 Such also was the purpose of the several confirmations of that charter, as well as of the Petition of Right, 2 and the Bill of Rights, 3 each of which became necessary by reason of usurpations. But further statutes also became needful because old customs and modes of business were unsuited to new conditions of things when property had become more valuable, wealth greater, commerce more ex- tended, and when all these changes had brought with them new desires and necessities, and also new dangers against which society as well as the individual subject needed protection. For this reason the Statute of Wills 4 and the Statute of Frauds and Perjuries 5 became important; and the Habeas Corpus Act 6 was also found necessary, not so much to change the law, 7 as to se- cure existing principles of the common law against being habit- ually set aside and violated by those in power. From the first the colonists in America claimed the benefit and protection of the common law. In some particulars, however, the common law as then existing in England was not suited to their condition and circumstances in the new country, and those partic- ulars they omitted as it was put in practice by them. 8 They also 1 It is justly observed by Sidney that " Magna Charta was not made to restrain the absolute authority, for no such thing was in being or pretended (the folly of such visions seeming to have been re- served to complete the misfortunes and ignominy of our age), but it was to assert the native and original liberties of our nation by the confession of the king then being, that neither he nor his successors should any way encroach upon them." Sidney on Government, c. 3, sec. 27. 2 1 Charles I. c. 1. 3 1 William and Mary, sess. 2, c. 2. * 32 Henry VIII. c. 7, and 34 & 35 Henry VIII. c. 5. 6 29 Charles II. c. 3. 6 31 Charles II. c. 2. 7 " I dare not advise to cast the laws into a new mould. The work which I propound tendeth to the pruning and grafting of the law, and not the plowing up and planting it again, for such a re- move I should hold for a perilous innova- tion." Bacon's Works, Vol. II. p. 231, Phil. ed. 1852. 8 " The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their condition." Story, J., in Van Ness v. Pacard, 2 Pet. 137. " The settlers of colonies in Amer- ica did not carry with them the laws of the land as being bound by them wher- ever they should settle. They left the realm to avoid the inconveniences and hardships they were under, where some of these laws were in force ; particularly ecclesiastical laws, those for payment of tithes, and others. Had it been under- stood that they were to carry these laws with them, they had better have stayed at home among their friends, unexposed to the risks and toils of a new settlement. They carried witli them a right to such parts of laws of the land as they should judge advantageous or useful to them ; a right to be free from those they thought hurtful, and a right to make such othen 52 CONSTITUTIONAL LIMITATIONS. [CH. III. claimed the benefit of such statutes as from time to time had been enacted in modification of this body of rules. 1 And when the difficulties with the home government sprung up, it was a source of immense moral power to the colonists that they were able to show that the rights they claimed were conferred by the common law, and that the king- and Parliament were seeking to deprive them of the common birthright of Englishmen. Did Par- liament attempt to levy taxes in America, the people demanded the benefit of that maxim with which for many generations every intelligent subject had been familiar, that those must vote the tax as they should think necessary, not in- fringing the general rights of English- men ; and such new laws they were to form as agreeable as might be to the laws of England." Franklin, Works by Sparks, Vol. IV. p. 271. See also Chisholm v. Georgia, 2 Dall. 419; Patterson v. Winn, 5 Pet, 233; Wheaton v. Peters, 8 Pet. 591 ; Pollard v. Hagan, 3 How. 212 ; Common- wealth ?;. Leach, 1 Mass. 59 ; Common- wealth v. Knowhon, 2 Mass. 530; Com- monwealth v. Hunt, 4 Met. Ill ; Pearce v. Atwood, 13 Mass. 324 ; Sackett v. Sackett, 8 Pick. 309; Marks v. Morris, 4 Hen. & M 463 ; Mayo t;. Wilson, 1 N. H. 53; Houghton v. Page, 2 N. H. 42; State v. Rollins, 8 N. H. 550 ; State v. Buchanan, 5 H. & J. 356; Sibley v. Williams, 3 G. & J. 62 ; State v. Cummings, 33 Conn. 260; Martin v. Bigelow, 2 Aiken, 187; Linds- ley v. Coats, 1 Ohio, 243 ; Bloom v. Rich- ards, 2 Ohio St. 287 ; Lyle v. Richards, 9 S. & R. 322 ; State v. Campbell, T. U. P. Charlt. 166 ; Craft v. State Bank, 7 Ind. 219; Dawson v. Coffman, 28 Ind. 220; Bogardus v. Trinity Church, 4 Sandf. Ch. 633; Morgan v. King, 30 Barb. 9; Lan- sing w. Stone, 37 Barb. 15; Simpson v. State, 5 Yerg. 356; Crouch v. Hall, 15 III. 263; Brown v. Pratt, 3 Jones (N. C.) Eq. 202 ; Stout v. Keyes, 2 Doug. (Mich.) 184; Lorman v. Benson, 8 Mich. 18 ; Pierson v. State, 12 Cal. 149; Norris v. Harris, 15 Cal. 226 ; Powell . Sims, 5 W. Va. 1 ; Colley v. Merrill, 6 Me. 55 ; State v. Ca- wood, 2 Stew. 360 ; Carter v. Balfour, 19 Ala. 814; Barlow v. Lambert, 28 Ala. 704 ; Goodwin v. Thompson, 2 Greene (Iowa), 329; Wagner v. Bissell, 3 Iowa, 396 ; Noonan v. Stale, 9 Miss. 562 ; Pow- ell v. Brandon, 24 Miss. 343 ; Coburn v. Harvey, 18 Wis. 147 ; Reaume v. Cham- bers, 22 Mo. 36 ; Hamilton v. Kneeland, 1 Nev. 10; People v. Green, 1 Utah, 11; Thomas v. Railroad Co., 1 Utah, 232; Reno Smelting Works v. Stevenson, 21 Pac. Rep. 317 (Nev.). The courts of one State will presume the common law of a sister State to be the same as their own, in the absence of evidence to the contrary. Dunn v. Adams, 1 Ala. 527, s. c. 35 Am. Dec. 42 : Abell v Douglass, 4 Denio, 305 ; Kermott v. Ayer, 11 Mich. 181; Schurman v. Marley, 29 Ind. 458; Buckles v. Ellers, 72 Ind. 220; Tinkler v. Cox, 68 111. 119; Flagg v. Baldwin, 38 N. J. Eq. 219; Eureka Springs Ry. Co. v. Timmons, 11 S. W. Rep.690 (Ark.). So of the law of a foreign country. Carpenter v. Grand Trunk Ry. Co., 72 Me. 388. So, that statutory modifications of the com- mon law are the same. Shattuck v. Chandler, 20 Pac. Rep. 225 (Kan.) ; Bu- chanan v. Hubbard, 21 N. E. 538 (Ind.). But see Atchison, &c. R. R. Co. v. Betts, 15 Pac. Rep. 821 (Kan.). 1 The acts of Parliament passed after the settlement of a colony were not in force therein, unless made so by express words, or by adoption. Commonwealth v. Lodge, 2 Grat. 579; Pemble v. Clifford, 2 McCord, 31. See Swift v. Tousey, 5 Ind. 196; Baker v. Mattocks, Quincy, 72; Fechheimer i;. Washington, 77 Ind. 366 ; Ray v. Sweeney, 14 Bush, 1 ; Lavalle v. Strobel, 89 111. 370 ; Cathcart v. Robinson, 5 Pet. 264. Those amendatory of the common law, if suited to the condition of things in America, were generally adopted by tacit consent. For the differing views taken by English and American states- men upon the general questions here dis- cussed, see the observations by Governor Pownall, and the comments of Franklin thereon, 4 Works of Franklin, by Sparks, 271. CII. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 53 who are to pay it. 1 Did Parliament order offenders against the laws in America to be sent to England for trial, every American was roused to indignation, and protested against the trampling under foot of that time-honored principle, that trials for crime must be by a jury of the vicinage. Contending thus behind the bulwarks of the common law, Englishmen would appreciate and sympathize with their position, and Americans would feel doubly strong in a cause that not only was right, but the justice of which must be confirmed by an appeal to the consciousness of their enemies themselves. The evidence of the common law consisted in part of the declar- atory statutes we have mentioned, 2 in part of the commentaries of such men learned in the law as had been accepted as authority, but mainly in the decisions of the courts applying the law to ac- tual controversies. While colonization continued, that is to say, until the war of the Revolution actually commenced, these decisions were authority in the colonies, and the changes made in the common law up to the same period were operative in America also if suited to the condition of things here. The opening of the war of the Revolution is the point of time at which the continuous stream of the common law became divided, and that portion which had been adopted in America flowed on by itself, no longer subject to changes from across the ocean, but liable still to be gradually modified through changes in the modes of thought and of business among the people, as well as through statutory enactments. The colonists also had legislatures of their own, by which laws had been passed which were in force at the time of the separa- tion, and which remained unaffected thereby. When, therefore, they emerged from the colonial condition into that of indepen- dence, the laws which governed them consisted, first, of the com- 1 " The blessing of Judah and Issachar courage. So that you may conclude that will never meet ; that the same people or no people overcharged with tribute is fit nation should be both the lion's whelp for empire." Lord Bacon on the True and the ass between burdens ; neither Greatness of Kingdoms, will it be that a people overlaid with taxes 2 Those statutes upon the points should ever become valiant and martial, which are covered by them are the best It is true that taxes levied by consent evidence possible. They are the living of the State do abate men's courage less, charters of English liberty, to the present as it hath been seen notably in the exer- day ; and as the forerunners of the Amer- cise of the Low Countries, and in some ican constitutions and the source from degree in the subsidies of England, for which have been derived many of the you must note that we speak now of the most important articles in their bills of heart and not of the purse ; so that al- rights, they are constantly appealed to though the same tribute or tax laid by when personal liberty or private rights consent or by imposing be all one to the are placed in apparent antagonism to the purse, yet it works diversely upon the claims of government. 54 CONSTITUTIONAL LIMITATIONS. [CH. III. mon law of England, so far as they had tacitly adopted it as suited to their condition ; second, of the statutes of England, or of Great Britain, amendatory of the common law, which they had in like manner adopted; and, third, of the colonial statutes. 1 The first and second constituted the American common law, and by this in great part are rights adjudged and wrongs redressed in the American States to this day. 2 1 The like condition of things is found to exist in the new States formed and admitted to the Union since the Constitu- tion was adopted. Congress creates ter- ritorial governments of different grades, but generally witli plenary legislative power either in the governor and judges, a territorial council, or a territorial legis- lature chosen by the people ; and the authority of this body extends to all right- ful subjects of legislation, subject, how- ever, to the disapproval of Congress. Vin- cennes University v. Indiana. 14 How. 268 ; Miners' Bank v. Iowa, 12 How. 1. Thus the Territory of Oregon had power to grant a legislative divorce. Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. Rep. 723. A territorial legislature may empower a probate court to grant a divorce. Whit- more v. Harden, 3 Utah, 121, 1 Pac. 465. The legislation, of course, must not be in conflict with the law of Congress confer- ring the power to legislate, but a variance from it may be supposed approved by that body, if suffered to remain without disapproval for a series of years after being duly reported to it. Clinton v. Englebrect, 13 Wall. 434, 446. See Wil- liams v. Bank of Michigan, 7 Wend. 539 ; Swan v. Williams, 2 Mich. 427 ; Stout v. Hyatt, 13 Kan. 232 ; Himman v. Warren, 6 Oreg. 408. As to the complete control of Congress over the Territories, see United States ;. Reynolds, 98 U. S. 145 } National Bank v. Yankton, 101 U. S. 129. It may exclude polygamists from the right to vote. FJIt may declare void the charter of a church granted by the legis- lature of the Territory. Church of Jesus Christ of Latter Day Saints v. United States, 136 U. S. 1, 10 Sup. Ct. Rep. 792;] Murphy v. Ramsey, 114 U. S. 15, 5 Sup. Ct. Rep. 747. In Treadway v. Schnauber, 1 Dak. 236, it was decided that without express authority a territorial legislature could not vote aid to a railroad company. 2 A few of the States, to get rid of confusion in the law, deemed it desirable to repeal the acts of Parliament, and to re-enact such portions of them as were re- garded important here. See the Michi- gan repealing statute, copied from that of Virginia, in Code of 1820, p. 459. Others named a date or event, and provided by law that English statutes passed subse- quently should not be of force within their limits. In some of the new States there were also other laws in force than those to which we have above alluded, as for example, the ordinance of 1787, in the Northwest Territory. There has been much discussion of the question whether that ordinance was superseded in each of the States formed out of that Terri- tory by the adoption of a State constitu- tion, and admission to the Union. In Hogg v. The Zanesville Canal Manufac- turing Co., 5 Ohio, 410, it was held that the provision of the ordinance that the navigable waters of the Territory and the carrying-places between should be common highways, and forever free, was permanent in its obligation, and could not be altered without the consent both of the people of the State and of the United States, given through their representa- tives. "It is an article of compact; and until we assume the principle that the sovereign power of a State is not bound by compact, this clause must be consid- ered obligatory." Justice McLean and Judge Leavitt, in Spooner v. McConnell, 1 McLean, 337, examine this subject at considerable length, and both arrive at the same conclusion with the Ohio court. The like opinion was subsequently ex- pressed in Palmer v. Commissioners of Cuyahoga Co., 3 McLean, 226, and in Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237. See also United States v. New Bedford Bridge, 1 Wood. & M. 401 ; Strader v. Graham, 10 How. 82 ; Doe v. Douglass, 8 Blackf. 12 ; Connecticut Mu- tual Life Ins. Co. v. Cross, 18 Wis. 109 ; Milwaukee Gaslight Co. v. Schooner Gamecock, 23 Wis. 144 ; Wisconsin River CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 55 Every colony had also its charter, emanating from the Crown, and constituting its colonial constitution. All but two of these were swept away by the whirlwind of revolution, and others sub- stituted which had been framed by the people themselves, through the agency of conventions which they had chosen. The excep- tions were those of Connecticut and Rhode Island, each of which States had continued its government under the colonial charter, finding it sufficient and satisfactory for the time being, and accepting it as the constitution for the State. 1 Improvement Co. v. Lyons, 30 Wis. 61 ; Attorney-General v. Eau Claire, 37 Wis. 400; Keokuk v. Packet Co., 45 Iowa, 196. Compare Woodburn v. Kilbourn Manuf. Co., 1 Abb. U. S. 158 ; 8. c. 1 Biss. 546. But in Escanaba Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. Rep. 185, it was decided that limitations on legislative power im- posed by the ordinance ceased to have effect within a State upon its admission to the Union, except as the State had voluntarily adopted them. See Sands v. Manistee River Imp. Co., 123 U. S. 288, 8 Sup. Ct. Rep. 113; Higgins v. Farmers' Ins. Co., 60 Iowa, 50, 14 N. W. 118, and also the early cases of La Plaisance Bay Harbor Co. v. Monroe, Walk. Ch. 155, and Depew v. Trustees, 5 Ind. 8 ; and with reference to the enabling acts of Oregon, Louisiana, and California, in Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. Rep. 811 ; Hamilton v. Vicksburg, &c. R. R. Co., 119 U. S. 280, 7 Sup. Ct. Rep. 206; Cardwell v. Ameri- can Bridge Co., 113 U. S. 205, 5 Sup. Ct. Rep. 423; People v. Potrero, &c. R. R. Co., 67 Cal. 166, 7 Pac. 445. And the provision that the rivers shall be forever free refers not to phylical obstructions, but to the imposition of duties for the use of the navigation, and any discrimi- nation against citizens of other States. Escanaba Co. v. Chicago, supra : ; Huse v. Glover, 119 U. S. 543, and cases last cited. But a State may charge tolls for the use of improvements it has made in its navi- gable rivers. Huse v. Glover; Sands v. Manistee River Imp. Co., supra ; Palmer v. Com'rs, 3 McLean, 226; Spooner v. McConnell, 1 McLean, 337. See also, post, 863, 864. In some of the States formed out of the territory acquired by the United States from foreign powers, traces will be found of the laws existing before the change of government. Louisiana has a code pecu- liar to itself, based upon the civil law. Much of Mexican law, and especially as regards lands and land titles, is retained in the systems of Texas and California. In Michigan, when the acts of Parlia- ment were repealed, it was also deemed important to repeal all laws derived from France, through the connection with the Canadian provinces, includingtheCWume de Paris, or ancient French common law. In the mining States and Territories a peculiar species of common law, relating to mining rights and titles, has sprung up, having its origin among the miners, but recognized and enforced by the courts. Regarding the canon and ecclesiastical law, and their force in this country, see Crump c. Morgan, 3 Ired. Eq. 91 ; Le Bar- ron v. Le Barron, 35 Vt. 365. That con- stitutions are supposed to be framed in reference to existing institutions, see Pope v. Phifer, 3 Heisk. 686. A change in a constitution cannot retroact upon legis- lation so as to enlarge its scope. Dewar v. People, 40 Mich. 401. See Dullam v. Willson, 53 Mich. 392, 19 N. W. 112. 1 It is worthy of note that the first well-authenticated case in which a legis- lative act was held void for incompati- bility with the constitution of the State, was decided under one of these charters. It was that of Trevett v. Weeden, decided in Rhode Island in 1786. See Arnold's History of Rhode Island, Vol. II. c. 24. Mr. Brinton Coxe, in his book on Judicial Power and Constitutional Legislation, makes much use of this case, and refers to others decided near the same time. Mr. Gouveneur Morris, in an address to the Pennsylvania Assembly in 1785, speaks of a law passed in New Jersey having been declared unconstitutional and void, and is supposed to have referred to the unreported case of Holmes v. 56 CONSTITUTIONAL LIMITATIONS. [CH. III. New States have since, from time to time, formed constitutions, either regularly in pursuance of enabling acts passed by Congress, or irregularly by the spontaneous action of the people, or under the direction of the legislative or executive authority of the Terri- tory to which the State succeeded. Where irregularities existed, they must be regarded as having been cured by the subsequent admission of the State into the Union by Congress; and there were not wanting in the case of some States plausible reasons for insisting that such admission had become a matter of right, and that the necessity for an enabling act by Congress was dispensed with by the previous stipulations of the national government in acquiring the territory from which such States were formed. 1 Some of these constitutions pointed out the mode for their own modification; others were silent on that subject; but it has been assumed that in such cases the power to originate proceedings for that purpose rested with the legislature of the State, as the de- partment most nearly representing its general sovereignty; and this is doubtless the correct view to take of this subject. 2 The theory of our political system is that the ultimate sover- eignty is in the people, from whom springs all legitimate author- ity. 3 The people of the Union created a national constitution, and conferred upon it-powers of sovereignty over certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well ; and neither the officers of the State, nor the whole people as an aggregate body, are at lib- erty to take action in opposition to this fundamental law. But in Wallow, which Mr. Coxe thought must Bank, 20 Ohio, 283. The debates in the have been decided in 1786 or 1787, but Senate of the United States on the admis- which President Scott of Rutger's College, sion of Michigan to the Union go fully who has examined the original files and into this question. See Benton's Abridg- records, informs us was decided in 1780. ment of Congressional Debates, Vol. The next reported case in which a like XIII. pp. 69-72. And as to the right result was reached was Bayard v. Single- of the people of a Territory to originate ton, to be found in Martin, N. C. Rep. measures looking to an application for p. 48. admission to the Union, see Opinions of 1 This was the claim made on behalf Attorneys-General, Vol. II. p. 726. of Michigan ; it being insisted that the 2 gee Jameson on Constitutional Con- citizens, under the provisions of the ordi- ventions, c. 8. nance of 1787, whenever the Territory ac- 8 McLean, J., in Spooner v. McCon- quired the requisite population, had an nell, 1 McLean, 347; Waite, Ch. J., in absolute right to form a constitution and Minor v. Happersett, 21 Wall. 162, 172 ; be admitted to the Union under it. See Campbell's Case, 2 Bland Ch. 209, 20 Scott '. Detroit Young Men's Society's Am. Dec. 360; Reynolds v. Baker, 6 Cold. Lessee, 1 Doug. (Mich.) 119, and the con- 221 ; Potter's Dwarris on Stat. c. 1. t-ary opinion in Myers v. Manhattan CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 57 every State, although all persons are under the protection of the government, and obliged to conform their action to its laws, there are always some who are altogether excluded from participation in the government, and are compelled to submit to be ruled by an authority in the creation of which they have no choice. The political maxim, that government rests upon the consent of the governed, appears, therefore, to be practically subject to many exceptions; and when we say the sovereignty of the State is vested in the people, the question very naturally presents itself, What are we to understand by The People as used in this connection? What should be the correct rule upon this subject, it does not fall within our province to consider. Upon this men will theorize ; but the practical question precedes the formation of the Constitu- tion and is addressed to the people themselves. As a practical fact the sovereignty is vested in those persons who are permitted by the constitution of the State to exercise the elective franchise. 1 Such persons may have been designated by description in the en- abling act of Congress permitting the formation of the constitu- tion, if any such there were, or the convention which framed the constitution may have determined the qualifications of electors without external dictation. In either case, however, it was essen- tial to subsequent good order and contentment with the govern- ment, that those classes in general should be admitted to a voice in its administration, whose exclusion on the ground of want of capacity or of moral fitness could not reasonably and to the general satisfaction be defended. Certain classes have been almost universally excluded, the slave, because he is assumed to be wanting alike in the intelli- gence and the freedom of will essential to the proper exercise of the right; the woman, from mixed motives, but mainly, perhaps, because, in the natural relation of marriage, she was supposed to be under the influence of her husband, and, where the common law prevailed, actually was in a condition of dependence upon and subjection to him; 2 the infant, for reasons similar to those which exclude the slave; the idiot, the lunatic, and the felon, on obvious grounds ; and sometimes other classes for whose exclusion it is difficult to assign reasons so generally satisfactory. The theory in these cases we take to be that classes are ex- cluded because they lack either the intelligence, the virtue, or the 1 "The people, for political purposes, 2 Some reference is made to the rea- must he considered as synonymous with sons for the exclusion in the opinions in qualified voters." Blair v. Ridgely, 41 Bradwell v. State, 16 Wall. 130, and Mo. 63. Minor v. Happersett, 21 Wall. 162. 58 CONSTITUTIONAL LIMITATIONS. [CH. III. liberty of action essential to the proper exercise of the elective franchise. But the rule by which the presence or absence of these qualifications is to be determined, it is not easy to establish on grounds the reason and propriety of which shall be accepted by all. It must be one that is definite and easy of application, and it must be made permanent, or an accidental majority may at any time change it, so as to usurp all power to themselves. But to be definite and easy of application, it must also be arbitrary. The infant of tender years is wanting in competency, but he is daily acquiring it, and a period is fixed at which he shall conclusively be presumed to possess what is requisite. The alien may know nothing of our political system and laws, and he is excluded until he has been domiciled in the country for a period judged to be sufficiently long to make him familiar with its institutions; races are sometimes excluded arbitrarily ; and at times in some of the States the possession of a certain amount of property, or the ca- pacity to read, seems to have been regarded as essential to satis- factory proof of sufficient freedom of action and intelligence. 1 Whatever rule is once established must remain fixed until those who by means of it have the power of the State put into their hands see fit to invite others to participate with them in its exercise. Any attempt of the excluded classes to assert their right to a share in the government, otherwise than by operating upon the public opinion of those who possess the right of suffrage, would be regarded as an attempt at revolution, to be put down by the strong arm of the government of the State, assisted, if need be, by the military power of the Union. 2 In regard to the formation and amendment of State constitu- tions, the following appear to be settled principles of American constitutional law : I. The people of the several Territories may form for them- selves State constitutions whenever enabling acts for that purpose are passed by Congress, but only in the manner allowed by such enabling acts, and through the action of such persons as the en- 1 State v. Woodruff, 2 Day, 604 ; Cat- utes, referring to the people of a muni- lin v. Smith, 2 S. & R. 267 ; Opinions cipality the question of voting aid to of Judges, 18 Pick. 675. See Mr. Ban- internal improvements, have confined croft's synopsis of the first constitutions the right of voting on the question to of the original States, in his History of taxpayers. the American Revolution, c. 6. For 2 The case of Rhode Island and the some local elections it is quite common "Dorr Rebellion," so popularly known, still to require property qualification or will be fresh in the minds of all. For the payment of taxes in the voter; but a discussion of some of the legal as- statutes of this description are generally pects of the case, see Luther r. Borden, construed liberally. See Crawford v. 7 How. 1. Wilson, 4 Barb. 604. Many special stat- CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 59 abling acts shall clothe with the elective franchise to that end. If the people of a Territory shall, of their own motion, without such enabling act, meet in convention, frame and adopt a consti- tution, and demand admission to the Union under it, such action does not entitle them, as matter of right, to be recognized as a State; but the power that can admit can also refuse, and the territorial status must be continued until Congress shall be satis- fied to suffer the Territory to become a State. There are always in these cases questions of policy as well as of constitutional law to be determined by the Congress before admission becomes a matter of right, whether the constitution formed is republican; whether suitable and proper State boundaries have been fixed upon; whether the population is sufficient; whether the proper qualifications for the exercise of the elective franchise have been agreed to; whether any inveterate evil exists in the Territory which is now subject to control, but which might be perpetuated under a State government, these and the like questions, in which the whole country is interested, cannot be finally solved by the people of the Territory for themselves, but the final deci- sion must rest with Congress, and the .judgment must be favorable before admission can be claimed or expected. 1 II. In the original States, and all others subsequently admitted to the Union, the power to amend or revise their constitutions resides in the great body of the people as an organized body poli- tic, who, being vested with ultimate sovereignty, and the source of all State authority, have power to control and alter at will the law which they have made. But the people, in the legal sense, must be understood to be those who, by the existing constitution, are clothed with political rights, and who, while that instrument remains, will be the sole organs through which the will of the body politic can be expressed. 2 III. But the will of the people to this end can only be ex- pressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought, or by an act of the legis- lative department of the State, which alone would be author- 1 When a constitution has been such changes and additions, and it is ad- adopted by the people of a Territory, mitted, the changes become a part of the preparatory to admission as a State, and constitution, and binding as such, al- Congress prescribes certain changes and though not submitted to the people for additions to be adopted by the legisla- approval. Brittle v. People, 2 Neb. 198 ; ture as part of the constitution, and de- Secombe v. Kittelson, 29 Minn. 665, 12 clares such changes and additions to be N. W. 619. fundamental conditions of admission of 2 Luther v. Borden, 7 How. 1 j Wells the State, and the legislature accepts v. Bain, 75 Penn. St. 39. 60 CONSTITUTIONAL LIMITATIONS. [CH. III. ized to speak for the people upon this subject, and to point out a mode for the expression of their will in the absence of any pro- vision for amendment or revision contained in the constitution itself. 1 1 Opinions of Judges, 6 Gush. 673. The first constitution of New York contained no provision for its own amendment, and Mr. Hammond, in his Political History of New York, Vol. I. c. 26, gives a very interesting account of the controversy before the legislature and in the council of revision as to the power of the legisla- ture to call a convention for revision, and as to the mode of submitting its work to the people. In Collier v. Frierson, 24 Ala. 100, it appeared that the legislature had proposed eight different amendments to be submitted to the people at the same time; the people had approved them, and all the requisite proceedings to make them a part of the constitution had been had, except that in the subsequent legislature the resolution for their ratifi- cation had, by mistake, omitted to recite one of them. On the question whether this one had been adopted, we quote from the opinion of the court : " The constitu- tion can be amended in but two ways : either by the people who originally framed it, or in the mode prescribed by the instrument itself. . . . We entertain no doubt that to change the constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this prop- osition. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain req- uisitions are to be observed, before a change can be effected. But to what purpose are those acts required or those requisitions enjoined, if the legislature or any department of the government can dispense with them ? To do so would be to violate the instrument which they are Bworn to support, and every principle of public law and sound constitutional pol- icy requires the courts to pronounce against any amendment which is not shown to have been made in accordance with the rules prescribed by the funda- mental law." See also State v. McBride, 4 Mo. 803; State v. Tufly, 19 Nev. 391, 12 Pac. 835; In re Const. Convention, 14 R. I. 649; Koehler v. Hill, 00 Iowa, 543, 14 N. W. 738, 15 N. W. 609. In the last case it is held that where a proposed amendment must be entered at length upon the journal, neither the enrolled resolu- tion embodying it nor parol evidence can be received to contradict the journal ; nor are the courts debarred from as- certaining the truth by the fact that a second general assembly passed the amendment as enrolled. But if the proposition is recorded in the Senate journal and amended in the House and the amendment is then recorded in the Senate, it is not a valid objection that the whole proposition is not recorded in one place in the Senate journal. In re Senate File, 25 Neb. 864, 41 N. W. Rep. 981. It is enough if the journal entry is by reference to the title. Thomason v. Ruggles, 69 Cal. 465, 11 Pac. 20. Where the constitution provided that amend- ments should be proposed by one general assembly, and approved and submitted to popular vote by a second, and seventeen amendments were thus approved together, and the second general assembly passed upon and submitted eight by one bill and nine by another, the submission was held sufficient and valid. Trustees of Univer- sity v Mclver, 72 N. C. 76. Several propositions which in effect are but one amendment may be submitted to the peo- ple as one amendment. State v. Timme, 54 Wis. 318, 11 N. W. 785. A high license amendment and a prohibitory amendment may be submitted at one time. In re Senate File, supra. An amendment be- comes effective when the votes are can- vassed. The Governor need not make a proclamation. Sewall v. State, 15 Tex. App 56; Wilson v. State, id. 150. A proposed amendment which has duly passed the legislature does not in Penn- sylvania require to be passed upon by the Governor before it can be submitted to the people. Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L. R, A. 668 ; State r. Dahl, 6 N. D. 81, 68 N. W. 418, 84 L. R. A. 97. CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 61 IV. In accordance with universal practice, and from the very necessity of the case, amendments to an existing constitution, or entire revisions of it, must be prepared and matured by some body of representatives chosen for the purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained, except by ask- ing it upon the single point of assent or disapproval. But no body of representatives, unless specially clothed with power for that purpose by the people when choosing them, can rightfully take definitive action upon amendments or revisions; they must submit the result of their deliberations to the people who alone I are competent to exercise the powers of sovereignty in framing / the fundamental law for ratification or rejection. The consti- f tutional convention is the representative of sovereignty only in a very qualified sense, and for the specific purpose, and with the restricted authority to put in proper form the questions of amend- ment upon which the people are to pass; but the changes in the fundamental law of the State must be enacted by the people themselves. 1 \ Whether or not a proposed amendment has been duly adopted is a question for the courts, and where the Governor lias under statute appointed a commission to deter- mine the result of the popular vote upon the proposed amendment, the proceedings of such commission may be reviewed by certiorari, notwithstanding the Governor's proclamation that the amendment has been duly adopted. State v. Wurts, 63 N. J. L. 289, 43 All. 744, 45 L. R. A. 251. In voting on a constitutional amendment voters exercise a legislative function and courts cannot enjoin the Secretary of State from publishing notice of the elec- tion even though the amendment, if adopted, may be invalid. People v. Mills, Col. , 70 Pac. 322 (June 30, 1902 ).~] 1 See, upon this subject, Jameson on the Constitutional Convention, 41 5-418, and 479-520. This work is so complete and satisfactory in its treatment of the general subject as to leave little to be said by one who shall afterwards attempt to cover the same ground. Where a convention to frame amendments to the constitution is sitting under a legislative act from which all its authority is de- rived, the submission of its labors to a vote of the people in a manner different from that prescribed by the act is nuga- tory. Wells v. Bain, 75 Penn. St. 39. Such a convention has no inherent rights ; it has delegated powers only, and must keep within them. Woods's Appeal, 75 Penn. St. 59. Compare Loomis v. Jack- son, 6 W. Va. 613, 708. The Supreme Court of Missouri has expressed the opinion that it was competent. for a con- vention to put a new constitution in force without submitting it to the people. State v. Neal, 42 Mo. 119. But this was obiter. But if, after being accepted by the people, the convention modifies it and promulgates it as modified, and the con- stitution as promulgated is recognized as valid by the executive and legislative branches of the government, the modifi- cations must be deemed valid. Miller v. Johnson, 92 Ky. 589, 18 S. W. 522, 15 L. R. A. 524.] Where proposed amendments are required to be submitted to the people, and approved by a majority vote, it is a mooted question whether a majority of those voting thereon is sufficient, when it appears that they do not constitute a majority of all who voted at the same election. See State v. Swift, 69 Ind. 505; and cases cited, post, 892-894. [That pub- 62 CONSTITUTIONAL LIMITATIONS. [CH. III. V. The power of the people to amend or revise their constitu- tions is limited by the Constitution of the United States in the following particulars : 1. It must not abolish the republican form of government, since such act would be revolutionary in its character, and would call for and demand direct intervention on the part of the gov- ernment of the United States. 1 2. It must not provide for titles of nobility, or assume to vio- late the obligation of any contract, or attaint persons of crime, or provide ex post facto for the punishment of acts by the courts which were innocent when committed, or contain any other provision which would, in effect, amount to the exercise of any power expressly or impliedly prohibited to the States by the Constitution of the Union. For while such provisions would not call for the direct and forcible intervention of the government of the Union, it would be the duty of the courts, both State and national, to refuse to enforce them, and to declare them altogether void, as much when enacted by the people in their primary capacity as makers of the fundamental law, as when enacted in the form of statutes, through the delegated power of their legislatures. 2 VI. Subject to the foregoing principles and limitations, each State must judge for itself what provisions shall be inserted in its constitution; how the powers of government shall be apportioned in order to their proper exercise ; what protection shall be thrown around the person or property of the citizen; and to what extent private rights shall be required to yield to the general good. 3 lication of proposed amendments with the Co. v Louisiana Light Co., 115 U. S. 650, statutes adopted at same session of legis- 6 Sup. Ct. Rep. 252 ; Fisk v. Jefferson lature as that in which the amendments Police Jury, 116 U. S. 131, 6 Sup. Ct. were proposed is a sufficient publication Rep. 329 ; fJBier v. McGehee, 148 U. S. if made a sufficiently long time before 137, 13 Sup. Ct. Rep. 580.] The fact that election, see State v. Grey, 21 Nev. 378, the constitution containing the obnoxious 32 Pac. 190, 19 L. R. A. 134.] provision was submitted to Congress, and 1 Const, of U. S. art. 4, 4 ; Federal- the State admitted to full rights in the ist, No. 43. Union under it, cannot make such provi- 2 Cummings v. Missouri, 4 Wall 277 ; sion valid. Gunn v. Barry, 15 Wall. 610. Jefferson Branch Bank v. Skelly, 1 Black, 8 Matter of the Reciprocity Bank, 22 436; State v. Keith, 63 N. C. 140; Jac- N. Y. 9 ; McMullen w. Hodge, 6 Texas, oway v. Denton, 25 Ark. 525; Union 34; Penn v. Tollison, 26 Ark. 545; Mat- Bank v. State, 9 Yerg. 490; Girdner v. ter of Oliver Lee & Co.'s Bank, 21 N. Y. Stephens, 1 Heisk. 280 ; Lawson v. Jef- 9. In the case last cited, Denio, J., says : fries, 47 Miss. 686, 12 Am. Rep. 342 "The [constitutional] convention was not Penn v. Tollison, 26 Ark. 545; Dodge obliged, like the legislative bodies, to look v. Woolsey, 18 How. 331 ; Pacific R. R. carefully to the preservation of vested Co. v. Maguire, 20 Wall. 36; Railroad rights. It was competent to deal, subject Co. v. McClure, 10 Wall. 511 ; White v. to ratification by the people and to the Hart, 13 Wall. 646; New Orleans Gas Constitution of the Federal government, CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 63 And the courts of the State, still more the courts of the Union, would be precluded from inquiring into the justice of their action, or questioning its validity, because of any supposed conflict with fundamental rules of right or of government, unless they should be able to show collision at some point between the instrument thus formed and that paramount law which constitutes, in regard to the subjects it covers, the fundamental rule of action through- out the whole United States. 1 How far the constitution of a State shall descend into the par- ticulars of government, is a question of policy addressed to the with all private and social rights, and with all the existing laws and institutions of the State. If the convention had so willed, and the people had concurred, all former charters and grants might have been annihilated. When, therefore, we are seeking for the true construction of a constitutional provision, we are constantly to bear in mind that its authors were not executing a delegated authority, limited by other constitutional restraints, but are to look upon them as the founders of a State, intent only upon establishing such principles as seemed best calculated to produce good government and promote the public happiness, at the expense of any and all existing institutions which might stand in their way." 1 All the State constitutions now con- tain within themselves provisions for their amendment. Some require the question of calling a convention to re- vise the constitution to be submitted to the people at stated periods ; others leave it to the legislature to call a con- vention, or to submit to the people the question of calling one ; while the major part allow the legislature to mature spe- cific amendments to be submitted to the people separately, and these become a part of the constitution if adopted by the requisite vote. When the late rebellion had been put down by the military forces of the United States, and the State governments which constituted a part of the disloyal system had been displaced, serious questions were raised as to the proper steps to be taken in order to restore the States to their harmonious relations to the Union. These questions, and the controversy over them, constituted an important part of the history of our country during the administration of President Johnson; but as it is the hope and trust of our people that the occasion for discussing such questions will never arise again, we do not occupy space with them in this work. It suffices for the present to say, that Congress claimed, insisted upon, and en- forced the right to prescribe the steps to be taken and the conditions to be ob- served in order to restore these States to their former positions in the Union, and the right also to determine when the pre- scribed conditions had been complied with, so as to entitle them to representa- tion in Congress. There is some discus- sion of the general subject in Texas v. White, 7 Wall. 700. And see Gunn v. Barry, 15 Wall. 610. When a constitution has been re- garded by the people of a State as valid, and it has never been adjudged illegal by the courts, a Federal circuit court will not question its legal adoption. Smith v. Good, 34 Fed. Rep. 204. It has been decided in some cases that a constitution is to have effect from the time of its adoption by the people, and not from the time of the admission of the State into the Union by Congress. Scott v. Young Men's Society's Lessee, 1 Doug. (Mich.) 119; Campbell u. Fields, 35 Texas, 751. The Texas reconstruction consti- tution became operative before the State was admitted to representation in Con- gress. Peak v. Swindle, 68 Texas, 242, 4 S. W. 478. An amendment to the Minnesota original constitution adopted before formal admission of the State is valid. Any irregularity is healed by the admission, and the subsequent recogni- tion of the validity of the amendment by the State. Secombe v. Kittelson, 29 M1nn. 555, 12 N. W. 519. 64 CONSTITUTIONAL LIMITATIONS. [Gil. III. convention which forms it. Certain things are to be looked for in all these instruments ; though even as to these there is great variety, not only of substance, but also in the minuteness of their provisions to meet particular cases. I. We are to expect a general framework of government to be designed, under which the sovereignty of the people is to be exer- cised by representatives chosen for the purpose, in such manner as the instrument provides, and with such reservations as it makes. II. Generally the qualifications for the right of suffrage will be declared, as well as the conditions under which it shall be exercised. III. The usual checks and balances of republican government, in which consists its chief excellence, will be retained. The most important of these are the separate departments for the exercise of legislative, executive, and judicial power; (a) and these are to be kept as distinct and separate as possible, except in so far as the action of one is made to constitute a restraint upon the action of the others, to keep them within proper bounds, and to prevent hasty and improvident action. Upon legislative action there is, first, the check of the executive, who will gener- ally be clothed with a qualified veto power, and who may refuse to execute laws deemed unconstitutional ; and, second, the (a) [^Authority in one department of government to interfere with another will always be strictly construed. Where the constitution provides for sessions of the legislature to be held at the State capitol, " except in case of war, insurrection or pestilence, when it may by proclamation of the governor assemble for the time being elsewhere," it does not empower the governor to adjourn the Houses after they have convened, even though he declares a state of insurrection to exist ; neither can he under his power to adjourn the legislature, in case of disagreement between the two Houses in regard to their adjournment, adjourn them to meet at a stated time at an- other place when there has been no disagreement between the two Houses. Taylor v. Beckham, Ky. , 49 L. R. A. 258, 56 S. VV. 177. See this case in Supreme Court of the United States, where the writ of error after discussion was dismissed on the ground that no deprivation of rights secured by the fourteenth amendment, without due process, was shown, nor was there any case made of a violation of the guaranty of a republican form of government. Taylor v. Beckham, 178 U. S. 548, 20 Sup. Ct. Rep. 890. Dissenting opinion of Harlan, J., 20 Sup. Ct. Rep. 1009. Where the legislature is empowered to remove judges for cause, but is required to give notice and opportunity to appear, this imports that the cause shall be one per- sonal to the judge, and he cannot be removed merely to cut down expenses. But if his court is one which the legislature is authorized to ordain and establish, the legis- lature may abolish the court, and the judge's office and salary will thereupon cease. McCulley v. State, 102 Tenn. 509, 53 S. W. 134, 46 L. R. A. 567. That all the terri- tory of one judicial district may be distributed among other districts or annexed to one district, and the judge thus deprived of office, see Aikman v. Edwards, 55 Kan. 751, 42 Pac. 366, 30 L. R. A. 149; but this cannot be done where the judge's term of office is fixed by the constitution. State e. Friedley, 135 Ind. 119, 34 N. E. 872, 21 L. R. A. 634. Court will not enjoin any attempted exercise of legislative power by legislature. State v. Thorson, 9 S. D. 149, 68 N. W. 202, 33 L. R. A. 582.3 CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 65 check of the judiciary, who may annul unconstitutional laws, and punish those concerned in enforcing them. Upon judicial action there is the legislative check, which consists in the power to prescribe rules for the courts, and perhaps to restrict their authority; and the executive check, of refusing aid in enforcing any judgments which are believed to be in excess of jurisdiction. Upon executive action the legislature has a power of restraint, corresponding to that which it exercises upon judicial action; and the judiciary may punish executive agents for any action in excess of executive authority. And the legislative department has an important restraint upon both the executive and the judiciary, in the power of impeachment for illegal or oppressive action, or for any failure to perform official duty. The execu- tive, in refusing to execute a legislative enactment, will always do so with the peril of impeachment in view. IV. Local self-government having always been a part of the English and American systems, we shall look for its recognition in any such instrument. And even if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view. 1 V. We shall also expect a declaration of rights for the pro- tection of individuals and minorities. This declaration usually contains the following classes of provisions : 1. Those declaratory of the general principles of republican government; such as, that all freemen, when they form a social compact, are equal, and no man, or set of men, is entitled to exclusive, separate public emoluments or privileges (a) from the 1 Park Commissioners v. Common case is valuable for its historical discus- Council of Detroit, 28 Mich. 228 ; People sion of the principle. v. Albertson, 55 N. Y. 50. fJUnder the The legislature cannot fix the salaries constitution of Georgia it is held that of firemen employed by municipalities, municipalities cannot maintain the prop- although there is no limitation on such osition of absolute local self-government action in the constitution, since this is a and the State legislature may by direct matter of purely local concern. Lexing- enactment control the local police. Amer- ton v. Thompson, Ky. , 68 S. W. icus v. Perry, 114 Ga. 871, 40 S. E. 1004, 477, 57 L. R. A. 775 (May 28, 1902). A 67 L. R. A. 280. It is held in White v. legislature may create a school district Barker, Iowa, , 89 N. W. 204, 57 L. and appoint its officers. Kies v. Lowery, R. A. 244 (Feb. 13. 1902), that the legisla- Mich. , 92 N. W. 289 (Nov. 18, ture could not take from the municipality 1902). For a discussion of the " Right to the management of a municipal water Local Self-Government," see article by supply system. That action to that ef- Mr. Amasa M. Eaton, 13 Harv. L. Rev. feet was invalid for violation of the prin- 441, 670, 638, 14 id. 20, 116J ciple of municipal self-government. This (a) fJThe provision that no corporation shall be granted any special or exclusive privilege or immunity is not violated by an act which allows trustees of an estate to charge the estate any reasonable sum which they may have paid " to a company," authorized by law so to do, for becoming surety upon their bonds. Be Clark, 195 Pa. 6 66 CONSTITUTIONAL LIMITATIONS. [CH. III. community but in consideration of public services ; that absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority; that all power is inherent in the people, and all free govern- ments are founded on their authority, and instituted for their peace, safety, happiness, security, and the protection of prop- erty; that for the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform, or abolish their government in such manner as they may think proper; that all elections shall be free and equal ; that no power of suspending the laws shall be exercised except by the legis- lature or its authority; that standing armies are not to be maintained in time of peace ; that representation shall be in proportion to population ; that the people shall have the right freely to assemble to consult of the common good, to instruct their representatives, and petition for redress of grievances; and the like. 2. Those declaratory of the fundamental rights of the citizen: as that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and pro- tecting property, (a) and pursuing and obtaining safety and 520, 46 Atl. 127, 48 L. R. A. 587. But the privilege of taking oysters in public waters cannot be restricted to taxpayers. Gustafson v. State, 40 Tex. Cr. 67, 45 S W. 717, 48 S. W. 518, 43 L. R. A 615. But labor unions may be granted right to register their trade-marks and labels and have them protected from infringement. Schmalz v. Woolley, 57 N. J. Eq. 303, 41 Atl. 939, 43 L. R. A. 86, 73 Am. St. 637; Perkins v. Heert, 158 N. Y. 306, 53 N. E. 18, 43 L. R. A. 858, 70 Am. St. 483. Sale of ferry franchise to highest bidder is not a grant of special or exclusive privilege, even though the franchise be exclusive, all persons being free to bid. Patterson v. Woll- man, 5 N. D. 608, 67 N. VV. 1040, 33 L. R. A. 536; Nixon v. Reid, 8 S. D. 507, 67 N. W. 67, 32 L. R. A. 315. Law making an exception from civil service regula- tions in case of veteran soldiers, and compelling their appointment to vacancies upon their sworn statements of qualification, is void. Brown r. Russell, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. 357. Statute authorizing the levy of an arbitrary tax upon ordinary and lawful occupations is void. State v. Conlon, 65 Conn. 478, 33 Atl. 519. 31 L R. A. 55, 48 Am. St. 227. Statute granting to trade- unions copyright in their trade-marks is valid. State v. Bishop, 128 Mo. 373, 31 S. W. 9, 29 L. R. A. 200, 49 Am. St. 569, and see note hereto in L. R. A. Statute specifying number of deputies to be allowed county officers in certain counties, but leaving it to discretion of county court in other counties is void. Weaver v. Davidson County, 104 Tenn. 315, 59 S. W. 1105.] (a) An act which makes it unlawful to hire any laborer to work more than eight hours per day in any mine or smelter is void. Re Morgan, 26 Colo. 415, 58 Pac. 1071, 47 L. R. A. 52, 77 Am. St. 269. But a State may require that its contractors and builders shall employ their laborers only eight hours per day. Re Dalton, 61 Kan. 257, 59 Pac. 336, 47 L. R. A. 380. The right to liberty does not give to insur- ance corporations the right to contract among themselves to maintain stipulated rates. State v. Firemen's Fund Ins Co., 152 Mo. 1, 52 S. W. 595, 45 L. R. A. 363. Right to engage in ticket brokerage cannot be restricted to persons designated by CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 67 happiness; that the right to property is before and higher than any constitutional sanction ; that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed; 1 that every man may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that every man may bear arms for the defence of himself and of the State; that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, nor shall soldiers be quartered upon citizens in time of peace; and the like. 3. Those declaratory of the principles which ensure to the citizen an impartial trial, and protect him in his life, liberty, and property against the arbitrary action of those in authority: as that no bill of attainder or ex post facto law shall be passed ; that the right to trial by jury shall be preserved ; that excessive bail shall not be required, nor excessive punishments inflicted; that no person shall be subject to be twice put in jeopardy for the same offence, nor be compelled in any criminal case to be a witness against himself, (a) nor be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without compensation; and the like. (6) 1 Hale v. Everett, 63 N. H. 9; Board of Education v. Minor, 23 Ohio St. 211. transportation companies. People v. Warden, &c., 157 N. T. 116, 51 N. E. 1006, 43 L. R. A. 264, 68 Am. St. 763. But see, in this connection, cases cited in note 3, page 886, post. No man can be held to answer for the act of another over whom he has no control or authority, Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237,29 L. R. A. 808, 50 Am. St. 801, declaring invalid an act making the proprietor of a mine re- sponsible for the acts and neglects of a licensed mine foreman whom he was by statute compelled to employ. Right of employer to discharge employees joining or refusing to withdraw from labor unions cannot be taken from him. State v. Julow, 129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 50 Am. St. 443, a statute fixing a license fee of $1,000 for persons engaged in hiring laborers in one State to te employed in another is invalid. State v. Moore, 113 N. C. 697, 18 S. E. 342.] (a) fJSee latter part of note 1, page 442.] (6) fJTlie provision that courts of justice shall be open to every person and that right and justice shall be administered without denial, sale, or delay is violated by a statute which allows an attorney's fee to successful lien claimants but not to success- ful defendants. Davidson v. Jennings, 27 Colo. 187, 60 Pac. 354, 48 L. R. A. 340, 83 Am. St. 49. Such fees are allowed in Florida. Dell v. Marvin, 41 Fla. 221,26 So. 188, 45 L. R. A. 201, 79 Am. St. 171. Further proceedings in an action may be stayed until costs of an appeal are paid. Knee v. Baltimore City Pass. Ry. Co., 87 Md. 623, 40 Atl. 890, 42 L. R. A. 363. A person is not deprived of property or par- ticular services without compensation by a statute which compels him to appear before the court and testify in criminal cases, and deprives him of all right to fees therefor or makes such right contingent upon conviction of accused. State v. Henley, 98 Tenn. 665, 41 S. W. 352, 39 L. R. A. 126. And an expert witness can not claim higher fees than other witnesses, nor can he refuse to testify until such 68 CONSTITUTIONAL LIMITATIONS. [CH. III. Other clauses are sometimes added declaratory of the princi- ples of morality and virtue; and it is also sometimes expressly declared what indeed is implied without the declaration that everything in the declaration of rights contained is excepted out of the general powers of government, and all laws contrary thereto shall be void. Many other things are commonly found in these charters of government; 1 but since, while they continue in force, they are to remain absolute and unchangeable rules of action and deci- sion, it is obvious that they should not be made to embrace within their iron grasp those subjects in regard to which the policy or interest of the State or of its people may vary from time to time, and which are therefore more properly left to the control of the legislature, which can more easily and speedily make the required changes. In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed. " What is a constitution, and what are its objects? It is easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights ; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence, of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but the frame- 1 " This, then, is the office of a written agents by the people ; to ascertain, limit, ([free] constitution: to delegate to vari- and define the extent of the authority ous public functionaries such of the thus delegated ; and to reserve to the powers of government as the people do people their sovereignty over all things not intend to exercise for themselves ; to not expressly committed to their repre- classify these powers, according to their sentatives." E. P. Hurlbut in Human nature, and to commit them to separate Rights and their Political Guaranties, agents ; to provide for the choice of these fees are secured to him. Dixon v. People, 168 111. 179, 48 N. E. 108, 39 L. R. A. 116 ; upon right of State to require services of witnesses without compensation, see note to Dixon v. People, above, in L. R. A. Moderate court fees may be exacted of parties to legal proceedings. Northern Counties Invt. Trust v. Sears, 30 Or. 388, 41 Pac. 931, 35 L. R. A. 188. Repeal of statute giving right of action against county for injury resulting from defective bridge does not violate a provision that every man shall have remedy by due course of law for all injuries done him. Templeton v. Linn. Co., 22 Oreg. 313, 29 Pac. 795, 15 L. R. A. 730. Proceedings in a second action in ejectment may be stayed until costs in the first are paid. Shear v. Box, 92 Ala. 596, 8 So. 792, 11 L. R. A. 620, and note.] CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 69 work of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought. There is nothing primitive in it: it is all derived from a known source. Tt presupposes an organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny. A written constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent and incapable of definition." J 1 Hamilton v. St. Louis County Court, 15 Mo. 13, per Bates, arguendo. And see Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9; Lee v. State, 26 Ark. 265-6. " Written constitutions sanctify and con- firm great principles, but the latter are prior in existence to the former." 2 Webster's Works, 392. See also 1 Bl. Com. 124 ; 2 Story, Life and Letters, 278 ; Sidney on Government, c. 3, sees. 27 and 33. " If this charter of State government which we call a constitution were all there was of constitutional command ; if the usages, the customs, the maxims that have sprung from the habits of life, modes of thought, methods of trying facts by the neighborhood, and mutual responsibility in neighborhood interests ; the precepts that have come to us from the revolutions which overturned tyran- nies ; the sentiments of manly independ- ence and self-control which impelled oar ancestors to summon the local community to redress local evils, instead of relying upon king or legislature at a distance to do so, if a recognition of all these were to be stricken from the body of our con- stitutional law, a lifeless skeleton might remain, but the living spirit; that which gives it force and attraction, which makes it valuable and draws to it the affections of the people ; that which distinguishes it from the numberless constitutions, so called, which in Europe have been set up and thrown down within the last hundred years, many of which, in their expres- sions, seemed equally fair and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone can give, this living and breathing spirit which supplies the interpretation of the words of the written charter would be utterly lost and gone." People v. Hurlbut, 24 Mich. 44, 107. 70 CONSTITUTIONAL LIMITATIONS. [CH. IV. CHAPTER IV. OF THE CONSTRUCTION OP STATE CONSTITUTIONS. THE deficiencies of human language are such that, if written instruments were always prepared carefully by persons skilled in the use of words, we should still expect to find their meaning often drawn in question, or at least to meet with difficulties in their practical application. But when draughtsmen are careless or incompetent, these difficulties are greatly increased ; and they multiply rapidly when the instruments are to be applied, not only to the subjects directly within the contemplation of those who framed them, but also to a great variety of new circumstances which could not have been anticipated, but which must never- theless be governed by the general rules which the instruments establish. Moreover, the different points of view from which dif- ferent individuals regard these instruments incline them to differ- ent views of the instruments themselves. All these circumstances tend to give to the subjects of interpretation and construction great prominence in the practical administration of the law, and to suggest questions which often are of no little difficulty. Interpretation differs from construction in that the former is the art of finding out the true sense of any form of words ; that is, the sense which their author intended to convey ; and of enabling others to derive from them the same idea which the author intended to convey. Construction, on the other hand, is the drawing of conclusions, respecting subjects that lie beyond the direct expressions of the text, from elements known from and given in the text ; conclusions which are in the spirit, though not within the letter of the text. Interpretation only takes place if the text conveys some meaning or other. But construction is resorted to when, in comparing two different writings of the same indi- vidual, or two different enactments by the same legislative body, there is found contradiction where there was evidently no inten- tion of such contradiction one of another, or where it happens that part of a writing or declaration contradicts the rest. When this is the case, and the nature of the document or declaration, or whatever else it may be, is such as not to allow us to consider the whole as being invalidated by a partial or other contradiction, CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 71 then resort must be had to construction ; so, too, if required to act in cases which have not been foreseen by the framers of those rules, by which we are nevertheless obliged, for some binding reason, faithfully to regulate as well as we can our action respect- ing the unforeseen case. 1 In common use, however, the word construction is generally employed in the law in a sense embra- cing all that is properly covered by both when each is used in a sense strictly and technically correct ; and we shall so employ it in the present chapter. From the earliest periods in the history of written law, rules of construction, sometimes based upon sound reason, and seeking the real intent of the instrument, and at other times altogether arbitrary or fanciful, have been laid down by those who have assumed to instruct in the law, or who have been called upon to administer it, by the aid of which the meaning of the instrument was to be resolved. Some of these rules have been applied to particular classes of instruments only ; others are more general in their application, and, so far as they are sound, may be made use of in any case where the meaning of a writing is in dispute. To such of these as seem important in constitutional law we shall refer, and illustrate them by references to reported cases, in which they have been applied. A few preliminary words may not be out of place, upon the questions, who are to apply these rules ; what person, body, or department is to enforce the construction ; and how far a deter- mination, when once made, is to be binding upon other persons, bodies, or departments. We have already seen that we are to expect in every constitu- tion an apportionment of the powers of government. We shall also find certain duties imposed upon the several departments, as well as upon specified officers in each, and we shall likewise dis- cover that the constitution has sought to hedge about their action in various ways, with a view to the protection of individual rights, and the proper separation of duties. And wherever any one is called upon to perform any constitutional duty, or to do any act in respect to which it can be supposed that the constitu- tion has spoken, it is obvious that a question of construction may at once arise, upon which some one must decide before the duty is performed or the act done. From the very nature of the case, 1 Lieber, Legal and Political Hermen- convey ideas." " Construction, in practice, eutics. See Smith on Stat. and Const, determining the meaning and application Construction, 600. Bouvier defines the as to the case in question of the provi- two terms succinctly as follows : " Inter- sions of a constitution, statute, will, or pr?tation, the discovery and representation other instrument, or of an oral agree- of the true meaning of any signs used to ment." Law Diet. 72 CONSTITUTIONAL LIMITATIONS. [CH. IV. this decision must commonly be made by the person, body, or department upon whom the duty is imposed, or from whom the act is required. Let us suppose that the constitution requires of the legislature, that, in establishing municipal corporations, it shall restrict their powers of taxation; and a city charter is proposed which confines the right of taxation to the raising of money for certain specified purposes, but in regard to those purposes leaves 'it unlimited; or which allows to the municipality unlimited choice of purposes, but restricts the rate; or which permits persons to be taxed indefinitely, but limits the taxation of property : in either of these cases the question at once arises, whether the limitation in the charter is such a restriction as the constitution intends. Let us suppose, again, that a board of supervisors is, by the Constitution, authorized to borrow money upon the credit of the county for any county purpose, and that it is asked to issue bonds in order to purchase stock in some railway company which proposes to construct a road across the county ; and the proposition is met with the query, Is this a county purpose, and can the issue of bonds be regarded as a borrowing of money, within the meaning of the people as expressed in the consti- tution? And once again : let us suppose that the governor is empowered to convene the legislature on extraordinary occa- sions, and he is requested to do so in order to provide for a class of private claims whose holders are urgent; can this with any propriety be deemed an extraordinary occasion? In these and the like cases our constitutions have provided no tribunal for the specific duty of solving in advance the questions which arise. In a few of the States, indeed, the legislative department has been empowered by the constitution to call upon the courts for their opinion upon the constitutional validity of a proposed law, in order that, if it be adjudged without warrant, the legislature may abstain from enacting it. 1 But those pro- 1 By the constitutions of Maine, New an existing act which the legislature may Hampshire, and Massachusetts, the judges amend. Opinion of Justices, 148 Mass, of the Supreme Court are required, when 623, 21 N. E. Rep. 439. In Florida the called upon by the governor, council, or governor may require an opinion on any either house of the legislature, to give question affecting his executive powers their opinions " upon important questions and duties. A duty with reference to a of law, and upon solemn occasions." In bill before it becomes a law, is not an Rhode Island the governor or either house executive duty, and as to it the judges of the general assembly may call for the cannot advise. Opinion of Justices, 23 opinions of the judges of the Supreme Fla. 297, 6 So. 925. QSo in South Dako- Court upon any question of law. In ta. Re Constitutional Provision, 3 S. D. Massachusetts the justices will not give 548, 54 N. W. 650, 19 L. R. A. 575.] an opinion on the proper construction of lu Missouri, previous to the constitution CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 73 visions are not often to be met with, and judicial decisions, especially upon delicate and difficult questions of constitutional law, can seldom be entirely satisfactory when made, as they commonly will be under such calls, without the benefit of argu- ment at the bar, and of that light upon the questions involved which might be afforded by counsel learned in the law, and interested in giving them a thorough investigation. It follows, therefore, that every department of the government and every official of every department may at any time, when a duty is to be performed, be required to pass upon a question of constitutional construction. 1 Sometimes the case will be such that the decision when made must, from the nature of things, be conclusive and subject to no appeal or review, however erro- neous it may be in the opinion of other departments or other officers; but in other cases the same question may be required to be passed upon again before the duty is completely performed. of 1875, the judges were required to give their opinions " upon important questions of constitutional law, and upon solemn occasions ; " and the Supreme Court held that while the governor determined for himself, whether the occasion was such as to authorize him to call on the judges for their opinion, they must decide for themselves whether the occasion was such as to warrant the governor in mak- ing the call. Opinions of Judges, 49 Mo. 216. By a constitutional amendment of 1885, the Colorado Supreme Court is re- quired to give its opinion upon impor- tant questions upon solemn occasions to the governor or either house of the legis- lature. The intention, it is held, is not "to authorize an ex parte adjudication of individual or corporate rights," nor to exact " a wholesale exposition of all constitutional questions relating to a given subject, in anticipation of the pos- sible introduction or passage of meas- ures bearing upon particular branches of such subject." It appearing that the question was covered by pending litiga- tion, the court refused to answer. In re Irrigation Resolution, 9 Col. 620, 21 Pac. 470. Nor should it give an opinion on provisions which do not affect a pend- ing act. In re Irrigation Resolution,; supra. Questions must affect purely public rights. In re Senate Resolution, No. 65, 12 Col. 466, 21 Pac. 478 ; [Re House Bill, No. 99, 26 Col. 140, 56 Pac. 181; Re Senate Bill, No. 27, 28 Col. 359, 65 Pac. 50.] In Vermont, by statute the governor may require an opinion on questions con- nected with the discharge of his duties; and in Kentucky an opinion has been given without requirement of law on the power of the governor to fill a vacancy on the Supreme Bench. Opinion of Judges, 79 Ky. 621. 1 " It is argued that the legislature cannot give a construction to the consti- tution relative to private rights secured by it. It is true that the legislature, in consequence of their construction of the constitution, cannot make laws repugnant to it. But every department of govern- ment, invested with certain constitutional powers, must, in the first instance, but not exclusively, be the judge of its pow- ers, or it could not act." Parsons, Ch. J., in Kendall v. Inhabitants of Kingston, 5 Mass. 524, 533. The decision of a gov- ernor, having jurisdiction to decide in the first instance whether tax exemp- tion is constitutional, must be obeyed by inferior executive officers. State v. Buchanan, 24 W. Va. 362. But a patent commissioner may not refuse to perform a ministerial act on the ground that the statute requiring it is unconstitutional. United States v. Marble, 3 Mackey, 32. Notwithstanding a void proviso as to an officer's salary, it is his duty to give the act effect. State v. Kelsey, 44 N. J. L. 1. 74 CONSTITUTIONAL LIMITATIONS. [CH. IV. The first of these classes is where, by the constitution, a par- ticular question is plainly addressed to the discretion or judg- ment of some one department or officer, so that the interference of any other department or officer, with a view to the substitution of its own discretion or judgment in the place of that to which the constitution has confided the decision, would be impertinent and intrusive, (a) Under every constitution, cases of this de- scription are to be met with; and, though it will sometimes be found difficult to classify them, there can be no doubt, when the case is properly determined to be one of this character, that the rule must prevail which makes the decision final. We will suppose, again, that the constitution empowers the executive to convene the legislature on extraordinary occasions, and does not in terms authorize the intervention of any one else in determining what is and what is not such an occasion in the constitutional sense; it is obvious that the question is addressed exclusively to the executive judgment, and neither the legislative nor the judicial department can intervene to compel action, if the executive decide against it, or to enjoin action if, in his opinion, the proper occasion has arisen. 1 And again, if, by the 1 Whiteman v. Railroad Co., 2 Hair, second proclamation, revoking the first (Del.) 514, 33 Am. Dec. 411 ; In re State Held, that the power of convening the Census, 9 Col. 642, 21 Pac. Rep. 477; legislature being a discretionary power, fJFarrelly v. Cole, 60 Kan. 356, 56 Pac. it might be recalled before the meeting 492, 44 L. R. A. 464.] In exercising his took place. power to call out the militia in certain It is undoubted that, when a case is exigencies, the President is the exclusive within the legislative discretion, the courts and final judge when the exigency has cannot interfere with its exercise. State arisen. Martin v. Mott, 12 Wheat. 19. v. Hitchcock, 1 Kan. 178; State v. Boone In People v. Parker, 3 Neb. 409, 19 Am. County Court, 50 Mo 317; Patterson v. Rep. 634, it appeared that an officer, Barlow, 60 Pa. St. 64; QKimball v. assuming to act as governor in the ab- Grantsville City, 19 Utah, 368, 57 Pac. 1, sence of the governor from the State, 45 L. R. A 628,] and see cases post, 181. had issued a proclamation convening the The statement of legislative reasons in legislature in extraordinary session. The the preamble of an act will not affect its governor returned previous to the time validity. Lothrop v. Steadman, 42 Conn, named for the meeting, and issued a 583. (a) [[Where the constitution empowers the legislature to determine an election contest for offices of governor and lieutenant-governor, the decision of the legislature in any such contest is not subject to review in the courts. Taylor v. Beckham, Ky. , 49 L. R. A. 258, 56 S. W. 177. See this case in Supreme Court of the United States, 178 U. S. 548, 20 Sup. Ct. Rep. 890; Dissenting opinion of ffarlan, J., 20 Sup. Ct. Rep. 1009. Courts have jurisdiction to review apportionment statutes for abuses of discretion, amounting to violations of the constitution. Carter v. Rice, 135 N. Y. 473, 31 N. E. 921 ; State v. Cunningham. 83 Wis. 90, 51 N. W. 724, 35 Am. St. 27; Giddings v. Secretary of State, 93 Mich. 1, 52 N. W. 914. In the last-mentioned case, the question was expressly determined to be a judicial one. But see Fletcher v. Tuttle, 151 111. 41, 37 N E. 683, 42 Am. St. 220, in which case it was held that a bill, which raised the question of the validity of an apportionment act, filed by an elector for the enforcement of his right to the elective franchise, would not lie since the right involved was a purely political one.] CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 75 constitution, laws are to take effect at a specified time after their passage, unless the legislature for urgent reasons shall otherwise order, we must perceive at once that the legislature alone is competent to pass upon the urgency of the alleged reasons. 1 And to take a judicial instance: If a court is required to give an accused person a trial at the first term after indict- ment, unless good cause be shown for continuance, it is obvious that the question of good cause is one for the court alone to pass upon, and that its judgment when exercised is, and must be from the nature of the case, final. And when in these or any similar case the decision is once made, other departments or other officers, whatever may have been their own opinions, must assume the decision to be correct, and are not at liberty to raise any question concerning it, unless some duty is devolved upon them which presents the same question anew. But there are cases in which the question of construction is equally addressed to two or more departments of the government, and it then becomes important to know whether the decision by one is binding upon the others, or whether each is to act upon its own judgment. Let us suppose once more that the governor, being empowered by the constitution to convene the legislature upon extraordinary occasions, has regarded a particular event as being such an occasion, and has issued his proclamation calling them together with a view to the enactment of some 1 See post, p. 224. In Gillinwater v law makes no provision for the construc- Mississippi & Atlantic Railroad Co., 13 ti< n of canals and turnpike roads, and yet 111. 1, it was urged that a certain restric- they are as much internal improvements tion imposed upon railroad corporations as railroads, and we might as well be by the general railroad law was a viola- asked to extend what we might consider tion of the provision of the constitution the liberal provisions of this law to them, which enjoins it upon the legislature " to because they are embraced in the consti- encourage internal improvements by pass- tutional provision, as to ask us to disre- ing liberal general laws of incorporation gard such provisions of it as we might for that purpose " The court say of this regard as illiberal. The argument pro- provision: "This is a constitutional com- ceeds upon the idea that we should con- mand to the legislature, as obligatory on sider that as done which ought to be done ; it as any other of the provisions of that but that principle has no application here, instrument; Imt it is one which cannot Like laws upon other subjects within be enforced by the courts of justice. It legislative jurisdiction, it is for the courts addresses itself to the legislature alone, to say what the law is, not what it should and it is not for us to say whether it has be." It is clear that courts cannot inter- obeyed the behest in its true spirit, fere with matters of legislative discretion. Whether the provisions of this law are Maloy v. Marietta, 11 Ohio St. 636. As liberal, and tend to encourage internal to self-executing provisions in general, improvements, is matter of opinion, about see post^ p. 119. [The courts have au- which men mny differ; and as we have thority to decide which if either of two no authority to revise legislative action contesting bodies is the State senate, on the subject, it would not become us to Attorney-General v. Rogers, 56 N. J. L. express our views in relation to it. The 480, 29 Atl. 173, 23 L. R. A. 354.] 76 CONSTITUTIONAL LIMITATIONS. [cH. IV. particular legislation which the event seems to call for, and which he specifies in his proclamation. Now, the legislature are to enact laws upon their own view of necessity and expedi- ency ; and they will refuse to pass t-he desired statute if they regard it as unwise or unimportant. But in so doing they indi- rectly review the governor's decision, especially if, in refusing to pass the law, they do so on the ground that the specific event was not one calling for action on their part. In such a case it is clear that, while the decision of the governqr is final so far as to require the legislature to meet, it is not final in any sense that would bind the legislative department to accept and act upon it when they enter upon the performance of their duty in the making of laws. 1 So also there are cases where, after the two houses of the legislature have passed upon the question, their decision is in a certain sense subject to review by the governor. If a bill is introduced the constitutionality of which is disputed, the passage of the bill by the two houses must be regarded as the expression of their judgment that, if approved, it will be a valid law. But if the constitution confers upon the governor a veto power, the same question of constitutional authority will be brought by the bill before him, since it is manifestly his duty to withhold approval from any bill which, in his opinion, the legislature ought not for any reason to pass. And what reason so forcible as that the constitution confers upon them no authority to enact it? In all these and the like cases, each department must act upon its own judgment, and cannot be required to do that which it regards as a violation of the constitution, on the ground solely that another department which, in the course of the discharge of its own duty, was called upon first to act, has reached the conclusion that it will not be violated by the proposed action. But setting aside now those cases to which we have referred, where from the nature of things, and perhaps from explicit terms of the constitution, the judgment of the department or officer acting must be final, we shall find the general rule to be, that whenever action is taken which may become the subject of a suit or proceeding in court, any question of constitutional power or right that was involved in such action will be open for consideration in such suit or proceeding, and that as the courts must finally settle the particular controversy, so also will they finally determine the question of constitutional law. For the constitution of the State is higher in authority than any law, direction, or order made by any body or any officer 1 See Opinions of Judges, 49 Mo. 216. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. assuming to act under it, since such body or officer must exer- cise a delegated authority, and one that must necessarily be subservient to the instrument by which the delegation is made. In any case of conflict the fundamental law must govern, and the act in conflict with it must be treated as of no legal validity. But no mode has yet been devised by which thes"e questions of conflict are to be discussed and settled as abstract questions, and their determination is necessary or practicable only when public or private rights would be affected thereby. They then become the subject of legal controversy ; and legal controversies must be settled by the courts. 1 The courts have thus devolved upon them the duty to pass upon the constitutional validity, sometimes of legislative, and sometimes of executive acts. And as judicial tribunals have authority, not only to judge, but also to enforce their judgments, the result of a decision against the constitutionality of a legislative or executive act will be to render it invalid through the enforcement of the paramount law in the controversy which has raised the question. 2 1 Governor v. Porter, 5 Humph. 165. The legislature cannot by statute define the words of the constitution for the courts. Westinghausen v. People, 44 Mich. 265; Powell v. State, 17 Tex. App. 845. Compare People v. Supervisors of La Salle, 100 111. 495. And see post, 136, note. 2 " When laws conflict in actual cases, they [the courts] must decide which is the superior law, and which must yield ; and as we have seen that, according to our principles, every officer remains an- swerable for what he officially does, a citizen, believing that the law he enforces is incompatible with the superior law, the constitution, simply sues the officer before the proper court as having unlawfully aggrieved him in the particular case. The court, bound to do justice to every one, is bound also to decide this case as a simple case of conflicting laws. The court does not decide directly upon the doings of the legislature. It simply de- cides for the case in hand, whether there actually are conflicting laws, and, if so, which is the higher law that demands obedience, when both may not be obeyed at the same time. As, however, this de- cision becomes the leading decision for all future cases of the same import, until, in- deed, proper and legitimate authority should reverse it, the question of consti- tutionality is virtually decided, and it is decided in a natural, easy, legitimate and safe manner, according to the principle of the supremacy of the law and the depend- ence of justice. It is one of the most in- teresting and important evolutions of the government of law, and one of the great- est protections of the citizen. It may well be called a very jewel of Anglican liberty and one of the best fruits of our political civilization." Lieber, Civil Liberty and Self-Government. " Whenever a law which the judge holds to be unconstitutional is argued in a tribunal of the United States, he may re- fuse to admit it as a rule ; this power is the only one which is peculiar to the American magistrate, but it gives rise to immense political influence. Few laws can escape the searching analysis ; for there are few which are not prejudicial to some private interest or other, and none which may not be brought before a court of justice by the choice of parties, or by the necessity of the case. But from the time that a judge has refused to apply any given law in a case, that law loses a portion of its moral sanction. The persons to whose interest it is prejudicial learn that means exist for evading its authority ; and similar suits are multi- plied until it becomes powerless. One of two alternatives must then be resorted 78 CONSTITUTIONAL LIMITATIONS. [CH. IV. The same conclusion is reached by stating in consecutive order a few familiar maxims of the law. The administration of public justice is referred to the courts. To perform this duty, the first requisite is to ascertain the facts, and the next to determine the law applicable to such facts. The constitution is the fundamental law of the State, in opposition to which any other law, or any direction or order, must be inoperative and void. If, therefore, such other law, direction, or order seems to be applicable to the facts, but on comparison with the funda- mental law the latter is found to be in conflict with it, the court, in declaring what the law of the case is, must necessarily determine its invalidity, and thereby in effect annul it. 1 The right and the power of the courts to do this are so plain, and the duty is so generally we may almost say universally con- ceded, that we should not be justified in wearying the patience of the reader in quoting from the very numerous authorities upon the subject. 2 to, the people must alter the constitu- tion, or the legislature must repeal the law." De Tocqueville, Democracy in America, c. 6. 1 " It is idle to say that the authority of each branch of the government is de- fined and limited by the constitution, if there be not an independent power able and willing to enforce the limitations. Experience proves that the constitution is thoughtlessly but habitually violated ; and the sacrifice of individual rights is too remotely connected with the objects and contests of the masses to attract their attention. From its very position it is apparent that the conservative power is lodged in the judiciary, which, in the ex- ercise of its undoubted rights, is bound to meet any emergency ; else causes would be decided, not only by the legislature, but sometimes without hearing or evi- dence." Per Gibson, Ch. J., in De Chas- tellux v. Fairchild, 15 Pa. St. 18. " Nor will this conclusion, to use the language of one of our most eminent jurists and statesmen, by any means sup- pose a superiority of the judicial to the legislative power. It will only be sup- posing that the power of the people is superior to both ; and that where the will of the legislature, declared in its statutes, stands in opposition to that declared by the people in the constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fun- damental. Neither would we, in doing this, be understood as impugning the honest intentions, or sacred regard to jus- tice, which we most cheerfully accord to the legislature. But to be above error is to possess an entire attribute of the Deity ; and to spurn its correction is to reduce to the same degraded level the most noble and the meanest of his works." Bates v. Kimball, 2 Chip. 77. See Bailey v. Gentry, 1 Mo. 164, 13 Am. Dec. 484. " Without the limitations and restraints usually found in written constitutions, the government could have no elements of permanence and durability ; and the dis- tribution of its powers, and the vesting their exercise in separate departments, would be an idle ceremonv." Brown, J., in People v. Draper, 15 N. Y. 5M2, 558. 2 1 Kent, 500-507 ; Marbury v. Madi- son, 1 Cranch, 137; see post, p. 227-229; Webster on the Independence of the Judiciary, Works, Vol. III. p. 29. In this speech, Mr. Webster lias forcibly set forth the necessity of leaving with the courts the power to enforce consti- tutional restrictions. "It cannot be de- nied," says he, " that one great object of written constitutions is, to keep the departments of government as distinct as possible ; and for this purpose to im- pose restraints designed to have that CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 79 Conclusiveness of Judicial Decisions. But a question which has arisen and been passed upon in one case may arise again in another, or it may present itself under different circumstances for the decision of some other department or officer of the government. It therefore becomes of the highest importance to know whether a principle once authoritatively de- clared is to be regarded as conclusively settled for the guidance, not only of the court declaring it, but of all courts and all depart- ments of the government; or whether, on the other hand, the decision settles the particular controversy only, so that a different decision may be possible, or, considering the diversity of human judgments, even probable, whenever in any new controversy other tribunals may be required to examine and decide upon the same question. In some cases and for some purposes the Conclusiveness of a judicial determination is, beyond question, final and absolute. A decision once made in a particular controversy, by the highest court empowered to pass upon it, is conclusive upon the parties to the litigation and their privies, and they are not allowed effect. And it is equally true that there is no department on which it is more nec- essary to impose restraints than upon the legislature. The tendency of things is almost always to augment the power of that department in its relation to the judi- ciary. The judiciary is composed of few persons, and those not such as mix habit- ually in the pursuits and objects which most engage public men. They are not, or never should be, political men. They have often unpleasant duties to perform, and their conduct is often liable to be can- vassed and censured where their reasons for it are not known or cannot be under- stood. The legislature holds the public purse. It fixes the compensation of all other departments ; it applies as well as raises all revenue. It is a numerous body, and necessarily carries along with it a great force of public opinion. Its members are public men, in constant con- tact with one another and with their con- stituents. It would seem to be plain enough that, without constitutional pro- visions which should be fixed and certain, such a department, in case of excitement, would be able to encroach on the judi- ciary." ..." The constitution being the supreme law, it follows, of course, that every act of the legislature contrary to that law must be void. But who shall decide this question ? Shall the legisla- ture itself decide it ? If so, then the con- stitution ceases to be a legal, and becomes only a moral restraint upon the legisla- ture. If they, and they only, are to judge whether their acts be conformable to the constitution, then the constitution is ad- monitory or advisory only, not legally binding, because if the construction of it rests wholly with them, their discretion, in particular cases, may be in favor of very erroneous and dangerous construc- tions. Hence the courts of law neces- sarily, when the case arises, must decide on the validity of particular acts." " Without this check, no certain limita- tions could exist on the exercise of legis- lative power." See also, as to the dangers of legislative encroachments, De Tocque- ville, Democracy in America, c. 6 ; Story on Const. (4th ed.) 632 and note. The legislature though possessing a larger share of power, no more represents the sovereignty of the people than either of the other departments ; it derives its authority from the same high source. Bailey v. Philadelphia, &c. Railroad Co., 4 Harr. 389 ; Whittington v. Polk, 1 II. & J. 236 ; McCauley v. Brooks, 16 Cal. 11. 80 CONSTITUTIONAL LIMITATIONS. [CH. IV. afterwards to revive the controversy in a new proceeding for the purpose of raising the same or any other questions. The matter in dispute has become res judicata, a thing definitely settled by judicial decision; and the judgment of the court imports abso- lute verity. Whatever the question involved, whether the interpretation of a private contract, the legality of an individual act, or the validity of a legislative enactment, the rule of finality is the same. The controversy has been adjudged; and, once finally passed upon, it is never to be renewed. 1 It must 1 Duchess of Kingston's Case, 11 State Trials, 261, 2 Smith, Lead. Cas. 424; Young v. Black, 7 Cranch, 565 ; Chapman v. Smith, 16 How. 114; Aurora City r. West, 7 Wall. 82 ; Tioga R. R. Co. v. Bloss- burg, &c. R, R. Co., 20 Wall. 137 ; The Rio Grande, 23 Wall. 458 ; Coffey v. United States, 116 U. S. 436; 6 Sup. Ct. Rep. 437 ; United States v. Parker, 120 U. S. 89, 7 Sup. Ct. Rep. 454; Wilson's Exec. v. Deen, 121 U. S. 525, 7 Sup. Ct. Rep. 1004; Skelding v. Whitney, 3 Wend. 154; Etheredge v. Osborn, 12 Wend. 399; Hayes v. Reese, 34 Barb. 151 ; Hyatt v. Bates, 35 Barb. 308; Harris v. Harris, 36 Barb. 88 ; Maddox v. Graham, 2 Met. (Ky.) 56; Porter v. Hill, 9 Mass. 34; Norton v. Doherty, 3 Gray, 372; Thurs- ton v. Thurston, 99 Mass. 39; Way v. Lewis, 115 Mass. 26 ; Blackinton v. Black- inton, 113 Mass. 231 ; Witmer v. Sehlat- ter, 15 S. & R. 150 ; Warner v. Scott, 39 Pa. St. 274; Verner v. Carson, 66 Pa. St. 440; Kerr v. Union Bank, 18 Md.396; Whitehurst v. Rogers, 38 Md. 503 ; Wales v. Lyon, 2 Mich. 276 ; Prentiss v. Holbrook, 2 Mich. 372; Van Kleek v. Eggleston, 7 Mich. 511; Newberry v. Trowbridge, 13 Mich. 278; Barker v. Cleveland, 19 Mich. 230 ; Winslow v. Grindall, 2 Me. 64 ; Slade v. Slade, 58 Me. 157; Crandall v. James, 6 R. I. 144; Babcock v. Camp, 12 Ohio St. 11 ; Hawkins v. Jones, 19 Ohio St. 22; George v. Gillespie, 1 Greene (Iowa), 421 ; Taylor v. Chambers, 1 Iowa, 124 ; Wright v. Leclair, 3 Iowa, 221 ; Clark r. Sammons, 12 Iowa, 368; Whittaker i\ Johnson Co., 12 Iowa. 595 ; Dwyer v. Goran, 29 Iowa, 126 ; Fairfield v. McNany, 37 Iowa, 75 ; Eimer v. Richards, 25 111.289; Wells v. McClenning, 23 111. 409; Crow u.Bowlby, 68 III. 23 ; Peay v. Duncan, 20 Ark. 85 ; Perrine v. Serrell, 30 N. J. 454; Weber v. Morris, &c., 36 N. J. 213 ; Fischli v. Cowan, 1 Blackf. 350; Denny v. Reynolds, 24Ind. 248 ; Bates v. Spooner, 45 Ind. 489 ; Daven- port v. Barnett, 51 Ind. 329 ; Center Tp. v. Com'rs Marion Co., 110 Ind. 579, 10 N. E. 291 ; Warwick v. Underwood, 3 Head, 288 ; Jones v. Weathersbee, 4 Strob. 50 ; Hoover v. Mitchell, 25 Gratt. 387 ; Hun- gerford's Appeal, 41 Conn. 322 ; Union R. R. Co. v. Traube, 59 Mo. 355 ; Perry v. Lewis, 49 Miss. 443 ; Harris v. Colquit, 44 Ga. 663 ; McCauley v. Hargroves, 48 Ga. 50, 15 Am. Rep. 660; Castellaw v. Guilmartin, 54 Ga. 299; Sloan r. Cooper, 54 Ga. 486; Doyle v. Hallam, 21 Minn. 515; Philpotts v. Blasdel, 10 Nev. 19; Case v. New Orleans, &c. R. R., 2 Woods, 236; Geary v. Simmons, 39 Cal. 224; Gee v. Williamson, 1 Port. (Ala.) 313, 27 Am. Dec. 628; Cannon v. Brame, 45 Ala. 262; Finney v. Boyd, 26 Wis. 366; War- ner v. Trow, 36 Wis. 195; Schroers v. Fisk, 10 Col. 599, 16 Pac. 285. Ram on Legal Judgment, c. 14. A judgment, however, is conclusive as an estoppel, as to those facts only without the exis- tence and proof of which it could not have b?en rendered; and if it might have been given on any one of several grounds, it is conclusive between the parties as to neither of them. Lea v. Lea, 99 Mass. 493. And see Dickinson v. Hayes, 31 Conn. 417 ; Church v. Chapin, 35 Vt. 223 ; Packet Co. v. Sickles, 5 Wall. 580 ; Spen- cer v. Dearth, 43 Vt. 98 ; Hill v. Morse, 61 Me. 641. A judicial sale by an admin- istrator will pass title though the sup- posed intestate proves to be living. Rod- erigas v. Savings Institution, 63 N. Y. 460; s. c. 20 Am. Rep. 555; contra, John- son v. Beazley, 65 Mo. 260 ; s. c. 27 Am. Rep. 285, and note. QDeath of the al- leged intestate is a jurisdictional fact, and in the absence of such fact any admin- istration upon his estate is null. Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. Rep. 1108; rev. 5 Wash. 309, 31 Pac. 873, 34 Am. St. 863. Many authorities are cited in 154 U. S. at page 48.] CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 81 frequently happen, therefore, that a question of constitutional law will be decided in a private litigation, and the parties to the controversy, and all others subsequently acquiring rights under them, in the subject-matter of the suit, will thereby become absolutely and forever precluded from renewing the question in respect to the matter then involved. The rule of conclusiveness to this extent is one of the most inflexible principles of the law ; insomuch that even if it were subsequently held by the courts that the decision in the particular case was erroneous, such holding would not authorize the reopening of the old controversy in order that the final conclusion might be applied thereto. 1 But if important principles of constitutional law can be thus disposed of in suits involving only private rights, and when pri- vate individuals and their counsel alone are heard, it becomes of interest to know how far, if at all, other individuals and the public at large are affected by the decision. And here it will be discovered that quite a different rule prevails, and that a judicial decision has no such force of absolute conclusiveness as to other parties as it is allowed to possess between the parties to the litigation in which the decision has been made, and those who have succeeded to their rights. A party is concluded by a judgment against him from disput- ing its correctness, so far as the point directly involved in the case was concerned, whether the reasons upon which it was based were sound or not, and even if no reasons were given therefor. And if the parties themselves are concluded, so also should be all those who, since the decision, claim to have acquired inter- ests in the subject-matter of the judgment from or under the parties, as personal representatives, heirs-at-law, donees, or purchasers, and who are therefore considered in the law as privies. 2 But if strangers who have no interest in that subject- 1 McLean v. Hugarin, 13 Johns. 184; lein v. Martin, 59 Cal. 181 ; Frankland v. Morgan v. Plumb, 9 Wend. 287 ; Wilder Cassaday, 62 Texas, 418 ; Adams Co. v. v. Case, 16 Wend. 583 ; Baker v. Rand, 13 Burlington & M. R. R. Co., 55 Iowa, 94, Barb. 152 ; Kelley v. Pike, 5 Cusli. 484; 7 N. W. 471. But see Barton v. Thomp- Hart v. Jewett, 11 Iowa, 276; Colburn son, 56 Iowa, 571, 9 N. W. 899. f. Woodworth, 31 Barb. 381; Newberry v. 2 The question whether a judgment, Trowbridge, 13 Mich. 278; Skeldin v. by force of its recitals, shall operate as Whitney, 3 Wend. 154 ; Brockway j;. Kin- a technical estoppel, or whether it shall ney, 2 Johns. 210; Plainer a. Best, 11 operate as a bar only after the proper parol Johns. 530; Phillips v. Berick, 16 Johns, evidence shall have been given to identify 136 ; Page v. Fowler, 37 Cal. 100; Howi- the subject of litigation, is one which our son v. Weeden, 77 Va. 704. The rule laid subject does not require us to discuss. The down becomes the law of the case. Bibb cases are examined fully and with dis- v. Bibb, 79 Ala. 437 ; Weare v. Bearing, crimination in Robinson's Practice, Vol. 60 N. H. 56; Pittsburgh, &c. Ry. Co. v. VI., and are also discussed in Bigelow on Hixon, 110 Ind. 225, 11 N. E. 285 ; Hein- Estoppel. 6 82 CONSTITUTIONAL LIMITATIONS. [CH. IV. matter are to be in like manner concluded, because their con- troversies are supposed to involve the same question of law, we shall not only be forced into a series of endless inquiries, often resulting in little satisfaction, in order to ascertain whether the question is the same, but we shall also be met by the query, whether we are not concluding parties by decisions which others have obtained in fictitious controversies and by collusion, or have suffered to pass without sufficient consideration and dis- cussion, and which might perhaps have been given otherwise had other parties had an opportunity of being heard. We have already seen that the force of a judgment does not depend upon the reasons given therefor, or upon the circum- stance that any were or were not given. If there were, they may have covered portions of the controversy only, or they may have had such reference to facts peculiar to that case, that in any other controversy, though somewhat similar in its facts, and apparently resembling it in its legal bearings, grave doubts might arise whether it ought to fall within the same general principle. If one judgment were absolutely to conclude the parties to any similar controversy, we ought at least to be able to look into the judicial mind, in order that we might ascertain of a surety that all those facts which should influence the ques- tions of law were substantially the same in each, and we ought also to be able to see that the first litigation was conducted in entire good faith, and that every consideration was presented to the court which could properly have weight in the construction and application of the law. All these things, however, are manifestly impossible; and the law therefore wisely excludes judgments from being used to the prejudice of strangers to the controversy, and restricts their conclusiveness to the parties thereto and their privies. 1 Even parties and privies are bound only so far as regards the subject-matter then involved, and would be at liberty to raise the same questions anew, in a dis- tinct controversy affecting some distinct subject-matter. 2 i Burrill v. West, 2 N. H. 190 ; Davis Floyd v. Mintsey, 5 Rich. 361 ; Riggin's v. Wood, 1 Wheat. 6 ; Jackson v. Vedder, Ex'rs v. Brown, 12 Ga. 271; Persons v. 3 Johns. 8; Case v. Reeve, 14 Johns. 79; Jones, 12 Ga. 371 ; Buckingham v. Lud- Alexander v. Taylor, 4 Denio, 302; Van lum, 37 N. J. Eq. 137; Scales v. King, Bokkelin v. Ingersoll, 5 Wend. 315 ; Smith 110 111. 456 ; Leslie v. Bonte, 130 111. 498, v. Ballantyne, 10 Paige, 101; Orphan 22 N. E. Rep. 694; Tiffany v. Stewart, House v. Lawrence, 11 Paige, 80; Thomas 60 Iowa, 207, 14 N. W. 241; Lord v. v. Hubbell, 15 N. Y. 405; Masten v. Ol- Wilcox, 99 Ind 491. Compare Benedict cott, 101 N. Y. 152, 4 N. E. 274; Wood v. Smith, 48 Mich. 593, 12 N. W. 866; v. Stephen, 1 Serg. & R. 175; Peterson v. Howison v. Weeden, 77 Va. 704; Robin- Lothrrfp, 34 Pa. St. 223; Twambly v. son's Practice, Vol. VII. 134 to 156; Henley, 4 Mass. 441 ; Este c. Strong, 2 Bigelow on Estoppel, 46 et seq. Ohio, 402; Cowles v. Harts, 3 Conn. 516 ; 2 Van Alstine v. Railroad Co., 34 Barb. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 83 All judgments, however, are supposed to apply the existing law to the facts of the case ; and the reasons which are sufficient to influence the court to a particular conclusion in one case ought to be sufficient to bring it or any other court to the same conclusion in all other like cases where no modification of the law has intervened. There would thus be uniform rules for the administration of justice, and the same measure that is meted out to one would be received by all others. And even if the same or any other court, in a subsequent case, should be in doubt concerning the correctness of the decision which has been made, there are consequences of a very grave character to be contemplated and weighed before the experiment of disregarding it should be ventured upon. That state of things, when judicial decisions conflict, so that a citizen is always at a loss in regard to his rights and his duties, is a very serious evil ; and the alternative of accepting adjudged cases as precedents in future controversies resting upon analogous facts, and brought within the same reasons, is obviously preferable. Precedents, there- fore, become important, and counsel are allowed and expected to call the attention of the court to them, not as concluding controversies, but as guides to the judicial mind. Chancellor Kent says: "A solemn decision upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness, and the community have a right to regard it as a just declaration or 28; Taylor v. McCrackin, 2 Blackf. 260; facts were within the issue, the judgment Cook r. Vimont, 6 T. B. Monr. 284. If is conclusive as to them, although the certain facts were not necessarily in- question raised in the second action was eluded in the issue, a party is not con- not actually litigated. Harmon v. Audi- eluded by the judgment as to them, tor, 123 III. 123, 13 N. E. 161; Fairchild Davis v. Davis, 65 Miss. 498, 4 So. 554 ; v. Lynch, 99 N. Y. 359, 2 N. E. 20 ; Tray- Doonan v. Glynn, 28 W. Va. 715 ; Loril- hern v. Colburn, 66 Md. 277, 7 All. 459 ; lard v. Clyde, 99 N. Y. 196, 1 N. E. 614 ; Kennedy v. McCarthy, 73 Ga. 346 ; Shen- Belden v. State, 103 N. Y. 1, 8 N. E. 363; andoah V. R. R. Co. v. Griffith, 76 Va. Umlauf v. Umlauf, 117 111. 580, 6 N. E. 913; Cleveland v. Creviston, 93 Ind. 81; 455; Concha v. Concha, L. R. 11 App. Chouteau v. Gibson, 76 Mo. 38. See, for Cas. 541. If the second action involves a further discussion of this doctrine, its the same property and more, the judg- meaning and extent, Spencer v. Dearth, ment is conclusive only as to those issues 43 Vt. 98, and the very full and exhaus- which were actually tried and determined, tive discussion in Robinson's Practice, Foye v. Patch, 132 Mass. 105. See Met- Vol. VII. calf v. Gilmore, 63 N. H. 174. But if th* 84 CONSTITUTIONAL LIMITATIONS. [CH. IV. exposition of the law, and to regulate their actions and contracts by it. It would therefore be extremely inconvenient to the public if precedents were not duly regarded, and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, except for very urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law. 1 1 1 Kent, 475. And see Cro. Jac. 527 ; Rex v. Cox, 2 Burr. 787 ; King v. Younger, 6 T. R. 450; Goodtitle t-. Otway, 7 T. R. 416; Selby v. Bardons, 3 B. & Ad. 17; Fletcher v. Lord Somers, 3 Bing. 588; Hammond r. Anderson, 4 Bos. & P. 69; Lewis v, Thornton, 6 Munf. 94 ; Dugan v. Hollins, 13 Md. 149; Anderson v. Jack- son, 16 Johns. 382 ; Goodell v. Jackson, 20 Johns. 693 ; Bates o. Relyea, 23 Wend- 336; Emerson v. Atwater, 7 Mich. 12; Kelson v. Allen, 1 Yerg. 3(30; Palmer v. Lawrence, 5 N. Y. 389 ; Kneeland v. Mil- waukee, 15 Wis. 454 ; Boon r. Bowers, 30 Miss. 216; Frink v. Darst, 14 111. 304; Broom's Maxims, 109. Dr. Lieber thinks the doctrine of the precedent especially valuable in a free country. " Liberty and steady progression require the principle of the precedent in all spheres. It is one of the roots with which the tree of liberty fastens in the soil of real life, and through which it receives the sap of fresh exist- ence. It is the weapon by which inter- ference is warded off. The principle of the precedent is eminently philosophical. The English Constitution would not have developed itself without it. What is called the English Constitution consists of the fundamentals of the British polity, laid down in custom, precedent, decisions, and statutes ; and the common law in it is a far greater portion than the statute law. The English Constitution is chiefly a com- mon-law constitution ; and this reflex of a continuous society in a continuous law is more truly philosophical than the theo- retic and systematic, but lifeless, consti- tutions of recent France." Civ. Lib. and Self-Gov. See also his chapter on prece- dents in the Hermeneutics. In Nelson v. Allen, 1 Yerg. 360, 376, where the consti- tutionality of the " Betterment Law " came under consideration, the court ( White, J.) say : " Whatever might be my own opinion upon this question, not to assent to its settlement now, after two solemn decisions of this court, the last made upwards of fourteen years ago, and not only no opposing decision, but no at- tempt even by any case, during all this time, to call the point again in contro- versy, forming a complete acquiescence, would be, at the least, inconsistent, per- haps mischievous, and uncalled for by a correct discharge of official duty. Much respect has always been paid to the con- temporaneous construction of statutes, and a forbidding caution hath always accompanied any approach towards un- settling it, dictated, no doubt, by easily foreseen consequences attending a sud- den change of a rule of property, neces- sarily introductory at least of confusion, increased litigation, and the disturbance of the peace of society. The most able judges and the greatest names on the bench have held this view of the subject, and occasionally expressed themselves to that effect, either tacitly or openly, intimating that if they had held a part in the first construction they would have been of a different opinion ; but the con- struction having been made, they give their assent thereto. Thus Lord Ellen- borough, in 2 East, 302, remarks : ' I think CH. IT.] .CONSTRUCTION OF STATE CONSTITUTIONS. 85 The doctrine of stare decisis, however, is only applicable, in its full force, within the territorial jurisdiction of the courts making the decisions, since there alone can such decisions be regarded as having established any rules. Rulings made under a similar legal system elsewhere may be cited and respected for their reasons, but are not necessarily to be accepted as guides, except in so far as those reasons commend themselves to the judicial mind. 1 Great Britain and the thirteen original States had each substantially the same system of common law origi- nally, and a decision now by one of the higher courts of Great Britain as to what the common law is upon any point is cer- tainly entitled to great respect in any of the States, though not necessarily to be accepted as binding authority any more than the decisions in any one of the other States upon the same point. It gives us the opinions of able judges as to what the law is, but its force as an authoritative declaration must be confined to the country for which the court sits and judges. But an English decision before the Revolution is in the direct line of authority ; and where a particular statute or clause of the con- stitution has been adopted in one State from the statutes or constitution of another, after a judicial construction has been given it in such last-mentioned State, it is but just to regard the construction as having been adopted, as well as the words; and all the mischiefs of disregarding precedents would follow as legitimately here as in any other case. 2 it is better to abide by that determina- one given under the law of necessity, in tion, than to introduce uncertainty into consequence of an equal division of the this branch of the law, it being often more court, see Durant v. Essex Co., 7 Wall, important to have the rule settled, than 107 ; s. c. 101 U. S. 555 ; Hartman v. to determine what it shall be. I am not, Greenhow, 102 U. S. 672 ; Morse v. Goold, however, convinced by the reasoning in UN. Y. 281; Lyon v. Circuit Judge, 37 this case, and if the point were new I Mich. 377 ; and the cases collected in should think otherwise.' Lord Mansfield, Northern R. II. v. Concord R. R., 50 N. H. in 1 Burr. 419, says : ' Where solemn de- 176. terminations acquiesced under had settled 1 Caldwell v. Gale, 11 Mich. 77 ; Koontz precise cases and a rule of property, they v. Nabb, 16 Md. 549; Nelson v. Goree, 34 ought, for the sake of certainty, to be ob- Ala. 665 ; Jamison v. Burton, 43 Iowa, served, as if they had originally formed a 282. part of the text of the statute.' And Sir 2 Bond v. Appleton, 8 Mass. 472 ; Rut- James Mansfield, in 4 B. & P. 69, says: land v. Mendon, 1 Pick. 154; Common- 'Ido not know how to distinguish this wealth v. Hartnett, 3 Gray, 450; Turn- from the case before decided in the court, pike Co. v. People, 9 Barb. 167 ; Campbell It is of greater consequence that the law . Quinlin, 4 111. 288 ; Little v. Smith, should be as uniform as possible, than 5 111. 400 ; Rigg v. Wilton, 13 111. 15 ; that the equitable claim of an individual Tyler v. Tyler, 19 111. 151 ; Fisher v. Deer- should be attended to.' " And see People ing, 60 111. 114; Langdon v. Applegate, v. Cicotte, 16 Mich. 283. 6 Ind. 327 ; Clark v. Jeffersonville, &c. How far a judgment rendered by a R. R. Co., 44 Ind. 248 ; Fall v. Hazelrigg, court concludes, notwithstanding it was 45 Ind. 576; Ingraham v. Regan, 23 86 CONSTITUTIONAL LIMITATIONS. [CH. IV. It will of course sometimes happen that a court will find a former decision so unfounded in law, so unreasonable in its deductions, or so mischievous in its consequences, as to feel compelled to disregard it. Before doing so, however, it will be well to consider whether the point involved is such as to have become a rule of property, so that titles have been acquired in reliance upon it, and vested rights will be disturbed by any change ; for in such a case it may be better that the correction of the error be left to the legislature, which can control its action so as to make it prospective only, and thus prevent unjust consequences. 1 Miss. 213 ; Adams v. Field, 21 Vt. 256 ; Drennan v. People, 10 Mich. 169; Daniels v. Clegg, 28 Mich. 32 ; Harrison v. Sager, 27 Mich. 476 ; Pangborn v. Westlake, 36 Iowa, 546; Attorney-General v. Brunst, 3 Wis. 787 ; Poertner v. Russell, 33 Wis. 193 ; Myrick v. Hasey, 27 Me. 9 ; People v. Coleman, 4 Cal. 46 ; Bemis v. Becker, 1 Kan. 226 ; Walker v. Cincinnati, 21 Ohio St. 14 ; Hess v. Pegg, 7 Nev. 23 ; Freeze v. Tripp, 70 111. 496 ; In re Tuller, 79 111. 99 ; Ex parte Mathews, 52 Ala. 51 ; Dan- ville v. Pace, 25 Gratt. 1 ; Bradbury v. Davis, 5 Col. 265. But it does not neces- sarily follow that the prior decision construing the law must be inflexibly fol- lowed, since the circumstances in the State adopting it may be so different as to require a different construction. Little v. Smith, 5 111. 400 ; Lessee of Gray v. Askew, 3 Ohio, 466; Jamison v. Burton, 43 Iowa, 282. It has very properly been held that the legislature, by enacting, without material alteration, a statute which had been judicially expounded by the highest court of the State, must be presumed to have intended that the same words should be received in the new stat- ute in the sense which had been attributed to them in the old. Grace v. McElroy, 1 Allen, 563 ; Cronan v. Getting, 104 Mass. 245; Low v. Blanchard, 116 Mass. 272. It is proper to accept and follow the de- cisions of courts of another State upon the construction and validity of their own statutes. Sidwell v. Evans, 1 Pen. & W. 383; s. c. 21 Am. Dec. 387; Bank of Illinois c. Sloo, 16 La. 539, 35 Am. Dec. 223, except when it conflicts with the constitution of the adopting State. Risser v. Hoyt, 63 Mich. 185, 18 N. W. 611. 1 " After an erroneous decision touch- ing rights of property has been followed thirty or forty years, and even a much less time, the courts cannot retrace their steps without committing a new error nearly as great as the one at the first." Branson, J., in Sparrow v. Kingman, 1 N. Y. 246, 260. See also Emerson v. At water, 7 Mich. 12; Rothschild v. Grix, 31 Mich. 150; Loeb v. Mathis, 37 Ind. 306; Pond t;. Irwin, 113 Ind. 243, 15 N. E. Rep. 272; Paulson v. Portland, 16 Oreg. 450, 19 Pac. Rep. 450 ; Adams Co. v. Burlington & M. E. R. Co., 65 Iowa, 94, 2 N. W. 1054; Davidson v. Briggs, 61 Iowa, 309, 7 N. W. 471 ; State v. Whitworth, 8 Lea, 594. Where an old constitution has been construed by the court, a new court after the adoption of a new constitution will follow the old construction without regard to its own views. Emery v. Reed, 65 Cal. 351, 4 Pac. 200. " It is true that when a principle of law, doubtful in its character or uncer- tain in the subject-matter of its appli- cation, has been settled by a series of judicial decisions, and acquiesced in fora considerable time, and important rights and interests have become established under such decisions, courts will hesitate long before they will attempt to overturn the result so long established. But when it is apparently indifferent which of two or more rules is adopted, the one which shall have been adopted by judicial sanc- tion will be adhered to, though it may not, at the moment, appear to be the preferable rule. But when a question involving important public or private rights, extending through all coming time, has been passed upon on a single CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 87 Whenever the case is such that judicial decisions which have been made are to be accepted as law, and followed by the courts in future cases, it is equally to be expected that they will be followed by other departments of the government also. Indeed, in the great majority of cases, the officers of other departments have no option; for the courts possess the power to enforce their construction of the law as well as to declare it; and a failure to accept and follow it in one case would only create a necessity for new litigation with similar result. Nevertheless, there are exceptions to this rule which embrace all those cases where new action is asked of another department, which that department is at liberty to grant or refuse for any reasons which it may regard as sufficient. We cannot conceive that, because the courts have declared an expiring corporation to have been constitutionally created, the legislature would be bound to renew its charter, or the executive to sign an act for that purpose, if doubtful of the constitutional authority, even though no other adverse reasons existed. 1 In the enactment of laws the legisla- ture must act upon its own reasons; mixed motives of power, justice, and policy influence its action; and it is always justifi- able and laudable to lean against a violation of the constitution. Indeed, cases must sometimes occur when a court should refrain from declaring a statute unconstitutional, because not clearly satisfied that it is so, though, if the judges were to act as legis- lators upon the question of its enactment, they ought with the occasion, and which decision can in no Owen, 43 Texas, 41, 48 ; Ram on Legal just sense be said to have been acqui- Judgment, c. 14, 3. "Common error" esced in, it is not only the right, but the does not make law until sanctioned by a su- duty, of the court, when properly called perior tribunal, and subsequently treated upon, to re-examine the questions in- as law in business affairs. Ocean Beach volved, and again subject them to ju- Ass. v. Brinley, 34 N. J. Eq. 438. dicial scrutiny. We are by no means * In the celebrated case of the appli- unmindful of the salutary tendency of cation of the Bank of the United States the rule stare decisis, but at the same for a new chapter, President Jackson felt time we cannot be unmindful of the les- himself at liberty to act upon his own sons furnished by our own consciousness, view of constitutional power, in opposi- as well as by judicial history, of the lia- tion to that previously declared by the bility to error and the advantages of Supreme Court, and President Lincoln review." Per Smith, J., Pratt v. Brown, expressed similar views regarding the 3 Wis. 603, 609. And see Kneeland v. Mil- conclusiveness of the Dred Scott decision waukee, 15 Wis. 454 ; Taylor v. French, upon executive and legislative action. 19 Vt. 49; Bellows v. Parsons, 13 N. H. See Story on Const. (4th ed.) 375, note. 256; Hannel v. Smith, 15 Ohio, 134 ; Day It is notorious that while the reconstruc- ts. Munson, 14 Ohio St. 488; Green Cas- tion of States was going on, after the late tie, &c. Co. v State, 28 Ind. 382 ; Harrow Civil War, Congress took especial pains in v. Myers, 29 Ind. 469 ; Paul v. Davis, some cases to so shape its legislation that 100 Ind. 422 ; Burks v. Hinton, 77 Va. the Federal Supreme Court should have 1 ; Mead v. McGraw, 19 Ohio St. 55 ; no opportunity to question and deny its Linn v. Minor, 4 Nev. 462 ; Willis v. validity. 88 CONSTITUTIONAL LIMITATIONS. [CH. IV. same views to withhold their assent, from grave doubts upon that subject. The duty is different in the two cases, and pre- sumptions may control in one which do not exist in the other. 1 But those cases where new legislation is sought stand by them- selves, and are not precedents for those which involve only considerations concerning the constitutional validity of existing enactments. The general acceptance of judicial decisions as authoritative, by each and all, can alone prevent confusion, doubt, and uncertainty, and any other course is incompatible with a true government of law. Construction to be Uniform. A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seern desirable. A principal share of the benefit expected from written constitu- tions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opin- ion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. Those beneficent maxims of the common law which guard person and property have grown and expanded until they mean vastly more to us than they did to our ancestors, and are more minute, particular, and pervading in their protections; and we may con- fidently look forward in the future to still further modifications in the direction of improvement. Public sentiment and action effect such changes, and the courts recognize them; but a court or legislature which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty ; and if its course could become a precedent, these instru- 1 A constitution forbade the pnyment after its completion bad been declared of any claim arising against the State unconstitutional; that the word "law" under any agreement made without an- did not necessarily mean a constitutional thority of law. It was held that this did law. Miller v. Dunn, 72 Cal. 462, 14 not prevent the legislature from award- Pac. 27. ing pay for work done under an act which CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 89 ments would be of little avail. The violence of public passion is quite as likely to be in the direction of oppression as in any other; and the necessity for bills of rights in our fundamental laws lies mainly in the danger that the legislature will be influenced, by temporary excitements and passions among the people, to adopt oppressive enactments. What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. 1 The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it. 2 The Intent to Govern. The object of construction, as applied to a written constitu- tion, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instru- ment itself. It is to be presumed that language has been employed with sufficient precision to convey it, and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. " Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction." 3 Possible 1 People v. Morrell, 21 Wend. 563 ; Heirs of Ludlow v. Johnson, 3 Ohio, 553; Newell v. People, 7 N. Y. 9; Hyatt v. District Township v. Dubuque, 7 Iowa, Taylor, 42 N. Y. 258; Slack v. Jacobs, 8 262; Pattison v. Yuba, 13 Cal. 175; Eze- W. Va. 612, 650. kiel v. Dixon, 3 Ga. 146; In re Murphy, 2 Campbell, J., in People v. Blodgett, 23 N. J. 180 ; Attorney-General ?-. Detroit 13 Mich. 127, 138; Scott v. Sandford, 19 & Erin P. R. Co., 2 Mich. 138; Smith How. 393. v. Thursby, 28 Md. 244 ; State v. Blasdel, 8 United States v. Fisher, 2 Cranch, 4 Nev. 241 ; State v. Doron, 5 Nev. 399; 358; Bosley v. Mattingley, 14 B. Monr. Hyatt r. Taylor, 42 N. Y. 268; Johnson 89; Sturgis v. Crowninshield, 4 Wheat, v. Hudson R. R. Co., 49 N. Y. 456; 122 ; Schooner Paulina's Cargo v. United Beardstown v. Virginia, 76 111. 34 ; St. States, 7 Cranch, 52 ; Ogden v. Strong, 2 Louis, &c. R. R. Co. v. Clark, 53 Mo. 214 ; Paine, C. C. 584 ; United States v. Rags- Mundt v. Sheboygan, &c. R. R. Co., 31 dale, 1 Hemp. 497; Southwark Bank v. Wis. 41; Slack v. Jacob, 8 W. Va. 612; Commonwealth, 26 Penn. St 446; Ingalls Hawbecker v. Hawbecker, 43 Md. 516; . Cole, 47 Me. 630; McCluskey v. Crom- Ex par (t Mayor of Florence, 78 Ala. 419. well. 11 N Y. 593; Furman v. New York, The remarks of Mr. Justice Branson in 6 Sandf . 16 ; Newell v. People, 7 N. Y. 9 ; People v. Purdy, 2 Hill, 35, are very forci- People v. N. Y. Central R. R. Co., 24 N. Y. ble in sltowing the impolicy and danger 485; Bidwell v Whittaker, 1 Mich. 469; of looking beyond the instrument itself Alexander v. Worthington, 6 Md. 471 ; to ascertain its meaning, when the terms Cantwell v. Owens, 14 Md. 215 ; Case v. employed are positive and free from all Wildridge, 4 Ind. 51 ; Spencer v. State, ambiguity. " It is said that the Consti- 6 Ind. 41 ; Pitman v. Flint, 10 Pick. 604 ; tution does not extend to public corpora- 90 COXSTITUTIOXAL LIMITATIONS. [CH. IV. or even probable meanings, when one is plainly declared in the tions, and therefore a majority vote was sufficient. I do not so read the Consti- tution. The language of the clause is : ' The assent of two-thirds of the mem- bers elected to each branch of the legis- lature shall be requisite to every bill creat- ing, continuing, altering, or renewing any body politic or corporate.' These words are as broad in their signification as any which could have been selected for the occasion from our vocabulary, and there is not a syllable in the whole instrument tending in the slightest degree to limit or qualify the universality of the language. If the clause can be so construed that it shall not extend alike to all corporations, whether public or private, it may then, I think, be set down as an established fact that the English language is too poor for the framing of fundamental laws which shall limit the powers of the legislative branch of the government. No one has, I believe, pretended that the Constitution, looking at that alone, can be restricted to any particular class or description of cor- porations. But it is said that we may look beyond the instrument for the pur- pose of ascertaining the mischief against which the clause was directed, and thus restrict its operation. But who shall tell us what that mischief was 1 Although most men in public life are old enough to remember the time when the Constitution was framed and adopted, they are not agreed concerning the particular evils against which this clause was directed. Some suppose the clause was intended to guard against legislative corruption, and others that it was aimed at monopolies. Some are of opinion that it only extends to private without touching public cor- porations, while others suppose that it only restricts the power of the legislature when creating a single corporation, and not when they are made by the hundred. In this way a solemn instrument for so I think the Constitution should be con- sidered is made to mean one thing by one man and something else by an- other, until, in the end, it is in danger of being rendered a mere dead letter ; and that, too, where the language is so plain and explicit that it is impossible to mean more than one thing, unless we first lose sight of the instrument itself, and allow ourselves to roam at large in the bound- less fields of speculation. For one, I dare not venture upon such a course. Written constitutions of government will soon come to be regarded as of little value if their injunctions may be thus lightly over- looked ; and the experiment of setting a boundary to power will prove a failure. We are not at liberty to presume that the framers of the Constitution, or the people who adopted it, did not under- stand the force of language." See also same case, 4 Hill, 384, and State v. King, 44 Mo. 285. Another court has said : " This power of construction in courts is a mighty one, and, unrestrained by set- tled rules, would tend to throw a painful uncertainty over the effect that might be given to the most plainly worded statutes, and render courts, in reality, the legisla- tive power of the State. Instances are not wanting to confirm this. Judge-made law has overrode the legislative depart- ment. It was the boast of Chief Justice Pemberton, one of the judges of the despot Charles II., and not the worst even of those times, that he had entirely outdone the Parliament in making law. We think that system of jurisprudence best and safest which controls most by fixed rules, and leaves least to the discretion of the judge ; a doctrine constituting one of the points of superiority in the common law over that system which has been admin- istered in France, where authorities had no force, and the law of each case was what the judge of the case saw fit to make it. We admit that the exercise of an unlimited discretion may, in a par- ticular instance, be attended with a salu- tary result; still history informs us that it has often been the case that the arbi- trary discretion of a judge was the law of a tyrant, and warns us that it may be so again." Perkins, J., in Spencer v. State, 6 Ind. 41, 46. " Judge-made law," as the phrase is here employed, is that made by judicial decisions which construe away the meaning of statutes, or find meanings in them the legislature never held. The phrase is sometimes used as meaning, simply, the law that becomes established by precedent. The uses and necessity of judicial legislation are considered and ex- plained at length by Mr. Austin, in his Province of Jurisprudence. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 91 instrument itself, the courts are not at liberty to search for elsewhere. " Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between dif- ferent parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legisla- tures have a right to add to or take away from that meaning." 1 The Whole Instrument to be examined. Nor is it lightly to be inferred that any portion of a written law is so ambiguous as to require extrinsic aid in its construc- tion. Every such instrument is adopted as a whole, and a clause which, standing 'by itself, might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law. It is therefore a very proper rule of construction, that the whole is to be examined with a view to arriving at the true intention of each part ; and this Sir Edward Coke regards as the most natural and genuine method of ex- pounding a statute. 2 If any section of a law be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another. 3 And in making this comparison it is not to be sup- posed that any words have been employed without occasion, or without intent that they should have effect as part of the law. The rule applicable here is, that effect is to be given, if possible, i Newell v. People, 7 N. Y. 9, 97, per Freeholders, &c., 38 N. J. 214; Gold v. Johnson, J. ; Chesapeake, &c. Ry. Co. v. Fite, 2 Bax. 237 ; State v. Gammon, 73 Miller, 19 W. Va. 409. And see Denn v. Mo. 421 ; Broom's Maxims (5th Am. ed.), Reid, 10 Pet. 524 ; Greencastle Township 551, marg. r. Black, 5 Ind. 566 ; Bartlett v. Morris, 9 2 Co. Lit. 381 a. Port. 266; Leonard v. Wiseman, 31 Md. 8 Stowell v. Lord Zouch, Plowd. 365; 201, per Bartol, Cli. J. ; Way v. Way, 64 Chance v. Marion County, 64 111. 66 ; 111. 406; McAdoo v. Benbow, 63 N. C. Dyer v. Bayne, 54 Md. 87; Broom's 461; Hawkins v. Carrol, 50 Miss. 735; Maxims, 621. Cearfoss v. State, 42 Md. 403; Douglas v. 92 CONSTITUTIONAL LIMITATIONS. [CH. IV. to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory. 1 This rule is applicable with special force to written constitu- tions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. 2 It is scarcely conceivable that a case can arise where a court would be justified in declar- ing any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together. 3 In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. As Marshall, Ch. J., says: The framers of the constitution, and the people who adopted it, "must be understood to have employed words in their natural sense, and to have intended what they have said. " 4 1 Attorney-General v. Detroit & Erin general rule in the construction of writ- Plank Road Co., 2 Mich. 1-38; People v. ings, that, a general intent appearing, it Burns, 5 Mich. 114; District Township shall control the particular intent; but v. Dubuque, 7 Iowa, 262; Manly v. State, this rule must sometimes give way, and 7 Md. 135; Parkinson v. State, 14 Md. effect must be given to a particular in- 184 ; Belleville Railroad Co. v. Gregory, tent plainly expressed in one part of a 15111.20; Ogden v. Strong, 2 Paine, C. C. constitution, though apparently opposed 584; Ryegate v. Wardsboro, 30 Vt. 746; to a general intent deduced from other Brooks v. Mobile School Commissioners, parts. Warren v. Shuman, 5 Tex. 441. 31 Ala. 227 ; Den v. Dubois, 16 N. J. 285; In Quick v. Whitewater Township, 7 Ind. Den r. Schenck, 8 N. J. 29; Bigelow v. 670, it was said that if two provisions of W. Wisconsin R. R., 27 Wis. 478; Gas a written constitution are irreconcilably Company v. Wheeling, 8 W. Va. 320; repugnant, that which is last in order of Parker v. Savage, 6 Lea, 406 ; Crawfords- time and in local position is to be pre- ville, &c. Co. v. Fletcher, 104 Ind. 97, 2 ferred. In Gulf, C. & S. F. Ry. Co. v. N. E. 243. See Sams v. King, 18 Fla. Rambolt, 67 Tex. 654, 4 S. W. 356, this 557. That the title may be considered rule was recognized as a last resort, but in order to throw light upon an other- if the last provision is more comprehen- wise obscure provision, see Knowlton v. sive and specific, it was held that it Moore, 178 U. S. 41, 20 Sup. Ct. Rep. should be given effect on that ground. 747. See also People v. McElroy, 72 The rule applies to constitutions that Mich. 446, 40 N. W. 750, 2 L. R. A. 609, a later amendment operates to repeal an and note.] earlier provision inconsistent with it. a Wolcott v. Wigton, 7 Ind. 44 ; People People v. Angle, 109 N. Y. 664, 17 N. E. v. Purdy, 2 Hill, 31, per Bronson, J. ; 413. Greencastle Township v. Black, 5 Ind. * Gibbons r. Ogden, 9 Wheat. 1, 188. 657 ; Green v. Weller, 32 Miss. 650. See Settle v. Van Evrea, 49 N. Y. 281 ; 8 People v. Wright, 6 Col. 92. It is a Jenkins v. Ewin, 8 Heisk. 456 ; Way v. CH, IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 93 This is but saying that no forced or unnatural construction is to be put upon their language ; and it seems so obvious a truism that one expects to see it universally accepted without question; but the attempt is made so often by interested subtlety and ingenious refinement to induce the courts to force from these instruments a meaning which their frarners never held, that it frequently becomes necessary to re-declare this fundamental maxim. 1 Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government. But it must not be forgotten, in construing our constitutions, that in many particulars they are but the legitimate successors of the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a well- understood meaning, which the people must be supposed to have had in view in adopting them. We cannot understand these Way, 64 111. 406; Stuart v. Hamilton, 66 111. 253; Hale v. Everett, 53 N. H. 9; State v. Brewster, 42 N. J. 125 ; Carpenter v. People, 8 Col. 116, 5 Pac. 828. 1 State v. Mace, 5 Md. 337 ; Manly v. State, 7 Md. 135 ; Green v. Weller, 32 Miss. 650 ; Greencastle Township v. Black, 5 Ind. 566; People v. N. Y. Cen- tral Railroad Co., 34 Barb. 123, and 24 N. Y. 485; Story on Const. 453. " The true sense in which words are used in a statute is to be ascertained generally by taking them in their ordinary and popu- lar signification, or, if they be terms of art, in their technical signification. But it is also a cardinal rule of exposition, that the intention is to be deduced from the whole and every part of the statute, taken and compared together, from the words of the context, and such a con- struction adopted as will best effectuate the intention of the lawgiver. One part is referred to in order to help the con- struction of another, and the intent of the legislature is not to be collected from any particular expression, but from a general view of the whole act. Dwarris, 658, 698, 702, 703. And when it appears that the framers have used a word in a particular sense generally in the act, it will be presumed that it was intended to be used in the same sense throughout the act, unless an intention to give it a different signification plainly appears in the particular part of the act alleged to be an exception to the general meaning indi- cated. Dwarris, 704 et seq. When words are used to which the legislature has given a plain and definite import in the act, it would be dangerous to put upon them a construction which would amount to holding that the legislature did not mean what it has expressed. It follows from these principles that the statute itself furnishes the best means of its own exposition; and if the sense in which words were intended to be used can be clearly ascertained from all its parts and provisions, the intention thus indicated shall prevail, without resorting to other means of aiding in the construction. And these familiar rules of construction apply with at least as much force to the con- struction of written constitutions as to statutes ; the former being presumed to be framed with much greater care and consideration than the latter." Green v. Weller, 32 Miss. 650, 678. Words re- enacted after they have acquired a set- tled meaning will be understood in that" meaning. Fulmer v. Commonwealth, 97 Penn. St. 503. The argument ab incon- venienti cannot be suffered to influence the courts by construction to prevent the evident intention. Chance v. Marion County, 64 111. 66. 94 CONSTITUTIONAL LIMITATIONS. [CH. IV. provisions unless we understand their history; and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense. When the Constitution speaks of an ex post facto law, it means a law technically known by that designation; the meaning of the phrase having become defined in the history of constitutional law, and being so familiar to the people that it is not necessary to employ language of a more popular character to designate it. The technical sense in these cases is the sense popularly understood, because that is the sense fixed upon the words in legal and constitutional history where they have been employed for the protection of popular rights. 1 The Common Law to be kept in View. It is also a very reasonable rule that a State constitution shall be understood and construed in the light and by the assistance of the common law, and with the fact in view that its rules are still left in force. By this we do not mean that the common law is to control the constitution, or that the latter is to be warped and perverted in its meaning in order that no inroads, or as few as possible, may be made in the system of common- law rules, but only that for its definitions we are to draw from that great fountain, and that in judging what it means, we are to keep in mind that it is not the beginning of law for the State, but that it assumes the existence of a well-understood system which is still to remain in force and be administered, but under 1 See Jenkins v. Ewin, 8 Heisk. 476. Kent, of which the thirteen provinces It is quite possible, however, in applying were a part and parcel ; for in their char- constitutional maxims, to overlook en- ters they were to hold of the manor of tirely the reason upon which they rest, Greenwich in Kent, of which manor they and " considering merely the letter, go were by charter to be parcel ! The opin- but skin deep into the meaning." On the ion, it is said, " raised a very loud laugh," great debate on the motion for withdraw- but Sir James continued to support it, ing the confidence of Parliament from and concluded by declaring that he would the ministers, after the surrender of Corn- give the motion a hearty negative. Thus wallis, a debate which called out the would he have settled a great principle of best abilities of Fox and Pitt as well as constitutional right, for which a seven of the ministry, and necessarily led to the years' bloody war had been waged, by discussion of the primary principle in putting it in the form of a meaningless free government, that taxation and repre- legal fiction. Hansard's Debates, Vol. sentation shall go together, Sir James XXII. p. 1184. Lord Mahon, following Mariott rose, and with great gravity pro- Lord Campbell, refers the origin of this ceedecl to say, that if taxation and repre- wonderful argument to Mr. Hardinge, a sentation were to go hand in hand, then Welsh judge, and nephew of Lord Cam- Britain had an undoubted right to tax den; 7 Mahon's Hist. 139. He was said America, because she was represented in to have been a good lawyer, but must the British Parliament. She was repre- have read the history of his country to eented by the members for the county of little purpose. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 95 such limitations and restrictions as that instrument imposes. 1 It is a maxim with the courts that statutes in derogation of the common law shall be construed strictly, 2 a maxim which we fear is sometimes perverted to the overthrow of the legislative intent; but there can seldom be either propriety or safety in applying this maxim to. constitutions. When these instruments assume to make any change in the common law, the change designed is generally a radical one ; but as they do not go minutely into particulars, as do statutes, it will sometimes be easy to defeat a provision, if courts are at liberty to say that they will presume against any intention to alter the common law further than is expressly declared. A reasonable construc- tion is what such an instrument demands and should receive; and the real question is, what the people meant, and not how meaningless their words can be made by the application of arbitrary rules. 3 As a general thing, it is to be supposed that the same word is used in the same sense wherever it occurs in a constitution. 4 1 State v. Noble, 118 Ind. 350, 21 N. E. Kep. 244. 2 Broom's Maxims, 33; Sedg. on Stat. & Const. Law, 313. See Harrison v. Leach, 4 W. Va. 383. 3 Under a clause of the constitution of Michigan which provided that " the real and personal estate of every female acquired before marriage, and all property to which she may afterwards become en- titled, by gift, grant, inheritance, or de- vise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, or en- gagements of her husband, and may be devised or bequeathed by her as if she were unmarried," it was held that a mar- ried woman could not sell her personal property without the consent of her hus- band, inasmuch as the power to do so was not expressly conferred, and the clause, being in derogation of the common law, was not to be extended by construction. Brown v. Fifield, 4 Mich. 322. The dan- ger of applying arbitrary rules in the construction of constitutional principles might well, as it seems to us, be illus- trated by this case. For while on the one hand it might be contended that, as a provision in derogation of the common law, the one quoted should receive a strict construction, on the other hand it might be insisted with perhaps equal rea- son that, as a remedial provision, in furtherance of natural right and justice, it should be liberally construed, to effect the beneficial purpose had in view. Thus arbitrary rules, of directly opposite ten- dency and force, would be contending for the mastery in the same case. The sub- sequent decisions under the same provi- sion do not appear to have followed this lead. See White v. Zane, 10 Mich. 333 ; McKee v. Wilcox, 11 Mich. 358; Farr v. Sherman, 11 Mich. 33; Watson . Thur- ber, 11 Mich. 457; Burdeno v. Amperse, 14 Mich. 91 ; Tong v. Marvin, 15 Mich. 60; Tillman v. Shackleton, 15 Mich. 447; Devries v. Conklin, 22 Mich. 255; Rankin v. West, 25 Mich. 195. The common law is certainly to be kept in view in the interpretation of such a clause, since otherwise we do not ascertain the evil designed to be remedied, and perhaps are not able fully to understand and explain the terms employed ; but it is to be looked at with a view to the real intent, rather than for the purpose of arbitrarily restraining it. See Bishop, Law of Mar- ried Women, 18-20 and cases cited ; McGinnis v. State, 9 Humph. 43; State v. Lash, 16 N. J. 380, 32 Am. Dec, 397; Cadwallader v. Harris, 76 111. 370; Moyer v. Slate Co., 71 Pa. St. 293. * Brien v. Williamson, 8 Miss. 14. If in one place in a statute the meaning of a 96 CONSTITUTIONAL LIMITATIONS. [CH. IV. Here again, however, great caution must be observed in applying an arbitrary rule ; for, as Mr. Justice Story has well observed: " It does not follow, either logically or grammatically, that because a word is found in one connection in the Constitution with a definite sense, therefore the same sense is to be adopted in every other connection in which it occurs. This would be to suppose that the framers weighed only the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen and practical reasoners. And yet nothing has been more common than to subject the Constitution to this narrow and mischievous criticism. 1 Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the Constitution a word used in some sense which falls in with their favorite theory of interpreting it, have made that the standard by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning when it seemed too large for their purposes, and extending it when it seemed too short. They have thus distorted it to the most unnatural shapes, and crippled where they have sought only to adjust its proportions according to their own opinions." 2 And he gives many instances where, in the national Constitution, it is very manifest the same word is employed in different mean- ings. So that, while the rule may be sound as one of presump- tion merely, its force is but slight, and it must readily give way to a different intent appearing in the instrument. Where a constitution is revised or amended, (a) the new pro- visions come into operation at the same moment that those they take the place of cease to be of force; and if the new instrument re-enacts in the same words provisions which it supersedes, it is a reasonable presumption that the purpose was not to change word or phrase is clear, it will generally l See remarks of Johnson, J., in Ogden. be taken in the same sense throughout v. Saunders, 12 Wheat. 213, '290. the act. Rhodes v. Weldy, 46 Ohio St. 2 Story on Const. 454. And see 234, 20 N. E. Rep. 461. Cherokee Nation v. Georgia, 5 Pet 1, 19. (a) [[Whether the attempt to amend has* sufficiently complied with the constitu- tional requirements of formality in amending the constitution is a question for the courts, and that the legislature has declared the amendment adopted is immaterial. State v. Powell, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652. That an amendment must be complete and not conditional and dependent, for its force, upon the subsequent acts and discretion of certain officers, see Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L. R. A. 312, in which an attempted amendment relating to the relocation of the State capitol was declared invalid. All preliminary steps prescribed for amend- ment of constitution must be taken in full compliance with requirements. State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L. R. A. 560 ; State v. Brookhart, 113 Iowa, 250, 84 N. W. 1064.] CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 97 the law in those particulars, but to continue it in uninterrupted operation. This is the rule in the case of statutes, 1 and it some- times becomes important, where rights had accrued before the revision or amendment took place. Its application to the case of an amended or revised constitution would seem to be unques- tionable. Operation to be Prospective. We shall venture also to express the opinion that a constitution should operate prospectively only, unless the words employed show a clear indention that it should have a retrospective effect. This is the rule in regard to statutes, and it is " one of such obvious convenience and justice, that it must always be adhered to in the construction of statutes, unless in cases where there is something on the face of the enactment putting it beyond doubt that the legislature meant it to operate retrospectively. " 2 Retro- spective legislation, except when designed to cure formal defects, or otherwise operate remedially, is commonly objectionable in principle, and apt to result in injustice; and it is a sound rule of construction which refuses lightly to imply an intent to enact it. And we are aware of no reasons applicable to ordinary legislation which do not, upon this point, apply equally well to constitutions. 3 > Laude v. Chicago, &c. R. R. Co., 33 Wis. 640; Gilkey v. Cook, 60 Wis. 133, 18 N. W. 639. Blackwood v. Van Vleit, 30 Mich. 118. 2 Moon v. Durden, 2 Exch. 22. See Dash v. Van Kleek, 7 Johns. 477 ; Brown v. Wilt-ox, 22 Miss. 127; Price v. Mott, 62 Pa. St. 315; Broom's Maxims, 28; post, p. 629 and note. 8 In Allbyer v. State, 10 Ohio St. 588, a question arose under the provision of the constitution that "all laws of a gen- eral nature shall have a uniform operation throughout the State." Another clause provided that all laws then in force, not inconsistent with the constitution, should continue in force until amended or re- pealed. Allbyer was convicted and sen- tenced to imprisonment under a crimes act previously in force applicable to Ham- ilton County only, and the question was, whether that act was not inconsistent with the provision above quoted, and therefore repealed by it. The court held that the provision quoted evidently had regard to future and not to past legislation, and therefore was not repealed. A similar decision was made in State v. Barbee, 3 Ind. 258; Evans . Phillipi, 117 Pa. St. 226, 11 All. 630; Pecot v. Police Jury, 41 La. Ann. 706, 6 So. 077. So as to the effect of a provision allowing com- pensation for property injured, but not taken, in course of public improvements. Folkenson v. Easton, 116 Pa. St. 523, 8 Atl. 869. See also State v. Thompson, 2 Kan. 432; Slack v. Maysville, &c. R. R, Co., 13 B. Monr. 1 ; State v. Macon County Court, 41 Mo. 453 ; N. C. Coal Co. v. G. C. Coal & Iron Co., 37 Md. 657. In Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9, 12, Denio, J., says : " The rule laid down in Dash v. Van Kleek, 7 Johns. 477, and other cases of that class, by which the courts are admonished to avoid, if possible, such an interpretation as would give a statute a retrospective operation, has but a limited application, if any, to the construction of a constitution. When, therefore, we read in the provision under consideration, that the stockholders of every banking corporation shall be sub- ject to a certain liability, we are to attrib- ute to the language its natural meaning, 98 CONSTITUTIONAL LIMITATIONS. [CH. IV. Implications. The implications from the provisions of a constitution are sometimes exceedingly important, and have large influence upon its construction. In regard to the Constitution of the United States the rule has been laid down, that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred. 1 The same rule has been applied to the State constitution, with an important modification, by the Supreme Court of Illinois. "That other powers than those -expressly granted may be, and often are, conferred by implication, is too well settled to be doubted. Under every constitution the doc- trine of implication must be resorted to, in order to carry out the general grants of power. A constitution cannot from its very nature enter into a minute specification of all the minor powers naturally and obviously included in it and flowing from the great and important ones which are expressly granted. It is therefore established as a general rule, that when a constitu- tion gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for the exercise of the one or the performance of the other. The implication under this rule, however, must be a necessary, not a conjectural or argumentative one. And it is further modified by another rule, that where the means for the exercise of a granted power are given, no other or different means can be implied, as being more effectual or convenient. " 2 The rule applies to the exer- cise of power by all departments and all officers, and will be touched upon incid-entally hereafter. Akin to this is the rule that " where the power is granted in general terms, the power is to be construed as coextensive with the terms, unless some clear restriction upon it is deducible [expressly or by implication] from the context." 3 This rule has been so frequently applied as a restraint upon legislative encroachment upon the grant of power to the judiciary, that we without inquiring whether private inter- Northwestern Fertilizing Co. v. Hyde ests may not be prejudiced by such a Park, 70 111. 634. sweeping mandate." The remark was 2 Field v. People, 3 111. 79, 83. See obiter, as it was found that enough ap- Fletcher v. Oliver, 25 Ark. 289. In peared in the constitution to show clearly Nevada it has been held that a constitu- that it was intended to apply to existing, tional provision that the counties shall as well as to subsequently created, bank- provide for their paupers will preclude a ing institutions. State asylum for the poor. State v. 1 Story on Const. 430. See also Hallock, 14 Nev. 202, 33 Am. Rep. 559. United States v. Fisher, 2 Cranch, 858; 8 Story on Const. 424-426. See Du McCulloch v. Maryland, 4 Wheat. 316 ; Page County v. Jenks, 65 111. 275. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 99 shall content ourselves in this place with a reference to the cases collected upon his subject and given in another chapter. 1 Another rule of construction is, that when the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases. On this ground it has been held by the Supreme Court of Maryland, that where the consti- tution defines the qualifications of an officer, it is not in the power of the legislature to change or superadd to them, unless the power to do so is expressly or by necessary implication con- ferred by the constitution itself. 2 Other cases recognizing the same principle are referred to in the note. 3 1 See post, pp. 124, 162. 2 Thomas v. Owens, 4 Md. 189. And see Barker v. People, 3 Cow. 686 ; Matter of Dorsey, 7 Port. 293. 8 The legislature cannot add to the constitutional qualifications of voters : Ri- eon v. Fair, 24 Ark. 161 ; St. Joseph, &c. II. R. Co. v. Buchanan County Court, 39 Mo. 485 ; State v. Williams, 5 Wis. 308 ; State v Baker, 38 Wis. 71 ; Monroe v. Col- lins, 17 Ohio St. 665; Stat.e v. Symonds, 67 Me. 148; State v. Staten, 6 Cold. 233; Davies v. McKeeby, 5 Nev. 369 ; McCaf- ferty v. Gayer, 59 Pa. St. 109; Quinn v. State, 35 Ind. 485 ; Clayton v. Harris, 7 Nev. 64 ; Randolph v. Good, 3 W. Va. 551 ; [Morris v. Powell, 125 Ind. 281, 25 N. E. 221, 9 L. R. A. 326. Nor diminish them : Allison v. Blake, 57 N. J. L. 6, 29 Atl. 417, 25 L. R. A. 480, and note ; except in the case of school officers and other officers not provided for in the Constitution. Plummer v. Yost, 144 111. 68, 33 N. E. 191, 19 L. R. A. 110;] nor of an officer: Feibleman v. State, 98 Ind. 616; nor shorten the constitutional term of an office : Howard v. State, 10 Ind. 99; Cotten v. Ellis, 7 Jones, N. C. 545 ; State v. Askew, 48 Ark. 82, 2 S. W. 349 ; nor practically abolish the office by repealing provision for salary: Reid v. Smoulter, 128 Pa. 324, 6 L. R. A. 517, 18 Atl. Rep. 445; nor extend the consti- tutional term : People v. Bull, 46 N. Y. 57; Goodin v. Thoman, 10 Kan. 191; State ?>. Brewster, 44 Ohio St. 589, 6 N. E. 653 ; fJKahn v. Sutro, 1 14 Cal. 316, 46 Pac. 87, 33 L. R. A. 620; see also Hill v. Slade, 41 Md. 640, 48 Atl. 64 (Nov. 15, 1900);] but see Jordan v. Bailey, 37 Minn. 174, 33 N. W. 778 ; nor add to the constitutional grounds for removing an officer: Lowe v. Commonwealth, 3 Met. (Ky.) 237; Brown v. Grover, 6 Bush, 1, as by enacting that intoxication while discharging his duties shall be deemed misfeasance in office, Com. v. Williams, 79 Ky. 42; but see McComas v. Krug, 81 Ind. 327 ; nor change the compensa- tion prescribed by the constitution : King v. Hunter, 65 N. C. 603 ; see also, on these questions, post, p. 388, note ; nor provide for the choice of officers a dif- ferent mode from that prescribed by the constitution : People v. Raymond, 37 N. Y.428 ; Devoy v. New York, 35 Barb. 264; 22 How. Pr. 226; People v. Blake, 49 Barb. 9 ; People v. Albertson, 55 N. Y. 50; Opinions of Justices, 117 Mass. 603; State v. Goldstucker, 40 Wis. 124; see post, p. 388, note. A legislative extension of an elective office is void as applied to incumbents. People v. McKinney, 52 N. Y. 374. fJBut where the constitution contains no prohibition, the legislature may prescribe the qualifications of voters at municipal elections. Hanna v. Young, 84 Md. 179, 35 Atl. 674, 34 L. R. A. 55. And of officers : State v. McCallister, 38 W. Va. 485, 18 S. E. 770, 24 L. R. A. 343. Where the constitution limits the term, appointee under statute providing for holding during good behavior can- not hold beyond constitutional term. Neumeyer v. Krakel, Ky. , 62 S. W. 618 (Apr. 25, 1901).] It is not unconstitutional to allow the governor to supply temporary vacancies in offices which under the constitution are elective. Sprague v. Brown, 40 Wis. 100 CONSTITUTIONAL LIMITATIONS. [CH. IV. The Light which the Purpose to be accomplished may afford in Construction. The considerations thus far suggested are such as have no regard to extrinsic circumstances, but are those by the aid of which we seek to arrive at the meaning of the constitution from an examination of the words employed. It is possible, however, that after we shall have made use of all the lights which the instrument itself affords, there may still be doubts to clear up and ambiguities to explain. Then, and only then, are we warranted in seeking elsewhere for aid. We are not to import difficulties into a constitution, by a consideration of extrinsic facts, when none appear upon its face. If, however, a difficulty really exists, which an examination of every part of the instrument does not enable us to remove, there are certain extrinsic aids which may be resorted to, and which are more or less satisfactory in the light they afford. Among these aids is a contemplation of the object to be accomplished or the mischief designed to be remedied or guarded against by the clause in which the ambiguity is met with. 1 "When we once know the reason which alone determined the will of the lawmakers, we ought to interpret and apply the words used in a manner suitable and consonant to that reason, and as will be best calculated to effectuate the intent. Great caution should always be observed in the application of this rule to particular given cases ; that is, we ought always to be certain that we do know, and have actually ascertained, the true and only reason which induced the act. It is never allowable to indulge in vague and uncertain conjecture, or in supposed reasons and views of the framers of an act, where there are none known with any degree of cer- tainty." 2 The prior state of the law will sometimes furnish the clue to the real meaning of the ambiguous provision, 3 and it is 612. But such vacancy does not arise by A. 613. Where the term fixed by statute mere failure to hold the election. Ijams is unconstitutional, the tenure is at the v. Duvall, 85 Md. 252, 36 Atl. 819, 36 L. will of the appointing power. Lewis v. R. A. 127. Enumeration in constitution Lewelling, 63 Kan. 201, 36 Pac. 351, 23 of certain modes in which vacancies arise L. R. A. 510.] does not prevent legislative certain of 1 Alexander v. Worthington, 5 Md. other modes. State v. Lansing, 46 Neb. 471 ; District Township v. Dubuque, 7 514, 64 N. W. 1104, 35 L. R. A. 124. Ill- Iowa, 262. See Smith v. People, 47 N. ness of governor which disables him to Y. 330; People v. Potter, 47 N. Y. 375 ; perform his duties is such vacancy as Ball v. Chadwick, 46 111. 28; Sawyer v. authorizes the officer designated by the Insurance Co , 46 Vt. 697. constitution to assume the powers and 2 Smith on Stat. and Const. Construc- discharge the duties of the governor until tion, 634. See also remarks of Branson, the disability is removed. Barnard v. Tag- J., in People v. Purdy, 2 Hill, 35-37. gart, 66 N. H. 362, 29 Atl. 1027, 25 L. R. 8 Baltimore v. State, 15 Md. 376; CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 101 especially important to look into it if the constitution is the successor to another, and in the particular in question essential changes have apparently been made. 1 Proceedings of the Constitutional Convention. When the inquiry is directed to ascertaining the mischief designed to be remedied, or the purpose sought to be accom- plished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. 2 Where the proceedings clearly point out the purpose of the pro- vision, the aid will be valuable and satisfactory ; but where the question is one of abstract meaning, it will be difficult to derive from this source much reliable assistance in interpretation. Every member of such a convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of a con- vention in adopting a particular clause. It is quite possible for a clause to appear so clear and unambiguous to the members of a convention as to require neither discussion nor illustration; and the few remarks made concerning it in the convention might have a plain tendency to lead directly away from the meaning in the minds of the majority. It is equally possible for a part of the members to accept a clause in one sense and a part in another. And even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the words would most naturally and obviously convey. 3 For as the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common under- standing, and ratified the instrument in the belief that that was Henry v. Tilson, 19 Vt. 447; Hamilton v. son, J., People v. Purdy, 2 Hill, 31 ; Peo- St. Louis County Court, 16 Mo. 3 ; pie v. N. Y. Central Railroad Co., 24 N. People v. Gies, 25 Mich. 83; Servis v. Y. 485. See State v. Kennon, 7 Ohio St. Beatty, 32 Miss. 52 ; Bandel v. Isaac, 13 546 ; Wisconsin Cent. R. R. Co. v. Taylor Md 202; Story on Const. 428. Co., 52 Wis. 37, 8 N. W. 833; State v. 1 People v. Blodgett, 13 Mich. 127, Barnes, 24 Fla. 29, 3 So. 433. 147. 3 Taylor v. Taylor, 10 Minn. 107. 2 Per Waliuortk, Chancellor, Coutant And see Eakin v. Raub, 12 S. & R. 352 ; v. People, 11 Wend. 611, 518, and Clark Aldridge v. Williams, 3 How. 1; Stater. v. People, 26 Wend. 599, 602 ; per Bron- Doron, 5 Nev. 399. 102 CONSTITUTIONAL LIMITATIONS. [CH. IV. the sense designed to be conveyed. 1 These proceedings therefore are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives. The history of the calling of the conven- tion, the causes which led to it, and the discussions and issues before the people at the time of the election of the delegates, will sometimes be quite as instructive and satisfactory as any- thing to be gathered from the proceedings of the convention. 2 Contemporaneous and Practical Construction. An important question which now suggests itself is this: How far the contemporaneous interpretation, or the subsequent prac- tical construction of any particular provision of the constitution, is to have weight with the courts when the time arrives at which a judicial decision becomes necessary. Contemporaneous inter- pretation may indicate merely the understanding with which the people received it at the time, or it may be accompanied by acts done in putting the instrument in operation, and which neces- sarily assume that it is to be construed in a particular way. In the first case it can have very little force, because the evidences of the public understanding, when nothing has been done under the provision in question, must always of necessity be vague and indecisive. But where there has been a practical construction, which has been acquiesced in for a considerable period, con- siderations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist. Indeed, where a particular con- struction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the constitution, and by those who had opportunity to under- stand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly inter- prets the intention. And where this has been given by officers in the discharge of their official duty, and rights have accrued in reliance upon it, which would be divested by a decision that the construction was erroneous, the argument ab inconvenienti is sometimes allowed to have very great weight. 1 State v. Mace, 5 Md. 337 ; Manly v. * See People v. Harding, 63 Mich. 481, State, 7 Md. 135 ; Hills v. Chicago, 60 111. 19 N. W. 155. 86 ; Beardstown v. Virginia, 76 111. 34. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 103 The Supreme Court of the United States has had frequent occasion to consider this question. In Stuart v. Laird, 1 decided in 1803, that court sustained the authority of its members to sit as circuit judges on the ground of a practical construction, commencing with the organization of the government. In Martin v. Hunter's Lessee, 2 Justice Story, after holding that the appellate power of the United States extends to cases pending in the State courts, and that the 25th section of the Judiciary Act, which authorized its exercise, was supported by the letter and spirit of the Constitution, proceeds to say: " Strong as this conclusion stands upon the general language of the Constitution, it may still derive support from other sources. It is an historical fact, that this exposition of the Constitution, extending its appellate power to State courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective reason- ings both in and out of the State conventions. It is an historical fact, that at the time when the Judiciary Act was submitted to the deliberations of the First Congress, composed, as it was, not only of men of great learning and ability, but of men who had acted a principal part in framing, supporting, or opposing that Constitution, the same exposition was explicitly declared and admitted by the friends and by the opponents of that system. It is an historical fact, that the Supreme Court of the United States have from time to time sustained this appellate jurisdic- tion in a great variety of cases, brought from the tribunals of many of the most important States in the Union, and that no State tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court, until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence by enlightened State courts, and these judicial decisions of the Supreme Court through so long a period, do, as we think, place the doctrine upon a foundation of authority which cannot be shaken without delivering over the subject to perpetual and irremediable doubts." The same doctrine was subsequently supported by Chief Justice Marshall in a case involving the same point, and in which he says that " great weight has always been attached, and very rightly attached, to contemporaneous exposition." 3 In Bank of United States v. Halstead 4 the question was made, whether the laws of the United States authorizing the courts of 1 1 Cranch, 299. Cohens v. Virginia, 6 Wheat. 264. 2 1 Wheat. 304, 861. See Story on 418. Const. 405-408. * 10 Wheat. 61, 63. 104 CONSTITUTIONAL LIMITATIONS. [CH. IV. the Union so to alter the form of process of execution used in the Supreme Courts of the States in September, 1789, as to subject to execution lands and other property not thus subject by the State laws in force at that time, were constitutional ; and Mr. Justice Thompson, in language similar to that of Chief Justice Marshall in the preceding case, says: "If any doubt existed whether the act of 1792 vests such power in the courts, or with respect to its constitutionality, the practical construction given to it ought to have great weight in determining both ques- tions." And Mr. Justice Johnson assigns a reason for this in a subsequent case: "Every candid mind will admit that this is a very different thing from contending that the frequent repetition of wrong will create a right. It proceeds upon the presumption that the contemporaries of the Constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the Constitution, and of the sense put upon it by the people when it was adopted by them." 1 Like views have been expressed by Chief Justice Waite in a recent decision. 2 Great deference has been paid in all cases to the action of the executive department, where its officers have been called upon, under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed they have carefully and conscientiously weighed all considerations, and endeavored to keep within the letter and the spirit of the Constitution. If the question involved is really one of doubt, the force of their judgment, especially in view of the injurious consequences that may result from disregarding it, is fairly entitled to turn the scale in the judicial mind. 3 1 Ogden v. Saunders, 12 Wheat. 290. Farmers' and Mechanics' Bank v. Smith, See Pike v. Megoun, 44 Mo. 491 ; State v. 3 S. & It. 63 ; Norris v. Clymer, 2 Pa. St. Parkinson, 5 Nev. 15. 277; Moers v. City of Reading, 21 Pa. St. 2 Minor v. Happersett, 21 Wall. 162. 188; Washington v. Page, 4 Cal. 838; To like effect is Ex parte Reynolds, 12 S. Surgett v. Lapice, 8 How. 48; Bissell v. W. Rep. 570 (Ark.). And see Collins v. Penrose, 8 How. 317; Troup v. Haight, Henderson, 11 Bush, 74,92. Hopk. 239; United States v. Gilmore, 8 8 Union Insurance Co. v. Hoge, 21 Wall. 330; Brown v. United States, 113 How. 35, 66; Edward's Lessee v. Darby, U. S. 568, 5 Sup. Ct. Rep. 648; Hedge- 12 Wheat. 206; Hughes v. Hughes, 4 T. B. cock v. Davis, 64 N. C. 650; Lafayette, Monr. 42; Chambers v.Fisk, 22 Tex. 504; &c. R. R. Co. v. Geiger, 34 Ind. 185; Britton v. Ferry, 14 Mich. 53 ; Bay City Bunn v. People, 45 111. 397 ; Scanlan v. State Treasurer, 23 Mich. 409 ; West- v. Childs, 33 Wis. 663; Faribault v. brook v. Miller, 56 Mich. 148, 22 N. W Misener, 20 Minn. 396; State v. Glenn, 256; Plummer v. Plummer, 37 Miss. 185; 18 Nev. 34, 1 Pac. 186; State v. Kelsey, Burgess v. Pue, 2 Gill, 11 ; State v. May- 44 N. J. L. 1 ; United States v. Ala. G. hew, 2 Gill, 487 ; Baltimore v. State, 15 Southern R. Co., 142 U. S. 615, 12 Sup. Md. 876 ; Coutant v. People, 11 Wend. Ct. Rep. 306 ; French v. State, 141 Ind. 611; People o. Dayton, 55 N. Y. 367; 618, 41 N. E.2; 29 L. R. A. HSfj Where CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 105 Where, however, no ambiguity or doubt appears in the law, we think the same rule obtains here as in other cases, that the court should confine its attention to the law, and not allow extrinsic circumstances to introduce a difficulty where the lan- guage is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the lawmakers. "Contemporary construc- tion . . . can never abrogate the text ; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries. " 1 While we con- ceive this to be the true and only safe rule, we shall be obliged to confess that some of the cases appear, on first reading, not to have observed these limitations. In the case of Stuart v. Laird, 2 above referred to, the practical construction was regarded as conclusive. To the objection that the judges of the Supreme Court had no right to sit as circuit judges, the court say : " It is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpreta- tion of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is at rest, and ought not now to be disturbed." This is certainly very strong language ; but language very similar in character was used by the Supreme Court of Massachusetts in one case where large and valuable estates depended upon a particular construction of a statute, and very great mischief the constitution lias been construed by Fed. Rep. 93. [TJpon whether or not an the political departments of the govern- executive officer may raise the question ment in its application to a political ques- of constitutionality of an act which casts tion, the courts will not only give great ministerial duties upon him, as a defence consideration to their action, but will gen- to a mandamus proceeding to compel per- erally follow the construction implicitly, formance of such duties, see State v. People v. Supervisors of La Salle, 100 Heard, 47 La. Ann. 1679, 18 So. 746, 47 111. 495. The passage of an act by the L. R. A. 513, and cases collected in note first State legislature is a contemporary thereto in L. R. A.] interpretation of a constitutional clause * Story on Const. 407. And see zn pari materia of much weight. Cooper Evans v. Myers, 25 Pa. St. 116; Sadler v. Mf'g Co. v. Ferguson, 113 U. S. 727, 5 Langham, 34 Ala. 311; Barnes v. First Sup. Ct. Rep. 739 ; People v. Wright, 6 Parish in Falmouth, 6 Mass. 401 ; Union Col. 92. Where undercolor of authority Pacific R. R. Co. v. United States, 10 Ct. long practical construction has sanctioned of Cl. Rep. 548 ; s. c. in error, 91 U. S. certain appointments by the legislature, it 72. See also St. Paul, M. & M. R. Co. v. will control. Hoveyv. State, 118 Ind. 502, Phelps, 137 U. S. 528, 11 Sup. Ct. Rep. 21 N. E. Rep. 890; Biggs v. McBride, 17 168; and Merritt v. Cameron, 137 U. S. Oreg. 640, 21 Pac. Rep. 878. The execu- 542, 11 Sup. Ct. Rep. 174.J tive construction of treaties is entitled to 2 1 Cranch, 299. a similar respect. Castro v. De Uriarte, 16 106 CONSTITUTIONAL LIMITATIONS. [CH. IV. would follow from changing it. The court said that, "although if it were now res Integra, it might be very difficult to maintain such a construction, jet at this day the argument ab inconvenlenti applies with great weight. We cannot shake a principle which in practice has so long and so extensively prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision is now supported is, that long and continued usage furnishes a contemporaneous construction which must prevail over the mere technical import of the words." 1 Lan- guage nearly as strong was also used by the Supreme Court of Maryland, where the point involved was the possession of a cer- tain power by the legislature, which it had constantly exercised for nearly seventy years. 2 It is believed, however, that in each of these cases an exami- nation of the Constitution left in the minds of the judges suffi- cient doubt upon the question of its violation to warrant their looking elsewhere for aids in interpretation, and that the cases are not in conflict with the general rule as above laid down. Acquiescence for no length of time can legalize a clear usurpa- tion of power, where the people have plainly expressed their will in the Constitution, and appointed judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period, in violation of the constitutional prohibition, without the mischief which the Con- stitution was designed to guard against appearing, or without any one being sufficiently interested in the subject to raise the question; but these circumstances cannot be allowed to sanction a clear infraction of the Constitution. 3 We think we allow to contemporary and practical construction its full legitimate force 1 Rogers v. Goodwin, 2 Mass. 476. 8 See further, on this subject, the case See also Fall v. Hazelrigg, 45 Ind. 576; of Sadler ;. Langham, 34 Ala. 311, 334; Scanlan v. Childs, 33 Wis. 663. People v. Allen, 42 N. Y. 378 ; Brown v. 2 State v. Mayhew, 2 Gill, 487. In State, 5 Col. 525 ; Halm v. United States, Essex Co. v. Pacific Mills, 14 Allen, 389, 14 Ct. of Cl. 305; Swift v. United States, the Supreme Court of 'Massachusetts ex- 14 Ct. of Cl. 481. Practical acquiescence pressed the opinion that the constitution- in a supposed unconstitutional law is en- ality of the acts of Congress making titled to much greater weight when the treasury notes a legal tender ought not defect which is pointed out relates to to be treated by a State court as open to mere forms of expression or enactment discussion after the notes had practically than when it concerns the substance of constituted the currency of the country legislation ; and if the objection is purely for five years. At a still later day, how- technical, long acquiescence will be con- ever, the judges of the Supreme Court of elusive against it. Continental Imp. Co. the United States held these acts void, v. Phelps, 47 Mich. 299, 11 N. W. 167. though they afterwards receded from this position. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 107 when we suffer it, where it is clear and uniform, to solve in its own favor the doubts which arise on reading the instrument to be construed. 1 1 There are cases which clearly go further than any we have quoted, and which sustain legislative action which they hold to be usurpation, on the sole ground of long acquiescence. Tims in Brigham v. Miller, 17 Ohio, 446, the ques- tion was, Has the legislature power to grant divorces ? The court say : " Our legislature have assumed and exercised this power for a period of more than forty years, although a clear and palpable as- sumption of power, and an encroachment upon the judicial department, in violation of the Constitution. To deny this long- exercised power, and declare all the con- sequences resulting from it void, is preg- nant with fearful consequences. If it affected only the rights of property, we should not hesitate; but second marriages have been contracted and children born, and it would bastardize all these, although born under the sanction of an apparent wedlock, authorized by an act of the legis- lature before they were born, and in con- sequence of which the relation was formed which gave them birth. On account of these children, and for them only, we hesitate. And in view of this, we are constrained to content ourselves with simply declaring that the exercise of the power of granting divorces, on the part of the legislature, is unwarranted and un- constitutional, an encroachment upon the duties of the judiciary, and a striking down of the dearest rights of individuals, without authority of law. We trust we have said enough to vindicate the Consti- tution, and feel confident that no depart- ment of State has any disposition to violate it, and that the evil will cease." So in Johnson v. Joliet & Chicago Railroad Co., 23 111. 202, 207, the question was whether railroad corporations could be created by special law, without a special declaration by way of preamble that the object to be accomplished could not be attained by general law. The court say : " It is now too late to make this objection, since, by the action of the general assembly under this clause, special acts have been so long the order of the day and the ruling pas- sion with every legislature which has con- vened under the Constitution, until their acts of this description fill a huge and misshapen volume, and important and valuable rights are claimed under them. The clause has been wholly disregarded, and it would now produce far-spread ruin to declare such acts unconstitutional and void. It is now safer and more just to all parties to declare that it must be un- derstood that, in the opinion of the gen- eral assembly at the time of passing the special act, its object could not be attained under the general law, and this without any recital by way of preamble, as in the act to incorporate the Central Railroad Company. That preamble was placed there by the writer of this opinion, and a strict compliance with this clause of the Constitution would have rendered it neces- sary in every subsequent act. But the legislature, in their wisdom, have thought differently, and have acted differently, until now our special legislation and its mischiefs are beyond recovery or rem- edy." These cases certainly presented very strong motives for declaring the law to be what it was not; but it would have been interesting and useful if either of these learned courts had enumerated the evils that must be placed in the opposite scale when the question is whether a con- stitutional rule shall be disregarded; not the least of which is, the encouragement of a disposition on the part of legislative bodies to set aside constitutional restric- tions, in the belief that, if the unconstitu- tional law can once be put in force, and large interests enlisted under it, the courts will not venture to declare it void, but will submit to the usurpation, no matter how gross and daring. We agree with the Supreme Court of Indiana, that, in con- struing constitutions, courts have nothing to do with the argument ab inconvenienti, and should not "bend the Constitution to suit the law of the hour : " Greencastle Township v. Black, 6 Ind. 557, 565; and with Bronson, Ch. J., in what he says in Oakley v. Aspinwall, 3 N. Y. 647, 568 : " It is highly probable that inconveniences will result from following the Constitution as it is written. But that consideration can have no force with me. It is not for us, but for those who made the instru- 108 CONSTITUTIONAL LIMITATIONS. [CH. IV. Unjust Provisions. We have elsewhere expressed the opinion that a statute can- not be declared void on the ground solely that it is repugnant to a supposed general intent or spirit which it is thought pervades or lies concealed in the Constitution, but wholly unexpressed, or because, in the opinion of the court, it violates fundamental rights or principles, if it was passed in the exercise of a power which the Constitution confers. 1 Still less will the injustice of a constitutional provision authorize the courts to disregard it, or indirectly to annul it by construing it away. It is quite possible that the people may, under the influence of temporary prejudice, or a mistaken view of public policy, incorporate pro- visions in their charter of government, infringing upon the proper rights of individual citizens or upon principles which ought ever to be regarded as sacred and fundamental in repub- lican government; and it is also possible that obnoxious classes may be unjustly disfranchised. The remedy for such injustice must be found in the action of the people themselves, through an amendment of their work when better counsels prevail. Such provisions, when free from doubt, must receive the same con- struction as any other. We do not say, however, that if a clause ment, to supply its defects. If the legis- ess. But if the legislature or the courts lature or the courts may take that office undertake to cure defects by forced and upon themselves, or if, under color of unnatural constructions, they inflict a construction, or upon any other specious wound upon the Constitution which noth- ground, they may depart from that which ing can heal. One step taken by the is plainly declared, the people may well legislature or the judiciary, in enlarging despair of ever being able to set any the powers of the government, opens the boundary to the powers of the govern- door for another which will be sure to ment. Written constitutions will be more follow ; and so the process goes on until than useless. Believing as I do that the all respect for the fundamental law is success of free institutions depends upon lost, and the powers of the government a rigid adherence to the fundamental law, are just what those in authority please to I have never yielded to considerations of call them." See also Encking v. Simmons, expediency in expounding it. There is 28 Wis. 272. Whether there may not be always some plausible reason for latitudi- circumstances under which the State can narian constructions which are resorted to be held justly estopped from alleging the for the purpose of acquiring power; some invalidity of its own action in apportion- evil to be avoided or some good to be at- ing the political divisions of the State, tained by pushing the powers of the gov- and imposing burdens on citizens, where ernment bey ond their legitimate boundary, such action has been acquiesced in for a It is by yielding to such influences that considerable period, and rights have been constitutions are gradually undermined acquired through bearing the burdens and finally overthrown. My rule has under it, see Rumsey v. People, 19 N. Y. ever been to follow the fundamental law 41 ; People v. Maynard, 15 Mich. 470 ; as it is written, regardless of consequences. Kneeland v. Milwaukee, 15 Wis. 454. If the law does not work well, the people 1 See post, p. 240, and cases referred to can amend it; and inconveniences can in notes, be borne long enough to await that proc- CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 109 should bo found in a constitution which should appear at first blush to demand a construction leading to monstrous and absurd consequences, it might not be the duty of the court to question and cross-question such clause closely, with a view to discover in it, if possible, some other meaning more consistent with the general purposes and aims of these instruments.- When such a case arises, it will be time to consider it. 1 Duty in Case of Doubt. But when all the legitimate lights for ascertaining the mean- ing of the constitution have been made use of, it may still happen that the construction remains a matter of doubt. In such a case it seems clear that every one called upon to act where, in his opinion, the proposed action would be of doubtful constitution- ality, is bound upon the doubt alone to abstain from acting. Whoever derives power from the constitution to perform any public function is disloyal to that instrument, and grossly dere- lict in duty, if he does that which he is not reasonably satisfied the constitution permits. Whether the power be legislative, executive, or judicial, there is manifest disregard of constitu- tional and moral obligation by one who, having taken an oath to observe that instrument, takes part in an action which he cannot say he believes to be no violation of its provisions. A doubt of the constitutionality of any proposed legislative enact- ment should in any case be reason sufficient for refusing to adopt it; and, if legislators do not act upon this principle, the reasons upon which are based the judicial decisions sustaining legisla- tion in very many cases will cease to be of force. Directory and Mandatory Provisions. The important question sometimes presents itself, whether we are authorized in any case, when the meaning of a clause of the Constitution is arrived at, to give it such practical construction as will leave it optional with the department or officer to which it is addressed to obey it or not as he shall see fit. In respect to statutes it has long been settled that particular provisions may be regarded as directory merely; by which is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given that it cannot effectually be exercised without observing them. The force of many of the decisions on 1 McMullen v. Hodge, 6 Tex. 34. See Cincinnati, 21 Ohio St. 14 ; Bailey v. Clarke v. Irwin, 5 Nev. Ill ; Walker v. Commonwealth, 11 Bush, 688. 110 CONSTITUTIONAL LIMITATIONS. [CH. IV. this subject will be readily assented to by all ; while others are sometimes thought to go to the extent of nullifying the intent of the legislature in essential particulars. It is not our purpose to examine the several cases critically, or to attempt what we deem impossible to reconcile them all ; but we shall content ourselves with' quoting from a few, with a view, if practicable, to ascertaining some line of principle upon which they can be classified. There are cases where, whether a statute was to be regarded as merely directory or not, was made to depend upon the employing or failing to employ negative words plainly importing that the act should be done in a particular manner or time, and not otherwise. 1 The use of such words is often conclusive of an intent to impose a limitation ; but their absence is by no means equally conclusive that the statute was not designed to be man- datory. 2 Lord Mansfield would have the question whether man- datory or not depend upon whether that which was directed to be done was or was not of the essence of the thing required. 3 The Supreme Court of New York, in an opinion afterwards approved by the Court of Appeals, laid down the rule as one settled by authority, that "statutes directing the mode of pro- ceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute. " * This rule strikes us as very general, and as likely to include within its scope, in many cases, things which are of the very essence of the proceeding. The questions in that case were questions of irregularity under elec- tion laws, not in any way hindering the complete expression of the will of the electors; and the court was doubtless right in holding that the election was not to be avoided for a failure in the officers appointed for its conduct to comply in all respects with the directions of the statute there in question. The same court in another case say : " Statutory requisitions are deemed directory only when they relate to some immaterial matter, where a compliance is a matter of convenience rather than of substance. " 5 The Supreme Court of Michigan, in a case involv- 1 Slayton v. Hulings, 7 Ind. 144 ; King 6 People v. Schermerhorn, 19 Barb. v. Inhabitants of St. Gregory, 2 Ad. & El. 640, 658. If a statute imposes a duty and 99 ; King v. Inhabitants of Hipswell, 8 gives the means of performing that duty, B. & C. 466. it must be held to be mandatory. Veazie 2 District Township v. Dubuque, 7 v. China, 50 Me. 618. " It would not per- lowa, 262, 284. haps be easy to lay down any general rule 8 Rex v. Locksdale, 1 Burr. 447. as to when the provisions of a statute are * People v. Cook, 14 Barb. 290; B.C. merely directory, and when mandatory 8 N. Y. 67. or imperative. Where the words are CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. Ill ing the validity of proceedings on the sale of land for taxes, laid down the rule that " what the law requires to be done for the protection of the taxpayer is mandatory, and cannot be regarded as directory merely." 1 A similar rule has been recognized in a case in Illinois. Commissioners had been appointed to ascer- tain and assess the damage and recompense due to the owners of land which might be taken, on the real estate of the persons benefited by a certain local improvement, in proportion as nearly as might be to the benefits resulting to each. By the statute, when the assessment was completed, the commissioners were to sign and return the same to the city council within forty days of their appointment. This provision was not complied with, but return was made afterwards, and the question was raised as to its validity when thus made. In the opinion of the court, this question was to be decided by ascertaining whether any advantage would be lost, or right destroyed, or benefit sacrificed, either to the public or to any individual, by holding the provi- sion directory. After remarking that they had held an assess- ment under the general revenue law, returned after the time appointed by law, as void, because the person assessed would lose the benefit of an appeal from the assessment, 2 they say of the statute before the court: "There are no negative words used declaring that the functions of the commissioners shall cease after the expiration of the forty days, or that they shall not make their return after that time; nor have we been able to discover the least right, benefit, or advantage which the property owner could derive from having the return made within that time, and not after. No time is limited and made dependent on that time, within which the owner of the property may apply to affirmative, and relate to the manner in ute providing that a court may appoint whicli power or jurisdiction vested in a three commissioners to determine public public officer or body is to be exercised, rights, "may" is mandatory, and parties and not to the limits of the power or juris- cannot agree that less than three shall diction itself, they may, and often have act. Monmouth v. Leeds, 76 Me. 28. been, construed to be directory ; but neg- a Clark v. Crane, 5 Mich. 160, 154. ative words, which go to the power or See also Young v. Joslin, 13 R. I. 675; jurisdiction itself, have never, that lam Sliawnee County v. Carter, 2 Kan. 115; aware of, been brought within that cate- Marx v. Hanthorn, 148 U. S. 172, 13 gory. ' A clause is directory,' says Taun- Sup. Ct Rep. 608] In Life Association ton, J., ' when the provisions contain mere v. Board of Assessors, 49 Mo. 512, it is matter of discretion and no more; but held that a constitutional provision that not so when they are followed by words "all property subject to taxation ought of positive prohibition.' Pearse v. Mor- to be taxed in proportion to its value " rice, 2 Ad. & El. 96." Per Sharsvood.J., is a prohibition against its being taxed in Bladen v. Philadelphia, 60 Pa. St. in any other mode, and the word ought is 464, 466. And see Pittsburg v. Coursin, mandatory. 74 Pa. St. 400 ; Kennedy v. Sacra- 2 Wheeler v. Chicago, 24 111. 105, 10& mento, 19 Fed. Rep. 580. Under a stat- 112 CONSTITUTIONAL LIMITATIONS. [CH. IV. have the assessment reviewed or corrected. The next section requires the clerk to give ten days' notice that the assessment has been returned, specifying the day when objections may be made to the assessment before the common council by parties interested, which hearing may be adjourned from day to day; and the common council is empowered in its discretion to con- firm or annul the assessment altogether, or to refer it back to the same commissioners, or to others to be by them appointed. As the property owner has the same time and opportunity to prepare himself to object to the assessment and have it cor- rected, whether the return be made before or after the expira- tion of the forty days, the case differs from that of Marsh v. Chesnut, 1 at the very point on which that case turned. Nor is there any other portion of the chapter which we have discov- ered, bringing it within the principle of that case, which is the well-recognized rule in all the books." 2 The rule is nowhere more clearly stated than by Chief Justice Shaw, in Torrey v. Milbury, 8 which was also a tax case. "In considering the various statutes regulating the assessment of taxes, and the measures preliminary thereto, it is not always easy to distinguish which are conditions precedent to the legality and validity of the tax, and which are directory merely, and do not constitute conditions. One rule is very plain and well settled, that all those measures that are intended for the security of the citizen, for ensuring equality of taxation, and to enable every one to know with reasonable certainty for what polls and for what real and personal estate he is taxed, and for what all those who are liable with him are taxed, are conditions precedent; and if they are not observed, he is not legally taxed ; and he may resist it in any of the modes authorized by law for contesting the validity of the tax. But many regulations are made by 1 14 111. 223. to hold any requirement of a law unneces- 2 Wheeler v. Chicago, 24 111. 105, 108. sary to be complied with, unless it be 8 21 Pick. 64,67. We commend in the manifest the legislature did not intend to same connection the views of Lewis, Ch. impose the consequence which would nat- J., in Corbett v. Bradley, 7 Nev. 108: urally follow from a non-compliance, or " When any requirement of a statute is which would result from holding the re- held to be directory, and therefore not quirement mandatory or indispensable, material to be followed, it is upon the as- If it be clear that no penalty wns in- sumption that the legislature itself so tended to be imposed for a non-com pli- considered it, and did not make the right ance, then, as a matter of course, it is conferred dependent upon a compliance but carrying out the will of the legisla- with the form prescribed for securing it. ture to declare the statute in that respect It is upon this principle that the courts to be simply directory. But if there be often hold the time designated in a stat- anything to indicate the contrary, a full ute, where a thing is to be done, to be di- compliance witli it must be enforced." rectory. No court certainly has the right See also Hurford v. Omaha, 4 Neb. 336. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 113 statutes designed for the information of assessors and officers, and intended to promote method, system, and uniformity in the modes of proceeding, a compliance or non-compliance with which does in no respect affect the rights of taxpaying citizens. These may be considered directory ; officers may be liable to legal animadversion, perhaps to punishment, for not observing them; but yet their observance is not a condition precedent to the validity of the tax." We shall quote further only from a single other case upon this point. The Supreme Court of Wisconsin, in considering the validity of a statute not published within the time required by la\v, " understand the doctrine concerning directory statutes to be this: that where there is no substantial reason why the thing to be done might not as well be done after the time prescribed as before, no presumption that by allowing it to be so done it may work an injury or wrong, nothing in the act itself, or in other acts relating to the same subject-matter, indicating that the legislature did not intend that it should rather be done after the time prescribed than not to be done at all, there the courts assume that the intent was, that if not done within the time prescribed it might be done afterwards. But when any of these reasons intervene, then the limit is established." 1 These cases perhaps sufficiently indicate the rules, so far as any of general application can be declared, which are to be made use of in determining whether the provisions of a statute are mandatory or directory. Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be re- garded as mandatory ; and if the act is performed, but not in the time or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute. 2 But this rule presupposes that no negative words are 1 State v. Lean, 9 Wis. 279, 292. See Ark. 609 ; State Auditor v. Jackson Co., further, for the views of this court on the 65 Ala. 142. subject here discussed, Wendel v. Dur- a The following, in addition to those bin, 26 Wis. 390. The general doctrine cited, are some of the cases in this coun- of the cases above quoted is approved and try in which statutes have been declared followed in French v. Edwards, 13 Wall, directory only : Odiorner. Rand, 59 N. H. 606. In Low v. Dunham, 61 Me. 566, a 504 ; Pond v. Negus, 3 Mass. 230 ; Wil- statute is said to be mandatory where liams v. School District, 21 Pick. 75 ; public interests or rights are concerned, City of Lowell v. Hadley, 8 Met. 180 ; and the public or third persons have a Holland v. Osgood, 8 Vt. 276 ; Corliss claim dejure that the power shall be ex- v. Corliss, 8 Vt. 373; People i>. Allen, erciscd. And see Wiley v. Flournoy, 30 6 Wend. 486 ; Marchant v. Langworthy, 8 114 CONSTITUTIONAL LIMITATIONS. [CH. IV. employed in the statute which expressly or by necessary impli- cation forbid the doing of the act at any other time or in any other manner than as directed. Even as thus laid down and restricted, the doctrine is one to be applied with much circum- spection ; for it is not to be denied that the courts have some- times, in their anxiety to sustain the proceedings of careless or incompetent officers, gone very far in substituting a judicial view of what was essential for that declared by the legislature. 1 But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Con- stitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done ; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not therefore to expect to find in a constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or 6 Hill, 646 ; Ex parte Heath, 3 Hill, 42 ; Ala. 620 ; Sorchan v. Brooklyn, 62 N. Y. People v. Honey, 12 Wend. 481 ; Jackson 339; People v. Tompkins, 64 N. Y. 53; v. Young, 5 Cow. 269 ; Striker v. Kelley, Limestone Co. v. Rather, 48 Ala. 433 ; 7 Hill, 9; People v. Peck. 11 Wend. 604; Webster v. French, 12 111. 302; McKune Matter of Mohawk & Hudson Railroad v. Weller, 11 Cal. 49; State v. Co. Com- Co., 19 Wend. 135 ; People v. Runkel, missioners of Baltimore, 29 Md. 516 ; 9 Johns. 147 ; Gale v. Mead, 2 Denio, 160 ; Fry v. Booth, 19 Ohio St. 25 ; Whalin v. Doughty v. Hope, 3 Denio, 249 ; Elmen- Macomb, 76 111. 49 ; Hurford v. Omaha, dorf v. Mayor, &c. of New York, 25 Wend. 4 Neb. 336 ; Lackawana 1 Iron Co. v. Lit- 692; Thames Manufacturing Co. v. La- tie Wolf, 38 Wis. 152; R. R. Co. v. War- throp, 7 Conn. 550 ; Colt v. Eves, 12 Conn, ren Co., 10 Bush, 711 ; Grant v. Spencer, 243; People v. Doe, 1 Mich. 451 ; Parks 1 Mont. 136. The list might easily be v. Goodwin, 1 Doug. (Mich.) 56; Hickey largely increased. v. Hinsdale, 8 Mich. 267 ; People v. Hart- 1 See upon this subject the remarks of well, 12 Mich. 508 ; State v. McGinley, Mr. Sedgwick in his work on Statutory 4 Ind. 7; Stayton v. Hulings, 7 Ind. 144; and Constitutional Law, p. 375, and those New Orleans v. St. Romes, 9 La. Ann. 573 ; of Hubbard, J., in Briggs v. Georgia, 15 Edwards v. James, 13 Tex. 52 ; State v. Vt. 61. Also see Dryfus v. Dridges, 45 Click, 2 Ala. 26; Savage v. Walshe, 26 Miss. 247. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 115 modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only ; 1 and we im- pute to the people a want of due appreciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end. Especially when, as has been already said, it is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication. 2 There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions ; but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions as they now stand do not sanction the application. In delivering the opinion of the New York Court of Appeals in one case, Mr. Justice Willard had occasion to consider the constitutional provision, that on the final passage of a bill the question shall be taken by ayes and noes, which shall be duly entered upon the journals; and he expressed the opinion that it was only directory to the legislature. 3 The remark was obiter dictum, as the court had already decided that the provision had been fully complied with ; and those familiar with the reasons which have induced the insertion of this clause in our constitutions will not readily concede that its sole design was to establish a mere rule of order for legislative proceedings which might be followed or not at discretion. Mr. Chief Justice Thurman, of Ohio, in a case not calling for a discussion of the subject, has considered a statute whose validity was assailed on the ground that it was not passed in the mode prescribed by the constitution. "By the term mode," he says, "I do not mean to 1 See State v. Johnson, 26 Ark. 281. People v. Lawrence, 36 Barb. 177 ; State Where the Constitution provides that v. Johnson, 26 Ark. 281 ; State v. Glenn, the legislature shall apportion the State 18 Nev. 34, 1 Pac. 186. " The essential into legislative districts every ten years, nature and object of constitutional law and that such appointment shall be based being restrictive upon the powers of the upon the last preceding federal census, several departments of government, it is one exercise of this power of apportion- difficult to comprehend how its provisions nient exhausts it, and the State cannot can be regarded as merely directory." be reapportioned until after the next fed- Nicholson, Ch. J., in Cannon v. Mathes, eral census. People v. Hutchinson, 172 8 Heisk. 504, 517. Unless expressly 111. 486, 50 N. E. 599, 40 L. R. A. 770.] permissive, constitutional provisions are 2 Wolcott v. Wigton, 7 Ind. 44; per mandatory. Varney v. Justice, 86 Ky. Branson, J., in People v. Purdy, 2 Hill, 596, 6 S. W. 457. 81 ; Greencastle Township >. Black, 5 Ind. 8 People v. Supervisors of Chenango, 666 ; Opinions of Judges, 18 Me. 458. See 8 N. Y. 317. 116 CONSTITUTIONAL LIMITATIONS. [CH. IV. include the authority in which the lawmaking power resides, or the number of votes a bill must receive to become a law. That the power to make law, is vested in the assembly alone, and that no act has any force that was not passed by the number of votes required by the constitution, are nearly, or quite, self-evident propositions. These essentials relate to the authority by which, rather than the mode in which, laws are to be made. Now to secure the careful exercise of this power, and for other good reasons, the constitution prescribes or recognizes certain things to be done in the enactment of laws, which things form a course or mode of legislative procedure. Thus we find, inter alia, the provision before quoted that every bill shall be fully and dis- tinctly read on three different days, unless, in case of urgency, three-fourths of the house in which it shall be pending shall dispense with this rule. This is an important provision without doubt, but, nevertheless, there is much reason for saying that it is merely directory in its character, and that its observance by the assembly is secured by their sense of duty and official oaths, and not by any supervisory power of the courts. Any other construction, we incline to think, would lead to very absurd and alarming consequences. If it is in the power of every court (and if one has the power, every one has it) to inquire whether a bill that passed the assembly was ' fully ' and 'distinctly ' read three times in each house, and to hold it invalid if, upon any reading, a word was accidentally omitted, or the reading was indistinct, it would obviously be impossible to know what is the statute law of the State. Now the requisition that bills shall be fully and distinctly read is just as imperative as that requiring them to be read three times ; and as both relate to the mode of procedure merely, it would be difficult to find any sufficient reason why a violation of one of them would be less fatal to an act than a violation of the other." l A requirement that a law shall be read distinctly, whether mandatory or directory, is, from the very, nature of the case, addressed to the judgment of the legislative body, whose decision as to what reading is sufficiently distinct to be a compliance cannot be subject to review. But in the absence of authority to the contrary, we should not have supposed that the requirement of three successive readings on different days stood upon the same footing. 2 To this extent a definite and certain rule is i Miller v. State, 3 Ohio St. 475, 483. 2 See People v. Campbell, 8 III. 466; The provision for three readings on sep- McCulloch v State, 11 Ind. 424 ; Cannon arate days does not apply to amendments v. Mathes, 8. Heisk. 504; Spangler v. made in the progress of the bill through Jacob}', 14 111.297; People ;. Starne, 35 the houses. People v. Wallace, 70 111. 680. 111. 121 ; Kyan v. Lynch, 68 111. loO. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 117 capable of being, and has been, laid down, which can be literally obeyed ; and the legislative body cannot suppose or adjudge it to have been done if the fact is otherwise. The requirement has an important purpose, in making legislators -proceed in their action with caution and deliberation ; and there cannot often be difficulty in ascertaining from the legislative records themselves if the constitution has been violated in this particular. There is, therefore, no inherent difficulty in the question being reached and passed upon by the courts in the ordinary mode, if it is decided that the constitution intends legislation shall be reached through the three readings, and not otherwise. The opinion above quoted was recognized as law by the Supreme Court of Ohio in a case soon after decided. In that case the court proceed to say: "The . . . provision . . . that no bill shall contain more than one subject, which shall be clearly expressed in its title, is also made a permanent rule in the introduction and passage of bills through the houses. The subject of the bill is required to be clearly expressed in the title for the purpose of advising members of its subject, when voting in cases in which the reading has been dispensed with by a two- thirds vote. The provision that a bill shall contain but one subject was to prevent combinations by which various and dis- tinct matters of legislation should gain a support which they could not if presented separately. As a rule of proceeding in the General Assembly, it is manifestly an important one. But if it was intended to effect any practical object for the benefit of the people in the examination, construction, or operation of acts passed and published, we are unable to perceive it. The title of an act may indicate to the reader its subject, and under the rule each act would contain one subject. To suppose that for such a purpose the Constitutional Convention adopted the rule under consideration would impute to them a most minute pro- vision for a very imperfect heading of the chapters of laws and their subdivision. This provision being intended to operate upon bills in their progress through the General Assembly, it must be held to be directory only. It relates to bills, and not to acts. It would be most mischievous in practice to make the validity of every law depend upon the judgment of every judicial tribunal of the State, as to whether an act or a bill contained more than one subject, or whether this one subject was clearly expressed in the title of the act or bill. Such a question would be decided according to the mental precision and mental disci- pline of each justice of the peace and judge. No practical benefit could arise from such inquiries. We are therefore of 118 CONSTITUTIONAL LIMITATIONS. [CH. IV. the opinion that in general the only safeguard against the vio- lation of these rules of the houses is their regard for, and their oath to support, the constitution of the State. We say, in gen- eral, the only safeguard; for whether a manifestly gross and fraudulent violation of these rules might authorize the court to pronounce a law unconstitutional, it is unnecessary to determine. It is to be presumed no such case will ever occur." * If the prevailing doctrine of the courts were in accord with this decision, it might become important to consider whether the object of the clause in question, as here disclosed, was not of such a character as to make the provision mandatory even in a statute. But we shall not enter upon that subject here, as elsewhere we shall have occasion to refer to decisions made by the highest judicial tribunals in nearly all the States, recogniz- i Pirn v. Nicholson, 6 Ohio St. 176, 179. Those provisions which relate to the structure of a bill or the forms to be observed in its passage are generally di- rectory, while those as to the number of members necessary to pass a bill and as to the effect and operation of a bill when passed, are usually mandatory. Ex parte Talk, 42 Ohio St. 638. But the authenti- cation of an act must be by signature, and one which, though passed, is nol^ signed nor enrolled is void. State v. Kiesewet- ter, 45 Ohio St. 254, 12 N. E. 807. See also in line with Pirn v. Nicholson, supra ; Washington v. Page, 4 Cal. 388. In Hill v. Boyland, 40 Miss. 618, a provi- sion requiring of all officers an oath to support the constitution was held not to invalidate the acts of officials who had neglected to take such an oath. And in McPherson v. Leonard, 29 Md. 377, the provision that the style of all laws shall be, " Be it enacted by the General As- sembly of Maryland," was held directory. Similar rulings were made in Cape Girardeau v. Riley, 52 Mo. 424; St. Louis v. Foster, 52 Mo. 513 ; Swann v. Buck, 40 Miss. 268. Directly the opposite has been held in Nevada. State v. Rogers, 10 Nev. 250. So a requirement that indictments shall conclude, "against the peace and dignity of the people of West Virginia," was held in Lemons v. People. 4 W. Va. 755, 1 Green Cr. R. 666, to be mandatory, and an indictment which complied with it, except in abbreviating the name of the State, was held bad. A statute which is passed in obedience to a constitutional requirement must be held mandatory. State v. Pierce, 35 Wis. 93, 99. A provision that the legislature shall provide for determining contested elec- tions is mandatory upon that depart- ment, but if in its enactments it fails to carry out the provision, the courts can- not annul the acts on that ground. Schulherr v. Bordeaux, 64 Miss. 59, 8 So. 201. So if the legislature disregards a provision that before a special law is enacted there must be evidence of pub- lication of notice of intention to introduce it. Davis v. Gaines, 48 Ark. 370, 3 S. W. 184. If a constitution provides " that when any bill is presented for an act of in- corporation, it shall be continued until another election of members of Assembly shall have taken place and public notice of the pendency thereof given, it does not necessarily follow that the organ- ization under the charter is not as to all practical purposes valid. The pro- vision is directory to the Assembly, and in the absence of any clause forbid- ding the enactment, does not affect the corporators unless the State itself in- tervenes. Whitney r. Wyman, 101 U. S. 392, 397. The State may waive condi- tions, and so long as the State raises no objection it is immaterial to other parties whether it is a corporation de facto or de jure. 'Ibid." McClinch v. Sturgis, 72 Me. 288, 295. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 119 ing similar provisions as mandatory, and to be enforced by the courts. And we concur fully in what was said by Mr. Justice Emmot in speaking of this very provision, that "it will be found upon full consideration to be difficult to treat any constitutional provision as merely directory and not imperative." 1 And with what was said by Mr. Justice Lumpkin, as to the duty of the courts: "It has been suggested that the prohibition in the seven- teenth section of the first article of the Constitution, 'Nor shall any law or ordinance pass containing any matter different from what is expressed in the title thereof, 'is directory only to the legislative and executive or law-making departments of the government. But we do not so understand it. On the contrary, we consider it as much a matter of judicial cognizance as any other provision in that instrument. If the courts would refuse to execute a law suspending the writ of habeas corpus when the public safety did not require it, a law violatory of the freedom of the press or trial by jury, neither would they enforce a statute which contained matter different from what was expressed in the title thereof." 2 Self-executing Provisions. But although none of the provisions of a constitution are to be looked upon as immaterial or merely advisory, there are some which, from the nature of the case, are as incapable of compulsory enforcement as are directory provisions in general. 3 The reason is that, while the purpose may be to establish rights or to impose duties, they do not in and of themselves constitute a sufficient rule by means of which such right may be protected or such duty enforced. In such cases, before the constitutional provision can be made effectual, supplemental legislation must be had ; and the provision may be in its nature mandatory to the legislature to enact the needful legislation, though back of it there lies no authority to enforce the command. Sometimes the constitution in terms requires the legislature to enact laws on a particular subject; and here it is obvious that the require- ment has only a moral force: the legislature ought to obey it; but the right intended to be given is only assured when the 1 People v. Lawrence, 36 Barb. 177, 43 Ala. 224; Nougues v. Douglass, 7 Cal. 186; QMulnix v. Mutual Hen. L. Ins. Co., 65; State v. McCann, 4 Lea, 1. 23 Col. 85, 46 Pae. 1114, 33 L. R. A. 3 There are also many which merely 827.] contemplate the exercise of powers con- 2 Protho v. Orr, 12 Ga. 36. See also ferred, when the legislature in its discre- Opinions of Judges, 18 Me. 458; Indiana tion shall deem it wise ; like the provision Central Railroad Co. v. Potts, 7 Ind. 681; that "suits may be brought against the People v. Starne, 35 111. 121 ; State v. State in such courts as may be by law Miller, 45 Mo. 495 ; Weaver v. Lapsley, provided." Ex parte State, 52 Ala. 231. 120 CONSTITUTIONAL LIMITATIONS. [CH. IV. legislation is voluntarily enacted. 1 Illustrations may be found in constitutional provisions requiring the legislature to provide by law uniform and just rules for the assessment and collection of taxes; these must lie dormant until the legislation is had; 2 they do not displace the law previously in force, though the purpose may be manifest to do away with it by the legislation required. 3 So, however plainly the constitution may recognize the right to appropriate private property for the general benefit, the appropriation cannot be made until the law has pointed out the cases, and given the means by which compensation may be assured.* A different illustration is afforded by the new amend- ments to the federal Constitution. The fifteenth amendment provides that "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 account of race, color, or previous condition of servi- tude. " To this extent it is self-executing, and of its own force it abolishes all distinctions in suffrage based on the particulars enumerated. But when it further provides that " Congress shall have power to enforce this article by appropriate legislation," it indicates the possibility that the rule may not be found suffi- ciently comprehensive or particular to protect fully this right to equal suffrage, and that legislation may be found necessary for that purpose. 6 Other provisions are completely self-executing, 1 School Board v. Patten, 62 Mo. 444. executing to this extent, that everything See Schulherr v. Bordeaux, 64 Miss. 59, done in violation of it is void. Brien v. 8 So. 201 ; [State v. Spokane, 24 Wash. Williamson, 8 Miss. 14; Russell c. Ayer, 63, 63 Pac. 1116-3 12 N - c - 180 > 27 s - E - 133 > ' 37 L - R - A - 4 Williams v. Detroit, 2 Mich. 560 ; 246.] A provision that " the legislature People v. Lake Co., 33 Cal. 487 : Bowie shall have no power to authorize lotteries . Lott, 24 La. Ann. 214 ; Mississippi for any purpose, and shall pass laws to Mills v. Cook, 56 Miss. 40 ; Coatesville prohibit the sale of lottery tickets in this Gas Co. v. Chester Co., 97 Pa. St. 476. State," was held to be of itself a prohibi- 8 Moore, J., in Supervisors of Dod- tion of lotteries. Bass v. Nashvile, Meigs, dridge v. Stout, 9 W. Va. 703, 705 ; Cahoon 421 ; Yerger v. Rains, 4 Humph. 259. In v. Commonwealth, 20 Gratt. 733; Lehigh State v. Woodward, 89 Ind. 110, it was Iron Co. v. Lower Macungie, 81 Pa. St. held that a like provision took away any 482; Erie Co. v. Erie, 113 Pa. St. 360, pre-existing authority to carry them on, 6 Atl. 136. but that it needed legislation to make 4 Lamb v. Lane, 4 Ohio St. 167. See them criminal. All negative or pro- School Board v. Patten, 62 Mo. 444 ; hibitive provisions in a constitution are Myers v. English, 9 Cal. 341 ; Gillinwater self-executing. Law v. People, 87 111. 385. v. Mississippi, &c. R. R. Co., 13 111. 1 ; f_Where the constitution requires that Cairo, &c. R. R. Co. v. Trout, 32 Ark. 17. all public institutions shall be located at A provision that all printing shall be the seat of government, the courts have done by the lowest bidder under regula- power to determine whether a proposed tions supplied by law is not self-execut- insane asylum is a public institution, and, ing. Brown v. Seay, 86 Ala. 122, 5 So. if it is found so to be, to enjoin its loca- 216. tion elsewhere. State v. Metschan, 32 6 United States v. Reese, 92 U. S. Oreg. 372, 46 Pac. 791, 41 L. R. A. 692, 214. Any constitutional provision is self- 63 Pac. 1071. Prohibition of donations CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 121 and manifestly contemplate no legislation whatever to give them full force and operation. 1 A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; 2 and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law. Thus, a constitution may very clearly require county and town government; but if it fails to indicate its range, and to provide proper machinery, it is not in this particular self-executing, and legislation is essen- tial. 3 Rights in such a case may lie dormant until statutes shall provide for them, though in so far as any distinct provision is made which by itself is capable of enforcement, it is law, (a) and all supplementary legislation must be in harmony with it. by municipalities to private corporations is self-executing. Washingtonian Home v. Chicago, 167 111. 414, 41 N. E. 893, 29 L. Ii. A. 798Q 1 See People v. Bradley, 60 111. 390; People v. McRoberts, 62 111. 38 ; Mitchell v. Illinois, &c. Coal Co., 68 111. 286; Beecher v. Baldy, 7 Mich. 488 ; People i'. Humsey. 64 111. 41; State v. Holladay, 64 Mo. 526 ; Miller v. Max, 65 Ala. 322; Hills v. Chicago, 60 111. 86 ; Kine v. Def- enbaugh, 64 111. 291 ; People o. Hoge, 65 Cal (>12 ; Rowan v. Runnels, 5 How. 134; Friedman v. Mathes, 8 Heisk. 488 ; John- son v. Parkersburgh, 16 W. Va. 402, 37 Am. Rep. 779; De Turk v. Com., 129 Pa. St. 161, 18 All. Rep. 757. 2 Friedman v. Mathes, 8 Heisk. 488 ; State c. Weston, 4 Neb. 216; People v. Hoge, 55 Cal. 612 ; Ewing v. Orville M. Co., 56 Cal. 649 ; Hills v. Chicago, 64 111. 86. A provision imposing a duty upon an officer is self-executing. State v. Bab- cock, 19 Neb. 230, 27 N. W. 98. So, one providing for jury trial in all of a certain class of cases. Woodward Iron Co. v. Cabaniss, 87 Ala. 328, 6 So. 300. So one providing that compensation shall be given for property " damaged " in the course of a public improvement. House- holder v. Kansas City, 83 Mo. 488. FJSo one providing that "knowledge, by any employee injured, of the defective or unsafe character or conditions of any machinery, ways or appliances, shall be no defence to an action for injury caused thereby." Illinois C. R. Co. v. Ihlenberg. 75 Fed. Rep. 873, 34 L. R. A. 393. That justices of peace in cities above 6,000 shall be paid by salaries in- stead of fees. Anderson v. Whatcom County, 15 Wash. 47, 45 Pac. 665, 33 L. R. A. 137. That civil service appoint- ments " shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations which so far as practicable shall be competitive." People v. Roberts, 148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 399. That no person shall hold a State and a federal office at the same time. De Turk v. Com., 129 Pa. 151, 18 All. 757, 5 L. R. A. 853, 15 Am. St. 705. Authorization of tax by an elec- tion. Logan o. Ouachita Parish, 105 La. 499, 29 So. 975.] 8 Wall, Ex parte, 48 Cal. 279; Attor- ney-General v. Common Council of Detroit, 29 Mich. 108. For exemption provisions, not self-executing, see Green v. Aker, 11 Ind. 223; Speidel v. Schlosser, 13 W. Va. 686. (a) [The Constitution of the State of Kansas of 1859, art. 12, 2, provides as follows: " Dues from corporations shall be secured by individual liability of the stock- holders to an additional amount equal to the stock owned by each stockholder ; and such other means as shall be provided by law ; . . ." The portion italicized is self-ex- ecuting, and enters as a part of the contractual liability of every person who volun- 122 CONSTITUTIONAL LIMITATIONS. [CH. IV. The provisions exempting homesteads from forced sale for the satisfaction of debts furnish many illustrations of self-executing provisions, and also of those which are not self-executing. Where, as in California, the constitution declares that "the legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families," the dependence of the provision on subsequent legis- lative action is manifest. But where, as in some other States, the constitution defines the extent, in acres or amount, that shall be deemed to constitute a homestead, and expressly exempts from any forced sale what is thus defined, a rule is prescribed whicli is capable of enforcement. Perhaps even in such cases, legislation may be desirable, by way of providing convenient remedies for the protection of the right secured, or of regulating the claim of the right so that its exact limits may be known and understood ; but all such legislation must be subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it. The provision of a constitution which defines a homestead and exempts it from forced sale is self-executing, at least to this extent, that, though it may admit of supplementary legislation in particulars where in itself it is not as complete as may be desirable, it will override and nullify whatever legislation, either prior or subsequent, would defeat or limit the homestead which is thus defined and secured. We have thus indicated some of the rules which we think are to be observed in the construction of constitutions. It will be perceived that we have not thought it important to quote and to tarily becomes a stockholder in any corporation (except railroad, charitable, and religious corporations, expressly excepted in later part of above section) created under the laws of Kansas. Whitman v. National Bank of Oxford, 176 U. S. 559, 20 Sup. Ct. Rep. 477, nff. 76 Fed. Rep. 697, and 51 U. S. App. 536, 83 Fed. Rep. 288, 28 C. C. A. 404. But see Woodworth i>. Bowles, 61 Kan. 669, 60 Pac. 331, in which it is said that the use of the future tense " shall be secured " indicates that the constitu- tional clause above given is not self-executing. The " double liability clause" of the Minnesota Constitution, which provides that " each stockholder in any corporation (excepting those organized for the purpose of carrying on any kind of manufactur- ing or mechanical business) shall be liable to the amount of stock held or owned by him " is held to create expropris vigore an individual liability on the part of each stock- holder. Willis v. Mabon, 48 Minn. 140, sub nom. Willis v. St. Paul Sanitation Co., 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. 626. So too no supplementary legislation is needed to make effective the provision of the Nebraska Constitution dpclaring that "every stockholder in a banking corporation or institution shall be individually re- sponsible and liable to its creditors, over and above the amount of stock by him held, to an amount equal to his respective stock or shares so held, for all its " liabilities ac- cruing while he remains such stockholder." Farmers' Loan and T. Co. v. Funk, 49 Neb. 353, 68 N. W. 520. In this connection, see note appended to 44 L. ed. U. S. 589, and another on self-executing constitutional provisions in 16 L. R. A. 281.] Oil. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 123 dwell upon those arbitrary rules to which so much attention is sometimes given, and which savor rather of the closet than of practical life. Our observation would lead us to the conclusion that they are more often resorted to as aids in ingenious attempts to make the constitution seem to say what it does not, than with a view to make that instrument express its real intent. All external aids, and especially all arbitrary rules, applied to instruments of this popular character, are of very uncertain value ; and we do not regard it as out of place to repeat here what we have had occasion already to say in the course of this chapter, that they are to be made use of with hesitation, and only with much circumspection. 1 1 See People v. Cowles, 13 N. T. 350, per Johnson, J. ; Temple v. Mead, 4 Vt. 535, 540, per Williams, J. ; People v. Fancher, 50 N. Y. 291. " In construing so impor- tant an instrument as a constitution, espe- cially those parts which affect the vital principle of a republican government, the elective franchise, or the manner of exer- cising it, we are not, on the one hand, to indulge ingenious speculations which may lead us wide from the true sense and spirit of the instrument, nor, on the other, to apply to it such narrow and constrained views as may exclude the real object and intent of those who framed it. We are to suppose that the authors of such an instrument had a thorough knowledge of the force and extent of the words they employ ; that they had a beneficial end and purpose in view ; and that, more es- pecially in any apparent restriction upon the mode of exercising the right of suf- frage, there was some existing or antici- pated evil which it was their purpose to avoid. If an enlarged sense of any par- ticular form of expression should be neces- sary to accomplish so great an object as a convenient exercise of the fundamental privilege or right, that of election, such sense must be attributed. We are to suppose that those who were delegated to the great business of distributing the powers which emanated from the sov- ereignty of the people, and to the estab- lishment of the rules for the perpetual security of the rights of person and prop- erty, had the wisdom to adapt their language to future as well as existing emergencies, so that words competent to the then existing state of the community, and at the same time capable of being expanded to embrace more extensive re- lations, should not be restrained to their more obvious and immediate sense, if, consistently with the general object of the authors and the true principles of the compact, they can be extended to other relations and circumstances which an improved state of society may produce. Qui hasret in litera hceret in cortice is a familiar maxim of the law. The letter killeth, but the spirit maketh alive, is the more forcible expression of Scripture." Parker, Ch. J., in Henshaw v. Foster, 9 Pick. 312, 316. There are some very pertinent and forcible remarks by Mr. Justice Miller on this general subject in Woodson v. Murdock, 22 Wall. 351, 381- 124 CONSTITUTIONAL LIMITATIONS. [CH. V. CHAPTER V. OF THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAY EXERCISE. IN considering the powers which may be exercised by the legislative department of one of the American States, it is natural that we should recur to those possessed by the Parlia- ment of Great Britain, after which, in a measure, the American legislatures have been modelled, and from which we derive our legislative usages and customs, or parliamentary common law, as well as the precedents by which the exercise of legislative power in this country has been governed. It is natural, also, that we should incline to measure the power of the legislative department in America by the power of the like department in Britain; and to concede without reflection that whatever the legislature of the country from which we derive our laws can do, may also be done by the department created for the exercise of legislative authority in this country. But to guard against being misled by a comparison between the two, we must bear in mind the important distinction already pointed out, that with the Parliament rests practically the sovereignty of the country, so that it may exercise all the powers of the government if it wills so to do; while on the other hand the legislatures of the American States are not the sovereign authority, and, though vested with the exercise of one branch of the sovereignty, they are nevertheless, in wielding it, hedged in on all sides by im- portant limitations, some of which are imposed in express terms, and others by implications which are equally imperative. " The power and jurisdiction of Parliament, says Sir Edward Coke, 1 is so transcendent and absolute, that it cannot be con- fined, either for persons or causes, within any bounds. And of this high court it may truly be said: 'Si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si jurisdic- tionem, est capacissima. ' It hath sovereign and uncontrolled authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, con- cerning matters of all possible denominations, ecclesiastical or * 4 Inst. 36. CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 125 temporal, civil, military, maritime, or criminal ; this being the place where that absolute despotic power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new-model the succession to the Crown, as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land, as was done in a variety of instances, in the reigns of King Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom and of Parliaments themselves, as was done by the Act of Union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the Parliament doth, no authority upon earth can undo; so that it is a matter most essential to the liberties of this kingdom that such members be delegated to this important trust as are most eminent for their probity, their fortitude, and their knowledge ; for it was a known apothegm of the great Lord Treasurer, Burleigh, 'that England could never be ruined but by a Parliament; ' and as Sir Matthew Hale observes : ' This being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should anyway fall upon it, the subjects of this kingdom are left without all manner of remedy. ' " 1 The strong language in which the complete jurisdiction of Parliament is here described is certainly inapplicable to any authority in the American States, unless it be to the people of the States when met in their primary capacity for the formation 1 Bl. Com. 160 ; Austin on Jurispru- subordinate to it. It may participate in dence, Lee. 6; Fischel on English Con- making changes as the constitution it- stitution, b. 7, ch. 7. The British legisla- self may provide, but not otherwise, and ture is above the constitution, and moulds constitutional principles which the Brit- and modifies it at discretion as public ex- ish Parliament will deal with as shall igencies and the needs of the time may seem needful are inflexible laws in require. But in the American system such America until the people, under the forms a thing as unlimited power is unknown, provided for constitutional amendments, Loan Association v. Topeka, 20 Wall, see fit to change them. Such radical 655, 663; Campbell's Case, 2 Bland Ch. changes, for example, as recently have 209, 20 Am. Dec. 360; [^Missouri Pac. been made in the Irish land laws, and II. Co. v. Nebraska, Bd. of Transp., such forced modification in contracts, 164 U. S. 403, 17 Sup. Ct. Rep. 130J would be impossible in the United States Every American legislature is the crea- without a change in both Federal and ture of the constitution, and strictly State constitutions. 126 CONSTITUTIONAL LIMITATIONS. [CH. V. of their fundamental law ; and even then there rest upon them the restraints of the Constitution of the United States, which bind them as absolutely as they do the governments which they create. It becomes important, therefore, to ascertain in what respect the State legislatures resemble the Parliament in the powers they exercise, and how far we may extend the compari- son without losing sight of the fundamental ideas and principles of the American system. The first and most notable difference is that to which we have already alluded, and which springs from the different theory on which the British Constitution rests. So long as the Parliament is recognized as rightfully exercising the sovereign authority of the country, it is evident that the resemblance between it and American legislatures in regard to their ultimate powers cannot be traced very far. The American legislatures only exercise a certain portion of the sovereign power. The sovereignty is in the people; 1 and the legislatures which they have created are only to discharge a trust of which they have been made a de- positary, but which has been placed in their hands with well- defined restrictions. Upon this difference it is to be observed, that while Parliament, to any extent it may choose, may exercise judicial authority, one of the most noticeable features in American constitutional law is the care which has been taken to separate legislative, executive, and judicial functions. It has evidently been the intention of the people in every State that the exercise of each should rest with a separate department. The different classes of power have been apportioned to different departments ; and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others. There are two fundamental rules by which we may measure the extent of the legislative authority in the States: 1. In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion. i Ante, p. 114. CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 127 2. But the apportionment to this department of legislative power does not sanction the exercise of executive or judicial functions, except in those cases, warranted by parliamentary usage, where they are incidental, necessary, or proper to the exercise of legislative authority, or where the constitution itself, in specified cases, may expressly permit it. 1 Executive power is so intimately connected with legislative, that it is not easy to draw a line of separation; but the grant of the judicial power to the department created for the purpose of exercising it must be regarded as an exclusive grant, covering the whole power, subject only to the limitations which the constitutions impose, and to the incidental exceptions before referred to. 2 While, therefore, the American legislatures may exercise the legislative powers which the Parliament of Great Britain wields, except as restrictions are imposed, they are at the same time excluded from other functions which may be, and sometimes habitually are, exercised by the Parliament. "The people in framing the constitution," says Denio, Ch. J., "committed to the legislature the whole lawmaking power of the State, which they did not expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil gov- ernment, is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden. I do not mean that the power must be expressly inhibited, for there are but few positive re- straints upon the legislative power contained in the instrument. The first article lays down the ancient limitations which have always been considered essential in a constitutional government, whether monarchial or popular ; and there are scattered through the instrument a few other provisions hi restraint of legislative authority. But the affirmative prescriptions and the general arrangements of the constitution are far more fruitful of re- straints upon the legislature. Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision. The frame 1 See post, pp. 134-162, 531, 632. A statute attempting to confer upon a ([And even where the power is legisla- State board authority to adjudge priori- live, if the Constitution lias limited its ties of claimants to the use of public exercise to certain times, the attempt to waters is held not to be unconstitutional exercise it at other times is necessarily as conferring judicial power in Farm void. Harmison t. Ballot Com'rs of Jef- Investment Co. v. Carpenter, 9 Wyo. ferson Co., 45 W. Va. 179, 31 S. E. 394, 110, 61 Pac. 258, 87 Am. St. 918.] 42 L. R. A. 591; Denney v. State, 144 2 See post, p. 129, note. Ind. 503, 42 N. E. 929, 31 L. B. A. 726. 128 CONSTITUTIONAL LIMITATIONS. [CH. V. of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the prin- cipal courts of justice, create implied limitations upon the law- making authority as strong as though a negative was expressed in each instance; but independently of these restraints, express or implied, every subject within the scope of civil government is liable to be dealt with by the legislature." 1 "It has never been questioned, so far as I know," says Red- field, Ch. J., "that the American legislatures have the same unlimited power in regard to legislation which resides in the British Parliament, except where they are restrained by written constitutions. That must be conceded, I think, to be a funda- mental principle in the political organizations of the American States. We cannot well comprehend how, upon principle, it should be otherwise. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited manner to the several State legis- latures, saving only such restrictions as are imposed by the Constitution of the United States, or of the particular State in question. " 2 "I entertain no doubt," says Comstoclc, J., "that, aside from the special limitations of the constitution, the legislature cannot exercise powers which are in their nature essentially judicial or executive. These are, by the constitution, distributed to other departments of the government. It is only the ' legislative power ' which is vested in the senate and assembly. But where the constitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and great danger in attempting to define the limits of this power. Chief Justice Marshall said : ' How far the power of giving the law may involve every other power, in cases where the constitution is silent, never has been, and per- haps never can be, definitely stated. ' 3 That very eminent judge 1 People v Draper, 15 N. T. 532, 543. 140, per Branson, J. ; State v. Reid, 1 Ala. 2 Thorpe v Rutland & Burlington Rail- 612, 35 Am. Dec. 44 ; Andrews v. State, road Co., 27 Vt. 140, 142. See also 3 Heisk. 165 ; Knoxville, &c. R. R. Co. v. Adams v. Howe, 14 Mass. 340, 14 Am. Hicks, 9 Bax. 442 ; Lewis's Appeal, 67 Dec. 216 ; People v. Rucker, 5 Col. 455 ; Pa. St. 153 ; Walker v. Cincinnati, 21 People v. Osborne, 7 Col. 605, 4 Pac. Ohio St. 14; People v. Wright, 70 111. 1074; Leggett v. Hunter, 19 N. Y. 445; 388. That the rule as to the extent of Cochran v. Van Surlay, 20 Wend. 365 ; legislative power is substantially the People v. Morrell, 21 Wend. 563; Sears same in Canada, see Valin v. Langlois, v. Cottrell, 5 Mich. 251 ; Beauchamp v. 3 Can. Sup. Ct. 1 ; Mayor, &c. v. The State, 6 Blackf. 299 ; Mason v. Wait, 5 Queen, 3 Can. Sup. Ct. 505. Ill 127 ; People v. Supervisors of Orange, 8 Fletcher v. Peck, 6 Cranch, 87, 136. 27 Barb. 575; Taylor v. Porter, 4 Hill, CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 129 felt the difficulty ; but the danger was less apparent then than it is now, when theories, alleged to be founded in natural reason or inalienable rights, but subversive of the just and necessary powers of government, attract the belief of considerable classes of men, and when too much reverence for government and law is certainly among the least of the perils to which our institu- tions are exposed. I am reluctant to enter upon this field of inquiry, satisfied, as I am, that no rule can be laid down in terms which may not contain the germ of great mischief to society, by giving to private opinion and speculation a license to oppose themselves to the just and legitimate powers of government." 1 Other judicial opinions in great number might be cited in support of the same general doctrine ; but as there will be occa- sion to refer to them elsewhere when the circumstances under which a statute may be declared unconstitutional are considered, we refrain from further references in this place. 2 Nor shall we enter upon a discussion of the question suggested by Chief Justice Marshall, as above quoted ; 3 since, however interesting it 1 Wynehamer v. People, 13 N. Y. 378, 391. 2 See post, p. 237, and cases cited in notes. 3 The power to distribute the judicial power, except so far as that has been done by the Constitution, rests with the legis- lature: Commonwealth v. Hippie, 69 Pa. St. 9 ; State v. New Brunswick, 42 N. J. 61 ; State v. Brown, 71 Mo. 454 ; Jackson v. Nimmo, 3 Lea, COS; see Burke v. St. Paul, M. &c. Ry. Co., 35 Minn. 172, 28 N. W. 190; St. Paul v. Umstetter, 37 Minn. 15, 33 N. W. 115; but when the Constitution has conferred it upon cer- tain specified courts, this must be un- derstood to embrace the whole judicial power, and the legislature cannot vest any portion of it elsewhere. Greenough v. Greenough, 11 Pa. St. 489; State v. Maynard, 14 111. 420; Gibson v. Emer- son, 7 Ark. 172; Chandler v. Nash, 5 Mich. 409; Succession of Tanner, 22 La. Ann. 90; Gough r. Dorsey, 27 Wis. 119; Van Slyke v. Ins. Co., 39 Wis. 390, 20 Am. Rep. 50; Alexander v. Bennett, 60 N. Y. 204; People v. Young, 72 111. 411 ; Jn re Cleveland, 51 N. J. L. 311, 17 Atl. 772; Risser v. Hoyt, 53 Mich. 185, 18 N. W. 611 ; Shoultz v. McPheeters, 79 Ind. 373. QAnd when the Constitution gives the court appellate jurisdiction only, except in certain specified cases, the legislature cannot enlarge the origi- nal jurisdiction of the court. Klein v. Valerius, 87 Wis. 54, 57 N. W. 1112, 22 L. "R. A. 609. Nor can the legislature redistribute the judicial power. Brown v. Circuit Judge, 75 Mich. 274, 42 N. W. 827, 6 L. R. A. 226, 13 Am. St. 438; Watson v. Blackstone, 98 Va. 618, 38 S. E. 939. Cannot confer the power of the court upon a single judge thereof. State v. Woodson, 161 Mo. 444, 61 S. W. 252. Congress may provide that the determi- nation by the treasury department of whether an alien is entitled to land shall be final. Nishimura Ekiu v. U. S., 142 U. S. 651, 12 Sup. Ct. Rep. 336.] The legislature cannot select persons to assist courts in the performance of their duties and act as a commission of appeal. State . Noble, 118 Ind. 350, 21 N. E. 244; In re Courts of Appeals, 9 Col. 623, 21 Pac. 471. Courts established by the leg- islature cannot exercise jurisdiction to the exclusion of that conferred by the Constitution on other courts. Montross v. State, 61 Miss. 429. See State v. Butt, 25 Fla. 258, 6 So. 597. But a general pro- vision in the Constitution for the distri- bution of the judicial power, not referring to courts-martial, would not be held to forbid such courts by implication. People 130 CONSTITUTIONAL LIMITATIONS. [CH. V. may be as an abstract question, it is made practically unimpor- tant by the careful separation of powers and duties between the v. Daniell, 50 N. Y. 274. Nor would it be held to embrace administrative functions of a quasi judicial nature, such as the as- sessment of property for taxation. State i?. Commissioners of Ormsby County, 7 Nov.. 392, and cases cited. See Auditor of State v. Atchison, &c. R. R. Co., 6 Kan. 600, 7 Am. Rep. 575. But a court may determine whether a proposed local im- provement shall be undertaken. Bryant r. Robbing, 70 Wis. 258, 35 N. W. 545. QA judge of a superior court cannot be required or empowered to pass upon and modify or approve a plan for the location of a street railway. Norwalk Street R. Co 's Appeal, 69 Conn. 576, 37 Atl. 1080, 39 L. It. A. 794; nor a court to direct how a telegraph or telephone company may use the streets of a city. Zanesville v. Zanesville T. & Tel. Co., 63 Ohio, 442, 69 N. E. 109 (Oct. 16, 1900) ; New York & N. J. Tel. Co. v. Mayor of Bound Brook, 66 N. J. L. 168, 48 Atl. 1022. County board cannot determine which rooms in court house shall be occupied by certain judges. Dahnke v. People, 168 111. 102, 48 N. E. 137, 39 L. R. A. 197. Court during its session has full control over that portion of court house necessary to the convenient transaction of its business. Vigo County v. Stout, 186 Ind. 53, 35 N. E. 683, 22 L. R. A. 398, ii ml note ; and may order repairs to court house, although it cannot order the erec- tion of additions thereto or the rebuilding thereof. White County v. Gwin, 136 Ind. 662, 36 N. E. 237, 22 L. R. A. 402.] It is not competent to confer upon the courts the power to tax : Monday v. Rahway, 43 N. J. 338 ; nor to impose on them admin- istrative duties. Houseman v. Kent Circ. Judge, 58 Mich. 364, 25 N. W. 369. But after thirty-five years of exercise of such power under a statute, it is too late to object. Locke v. Speed, 62 Mich. 408, 28 N. W. 917. [The legislature cannot create a " court of visitation " for the con- trol of corporations and endow it with executive, legislative, and judicial powers. State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662. Nor can it consti- tute a board of State auditors, which is a purely executive board, a court of review to pass upon the rightfulness of a convic- tion of crime, and in case conviction be found wrongful to allow damages for the imprisonment consequent thereupon. Al- len v. Board of State Auditors, 122 Mich. 324, 81 N. W. 113, 47 L. R. A. 117, 80 Am. St. 573.] The power to appoint election commissioners not having been expressly conferred on any department, the legisla- ture may impose the duty of appointment on the county court. People v. Hoffman, 116 111. 587, 5 N. E. 596, 8 N. E. 788. Such appointments are upheld in In re Citizens of Cincinnati, 2 Flipp. 228; Rus- sell v. Cooley, 69 Ga. 215. But in Super- visors of Election, 114 Mass. 247, 19 Am. Rep. 341, a contrary doctrine is laid down. A chief justice cannot be empow- ered to determine which claimant of an office shall hold it pending a contest. Such power, if executive, cannot be given a judge; if judicial, belongs to a court. In re Cleveland, 51 N. J. L. 311, 17 Atl. 772. The legislature cannot require a court to give its opinions in writing: Vaughn v. Harp, 49 Ark. 160, 4 S. W. 751 ; nor to write syllabi to its decisions. In re Griffiths, 118 Ind. 83, 20 N. E. 513. [Jit is held in Illinois that the legisla- ture cannot interfere with the power of the courts to regulate the licensing of attorneys. Re Day, 181 111. 73, 54 N. E. 646, 50 L. R. A. 519. See also Re Leach, 134 Ind. 665, 34 N. E. 641, 21 L. R. A. 701. The legislature cannot define what shall be considered a contempt of court. Bradley v. State, 111 Ga. 168, 36 S. E. 630, 50 L. R. A. 691, 78 Am. St. 157 ; Hale v. State, 55 Ohio St. 210, 45 N. E. 199, 36 L. R. A. 254, and note, 60 Am. St. 691. On the other hand, a court has no power to enjoin a legislative body. State v. Superior Court of Milwaukee Co., 105 Wis. 651, 81 N. W. 1046, 48 L. R. A. 819. But see Roberts v. Louisville, 92 Ivy. 95, 17 S. W. 216, 13 L. R. A. 844, and note. Nor has a court power to deter- mine whether or not a senator of the State legislature whose term has not yet expired, has disqualified himself from further acting as senator. Covington r. Buffett, 90 Md. 569, 45 Atl. 204, 47 L. R. A. 622. Not to establish rules and regu- lations for the extension of telephone lines. Michigan Tel. Co. v. St. Joseph, CH. V.] POWERS EXEKCISED BY LEGISLATIVE DEPAETMENT. 131 several departments of the government which has been made hy each of the State constitutions. Had no such separation been made, the disposal of executive and judicial duties must have devolved upon the department vested with the general authority to make laws; 1 but assuming them to be apportioned already, we are only at liberty to liken the power of the State legislature to that of the Parliament, when it confines its action to an exer- cise of legislative functions ; and such authority as is in its nature either executive or judicial is beyond its constitutional powers, with the few exceptions to which we have already referred. It will be important therefore to consider those cases where legislation has been questioned as encroaching upon judicial authority ; and to this end it may be useful, at the outset, to endeavor to define legislative and judicial power respectively, that we may the better be enabled to point out the proper line of distinction when questions arise in their practical application to actual cases. The legislative power we understand to be the authority, under the Constitution, to make laws, and to alter and repeal them. Laws, in the sense in which the word is here employed, are rules of civil conduct, or statutes, which the legislative will has prescribed. " The laws of a State," observes Mr. Justice Story, "are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws." 2 " The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary 121 Mich. 502, 80 N. W. 383, 47 L. R. A. of a system of sewerage without prescrib- 87, 80 Am. St. 520. Upon distinction be- ing any further direction for such appor- tween legislative and judicial powers, see tionment than that it shall be just and Re Janvrin, 174 Mass. 514, 55 N. E. 381, equitable. Re Kingman, 153 Mass. 566, 47 L. R. A. 319. The legislature has no 27 N. E. 778, 12 L. R. A. 417. The tegis- power to make a conclusive finding of lature cannot validate warrants issued facts, and thereupon direct a municipal- under an unconstitutional law. Felix ity to pay a specified claim. Board of v. Wallace Co. Com'rs, 62 Kan. 832, 62 Edn. v. State, 51 Ohio St. 531, 38 N. E. Pac. 667, 84 Am. St. 424. Congress may 614, 25 L. R. A. 770, 46 Am. St. 588. provide that inspectors of customs may Where the legislature is authorized to finally determine whether immigrants are regulate the method of procedure in entitled to land. Nishimura Kkiu w. "Courts below the Supreme Court" it United States, 142 U. S. 651, 12 Sup. Ct. has no power over procedure in the Su- Rep. 336.] preme Court. Herndon v. Imperial Fire 1 Calder v. Bull, 2 Root, 350, and 3 Ins. Co., Ill N. C. 384, 16 S. E. 465, 18 Dall. 386; Ross v. Whitman, 6 Cal. 361 ; L. R. A. 647. The legislature can direct Smith v. Judge, 17 Cal. 547; per Patter- a court to appoint certain commissioners son, J., in Cooper v. Telfair, 4 Dall. 19; and confer upon the commissioners so Martin v. Hunter's Lessee, 1 Wheat. 304. to be appointed the power to apportion 2 Swift v. Tyson, 16 Pet. 18. among several cities and towns the cost 132 CONSTITUTIONAL LIMITATIONS. [CH. V. construes, the law." 1 And it is said that that which distin- guishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions. 2 And in another case it is said: "The legislative power extends only to the mak- ing of laws, and in its exercise it is limited and restrained by the paramount authority of the federal and State constitutions. It cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or transfer to another, without trial and judgment in the courts ; for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislative." 3 "That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government." 4 On the other hand, to adjudicate upon, and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial de- partment. 5 "No particular definition of judicial power," says 1 Per Marshall, Ch. J., in Wayman v. Southard, 10 Wheat. 46 ; per Gibson, Ch. J., in Greenougli v. Greenough, 11 Pa. St. 494. See Governor v. Porter, 7 Humph. 165; State v. Gleason, 12 Fla. 190; Hawkins v. Governor, 1 Ark. 570; Westinghausen v. People, 44 Mich. 265, 6 N. W. 641. 2 Bates v Kimball, 2 Chip. 77. A prospective determination by a court of the validity of school rules, compiled un- der legislative authority, is not an exer- cise of judicial power. In re School Law Manual, 63 N. H. 574, 4 Atl. 878. Power to supersede an ordinance upon petition of taxpayers as contrary to law cannot be conferred upon a court : Shephard v. Wheeling, 30 W.'Va. 479, 4 S. E. 635; nor to fix the salary of a reporter in ad- vance : Smith v. Strother, 68 Cal. 194, 8 Pac. 852 ; nor to make upon its own whim a party a competent witness who other- wise would not be. Tillman r. Cocke, 9 Bax. 429. 3 Newland v. Marsh, 19 111. 383. 4 Ervine's Appeal, 16 Pa. St. 256, 266. See also Greenough v. Greenougli, 11 Pa. St. 489; Dechastellux v. Fairchild, 15 Pa. St. 18 ; Trustees, &c. v. Bailey, 10 Fla. 238. 6 Cincinnati, &c. Railroad Co. v. Com- missioners of Clinton Co., 1 Ohio St. 77. See also King v. Dedham Bank, 15 Mass. 447 ; Gordon v. Ingraham, 1 Grant's Cases, 152; People v. Supervisors of New York, 16 N. Y. 424 ; Beebe v. State, 6 Ind. 501 ; Greenough v. Greenough, 11 Pa. St. 489; Taylor v. Place, 4 R. I. 324. It is also a part of the function of the judiciary to determine whether a proposed constitu- tional amendment has been in fact adopted under the forms prescribed for such case by the constitution, and the legislative declaration that it has been so adopted is null. State v. Powell, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652. But see Worman v. Hagan, 78 Md. 152, 27 Atl. 616, 21 L. R. A. 716, to effect that governor's procla- mation of adoption is conclusive. It is also a proper function of a court to re- quire proper authorities to prescribe rules and regulations for extension of telephone lines, and to pass upon the validity of such rules when properly brought in question. Mich. Tel. Co. v. St. Joseph, 121 Mich. 502, 80 N. W. 383, 47 L. R. A. 87, 80 Am. St. 520.] CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 133 Woodbury, J., "is given in the constitution [of New Hampshire], and, considering the general nature of the instrument, none was to be expected. Critical statements of the meanings in which all important words were employed would have swollen into volumes ; and when those words possessed a customary significa- tion, a definition of them would have been useless. But 'powers judicial,' ' judiciary powers,' and ' judicatories ' are all phrases used in the constitution; and though not particularly defined, are still so used to designate with clearness that department of government which it was intended should interpret and admin- ister the laws. On general principles, therefore, those inquiries, deliberations, orders, and decrees, which are peculiar to such a department, must in their nature be judicial acts. Nor can they be both judicial and legislative; because a marked difference exists between the employments of judicial and legislative tribunals. The former decide upon the legality of claims and conduct, and the latter make rules upon which, in connection with the constitution, those decisions should be founded. It is the province of judges to determine what is the law upon exist- ing cases. In fine, the law is applied by the one, and made by the other. To do the first, therefore, to compare the claims of parties with the law of the land before established, is in its nature a judicial act. But to do the last to pass new rules for the regulation of new controversies is in its nature a legislative act; and if these rules interfere with the past, or the present, and do not look wholly to the future, they violate the definition of a law as 'a rule of civil conduct; ' 1 because no rule 1 1 Bl. Com. 44. The distinction be- vested in the courts. People v. Stuart, tween legislative and judicial power lies 74 Mich. 411, 41 N. W. 1091. See Brown between a rule and a sentence. Shrader, v. Duffus, 66 Iowa, 193, 23 N. W. 396. Ex parte, 33 Cal. 279. See Shumway v. It is not an infringement of judicial power Bennett, 29 Mich. 451 ; Supervisors of to enact that a jury shall assess the pun- Election, 114 Mass 247. The legislature ishment in a murder case. State v. Hock- cannot empower election boards to decide ett, 70 Iowa, 442, 30 N. W. 742; nor that whether one by duelling has forfeited his persons sentenced to jail may be employed right to vote or hold office. Common- on roads by county commissioners, under wealth c. Jones, 10 Bush, 725; Burkett regulations to be made by them. Holland v. McCurty, 10 Bush, 758. But a board v. State, 23 Fla. 123, 1 So. 621. may be empowered to recount votes and But it is an invasion of judicial power make a statement of results. If they to provide that in case of doubt a statute have no power to investigate frauds, they shall be construed so as to save a lien do not exercise judicial power. Andrews given by it. Meyer v. Berlandi, 39 Minn. v. Carney, 74 Mich. 278, 41 N. W. 923. 438, 40 N. W. 513. Power to declare Under a constitutional provision allowing what acts shall be a misdemeanor cannot the legislature to provide for removal of be conferred on commissioners of vine an election officer for such cause as it culture. Ex parte Cox, 63 Cal. 21. A deems proper, the power to determine county clerk cannot fix the amount of whether the cause exists need not be bail. Gregory v. State, 94 Ind. 384. 134 CONSTITUTIONAL LIMITATIONS. [CH. V. of conduct can with consistency operate upon what occurred before the rule itself was promulgated. "It is the province of judicial power, also, to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the State. Nor does the passage of private statutes conflict with these principles ; because such statutes, when law- ful, are enacted on petition, or by the consent of all concerned; or else they forbear to interfere with past transactions and vested rights." 1 With these definitions and explanations, we shall now proceed to consider some of the cases in which the courts have attempted to draw the line of distinction between the proper functions of the legislative and judicial departments, in cases where it has been claimed that the legislature have exceeded their power by invading the domain of judicial authority. Declaratory Statutes. Legislation is either introductory of new rules, or it is declar- atory of existing rules. "A declaratory statute is one which is passed in order to put an end to a doubt as to what is the com- [^Failure of a railroad commissioner to 176 Mass. 71, 55 N. E. 812, 51 L. R. A. require a railway company to station a 433. flagman at a given crossing cannot be The courts have jurisdiction to pass made conclusive proof that the omission upon the claims of rival bodies to be the to station such flagman is not negligence. State senate, and to determine which, if Grand Trunk R. Co. v. Ives, 144 Q. S. either, is the constitutional senate. At- 408, 12 ,Sup. Ct. Rep. 679. An adminis- torney-General v. Rogers, 56 N. J. L. 480, trative board may be empowered to ad- 28 Atl. 726,29 Atl. 173,23 L. R. A. 354.] judicate upon priorities of water-rights l Merrill v. Sherburne, 1 N. H. 199, and to make independent investigations 203. See Jones v. Perry, 10 Yerg. 69; in regard thereto and to declare its find- Taylor v. Porter, 4 Hill, 140 ; Ogden v. ings, provided parties interested in such Blackledge, 2 Cranch, 272 ; Dash v. Van adjudications are allowed by the statute Kleek, 7 Johns. 477; Wilkinson v. Leland, a reasonable opportunity to appeal there- 2 Pet. 627 ; Leland v. Wilkinson, 10 Pet from to the regular courts. Farm In- 294; State v. Hopper, 71 Mo. 425. QA vestment Compaq- v. Carpenter, 9 Wyo. statute creating a commission to review 110, 61 Pac. 258, 50 L. R. A. 747. A a tax assessment to be appointed by the ministerial officer may be empowered to circuit judge of the county is not invalid investigate land titles, and his findings as vesting judicial power in the commis- may be made prima facie evidence. Peo- sion in the sense in which that term is pie v. Simon, 176 111. 165, 52 N. E. 910, used in the constitution of Wisconsin. 44 L. R. A. 801, 68 Am St. 175; for The term as there used has reference other case? on Torrens Land Registra- alone to judicial power as exercised in tion Acts, see People v. Chase, 165 111. the administration of the law in actions 527, 46 N. E. 454, 36 L. R. A. 105, and and proceedings in courts of law and State v. Guilbert, 56 Ohio St. 575, 47 equity. State ex rel. Ellis v. Thome, 1 12 N. E. 551, 38 L. R. A. 519, 60 Am. St. Wis. 81, 87 N. W. 797, 55 L. R. A. 956.] 756 , also Tyler v. Court of Registration, CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 135 raon law, or the meaning of another statute, and which declares what it is and ever has been." 1 Such a statute, therefore, is always in a certain sense retrospective; because it assumes to determine what the law was before it was passed; and as a. declaratory statute is important only in those cases where doubts have already arisen, the statute, when passed, may be found to declare the law to be different from what it has already been adjudged to be by the courts. Thus Mr. Fox's Libel Act declared that, by the law of England, juries were judges of the law in prosecutions for libel ; it did not purport to introduce a new rule, but to declare a rule already and always in force. Yet previous to the passage of this act the courts had repeatedly held that the jury in these cases were only to pass upon the fact of publication and the truth of the innuendoes; and whether the publication was libellous or not was a question of law which addressed itself exclusively to the court. It would appear, therefore, that the legislature declared the law to be what the courts had declared it was not. So in the State of New York, after the courts had held that insurance companies were taxable to a certain extent under an existing statute, the legislature passed another act, declaring that such companies were only taxable at a certain other rate ; and it was thereby declared that such was the intention and true construction of the original statute. 2 In these cases it will be perceived that the courts, in the due exercise of their authority as interpreters of the 'laws, have declared what the rule established by the common law or by statute is, and that the legislature has then interposed, put its own construction upon the existing law, and in effect declared the judicial interpretation to be unfounded and unwarrantable. The courts in these cases have clearly kept within the proper limits of their jurisdiction, and if they have erred, the error has been one of judgment only, and has not extended to usurpation of power. Was the legislature also within the limits of its authority when it passed the declaratory statute? The decision of this question must depend perhaps upon the purpose which was in the mind of the legislature in passing the declaratory statute; whether the design was to give to the rule now declared a retrospective operation, or, on the other hand, merely to establish a construction of the doubtful law for the determination of cases that may arise in the future. It is always competent to change an existing law by a declaratory statute ; and where the statute is only to operate upon future cases, it is 1 Bouv. Law Diet. "Statute;" Austin 2 People v. Supervisors of New York, on Jurisprudence, Lect. 37. 16 N. Y. 424. 136 CONSTITUTIONAL LIMITATIONS. [CH. V. no objection to its validity that it assumes the law to have heen in the past what it is now declared that it shall be in the future. 1 But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts. 2 1 Union Iron Co. v. Pierce, 4 Bias. 327. 2 In several different cases the courts of Pennsylvania had decided that a testator's mark to his name, at the foot of a testamentary paper, but without proof that the name was written by his express direction, was not the signature required by the statute, and the legislature, to use the language of Chief Justice Gibson, "declared, in order to overrule it, that every last will and testament heretofore marie, or hereafter to be made, except such as may have been fully adjudicated prior to the passage of this act, to which the testator's name is subscribed by his direction, or to which the testator has made his mark or cross, shall be deemed and taken to be valid. How this man- date to the courts to establish a particular interpretation of a particular statute can be taken for anything else than an exer- cise of judicial power in settling a ques- tion of interpretation, I know not. The judiciary had certainly recognized a legis- lative interpretation of a statute before it had itself acted, and consequently be- fore a purchaser could be misled by its judgment; but he might have paid for a title on the unmistakable meaning of plain words ; and for the legislature sub- sequently to distort or pervert it, and to enact that white meant black, or that black meant white, would in the same de- gree be an exercise of arbitrary and un- constitutional power." Greenough v. Greenough, 11 Pa. St. 489, 494. The act in this case was held void so far as its operation was retrospective, but valid as to future cases. And see James v. Ro'w- land, 42 Md. 462; Reiser v. Tell Associa- tion, 39 Pa. St. 137. The constitution of Georgia entitled the head of a family to enter a homestead, and the courts decided that a single person, having no others dependent upon him, could not be re- garded the head of a family, though keeping house with servants. After- wards, the legislature passed an act, de- claring that any single person living habitually as housekeeper to himself should be regarded as the head of a fam- ily. Held void as an exercise of judicial power. Calhoun v. McLendon, 42 Ga. 405. The fact that the courts had pre- viously given a construction to the law may show more clearly a purpose in the legislature to exercise judicial authority, but it would not be essential to that end. As is well said in Haley v. Philadelphia, 68 Pa. St. 45, 47: "It would be mon- strous to maintain that where the words and intention of an act were so plain that no court had ever been appealed to for the purpose of declaring their meaning, it was therefore in the power of the legis- lature, by a retrospective law, to put a construction upon them contrary to, the obvious letter and spirit. Reiser v. Wil- liam Tell Fund Association, 39 Pa. St. 137, is an authority in point against such a doctrine. An expository act of as- sembly is destitute of retroactive force, because it is an act of judicial power, and is in contravention of the ninth section of the ninth article of the Constitution, which declares that no man can be de- prived of his property unless ' by the judgment of his peers or the law of the land.'" See 8 Am. Rep. 155, 156. And on the force and effect of declaratory laws in general, see Salters v. Tobias, 3 Paige, 338 ; Postmaster-General v. Early, 12 Wheat. 136 ; Union Iron Co. r. Pierce, 4 Biss. 327 ; Planters' Bank v. Black, 19 Miss. 43; Gough v. Pratt, 9 Md. 526; McNichol v. U. S., &c. Agency. 74 Mo. 457; Titusville Iron Works v. Keystone Oil Co., 122 Pa. St. 627, 15 Atl. 917 ; Steb- CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 137 As the legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construc- tion of a law which the legislature permits to remain in force. "To declare what the law is, or has been is a judicial power; to declare what the law shall be, is legislative. One of the fundamental principles of all our governments is, that the legis- lative power shall be separate from the judicial." 1 If the legis- lature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to the courts, which leaves the law unchanged, but seeks to compel the courts to construe and apply it, not according to the judicial, but according to the legislative judgment. 2 But in any case the substance of the legislative action should be regarded rather than the form ; and if it appears to be the intention to establish by declaratory stat- ute a rule of conduct for the future, the courts should accept and act upon it, without too nicely inquiring whether the mode by which the new rule is established is or is not the best, most decorous, and suitable that could have been adopted. If the legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, 3 ordering the discharge of offend- bins v. Cotn'rs Pueblo Co., 2 McCrary, tion of mere errors in taxation by legis- 19(5. The words " former jeopardy " lation of a retrospective character. See had a settled meaning when the Constitu- post, p. 630. tion was adopted which by a declaratory 2 Governor v. Porter, 5 Humph. 165; statute the legislature cannot change. People v. Supervisors, &c., 16 N. Y. 424; Powell v. State, 17 Tex. App. 345. Reiser v. Tell Association, 39 Pa. St. 1 Dash v. Van Kleek, 7 Johns. 477, 498, 137 ; O'Conner v. Warner, 4 W. &' S. 223 ; per Thompson, J. ; Ogden v. Blackledge, Lambertson v. Hogan, 2 Pa. St. 22. An 2 Cranch, 272; Lambertson v. Hogan, 2 act directing that a certain deposition Pa. St. 2'2; Seibert v. Linton, 5 W. Va. which had previously been taken should 67; Arnold v. Kelley, 6 W. Va. 446 ; Me- be read in evidence on the trial of a cer- Daniel v. Correll, 19 111. 226. The legis- tain cause, notwithstanding informalities, lature cannot dictate what instructions is void. Dupy v. Wickwire, 1 D. Chip. shall be given by the court to a jury, ex- 237, 6 Am. Dec. 729. cept by general law. State v. Hopper, 8 Lewis v. Webb, 3 Me. 326 ; Durham 71 Mo. 425. A legislative act directing v. Lewiston, 4 Me. 140; Atkinson v. Dun- the levy and collection of a tax which has lap, 50 Me. Ill ; Bates v. Kimball, 2 Chip, already been declared illegal by the 77 ; Staniford v. Barry, 1 Aik. 314 ; Mer- judiciary, is void, as an attempted rever- rill v. Sherburne, 1 N. H. 199; Opinion of sal of judicial action. Mayor, &c. v. Horn, Judges in Matter of Dorr, 3 R. I. 299; 26 Md. 191; Butler v. Supervisors of Taylor r. Place, 4 R. I. 324 ; De Chastel- Saginaw, 26 Mich. 22. See Forster v. lux v. Fairchild, 15 Pa. St. 18; Young Forster, 129 Mass. 559. This doctrine, v. State Bank, 4 Ind. 301 ; Beebe v. State, however, would not prevent the correc- 6 Ind. 601 ; Lanier v. Gallatas, 13 La. Ann. 138 CONSTITUTIONAL LIMITATIONS. [CH. V. ers, 1 or directing what particular steps shall be taken in the progress of a judicial inquiry. 2 And as a court must act as an 175; Mayor, &c. v. Horn, 26 Md. 194; Weaver v. Lapsley, 43 Ala. 224; San- ders D. Cabaniss, 43 Ala. 173 ; Moser v. White, 29 Mich. 69; Sydnor v. Palmer, 32 Wis. 406; People v. Frisbie, 26 Cal. 135; Lawson v. Jeffries, 47 Miss. 686, 12 Am. Rep. 342; Ratcliffe v. Anderson, 31 Gratt. 105, 31 Am. Rep. 716. And see post, pp. 557-561, and notes. It is not competent hy legislation to authorize the court of final resort to reopen and re- hear cases previously decided. Dorsey ;. Dorsey, 37 Md. 64, 1 1 Am. Rep. 528. The legislature may control remedies, &c., but, when the matter has proceeded to judgment, it has passed beyond legis- lative control. Oliver v. McClure, 28 Ark. 555; Griffin's Executory. Cunning- ham, 20 Gratt. 31; Teel v. Yancey, 23 Gratt. 690; Hooker n. Hooker, 18 Miss. 599. After an appeal bond was signed by the attorney, the court held bonds so signed bad. A statute validating all prior bonds so signed is void. Andrews v. Bcnne, 15 R. I. 451, 8 Atl. 540. 1 In State v. Fleming, 7 Humph. 152, a legislative resolve that "no fine, forfeit- ure, or imprisonment should be imposed or recovered under the act of 1837 [then in force], and that all causes pending in any of the courts for such offence should be dismissed," was held void as an in- vasion of judicial authority. The legis- lature cannot declare a forfeiture of a right to act as curators of a college. State v. Adams, 44 Mo. 570. Nor can it authorize the governor or any other State officer to pass upon the validity of State grants and correct errors therein ; this being ju- dicial. Hilliard v. Connelly, 7 Ga. 172. Nor, where a corporate charter provides that it shall not be repealed "unless it shall be made to appear to the legislature that there has been a violation by the com- pany of some of its provisions," can there be a repeal before a judicial inquiry into the violation. Flint, &c. Plank Road Co. v. Woodhull, 25 Mich. 99. A legislative act cannot turn divorces nisi into absolute divorces, of its own force. Sparhawk v. Sparliawk, 116 Mass. 315. But to take away by statute a statutory right of ap- peal is not an exercise of judicial author- ity. Ex parte Me Cardie, 7 Wall. 506. And it has been held that a statute allow- ing an appeal in a particular case was valid. Prout v. Berry, 2 Gill, 147 ; State v. Northern Central R. R. Co., 18 Md. 193. A retroactive statute, giving the right of appeal in cases in which it had previously been lost by lapse of time, was sustained in Page v. Mathews's Adm'r, 40 Ala. 547. But in Carleton v. Goodwin's Ex'r, 41 Ala. 153, an act the effect of which would have been to revive discontinued appeals, was held void as an exercise of judicial au- thority. See cases cited in next note. 1 Opinions of Judges on the Dorr Case, 3 R. I. 299; State v. Hopper, 71 Mo. 425. In the case of Picquet, Appellant, 5 Pick. 64, the judge of probate had ordered let- ters of administration to issue to an appli- cant therefor, on his giving bond in the penal sum of $50,000, with sureties within the Commonwealth, for the faithful per- formance of his duties. He was unable to give the bond, and applied to the legis- lature for relief. Thereupon a resolve was passed "empowering" the judge of pro- bate to grant the letters of administration, provided the petitioner should give bond with his brother, a resident of Paris, France, as surety, and " that such bond should be in lieu of any and all bond or bonds by any law or statute in this Com- monwealth now in force required," &c. The judge of probate refused to grant the letters on the terms specified in this re- solve, and the Supreme Court, while hold- ing that it was not compulsory upon him, also declared their opinion that, if it were so, it would be inoperative and void. In Bradford v. Brooks, 2 Aik. 284, it was de- cided that the legislature had no power to revive a commission for proving claims against an estate after it had once expired. See also Bagg's Appeal, 43 Pa. St. 612; Trustees v. Bailey, 10 Fla. 238. In Hill v. Sunderland, 3 Vt. 507, and Burch v. Newberry, 10 N. Y. 374, it was held that the legislature had no power to grant to parties a right to appeal after it was gone under the general law. In Burt v. Wil- liams, 24 Ark. 91, it was held that the granting of continuances of pending cases was the exercise of judicial authority, and a legislative act assuming to do this was void. And where, by the general law, CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 139 organized body of judges, and, where differences of opinion arise, they can only decide by majorities, it has been held that it would not be in the power of the legislature to provide that, in certain contingencies, the opinion of the minority of a court, vested with power by the Constitution, should prevail, so that the decision of the court in such cases should be rendered against the judgment of its members. 1 Nor is it in the power of the legislature to bind individuals by a recital of facts in a statute, to be used as evidence against the parties interested. A recital of facts in the preamble of a statute may perhaps be evidence, where it relates to matters of a public nature, as that riots or disorders exist in a certain part of the country ; 2 but where the facts concern the rights of indi- viduals, the legislature cannot adjudicate upon them. As pri- vate statutes are generally obtained on the application of some party interested, and are put in form to suit his wishes, perhaps their exclusion from being made evidence against any other party would result from other general principles; but it is clear that the recital could have no force, except as a judicial finding of facts; and that such finding is no't within the legislative province. 3 We come now to a class of cases in regard to which there has been serious contrariety of opinion; springing from the fact, perhaps, that the purpose sought to be accomplished by the statutes is generally effected by judicial proceedings, so that if the statutes are not a direct invasion of judicial authority, they the courts have no authority to grant a restriction of this character, the ruling of divorce for a given cause, the legislature this case is that the legislature cannot cannot confer the authority in a particu- impose it. The court was nearly equally lar case. Simmonds v. Siramonds, 103 divided, standing seven to six. But the Mass. 572, 4 Am. Rep. 576. And see post, decision of a majority of a court is bind- pp. 153, note, 559, and note. ing as though unanimous. Feige v. Mich. 1 In Clapp i). Ely, 27 N. J. 622, it was Cent. R. R. Co., 62 Mich. 1, 28 N. W. held that a statute which provided that 685. A statute authorizing an unofficial no judgment of the Supreme Court should person to sit in the place of a judge who be reversed by the Court of Errors and is disqualified was held void in Van Appeals, unless a majority of those mem- Slyke v. Insurance Co., 39 Wis. 390, 20 bers of the court who were competent to Am. Rep. 60. That judicial power can- sit on the hearing and decision should not be delegated, see Cohen v. HofiE, 3 concur in the reversal, was unconstitu- Brev. 500. Therefore a commission of tional. Its effect would be, if the court appeals created by statute cannot decide were not full, to make the opinion of the causes in place of the constitutional minority in favor of affirmance control Supreme Court. State v. Noble, 118 Ind. that of the majority in favor of reversal, 350, 21 N. E. 244. unless the latter were a majority of the 2 Rex v. Sutton, 4 M. & S. 632. whole court. Such a provision in the s Elmendorf v. Carmichael, 3 Litt. constitution might be proper and unex- 475, 14 Am. Dec. 86 ; Parmelee v. ceptionable ; but if the constitution has Thompson, 7 Hill, 77; Lothrop v. Stead- created a court of appeals, without any man, 42 Conn. 583, 592. 140 CONSTITUTIONAL LIMITATIONS. [CH. V. at least cover ground which the courts usually occupy under general laws conferring the jurisdiction upon them. We refer to Statutes empowering Guardians and other Trustees to sell Lands. Whenever it becomes necessary or proper to sell the estate of a decedent for the payment of debts, or of a lunatic or other incompetent person for the same purpose, or for future support, or of a minor to provide the means for his education and nur- ture, or for the most profitable investment of the proceeds, or of tenants in common to effectuate a partition between them, it will probably be found in every State that some court is vested with jurisdiction to make the necessary order, if the facts after a hearing of the parties in interest seem to render it important. The case is eminently one for judicial investigation. There are facts to be inquired into, in regard to which it is always possible that disputes may arise; the party in interest is often incom- petent to act on his own behalf, and his interest is carefully to be inquired into and guarded; and as the proceeding will usually be ex parte^ there is more than the ordinary opportunity for fraud upon the party interested, as well as upon the authority which grants permission. It is highly and peculiarly proper, therefore, that by general laws judicial inquiry should be pro- vided for these cases, and that such laws should require notice to all proper parties, and afford an opportunity for the presenta- tion of any facts which might bear upon the propriety of granting the applications. But it will sometimes be found that the general laws provided for these cases are not applicable to some which arise; or, if applicable, that they do not accomplish fully all that in some cases seems desirable; and in these cases, and perhaps also in some others without similar excuse, it has not been unusual for legislative authority to intervene, and by special statute to grant the permission which, under the general law, would be granted by the courts. The power to pass such statutes has often been disputed, and it may be well to see upon what basis of authority, as well as of reason, it rests. If in fact the inquiry which precedes the grant of authority is in its nature judicial, it would seem clear that such statutes must be ineffectual and void. But if judicial inquiry is not essential, and the legislature may confer the power of sale in such a case upon an ex parte presentation of evidence, or upon the representations of the parties without any proof whatever, CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 141 then we must consider the general laws to be passed, not because the cases fall necessarily within the province of judicial action, but because the courts can more conveniently consider, and more properly, safely, and inexpensively pass upon such cases, than the legislative body to which the power primarily belongs. 1 The rule upon this subject which appears to be deducible from the authorities, is this: If the party standing in position of trustee applies for permission to convert by a sale the real prop- erty into personal, in order to effectuate the purposes of the trust, and to accomplish objects in the interest of the cestui que trust not otherwise attainable, there is nothing in the granting of permission which is in its nature judicial. To grant permis- sion is merely to enlarge the sphere of the fiduciary authority, the better to accomplish the purpose for which the trusteeship exists; and while it would be entirely proper to make the ques- tions which might arise assume a judicial form, by referring them to some proper court for consideration and decision, there is no usurpation of power if the legislature shall, by direct action, grant the permission. In the case of Rice v. Parkman, 2 certain minors having become entitled to real estate by descent from their mother, the legisla- ture passed a special statute empowering their father as guardian for them, and, after giving bond to the judge of probate, to sell and convey the lands, and put the proceeds at interest on good security for the benefit of the minor owners. A sale was made accordingly; but the children, after coming of age, brought suit against the party claiming under the sale, insisting that the special statute was void. There was in force at the time this special statute was passed, a general statute, under which license might have been granted by the courts; but it was held that this general law did not deprive the legislature of that full and com- plete control over such cases which it would have possessed had no such statute existed. "If," say the court, "the power by which the resolve authorizing the sale in this case was passed were of a judicial nature, it would be very clear that it could 1 There are constitutional provisions plicable, might also be held to exclude in Kentucky, Virginia, Missouri, Oregon, such special authorization. Nevada, Indiana, Marj-land, New Jersey, 2 16 Mass. 326. See the criticism of Arkansas, Florida, Illinois, Wisconsin, this case in Jones v. Perry, 10 Yerg. 69, Texas, West Virginia, Michigan, and Col- 30 Am. Dec. 430. That case is out of orado, forbidding special laws licensing harmony with the current of authority the sale of the lands of minors and other on the subject here considered. In Call- persons under legal disability. Perhaps fornia it has been held that where a minor the general provision in some other con- has a guardian, it is not competent for the stitutions, forbidding special laws in cases legislature to empower another to se'l Ins where a general law could be made ap- lands. Lincoln v. Alexander, 62 Cal. 482, 28 Am. Rep. 639. 142 CONSTITUTIONAL LIMITATIONS. [CH. V. not have been exercised by the legislature without violating an express provision of the constitution. But.it does not seem to us to be of this description of power; for it was not a case of controversy between party and party, nor is there any decree or judgment affecting the title to property. The only object of the authority granted by the legislature was to transmute real into personal estate, for purposes beneficial to all who were interested therein. This is a power frequently exercised by the legislature of this State, since the adoption of the constitution, and by the legislatures of the province and of the colony, while under the sovereignty of Great Britain, analogous to the power exercised by the British Parliament on similar subjects time out of mind. Indeed it seems absolutely necessary for the interest of those who, by the general rules of law, are incapacitated from dispos- ing of their property, that a power should exist somewhere of converting lands into money. For otherwise many minors might suffer, although having property ; it not being in a con- dition to yield an income. This power must rest in the legisla- ture in this Commonwealth; that body being alone competent to act as the general guardian and protector of those who are dis- abled to act for themselves. " It was undoubtedly wise to delegate this authority to other bodies, whose sessions are regular and constant, and whose structure may enable them more easily to understand the merits of the particular application brought before them. But it does not follow that, because the power has been delegated by the legislature to courts of law, it is judicial in its character. For aught we see, the same authority might have been given to the selectmen of each town, or to the clerks or registers of the counties, it being a mere ministerial act, certainly requiring discretion, and sometimes knowledge of law, for its due exercise, but still partaking in no degree of the characteristics of judicial power. It is doubtless included in the general authority granted by the people to the legislature by the constitution. For full power and authority is given from time to time to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions (so as the same be not repugnant or contrary to the constitution), as they shall judge to be for the good and welfare of the Common- wealth, and of the subjects thereof. No one imagines that, under this general authority, the legislature could deprive a citizen of his estate, or impair any valuable contract in which he might be interested. But there seems to be no reason to doubt that, upon his application, or the application of those CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 143 \vho properly represent him, if disabled from acting himself, a beneficial change of his estate, or a sale of it for purposes necessary and convenient for the lawful owner, is a just and proper subject for the exercise of that authority. It is, in fact, protecting him in his property, which the legislature is bound to do, and enabling him to derive subsistence, comfort, and education from property which might otherwise be wholly use- less during that period of life when it might be most beneficially employed. "If this be not true, then the general laws under which so many estates of minors, persons non compos mentis, and others, have been sold and converted into money, are unauthorized by the constitution, and void. For the courts derive their authority from the legislature, and, it not being of a judicial nature, if the legislature had it not, they could not communicate it to any other body. Thus, if there were no power to relieve those from actual distress who had unproductive property, and were disabled from conveying it themselves, it would seem that one of the most essential objects of government that of providing for the welfare of the citizens would be lost. But the argument which has most weight on the part of the defendants is, that the legislature has exercised its power over this subject in the only constitutional way, by establishing a general provision; and that, having done this, their authority has ceased, they having no right to interfere in particular cases. And if the question were one of expediency only, we should perhaps be convinced by the argument, that it would be better for all such applications to be made to the courts empowered to sustain them. But as a question of right, we think the argument fails. The constituent, when he has delegated an authority without an interest, may do the act himself which he has authorized another to do ; and especially when that constituent is the legislature, and is not prohibited by the constitution from exercising the authority. Indeed, the whole authority might be revoked, and the legisla- ture resume the burden of the business to itself, if in its wisdom it should determine that the common welfare required it. It is not legislation which must be by general acts and rules, but the use of a parental or tutorial power, for purposes of kindness, without interfering with or prejudice to the rights of any but those who apply for specific relief. The title of strangers is not in any degree affected by such an interposition." 1 1 In Shumway v. Bennett, 29 Mich, it is held that the question of incorporat- 451, the distinction between judicial and ing territory as a village cannot be made administrative power is pointed out, and a judicial question. A like decision is 144 CONSTITUTIONAL LIMITATIONS. [CII. V. A similar statute was sustained by the Court for tlie Correction of Errors in New York. "It is clearly," says the Chancellor, "within the powers of the legislature, as parens patrics, to pre- scribe such rules and regulations as it may deem proper for the superintendence, disposition, and management of the property and effects of infants, lunatics, and other persons who are incapable of managing their own affairs. But even that power cannot constitutionally be so far extended as to transfer the beneficial use of the property to another person, except in those cases where it can legally be presumed the owner of the prop- erty would himself have given the use of his property to the other, if he had been in a situation to act for himself, as in the case of a provision out of the estate of an infant or lunatic for the support of an indigent parent or other near relative. 1 made in State v. Simons, 32 Minn. 640, 21 N. W. 750, and by Chancellor Cooper, in Ex parte Burns, 1 Tenn. Ch. R. 83, though it is said in that case that the organization of corporations which are created by legislative authority may be referred to the courts. See, on the same subject, State v. Armstrong, 3 Sneed, 634; Galesburg v. Hawkinson, 75 111. 152. Compare Burlington v. Leebrick, 43 Iowa, 252, and Wahoo v. Dickinson, 23 Neb. 426, 36 N. W. 813, where it is held the question of extending, after hearing, the limits of a municipality may be decided by a court. That the courts cannot be clothed with legislative author- ity, see State v. Young, 29 Minn. 474, 9 N. W. 737. Compare Ex parte Mato, 19 Tex. App. 112. For the distinction between political and judicial power, see further, Dickey v. Reed, 78 111. 261; Commonwealth v. Jones, 10 Bush, 725. And see post, pp. 149, 150, and notes. In Hegarty's Appeal, 75 Pa. St. 603, the power of a legislature to authorize a trus- tee to sell the lands of parties who were sui juris, and might act on their own be- half, was denied, and the case was dis- tinguished from Norris v. Clymer, 2 Pa. St. 277, and others which had followed it. The foreclosure of a mortgage on private property cannot be accomplished by legis- lative enactment. Ashuelot R. R. Co. v. Elliott, 58 N. H. 451. Power to try city officers by impeach- ment may rest in a city council, the judg- ment extending only to removal arid dis- qualification to hold any corporate office. S'ate r. Judges, 35 La. Ann. 1075. 1 Cochran v. Van Surlay, 20 Wend. 365, 373. See the same case in the Supreme Court, sub nom. Clarke r. Van Surlay, 15 Wend. 436. See also Suydam v. William- son, 24 How. 427 ; Williamson v. Suydam, 6 Wall. 723 ; Heirs of Holman v. Bank of Norfolk, 12 Ala. 369 ; Florentine v. Bar- ton, 2 Wall. 210. In Hoyt v. Sprague, 103 U. S. 613, it was held competent, by special statute, to provide for the invest- ment of the estate of minors in a manu- facturing corporation, and that, after the investment was accordingly made, no ac- count could be demanded on their behalf, except of the stock and its dividends. But the legislature cannot empower the guar- dian of infants to mortgage their lands to pay demands which are not obligations against them or their estate. Burke v. Mechanics' Savings Bank, 12 R. I. 513. In Brevoort r. Grace, 53 N. Y. 245, the power of the legislature to authorize the sale of lands of infants by special statute was held to extend to the future contin- gent interests of those not in being, but not to the interests of non-consenting adults, competent to act on their own be- half. In Opinions of the Judges, 4 N. H. 665, 672, the validity of such a special statute, under the constitution of New Hampshire, was denied. The judges say : " The objection to the exercise of such a power by the legislature is, that it is in its nature both legislative and judicial. It is the province of the legislature to pre- scribe the rule of law, but to apply it to particular cases is the business of the courts of law. And the thirty-eighth ar- ticle in the Bill of Rights declares that CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 145 The same ruling has often been made in analogous cases. In Ohio, a special act of the legislature authorizing commissioners to make sale of lands held in fee tail, by devisees under a will, in order to cut off the entailment and effect a partition between them, the statute being applied for by the mother of the devisees and the executor of the will, and on behalf of the devisees, was held not obnoxious to constitutional objection, and to be sustainable on immemorial legislative usage, and on the same ground which would support general laws for the same purpose. 1 In a case in the Supreme Court of the United States, ' in the government of this State the three essential powers thereof, to wit, the legis- lative, executive, and judicial, ought to be kept as separate from, and independ- ent of, each other as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.' The exercise of such a power by the legis- lature can never be necessary. By the existing laws, judges of probate have very extensivejurisdiction to license the sale of the real estate of minors by their guar- dians. If the jurisdiction of the judges of probate be not sufficiently extensive to reach all proper cases, it may be a good reason why that jurisdiction should be extended, but can hardly be deemed a sufficient reason for the particular inter- position of the legislature in an individual case. If there be a defect in the laws, they should be amended. Under our in- stitutions all men are viewed as equal, en- titled to enjoy equal privileges, and to be governed by equal laws. If it be fit and proper that license should be given to one guardian, under particular circumstances, to sell the estate of his ward, it is fit and proper that all other guardians should, under similar circumstances, have the same license. This is the very genius and spirit of our institutions. And we are of opinion that an act of the legisla- ture to authorize the sale of the land of a particular minor by his guardian cannot be easily reconciled with the spirit of the article in the Bill of Rights which we have just cited. It is true that the grant of such a license by the legislature to the guardian is intended as a privilege and a benefit to the ward. But by the law of the land no minor is capable of assenting to a sale of his real estate in such a man- ner as to bind himself. And no guardian is permitted by the same law to deter- mine when the estate of his ward ought and when it ought not to be sold. In the contemplation of the law, the one has not sufficient discretion to judge of the propriety and expediency of a sale of his estate, and the other is not to be intrusted with the power of judging. Such being the general law of the land, it is presumed that the legislature would be unwilling to rest the justification of an act authorizing the sale of a minor's estate upon any assent which the guardian or the minor could give in the proceeding. The question then is, as it seems to us : Can a ward be de- prived of his inheritance without his con- sent by an act of the legislature which is intended to apply to no other individual? The fifteenth article in the Bill of Rights declares that no subject shall be deprived of his property but by the judgment of hia peers or the law of the land. Can an act of the legislature, intended to authorize one man to sell the land of another with- out his consent be 'the law of the land * within the meaning of the constitution ? Can it be the law of the land in a free country ? If the question proposed to us can be resolved into these questions, as it appears to us it may, we feel entirely confident that the representatives of the people of this State will agree with us in the opinion we feel ourselves bound to ex- press on the question submitted to us, that the legislature cannot authorize a guar- dian of minors, by a special act or resolve, to make a valid conveyance of the real estate of his wards." See also Jones r. Perry, 10 Yerg. 59, 30 Am. Dec. 430; Lincoln v. Alexander, 52 Cal. 482, 28 Am. Rep. 69. 1 Carroll v. Lessee of Olmsted, 16 Ohio, 251. 10 146 CONSTITUTIONAL LIMITATIONS. [CH. V. where an executrix who had proved a will in New Hampshire made sale of lands without authority in Rhode Island, for the purpose of satisfying debts against the estate, a subsequent act of the Rhode Island legislature, confirming the sale, was held not an encroachment upon the judicial power. The land, it was said, descended to the heirs subject to a lien for the payment of debts, and there is nothing in the nature of the act of authoriz- ing a sale to satisfy the lieu, which requires that it should be performed by a judicial tribunal, or that it should be performed by a delegate rather than by the legislature itself. It is reme- dial in its nature, to give effect to existing rights. 1 The case showed the actual existence of debts, and indeed a judicial license for the sale of lands to satisfy them had been granted in New Hampshire before the sale was made. The decision was afterwards followed in a carefully considered case in the same court. 2 In each of these cases it is assumed that the legislature does not by the special statute determine the exist- ence or amount of the debts, and disputes concerning them would be determinable in the usual modes. Many other decisions have been made to the same effect. 3 This species of legislation may perhaps be properly called prerogative remedial legislation. It hears and determines no rights ; it deprives no one of his property. It simply authorizes one's real estate to be turned into personal, on the application 1 Wilkinson v. Leland, 2 Pet. 627, 660. 565 ; Sohier v. Massachusetts, &c. Hospi- Compare Brevoort v. Grace, 53 N. Y. 245. tal, 3 Gush. 483 ; Lobrano v. Nelligan, 9 2 Watkins v. Holman's Lessee, 16 Pet. Wall. 295. Contra, Brenham v. Story, 39 25, 60. See also Florentine v. Barton, 2 Cal. 179. In Moore v. Maxwell, 18 Ark. Wall. 210; Doe v. Douglass, 8 Blackf. 10. 469, a special statute authorizing the ad- 8 Thurston v. Thurston, 6 R. I. 296, ministrator of one who held the mere 302 ; Williamson v. Williamson, 11 Miss, naked legal title to convey to the owner 715; McComb v. Gilkey, 29 Miss. 146; of the equitable title was held valid. To Boon v. Bowers, 30 Miss. 246; Stewart the same effect is Reformed P. D. Church v. Griffith, 33 Mo. 13 ; Estep v. Hutchman, v. Mott, 7 Paige. 77, 32 Am. Dec. 613. 14 S. & R. 435; Snowhill v. Sriowliill, 17 A special act allowing the widow to sell N. J. Eq. 30 ; Dorsey v. Gilbert, 11 G. & J. lands of the deceased husband, subject 87 ; Norris v. Clymer, 2 Pa. St. 277 ; to the approval of the probate judge, is Sergeant v. Kuhn, 2 Pa. St. 393; Kerr v. valid. Bruce v. Bradshaw, 69 Ala. 360. Kitchen, 17 Pa. St. 433; Coleman v. In Stanley v. Colt, 5 Wall. 119, an act Carr, 1 Miss. 258; Davison v. Johonnot, 7 permitting the sale of real estate which Met. 388 ; Towle v. Forney, 14 N. Y. 423 ; had been devised to charitable uses was Leggett v. Hunter, 19 N. Y. 445; Bre- sustained, no diversion of the gift being voort v. Grace, 53 N. Y. 245; Gannett v. made. A more doubtful case is that of Leonard, 47 Mo. 205; Kibby v. Chet- Linsley v. Hubbard,44 Conn. 109, 26 Am. wood's Adm'rs, 4 T. B. Monr. 91; She- Rep. 431, in which it was held competent, ban's Heirs v. Barnett's Heirs, 6 T. B. on petition of tenant for life, to order a Monr. 594 ; Davis v. State Bank, tf Ind. sale of lands for the benefit of all con- 316; Richardson v. Monson, 23 Conn. 94; cerned, though against remonstrance of Ward v. New England, &c. Co., 1 Cliff, owners of the reversion. CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 147 of the person representing his interest, and under such circum- stances that the consent of the owner, if capable of giving it, would be presumed. It is in the nature of the grant of a privi- lege to one person, which at the same time affects injuriously the rights of no other. 1 But a different case is presented when the legislature assumes to authorize a person who does not occupy a fiduciary relation to the owner, to make sale of real estate, to satisfy demands which he asserts, but which are not judicially determined, or for any other purpose not connected with the convenience or necessity of the owner himself. An act of the legislature of Illinois undertook to empower a party who had applied for it to make sale of the lands pertaining to the estate of a deceased person, in order to raise a certain specified sum of money which the legislature assumed to be due to him and another person, for moneys by them advanced and liabilities incurred on behalf of the estate, and to apply the same to the extinguishment of their claims. Now it is evident that this act was in the nature of a judicial decree, passed on the application of parties adverse in interest to the estate, and in effect adjudging a certain amount to be due them, and ordering lands to be sold for its satisfaction. As was well said by the Supreme Court of Illinois, in adjudging the act void: "If this is not the exercise of a power of inquiry into, and a determination of, facts between debtor and creditor, and that, too, ex parte and summary in its character, we are at a loss to understand the meaning of terms ; nay, that it is ad- judging and directing the application of one person's property to another, on a claim of indebtedness, without notice to, or hearing of, the parties whose estate is divested by the act. That the exercise of such power is in its nature clearly judi- cial, we think too apparent to need argument to illustrate its truth. It is so self-evident from the facts disclosed that it proves itself." 2 1 It would be equally competent for McLean, 486, Judge Pope assumes that the legislature to authorize a person under the case of Lane v. Dorman decides that legal disability e.g. an infant to con- a special act, authorizing an executor to vey his estate, as to authorize it to be sell lands of the testator to pay debts conveyed by guardian. McComb v. Gil- against his estate, would be unconstitu- key, 29 Miss. 146. QSee in this connec- tional. We do not so understand that tion, Louisville, N. O. & T. K. Co. v. decision. On the contrary, another case Ely the, 69 Miss. 939, 11 So. Ill, 16 in the same volume, Edwards v. Pope, L. R. A. 251, and note on constitution- p. 465, fully sustains the cases before de- ality of private statutes to authorize dis- cided, distinguishing them from Lane v. posal of property.] Dorman. But that indeed is also done in 2 Lane v. Dorman, 4 111. 238, 242, 36 the principal case, where the court, after Am. Dec. 543. In Dubois v. McLean, 4 referring to similar cases in Kentucky, 148 . CONSTITUTIONAL LIMITATIONS. [CH. V. A case in harmony with the one last referred to was decided by the Supreme Court of Michigan. Under the act of Congress "for the relief of citizens of towns upon the lands of the United States, under certain circumstances," approved May 23, 1844, and which provided that the trust under said act should be con- ducted " under such rules and regulations as may be prescribed by the legislative authority of the State," &c., the legislature passed an act authorizing the trustee to give deeds to a person named therein, and those claiming under him; thus undertak- ing to dispose of the whole trust to the person thus named and his grantees, and authorizing no one else to be considered or to receive any relief. This was very plainly an attempted adjudi- cation upon the rights of the parties concerned; it did not establish regulations for the administration of the trust, but it adjudged the trust property to certain claimants exclusively, in disregard of any rights which might exist in others; and it was therefore declared to be void. 1 And it has also been held that, say : " These cases are clearly distin- guished from the case at bar. The acts were for the benefit of all the creditors of the estates, without distinction ; and in one case, in addition, for the purpose of perfecting titles contracted to be made by the intestate. The claims of the cred- itors of the intestate were to be estab- lished by judicial or other satisfactory legal proceedings, and, in truth, in the last case cited, the commissioners were nothing more than special administrators. The legislative department, in passing these acts, investigated nothing, nor did an act which could be deemed a judicial inquiry. It neither examined proof, nor determined the nature or extent of claims; it merely authorized the application of the real estate to the payment of debts generally, discriminating in favor of no one creditor, and giving no one a prefer- ence over another. Not so in the case before us ; the amount is investigated juid ascertained, and the sale is directed for the benefit of two persons exclusively. The proceeds are to be applied to the payment of such claims and none other, for liabilities said to be incurred, but not liquidated or satisfied; and those, too, created after the death of the intestate." See also Mason r. Wait, 5 III. 127, 184; Davenport v. Young, 16 111. 548 ; Rozier v. Fagan, 46 111. 404. The case of Estep v. Hutchman, 14 S. & R. 435, would seem to be more open to question on this point than any of the others before cited. It was the case of a special statute, author- izing the guardian of infant heirs to con- vey their lands in satisfaction of a con- tract made by their ancestor ; and the statute was sustained. Compare this with Jones v. Perry, 10 Yerg. 59, where an act authorizing a guardian to sell lands to pay the ancestor's debts was held void. 1 Cash, Appellant, 6 Mich. 193. The case of Powers v. Bergen, 6 N. Y. 358, is perhaps to be referred to another princi- ple than that of encroachment upon judi- cial authority. That was a case where the legislature, by special act, had under- taken to authorize the sale of property, not for the purpose of satisfying liens upon it, or of meeting or in any way pro- viding for the necessities or wants of the owners, but solely, after paying expenses, for the investment of the proceeds. It appears from that case that the executors under the will of the former owner held the lands in trust for a daughter of the testator during her natural life, with a vested remainder in fee in her two chil- dren. The special act assumed to em- power them to sell and convey the complete fee, and apply the proceeds, first, to the payment of their commis- sions, costs, and expenses; serond, to the discharge of assessments, liens, charges, and incumbrances on the land, of which, however, none were shown to exist ; and CH. V.J POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 149 whether a corporation has been guilty of abuse of authority under its charter, so as justly to subject it to forfeiture, 1 and whether a widow is entitled to dower in a specified parcel of land, 54 are judicial questions which cannot be decided by the legislature. In these cases there are necessarily adverse par- ties ; the questions that would arise are essentially judicial, and over them the courts possess jurisdiction at the common law ; and it is presumable that legislative acts of this character must have been adopted carelessly, and without a due consideration of the proper boundaries which mark the separation of legislative third, to invest the proceeds and pay over the income, after deducting taxes and charges, to the daughter during her life, and after her decease to convey, assign, or pay over the same to the persons who would be entitled under the will. The court regarded this as an unauthorized interference with private property upon no necessity, and altogether void, as de- priving the owners of their property con- trary to the '' law of the land." At the same time the authority of those cases, where it has been held that the legisla- ture, acting as the guardian and protector of those who are disabled to act for themselves by reason of infancy, lunacy, or other like cause, may constitutionally pass either general or private laws, under which an effectual disposition of their property might be made, was not ques- tioned. Tlie court cite, with apparent approval, the cases, among others, of Rice >. Parkman, 16 Mass. 326 ; Cochran v. Van Surlay, 20 Wend. 365; and Wil- kinson v. Leland, 2 Pet. 627. The case of Ervine's Appeal, 16 Pa. St. 256, was similar, in the principles involved, to Powers v. Bergen, and was decided in the same way. See also Kneass's Appeal, 31 Pa. St. 87 ; Maxwell v. Goetschius, 40 N. J. 383, 29 Am. Rep. 242, and compare with Ker v. Kitchen, 17 Pa. St. 433; Martin's Appeal, 23 Pa. St. 433; Heg- arty's Appeal, 75 Pa. St. 503; Tharp v. Fleming, 1 Houston, 580. There is no constitutional objection to a statute which transfers the mere legal title of a trustee to the beneficiary. Reformed P. I). Church v. Mott, 7 Paige, 77, 32 Am. Dec. 613. 1 State v. Noyes, 47 Me. 189 ; Camp- bell v. Union Bank, 6 How. (Miss.) 661; Canal Co. v. Railroad Co., 4 G. & J. 1, 22 ; Regents of University v. Williams, 9 G. & J. 365. In Miners' Bank of Dubuque v. United States, 1 Morris, 482, a clause in a charter authorizing the legislature to repeal it for any abuse or misuser of cor- porate privileges was held to refer the question of abuse to the legislative judg- ment. In Erie & North East R. R. Co. v. Casey, 26 Pa. St. 287, on the other hand, it was held that the legislature could not conclude the corporation by its repealing act, but that the question of abuse of corporate authority would be one of fact to be passed upon, if denied, by a jury, so that the act would be valid or void as the jury should find. Com- pare Flint & Fentonville P. R. Co. v. Woodhull, 25 Mich. 99; 12 Am. Rep. 233, in which it was held that the reser- vation of a power to repeal a charter for violation of its provisions necessarily presented a judicial question, and the re- peal must be preceded by a proper judi- cial finding. In Carey v. Giles, 9 Ga. 253, the appointment by the legislature of a receiver for an insolvent bank was sus- tained ; and in Hindman v. Piper, 50 Mo. 292, a legislative appointment of a trustee was also sustained in a peculiar case. In Lothrop v. Steadman, 42 Conn. 583, the power of the legislature as an adminis- trative measure to appoint a trustee to take charge of and manage the affairs of a corporation whose charter had been repealed, was affirmed. For a similar principle see Albertson v. Landon, 42 Conn. 209. And see post, p. 520. QAnd Congress has power to declare the forfeit- ure of a land grant for breach of condi- tion subsequent. All. & Pac. R. Co. v. Mingus, 165 U. S. 413, 17 Sup. Ct. Rep. 348J 2 Edwards v. Pope, 4 111. 466. 150 CONSTITUTIONAL LTMITATTOXS. [CH. V. from judicial duties. 1 As well might the legislature proceed to declare that one man is indebted to another in a sum specified, and establish by enactment a conclusive demand against him. 2 We have elsewhere referred to a number of cases where statutes have been held unobjectionable which validated legal proceedings, notwithstanding irregularities apparent in them. 3 These statutes may as properly be made applicable to judicial as to ministerial proceedings; and although, when they refer to such proceedings, they may at first seem like an interference with judicial authority, yet if they are only in aid of judicial proceedings, and tend to their support by precluding parties from taking advantage of errors which do not affect their sub- stantial rights, they cannot be obnoxious to the charge of usurp- ing judicial power. The legislature does, or may, prescribe the rules under which the judicial power is exercised by the courts; and in doing so it may dispense with any of those formalities which are not essential to the jurisdiction of the court; and whatever it may dispense with by statute anterior to the pro- ceedings, we believe it may also dispense with by statute after the proceedings have been taken, if the court has failed to ob- serve any of those formalities. But it would not be competent for the legislature to authorize a court to proceed and adjudicate upon the rights of parties, without giving them an opportunity 1 The unjust and dangerous character to stand against the antagonism of the of legislation of this description is well legislature and the bar,' one independent stated by the Supreme Court of Pennsyl- co-ordinate branch of the government vania : " When, in the exercise of proper will become the subservient handmaid of legislative powers, general laws are en- another, and a quiet, insidious revolution acted which bear, or may bear, on the be effected in the administration of the whole community, if they are unjust and government, whilst its form on paper against the spirit of the Constitution, the remains the same." Ervine's Appeal, 16 whole community will be interested to Pa. St. 256, 268. procure their repeal by a voice potential. 2 A statute is void which undertakes And that is the great security for just to make railroad companies liable for the and fair legislation. But when individ- expense of coroners' inquests, and of the uals are selected from the mass, and laws burial of persons dying on the cars, or are enacted affecting their property, killed by collision or other accident oc- witliout summons or notice, at the insti- curring to the cars, irrespective of any gation of an interested party, who is to question of negligence. Ohio & M. R. R. stand up for them, thus isolated from the Co. v. Lackey, 78 111. 55, 20 Am. Rep. mass, in injury and injustice, or where 259. [jBut a railroad may be made abso- are they to seek relief from such acts of lutely liable for loss from fires caused by despotic power? They have no refuge sparks from its locomotives, regardless but in the courts, the only secure place of the question of negligence. Matthews for determining conflicting rights by due v. St. Lmiis & S. F. R. Co., 121 Mo. 298, course of law. But if the judiciary give 24 S. W. 591, 25 L. R. A. 161, and note, way, and in the language of the Chief See this case affirmed in 105 U. S. 1, 17 Justice in Greenough v. Greenough, in Sup. Ct. Rep. 243. J 11 Pa. St. 489, 'confesses itself too weak 8 See post, pp. 630-646. CIT. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 151 to be heard before it; and, for the same reason, it would be incompetent for it, by retrospective legislation, to make valid any proceedings which had been had in the courts, but which were void for want of jurisdiction over the parties. Such a legislative enactment would be doubly objectionable: first, as an exercise of judicial power, since, the proceedings in court being void, it would be the statute alone which would constitute an adjudication upon the rights of the parties; and second, because, in all judicial proceedings, notice to parties and an opportunity to defend are essential, both of which they would be deprived of in such a case. 1 And for like reasons a statute validating proceedings had before an intruder into a judicial office, before whom no one is authorized or required to appear, and who could have jurisdiction neither of the parties nor of the subject-matter, would also be void. 2 1 In McDaniel v. Correll, 19 111. 226, it appeared that a statute had been passed to make valid certain legal proceedings by which an alleged will was adjudged void, and which were had against non- resident defendants, over whom the courts had obtained no jurisdiction. The court say : " If it was competent for the legis- lature to make a void proceeding valid, then it has been done in this case. Upon this question we cannot for a moment doubt or hesitate. They can no more impart a binding efficacy to a void pro- ceeding, than they can take one man's property from him and give it to another. Indeed, to do the one is to accomplish the other. By the decree in this case the will in question was declared void, and, con- sequently, if effect be given to the decree, the legacies given to those absent defend- ants by the will are taken from them and given to others, according to our statute of descents. Until the passage of the act in question, they were not bound by the verdict of the jury in this case, and it could not form the basis of a valid de- cree. Had the decree been rendered before the passage of the act, it would have been as competent to make that valid as it wns to validate the antecedent proceedings vpon which alone the decree could rest. The want of jurisdiction over the defendants was as fatal to the one aa it could be to the other. If we assume the act to be valid, then the legacies which before belonged to the legatees have now ceased to be theirs, and this result has been brought about by the leg- islative act alone. The effect of the act upon them is precisely the same as if it had declared in direct terms that the legacies bequeathed by this will to these defendants should not go to them, but should descend to the heirs-nt-law of the testator, according to our law of descents. This it will not be pretended that they could do directly, and they had no more authority to do it indirectly, by making proceedings binding upon them which were void in law." See, to the same effect, Richards v. Rote, 68 Pa. St. 248; Pryor v. Downey, 60 Cal. 388, 19 Am. Rep. 656; Lane v. Nelson, 79 Pa. St. 407; Shonk v. Brown, 61 Pa. St. 320; Spragg v. Shriver, 25 Pa. St. 282 ; Israel v. Arthur, 7 Col. 5. 2 In Denny v. Mattoon, 2 Allen, 361, a judge in insolvency had made certain orders in a case pending in another juris- diction, and which the courts subsequently declared to be void. The legislature then passed an act declaring that they " are hereby confirmed, and the same shall be taken and deemed good and valid in law, to all intents and purposes whatsoever." On the question of the validity of this act the court says : " The precise question is, whether it can be held to operate so as to confer a jurisdiction over parties and pro- ceedings which it has been judicially de- termined did not exist, and give validity to acts and processes which have been adjudged void. The statement of this question seems to us to suggest the ob- 152 CONSTITUTIONAL LIMITATIONS. [CH. V. Legislative Divorces. There is another class of cases in which it would seem that action ought to be referred exclusively to the judicial tribunals, which may serve to determine, in all cases, whether the limits of constitutional restraint are overstepped by the exercise by one branch of the government of pow- ers exclusively delegated to another, it certainly is practicable to apply to each case as it arises some test by which to ascertain whether this fundamental prin- ciple is violated. If, for example, the practical operation of a statute is to de- termine adversary suits pending between party and party, by substituting in place of the well-settled rules of law the arbi- trary will of the legislature, and thereby controlling the action of the tribunal be- fore which the suits are pending, no one can doubt that it would be an unauthor- ized act of legislation, because it directly infringes on the peculiar and appropriate functions of the judiciary. It is the ex- clusive province of courts of justice to apply established principles to cases within their jurisdiction, and to enforce their decisions by rendering judgments and executing them by suitable process. The legislature have no power to inter- fere with this jurisdiction in such manner as to change the decision of cases pend- ing before courts, or to impair or set aside their judgments, or to take cases out of the settled course of judicial proceeding. It is on this principle that it has been held that the legislature have no power to grant a new trial or direct a rehearing of a cause which has been once judicially settled. The right to a review, or to try anew facts which have been determined by a verdict or decree, depends on fixed and well-settled principles, which it is the duty of the court to apply in the exer- cise of a sound judgment and discretion. These cannot be regulated or governed by legislative action. Taylor v. Place, 4 R. I. 324, 337 ; Lewis v. Webb, 3 Me. 326; De Chastellux v. Fairchild, 15 Pa. St. 18. A fortiori, an act of the legisla- ture cannot set aside or amend final judg- ments or decrees." The court further consider the general subject at length, and adjudge the particular enactment under consideration void, both as an vious and decisive objection to any con- struction of the statute which would lead to such a conclusion. It would be a di- rect exercise by the legislature of a power in its nature clearly judicial, from the use of which it is expressly prohibited by the thirtieth article of the Declaration of Rights. The line which marks and sepa- rates judicial from legislative duties and functions is often indistinct and uncertain, and it is sometimes difficult to decide within which of the two classes a par- ticular subject falls. All statutes of a declaratory nature, which are designed to interpret or give a meaning to previous enactments, or to confirm the rights of parties either under their own contracts or growing out of the proceedings of courts or public bodies, which lack legal valid- ity, involve in a certain sense the exercise of a judicial power. They operate upon subjects which might properly come within the cognizance of the courts and form the basis of judicial consideration and judgment. But they may, neverthe- less, be supported as being within the legitimate sphere of legislative action, on the ground that they do not declare or determine, but only confirm rights ; that they give effect to the acts of parties ac- cording to their intent ; that they furnish new and more efficacious remedies, or create a more beneficial interest or tenure, or, by supplying defects and curing infor- malities in the proceedings of courts, or of public officers acting within the scope of their authority, they give effect to acts to which there was the express or implied assent of the parties interested. Statutes which are intended to accomplish such purposes do not necessarily invade the province, or directly interfere with the action of judicial tribunals. But if we adopt the broadest and most comprehen- sive view of the power of the legislature, we must place some limit beyond which the authority of the legislature cannot go without trenching on the clear and well- defined boundaries of judicial power." " Although it may be difficult, if not im- possible, to lay down any general rule CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 153 but in respect to which the prevailing doctrine seems to be that the legislature has complete control unless specially restrained by the State constitution. The granting of divorces from the bonds of matrimony was not confided to the courts in England, and from the earliest days the Colonial and State legislatures in this country have assumed to possess the same power over the subject which was possessed by the Parliament, and from time to time they have passed special laws declaring a dissolu- tion of the bonds of matrimony in special cases. Now it is clear that "the question of divorce involves investigations which are properly of a judicial nature, and the jurisdiction over divorces ought to be confined exclusively to the judicial tribunals, under the limitations to be prescribed by law;" 1 and so strong is the general conviction of this fact, that the people in framing their constitutions, in a majority of the States, have positively for- bidden any such special laws. 2 exercise of judicial authority, and also because, in declaring valid the void pro- ceedings in insolvency against the debtor, under which assignees had been ap- pointed, it took away from the debtor his property, "not by due process of law or the law of the land, but by an arbi- trary exercise of legislative will." See, further, Griffin's Executor v. Cunning- ham, 20 Grat. 109; State r. Doherty, 60 Me. 504. In proceedings by tenants for life, the estate in remainder was ordered to be sold; there was at the time no au- thority for ordering such a sale. It was held to be void, and incapable of confir- mation. Maxwell v. Goetschius, 40 N. J. 383,29 Am. Kep. 242. 1 2 Kent, 106. See Levins v. Sleator, 2 Greene (Iowa), 607. 2 The following are constitutional pro- visions : Alabama: Divorces from the bonds of matrimony shall not be granted but in the cases by law provided for, and by suit in chancery ; but decrees in chan- cery for divorce shall be final, unless ap- pealed from in the manner prescribed by law, within three months from the date of the enrolment thereof. Arkansas: The General Assembly shall not have power to pass any bill of divorce, but may pre- scribe by law the manner in which such cases may be investigated in the courts of justice, and divorces granted. California: No divorce shall be granted by the legis- lature. The provision is the same or sim- ilar in Iowa, Indiana, Maryland, Michigan, Minnesota, Nevada, Nebraska, Oregon, New Jersey, Texas, and Wisconsin. Flor- ida : Divorces from the bonds of matri- mony shall not be allowed but by the judgment of a court, as shall be prescribed bylaw. Georgia: The Superior Court shall have exclusive jurisdiction in all cases of divorce, both total and partial. Illinois: The General Assembly shall not pass . . . special laws . . . for granting divorces. Kansas: And power to grant divorces is vested in the District Courts subject to regulations by law. Kentucky : The General Assembly shall have no power to grant divorces, . . . but by gen- eral laws shall confer such powers on the courts of justice. Louisiana: The Gen- eral Assembly shall not pass any local or special law on the following specified objects: . . . Granting divorces. Massa- chusetts: All cause of marriage, divorce, and alimony . . . shall be heard and de- termined by the Governor and Council, until the legislature shall by law make other provision. Mississippi: Divorces from the bonds of matrimony shall not be granted but in cases provided for by law, and by suit in chancery. Missouri: The General Assembly shall not pass any local or special law . . . granting divorces. In Colorado the provision is the same. New Hampshire : All causes of marriage, divorce, and alimony . . . shall be heard and tried by the Superior Court, until the legislature shall by law make other pro- vision. New York: . . . nor shall any 154 CONSTITUTIONAL LIMITATIONS. [CH. V. Of the judicial decisions on the subject of legislative power over divorces there seem to be three classes of cases. The doc- trine of the first class seems to be this : The granting of a divorce may be either a legislative or a judicial act, according as the legislature shall refer its consideration to the courts, or reserve it to itself. The legislature has the same full control over the status of husband and wife which it possesses over the other domestic relations, and may permit or prohibit it, according to its own views of what is for the interest of the parties or the good of the public. In dissolving the relation, it proceeds upon such reasons as to it seem sufficient; and if inquiry is made into the facts of the past, it is no more than is needful when any change of the law is contemplated, with a view to the establish- ment of more salutary rules for the future. The inquiry, there- fore, is not judicial in its nature, and it is not essential that there be any particular finding of misconduct or unfitness in the parties. As in other cases of legislative action, the reasons or divorce be granted otherwise than by due judicial proceedings. North Carolina: The General Assembly shall have power to pass general laws regulating divorce and alimony, but shall not have power to grant a divorce or secure alimony in any par- ticular case. Ohio: The General Assem- bly shall grant no divorce nor exercise any judicial power, not herein expressly conferred. Pennsylvania : The legislature shall not have power to enact laws annul- ling the contract of marriage in any case where by law the courts of this Common- wealth are, or hereafter may be, em- powered to decree a divorce. Tennessee : The legislature shall have no power to grant divorces, but may authorize the courts of justice to grant them for such causes as may be specified by law ; but such laws shall be general and uniform in their operation throughout the State. Virginia: The legislature shall confer on the courts the power to grant divorces, . . . but shall not by special legislation grant relief in such cases. West Virginia : The Circuit Courts shall have power, under such general regulations as may be prescribed by law, to grant divorces, . . . but relief shall not be granted by special legislation in such cases. Under the Con- stitution of Michigan, it was held that, as the legislature was prohibited from grant- ing divorces, they could pass no special act authorizing the courts to divorce for a cause which was not a legal cause for divorce under the general laws. Teft v. Teft, 3 Mich. 67. See also Clark v. Clark, 10 N. H. 380; Simonds v. Simonds, 103 Mass. 572, 4 Am. Rep. 576. The case of White v. White, 105 Mass. 325, was pe- culiar. A woman procured a divorce from her husband, and by the law then in force he was prohibited from marrying again except upon leave procured from the court. He did marry again, however, and the legislature passed a special act to affirm this marriage. In pursuance of a requirement of the constitution, jurisdic- tion of all cases of marriage and divorce had previously been vested by law in the courts. Held, that this took from the legislature all power to act upon the sub- ject in special cases, and the attempt to validate the marriage was consequently ineffectual. That the legislature possesses authority to validate marriages and to give legitimacy to the children of invalid marriages, where the constitution has not taken it away, see Andrews v. Page, 3 Heisk. 653 ; post, pp. 533, 534. ^Constitu- tional prohibition of legislative divorces does not make invalid a statute providing that a sentence to life imprisonment shall operate as absolute divorce. State v. Duket, 90 Wis. 272, 63 N. W. 83, 31 L.R. A. 515, 48 Atn. St. 928 ; and see note hereto in L. R. A. upon effect of senten'-e upon marriage relation.] OIL V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 155 the motives of the legislature cannot be inquired into; the relation which the law permitted before is now forbidden, and the parties are absolved from the obligations growing out of that relation which continued so long as the relation existed, but which necessarily cease with its termination. Marriage is not a contract, but a status ; the parties cannot have vested rights of property in a domestic relation; therefore the legislative act does not come under condemnation as depriving parties of rights contrary to the law of the land, but, as in other cases within the scope of the legislative authority, the legislative will must be regarded as sufficient reason for the rule which it promulgates. 1 1 The leading case on this subject is Starr v. Pease, 8 Conn. 541. On the question whether a divorce is necessarily a judicial act, the court say : " A further objection is urged against this act ; viz., that by the new constitution of 1818, there is an entire separation of the legis- lative and judicial departments, and that the legislature can now pass no act or resolution not clearly warranted by that constitution ; that the constitution is a grant of power, and not a limitation of powers already possessed ; and, in short, that there is no reserved power in the legislature since the adoption of this con- stitution. Precisely the opposite of this is true. From the settlement of the State there have been certain fundamental rules by' which power has been exercised. These rules were embodied in an instru- ment called by some a constitution, by others a charter. All agree that it was the first constitution ever made in Con- necticut, and made, too, by the people themselves. It gave very extensive pow- ers to the legislature, and left too much (for it left everything almost) to their will. The constitution of 1818 proposed to, and in fact did, limit that will. It adopted certain general principles by a preamble called a Declaration of Rights ; provided for the election and appoint- ment of certain organs of the government, such as the legislative, executive, and judicial departments ; and imposed upon them certain restraints. It found the State sovereign and independent, with a legisla- tive power capable of making all laws necessary for the good of the people, not forbidden by the Constitution of the United States, nor opposed to the sound maxims of legislation ; and it left them in the same condition, except so far as limitations were provided. There is now and has been a law in force on the sub- ject of divorces. The law was passed one hundred and thirty years ago. It pro- vides for divorces a vincufo matrimonii in four cases; viz., adultery, fraudulent con- tract, wilful desertion, and seven years' absence unheard of. The law has re- mained in substance the same as it was when enacted in 1667. During all this period the legislature has interfered like the Parliament of Great Britain, and passed spectal acts of divorce a vinculo matrimonii; and at almost every session since the Constitution of the United States went into operation, now forty-two years, and for the thirteen years of the existence of the Constitution of Connec- ticut, such acts have been, in multiplied cases, passed and sanctioned by the con- stituted authorities of our State. We are not at liberty to inquire into the wisdom of our existing law on this subject; nor into the expediency of such frequent in- terference by the legislature. We can only inquire into the constitutionality of the act under consideration. The power is not prohibited either by the Constitu- tion of the United States or by that of this State. In view of the appalling con- sequences of declaring the general law of the State or the repeated acts of our legis- lature unconstitutional and void, conse- quences easily conceived, but not easily expressed, such as bastardizing the is- sue and subjecting the parties to punish- ment for adultery, the court should come to the result only on a solemn con- viction that their oaths of office and these constitutions imperiously demand it. Feel- ing myself no such conviction, I cannot 156 CONSTITUTIONAL LIMITATIONS. [CH. V. The second class of cases to which we have alluded hold that divorce is a judicial act in those cases upon which the general laws confer on the courts power to adjudicate; and that conse- quently in those cases the legislature cannot pass special laws, but its full control over the relation of marriage will leave it at liberty to grant divorces in other cases, for such causes as shall appear to its wisdom to justify them. 1 A third class of cases deny altogether the authority of these special legislative enactments, and declare the act of divorce to be in its nature judicial, and not properly within the province of the legislative power. 2 The most of these decisions, however, lay more or less stress upon clauses in the constitutions other than those which in general terms separate the legislative and judicial functions, and some of them would perhaps have been differently decided but for those other clauses. But it is safe to say that the general sentiment in the legal profession is against the rightfulness of special legislative divorces ; and it is believed that, if the question could originally have been considered by the courts, unembarrassed by any considerations of long acquies- cence, and of the serious consequences which must result from affirming their unlawfulness, after so many had been granted and new relations formed, it is highly probable that these enact- ments would have been held to be usurpations of judicial author- pronounce the act void." Per Daggett, while suit for divorce was pending in a J. ; Hosmer, Ch. J., and Bissell, J., con- court of competent jurisdiction would curring. Peters, J., dissented. Upon the not affect the rights to property of the same subject see Crane v. Meginnis, 1 G. other, growing out of the relation. Gaines & J. 463 ; Wright v. Wright, 2 Md. 429 ; v. Gaines, 9 B. Monr. 295. A statute per- Gaines v. Gaines, 9 B. Monr. 295; Cabell mitting divorces for offences committed v. Cabell, 1 Met. (Ky.) 319; Dickson v. before its passage is not an ex post facto Dickson, 1 Yerg. 110; Melizet's Appeal, law in the constitutional sense. Jones v. 17 Pa. St. 449; Cronise v. Cronise, 64 Jones, 2 Overton, 2, 6 Am. Dec. 645. Pa. St. 255 ; Adams v. Palmer, 51 Me. 2 Brigham v. Miller, 17 Ohio, 445 ; 480 ; Townsend v. Griffin, 4 Harr. 440 ; Clark i-. Clark, 10 N. H. 380 : Ponder v. Noel v. Ewing, 9 Ind. 37 ; and the ex- Graham, 4 Fla. 23 ; State v. Fry, 4 Mo. animation of the whole subject by Mr. 120; Bryson v. Campbell, 12 Mo. 498; Bishop, in his work on Marriage and Bryson v. Bryson, 17 Mo. 690 ; Same Divorce. A territorial legislature having v. Same, 44 Mo. 232. See also Jones power covering all rightful subjects of v. Jones, 12 Pa. St. 350, 354. Under legislation could grant a divorce. May- the Constitution of Massachusetts, the nard v. Hill, 125 U. S. 190, 8 Sup. Ct. power of the legislature to grant di- Rep. 723. vorces is denied. Sparha wk v. Sparhawk, 1 Levins v. Sleator, 2 Greene (Iowa), 116 Mass. 315. See clause in constitu- 604; Opinions of Judges, 16 Me. 479; tion, ante, p. 163, note 2. Where a court Adams v. Palmer, 51 Me. 480. See also is given appellate jurisdiction in a/I cases, Townsend v. Griffin, 4 Harr. 440. In a it is not competent by statute to forbid well-reasoned case in Kentucky, it was its reversing a decree of divorce. Tier- held that a legislative divorce obtained ney v. Tierney, 1 Wash. Ter. 508. See on the application of one of the parties Nichols v. Griffin, 1 Wash. Ter 374. CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 157 ity, and we should have been spared the necessity for the special constitutional provisions which have since been introduced. Fortunately these provisions render the question now discussed of little practical importance; at the same time that they refer the decision upon applications for divorce to those tribunals which must proceed upon inquiry, and cannot condemn without a hearing. 1 The force of a legislative divorce must in any case be confined to a dissolution of the relation; it can only be justified on the ground that it merely lays down a rule of conduct for the parties to observe towards each other for the future. It cannot inquire into the past, with a view to punish the parties for their offences against the marriage relation, except so far as the divorce itself can be regarded as a punishment. It cannot order the payment of alimony, for that would be a judgment; 2 it cannot adjudge upon conflicting claims to property between the parties, but it must leave all questions of this character to the courts. Those rights of property which depend upon the continued existence of the relation will be terminated by the dissolution, but only as in any other case rights in the future may be incidentally affected by a change in the law. 3 Legislative Encroachments upon Executive Power. If it is difficult to point out the precise boundary which sepa- rates legislative from judicial duties, it is still more difficult to discriminate, in particular cases, between what is properly legislative and what is properly executive duty. The authority that makes the laws has large discretion in determining the means through which they shall be executed; and the perform- 1 If marriage is a matter of right, then ful powers of legislation " which our con- it would seem that any particular mar- stitutions confer upon the legislative riage that parties might lawfully form department, a relation essential to organ- they must have a lawful right to continue ized civil society might be abrogated in, unless by misbehavior they subject entirely. Single legislative divorces are themselves to a forfeiture of the right, but single steps towards this barbarism And if the legislature can annul the rela- which the application of the same prin- tion in one case, without any finding that ciple to every individual case, by a gen- a breach of the marriage contract has eral law, would necessarily bring upon us. been committed, then it would seem that See what is said by the Supreme Court they might annul it in every case, and of Missouri in Bryson v. Bryson, 17 Mo. even prohibit all parties from entering 590, 594. into the same relation in the future. The 2 Crane v. Meginnis, 1 G. & J. 463; recognition of a full and complete control Potter's Dwarris on Statutes, 486; post, of the relation in the legislature, to be p. 684. note, exercised at its will, leads inevitably to 8 Starr v. Pease, 8 Conn. 541. this conclusion ; so that, under the " right- 158 CONSTITUTIONAL LIMITATIONS. [CH. V. ance of many duties which they may provide for by law they may refer either to the chief executive of the State, or, at their option, to any other executive or ministerial officer, or even to a person specially named for the duty. 1 What can be definitely said on this subject is this: That such powers as are specially conferred by the constitution upon the governor, or upon any other specified officer, the legislature cannot require or authorize to be performed by any other officer or authority; and from those duties which the constitution requires of him he cannot be excused bylaw. 2 But other powers or duties the executive 1 This is affirmed in the case of Bridges r. Shallcross, 6 W. Va. 662. The consti- tution of that State provides that the governor shall nominate, and by and with the advice and consent of the Senate appoint, all officers whose offices are es- tablished by the constitution or shall be created by law, and whose appointment or election is not otherwise provided for, and that no such officer shall be appointed or elected by the legislature. The court decided that this did not preclude the legislature from creating a board of public works of which the State officers should be ex officio the members. The legislature may regulate appointment to statutory offices : People v. Osborne, 7 Col. 6U5; may provide a board of civil service commissioners to prescribe qualifications of all officers not provided for by the constitution : Opinion of Justices, 138 Mass. 601. p?or other cases upon merit system in civil service, see People v. Kip- ley, 171 111. 44, 49 N. E. 229, 41 L. R. A. 775 ; Chittenden v. Wurster, 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809 ; Re Keymer, 148 N. Y. 219, 42 N. E. 667, 35 L. R. A. 447 ; Opinion of Justices, 166 Mass. 589, 44 N. E. 625, 34 L. R. A. 58 ; Newcomb v. Indianapolis, 141 Ind. 451, 40 N. E. 919, 28 L. R. A. 732; Rogers v. Buffalo, 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579 ; Neumeyer v. Krakel, - Ky. , 62 S. W. 518 (April 25, 1901) ; People v. Mosher, 163 N. Y. 32, 67 N. E. 88, 79 Am. St. 652 ; Peo- ple v. Roberts, 148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 399.] May appoint a State board, if constitution does not ex- pressly empower the governor to do so. People v. Freeman, 80 Cal. 233, 22 Pac. 173. See Hovey v. State, 119 Ind. 386, 21 N. E. 890; Biggs v. McBride, 17 Oreg. 640, 21 Pac. 878 ; State v. Covington, 29 Ohio St. 102. [^Appointment of police officers cannot be intrusted to a bipartisan board, elected half by one party in city council and half by another. Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408. But a provision that not more than two of the three members of a civil service commission shall be of the same political party is valid. Rogers v. Buffalo, 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 679.] 2 Attorney-General v. Brown, 1 Wis. 513. " Whatever power or duty is ex- pressly given to, or imposed upon, the executive department, is altogether free from the interference of the other branches of the government. Especially is this the case where the subject is com- mitted to the discretion of the chief exec- utive officer, either by the constitution or by the laws. So long as the power is vested in him, it is to be by him exercised, and no other branch of the government can control its exercise." Under the Con- stitution of Ohio, which forbids the exer- cise of any appointing power by the legis- lature, except as therein authorized, it was held that the legislature could not, by law, constitute certain designated per- sons a State board, with power to appoint commissioners of the State House, and directors of the penitentiary, and to re- move such directors for cause. State v. Kennon, 7 Ohio St. 546. By the Indiana Constitution all officers whose appoint- ment is not otherwise provided for, shall be chosen in such manner as shall be pre- scribed by law. The power to ordain the "manner" does not give the legislature power to appoint. State v. Denny, 118 Ind. 382, 21 N. E. 252, 274, 4 L. R. A. 79; Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. And see Davis v. State, 7 Md. 151 ; also cases referred CH. V.J POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 159 cannot exercise or assume except by legislative authority, and to in preceding note. [O'Connor v. Fond du Lac, 109 Wis. 253, 85 N. W. 327. The power of appointment to a particular office may be vested in the State geolo- gist. State v. Hyde, 1^9 Ind. 296, 28 N. E. 186, 13 L. R. A. 79. The governor's power of appointment cannot be indirectly taken away ; as by abolishing the office or offices and creating another and attaching to it the duties of the office or offices abol- ished. Johnson v. State, 59 N. J. L. 535, 37 Atl. 949, 38 L. R. A. 373, 39 Atl. 646.] As to what are public officers, see State ;. Stanley, 66 N. C. 59, 8 Am. Rep. 488. An appointment to office was said, in Tay- lor v. Commonwealth, 3 J. J. Marsh. 401, to be intrinsically an executive act. In a certain sense this is doubtless so, but it would not follow that the legislature could exercise no appointing power, or could confer none on others than the chief exec- utive of the State. Where the constitu- tion contains no negative words to limit the legislative authority in this regard, the legislature in enacting a law must decide for itself what are the suitable, conven- ient, or necessary agencies for its execu- tion, and the authority of the executive must be limited to taking care that the law is executed by such agencies. See Baltimore v. State, 15 Md. 376; [State v. Henderson, 4 Wyo. 535, 35 Pac. 517, 22 L. R. A. 751; Fox v. McDonald, 101 Ala. 61, 13 So. 416, 21 L. R. A. 529, 46 Am. St. 98 ; State v. George, 22 Oreg. 142, 29 Pac. 356, 16 L. R. A. 737, 29 Am. St. 586. That power to appoint CityCommissioners may be given to circuit judges. See Terre Haute v. Evansville and T. H. Ry. Co., 149 Ind. 174, 46 N. E. 77, 37 L. R. A. 189 ; and see note 16 L. R. A. 737, on the con- stitutional power of courts or judges to appoint officers. With regard to require- ments of merit in appointees and compet- itive examinations for the ascertainment thereof, see People v. Kipley, 171 111. 44, 49 N. E. 229, 41 L. R. A. 775; Chittenden v. Wurster, 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809 ; Re Keymer, 148 N. Y. 219, 42 N. E. 667, 35 L. R. A. 447 ; Opin- ion of Justices, 166 Mass. 589, 44 N. E. 625, 34 L. R. A. 58; People v. Roberts, 148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 399; Newcomb w. Indianapolis, 141 Ind. 451, 40 N. E. 919, 28 L. R. A. 732; Rogers v. Buffalo, 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579; Neumeyer v. Krakel, Ky. , 62 S. W. 518; People v. Mosher, 163 N. Y. 32, 57 N. E. 88, 79 Am. St. 552. The mayor of a city may be em- powered to appoint the principal exec- utive officers thereof. Datz v. Cleveland, 52 N. J. L. 188, 19 Atl. 17, 7 L. R. A. 431. For other cases on appointing power, see State v. Boucher, 3 N. D. 389, 56 N. W. 142, 21 L. R. A. 539.] Where the governor has power to re- move an officer for neglect of duty, he is the sole judge whether the duty has been neglected. State v. Doherty, 25 La. Ann. 119, 13 Am. Rep. 131 ; [State v. Johnson, 30 Fla. 433, 11 So. 845, 18 L. R. A. 410; and see Trainor v. Wayne Co. Auditors, 89 Mich. 162, 50 N. W. 809, 15 L. R. A. 95, and note on power of summary re- moval.] The courts cannot review his action if it is taken after a hearing: State v. Hawkins, 44 Ohio St. 98, 5 N. E. 228; but he must afford an opportunity for defence. Dullam v. Willson, 53 Mich. 392, 19 N. W. 112; [State v. Johnson, 30 Fla. 433, 11 So. 845, 18 L. R. A. 410; State v. Smith, 35 Neb. 13, 52 N. W. 700, 16 L. R. A. 791 ; Biggs v. McBride, 17 Oreg. 640, 21 Pac. 878, 5 L. R. A. 115.] Contra, unless the right is expressly secured to the officer. Donahue v. Will Co., 100 111. 94, and cases cited. [For a case of removal for gross carelessness in declaring the result of a vote upon a constitutional amendment, see Attorney- General v. Jochim, 99 Mich. 358, 58 N. W. 611, 23 L. R. A. 699, 41 Am. St. 606. Pro- vision for impeachment or removal does not prevent virtual removal by legislature through statute abolishing the office and creating another with same duties and powers. State v. Hyde, 129 Ind. 296, 28 N. E. 186, 13 L. R. A. 79. Power of removal cannot be conferred on court. Gordon r. Moores, 61 Neb. 345, 85 N. W. 298.] If the governor has power to appoint with the consent of Senate, and to re- move, he may remove without such con- sent. Lane v. Com., 103 Pa. St. 481 ; Harman v. Harwood, 58 Md. 1. See, MS to discretionary powers, ante, pp. 73-75, notes. The executive, it has been decided, has power to pardon for contempt of court. State v. Sauvinet, 24 La. Ann. 119, 13 Am. Rep. 115; [Sharp v. State, 102 Tenn. 160 CONSTITUTIONAL LIMITATIONS. [CH. V. the power which in its discretion it confers it may also in its discretion withhold, or confide to other hands. 1 Whether in those cases where power is given by the constitution to the gov- ernor, the legislature have the same authority to make rules for the exercise of the power that they have to make rules to govern the proceedings in the courts, may perhaps be a question. 2 It 9, 49 S. W. 752, 43 L. R. A. 788, 73 Am. St. 851.] A general power to par- don may be exercised before as well as after conviction. Lapeyre v. United States, 17 Wall. 191; Dominick v. Bow- doin, 44 Ga. 357 ; Grubb v. Bullock, 44 Ga. 379; [Terr, v. Richardson, 9 Okla. 579, 60 Pac. 244, 49 L. R. A. 440.] The President's power to pardon does not ex- tend to the restoration of property which has been judicially forfeited. Knote v. United States, 10 Ct. of Cl. 397, and 95 U. S. 149; Osborn v. United States, 91 U. S. 474. The pardon may be granted by general proclamation. Carlisle v. United States, 16 Wall. 147; Lapeyre v. United States, 17 Wall. 191. The de- livery of a pardon to the prison warden, makes it operative. Ex parte Powell, 73 Ala. 517. One receiving a full pardon from the President cannot afterwards be required by law to establish loyalty as a condition to the assertion of legal rights. Carlisle v. United States, 16 Wall. 147. Nor be prosecuted in a civil action for the same acts for which he is pardoned. United States v. McKee, 4 Dill. 128. Pardon removes all disabilities resulting from conviction, and may be granted after sentence executed. State v. Foley, 15 Nev. 64, 37 Am. Rep. 458 ; Edwards v. Com., 78 Va. 39; State v. Dodson, 16 S. C. 453; [State v. Martin, 59 Ohio, 212, 52 N. E. 188, 43 L. R. A. 94, -69 Am. St. 762.] But a mere executive order to discharge from custody is not such a pardon. State v. Kirschner, 23 Mo. App. 349. It does not release from the obliga- tion to pay costs of the prosecution. In re Boyd, 34 Kan. 570, 9 Pac. 240; Smith v. State, 6 Lea, 637. [Upon invalidity of legislative pardon, see Singleton r. State, 38 Fla. 297, 21 So. 21, 34 L. R. A. 251, 50 Am. St. 177, and note thereto in L. II. A. Where hoard of pardons has only advisory power, the governor's par- doning power is in nowise infringed. Rich v. Chamberlain, 104 Mich. 436, 62 N. W. 584, 27 L. R. A. 573. Statute authorizing sentence of prisoner for an indefinite term not less than the minimum prescribed by law nor greater than tlie maximum with authority to the board of prison control to release on parol after expiration of minimum period amd to recommit upon violation of parol is void as infringing upon governor's pardoning power. People v. Cummings, 88 Mich. 249, 50 N. W. 310, 14 L. R. A. 285, and note. Sentence may be suspended after conviction, and such suspension may be withdrawn at any time. It does not encroach upon governor's power to grant pardons and reprieves. People v. Mon- roe Co. Ct., 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856.] 1 "In deciding this question [as to the authority of the governor], recurrence must be had to the constitution. That furnishes the only rule by which the court can be governed. That is the char- ter of the governor's authority. All the powers delegated to him hv or in accord- ance with that instrument, he is entitled to exercise, and no others. The constitu- tion is a limitation upon the powers of the legislative department of the govern- ment, but it is to be regarded as a grant of powers to the other departments. Neither the executive nor the judiciary, therefore, can exercise any authority or power except such as is clearly granted by the constitution." Field v. People, 8 111 79, 80. 2 Whether the legislature can consti- tutionally remit a fine, when the pardon- ing power is vested in the governor by the constitution, has been made a ques- tion ; and the cases of Haley v. Clarke, 26 Ala. 439, and People v. Bircham, 12 Cal. 60, are opposed to each other upon the point. If the fine is payable to the State, perhaps the legislature should be consid- ered as having the same right to dis- charge it that they would have to release any other debtor to the State from his obligation. In Indiana the Supreme Court cannot be invested with power to CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 161 would seem that this must depend generally upon the nature of the power, and upon the question whether the constitution, in conferring it, has furnished a sufficient rule for its exercise. Where complete power to pardon is conferred upon the execu- tive, it may be doubted if the legislature can impose restrictions under the name of rules or regulations ; but where the governor is made cornmander-in-chief of the military forces of the State, it is obvious that his authority must be exercised under such proper rules as the legislature may prescribe, because the mili- tary forces are themselves under the control of the legislature, and military law is prescribed by that department. There would be this clear limitation upon the power of the legislature grant reprieves. Butler v. State, 97 Ind. 373. The Secretary of the Treasury may remit penalties for breach of reve- nue laws. The Laura, 114 U. S. 411, 6 Sup. Ct. Rep. 881. In Michigan a judge cannot by suspending sentence indefi- nitely practically pardon a prisoner. People r. Brown, 54 Mich. 15, 19 N. W. 671. An act allowing a prisoner to go on parol, but in legal control of prison man- agers and subject to recall, is valid. State v. Peters, 43 Ohio St. 629. 4 N. E. 81. In Morgan v. Buffington, 21 Mo. 549, it was held that the State auditor was not obliged to accept as conclusive the certificate from the Speaker of the House as to the sum due a member of the House for attendance upon it, but that he might lawfully inquire whether the amount had been actually earned by attendance or not. The legislative rule, therefore, can- not go to the extent of compelling an ex- ecutive officer to do something else than his duty, under any pretence of regula- tion. The power to pardon offenders is vested by the several State constitutions in the governor. It is not, however, a power which necessarily inheres in the executive. State v. Dunning, 9 Ind. 20. And several of the State constitutions have provided that it shall be exercised under such regulations as shall be pre- scribed by law. There are provisions more or less broad to this purport in those of Kansas, Florida, Alabama, Arkansas, Texas, Mississippi, Oregon, Indiana,Iowa, and Virginia. In State v. Dunning, 9 Ind. 20, an act of the legislature requiring the applicant for the remission of a fine or for- feiture to forward to the governor, with his application, the opinion of certain county officers as to the propriety of the remission, was sustained as an act within the power conferred by the constitution upon the legislature to prescribe regula- tions in these cases. And see Branham v. Lange, 16 Ind. 497. The power to re- prieve is not included in the power to pardon. Ex parte Howard, 17 N. H. 545. Contra, Ex parte Fleming, 60 Miss. 910. It has been decided that to give parties who have been convicted and fined the benefit of the insolvent laws is not an exercise of the pardoning power. Ex parte Scott, 19 Ohio St. 581. And where the constitution provided that " In all criminal and penal cases, except those of treason and impeachment, [the gover- nor] shall have power to grant pardons after conviction, and remit fines and for- feitures," &c., it was held that this did not preclude the legislature from passing an act of pardon and amnesty for parties liable to prosecution, but not yet com- victed. State r. Nichols, 26 Ark. 74, 7 Am. Rep. 600. An act approved by the governor vacating a conviction op T- ates as a pardon. People v. Stewart, 1 Idaho, 546. Pardons may be made con- ditional, and forfeited if the condition is not observed. State v. Smith, 1 Bailey, 283; Lee v. Murphy, 22 Gratt. 789; Re lluhl, 6 Sawyer, 186; Kennedy's Case, 135 Mass. 48 ; Ex parte Marks, 64 Cal. 29, 28 Pac. 109. But a pardon obtained by fraud is held conclusive, though after- ward declared null by the governor. Knapp v. Thomas, 39 Ohio St. 377. A pardon does not relieve from forfeiture of bail bond. Dale r. Commonwealth, 101 Ky. 612, 42 S. W. 93, 38 L. R. A. 808.] 11 162 CONSTITUTIONAL LIMITATIONS. [CH. V. to prescribe rules for the executive department ; that they must not be such as, under pretence of regulation, divest the executive of, or preclude his exercising, any of his constitutional preroga- tives or powers. Those matters which the constitution specifi- cally confides to him the legislature cannot directly or indirectly take from his control. And on the other hand the legislature cannot confer upon him judicial authority; such as the authority to set aside the registration of voters in a municipality; 1 or clothe him with any authority, not executive in its nature, which the legislature itself, under the constitution, is restricted from exercising. 3 It may be proper to say here, that the executive, in the proper discharge of his duties under the constitution, is as independent of the courts as he is of the legislature. 3 1 State v. Staten, 6 Cold. 233. 2 Smith v. Norment, 5 Yerg 271. 8 It has been a disputed question whether the writ of mandamus will lie to compel the performance of executive duties. In the following cases the power has either been expressly affirmed, or it has been exercised without being ques- tioned. State v. Moffitt, 5 Ohio, 358; State v. Governor, 5 Ohio St. 529 ; Coltin v. Ellis,? Jones (N. C.), 545; Chamberlain v. Sibley, 4 Minn. 309; Magruder v. Gov- ernor, 25 Md. 173 ; Groome v. Gwinn, 43 Md. 572; Tennessee, c. R. R. Co. v. Moore, 36 Ala. 371; Middleton v. Lowe, 30 Cal. 596; Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 433; Chumasero v. Potts, 2 Mont. 244 ; Martin r. Ingham, 38 Kan. 641, 17 Pac. 162. See Hatch v. Stoneman, 66 Cal. 632, 6 Pac. 734. In the following cases the power has been denied : Hawkins v. Governor, 1 Ark. 570; Low v. Towns, 8 Ga. 360; State v. Kirk wood, 14 Iowa, 162; Dennett, Peti- tioner, 32 Me. 510; People v. Bissell, 19 111. 229; People v. Yates, 40 111. 126; People v. Cullom, 100 111. 472; State v. Governor, 25 N. J. 331 ; Mauran v. Smith, 8 U. I. 192; State v. Warmoth, 22 La. Ann. 1, 2 Am. Rep. 712 ; Same v. Same, 24 La. Ann. 351, 13 Am. Rep. 126; Peo- ple v. Governor, 29 Mich. 320, 18 Am. Rep. 89 ; State v. Governor, 39 Mo. 388 ; Vicks- burg & M. R. R. Co. v. Lowry, 61 Miss. 102; [Territorial Ins. Asylum v. Walfley, Ariz., 22 Pac. 383 (8 July, 1889), 8 L. R. A. 188; Bates v. Taylor, 3 Pick. (Tenn.) 319, 11 S. W. 266; People v. Morton, 156 N. Y. 136, 50 N. E. 791, 66 Am. St. 547. This last was a case where it was at- tempted to compel action of governor as member of board of trustees ex officio. See also State ex rel. v. Nash, 66 Ohio, 612, 64 N. E. 658.] Nor can he be en- joined from acting. Smith v. Myers, 109 Ind. 1; Bates v. Taylor, 87 Tenn. 319. See Lacy v. Martin, 39 Kan. 703, 18 Pac. 957 ; Kilpatrick v. Smith, 77 Va. 347. In Hartranft's Appeal, 85 Pa. St. 433, 27 Am. Rep. 667, it was decided that the governor was not subject to the sub- poena of the grand jury. In Minnesota it seems that officers of the executive department are exempt from judicial process even in the case of ministerial duties. Rice r. Austin, 19 Minn. 103; County Treasurer v. Dike, 20 Minn. 363 ; Western R. R, Co. v. De Graff, 27 Minn. 1, 6 N. W. 341 ; Stater. Whitcomb, 28 Minn. 60. FJSee also State v. Stone, 120 Mo. 428, 25 S. W. 376, 23 L. R. A. 194,41 Am. St. 705, and Frost v. Thomas, 26 Col. 222, 56 Pac. 899, 77 Am. St. 259. That court will not interfere with the exercise of discretion on the part of a railroad commission where such discre- tion is authorized by law, see Louisville & N. R. Co. v. Commonwealth, 104 Ky. 226, 46 S. W. 707, 47 S. W. 698, 48 S. W. 416, 43 L. R. A. 641, 649, 550. For effect of clause denying governor power to re- move officers for partisan reasons, see People v. Martin, 19 Col 565, 36 Pac. 543, 24 L. R. A. 201. In Maryland, the procla- mation of the governor that a proposed amendment to the Constitution has been CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 163 Delegating Legislative Powers. One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain ; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust. 1 duly adopted is not subject to review by any other officer or department. Worman v. Hagan, 78 Md. 152, 27 Atl. 616, 21 L. B. A. 716.] i " These are the bounds which the trust that is put in them by the society, and the law of God and nature, have set to the legislative power of every Commonwealth, in all forms of govern- ment : " First. They are to govern by pro- mulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the fa- vorite at court and the countryman at plough. " Secondly. These laws also ought to be designed for no other end ultimately but the good of the people. " Thirdly. They must not raise taxes on the property of the people without the consent of the people, given by them- selves or their deputies. And this prop- erly concerns only such governments where the legislative is always in being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves. "Fourthly. The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." Locke on Civil Government, 142. That legislative power cannot be del- egated, see Thome v. Cramer, 15 Barb. 112; Bradley v. Baxter, 15 Barb. 122; Barto v. Himrod, 8 N. Y. 483 ; People t;. Stout, 23 Barb. 349; Rice v. Foster, 4 Harr. 479; Santo v. State, 2 Iowa, 165; Geebrick v. State, 5 Iowa, 491 ; State v. Beneke, 9 Iowa, 203; State v. Weir, 33 Iowa, 134, 11 Am. Rep. 115; People v. Collins, 3 Mich. 343; Railroad Com- pany v. Commissioners of Clinton County, 1 Ohio St. 77 ; Parker v. Common- wealth, 6 Pa. St. 507 ; Commonwealth v. Me Williams, 11 Pa. St. 61 ; Maize v. State, 4 Ind. 342 ; Meshmeier v. State, 11 Ind. 482 ; State v. Parker, 26 Vt. 357 ; State v. Swisher, 17 Tex. 441 ; State v. Copeland, 3 R. I. 33 ; State v. Wilcox, 45 Mo. 458 ; Commonwealth v. Locke, 72 Pa. St. 491; Ex parte Wall, 48 Cal. 279; Willis v. Owen, 43 Tex. 41 ; Farns- worth Co. v. Lisbon, 62 Me 451 ; Brewer Brick Co. v. Brewer, 62 Me. 62 ; State v. Hudson Co. Com'rs, 37 N. J. 12; Auditor v. Holland, 14 Bush, 147 ; State v. Simons, 32 Minn. 640, 21 N. W. 750. ([Statutory delegation of power to incorporated medi- cal societies to appoint medical exam- iners to examine and pass upon the fitness of applicants for license to practise medi- cine is not invalid. Scholle r. State, 90 Md. 729, 46 Atl. 326, 50 L. R. A. 411. Power of classification of towns and cities cannot he delegated. Jernigan v. Madi- sonville, 102 Ky. 313, 43 S. W. 448, 39 L. R. A. 214. Nor power of taxation except as constitution expressly author- izes. State v. Des Moines, 103 Iowa, 76, 72 N. W. 639, 39 L. R. A. 285. But a court may be authorized to direct in what manner its writs shall be served and what notice shall be given. State v. Adams 164 CONSTITUTIONAL LIMITATIONS. [CH. V. But it is not always essential that a legislative act should be a completed statute which must in any event take effect as law, Express Co., 66 Minn. 271, 68 N. W. 1085, 38 L. It. A. 225. Board of health cannot be authorized to make general rules con- cerning compulsory vaccination. State v. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. R. A. 157, 60 Am. St. 123. The legislature cannot delegate to an official the final authority to determine what shall be done to make factories and workshops sanitary. Schaezlein v. Cab- nniss, 135 Cal. 466, 67 Pac. 755, 87 Am. St. 122 ; or the extent of a taking for waterworks. Stearns v. Barre, 73 Vt. 281, 50 Atl. 1086, 87 Am. St. 721. Stat- ute imposing a penalty upon any carrier charging more than a reasonable rate without prescribing any means of deter- mining what is such rate is void. Louis- ville & N. R. Co. v. Commonwealth, 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209, 59 Am. St. 457.] QCourt cannot be empowered to pass upon propriety of incorporation of lands into a village. Re Application of North* Milwaukee, 93 Wis. 616, 67 N. VV. 1033, 33 L. R. A. 638. Insurance commissioner cannot be empowered to determine the form of standard insurance contract for the State. Dowling v. Lancashire Ins. Co., 92 Wis. 63, 65 N. W. 738, 31 L. R. A. 112; Anderson v. Manchester Fire As. Co., 59 Minn. 182, 63 N. W. 241, 28 L. R. A. 609; O'Neil v. Amer- ican Fire Ins. Co., 166 Pa. 72, 30 Atl. 945, 26 L. R. A. 715, 45 Am. St. 650. A statute authorizing a particular officer to pass upon the question of character, to determine the granting of license is not a delegation of legislative power. Delega- tion of power to determine who are within the operation of the law is not a delega- tion of legislative power. State v. Thomp- son, 160 Mo. 333, 60 S. W. 1077, 83 Am. St. 468, 54 L. R. A. 950. So permitting city councils upon petition of specified portion of voters of respective cities to suspend certain penalties of a prohibitory liquor law is not a delegation of legisla- tive powers, nor is it an infringement of the pardoning power of the executive. State v. Forkner, 94 Iowa, 1, 62 N. W. 772, 28 L. R. A. 206. Statute may require railroad to construct cattle-guards when demand therefor is made by owners of lands through which railroad runs. Bir- mingham M. R. Co. v. Parsons, 100 Ala. 662, 13 So. 602, 27 L. R. A. 263, 46 Am. St. 92. Elective franchise cannot be conferred upon women upon condition that the statute be approved at a subse- quent election. Re Municipal Suffrage to Women, 160 Mass. 586, 36 N. E. 488, 23 L. R. A. 113, and note hereto on power to make a statute contingent on popular approval. Law authorizing release from imprisonment for drunkenness upon entry of recognizance that convict will take the "Jag Cure," and final discharge upon exhibition of certificate of attendance and compliance with rules of the institution ia void. Senate of Happy Home Club c. Alpena Co., 99 Mich. 117, 57 N. W. 1101, 23 L. R. A. 144. Where the legislature is directed to regulate the salaries of county clerks in proportion to duties performed, and a statute fixes their salaries, the legislature cannot authorize county boards to allow the clerks deputies. Dougherty v. Austin, 94 Cal. 601, 28 Pac. 834, 29 Pac. 1092, 16 L. R. A. 161, and note on delegation of legislative powers. Municipality cannot be author- ized to modify the jurisdiction of courts. Vesta Mills v. Charleston, 60 S. C. 1, 38 S. E. 226. Right of initiative and refer- endum cannot be conferred on people of a municipality in respect even of munic- ipal affairs. Elliott v. Detroit, 121 Mich. 611, 84 N. W. 820.] QFor other cases denying right to del- egate legislative power, see Bradshaw r. Lankford, 73 Md. 428, 21 Atl. 66, 11 L. R. A. 682, 25 Am. St. 602; Owensboro & N. R. Co. v. Todd, 91 Ky. 175, 15 S. W. 56, 11 L. R. A. 285; Arms . Ayer, 192 111. 601, 61 N. E. 851, 85 Am. St. 357, where it is said, quoting from Dowling v. Lancashire Ins. Co., 92 Wis. 63, 65 N. W. 738 : " A law must be complete in all its terms and provisions when it leaves the legislative branch of the government, and nothing must be left to the judgment of the electors or other appointee or delegate of the legislature, so that in form and substance it is a law in all its details in prcesenti, but which may be left to take effect in futuro, if necessary, upon the ascertainment of any prescribed fact or CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 165 at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event. 1 Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. A private act of incorporation cannot be forced upon the corpora- tors; they may refuse the franchise if they so choose. 2 In these cases the legislative act is regarded as complete when it has passed through the constitutional formalities necessary to per- fected legislation, notwithstanding its actually going into opera- tion as law may depend upon its subsequent acceptance. We have elsewhere spoken of municipal corporations, and of the powers of legislation which may be and commonly are bestowed upon them, and the bestowal of which is not to be considered as trenching upon the maxim that legislative power must not be delegated, since that maxim is to be understood in the light of the immemorial practice of this country and of England, which has always recognized the propriety and policy of vesting in the municipal organizations certain powers of local regulation, in respect to which the parties immediately interested may fairly be supposed more competent to judge of their needs than any central authority. As municipal organizations are mere auxil- iaries of the State government in the important business of event." The legislature cannot delegate tion upon petition of a majority of the the power to fix penalties to a Board of inhabitants of the territory to be incor- Harbor Commissioners. Board of Har- porated. Terr. v. Stewart, 1 Wash. 98, bor Commissioners v. Excelsior Redwood 23 Pac. 405, 8 L. R. A. 10(1] It is com- Co., 88 Cal. 491, 26 Pac. 375-3 petent to make an act take effect on con- 1 Brig Aurora v. United States, 7 dition that those applying for it shall Cranch, 382 ; Bull v. Read, 13 Gratt. 78; erect a station at a place named. State State v. Parker, 2(3 Vt. 357 ; Peck v. Wed- v. New Haven, &c. Co., 43 Conn. 351. dell, 17 Ohio St. 271 ; State v. Kirkley, 29 Railroad Commissioners may be empow- Md. 85; Walton . Greenwood, 60 Me. ered to fix rates. Georgia R. R., &c. Go. 356; Baltimore v. Clunet, 23 Md. 449. v. Smith, 70 Ga. 694. A commission It is not a delegation of legislative power may be empowered to select a site for to make the repeal of a charter depend a public building. People v. Dunn, 80 upon the failure of the corporation to Cal. 211, 22 Pac. 140; Terr. v. Scott, 3 make up a deficiency which is to be Dak. 357, 20 N. W. 401. An act taxing ascertained and determined by a tribunal corporations of another State doing busi- provided by the repealing act. Lothrop ness within the State as its corporations v. Stedman, 42 Conn. 583. See Crease are taxed in such other State is not an v. Babcock, 23 Pick. 334, 344. Nor to abandonment of legislative functions, refer the question of extending munic- The law is complete ; its operation, con- ipal boundaries to a court where issues tingent. Home Ins. Co. v. Swigert, 104 may be formed and disputed facts tried. III. 653 ; Phrenix Ins. Co. v. Welch, 29 Burlington v. Leebrick, 43 Iowa, 252; Kan. 672. Contra, Clark v. Mobile, 67 Wahoo v. Dickinson, 23 Neb. 426, 36 Ala. 217. N. W. 813. rjBut a court cannot be au- 2 Angell and Ames on Corp. 81. thorized to create a municipal corpora- 166 CONSTITUTIONAL LIMITATIONS. [CH. V. municipal rule, the legislature may create them at will from its own views of propriety or necessity, and without consulting the parties interested; and it also possesses the like power to abolish them, without stopping to inquire what may be the desire of the corporators on that subject. 1 Nevertheless, as the corporators have a special and peculiar interest in the terms and conditions of the charter, in the powers conferred and liabilities imposed, as well as in the general question whether they shall originally be or afterwards remain incorporated at all or not, and as the burdens of municipal government must rest upon their shoulders, and especially as by becoming incorporated they are held, in law, to undertake to discharge the duties the charter imposes, it seems eminently proper that their voice should be heard on the question of their incorporation, and that. their decisions should be conclusive, unless, for strong reasons of State policy or local necessity, it should seem important for the State to overrule the opinion of the local majority. The right to refer any legislation of this character to the people peculiarly interested does not seem to be questioned, and the reference is by no means unusual. 2 monwealth v. Painter, 10 Pa. St. 214; Call v. Chadbourne, 46 Me. 206 ; State v. Scott, 17 Mo. 521 ; State r. Wileox, 45 .Mo. 458; Hobart v. Supervisors, &c., 17 Cal. 23; Bank of Chenango v. Brown, 26 N. Y. 467 ; Steward v. Jefferson, 3 Harr. 335; Burgess v. Pue, 2 Gill, 11; Lafay- ette, &c. R. R. Co. v. Geiger, 34 Ind. 185 ; Clarke v. Rogers, 81 Ky. 43. As the question need not be submitted at all, the legislature may submit it to the free- holders alone. People v. Butte, 4 Mont. 174, 1 Pac. 414. The right to refer to the people of several municipalities the question of their consolidation was dis- puted in Smith v. McCarthy, 56 Pa. St. 359, but sustained by the court. And see Smyth v. Titcomb, 31 Me. 272 ; Erlinger v. Boneau, 51 111. 94 ; Lammert v. Lid- well, 62 Mo. 188 ; State v. Wileox, 45 Mo. 458 ; Brunswick v. Finney, 54 Ga. 317 ; Response to House Resolution, 55 Mo. 295; People v. Fleming, 10 Col. 553, 16 Pac. 298 ; Graham v. Greenville, 67 Tex. 62, 2 S. W. 742. FJSuch reference is now permitted in Minnesota. Hopkins v. Duluth, 81 Minn. 189, 83 N. W. 536. For a consideration of various questions arising in regard to such a reference, see State v. Denny, 4 Wash. 135, 29 Pac. 991, 16 L. R. A. 214-3 1 City of Paterson v. Society, &c., 24 N. J. 385; Cheany v. Hooser, 9 B. Monr. 330; Berlin v. Gorham, 34 N. H. 266; State v. Holden, 19 Neb. 249. 27 N. W. 120 ; Attorney-General v. Weimer, 59 Mich. 580, 26 N. W. 773. The question of a levee tax may lawfully be referred to the voters of the district of territory over which it is proposed to spread the tax, regardless of municipal divisions. Alcorn v. Hamer, 38 Miss. 652. Power to grant an exclusive franchise in aid of navigation may be delegated to a vil- lage : Farnum v. Johnson, 62 Wis. 620, 22 N. W. 751 ; power to determine the penalty to be imposed for infraction of a State law may not : Montross v. State, 61 Miss. 429 ; nor power to increase its rep- resentation on a county board, when the constitution ordains that the legislature shall determine such representation. Peo- ple v. Riordan, 73 Mich. 508, 41 N. W. 482. And see, in general, Angell and Ames on Corp. 31 and note ; also post, pp. 264-266. 2 Bull v. Read, 13 Gratt. 78; Corning v. Greene, 23 Barb. 33 ; Morford v. Unger, 8 Iowa, 82 ; City of Paterson v. Society, &c.,24 N. J.385; Gorham v. Springfield, 21 Me. 58; Commonwealth v. Judges of Quarter Sessions, 8 Pa. St. 391; Com- CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 167 For the like reasons the question whether a county or town- ship shall be divided and a new one formed, 1 or two townships or school districts formerly one be reunited, 2 or a city charter be revised, 3 or a county seat located at a particular place, or after its location removed elsewhere, 4 or the municipality contract particular debts, or engage in a particular improvement, 5 is 1 State v. Reynolds, 10 111. 1. See State v. McNiell, 24 Wis. 149. Response to House Resolution, 55 Mo. 205. For other cases on the same general subject, see People v. Nally, 49 Cal. 478; Pike County v. Barnes, 51 Miss. 305; Bruns- wick v. Finney, 54 Ga. 317. The ques- tion whether a general school law shall be accepted in a particular municipality may be referred to its voters. State v. Wilcox, 45 Mo. 458. The operation of an act creating a municipal court may be made dependent on the approval of the municipal voters. Rutter . Sullivan, 25 W. Va. 427. A city may be empowered to decide by vote whether it will take control of the public schools in it. Wer- ner v. Galveston, 72 Tex. 22, 7 S. W. 726. 2 Commonwealth v. Judges, &e., 8 Pa. St. 391 ; Call v. Chadbourne, 46 Me. 206; People v. Nally, 49 Cal. 478; Erlinger v. Boneau, 51 111. 94. 8 Brunswick v. Finney, 54 Ga. 317. 4 Commonwealth v. Painter, 10 Pa. St. 214; Clarke v. Jack, 60 Ala. 271. See People v. Salomon, 51 111. 37 ; Slinger v. Henneman, 38 Wis. 504 ; Hall v. Marshall, 80 Ky. 552 ; post, pp. 172-174. 5 There are many cases in which mu- nicipal subscriptions to works of internal improvement, under statutes empower- ing them to be made, have been sus- tained ; among others, Goddin v. Crump, 8 Leigh, 120 ; Bridgeport v. Housatonic Railroad Co., 15 Conn. 475 ; Starin v. Genoa, 29 Barb. 442, and 23 N. Y. 439 ; Bank of Rome v. Village of Rome, 18 N. Y. 38 ; Prettyman v. Supervisors, &c., 19 111. 406 ; Robertson v. Rockford, 21 111. 451 ; Johnson v. Stack, 24 111. 75 ; Bush- nell v. Beloit, 10 Wis. 195 ; Clark v. Janes- ville, 10 Wis. 136; Stein v. Mobile, 24 Ala. 591 ; Mayor of Wetumpka v. Win- ter, 29 Ala. 651 ; Pattison v. Yuba, 13 Cal. 175; Blanding v. Burr, 13 Cal. 343; Hobart v. Supervisors, &c., 17 Cal. 23; Taylor v. Newberne, 2 Jones Eq. 141 ; Caldwell v. Justices of Burke, 4 Jones Eq. 323 ; Louisville, &c. Railroad Co. v. Davidson, 1 Sneed, 637 ; Nichol v. Mayor of Nashville, 9 Humph. 252 ; Railroad Co. v. Commissioners of Clinton Co., 1 Ohio St. 77 : Trustees of Paris v. Cherry, 8 Ohio St. 564 ; Cass v. Dillon, 2 Ohio St. 607 ; State v. Commissioners of Clinton Co., 6 Ohio St. 280 ; State v. Van Home, 7 Ohio St. 327 ; State v. Trustees of Union, 8 Ohio St. 394; Trustees, &c. v. Shoe- maker, 12 Ohio St. 624; State v. Com- missioners of Hancock, 12 Ohio St. 596 ; Powers v. Dougherty Co., 23 Ga 65; San Antonio v. Jones, 28 Tex. 19; Common- wealth v. McWilliams, 11 Pa. St. 61 ; Sliarpless v. Mayor, &c., 21 Pa. St. 147; Moers v. Reading, 21 Pa. St. 188; Talhot v. Dent, 9 B. Monr. 526; Slack v. Rail- road Co., 13 B. Monr. 1 ; City of St. Louis v. Alexander, 23 Mo. 483 ; City of Aurora v. West, 9 Ind. 74; Cotton v. Commis- sioners of Leon, 6 Fla. 610; Copes v. Charleston, 10 Rich. 491 ; Commissioners of Knox Count}' v. Aspinwall, 21 How. 639, and 24 How. 326; Same v. Wallace, 21 How. 547; Zabriskie v. Railroad Co., 23 How. 381; Amey v. Mayor, &c., 24 How. 364; Gelpcke v. Dubuque, 1 Wall. 175; Thomson v. Lee County, 3 Wall. 327 ; Rogers v. Burlington. 3 Wall. 654 ; Gibbons v. Mobile & Great Northern Rail- road Co., 36 Ala. 410; St. Joseph, &c., Railroad Co. r. Buchanan Co. Court, 39 Mo. 485 ; State v. Linn Co. Court, 44 Mo. 504 ; Stewart v. Supervisors of Polk Co., 30 Iowa, 9 ; John v. C. R. & F. W. R. R. Co., 35 Ind. 539 ; Leavenworth County r. Miller, 7 Kan. 479; Walkers. Cincinnati, 21 Ohio St. 14 ; Ex parte Selma, &c. R. R. Co., 45 Ala. 696 ; S. & V. R. R. Co. v. Stockton, 41 Cal. 149. In several of them the power to authorize the municipalities to decide upon such subscriptions has been contested as a delegation of legisla- tive authority, but the courts even those which hold the subscriptions void on other grounds do not look upon these cases as being obnoxious to the constitutional principle referred to in tl.e 168 CONSTITUTIONAL LIMITATIONS. [CH. V. always a question which may with propriety be referred to the voters of the municipality for decision. 1 The question then arises, whether that which may be done in reference to any municipal organization within the State may not also be done in reference to the State at large. May not any law framed for the State at large be made conditional on an acceptance by the people at large, declared through the ballot- box? If it is not unconstitutional to delegate to a single locality the power to decide whether it will be governed by a particular charter, must it not quite as clearly be within the power of the legislature to refer to the people at large, from whom all power is derived, the decision upon any proposed statute affecting the whole State? And can that be called a delegation of power which consists only in the agent or trustee referring back to the principal the final decision in a case where the principal is the party concerned, and where perhaps there are questions of policy and propriety involved which no authority can decide so satis- factorily and so conclusively as the principal to whom they are referred? If the decision of these questions is to depend upon the weight of judicial authority up to the present time, it must be held that there is no power to refer the adoption or rejection of a general law to the people of the State, any more than there is to refer it to any other authority. The prevailing doctrine in the courts appears to be, that, except in those cases where, by the consti- tution, the people have expressly reserved to themselves a power of decision, the function of legislation cannot be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration. "The exercise of this power by the people in other cases is not expressly and in terms prohibited by the constitution, but it is forbidden by necessary text. In any event the power must be the exception of those cases in which exercised strictly in accordance with the the constitution of the State requires conditions attached to the legislative per- local matters to be regulated by local mission. Barnum v. Okolona, 148 U. S. authority. {[County commissioners may 393, 13 Sup. Ct. Rep. 638.] be authorized to provide additional jus- 1 Whatever powers the legislature tices of the peace for any precinct may delegate to any public agency for above 20,000 inhabitants if "the needs exercise, it may itself resume and exer- of the precinct . . . require." Pueblo cise. Dyer v. Tuscaloosa Bridge Co., Co. Com'rs v. Smith, 22 Col. 534, 45 2 Port. 296, 27 Am. Dec. 655 ; Attorney- Pac. 357, 33 L. R. A. 465. Where local General v. Marr, 55 Mich. 445, 21 N. W. matters are required to be submitted to 883; Chicago & N. W. Ry. Co. v. Lan- popular vote, if two or more proposi- glade Co., 56 Wis. 614, 14 N. W. 844; tions are submitted at one election, they QBrand v. Multnomah Co., 38 Oreg. 79, must be so submitted that they may be 60 Pac. 390, 50 L. R. A. 389, 84 Am St. voted on separately. Denver v. Hayes, 772J But this must be understood with 28 Col. 110, 63 Pac. 311.] CH. Y.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 169 and unavoidable implication. The Senate and Assembly are the only bodies of men clothed with the power of general legislation. They possess the entire power, with the exception above stated. The people reserved no part of it to themselves [with that excep- tion], and can therefore exercise it in no other case." It is therefore held that the legislature have no power to submit a proposed law to the people, nor have the people power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the constitution. The government of the State is democratic, but it is a representative democracy, and in passing general laws the people act only through their representatives in the legislature. 1 Nor, it seems, can such legislation be sustained as legislation of a conditional character, whose force is to depend upon the happening of some future event, or upon some future change of circumstances, "The event or change of circumstances on which a law may be made to take effect must be such as, in the judgment of the legislature, affects the question of the expedi- ency of the law ; an event on which the expediency of the law in the opinion of the law-makers depends. On this question of expediency the legislature must exercise its own judgment defi- nitely and finally. When a law is made to take effect upon the happening of such an event, the legislature in effect declare the law inexpedient if the event should not happen, but expedient if it should happen. They appeal to no other man or men to judge for them in relation to its present or future expediency. They exercise that power themselves, and then perform the duty which the Constitution imposes upon them." But it was held that in the case of the submission of a proposed free-school law to the 1 Per Ruggles, Ch. J., in Barto v. Him- cases has fulfilled precisely those functions rod, 8 N. Y. 483. It is worthy of consid- which the people as a democracy could eration, however, whether there is any- not fulfil ; and where the case has reached thing in the reference of a statute to the a stage when the body of the people can people for acceptance or rejection which act without confusion, the representative is inconsistent with the representative has stepped aside to allow their opinion to system of government. To refer it to the he expressed. The legislature is not at- people to frame and agree upon a statute tempting in such a case to delegate its for themselves would be equally imprac- authority to a new agency, but the trus- ticable and inconsistent with the repre- tee, vested with a large discrettonary sentative system ; but to take the opinion authority, is taking the opinion of the of the people upon a bill already framed principal upon the necessity, policy, or by representatives and submitted to them, propriety of an act which is to govern the is not only practicable, but is in precise principal himself. See Smith v. Janes- accordance with the mode in which the ville, 26 Wis. 291 ; Fell v. State, 42 Md. 71, constitution of the State is adopted, and 20 Am. Rep. 83 ; King v. Reed, 43 N. J. with the action which is taken in many 186. other cases. The representative in these ]70 CONSTITUTIONAL LIMITATIONS. [CH. V. people, no such event or change of circumstances affecting the expediency of the law was expected to happen. The wisdom or expediency of the School Act, abstractly considered, did not depend on the vote of the people. If it was unwise or inexpe- dient before that vote was taken, it was equally so afterwards. The event on which the act was to take effect was nothing else than the vote of the people on the identical question which the constitution makes it the duty of the legislature itself to decide. The legislature has no power to make a statute dependent on such a contingency, because it would be confiding to others that legislative discretion which they are bound to exercise them- selves, and which they cannot delegate or commit to any other man or men to be exercised. 1 1 Per Rttggles, Ch. J., in Barto v. Him* roil, 8 N. Y. 483. And see State v. Hayes, 61 N. H. 264 ; Sauto v. State, 2 Iowa, 165 ; State v. Bencke, 9 Iowa, 203 ; State v. S wisher, 17 Tex. 441 ; State v. Field, 17 Mo. 529; Bank of Chenango v. Brown, 26 N. Y. 467 ; People v. Stout, 23 Barb- 349; State v. Wilcox, 45 Mo. 458; Ex parte Wall, 48 Cal. 279, 313; Brown v. Fleiscliner, 4 Greg 132. The power to tax cannot be delegated except as by the Con- stitution is permitted. Where the Con- stitution provided that the General As- sembly shall have power to authorize the several counties and incorporated towns to impose taxes tor county and corpora- tion purposes respectively, it was held not competent to delegate the power to a school board. Waterhouse v. Public Schools, 9 Bax. 398. But upon this point there is great force in what is said by Redfield, Ch. J., in State v. Parker, 26 Vt. 357 : " If the operation of a law may fairly be made to depend upon a future contingency, then, in my apprehension, it makes no essential difference what is the nature of the contingency, so it be an equal and fair one, a moral and legal one, not opposed to sound policy, and so far connected with the object and purpose of the statute as not to be a mere idle and arbitrary one. And to us the contingency, upon which the present statute was to be suspended until another legislature should meet and have opportunity of reconsider- ing it, was not only proper and legal, and just and moral, but highly commendable and creditable to the legislature who passed the statute ; for at the very thresh- old of inquiry into the expediency of such a law lies the other and more im- portant inquiry, Are the people prepared for such a law ? Can it be successfully enforced ? These questions being an- swered in the affirmative, he must be a bold man who would even vote against the law ; and something more must he be who would, after it had been passed with that assurance, be willing to embarrass its operation or rejoice at its defeat. " After a full examination of the ar- guments by which it is attempted to be sustained that statutes made dependent upon such contingencies are not valid laws, and a good deal of study and reflec- tion, I must declare that I am fully con- vinced although at first, without much examination, somewhat inclined to the same opinion that the opinion is there- suit of false analogies, and so founded upon a latent fallacy. It seems to me that the distinction attempted between the contingency of a popular vote and other future contingencies is without all just foundation in sound policy or sound reasoning, and that it lias too often been made more from necessity than choice, rather to escape from an overwhelming analogy than from any obvious difference in principle in the two classes of cases ; for . . . one may find any number of cases in the legislation of Congress, where statutes have been made dependent upon the shifting character of the revenue laws, or the navigation laws, or commercial rules, edicts, or restrictions of otiier coun- tries. In some, perhaps, these laws are made by representative bodies, or, it may be, by the people of these States, and in others by the lords of the treasury, or the CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 171 The same reasons which preclude the original enactment of a law from being referred to the people would render it equally incompetent to refer to their decision the question whether an existing law should be repealed. If the one is " a plain sur- render to the people of the law-making power," so also is the other. 1 It would seem, however, that if a legislative act is, by its terms, to take effect in any contingency, it is not unconsti- tutional to make the time when it shall take effect depend upon boards of trade, or by the proclamation of the sovereign ; and in all these cases no question can be made of the perfect legality of our acts of Congress being made dependent upon such contingencies. It is, in fact, the only possible mode of meet- ing them,' unless Congress is kept con- stantly in session. The same is true of acts of Congress by which power is vested in the President to levy troops or draw money from the public treasury, upon the con- tingency of a declaration or an act of war committed by some foreign state, empire, kingdom, prince, or potentate. If these illustrations are not sufficient to show the fallacy of the argument, more would not avail." See also State v. Noyes, 10 Fost. 279; Bull v. Read, 13 Gratt. 78; Johnson v. Rich, 9 Barb. 680; State v. Reynolds, 10 111. 1 ; Robinson v. Bidwell, 22 Cal. 379. In the case of Smith c. Janesville, 26 VVis. 291, Chief Justice Dixon discusses this subject in the following language: " But it is said that the act is void, or at least so much of it as pertains to the tax- ation of shares in national banks, because it was submitted to a vote of the people, or provided that it should take effect only after approval by a majority of the elec- tors voting on the subject at the next general election. This was no more than providing that the act should take ef- fect on the happening of a certain future contingency, that contingency being a popular vote in its favor. No one doubts the general power of the legislature to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws. They may be ab- solute, or conditional and contingent ; and if the latter, they may take effect on the happening of any event which is future and uncertain. Instances of this kind of legislation are not unfrequent. The law of Congress suspending the writ of habeas corpus during the late rebellion is one, and several others are referred to in the case In re Richard Oliver, 17 Wis. 681. It being conceded that the legislature pos- sesses this general power, the only ques- tion here would seem to be, whether a vote of the people in favor of a law is to be excluded from the number of those future contingent events upon which it may be provided that it shall take effect. A similar question was before this court in a late case (State ex rel. Attorney-Gen- eral v. O'Neill, Mayor, &c., 24 Wis. 149), and was very elaborately discussed. We came unanimously to the conclusion in that case that a provision for a vote of the electors of the city of Milwaukee in favor of an act of the legislature, before it should take effect, was a lawful contin- gency, and that the act was valid. That was a law affecting the people of Mil- waukee particularly, while this was one affecting the people of the whole State. There the law was submitted to the voters of that city, and here it was sub- mitted to those of the State at large. What is the difference between the two cases ! It is manifest, on principle, that there cannot be any. The whole reason- ing of that case goes to show that this act must be valid, and so it has been held in the best-considered cases, as will be seen by reference to that opinion. We are constrained to hold, therefore, that this act is and was in all respects valid from the time it took effect, in November, 1866 ; and consequently that there was no want of authority for the levy and collection of the taxes in question." This decision, though opposed to many others, appears to us entirely sound and reason- able. 1 Geebrick v. State, 5 Iowa, 491 ; Rice v. Foster, 4 Harr. 479; Parker v. Com- monwealth, 6 Pa. St. 507 The case in 5 Iowa was followed in State v. Weir, 33 Iowa, 134, 11 Am. Rep. 115. 172 CONSTITUTIONAL LIMITATIONS. [CH. V. the event of a popular vote being for or against it, the time of its going into operation being postponed to a later da) 7 in the latter contingency. 1 It would also seem that if the question of the acceptance or rejection of a municipal charter can be referred to the voters of the locality specially interested, it would be equally competent to refer to them the question whether a State law establishing a particular police regulation should be of force in such locality or not. Municipal charters refer most questions of local government, including police regulations, to the local authorities ; on the supposition that they are better able to decide for themselves upon the needs, as well as the sentiments, of their constituents, than the legislature possibly can be, and are therefore more competent to judge what local regulations are important, and also how far the local sentiment will assist in their enforcement. The same reasons would apply in favor of permitting the people of the locality to accept or reject for themselves a particular police regulation, since this is only allowing them less extensive powers of local government than a municipal charter would confer ; and the fact that the rule of law on that subject might be different in different localities, according as the people accepted or rejected the regulation, would not seem to affect the principle, when the same result is brought about by the different regulations which municipal corporations establish for themselves in the exercise of an undisputed authority. 2 It is not to be denied, however, that 1 State v. Parker, 26 Vt. 357. The it should be adopted in town meeting, act under consideration in that case was, In State i\ Noyes, 10 Fost. 279, this act by its terms, to take effect on the second was held to be constitutional. " Assum- Tuesday of March after its passage, un- ing," say the court, " that the legislature less the people to whose votes it was sub- has the right to confer the power of local mitted should declare against it, in which regulation upon cities and towns, that is, case it should take effect in the following the power to pass ordinances and by-laws, December. The case was distinguished in such terms and with such provisions, from Barto r. Himrod, 8 N. Y. 483, and in the classes of cases to which the power the act sustained. At the same time the extends, as they may think proper, it court express their dissent from the rea- seems to us hardly possible seriously to soning upon which the New York case contend that the legislature may not rests. In People v. Collins, 3 Mich. 343, confer the power to adopt within such the court was equally divided in a case municipality a law drawn up and framed similar to that in Vermont, except that by themselves. If they may pass a law in the Michigan case the law which was authorizing towns to make ordinances to passed and submitted to the people in punish the keeping of billiard-rooms, 1853 was not to go into effect until 1870, bowling-alleys, and other places of gam- if the vote of the people was against it. bling, they may surely pass laws to punish 2 In New Hampshire an act was the same acts, subject to be adopted by passed declaring bowling-alleys, situate the town before they can be of force within twenty-five rods of a dwelling- in it." And it seems to us difficult to house, nuisances, but the statute was to answer this reasoning, if it be confined be in force only in those towns in which to such laws as fall within the proper CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 173 there is considerable authority against the right of legislative delegation in these cases. The legislature of Delaware, in 1847, passed an act to author- ize the citizens of the several counties of the State to decide by ballot whether the license to retail intoxicating liquors should be permitted. By this act a general election was to be held; and if a majority of votes in any county should be cast against license, it should not thereafter be lawful for any person to retail intoxicating liquors within such county; but if the majority should be cast in favor of license, then licenses might be granted in the county so voting, in the manner and under the regulations in said act prescribed. The Court of Errors and Appeals of that State held this act void, as an attempted delegation of the trust to make laws, and upon the same reasons which support the cases before cited, where acts have been held void which referred to the people of the State for approval a law of general application. 1 A like decision was made near the same time by the Supreme Court of Pennsylvania, 2 followed afterwards by others in Iowa, 3 Indiana, 4 and California. 5 But the decision in Pennsylvania was afterwards overruled on full discussion and consideration, 6 and that in Indiana must, as we think, be deemed overruled also. 7 In other States a like delegation of authority to the local electors has generally been sustained. Such laws are known, in province of local government, and which of officers. Johnson v. Martin, 75 Tex. are therefore usually referred to the 33, 12 S. W. 321. See, further, People judgment of the municipal authorities v. Salomon, 51 111. 37 ; Burgess v. Pue, or their constituency. A similar question 2 Gill, 11; Hammond v. Haines, 25 Md. arose in Smith v. Village of Adrian, 1 541. Mich. 495, but was not decided. In 1 Rice v. Foster, 4 Hair. 479. Bank of Chenango v. Brown, 26 N. Y. 2 Parker v. Commonwealth, 6 Pa. St. 467, it was held competent to authorize 507. See Commonwealth >. Me Williams, the electors of an incorporated village to 11 Pa. St. 61. determine for themselves what sections 8 Geebrick v. State, 5 Iowa. 491. See of the general act for the incorporation of State v. Weir, 33 Iowa, 134, 11 Am. villages should apply to their village. Rep. 115. An act empowering a city, where the * Maize v. State, 4 Ind. 342 ; Mesh- le^.-il voters authorize it, to allow Sunday meier v. State, 11 Ind. 482. See also State sales of refreshments, is valid. State v. v. Field, 17 Mo. 529; Lammert v. Lidwell, Francis, 95 Mo. 44, 8 S. W. 1. The oper- 62 Mo. 188 ; State v. Copeland, 3 R. I. 33. ation of a park act may be left to the vote 5 Ex parte Wall, 48 Cal. 279, 17 Am. of a city. State v. District Court, 33 Rep. 425. Minn. 235, 22 N. W. 625. So, of a law 6 Locke's Appeal, 72 Pa. St. 491, 13 vesting control of streets in aldermen Am. Rep. 716. instead of street commissioners. State 7 Groesch v. State, 42 Ind. 547. QA v. Hoagland, 61 N. J. L. 62, 16 Atl. majority of voters in a ward or township 166. So, of a law creating a new county, may be allowed by formal remonstrance People v. McFadden, 81 Cal. 489, 22 Pac. to prevent the issuance of license to a 851. Whether an election to determine particular applicant for the sale of liquors upon putting a law in operation shall therein. State v. Gerhardt, 145 Ind. 439, be called, may be left to the discretion 44 N. E. 469, 33 L. R. A. 313-3 174 CONSTITUTIONAL LIMITATIONS. [CH. V. common parlance, as Local Option Laws. They relate to sub- jects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary power of the municipalities to make by-laws and ordinances, is nevertheless within the class of police regulations, in respect to which it is proper that the local judgment should control. 1 Irrepealable Laws. Similar reasons to those which forbid the legislative depart- ment of the State from delegating its authority will also forbid its passing any irrepealable law. The constitution, in confer- ring the legislative authority, has prescribed to its exercise any limitations which the people saw fit to impose ; and no other power than the people can superadd other limitations. To say that the legislature may pass irrepealable laws, is to say that it may alter the very constitution from which it derives its author- ity ; since, in so far as one legislature could bind a subsequent one by its enactments, it could in the same degree reduce the legislative power of its successors ; and the process might be repeated, until, one by one, the subjects of legislation would be excluded altogether from their control, and the constitutional provision that the legislative power shall be vested in two houses would be to a greater or less degree rendered ineffectual. 2 1 Commonwealth v, Bennett, 108 Mass, dale, 82 Mich. 893, 47 N. W. 37, 10 L. R. 27; Commonwealth v. Dean, 110 Mass. A. 69.] Local option, as applied to the 357 ; Commonwealth v. Fredericks, 119 sale of liquors, has also been sustained Mass. 199 ; Bancroft v. Dumas, 21 Vt. in Canada. Mayor, &c. v. The Queen, 450; Slinger v. Hennemnn, 38 Wis. 504; 3 Can. Sup. Ct. 505. But the matter Erlinger v. Boneau, 51 111. 94 ; Gunnars- cannot be left to an election precinct. It sohn v. Sterling, 92 111. 669; State v. must be submitted to a municipal corpora- Morris County, 36 N. J. 72, 13 Am. Rep. tion. Thornton v. Territory, 3 Wash. 422 ; State v. Circuit Court, 15 Atl. 274 Ter. 482, 17 Pac. 896. (N. J.) ; State v. Wilcox, 42 Conn. 864, a "Unlike the decision of a court, a 19 Am. Rep. 536; Fell v. State, 42 Md. legislative act does not bind a subsequent 71, 20 Am. Rep. 83; State v. Cooke, legislature. Each body possesses the same 24 Minn. 247, 31 Am. Rep. 344 ; Cain v. power, and has the right to exercise the Commissioners, 86 N. C. 8; Boyd v. Bry- same discretion. Measures, though often ant, 35 Ark. 69, 37 Am. Rep. 6; Savage rejected, may receive legislative sanction. v. Com., 84 Va. 619, 5 S. E. 565; Cald- There is no mode by which a legislative well v. Barrett, 73 Ga. 604 ; Ex parte act can he made irrepealable, except it Kennedy, 23 Tex. App. 77, 3 S. W. 114; assume the form and substance of a con- Schulherr v. Bordeaux. 64 Miss. 59, 8 tract. If in any line of legislation a per- So. 201 ; State v. Pond, 93 Mo. 606. 6 manent character could be given to acts, S. W. 469 ; Terr. v. O'Connor, 5 Dak. the most injurious consequences would 397, 41 N. W. 746 ; [Teek v. Blooming, result to the country. Its policy would CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 175 "Acts of Parliament," says Blackstone, "derogatory from the power of subsequent Parliaments, bind not; so the statute 11 Henry VII. c. 1, which directs that no person for assisting a king de facto shall be attainted of treason by act of Parliament or otherwise, is held to be good only as to common prosecution for high treason, but it will not restrain nor clog any parlia- mentary attainder. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority; it acknowledges no superior upon earth, which the prior legis- lature must have been if its ordinances could bind a subsequent Parliament. And upon the same principle, Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses which endeavor to tie up the hands of succeeding legis- latures. ' When you repeal the law itself,' says he, 'you at the same time repeal the prohibitory clause which guards against such repeal. ' " l Although this reasoning does not in all its particulars apply to the American legislatures, the principle applicable in each case is the same. There is a modification of the principle, however, by an important provision of the Constitution of the United States, forbidding the States passing any laws impairing the obligation of contracts. Legislative acts are sometimes in substance contracts between the State and the party who is to derive some right under them, and they are not the less under the protection of the clause quoted because of having assumed this form. Charters of incorporation, except those of a munic- ipal character, and which, as we have already seen, create mere agencies of government, are held to be contracts between the State and the corporators, and not subject to modification or change by the act of the State alone, except as may be authorized by the terms of the charters themselves. 2 And it now seems to be settled, by the decisions of the Supreme Court of the United States, that a State, by contract to that effect, based upon a consideration, may exempt the property of an individual or corporation from taxation for any specified period, or even become fixed and unchangeable on great Oskins, 28 Ind. 364 ; Oleson v. Green Bay, national interests, which might retard, if &c. R. R. Co., 36 Wis. 383. In Kellogg not destroy, the public prosperity. Every v. Oshkosh, 14 Wis. 6*23, it was held that legislative body, unless restricted by the one legislature could not bind a future constitution, may modify or abolish the one to a particular mode of appeal, acts of its predecessors ; whether it would 1 1 Bl. Com. 90. be wise to do so is a matter for legislative * Dartmouth College v. Woodward, 4 discretion " Bloomer i>. Stolley, 5 Me- Wheat. 618 ; Planters' Bank v. Sharp, 6 Lean, 168. See this subject considered How. 301. in Wall v. State, 23 Ind. 160, and State v. 176 CONSTITUTIONAL LIMITATIONS. [CH. V. permanently. And it is also settled by the same decisions, that where a charter, containing an exemption from taxes, or an agreement that the taxes shall be to a specified amount only, is accepted by the corporators, the exemption is presumed to be upon sufficient consideration, and consequently binding upon the State. 1 Territorial Limitation to State Legislative Authority. The legislative authority of every State must spend its force within the territorial limits of the State. The legislature of one State cannot make laws by which people outside the State must govern their actions, except as they may have occasion to resort to the remedies which the State provides, or to deal with property situated within the State. It can have no authority upon the high seas beyond State lines, because there is the point of con- 1 Gordon v. Appeal Tax Court, 3 How. 133 ; New Jersey v. Wilson, 7 Cranch, 164 ; Piqua Branch Bank v. Knoop, 16 How. 369 ; Ohio Life Ins. and Trust Co. v. Debolt, 16 How. 416, 432; Dodge v. Woolsey, 18 How. 331 ; Mechanics' and Traders' Bank v. Debolt, 18 How. 381 ; Jefferson Branch Bank i>. Skelly, 1 Black, 436 ; Erie R. R. Co. v. Pennsylvania, 21 Wall. 492. See also Hunsaker v. Wright, 30 111. 140; Morgan v. Cree, 46 Vt. 773; Spooner r. McConnell, 1 McLean, 347 ; post, p. 395. The right of a State legisla- ture to grant away the right of taxation, which is one of the essential attributes of sovereignty, has been strenuously denied. See Debolt v. Ohio Life Ins. and Trust Co., 1 Ohio St. 563; Mechanics' and Traders' Bank v. Debolt, 1 Ohio St. 591 ; Brewster r. Hough, 10 N. H. 188; Mott v. Pennsylvania Railroad Co., 30 Pa. St. 9. And see Thorpe v. Rutland and B. Rail- road Co., 27 Vt. 140; post, p. 395 and note. In Brick Presbyterian Church v. Mayor, &c. of New York, 6 Cow. 638, it was held that a municipal corporation had no power, as a party, to make a con- tract which should control or embarrass its discharge of legislative duties. And see post, p. 295. In Coats v. Mayor, &c. of New York, 7 Cow. 685. it was decided that though a municipal corporation grant lands for cemetery purposes, and cove- nant for their quiet enjoyment, it will not thereby be estopped afterwards to forbid by by-law the use of the land for that purpose, when such use becomes or is likely to become a nuisance. In Stone v. Mississippi, 101 U. S. 814, 820, Chief Justice Waite says : " The power of gov- erning is a trust committed by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies for the preservation of tl'e public health and the public morals, and the protection of public and private rights. These several agencies can gov- ern 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 after them, in respect to mat- ters the government of which, from the very nature of things, must vary with varying circumstances." See also, on the same subject, Morgan v. Smith, 4 Minn. 104 ; Kincaid's Appeal, 66 Pa. St. 411 ; 6 Am. Rep. 377; Hamrick v. Rousv, 17 Ga. 66, where it was held that the legislature could not bind its successors not to remove a county seat. Bass i: Fontleroy, 11 Tex. 698; Shaw v. Macon, 21 Ga. 280 ; Regents of University v. Wil- liams, 9 G. & J. 365; Mott v Pennsylva- nia Railroad Co., 30 Pa. St. 9. In Bank of Republic v. Hamilton, 21 111. 53, it was held that, in construing a statute, it will not be intended that the legislature de- signed to abandon its right as to taxation. This subject is considered further, post, pp. 395-401. CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 177 tact with other nations, and all international questions belong to the national government. 1 It cannot provide for the punish- ment as crimes of acts committed beyond the State boundary, because such acts, if offences at all, must be offences against the sovereignty within whose limits they have been done. 2 But if the consequences of an unlawful act committed outside the State have reached their ultimate and injurious result within it, it seems that the perpetrator may be punished as an offender against such State. 3 1 1 Bish. Cr. Law, 120. 2 State v. Knight, 2 Hayw. 109; Peo- ple r. Merrill, 2 Park. Cr. R. 590 ; Adams v. People, 1 N. Y. 173 ; Tyler v. People, 8 Mich. 320; Morrissey v. People, 11 Mich. 327 ; Bromley v. People, 7 Mich. 472; State r. Main, 16 Wis. 398; Wat- son's Case, 86 Miss. 593 ; In re Carr, 28 Kan. 1. See In re Rosdeitscher, 33 Fed. Rep. 657. [The territorial jurisdiction of a State bordering upon the high seas ex- tends one marine league from shore and is subject over that space only to the federal power over navigation. State has full control of the fisheries therein. Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. Rep. 559.] The Consti- tution of the United States empowers Congress to exercise exclusive jurisdic- tion over places purchased by consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. When the United States acquire lands without such con- sent, the State jurisdiction is as complete as if the lands were owned by private citizens. But the State, in giving con- sent, may reserve the right to serve State process within the territory : State v. Dimick, 12 N. H. 194; Commonwealth v. Clary, 8 Mass. 72; United States v. Cornell, 2 Mass. 60; Opinion of Judges, 1 Met. 580 ; or to tax railroads in it : Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. Rep. 995; and its railroad fencing statutes remain in force. Chica- go, R. I., &c. Co. v. McGlinn, 114 U. S. 542, 5 Sup. Ct. Rep. 1005. Offences within the purchased territory can only be punished by the United States : United States v. Ames, 1 Wood. & M. 76 ; Mitch- ell v. Tibbetts, 17 Pick. 298 ; even though death ensues out of the territory : Kelly v. United States, 27 Fed. Rep. 616 ; State v. Kelly, 76 Me. 331 ; and residents within such territory are not citizens of the State. Commonwealth v. Clary, 8 Mass. 72; Sinks v. Roese, 19 Ohio St. 306. As to jurisdiction over military camps within a State, for military pur- poses, see United States v. Tierney, 1 Bond, 571 ; and as to crimes on Indian reservations, United States v. Kngama, 118 U. S. 375, 6 Sup. Ct. Rep. 110!) ; Ex parte Cross, 20 Neb. 417, 30 N. W. 428 ; Marion v. State, id. 233, 20 N. W. 911. 8 Tyler v. People, 8 Mich. 320. Mur- der is committed in the District of Co- lumbia if the fatal blow is struck there, though the death occurs elsewhere. United States v. Guiteau, 1 Mackey, 498. See Hatfield v. Com., 12 S. W. 309 (Ky.). That where a larceny is committed in one State and the property carried by the thief into another, this may be treated as a continuous larceny wherever the property is taken, see Commonwealth v. Cullins, 1 Mass. 116; Commonwealth v. Andrews, 2 Mass. 14, 3 Am. Dec. 17; Commonwealth v. Holder, 9 Gray, 7; Commonwealth v. White, 123 Mass. 430; State v. Ellis, 3 Conn. 185, 8 Am. Dec. 175; State v. Cummings, 33 Conn. 260; State v. Bartlett, 11 Vt. 650; State v. Bennett, 14 Iowa, 479; People v. Wil- liams, 24 Mich. 156; State v. Main, 16 Wis. 398; Hamilton v. State, 11 Ohio, 435; State v. Seay, 3 Stew. 123, 20 Am. Dec. 66; State v. Johnson, 2 Oreg. 115; Myers v. People, 26 111. 173; Watson v. State, 36 Miss. 593 ; State v. Under- wood, 49 Me. 181 ; Ferrell v. Common- wealth, 1 Duv. 153; Regina v. Hennessy, 35 Up. Can. R. 603. Contra, State v. Brown, 1 Hayw. 100, 1 Am. Dec. 548; People v. Gardner, 2 Johns. 477; Sim- mons v. Commonwealth, 5 Binn. 617; Simpson v. State, 4 Humph. 456; Beal v. State, 15 Ind. 378 ; State v. LeBlanch, 31 12 178 CONSTITUTIONAL LIMITATIONS. [OIL V. Upon the principle of comity, however, which is a part of the law of nations, recognized as such by every civilized people, effect is given in one State or country to the laws of another in a great variety of ways, especially upon questions of contract rights to property, and rights of action connected with and dependent upon such foreign laws; without which commercial and business intercourse between the people of different States and countries could scarcely exist. 1 In the making of contracts, the local law enters into and forms a part of the obligation; and if the contract is valid in the State where it is made, (a) any other State will give remedies for its enforcement, unless, according to the standard of such latter State, it is bad for immorality, or is opposed in its provisions to some accepted principle of public policy, or unless its enforcement would be prejudicial to the State or its people. 2 So, though a corporation created by or under the laws of one State has, in strictness, no extra-territorial life or authority, and cannot of right insist upon extending its operations within the limits of another, yet this N. J. 82; and where the larceny took ond by an agreement for an incestuous place in a foreign country: Stanley v. marriage. Another illustration under the State, 24 Ohio St. 166, 15 Am. Rep. 604; first head is, where enforcing the foreign Commonwealth v. Uprichard, 3 Gray, contract would deprive a home creditor 434. of a lien. Ingraham v. Geyer, 13 Mass. 1 Thompson v. Waters, 25 Mich. 214, 146. Compare Oliver 'v. Steiglitz, 27 225; Bank of Augusta v. Earle, 13 Pet. Ohio St. 355, 22 Am. Rep. 312; Arayo 619. v. Currell, 1 La. 528, 20 Am. Dec. 2S6. 2 Runyon v. Coster's Lessee, 14 Pet. If a sale of goods is valid where made 122; Merrick r. Van Santvoord, 34 N. Y. though it would not be where the buyer 208; Saul v. His Creditors, 5 Mart. N. 8. lives and where it is sought to be en- 569, 16 Am. Dec. 212; Greenwood v. forced, it will be upheld in the latter Curtis, 6 Mass. 258, 4 Am. Dec. 145. State, unless the seller participates in the In tliis last case, Parsons, Ch. J., says reselling there: Feineman v. Sachs, 33 the rule that foreign contracts will be Kan. 621 ; Parsons Oil Co. v. Boyett, 44 enforced in our own courts is subject Ark. 230; not if the order was unlaw- to two exceptions. One is when the fully solicited in the buyer's State. Jones Commonwealth or its citizens may be in- v. Surprise, 64 N. H. 243. Gambling con- jured by giving legal effect to the con- tracts as to stocks valid in New York will tract by a judgment in our courts; and not be enforced in New Jersey. Flagg v. the other is, when the giving of legal ef- Baldwin, 38 N. J. Eq. 219. But a con- feet to the contract would exhibit to the tract limiting a carrier's liability, valid in citizens of the State an example perni- New York where, made, will be enforced ciotis and detestable. The first he illus- in Pennsylvania, though invalid if made tnues by a contract for an importation there. Forepaugh v. Del. L. & W. R. R. forbidden by the local law, and the sec- Co., 128 Pa. St. 217, 18 Atl. 503. (a) The contract is made in the State in which the offer is accepted. Holder v. Aultman, Miller & Co., 169 U. S. 81, 18 Sup. Ct. Rep. 269, aff. 68, Fed. Rep. 467. Upon validity of contracts made by foreign corporations which have not complied with statutory conditions prescribed as precedent to their right to do business in the State, see Edison Gen. Electric Co. v. Canadian Pac. Nav. Co., 8 Wash. 370, 36 Pac. 260, 24 L. R. A. 315 and note, 40 Am. St. 910J CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 179 will be suffered without objection where no local policy for- bids ; (a) and the corporation may make contracts, and acquire, (a) A State may prescribe conditions upon which a foreign corporation may do business within its borders, and for breach of such conditions may exclude the cor- poration, except where it is doing business of a federal nature. Waters-Pierce Oil Co. t>.'Texas, 177 U. S. 28, 20 Sup. Ct. Rep. 618, aff. 19 Tex. Civ. App. 1, 44 S. W. 930. Upon admission or exclusion of foreign corporations, see Cone Export and Commission Co. v. Poole, 41 S. C. 70, 19 S. E. 203, 24 L. R. A. 289 and note; exclu- sion of foreign corporation as regulation of interstate commerce, note to 24 L. R. A. 311; exclusion, regulation, and taxation of foreign corporations, note to 24 C. C. A. 13; regulation of business of a foreign corporation by State, Boulware v. Davis, 90 Ala. 207, 8 So. 84, 9 L. R. A. 601 and note; and that foreign corporations are amenable to local law, see Talbot v. Fidelity, &c. Co., 74 Md. 536, 22 Atl. 396, 13 L. R. A. 684. A foreign life insurance company which enters a State and does business therein is bound to observe the laws of that State, and its contracts thus made will be interpreted according to the laws of that State even though the parties expressly stipulate that the contract shall be interpreted according to the laws of another State. N. Y. Life Ins. Co. v. Cravens, 178 U. S. 389, 20 Sup. Ct. Rep. 962, aff. 148 Mo. 583, 50 S. W. 519, 71 Am. St. 628. A State has power to prescribe the conditions under which a foreign insurance corporation may do business within its borders, and to provide and enforce penalties for breach of those conditions. Noble v. Mitchell, 164 U. S. 367, 17 Sup. Ct. Rep. 110. And the State may penalize any act done within its borders looking toward the formation of contract relations with a foreign corpo- ration which it has forbidden to do business within its borders. Hooper v. California, 155 U. S. 648, 15 Sup. Ct. Rep. 207 ; but it cannot prevent the doing within its bor- ders by its citizens of acts otherwise lawful which are reasonably necessary to the enjoyment of contracts which such citizens have made without its borders, even though they be made with foreign corporations which the State has forbidden to do business within its borders. Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. Rep. 427. And a requirement that before doing business within the State the foreign cor- poration shall surrender a right which it derives from the Constitution and laws of the United States is void. Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. Rep. 44. If State taxes its own corporations upon their entire capital, the foreign corporation doing business in the State cannot object to being taxed upon its entire capital, even though it uses only a very small fraction of its capital within the State. Horn Silver Mining Co. v. New York, 143 U. S. 305, 12 Sup. Ct. Rep. 403, aff. 105 N. Y. 76, UN. E. 155. A foreign corporation does business in a particular State not by right but by comity, and its license to do so may be revoked at pleasure. State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 413, 87 Am. St. 449. A railroad corporation whose road lies entirely within one State, but is a link in a through route traversing several States, over which through route interstate commerce is carried on, is engaged in interstate commerce, and no State can exact of it a license before permitting it to open an office within the borders of the State, in which office it transacts only busi- ness relating to its interstate commerce. McCall c. California, 136 U. S. 104, 10 Sup. Ct. Rep. 881; Norfolk & W. R. Co. v. Pennsylvania, 136 U. S. 114, 10 Sup. Ct. Rep. 958. For note upon exclusion of foreign corporations as an interference witli inter- state commerce, see 24 L. R. A. 311. License for current year may be revoked for refusal to pay unpaid license fees for previous years. Travelers' Ins. Co. v. Fricke, 99 Wis. 367, 74 N. W. 372, 78 N. W. 407, 41 L. R. A. 657. The exclusion of a foreign corporation cannot operate to prevent the performance of contracts lawfully entered into before the order of exclusion was passed, nor impair the right to enforce the obligations arising through such performance. Bedford v. E. B'ld'g & Loan Ass'n, 181 U. S. 227, 21 Sup. Ct. Rep. 597. Upon right to sue in foreign Siate, see Cone E. & C. Co. v. Poole, 41 S. C. 70, 19 S. E. 203, 24 L. R. A. 289, and note therein on recognition or exclusion of foreign corporations. On power of a State to prevent foreign corporations operating within its borders from violating its 180 CONSTITUTIONAL LIMITATIONS. [CH. V. hold, and convey property as it would have a right to do in the State of its origin. 1 Real estate, however, it can only take, hold, and transmit in accordance with the rules prescribed by 1 Silver Lake Bank v. North, 4 Jolins. Oh. 370 ; Jessup v. Carnegie, 80 N. Y. 441 ; Lumbard v. Aldrich, 8 N. H. 31 ; Lothrop v. Commercial Bank, 8 Dana, 114; Na- tional Trust Co. v. Murpliy, 30 N. J. Eq. 408 ; Elston v. Piggott, 94 Ind. 14 ; People v. Howard, 50 Mich. 239; Christian Union v. Yount, 101 U. S. 352. Taking an order in one State for the delivery of goods in another is not such a doing of business as to require compliance with a statute for filing certificate, &c., before transacting of business by a foreign corporation. Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. Rep. 739. FJUpon what is doing business within a State, and under what circumstances an agent doing busi- ness within the State may be served with process against the corporation, see Con- necticut Life Ins. Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. Rep. 308, aff. 99 Tenn. 322, 42 S. W. 145. Where corpora- tion is foreign and does no business in the State, nor has any agent or property therein, service of summons upon the president temporarily within the State is ineffective to give jurisdiction to a federal circuit court sitting therein, and appear- ance specially and solely for purpose of petitioning for removal of cause to an- other federal court does not waive the objection to insufficiency of summons and service. Goldey v. Morning News, 156 U. S. 518, 15 Sup. (ft. Rep. 559. Foreign corporation doing business within a State thereby subjects itself to the local regula- tions concerning suits against non-resi- dents. N. Y., L. E. & W. R. Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. Rep. 444. And to local tax laws, Horn Silver Mining Co. v. New York, 143 U. S. 305, 12 Sup. Ct. Hep. 403. But after the corporation has completely withdrawn from the State and no longer does any business there, it is not subject to state process. Mutual R. F. Life Assn. v. Boyer, 62 Kan. 31, 61 Pac. 387, 50 L. R. A. 538. Discounting a note sent from another State is not doing busi- ness in the State from which the note is sent. Bamberger & Co. v. Schoolfield, 160 U. S. 149, 16 Sup. Ct. Rep. 225. Nor is filling an order for coal, order being sent from another State, a doing of business in that other State. Delaware & H. Canal Co. v. Mahlenbrock, 63 N. J. L. 281, 43 Atl. 978, 45 L. R. A. 538. Being interested as silent partner in a limited partnership in the State is doing business within it. People r. Roberts, 152 N. Y. 59, 46 N. E. 161, 36 L. R. A. 756. But prosecuting a suit is not. St. Louis, A. & T. R. Co. v. Fire Assn. of Phila., 60 Ark. 325, 30 S. W. 350, 28 L. R. A. 83. Nor is taking a single mortgage for past-due indebtedness for goods sold at its domicil. Florsheim, &c. Co. v. Lester, 60 Ark. 120, 29 S. W. 34, 27 L. R. A. 505, 46 Am. St. 162. Where the foreign corporation has no office or agency within the State, its sale of machinery to a resident and its subsequent coming into the State and erecting the machinery is only interstate commerce and not a doing business within the State which the State can control. Milan M. & M. Co. v. Gorton, 93 Tenn. 590, 27 S. W. 971. 26 L. R. A. 135.] But a State may by penalties enforce compliance with its laws by a foreign corporation. Moses v. State, 65 Miss. 56. Powers not allowed to such corporation in the State where created, it will not be suf- fered to exercise elsewhere. Starkweather v. Bible Society, 72 111. 50, 22 Am. Rep. 133; Kerr v. Dougherty, 79 N. Y. 327; Thompson v. Waters, 25 Mich. 214. exemption laws by garnishment proceedings in other States, see Singer M'fg Co. . Fleming, 39 Neb. 679, 58 N. W. 226, 23 L. R. A. 210, 42 Am. St. 613. An action to exclude a foreign corporation from the State is a civil action, and the defendant corporation may be compelled to give evidence against itself. State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 413. For other cases upon foreign corporations, see Southern B. & L. Ass'n v. Norman, 98 Ky. 294, 32 S. W. 952, 31 L. R. A. 41, 56 Am. St. 367; Kindel r. Beck & P. Lith. Co., 19 Col. 310, 35 Pac. 538, 24 L. R. A. 311; Gunn v. White S M. Co., 57 Ark. 24, 20 S. W. 591, 18 L. R. A. 206, 38 Am. St. 223; State v. Phipps, 50 Kan. 609, 31 Pac. 1097, 18 L. R. A. 657, 34 Am. St. 152-3 CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 181 the law of the State in which the estate is situate; 1 and the principle of comity is never so far extended as to give force and effect to the penal laws of one political society within the terri- tory of another, even though both belong to one political system. 2 The question whether a statute giving a right of action for a death occurring within a State can be enforced in another State has given rise to much discussion. In several States it is held that the remedy is purely local, and that the action can only be brought in the State where the killing takes place. But in sev- eral the rule is that an action will lie in another State, if the statutes of the latter are substantially like those of the State where the death is caused. 3 Other Limitations of Legislative Authority. Besides the limitations of legislative authority to which we have referred, others exist which do not seem to call for special remark. Some of these are prescribed by constitutions, 4 but 1 A rule which applies even to the government itself. United States v. Fox, 94 U. S. 315. See State v. Scott, 22 Neb. 628, 36 N. W. 121. Only a State can raise the question whether a foreign corporation can right- fully acquire land for its business pur- poses. Barnes v. Suddard, 117 111. 237, 7 N. E. 477. Failure of such corporation to comply with statutory conditions prec- edent to doing business does not avoid a conveyance to it so that a private per- son can attack it collaterally. Fritts r. Palmer, 132 U. S. 382, 10 Sup. Ct. Rep. 93. Compare Koening v. Chicago, B. & Q. R. R. Co., 27 Neb. 699, 43 N. W. 423. 2 Dickson v. Dickson, 1 Yerg. 110, 24 Am. Dec. 444; Scoville v. Canfield, 14 Johns. 338, 7 Am. Dec. 467; First Na- tional Bank v. Price, 33 Md. 487, 3 Am. Rep. 204 ; Lindsey v. Hill, 66 Me. 212, 22 Am. Rep. 564. The federal courts will not enforce at the suit of a State its penal laws against a foreign corporation. Wis- consin v. Pelican Ins. Co., 127 U. S 2(55. 8 See Taylor v. Penn. Co., 78 Ky. 348 ; Debevoise v. New York, L. E. & W. R. U. Co., 98 N. Y. 377 ; St. Louis, I. M. &c. Co. v. McCormick, 71 Tex. 660, 9 S. W. Rep. 540 ; Dennick v. Railroad Co., 103 U. S. 11, and cases collected in Cooley on Torts, pp. 311-313. * The restrictions upon State legisla- tive authority are much more extensive in some constitutions than in others. The Constitution of Missouri of 1865 had the following provision : " The General As- sembly shall not pass special laws divorc- ing any named parties, or declaring any named person of age, or authorizing any named minor to sell, lease, or encumber his or her property, or providing for the sale of the real estate of any named minor or other person laboring under legal disability, by any executor, admin- istrator, guardian, trustee, or other per- son, or establishing,'* locating, altering the course, or affecting the construction of roads, or the building or repairing of bridges, or establishing, altering, or vacat- ing any street, avenue, or alley in any city or town, or extending the time for the assessment or collection of taxes, or other- wise relieving any assessor or collector of taxes from the due performance of his official duties, or giving effect to in- formal or invalid wills or deeds, or legal- izing, except as against the State, the un- authorized or invalid acts of any officer, or granting to any individual or company the right to lay down railroad tracks in the streets of any city or town, or ex- empting any property of any named per- son or corporation from taxation. The General Assembly shall pass no special law for any case for which provision can 182 CONSTITUTIONAL LIMITATIONS. [CH. V. others spring from the very nature of free government. The V>o mada Viv a ironpral law. hilt shall nass fit. 23 L. Ti. A. fi2n.~l Wherp flip Ip.crisla- be made by a general law, but shall pass general laws providing, so far as it may deem necessary, for the cases enumerated in this section, and for all other cases where a general law can be made appli- cable." Art. 4, 27. We should suppose that so stringent a provision would, in some of these cases, lead to the passage of general laws of doubtful utility in or- der to remedy the hardships of particular cases ; but the constitution adopted in 1875 is still more restrictive. Aft. 4, 53. As to when a general law can be made applicable, see Thomas v. Board of Com- missioners, 5 Ind. 4 ; State v. Squires, 26 Iowa, 340; Johnson v. Railroad Co., 23 III. 202. In State v. Hitchcock, 1 Kan. 178, it was held that the constitutional provision, that " in all cases where a gen- eral law can be made applicable, no spe- cial law shall be enacted," left a discretion with the legislature to determine the cases in which special laws should be passed. See, to the same effect, Marks v. Trustees of Purdue University, 37 Ind. 155 ; State t;. Tucker, 46 Ind. 355, overruling Thomas v. Board of Commissioners, supra ; John- son v. Com'rs Wells Co., 107 Ind. 15 ; State v. County Court of Boone, 50 Mo. 317, 11 Am. Rep. 415; State v. Robbins, 51 Mo. 82; Hall v. Bray, 51 Mo. 288; St. Louis v. Shields, 62 Mo. 247 ; Carpen- ter v. People, 8 Col. 116, 5 Pac. 825; Richman v. Supervisors, 77 Iowa, 513, 42 N. W. Rep. 422; Davis v. Gaines, 48 Ark. 370. Compare Hess t;. Pegg, 7 Nev. 23 ; Darling v. Rogers, 7 Kan. 592 ; Ex parte Pritz, 9 Iowa, 30 ; QBank of Com- merce v. Wiltsie, 153 Ind. 460, 53 N. E. 950, 55 N. E. 224, 47 L. R. A. 489 ; State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 56(5, and note ; Richman v. Mus- catine County, 77 Iowa, 513, 42 N. W. 422, 4 L. R. A. 445, 14 Am. St. 308 ; People v. Levee Dist. No. 6, 131 Cal. 30, 63 Pac. 342. But see Silberman v. Hay, 59 Ohio St. 582, 53 N. E. 258, 44 L. R. A. 264, holding that right of trial by jury is gen- eral, and that a law relating thereto and expressly made applicable to a single county is void. Gambling cannot be made a crime everywhere except " within the limits or enclosure of a regular race- course." State v. Walsh, 136 Mo. 400, 37 S. W. 1112, 35 L. R. A. 231 ; see also State v. Elizabeth, 66 N. J. L. 71, 28 Atl. 61, 23 L. R. A. 525.] Where the legisla- ture is forbidden to pass special or local laws regulating county or township busi- ness, a special act allowing and ordering payment of a particular claim is void, even though the claim, being merely an equitable one, cannot be audited by any existing board. Williams v. Bidleman, 7 Nev. 68. See Darling v. Rogers, 7 Kan. 592; [[Dean v. Spartanburg County, 59 S. C. 110, 37 S. E. 226; Uffert r. Vogt, 65 N. J. App. 377, 621, 47 Atl. 225, 48 Atl. 674; Black v. Gloucester City, N. J. L. , 48 Atl. 1112 (April 29, 1901). Special tax liens cannot be provided for certain towns only. Burnet v. Dean, 60 N. J. Eq. 9, 46 Atl. 532.] Such a pro- vision does not prevent a special act to locate a county seat. State v. Sumter Co., 19 Fla. 618. [But one arbitrarily classifying counties is special. Edmunds v. Herbrandson, 2 N. 1). 270, 50 N. W. 970, 14 L. R. A. 725. So is one changing ward boundaries in a single city. State v. Newark, 53 N. J. L. 4, 20 Atl. 886, 10 L. R. A. 700.] A statute is not special because it is not universal in operation by reason of earlier special laws not af- fected by the constitutional provision. Evans v. Phillipi, 117 Pa. St. 226, 11 Atl. 630. ("And a law which gives to any city having a special charter the option to adopt the provisions of a general act is not special. Adams v. Beloit, 105 Wis. 363, 81 N. W. 869, 47 L. R. A. 441.] An act creating a criminal court for a partic- ular county is not in conflict with the constitutional prohibition of special legis- lation. Eitel v. State, 33 Ind. 201. See Matter of Boyle, 9 Wis. 264. Nor one al- lowing recovery from railroad of $5,000 in case of death. Carroll v. Missouri P. Ry. Co., 88 Mo. 239. fjBut one provid- ing for interchange of judges in a single county is. Ashbrook j. Scliaub, 160 Mo. 87, 60 S. W. 1085 ] A Sunday law mak- ing it a misdemeanor for a baker to en- gage in the business of baking on Sunday is a special law, and unconstitutional in California. Ex parte Westerfield, 55 Cal. 550, 36 Am. Rep. 47. Where special acts conferring corporate powers are prohib- ited, the State cannot specially authorize a school district to issue bonds to erect a school-house. School District v. Insur- ance Co., 103 U. S. 707. CSee, for an- CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 183 latter must depend for their enforcement upon legislative wis- suhject, see further, Bourland v. Hil- dreth, 26 Cal. 161 ; Brooks v. Hyde, 37 Cal. 866; McAunich v. Mississippi, &c. R. R. Co., 20 Iowa, 338; Rice v. State, 3 Kan. 141 ; Jackson v. Shaw, 29 Cal. 267 ; Gentile r. State, 29 Ind. 409; State v. Parkinson, 5 Nev. 15; Ensworth i>. Albin, 46 Mo. 450 ; People r. Wallace, 70 111. 680 ; State v. Camden Common Pleas, 41 N. J. 495; O'Kane v. Treat, 25 111. 557; Com- monwealth v. Patton, 88 Pa. St. 258; Cox v. State, 8 Tex. App. 254 ; State v. Mona- han, 69 Mo. 556; State v. Clark, 23 Minn. 422 ; Speight v. People, 87 111. 595; QMor- ris v. Stout, 110 Iowa, 659, 78 N. W. 843, 50 L. R. A. 97; Re Henneberger, 155 N. Y. 420, 50 N. E. 61, 42 L. R. A. 132; West Chicago Park Com'rs v. McMul- len, 134 111. 170, 25 N. E. 676, 10 L. R, A. 215; Lodi Twp. v. State, 51 N. J. L. 402, 18 Atl. 749, 6 L. R. A. 56 ; State v. Som- ers' Point, 52 N. J. L. 32, 18 Atl. 694, 6 L. R. A. 57 ; Terr. v. School Dist, 10 Okla. 556, 64 Pac. 241 ; State v. Thomas, 25 Mont. 226, 64 Pac. 503; Lougher v. Soto, 129 Cal. 610, 62 Pac. 184; Fox v. Mohawk & H. R. H. Society, 165 N. Y. 517, 59 N. E. 353. Where the legislation shows the legislative intent to be the substitution of isolation for classification, it is invalid. State v. Jones, 66 Ohio, 453, 64 N. E. 424 ; State ?;. Beacom, 66 Ohio, 491, 64 N. E. 427. See also upon the general question, Com. v. Moir, 199 Pa. 534, 49 Atl. 351, 85 Am. St. 801.] Qlnsane persons having no dependents nor persons who could take from them under the law of succession may have their expenses while in the asylum charged upon their estates, while the expenses of other insane persons in the same asylum are paid out of the public funds. Bon Homme Co. v. Berndt, 13 S. D. 309, 83 N. W. 333, 50 L. R. A. 351. Where the Constitution provides that "corporations other than banking shall not be created by special act," the extension of an old special charter of such other corporation is equally pro- hibited. Bank of Commerce v. Wiltsie, 153 Ind. 460, 53 N. E. 950, 55 N. E. 224, 47 L. R. A. 489. And where the grant of any special privileges, immunities, or franchises whatever is prohibited, certain named societies cannot be empowered to appoint designated State officers, e.g. other example, Grey v. Newark Plank- Road Co., 65 N. J. L. 51, 608, 46 Atl. 606, 48 Atl. 557-3 The provision does not forbid legalizing bonds of a city void from want of power to issue them : Read v. Plattsmouth, 107 U. S. 568, 2 Sup. Ct. Rep. 208 ; nor in Tennessee does it cover municipal corporations : State v. Wilson, 12 Lea, 246; QBurnett v. Maloney, 97 Tenn. 697, 37 S. W. 689, 34 L. R. A. 541 ;3 nor in Wisconsin a commission cre- ated under the police power to establish drains. State v. Stewart, 74 Wis. 620, 43 N. W. 947 ; Qipplies to counties in Ne- vada: Schweiss v. First Judicial Pistr. Ct., 23 Nev. 226, 45 Pac. 289, 34 L. R. A. 602.] A constitutional provision that requires all laws of a general nature to have uniform operation throughout the State is complied with in a statute appli- cable to all cities of a certain class hav- ing less than one hundred thousand in- habitants, though in fact there be but one city in the State of that class. Wel- ker v. Potter, 18 Ohio St. 85 ; Wheeler v. Philadelphia, 77 Pa. St. 338; Kilgore v. Magee, 85 Pa. St. 401. Contra, Divine v. Commissioners, 84 111. 690. And see Desmond v. Dunn, 55 Cal. 24 ; Earle v. Board of Education, 55 Cal. 489; Van Riper v. Parsons, 40 N. J. 123, 29 Am. Rep. 210; State v. Trenton, 42 N. J. 486; State v. Hammer, 42 N. J. 435; Worthley v. Steen, 43 N. J. L. 542; Bum- sted v. Govern, 47 N. J. L. 3(58, 1 Atl. 835; Van Giesen v. Bloomfield, id. 442, 2 Atl. 249; Hightstown v. Glenn, id. 105; New Brunswick i: Fitzgerald, 48 N. J. L. 457, 8 Atl. 729; State v. Hoagland, 51 N. J. L. 62, 16 Atl. 166; McCarthy v. Com., 110 Pa. St. 243, 2 Atl. 423; App. of Scranton Sch. Dist., 113 Pa. St. 176, 6 Atl. 158 ; Wilkes-Barre v. Meyers, id. 395 ; Reading v. Savage, 124 Pa. St. 328, 16 Atl. 788; Ex parte Falk, 42 Ohio St. 638; State v. Pugh, 43 Ohio St. 98, 1 N. E. 439; State v. Hawkins, 44 Ohio St. 98, 5 N. E. 225 ; State v. Anderson, id. 247, 6 N. E. 671 ; Ewing . Hoblitzelle, 85 Mo. 64; Kelly v. Meeks, 87 Mo. 396; State v. Co. Court, 89 Mo. 237, 1 S. W. 307 ; State v. Pond, 93 Mo. 606, 6 S. W. 469; State v. Donovan, 20 Nev. 75, 15 Pac. 783 ; Darrow v. People, 8 Col. 417, 8 Pac. 661 ; People v. Henshaw, 76 Cal. 436, 18 Pac. 413. And on the general 184 CONSTITUTIONAL LIMITATIONS. [CH. V. dom, discretion, and conscience. 1 The legislature is to make laws for the public good, and not for the benefit of individuals. It has control of the public moneys, and should provide for dis- bursing them only for public purposes. Taxes should only be levied for those purposes which properly constitute a public burden. But what is for the public good, and what are public purposes, and what does properly constitute a public burden, are questions which the legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion which cannot be controlled by the courts, except, perhaps, where its action is clearly evasive, and where, under pretence of a lawful authority, it has assumed to exercise one that is unlawful. Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the constitution imposes; not those implied restrictions which, resting in theory only, the people have been members of a State board of inspectors of the business of licensed commission merchants. Lasher v. People, 183 III. 226, 55 N. E. 663, 47 L. R. A. 802, 75 Am. St. 103. Nor can the number of deputies for certain county officers be prescribed for some counties and left to the dis- cretion of the county court in others. Weaver v. Davidson County, 104 Tenn. 315, 59 S. W. 1105. Where classification of cities is permitted, it must be for city purposes only. Re Washington St., 132 Pa. 257, 19 Atl. 219, 7 L. R. A. 193 and note. Statute providing for cure of inebri- ates at public expense in counties having fifty thousand population or more is void for arbitrariness. Murray v. Ramsey County Com'rs, 81 Minn. 359, 84 N. W. 103, 51 L. R. A. 828. Bicycle tax levied in certain counties only is void, although proceeds form a special fund for con- struction of bicycle paths. Ellis v. Fra- zier, 38 Oreg. 462, 63 Pac. 642.] As to what differences should underlie a classi- fication, see Cobb v. Bord, 40 Minn. 479, 42 N. W. 396. fJAll classification must be reasonable. An exemption of ex-soldiers and marines, honorably dismissed from the service of the United States, from a pedler's license tax is void. State v. Garbroski, 111 Iowa, 496, 82 N. W. 959, 82 Am. St. 524. If special legislation is prohibited, a classification such that one class has but one member and, because the classification is based upon a past fact, can never have more, is void. Campbell v. Indianapolis, 155 Ind. 186, 57 N. E. 920. And see Knopf v. People, 185 111. 20, 57 N. E. 22. An arbitrary exemption from a license tax of all dealers whose business is less than a thousand dollars a year, others having no equal exemption, is void as class legislation. Com. v, Clark, 195 Pa. 634, 46 Atl. 286, 86 Am. St. 694. See also Burnet ?;. Dean, N. J. App. , 49 Atl. 503 (June 17, 1901).] Where the legislature, for urgent reasons, may suspend the rules and allow a bill to be read twice on the same day, what con- stitutes a case of urgency is a question for the legislative discretion. Hull v. Miller, 4 Neb. 503. The legislature's power over its own proceedings cannot be controlled by a statute requiring notice in advance of the session, in case of peti- tion affecting private interests. Opinion of Court, 63 N. H. 625. [Where the Constitution provides that no county seat shall be changed except by approval of two-thirds of voters voting thereon, the legislature may intensify the require- ment, and require the approval of two- thirds of all the voters in the county. State . White, 162 Mo. 533, 63 S. W. 104.] i Walker v. Cincinnati, 21 Ohio St 14, 41. [But see The Stratton Claim- ants v. The Morris Claimants, 89 Tenn. 497, 15 S. W. 87, 12 L. R. A. 70.] CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 185 satisfied to leave to the judgment, patriotism, and sense of justice of their representatives. 1 i State v. McCann, 21 Ohio St. 198, 212; Adams v. Howe, 14 Mass. 340, 7 Am. Dec. 216; State v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829 ; Mount r. Richey, 90 Ind. 29. See cases, post, pp. 236, 237. C But to be legislative it must possess the characteristic of gener- ality. It must be a rule and not merely an arbitrary order. The classification must be real, and reasonable in its basis. See Dibrell v. Lanier, 89 Tenn. 497, 15 S. W. 87, 12 L. R. A. 70, in which a statute based upon a flagrantly arbitrary classification was declared void. The decision of the question of whether a tax is for a public purpose is for the courts when there is a manifest attempt on the part of the legislature to authorize a levy for a purpose not public. Dodge v. Mission Township, 46 C. C. A. 661, 107 Fed. 827-3 186 CONSTITUTIONAL LIMITATIONS. [CH. VI. CHAPTER VI. OP THE ENACTMENT OF LAWS. WHEN the supreme power of a country is wielded by a single man, or by a single body of men, any discussion, in the courts, of the rules which should be observed in the enactment of laws must generally be without practical value, and in fact imperti- nent; for, whenever the unfettered sovereign power of any country expresses its will in the promulgation of a rule of law, the expression must be conclusive, though proper and suitable forms may have been wholly omitted in declaring it. It is a necessary attribute of sovereignty that the expressed will of the sovereign is law; and while we may question and cross-question the words employed, to make certain of the real meaning, and may hesitate and doubt concerning it, yet, when the intent is made out, it must govern, and it is idle to talk of forms that should have surrounded the expression, but* do not. But when the legislative power of a State is to be exercised by a department composed of two branches, or, as in most of the American States, of three branches, and these branches have their several duties marked out and prescribed by the law to which they owe their origin, and which provides for the exercise of their powers in certain modes and under certain forms, there are other questions to arise than those of the mere intent of the law-makers, and sometimes forms become of the last importance. For in such case not only is it important that the will of the law-makers be clearly expressed, but it is also essential that it be expressed in due form of law; since nothing becomes law simply and solely because men who possess the legislative power will that it shall be, unless they express their determination to that effect, in the mode pointed out by the instrument which invests them with the power, and under all the forms which that instrument has rendered essential. 1 And if, when the constitution was adopted, 1 A bill becomes a law only when it 48 Ala. 116, 17 Am. Rep. 28; Legg v. has gone through all the forms made Annapolis, 42 Md. 203; Walnut v. Wade, necessary by the constitution to give it 103 U. S. 683. QAnd where the con- validity. Jones v. Hutchinson, 43 Ala. stitution prescribes an interval of time 721 ; State v. Platt, 2 S. C. 150, 16 Am. to elapse after the adjournment of the Rep. 647 ; People v. Commissioners of legislature, the full period of time must Highways, 64 N. Y. 276 ; Moody u. State, intervene between the date of adjourn- CH. VI.] OF THE ENACTMENT OF LAWS. 187 there were known and settled rules and usages, forming a part of the law of the country, in reference to which the constitution has evidently been framed, and these rules and usages required the observance of particular forms, the constitution itself must also be understood as requiring them, because in assuming their existence, and being framed with reference to them, it has in effect adopted them as a part of itself, as much as if they were expressly incorporated in its provisions. Where, for an instance, the legislative power is to be exercised by two houses, and by settled and well-understood parliamentary law these two houses are to hold separate sessions for their deliberations, and the determination of the one upon a proposed law is to be submitted to the separate determination of the other, the constitution, in providing for two houses, has evidently spoken in reference to this settled custom, incorporating it as a rule of constitutional interpretation; so that it would require no prohibitory clause to forbid the two houses from combining in one, and jointly enacting laws by the vote of a majority of all. All those rules which are of the essentials of law-making must be observed and followed ; and it is only the customary rules of order and routine, such as in every deliberative body are always understood to be under its control, and subject to constant change at its will, that the constitution can be understood to have left as matters of discretion, to be established, modified, or abolished by the bodies for whose government in non-essential matters they exist. Of the two Houses of the Legislature. 1 In the enactment of laws the two houses of the legislature are of equal importance, dignity, and power, and the steps which ment and that on which the law be- Ind. 153, 42 N. E. 528, 35 L. R. A. 50J comes effective. Halbert v. San Saba The power to declare whether an act has Springs L. & L. S. Ass'n, 89 Tex. 230, 34 become a law is judicial. Wolfe v. S. W. 639, 49 L. R. A. 193. Upon what McCaull, 76 Va. 876. [State v. Powell, constitutes presentation of bill to gov- 77 Miss. 543, 27 So. 927.] ernor after it has duly passed the legisla- * The wisdom of a division of the legis- ture, and the interval of time within lative department has been demonstrated which he must sign it, see State v. Michel, by the leading writers on constitutional 52 La. Ann. 936, 27 So. 565, 49 L. R. A. law, as well as by general experience. 218, 78 Am. St. 364. Where act is void See De Lolme, Const, of England, b. 2, for lack of uniformity of operation, the c. 3 ; Federalist, No. 22 ; 1 Kent, 208 ; defect may be corrected by subsequent Story on Const. 545-570. The early amendment making non-uniform portion experiments in Pennsylvania and Georgia, uniform with rest of original act, and based on Franklin's views, for which see the whole will then be good. Walsh his Works, Vol. V. p. 165, were the only v. State, 142 Ind. 357, 41 N. E. 65> 33 ones made by any of the original States L. R. A. 392. For other cases upon ne- with a single house. The first Constitu- cessity of recognizing prescribed forms tion of Vermont also provided for a single of enactment, see Swindell v. State, 143 legislative body. 188 CONSTITUTIONAL LIMITATIONS. [CH. VI. result in laws may originate indifferently in either. This is the general rule; but as one body is more numerous than the other, and more directly represents the people, and in many of the States is renewed by more frequent elections, the power to originate all money bills, or bills for the raising of revenue, is left exclusively, by the constitutions of some of the Stales, with this body, in accordance with the custom in England, which does not permit bills of this character to originate with the House of Lords. 1 To these bills, however, the other house may propose alterations, and they require the assent of that house to their passage, the same as other bills. The time for the meeting of the legislature will be such time as is fixed by the constitution or by statute; but it may be called together by the executive in special session as the constitution may pre- scribe, and the two houses may also adjourn any general session to a time fixed by them for the holding of a special session, if any agreement to that effect can be arrived at; and if not, power is conferred by a majority of the constitutions upon the executive to prorogue and adjourn them. And if the executive in any case undertake to exercise this power to prorogue and adjourn, on the assumption that a disagreement exists between the two houses which warrants his interference, and his action is acquiesced in by those bodies, who thereupon cease to hold their regular sessions, the legislature must be held in law to have adjourned, and no inquiry can be entered upon as to the rightfulness of the governor's assumption that such a disagree- ment existed. 2 1 There are provisions in the Consti- taxes ; but the Senate did not assent to tutions of Massachusetts, Delaware, Min- this conclusion. In England the Lords nesota, Mississippi, New Hampshire, New are not allowed to amend money bills, Jersey, Pennsylvania, South Carolina, and by resolutions of 5th and 6th July, Vermont, Indiana, Oregon, Kentucky, 1860, the Commons deny their right even Louisiana, Alabama, Arkansas, Georgia, to reject them. FJLaw directing pay- Virginia, Maine, and Colorado, requiring ment of bounties by county treasurer, revenue bills to originate in the more such payments to be credited to him by popular branch of the legislature, but state treasurer, is void under constitu- allowing the Senate the power of amend- tional provision that " no money shall be ment usual in other cases. A bill to paid out of the treasury except upon ap- license saloons is a police regulation, not propriations made by law and on warrant a revenue law. State v Wright, 14 drawn by the proper officer." Institution Oreg 365, 12 Pac. 708 Money cannot for Edu. Mute & Blind v. Henderson, 18 be appropriated by joint resolution in Col. 98, 31 Pac. 714, 18 L. R. A. 398.] Indiana. May v Rice, 91 Ind. 546. Dur- 2 This question became important, and ing the second session of the forty-first was passed upon in People v. Hatch, 33 Congress, the House of Representatives 111.9. The Senate had passed a resolution by tneir vote denied the right of the for an adjournment of the session sine die Senate under the Constitution to origi- on a day named, which was amended by nate a bill repealing a law imposing the House by fixing a different day. The CH. VI.] OF THE ENACTMENT OF LAWS. 189 There are certain matters which each house determines for itself, and in respect to which its decision is conclusive. It chooses its own officers, except where, by constitution or statute, other provision is made; it determines its own rules of proceed- ing; it decides upon the election and qualification of its own members. 1 These powers it is obviously proper should rest with Senate refused to concur, and the House then passed a resolution expressing a desire to recede from its action in amend- ing the resolution and requesting a re- turn of the resolution by the Senate. While matters stood thus, the governor, assuming that such a disagreement ex- isted as empowered him to interfere, sent in his proclamation, declaring the legis- lature adjourned to a day named, and which was at the very end of the official term of the members. The message created excitement ; it does not seem to have been at once acquiesced in, and a protest against the governor's authority was entered upon the journal ; but for eleven days in one house and twelve in tlie other no entries were made upon their journals, and it was unquestionable that practically they had acquiesced in the action of the governor, and adjourned. At the expiration of the twelve days, a portion of the members came together again, and it was claimed by them that the message of the governor was without authority, and the two houses must be considered as having been, in point of law, in session during the intervening period, and that consequently any bills which had before been passed by them and sent to the governor for his approval, and which he had not returned within ten days, Sundays excepted, had become laws under the constitution. The Supreme Court held that, as the two houses had practically acquiesced in the action of the governor, the session had come to an end, and that the members had no power to reconvene on their own motion, as had been attempted. The case is a very full and valuable one on several points per- taining to legislative proceedings and authority. As to the governor's 'discretion in calling an extra session and revoking the call, see ante, p. 160, note. [^Govern- or's decision that disagreement exists declared conclusive in lie Legislative Adjournment, 18 R. I. 824, 27 Atl. 324, 22 L. R. A. 716, and see note in L. R. A. upon power as to adjournment of legislature.] 1 In People v. Mahaney, 13 Mich. 481, it was held that the correctness of a deci- sion by oue of the houses, that certain persons had been chosen members, could not be inquired into by the courts. In that case a law was assailed as void, on the ground that a portion of the mem- bers who voted for it, and without whose votes it would not have had the requisite majority, had been given their seats in the house in defiance of law, and to the exclusion of others who had a majority of legal votes. ' See the same principle in State v. Jarrett, 17 Md. 309. See also Lamb v. Lynd, 44 Pa. St. 336; Opinion of Justices, 56 N. H. 570. QThe persons who are to constitute the prima facie house, and to organize and examine into the qualifications of the members, to deter- mine contests, &c., are those who bring certificates of election from the proper officers. Re Gunn, 50 Kan. 155, 32 Pac. 470, 948, 19 L. R. A. 519, a case where two rival bodies each claimed to be the true house of representatives/] In Kan- sas a question having some resemblance was disposed of differently. The legis- lature gave seats to several persons as representatives of districts not entitled to representation at all. By the concurrent vote of four of these a certain bill was passed. Held, that it was illegally passed, and did not become a law. State v. Fran- cis, 26 Kan. 724. The legislature cannot transfer its power to judge of the election of its members, to the courts. State v. Gilman, 20 Kan. 551, 27 Am. Rep. 189. See Dalton v. State, 43 Ohio St. 652. But courts may procure and present evi- dence to the legislature. In re McNeill, 111 Pa. St. 235, 2 Atl. 341. The legisla- tive power to judge of the election of members is not possessed by municipal bodies: People v. Hall, 80 N/Y. 117; nor by hoards of supervisors: Robinson v. Cheboygan Supervisors, 49 Mich. 321, 13 N. W. 622; except when conferred by 190 CONSTITUTIONAL LIMITATIONS. [CH. VI. the body immediately interested, as essential to enable it to enter upon and proceed with its legislative functions without liability to interruption and confusion. In determining ques- tions concerning contested seats, the house will exercise judicial power, but generally in accordance with a course of practice which has sprung from precedents in similar cases, and no other authority is at liberty to interfere. Each house has also the power to punish members for dis- orderly behavior, and other contempts of its authority, as well as to expel a member for any cause which seems to the body to render it unfit that he continue to occupy one of its seats. This power is generally enumerated in the constitution among those which the two houses may exercise, but it need not be specified in tnat instrument, since it would exist /whether expressly con- ferred or not. It is "a necessary and incidental power, to enable the house to perform its high functions, and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or noisy, violent, and disorderly, or in the habit of using profane, obscene, and abusive language." And, "independently of parliamentary cus- toms and usages, our legislative houses have the power to protect themselves by the punishment and expulsion of a member; " and the courts cannot inquire into the justice of the decision, or even so much as examine the proceedings to see whether or not the proper opportunity for defence was furnished. 1 law. Mayor v. Morgan, 7 Mart. N. 8. 1, clearly ineligible candidate by issuing 18 Am. Dec. 232; Peabody v. School mandamus to the board of canvassers to Committee, 115 Mass. 383 ; Cooley v. give the candidate a certificate of elec- Fitzgerald, 41 Mich. 2,2 N. W. 179. See tion, even though it is admitted that he Commonwealth v. Leech, 44 Pa. St. 332; received the plurality vote. People v. Doran v. De Long, 48 Mich. 552, 12 State Bd. of Canvassers, 129 N. Y. 360, N. W. 848. To exclude the jurisdiction 29 N. E. 345, 14 L. R. A. 640. But it will of the courts, the council's power must correct a fraud through which the candi- be unequivocal. State v. Kempf, 69 Wis. date rightfully entitled is deprived of his 470, 34 N. W. 226; State i. Gates, 35 certificate, as that makes him prima facie Minn. 385, 28 N. W. 927. [The power a member. Ellison v. Barnes, 23 Utah, of the court to call a new election to elect 183, 63 Pac. 899. House, by a majority a member of a general assembly is not vote of all members elected, may retire precluded by the power of the house to its speaker and elect another. Re Speak- pass upon the election of its members, ership, 15 Col. 520, 25 Pac. 707, 11 L. R. A. even though the calling the election is a 241.] passing upon the validity of a prior elec- l Hiss v. Bartlett, 3 Gray, 468. And tion. State v. South Kingstown, 18 It. I. see Anderson v. Dunn, 6 Wheat. 204. 258, 27 Atl. 599, 22 L. R. A. 65. While [The authority of the house is equally each house judges of the election and absolute in regard to the rule usually qualifications of its members, and while prescribed in the Constitution that any the duties of canvassing boards are purely member may have his protest entered ministerial, yet the court will not aid a upon the journal. If the house neglect CH. VI.] OF THE ENACTMENT OF LAWS. 191 Each house may also punish contempts of its authority by other persons, where they are committed in its presence, or where they tend directly to embarrass or obstruct its legislative proceedings ; and it requires for the purpose no express provi- sion of the constitution conferring the authority. 1 It is not very well settled what are the limits to this power; and in the leading case in this country the speaker's warrant for the arrest of the person adjudged guilty of contempt was sustained, though it did not show in what the alleged contempt consisted. 2 In the leading English case a libellous publication concerning the house was treated as a contempt; 3 and punishment has sometimes been inflicted for assaults upon members of the house, not com- mitted in or near the place of sitting, and for the arrest of members in disregard of their constitutional privilege. 4 But in America the authority of legislative bodies in this regard is much less extensive than in England, and we are in danger, perhaps, of being misled by English precedents. The Parliament, before its separation into two bodies, was a high court of judicature, possessed of the general power, incident to such a court, of punishing contempts, and after the separation the power remained with each body, because each was considered to be a court of judicature and exercised the functions of such- a court. American legislative bodies have not been clothed with the judicial function, and they do not therefore possess the gen- eral power to punish for contempt; but, as incidental to their legislative authority, they have the power to punish as contempts those acts of members or others which tend to obstruct the per- formance of legislative duty, or to defeat, impede, or embarrass the exercise of legislative power. 6 When imprisonment is imposed as a punishment, it must terminate with the final adjournment of the house, and if the prisoner be not then discharged by its order, he may be released on habeas corpus.^ to recognize this rule, no outside power 8 Burdett v. Abbott, 14 East, 1. can compel it. Turnlmll v. Giddings, 95 4 Mr. Potter discusses such a case in Mich. 314, 54 N. W. 887, 19 L. R. A. 853.] his edition of Dwarris on Statutes, c. 18, 1 Anderson v. Dunn, 6 Wheat. 204 ; and Mr. Robinson deals with the case of Burdett v. Abbott, 14 East, 1 ; Burnham an arrest for a criminal act, not com- v. Morrissey, 14 Gray, 226; State v. Mat- mitted in the presence of the house, in thews, 37 N. H. 450. See post, p. 651, the preface to the sixth volume of his note. Practice. As to the general right of 2 Anderson v. Dunn. 6 Wheat. 204 ; Parliament to punish for contempt, see questioned and rejected as to some of its Gosset v. Howard, 10 Q. B. 411. reasoning in Kilbourn v. Thompson, 103 5 See the subject considered fully and U. S. 168. And see Gosset v. Howard, learnedly in Kilbourn v. Thompson, 103 10 Q. B. 451 ; Stewart v. Elaine, 1 Me- U. S. 168. Arthur, 453. 6 Jefferson's Manual, 18 ; Prichard's 192 CONSTITUTIONAL LIMITATIONS. [CH. VI. By common parliamentary law, the members of the legislature are privileged from arrest on civil process during the session of that body, and for a reasonable time before and after, to enable them to go to and return from the same. By the constitutions of some of the States this privilege has been enlarged, so as to exempt the persons of legislators from any service of civil process, 1 and in others their estates are exempt from attachment for some prescribed period. 2 For any arrest contrary to the parliamentary law or to these provisions, the house of which the person arrested is a member may give summary relief by order- ing his discharge, and if the order is not complied with, by punishing the persons concerned in the arrest as for a contempt of its authority. The remedy of the member, however, is not confined to this mode of relief. His privilege is not the privi- lege of the house merely, but of the people, and is conferred to enable him to discharge the trust confided to him by his consti- tuents; 3 and if the house neglect to interfere, the court from which the process issued should set it aside on the facts being represented, 4 and any court or officer having authority to issue writs of habeas corpus may also inquire into the case, and release the party from the unlawful imprisonment. 5 Case, 1 Lev. 165 ; 1 Sid. 245, T. Raym. 120. 1 " Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest. They shall not be subject to any civil process during the session of the leg- islature, or for fifteen days next before the commencement and after the termina- tion of each session." Const, of Mich, art. 4, 7. A like exemption from civil process is found in the Constitutions of Kansas, Nebraska, Alabama, Arkansas, California, Missouri, Mississippi, Wiscon- sin, Indiana, Oregon, and Colorado. Ex- emption from arrest is not violated by the service of citations or declarations in civil cases. Gentry v. Griffith, 27 Tex. 461 ; Case v. Rorabacher, 15 Mich. 537. So, of a member of Congress during the session. Merrick v. Giddings, MacAr. & Mack. 55 ; rjWorth v. Norton, 56 S. C. 56, 479, 33 S. E. 792. 35 S. E. 135, 45 L. R. A. 563 ; 76 Am. St. 524.] But in Miner v. Markham, 28 Fed. Rep. 387, a California member tn route to Washington was held exempt from service of summons in Wis- consin. 2 The Constitution of Rhode Island provides that " the person of every mem- ber of the General Assembly shall be exempt from arrest, and his estate from attachment, in any civil action, during the session of the General Assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void." Art. 4, 5. 8 Coffin v. Coffin, 4 Mass. 27, 3 Am. Dec. 189. * Courts do not, however, ex officio notice the privileges of members; they must be brought to their attention by some proper motion. Prentis v. Com- monwealth, 5 Rand. 697, 16 Am. Dec. 782, and note. 6 On this subject, Gushing on Law and Practice of Parliamentary Assemblies, 546-597, will be consulted with profit. It is not a trespass to arrest a person privi- leged from arrest, even though the officer may be aware of the fact. The arrest is only voidable ; and in general the party will waive the privilege unless he applies for discharge by motion or on habeas corpus. Tarlton v. Fisher, Doug. 671 ; Fletcher v. Baxter, 2 Aik. 224 ; Fox v. Wood, 1 Rawle, 143; Sperry v. Wiliard, CH. VI.] OF THE ENACTMENT OF LAWS. 193 Each house must also be allowed to proceed in its own way in the collection of such information as may seem important to a proper discharge of its functions, 1 and whenever it is deemed desirable that witnesses should be examined, the power and authority to do so is very properly referred to a committee, with any such powers short of final legislative or judicial action as may seem necessary or expedient in the particular case. Such a committee has no authority to sit during a recess of the house which has appointed it, without its permission to that effect; but the house is at liberty to confer such authority if it see fit. 2 A refusal to appear or to testify before such committee, or to produce books or papers, would be a contempt of the house; 3 but the committee cannot punish for contempts; it can only report the conduct of the offending party to the house for its action. The power of the committee will terminate with the final disso- lution of the house appointing it. Each house keeps a journal of its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice. 4 If it should appear from these journals that 1 Wend. 32 ; Wilraarth v. Burt, 7 Met. 257; Aldrich v. Aldrich, 8 Met. 102; Chase v. Fish, 16 Me. 132. But where the privilege is given on public grounds, or for the benefit of others, discharge may be obtained on the motion of any party concerned, or made by the court sua sponte. 1 See Tillinghast v. Carr, 4 McCord, 152. 2 Branham v. Lange, 16 Ind. 407 ; Marshall v. Harwood, 7 Md. 466. See also parliamentary cases, 5 Grey, 374 ; 9 Grey, 350; 1 Chandler, 50. 8 In re Falvey, 7 Wis. 630 ; Burnham v. Morrissey, 14 Gray, 226 ; People r. Keeler, 99 N. Y. 463. In the last case a statute expressly permitted the house to punish for such contempt. But the priv- ilege of a witness to be exempt from a compulsory disclosure of his own criminal conduct is the same when examined by a legislative body or committee as when sworn in court. Emery's Case, 107 Mass. 172. In the Matter of Kilbourn (May, 1876), Chief Justice Carter, of the Su- preme Court of the District of Columbia, discharged on habeas corpus a person com- mitted by the House of Representatives for a contempt in refusing to testify; holding that as the refusal was an indict- able offence by statute, a trial therefor must be in the courts, and not elsewhere. If this is correct, the necessities of legis- lation will require a repeal of the statute ; for if, in political cases, the question of punishment for failure to give informa- tion must be left to a jury, few convic- tions are to be expected, and no wholesome fear of the consequences of a refusal. The legality of the same arrest was consid- ered afterwards by the Federal Supreme Court, and was not sustained, the court holding that the house exceeded its au- thority in the attempted investigation. Kilbourn v. Thompson, 103 L T . S. 168. On questions of conflict between the legisla- ture and the courts in matters of con- tempt, the great case of Stockdale v. Hansard, 9 Ad. & El. 1 ; 8. c. 3 Per. & Dav. 330, is of the highest interest. See May, Const. Hist. c. 7. 4 Spangler v Jacoby, 14 111 297 ; Tur- ley v. Logan Co., 17 111. 151; Jones v. Hutchinson, 43 Ala, 721 ; State v. Mofflt, 6 Ohio, 358 ; Miller v. State, 3 Ohio St. 475; Fordyce v. Godman, 20 Ohio St. 1 ; People v. Supervisors of Chenango, 8 N. Y. 317; People v. Mahaney, 13 Mich. 481 ; Soutnwark Bank v. Commonwealth, 2 Pa. St. 446; M.Culloeh v. State, 11 Ind. 430; Osburn v. Staley, 5 W. Va. 85, 13 Am. Rep. 640; State r. Platt, 2 S. C. N. 8. 150, 16 Am. Rep. 647 ; Moody 13 194 CONSTITUTIONAL LIMITATIONS. [CH. VI. any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the con- stitution, or that in any other respect the act was not constitu- tionally adopted, the courts may act upon this evidence, and *. State, 48 Ala. 115; Houston, &c. R. R. Co. v. Odum, 53 Tex. 343; Gardner v. The Collector, 6 Wall. 499 ; South Ottawa v. Perkins, 94 U. S. 260. The presump- tion always is, when the act, as signed and enrolled, does not show the contrary, that it has gone through all necessary formalities : State v. McConnell, 3 Lea, 341 ; Blessing v. Galveston, 42 Tex. 641 ; State v. Francis, 26 Kan. 724; and some cases hold that the enrolled statute is conclusive evidence of its due passage and validity. See Sherman v. Story, 30 Cal. 253; People v. Burt, 43 Cal. 660; Louisiana Lottery Co. v. Richoux, 23 La. Ann. 743, 8 Am. Rep. 602; Green r. Weller, 32 Miss. 650 ; Swan v. Buck, 40 Miss. 268 ; Ex parte Wren, 63 Miss. 512 ; Pacific R. R. Co. v. Governor, 23 Mo. 353; State v. Swift, 10 Nev. 176; Pangborn i?. Young, 32 N. J. 29; Evans v. Brown, 30 Ind. 514; Buncombe v. Prindle, 12 Iowa, 1 ; Terr. v. O'Connor, 5 Dak. 397, 41 N. W. 746; [TZeTipton, 28 Tex. App. 438, 13 S. W. 610, 8 L. R. A. 326, and note; Narregang v. Brown County, 14 S. D. 357, 85 N. W. 602 ; State v. Bacon, 14 S. D. 394, 85 N. W. 605; Yolo Coun- ty v. Colgan, 132 Cal. 265, 64 Pac. 403.] Others hold that the prima facie case may be overthrown by the journals : Spang- ler v. Jacoby, 14 III. 297 ; Houston, &c. R. R. Co. v. Odum, 53 Tex. 343 ; Burr v. Ross, 19 Ark. 250; Smithee v. Camp- bell, 41 Ark. 471 ; Jones v. Hutchinson, 43 Ala 721; Moog v. Randolph, 77 Ala. 597 ; Berry v. Baltimore, &c. R. R. Co., 41 Md. 446, 20 Am. Rep. 69; Green v. Weller, 32 Miss. 650 ; People v. McElroy, 72 Mich. 446, 40 N. W. 750; Brewer v. Mayor, &c., 86 Tenn. 732, 9 S. W. 166 ; [State v. Frank, 60 Neb. 327, 61 Neb. 679, 83 N. W. 74, 85 N. W. 956 ; Lambert v. Smith, 98 Va. 268, 38 S. E. 938 ; State v. Burlington & M. R. Co., 60 Neb. 741, 84 N. W. 254 ;] so, if an act is passed over a veto, differing from an ordinary en- rolled act. State v. Denny, 118 Ind. 449, 12 N. E. 274. The journal entry, if in compliance with a constitutional require- ment, is the best evidence of a resolution, and cannot be contradicted. Koehler c. Hill, 60 Iowa, 543, 15 N. W. 609. So, as to the entry of the number voting. Wise v. Bigger, 79 Va. 269. [And as to which bill was voted on. State v. Wendler, 94 Wis. 369, 68 N. W. 759.] The journal cannot be contradicted by parol to show that a mere title or skeleton was intro- duced as a bill. Attorney-General v. Rice, 64 Mich. 385, 31 N. W. 203. If a journal shows an act passed, it cannot be attacked on the ground that some members voting for it were improperly seated. State v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829. And see Opinions of Justices, 52 N. II. 622 ; Hen- soldt v. Petersburg, 63 111. 157 ; Larrison v. Peoria, &c. R. R. Co., 77 III. 11 ; People v. Commissioners of Highways, 54 N. Y. 276; English v. Oliver, 28 Ark. 317 ; In re Wellman, 20 Vt. 653 ; Osburn v. Staley, 5 W. Va. 85; Moody v. State, 48 Ala. 115, 17 Am. Rep. 28; State v. Platt, 2 S. C. 150, 16 Am. Rep. 647 ; Worthen r. Badget, 32 Ark. 496; South wark Bank v. Commonwealth, 26 Pa. St. 446; For- dyce v. Godman, 20 Ohio St. 1 ; People v. Starne, 35 111. 121 ^Supervisors v. Keenan, 2 Minn. 321 ; People v. Mahaney, 13 Mich. 481 ; Berry v. Doane Point R. R. Co., 41 Md. 446. Compare Brodnax v. Groom, (54 N. C. 244 ; Annapolis v. Har- wood, 32 Md. 471. It has been held that where the constitution requires previous notice of an application for a private act, the courts cannot go behind the act to inquire whether the notice was given. Brodnax v. Groom, 64 N. C. 244. See People v. Hurlbut, 24 Mich. 44; Day v. Stetson, 8 Me. 365 ; M'Clinch v. Sturgis, 72 Me. 288; Davis v. Gaines, 48 Ark. 370, 3 S. W. 184; [Speer v. Athens, 85 Ga. 49, 11 S. E. 802, 9 L. R. A. 402. As to what papers constitute the journal and what changes may be made in them and when, see Montgomery B. B. Works v. Gaston, 126 Ala. 425, 28 So. 497, 51 L. R. A. 396, 85 Am. St. 42. As to use to be made of the journals in determin- ing the true contents of a bill, see Mil- waukee County v. Isenring, 109 Wis. 9, 85 N. W. 131.3 CH. VI.] OF THE ENACTMENT OF LAWS. 195 adjudge the statute void. 1 But whenever it is acting in the apparent performance of legal functions, every reasonable pre- sumption is to be made in favor of the action of a legislative body; it will not be presumed in any case, from the mere silence of the journals, that either house has exceeded its authority, or disregarded a constitutional requirement in the passage of legis- lative acts, unless where the constitution has expressly required the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered. 2 1 See cases cited in preceding note ; also Prescott v. Trustees, &c., 19 111. 324 ; Koehler v. Hill, 60 Iowa, 543, 549, 14 N. W. 738, 15 N. W. 609. 2 Miller v. State, 3 Ohio St. 475 ; Mc- Cullooh t\ State, 11 Ind. 424; Supervisors v. People, 25 111. 181 ; Hall v. Steele, 82 Ala. 562 ; Glidewell v. Martin, 11 S. W. 882; People v. Dunn, 22 Pac. 140; State v. Brown, 20 Fla. 407 ; Matter of Van- derberg, 28 Kan. 243; State v. Peterson, 38 Minn. 143, 36 N. W. 443; State v. Alpood, 87 Tenn. 163, 10 S. W. 310; Hunt v. State, 22 Tex. App. 396, 3 S. W. 233. But where a statute can only be enacted by a certain majority, e. y. two- thirds, it must affirmatively appear by the printed statute or the act on file that such a vote was had. People v. Commissioners of Highways, 54 N. Y. 276. It seems that, in Illinois, if one claims that a supposed law was never passed, and relies upon the records to show it, he must prove them. Illinois Cent. R. 11. Co. . Wren, 43 111. 77 ; Grob v. Cushman, 45 111. 119; Bedard v. Hall, 44 111. 91. The court will not act upon the admission of parties that an act was not passed in the constitutional manner. Happel v. Brethauer, 70 111. 166; Attor- ney-General v. Rice, 64 Mich. 385, 31 N. W. 203. The Constitution of Alabama, art. 4, 27, requires the presiding officer of each house, in the presence of tlie house, to sign acts " after the titles have been pub- licly read immediately before signing, and the fact of signing shall be entered on the journal." This seems a very imperative requirement. But in Colorado a like pro- vision is held directory, and the presump- tion in case of silence of journal is in favor of the act. In re Roberts, 5 Col. 525. QThat requirement to enter yeas and nays is mandatory, see Com'rs of Stanly Co. v. Snuggs, 121 N. C. 394, 28 S. E. 539, 39 L. R. A. 439. That journals must affirmatively show full compliance with constitutional requirements, seeCohn v. Kingsley, Idaho , 49 Pac. 985, 38 L. R. A. 74, an instructive case ; contru, Lafferty v. Huffman, 99 Ky. 80, 35 S. W. 123, 32 L. R. A. 203 ; McKinnon v. Cot- ner, 30 Oreg. 688, 49 Pac. 956. For other cases holding constitutional require- ments mandatory, see Union Bank v. Comr's of Oxford", 119 N. C. 214, 25 S. E. 966, 34 L. R. A. 487 ; Mullan v. State, 114 Cal. 578, 46 Pac. 670, 34 L. R. A. 262. The court will not declare a statute void because of fraud in procuring its enrol- ment and the signatures of the proper officers thereto. Such fraud must be cor- rected by the legislature. Carr v. Coke, 116 N. C. 223, 22 S. E. 16, 28 L. R. A. 737, 47 Am. St. 801. Duly enrolled bill properly filed is conclusive. State v. Jones, 6 Wash. 452, 34 Pac. 201, 23 L. R. A. 340, and see note in L. R. A. giving cases pro and con ; contra, Norman v. Kentucky Bd. of Managers, 93 Ky. 537, 20 S. W. 901, 18 L. R. A. 556. Parol testimony is inadmissible to impeach legislative records. White v. Hinton, 3 Wyo. 753, 30 Pac. 953, 17 L. R, A. 66. Upon conclusiveness of legislative rec- ords, see Detroit v. Rentz, 91 Mich. 78, 51 N. W. 787, 16 L. R. A. 59. And upon records of Secretary of State in regard to passage of bills and submission to gov- ernor, see Lankford v. Somerset Co., 73 Md. 105, 20 All. 1017, 22 Atl. 412, 11 L. R. A 491. Matters of detail v ill be pre- sumed properly performed where journal records the doing of the main act and is silent as to the subsidiary matters. Bar- ber Asphalt Co. v. Hunt, 100 Mo. 22, 13 S. W. 98, 8 L. R. A. 110, 18 Am. St. 530.3 196 CONSTITUTIONAL LIMITATIONS. [OH. VI. The law also seeks to cast its protection around legislative sessions, and to shield them against corrupt and improper influ- ences, by making void all contracts which have for their object to influence legislation in any other manner than by such open and public presentation of facts, arguments, and appeals to rea- son as are recognized as proper and legitimate with all public bodies. While counsel may be properly employed to present the reasons in favor of any public measure to the body authorized to pass upon it, or to any of its committees empowered to collect facts and hear arguments, and parties interested may lawfully contract to pay for this service, 1 yet to secretly approach the members of such a body with a view to influence their action at a time and in a manner that do not allow the presentation of opposite views, is improper and unfair to the opposing interest; and a contract to pay for this irregular and improper service would not be enforced by the law. 2 1 See Wildey v. Collier, 7 Md. 273; Bryan v. Reynolds, 5 Wis. 200; Brown v. Brown, 34 Barb. 533 ; Russell v. Burton, 66 Barb. 539; QHoulton v. Nichol, 93 Wis. 393 ; 67 N. W. 715 ; 33 L. R. A. 166.] 2 This whole subject was very fully considered in the case of Frost v. Inhab- itants of Belmont, 6 Allen, 152, which was a bill filed to restrain the payment by the town of demands to the amount of nearly $9,000, which the town had voted to pay as expenses in obtaining their act of in- corporation. By the court, Chapman, J. : " It is to be regretted that any persons should have attempted to procure an act of legislation in this Commonwealth, by such means as some of these items indi- cate. By the regular course of legisla- tion, organs are provided through which any parties may fairly and openly ap- proach the legislature, and be heard with proofs and arguments respecting any legis- lative acts which they may be interested in, whether public or private. These or- gans are the various committees appointed to consider and report upon the matters to be acted upon by the whole body. When private interests are to be affected, notice is given of the hearings before these committees ; and thus opportunity is given to adverse parties to meet face to face and obtain a fair and open hearing. And though these committees properly dis- pense with many of the rules which reg- ulate hearings before judicial tribunals, yet common fairness requires that neither party shall be permitted to have secret consultations, and exercise secret influ- ences that are kept from the knowledge of the other party. The business of ' lobby members ' is not to go fairly and openly before the committees, and present state- ments, proofs, and arguments that the other side has an opportunity to meet and refute if they are wrong, but to go secretly to the members and ply them with statements and arguments that the other side cannot openly meet, however erro- neous they may be, and to bring illegiti- mate influence to bear upon them. If the 'lobby member ' is selocted because of his political or personal influence, it aggravates the wrong. If his business is to unite various interests by means of projects that are called ' log-rolling,' it is still worse. The practice of procuring members of the legislature to act under the influence of what they have eaten and drank at houses of entertainment, tends to render those of them who yield to such influences wholly unfit to act in such cases. They are disqualified from act- ing fairly towards interested parties or towards the public. The tendency and object of these influences are to obtain by corruption what it is supposed cannot be obtained fairly. "It is a well-established principle, that all contracts which are opposed to public policy, and to open, upright, and fair dealing, are illegal and void. The prin- CH. VI.] OF THE ENACTMENT OF LAWS. 197 The Introduction and Passage of Sills, (a) Any member may introduce a bill in the house to which he belongs, in accordance with its rules; and this he may do at any of the legislature by using personal influ- ence with the members, or by any sinister means, was void, as being inconsistent with public policy and the integrity of our political institutions. And an agree- ment for a contingent fee to be paid on the passage of a legislative act was held to be illegal and void, because it would be a strong incentive to the exercise of personal and sinister influences to effect the object. " The subject has been twice adjudi- cated upon in New York. In Harris v. Roof, 10 Barb. 489, the Supreme Court held that one could not recover for ser- vices performed in going to see individ- ual members of the house, to get them to aid in voting for a private claim, the ser- vices not being performed before the house as a body nor before its authorized committees. In Sedgwick v. Stanton, 4 Kernan, 28!), the Court of Appeals held the same doctrine, and stated its proper limits. Selden, J., makes the following comments on the case of Harris v. Roof: ' Now, the court did not mean by this de- cision to hold that one who has a claim against the State may not employ com- petent persons to aid him in properly presenting such claim to the legislature, and in supporting it with the necessary proofs and arguments. Mr. Justice Hand, who delivered the opinion of the court, very justly distinguishes between services of the nature of those rendered in that case, and the procuring and pre- paring the necessary documents in sup- port of a claim, or acting as counsel before the legislature or some committee appointed by that body. Persons may, no doubt, be employed to conduct an ap- plication to the legislature, as well as to conduct a suit at law ; and may contract for and receive pay for their services in preparing documents, collecting evidence, making statements of facts, or preparing and making oral or written arguments, provided all these are used or designed to be used before the legislature or some committee thereof as a body ; but they ciple was fully discussed in Fuller v. Dame, 18 Pick. 472. In several other States it has been applied to cases quite analogous to the present case. " In Pingrey v. Washburn, 1 Aik. 264, it was held in Vermont that an agree- ment, on the part of a corporation, to grant to individuals certain privileges in consideration that they would withdraw their opposition to the passage of a legis- lative act touching the interests of the corporation, is against sound policy, pre- judicial to correct and just legislation, and void. In Gulick v. Ward, 5 Halst. 87, it was decided in New Jersey that a con- tract which contravenes an act of Con- gress, and tends to defraud the United States, is void. A. had agreed to give B. $100, on condition that B. would forbear to propose or offer himself to the Post- master-General to carry the mail on a certain mail route, and it was held that the contract was against public policy and void. The general principle as to contracts contravening public policy was discussed in that case at much length. In Wood v. McCann, 6 Dana, 366, the de- fendant had employed the plaintiff to assist him in obtaining a legislative act in Kentucky, legalizing his divorce from a former wife, and his marriage with his present wife. The court say : ' A lawyer may be entitled to compensation for writ- ing a petition, or even for making a pub- lic argument before the legislature or a committee thereof; but the law should not help him or any other person to a recompense for exercising any personal influence, in any way, in any act of legis- lation. It is certainly important to just and wise legislation, and therefore to the most essential interests of the public, that the legislature should be perfectly free from any extraneous influence which may either corrupt or deceive the members, or any of them.' " In Clippinger v. Hepbaugh, 5 Watts and S. 315, it was decided in Pennsyl- vania that a contract to procure or en- deavor to procure the passage of an act (a) fJUpon this subject, see note to 11 L. R. A. 491 .] 198 CONSTITUTIONAL LIMITATIONS. [CH. VL time when the house is in session, unless the constitution, the law, or the rules of the house forbid. The constitution of cannot, with propriety, be employed to exert their personal influence with indi- vidual members, or to labor in any form privately with such members out of the legislative halls. Whatever is laid before the legislature in writing, or spoken openly or publicly in its presence or that of a committee, if false in fact, may be disproved, or if wrong in argument may be refuted ; but that which is whispered into the private ear of individual mem- bers is frequently beyond the reach of correction. The point of objection in this class of cases, then, is, the personal and private nature of the services to be rendered.' "In Fuller v. Dame, cited above, Shaw, Ch. J., recognizes the well-established right to contract and pay for professional services when the promisee is to act as at- torney and counsel, but remarks that ' the fact appearing that persons do so act prevents any injurious effects from such proceeding. Such counsel is considered as standing in the place of his principal, and his arguments and representations are weighed and considered accordingly.' He also admits the right of disinterested persons to volunteer advice ; as when a person is about to make a will, one may represent to him the propriety and expe- diency of making a bequest to a particu- lar person ; and so may one volunteer ad- vice to another to marry another person ; but a promise to pay for such service is void. " Applying the principles stated in these cases to the bills which the town voted to pay, it is manifest that some of the money was expended for objects that are contrary to public policy, and of a most reprehensible character, and which could not, therefore, form a legal consid- eration for a contract." See, further, a full discussion of the game subject, and reaching the same con- clusion, by Mr. Justice Grier, in Marshall v. Baltimore & Ohio R. R. Co., 16 How. 314 [Jin Richardson v. Scott's Bluff Co., 69 Neb. 400, 81 N. W. 309, 80 Am. St. 682, A contract to render services in securing the passage of an appropriation for a specified compensation in case the bill should be passed, no compensation to be paid if bill not passed, is against public policy and void.] A sale of a town office, though by the town itself, can- not be the consideration for a contract. Meredith v. Ladd, 2 N. H. 517. See Carleton v. Whitcher,5 N. H. 196; Eddy v. Capron, 4 R. I. 394. A town cannot incur expenses in opposing before a legis- lative committee a division of the terri- torial limits : Westbrook v. Deering, 63 Me. 231 ; or to pay the expenses of a committee to procure the annexation of the town to another. Minot v. West Roxbury, 112 Mass. 1, 17 Am. Rep. 52. That contracts for lobby services in pro- curing or preventing legislation are void, see Usher v. McBratney, 3 Dill. 385; Trist v. Child, 21 Wall. 441 ; McKee v. Cheney, 52 How. (N. Y.) 144; Weed v. Black, 2 MacArthur, 268 ; Sweeney v. McLeod, 15 Oreg. 330, 15 Pac. 275; Cary v. Western U. Tel. Co., 47 Hun, 610. Or for influence in procuring contracts. Tool Co. v. Norris, 2 Wall. 45. And any contract the purpose of which is to influ- ence a public officer or body to favor per- sons in the performance of his public duty is void, on grounds of public policy. Ordineal v. Barry, 24 Miss. 9. The same general principle will be found applied in the following cases : Swayze v Hull, 8 N. J. 54, 14 Am. Dec.- 399; Wood v. McCann, 6 Dana, 366; Hatzfield v. Gulden, 7 Watts, 152 ; Gill v. Davis, 12 La. Ann. 219; Powers >-. Skinner, 34 Vt. 274 ; Frankfort v. Winterport. 54 Me. 250; Rose v. Truax, 21 Barb. 361; Dev- lin v. Brady, 32 Barb. 518; Oscanyan i>. Arms Company, 103 U. S. 261 ; Meguire v. Corwin, 3 MacArthur, 81. See further, post, 924, note. [^Contract of employment in which employee is assured of only a nominal salary and a large addition thereto is made contingent upon the adoption by a city council of a certain ordinance is void. Criehfield v. Ber- mudez Asphalt Paving Co., 174 III. 466, 51 N. E. 552, 42 L. R. A. 347. But the fact that the manager of a corporation was a member of the legislature which authorized the letting of a certain con- tract will not prevent the corporation's bidding for it if the manager is not a stockholder, and his pay is in no way CH. VI.] OF THE ENACTMENT OF LAWS. 199 Michigan provides that no new bill shall be introduced into either house of the legislature after the first fifty days of the session shall have expired; 1 and the Constitution of Maryland provides that no bill shall originate in either house within the last ten days of the session. 2 The purpose of these clauses is to prevent hasty and improvident legislation, and to compel, so far as any previous law can accomplish that result, the careful examination of proposed laws, or at least the affording of oppor- tunity for that purpose; which will not always be done when bills may be introduced up to the very hour of adjournment, and, with the concurrence of the proper majority, put immedi- ately upon their passage. 3 For the same reason it is required by the constitutions of several of the States, that no bill shall have the force of law until on three several days it be read in each house, and free dis- cussion allowed thereon ; unless, in case of urgency, four-fifths or some other specified majority of the house shall deem it affected by the success or failure of the bid. State v. Rickards, 16 Mont. 145, 40 Pac. 210, 28 L. R. A. 298, 50 Am. St. 476. An agreement upon a pecuniary con- sideration to withdraw opposition to granting of a pardon and to give assist- ance by solicitation and personal influence in procuring the same is against public policy and void. Deering & Co. v. Cun- ningham, 63 Kan. 174, 65 Pac. 263, 54 L. R. A. 410.3' 1 Art. 4, 28. 2 Art. 3, 26. In Arkansas there is a similar provision, limiting the time to three days. Art. 5, 24. 8 A practice has sprung up of evading these constitutional provisions by intro- ducing a new bill after the time has ex- pired when it may constitutionally be done, as an amendment to some pending bill, the whole of which, except the enact- ing clause, is struck out to make way for it. Thus, the member who thinks he may possibly have occasion for the intro- duction of a new bill after the constitu- tional period has expired, takes care to introduce sham bills in due season which he can use as stocks to graft upon, and which he uses irrespective of their char- acter or contents. The sham bill is per- haps a bill to incorporate the city of Siam. One of the member's constituents applies to him for legislative permission to con- struct a dam across the Wild Cat River. Forthwith, by amendment, the bill entitled a bill to incorporate the city of Siam has all after the enacting clause stricken out, and it is made to provide, as its sole object, that John Doe may construct a dam across the Wild Cat. With this title and in this form it is passed; but the house then considerately amends the title to correspond with the purpose of the bill, and the law is passed, and the constitution at the same time saved ! This trick is so transparent, and so clearly in violation of the constitution, and the evidence at the same time is so fully spread upon the record, that it is a mat- ter of surprise to find it so often resorted to. A bill to create a township may be amended after fifty days so as to make the same territory a county. Pack v. Barton, 47 Mich. 520, 11 N. W. 367. For a bill to create a township from certain territory may be substituted one to incor- porate a city in the same county. People v. McElroy, 72 Mich. 446, 40 N. W. 750. But a bill to create the County of L. out of the County of W. cannot be amended so as to make M County out of X. Coun- ty. Re Creation of New Counties, 9 Col. 624, 21 Pac. 472. See, also, Hall v. Steele, 82 Ala. 562, 2 So. 650. pf hill is amended in second house, it must be returned to first to be acted upon. It must finally pass both houses in same form. State v. Laiche, 105 La. 84, 29 So. 700.] 200 CONSTITUTIONAL LIMITATIONS. [CH. VI. expedient to dispense with this rule. The journals which each house keeps of its proceedings ought to show whether this rule is complied with or not; but in case they do not, the passage in the manner provided by the constitution must be presumed, in accordance with the general rule which presumes the proper discharge of official duty. 1 In the reading of a bill, it seems to be sufficient to read the written document that is adopted by the two houses; even though something else becomes law in consequence of its passage, and by reason of being referred to in it. 2 Thus, a statute which incorporated a military company by reference to its constitution and by-laws, was held valid not- withstanding the constitution and by-laws, which would acquire the force of law by its passage, were not read in the two houses as a part of it. 3 But there cannot be many cases, we should suppose, to which this ruling would be applicable. 1 Supervisors of Schuyler Co. v. Peo- ple, 25 111. 181 ; Miller v. State, 3 Ohio St. 475. In People v. Starne, 35 111. 121 , it is said the courts should not enforce a legis- lative act unless there is record evidence, from the journals of the two houses, that every material requirement of the constitution has been satisfied. And see Ryan v. Lynch, 68 111. 160. Contra, State v. McConnell, 3 Lea, 341 ; Blessing v. Galveston, 42 Tex. 641. The clause in the Constitution of Ohio is : " Every bill shall be fully and distinctly read on three different days, unless, in case of urgency, three-fourths of the house in which it shall be pending shall dispense with this rule ; " and in Miller v. State, 3 Ohio St. 475, and Pirn v. Nicholson, 6 Ohio St. 176, this provision was held to be merely directory. The distinctness with which any bill must be read cannot possibly be defined by any law ; and it must always, from the necessity of the case, rest with the house to determine finally whether in this particular the constitution has been complied with or not; but the rule re- specting three several readings on differ- ent days is specific, and capable of being precisely complied with, and we do not see how, even under the rules applied to statutes, it can be regarded as directory merely, provided it has a purpose beyond the mere regular and orderly transaction of business. That it has such a purpose, that it is designed to prevent hasty and improvident legislation, and is therefore not a mere rule of order, but one of pro- tection to the public interests and to the citizens at large, is very clear ; and inde- pendent of the question whether definite constitutional principles can be dispensed with in any case on the ground of their being merely directory, we cannot see how this can be treated as anything but mandatory. See People v. Campbell, 8 111. 406; McCulloch v. State, 11 Ind.424; Weill v. Kenfield, 54 Cal. Ill ; Chicot Co. c. Davies. 40 Ark. 200; QStockton v. Powell, 29 Fla. 1, 10 So. 688, 15 L. R. A. 42.] Reading twice by title and once at length is sufficient. People v. McElroy, 72 Mich. 44(5, 49 N. W. 750. One read- ing may be in committee of the whole. Re Reading of Bills, 9 Col. 641, 21 Pac. 477. FJ After bill is amended and passed as amended in the second house, it need not be read three times in first house before amendments are concurred in by that house. State v. Dillon, Fla. , 28 So. 781 (June 5, 1900) ~\ 2 Dew v. Cunningham, 28 Ala. 466. Congress may adopt a law by reference. District of Columbia c. Washington Gas Light Co., 3 Mackey, 343. See, further, Baird v. State, 52 "Ark. 326, 12 S. W. 656; Beard v. Wilson, id. 567; Titusville Iron Works v. Keystone Oil Co., 122 Pa. St. 627, 15 Atl. 917. 8 Bibb County Loan Association v. Richards, 21 Ga. 592. And see Pulford v. Fire Department, 31 Mich. 458. [[Where the laws of the State have been codified, and certain new provisions introduced, the code may be enacted as a whole by a CH. VI.] OF THE ENACTMENT OF LAWS. 201 It is also provided in the constitutions of some of the States that, on the final passage of every bill, the yeas and nays shall be entered on the journal. Such a provision is designed to serve an important purpose in compelling each member present to assume as well as to feel his due share of responsibility in legislation ; and also in furnishing definite and conclusive evi- dence whether the bill has been passed by the requisite majority or not. "The constitution prescribes this as the test by which to determine whether the requisite number of members vote in the affirmative. The office of the journal is to record the pro- ceedings of the house, and authenticate and preserve the same. It must appear on the face of the journal that the bill passed by a constitutional majority. These directions are all clearly imperative. They are expressly enjoined by the fundamental law as matters of substance, and cannot be dispensed with by the legislature." 1 For the vote required in the passage of any particular law the reader is referred to the constitution of his State. A simple majority of a quorum is sufficient, unless the constitution estab- lishes some other rule ; and where, by the constitution, a two- thirds or three -fourths vote is made essential to the passage of any particular class of bills, two-thirds or three-fourths of a quorum will be understood, unless the terms employed clearly indicate that this proportion of all the members, or of all those elected, is intended. 2 single statute, and when so done it issuf- called for them all, though the journal is ficient to read the enacting statute. The made to state falsely a separate vote on code need not be read at length. Central each. We need hardly say that this is of Georgia It. Co. v. State, 104 Ga. 831, a manifest violation of the constitution, 31 S. E. 631, 42 L R. A. 518-3 which requires separate action in every 1 Spangler v. Jacoby, 14 111. 297 ; Su- case ; and that, when resorted to, it is pervisors of Schuyler Co. v. People, 25 usually for the purpose of avoiding another III. 183; Ryan v. Lynch, 68 111. 160; provision of the constitution, which seeks Steckert v. East Saginaw, 22 Mich. 104 ; to preclude " log-rolling legislation," by People v. Commissioners of Highways, forbidding the incorporation of distinct 64 N. Y. 276 ; Post v. Supervisors, 105 measures in one and the same statute. U. S. 667. For a peculiar case, see Divi- 2 Southworth v. Palmyra & Jackson- sion of Howard County, 16 Kan. 194. As burg R. R. Co., 2 Mich. 287 ; State v. to what is sufficient evidence in a journal McBride, 4 Mo. 303; 29 Am. Dec. 636. of such vote. In re Roberts, 5 Col. 525. An By most of the constitutions either all act which is invalid because not passed the laws, or laws on some particular by the requisite number of votes may be subjects, are required to be adopted by validated indirectly by subsequent legis- a majority vote, or some other proportion lative action recognizing it as valid, of " all the members elected," or of " the Attorney-General v. Joy, 65 Mich. 94, whole representation." These and similar 20 N. W. 806. There have been cases, phrases require all the members to be as we happen to know, in which several taken into account whether present or hills have been put on their passage not. Where a majority of all the mem- together, the yeas and nays being once bers elected is required in the passage of 202 CONSTITUTIONAL LIMITATIONS. [CH. VI. The Title of a Statute. The title of an act was formerly considered no part of it; and although it might be looked to as a guide to the intent of the law-makers when the body of the statute appeared to be in any respect ambiguous or doubtful, 1 yet it could not enlarge or restrain the provisions of the act itself, 2 and the latter might therefore be good when it and the title were in conflict. The reason for this was that anciently titles were not prefixed at all, and when afterwards they came to be introduced, they were usually prepared by the clerk of the house in which the bill first passed, and attracted but little attention from the members. They indicated the clerk's understanding of the contents or purpose of the bills, rather than that of the house ; and they therefore were justly regarded as furnishing very little insight into the legislative intention. Titles to legislative acts, how- ever, have recently, in some States, come to possess very great importance, by reason of constitutional provisions, which not only require that they shall correctly indicate the purpose of the law, but which absolutely make the title to control, and exclude everything from effect and operation as law which is incorporated in the body of the act, but is not within the purpose indicated by the title. These provisions are given in the note, and it will readily be perceived that they make a very great change in the law. 3 a law, an ineligible person is not on that is present, a majority of those voting on account to be excluded in the count, the proposition is sufficient to carry it. Satterlee v. San Francisco, 22 Cal. 314. Kushville Gas Co. i;. Rushville, 121 Ind. [Where a proposition to incur bonded 206, 23 N. E. 72, 6 L. R. A. 315, 16 Am. indebtedness is voted on at a general St. 388; contra, a majority of those pres- election, and to be approved must* be ent necessary : Lawrence v. Ingersoll, 88 voted for by " two-thirds of the voters Tenn. 52, 12 S. W. 422, 6 L. K. A. 308, 17 . . . voting at an election to be held for Am. St. 870, and note.] that purpose," this means two-thirds of 1 United States v. Palmer, 3 Wheat, those voting on the particular proposition. 610; Burgett v. Burgett, 1 Ohio, 409; Montgomery Co. Fiscal Ct. v. Trimble, Mundt v. Sheboygan, &c. R. R. Co., 31 20 Ky., Law Rep. 827, 47 S. W. 773, 42 Wis. 451 ; Eastman v. McAlpin, 1 Ga. 157 ; L. R. A. 738. But see State i>. Foraker, Cohen v. Barrett, 5 Call, 195; Garrigas v. 46 Ohio St. 677, 23 N. E. 491, 6 L. R. A. Board of Com'rs, 39 Ind. 66 ; Matter of 422 ; Re Denny, 156 Ind. 104, 59 N. E. Middletown, 82 N. Y. 196 ; Tripp v. Goff, 359,51 L. R. A. 722; State v. Clark, 59 15 R.I. 299, 3 Atl. 591; Evernham v. Neb. 702, 82 N. W. 8. Where a speci- Hulit, 45 N. J. L. 53. See Dwarris on fied time must elapse after the passage of Statutes, 502. a bill before the law becomes operative, 2 Hadden v. The Collector, 5 Wall. 107. the time runs from the time of adoption Compare United States v. Union Pacific by the final house and not from that of R. R. Co., 91 U S 72. approval by the governor. State v. s The Constitutions of Minnesota, Kan- Mounts, 36 W. Va. 179, 14 S. E. 407, 16 sas, Maryland, Kentucky, Nebraska, and L. R. A. 243, and note. When a quorum Ohio provide that " no law shall embrace CH. VI.] OF THE ENACTMENT OF LAWS. 203 In considering these provisions it is important to regard, 1. The evils designed to be remedied. The Constitution of New Jersey refers to these as "the improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other." In the language of the Supreme Court of Louisiana, speaking of the former practice : " The title of an act often afforded no clue to its contents. Im- portant general principles were found placed in acts private or local in their operation; provisions concerning matters of prac- tice or judicial proceedings were sometimes included in the same more than one subject, which shall be ex- pressed in its title." Those of Michigan, New Jersey, and Louisiana are similar, substituting the word object for subject. The Constitutions of South Carolina, Alabama, Tennessee, Arkansas, and Cali- fornia contain similar provisions. The Constitution of New Jersey provides that, " to avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title." The Constitution of Missouri contains the following pro- vision : " No bill (except general approria- tion bills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated, and except bills passed under the third sub- division of section 44 of this article) shall contain more than one subject, which shall be clearly expressed in its title." The exception secondly referred to is to bills for free public-school purposes. The Con- stitutions of Indiana, Oregon, and Iowa provide that "every act shall embrace but one subject, and matters properly con- nected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title." The Constitution of Nevada provides that "every law enacted by the legislature shall embrace but one subject, and mat- ters properly connected therewith, which subject shall be briefly expressed in the title." Tlie Constitutions of New York and Wisconsin provide that " no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." The Constitution of Illinois is similar to that of Ohio, with the addi- tion of the saving clause found in the Con- stitution of Indiana. The provision in the Constitution of Colorado is similar to that of Missouri. In Pennsylvania the provision is that " no bill except general appropriation bills shall be passed contain- ing more than one subject, which shall be clearly expressed in its title." Const, of 1853. Whether the word object is to have any different construction from tlie word subject, as used in these provisions, is a question which may some time require discussion ; but as it is evidently em- ployed for precisely the same purpose, it would seem that it ought not to have. Compare Hingle 'v. State, 24 Ind. 28, and People v. Lawrence, 36 Barb. 177. The present Texas Constitution substitutes subject for object, which was in the earlier one, and it is held that the word is less restrictive, and that an act whose subject is the regulation of the liquor traffic is good though several distinct objects are covered, for instance, regulation.of liquor shops, collection of revenue, &c. Fahey v. State, 27 Tex. App. 146, 11 S. W. 108. In Michigan this provision does not apply to city ordinances. People v. Han- rahan, 76 Mich. 611, 42 N. W. 1124. QThe Michigan Constitution requires an enacting clause ; when this is omitted from the bill as it comes from the first house, the clerk of the next cannot insert it, but the bill must be sent back for the first house, to correct it. People v. Det- tenthaler, 118 Mich. 595, 77 N. W. 450, 44 L. R. A. 164. Any material change in title of an act after passing legislature and before presentation to the governor, renders the act void. Weis v. Ashley, 69 Neb. 494, 81 N. W. 318, 80 Am. St 704.3 204 CONSTITUTIONAL LIMITATIONS. [CH. VI. statute with matters entirely foreign to them, the result of which was that on many important subjects the statute law had become almost unintelligible, as they whose duty it has been to examine or act under it can well testify. To prevent any further accumu- lation to this chaotic mass was the object of the constitutional provision under consideration." 1 The Supreme Court of Michi- gan say : " The history and purpose of this constitutional provi- sion are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the State. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which, through dexterous management, clauses were inserted in bills of which the titles gave no intima- tion, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect. There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and opera- tion, and thus multiplying their number; but the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and to require that in every case the proposed measure should stand upon its own merits, and that the legislature should be fairly satisfied of its design when required to pass upon it." 2 The Court of Appeals of New York declare the object of this provision to be "that neither the members of the legislature nor the people should be misled by the title." 3 The Supreme Court 1 Walker r. Caldwell, 4 La. Ann. 298. of General James Jackson, and that its See Fletcher v. Oliver, 25 Ark. 298; Al- necessity was suggested by the Yazoo act. brecht . State, 8 Tex. App. 216, 34 Am. That memorable measure of the 17th of Rep. 737. January, 1795, as is well known, was 2 People v. Mahaney, 13 Mich. 481. smuggled through the legislature under And see Board of Supervisors v. Heenan, the caption of an act 'for the payment 2 Mich. 336; Davis v. Bank of Fulton, 31 of the late State troops,' and a declara- Ga. 69 ; St. Louis v. Tiefel, 42 Mo. 578 ; tion in its title of the right of the State State v. Losatee, 9 Baxt. 584. The Con- to the unappropriated territory thereof stitution of Georgia provided that " no ' for the protection and support of the law or ordinance shall pass containing any frontier settlements.'" The Ya*,oo act matter different from what is expressed in made a large grant of lands to a company the title thereof." In Mayor, &c. of Savan- of speculators. It constituted a prom- nah v. State, 4 Ga. 38, Lumpkin, J., says : inent subject of controversy in State " I would observe that the traditionary his- politics for many years. tory of this clause is that it was inserted 8 Sun Mutual Insurance Co. v. Mayor, in the Constitution of 1798 at the instance &c. of New York, 8 N. Y. 239. CH. VI.] OF THE ENACTMENT OF LAWS. 205 of Iowa say: "The intent of this provision of the constitution was, to prevent the union, in the same act, of incongruous matters, and of objects having no connection, no relation. And with this it was designed to prevent surprise in legislation, by having matter of one nature embraced in a bill whose title expressed another." 1 And similar expressions will be found in many other reported cases. 2 It may therefore be assumed as settled that the purpose of these provisions was : first, to prevent hodge-podge or " log-rolling " legislation ; second, to prevent sur- prise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might there- fore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or other- wise, if they shall so desire. 2. The particularity required in stating the object. The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient for the 1 State v. County Judge of Davis Co , 2 Iowa, 280. See State v. Silver, 9 Nev. 227. 2 See Conner v. Mayor, &c. of New York, 5 N. Y. 293 ; Davis v. State, 7 Md. 151. The Supreme Court of Indiana also understand the provision in the Constitu- tion of that State to be designed, among other tilings, to assist in the codification of the laws. Indiana Central Railroad Co. v. Potts, 7 Ind. 681 ; Hingle v. State, 24 Ind. 28. See People v. Institution, &c., 71 111. 229; State v. Ah Sam, 15 Nev. 27, 37 Am. Rep. 454 ; Harrison v. Super- visors, 51 Wis. 645, 8 N. W. 731 ; Al- brecht v. State, 8 Tex. App. 216, 34 Am. Rep. 737; Hope v. Mayor, &c., 72 Ga. 246 ; State v. Ranson, 73 Mo. 78 ; Bum- sted v. Govern, 47 N. J. L. 368, 1 All. 135. The form of the title during any stage of the legislation before it becomes a law is immaterial. Attorney-General v. Rice, 64 Mich 385, 31 N. W. 203; State v. 111. Centr. R. R. Co., 33 Fed. Rep. 730. These provisions do not apply to a revision of the statutes required by the constitution : State v. McDaniel, 19 S. C. 114 ; nor to an act antedating the consti- tution and appearing in a later compila- tion. Stewart v. Riopelle, 48 Mich. 177, 12 N. W. 36. [>nd see also Parks v. State, 110 Ga. 760, 36 S. E. 73, that defect in title is cured by later inclusion of the regulation in the code.] It is enough if the title of the chapter in an author- ized compilation is referred to in an amendatory act. People v. Howard, 73 Mich. 10, 40 N. W. 789 ; State v. Berka, 20 Neb. 375, 30 N. W. 267; but see Feibleman v. State, 98 Ind. 516. If the title of an original act is good, whether that of an amendatory act is in itself suffi- cient is unimportant. State v. Ranson, 73 Mo. 78; State v. Algood, 87 Tenn. 163, 10 S. W. 310. An amendment of an amended act may be upheld if the intention is plain, though there is confu- sion in the numbering of sections. Fen- ton v. Yule, 27 Neb. 758, 43 N. W. 1140. Under an amendatory title nothing can be enacted but what amends the old law. Matter which might have come under the original title, but did not, cannot be intro. duced. State v. Smith, 35 Minn. 257, 28 N. W. 241. See Tingue v. Port Chester, 101 N. Y. 294. n See also State v - Walker, 105 La. 492; 29 So. 973 ; Armstrong v. Mayer, 60 Neb. 423, 83 N. W. 401.] 206 CONSTITUTIONAL LIMITATIONS. [CH. VI. accomplishment of this general object to be provided for by a separate act relating to that alone, would not only be unreason- able, but would actually render legislation impossible. It has accordingly been held that the title of "an act to establish a police government for the city of Detroit," was not objectionable for its generality, and that all matters properly connected with the establishment and efficiency of such a government, including taxation for its support, and courts for the examination and trial of offenders, might constitutionally be included in the bill under this general title. Under any different ruling it was said, "the police government of a city could not be organized without a distinct act for each specific duty to be devolved upon it, and these could not be passed until a multitude of other statutes had taken the same duties from other officers before performing them. And these several statutes, fragmentary as they must necessarily be, would often fail of the intended object, from the inherent difficulty in expressing the legislative will when restricted to such narrow bounds." 1 The generality of a title is therefore no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection. 2 The legislature must determine for itself how broad and comprehen- sive shall be the object of a statute, and how much particularity shall be employed in the title in defining it. 3 One thing, how- 1 People v. Mahaney, 13 Mich. 481, 113 U. S. 135, 5 Sup. Ct. Rep. 371 ; Carter 495. See also Powell v. Jackson Com. Co. v. Sinton, 120 U. S. 617, 7 Sup. Ct. Council, 61 Mich. 129, 16 N. W. 369; Rep. 650; Daubman v. Smith, 47 N. J. L. Morforcl v. Unger, 8 Iowa, 82 ; Whiting 200 ; Clare v. People, 9 Col. 122, 10 Pac. v. Mount Pleasant, 11 Iowa, 482 ; Bright 799; Ewing v. Hoblitzelle, 85 Mo. 64. r. McCulloch, 27 Ind. 223 ; Mayor, &c. of * Woodson v. Murdock, 22 Wall. 351. Annapolis v. State, 30 Md. 112; Stater. In State v. Bowers, 14 Ind. 195, an act Union, 33 N. J. 360; Humboldt County came under consideration, the title to v. Churchill Co. Commissioners, 6 Nev. which was, "An act to amend the first 30 ; State v. Silver, 9 Nev. 227 ; State v. section of an act entitled ' An act con- Ranson, 73 Mo. 78. cerning licenses to vend foreign merchan- 2 Indiana Central Railroad Co. v. Potts, dise, to exhibit any caravan, menagerie, 7 Ind. 681 ; People v. Briggs, 60 N. Y. circus, rope and wire dancing puppet 653 ; People v. Wands, 23 Mich. 385 ; shows, and legerdemain,' approved June Washington Co. v. Franklin R. R. Co., 34 16, 1852, and for the encouragement of Md. 159; Benz v. Weber, 81 III. 288; agriculture, and concerning the licensing Johnson v. People, 83 111. 431 ; Fuller v. of stock and exchange brokers." It was People, 92 III. 182 ; Donnersberger v. held that the subject of the act was Prendergast, 128 111. 229, 21 N. E. 1 ; licenses, and that it was not unconstitu- Kurtz v. People, 33 Mich. 279 ; People tional as containing more than one sub- v. Haug, 68 Mich. 649, 37 N. W. 21 ; ject. But it was held also that, as the Montclair v. Ramsdell, 107 U. S. 147, licenses which it authorized and required 2 Sup. Ct. Rep. 391; Jonesboro v. Cairo, were specified in the title, the act could &c. R. R. Co., 110 U. S. 192, 4 Sup. Ct. embrace no others, and consequently a Rep. 67 ; Ackley School Dist. r. Hall, provision in the act requiring concerts CH. VI.] OF THE ENACTMENT OF LAWS. 207 ever, is very plain; that the use of the words "other purposes," which has heretofore been so common in the title to acts, with a view to cover any and every thing, whether connected with the main purpose indicated by the title or not. can no longer be of any avail where these provisions exist. As was said by the Supreme Court of New York in a case where these words had been made use of in the title to a local bill : " The words ' for other purposes ' must be laid out of consideration. They express nothing, r.nd amount to nothing as a compliance with this con- stitutional requirement. Nothing which the act could not embrace without them can be brought in by their aid. " 1 to be licensed was void. In State v. County Judge of Davis County, 2 Iowa, 280, '284, the act in question was entitled " An act in relation to certain State roads therein named." It contained sixty-six sections, in which it established some forty-six roads, vacated some, and pro- vided for the re-location of others. The court sustained the act. " The object of an act may be broader or narrower, more or less extensive ; and the broader it is, the more particulars will it embrace. . . . There is undoubtedly great objection to uniting so many particulars in one act, but so long as they are of the same nature, and come legitimately under one general determination or object, we can- not say that the act is unconstitutional." Upon this subject see Indiana Central Railroad Co. v. Potts, 7 Ind. 681, where it is considered at length. Also Brew- ster c. Syracuse, 19 N. Y. 116; Hall v. Bunte, 20 Ind. 304 ; People v. McCallum, 1 Neb. 182; Mauch Chunk v. McGee, 81 Pa. St. 433. But a title and act cov- ering four separate objects is bad. State r. Heywood, 38 La. Ann. 689. An act entitled " An act fixing the time and mode of electing State printer, defining his duties, fixing compensation, and repeal- ing all laws coming in conflict with this act," was sustained in Walker v, Dun- ham, 17 Ind. 483. In State r. Young, 47 Ind. 450, the somewhat strict ruling was made, that provisions punishing intoxi- cation could not be embraced in an act entitled " To regulate the sale of intoxi- cating liquors." In Kurtz v. People, 33 Mich. 279, the constitutional provision is said to be "a very wise and wholesome provision, intended to prevent legislators from being entrapped into the careless passage of bills ou matters foreign to the ostensible purpose of the statute as enti- tled. But it is not designed to require the body of the bill to be a mere repeti- tion of the title. Neither is it intended to prevent including in the bill such means as are reasonably adapted to se- cure the objects indicated by the title." And see Morton v. The Controller, 4 S. C. 430. No provision in a statute having natural connection with the subject ex- pressed in the title and not foreign to it. is to be deemed within the constitutional inhibition. Johnson v. Higgins, 3 Met. (Ky.) 566 ; McReynolds v. Smallhouse, 8 Bush, 477 ; Annapolis v. State, 30 Md. 112; Tuttle v. Strout, 7 Minn. 465; Gun- ter v. Dale Co., 44 Ala. 639 ; Ex parte Upshaw, 45 Ala. 234 ; State v. Price, 50 Ala. 568; Commonwealth v. Drewry, 15 Gratt. 1 ; People v. Hurlbut, 24 Mich. 44; State v. Union, 33 N. J. 350 ; State v. Sil- ver, 9 Nev. 227 ; Burke v. Monroe Co., 77 111. 610 ; Blood v. Mercelliott, 63 Pa. St. 391 ; Commonwealth v. Green, 58 Pa. St. 226 ; Walker v. Dunham, 17 Ind. 483. i Town of Fishkill v. Fishkill & Beek- man Plank Road Co., 22 Barb. 634. See, to the same effect, Johnson v. Spicer, 107 N. Y. 185; Ryeraon v. Utley, 16 Mich. 269 ; St. Louia . Tiefel, 42 Mo. 578. In a title to punish keepers of games of faro, etc., " el J.-'- does not mean "other purposes," but "and other games." Gar- vin v. State, 13 Lea, 162. An act entitled "An act to repeal certain acts therein named," is void. People v. Mellen, 32 111. 181. An act, having for its sole ob- ject to legalize certain proceedings of the Common Council of Janesville, but en- titled merely "An act to legalize and authorize the assessment of street im- provements and assessments," was held not to express the subject, because fail- 208 CONSTITUTIONAL LIMITATIONS. [CH. VI. 3. What is embraced by the title. The repeal of a statute on a given subject, it is held, is properly connected with the subject- matter of a new statute on the same subject; and therefore a repealing section in the new statute is valid, notwithstanding the title is silent on that subject. 1 So an act to incorporate a railroad company, it has been held, may authorize counties to subscribe to its stock, or otherwise aid the construction of the road. 2 So an act to incorporate the Firemen's Benevolent Association may lawfully include under this title provisions for levying a tax upon the income of foreign insurance companies at the place of its location, for the benefit of the corporation. 3 So an act to provide a homestead for widows and children was held valid, though what it provided for was the pecuniary means sufficient to purchase a homestead. 4 So an act "to regulate pro- ceedings in the county court " was held to properly embrace a provision giving an appeal to the District Court, and regulating the proceedings therein on the appeal. 5 So an act entitled "An act for the more uniform doing of township business " may properly provide for the organization of townships. 6 So it is held that the changing of the boundaries of existing counties is a matter properly connected with the subject of forming new counties out of those existing. 7 So a provision for the organiza- tion and sitting of courts in new counties is properly connected with the subject of the formation of such counties, and may be included in " an act to authorize the formation of new counties, ing to specify the locality. Durkee v. tion and qualification of justices of the Janesville, 26 Wis. 697. peace, and defining their jurisdiction, 1 Gabbertw. Railroad Co., 11 Ind. 365; powers, and duties in civil cases." Rob- Timm v. Harrison, 109 III. 693. The con- inson v. Skipworth, 23 Ind. 311. stitution under which this decision was 8 Firemen's Association v. Lounsbury, made required the law to contain but one 21 111. 611. Power to tax for school pur- subject, and matters properly connected poses may be given under an act "to therewith ; but the same decision was regulate public instruction." Smith v. made under the New York Constitution, Bohler, 72 Ga. 546. which omits the words here italicized ; 4 Succession of Lanzetti, 9 La. Ann. and it may well be doubted whether the 329. legal effect of the provision is varied by 5 Murphey v. Menard, 11 Tex. 673. the addition of those words. See Guil- See State v. Ah Sam, 15 Ner. 27, 37 Am. ford v. Cornell, 18 Barb. 615; People v. 464. Father Matthew Society, 41 Mich. 67, 1 fl Clinton v. Draper, 14 Ind. 295. An N. W. 931. act to consolidate the acts as to a city 2 Supervisors, &c. v. People, 25 111. and to define the duty of the mayor will 181 ; Mahomet v. Quackenbush, 117 U. S. not allow conferring judicial power on 608, 6 Sup. Ct. Rep. 858 ; Hope v. Mayor, him. Brown v. State, 79 Ga. 324, 4 S. E. &c., 72 Ga. 246; Connor v. Green Pond, 861. &c. R. R. Co., 23 S. C. 427. So a pro- 7 Haggard n. Hawkins, 14 Ind. 299. vision for the costs on appeal from a And see Puncombe >\ Prindle, 12 Iowa, justice is properly connected with the 1; State v. Hoagland, 51 N. J. L. 62, 16 subject of an act entitled " of the elec- Atl. 166. CH. VI.] OF THE ENACTMENT OF LAWS. and to change county boundaries. " J Many other cases are referred to in the note, which will further illustrate the views of the courts upon this subject. There has been a general dis- position to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted. 2 1 Brandon v. State, 16 Ind. 197. In this case, and also in State v. Bowers, 14 Ind. 195, it was held that if the title to an original act is sufficient to embrace the matters covered by the provisions of sin act amendatory thereof, it is unneces- sary to inquire whether the title of an amendatory act would, of itself, be suffi- cient. And see Morford v. Unger, 8 Iowa, 82. 2 Green v. Mayor, &c-., R. M. Charlt. 368; Martin v. Broach, 6 Ga. 21 ; Protho v. Orr, 12 Ga. 36 ; Wheeler v. State, 23 Ga. 9 ; Hill ?.-. Commissioners, 22 Ga. 203; Jones v. Columbus, 25 Ga. 610; Denham v. Holeman, 26 Ga. 182 ; Allen v. Tison, 50 Ga. 374 ; Ex parte Conner, 51 Ga. 571 ; Briesvvick v. Mayor, &c. of Brunswick, 51 Ga. 639; Howell v. State, 71 Ga. 224; People r. McCann, 16 N. Y. 58 ; Williams v. People, 24 N. Y. 405 ; People v. Allen, 42 N. Y. 404 ; Huber v. People, 49 N. Y. 132 ; People v. Rochester, 50 N. Y. 525 ; Wenzler v. People, 58 N. Y. 516 ; People v. Dudley, 58 N. Y. 323 ; People v. Quigg, 59 N. Y. 83 ; Harris v. People, 59 N. Y. 599 ; In re Flatbush, 60 N. Y. 398 ; People v. Willsea, 60 N. Y. 507 ; Matter of Met. Gas Light Co., 85 N. Y. 526 ; People v. Whitloek, 92 N. Y. 191 ; Ensign v. Barse, 107 N. Y. 329, 14 N. E. 400, 15 N. E. 401; Railroad Co. v. Whiteneck, 8 Ind. 217 ; Wilkins v. Miller, 9 Ind. 100; Foley r. State, 9 Ind. 363; Gillespie v. State, 9 Ind. 380; Mewherter v. Price, 11 Ind. 199; Reed v. State, 12 Ind. 641; Henry n. Henry, 13 Ind. 250; Igoe v. State, 14 Ind. 239; Sturgeon r. Kitchens, 22 Ind. 107 ; Lauer c. State, 22 Ind. 461 ; Central Plank Road Co. v. Hannaman, 22 Ind. 484; Garrigus v. Board of Commission- ers, 39 Ind. 66; McCaslin v. State, 44 Ind. 151 ; Williams v. State, 48 Ind. 306 ; Jackson r. Reeves, 53 Ind. 231 ; Railroad Co. v. Gregory, 15 111. 20; Firemen's Association v. Ixmnsbury, 21 111. 511 ; Ottawa r. People, 48 III. 233; Prescott v. City of Chit-ago, 60 111. 121 ; People v. Brislin, 80 111. 423 ; McAunich v. Missis- sippi, &c. R. R. Co., 20 Iowa, 338 ; Slate v. Squires, 26 Iowa, 340 ; Chiles v. Drake, 2 Met. (Ky.) 146; Phillips v. Bridge Co., 2 Met (Ky.) 219; Louisville, &c. Co. v. Ballard, 2 Met. (Ky.) 177; Phillips v. Covington, &c. Co., 2 Met. (Ky.) 219; Chiles v. Monroe, 4 Met. (Ky.) 72 ; Hind v. Rice, 10 Bush, 528 ; Cannon v. Hemp- hill, 7 Tex. 184; Battle v. Howard, 13 Tex. 345; Robinson v. State, 15 Tex. 311; Antonio v. Gould, 34 Tex. 49; Ex parte Hogg, 36 Tex. 14 ; State v. Shadle, 41 Tex. 404; State v. McCracken, 42 Tex. 383; Laefon v. Dufoe, 9 La. Ann. 329; State v. Harrison, 11 La. Ann. 722; Bossier v. Steele, 13 La. Ann. 433 ; Wil- liams v. Payson, 14 La. Ann. 7 ; Wisners v. Monroe, 25 La. Ann. 598 ; Whited v. Lewis, 25 La. Ann. 568 ; State v. Lafayette County Court, 41 Mo. 221 ; State v. Mil- ler, 45 Mo. 495 ; State v. Gut, 13 Minn. 341; Stuart v. Kinsella, 14 Minn. 524; Mills v. Charleton, 29 Wis. 400 ; Evans v. Sharpe, 29 Wis. 564; Single v. Super- visors of Marathon, 38 Wis. 363 ; Harri- son v. Supervisors, 51 Wis. 645, 8 N. W. 731; People v. McCallum, 1 Neb. 182; Smails v. White, 4 Neb. 353; Cutlip v. The Sheriff, 3 W. Va. 588 ; Shields v. Bennett, 8 W. Va. 74 ; Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Weaver v. Lapsely, 43 Ala. 224; Ex parte Upshaw, 45 Ala. 234 ; Lockhart v. Troy, 48 Ala. 579; Walker v. State, 49 Ala. 329; Simpson v. Bailey, JJ Oreg. 515; Pope v. Phifer, 3 Heisk. 682 ; Cannon v. Mathes, 8 Heisk. 504 ; State v. Newark, 34 N. J. 264; Gifford v. R. R. Co., 10 N. J. Eq. 171; Keller v. State, 11 Md. 525; Park- inson v. State, 14 Md. 184 ; Ryerson v. Utley, 16 Mich. 269; People v. Denahy, 20 Mich. 319; People v. Hurlbut, 24 Mich. 44 ; Kurtz v. People, 33 Mich. 279; Hathaway v. New Baltimore, 48 Mich. 251, 12 N. W. 186; Attorney-Ger- eral v. Joy, 55 Mich. 94, 20 N. W. 806 ; Dorsey's Appeal, 72 Pa. St. 192; Alle- 14 210 CONSTITUTIONAL LIMITATIONS. [CH. VI. 4. The effect if the title embrace more than one object. Perhaps in those States where this constitutional provision is limited in gheny County Home's Case, 77 Pa. St. 77 ; Morton v. Comptroller-General, 4 S. C. 430; State v. Gurney, 4 S. C. 520; Norman v. Curry, 27 Ark. 440 ; Division of Howard County, 15 Kan. 194 ; Simp- son' v. Bailey, 3 Oreg. 515 ; Ex parte Wells, 21 Fla. 280 ; Bead v. Plattsmouth, 107 U. S. 568, 2 Sup. Ct, Rep. 208 ; Otoe Co. v. Baldwin, 111 U. S. 1, 4 Sup. Ct. Rep. 265. In Davis v. Woolnough, 9 Iowa, 104, an act entitled " An act for revising and consolidating the laws incorporating the city of Dubuque, and to establish a city court therein," was held to express by its title but one object, which was, the revis- ing and consolidating the laws incorpo- rating the city ; and the city court, not being an unusual tribunal in such a mu- nicipality, might be provided for by the act, whether mentioned in the title or not. "An act to enable the supervisors of the city and county of New York to raise money by tax," provided for raising money to pay judgments then existing, and also any thereafter to be recovered ; and it also contained the further provi- sion, that whenever the comptroller of the city should have reason to believe that any judgment then of record or there- after obtained had been obtained by col- lusion, or was founded in fraud, he should take the proper and necessary means to open and reverse the same, &c. This provision was held constitutional, as prop- erly connected with the subject indicated by the title, and necessary to confine the payments of the tax to the objects for which the moneys were intended to be raised. Sharp v. Mayor, &c. of New York, 31 Barb. 572. In O'Leary v. Cook Co., 28 111. 534, it was held that a clause in an act incorporating a college, prohibiting the sale of ardent spirits within a dis- tance of four miles, was so germaine to the primary object of the charter as to be properly included within it. By the first section of " an act for the relief of the creditors of the Lockport and Niagara Falls Railroad Company," it was made the duty of the president of the corporation, or one of the directors to be appointed by the president, to advertise and sell the real and personal estate, in- cluding the franchise of the company, at public auction, to the highest bidder. It was then declared that the sale should be absolute, and that it should vest in the purchaser or purchasers of tlie property, real or personal, of the company, all the franchise, rights, and privileges of the corporation, as fully and as absolutely as the same were then possessed by the company. The money arising from the sale, after paying costs, was to be applied, first, to the payment of a certain judg- ment, and then to other liens according to priority; and the surplus, if any, was to be divided ratably among the other cred- itors, and then, if there should be an over- plus, it was to be divided ratably among the then stockholders. By the second section of the act, it was declared that the purchaser or purchasers should have the right to sell and distribute stock to the full amount which was authorized by the act of incorporation, and the several amendments thereto; and to appoint an election, choose directors, and organize a corporation anew, with the same powers as the existing company. There was then a proviso, that nothing in the act should impair or affect the subscriptions for new stock, or the obligations or liabil- ities of the company, which had been made or incurred in the extension of the road from Lockport to Rochester, &c. The whole act was held to be constitu- tional. Hosier v. Hilton, 15 Barb. 657. An act for the relief of the village of Clinton covers curative provisions rel- ative to the action of commissioners for village water-supply. Board Water Commissioners v. Dwight, 101 N. Y. 9. An act to regulate foreclosure of real estate covers provisions for sales on execution as well as mortgage. Gillitt v. McCarthy, 34 Minn. 318, 25 N. W. 637. One to prohibit sale of liquor covers civil damage provisions. Durein v. Pontious, 34 Kan. 353, 8 Pac. 428. And see Mills v. Charleton, 29 Wis. 400, a very lib- eral case ; Erlinger v. Boneau, 51 111. 94 ; State r. Newark, 34 N. J. 236; Smith v. Commonwealth, 8 Bush, 108; State v. St. Louis Cathedral, 23 La. Ann. 730; Simpson v. Bailey, 3 Oreg. 515; Neifing v. Pontiac, 56 111. 172. QA title, " An Act CH. VI.] OF THE ENACTMENT OF LAWS. 211 its operation to private and local bills, it might be held that an act was not void for embracing two or more objects which were indicated by its title, provided one of them only was of a private and local nature. It has been held in New York that a local bill was not void because embracing general provisions also; 1 and if they may constitutionally be embraced in the act, it is presumed they may also be constitutionally embraced in the title. But if the title to the act actually indicates, and the act itself actually embraces, two distinct objects, when the constitu- tion says it shall embrace but one, the whole act must be treated as void, from, the manifest impossibility in the court choosing between the two, and holding the act valid as to the one and void as to the other. 2 5. The effect where the act is broader than the title. But if the act is broader than the title, it may happen that one part of it can stand because indicated by the title, while as to the object not indicated by the title it must fail. Some of the State con- stitutions, it will be perceived, have declared that this shall be the rule; but the declaration was unnecessary; as the general rule, that so much of the act as is not in conflict with the con- stitution must be sustained, would have required the same declaration from the courts. If, by striking from the act all that relates to the object not indicated by the title, that which is left is complete in itself, sensible, capable of being executed, and wholly independent of that which is rejected, it must be sustained as constitutional. The principal questions in each case will therefore be, whether the act is in truth broader than to Facilitate the Carriage of Passengers shall be expressed in the title," where and Property by Railroad Companies " is the act deals with a vast variety of sub- insufficient to cover a restriction upon jects, many of which are totally distinct the powers of eminent domain possessed from each other, and some of which have by certain railroad companies. Thomas no relation to civil procedure. Lewis v. Wabash, St. L. & P. R. Co., 40 Fed. Adm'x of Lewis v. Dunne, 134 Cal. 291, Rep. 126, 7 L. R. A. 145. And an 66 Pac. 478, 55 Lv R. A/833, 86 Am. St. amendment to "An Act for the Incor- 257-3 poration of Manufacturing Companies," l People v. McCann, 16 N. Y. 58. An which makes it include mercantile com- act as to paving Eighth Avenue cannot panies without changing the title, is provide for changing the grade of inter- void. Eaton v. Walker, 76 Mich. 579, secting streets. In re Blodgett, 89 N. Y. 43 N. W. 638, 6 L. R. A. 102. Word 392. " purchase " does not include expropria- 2 Antonio v. Gould, 34 Tex. 49 ; State tion by eminent domain. Enterprise r. v. McCracken, 42 Tex. 383. All the cases Smith, 62 Kan. 815, 62 Pac. 324.] recognize this doctrine. fJState v. Fergu- O title, "An Act to Revise the Code son, 104 La. 249, 28 So. 917, 81 Am. St. of Civil Procedure of the State of Cali- 123, furnishes a recent instance. For a fornia " does not comply with the consti- valuable discussion and collection of cases tutional provision that " every act shall upon questions growing out of titles to embrace but one subject, which subject enactments, see 79 Am. St. 456-4&6.J 212 CONSTITUTIONAL LIMITATIONS. [CH. VI. the title ; and if so, then whether the other objects in the act are so intimately connected with the one indicated by the title that the portion of the act relating to them cannot be rejected, and leave a complete and sensible enactment which is capable of being executed. 1 As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might with entire propriety have been embraced in one enact- ment with the matters indicated by the title, but which must now be excluded because the title has been made .unnecessarily restrictive. The courts cannot enlarge the scope of the title; they are vested with no dispensing power; the constitution has made the title the conclusive index to the legislative intent as to what shall have operation; it is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so. Thus, "an act concerning promissory notes and bills of exchange " provided that all promissory notes, bills of exchange, or other instruments in writing, for the payment of money, or for the delivery of specific articles, or to convey property, or to perform any other 1 People v. Briggs, 50 N. Y. 553. See Van Riper v. North Plainfield, 43 N. J. 349; Central, &c. R. R. Co. i>. People, 5 Col 39 ; Foley v. State, 9 Ind. 363 ; Kuhns ?. Kramis, 20 Ind. 490 ; Grubbs v. State, 24 Ind. 295; State v. Young, 47 Ind. 150; Robinson v. Bank of Darien, 18 Ga. 65 ; Williams v. Payson, 14 La. Ann. 7 ; Wea- ver v. Lapsley, 43 Ala. 224; Walker v. State, 49 Ala. 329 ; Boyd v. State, 53 Ala. 601 ; Ex parte Moore, 62 Ala. 471 ; State v. Miller, 45 Mo 495 ; Wisners v. Monroe, . 25 La. Ann. 598 ; Dorsey's Appeal, 72 Pa. St. 192; Allegheny County Home's Case, 77 Pa. St. 77; Tecumseh v. Phillips, 5 Neb. 305; State v. Lancaster Co., 17 Neb. 85, 22 N. W. 228; Matter of Van Ant- werp, 66 N. Y. 261 ; People v. O'Brien, 38 N. Y. 193; Matter of Metropolitan Gas. Co., 85 N. Y. 526; Lockport v. Gay- lord, 61 111. 276 ; Middleport v. Insurance Co., 82 111. 562 ; Welch v. Post, 99 111. 471 ; Donnersberger v. Prendergast, 128 III. 229, 21 N. E. 1 ; Davis v. State, 7 Md. 151 ; Stiefel v. Maryland Inst, 61 Md. 144; State v. Banker's, &c. Assn., 23 Kan. 499 ; Rader v. Union, 39 N. J. 509; Evernliam v. Hulit, 45 N. J. L. 53; Miss., &c. Boom Co. v. Prince, 34 Minn. 79, 24 N. W. 344; State v. Palmes, 23 Fla. 620, 3 So. 171; Jones v. Thompson, 12 Bush, 394 ; QEquit. G. Trust Co. v. Donahoe, Del., 49 Atl. 372 (May 16, 1901) ; Har- ris i>. State, 110 Ga. 887, 36 S. E. 232; State v. McDonald, 25 Wash. 122, 64 Pac. 912 ; Re Werner, 129 Cal. 567, 62 Pac. 97 ; Howard v. Schneider, 10 Kan. App. 137, 62 Pac. 435; People v. Curry, 130 Cal. 82, 62 Pac. 516 ; State v. Cornell, 60 Neb. 276, 694, 83 N. W. 72.] In Tennessee it is held that if an act contains more than one subject, it is void. State v. McCann, 4 Lea, 1. " None of the provisions of a statute should be regarded as unconstitu- tional where they all relate, directly or indirectly, to the same subject, have a natural connection, and are not foreign to the subject expressed in the title." Phillips w. Bridge Co., 2 Met. (Ky.) 219, approved, Smith v. Commonwealth, 8 Bush, 112. See Ex parte Upshaw, 4~> Ala. 234; Stewart v. Father Mattliew Society, 41 Mich. 67, 1 N. W. 931. QThat title is broader than the act is no objec- tion. State v. Burgdoerfer, 107 Mo. 1, 1 T S. W. 646, 14 L. R. A. 846 ; Dover /-. Grand Rapids Fire Ins. Co., 124 Mic'.i. 455, 83 N. W. 124, 83 Am. St. 338.] CH. VI.] OF THE ENACTMENT OF LAWS. 213 stipulation therein mentioned, should be negotiable, and as- signees of the same might sue thereon in their own names. It was held that this act was void, as to all the instruments men- tioned therein except promissory notes and bills of exchange: 1 though it is obvious that it would have been easy to frame a title to the act which would have embraced them all, and which would have been unobjectionable. It has also been held that an act for the preservation cf the Muskegon River Improvement could not lawfully provide for the levy and collection of tolls for the payment of the expense of constructing the improvement, as the operation of the act was carefully limited by its title to the future. 2 So also it has been held that "an act to limit the numbers of grand jurors, and to point out the mode of their selection, defining their jurisdiction, and repealing all laws inconsistent therewith," could not constitutionally contain pro- visions which should authorize a defendant in a criminal case, on a trial for any offence, to be found guilty of any lesser offence necessarily included therein. 3 These cases must suffice upon this point; though the cases before referred to will furnish many similar illustrations. In all we have said upon this subject we have assumed the constitutional provision to be mandatory. Such has been the view of the courts almost without exception. In California, however, a different view has been taken, the court saying: " We regard this section of the constitution as merely directory ; 1 Mewherterv Price, 11 Ind. 199. See Miller v. Jones, 80 Ala. 80; People v. also State v. Young, 47 Ind. 150; Jones Garlway, 61 Mich. 285, 28 N. W. 101 ; r. Thompson, 12 Bush, 394; Rushing v. People v. Hauck, 70 Mich. 396, 38 N. W. Sebree, 12 Bush, 198; State v. Kinsella, 269; Cantril v. Sainer, 59 Iowa, 26, 12 14 Minn. 624 ; Grover v. Trustees Ocean N. W. 753. See State v. Circuit Court, 50 Grove, 45 N. J. L. 399. N. J. L. 585, 15 All. 272. 2 Ryerson v. Utley, 16 Mich. 269. See For further illustration of provisions further Weaver v. Lapsley, 43 Ala. 224 ; held bad because not within the title, see Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. Ragio v. State, 86 Teon/272, 6 S. W. 401 ; 9; Stuart v. Kinsella, 14 Minn. 524; In re Paul, 94 N. Y^497, 20 N. W. 549; Rogers r. Manuf. Imp. Co., 109 Pa. St. 109. Anderson v. Hill, 54 Mich. 477; North- In Cutlip v. Sheriff, 3 W. Va. 588, it was western Mfg. Co. r. Wayne Cir. Judge, held that if an act embraces two objects, 8 Mich. 381, 25 N. W. 371 ; Sewickley only 01 e of which is specified in the title, v. Sholes, 118 Pa. St. 165, 12 Atl. 302; the whole is void ; but this is opposed to Jersey City v. Elmendorf, 47 N. J. L. the authorities generally. 283; Savannah, F. & W. Ry. Co. v. Geigor, 3 Foley v. State, 9 Ind. 363 ; Gillespie 22 Fla. 669. ([Addition of words " and so r. State, 9 Ind. 380. See also Indiana forth" to title is worthless. Ex pnrte Cent. Railroad Co. v. Potts, 7 Ind. 681 ; Lacy, 93 Va. 159, 24 S. E. 930, 31 L. R. A. State v. Squires, 26 Iowa, 840; State v. 822. Provision for building a court house Lafaj-et'e Co. Court, 41 Mo. 39; People cannot be included in "an act to incor- v. Denahy, 20 Mich. 349. porate the town of Luverne." Thompson Prohibitory enactments are not covered v. Luverne, 128 Ala. 507, 29 So. 326-3 by a title to "regulate" liquor selling. 214 CONSTITUTIONAL LIMITATIONS. [CH. VI. and, if we were inclined to a different opinion, would be careful how we lent ourselves to a construction which must in effect obliterate almost every law from the statute-book, unhinge the business and destroy the labor of the last three years. The first legislature that met under the constitution seems to have con- sidered this section as directory; and almost every act of that and the subsequent sessions would be obnoxious to this objec- tion. The contemporaneous exposition of the first legislature, adopted or acquiesced in by every subsequent legislature, and tacitly assented to by the courts, taken in connection with the fact that rights have grown up under it, so that it has become a rule of property, must govern our decision." 1 Similar views have also been expressed in the State of Ohio. 2 These cases, and especially what is said by the California court, bring forcibly before our minds a fact, which cannot be kept out of view in considering this subject, and which has a very important bearing upon the precise point which these decisions cover. The fact is this: that whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid even of moral obligation, and to be therefore habitually disregarded. To say that a provision is directory, seems, with many persons, to be equivalent to say- ing that it is not law at all. That this ought not to be so must be conceded; that it is so we have abundant reason and good authority for saying. If therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law, so great as that which is done by the habitual disregard, by any depart- ment of the government, of a plain requirement of that instru- ment from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed. Upon this subject we need only refer here to what we have said concerning it in another place. 3 Amendatory Statutes. It has also been deemed important, in some of the States, to provide by their constitutions, that " no act shall ever be revised 1 Washington v. Page, 4 Cal. 388. See v. Nicholson, 6 Ohio St. 177 ; State v. Pierpont v. Crouch, 10 Cal. 315; Matter Covington, 29 Ohio St. 102. of Boston Mining, &c. Co., 51 Cal. 624; 3 Ante,p. 106 et seq. See State v. Tufly, Weill v. Kenfield, 54 Cal. 111. 19 Nev. 391. 2 Miller v. State, 3 Ohio St. 475; Pirn CH. VI.] OF THE ENACTMENT OF LAWS. 215 or amended by mere reference to its title ; but the act revised or section amended shall be set forth and published at full length." 1 Upon this provision an important query arises. Does it mean that the act or section revised or amended shall be set forth and published at full length as it stood before, or does it mean only that it shall be set forth and published at full length as amended or revised? Upon this question perhaps a consideration of the purpose of the provision may throw some light. "The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for the express purpose. 1 This is the provision as it is found in the Constitutions of Indiana, Nevada,Ore- gon, Texas, and Virginia. In Kansas, New Jersey, Ohio, Michigan, Louisiana, Wisconsin, [[Utah,] Missouri, and Mary- land there are provisions of similar im- port. In Tennessee the provision is : " All acts which revive, repeal, or amend former laws, shall recite, in their caption or otherwise, the title or substance of the law repealed, revived, or amended." Art. 1, 17. See State v. Gaines, 1 Lea, 734 ; McGhee v. State, 2 Lea, 622. The provision in Nebraska (Const, of 1875) is peculiar. " No law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed." Art. 3, 11. Under a like provision that any section amended is thereby repealed, it is held in Alabama that an amend- ment to an amended .statute is valid. State v. Warford, 84 Ala. 15, 3 So. 911. So where the amendment impliedly re- pealed the original act, an amendment to the amended act was held valid, as the mistake in referring to a repealed stat- ute should not defeat the intention of the legislature. Com. r. Kenneson, 143 Mass. 418, 9 N. E. 761. Under provisions forbidding enactments by reference a law complete in itself may provide for carry- ing out its purposes by reference to pro- cedure established by other acts. Camp- bell v. Board, &c., 47 N. J. L. 347 ; Be Camp v. Hibernia R. R. Co., id. 43. But the act must be complete in all essentials. Christie v. Bayonne, 48 N. J. L. 407, 5 All. 805; Donohugh v. Roberts, 15 Phila. 144. In Texas it appears to beheld that the legislature may repeal a definite portion of a section without the re-enactment of the section with such portion omitted. Chambers v. State, 25 Tex. 307. But quaere of this. Any portion of a section amended which is not contained in the amendatory section as set forth and pub- lished is repealed. State v. Ingersoll, 17 Wis. 631. [[But where the provisions of an act applying to a certain city are made to apply to another, this is not an amendment of the original act. Phrenix Fire Assurance Co. v. Montgomery Fire Dept., 117 Ala. 631, 23 So. 843, 42 L. R. A. 468.] Further on this subject see Blakemore v. Dolan, 50 Ind. 194 ; People v. Wright, 70 111. 388 ; Jones v. Davis, 6 Neb. 33 ; Sovereign v. State, 7 Neb. 409 ; Gordon v. People, 44 Mich. 485, 7 N. W. 69; State v. Gerger, 65 Mo. 306; Van Riper v. Parsons, 40 N. J. 123, 29 Am. Rep. 210; Fleishnerr. Chad wick, 5 Oreg. 152; State v. Cain, 8 W. Va. 720; State v. Henderson, 32 La. Ann. 779; Colwell v. Chamberlin, 43 N. J. 387; [[State v. Beddo, 22 Utah, 432, 63 Pac. 96 J 216 CONSTITUTIONAL LIMITATIONS. [CFI. VI. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation." 1 If this is a correct view of the purpose of the provision, it does not seem to be at all important to its accomplishment that the old law should be republished, if the law as amended is given in full, with such reference to the old law as will show for what the new law is substituted. Nevertheless, it has been decided in Louisiana that the constitution requires the old law to be set forth and published; 2 and the courts of Indiana, assuming the provision in their own constitution to be taken from that of Louisiana after the decisions referred to had been made, at one time adopted and followed them as precedents. 3 It is believed, however, that the general understanding of the provision in question is different, and that it is fully complied with in letter and spirit, if the act or section revised or amended is set forth and published as revised or amended, and that anything more only tends to render the statute unnecessarily cumbrous. 4 It should be observed that statutes which amend others by impli- cation are not within this provision ; and it is not essential that they even refer to the acts or sections which by implication they amend. 5 But repeals by implication are not favored; and the repugnancy between two statutes should be very clear to warrant a court in holding that the later in time repeals the other, when 1 People v. Mahaney, 13 Mich. 497. 66 Pac. 478, 55 L. R. A. 833, 86 Am. St. See Mok v. Detroit, &c. Association, 30 257, an act for the revision of the code Mich. 511; Bush v. Indianapolis, 120 Ind. of Civil Procedure of the State was held 476, 22 N. E. 422. unconstitutional which did not provide 2 Walker v. Caldwell, 4 La. Ann. 297 ; for republication where the act amended Heirs of Duverge v. Salter, 5 La. Ann. over 400 sections, repealed nearly 100, 94. Contra, Shields v. Bennett, 8 W. Va. and added many new ones. There is a 74. valuable note to this case upon the power 8 Langdon v. Applegate, 5 Ind. 327 ; of the legislature to enact a code or Rogers v. State, 6 Ind. 31. These cases compilation of laws or make extended were overruled in Greencastle, &c. Co. v. amendments to a system of laws by a State, 28 Ind. 382. single statute. 55 L. R. A. 833.] 4 See Tuscaloosa Bridge Co. v. Olm- 5 Spencer v. State, 5 Ind. 41; Bran- stead, 41 Ala. 9 ; People v. Pritchard, 21 ham v. Lange, 16 Ind. 497 ; People v. Mich. 236; People v. McCallum, 1 Neb. Mahaney, 13 Mich. 481; Lehman v. Mc- 182; State v. Draper, 47 Mo. 29; Boon- Bride, 15 Ohio St. 573; Shields v. Ben- ville v. Trigg, 46 Mo. 288 ; State v. Pow- nett, 8 W. Va. 74 ; Baum v. Raphael, 67 der Mfg. Co., 50 N. J. L. 75, 11 Atl. 127. Cal. 361 , Home Ins. Co. v. Taxing Dis- A whole act need be set out only when trict, 4 Lea, 644; Swartwout v. Railroad all its sections are amended. State v. Co., 24 Mich. 389 ; Scales v. State, 47 Thruston, 92 Mo. 325, 4 S. W. 930. Under Ark. 476, 1 S. W. 769; Denver Circle R. such a constitutional provision where a Co. v. Nestor, 10 Col. 403, 15 Pac. 714; statute simply repeals others it is not Stater. Cross, 38 Kan. 696, 17 Pac. 190; necessary to set them out. Falconer v. Evernham v. Hulit, 45 N. J. L. 53; Sher- Robinson, 46 Ala. 340. Compare Bird ?. idan v. Salem, 14 Oreg. 328, 12 Pac. 925. Wasco County, 3 Oreg. 282. FJIn Lewis, Compare State v. Wright, id. 365, 12 Pac. Atlm'x of Lewis, v. Dunne, 134 Cal. 291, 708. CH. VI.] OF THE ENACTMENT OF LAWS. 217 it does not in terms purport to do so. 1 This rule has peculiar force in the case of laws of special and local application, which are never to be deemed repealed by general legislation except upon the most unequivocal manifestation of intent to that effect. 2 It was a parliamentary rule that a statute should not be repealed 'at the same session of its enactment, unless a clause permitting it was inserted in the statute itself; 3 but this rule did not apply to repeals by implication, 4 and it is possibly not recognized in this country at all, except where it is incorporated in the State constitution. 6 1 See cases cited in last note ; also Towle v. Marrett, 3 Me. 22, 14 Am. Dec. 206 ; Naylor v. Field, 29 N. J. 287 ; State v. Berry, 12 Iowa, 58; Attorney-General v. Brown, 1 Wis. 613 ; Dodge v. Gridley, 10 Ohio, 173; Him v. State, 1 Ohio St. 20 ; Saul v. Creditors, 5 Mart. N. s. 669, 16 Am. Dec. 212; New Orleans v. Southern Bank, 15 La. Ann. 89; Blain v. Bailey, 25 Ind. 165; Water Works Co. v. Burkhart, 41 Ind. 364 ; Swann v. Buck, 40 Miss. 268 ; Davis v. State, 7 Md. 151 ; State c. The Treasurer, 41 Mo. 16; Somerset & Stoys- town Road, 74 Pa. St. 61 ; Kilgore v. Commonwealth, 94 Pa. St. 495; McCool i'. Smith, 1 Black, 459; State v. Cain, 8 W. Va. 720; Fleischner v. Chad wick, 5 Oreg. 152; Covington v. East St. Louis, 78 111. 518; East St. Louis i;. Maxwell, 99 111. 439 ; In re Ryan, 45 Mich. 173, 7 N. W. 819; Connors r. Carp River Iron Co., 64 Mich. 168, 19 N. W. 938; Parker v. Hub- bard, 64 Ala. 203; Iverson v. State, 52 Ala. 170; Gohen v. Texas Pacific R. R. Co., 2 Woods, 346 ; State v. Commis- sioners, 37 N. J. 240; Attorney-General i:. Railroad Companies, 35 Wis. 425 ; Rounds v. Waymart, 81 Pa. St. 395, Greeley r. Jacksonville, 17 Fla. 174; State v. Smith, 44 Tex. 443 ; Henderson's Tobacco, 11 Wall. 652; Cape Girardeau Co. Ct. v. Hill, 118 U. S. 68, 6 Sup. Ct. Rep. 951. If the two are repugnant in part, the earlier is pro tanto repealed. Hearn v. Brogan, 64 Miss. 334 ; Jefferson- ville, &c. R. R. Co. v. Dunlap, 112 Ind. 93, 13 N. E. 403. A law which merely re- enacts a former one does not repeal an intermediate act qualifying such former act. The new is qualified like the old. Gaston v. Merriam, 33 Minn. 271, 22 N. W. 614. It is a familiar rule, however, that when a new statute is evidently intended to cover the whole subject to which it relates, it will by implication repeal all prior stntutes on that subject. See United States v. Barr, 4 Sawyer, 254; United States v. Claflin, 97 U. S. 546 ; Red Rock v. Henry, 106 U. S. 596, 1 Sup. Ct. Rep. 434 ; Dowdell v. State, 58 Ind. 333 ; State v. Rogers, 10 Nev. 319; Tafoya v. Garcia, 1 New Mex. 480; Campbell's Case, 1 Dak. 17, 46 N. W. 504; Andrews v. People, 75 111. 605; Clay Co. v. Chickasaw Co., 64 Miss. 534, 1 So. 753 ; Lyddy r. Long Island City, 104 N. Y. 218; Stingle r. Nevel, 9 Oreg. 62; State v. Studt, 31 Kan. 245, I Pac. 635. But a local option law merely suspends, does not repeal a former liquor law, and after its adoption offences against the latter while in force may be prose- cuted. Winterton v. State, 65 Miss. 238, 3 So. 735. A statute cannot be repealed by non-user. Homer r. Com., 106 Pa. St. 221 ; Pearson v. Int. Distill. Co., 72 Iowa, 348, 34 N. W. 1. 2 Cass v. Dillon, 2 Ohio St. 607; Fos- dick r. Perrysburg, 14 Ohio St. 472 ; Peo- ple v. Quigg, 69 N. Y. 83; McKenna v. Edmundstone, 91 N. Y. 231; Clark v. Davenport, 14 Iowa, 494 ; Oleson v. Green Bay, &c. R. R. Co., 36 Wis. 383 ; Coving- ton v. East St. Louis, 78 III. 548 ; Chesa- peake, &c. Co. v. Hoard, 16 W. Va. 270; Rounds v. Waymart, 81 Pa. St. 395; E.c parte Schmidt, 24 S. C. 363 ; New Bruns- wick v. Williamson, 44 N. J. L. 165; Mc- Gruder v. State, 83 Ga. 616, 10 S. E. 281. 8 Dwarris on Statutes, Vol. I. p. 269 ; Sedgw on Stat. and Const. Law, 122; Smith on Stat. and Const. Construction, 908. * Ibid. And see Spencer v. State, 5 Ind. 41. 6 Spencer v. State, 5 Ind. 41; Attor- ney-General v. Brown, 1 Wis. C13; Smith 218 CONSTITUTIONAL LIMITATIONS. [CH. VI. Signing of Bills. When a bill has passed the two houses, it is engrossed for the signatures of the presiding officers. This is a constitutional requirement in most of the States, and therefore cannot be dis- pensed with; 1 though, in the absence of any such requirement, it would seem not to be essential. 2 And if, by the constitution of the State, the governor is a component part of the legislature, the bill is then presented to him for his approval, (a) Approval of Laws. The qualified veto power (6) of the governor is regulated by the constitutions of those States which allow it, and little need on Stat. and Const. Construction, 908; Mobile & Ohio Railroad Co. v. State, 29 Ala. 573; Strauss r. Heiss, 48 Md. 292. The later of two acts passed at the same session controls when they are incon- sistent. Thomas v. Collins, 58 Mich. 64, 24 N. W. 553 ; Watson v. Kent, 78 Ala. 602. But the fact of later publication when action is taken at the same time will not work a repeal. In re Hall, 38 Kan. 670, 17 Pac. 649. Where acts passed on different days are approved on the same day, the presumption is that the one passed last was signed last. State v. Davis, 70 Md. 237, 16 All. 529. 1 Moody v. State, 48 Ala. 115, 17 Am. Rep. 28; State v. Mead, 71 Mo. 266; Burritt v. Com'rs, 120 111. 322, 11 N. E. 180; State v. Kiesewetter, 45 Ohio St. 254, 12 N. E. 807 ; Hunt v. State, 22 Tex. App. 396, 3 S. W. 233. Signature by presiding officers and assistant secretary is enough. State v. Glenn, 18 Nev. 34, 1 Pac. 186. But if the journal shows the passage of an act and the governor signs it, absence of signature of the presi- dent of the Senate will not invalidate it. Taylor v. Wilson, 17 Neb. 88, 22 N. W. 119. After an act has been passed over a veto, it need not be again cer- tified. State v. Denny, 118 Ind. 449, 21 N. E. 274 The bill as signed must be the same as it passed the two houses. People o. Platt, 2 S. C. N. s. 150; Legg v. Annapolis, 42 Md. 203 ; Brady c. West 50 Miss. 68. But a clerical error that would not mislead is to be overlooked. People v. Supervisor of Onondaga, 16 Mich. 254. Compare Smith v. Hoyt, 14 Wis. 252, where the error was in publi- cation. And so should accidental and immaterial changes in the transmission of the bill from one house to the other. Larrison v. Railroad Co., 77 111. 11 ; Wal- nut v. Wade, 103 U. S. 683. See Wen- ner v. Thornton, 98 111. 156. When a mistake in enrolment made an approval void, signatures and approval on a cor- rect roll after the adjournment were held to make the act valid. Dow v. Beidel- man, 49 Ark. 325, 6 S. W. 297. In Mary- land the governor may refuse to consider any bill sent him not authenticated by the Great Seal. Hamilton v. State, 61 Md. 14. Qln Nevada where the governor vetoes an act after the adjournment of the legislature, the next legislature may pass it over his veto. Upon such pas- sage, the presiding officers of the two houses must thereupon sign it. State v. Howell, Nev. , 64 Pac. 466 (April 8, 1901).] 2 Speer v. Plank Road Co., 22 Pa. St. 376. (a) Upon power to withdraw the bill from the governor before he has acted on it and before the expiration of the time given him in which to act upon it, see McKenzie v. Moore, 92 Ky. 216, 17 S. W. 483, 14 L. R. A. 251, and note. The bill presented must be that which passed the legislature. Any change after passage and before signature by the governor prevents the bill's becoming a law. State v. Wendler, 94 Wis. 369, 68 N. W. 759.] (l>) QWhere the statute provides that the mayor "shall have a negative upon the action of the aldermen in laying out highways and in all other matters," such pro- CH. VI.] OF THE ENACTMENT OF LAWS. 219 be said here beyond referring to the constitutional provisions for information concerning them. It has been held that if the governor, by statute, was entitled to one day, previous to the adjournment of the legislature, for the examination and approval of laws, this is to be understood as a full day of twenty-four hours, before the hour of the final adjournment. 1 It has also been held that, in the approval of laws, the governor is a com- ponent part of the legislature, and that unless the constitution allows further time for the purpose, he must exercise his power of approval before the two houses adjourn, or his act will be void. 2 But under a provision of the Constitution of Minnesota, that the governor may approve and sign "within three days of i Hyde v. White, 24 Tex. 137. The five days allowed in New Hampshire for the governor to return bills which have not received his assent, include days on which the legislature is not in session, if it has not finally adjourned. Opinions of Judges, 45 N. H. 607. But the day of presenting the bill to the governor should be excluded. Opinions of Judges, 45 N. H. 607 ; Iron Mountain Co. v. Haight, 39 Cal. 540; In re Senate Resolution, 9 Col. 632, 21 Pac. 475. And if the last day falls on Sunday he may return the bill on Monday, id. As to the power of the governor, derived from long usage, to approve and sign bills after the ad- journment of the legislature, see Solomon v. Cartersville, 41 Ga. 157. Neither house can, without the con- sent of the other, recall a bill after its transmission to the governor. People v. Devlin, S3 N. Y. 269. In Colorado the legislature may request the return of a bill in the governor's hands, but he may respond or not as he likes. If he sends back the bill, it may be reconsidered and amended. Re Recalling Bills, 9 Col. 630, 21 Pac. 474. But in Virginia no such recall is authorized. Wolfe v. McCaull, 76 Va. 876. The delivery of a bill passed by the two houses to the secretary of the com- monwealth according to custom, is not a presentation to the governor for his ap- proval, within the meaning of the con- stitutional clause which limits him to a certain number of days after the presen- tation of the bill to veto it. Opinions of the Justices, 99 Mass. 636. 2 Fowler v. Peirce, 2 Cal. 165. The court also held in this case that, notwith- standing an act purported to have been approved before the actual adjournment, it was competent to show by parol evi- dence that the actual approval was not until the next day. In support of this ruling, People v. Purdy, 2 Hill, 31, was cited, where it was held that the court might go behind the statute-book and inquire whether an act to which a two- thirds vote was essential had constitution- ally passed. That, however, would not be in direct contradiction of the record, but it would be inquiring into a fact con- cerning which the statute was silent, and other records supplied the needed infor- mation. In Indiana it is held that the courts cannot look beyond the enrolled act to ascertain whether there has been compliance with the requirement of the constitution that no bill shall be pre- sented to the governor within two days next previous to the final adjournment. Bender r. State, 53 Ind. 254. [In Mary- land a bill may be signed within six days after it is submitted, although the legisla- ture may have adjourned. The bill may even be presented after the adjournment. Lankford v. Somerset Co., 73 Md. 105, 20 Atl. 1017, 22 Atl. 412, 11 L. R. A. 491. See upon this question, paper of E. D. Renick and cases cited in it, 32 Am. Law Rev. 208.] vision applies only to the legislative action of the aldermen. It does not apply to their determination of a contest as to membership. Gate v. Martin, 70 N. H. 135, 46 Atl. 54, 48 L. R. A. 613-3 220 CONSTITUTIONAL LIMITATIONS. [CH. VI. the adjournment of the legislature any act passed during the last three days of the session," it has been held that Sundays were not to be included as a part of the prescribed time ; 1 and under the Constitution of New York, which provided that, "if any bill shall not be returned by the governor 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 legislature shall, by their adjournment, prevent its return, in which case it shall not be a law, " 2 it was held that the governor might sign a bill after the adjournment, at any time within the ten days. 3 The governor's approval is not complete until the bill has passed beyond his control by the constitutional and customary mode of legislation ; and at any time prior to that he may reconsider and retract any approval previously made. 4 His 1 Stinson v. Smith, 8 Minn. 366. See also Corwin v Comptroller, 6 Rich. 390. In South Carolina a bill sent to the gov- ernor on the last day of the first session may be signed by him on the first day of the next regular session, notwithstanding an adjourned session has intervened. Ar- nold v. McKellur, 9 S. C. 335. In Miss- issippi if a bill is presented within ten days of the adjournment, it may be ap- proved at any time before the third day of the next session. State v. Coahoma Co . 64 Miss. 358, 11 So. 601. n The Con- stitution of Michigan contains a provi- sion similar to that of Minnesota above quoted, except that it provides five days instead of three. Held, that such provi- sion makes a signature good that is at- tached within the required ten days after passage of bill and not later than five days after adjournment. The question arose in regard to a bill passed less than ten days and more than five days before adjournment, and signed after adjourn- ment, but within ten days after passage of bill. Detroit v. Chapin, 108 Mich. 136, 66 N. W. 587, 37 L. R. A. 391 ; and upon right of executive to sign bills after ad- journment of legislature, see note to this case in L. R. A. In Nevada, upon bills sent to him during last five days of ses- sion, governor may act within ten days after adjournment. State v. Howell, Nev. , 64 Pac. 466 (April 8, 1901)."] 2 See McNeil v. Commonwealth, 12 Bush, 727. In computing the ten days, the first day should be excluded. Beau- Heau v. Cape Girardeau, 71 Mo. 392. 8 People v. Bowen, 30 Barb. 24, and 21 N. Y. 517. See also State v. Fagnn, 22 La. Ann. 645 ; Solomon K. Commis- sioners, 41 Ga. 157; Darling v. Boesch, 67 Iowa, 702, 25 N. W. 887 ; Seven Hickory v. Ellery, 103 U. S. 423. It seems that in Nebraska, in a similar provision, by "adjournment" is meant the final ad- journment ; and if the same session is adjourned for a time in this case two months the governor must act upon the bill within the specified number of days. Miller v. Hurford, 11 Neb. 377, 9 N. W. 477. Where on the tenth day the governor sent a bill with his objec- tions to the house with which it origin- ated, but the messenger, finding the house had adjourned for the day, re- turned it to the governor, who retained it, it was held that to prevent the bill be- coming a law it should have been left with the proper officer of the house in- stead of being retained by the governor. Harpending v. Haight, 39 Cal. 189. In response to an unauthorized request, the governor returned a bill without objec- tions. The constitution provided that a bill, if not returned in five days, became law without his signature. Held, that his return was not covered by the provision, and that the bill became a law notwith- standing. Wolfe v. McCaull, 76 Va. 876. * People P. Hatch, 19 III. 283. An act apportioning the representatives was passed by the legislature and transmitted to the governor, who signed his approval thereon by mistake, supposing at the time that he was subscribing one of sev- CH. VI.] OF THE ENACTMENT OF LAWS. 221 disapproval of a bill is communicated to the house in which it originated, with his reasons; and it is there reconsidered, and may be again passed over the veto by such vote as the constitu- tion prescribes. 1 eral other bills tlien lying before him, and claiming his official attention ; his private secretary thereupon reported the bill to the legislature as approved, not by the special direction of the governor, nor with his knowledge or special assent, but merely in his usual routine of customary duty, the governor not being conscious that he had placed his signature to the bill until after information was brought to him of its having been reported ap- proved ; whereupon he sent a message to the speaker of the house to which it was reported, stating that it had been inad- vertently signed and not approved, and on the same day completed a veto message of the bill, which was partially written at the time of signing his approval, and transmitted it to the house where the bill originated, having first erased his signa- ture and approval. It was held that the bill had not become a law. It had never passed out of the governor's possession after it was received by him until after he had erased his signature and approval ; and the court was of opinion that it did not pass from his control until it had be- come a law by the lapse of ten days under the constitution, or by his depositing it with his approval in the office of the sec- retary of state. It had long been the practice of the governor to report, for- merly througli the secretary of state, but recently through his private secretary, to the house where bills originated, his approval of them ; but this was only a matter of formal courtesy, and not a proceeding necessary to the making or imparting vitality to the law. By it no act could become a law which without it would not be a law. Had the governor returned the bill itself to the house, with his message of approval, it would have passed beyond his control, and the ap- proval cou'd not have been retracted, unless the bill had been withdrawn by consent of the house ; and the same re- sult would have followed his filing the bill with the secretary of state with his approval subscribed. The Constitution of Indiana provides (art. 5, 14) that, " if any bill shall not be returned by the governor within three days, Sundays excepted, after it shall have been presented to him, it shall be a law without his signature, unless the gen- eral adjournment shall prevent its return ; in which case it shall be a law unless the governor, within five days next after the adjournment, shall file such bill, with his objections thereto, in the office of the secretary of state," &c. Under this pro- vision it was held that where the gover- nor, on the day of the final adjournment of the legislature, and after the adjourn- ment, filed a bill received that day, in the office of the secretary of state, without approval or objections thereto, it thereby became a law, and he could not file ob- jections afterwards. Tarlton v. Peggs, 18 Ind. 24. See State v. Whisner, 35 Kan. 271, 10 Pac. 852. If in approving a bill the governor signs in the wrong place, he may sign again after adjournment. Nat. Land and Loan Co. v. Mead, 60 Vt. 257, 14 Atl. 689. An act of the legislature takes effect when the governor signs it, unless the constitution contains some different pro- vision. Hill v. State, 5 Lea, 725. 1 A bill which, as approved and signed, differs in important particulars from the one signed, is no law. Jones v. Hutchin- son, 43 Ala. 721. If the governor sends back a bill which has been submitted to him, stating that he cannot act upon it because of some sup- posed informality in its passage, this is in effect an objection to the bill, and it can only become a law by further action of the legislature, even though the governor may have been mistaken as to the sup- posed informality. Birdsall v. Carrick, 3 Nev. 154. If an act passed over a veto is duly authenticated otherwise, the ab- sence of the governor's signature will not vitiate it. Hovey v. State, 119 Ind. 395, 21 N. E. 21. In practice the veto power, although very great and exceedingly important in this country, is obsolete in Great Britain, and no king now ventures to resort to it. As the Ministry must at all times be in accord with the House of Commons, 222 CONSTITUTIONAL LIMITATIONS. [CH. VI. Other Powers of the Governor. The power of the governor as a branch of the legislative department is almost exclusively confined to the approval of bills. As executive, he communicates to the two houses infor- mation concerning the condition of the State, and may recom- mend measures to their consideration, but he cannot originate or introduce bills. He may convene the legislature in extra session whenever extraordinary occasion seems to have arisen ; but their powers when convened are not confined to a considera- tion of the subjects to which their attention is called by his proclamation or his message, and they may legislate on any subject as at the regular sessions. 1 An exception to this state- ment exists in those States where, by the express terms of the constitution, it is provided that when convened in extra session the legislature shall consider no subject except that for which they were specially called together, or which may have been submitted to them by special message of the governor. 2 When Acts are to take Effect. The old rule was that statutes, unless otherwise ordered, took effect from the first day of the session on which they were passed ; 3 except where the responsibility is taken of dissolving the Parliament and appeal- ing to the people, it must follow that any bill which the two houses have passed must be approved by the monarch. The approval has become a matter of course, and the governing power in Great Britain is substantially in the House of Com- mons. 1 Bl. Com. 184-185, and notes. Q After the bill has been vetoed it is dead unless repassed by the constitutional majorities, even though it received those majorities on its first passage. State v. Crounse, 36 Neb. 835, 55 N. W. 246, 20 L. R. A. 265.] 1 The Constitution of Iowa, art. 4, 11, provides that the governor " may, on extraordinary occasions, convene the General Assembly by proclamation, and shall state to both houses, when assem- bled, the purpose for which they have been convened." It was held in Morford v. Unger, 8 Iowa, 82, that the General Assembly, when thus convened, were not confined in their legislation to the pur- poses specified in the message. " When lawfully convened, whether in virtue of the provision in the constitution or the governor's proclamation, it is the ' General Assembly ' of the State, in which the full and exclusive legislative authority of the State is vested. Where its business at such session is not restricted by some constitutional provision, the General As- sembly may enact any law at a special or extra session that it might at a reg- ular session. Its powers, not being de- rived from the governor's proclamation, are not confined to the special purpose for which it may have been convened by him." 2 Provisions to this effect will be found in the Constitutions of Illinois, Michigan, Missouri, and Nevada ; perhaps in some others. As to what matters are held em- braced in such call, see State v. Shores, 31 W. Va. 491, 7 S. E. 413 ; Baldwin v. State, 21 Tex. App. 591, 3 S. W. 109 ; [Wells v. Mo. Pac. R. Co., 110 Mo. 286, 19 S. W. 530, 15 L. R. A. 847 ; Chicago, B. & Q. R. Co. v. Wolfe, 61 Neb. 502, 86 N. W. 441 ; People v. Curry, 130 Cal. 82, 62 Pac. 516.] Confirmation of appointment by the Sen- ate may be made. The limitation is upon legislation. People v. Blanding, 63 Cal. 333. 8 1 Lev. 91 ; Latless v. Holmes, 4 T. R. 660 ; Smith v. Smith, Mart. (N. C.) 26 ; CH. VI.] OF THE ENACTMENT OF LAWS. 223 but this rule was purely arbitrary, based upon no good reason, and frequently working very serious injustice. The present rule is that an act takes effect from the time when the formalities of enactment are actually complete under the constitution, unless it is otherwise ordered, or unless there is some constitutional or statutory rule on the subject which prescribes otherwise. 1 By the Constitution of Mississippi, 2 "no law of a general nature, unless otherwise provided, shall be enforced until sixty days after the passage thereof." By the Constitution of Illinois, 3 no act of the General Assembly shall take effect until the first day of July next after its passage, unless in case of emergency (which emergency shall be expressed in the preamble or body of the act) the General Assembly shall, by a vote of two-thirds of all the members elected to each house, otherwise direct. By the Con- stitution of Michigan, 4 no public act shall take effect, or be in force, until the expiration of ninety days from the end of the session at which the same is passed, unless the legislature shall otherwise direct by a two-thirds vote of the members elected to each house. These and similar provisions are designed to secure, as far as possible, the public promulgation of the law before parties are bound to take notice of and act under it, and to obviate the injustice of a rule which should compel parties at their peril to know and obey a law of which, in the nature of things, they could not possibly have heard; they give to all parties the full constitutional period in which to become ac- Hamlet v. Taylor, 5 Jones L. 36. This 725. Others hold that it has effect from is changed by 33 Geo. III. c. 13, by which the moment of its approval by the gov- statutes since passed take effect from the ernor. People v. Clark, 1 Cal. 406. See day when they receive the royal assent, In re Wynne, Chase Dec. 227. unless otherwise ordered therein. 2 Art. 7, 6. See State v. Coahoma J Matthews v. Zane, 7 Wheat. 164 ; Co., 64 Miss. 358. Rathbone v. Bradford, 1 Ala. 312; Branch 8 Art. 3, 23. The intention that an Bank of Mobile v. Murpliy, 8 Ala. 119; act shall take effect sooner must be ex- Heard v. Heard, 8 Ga. 380; Goodsell v. pressed clearly and unequivocally; it is Boynton, 2 111. 555; Dyer v. State, Meigs, not to be gathered by intendment and in- 237; Parkinson v. State, 14 Md. 184; ference. Wheeler v. Chubbuck, 16 111. Freeman v. Gaither, 76 Ga. 741. An 361. See Hendrickson v. Hendrickson, 7 early Virginia case decides that " from Ind. 13. and after the passing of this act " -would Where an act is by its express terms to exclude the day on which it was passed, take effect after publication in a specified King v. Moore, Jefferson, 9. Same ruling newspaper, every one is bound to take in Parkinson v. Brandenberg, 35 Minn, notice of this fact ; and if before such 294, 28 N. W. 919. On the other hand, publication negotiable paper is issued it is held in some cases that a statute under it, the purchasers of such paper which takes effect from and after its pas- can acquire no rights thereby. McClure sage, has relation to the first moment of v. Oxford, 94 U. S. 429 ; following George that day. In re Welman, 20 Vt. 653; v. Oxford, 16 Kan. 72. Mallory v. Hiles, 4 Met. (Ky.) 53 ; Wood * Art. 4, 20. v. Fort, 42 Ala. 641 ; Hill v. State, 5 Lea, 224 CONSTITUTIONAL LIMITATIONS. [CH. VI. quainted with the terms of the statutes which are passed, except when the legislature has otherwise directed; and no one is bound to govern his conduct by the new law until that period has elapsed. 1 And the fact that, hy the terms of the statute, something is to be done under it before the expiration of the constitutional period for it to take effect, will not amount to a legislative direction that the act shall take effect at that time, if the act itself is silent as to the period when it shall go into operation. 2 The Constitution of Indiana provides 3 that "no act shall take effect until the same shall have been published and circulated in the several counties of this State, by authority, except in case of emergency ; which emergency shall be declared in the pream- ble, or in the body of the law." Unless the emergency is thus declared, it is plain that the act cannot take earlier effect. 4 But the courts will not inquire too nicely into the mode of pub- lication. If the laws are distributed in bound volumes, in a manner and shape not substantially contrary to the statute on that subject, and by the proper authority, it will be held suffi- cient, notwithstanding a failure to comply with some of the directory provisions of the statute on the subject of publication. 5 The Constitution of Wisconsin, on the other hand, provides 6 that "no general law shall be in force until published;" thus 1 Price v. Hopkin, 13 Mich. 318. A also held in the case first named, and in provision that " subsequent to the pas- Wheeler v. Chubbuck, 16 111. 361, that sage of this act " the law should be as " the direction must be made in a clear, declared, does not come into force till distinct, and unequivocal provision, and after ninety days. Andrews v. St. Louis could not be helped out by any sort of Tunnel Co., 16 Mo. App. 299. See, how- intendment or implication," and that the ever, Smith v. Morrison, 22 Pick. 430 ; act must all take effect at once, and not Stine v. Bennett, 13 Minn. 153. Compare by piecemeal. State v. Bond, 4 Jones (N. C.), 9. Where 8 Art. 4, 28. a law lias failed to take effect for want 4 Carpenter v. Montgomery, 7 Blackf. of publication, all parties are chargeable 415; Hendrickson v. Hendrickson, 7 Ind. with notice of that fact. Clark v. Janes- 13 ; Mark v. State, 15 Ind. 98. The leg- ville, 10 Wis. 136. islature must necessarily in these cases 2 Supervisors of Iroquois Co. v. Ready, be judge of the existence of the emer- 34 111. 293. An act for the removal of a gency. Carpenter v. Montgomery, supra. county seat provided for taking the vote The Constitution of Tennessee provides of the electors of the county upon it on that "'No law of a general nature shall the 17th of March, 1863, at which time take effect until forty days after its pas- the legislature had not adjourned. It was sage, unless the same, or the caption, not expressly declared in the act at what shall state that the public welfare requires time it should take effect, and it was that it should take effect sooner." Art. therefore held that it would not take 1, 20. effect until sixty days from the end of 6 State v. Bailey, 16 Ind. 46. See the session, and a vote of the electors further, as to this constitutional provi- taken on the 17th of March was void, sion, Jones v. Gavins, 4 Ind. 305. See also Rice r. Ruddiman, 10 Mich. 125 ; Art. 7, 21. Rogers v. Vass, 6 Iowa, 405. And it was CH. VI.] OF THE ENACTMENT OF LAWS. 225 leaving the time when it should take effect to depend, not alone upon the legislative direction, but upon the further fact of publi- cation. But what shall be the mode of publication seems to be left to the legislative determination. It has been held, however, that a general law was to be regarded as published although printed in the volume of private laws, instead of the volume of public laws, as the statute of the State would require. 1 But an unauchorized publication as, for example, of an act for the incorporation of a city, in two local papers instead of the State paper is no publication in the constitutional sense. 2 The Constitution of Louisiana provides that "No law passed by the General Assembly, except the general appropriation act, or act appropriating money for the expenses of the General Assembly, shall take effect until promulgated. A law shall be considered promulgated at the place where the State journal is published, the day after the publication of such law in the State journal, and in all other parts of the State twenty days after such publi- cation." Under similar provisions in the Civil Code, before the adoption of this constitution, it was held that "the promulgation of laws is an executive function. The mode of promulgation may be prescribed by the legislature, and differs in different countries and at different times. . . . Promulgation is the extrinsic act which gives a law, perfect in itself, executory force. Unless the law prescribes that it shall be executory, from its passage, or from a certain date, it is presumed to be executory only from its promulgation." 3 But it is competent for the legislature to provide in an act that it shall take effect from and after its passage ; and the act will have operation accordingly, though not published in the official gazette. 4 In Pennsylvania, whose constitution then in force also failed to require publication of laws, the publication was nevertheless held to be necessary before the act could come into operation; but as the doings of the legislature were public, and the journals published regularly, it was held that every enactment must be 1 Matter of Boyle, 9 Wis. 264. Under statute, which does not change its sub- this provision it has been decided that a stance or legal effect, will not invalidate law establishing a municipal court in a the publication. Smith v. Hoyt, 14 Wis. city is a general law. Matter of Boyle, 252. supra. See Eitel v. State, 33 Ind. 201. 2 Clark v. Janesville, 10 Wis. 136. Also a statute for the removal of a county See, further, Mills v. Jefferson, 20 Wis. seat. State v. Lean, 9 Wis. 279. Also a 60. statute incorporating a municipality, or 8 State v. Ellis, 17 La. Ann. 390, 392. authorizing it to issue bonds in aid of a * State v. Judge, 14 La. Ann. 486; railroad. Clark v. Janesville, 10 Wis. Thomas v. Scott, 23 La. Ann. 689. In 136. And see Scott v. Clark, 1 Iowa, 70. Maryland a similar conclusion is reached. An inaccuracy in the publication of a Parkinson v. State, 14 Md. 184. 15 226 CONSTITUTIONAL LIMITATIONS. [CH. VI. deemed to be published in the sense necessary, and the neglect to publish one in the pamphlet edition of the laws would not destroy its validity. 1 The Constitution of Iowa provides that "no law of the General Assembly, passed at a regular session, of a public nature, shall take effect until the fourth day of July next after the passage thereof. Laws passed at a special session shall take effect ninety days after the adjournment of the General Assembly by which they were passed. If the General Assembly shall deem any law of immediate importance, they may provide that the same shall take effect by publication in newspapers in the State. " 2 Under this section it is not competent for the legislature to con- fer upon the governor the discretionary power which the consti- tution gives to that body, to fix an earlier day for the law to take effect. 3 1 Peterman v. Huling, 31 Pa. St. 432. 2 Art. 3, 26. See Hunt v. Murray, A joint resolution of a general nature 17 Iowa, 313. requires the same publication as any 3 Scott v. Clark, 1 Iowa, 70 ; Pilkey v. other law. State v. School Board Fund, Gleason, 1 Iowa, 522. 4 Kan. 261. CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 227 CHAPTER VII. OF THE CIRCUMSTANCES UNDER WHICH A LEGISLATIVE ENACTMENT MAY BE DECLARED UNCONSTITUTIONAL. IN the preceding chapters we have examined somewhat briefly the legislative power of the State, and the bounds which expressly or by implication are set to it, and also some of the conditions necessary to its proper and valid exercise. In so doing it has been made apparent that, under some circumstances, it may be- come the duty of the courts to declare that what the legislature has assumed to enact is void, either from want of constitutional power to enact it, or because the constitutional forms or condi- tions have not been observed. In the further examination of our subject, it will be important to consider what the circum- stances are under which the courts will feel impelled to exercise this high prerogative, and what precautions should be observed before assuming to do so. (a) It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. The legislative and judicial are co-ordinate departments of the government, of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or super- vision of the other, without an unwarrantable assumption by that other of power which, by the constitution, is not conferred upon it. The constitution apportions the powers of government, but it does not make any one of the three departments subordi- (a) [Tor a very learned discussion of the origin and scope of the American doc- trine of constitutional law treating of the power of the courts to declare statutes void because in conflict with the constitution, see a paper by the late Professor James B. Thayer read before the Congress on Jurisprudence and Law Reform, and pub- lished in the October, 1893, number of the " Harvard Law Review." 7 Harv. L. Rev. 129. Other views of this suliject are presented by Mr. Richard C. McMurtrie in 83 Am Law Register, N. 8. 506 ; by Governor Pennoyer in 29 Am. Law Review, 550 and 856, and by Mr. Allen in the same volume at page 847.] 228 CONSTITUTIONAL LIMITATIONS. [CH. VII. nate to another, when exercising the trust committed to it. 1 The courts may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the constitution as the paramount law, whenever a legis- lative enactment comes in conflict with it. 2 But the courts sit, not to review or revise the legislative action, but to enforce the legislative will; and it is only where they find that the legisla- ture has failed to keep within its constitutional limits, that they are at liberty to disregard its action; and in doing so, they only do what every private citizen may do in respect to the mandates of the courts when the judges assume to act and to render judg- ments or decrees without jurisdiction. "In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the legisla- ture is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law." 3 Nevertheless, in declaring a law unconstitutional, a court must necessarily cover the same ground which has already been covered by the legislative department in deciding upon the pro- priety of enacting the law, and they must indirectly overrule the decision of that co-ordinate department. The task is therefore a delicate one, and only to be entered upon with reluctance and hesitation. It is a solemn act in any case to declare that that body of men to whom the people have committed the sovereign function of making the laws for the commonwealth have deliber- ately disregarded the limitations imposed upon this delegated authority, and usurped power which the people have been careful to withhold ; and it is almost equally so when the act which is adjudged to be unconstitutional appears to be chargeable rather to careless and improvident action, or error in judgment, than to intentional disregard of obligation. But the duty to do this in a proper case, though at one time doubted, and by some per- sons persistently denied, it is now generally agreed that the 1 Bates v. Kimball, 2 Chip. 77 ; Bailey v. Mohawk & Hudson Railroad Co., 18 v Philadelphia, &c. R. R. Co., 4 Harr. Wend. 9; QMulnix v. Mutual Ben. L. Ins. 389; Whittington v. Polk, 1 H. & J. 236; Co., 23 Col. 71, 46 Pac. 123, 33 L. R. A. Hawkins v. Governor, 1 Ark. 570 ; People 827.] r. Governor, 29 Mich. 320, 18 Am. Rep. 8 Lindsay v. Commissioners, &c., 2 89. Bay, 38, 61 ; People r. Rucker, 5 Col. 6. 2 Rice v. State, 7 Ind. 332; Bloodgood CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 229 courts cannot properly decline, and in its performance they seldom fail of proper support if they proceed with due caution and circumspection, and under a proper sense as well of their own responsibility, as of the respect due to the action and judg- ment of the law-makers. 1 1 There are at least two cases in Amer- ican judicial history where judges have been impeached as criminals for refusing to enforce unconstitutional enactments. One of these the case of Trevett v. Weedon, decided by the Superior Court of Rhode Island in 1786 is particu- larly interesting as being the first well- authenticated case in which a legislative enactment was held to be void because of conflict with the State constitution. Mr. Arnold, in his history of Rhode Inland, Vol. II. c. 24, gives an account of this case; and the printed brief in opposition to the law, and in defence of the impeached judges, is in possession of the present writer. The act in question was one which imposed a heavy penalty on any one who should refuse to receive on the same terms as specie the bills of a bank chartered by the State, or who should in any way discourage the circu- lation of such bills. The penalty was made collectible on summary conviction, without jury trial; and the act was held void on the ground that jury trial was expressly givn by the colonial charter, which then constituted the constitution of the State. Although the judges were not removed on impeachment, the legislature refused to re-elect them when their terms expired at the end of the year, and sup- planted them by more pliant tools, by whose assistance the paper money was forced into circulation, and public and private debts extinguished by means of it. Concerning the other case, we copy from the Western Law Monthly, " Sketch of Hon. Calvin Pease," Vol. V. p. 3, June, 1863: "The first session of the Supreme Court [of Ohio] under the con- stitution was held at Warren, Trumbull County, on the first Tuesday of June, 1803. The State was divided into three circuits. . . . The Third Circuit of the State was composed of the counties of Washington, Belmont, Jefferson, Colum- biana, and Trumbull. At this session of the legislature, Mr. Pease was appointed President Judge of the Third Circuit in April, 1808, and though nearly twenty- seven years old, he was very youthful in his appearance. He held the office until March 4, 1810, when he sent his resigna- tion to Governor Huntingdon. . . . Dur- ing his term of service upon the bench many interesting questions were presented for decision, and among them the consti- tutionality of some portion of the act of 1805, defining the duties of justices of the peace ; and he decided that so much of the fifth section as gave justices of the peace jurisdiction exceeding $20, and so much of the twenty -ninth section as pre- vented plaintiffs from recovering costs in actions commenced by original writs in the Court of Common Pleas, for sums be- tween $20 and $50, were repugnant to the Constitution of tiie United States and of the State of Ohio, and therefore null and void. . . . The clamor and abuse to which this decision gave rise was not in the least mitigated or diminished by the cir- cumstance that it was concurred in by a majority of the judges of the Supreme Court, Messrs. Huntingdon and Tod. . . . At the session of the legislature of 1807-8, steps were taken to impeach him and the judges of the Supreme Court who con- curred with him ; but the resolutions in- troduced into the House were not acted upon during the session. But the scheme was not abandoned. At an early day of the next session, and with almost inde- cent haste, a committee was appointed to inquire into the conduct of the offend- ing judges, and with leave to exhibit articles of impeachment, or report other- wise, as the facts might justify. The committee without delay reported articles of impeachment against Messrs. I'ease and Tod, but not against Huntingdon, who in the mean time had been elected governor of the State. . . . The articles of impeachment were preferred by the House of Representatives on the 23d day of December, 1808. He was summoned at once to appear before the senate a8 a high court of impeachment, and he promptly obeyed the summons. The 230 CONSTITUTIONAL LIMITATIONS. [CH. VII, I. In view of the considerations which have been suggested, the rule which is adopted by some courts, that they will not decide a legislative act to be unconstitutional by a majority of a bare quorum of the judges only, less than a majority of all, but will instead postpone the argument until the bench is full, seems a very prudent and proper precaution to be observed before entering upon questions so delicate and so important. The benefit of the wisdom and deliberation of every judge ought to be had under circumstances so grave. Something more than private rights are involved ; the fundamental law of the State is in question, as well as the correctness of legislative action; and considerations of courtesy, as well as the importance of the question involved, should lead the court to decline to act at all, where they cannot sustain the legislative action, until a full bench has been consulted, and its deliberate opinion is found to be against it. But this is a rule of propriety, not of constitu- tional obligation; and though generally adopted and observed, each court will regulate, in its own discretion, its practice in this particular. 1 managers of the prosecution on the part of the House were Thomas Morris, after- wards senator in Congress from Ohio, Joseph Sharp, James Pritchard, Samuel Marrett, and Othniel Tooker. . . . Sev- eral days were consumed in the inves- tigation, but the trial resulted in the acquittal of the respondent." Sketch of Hon. George Tod, August number of same volume : " At the session of the legislature of 1808-9, he was impeached for concurring in decisions made by Judge Pease, in the counties of Trumbull and Jefferson, that certain provisions of the act of the legislature, passed in 1805, de- fining the duties of justices of the peace, were in conflict with the Constitution of the United States and of the State of Ohio, and therefore void. These decis- ions of the courts of Common Pleas and of the Supreme Court, it was insisted, were not only an assault upon the wis- dom and dignity, but also upon the su- premacy of the legislature, which passed the act in question. This could not be endured ; and the popular fury against the judges rose to a very high pitch, and the senator from the county of Trumbull in the legislature at that time, Calvin Cone, Esq., took no pains to soothe the offended dignity of the members of that body, or their sympathizing con- stituents, but pressed a contrary line of conduct. The judges must be brought to justice, he insisted vehemently, and be punished, so that others might be terrified by the example, and deterred from com- mitting similar offences in the future. The charges against Mr. Tod were sub- stantially the same as these against Mr. Pease. Mr. Tod was first tried, and ac- quitted. The managers of the impeach- ment, as well as the result, were the same in both cases." 1 Briscoe v. Commonwealth Bank of Kentucky, 8 Pet. 118. It has been in- timated that inferior courts should not presume to pass upon constitutional ques- tions, but ought in all cases to treat stat- utes as valid. Ortman v. Greenman, 4 Mich. 291. But no tribunal can exercise judicial power unless it is to decide ac- cording to its judgment ; and it is difficult to discover any principle of justice which can require a magistrate to enter upon the execution of a statute when he be- lieves it to be invalid, especially when he must'thereby subject himself to prosecu- tion, without any indemnity in the law if it proves to be invalid. Undoubtedly when the highest courts in the land hesi- tate to declare a law unconstitutional, and allow much weight to the legislative judg- ment, the inferior courts should be still CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 231 II. Neither will a court, as a general rule, pass upon a con- stitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determi- nation of the cause. " While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to draw in such weighty matters collaterally, nor on trivial occa- sions. It is both more proper and more respectful to a co- ordinate department to discuss constitutional questions only when that is the very Us mota. Thus presented and determined, the decision carries a weight with it to which no extra-judicial disquisition is entitled." 1 In any case, therefore, where a con- stitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the court may rest its judg- ment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable. 2 more reluctant to exercise this power, and a becoming modesty would at least be expected of those judicial officers who have not been trained to the investigation of legal and constitutional questions. But in any case a judge or justice, being free from doubt in his own mind, and unfet- tered by any judicial decision properly binding upon him, must follow his own sense of duty upon constitutional as well as upon any other questions. See Miller v. State, 3 Ohio St. 475; Pirn v. Nicholson, 6 Ohio St. 176 ; Mayberry v. Kelly, 1 Kan. 116. In the case last cited it is said : " It is claimed by counsel for the plaintiff in error, that the point raised by the instruc- tion is, that inferior courts and ministerial officers have no right to judge of the con- stitutionality of a law passed by a legis- lature. But is this law ? If so, a court created to interpret the law must disre- gard the constitution in forming its opin- ions. The constitution is law, the fun- damental law, and must as much be taken into consideration by a justice of the peace as by any other tribunal. When two laws apparently conflict, it is the duty of all courts to construe them. If the conflict is irreconcilable, they must decide which is to prevail ; and the con- stitution is not an exception to this rule of construction. If a law were passed in open, flagrant violation of the constitu- tion, should a justice of the peace regard the law, and pay no attention to the con- stitutional provision "? If that is his duty in a plain case, is it less so when the con- struction becomes more difficult ? " 1 Hoover v. Wood, 9 Ind. 286, 287 ; Ire- land v. Turnpike Co., 19 Ohio St. 369; Smith v. Speed, 50 Ala. 276; Allor v. Auditors, 43 Mich. 76, 4 N. W. 492; Board of Education v. Mayor of Bruns- wick, 72 Ga. 353. See People v. Kenney, 96 N. Y. 294. 2 Ex parte Randolph, 2 Brock. 447 ; Frees v. Ford, 6 N. Y. 176, 178 ; Cumber- land, &c. R. R. Co. v. County Court, 10 Bush, 564; White v. Scott, 4 Barb. 56; Mobile & Ohio Railroad Co. v. State, 29 Ala. 573 ; [^Kansas City v. Union P. Ry. Co., 59 Kan. 427, 53 Pac. 408, 52 L. R. A. 321, aff. sub nom. Clark v. Kansas City in 176 U. S. 114, 20 Sup. Ct. Rep. 284. The constitutional question mny be first raised in the court of review. Monticello D. Co. v. Mayor of Baltimore, 90 Md. 416, 45 All. 210. For the contrary doctrine, see 232 CONSTITUTIONAL LIMITATIONS. [CH. VII. III. Nor will a court listen to an objection made to the con- stitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it. 1 On this ground it has been held that the objection that a legislative act was unconstitutional, because divesting the rights of remainder- men against their will, could not be successfully urged by the owner of the particular estate, and could only be made on behalf of the remainder-men themselves. 2 And a party who has assented to his property being taken under a statute cannot afterwards object that the statute is in violation of a provision in the con- stitution designed for the protection of private property. 3 The statute is assumed to be valid, until some one complains whose rights it invades. " Prima facie, and upon the face of the act itself, nothing will generally appear to show that the act is not valid ; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the legislature, therefore, concurs with well-established principles of law in the conclusion that such an act is not void, but voidable only; and it follows, as a necessary legal inference from this position, that this ground of avoidance can be taken advantage of by those only who have a right to question the validity of the act, and not by strangers. To this extent only is it necessary to go, in order to secure and protect the rights of all persons against the unwarranted exercise of legislative power, and to this extent only, therefore, are courts of justice called on to interpose." 4 IV. Nor can a court declare a statute unconstitutional and Chimgay v. People, 78 III. 570; Hopper also Smith v. McCarthy, 56 Pa. St. 359; v. Chicago, &c. Ry. Co., 91 Iowa, 639, 60 Antoni v. Wright, 22 Gratt. 857 ; Marshall N. W.487 ; Delancy v. Brett, 71 N. Y. 78.] v. Donovon, 10'Busli, 681. 1 People v. Rensselaer, &c. R. R. Co., 8 Embury v. Conner, 3 N. Y. 511 ; 15 Wend. 113, 30 Am. Dec. 33; Smith Baker v. Braman, 6 Hill, 47; Mobile & ( v. Inge, 80 Ala. 283; QClark v. Kansas Ohio Railroad Co. v. State, 29 Ala. 586;' City, 176 U. S. 114, 20 Sup. Ct. Rep. 284; Haskell v. New Bedford, 108 Mass. 208. Albany County Supers, v. Stanley, 105 4 Wellington, Petitioner, 16 Pick. 87, 96. U. S. 305 ; Brown v. Ohio Valley R. Co., And see Hingham, &c. Turnpike Co. v. 79 Fed. Rep. 176 ; Pittsburg, C. C. & St. Norfolk Co., 6 Allen, 353; De Jarnetteu. L. R. Co. v. Montgomery, 152 Ind. 1, 49 Haynes, 23 Miss. 600 ; Sinclair v. Jack- N. E. 582, 71 Am. St. 301, and other cases son, 8 Cow. 543, 579 ; Hey ward v. Mayor, cited in brief for plaintiff in error, in &c. of New York, 8 Barb. 486 ; Matter of Tullis v. Lake Erie and Western R. Co., Albany St., 11 Wend. 149; Williamson?'. 49 L. ed. U. S. 192 Also Kansas City Carlton, 51 Me. 449; State >. Rich, 20 v. Clark. 59 Kan. 427, 53 Pac. 468, 52 L. Miss. 393; Jones v. Black, 48 Ala. 540; R. A. 321.] Com. v. Wright, 79 Ky. 22 ; Burnside v. 2 Sinclair v. Jackson, 8 Cow. 543. See Lincoln Co. Ct., 86 Ky. 423, 6 S. W. 276. CH. VII.] DECLAKING STATUTES UNCONSTITUTIONAL. 233 void, solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the con- stitution, (a) It is true there are some reported cases, in which judges have been understood to intimate a doctrine different from what is here asserted; but it will generally be found, on an examination of those cases, that what is said is rather by way of argument and illustration, to show the unreasonableness of putting upon constitutions such a construction as would permit legislation of the objectionable character then in question, and to induce a mdre cautious and patient examination of the statute, with a view to discover in it, if possible, some more just and reasonable legislative intent, than as laying down a rule by which courts would be at liberty to limit, according to their own judgment and sense of justice and propriety, the extent of legisla- tive power in directions in which the constitution had imposed no restraint. Mr. Justice Story, in one case, in examining the extent of power granted by the charter of Jfchode Island, which authorized the General Assembly to make laws in the most ample manner, "so as such laws, &c., be not contrary and repugnant unto, but as near as may be agreeable to, the laws of England, considering the nature and constitution of the place and people there," expresses himself thus: "What is the true extent of the power thus granted must be open to explanation as well by usage as by construction of the terms in which it is given. In a gov- ernment professing to regard the great rights of personal liberty and of property, and which is required to legislate in subordi- nation to the general laws of England, it would not lightly be presumed that the great principles of Magna Charta were to be disregarded, or that the estates of its subjects were liable to be taken away without trial, without notice, and without offence. Even if such authority could be deemed to have been confided by the charter to the General Assembly of Rhode Island, as an exercise of transcendental sovereignty before the Revolution, it can scarcely be imagined that that great event could have left the people of that State subjected to its uncontrolled and arbi- trary exercise. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The funda- mental maxims of a free government seem to require that the (a) QSee State v. Harrington, 68 Vt. 622, 35 Atl. 515, 34 L. R. A. 100; Com. v. Moir, 199 Pa. 5:)4, 49 Atl. 351, 63 L. R. A. 837, 85 Am. St. 801. The motive which inspires the passage of a statute does not affect its validity, zW.] 234 CONSTITUTIONAL LIMITATIONS. [CH. VII. rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them a power so repugnant to the common principles of justice and civil liberty lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well-being, without very strong and direct expressions of such an intention. " " We know of no case in which a legislative act to transfer the property of A. to B. without his consent has ever been held a constitutional exercise of legislative power in any State in the Union. On the contrary, it has been constantly resisted, as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced." 1 The question discussed by the learned judge in this case is perceived to have been, What is the scope of a grant of legislative power to be exercised in conformity with the laws of England) 1 Whatever he says is pertinent to that question; and the considerations he suggests are by way of argument to show that the power to do certain unjust and oppressive acts was not covered by the grant of legislative power. It is not intimated that if they were within the grant, they would be impliedly prohibited because unjust and oppressive. In another case, decided in the Supreme Court of New York, one of the judges, in considering the rights of the city of New York to certain corporate property, used this language : " The inhabitants of the city" of New York have, a vested right in the 1 Wilkinson v. Leland, 2 Pet.*627, 657. 72, it was said that an act was void as See also what is said by the same judge opposed to fundamental principles of in Terrett v. Taylor, 9 Cranch, 43. " It right and justice inherent in the nature is clear that statutes passed against plain and spirit of the social compact. But the and obvious principles of common right court had already decided that the act and common reason are absolutely null was opposed, not only to the constitution and void, so far as they are calculated to of the State, but to that of the United operate against those principles." Ham States also. See Mayor, &c. of Baltimore v. McClaws, 1 Bay, 98. But the question v. State, 15 Md. 376. In Godcharles v. in that case was one of construction; Wigeman, 113 Pa. St. 431, 6 Atl. 354, a whether the court should give to a statute statute forbidding payments in store or- a construction which would make it oper- ders was held void as preventing persons ate against common right and common sui juris from making their own con- reason. In Bowman v. Middleton, 1 Bay, tracts. A similar rule was laid down in 282, the court held an act which di- State r. Fire Creek, &c. Co., 33 W. \ r a. vested a man of his freehold and passea 188, 10 S. E. 288, where mining compa- it over to another, to be void " as against nies were forbidden to sell to employees common right as well as against Magna merchandise at a higher rate than they Charta." In Regents of University v. sold it to others. Williams, 9 Gill & J. 365, 31 Am. Dec. CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 235 City Hall, markets, water-works, ferries, and other public prop- erty, which cannot be taken from them any more than their individual dwellings or storehouses. Their rights, in this respect, rest not merely upon the constitution, but upon the great principles of eternal justice which lie at the foundation of all free governments." 1 The great principles of eternal justice which affected the particular case had been incorporated in the constitution ; and it therefore became unnecessary to consider what would otherwise have been the rule; nor do we understand the court as intimating any opinion upon that subject. It was sufficient for the case, to find that the principles of right and justice had been recognized and protected by the constitution, and that the people had not assumed to confer upon the legisla- ture a power to deprive the city of rights which did not come from the constitution, but from principles antecedent to and recognized by it. So it is said by Hosmer, Ch. J., in a Connecticut case: "With those judges who assert the omnipotence of the legislature in all cases where the constitution has not interposed an explicit restraint, I cannot agree. Should there exist what I know is not only an incredible supposition, but a most remote improba- bility a case of direct infraction of vested rights, too palpable to be questioned and too unjust to admit of vindication, I could not avoid considering it as a violation of the social compact, and within the control of the judiciary. If, for example, a law were made without any cause to deprive a person of his property, or to subject him to imprisonment, who would not question its legality, and who would aid in carrying it into effect? On the other hand, I cannot harmonize with tttose who deny the power of the legislature to make laws, in any case, which, with entire justice, operate on antecedent legal rights. A retrospective law may be just and reasonable, and the right of the legislature to enact one of this description I am not speculatist enough to question. 2 ' The cases here supposed of unjust and tyrannical enactments would' probably be held not to be within the power of any legislative body in the Union. One of them would be clearly a bill of attainder; the other, unless it was in the nature of remedial legislation, and susceptible of being defended on that theory, would be an exercise of judicial power, and therefore in excess of legislative authority, because not included in the apportionment of power made to that department. No question of implied prohibition would arise in either of these cases; but 1 Benson v. Mayor, &c. of New York, 2 Goshen v. Stonington, 4 Conn. 209, 10 Barb. 223, 244. 225. 236 CONSTITUTIONAL LIMITATIONS. [CH. VII. if the grant of power had covered them, and there had been no express limitation, there would, as it seems to us, be very great probability of unpleasant and dangerous conflict of authority, if the courts were to deny validity to legislative action on subjects within their control, on the assumption that the legislature had disregarded justice or sound policy. The moment a court ven- tures to substitute its own judgment for that of the legislature, in any case where the constitution has vested the legislature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority, and where its discretion alone will measure the extent of its interference. 1 The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in^aliy particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured .by some constitu- tional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within con- stitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil ; but courts cannot assume their rights. 2 The judiciary can only arrest the execu- tion of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and i 1 " If the legislature should pass a law wisdom and integrity of public servants in plain and unequivocal language, within and their identity with the people. Gov- the general scope of their constitutional ernments cannot be administered without powers, I know of no authority in this committing powers in trust and confi- government to pronounce such an act dence." Beebe v. State, 6 Ind. 501, 528, void, merely because, in the opinion of per Stuart, J. And see Johnston v. Com- the judicial tribunals, it was contrary to monwealth, 1 Bibb, 603 ; Flint River the principles of natural justice ; for this Steamboat Co. v. Foster, 5 Ga. 194; State would be vesting in the court a latitudi- v. Kruttschnitt, 4 Nev. 178; Walker v. narian authority which might be abused, Cincinnati, 21 Ohio St. 14; Hills v. Chi- and would necessarily lead to collisions cago, 60 111. 86; Ballentine v. Mayor, between the legislative and judicial de- &c., 15 Lea, 633 ; State v. Traders' Bank, partments, dangerous to the well-being of 41 La. Ann. 329, 6 So. 582. society, or at least not in harmony with 2 Bennett v. Bull, Bald'w. 74; Walker the structure of our ideas of natural gov- v. Cincinnati, 21 Ohio St. 14. " If the eminent." Per Rogers, J., in Common- act itself is within the scope of their au- wealth v. McCloskey, 2 Rawle, 374. "All thority, it must stand,, and we are bound the courts can do with odious statutes is to make it stand, if it will upon any to chasten their hardness by construction, intendment. It is its effect, not its pur- Such is the imperfection of the best hu- pose, which must determine its validity. man institutions, that, mould them as we Nothing but a 'clear violation of the con- may, a large discretion must at last be stitution a clear usurpation of power reposed somewhere. The best and in prohibited will justifyShe judicial de- many cases the only security is in the partment in pronouncing an act of the CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 237 expediency with the law-making power. 1 Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative author- ity can be pointed out in the constitution, and the case shown to come within them. 2 V. If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of ;the judges to violate fundamental principles of republican government, unless it shall be found that those principles are placed beyond legislative en- legislative department unconstitutional and void." Pennsylvania R. R. Co. v. Riblet, 66 Pa. St. 164, 169. See Weber v. Reinhard, 73 Pa. St. 370; Chicago, &c. R. R. Co. v. Smith, 62 111. 268 ; People v. Albertson, 55 N. Y. 50, per Allen, J. ; Martin v. Dix, 52 Miss. 52, 64, per Chal- mers, J. ; Bennett v. Boggs, Baldw. 60, 74; United States v. Brown, 1 Deady, 566; Commonwealth v. Moore, 25 Gratt. 951; Danville v. Pace, 25 Gratt. 1, 8 ; Reith- miller v. People, 44 Mich. 280, 6 N. W. 6(37 ; Munn v. Illinois, 94 U. S. 113; East- man v. State, 109 Ind. 278, 10 N. E. 97. 1 Perkins, J., in Madison & Indian- apolis Railroad Co. v. Whiteneck, 8 Ind. 217 ; Bull v. Read, 13 Gratt. 78, per Lee, J. A stittute cannot be declared void because against public policy. Julien v. Model B. & L. I. Co., Wis. , 92 N. W. 561.] So in Canada it is held that an act within the scope of legislative power can- not he objected to as contrary to reason and justice. Re Goodhue, 19 Ch'y (Ont.), 366 ; Toronto, &c. R. Co. v. Crookshank, 4 Q. B. (Ont.) 318. a Sill v. Village of Corning, 15 N. Y. 297; Varick v. Smith, 5 Paige, 136 ; Coch- ran v. Van Surlay, 20 Wend. 365; Morris v. People, 3 Denio, 381 ; Wynehamer v. People, 13 N. Y. 378 ; People v. Supervi- sors of Orange, 17 N. Y. 235 ; Dow v. Nor- ris, 4 N. H. 16; Derby Turnpike Co. i). Parks, 10 Conn. 522, 543 ; Hartford Bridge Co. o. Union Ferry Co., 29 Conn. 210 ; Holden v. James, 11 Mass. 396; Adams w. Howe, 14 Mass. 340 ; 7 Am. Dec. 216 ; Norwich v. County Commissioners, 13 Pick. 60; Dawson v. Shaver, 1 Blackf. 206 ; Beauchamp v. State, 6 Blackf. 299 ; Doe v. Douglass, 8 Blackf. 10 ; Maize v. State, 4 Ind. 342; Stocking v. State, 7 Ind. 327 ; Beebe v. State, 6 Ind. 501 ; New- land v. Marsh, 19 111. 376, 384; Chicago, &c. R. R. Co. v. Smith, 62 111. 268 ; Gut- man v. Virginia Iron Co., 5 W. Va. 22 ; Osburn v. Staley, 5 W. Va. 85; Yancy v. Yancy, 5 Heisk. 353; Bliss t;. Com- monwealth, 2 Litt. 90; State v. Ashley, 1 Ark. 513 ; Campbell v. Union Bank, 7 Miss. 625 ; Tate's Ex'r v. Bell, 4 Yerg. 202, 26 Am. Dec. 221 ; Andrews v. State, 3 Heisk. 165, 8 Am. Rep. 8 ; Railroad v. Hicks, 9 Bax. 446; Whittington v. Polk, 1 Harr. & J. 236; Norris v. Abingdon Academy, 7 Gill & J. 7 ; Harrison v. State, 22 Md. 468; State v. Lyles, 1 McCord, 238; Myers v. English, 9 Cal. 341; Ex parte Newman, 9 Cal. 502; Ho- bart v. Supervisors, 17 Cal. 23 ; Crenshaw v. Slate River Co., 6 Rand. 245 ; Lewis v. Webb, 3 Me. 26 ; Durham v. Lewiston, 4 Me. 140 ; Lunt's Case, 6 Me. 412 ; Scott v. Smart's Ex'rs, 1 Mich. 295 ; Williams v. Detroit, 2 Mich. 560 ; Tyler v. People, 8 Mich. 320; Weimer v. Bunbury, 30 Mich. 201 ; Cotton v. Commissioners of Leon County, 6 Fla. 610 ; State v. Robin- son, 1 Kan. 17 ; Santo v. State, 2 Iowa, 165 ; Morrison v. Springer, 15 Iowa, 304; Stoddart v. Smith, 5 Binn. 355 ; Moore v. Houston, 3 S. & R. 169 ; Braddee v. Brown- field, 2 W. & S. 271 ; Harvey v. Thomas, 10 Watts, 63; Commonwealth v. Max- well, 27 Pa. St. 444; Lewis's Appeal, 67 Pa. St. 153; Butler's Appeal, 73 Pa. St. 448 ; Carey v. Giles, 9 Ga. 253 ; Macon & Western Railroad Co. v. Davis, 13 Ga. 68; Franklin Bridge Co. v. Wood, 14 Ga. 80; Boston v. Cummins, 16 Ga. 102 ; Van Home v. Dorrance, 2 Dall. 309 ; Calder v. Bull, 8 Dall. 386 ; Cooper v. Telfair, 4 Dall. 14; Fletcher v. Peck, 6 Cranch, 87. 238 CONSTITUTIONAL LIMITATIONS. [CH. VII. croachment by the constitution. The principles of republican government are not a set of inflexible rules, vital and active in the constitution, though unexpressed, but they are subject to variation and modification from motives of policj' and public necessity ; and it is only in those particulars in which experience has demon- strated any departure from the settled practice to work injustice or confusion, that we shall discover an incorporation of them in the constitution in such form as to make them definite rules of action under all circumstances. It is undoubtedly a maxim of republican government, as we understand it, that taxation and representation should be inseparable ; but where the legislature interferes, as in many cases it may do, to compel taxation by a municipal corporation for local purposes, it is evident that this maxim is applied in the case in a much restricted and very im- perfect sense only, since the representation of the locality taxed is but slight in the body imposing the tax, and the burden may be imposed, not only against the protest of the local representa- tive, but against the general opposition of the municipality. The property of women is taxable, notwithstanding they are not al- lowed a voice in choosing representatives. 1 The maxim is not entirely lost sight of in such cases, but its application in the particular case, and the determination how far it can properly and justly be made to yield to considerations of policy and expe- diency, must rest exclusively with the law-making power, in the absence of any definite constitutional provisions so embodying the maxim as to make it a limitation upon legislative authority. 2 It is also a maxim of republican government that local concerns shall be managed in the local districts, which shall -choose their own administrative and police officers, and establish for them- selves police regulations; but this maxim is subject to such ex- ceptions as the legislative power of the State shall see fit to make ; and when made, it must be presumed that the public interest, 1 Wheeler v. Wall, 6 Allen, 658; Smith inexpedient, as politic or impolitic. Con- j v. Macon, 20 Ark. 17. siderations of that sort must in general be 2 " There are undoubtedly f unda- addressed to the legislature. Questions of mental principles of morality and justice policy there are concluded here." Chase, which no legislature is at liberty to disre- Ch. J., in License Tax Cases, 5 Wall, gard, but it is equally undoubted that no 462, 469. " All mere questions of expe- court, except in the clearest cases, can diency, and all questions respecting the properly impute the disregard of those just operation of the law within the limits principles to the legislature. . . . This court prescribed by the constitution, were set- can know nothing of public policy except tied by the legislature when it was en- from the constitution and the laws, and acted." Ladd, J., in Perry v. Keene, 56 the course of administration and decision. N. H. 614, 630. And see remarks of It has no legislative powers. It cannot Ryan, Ch. J., in Attorney-General v. Chi- amend or modify any legislative acts. It oago, &c. R. B. Co., 35 Wis. 425, 580. cannot examine questions as expedient or CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 239 convenience, and protection are subserved thereby. 1 The State may interfere to establish new regulations against the will of the local constituency; and if it shall think proper in any case to assume to itself those powers of local police which should be executed by the people immediately concerned, we must suppose it has been done because the local administration has proved imperfect and inefficient, and a regard to the general well-being has demanded the change. In these cases the maxims which have prevailed in the government address themselves to the wis- dom of the legislature, and to adhere to them as far as possible is doubtless to keep in the path of wisdom ; but they do not con- stitute restrictions so as to warrant the other departments in treating the exceptions which are made as unconstitutional. 2 VI. Nor are the courts at liberty to declare an act void, because 1 People v. Draper, 15 N. Y. 532. See post, pp. 261-266. 2 In People v. Mahaney, 13 Mich. 481, 500, where the Metropolitan Police Act of Detroit was claimed to be unconstitu- tional on various grounds, the court say : " Besides the specific objections made to the act as opposed to the provisions of the constitution, the counsel for respondent attacks it on 'general principles,' and espe- cially because violating fundamental prin- ciples of our system, that governments exist by the consent of the governed, and that taxation and representation go together. The taxation under the act, it is said, is really in the hands of a police board, a body in *the choice of which the people of Detroit have no voice. This argument is one which might be pressed upon the legislative department with great force, if it were true in point of fact. But as the people of Detroit are really represented throughout, the diffi- culty suggested can hardly be regarded as fundamental. They were represented in the legislature which passed the act, and had the same proportionate voice there with the other municipalities in the State, all of winch receive from that body their powers of local government, and such only as its wisdom shall prescribe within the constitutional limit. They were represented in that body when the present police board were appointed by it, and the governor, who is hereafter to fill vacancies, will be chosen by the State at large, including their city. There is nothing in the maxim that taxation and representation go together which requires that the body paying the tax shall alone be consulted in its assessment; and if there were, we should find it violated at every turn in our system. The State legislature not only has a control in this respect over inferior municipalities, which it exercises by general laws, but it some- times finds it necessary to interpose its power in special cases to prevent unjust or burdensome taxation, as well as to compel the performance of a clear duty. The constitution itself, by one of the clauses referred to, requires the legis- lature to exercise its control over the taxation of municipal corporations, by re- stricting it to what that body may regard as proper bounds. And municipal bodies are frequently compelled most unwillingly to levy taxes for the payment of claims, by the judgments or mandates of courts in which their representation is quite as remote as that of the people of Detroit in this police board. It cannot therefore be said that the maxims referred to have been entirely disregarded by the legis- lature in the passage of this act. But as counsel do not claim that, in so far as they have been departed from, the consti- tution has been violated, we cannot, with propriety, be asked to declare the act void on any such general objection." And see Wynehamer v. People, 13 N. Y. 378, per Selden, J. ; Benson v. Mayor, &c. of Albany, 24 Barb. 248 et seq. ; Baltimore v. State, 15 Md. 376 ; People v. Draper, 15 N. Y. 632; White v. Stamford, 37 Conn. 578. 240 CONSTITUTIONAL LIMITATIONS. [CH. VII. in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words. " When the funda- mental law has not limited, either in terms or by necessary impli- cation, the general powers conferred upon the -legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the constitution which is not even men- tioned in the instrument." J " It is difficult," says Mr. Senator Yerplanck, " upon any general principles, to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written constitution give that authority. There are indeed many dicta and some great authori- ties holding that acts contrary to the first principles of right are void. The principle is unquestionably sound as the governing rule of a legislature in relation to its own acts, or even those of a preceding legislature. It also affords a safe rule of construction for courts, in the interpretation of laws admitting of any doubtful construction, to presume that the legislature could not have in- tended an unequal and unjust operation of its statutes. Such a construction ought never to be given to legislative language if it be susceptible of any other more conformable* to justice ; but if the words be positive and without ambiguity, I can find no author- ity for a court to vacate or repeal a statute on that ground alone. But it is only in express constitutional provisions, limiting legis- lative power and controlling the temporary will of a majority, by a permanent and paramount law, settled by the deliberate wisdom of the nation, that I can find a safe and solid ground for the authority of courts of justice to declare void any legislative enact- ment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too un- defined either for its own security or the protection of private rights. It is therefore a most gratifying circumstance to the 1 People '. Fisher, 24 Wend. 215, 220 ; tion of validity of statutes dependent State v. Staten, 6 Cold. 238 ; Walker v. upon conformity, or want of it, to the Cincinnati, 21 Ohio St. 14 ; State v. Smith, " spirit " of the constitution is quoted and 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829 ; approved. See also Sheppard v. Dow- People v. Rucker, 6 Col. 455; Whallon v. ling, 127 Ala. 1, 28 So. 791, 85 Am. St. Ingham Circ. Judge, 51 Mich. 503, 16 68. For the purpose of determining ques- N. VV. 876; Woolen v. State, 24 Fla. 335, tions of constitutionality courts will not 6 So. 39. QBut see Middleton v. Middle- consider questions of the justice, advisa- ton, 54 N. J. Eq. 692, 35 Atl. 1065, 55 Am. bility, or policy of the act. State ex rd. St. 602, 36 L. R. A. 221, 'holding that an Smith v. McLellan, 138 Ind. 395, 37 N. E. act which restricts a decree for a divorce 799. For a valuable discussion of the to a divorce a mensa et thoro when the power of courts to declare a law uncon- plaintiffhas conscientious scruples against stitutional because opposed to the " spir- divorce a vinculo is void. In Com. c. Moir, it "of the constitution, see Lexington v. 199 Pa. 534, 49 Atl. 351, 85 Am. St. 801, Thompson, Ky. , 68 S. W. 477, 57 53 L. R. A. 837, the text upon the ques- L. R. A. 776 (May 28, 1902).] CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 241 friends of regulated liberty, that in every change in their consti- tutional polity which has yet taken place here, whilst political power has been more widely diffused among the people, stronger and better-defined guards have been given to the rights of prop- erty." And after quoting certain express limitations, he pro- ceeds : " Believing that we are to rely upon these and similar provisions as the best safeguards of our rights, as well as the safest authorities for judicial direction, I cannot bring myself to approve of the power of courts to annul any law solemnly passed, either on an assumed ground of its being contrary to natural equity, or from a broad, loose, and vague interpretation of a con- stitutional provision beyond its natural and obvious sense." 1 The accepted theory upon this subject appears to be this : In every sovereign State there resides an absolute and uncontrolled power of legislation. In Great Britain this complete power rests in the Parliament; in the American States it resides in the people themselves as an organized body politic. But the people, by creating the Constitution of the United States, have delegated this power as to certain subjects, and under certain restrictions, to the Congress of the Union ; and that portion they cannot re- sume, except as it may be done through amendment of the national Constitution. For the exercise of the legislative power, subject to this limitation, they create, by their State constitution, a legis- lative department upon which they confer it ; and granting it in general terms, they must be understood to grant the whole legis- lative power which they possessed, except so far as at the same time they saw fit to impose restrictions. While, therefore, the Parliament of Britain possesses completely the absolute and un- controlled power of legislation, the legislative bodies of the Amer- ican States possess the same power, except, first, as it may have been limited by the Constitution of the United States ; and, second, as it may have been limited by the constitution of the State. A legislative act cannot, therefore, be declared void, unless its con- flict with one of these two instruments can be pointed out. 2 It is to be borne in mind, however, that there is a broad dif- ference between the Constitution of the United States and the constitutions of the States as regards the powers which may be 1 Coeliran v. Van Surlay, 20 Wend. 2 People . New York Central Rail- 365, 381, 383. See also People v. Galla- road Co., 34 Barb. 123; Gentry v. Grif- gher, 4 Mich. 244; Benson v. Mayor, fith, 27 Tex. 461 ; Danville v. Pace, 25 &c. of Albany, 24 Barb. 248; Grant v. Gratt. 1, 18 Am. Rep. 633; Davis v. State, Courier, '24 Barb. 232; Wynehamer v. 3 Lea, 377. And see the cases cited, ante, People, 13 N. Y. 378, per Comstock, J. ; p. 237, note 2. 13 N. Y. 453, per Selden, J. ; 13 N. Y. 477, per Johnson, J. 16 242 CONSTITUTIONAL LIMITATIONS. [CH. VII. exercised under them. The government of the United States is one of enumerated powers ; the governments of the States are possessed of all the general powers of legislation. When a law of Congress is assailed as void, we look in the national Constitu- tion to see if the grant of specified powers is broad enough to em- brace it ; but when a State law is attacked on the same ground, it is presumably valid in any case, and this presumption is a con- clusive one, unless in the Constitution of the United States or of the State we are able to discover that it is prohibited. We look in the Constitution of the United States for grants of legislative power, but in the constitution of the State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the State was vested in its creation. Congress can pass no laws but such as the Constitution authorizes either expressly or by clear implication ; while the State legislature has jurisdiction of all subjects on which its legis- lation is not prohibited. 1 " The law-making power of the State," it is said in one case, " recognizes no restraints, and is bound by none, except such as are imposed by the constitution. That in- strument has been aptly termed a legislative act by the people themselves in their sovereign capacity, and is therefore the para- mount law. Its object is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power to make laws would be absolute. These limitations are created and imposed by express words, or arise by necessary implication. The leading feature of the constitution is the sepa- ration and distribution of the powers of the government. It takes care to separate the executive, legislative, and judicial powers, and to define their limits. The executive can do no legislative act, nor the legislature any executive act, and neither can exercise judicial authority." 2 It does not follow, however, that in every case the courts, be- fore they can set aside a law as invalid, must be able to find in the constitution some specific inhibition which has been disre- garded, or some express command which has been disobeyed. 3 1 Sill v. Village of Corning, 15 N. Y. Kirby v. Shaw, 19 Pa. St. 258 ; Weister 297; People v. Supervisors of Orange, v. Hade, 52 Pa. St. 474; Danville v. Pace, 27 Barb. 575 ; People v. Gallagher, 4 Mich. 25 Gratt. 1, 9, 18 Am. Hep. 663. 244 ; Sears v. Cottrell, 5 Mich. 250 ; Peo- 2 Sill v. Corning, 15 N. Y. 297, 303. pie v. New York Central Railroad Co., 3 A remarkable case of evasion to 24 N. Y. 497, 504; People v. Toynbee, 2 avoid the purpose of the constitution, and Park. Cr. R. 490 ; State v. Gutierrez, 15 still keep within its terms, was considered La. Ann. 190; Walpole v. Elliott, 18 Ind. in People v. Albertson, 55 N. Y. 50. In 258 ; Smith v. Judge, 17 Cal. 547 ; Com- Taylor v Commissioners of Ross County, monwealth v. Hartman, 17 Pa. St. 118; 23 Ohio St. 22, the Supreme Court of CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 243 Prohibitions are only important where they are in the nature of exceptions to a general grant of power ; and if the authority to do an act has not been granted by the sovereign to its representa- tive, it cannot be necessary to prohibit its being done. If in one department was vested the whole power of the government, it might be essential for the people, in the instrument delegating this complete authority, to make careful and particular exception of all those cases which it was intended to exclude from its cog- nizance ; for without such exception the government might do whatever the people themselves, when met in their sovereign capacity, would have power to do. But when only the legislative power is delegated to one department, and the judicial to another, it is not important that the one should be expressly forbidden to try causes, or the other to make laws. The assumption of judi- cial power by the legislature in such a case is unconstitutional, because, though not expressly forbidden, it is nevertheless incon- sistent with the provisions which have conferred upon another department the power the legislature is seeking to exercise. 1 And for similar reasons a legislative act which should undertake to make a judge the arbiter in his own controversies would be void, because, though in form a provision for the exercise of judicial power, in substance it would be the creation of an arbitrary and irresponsible authority, neither legislative, executive, nor judicial, and wholly unknown to constitutional government. 2 It could not be necessary to forbid the judiciary to render judgment without suffering the party to make defence ; because it is implied in judicial authority that there shall be a hearing before condemna- tion. 3 Taxation cannot be arbitrary, because its very definition includes apportionment, nor can it be for a purpose not public, because that would be a contradiction in terms.* The right of local self-government cannot be taken away, because all our con- stitutions assume its continuance as the undoubted right of the people, and as an inseparable incident to republican government. 5 Ohio found itself under the necessity of ings, 10 Allen, 570; Opinions of Judges, declaring that that which was forbidden 58 Me. 590; People v. Batuhellor, 63 N. Y. by the constitution could no more be 128; Lowell v. Boston, 111 Mass. 454. done indirectly than directly. [Re Page, 60 Kan. 842, 58 Pac. 478, 47 1 Ante, pp. 126-157, and cases cited. L. R. A. 68J 2 Post, pp. 592-595, and cases cited. 6 People v. Mayor, &c. of Chicago, 51 3 Post, pp. 502-506. On this subject 111. 17; Peoples Hurlbut, 24 Mich. 44; in general, reference is made to those State v. Denny, 118 Ind. 449, 21 N. E. very complete recent works, Bigelow on 274. [[But this does not invalidate an Estoppel, and Freeman on Judgments. act arbitrarily imposing upon a county 4 Post, ch. 14. And see Curtis v. the duty of erecting and maintaining a Whipple, 24 Wis. 350; Tyson v. School high school. State v. Freeman. 61 Kan. Directors, 51 Pa. St. 9; Freeland v. Hast- 90, 58 Pac. 959, 47 L. R. A. 67. Upon 244 CONSTITUTIONAL LIMITATIONS. [CH. VII. The bills of rights in the American constitutions forbid that parties shall be deprived of property except by the law of the land; but if the prohibition had been omitted, a legislative en- actment to pass one man's property over to another would never- theless be void. If the act proceeded upon the assumption that such other person was justly entitled to the estate, and therefore it was transferred, it would be void, because judicial in its nature ; and if it proceeded without reasons, it would be equally void, as neither legislative nor judicial, but a mere arbitrary fiat. 1 There is no difficulty in saying that any such act, which uncTer pretence of exercising one power is usurping another, is opposed to the constitution and void. It is assuming a power which the people, if they have not granted it at all, have reserved to themselves. The maxims of Magna Charta and the common law are the in- terpreters of constitutional grants of power, and those acts which by those maxims the several departments of government are for- bidden to do cannot be considered within any grant or appor- tionment of power which the people in general terms have made to those departments. The Parliament of Great Britain, indeed, as possessing the sovereignty of the country, has the power to disregard fundamental principles, and pass arbitrary and unjust enactments ; but it cannot do this rightfully, and it has the power to do so simply because there is no written constitution from which its authority springs or on which it depends, and by which the courts can test the validity of its declared will. The rules which confine the discretion of Parliament within the ancient this right to local self-government, see peal, 16 Pa. St. 256. "It is now con- State ex rel. Bulkley v. Williams, 68 sidered an universal and fundamental Conn. 131, 35 Atl. 24, 421, 48 L. R. A. proposition in every well regulated 465 ; Newport v. Horton, 22 R. I. 196, 47 and properly administered government, Atl. 312, 50 L. R. A. 330; Rathbone ?'. whether embodied in a constitutional AVirtli, 150 N. Y. 459, 45 N. E. 15, 24, 34 form or not, that private property cannot L. R. A. 408, 419 ; O'Connor v. Fond du be taken for strictly private purposes at Lac, 109 Wis. 253, 85 N. W. 327, 63 L. R. all, nor for public uses without a just A. 831 ; Com. ex rel. Elkin v. Moir, 199 compensation ; and that the obligation of Pa. 534, 49 Atl. 351, 53 L. R. A. 837, contracts cannot be abrogated or essen- 85 Am. St. 801 ; State v. Fox, Ind. , tially impaired. These and other vested 63 N. E. 19, 55 L. R. A. 893 (Feb. 26, rights of the citizen are held sacred and 1902); Americus v. Perry, 114 Ga. 871, inviolable, even against the plenitude of 40 S. E. 1004, 57 L. R. A. 280; State power of the legislative department." ex rel. White . Barker, Iowa, ,89 Nelson, 3., in People v. Morris, 13 Wend. N. W. 204, 57 L. R. A. 244 (Feb. 13, 325,328. See Bank of Michigan v. Wil- 1902) ; Lexington v. Thompson, Ky. liams, 5 Wend. 478. [^Property of a pri- , 68 S. W. 477, 57 L. R. A. 775 (May vate eleemosynary corporation is none 28, 1902).] See cases ]>ost, pp. 265, 334. the less private because it is charged 1 Bowman r. Middleton, 1 Bay, 252; with the maintenance of a public char- Wilkinson v. Leland, 2 Pet. 627; Terrett ity. State v. Neff, 52 Ohio St. 375, 40 v. Taylor, 9 Cranch, 43 ; Ervine's Ap- N. E. 720, 28 L. R. A. 409.] CH. VII ] DECLARING STATUTES UNCONSTITUTIONAL. 245 landmarks are rules for the construction of the powers of the American legislatures ; and however proper and prudent it may be expressly to prohibit those things which are not understood to be within the proper attributes of legislative power, such prohibi- tion can never be regarded as essential, when the extent of the power apportioned to the legislative department is found upon examination not to be broad enough to cover the obnoxious au- thority. The absence of such prohibition cannot, by implication, confer power. Nor, where fundamental rights are declared by the constitution, is it necessary at the same time to prohibit the legislature,, in express terms, from taking them away. The declaration is itself a prohibition, and is inserted in the constitution for the express purpose of operating as a restriction upon legislative power. 1 Many things, indeed, which are contained in the bills of rights to be found in the American constitutions, are not, and from the very nature of the case cannot be, so certain and definite in char- acter as to form rules for judicial decisions ; and they are declared rather as guides to the legislative judgment than as marking an absolute limitation of power. The nature of the declaration will generally enable us to determine without difficulty whether it is the one thing or the other. If it is declared that all men are free, and no man can be slave to another, a definite and certain rule of action is laid down, which the courts can administer; but if it be said that " the blessings of a free government can only be main- tained by a firm adherence to justice, moderation, temperance, frugality, and virtue," we should not be likely to commit the mis- take of supposing that this declaration would authorize the courts to substitute their own view of justice for that which may have impelled the legislature to pass a particular law, or to inquire into the moderation, temperance, frugality, and virtue of its members, with a view to set aside their action, if it should appear to have been influenced by the opposite qualities, (a) It is plain that what in the one case is a rule, in the other is an admonition addressed to the judgment and the conscience of all persons in authority, as well as of the people themselves. So the forms prescribed for legislative action are in the nature of limitations upon its authority. The constitutional provisions 1 Beebe v. State, 6 Ind. 501. This principle is very often acted upon when not expressly declared. (a) []So a statute cannot authorize a board of health to annul a physician's license "for grossly unprofessional conduct of a character likely to deceive or defraud the public" without in some way defining what is "grossly unprofessional conduct." Mathews v. Murphy, 28 Ky. L. Rep. 750, 63 S. W. 785, 54 L. R. A. 415.] 246 CONSTITUTIONAL LIMITATIONS. [CH. VII. which establish them are equivalent to a declaration that the legis- lative power shall be exercised under these forms, and shall not be exercised under any other. A statute which does not observe them will plainly be ineffectual. 1 Statutes Unconstitutional in Part. It will sometimes be found that an act of the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitu- tional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority ; it may either propose to ac- complish something prohibited by the constitution, or to accom- plish some lawful, and even laudable object, by means repugnant to the Constitution of the United States or of the State. 2 A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional. 3 Where, therefore, a part of a statute 1 See ante, pp. 186 et seq. wealth v. Pomeroy, 5 Gray, 486 ; State v. 2 Commonwealth v. Clapp, 6 Gray, 97. Copeland, 3 R. I. 33 ; State v. Snow, 3 " A law that is unconstitutional is so be- R. I. 64 ; Armstrong v. Jackson, 1 Blackf. cause it is either an assumption of power 374 ; Clark v. Ellis, 2 Blackf. 8; McCul- not legislative in its nature, or because it loch v. State, 11 Ind. 424; People v. Hill, is inconsistent with some provision of the 7 Cal. 97 ; Lathrop v. Mills, 19 Cal. 513 ; federal or State Constitution." Wood- Rood v. McCargar, 49 Cal. 117; Super- trorth, J., in Commonwealth v. Maxwell, visors of Knox Co. v. Davis, 63 111. 405; 27 Pa. St. 444, 456. Myers v. People, 67 111. 503; Thomson v. s Commonwealth v. Clapp, 5 Gray, 97. Grand Gulf Railroad Co., 3 How. (Miss.) See to the same effect, Fisher v. McGirr, 240 ; Campbell v. Union Bank, 7 Miss. 1 Gray, 1 ; Warren v. Mayor, &c. of 625 ; Mobile & Ohio Railroad Co. v. State, Charlestown, 2 Gray, 84; Wellington, 29 Ala. 573 ; South & N. Ala. R. R. Co. Petitioner, 16 Pick. 87 ; Commonwealth v. Morris, 65 Ala. 193 ; Santo v. State, v. Hitchings, 6 Gray, 482; Common- 2 Iowa, 165; State i;. Cox, 3 Eng. 436; CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 247 is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are con- nected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other. 1 The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section ; for the distribution into sections is purely artificial ; but whether they are essentially and inseparably connected in substance. 2 If, when the unconstitu- tional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the Mayor, &c. of Savannah v. State, 4 Ga. 26 ; Exc-hange Bank v. Hines, 3 Ohio St. 1 ; Robinson v. Bank of Darien, 18 Ga. 65; State v. Wheeler, 26 Conn. 290; People v. Lawrence, 36 Barb. 177 ; Wil- liams v. Payson, 14 La. Ann. 7 ; Ely v. Thompson, 3 A. K. Marsh. 70; Davis r. State, 7 Md. 151 ; State v. Commissioners of Baltimore. 29 Md. 521 ; Hagerstown v. Decliert, 32 Md. 369; Berry v. Balti- more, &c. R. R. Co., 41 Md. 446, 20 Am. Rep. 69; State v. Clarke, 54 Mo. 17; Lowndes Co. v. Hunter, 49 Ala. 507; Isom v. Mississippi, &c. R. R. Co., 36 Miss. 300; Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492; Turner v. Com'rs, 27 Kan. 314; In re Groffs, 21 Neb. 647, 33 N. W. 426 ; State v. Tuttle, 53 Wis. 45, 9 N. W. 791 ; People v. Hall, 8 Col. 485, 9 Pac. 34. "To the extent of the collision and repugnancy, the law of the State must yield ; and to that extent, and no further, it is rendered by such repug- narcy inoperative and void." Common- weilth v. Kimball, 24 Pick. 359, 361, per S/i itv, Ch. J. ; Norris v. Boston, 4 Met. 28i; Eckhart v. State, 6 W. Va. 515. Where the portions are separable, action under the statute will be presumed to have been taken without reference to the invalid provisions, and will be upheld so far as it is within the valid portions. Donnersberger v. Prendergast, 128 111. 229, 21 N. E. 1. 1 Commonwealth v. Hitchings, 5 Gray, 482. See People v. Briggs, 50 N. Y. 553. [See also Field v. Clark, 143 U. S. 649, 12 Sup. Ct. Rep. 495; Presser v. Illinois, 116 U. S. 263, 6 Sup. Ct. Rep. 580; Pen- niman's Case, 103 U. S. 716; Keokuk N. L. Packet Co. v. Keokuk, 95 U. S. 80; Com. v. Clark, 195 Pa. 634, 46 Atl. 286, 57 L. R. A. 348, and other cases cited in brief for plaintiff in error in Tullis v. Lake Erie and Western R. Co , 44 L. ed. U. S. 192 ; Wheeler v. N. Y., N. H. & H. R. Co., 178 U. S. 321, 20 Sup. Ct. Rep. 949, aff. 70 Conn. 326, 39 Atl. 443J Although a proviso is ineffectual because unconstitutional, it cannot be disregarded when the intention of the legislature is in question. Commonwealth v. Potts, 79 Pa. St. 164. 2 Commonwealth v. Hitchings, 5 Gray, 482; Willard v. People, 5 111. 461 ; Eells v. People, 6 111. 498 ; Robinson v. Bidwell, 22 Cal. 379 ; State v. Easterbrook, 3 Nev. 173; Hagerstown v. Dechert, 32 Md. 369 ; People v. Kenney, 96 N. Y. 294. 248 CONSTITUTIONAL LIMITATIONS. [CH. VII. other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. 1 And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue inde- pendently, then if some parts are unconstitutional, all the pro- visions which are thus dependent, conditional, or connected must fall with them. 2 1 Santo v. State, 2 Iowa, 165. But perhaps the doctrine of sustaining one part of a statute when the other is void was carried to an extreme in this case. A prohibitor\' liquor law had been passed which was not objectionable on constitu- tional grounds, except that the last sec- tion provided that " the question of pro- hibiting the sale and manufacture of intoxicating liquor" should be submitted to the electors of the State, and if it should appear " that a majority of the votes cast as aforesaid, upon said ques- tion of prohibition, shall be for the pro- hibitory liquor law, then this act shall take effect on the first day of July, 1855." The court held this to be an attempt by the legislature to shift the exercise of legislative power from themselves to the people, and therefore void ; but they also held that the remainder of the act was complete without this section, and must therefore be sustained on the rule above given. The reasoning of the court by which they are brought to this conclusion is ingenious; but one cannot avoid feel- ing, especially after reading the dissent- ing opinion of Chief Justice Wright, that by the decision the court gave effect to an act which the legislature did not de- sign should take effect unless the result of the unconstitutional submission to the people was in its favor. See also Weir v. Cram, 37 Iowa, 649. For a similar rul- ing, see Maize v. State, 4 Ind. 342 ; over- ruled in Meshmeier r.-State, 11 Ind. 482. And see State v. Dombaugh, 20 Ohio St. 167, where it was held competent to con- strue a part of an act held to be valid by another part adjudged unconstitutional, though the court considered it " quite probable" that if the legislature had sup- posed they were without power to adopt the void part of the act, they would have made an essentially different provision by the other. See also People v. Bull, 46 N. Y. 57, where part of an act was sus- tained which probably would not have been adopted by the legislature sepa- rately. It must be obvious, in any case where part of an act is set aside as un- constitutional, that it is unsafe to indulge in the same extreme presumptions in support of the remainder that are allow- able in support of a complete act when some cause of invalidity is suggested to the whole of it. In the latter case, we know the legislature designed the whole act to have effect, and we should sustain it if possible ; in the former, we do not know that the legislature would have been willing that a part of the act should be sustained if the remainder were held void, and there is generally a presump- tion more or less strong to the contrary. While, therefore, in the one case the act should be sustained unless the invalidity is clear, in the other the whole should fall unless it is manifest the portion not opposed to the constitution can stand by itself, and that in the legislative intent it was not to be controlled or modified in its construction and effect by the part which was void, ptfoel v. People, 187 111. 587, 68 N. E. 616, 52 L. R. A. 287, 79 Am. St. 238 ; Redell . Moores, 62 Neb. , 88 N. W. 243, 55 L. R. A. 740.] a Warren v. Mayor, &c. of Charles- town, 2 Gray, 84 ; Stater. CommissioniTS of Perry County, 5 Ohio St. 497 ; State v. Pugh, 43 Ohio St. 98 ; Slauson o. Ra- cine, 13 Wis. 398 ; Allen County Com- missioners v. Silvers, 22 Ind. 491 ; State v. Denny, 118 Ind. 449, 21 N. E. 274; CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 249 It has accordingly been held, where a statute submitted to the voters of a county the question of the removal of their county seat, and one section imposed the forfeiture of certain vested rights in case the vote was against the removal, that this portion of the act being void, the whole must fall, inasmuch as the whole was submitted to the electors collectively, and the threatened forfeiture would naturally affect the result of the vote. 1 And, where a statute annexed to the city of Racine certain lands previously in the township of Racine, but contained an express provision that the lands so annexed should be taxed at a different and less rate than other lands in the city ; the latter provision being held unconstitutional, it was also held that the whole statute must fail, inasmuch as such provision was clearly intended as a compensation for the annexation. 2 And where a statute, in order to obtain a jury of six persons, provided for the summoning of twelve jurors, from whom six were to be chosen and sworn, and under the constitution the jury must consist of twelve, it was held that the provision for reducing the number to six could not be rejected and the statute sustained, inasmuch as this would be giving to it a construction and effect ' different from that the legislature designed ; and would deprive the parties of the means of obtaining impartial jurors which the statute had intended to give. 3 On the other hand, to illustrate how intimately the valid and invalid portions of a statute may be associated, a section of the criminal code of Illinois provided that " if any person shall har- bor or secrete any negro, mulatto, or person of color, the same being a slave or servant, owing service or labor to any other persons, whether they reside in this State or in any other State, or Territory, or district, within the limits and under the jurisdic- tion of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every person so offending shall be deemed guilty of a misdemeanor," &c., and it was held that, although the latter portion of the section was void within Eckhart v. State, 6 W. Va. 615 ; Allen v. * State v. Commissioners of Perry Louisiana, 103 U. S. 80 ; Tillman v. Cocke, County, 6 Ohio St. 497. And see-Jones v. 9 Bax. 4'20 ; Jones v. Jones, 104 N. Y. 234, Robbins, 8 Gray, 329; Monroe v. Collins, 10 N. E. 269 ; Meyer v. Berlandi, 39 Minn. 17 Ohio St. 666, 684 ; Taylor v. Commis- 438, 40 N. W. 613. Where a statute made sioners of Ross County, 23 Ohio St. 22, the same provision for taxing telegraph 84. messages sent to points within and to 2 Slauson v. Racine, 13 Wis. 398, fol- points without the State, and was void lowed in State v. Dousman, 28 Wis. 641. as to the latter, it was held wholly void. 8 Campau v. Detroit, 14 Mich. 268. Western Union Tel. Co. v. State, 62 Tex. See Commonwealth v. Potts, 79 Pa. St. 630. 164. 250 CONSTITUTIONAL LIMITATIONS. . [CH. VII. the decision in Prigg v. Pennsylvania, 1 yet that the first portion, being a police regulation for the preservation of order in the State, and important to its well-being, and capable of being enforced without reference to the rest, was not affected by the invalidity of the rest. 2 A legislative act may be entirely valid as to some classes of cases, and clearly void as to others. 3 A general law for the pun- ishment of offences, which should endeavor to reach, by its retro- active operation, acts before committed, as well as to prescribe a rule of conduct for the citizen in the future, would be void so far as it was retrospective ; but such invalidity would not affect the operation of the law in regard to the cases which were within the legislative control. A law might be void as violating the obliga- tion of existing contracts, but valid as to all contracts which should be entered into subsequent to its passage, and which there- fore would have no legal force except such as the law itself would allow. 4 In any such case the unconstitutional law must operate as far as it can, 6 and it will not be held invalid on the objection of a party whose interests are not affected by it in a manner which the constitution forbids. If there are any exceptions to this rule, they must be of cases only where it is evident, from a contemplation of the statute and of the purpose to be accom- plished by it, that it would not have been passed at all, except as an entirety, and that the general purpose of the legislature will be defeated if it shall be held valid as to some cases and void as others. Waiving a Constitutional Objection. There are cases where a law in its application to a particular case must be sustained, because the party who makes objection has, by prior action, precluded himself from being heard against it. 6 Where a constitutional provision is designed for the protec- 1 16 Pet. 539. provision for compensation. The com- 2 Willard v. People, 5111. 461 ; Eellsr. missioners elected to take lands belonging People, 5 111. 498. See Hagerstown v. to the city. Held, that the act was not Pecltert, 32 Md. 369. wholly void for the omission to provide 8 Moore v. New Orleans, 32 La. Ann. compensation in case the lands of individ- 726. A law forbidding the sale of liquors uals had been selected, may be void as to imported liquors and 6 Baker v. Braman, 6 Hill, 47 ; Re- valid as to all others. Tiernan v. Rinker, gents of University v. Williams, 9 Gill & 102 U. S. 123 ; State v. Amery, 1 2 R. I. 64. J. 365, 31 Am. Dec. 72 ; Re Middleto wn, * Mundy v. Monroe, 1 Mich. 68 ; Car- 82 N. Y. 196. The case of Sadler v. gill v. Power, 1 Mich. 369. In People v. Langham, 34 Ala. 311, appears to be Rochester, 50 N. Y. 525, certain commis- opposed to this principle, but it also ap- sioners were appointed to take for a city pears to us to be based upon cases which hall either lands belonging to the city or are not applicable, lands of individuals. The act made no 6 One waives right to object to law CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 251 tion solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will. On this ground it has been held that an act appropriating the private property of one person for the private purposes of another, on compensation made, was valid if he whose property was taken assented thereto ; and that he did assent and waive the constitutional privilege, if he received the compensation awarded, or brought an action to recover it. 1 So if an act providing for the appropriation of prop- erty for a public use shall authorize more to be taken than the use requires, although such act would be void without the owner's assent, yet with it all objection on the ground of unconstitution- ality is removed. 2 'And where parties were authorized by statute to erect a dam across a river, provided they should first execute a bond to the people conditioned to pay such damages as each, and every person might sustain in consequence of the erection of the dam, the damages to be assessed by a justice of the peace, and the dam was erected and damages assessed as provided by the statute, it was held, in an action on the bond to recover those damages, that the party erecting the dam and who had received the benefit of the statute, was precluded by his action from con- testing its validity, and could not insist upon his right to a common-law trial by jury. 8 In these and the like cases the statute must be read with an implied proviso that the party to be affected shall assent thereto ; and such consent removes all obstacles, and lets the statute in to operate the same as if it had in terms contained the condition. 4 Under the terms of the statutes which exempt property from forced sale on execution, to a specified amount or value, it is sometimes necessary that the debtor, or some one in his behalf, shall appear and make selection or otherwise participate in the setting off of that to which he under which a grand jury is made up, by 8 Barb. 486 ; Mobile & Ohio Railroad Co. pleading in bar to the indictment. United v. State, 29 Ala. 573 ; Detmold v. Drake, States v. Gale, 109 U. S. 65, 3 Sup. Ct. 46 N. Y. 318. For a waiver in tax cases Rep. 1. An officer who has acted and resting on a similar principle, see Motzv. received money under an act cannot Detroit, 18 Mich. 495; Rickettsv. Spraker, contest its constitutionality. People v. 77 Ind. 371. Bunker, 70 Cal. 212, 11 Pac. 703. 8 People v. Murray, 5 Hill, 468. See 1 Baker v. Braman, 6 Hill, 47. So, if Lee v. Tillotson, 24 Wend. 337. one has started the machinery to set go- * Embury v. Conner, 3 N. Y. 511. And ing a local improvement act. Dewhurst see Matter of Albany St., 11 Wend. 149; v. Allegheny, 95 Pa. St. 437. One who Chamberlain v. Lyell, 3 Mich. 448 ; Beech- invokes the provisions of a statute can- er v. Baldy, 7 Mich. 488 ; Mobile & Ohio not attack its constitutionality. Moore Railroad Co. v. State, 29 Ala. 573 ; Det- v. Napier, S. C. , 42 S. E. 997.] mold v. Drake, 46 N. Y. 318 ; Haskell v. 2 Embury t>. Conner, 3N. Y. 511. And New Bedford, 108 Mass. 208; Wanser v. see Hey ward v. Mayor, &c. of New York, Atkinson, 43 N. J. 671. 252 CONSTITUTIONAL LIMITATIONS. [CH. VII. is entitled ; and where this is the case, the exemption cannot be forced upon him if he declines or neglects to claim it. 1 In Penn- sylvania and Alabama it has been decided that a party may, by executory agreement entered into at the time of contracting a debt, and as a part of the contract, waive his rights under the exemption laws and preclude himself from claiming them as against judgments obtained for such debt; 2 but in other States it is held, on what seems to be the better reason, that, as the exemption is granted on grounds of general policy, an executory agreement to waive it must be deemed contrary to the policy of the law, and for that reason void. 3 In criminal cases the doctrine that a constitutional privilege may be waived must be true to a very limited extent only. A party may consent to waive rights of property, but the trial and punishment for public offences are not within the provinces of individual consent or agreement.* Judicial Doubts on Constitutional Questions. It has been said by an eminent jurist, that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond 1 See Barton v. Brown, 68 Cal. 11, 8 261. And see Hoisington v. Huff, 24 Kan. Pac. 617 ; Butler v. Shiver, 79 Ga. 172, 4 379. S. E. 115. In some States the officer must 8 Maxwell v. Reed, 7 Wis. 582 ; Knee- make the selection when the debtor fails tie v. Newcomb, 22 N. Y. 249 ; Recht v. to do so, and in some the debtor, if a mar- Kelly, 82 111. 147, 25 Am. Rep. 301 ; Mox- ried man, is precluded from waiving the ley v. Ragan, 10 Bush, 156, 19 Am. Rep. privilege except with the consent of his 61; Denny v. White, 2 Cold. 283; Branch wife, given in writing. See Denny v. v. Tomlinson, 77 N. C. 388 ; Carter's White, 2 Cold. 283 ; Ross v. Lister, 14 Adm'r v. Carter, 20 Fla. 658 ; Cleghorn Tex. 469; Vanderlmrst v. Bacon, 38 v. Greeson, 77 Ga. 343. A woman cannot Mich. 669, 31 Am. Rep. 328 ; Oilman by ante-nuptial agreement release the v. Williams, 7 Wia. 329. She need not special allowance made to her as widow assent as to exemption of stock in trade, by statute ; it being against public policy. Charpentier v. Bresnahan, 62 Mich. 360, Phelps v. Phelps, 72 111. 546. 28 N. W. 916. * See post, p. 458. And as to the waiver 2 Case v. Dunmore, 23 Pa. St. 93; of the right to jury trial in civil cases, Bowman v. Smiley, 81 Pa. St. 225; post, pp. 590, 591. fJAn unconstitutional Sheliy's Appeal, 36 Pa. St. 373 ; O'Nail law cannot be held valid as to particular v. Craig, 66 Pa. St. 161 ; Thomas's Ap- parties on the ground of estoppel, and peal, 69 Pa. St. 120; Bibb v. Janney, 45 executed as a law. O'Brien v. Wheelock, Ala. 329; Brown v. Leitch, 60 Ala. 313, 184 U. S. 450, 22 Sup. Ct. Rep. 354.] 31 Am. Rep. 42 ; Neely v. Henry, 63 Ala. CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 253 reasonable doubt. 1 A reasonable doubt must be solved in favor of the legislative action, and the act be sustained. 2 \/ " The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubt- ful 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 obligation which that station imposes ; but it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitu- tion and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." 3 Mr. Justice Washington gives a reason for this rule, which has been repeatedly recognized in other cases which we have cited. After expressing the opinion that the particular question there presented, and which regarded the constitutionality of a State law, was involved in difficulty and doubt, he says : " But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be 1 Wellington, Petitioner, 16 Pick. 87, per Shaw, Ch. J. Alexander v. People, 7 Col. 155, 2 Pac. 894 ; Crowley v. State, 11 Oreg. 512, 6 Pac. 70. A law will be up- held unless its unconstitutionality is so clear "as to leave no doubt on the sub- ject." Kelly v. Meeks, 87 Mo. 396 ; Rob- inson v. Schenck, 102 Ind. 307, 1 N. E. 698. If an act may be valid or not ac- cording to the circumstances, a court would be bound to presume that such circumstances existed as would render it valid. Talbot v. Hudson, 16 Gray, 417. 2 Cooper >. Telfair, 4 Dall. 14 ; Dow v. Norris, 4 N. H. 16 ; Flint River Steam- boat Co. v. Foster, 5 Ga. 194 ; Carey v. Giles, 9 Ga. 253 ; Macon & Western Rail- road Co. v. Davis, 13 Ga. 68; Franklin Bridge Co. v. Wood, 14 Ga. 80; Kendall r. Kingston, 5 Mass. 524 ; Foster v. Essex Bank, 16 Mass. 245 ; Norwich v. County Commissioners of Hampshire, 13 Pick. 60 ; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210 ; Rich v. Flanders, ' 39 N. H. 304 ; Eason v. State, 11 Ark. 481 ; Hedley v. Commissioners of Franklin Co., 4 Blackf. 116 ; Stocking v. State, 7 Ind. 326 ; La Fayette v. Jenners, 10 Ind. 74 ; Ex parte McCollum, 1 Cow. 550; Coutant v. People, 11 Wend. 511 ; Clark v. People, 26 Wend. 559 ; Morris v. People, 3 Denio, 376 ; N. Y., &c. R. R. Co. v. Van Horn, 57 N. Y. 473 ; Baltimore v. State, 15 Md. 376 ; Cotton v. Commissioners of Leon Co., 6 Fla. 610 ; Cheney v. Jones, 14 Fla. 687 ; Lane v. Dorman, 4 111. 238, 36 Am. Dec. 543; Newland v. Marsh, 19 111. 376; Farmers' and Mechanics' Bank v. Smith, 3 S. & R. 63 ; Weister v. Hade, 52 Pa. St. 474 ; Sears v. Cottrell, 5 Mich. 251 ; Tyler v. People, 8 Mich. 320; Allen County Commissioners v. Silvers, 22 Ind. 491 ; State v. Robinson, 1 Kan. 17 ; Eyre v. Jacob, 14 Gratt. 422; Gormley v. Taylor, 44 Ga. 76 ; State v. Cape Girardeau, &c. R. R. Co., 48 Mo. 468 ; Oleson v. Railroad Co., 36 Wis. 383; Newsom v. Cocke, 44 Miss. 352; Slack v. Jacob, 8 W. Va. 612; Commonwealth v. Moore, 25 Gratt. 951. All doubts are to be resolved in favor of the validity of statutes. State v. Stan- dard Oil Co., 61 Neb. 28, 84 N. W. 413, 87 Am. St. 449; Isenhour v. State, 157 Ind. 617, 62 N. F. 40, 87 Am. St. 228; Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 87 Am. St. 918.] 3 Fletcher v. Peck, 6 Cranch, 87, 128, per Marshall, Ch. J. 254 CONSTITUTIONAL LIMITATIONS. [CH. VII. a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legisla- tive body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt." l The constitutionality of a law, then, is to be presumed, because the legislature, which was first required to pass upon the ques- tion, acting, as they must be deemed to have acted, with integrity, and with a just desire to keep within the restrictions laid by the constitution upon their action, have adjudged that it is so. They are a co-ordinate department of the government with the judi- ciary, invested with very high and responsible duties, as to some of which their acts are not subject to judicial scrutiny, and they legislate under the solemnity of an official oath, which it is not to be supposed they will disregard. It must, therefore, be sup- posed that their own doubts of the constitutionality of their action have been deliberately solved in its favor, so that the courts may with some confidence repose upon their conclusion, as one based upon their best judgment. For although it is plain, upon the authorities, that the courts should sustain legislative action when not clearly satisfied of its invalidity, it is equally plain in reason that the legislature should abstain from adopting such action if not fully assured of their authority to do so. Respect for the instrument under which they exercise their power should impel the legislature in every case to solve their doubts in its favor, and it is only because we are to presume they do so, that courts are warranted in giving weight in any case to their decision. If it were understood that legislators refrained from exercising their judgment, or that, in cases of doubt, they allowed themselves to lean in favor of the action they desired to accomplish, the foun- dation for the cases we have cited would be altogether taken away. 2 As to what the doubt shall be upon which the court is to act, we conceive that it can make no difference whether it springs from an endeavor to arrive at the true interpretation of the con- stitution, or from a consideration of the law after the meaning of the constitution has been judicially determined. It has sometimes been supposed that it was the duty of the court, first, to interpret the constitution, placing upon it a construction that must remain 1 Ogden v. Saunders, 12 Wheat. 213. 2 See upon this subject what is said See Adams v. Howe, 14 Mass. 340, 7 Am. in Osburn v. Staley, 5 W. Va. 85 ; Tate v. Dec. 216; Kellogg v. State Treasurer, 44 Bell, 4 Yerg. 202, 26 Am. Dec. 221. Vt. 356, 359 ; Slack v. Jacob, 8 W. Va. 612. CH. VII.] DECLAE1NG STATUTES UNCONSTITUTIONAL. 255 unvarying, and then test the law in question by it ; and that any other rule would lead to differing judicial decisions, if the legisla- ture, should put one interpretation upon the constitution at one time and a different one at another. But the decided cases do not sanction this rule, 1 and the difficulty suggested is rather imagin- ary than real, since it is but reasonable to expect that, where a construction has once been placed upon a constitutional provision, it will be followed afterwards, even though its original adoption i may have sprung from deference to legislative action rather than 7 from settled convictions in the judicial mind. 2 The duty of the court to uphold a statute when the conflict between it and the constitution is not clear, and the implication which must always exist that no violation has been intended by the legislature, may require it in some cases, where the meaning of the constitution is not in doubt, to lean in favor of such a con- struction of the statute as might not at first view seem most ob- vious and natural. For as a conflict between the statute and the constitution is not to be implied, it would seem to follow, where the meaning of the constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect. This is only saying, in another form of words, that the court must construe the statute in accordance with the legislative intent ; since it is always to be presumed the legislature designed the statute to take effect, and not to be a nullity, (a) The rule upon this subject is thus stated by the Supreme Court of Illinois : " Whenever an act of the legislature can be so con- strued and applied as to avoid conflict with the constitution and give it the force of law, such construction will be adopted by the courts. Therefore, acts of the legislature, in terms retrospective, and which, literally interpreted, would invalidate and destroy vested rights, are upheld by giving them prospective operation only ; for, applied to, and operating upon, future acts and transac- tion only, they are rules of property under and subject to which the citizen acquires property rights, and are obnoxious to no con- stitutional limitation ; but as retroactive laws, they reach to and destroy existing rights, through force of the legislative will, with- out a hearing or judgment of law. So will acts of the legislature, 1 Sun Mutual Insurance Co. v. New Wend. 599; Baltimore v. State, 15 Md. York, 5 Sandf. 10; Clark v. People, 26 376. 2 People v. Blodgett, 13 Mich 127. (a) QThe court will not go beyond the face of the law to seek for grounds, for holding it unconstitutional. Stevenson v. Colgan, 91 Cal. 649, 27 Pac. 1089, 14 L. R. A. 459, 25 Am. St. 230, and note on extrinsic evidence to show unconstitu- tionality in 25 Am. St. 233-3 256 CONSTITUTIONAL LIMITATIONS. [CH. VII. having elements of limitation, and capable of being so applied and administered, although the words are broad enough to, and do, literally read, strike at the right itself, be construed to limit and control the remedy ; for as such they are valid, but as weap- ons destructive of vested rights they are void ; and such force only will be given the acts as the legislature could impart to them." ! The Supreme Court of New Hampshire, a similar question being involved, recognizing their obligation " so to construe every act of the legislature as to make it consistent, if it be possible, with the provisions of the constitution," proceed to the examina- tion of a statute by the same rule, " without stopping to inquire what construction might be warranted by the natural import of the language used." 2 And it is said by Harris, J., delivering the opinion of the ma- jority of the Court of Appeals of New York : " A legislative act is not to be declared void upon a mere conflict of interpretation between the legislative and the judicial power. Before proceed- ing to annul, by judicial sentence, what lias been enacted by the law-making power, it should clearly appear that the act cannot be supported by any reasonable intendraent or allowable presump- tion." 3 And this after all is only the application of the familiar rule, that in the exposition of a statute it is the duty of the court to seek to ascertain and carry out the intention of the legislature in its enactment, and to give full effect to such intention ; and they are bound so to construe the statute, if practicable, as to give it force and validity, rather than to avoid it, or render it nugatory. 4 The rule is not different when the question is whether any portion of a statute is void, than when the whole is assailed. The excess of power, if there is any, is the same in either case, and is not to be applied in any instance. And on this ground it has been held that where the repealing clause in an unconstitutional statute repeals all inconsistent acts, the repealing clause is to stand and have effect, notwithstanding 1 Newland v. Marsh, 19 111. 376, 384. zens' Bank, 9 La. 506, 29 Am. Dec. 453. See also Bigelow v. West Wisconsin R. R. It is the duty of the court to adopt a con- Co., 27 Wis. 478 ; Attorney-General v. struction of a statute which, without Eau Claire, 37 Wis. 400; Coleman v. doing violence to the fair meaning of words Yesler, 1 Wash. Ter. 591 ; Singer Mfg. brings it into harmony with the consti- Co. v. McCollock, 24 Fed. Rep. 667. tution. Grenada Co. Supervisors v. 2 Dow t-. Norris, 4 N. H. 16, 18. See Brogden, 112 U. S. 261, 5 Sup. Ct. Rep. Dubuque v. Illinois Cent. R. R. Co., 39 125. Iowa, 56* , . __ * Clarke v. Rochester, 24 Barb. 446. ^ 8 People, t*. Supervisors of Orange, 17 See Marshall v. Grimes, 41 Miss. 27 ; N. Y. 235, 24*1. See also Boisdere r. Citi- Morrell v. Fickle, 3 Lea, 79. CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 257 the invalidity of the rest. 1 But other cases hold that such repeal- ing clause is to be understood as designed to repeal all conflicting provisions, in order that those of the new statute can have effect ; and that if the statute is invalid, nothing can conflict with it, and therefore nothing is repealed. 2 Great caution is necessary in some cases, or the rule which was designed to ascertain and effectuate the legislative intent will be pressed to the extreme of giving effect to part of a statute exclusively, when the legislative intent was that the part should not stand except as a component part of the whole, (a) Inquiry into Legislative Motives. From what examination has been given to this subject, it ap- pears that whether a statute is constitutional or not is always a question v of power ; that is, a question whether the legislature in the particular case, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept with'in the constitutional limits and observed the constitutional conditions. In any case in which this question is answered in the affirmative, the courts are not at lib- erty to inquire into the proper exercise of the power. They must assume that legislative discretion has been properly exercised. 3 If evidence was required, it must be supposed that it was before the legislature when the act was passed ; 4 and if any special find- 1 Meshmeier v. State, 11 Ind. 482 ; Ely 261 ; Harbeck v. New York, 10 Bosw. 366 ; v. Thompson, 3 A. K. Marsh. 70. QKquit. People v. Fleming, 7 Col. 230, 3 Pac. 70; G. & Trust Co. v. Donahoe, Del. , Portland v. Schmidt, 13 Oreg. 17, 6 Pac. 49 Atl. 372 (May 16, 1901).] 221. 2 Shepardson . Milwaukee & Beloit 8 People v. Lawrence, 36 Barb. 177 ; Eailroad Co., 6 Wis. 605 ; State v. Judge People v. New York Central Railroad Co., of County Court, 11 Wis. 60; Tims v. 34 Barb. 123; Baltimore v. State, 15 Md. State, 26 Ala. 165; Sullivan v. Adams, 3 376; Goddin v. Crump, 8 Leigh, 154. Gray, 476; Devoy v. Mayor, &c. of New * De Camp v. Eveland, 19 Barb. 81; York, 35 Barb. 264; Campau v. Detroit, Lusher v. Scites, 4 W. Va. 11. 14 Mich. 276 ; Childs v. Shower, 18 Iowa, (a) [The declaration of Brewer, J., in Chicago, &c. Ry. Co. v. Wellman, 143 U. S. 343, 345, 12 Sup. Ct. Rep. 400, aff. 83 Mich. 592, 47 N. W. 592, illustrates the hesi- tation of the courts to determine constitutional questions except the duty is clear. It was raised in this case on an agreed statement of facts. Said Justice Brewer: Whenever in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act is constitutional or not. But such an exer- cise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort and as a necessity in the determination of real, earnest, and vital controversies between individuals. It never was the thought that by means of a friendly suit a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.] 17 258 CONSTITUTIONAL LIMITATIONS. [CH. VII. ing was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equiv- alent to such finding. 1 And although it has sometimes been urged at the bar that the courts ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegation were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon. 2 The reasons are the 1 Johnson v. Joliet & Chicago Railroad Co., 23 111. 202. The Constitution of Illinois provided that " corporations not possessing banking powers or privileges may be formed under general laws, but shall not be created by special acts, except for municipal purposes, and in cases where, in the judgment of the General Assembly, the objects of the corporation cannot be attained under general laws." A special charter being passed without any legis- lative declaration that its object could not be attained under a general law, the Su- preme Court sustained it, but placed their decision mainly on the ground that the clause had been wholly disregarded, " and it would now produce far-spread ruin to declare such acts unconstitutional and void." It is very clearly intimated in the opinion, that the legislative practice, and this decision sustaining it, did violence to the intent of the constitution. A provi- sion in the Constitution of Indiana that "no act shall take effect until the same shall have been published and circulated in the several counties of this State, by authority, except in case of emergency," adds the words, " which emergency shall be declared in the preamble, or in the body of the law ; " thus clearly making the legislative declaration necessary. Carpenter v. Montgomery, 7 Blackf. 415 ; Mark v. State, 15 Ind. 98; Hendrickson v. Hendrickson, 7 Ind. 13. 2 Sunbury & Erie Railroad Co. v. Cooper, 33 Pa. St. 278; Ex parte New- man, 9 Cal. 602; Baltimore v. State, 15 Md. 376 ; Johnson v. Higgins, 3 Met. (Ky.) 560. "The courts cannot impute to the legislature any other than public motives for their acts." People v. Draper, 16 N. Y. 532, 545, per Denio, Ch. J. " We are not made judges of the motives of the legislature, and the court will not usurp the inquisitorial office of inquiring into the bona Jides of that body in discharging its duties." Shankland, J., in the same case, p. 555. " The powers of the three depart- ments are not merely equal ; they are exclusive in respect to the duties assigned to each. They are absolutely indepen- dent of each other. It is now proposed that one of the three powers shall insti- tute an inquiry into the conduct of an- other department, and form an issue to try by what motives the legislature were governed in the enactment of a law. If this may be done, we may also inquire by what motives the executive is induced to approve a bill or withhpld his approval, and in case of withholding it corruptly, by our mandate compel its approval. To institute the proposed inquiry would be a direct attack upon the independence of the legislature, and a usurpation of power subversive of the constitution." Wright v. Defrees, 8 Ind. 298, 302, per Gookins, J. " We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the consti- tution." Per Chase, Ch. J., in Ex parte McCardle, 7 Wall. 506, 514. The same doctrine is restated by Mr. Justice Hunt, in Doyle v. Continental Ins. Co., 94 U. S. 635. Courts cannot inquire into legis- lative motives " except as they may be disclosed on the face of the acts or be inferable from their operation considered with reference to the condition of the country and existing legislation." Soon King v. Crowley, 1 13 U. S. 703, 5 Sup. St. Rep. 730. QSee also Com. ex rel. Elkin r. Moir, 199 Pa. 534, 49 Atl. 351, 53 L. R. A. 837, 85 Am. St. 801 . 3 The rule applies to the legislation of municipalities. Brown v. Cape Girardeau, 90 Mo. 377, 2 S. W. 302. And see McCulloch v. State, 11 Ind. 424; Bradshaw v. Omaha, 1 Neb. 16; Lyon v. Morris, 15 Ga. 480; People v. Flagg, 46 N. Y. 401 ; Slack v. Jacob, 8 W. Va. 612, 635; State v. Cardozo, 5 S. C. 297 ; Humboldt County v. Churchill CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 259 same here as those which preclude an inquiry into the motives of the governor in the exercise of a discretion vested in him exclu- sively. He is responsible for his acts in such a case, not to the courts, but to the people. 1 Consequences if a Statute is Void. When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it ; contracts which depend upon it for their consideration are void ; it consti- tutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the de- cision was made. 2 And what is true of an act void in toto is true County Com'rs, 6 Nev. 30 ; Flint, &c. Plank Road Co. v. Woodhull, 25 Midi. 99; State o. Pagan, 22 La. Ann. 645; State v. Hays, 49 Mo. 604; Luehrman v. Tax- ing District, 2 Lea, 425 ; Kountze r. Omaha, 5 Dill. 443. In Jones v. Jones, 12 Pa. St. 350, the general principle was recognized, and it was decided not to be competent to declare a legislative divoYce void for fraud. It was nevertheless held competent to annul it, on the ground that it had been granted (as shown by parol evidence) for a cause which gave the leg- islature no jurisdiction. The legislature was regarded as being for the purpose a court of limited jurisdiction. In Attor- ney-General v. Supervisors of Lake Co., 33 Mich. 289, it is decided that when supervisors and people, having full au- thority over the subject, have acted upon the question of removal of a county seat, no question of motive can be gone into to invalidate their action. fJTIiat a res- olution accepting an imperfect sewer was secured by fraud and corrupt in- fluences is a valid defence to an action brought upon the resolution. Weston v, Syracuse, 158 N. Y. 274, 53 N. E. 12, 43 L. R. A. 678, 70 Am. St. 472.] 1 Attorney-General v. Brown, 1 Wis. 613; Wright v. Defrees, 8 Ind. 298. 2 Strong v. Daniel, 6 Ind. 348; Sum- ner v. Beeler, 50 Ind. 341 ; Astrom v. Hammond, 3 McLean, 107 ; Woolsey v. Commercial Bank, 6 McLean, 142 ; De- troit v. Martin, 34 Mich. 170 ; Kelly v. Bemis, 4 Gray, 83; Hover v. Barkhoof, 44 N. Y. 113; Clark v. Miller, 54 N. Y. 528 ; Meagher v. Storey Co., 5 Nev. 244 ; Ex pane Rosenblatt, 19 Nev. 439, 14 Pac. 298. In People v. Salomon, 54 111. 46, a ministerial officer was severely censured for presuming to disregard a law as un- constitutional. The court found the law to be valid, but they could not have found otherwise without justifying the officer. In Texas it has been held that an unconstitutional act has the force of law for the .protection of officers acting under it. Sessums ?:. Bolts, 34 Tex. 335. In Iowa, a magistrate who had issued a warrant, and the officer who had served it, for the destruction of liquors, under a city ordinance which the city had no power to adopt, were held to be protected, notwithstanding this want of power in the city. Henke v. McCord, 55 Iowa, 378, 7 N. W. 623. The warrant seems to have been considered " fair on its face ; " but can process ever be fair on its face when it commands that which is illegal? If a decision adjudging a statute unconstitu- tional is afterwards overruled, the statute is to be considered as having been in ' force for the whole period. Pierce v. Pierce, 46 Ind. 86. fjA statute void for unconstitutionality is dead and cannot be vitalized by a subsequent amendment of the constitution removing the constitu- tional objection, but must be re-enacted. Seneca Mining Co. v. Secretary of State, 82 Mich. 673, 47 N. W. 25, 9 L. R. A. 770 ; Banaz v. Smith, 133 Cal. 102, 65 Pac. 309 ; but see Re Rahrer, 43 Fed. 656, 10 L. R. A. 444; and this case in the Su- preme Court, Wilkerson v. Rahrer, 140 U. S. 645, 11 Sup. Ct. Rep. 865; Re Spkkler, 43 Fed. 653, 10 L. R. A. 440; Re Van Vliet, 43 Fed. 761, 10 L. R. A. 451. In State r. Godwin, 123 N. C. 260 CONSTITUTIONAL LIMITATIONS. [CH. VII. also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force. 697, 31 S. E. 221, 44 Am. St. 42, it is held be held to answer criminally for such that a person acting in reliance upon a conduct if the conduct would not have statute before it has been judicially de- been criminal if the statute was valid.]] termined to be unconstitutional cannot CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 261 CHAPTER VIII. THE SEVERAL GRADES OP MUNICIPAL GOVERNMENT. IN the examination of American constitutional law, we shall not fail to notice the care taken and the means adopted to bring the agencies by which power is to be exercised as near as possible to the subjects upon which the power is to operate. In contradistinction to those governments where power is concentrated in one man, or one or more bodies of men, whose supervision and active control extends to all the objects of gov- ernment within the territorial limits of the State, the American system is one of complete decentralization, the primary and vital idea of which is, that local affairs shall be managed by local authorities, and general affairs only by the central authority. It was under the control of this idea that a national constitution was formed, under which the States, while yielding to the na- tional government complete and exclusive jurisdiction over exter- nal affairs, conferred upon it such powers only, in regard to matters of internal regulation, as seemed to be essential to na- tional union, strength, and harmony, and without which the purpose in organizing the national authority might have been defeated. It is this, also, that impels the several States, as if by common arrangement, to subdivide their territory into counties, towns, road and school districts, 1 and to confer powers of local 1 The general rules respecting schools 612, 34 Am. Rep. 151 ; and so may normal are sufficiently alike in the several States schools and colleges : Powell v. Board of to justify bringing together in this place Education, 97 111. 375; Briggs v. Johnson the leading authorities concerning them. Co., 4 Dill. 148 ; music may be taught : To what degree the legislature shall pro- Bellmeyer v. School District, 44 Iowa, vide for the education of the people at the 564 ; State v, Webber, 108 Ind. 31, 8 N. E. cost of the State or of its municipalities, 708. "Common schools," means schools is a question which, except as regulated open to all, rather than those of a definite by the constitution, addresses itself to the grade : Roach v. Board, &c., 77 Mo. 484 ; legislative judgment exclusively. Com- and the State may confer upon the gov- monwealth v. Hartman, 17 Pa. St. 118. erning boards such authority as it shall It has been sometimes contended that it deem wise, but subject to alteration at was incompetent to go beyond making all times, and to be taken away at the provision for general education in the discretion of the State. Rawson v. Spen- common brandies of learning; but this cer, 113 Mass. 40. Many of the State con- notion is exploded. High schools may stitutions provide common-school funds, be established : Stuart v. School District, and some provide a fund for higher edu- 30 Mich. 69; Richards v. Raymond, 92 111. cation with certain restrictions : whatever 262 CONSTITUTIONAL LIMITATIONS. [Oil. VIII. legislation upon the people of each subdivision, and also to incor- porate cities, boroughs, and villages wherever the circumstances these are they must be observed. Peo- ple v. Board of Education, 13 Barb. 400; People v. Allen, 42 N. Y. 404; Halbert v. Sparks, 9 Bush, 259; Collins v. Hender- son, 11 Bush, 74; State v. Graham, 25 La. Ann. 440; State v. Board of Liquida- tion, 29 La. Ann. 77; Sun Mut. Ins. Co. v. Board of Liquidation, 31 La. Ann. 175; Littlewort v. Davis, 50 Miss. 403; Weir v. Day, 35 Ohio St. 143; Otken v. Lam- kin, 5i> Miss. 758. Although it is custom- ary to leave the control of schools in the hands of the school authorities, it is held competent for the State to contract with a publisher to supply all the schools of the State with text-books of a uniform character and price. Curryer v. Merrill, 25 Minn. 1, 33 Am Rep. 450; Bancroft v. Tliayer, 5 Sawy. 502 ; People v. Board of Education, 55 Cal. 331. QLeeper v. State, 103 Tenn. 500, 53 S. W. 962, 48 L. R. A. 166 ; State v. Haworth, 122 Ind. 462, 23 N. E. 946, 7 L. R. A. 240.] The governing school boards derive all their authority from the statute, and can ex- ercise no powers except those expressly granted, and those which result by neces- sary implication from the grant. Peers v. Board of Education, 72 111. 508; Clark v. School Directors, 78 111. 474 ; Adams v. State, 82 111. 132; Stevenson v. School Directors, 87 III. 255; Manning v. Van Buren, 28 Iowa, 332 ; Monticello Bank v. Coffin's Grove, 51 Iowa, 350, 1 N. W. 592 ; State v. Board of Education, 35 Ohio St. 368 ; State v. Mayor, &c., 7 Neb. 267 ; Gehling v. School District, 10 Neb. 239, 4 N. W. 1023. The board, in exercising its authority, must act as such, in regular meetings convened for the purpose ; it is not sufficient that the members severally give their assent to what is done. State v. Leonard, 3 Tenn. Ch. 117 ; State v. Tiedemann, 69 Mo. 515 ; Smith v. Town- ship Board, 58 Mo. 297 ; Dennison School District r. Padden, 89 Pa. St. 395; Hazen v. Lerche, 47 Mich. 626, 11 N. W. 413. But see Crane v. School District, 61 Mich. 299, 28 N. W. 105; Russell v. State, 13 Neb. 68, 12 N. W. 829. Illegal or unauthorized action by the board can- not be ratified by it, and the fact that the district has the benefit of what is done will not amount to a ratification by the district. School District v. Fogelman, 76 111. 189 ; Johnson v. School District, 67 Mo. 319 ; Board of Education v. Thomp- son, 33 Ohio St. 321 ; Gibson v. School District, 36 Mich. 404 ; Wells v. People, 71 111. 532. The general control of a school building is in the board, which may maintain all proper suits for posses- sion. Barber v. Trustees of Schools, 51 111. 396 ; Alderman v. School Directors, 91 111. 179. The board must not enter into contracts with its own members, as these would be void. Pickett v. School District, 25 Wis. 551 ; Hewitt v. Normal School District, 94 111. 528 ; Flint, &c. R. R. Co. v. Dewey, 14 Mich. 477. The board is entrusted with the authority to employ teachers, and to remove them under the rules prescribed by statute. Crawfords- ville v. Hays, 42 Ind. 200; School Dis- trict v. Colvin, 10 Kan. 283 ; Directors, &c. v. Burton, 26 Ohio St. 421 ; Jones v. Nebraska, 1 Neb. 176 ; Bays v. State, 6 Neb. 167; Parker v. School District, 5 Lea, 505. If a teacher is rightfully dis- missed, he cannot recover for services performed thereafter, though he takes possession of the school-house and con- tinues to teach. Pierce v. Beck, 61 Ga. 413. But if he is wrongfully dismissed, or if he leaves school because of the un- justifiable action of the board, he may recover for his whole time. Ewing v. School Directors, 2 111. App. 458 ; Scott v. School District, 46 Vt. 452. See Mc- Cutchen v. Windsor, 55 Mo. 149. Con- tracts for a stated time are subject to the observance of public holidays, and the teacher is entitled to these without de- duction from his salary. School District v. Gage, 39 Mich. 484. The school board may make the contract for teaching ex- tend beyond their own term of office : Wilson v. School District, 36 Conn. 280; Wait v. Ray, 67 N. Y. 36 ; provided they act in good faith and do not unreasonably forestall the action of their successors. Loomis v. Coleman, 51 Mo. 21 ; Steven- son v. School District, 87 111. 255 ; Hewitt v. School District, 94 111. 528; School Directors v. Hart, 4 111. App. 224. See Tappan v. School District, 44 Mich. 500, 7 N. W. 73; Athearn v. Independent District, 33 Iowa, 105. The board has CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 263 and needs of a dense population seem to require other regulations than those which are needful for the rural districts. The system is one which almost seems a part of the very nature of the race to which we belong. A similar subdivision of the realm for the purposes of municipal government has existed in England from the earliest ages ; 1 and in America, the first set- tlers, as if instinctively, adopted it in their frame of government, and no other has ever supplanted it, or even found advocates. In most of the colonies the central power created and provided for the organization of the towns ; 2 in one at least the towns preceded and created the central authority ; 3 but in all, the final general authority to establish for the school such rules and regulations as it shall deem wise. Donahoe v. Richards, 38 Me. 376; Spiller v. Woburn, 12 Allen, 127 ; Board of Education v. Minor, 23 Ohio St. 211. The rules may be enforced by suspensions and expulsions if neces- sary. Hodgkins v. Rockport, 105 Mass. 475 ; Murphy v. Directors, 30 Iowa, 429 ; Burdick v. Babcock, 31 Iowa, 562 ; Board of Education v. Thompson. 33 Ohio St. 321 ; Rulison v. Post, 79 111. 567 ; Sewell v. Board of Education, 29 Ohio St. 89. But this power is subject to the general principle that the by-laws of all corpora- tions must be reasonable ; if a rule is un- reasonable, and a pupil is punished for refusal to submit to it, an action will lie. Roe v. Deming, 21 Ohio St. 666. See Ward v. Flood, 48 Cal. 36; State v. Vanderbilt, 116 Ind. 11, 18 N. E. 266; Fertich v. Michener, 111 Ind. 472, 11 N. E. 605 ; State v. Board of Education, 63 Wis. 234, 23 N. W. 102; Holraan v. School Trustees, 77 Mich. 605, 43 N. W. 996. The board and the teacher have no con- trol of pupils after they have returned to their homes : Dritt v. Snodgrass, 66 Mo. 288 ; State v. Osborne, 24 Mo. App. 309 ; otherwise while they are on their way home before parental control is resumed Deskins v. Gose, 85 Mo. 485 ; Hutton v. State, 23 Tex. App. 386, 5 S. W. 122. It is held in Wisconsin and Illinois that pa- rents have a right to excuse their children from taking any particular study in a course, and that teachers cannot refuse to give instruction in other studies of the course to the pupils thus excused. Mor- row v. Wood, 35 Wis. 59, 17 Am. Rep. 471 ; Rulison v. Post, 79 111. 567 ; Lake View School Trustees v. People, 87 111. 303. As to the power to discriminate between colored and other children in schools, see post, 556, note. As to devot- ing school funds and school buildings to religious purposes, see post, 663, note. That towns, &c., may hold in trust moneys given for education, see Piper v. Moulton, 72 Me. 155; Hatheway v. Sackett, 32 Mich. 97. 1 Crabbe's History of English Law, c. 2; 1 Bl. Com. 114; Hallam's Middle Ages, c. 8, pt. 1 ; 2 Kent, 278 ; Vaughan's Revolutions in English History, b. 2, c. 8 ; Frothingham's Rise of the Republic, 14, 15. The early local institutions of Eng- land are presented with great fulness and erudition in the Constitutional History of Professor Stubbs. 2 For an interesting history of the leg- islation in Connecticut on this subject, see Webster v. Harwinton, 32 Conn. 131. In New Hampshire, see Bow v. Aliens- town, 34 N. H. 351. The learned note to Commonwealth v. Roxbury, 9 Gray, 503, will give similar information concerning the organization and authority of towns in the Massachusetts provinces. And see People v. Hurlbut, 24 Mich. 98, 9 Am. Rep. 103; Shumway v. Bennett, 29 Mich. 451. Mr. Elliott well says: " The prime strength of New England and of the whole republic was and is in the municipal governments and in the homes." And he adds, that among the earliest things decided in Massachusetts was, ' that trivial things should be ended in towns" (1635). Elliott's New Eng- land, Vol. I. p. 182. 3 Rhode Island ; see Arnold's History, c. 7. It is remarked by this author that, when the charter of Rhode Island was suspended to bring the colony under the 264 CONSTITUTIONAL LIMITATIONS. [CH. VIII. result \Vcis substantially the same, that towns, villages, boroughs, cities, and counties exercised the powers of local government, and the Colony or State the powers of a more general nature. 1 The several State constitutions have been framed with this system in view, and the delegations of power which they make, and the express and implied restraints which they impose there- upon, can only be correctly understood and construed by keeping in view its present existence and anticipated continuance. There are few of the general rules of constitutional law that are not more or less affected by the fact that the powers of government, instead of being concentrated in one body of men, are carefully distributed, with a view to being exercised with intelligence, economy, and facility, and as far as possible by the persons most directly and immediately interested. It has already been seen that the legislature cannot delegate its power to make laws ; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation usual with such corporations, dominion of Andros, "the American system uf town governments which necessity had compelled Rhode Island to initiate fifty years before, became the means of pre- serving the individual liberty of the citi- zen when that of the State or Colony was crushed." Arnold, Vol. I. p. 487. 1 "The townships," says De Tocque- ville, " are only subordinate to the State in those interests which I shall term social, as they are common to all the citizens. They are independent in all that concerns themselves, and among the inhabitants of New England I believe that not a man is to be found who would acknowledge that the State has any right to interfere in their local interests. The towns of New England buy and sell, pros- ecute or are indicted, augment or diminish their rates, without the slightest opposi- tion on the part of the administrative au- thority of the State. They are bound, however, to comply with the demands of the community. If a State is in need of money, a town can neither give nor with- hold the supplies. If a State projects a road, the township cannot refuse to let it cross its territory; if a police regulation is made by the State, it must be enforced by the town. A uniform system of in- struction is organized all over the country, arid every town is bound to establish the schools which the law ordains. . . . Strict as this obligation is, the government of the State imposes it in principle only, and in its performance the township as- sumes all its independent rights. Thus taxes are voted by the State, but they are assessed and collected by the town- ship ; the existence of a school is obliga- tory, but the township builds, pays, and superintends it. In France, the State collector receives the local imposts ; in America, the town collector receives the taxes of the State. Thus the French government lends its agents to the com- mune; in America, the township is the agent of the government. This fact alone shows the extent of the differences which exist between the two nations." Democ- racy in America, c. 6. See Frothing- ham's Rise of the Republic, 14-28. (T)n the Right to Local Self-Government, see articles by Amasa M. Eaton in 13 Harv. L. Rev. 441, 570, 638, and 14 Harv. L. Rev. 20, 116.3 CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 265 would always pass unchallenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State ; and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of State policy or dangers of local abuse to warrant the interposition. 1 The people of the municipalities, however, do not define for themselves their own rights, privileges, and powers, nor is there any common law which draws a definite line of distinction be- tween the powers which may be exercised by the State, and those which must be left to the local governments. 2 The municipalities must look to the State for such charters of government as the legislature shall see fit to provide ; and they cannot prescribe for themselves the details, though they have a right to expect that those charters will be granted with a recognition of the general principles with which we are familiar. The charter, or the 1 " It seems to be generally conceded that powers of local legislation may be granted to cities, towns, and other munic- ipal corporations. And it would require strong reasons to satisfy us that it could have been the design of the framers of our constitution to take from the legisla- ture a power which has been exercised in Europe by governments of all classes from the earliest history, and the exercise of which has probably done more to pro- mote civilization than all other causes combined ; which has been constantly exercised in every part of our country from its earliest settlement, and which has raised up among us many of our most valuable institutions." State v. Noyes, 30 N. H. 279, 292, per Bell, J. See also Tanner v. Trustees of Albion, 5 Hill, 121 ; Dalby v. Wolf, 14 Iowa, 228; State v. Simonds, 3 Mo. 414; McKee v. McKee, 8 B Monr. 433; Smith v. Levinus, 8 N. Y. 472 ; People v. Draper, 15 N. Y. 532 ; Burgess v. Pue, 2 Gill, 11 ; New Orleans v. Turpin, 13 La. Ann. 56 ; Gilkeson v. The Frederick Justices, 13 Gratt. 577; Mayor, &c. of New York v Ryan, 2 E. D. Smith, 368; St. Louis v. Russell, 9 Mo. 507; Bliss v. Kraus, 16 Ohio St. 55; Tri- gally v. Memphis, 6 Cold. 382 ; Durach's Appeal, 62 Pa. St. 491 ; State v. Wilcox, 45 Mo. 458 ; Jones v. Richmond, 18 Gratt: 617 ; State v. O'Neill, 24 Wis. 149; Brad- ley v. M'Atee, 7 Bush, 667, 3 Am. Rep. 309; Burckholter v. M'Connellsville, 20 Ohio St. 308 ; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103 ; Mills v. Charleton, 29 Wis. 400; Commonwealth v. Coyning- ham, 65 Pa. St. 76; People v. Kelsey, 34 Cal. 470 ; Tugman v. Chicago, 78 111. 405 ; Manly v. Raleigh, 4 Jones Eq. 370 ; Stone v. Charlestown, 114 Mass. 214 ; Hayden. v. Goodnow, 39 Conn. 164 ; Goldthwaite v. Montgomery, 50 Ala. 486; Stanfill v. Court of Co. Rev., 80 Ala. 287 ; Robin- son v. Schenck, 102 Ind. 307, 1 N. E. 698; Cross v. Hopkins, 6 W. Va. 323. [^Statute for government of cities of certain class may provide for appointment by governor temporarily of an executive officer for said city. Com. v. Moir, 199 Pa. 534, 49 Atl. 351, 53 L. R. A. 837, 85 Am. St. 801-3 The propriety of establish- ing a municipality is not a judicial ques- tion. People v. Riverside, 70 Cal. 461, 11 Pac. 759. It is not an unlawful delega- tion of power to give a city the right to extend its bounds. Kelly v. Meeks, 87 Mo. 396. See cases, post, p. 334. [[Nor to confer upon it the power to levy li- cense taxes upon occupations, and under such power it may tax brokers, even though they deal in nothing but stocks, and trade only upon the stock exchange. Banta v. Chicago, 172 111. 204, 50 N. E. 233, 40 L. R. A. 611. 2 As to the common law affecting these corporate existences, and the effect of usage, see 2 Kent, 278, 279. 266 CONSTITUTIONAL LIMITATIONS. [CH. VIII. general law under which they exercise their powers, is their con- stitution, in which they must be able to show authority for the acts they assume to perform. They have no inherent jurisdiction to make laws or adopt regulations of government ; they are gov- ernments of enumerated powers, acting by a delegated authority ; so that while the State legislature may exercise such powers of government coming within a proper designation of legislative power as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or im- pliedly conferred, and subject to such regulations or restrictions as are annexed to the grant. 1 The creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to correspond- ing duties, does not deprive the legislature of the State of that general control over their citizens which was before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action whenever it is deemed unwise, impolitic, or unjust, and even abolish them altogether in the legislative discretion, and substitute those which are different. 2 The rights and franchises of such a corporation, 1 Stetson v. Kempton, 13 Mass. 272 ; Willard v. Killingworth, 8 Conn. 247; Abendroth v. Greenwich, 29 Conn. 356 ; Baldwin v. North Stanford, 32 Conn. 47 ; Webster o. Harwinton, 32 Conn. 131 ; Douglass v. Placerville, 18 Cal. 643 ; Lack- land v. Northern Missouri Railroad Co., 31 Mo. 180; Mays v. Cincinnati, 1 Ohio St. 268; Frost v. Belmont, 6 Allen, 152; Hess v. Pegg, 7 Nev. 23 ; Quid v. Rich- mond, 23 Gratt. 464; Youngblood v. Sexton, 32 Mich. 406, 20 Am. Hep. 655; [^Louisiana Constr. & Imp. Co. v. Illinois C. R. Co., 49 La. Ann. 527, 21 So. 891, 37 L. R. A. 661. Where legislature grants right to occupy streets of a city upon getting consent of city council, that body cannot attach conditions to its consent unless the conditions are restricted en- tirely to matters within the city limits. Galveston & W. R. Co. v. Galveston, 90 Tex. 398, 39 S. W. 920, 36 L. R. A. 33 and note. Interest cannot be required upon delayed payments of sewer as- sessments in the absence of statutory authority therefor. Sargent & Co. v. Tuttle, 67 Conn. 162, 34 Atl. 1028, 32 L. R. A. 822. Nor can the city regulate the charges of gas companies for gas furnished private consumers in the ab- sence of a reservation of such power in their charter. Re Pryor, 55 Kan. 724, 41 Pac. 958, 29 L. R. A. 398, 49 Am. St. 280.] 2 St. Louis v. Allen, 13 Mo. 400 ; Coles v. Madison Co., Breese, 115; Richland County v. Lawrence County, 12 III. 1; Trustees of Schools v. Tatman, 13 111. 27 ; Robertson v. Rockford, 21 111. 451 ; Peo- ple v. Power, 25 111. 187; St. Louis v. Russell, 9 Mo. 507 ; State v. Cowan, 29 Mo. 330 ; McKim v. Odom, 3 Bland, 407 ; Granby v. Thurston, 23 Conn. 416 ; Har- rison Justices v. Holland, 3 Gratt. 247; Brighton v. Wilkinson, 2 Allen, 27; Sloan v. State, 8 Blackf. 361; Mills v. Wil- liams, 11 Ired. 558; Langworthy v. Du- buque, 16 Iowa, 271; Weeks v. Milwaukee, 10 Wis. 242 ; State v. Branin, 23 N. J. 484 ; Patterson v. Society, &c., 24 N. J. 385 ; Atchison v. Bartholow, 4 Kan. 124 ; City of St. Louis v. Cafferata, 24 Mo. 94 ; People v. Draper, 15 N. Y. 532 ; Hawkins v. Commonwealth, 76 Pa. St. 15; People v. Tweed, 63 N. Y. 202 ; Barnes v. Dis- trict of Columbia, 91 U. S. 540 ; Laramie Co. v. Albany Co., 92 U. S. 307 ; Aspin- wall v. Commissioners, &c , 22 How. 364; Howard v. McDiamid, 26 Ark. 100 ; Phila- CH. VIII.] THE GEADES OF MUNICIPAL GOVERNMENT. 267 being granted for the purposes of government, can never become such vested rights as against the State that they cannot be taken delphia v. Fox, 94 Pa. St. 169 ; Brad- sliaw v. Omaha, 1 x Neb. 16 ; Kulin v. Board of Education, 4 W. Va. 499 ; Sin- ton v. Ashbury, 41 Cal. 525; Hess v. Pegg, 7 Nev. 23 ; Hagerstown v. Schuer, 37 Md. 180 ; San Francisco v. Cnnavan, 42 Cal. 541 ; State v. Jennings, 27 Ark. 419; Division of Howard Co., 15 Kan. 194 ; Martin v. Dix, 52 Miss. 53 ; Goff v. Frederick, 44 Md. 67 ; Blessing v. Gal- veston, 42 Tex. 641 ; Wiley v. Bluffton, 111 Ind. 152, 12 N. E. 165; True v. Davis, 133 111. 522, 22 N. E. Rep. 410. [^Legislature may create a municipality of the inhabitants residing near the mouth of a navigable river and compel them to maintain a ship channel therein, although a portion of the benefit thereof is enjoyed by the inhabitants of a much larger area. Cook v. Portland, 20 Oreg. 680, 27 Pac. 263, 13 L. R. A. 633. May combine several cities and towns into a sewage district and compel them to con- struct a system of sewerage. Re King- man, 153 Mass. 566, 27 N. E. 778, 12 L. R. A. 417.] The legislature may in its discretion recall to itself and exercise so much of such powers as it has con- ferred upon municipal corporations as is not secured to them by the constitution. People v. Pinkney, 32 N. Y. 377. The subject was considered at length in Meri wether v. Garrett, 102 U. S. 472, in which was considered the effect of the legislation which abolished the city gov- ernment of Memphis ; and in Amy v. Selma, 77 Ala. 103. The creditors of a county cannot prevent the legislature reducing its limits, notwithstanding their security may be diminished thereby. Wade v. Richmond, 18 Gratt. 583 ; Luerh- man v. Taxing District, 2 Lea, 425. Com- pare Milner v. Pensacola, 2 Woods, 632 ; Galesburg v. Hawkinson, 75 111. 152 ; Rader v. Road District, 36 N. J. 273; Wallace v. Sharon Trustees, 84 N. C. 164. A charter may not be repealed to the. injury of creditors already entitled to payment. Morris v. State, 62 Tex. 728. This power is not defeated or affected by the circumstance that the municipal cor- poration was by its charter made the trustee of a charity; and in such case, if the corporation is abolished, the Court of Chancery may be empowered and di- rected by the repealing act to appoint a new trustee to take charge of the prop- erty and execute the trust. Montpelier v. East Montpelier, 29 Vt. 12. And see Harrison v. Bridgeton, 16 Mass. 16 ; Montpelier Academy v. George, 14 La. Ann. 406; Reynolds v. Baldwin, 1 La. Ann. 162; Police Jury v. Shreveport, 5 La. Ann. 665; Philadelphia v. Fox, 64 Pa. St. 169; Weymouth & Braintree Fire Commissioners v. County Commis- sioners, 108 Mass. 142. As to extent of power to hold property in trust, see Hatheway v. Sackett, 32 Mich. 97. But neither the identity of a corporation, nor its right to take property by devise, is destroyed by a change in its name, or enlargement of its area, or an increase in the number of its corporators. Girard v. Philadelphia, 7 Wall. 1. Changing a borough into a city does not of itself abolish or affect the existing borough ordinances. Trustees of Erie Academy v. City of Erie, 31 Pa. St. 515. Nor will it affect the indebtedness of the cor- poration, which will continue to be its indebtedness under its new organization. Olney v. Harvey, 50 111. 453. QSo when a city has had a de facto organization, and is afterward reorganized so as to be- come dejure, its old obligations continue. Shapleigh v. San Angelo, 167 U. S. 646, 17 Sup. Ct. Rep. 957; Ranken v. Mc- Callum, Tex. Civ. Ap. , 60 S. W. 975 (Jan. 26, 1901). Upon municipal bonds and changes in statutory construc- tion, see note to 18 L. ed. U. S. 350; also notes to 26 L. ed. U. S. 263, and 35 L. ed. U. S. 344.] Property brought within a city by the exercise of legislative discre- tion is liable for existing municipal in- debtedness. Maddrey v. Cox, 73 Tex. 538, 11 S. W. 541. A general statute, con- taining a clause repealing all statutes con- trary to its provisions, does not repeal a clause in a municipal charter on the same subject. State v. Branin, 23 N. J. 484. fJWhere the constitution prescribes that the charter of a certain city can be amended by its own citizens, the power of the legislature to amend is excluded. St. Louis v. Dorr, 145 Mo. 466, 41 S. W. 1094, 46 S. W. 976, 42 L. R. A. 686, 68 268 CONSTITUTIONAL LIMITATIONS. [CH. VIII. away ; nor does the charter constitute a contract in the sense of the constitutional provision which prohibits the obligation of con- tracts being violated. 1 Restraints on the legislative power of control must be found in the constitution of the State, or they must rest alone in the legislative discretion. 2 If the legislative Am. St. 675. Legislature has power to divide counties and to modify their boun- daries, but such modifications do not mod- ify the boundaries of legislative districts. People o. Board of Supervisors, 147 N. Y. 1, 41 N. E. 563, 30 L. R. A. 74. j 1 This principle was recognized by the several judges in Dartmouth College v. Woodward, 4 Wheat. 518, and in Meri- wether v. Garrett, 102 U. S. 472. And see People v. Morris, 13 Wend. 325 ; St. Louis v. Russell, 9 Mo. 507 ; Montpelier v. East Montpelier, 29 Vt. 12; Trustees of Schools v. Tatman, 13 111. 27 ; Brighton v. Wilkinson, 2 Allen, 27 ; Reynolds v. Baldwin, 1 La. Ann. 162; Police Jury v. Shreveport, 5 La. Ann. 665 ; Mt. Carmel v. Wabash County, 50 111. 69; Lake View v. Rose Hill Cemetery, 70 111. 19] ; Zitske v. Goldberg, 38 Wis. 216 ; Weeks . Gilmanton, 60 N. H. 500 ; Dillon, Mun. Corp. 24, 30, 37; FJCovington v. Ken- tucky, 173 U. S. 231, 19 Sup. Ct. Rep. 383; Essex Public Road Bd. v. Skinkle, 140 U. S. 334, 11 Sup. Ct. Rep. 790-3 2 See ante, p. 66; post, pp. 334-342. " Where a corporation is the mere creat- ure of legislative will, established for the general good and endowed by the State alone, the legislature may, at pleas- ure, modify the law by which it was created. For in that case there would be but one party affected, the government itself, and therefore' not a contract within the meaning of the constitution. The trustees of such a corporation would be the mere mandatories of the State, having no personal interest involved, and could not complain of any law that might abridge or destroy their agency." Mont- pelier Academy v. George, 14 La. Ann. 406. In Trustees of Schools v. Tatman, 13 111. 27, 30, the court say: "Public corporations are but parts of the machin- ery employed in carrying on the affairs of the State ; and they are subject to be changed, modified, or destroyed, as the exigencies of the public may demand. The State may exercise a general super- intendence and control over them and their rights and effects, so that their property is not diverted from the uses and objects for which it was given or pur- chased." And see State v. Miller, 65 Mo. 50. As to the effect of legislation abol- ishing a corporation upon its property and debts, see Mount Pleasant v. Beck- with, 100 U. S. 514; Meriwether v. Gar- rett, 102 U. S. 472 ; Rawson v. Spencer, 113 Mass. 40. Where a municipal cor- poration is dissolved and a new one for the same general purposes is created con- taining the same population and property in substance, to which the corporate property passes without consideration, the debts of the old fall upon the new municipality, and with them the power to tax for their payment. Mobile v. Watson, 116 U. S. 289, 6 Sup. Ct. Rep. 398; Amy v. Selma, 77 Ala. 103. Upon the division of towns and counties, &c. the legislature may apportion the debts as it sees fit. People v. Supervisors, 94 N. Y. 263; Clay Co. v. Chickasaw Co., 64 Miss. 634, 1 So. 753 ; Dare Co. v. Cur- rituck Co., 95 N. C. 189; Morrow Co. v. Hendryx, 14 Oreg. 397, 12 Pac. 806. It is a lawful exercise of legislative authority upon such division, to confer a part of the corporate property of the old corpo- ration upon the new, and to direct the old body to pay it over to the new. Har- rison v. Bridgeton, 16 Mass. 16; Salem Turnpike v. Essex Co., 100 Mass. 282 ; Whitney v. Stow, 111 Mass. 368 ; Stone v. Charlestown, 114 Mass. 214; Sedgwick Co. v. Bunker, 14 Kan. 498; Port wood v. Montgomery, 52 Miss. 523 ; Bristol v. New Chester, 3 N. H. 624; Milwaukee Town v. Milwaukee City, 12 Wis. 93; Marshall Co. Court v. Galloway Co. Court, 3 Bush, 93. QColumbus v. Colum- bus, 82 Wis. 374; 62 N. W. 425, 16 L. R. A. 695, and note.] But it seems that an apportionment of property can only be made at the time of the division. Wind- ham v. Portland, 4 Mass. 384 ; Hampshire v. Franklin, 16 Mass. 76. See Richland v. Lawrence, 12 III. 1 ; Bowdoinham v. Richmond, 6 Me. 112. In the latter case CH. VIII.] THE GEADES OF MUNICIPAL GOVERNMENT. 269 action in these cases operates injuriously to the municipalities or to individuals, the remedy is not with the courts. The courts have no power to interfere, and the people must be looked to, to right through the ballot-box all these wrongs. 1 This is the it was held that the apportionment of debts between an old town and one cre- ated from it was in the nature of a con- tract ; and it was not in the power of the legislature afterwards to release the new township from payment of its share as thus determined. But the case of Lay- ton v. New Orleans, 12 La. Ann. 515, is contra. See also Borough of Dunmore's Appeal, 52 Pa. St. 374, and School Dis- trict v. Board of Education, 73 Mo. 627 ; QJohnson v. San Diego, 109 Cal. 468, 42 Pac. 249, 30 L. R. A. 178 ; Perry County v. Conway County, 52 Ark. 430, 12 S. W. 877, 6 L. R. A. 665, and note ;] which in principle seem to accord with the Louisi- ana case. In the absence of such legisla- tion each part is entitled to the property falling within it, and to any equitable share of the moneys of the township. Towle v. Brown, 110 Ind. 65, 10 N. E. 626. [The old corporation retains all the property within its borders and re- mains subject to the then existing debts, in the absence of any legislative appor- tionment. McCully v. Tracy, 66 N. J. L. 489, 49 Atl. 436. j In Burns v. Clarion County, 62 Pa. St. 422, it was held the legislature had the power to open a set- tlement made by county auditors with the county treasurer, and to compel them to settle with him on principles of equity. See further, Cambridge v. Lexington, 17 Pick. 222 ; Attorney-General v. Cam- bridge, 16 Gray, 247 ; Clark v. Cam- bridge, &c. Bridge Proprietors, 104 Mass. 236. The legislature has power to lay out a road through several towns, and appor- tion the expense between them. Water- vine v. Kennebeck County, 59 Me. 80; Commonwealth r.Newburyport,103 Mass. 129. QAnd where a highway or bridge, although lying outside the territorial lim- its of a municipality, is especially bene- ficial to the people thereof, the legislature may compel that municipality to sustain part of the burden of providing and main- taining such highway, and may determine what portion of such expense shall be contributed by such municipality. State v. Williams, 68 Conn. 181, 36 Atl. 24, 421, 48 L. R. A. 465, aff. in Williams v. Eggles- ton, 170 U. S. 304, 18 Sup. Ct. Rep. 617. Upon the power of the legislature to im- pose burdens upon municipalities, see the cases collected in note to 48 L. R. A. 465.] And it may change the law and redis- tribute the burden afterwards, if from a change of circumstances or other reasons it is deemed just and proper to do so. Scituate v. Weymouth, 108 Mass. 128, and cases cited. A statute abolishing school districts is not void on grounds like the following : that it takes the prop- erty of the districts without compensa- tion ; that the taxes imposed will not be proportional and reasonable, or that con- tracts will be affected. Rawson v. Spen- cer, 113 Mass. 40. See Weymouth &c. Fire District v. County Commissioners, 108 Mass. 142. FJThe legislature may lay a penalty upon any county in which a lynching occurs, and may provide that such penalty shall be recovered by the person injured. Champaign Co. v. Church, 62 Ohio St. 318, 57 N. E. 50, 48 L. R. A. 738-3 1 " The correction of these abuses is as readily attained at the ballot-box as it would be by subjecting it to judicial re- vision. A citizen or a number of citizens may be subtracted from a county free from debt, having no taxation for county purposes, and added to an adjacent one, whose debts are heavy, and whose taxing powers are exercised to the utmost extent allowed by law, and this, too, without consulting their wishes. It is done every day. Perhaps a majority of the people thus annexed to an adjacent or thrown into a new county by the division of an old one may have petitioned the legisla- ture for this change ; but this is no relief to the outvoted minority, or the individ- ual who deems himself oppressed and vexed by the change. Must we, then, to prevent such occasional hardships, deny the power entirely ? " It must be borne in mind that these corporations, whether established over cities, counties, or townships (where such incorporated subdivisions exist), are never 270 CONSTITUTIONAL LIMITATIONS. [CH. VIII. general rule ; and the exceptions to it are not numerous, and will he indicated hereafter. Powers of Public Corporations. The powers of these corporations are either express or implied. The former are those which the legislative act under which they exist confers in express terms ; the latter are such as are neces- sary in order to carry into effect those expressly granted, and which must, therefore, be presumed to have been within the in- tention of the legislative grant. 1 Certain powers are also inciden- tal to corporations, and will be possessed unless expressly or by implication prohibited. Of these an English writer has said : " A municipal corporation has at common law few powers beyond those of electing, governing, and removing its members, and regulating its franchises and property. The power of its governing officers can only extend to the administration of the by-laws and other ordinances by which the body is regulated." 2 But without being expressly empowered so to do, they may sue and be sued ; may have a common seal; may purchase and hold lands and other property for corporate purposes (a), and convey the same ; may make by-laws whenever necessary to accomplish the design of the incorporation, and enforce the same by penalties ; and may enter into contracts to effectuate the corporate purposes. 3 Ex- cept as to these incidental powers, which need not be, though they usually are, mentioned in the charter, the charter itself, intrusted and can never be intrusted with son, 33 N. H. 424 ; McMillan v. Lee any legislative power inconsistent or con- County, 3 Iowa, 311 ; La Fayette v. Cox, Hiding with the general laws of the land, 5 Ind. 38; Clark v, Des Moines, 19 Iowa, or derogatory to those rights, either of 199 ; State v. Morristown, 33 N. J. 67 ; person or property, which the constitution Beaty v. Knowler, 4 Pet. 152 ; Mills v. and the general laws guarantee. They Gleason, 11 Wis. 470. In this last case, are strictly subordinate to the general it was held that these corporations had laws, and merely created to carry out the implied power to borrow money for cor- purposes of those laws with more cer- porate purposes. And see also Ketchum tainty and efficiency. They may be and v, Buffalo, 14 N. Y. 356. sometimes are intrusted with powers 2 Willcock on Municipal Corporations, which properly appertain to private cor- tit. 769. porations,and in such matters their power 3 Angell & Ames on Corp. 111, 239 ; as mere municipal corporations ceases." 2 Kyd on Corp. 102; State W.Ferguson, City of St. Louis <>. Allen, 13 Mo. 400. 33 N. H. 424. See Dillon, Mun. Corp., 1 2 Kent, 278, note; Halstead v. Mayor, for an examination, in the light of the &c. of New York, 3 N. Y. 430 ; Hodges v. authorities, of the several powers here Buffalo, 2 Denio, 110 ; New London v. mentioned. Brainard, 22 Conn. 562 ; State v. Fergu- (n) QSuch property as is held by the corporation in its public capacity is not liable to be taken on execution. See Klein v. New Orleans, 99 U. S. 149, and other cases in note to 35 L. ed. U. S. 656.] CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 271 or the general law under which they exist, is the measure of the authority to be exercised. And the general disposition of the courts in this country has been to confine municipalities within the limits that a strict construction of the grants of powers in their charters will assign to them ; thus applying sub- stantially the same rule that is applied to charters of private incorporation. 1 The reasonable presumption is that the State 1 Under a city charter which author- ized the common council to appoint assessors for the purpose of awarding damages to those through whose property a street might be opened, and to assess such damages on the property benefited, it was decided that the council were not empowered to levy a tax to pay for the other expenses of opening the street. Reed v. Toledo, 18 Ohio, 161. So a power to enact by-laws and ordinances to abate and remove nuisances will not authorize the passing of an ordinance to prevent nuisances, or to impose penalties for the creation thereof. Rochester v. Collins, 12 Barb 559. A power to impose penalties f or obstructions to streets would not author- ize the like penalties for encroachments upon streets, where, under the general laws of the State, the offences are recog- nized as different and distinct. Grand Rapids v. Hughes, 15 Mich. 54. Authority to levy a tax on real and personal estate would not warrant an income tax, espe- cially when such a tax is unusual in the State. Mayor of Savannah v. Hartridge, 8 Ga. 23. It will appear, therefore, that powers near akin to those expressly con- ferred, are not, for that reason, to be taken by implication. And see Commonwealth v. Erie & N. E. Railroad Co., 27 Pa. St. 339. This rule has often been applied where authority has been asserted on be- half of a municipal corporation to loan its credit to corporations formed to con- struct works of internal improvement. See LaFayette v. Cox, 6 Ind. 38; Cle- burne v. Gulf, &c. Ry. Co., 66 Tex. 457, 1 S. W. 342. The ordinary powers of a city do not give it authority to grant a street railway franchise. Eichels v. Evansville Street Railway Co., 78 Ind. 261. Power to buy land for public pur- poses does not cover a purchase for an agricultural society. Eufaula v. McNab, 67 Ala. 588. Power to make health regu- lations does not permit the erection of a public slaughter-house. Huesing v. Rock Island, 128 111. 465, 21 N. E. 558. Power to contract for a water-supply does not authorize granting an exclusive privilege for twenty-five years. Brenham v. Brenham Water Co., 67 Tex. 542, 4 S. W. 143. Power to regulate wharves does not cover creating a harbor. Speng- ler v. Trowbridge, 62 Miss. 46. A power to pass ordinances to prohibit the sale or giving away of intoxicating liquors in certain special cases is an implied exclusion of the power to prohibit the sale or giving away in other cases. State v. Ferguson, 33 N. H. 424. In Dunham v. Rochester, 6 Cow. 462, 465, it is said : " For all the purposes of jurisdiction, cor- porations are like the inferior courts, and must show the power given them in every case. If this be wanting, their proceed- ings must be holden void whenever they come in question, even collaterally ; for they are not judicial and subject to direct review on certiorari. 2 Kyd on Corp. 104- 107." The prescribed method of exer- cising a power must be strictly followed. Des Moines v. Gilchrist, 67 Iowa, 210, 25 N. W. 136. The power "to enact ordi- nances necessary for government " does not authorize the grant of the franchise of a toll-bridge. Williams v. Davidson, 43 Tex. 1. Like power coupled with that to regulate streets and business does not allow regulation of telephone charges. St. Louis v. Bell Telephone Co., 96 Mo. 623, 10 S. W. 197. The power to create indebtedness does not by implication carry with it a power to tax for its pay- ment. Jeffries v. Lawrence, 42 Iowa, 498. The approving vote of the citizens cannot give an authority the law has not conferred. McPherson v. Foster, 43 Iowa, 48. See Hackettstown v. Swack- hamer, 37 N. J. 191. In Nashville v. Ray, 19 Wall. 468, four of the eight justices of the Supreme Court denied the power of municipal corporations to borrow money or issue securities unless expressly authorized. Says Bradley, J. : " Such a 272 CONSTITUTIONAL LIMITATIONS. [CH. VIII. has granted in clear and unmistakable terms all it has designed to grant at all. It must follow that, if in any case a party assumes to deal with a corporation on the supposition that it possesses powers power does not belong to a municipal corporation as an incident of its creation. To be possessed it must be conferred by legislation, either express or implied. It does not belong, as a mere matter of course, to local government to raise loans. Such governments are not created for any such purpose. Their powers are pre- scribed by their charters, and those char- ters provide the means for exercising the powers ; and the creation of specific means excludes others." See Waxahachie v. Brown, 67 Tex. 619, 4 S. W. 207. Com- pare Bank of Chillicothe v. Chillicothe, 7 Ohio, 354; Clark v. School District, 3 R. I. 199 ; State v. Common Council of Madison, 7 Wis. 688; Mills v. Gleason, 11 Wis. 470; Hamlin v. Meadville, 6 Neb. 227 ; State v. Babcock, 22 Neb. 614, 85 N. W. 941. [[No implied power to exempt from taxation. Whiting v. West Point, 88 Va. 905, 14 S. E. 698, 15 L. R. A. 860, 29 Am. St. 750, and note. Nor to establish separate schools for white and negro children. Knox v. Bd. of Education, 45 Kan. 152, 25 Pac. 616, 11 L. R. A. 830. Nor to publish ordinances in foreign languages. Chicago v. McCoy, 136 111. 344, 26 N. E. 363, 11 L. R. A. 413. Nor to borrow money. Allen v. La Fayette, 89 Ala. 641, 8 So. 30, 9 L. R. A. 497, and note; Wells v. Salina, 119 N. Y. 280, 23 N. E. 870, 7 L. R. A. 759, and note. Bonds may be issued in payment for property lawfully purchased, although they could not be issued in order to borrow money. Rushville Gas Co. v. Rushville, 121 Ind. 206, 23 N. E. 72, 6 L. R. A. 315, 16 Am. St. 388.] But power to confine patients with infectious diseases covers renting a pest-house : Anderson v. O'Conner, 98 Ind. 168 ; and paying nurses : Labrie . Manchester, 59 N. H. 120; Rae v. Flint, 61 Mich. 526, 16 N. W. 887. Such cor- poration has implied power to take as trustee for indigent inhabitants: Estate of Robinson, 63 Cal. 620; and to defend its marshal sued for false imprisonment. Cullen v. Carthage, 103 Ind. 196, 2 N. E. 671 ; Roper v. Laurinburg, 90 N. C. 427. See also Nashville v. Ray, 19 Wall. 468; Milhau v. Sharp, 17 Barb. 435, 28 Barb. 228, and 27 N. Y. 611 ; Douglass v. Placer- ville, 18 Cal. 643; Mount Pleasant v. Breeze, 11 Iowa, 399; Hooper v. Emery, 14 Me. 375; Mayor, &c. of Macon v. Macon & Western R. R. Co., 7 Ga. 221 ; Hopple v. Brown, 13 Ohio St. 311 ; Lack- land v. Northern Missouri Railroad Co., 31 Mo. 180; Smith v. Morse, 2 Cal. 524; Bennett v. Borough of Birmingham, 31 Pa. St. 15 ; Earley's App., 103 Pa. St. 273 ; Tucker v. Virginia City, 4 Nev. 20 ; Leavenworth v. Norton, 1 Kan. 432; Kyle v. Malin, 8 Ind. 34; Johnson v. Philadel- phia, 60 Pa. St. 445; Kniper v. Louisville, 7 Bush, 599; Johnston v. Louisville, 11 Bush, 527 ; Williams v. Davidson, 43 Tex. 1 ; Burritt v. New Haven, 42 Conn. 174; Logan v. Pyne, 43 Iowa, 624; Field v. Des Moines, 39 Iowa, 575 ; Vance v. Little Rock, 30 Ark. 435; English v. Chicot County, 26 Ark. 454; Pullen v. Raleigh, 68 N. C. 451 ; Chisholm v. Mont- gomery, 2 Woods, 684 ; Burmeister v. Howard, 1 Wash. Ter. 207; Bell v. Plattville, 71 Wis. 139, 36 N. W. 831; Murphy v. Jacksonville, 18 Fla. 318. L~The expense of providing water for a city is not a " necessary expense " and therefore is within the constitutional limi- tation upon the debt-creating power of the municipality. Edgerton v. Goldsboro Water Co., 126 N. C. 93, 35 S. E. 243, 48 L. R. A. 444. But see Swanson v. Ottum- wa, Iowa, , 91 N. W. 1048, and Grune- walds v. Cedar Rapids, Iowa, , 91 N. W. 1059. Where a state board of health is empowered to quarantine and inspect persons and disinfect baggage from countries where contagious disease is for good reasons suspected, it cannot extend its powers, and quarantine all immigrants and incoming baggage. Hurst v. Warner, 102 Mich. 238, 60 N. W. 440, 26 L. R. A. 484, 47 Am. St. 525. See also Wilson v. Alabama G. S. R. Co., 77 Miss. 714, 28 So. 567, 78 Am. St. 543. Power to reg- ulate ten-pin alleys does not authorize their exclusion from all places within fire limits. Ex parte Patterson, Tex. Cr. , 58 S. W. 1011, 51 L. R. A. 654.] CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 273 which it does not, or to contract in any other manner than is per- mitted by the charter, he will not be allowed, even though he may have complied with the undertaking on his part, to maintain a suit against the corporation based upon its unauthorized action. Even where a party is induced to enter upon work for a corpora- tion by the false representations of corporate officers in regard to the existence of facts on which by law the power of the corpo- ration to enter upon the work depends, these false representations cannot have the effect to give a power which in the particular case was wanting, or to validate a contract otherwise void, and therefore can afford no ground of action against the corporation ; but every party contracting with it must take notice of any want of authority which the public records would show. 1 This is the 1 The common council of Williams- thereby, and to be assessed therefor, are burg had power to open, regulate, grade, and pave streets, but only upon petition signed by one-third of the persons own- ing lands within the assessment limits. A party entered into a contract with the corporation for improving a street, upon the false representations of the council that such a petition had been presented. Held, that the provision of law being public, and all the proceedings leading to a determination by the council to make a particular improvement being matters of record, all persons were charge- able with notice of the law and such pro- ceedings ; and that, notwithstanding the false representations, no action would lie against the city for work done under the contract. Swift v. Williamsburg, 24 Barb. 427. " If the plaintiff can recover on the state of facts he has stated in his complaint, the restriction and limitations which the legislature sought to impose upon the powers of the common council will go for nothing. And yet these pro- visions are matters of substance, and were designed to be of some service to the con- stituents of the common council. They were intended to protect the owners of lands and the taxpayers of the city, as well against the frauds and impositions of the contractors who might be employed to make these local improvements, as against the illegal acts of the common council themselves in employing the con- tractors. But if the plaintiff can recover in this action, of what value or effect are all these safeguards ? If the common council desire to make a local improve- ment, which the persons to be benefited unwilling to have made, the consent of the owners may be wholly dispensed with, according to the plaintiff's theory. The common council have only to repre- sent that the proper petition has been pre- sented and the proper proceedings have been taken, to warrant the improvement. They then enter into the contract. The improvement is made. Those other safe- guards for an assessment of the ex- penses and for reviewing the proceedings may or may not be taken. But when the work is completed and is to be paid for, it is found that the common council have no authority to lay any assessment or collect a dollar from the property benefited by the improvement. The contractor then brings his action, and recovers from the city the damages he has sustained by the failure of the city to pay him the contract price. The ground of his action is the falsity of the representations made to him. But the truth or falsity of sucli representa- tions might have been ascertained by the party with the use of the most ordinary care and diligence. The existence of the proper petition, and the taking of the necessary initiatory steps to -warrant the improvement, were doubtless referred to and recited in the contract made with the plaintiff. And he thus became again directly chargeable with notice of the contents of all these papers. It is ob- vious that the restrictions and 1'mita- tions imposed by the law cannot thus be evaded. The consent of the parties in- terested in such improvements cannot be dispensed with ; the responsibility, which 18 274 CONSTITUTIONAL LIMITATIONS. [CH. VIII. general rule, and the cases of unauthorized action which may bind the corporation are exceptional, and will be referred to further on. Municipal corporations exercise the authority conferred upon them by law through votes of the corporators at public meetings, and through officers and agents duly elected or chosen. The cor- porators are the resident electors, who, under the general laws of the State, may vote at the ordinary elections, though sometimes, in special cases, the franchise has been conferred upon taxpayers exclusively. A meeting of corporators for any purpose of legal action must be regularly convened in such manner or at such time as may have been prescribed by law. If the corporators were to come together at any time without legal permission and assume to act for the corporation, their action would be of no legal force or validity whatever. The State permits them to wield a part of the governmental authority of the State, but only on the conditions which the law has prescribed, and one of these the conditions precedent created by the statute impose, cannot be thrown off in this manner. For the effect of doing so is to shift entirely the burden of making these local improvements, to relieve those on whom the law sought to impose the expense, and to throw it on others who are not liable either in law or morals." So, where the charter of Detroit pro- vided that no public work should be contracted for or commenced until an assessment had been levied to defray the expense, and that no such work should be paid or contracted to be paid for, ex- cept out of the proceeds of the tax thus levied, it was held that the city corpora- tion had no power to make itself respon- sible for the price of any public work, and that such work could only be paid for by funds actually in the hands of the city treasurer, provided for the spe- cific purpose. Goodrich v. Detroit, 12 Mich, 279. But if the city receives the fund and misappropriates it, it will be liable. Lansing v. Van Gorder, 24 Mich. 456. And that even if a contract is ultra vires a city is liable for value of work done under it, provided it receives the benefit of it, see Schipper v. Aurora, 121 Ind. 154, 22 N. E. 878, and cases cited. Parties dealing with the agents or offi- cers of municipal corporations must, at their own peril, take notice of the limits of the powers both of the municipal cor- poration, and of those assuming to act on its behalf. State v. Kirkley, 29 Md. 85; Gould v. Sterling, 23 N. Y. 456 ; Clark v. Des Moines, 19 Iowa, 199; Veeder v. Lima, 19 Wis. 280; Bryan v. Page, 61 Tex. 532, 32 Arn. Rep. 637; Tainter v. Worcester, 123 Mass. 311,25 Am. Rep. 90; Barton v. Swepston, 44 Ark. 437; Thomas v. Richmond, 12 Wall. 349 ; East Oakland v. Skinner, 94 U. S. 255; Dillon, Mun. Corp. 381. But a bonafide holder of municipal obligations has a right to rely upon the truth of their recitals, if they appear to be warranted by the legislation under which they are issued. Coloma v. Eaves, 92 U. S. 484; Walnut v. Wade, 103 U. S. 683 ; Pana v. Bowler, 107 U. S. 529, 2 Sup. Ct. Rep. 704 ; New Providence v. Halsey, 117 U. S. 336, 6 Sup. Ct. Rep. 764; Oregon v. Jennings, 119 U. S 74, 7 Sup Ct. Rep. 124 ; Aberdeen v. Sykes, 59 Miss. 236 ; and cases post, pp. 319-325. ([Contract for erecting public buildings and providing that only union labor shall be employed thereon is void, as unduly restricting competition and thereby increasing the cost of the wofk. Adams v. Brenan, 177 111. 194, 52 N. E. 314, 42 L. R. A. 718, 69 Am. St. 222. And see in this connection Atlanta v. Stein, 111 Ga. 789, 36 S. E. 932, 51 L. R. A. 335; Fiske v. People, 188 111. 206, 68 N. E. 985; People v. Coler, 166 N. Y. 1, 59 N. E. 716, 82 Am. St. 605.] CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 275 is that it shall be exercised in an orderly manner, at meetings assembled upon due notice and conducted according to legal forms, in order that there may be opportunity for reflection, con- sultation, and deliberation. 1 The notice may be either general, and given by the law itself, or it may be special, and given by some corporate officer or agent. Annual meetings are commonly provided for by general law, which names a time, and perhaps a place for the purpose. Of this general law every corporator must take notice, and the meetings held in pursuance of it are legal, even though a further notice by publication, which the statute directs, has been omitted. 2 But for special meetings the require- ment of special notice is imperative, and it must be given as the statute requires. 3 Sometimes it is directed to be given by publi- cation, sometimes by posted notice, and sometimes by personal notification. If the law requires the order or warrant for the meeting to specify its object, compliance is imperative, and the business which can be lawfully done at the meeting will be strictly limited to the object stated. 4 Special charters for corporations usually provide for some governing body who shall be empowered to make laws for them within the sphere of the powers conferred, and perhaps to appoint some portion or all of the ministerial and administrative officers. In the case of towns, school districts, &c., the power to make laws is largely confided to the corporators assembled in annual meeting ; 6 and in the case of counties, in some county board. The laws, whether designated orders, resolutions, or or- dinances, are more often in law spoken of as by-laws, and they must be justified by the grant of power which the State has made. Whatever is ultra vires in the case of any delegated authority, is of course void. Whatever is said above respecting notice for corporate meet- * Chamberlain v. Dover, 13 Me. 466, 29 2 See People v. Cowles, 13 N. Y. 350 ; Am. Dec. 517; Evans v. Osgood, 18 Me. People v, Hartwell, 12 Mich. 508; People 213; School District v. Atherton, 12 Met. v. Brenham, 3 Cal. 477; State v. Orvis, 105; Stone v. School District, 8 Cush. 20 Wis. 235; Dishon v. Smith, 10 Iowa, 592 ; Bethany v. Sperry, 10 Conn. 200 ; 212 ; State v. Jones, 19 Ind. 356. State v. Harrison, 67 Ind. 71 ; Pike County 8 Tuttle v. Cary, 7 Me. 426. v. Rowland, 94 Pa. St. 238; State v. Pet- * Little v. Merrill, 10 Pick. 543; Bart- tineli, 10 Nev. 181 ; State v. Bonnell, 35 lett v. Kinsley, 15 Conn. 327 ; Atwood Ohio St. 10; Ross v. Crockett, 14 La. v. Lircoln, 44 Vt. 332; Holt's Appeal, Ann. 811; Goulding v. Clark, 34 N. H. 5 R. I. 603; Reynolds v. New Salem, 148. See Stow v. Wise, 7 Conn. 214, 18 6 Met. 340; Bowen v. King, 34 Vt. 156; Am. Dec. 99; Brooklyn Trust Co. . Haines v. School District, 41 Me. 246; Hebron, 51 Conn. 22; Pierce v. New Or- Bloomfield v. Charter Oak Bank, 121 leans Building Co., 9 La. 397, 29 Am. U. S. 121, 7 Sup. Ct. Rep. 865. Dec. 448 ; Atlantic De Laine Co. . * See Williams v. Roberts, 88 111. 11. Mason, 5 R. I. 463. 276 CONSTITUTIONAL LIMITATIONS. [CH. VIII. ings is equally applicable to meetings of the official boards, with this exception: that as the board is composed of a definite num- ber of persons, if these all convene and act they may thereby waive the want of notice. But the meeting of a mere majority without notice to the others would be without legal authority. 1 Corporations by Prescription and Implication. The origin of many of the corporate privileges asserted and enjoyed in England is veiled in obscurity, and it is more than probable that in some instances they had no better foundation than an uninterrupted user for a considerable period. In other cases the royal or baronial grant became lost in the lapse of time, and the evidence that it had ever existed might rest exclusively upon reputation, or upon the inference to be drawn from the exercise of corporate functions. In all these cases it seems to be the law that the corporate existence may be maintained on the ground of prescription ; that is to say, the exercise of cor- porate rights for a time whereof the memory of man runneth not to the contrary is sufficient evidence that such rights were once granted by competent authority, and are therefore now exercised by right and not by usurpation. 2 And this presumption con- cludes the crown, notwithstanding the maxim that the crown shall lose no rights by lapse of time. If the right asserted is one of which a grant might be predicated, a jury is bound to presume a grant from that prescription. 3 In this particular the claim to a corporate franchise stands on the same ground as any claim of private right which requires a grant for its sup- port, and is to be sustained under the same circumstances of continuous assertion and enjoyment. 4 And even the grant of a charter by the crown will not preclude the claim to corporate rights by prescription ; for a new charter does not extinguish old privileges. 5 A corporation may also be established upon presumptive evi- dence that a charter has been granted within the time of memory. Such evidence is addressed to a jury, and though not conclusive upon them, yet, if it reasonably satifies their minds, it will justify 1 Gordon v. Preston, 1 Watts, 385, 26 Maynard, 15 Mich. 463; Stater. Bunker, Am. Dee. 75. 69 Me. 366. 2 Introduction to Willcock on Munici- 4 2 Kent, 277; Angell & Ames on Corp. pal Corporations ; The King v. Mayor, 70, 1 Kyd on Corp. 14. &c. of Stratford upon Avon, 14 East, 348 ; 6 Hadduck's Case, T. Raym. 439; Robie v. Sedgwick, 35 Barb. 319. See The King v. Mayor, &c. of Stratford Londonderry v. Andover, 28 Vt. 416. upon Avon, 14 East, 348; Bow v. Allena- 3 Mayor of Hull v. Horner, Cowp. 104, town, 34 N. H. 351. See Jameson v. Peo- per Lord Mansfield. Compare People v. pie, 16 111. 257. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 277 them in a verdict finding the corporate existence. "There is a great difference," says Lord Mansfield, " between length of time which operates as a bar to a claim, and that which is only used by way of evidence. A jury is concluded by length of time which operates as a bar ; as where the Statute of Limitations is pleaded in bar to a debt: though the jury is satisfied that the debt is due and unpaid, it is still a bar. So in the case of prescription. If it be time out of mind, a jury is bound to preclude the right from that prescription, if there could be a legal commencement of the right. But any written evidence, showing that there was a time when the prescription did not exist, is an answer to a claim founded on prescription. But length of time used merely by way of evidence may be left to the consideration of the jury, to be credited or not, and to draw their inference one way or the other according to circumstances." * The same ruling has been had in several cases in the courts of this country, where corporate powers had been exercised, but no charter could be produced. In one of these cases, common reputation that a charter had once existed was allowed to be given to the jury ; the court remarking upon the notorious fact that two great fires in the capital of the colony had destroyed many of the public records. 2 In other cases there was evidence of various acts which could only lawfully and prop- erly be done by a corporation, covering a period of thirty, forty, or fifty years, and done with the knowledge of the State and without question. 3 The inference of corporate powers, however, is not one of law ; but it is to be drawn as a fact by the jury. 4 Wherever a corporation is found to exist by prescription, the same rule as to construction of powers, we apprehend, would apply as in other cases. The presumption as to the powers granted would be limited by the proof of the usage, and nothing could be taken by intendment which the usage did not warrant. Corporations are also said sometimes to exist by implication. When that power in the State which can create corporations grants to individuals such property, rights, or franchises, or im- poses upon them such burdens, as can only be properly held, enjoyed, continued, or borne, according to the terms of the grant, by a corporate entity, the intention to create such corporate entity is to be presumed, and corporate capacity is held to be conferred 1 Mayor of Hull v. Horner, Cowp. 104, Mass. 400; New Boston v. Punbarton, 108; citing, among other cases, Bedle v. 12 N. H. 400, and 15 N. H. 201; Bow Beard, 12 Co. 5. v. Allenstown, 34 N. H. 351 ; Trott v. 2 Dillingham v. Snow, 5 Mass. 547. Warren, 11 Me. 227. And see Bow v. Allenstown, 34 N. H. * New Boston v. Dunbarton, 15 N. H. 351 ; Bassett v. Porter, 4 Cush. 487. 201 ; Bow v. Allenstown, 34 N. H. 351 ; 8 Stockbridge v. West Stockbridge, 12 Mayor of Hull v. Horner, 14 East, 102. 278 CONSTITUTIONAL LIMITATIONS. [CH. VIII. so far as is necessary to effectuate the purpose of the grant or burden. On this subject it will be sufficient for our purpose to refer to authorities named in the note. 1 In these cases the rule of strict construction of corporate powers applies with unusual force. Municipal By-Laws, (a) The power of municipal corporations to make by-laws is limited in various ways. 1 . It is controlled by the Constitution of the United States and of the State. The restrictions imposed by those instruments, which directly limit the legislative power of the State, rest equally upon all the instruments of government created by the State. If a State cannot pass an ex post facto law, or law impairing the obli- gation of contracts, neither can any agency do so which acts under the State with delegated authority. 2 By-laws, therefore, which in their operation would be ex post facto, or violate contracts, are not within the power of municipal corporations ; and whatever the people by the State constitution have prohibited the State government from doing, it cannot do indirectly through the local governments. 2. Municipal by-laws must also be in harmony with the general 1 Dyer, 400, cited by Lord Kenyan, in previously entered into by the corpora- Russell v. Men of Devon, 2 T. R. 667, and tion in a certificate of scholarship which in 2 Kent, 276 ; Viner's Abr. tit. " Cor- it had issued. See also Davenport, &c. poration ; " Conservators of River Tone Co. v. Davenport, 13 Iowa, 229; Saving v. Ash, 10 B. & C. 349, 10 B. & C. 383, Society v. Philadelphia, 31 Pa. St. 175; citing case of Sutton Hospital, 10 Co. Haywood v. Savannah, 12 Ga. 404. If 28; per Kent, Chancellor, in Denton v. an ordinance and its acceptance make a Jackson, 2 Johns. Ch. 320 ; Coburn v. El- contract, it cannot be impaired by sub- lenwood, 4 N. H. 99 ; Atkinson v. Bemis, sequent ordinances. People v. Chicago 11 N. H. 44; North Hempstead v. Hemp- W. D. Ry. Co., 118 111. 113, 7 N. E. 116; stead, 2 Wend. 109; Thomas v. Dakin,22 Kansas City v. Corrigan, 86 Mo. 67. fJA Wend. 9 ; per Shaw, Ch. J., in Stebbins v. city cannot set apart a certain street as a Jennings, 10 Pick. 172 ; Mahony v. Bank boulevard and require that only resi- of the State, 4 Ark. 620. Only where a dences be erected upon the lands abutting contract made in good faith cannot other- thereon. St. Louis v. Dorr, 145 Mo. 466, wise be enforced, will the doctrine of im- 41 S. W. 1094, 46 S. W. 976, 68 Am. St. plication be upheld. Blair v. West Point, . 575, 42 L. R. A. 686. An ordinance for- '2 McCrary, 459, and cases cited. bidding any person " knowingly to asso- 2 Angell & Ames on Corporations, ciate with persons having the reputation 322; Stuyvesant v. Mayor, &c. of New of being thieves is invalid." Ex parte York, 7 Cow. 588; Brooklyn Central Smith, 135 Mo. 223, 36 S. W. 628, 58 Railroad Co. v. Brooklyn City Railroad Am. St. 676, 33 L. R. A. 606. So an Co., 32 Barb. 358 ; Illinois Conference ordinance forbidding the carrying on of Female College v. Cooper, 25 111. 148. one's regular occupation on Christmas The last was a case where a by-law of Day is void. Watson v. Town of Thorn, an educational corporation was held void, Ga. , 42 S. E. 747.] as violating the obligation of a contract (a) Upon municipal ordinances and by-laws, see note to 41 L. ed. U. S. 519.J CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 279 laws of the State, and with the provisions of the municipal char- ter. Whenever they come in conflict with either, the by-law must give way. 1 The charter, however, may expressly or by necessary implication exclude the general laws of the State on any particular subject, and allow the corporation to pass local laws at discretion, which may differ from the rule in force elsewhere. 2 But in these cases the control of the State is not excluded if the legislature afterward see fit to exercise it ; nor will conferring a power upon a corporation to pass by-laws and impose penalties for the regula- tion of any specified subject necessarily supersede the State law on the same subject, but the State law and the by-law may both stand together if not inconsistent. 3 Indeed, an act may be a penal offence under the laws of the State, and further penalties, under proper legislative authority, be imposed for its commission by municipal by-laws, and the enforcement of the one would not preclude the enforcement of the other.* 1 Wood v. Brooklyn, 14 Barb. 425; Mayor, &c. of New York v. Nichols, 4 Hill, 209 ; Petersburg v. Metzker, 21 111. 205 ; Southport v. Ogden, 23 Conn. 128 ; Andrews v. Insurance Co., 37 Me. 256 ; Canton v. Nist, 9 Ohio St. 439; Carr v. St. Louis, 9 Mo. 191 ; Commonwealth v. Erie & Northeast Railroad Co., 27 Pa. St. 339; Burlington v. Kellar, 18 Iowa, 59; Conwell v. O'Brien, 11 Ind. 419; March v. Commonwealth, 12 B. Monr. 25. See Baldwin v. Green, 10 Mo. 410; Cowen v. West Troy, 43 Barb. 48; State v. Georgia Medical Society, 38 Ga. 608; Pesterfield v. Vickers, 3 Cold. 205 ; Mays v. Cincinnati, 1 Ohio St. 268; Wirth v. Wilmington, 68 N. C. 24; Flood v. State, 19 Tex. App. 584 ; Bohmy v. State, 21 Tex. App. 507, 2 S. W. 886; QShreve- port v. Prescott, 51 La. Ann. 1895, 26 So. 6G4, 46 L. R. A. 193; Katzenberger v. Lawo, 90 Tenn. 235, 16 S. W. 611, 13 L. R. A. 185, 25 Am. St. 68.1. Ordinance cannot authorize keeping within city lim- its a greater quantity of explosives than statute allows. Cameron v. Kenyon-Con- nell Comm'l Co., 22 Mont. 312, 56 Pac. 358, 44 L. R. A. 508. Ordinance granting exclusive privilege for thirty years to con- struct and maintain waterworks to sup- ply town with water is void as creating a monopoly. Thrift v. Elizabeth City, 122 N. C. 31, 30 S. E. 349, 44 L. R. A. 427. Ordinance cannot penalize the employ- ment of a laborer by a contractor for more than eight hours a day upon city works. Re Kuback, 85 Cal. 274, 24 Pac. 737, 9 L. R. A. 482, 20 Am. St. 226.] Under the Kansas Constitution no city can by imposing a liquor license tax encour- age a forbidden business without incurring a liability to be ousted of its corporate powers. State v. Topeka, 30 Kan. 653, 2 Pac. 587, 31 Kan. 452, 2 Pac. 593. 2 State r. Clark, 1 Dutch. 54; State v. Dwyer, 21 Minn. 512; Covington v. East St. Louis, 78 III. 548 ; Coulterville v. Gillen, 72 111. 599 ; McPherson v. Che- banse, 114 111. 46, 28 N. E. 454; St. Johnsbury v. Thompson, 59 Vt. 300, 9 Atl. 671. Peculiar and exceptional regu- lations may even be made applicable to particular portions of a city only, and yet not be invalid. Goddard, Petitioner, 16 Pick. 504; Commonwealth v. Patch, 97 Mass. 221, per Hoar, J. ; St. Louis v. Weber, 44 Mo. 547. 8 City of St. Louis v. Bentz, 11 Mo. 61 ; City of St. Louis v. Cafferata, 24 Mo. 94; Rogers v. Jones, 1 Wend. 261; Levy t'. State, 6 Ind. 281 ; Mayor, &c. of Mo- bile v. Allaire, 14 Ala. 400 ; Elk Point . Vaugn, 1 Dak. 113 ; People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124. * Such is the clear weight of author- ity, though the decisions are not uniform. We quote from Rogers v. Jones, 1 Wend. 261 : " But it is said that the by-law of a town or corporation is void, if the legisla- ture have regulated the subject by law. If the legislature have passed a law reg- ulating as to certain things in a city, I 280 CONSTITUTIONAL LIMITATIONS. [OH. VIII. 3. Municipal by-laws must also be reasonable. Whenever they appear not be so, the court must, as a matter of law, declare apprehend the corporation are not thereby restricted from making further regula- tions. Cases of this kind have occurred and never been questioned on that ground ; it is only to notice a case or two out of many. The legislature have imposed a penalty of one dollar for servile labor on Sunday ; the corpora- tion of New York have passed a by-law imposing the penalty of five dollars for the same offence. As to storing gunpow- der in New York, the legislature and corporation have each imposed the same penalty. Suits to recover the penalty have been sustained under the corpora- tion law. It is believed that the ground has never been taken that there was a conflict with the State law. One of these cases is reported in 12 Johns. 122. The question was open for discussion, but not noticed." In Mayor, &c. of Mobile e. Allaire, 14 Ala. 400, the validity of a municipal by-law, imposing a fine of fifty dollars for an assault anil battery com- mitted within the city, was brought in question. Collier, Ch. J., says (p. 403) : " The object of the power conferred by the charter, and the purpose of the ordi- nance itself, was not to punish for an offence against the criminal justice of the country, but to provide a mere police regulation, for the enforcement of good order and quiet within the limits of the corporation. So far as an offence has been committed against the public peace and morals, the corporate authorities have no power to inflict punishment, and we are not informed that they have attempted to arrogate it. It is altogether immaterial whether the State tribunal has interfered and exercised its power in bringing the defendant before it to answer for the assault and battery ; for whether he has there been punished or acquitted is alike unimportant. The offence against the corporation and the State we have seen are distinguishable and wholly discon- nected, and the prosecution at the suit of each proceeds upon a different hypothesis; the one contemplates the observance of the peace and good order of the city ; the other has a more enlarged object in view, the maintenance of the peace and dignity of the State." See also Mayor, &c. of Mobile v. Rouse, 8 Ala. 515 ; Intendant, &c. of Greensboro' v. Mullins, 13 Ala. 341 ; Mayor, &c. of New York v. Hyatt, 3 E. D. Smith, 156 ; People v. Stevens, 13 Wend. 341; Blatcliley v. Moser, 15 Wend. 215; Amboy v. Sleeper, 31 111. 499; State v. Crummey, 17 Minn. 72; State v. Oleson, 26 Minn. 507, 6 N. W. 959 ; Greenwood v. State, 6 Bax. 567, 32 Am. Rep. 539; Brownville v. Cook, 4 Neb. 101 ; Levy v. State, 6 Ind. 281 ; Ambrose v. State, 6 Ind. 351 ; Lawrenceburg v. Wuest, 16 Ind. 337 ; St. Louis v. Bentz, 11 Mo. 61 ; St. Louis v. Cafferata, 24 Mo. 94; State v. Gordon, 60 Mo. 383; St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791; Shafer v. Mumma, 17 Md. 331 ; Brown- ville v Cook, 4 Neb. 101 ; State v. Lud- wig, 21 Minn. 202 ; Bloomfield v. Trim- ble, 54 Iowa, 399, 37 Am. Rep. 212; Chicago Packing, &c. Co. v. Chicago, 88 111. 221, 30 Am. Rep. 545; Hankins v. People, 106 111. 628 ; Fennell v. Bay City, 36 Mich. 186 ; McRea v. Americus, 59 Ga. 168; Wong p. Astoria, 13 Oreg. 538, 11 Pac. 295 ; Hughes v. People, 8 Col. 536, 9 Pac. 50. [[Greenville v. Kemrnis, 58 S. C. 427, 36 S. E. 727, 50 L. R. A. 725 ; Thiesen v. McDavid, 34 Fla. 440, 16 So. 321, 26 L.R. A. 234; Ogden v. City of Madison, 111 Wis. 413, 87 N. W. 568, 55 L. R. A. 506. So, too, the same act may be a crime against a State and against the United States, punishable by each. People v. Welch, 141 N. Y. 266, 36 N. E. 328, 24 L. R. A. 117, 38 Am. St. 793.J Under a statute forbidding cities to pun- ish acts punishable by State law, a city may punish selling liquor without a city license, as this is not an offence against the State law. Frankfort v. Aughe, 114 Ind. 77, 15 N. E. 802. On the other hand, it was held in State v. Cowan, 29 Mo. 330. that where a municipal corporation was authorized to take cognizance of and pun- ish an act as an offence against its ordi- nances which was also an offence against the general laws of the State, and this power was exercised and the party pun- ished, he could not afterwards be pro- ceeded against under the State law. " The constitution," say the court, " for- bids that a person shall be twice pun- ished for the same offence. To hold that CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 281 them void. 1 To render them reasonable, they should tend in a party can be prosecuted for an act un- der the State laws, after he has been punished for the same act by the munic- ipal corporation within whose limits the act was done, would be to overthrow the power of the General Assembly to create corporations to aid in the management of the affairs of the State. For a power in the State to punish, after a punishment had been inflicted by the corporate au- thorities, could only find a support in the assumption that all the proceedings on the part of the corporation were null and void. The circumstance that the munic- ipal authorities have not exclusive juris- diction over the acts which constitute offences within their limits does not affect the question. It is enough that their jurisdiction is not excluded. If it exists, although it may be concurrent, if it is exercised, it is valid and binding so long as it is a constitutional principle that no man may be punished twice for the same offence." A similar ruling is laid down in People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124, and the case seems to be supported by State r. Welch, 36 Conn. 216. The case of Slaughter v. People, cited below, goes still farther. Those which hold that the party may be punished under both the State and the municipal law are within the princi- ple of Fox v. State, 6 How. 410; Moore v. People, 14 How. 13. And see Phillips v. People, 55 111. 429; State v. Rankin, 4 Cold. 145 ; Ex parte Siebold, 100 U. S. 371. A city cannot punish by ordinance what is already an offence by statute. State v. Keith, 94 N. C. 933; In re Sic, 73 Cal. 142, 14 Pac. 405 ; Menken v. Atlan- ta, 78 Ga. 668, 2 S. E. 659 ; [especially where the Constitution prescribes that all prosecutions shall be conducted in the name and by the authority of the State. Ex parte Fagg, 38 Tex. Cr. 573,44 S. W. 294, 40 L. E. A. 212;] unless expressly empowered: Ex parte Bourgeois, 60 Miss. 663. See Loeb v. Attica, 82 Ind. 175. In Jefferson City r. Courtmire, 9 Mo. 692, it was held that authority to a municipal corporation to " regulate the police of the city " gave it no power to pass an ordi- nance for the punishment of indictable offences. To the same effect is State v. Savannah, 1 T. U. P. Charl. 235, 4 Am. Dec. 708 ; Slaughter v. People, 2 Doug. (Mich.) 334 ; Jenkins v. Thomasville, 35 Ga. 145; Vason v. Augusta, 38 Ga. 542; Reich v. State, 53 Ga. 73; Washington v. Hammond, 76 N. C. 33 ; New Orleans v. Miller, 7 La. Ann. 651. fJAnd see also State v. McNally, 48 La. Ann. 1450, 21 So. 27, 36 L. R. A. 533-3 Where an act is expressly or by impli- cation permitted by the State law, it cannot be forbidden by the corporation. Thus, the statutes of New York estab- lished certain regulations for the putting up and marking of pressed hay, and pro- vided that such hay might be sold with- out deduction for tare, and by the weight as marked, or any other standard weight that should be agreed upon. It was held that the city of New York had no power to prohibit under a penalty the sale of such hay without inspection ; this being obviously inconsistent with the statute which gave a right to sell if its regulations were complied with. Mayor, &c. of New York v. Nichols, 4 Hill, 209. The penal enactments of a corpora- tion, like those of the State, must be sev- eral (De Ben v. Gerard, 4 La. Ann. 30), and will be strictly construed. St. Louis v. Goebel, 32 Mo. 295. An ordinance punishing as a crime a failure to build a sidewalk is void. Port Huron v. Jenkin- son, 77 Mich. 414, 43 N. W. 23. Com- pare James v. Pine Bluff, 49 Ark. 199, 4 S. W. 7(50. 1 2 Kyd on Corporations, 107 ; Davies v. Morgan, 1 Cromp. & J. 587 ; Chamber- lain of London v. Compton, 7 D, & R. 697; Clark v. Le Cren, 9 B. & C. 62; Gosling v. Veley, 12 Q. B. 328 ; Dunham v. Rochester, 6 Cow. 462 ; Mayor, &c. of Memphis v. Winfield, 8 Humph. 707; Harden v. Noyes, 6 Conn. 391 ; Waters v. Leech, 3 Ark. 110 ; White v. Mayor, 2 Swan, 364 ; Ex parte Burnett, 30 Ala. 461 ; Craig v. Burnett, 32 Ala. 728 ; Aus- tin v. Murray, 16 Pick. 121; Goddard, Petitioner, 16 Pick. 504 ; Commonwealth v. Worcester, 3 Pick. 461 ; Commission- ers v. Gas Co , 12 Pa. St. 318 ; State v. Jersey City, 29 N. J. 170; Gallatin v. Bradford, 1 Bibb, 209; Western Union Telegraph Co. v. Carew, 16 Mich. 525; State v. Freeman, 38 N. H. 426 ; Pedrick v, Bailey, 12 Gray, 161 ; St. Louis v. Weber, 44 Mo. 650; Peoria v. Calhoun, 29 111. 317 ; St. Paul v. Traeger, 25 Minn. 248, 282 CONSTITUTIONAL LIMITATIONS. [CH. VIII. some degree to the accomplishment of the objects for which the corporation was created and its powers conferred. A by-law, that persons chosen annually as stewards of the Society of Scriveners should furnish a dinner on election day to the freemen of the society, the freemen not being the electors nor required to at- tend, and the office of steward being for no other purpose but that of giving the dinner, was held not connected with the business of the corporation, and not tending to promote its objects, and therefore unreasonable and void. 1 And where a statute permitted a municipal corporation to license the sale of intoxicating drinks and to charge a license fee therefor, a by-law requiring the pay- ment of a license fee of one thousand dollars was held void as not advancing the purpose of the law, but as being in its nature pro- hibitory. 2 And if a corporation has power to prohibit the carrying on of dangerous occupations within its limits, a by-law which should permit one person to carry on such an occupation and prohibit another, who had an equal right, from pursuing the same business ; or which should allow the business to be carried on in existing buildings, but prohibit the erection of others for it, would 33 Am. Rep. 462. But where the ques- tion of the reasonableness of a by-law depends upon evidence, and it relates to a subject within the jurisdiction of the corporation, the court will presume it to be reasonable until the contrary is shown. Commonwealth v. Patch, 97 Mass. 221. And see St. Louis v. Weber, 44 Mo. 647 ; Clason v. Milwaukee, 30 Wis. 316; St. Louis v. Knox, 6 Mo. App. 247. An ordinance expressly, authorized by the legislature cannot be held unreasonable. A Coal Float v. Jefferson ville, 112 Ind. 15, 13 N. E. 115. To be reasonable, by- laws should be equal in their operation. Tutrman v. Chicago, 78 111. 405; Barling v. West, 29 Wis. 307. An ordinance as to obstructing streets with cars, unreason- able in its operation only in one locality, will be enforced elsewhere. Pennsylvania R. R. Co. v. Jersey City, 47 N. J. L. 286. [^Ordinance penalizing the sale or gift of street railway transfer tickets contrary to regulations of company issuing them is not unreasonable. Ex parte Lorenzen, 128 Cal. 431, 61 Pac. 68, 50 L. R. A. 65. To be invalid because unreasonable its unreasonable character must be so clearly apparent as to indicate a mere arbitrary exercise of the power vested in the council. State r. Barge, 82 Minn. 256, 84 N. W. 911, 63 L. R. A. 428; Wygant v. McLauchlan, 39 Oreg. 429, 64 Pac. 867, 64 L. R. A. 636, 87 Am. St. 673; State v. Robart, 83 Minn. 257, 86 N. W. 93, 333, 64 L. R. A. 947. In Ex parte Bahen, 115 Cal. 372, 47 Pac. 55, 36 L. R. A. 618, an ordinance prohibiting buri- als on lots not purchased before its enact- ment for such purpose is void upon the theory that it is unreasonable in that the right to restrain burials rests upon the theory that all burials are injurious to the public. See Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357.] 1 Society of Scriveners v. Brooking, 3 Q. B. 95. See, on this general subject, Dillon, Mun. Corp. 251-264. - 2 Ex parte Burnett, 30 Ala. 461 ; Craig v. Burnett, 32 Ala. 728. A by-law de- claring the keeping on hand of intoxicat- ing liquors a nuisance was held unreason- able and void in Sullivan v. Oneida, 61 111. 242. That which is not a nuisance in fact cannot be made such by municipal ordinance. Chicago, &c. R. R. Co. v. Joliet, 79111. 25; State v. Mott, 61 Md. 297; post, p. 883, note 1. fJAuthority to levy a license tax does not authorize the levy of one so heavy as to be prohibitory, where the business upon which it is levied is useful and legitimate. Morton v. Ma- con, 111 Ga. 162, 36 S. E. 627, 50 L. R. A. 485.] CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 283 be unreasonable. 1 And a right to license an employment does not imply a right to charge a license fee therefor with a view to reve- nue, unless such seems to be the manifest purpose of the power ; but the authority of the corporation will be limited to such a charge for the license as will cover the necessary expenses of issuing it, and the additional labor of officers and other expenses thereby imposed. A license is issued under the police power ; but the exaction of a license fee with a view to revenue would be an exercise of the power of taxation ; and the charter must plainly show an intent to confer that power, or the municipal corporation cannot assume it. 2 1 Mayor, &c. of Hudson v. Thome, 7 Paige, 261. A power to prevent and reg- ulate the carrying on of manufactures dangerous in causing or promoting fires does not authorize an ordinance prohib- iting the erection of wooden buildings within the city, or to limit the size of buildings which individuals shall be per- mitted to erect on their own premises. Ibid. See also Newton v. Belger, 143 Mass. 598, 10 N. E. 464. An ordinance for the destruction of property as a nuisance without a judicial hearing is void. Darst v. People, 51 111. 286. See cases p. 883, n. 1, post. An ordinance for the arrest and imprisonment without warrant of a person refusing to assist in extinguishing a fire is void. Judson v. Reardon, 16 Minn. 431. QOne which forbids the establishment and mainte- nance of livery stables within a specified part of the town, and then expressly exempts from its operation the stables already established, is void. Crowley v. West, 52 La. Ann. 526, 27 So. 63, 47 L. R. A. 652, 78 Am. St. 355.] 2 State v. Roberts, 11 Gill & J. 606; Mays v. Cincinnati, 1 Ohio St. 268; Cin- cinnati v. Bryson, 15 Ohio, 625 ; Free- holders v. Barber, 6 N. J. Eq. 64 ; Kip v. Paterson, 26 N. J. 298 ; State v. Hoboken, 41 N. J. 71 ; Bennett v. Borough of Bir- mingham, 31 Pa. St. 15; Commonwealth r. Stodder, 2 Cush. 662; Chilvers v. Peo- ple, 11 Mich. 43; Mayor, &c. of Mobile v. Yuille, 3 Ala. 137 ; Johnson v. Philadel- phia, 60 Pa. St. 445; State v. Herod, 29 Iowa, 123; Burlington v. Bumgardner, 42 Iowa, 673; Mayor, &c. of New York v. Second Avenue R. R. Co., 32 N. Y. 261 ; Home Ins. Co. v. Augusta, 60 Ga. 630; Cairo v. Bross, 101 111. 475; Muh- lenbrinck v. Commissioners, 42 N. J. 364 ; 36 Am. Rep. 518 ; Mestayer v. Corrige, 38 La. Ann. 708 ; Wisconsin Tel. Co. v. Oshkosh, 62 Wis. 32, 21 N. W. 828, Vansant v. Harlem Stage Co., 59 Md. 330. Nevertheless, the courts will not inquire very closely into the expense of a license with a view to adjudge it a tax, where it does not appear to be unreason- able in amount in view of its purpose as a regulation. Ash v. People, 11 Mich. 347; Van Baalen v. People, 40 Mich. 458; People v. Russell, 49 Mich. 617, 14 N. W. 568; Wolf v. Lansing, 53 Mich. 367, 19 N. W. 38; Johnson v. Philadelphia, 60 Pa. St. 445; Burlington v. Putnam Ins. Co., 31 Iowa, 102; Boston v. Schaffer, 9 Pick. 415; Welch v. Hotchkiss, 39 Conn. 140; State v. Hoboken, 41 N. J. 71; Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361 ; Jackson v. Newman, 59 Miss. 385; Ex parte Gregory, 20 Tex. App. 210; Fayetteville v. Carter, 52 Ark. 301, 12 S. W. 573. [Littlefield v. State, 42 Neb. 223, 60 N. W. 724, 28 L. R. A. 588, 47 Am. St. 697. Liquor license fee of $2000 in a city of 4000 inhabitants sustained in Ex parte Sikes, 102 Ala. 173, 15 So. 622, 24 L. R. A. 774.] In Illinois the imposition of license fees for revenue has been sustained. U. S. Dist. Co. r. Chicago, 112 111. 19, and cases cited ; and under the California Consti- tution of 1879 licenses may be imposed for regulation or revenue, or both. In re. Guerrero, 69 Cal. 88, 10 Pac. 261. A higher license imposed on a non-resident than on a resident for purposes of revenue is void. Morgan v. Orange, 60 N. J. L. 389, 13 Atl. 240. And in some cases it has been held that license fees might be imposed under the police power with a 284 CONSTITUTIONAL LIMITATIONS. [CH. VIII. A by-law, to be reasonable, should be certain. 1 If it affixes a penalty for its violation, it would seem that such penalty should be a fixed and certain sum, and not left to the discretion of the officer or court which is to impose it on conviction; 2 though a by-law imposing a penalty not exceeding a certain sum has been held not to be void for uncertainty. 3 So a by-law, to be reasonable, should be in harmony with the general principles of the common law. 4 If it is in general re- view to operate as a restriction upon the business or thing licensed. Carter v. Dow, 16 Wis. 299; Tenney v. Lenz, 16 Wis. 666. See State v. Cassidy, 22 Minn. 312; Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654 ; St. Johns- bury v. Thompson, 59 Vt. 200, 9 Atl. 671; Russellville v. White, 41 Ark. 485. But in sucli cases, where the right to impose such license fees can be fairly deduced from the charter, it would perhaps be safer and less liable to lead to confusion and difficulty to refer the cor- porate authority to the taxing power, rather than exclusively to the power of regulation. See Dunham v. Trustees of Rochester, 5 Cow. 462, upon the extent of the police power. Fees which are imposed under the inspection laws of the State are akin to license fees, and if exacted not for revenue, but to meet the expenses of regulation, are to be referred to the police power. Cincinnati Gas Light Co. v. State, 18 Ohio St. 237. A city cannot exact a license fee from a national bank. Carthage v. National Bank, 71 Mo. 508, 36 Am. Rep. 494. On this subject in general, see post, 709; Dillon, Mun. Corp. 291-308. ^Ordinance re- quiring payment of license fee of $150 per annum by all persons buying claims, held void as to one who bought a few city warrants for purposes of investment only. Bitzer v. Thompson, 20 Ky. L. 1318, 49 S. W. 199, 44 L. R. A. 141. j 1 Ordinance requiring use of device, which shall prevent escape of sparks as effectually as by any means in use for the purpose, is bad. Atkinson v. Good- rich Transp. Co., 60 Wis 141, 18 N. W. 764. Under power to prohibit driving at a rate of speed deemed inconsistent with public safety, the city may not prohibit driving at a speed which shall be found to be immoderate under the circumstances. Com. v. Roy, 140 Mass. 432, 4 N. E. 814. What shall be a violation of an ordinance cannot be left to implication. Helena v. Gray, 7 Mont. 48H, 17 Pac. 664. A license fee may not be left to be fixed for each case, or to be determined by the mayor. Bills v. Goshen, 117 Ind. 221, 20 N. E. 115; State Center v. Baren- stein, 66 Iowa, 249, 23 N. W. 652. [X)r- dinance requiring that any awning over a sidewalk must be "upon a suitable frame" is void for uncertainty. State v. Clarke, 69 Conn. 371, 37 Atl. 975, 39 L. R. A. 670, 61 Am. St. 45. So, one requiring a street railway company to provide " in some reasonable manner for the sprinkling of the streets through which their cars run." State v. New Orleans City & R R. Co., 49 La. Ann. 1571, 22 So. 839, 89 L. R. A. 618. Law prescribing different maximum loads for " narrow-tired " and " broad- tired " wagons using specified gravel roads is void for uncertainty in not defin- ing "broad-tired" and "narrow-tired." Cook o. State, 26 Ind. Ap. 278, 59 N. E. 489. Statute authorizing revocation of physician's license "for grossly unpro- fessional conduct of a character likely to deceive or defraud the public " is void for uncertainty. Matthews v. Murphy, _ Ky. , 63 S.W. 785 (June 22, 1901).] 2 Melick f. Washington, 47 N. J. L. 254 ; State v. Crenshaw, 94 N. C. 877. 3 Mayor, &c. of Huntsville v. Phelps, 27 Ala. 55, overruling Mayor, &c. of Mo- bile v. Yuille, 3 Ala. 137. And see Piper i'. Chappell, 14 M. & W. 624. * The following are cases in which municipal ordinances have been passed upon and their reasonableness deter- mined : Markets : Prohibiting sales out- side of. Reasonable Buffalo v. Webster, 10 Wend. 99 ; Bush w. Seabury, 8 Johns. 418; Bowling Green v. Carson, 10 Bush, 64; Le Claire v. Davenport, 13 Iowa, 210; Winnsboro v. Smart, 11 Rich. L. 651; St. Louis v. Weber, 14 Mo. 647. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 285 straint of trade, like the by-law that no person shall exercise Unreasonable Caldwell v. Alton, 33 111. 416; Bloomington v. Wahl, 46 III. 489; Bethune v. Hayes, 28 Ga. 560. Compare Hughes v. Recorder's Court, 75 Mich. 574, 42 N. W. 984, with People v. Kier, 78 Mich. 98, 43 N. W. 1039. See Gossigi v. New Orleans, La. Ann. , 4 So. 15; Ex parte Byrd, 84 Ala. 17. Requiring permission to occupy stands. Reasonable Nightingale, Petitioner, 11 Pick. 167. Imposing tax on stands. Reasonable Cincinnati v. Buckingham, 10 Ohio, 257. Unreasonable Kip v. Paterson, 26 N. J. 298. Licensing huck- sters : Reasonable Cherokee v. Fox, 34 Kan. 16, 7 Pac. 625. Unreasonable Dunham v. Rochester, 5 Cow. 462; St. Paul v. Traeger, 25 Minn. 248, 33 Am. Rep. 462 ; Muhlenbrinck v. Commission- ers, 42 N. J. 364, 36 Am. Rep. 518; Frommer v. Richmond, 31 Gratt. 646; Barling v. West, 29 Wis. 307, 9 Am. Rep. 576. Prohibiting wagons standing in market. Unreasonable Common- wealth v. Brooks, 109 Mass. 355; Com- monwealth v. Wilkins, 121 Mass. 356. Auctions: Prohibiting sales at, on streets. Reasonable White v. Kent, 11 Ohio St. 550. After sunset. Unreasonable Hayes v. Appleton, 24 Wis. 542. Im- posing heavy license on. Reasonable Decorah v. Dunstan, 38 Iowa, 96 ; Wig- gins v. Chicago, 68 111. 372 ; Fretwell v. Troy, 18 Kan. 271. Making it penal to sell without a license. Goshen v. Kern, 63 Ind. 468. Saloons and Restaurants : Closing for the night. Reasonable Staats v. Washington, 45 N. J. L. 318; Platteville u. Bell, 43 Wis. 488 ; Smith v. Knoxville, 3 Head, 245 ; State v. Welch, 36 Conn. 216; State v. Freeman, 38 N. H. 426; Maxwell . Jonesboro, 11 Heisk. 257; Baldwin v. Chicago, 68 111. 418. Unreasonable Ward v. Green- ville, 8 Baxt. 228, 35 Am. Rep. 700. Closing on certain days. Unreasonable Grills v. Jonesboro, 8 Baxt. 247. On Sunday. Reasonable Gabel v. Hous- ton, 29 Tex. 335; State v. Ludwig, 21 Minn. 202; Hudson v. Geary, 4 R. I. 485. Forbidding sale of liquor at restaurants. Reasonable State v. Clark, 28 N. H. 176. Forbidding female waiters in sa- loons. Reasonable Bergman v. Cleve- land, 39 Ohio St. 651. [^Requiring unobstructed view into all parts of in- terior from street, from sunset to sunrise, and prohibiting the letting in or out of any person during the hours when the saloon is lawfully required to be closed, is unreasonable ; requiring the saloon to be closed from 10 p. M. to 4 A. M. is reasonable. Bennett v. Pulaski, Tenn. Ch. Ap. , 52 S. W. 913, 47 L. R. A. 278.] Hackney Carriages : Reasonable to regulate fares. Commonwealth v. Gage, 114 Mass. 328. To put under direction of police. Commonwealth ;;. Matthews, 122 Mass. 60; St. Paul r. Smith, 27 Minn. 364, 7 N. W. 734, 38 Am. Rep. 296; Veneman v. Jones, 118 Ind. 41, 20 N. E. 644. To exclude from certain streets. Commonwealth v. Stodder, 2 Cush. 562. To require a license. Brooklyn v. Bres- lin, 57 N. Y. 591 ; City Council r. Pepper, 1 Rich. L. 364; Frankfort, &c. R. Co. v. Philadelphia, 58 Pa. St. 119; St. Louis v. Green, 70 Mo. 562. Unreasonable To grant one person exclusive right to run omnibuses in the city. Logan v. Pyne, 43 Iowa, 524, 22 Am. Rep. 261. Railroads : Regulating speed of. Reason- able Pennsylvania Company v. James, 81 Pa. St. 194; Whitson v. Franklin, 34 Ind. 392. Unreasonable Outside of inhabited portion of city. Meyers v. Chi- cago, R. I. & P. Co., 57 Iowa, 555, 10 N. W. 896. But see Knobloch v. Chicago, &c. Ry. Co., 31 Minn. 402, 18 N. W. 106. Requiring flagman at crossing which is not dangerous. Unreasonable Toledo, &c. R. R. Co. v. Jacksonville, 67 111. 37, 16 Am. Rep. 611. Prohibiting removal of snow by street railway companies without consent of street superintendent. Reasonable Union Railway Company v. Cambridge, 11 Allen, 287. Obstruct- ing streets with cars. Reasonable Penna. R. R. Co. v. Jersey City, 47 N. J. L. 286. Burials: Prohibiting in town. Unreasonable Austin v. Murray, 16 Pick. 121. Prohibiting within certain certain limits. Reasonable Coates v. New York, 7 Cowen, 585. Subjecting private cemeteries to control of city sex- ton. Unreasonable Bogert v. Indian- apolis, 13 Ind. 134. Requiring city sexton to expend $500 on the cemetery and to bury paupers free. Unreasonable Beroujohn v. Mobile, 27 Ala. 58. See p. 881, n. 1, post. Fire Limits : Establish- ing. Reasonable King v. Davenport, 286 CONSTITUTIONAL LIMITATIONS. [GIL VIII. the art of painter in the city of London, not being free of the com- 93 111. 305, 38 Am. Rep. 89; Monroe r. Hoffman, 29 La. Ann. 651, 29 Am. Rep. 345; Respublica v. Duquet, 2 Yeates, 493 ; Wadleigh v. Oilman, 12 Me. 403, 28 Am. Dec. 188; Brady v. Northwestern Ins. Co., 11 Midi. 425; Salem v. Maynes, 123 Mass. 372 ; Troy v. Winters, 4 Thomp. & C. (N. Y.) 256; McKibbin v. Fort Smith, 35 Ark. 352. Requiring a build- ing license fee. Reasonable Welch v. Hotchkiss, 39 Conn. 140, 12 Am. Rep. 383. Forbidding frame buildings in small towns. Unreasonable Kneedler v. Norristown, 100 Pa. St. 368. Houses of III Fame: Reasonable Prohibiting keeping of. State v. Williams, 11 S. C. 288; Childress v. Mayor, 3 Sneed, 356; State v. Mack, 41 La. Ann. 1079, 6 So. 808. Imposing penalty on owner of. McAlister v. Clark, 33 Conn. 91. Licens- ing. State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471. Arresting and fining lewd women. Shafer v. Mumma, 17 Md. 331 ; Braddy v. Milledgeville, 74 Ga. 516. Unreasonable Demolishing. Welch v. Stowell, 2 Doug. (Mich.) 332. Forbid- ding prostitute occupying any room in city. Milliken v. City Council, 54 Tex. 388, 38 Am. Rep. 629. [Forbidding all persons except nearest male relative to associate with prostitutes in any public place. Hechinger v. Maysville, 22 Ky. L. R. 486, 57 S. W. 619, 49 L. R. A. 114. But prostitutes may be forbidden to be upon the public streets between the hours of 7 P. M. and 4 A. M. without reasonable necessity for so being. Dunn v. Com- monwealth, 105 Ky. 834, 49 S. W. 813, 43 L. R. A. 701.] Slaughter Houses : Pro- hibiting in certain parts of city. Reason- able Cronin v. People, 82 N. Y. 318, 37 Am. Rep. 564 ; Metropolitan Board of Health v. Heister, 37 N. Y. 661 ; Mil- waukee v. Gross, 21 Wis. 241. See Wre- ford v. People, 14 Mich. 41. Laundries: Forbidding, except in brick or stone buildings, upheld. Matter of Yick Wo, 68 Cal. 294, 9 Pac. 139; rev. Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064. Limited to a certain part of a city. In re Hang Kie, 69 Cal. 149, 10 Pac. 327; and to certain hours Ex parte Moynier t 65 Cal. 33, 2 Pac. 728. [Ordinance pro- hibiting within certain district, and de- claring such as are within the district nuisances, is unconstitutional. In re Hong Wah, 82 Fed. Rep. 623.] The following are cases in which mu- nicipal ordinances have been declared rea- sonable Prohibiting keeping of swine in a city. Commonwealth v. Patch, 97 Mass. 221 ; State v. Holcomb, 68 Iowa, 107, 26 N. W. 33. Prohibiting swine running at large. Waco v. Powell, 32 Tex. 258; Crosby v. Warren, 1 Rich. 385; Whitfield v. Longest, 6 Ired. L. 268 ; Roberts v. Ogle, 30 111. 459 ; Gosse- link v. Campbell, 4 Iowa, 296. Prohibiting cattle running at large. Commonwealth v. Bean, 14 Gray, 52. Impounding such and selling after such notice. Carters- ville r. Lanham, 67 Ga. 753; but only the expense of impounding can be retained, not a tine upon the owner. Wilcox v. Hemming, 58 Wis. 144, 15 N. W. 435. Granting exclusive rights to remove car- casses of animals, dirt, or offal from city. Vandine, Petitioner, 6 Pick. 187, 17 Am. Dec. 351 ; contra, River Rendering Co. v. Behr, 77 Mo. 91. Requiring consent of mayor to maintain an awning. Pedrick v. Bailey, 12 Gray, 161. Requiring side- walk to be cleared of snow. Goddard, petitioner, 16 Pick. 504, 28 Am. Dec. 259; Kirby v. Boylston Market Ass'n, 14 Gray, 249; contra, Gridley v. Bloomington, 88 111. 555 ; CState v. Jackman, 69 N. H. 318, 41 Atl. 347, 42 L. R. A. 438; Chicago v. O'Brien, 111 111. 532, 53- Am. Rep. 640.] Requiring hoist-way to be closed after business hours. New York v. Williams, 15 N. Y. 502. Requiring a drawbridge to be closed after a vehicle had been kept waiting ten minutes. Chicago v. McGinn, 61 111. 266. Prohibiting laying of gas mains in winter. Northern Liberties v. Gas Co., 12 Pa. St. 318. Requiring hay or coal to be weighed by city weighers. Stokes v. New York, 14 Wend. 87 ; Yates v. Milwaukee, 12 Wis. 673; O'Maley v. Freeport, 96 Pa. St. 24. Regulating price and weight of bread. Mayor v. Yuille, 3 Ala. 137, 36 Am. Dec. 441 ; Page v. Fazackerly, 36 Barb. 392; Guillotte v. New Orleans, 12 La. Ann. 432. Pro- hibiting peddling without a license. Huntington v. Cheesbro, 57 Ind. 74. Prohibiting sale of adulterated milk. Polinsky v. People, 73 N. Y. 65. Pro- hibiting sale of milk without license. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 287 pany of painters, it will be void on this ground. 1 To take an Chicago v. Bartree, 100 111. 67 ; People v. Mulhoiland, 19 Hun, 648, 82 N. Y. 324, 37 Am. Rep. 668. Punishing vagrants. St. Louis v. Bentz, 11 Mo. 61. Imposing license tax on peddlers. Ex parte Ah Foy, 57 Cal. 92. Prohibiting keeping more than five tons of straw in one block at one time unless in a fire-proof en- closure. Clark v. South Bend, 86 Ind. 276. Prohibiting erection of livery stable on a block without consent of the owners of half the block. State v. Beattie, 16 Mo. App. 131. Requiring street railway company to report quarterly the number of passengers carried. St. Louis v. St. Louis R. R. Co., 89 Mo. 44, 1 S. W. 305. Prohibiting boys from getting on or off locomotives. Bearden v. Madison, 73 Ga. 184. Prohibiting stopping a vehicle in the street more than twenty minutes. Com. v. Fenton, 139 Mass. 195, 29 N. E. 653. Forbidding preaching on Boston Common without permission. Com. v. Davis, 140 Mass. 485, 4 N. E. 577. Pro- hibiting cornet playing in street without license. Com. v. Plaisted, 148 Mass. 375, 19 N. E. 224. (^Requiring license for col- lecting, storing, and dealing in rags in thickly settled portions of city. Com- monwealth v. Hubley, 172 Mass. 58, 51 N. E. 448, 42 L. R. A. 403, 70 Am. St. 242. Requiring a railroad to light the tracks operated by it within the city limits, and to use the same kind of lights and to light for the same period of the night as in the public streets. Cincin- nati, H. & I). R. Co. v. Bowling Green, 67 Ohio St. 336, 49 N. E. 121, 41 L. R. A. 422; upon compelling railroad to light its tracks in city, see note to this case in L. R. A. Prohibiting dogs from run- ning at large in streets and alleys and providing for the summary destruction of all dogs so caught running at large, unless they are ransomed within twenty- four hours, notice to owners of collared dogs being provided for. Hagerstown v. Witmer, 86 Md. 293, 37 Atl. 965, 39 L. R. A. 649. Punishing cruelty to animals in public places. State v. Kars- tendiek, 49 La. Ann. 1621, 22 So. 845, 39 L. R. A. 620; see upon municipal power as to nuisances affecting public morals, decency, peace, and good order, note to this case in L. R. A. ; upon nuisances relat- ing to trade or business, note in L. R. A. to Ex parte Lacey, 108 Cal. 326, 41 Pac.411, 38 L. R. A. 640, 49 Am. St. 93, which holds that the establishment of steam shoddy machines and of steam carpet-beating machines within one hundred feet of churches, &c., may be prohibited. Public scavengers may be required to take out licenses and to secure permit from board of health before removing contents of any privv vault. State v. McMahon, 69 Minn. 265/72 N. W. 79, 38 L. R. A. 675. Pro- hibiting keeping of any swine within city limits. Darlington v. Ward, 48 S. C. 570, 26 S. E. 906, 38 L. R. A. 326. Mak- ing lower water-rates to those who use large quantities. Silkman v. Bd. of Water Com'rs, 152 N. Y. 327, 46 N. E. 612, 37 L. R. A. 827. Requiring garbage- 1 Clark v. Le Cren, 9 B. & C. 52; Chamberlain of London v. Compton, 7 D. & R. 597. Compare Hayden v. Noyes, 6 Conn. 391; Willard v. Killingworth, 8 Conn. 247. But a by-law is not void, as in restraint of trade, which requires loaves of bread baked for sale to be of specified weight and properly stamped, or which requires bakers to be licensed. Mayor, &c. of Mobile v Yuille, 3 Ala. 137. See Buffalo v. Webster, 10 Wend. 99. A by-law forbidding the maintenance of slaughter-houses within a city is not void as in restraint of trade. Cronin v. People, 82 N. Y. 318, 37 Am. Rep. 564; Ex parte Heilbron, 65 Cal. 609, 4 Pac. 648. Meat sellers in one part of a city may not be allowed to sell from shops only, while in another they may sell from wagons also. St. Louis i?. Spiegel, 90 Mo. 587, 2 S. W. 839. Without special legislative author- ity a merchant who has paid his license tax cannot be obliged to keep a sales-book open to inspection. Long r. Taxing Dis- trict, 7 Lea, 134. An ordinance is bad which forbids importing and dealing in cast-off garments, but does not apply to such goods not imported. Greensboro v. Ehrenreich, 80 Ala. 579. [TTpon powers of cities to regulate markets, see State v. Sarradat. 46 La. Ann. 700, 15 So. 87, 24 L. R. A. 584, and note, and further upon validity of statutes and ordinances upon the ground of reasonableness or unrea- sonableness. See, ante, p. 284, n. 4J 288 CONSTITUTIONAL LIMITATIONS. [CH. VIII. illustration from a private corporation : It has been held that a collectors to take out licenses. State v. Orr, 68 Conn. 101, 35 Atl. 770, 34 L. B. A. 279. Requiring milk-venders to take out licenses and have tlieir herds subjected to the " tuberculin test." State v. Nelson, 66 Minn. 166, 68 N. W. 1066, 34 L. B. A. 318, 61 Am. St. 399. Requiring that only police officers may prosecute for violation of a specified ordinance. State v. Robit- sliek, 60 Minn. 123, 61 N. W. 1023, 33 L. R. A. 33. Where a sewer-assessment has been successfully contested, the city may require that the amount of the assess- ment be paid as a condition precedent to permitting the contestant to connect with the sewer. Herrmann v. State, 64 Ohio St. 506, 43 N. E. 990, 32 L. R. A. 734. Re- quiring license fee of $25 per annum from junk-dealers, $50 per annum from pawn- brokers, bonds of $2,000 and $5,000 re- spectively, indorsements of twelve free- holders upon each application for license, and prohibiting purchases from boys and from drunkards and intoxicated persons, reserving power to revoke license at any time. Grand Rapids v. Brandy, 105 Mich. 670, 64 N. W. 29, 32 L. R. A. 116, 55 Am. St. 472 ; and upon power to control such dealers, see note hereto in L. R. A. ; see also Rosenbaum v. Newbern, 118 N. C. 83, 24 S. E. 1, 32 L. R. A. 123. Requir- ing itinerant traders to pay a license fee of $50 per quarter, traders having a fixed place of business being exempt. Re Has- kell, 112 Cal. 412, 44 Pac. 725, 32 L. R. A. 527. Prohibiting use of salt upon street- railway tracks, except at street corner curves. State v. Elizabeth, 58 N. J. L. 619, 34 Atl. 146, 32 L. B. A. 170. Re- quiring roofed passageway over sidewalks where buildings are being constructed above first story. Smith v. Milwaukee B. & T. Exchange, 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. 912. Requiring boarding-house keepers, &c., to furnish street commissioner with list of boarders liable to poll-tax, and to pay a fine for failure so to do. Topeka v. Boutwell, 53 Kan. 20, 35 Pac. 819, 27 L. R. A. 593. Forbidding any unmarried minor to enter bar-room unless as agent or servant. State v. Austin, 114 N. C. 855, 19 S. E. 919, 25 L. R. A. 283, 41 Am. St. 817. Contracting for a supply of gas and water for a reasonable period, although such period extends beyond the official life of any member of the city council. Viiu-ennes v. Citizens' Gas L. & C. Co., 132 Ind. 114, 31 N. E. 673, 16 L. B. A. 485; contra, Shelden v. Fox, 48 Kan. 356, 29 Pac. 759, 16 L. B. A. 257, and note. Bequiring both driver and con- ductor on every street car in use on streets. South Covington & C. St. B. Co. v. Berry, 93 Ky. 43, 18 S. W. 1026, 15 L. B. A. 604, and note, 40 Am. St. 161. Regulating weight of loaves of bread offered for sale and punishing sale of short weight loaves. People v. Wagner, 86 Mich. 594, 49 N. W. 609, 13 L. R. A. 286, and note, 24 Am. ' St. 141. Prohibiting suspension of elec- tric wires over or upon roofs of buildings. El. Impr. Co. v. San Francisco, 45 Fed. Rep. 593, 13 L. R. A. 131, and note on police power. Levying license fee of $5 per month upon venders of fresh meats outside the public markets. Atkins v. Phillips, 26 Fla. 281, 8 So. 429, 10 L. R. A. 158. Prohibiting keeping or storing of large quantities of inflammable or ex- plosive oils within city limits. Richmond v. Dudley, 129 Ind. 112, 28 N. E. 312, 13 L. R. A. 587, and note, 28 Am. St. 180. Requiring petition of two-thirds of land- owners of a block before permitting a saloon to be opened in it, if none has ever been in the block before. Martens v. Peo- ple, 186 111. 314, 57 N. E. 871J The following have been held unreason- able, Prohibiting putting up of steam- engine in city. Baltimore v. Redecke, 49 Md. 217, 33 Am. Rep. 239. Prohibiting one person carrying on a certain business and allowing another to carry on the same business. Hudson v. Thome, 7 Paige, 261; Tugman v. Chicago, 78 111. 405. Prohibiting laying of gas-pipes across the streets. Northern Liberties v. Gas Co., 12 Pa. St. 318. Levying tax for building a sidewalk in uninhabited portion of the city. Corriganu. Gage, 68 Mo. 541. Pro- hibiting use of Babcock's fire extinguish- ers and imprisoning those who used them. Teutonia Ins. Co. v. O'Connor, 27 La. Ann. 371. Requiring every person en- tering his drain in a sewer to pay his share of the expense of making such sewer. Boston v. Shaw, 1 Mete. 130. Refusing to supply water to certain premises. Dayton v. Quigley, 29 N. J. Eq. 77. Arresting free negroes found on street after 10 p. M. Mayor v. Winfield, CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 289 by-law of a bank, that all payments made or received by the bank 8 Humph. 707. Requiring druggist to furnish the names of parties to whom he sells liquors. Clinton v. Phillips, 58 111. 102, 11 Am. Rep. 52. Discriminating between dealers within and without the city. Nashville o. Althorp, 5 Cold. 554 ; Ex parte Frank, 62 Cal. 606, 28 Am. Rep. 642. Discriminating between railroads as to speed allowable under like circum- stances. Lake View v. Tate, 130 111. 247, 22 N. E. Rep. 791. Prohibiting distribu- tion of all handbills on the street. Peo- ple v. Armstrong, 73 Mich. 288, 41 N. W. 275. Forbidding all street parades with music except by permission. Matter of Frazee, 63 Mich. 3. Evansville, 144 Ind. 644, 42 N. E. 621, 35 L. R. A. 272. Unreasonable to restrict owner of dead animal to a par- ticular spot outside of city in which to de- posit same. Schoen Brothers v. Atlanta, 97 Ga. 697, 25 S. E. 380, 33 L. R. A. 804. Levying license fee of $10 per day on itinerant merchants. Carrollton v. Baz- zette, 159 111. 284, 42 N E. 837, 31 L. R. A. 522. Requiring the laying of a cement sidewalk where, less than six months be- fore, a duly authorized sidewalk of plank had been constructed and was yet sound and in good condition. Hawes v. Chicago, 158 111. 653, 42 N. E. 373, 30 L. R. A. 225. Prohibiting erection of any building or addition to building within city limits, ex- cept by permission of building inspector. Sioux Falls v. Kirby, 6 S 1). 62, 60 N. W. 156, 25 L. R A. 621. Prohibiting use of screens, blinds, &c., to obstruct view from street into saloons. Champer v. Green- castle, 138 Ind. 339, 35 N. E. 14, 24 L. R. A. 768, and note, 46 Am. St. 390. General welfare clause does not warrant an ordin- ance requiring inspection of steam boilers, &c. State t>. Robertson, 45 La. Ann. 954, 13 So. 164. 20 L. R. A. 691, 40 Am. St. 272. Requiring distance of billboard from street line to be five feet greater than height of board. Crawford v, Topeka, 61 Kan. 756, 33 Pac. 476, 20 L. R. A. 692, 37 Am. St. 323. Requiring permission from a city officer for street parades, but exempting from such requirement fu- nerals, fire companies, State militia, and political parties having a State organi- zation. Re Garrabad, 84 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, and note on ordinances relating to street parades See also that ordinances vesting arbitrary powers are void. Richmond v. Dudley, 129 Ind. 112, 28 N. E. 312, 13 L. R. A. 587, 28 Am. St. 180 ; but see Olympia r. Mann, 1 Wash. 389, 25 Pac. 330," 337, 12 L. R. A. 150, and note; Child v. Bemus, 71 R. I. 230, 21 Atl. 539, 12 L. R. A. 67. Requiring license fee of $25 per day from auctioneers of imported goods. lie Sipe, 49 Ohio St. 636, 31 N. E. 884, 17 L. R. A. 184. Requiring license fee of non-resi- dent peddlers. Sayre v. Phillips, 148 Pa. 482, 24 Atl. 76, 16 L. R. A. 49, and note, 33 Am. St. 842. Prohibiting absolutely the making repairs to the amount of $300 or more upon any wooden building within specified limits. Mt. Vernon F. Nat. Bank v. Sarlls, 129 Ind. 201, 28 N. E. 434, 13 L. R. A. 481, and note. On fire limits, see Olympia v. Mann, 1 Wash. 389, 25 Pac. 330, 337, 12 L. R. A. 150, and note. Prohibiting importation or sale of second- hand clothing unless owner first proves that it did not come from an infected region. Kosciusko v. Slomberg, 68 Miss. 469, 9 So. 297, 12 L. R. A. 528, 24 Am. St. 281. Permitting fine of $1,000 for visiting a disorderly house. Re Ah You, 88 Cal. 99, 25 Pac. 974, 11 L. R. A. 408, 22 Am. St. 280. Penalizing a mere pri- vate trespass. Bregguglia v. Lord, 63 N. J. L. 168, 20 Atl. 1082, 11 L. It. A. 407. Levying license tax upon agents of non-resident insurance companies, but not upon those of local companies. Simrall v. Covington, 90 Ky. 444, 14 S. W. 369, 9 L. R. A. 656, 29 Am. St. 398. Penalizing breach of contract with city. Newport v. Newport & C. Bridge Co., 90 Ky. 193, 13 S. W. 720, 8 L. R. A. 484. Making arbitrary distinctions. Lake View v. Tate, 130 III. 247, 22 N. E. 791, 6 L. R. A. 268. Requiring letting of public printing only to members of Allied Printing Trades CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 291 might be had against the bank for an over-payment discovered afterwards, notwithstanding the by-law. 1 So a by-law of a town, which, under pretence of regulating the fishery of clams and oysters within its limits, prohibits all persons except the inhabi- tants of the town from taking shell-fish in a navigable river, is void as in contravention of common right. 2 And for like rea- sons a by-law is void which abridges the rights and privileges conferred by the general laws of the State, unless express author- ity therefor can be pointed out in the corporate charter. 3 And Council. Atlanta v. Stein, 111 Ga. 789, 36 S. E. 932, 51 L. R- A. 335. Fixing liquor license fee $300 higher for any place on main street than for any other place in town. Harrodsburg v. Renfro, 22 Ky. L. R. 806, 58 S. W. 795, 51 L. R. A. 897. Requiring six incli tires for loaded wagons weighing more than a ton and driven upon parkways. State v. Rohart, 83 Minn. 257, 86 N. W. 93, 333, 54 L. R. A. 947. Pro- hibiting getting off trains or boats at any point within the State at time of yellow fever outbreak, as applied to pas- sengers from a non-infected district, (board of health rule). Wilson v. Ala- bama G. S. Ry. Co., 77 Miss. 714, 28 So. 567, 78 Am. St. 543. Prohibiting interment of dead bodies within city limits without regard to sparseness of population. Wygant v. McLauchlan, 39 Oreg. 429, 64 Pac. 867, 54 L. R. A. 636, 87 Am. St. 673. Restricting employment upon public works to members of labor unions. Fiske v. People, 188 111. 206, 58 N. E. 985. For other ordinances held void for unreasonableness, see Grand Rapids v. Newton, 111 Mich. 48, 69 N. W. 84, 66 Am. St. 387, 35 L. R. A. 226; Ottumwa v. Zekind, 95 Iowa, 622, 64 N. W. 646, 68 Am. St. 447, 29 L. R. A. 734 ; Des Moines C. Ry. Co. v. Des Moines, 90 Iowa, 770, 58 N. W. 906, 26 L. R. A. 767 ; Ex parte Sing Lee, 96 Cal. 354, 31 Pac. 245, 31 Am. St. 218, 24 L. R. A. 195; Avis v. Vim-land, 55 N. J. L. 285, 26 Atl. 149, 23 L. R. A. 685; State v. Tenant, 110 N. C. 609, 14 S. E. 387, 28 Am. St. 715, 15 L. R A. 423 ; Ex parte Vance, Tex. Cr. App. , 62 S. W. 568 (April 17, 1901) ; Mills v. Missouri K. T. R. Co., 94 Tex. 242,59 S. W. 874; Ex parte Patterson, Tex. Cr. App. , 58 S. W. 1011 (Oct. 24, 1900). 3 1 Mechanics' and Farmers' Bank v. Smith, 19 Johns. 115; Gallatin v. Brad- ford, 1 Bibb, 209. Although these are cases of private corporations, they are cited here because the rules governing the authority to make by-laws are the same with both classes of corporations. 2 Hayden v. Noyes, 5 Conn. 391. As it bad been previously held that every person has a common-law right to fish in a navigable river or arm of the sea, until by some legal mode of appropriation this common right was extinguished (Peck v. Lock wood, 5 Day, 22), the by-law in effect deprived every citizen, except resi- dents of the township, of rights which were vested, so far as from the nature of the case a right could be vested. See also Marietta v. Fearing, 4 Ohio, 427. That a right to regulate does not indude a right to prohibit, see also Ex parte Bur- nett, 80 Ala. 461 ; Austin v. Murray, 16 Pick. 121 ; Portland v. Schmidt, 13 Oreg. 17 ; Bronson v. Oberlin, 41 Ohio St. 476. And see Milhau v. Sharp, 17 JSarb. 435, 28 Barb. 228, and 27 N. Y. 611, and cases supra, p. 213. The State's power to regulate the taking of game extends to the public lands of the United States within the State's borders, such lands not being included in an Indian reservation. Ward v. Race Horse, 163 U. S. 504, 16 Sup. Ct. Rep. 1076.] 8 Dunham v. Trustees of Rochester, 5 Cow. 462 ; Mayor, &c. of New York v. Nichols, 4 Hill, 209 ; St. Paul v. Traeger, 25 Minn. 248, 33 Am. Rep. 462. See Strauss v. Pontiac, 40 111. 301 ; Mayor of Athens v. Georgia R. R. Co., 72 Ga. 800. An ordinance granting the exclu- sive privilege to take every animal which dies in a city without regard to its being a nuisance is void. River Rendering Co. v. Behr, 77 Mo. 91. Hacks cannot be per- mitted to stand permanently in a street so as to cut off access to adjoining prem- ises. Branahan v. Hotel Co., 39 Ohio St 292 CONSTITUTIONAL LIMITATIONS. [CH. VIII. a by-law which assumes to be a police regulation, but deprives a party of the use of his property without regard to the public good, under the pretence of the preservation of health, when it is manifest that such is not the object and purpose of the regulation, will be set aside as a clear and direct infringement of the right of property without any compensating advantages. 1 333. Unless by express authority, a wooden building put up contrary to an ordinance cannot be forfeited. Kneedler v. Norristown, 100 Pa. St. 368. [[Ordi- nance prohibiting barbers from working on Sunday, but not other shopkeepers, is void. Tacoma v. Krech, 15 Wash. 296, 46 Pac. 255, 34 L. R. A. 68.] 1 By a by-law of the town of Charles- town, all persons were prohibited, without license from the selectmen, from burying any dead body brought into town on any part of their own premises or elsewhere within the town. By the court, Wilde, J. ; " A by-law, to be valid, must be reason- able ; it must be legi fidei rationi consona. Now if this regulation or prohibition had been limited to the populous part of the town, and were made in good faith for the purpose of preserving the health of the inhabitants, which may be in some degree exposed to danger by the allow- ance of interments in the midst of a dense population, it would have been a very reasonable regulation. But it cannot be pretended that this by-law was made for the preservation of the health of the in- habitants. Its restraints extend many miles into the country, to the utmost lim- its of the town. Now such an unneces- sary restraint upon the right of interring the dead we think essentially unreason- able. If Charlestown may lawfully make such a by-law as this, all the towns ad- joining Boston may impose similar re- straints, and consequently all those who die in Boston must of necessity be in- terred within the precincts of the city. That this would be prejudicial to the health of the inhabitants, especially in the hot season of the year, and when epidemic diseases prevail, seems to be a well-established opinion. Interments, therefore, in cities and large populous towns, ought to be discountenanced, and no obstacles should be permitted to the establishment of cemeteries at suitable places in the vicinity. The by-law in question is therefore an unreasonable re- straint upon many of the citizens of Bos- ton, who are desirous of burying their dead without the city, and for that reason is void." Austin v. Murray, 16 Pick. 121, 125. So in Wreford v. People, 14 Mich. 41, the common council of Detroit, under a power granted by statute to compel the owners and occupants of slaughter- houses to cleanse and abate them when- ever necessary for the health of the inhabitants, assumed to pass an ordinance altogether prohibiting the slaughtering of animals within certain limits in the city ; and it was held void. See further, State v. Jersey City, 29 N. J. 170. [>nd upon power of municipal corporations to define, prevent, and abate nuisances, see note 36 L. R A. 593. See also Orlando o. Pragg, 31 Fla. Ill, 12 So. 368, 19 L. R. A. 196, and note, 34 Am. St. 17.] Power to control the erection of dwellings with reference to health does not allow regu- lation of the thickness of outer walls. Hubbard v. Paterson, 45 N. J. L. 310. Upon the whole subject of municipal by- laws, see Angell & Ames on Corp. c. 10 ; Grant on Corp. 76 et seq. See also Red- field on Railways (3d ed.), Vol. I. p. 88; Dillon, Mun. Corp. c. 12. The subject of the reasonableness of by-laws was considered at some length in People v. Medical Society of Erie, 24 Barb. 570, and Same v. Same, 32 N. Y. 187. See note to Ward v. Greencastle, 35 Am. Rep. 702. Municipal by-laws may impose pen- alties on parties guilty of a violation thereof, but they cannot impose forfeiture of property or rights, without express legislative authority. State v. Ferguson, 33 N. H. 424; Phillips t;. Allen, 41 Pa. St. 481. Nor can municipal corporations, by their by-laws, take into their own hands the punishment of offences against the general laws of the State. See Chari- ton v. Barber, 64 Iowa, 360, 6 N. W. 528, 37 Am. Rep. 209 ; Kirk v. Nowill, 1 T. R. 118; White v. Tallman, 26 N. J. 67 ; Hart v. Albany, 9 Wend. 571 ; Peoria v. Cal- houn, 29 111. 317; St. Paul v. Coulter, 12 CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 293 Delegation of Municipal Powers. Another and very important limitation which rests upon mu- nicipal powers is that they shall be executed by the municipality itself, or by such agencies or officers as the statute has pointed out. So far as its functions are legislative, they rest in the dis- cretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the dis- cretion and judgment of its subordinates or of any other author- ity. 1 So strictly is this rule applied, that when a city charter authorized the common council of the city to make by-laws and ordinances ordering and directing any of the streets to be pitched, levelled, paved, flagged, &c., or for the altering or repairing the same, " within such time and in such manner as they may pre- scribe under the superintendence and direction of the city superin- tendent," and the common council passed an ordinance directing a certain street to be pitched, levelled, and flagged, " in such manner as the city superintendent, under the direction of the committee on roads of the common council, shall direct and re- quire," the ordinance was held void, because it left to the city superintendent and the committee of the common council the decision which, under the law, must be made by the council itself. The trust was an important and delicate one, as the expenses of the improvement were, by the statute, to be paid by the owners of the property in front of which it was made. It was in effect a power of taxation ; and taxation is the exercise of sovereign Minn. 41. In Chicago, where there is tive function upon the mayor. Davis v. both a city and a town organization, it Massachusetts, 167 U. S. 43, 17 Sup. Ct. has been held competent for both to re- Hep. 731, aff. 162 Mass. 610, 39 N. E. quire those who carry on a noisome trade 113, 26 L. R. A. 712, 44 Am. St. 389. to take out a license. Chicago Packing, Making grant of privilege depend upon &c. Co. v. Chicago, 88 111. 221, 30 Am. consent of majority of lot owners in the Rep. 545. block in which the privilege is to be 1 A council may by ordinance adopt a exercised is not a delegation of power, code compiled by a city attorney. Gar- Chicago v. Stratton, 162 III. 494, 44 N. E. rett v. Janes, 65 Md. 260, 3 Atl. 597; 853, 35 L. R. A. 84, 53 Am. St. 325; Western & A. R. R. Co. v. Young, 83 contra, St. Louis v. Russell, 116 Mo. 248, Ga. 512, 10 S. E. 197. [Person desiring 22 S. W. 470, 20 L. R. A. 721, and to move a building through the streets note on delegation of municipal power, may be required to obtain permission of Power to prescribe width and other fea- mayor. Wilson v. Eureka City, 173 U.S. tures of sidewalks cannot be delegated. 32, 19 Sup. Ct. Rep. 317, aff. 15 Utah, 53, McCrowell v. Bristol, 89 Va. 652, 16 48 Pac. 41, 150, 62 Am. St. 904. And it S. E. 867, 20 L. R. A. 653. Nor can that is not a delegation of legislative power to fix street-grade. Zabel v. Louisville to require that "no person shall, in or B. O. Home, 92 Ky. 89, 17 S. W. 212, 13 upon any of the public grounds, make L. R. A. 668. Nor that to regulate liquor- any public address, . . . except in ac- selling. State v. Trenton, 51 N. J. L. cordance with a permit from the mayor," 498, 18 Atl. 116, 5 L. R. A. 352.^ but merely a casting of an administra- 294 CONSTITUTIONAL LIMITATIONS. [CH. VIII. authority ; and nothing short of the most positive and explicit language could justify the court in holding that the legislature intended to confer such a power, or permit it to be conferred, on a city officer or committee. The statute in question not only con- tained no such language, but, on the contrary, clearly expressed the intention of confining the exercise of this power to the common council, the members of which were elected by and responsible to those whose property they were thus allowed to tax. 1 This restriction, it will be perceived, is the same which rests upon the legislative power of the State, and it springs from the same reasons. The people in the one case in creating the legisla- tive department, and the legislature in the other in conferring the corporate powers, have selected the depositary of the power which they have designed should be exercised, and in confiding it to such depositary have impliedly prohibited its being exercised by any other agency. A trust created for any public purpose cannot be assignable at the will of the trustee. 2 1 Thompson v. Schermerhorn, 6 N. Y. 92. See also Smith .'. Morse, 2 Cal. 524 ; Oakland . Carpentier, 13 Cal.540; Whyte v. Nashville, 2 Swan, 364 ; East St. Louis v. Wehrung, 50 111. 28; Ruggles v. Col- lier, 43 Mo. 353; State v. Jersey City, 25 N. J. 309; Hydes v. Joyes, 4 Bush, 464; Lyon v. Jerome, 26 Wend. 485; State v. Paterson, 34 N. J. 168 ; State v. Fiske, 9 R. I. 94 ; Kinmundy v. Mahan, 72 111. 462 ; Davis v. Reed, 65 N. Y. 566 ; Super- visors of Jackson v. Brush, 77 111. 59; Thomson v. Booneville, 61 Mo. 282 ; In re Quong Woo, 13 Fed. Rep. 229; Cornell t?. State, 6 Lea, 624; Benjamin v. Web- ster, 100 Ind. 15; Minneapolis Gaslight Co. v. Minneapolis, 36 Minn. 159, 30 N. W. 450; Dillon, Mun. Corp. 60. Compare In re Guerrero, 69 CaL 88, 10 Pac. 261. 2 The charter of Washington gave the corporation authority " to authorize the drawing of lotteries, for effecting any im- portant improvement in the city, which the ordinary funds or revenue thereof will not accomplish ; provided that the amount raised in each year shall not exceed ten thousand dollars. And pro- vided also that the object for which the money is intended to be raised shall be first submitted to the President of the United States, and shall be ap- proved by him." Marshall, Ch. J., speak- ing of this authority, says : " There is great weight in the argument that it is a trust, and an important trust, con- fided to the corporation itself, for the purpose of effecting important improve- ments in the city, and ought, therefore, to be executed under the immediate authority and inspection of the corpora- tion. It is reasonable to suppose that Congress, when granting a power to authorize gaming, would feel some solici- tude respecting the fairness with which the power should be used, and would take as many precautions against its abuse as was compatible with its beneficial exer- cise. Accordingly, we find a limitation upon the amount to be raised, and on the object for which the lottery may be au- thorized. It is to be for any important improvement in the city, which the ordi- nary funds or revenue thereof will not accomplish ; and is subjected to the judg- ment of the President of the United States. The power thus cautiously granted is deposited with the corpora- tion itself, without an indication that it is assignable. It is to be exercised, like other corporate powers, by the agents of the corporation under its control. While it remains where Congress has placed it, the character of the corporation affords some security against its abuse, some security that no other mischief will result from it than is inseparable from the thing itself. But if the management, control, and responsibility may be transferred to any adventurer who will purchase, all the CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 295 Irrepealable Legislation, Equally incumbent upon the State legislature and these munic- ipal bodies is the restriction that they shall adopt no irrepealable legislation. No legislative body can so part with its powers by any proceeding as not to be able to continue the exercise of them. It can and should exercise them again and again, as often as the public interests require. 1 Such a body has no power, even by contract, to control and embarrass its legislative powers and duties. On this ground it has been held, that a grant of land by a municipal corporation, for the purposes of a cemetery, with a covenant for quiet enjoyment by the grantee, could not preclude the corporation, in the exercise of its police powers, from pro- hibiting any further use of the land for cemetery purposes, when the advance of population threatened to make such use a public nuisance. 2 So when " a lot is granted as a place of deposit for gunpowder, or other purpose innocent in itself at the time; it is devoted to that purpose till, in the progress of population, it becomes dangerous to the property, the safety, or the lives of hun- dreds ; it cannot be that the mere form of the grant, because the parties choose to make it particular instead of general and abso- lute, should prevent the use to which it is limited being regarded and treated as a nuisance, when it becomes so in fact. In this way the legislative powers essential to the comfort and preserva- tion of populous communities might be frittered away into perfect insignificance. To allow rights thus to be parcelled out and secured beyond control would fix a principle by which our cities and villages might be broken up. Nuisances might and undoubt- edly would be multiplied to an intolerable extent." 3 And on the same ground it is held that a municipal corpora- tion, having power to establish, make, grade, and improve streets, security for fairness which is furnished But after telephone poles have been by character and responsibility is lost." erected by a company in certain streets Clark v. Washington, 12 Wheat. 40, 64. designated by the city, it cannot revoke 1 East Hartford v. Hartford Bridge Co., the designation at its mere will. Hudson 10 How. 511 ; Dillon, Mun. Corp. 61. Tel. Co v. Jersey City, 49 N. J. L. 303, 2 Brick Presbyterian Church v. City 8 Atl. 123. of New York, 5 Cow. 538 ; New York r. 8 Coats v. Mayor, &c. of New York, Second Avenue R. R. Co., 32 N. Y. 261. 7 Cow. 585; Davenport v. Richmond, 81 Compare Kincaid's Appeal, 66 Pa. St. Va. 636. See also Davis v. Mayor, &c. 411,5 Am. Rep. 377. Permission to build of New York, 14 N. Y. 506; Attorney- out over and under a sidewalk is a mere General v. Mayor, &c. of New York, 3 revocable license. Winter v. City Coun- Duer, 119; State v. Graves, 19 Md. 351; cil, 83 Ala. 589, 3 So. 235. fJSo with Goszler v. Georgetown, 6 Wheat. 593; awnings. Augusta v. Burum, 93 Ga. 68, Louisville City R. R. Co. v. Louisville, 19 S. E. 820, 26 L. R. A. 340, and note, on 8 Bush, 415. right to maintain awnings in streets.] 296 CONSTITUTIONAL LIMITATIONS. [CH. VIII. does not, by once establishing the grade, preclude itself from changing it as the public needs or interest may seem to require, notwithstanding the incidental injury which must result to those individuals who have erected buildings with reference to the first grade. 1 So a corporation having power under the charter to estab- lish and regulate streets cannot under this authoritv, without 1 Callendar v. Marsh, 1 Pick. 417; Griggs v. Foote, 4 Allen, 195; Graves v. Otis, 2 Hill, 466; Green v. Reading, 9 Watts, 382, 36 Am. Dec. 127 ; O'Connor v. Pittsburg, 18 Pa. St. 187 ; Reading v. Keppleman, 61 Pa. St. 233; Skinner v. Hartford Bridge Co., 29 Conn. 523; Fel- lows v. New Haven, 44 Conn. 240, 26 Am. Rep. 447 ; La Fayette v. Bush, 19 Ind. 326; La Fayette v. Fowler, 34 Ind. 140; Creal v. Keokuk, 4 Greene (Iowa), 47; Hendershott v. Ottumwa, 46 Iowa, 658; Murphy v. Chicago, 29 111. 279; Quincy v. Jones, 76 111. 231 ; Rounds v. Mumford, 2 R. I. 154; Rome r. Oinberg, 28 Ga. 46; Roll v. Augusta, 34 Ga. 326; Macon v. Hill, 58 Ga. 595; Reynolds v. Shreveport, 13 La. Ann. 426; White v. Yazoo City, 27 Miss. 357; Humes v. Mayor, &c., 1 Humph. 403 ; St. Louis v. Gurno, 12 Mo. 414 ; Taylor v. St. Louis, 14 Mo. 20 ; Schattner v. Kansas City, 35 Mo. 162; Keasy v. Louisville, 4 Dana, 154, 29 Am. Dec. 395 ; Blount v. Janes- ville, 31 Wis. 648; Nevins v. Peoria, 41 111. 502; Shawneetown v. Mason, 82 111. 337; Weymann v. Jefferson, 61 Mo. 55. Compare Louisville v. Rolling Mill Co., 3 Bush, 416; Denver v. Vernia, 8 Col. 399, 8 Pac. 656. No legal damage is done by establishing a grade where none had existed. Gardiner v. Johnston, 16 R. I. 94, 12 Atl. 888. A city having power to grade and level streets is not liable for consequent damages to persons whose lands are not taken. Radcliffe's Ex'rs v. Brooklyn, 4 N. Y. 195; Smith v. Washington, 20 How. 135; Snyder v. Rockport, 6 Ind. 237 ; Pontiac r. Carter, 32 Mich. 104; Cole v. Muscatine, 14 Iowa, 296; Russell v. Burlington, 30 Iowa, 262 ; Burlington t. Gilbert, 31 Iowa, 356; Roberts v. Chicago, 26 111. 249; Delphi v. Evans, 36 Ind. 90; Simmons v. Camden, 26 Ark. 276; 7 Am. Rep. 620; Dorman v. Jacksonville, 13 Fla. 638,7 Am. Rep. 253; Dore v. Milwaukee, 42 Wis. 108 ; Lee v. Minneapolis, 22 Minn. 13; Lynch v. New York, 76 N. Y. 60; Cheever v. Shedcl, 13 Blatch. 258. The law would seem to be otherwise declared in Ohio. See Rhodes v. Cincinnati, 10 Ohio, 160; McCombs v. Akron, 15 Ohio, 474; s. c. 18 Ohio, 229 ; Crawford v. Delaware, 7 Ohio St. 459; Akron v. Chamberlain Co., 34 Ohio St. 328 ; 32 Am. Rep. 367 ; Cohen v. Cleveland, 43 Ohio St. 190. See also Nashville v. Nichol, 59 Tenn. 338. It is also otherwise in Illinois under its present Constitution. Elgin v. Eaton, 83 111. 535; Rigney . Chicago, 102 111. 64. Under like constitutional provisions a like rule has been laid down. Reardon v. San Francisco, 66 Cal. 492, 6 Pac. 317 ; Moore v. Atlanta, 70 Ga. 611 ; Harmon v. Omaha, 17 Neb. 548, 23 N. W. 503; Werth v. Springfield, 78 Mo. 107. But in Alabama not every change in grade gives ground for recovery. Mont- gomery v. Townsend, 80 Ala. 489. By statute in Indiana a change of grade causing special injury and damage war- rants a recovery. Lafayette v. Nagle, 113 Ind. 425, 15 N. E. 1. The Iowa statute is similar. Phillips v. Council Bluffs, 63 Iowa, 576, 19 N. \V. 672. [Mil- lard v. Webster City, 113 Iowa, 220, 84 N. W. 1044 ; Richardson v. Webster City, 111 Iowa, 427, 82 N. W. 920.] Compare Alexander v. Milwaukee, 16 Wis. 247. [City liable in Kansas. Leaven worth v. Duffy, 63 Kan. 884, 62 Pac. 433.] Courts will not undertake to control municipal discretion in the matter of improving streets. Dunham v. Hyde Park, 75 LI. 371 ; Brush v. Carbondale, 78 111. 74. The owner of a lot on a city street acquires no prescriptive right to collateral support for his buildings which can render the city liable for injuries caused by grading the street. Mitchell v. Rome, 49 Ga. 19, 15 Am. Rep. 669 ; Quincy r. Jones, 76 111. 231, 20 Am. Rep. 243. Contra, Nichols r. Duluth, 40 Minn. 389, 42 N. W. 84. But the failure to use due care and pru- dence in grading may render the city liable. Bloomington v. Brokaw, 77 I1L 194. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 297 explicit legislative consent, permit individuals to lay down a rail- way in one of its streets, and confer privileges exclusive in their character and designed to be perpetual in duration, (a) In a case (a) Nor can it contract away the power of the State to oust the corporation grantee from its privileges. State v. East Fifth St. Ry. Co., 140 Mo. 539, 41 S. W. 955, 38 L. R. A. 218, 62 Am. St. 742. Ordinance giving right to lay double tracks may be repealed. Lake Roland El. R. Co. v. Baltimore, 77 Md. 352, 26 Atl. 610, 20 L. R. A. 126. For other cases denying power to make exclusive grants, see Detroit Citizens' S. R. Co. v. Detroit, 110 Mich. 384, 68 N. W. 304, 35 L. R. A. 859, 64 Am. St. 350; Vincennes v. Citizens' Gas L. & C. Co., 132 Ind. 114, 31 N. E. 573, 16 L. R. A. 485; Altgelt v. San Antonio, 81 Tex. 436, 17 S. W. 75, 13 L. R. A. 383, and note; Syracuse W. Co. v. Syracuse, 116 N. Y. 167, 22 N. E. 381, 5 L. R. A. 546. Even where a company has a right, under a contract, to place electric wires beneath the surface of the streets, the right is subject to such reasonable regulations as the city deems best to make for the public safety and convenience. Missouri v. Murphy, 170 U. S. 78, 18 Sup. Ct. Rep. 505, aff. 130 Mo. 10, 31 S. W. 594, 31 L. R. A. 798. Upon power of city to allow subway under street for wires, State t;. Murphy, 134 Mo. 548, 35 S. W. 1132, 66 Am. St. 515, 34 L. R. A. 369, and note; also note to State v. Murphy, 31 L. R. A. 798. Duty to keep streets safe : West. U. Tel. Co. v. State, 82 Md. 293, 33 Atl. 763, 51 Am. St. 464, 31 L. R. A. 572, and note. An ordi- nance authorizing a railroad company to build bridges of a certain pattern over its roadway, and providing that the beginning to erect such bridges should be deemed an acceptance of the terms of the ordinance, and a supersession of all contracts exist- ing prior thereto, did not give rise to a contract, but was a mere license, revocable at any time. Wabash R. Co. v. Defiance, 167 U. S. 88, 17 Sup. Ct. Rep. 748, aff. 62 Ohio St. 262, 40 N. E. 89. Upon liability for cost of changing grade at railroad crossing, see Kelly v. Minneapolis, 57 Minn. 294, 59 N. W. 304, 26 L. R. A. 92, and note, 47 Am. St. 605. Upon right to regulate the placing and use of telegraph, tele- phone, and other electric wires in and above streets, see St. Louis v. Western U. Tel. Co., 148 U. S. 92, 13 Sup. Ct. Rep. 485. City cannot authorize the erection in its streets of what amounts to a private nuisance. Chicago G. W. R. Co. v. First M. E. Church, 42 C. C. A. 178, 102 Fed. Rep. 85, 50 L. R. A. 488; Baltimore & P. R. Co. v. Fifth Bapt. Church, 108 U. S. 317, 2 Sup. Ct. Rep. 719. City cannot levy a wheel tax upon all vehicles used on streets, where the property has already been assessed for taxation under the general property tax. Chicago v. Collins, 175 111. 445, 51 N. E. 907, 49 L. R. A. 408, 67 Am. St. 224. See also Davis v. Petrinovich, 112 Ala. 654, 21 So. 344, 36 L. R. A. 615. Where a city is bound to maintain side- walks upon its streets in a safe condition, the obligation extends to boulevards also, even though they are primarily under the control of park and boulevard commis- sioners. Burridge v. Detroit, 117 Mich. 557, 76 N. W. 84, 42 L. R. A. 684, 72 Am. St. 582. A street may be set apart for use exclusively as a pleasure driveway, and heavily loaded vehicles excluded from it. Cicero Lumber Co. v. Cicero, 176 111. 9, 51 N. E. 758, 42 L. R. A. 696, 68 Am. St. 155. Upon municipal power over nui- sances affecting highways and waters, see Hagerstown v. Witmer, 86 Md. 293, 37 Atl. 965, 39 L. R. A. 649, and note ; over nuisances in highways caused by street rail- roads and other electrical companies, note to 39 L. R. A. 609. City cannot arbi- trarily tear up and remove a track which has been laid under permission granted by valid ordinance. Some notice and opportunity to be heard must first be given. Cape May v. Cape M., Del. Bay & S. P. R. Co., 60 N. J. L. 224, 37 Atl. 892, 39 L. R. A. 609. Upon regulation of speed of vehicles in streets, see note 36 L. R. A. 305. Reasonable license fees may be exacted for use of streets by vehicles, and fact that vehicles are owned outside city and only occasionally used within it is immate- rial. Tomlinson v. Indianapolis, 144 Ind. 142, 43 N. E. 9, 36 L. R. A. 413, and note ; Mason v. Cumberland, 92 Md. 451, 48 Atl. 136. Fenders may be required on street cars. State v. Cape May, 59 N. J. L. 396, 36 Atl. 696, 36 L. R. A. 653. And speed of street cars may be regulated. Ibid., 59 N. J. L. 393, 36 Atl. 679, 36 L. R. A. 656. 298 CONSTITUTIONAL LIMITATIONS. [CH. VIII. where this was attempted, it has been said by the court : " The corporation has the exclusive right to control and regulate the use of the streets of the city. In this respect it is endowed with legislative sovereignty. The exercise of that sovereignty has no limit, so long as it is within the objects and trusts for which the power is conferred. An ordinance regulating a street is a legis- lative act, entirely beyond the control of the judicial power of the State. But the resolution in question is not such an act. Though it relates to a street, and very materially affects the mode in which that street is to be used, yet in its essential fea- tures it is a contract. Privileges exclusive in their nature and designed to be perpetual in their duration are conferred. Instead of regulating the use of the street, the use itself to the extent specified in the resolution is granted to the associates. For what has been deemed an adequate consideration, the corporation has assumed to surrender a portion of their municipal authority, and has in legal effect agreed with the defendants that, so far as they Cars may be required to stop before crossing streets. Ibid., 59 N. J. L. 404, 36 Atl. 678, 36 L. R. A. 657. Railroad cannot under general power to regulate streets be compelled to erect gates and keep watchman at crossing. Pittsburgh, C. C. & St. L. R. Co. v. Crown Point, 146 Ind. 421, 45 N. E. 587, 35 L. R. A. 684. City cannot divest itself of power to regulate use of streets. State v. Murphy, 134 Mo. 548, 35 S. W. 1142, 34 L. R. A. 369, 56 Am. St. 515; and that the municipality holds streets, parks, and the like in trust for the public, see St. Paul v. Chicago, M. & St. P. R. Co., 63 Minn. 330, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458, 34 L. R. A. 184. See also Columbus Gas Light and Coke Co. v. Columbus, 50 Ohio, 65, 33 N. E. 292, 40 Am. St. 648, 19 L. R. A. 510. On power to regulate use of streets by electric com- panies, see State v. Murphy, 130 Mo. 10, 31 S. W. 594, 31 L. R. A. 798, and note in L. R. A. Rights of owners of abutting property to access and to light and air cannot be materially impeded. Block . Salt Lake R. T. Co., 9 Utah, 31, 33 Pac. 229, 24 L. R. A. 610; Lockwood v. Wabash R. Co., 122 Mo. 86, 26 S. W. 698, 24 L. R. A. 516, 43 Am. St. 547 ; Schopp v. St. Louis, 117 Mo. 131, 22 S. W. 898, 20 L. R. A. 783; Moose v. Carson, 104 N. C. 431, 10 S. E. 689, 7 L. R. A. 548, and note, 17 Am. St. 681 ; Gargan v. Louisville, N. A. & C. R. Co., 89 Ky. 212, 12 S. W. 259, 6 L. R. A. 340. Residents may be required to keep the sidewalks in front of their premises free from snow and ice. Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 L. R. A. 178, and note, 19 Am. St. 490. Contractor cannot be granted right to place boxes upon streets and use them for posting bills, even though they are made and maintained without cost to city, and according to specifications of board of public improvements, and designed specially for the reception of litter and refuse tliat would otherwise be cast into the streets. State v. St. Louis, 161 Mo. 371, 61 S. \V. 658. For other cases upon regulation of streets, see Argentine v. Atchison T & S. F. Ry. Co., 55 Kan. 730, 41 Pac. 946, 30 L. R. A. 255; Mt. Carmel v. Shaw, 155 111. 37, 39 N. E. 584, 27 L. R. A. 580; Indianapolis v. Consumers' Gas Co., 140 Ind. 107, 39 N. E. 433, 49 Am. St. 183, 27 L. R. A. 514; Tate v. Greensboro 114 N. C. 392, 19 S. E. 767, 24 L. R. A. 671 ; Savage v. Salem, 23 Oreg. 381, 31 Pac. 832, 37 Am. St. 688, 24 L. R. A. 787; New Haven v. New Haven & D. Ry. Co., 62 Conn 252, 25 Atl. 316, 18 L. R. A. 256; People v. Ft. Wayne & E. Ry. Co., 92 Mich. 522, 52 N. W. 1010, 16 L. R. A. 752; Chase v. Oshkosh, 81 Wis. 313, 51 N. W. 560, 29 Am. St. 898, 15 L. R. A. 553, and note (shade trees) ; American R. Tel. Co. v. Hess, 125 N. Y. 641, 26 N. E. 919, 21 Am. St. 764, 13 L. R. A. 454 ; State v. Trenton, 53 N. J. L. 132, 20 Atl. 1076, 11 L. R. A. 410; note to 8 L. R. A. 828. } CH. Till.] THE GRADES OF MUNICIPAL GOVERNMENT. 299 may have occasion to use the street for the purpose of construct- ing and operating their railroad, the right to regulate and control the use of that street shall not be exercised. ... It cannot be that powers vested in the corporation as an important public trust can thus be frittered away, or parcelled out to individuals or joint-stock associations, and secured to them beyond control." 1 So, it has been held that the city of Philadelphia exercised a portion of the public right of eminent domain in respect to the streets within its limits, subject only to the higher control of the State and the use of the people ; and therefore a written license granted by the city, though upon a valuable consideration, author- izing the holder to connect his property with the city railway by a turnout and track, was not such a contract as would prevent the city from abandoning or removing the railway whenever, in the opinion of the city authorities, such action would tend to the benefit of its police. 2 1 Milhau v. Sharp, 17 Barb. 435; s. c. 28 Barb. 228, and 27 N. Y. 611 ; Bir- mingham, &c. St. Ry. Co. v. Birming- ham St. Ry. Co., 79 Ala. 465; Nash v. Lowry, 37 Minn. 261 ; Jackson, &c. R. Co. v. Intersta'e, &c. Co., 24 Fed. Rep. 306. See also Davis v. Mayor, &c. of New York, 14 N. Y. 506 ; State ;--. Mayor, &c., 3 Duer, 119 ; State o. Graves, 19 Md. 351 ; De- troit Citizens' Street R. Co. v. Detroit Ry., 171 U. S. 48, 18 Sup. Ct. Rep. 732. Upon municipal power to impose condi- tions in granting right to street railway to occupy streets, &c , see Galveston & W. R. Co. v. Galveston, 90 Tex. 398, 39 S. W. 96, 36 L. R. A. 33, and note ; rights of street railways to use streets, People v. Newton, 112 N. Y. 396, 19 N. E. 831, 3 L. R. A. 174, and note ; and Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, 39 N. W. 629, 1 L. R. A. 493, and note, 12 Am. St. 644; upon general relations between street railways and municipali- ties, note to 43 L. ed. U. S. 67. Right to lay tracks is subject to regulation by subsequent ordinance. Baltimore v, Bal- timore Tr. & G. Co., 166 U. S. 673, 17 Sup. Ct. Rep. 696. See also Clarksburg El. L. Co. v. Clarksburg, 47 W. Va. 739, 35 S. E. 994, 50 L. R. A. 142 ; Cleveland v. Augusta, 102 Ga. 233, 29 S. E. 584, 43 L. R. A. 638. City cannot authorize the permanent occupation of a portion of the street for a private purpose, as by an awning. Resolution authorizing such is revocable at any time, although the li- censee may have spent a large sum in the erection of the awning. Hibbard, S., B. & Co. v. Chicago, 173 111. 91, 50 N. E. 256, 40 L. R. A. 621. j Compare Chicago, &c. R. R. Co. v. People, 73 III. 541. Nor can an exclusive privilege be granted to a gas company to use the streets. Gas Co. v. Parkersburg, 30 W. Va. 435, 4 S. E. 650; Cincinnati Gaslight Co. v. Avondale, 43 Ohio St. 257, 1 N. E. 527; Citizens' Gas, &c. Co. v. El wood, 114 Ind. 332, 16 N. E. 624. QA grant of an "exclusive privilege of laying pipes for carrying gas in said city," &c., does not prevent a city's erecting its own gasworks, particularly where the legislature in incorporating the gas company reserved the power to amend, alter, r or repeal its charter, and later authorized the city to construct its own gasworks. Hamilton Gaslight & C. Co. v. Hamilton, 146 U. S. 258, 13 Sup. Ct. Rep. 90.] The consent of the legislature in any such case would relieve it of all difficulty, except so far as questions might arise concerning the right of indi- viduals to compensation, as to which, see post, ch. 15. In Milhau v. Sharp, supra, it was also held that a corporation, with authority " from time to time to regulate the rates of fare to be charged for the carriage of persons," could not by reso- lution divest itself thereof as to the car- riages employed on a street railway. 2 Branson v. Philadelphia, 47 Pa. St. 329. Compare Louisville City R. R. Co. v. Louisville, 8 Bush, 415. [^And see 300 CONSTITUTIONAL LIMITATIONS. [CH. VIII. While thus held within the limitations which govern the legis- lative authority of the State, these corporations are also entitled to the protections and immunities which attend State action, and which exempt it from liability to those who may incidentally suffer damage in consequence, (a) As no State does or can undertake to protect its people against incidental injuries resulting from its adopting or failing to adopt any proposed legislative action, so no similar injury resulting from municipal legislative action or non- action can be made the basis of a legal claim against a municipal corporation. The justice or propriety of its opening or discon- tinuing a street, of its paving or refusing to pave a thoroughfare or alley, of its erecting a desired public building, of its adopting one plan for a public building or work rather than another, or of the exercise of any other discretionary authority committed to it as a part of the governmental machinery of the State, is not suffered to be brought in question in an action at law, and submitted to the determination of court and jury. 1 If, therefore, a city tern- Stevens v. Muskegon, 111 Mich. 72, 69 of every failure in the perfect and in- N. W. 227, 36 L. R. A. 777.] fallible execution of those laws. There 1 In Griffin v. New York, 9 N. Y. 456, is no authority for such a doctrine, and 459, in which it was held that an action we are satisfied it does not exist." QSee would not lie against a city for injury also Evansville v. Senhenn, 151 Ind. 42, occasioned by a failure to keep its streets 47 N. E. 634, 51 N. E. 88, 41 L. R. A. 728, free from obstructions, the following re- 68 Am. St. 218.] Where a city under marks are made : " The functions of a proper authority has vacated part of a common council as applied to this subject street, an abutter on another part of it are those of a local legislature within cer- has no ground of complaint. Whitsett i>. tain limits, and are not of a character to Union I). & R. Co., 10 Col. 243, 15 Pac. render the city responsible for the manner 3-39. A court cannot control the discre- in which the authority is exercised, or in tion of a city in opening and working which the ordinances are executed, any streets. Bauman v. Detroit, 58 Mich, more than the State would be liable for 444, 25 N. W. 391. So, where a city was the want of adequate administrative laws, sued for an injury sustained in the de- or from any imperfections in the manner struction of property by a mob, in con- of carrying them out." " A doctrine that sequence of the failure of officers to give should hold the city pecuniarily liable in adequate protection, the court, in holding such a case would oblige its treasury to that the action will not lie, say : " It is make good to every citizen any loss not the policy of the government to in- which he might sustain for the want of demnify individuals for losses sustained adequate laws upon every subject of either from the want of proper laws, or municipal jurisdiction, and on account from the inadequate enforcement of (a) [[A municipal corporation is not liable in an action for false imprisonment where imprisonment was under a judgment for violation of an ordinance, even though the judgment was erroneous or even void. Bartlett r. Columbus, 101 Ga. 300, 28 S. E. 599, 44 L. R. A. 795. Nor for the destruction of property in time of flood in order to prevent still greater loss. Aitken i\ Wells Hiver, 70 Vt. 308, 40 Atl. 829, 41 L. R. A. 566, 67 Am. St. G72. Nor for injury resulting from the negli- gence of the employer of a public institution maintained by the county as a govern- mental agency (reform school). McAndrews v. Hamilton County, 105 Tenn. 399, 68 S. W. 483.] CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 301 porarily suspends useful legislation ; l or orders and constructs laws." Western College v. Cleveland, 12 Ohio St. 375, 377. QBut liability for such losses may be cast by statute on municipalities. Chicago v. Manhattan Cement Co., 178 111. 372, 53 N. E. 68, 45 L. K. A. 848, 69 Am. St. 321.] A city is not liable for the destruction of a house by fire set by sparks from an engine which was by its ordinances a nuisance subject to abatement. " In the exercise of such powers a city is not bound to act unless it chooses to act." Davis v. Mont- gomery, 51 Ala. 139, 23 Am. Rep. 545. Nor for failure to enforce a fire limits ordinance whereby adjoining property is burned. Hines v. Charlotte, 72 Mich. 278, 40 N. W. 333. Nor for failure to pro- hibit manufacture of fireworks. McDade v. Chester, 117 Pa. St. 414, 12 Atl. 421. Nor is it liable for neglect to construct a proper system of drainage, in conse- quence of which plaintiff's store was over- flowed in an extraordinary rain. Carr v. Northern Liberties, 35 Pa St. 324 ; Flagg v. Worcester, 13 Gray, 601. A city is not liable for the failure to provide a proper water supply for the extinguishment of fires: Grant v. Erie, 69 Pa. St. 420, 8 Am.- Rep. 272'; Tainter v. Worcester, 123 Mass. 311, 25 Am. Rep. 90; Wright v. Augusta, 78 Ga. 241, Black v. Columbia, 19 S. C. 412; Vanhorn v. Des Moines, 63 Iowa, 447, 19 N. W. 293; Mendel v. Wheeling, 28 W. Va. 233; pSutterworth v. Henrietta, Tex. Civ. Ap. , 61 S. W. 975, (Mar. 23, 1901) Q nor for the inefficiency of its firemen : Wheeler v. Cincinnati, 19 Ohio St. 19, 2 Am. Rep. 368; Patch r. Covington, 17 B. Mou. 722; Greenwood v. Louisville, 13 Bush, 226, 26 Am. Rep. 263 ; Hafford v. New Bedford, 16 Gray, 297 ; Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196; Jewett v. New Haven, 38 Conn. 368 ; Tor- hush v. Norwich, 38 Conn. 225, 9 Am. Rep. 395; Howard v. San Francisco, 51 Cal. 52 ; Heller v. Sedalia, 53 Mo. 159, 14 Am. Rep. 444; McKenna v. St. Louis, 6 Mo. App. 320; Robinson v. Evansville, 87 Ind. 334; nor for not preventing "coast- ing" in its streets, to the injury of in- dividuals : Shepherd v. Chelsea, 4 Allen, 113; Pierce v. New Bedford, 129 Mass. 534; Ray o. Manchester, 46 N. H. 69; Altvaterv. Baltimore, 31 Md. 462; Huteh- inson v. Concord, 41 Vt. 271; Calwell v. Bbone, 51 Iowa, 687, 2 N. W. 614, 33 Am. Rep. 154; Schultz r. Milwaukee, 49 Wis. 254, 5 N. W. 342, 35 Am. Rep. 779; Bur- ford v. Grand Rapids, 53 Mich. 98, 18 N. W. 571 ; Weller v. Burlington. 60 Vt. 28, 12 Atl. 215; Lafayette v. Timberlake, 88 Ind. 330; Q Wilmington v. Van De Grift, 1 Marvel (Del.), 6, 29 Atl. 1047, 25 L. R. A. 538, 65 Am. St. 256 ;] but see Taylor v. Cumberland, 64 Md. 68, 20 Atl. 1027; nor for fitting a path for " coasting " in public grounds, where a collision occurs with a person passing it : Steele v. Bos- ton, 128 Mass. 583; [jior for not prevent- ing the running at large of dogs when hydrophobia is epidemic: Smith v. Selins- grove, 199 Pa. 615, 49 Atl. 213 ;J nor for failure to light the streets sufficiently: Freeport v. Isbell, 83 111. 440, 25 Am. Rep. 407; Miller v. St. Paul, 38 Minn. 134, 36 N. W. 271 ; see Randall v. Rail- road Co., 106 Mass. 276, 8 Am. Rep. 327 ; nor for granting to a railroad a right of way along one of its streets : Davenport v. Stevenson, 34 Iowa, 225 ; Frith v. Du- buque, 45 Iowa, 406 ; Stevenson v. Lex- ington, 69 Mo. 157 ; nor for failure to compel such railroad to maintain safety gates : Kistner v. Indianapolis, 100 Ind. 210; nor for failure to enact proper or- dinances for keeping its sidewalks in repair, or to enforce them if enacted : Cole v. Medina, 27 Barb. 218 ; [contra, Mc- Devitt v. St. Paul, 66 Minn. 14, 68 N. W. 178, 33 L. R. A. 601; nor for failure to prohibit bicycle riding upon sidewalks : Jones v. Williamsburg, 97 Va. 722, 34 S. E. 883, 47 L. R. A. 294 ;] nor for failure to build footwalks adjoining a b r idge : Lehigh Co. v. Hoffort, 116 Pa. St. 119, 9 Atl. 177; nor for allowing a shooting- gallery to be maintained : Hubbell v. Viroqua, 67 Wis. 343, 30 N. W. 847 ; nor for permitting cannon firing: Wheeler v. 1 Such as an ordinance forbidding fire- works within a city : Hill r. Charlotte, 72 N. C. 55, 21 Am. Rep. 451 ; or forbidding cattle running at large: Rivers v. Augusta, 65 Ga. 376, 38 Am. Rep. 787. A city is not liable for a loss by fire which might have been prevented if the city had not been cut off the water from one of its hydrants. Tainter v. Worcester, 123 Mass. 311. 302 CONSTITUTIONAL LIMITATIONS. [CH. VIII. public works, from which incidental injury results to individuals; 1 or adopts unsuitable or insufficient plans for public bridges, build- ings, sewers, or other public works; 2 or in any other manner, Plymouth, 116 Ind. 158, 18 N. E. 532; Lincoln v. Boston, 148 Mass. 578, 20 N. E. 329; Robinson v. Greenville, 42 Ohio St. 625; rjO'Rourk v. Sioux Falls, 4 S. I). 47, 54 N.W. 1044, 19 L. R. A. 789 ; 46 Am. St. 700 ;3 nor the discharge of fireworks : Ball v. Woodbine, 61 Iowa, 83, 15 N. W. 846; [JBartlett v . Clarksburg, 45 W. Va. 393, 31 S. E. 918, 43 L. R. A. 295, 72 Am. St. 817 ; Aron v. Wausau, 98 Wis. 592, 74 N. W. 354, 40 L. R. A. 733 ; Love v. Raleigh, 116 N. C. 296, 21 S. E. 503, 28 L. R. A. 192; Fifield v. Phoenix, Ariz. , 36 1'ac. 916, 24 L. R. A. 430 ;] nor for damage done on adjoining property by its failure to remove a dangerous wall : Kiley v. Kansas City, 87 Mo. 103; Anderson v. East, 117 Ind. 126, 19 N. E. 726; Cain v. Syracuse, 95 N. Y. 83; otherwise for injury there- from to a person on the street. Duffy v. Dubuque, 63 Iowa, 171, 18 N. W. 900. QBut the city as owner of vacant lots is subject to same duties in regard thereto as a private owner. Pekin v. McMalion, 154 III. 141, 39 N. E. 481, 27 L. R. A. 20(5, 45 Am. St. 114. And where the city permits cattle to roam the streets to such an extent that they amount to a nuisance, it may be liable for an injury to a person on the street, caused by a cow running at large. Cochrane v. Frostburg, 81 Md. 54, 31 Atl. 703, 27 L. R. A. 728, 48 Am. St. 479, and see note in L. R. A. But city is not responsible for defective condition of a bathing beach, the duty to maintain which is thrust upon it by law. McGraw v. Dist. of Columbia, 3 App. D. C. 405, 25 L. R. A. 691. Where it lawfully acts as private contractor in furnishing water to steam-heating plant, it is liable for breach. Watson v. Needham, 161 Mass. 404, 37 N. E. 204, 24 L. R. A. 287.] 1 Brewstery. Davenport, 51 Iowa, 427, 1 N. W. 737 ; Wehn v. Commissioners, 5 Neb. 491, 25 Am. Rep. 497 (case of a jail, complained of as offensive in the neigh- borhood) ; Carroll v. St. Louis, 4 Mo. App. 191; Saxton v. St. Joseph, 60 Mo. 153; Wicks v. De Witt, 54 Iowa. 130, 6 N. W. 176 ; White v. Yazoo City, 27 Miss. 357 ; Vincennes v. Richards, 23 Ind. 381 ; High- way Com'rs v. Ely, 54 Mich. 173, 19 N. W. 940; Fort Worth v. Crawford, 64 Tex. 202. There can be no recovery for an injury caused by blasting in the course of a public work, in the absence of neg- ligence in the city's agent. Blumb v. Kansas City, 84 Mo. 112; Murphy v. Lowell, 128 Mass. 396. Contra, Joliet v. Harwood, 86 111. 110. QNor, except by force of statute, even in case of negligence. Howard v. Worcester, 153 Mass. 426, 27 N. E. 11, 12 L. R. A. 160. Determination of city council that poles for electric light wires shall be erected in street cannot be questioned. Palmer v. Larchmont El. Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672.;] - Mills v. Brooklyn, 32 N. Y. 489; Carr v. Northern Liberties, 35 Pa. St. 324; Fair v. Philadelphia, 88 Pa. St. 309; Collins v. Philadelphia, 93 Pa. St. 272; Lynch v. New York, 76 N. Y. 60; Larkin v. Saginaw, 11 Mich. 88; Detroit v. Beckman, 34 Mich. 125 ; Lansing v. Toolan, 37 Mich. 152 ; Davis v. Jackson, 61 Mich. 530, 28 N. W. 526; Foster v. St. Louis, 4 Mo. App. 564 ; Denver v. Capelli, 4- Col. 25, 34 Am. Rep. 62 ; Allen v. Chippewa Falls, 52 Wis. 430, 9 N. W. 284; McClure v. Redwing, 28 Minn. 186, 9 N. W. 767 ; French v. Boston, 129 Mass. 692, 37 Am. Rep. 393; Johnston v. Dist. Columbia, 118 U. S. 19, 6 Sup. Ct. Rep. p. 923 ; QHughes v. Auburn, 161 N. Y. 96, 55 N. E. 389, 46 L. R. A. 636.] A city is not liable if in rebuilding a walk an abutter follows the original plan. Urqu- hart v. Ogdensburg, 91 N. Y. 67. But if he deviates from it, the fact that the city suffers the walk to remain does not con- stitute an adoption of it. Ibid. 97 N. Y. 238. In Kansas a city may be liable if the plan is manifestly unsafe. Gould a. Topeka, 32 Kan. 485, 4 Pac. 822. In Indiana it is liable for negligence in plan, but not for mere errors of judgment. Seymour v. Cummins, 119 Ind. 148, 21 N. E. 549, 6 L. R. A. 126, and note ; Rice v. Evansville, 108 Ind. 7, 9 N. E. 139; Terre Haute r. Hudnut, 112 Ind. 542, 13 N. E. 686. In Hill r. Boston, 122 Mass. 344, 23 Am. Rep. 332, a child attending one of the public schools in the third story of a school building fell over the railing to the staircase, and CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 303 through the exercise or failure to exercise its political authority, causes incidental injury to individuals, an action will not lie for such injury. The reason is obvious. The maintenance of such an action would transfer to court and jury the discretion which the law vests in the municipality, but transfer them not to be exer- cised directly and finally, but indirectly and partially by the retro- active effect of punitive verdicts upon special complaints. The probable consequence is well stated in a case in which action was brought against a city for neglect to construct a proper system of drainage. " Any street may be complained of as being too steep or too level ; gutters as being too deep or too shallow ; or as being pitched in a wrong direction ; and there may be evidence that these things were carelessly resolved upon, and than a tribunal that is foreign to the municipal system will be allowed to inter- vene and control the town officers. And the end is not yet ; for if a regulation be altered to suit the views of one jury, the altera- tion may give rise to another case, in which the new regulation will be likewise condemned. This theory is so vicious that it cannot possibly be admitted." 1 The alternative is and the only course consistent with principle to leave the municipal corporation to judge finally in the exercise of such political power brought suit for the consequent injury, that a riparian proprietor cannot use it in alleging that the railing was made dan- his business as he has been accustomed gerously low. The court held no such to do, he cannot recover against the city action maintainable, and asserted the for the pollution, so far as it is attribut- " general doctrine that a private action able to the plan of sewerage adopted by cannot be maintained against a town or the city, but he can recover so far as it is other quasi corporation for a neglect of attributable to the improper construction corporate duty, unless such action is given or unreasonable use of the sewers, or the by statute ; " citing White v. Phillipston, negligence or other fault of the city in 10 Met. 108; Sawyer v. Northfield, 7 the care and management of them. Merri- Cush. 490; Reed v. Belfast, 20 Me. 246; field v. Worcester, 110 Mass. 216, 14 Am. Eastman v. Meredith, 36 N. H. 284 ; Hyde Hep. 592, citing Emery v. Lowell, 104 . Jamaica, 27 Vt. 443; Chidsey v. Can- Mass. 13; Child v. Boston, 4 Allen, 41. ton, 17 Conn. 475; Taylor v. Peckham, 8 QSee also Atlanta v. Warnock, 91 Ga. R. I. 349, 6 Am. Rep. 678; Bartlett v. 210, 18 S. E. 135, 23 L. R. A. 301, and Crozier, 17 Johns. 439; Freeholders v. note, 44 Am. St. 17; Bulger v. Eden, 82 Sussex, 18 N. J. 108; Warbiglee . Los Me. 352, 19 Atl. 829, 9 L. R. A. 205, and Angeles, 45 Cal. 36 ; Highway Commis- note.] But a city may not empty a sewer sioners v. Martin, 4 Mich. 557, and a great into a mill pond without acquiring the number of other cases. It is also said in right in some lawful way. Vale Mills the same case that, in Massachusetts, the v. Nashua, 63 N. H. 136. fjAnd that a same doctrine is applied to incorporated city may be liable for establishing a pest- cities. See further Hyde v. Jamaica, 27 house near the residence of a person, see Vt. 443; State i: Burlington, 36 Vt. 621 ; Clayton v. Henderson, 103 Ky. 228, 44 S. Chidsey v. Canton, 17 Conn. 475 ; Taylor W. 667, 44 L. R. A. 474.] v. Peckham, 8 R. I. 349, 5 Am. Rep. 578. 1 Carr v. Northern Liberties, 35 Pa. If the water of a stream becomes polluted St. 324, 329. See Detroit v. Beckman, 34 by the emptying into it of city sewers, so Mich. 125. 304 CONSTITUTIONAL LIMITATIONS. [CH. VIII. as has been confided to it. 1 And as the State is not responsible for the acts or neglects of public officers in respect to the duties imposed upon them for the public benefit, so one of these corpora- tions is not liable to private suits for either the non-performance or the negligent performance of the public duties which it is re- 1 Louisville v. Hyatt, 2 B. Mon. 177, 36 Am. Dec. 594. Cities are under a political obligation to open such streets and build such market-houses as the convenience of the community requires ; but they cannot be compelled to per- form these duties, or be held responsible for non-performance. Joliet v. Verley, 35 111. 58. See, further, Little Rock v. Willis, 27 Ark. 572; Duke v. Rome, 20 Ga. 635; Tate v. Railroad Co., 64 Mo. 149 ; Bennett i>. New Orleans, 14 La. Ann. 120; Commissioners v. Duckett, '20 Mil. 468; Randall v. Eastern R. Corp., 106 Mass. 276 ; Hughes v. Baltimore, Taney, 213; Weightman v. Washington, 1 Black, 39. A city is not liable to an abutter for allowing a street to be used for market purposes. Henkel v. Detroit, 49 Mich. 249, 13 N. W. 611. But this doctrine does not deprive an individual of remedy when by reason of the negli- gent construction of a public work his property is injured, or when the neces- sary result of its construction is to flood or otherwise injure his property in a man- ner that would render a private individ- ual liable. See Van Pelt v. Davenport, 40 Iowa, 308, 20 Am. Rep. 622, and note, p. 626 ; Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 692 ; Mayo v. Spring- field, 136 Mass. 10 ; Weyrnan v. Jefferson, 61 Mo. 65 ; Broadwell v. Kansas City, 75 Mo. 213 ; Union v. Durkes, 38 N. J. 21 ; Hewison v. New Haven, 37 Conn. 475, 9 Am. Rep. 342; Mines v. Lockport, 60 N. Y. 236 ; Hardy v. Brooklyn, 90 N. Y. 435 ; Weightman v. Washington, 1 Black, 39; Simmer v. St. Paul, 23 Minn. 408; Ross v. Clinton, 46 Iowa, 606 ; Inman 0. Tripp, 11 R. I. 620; Damour v. Lyons City, 44 Iowa, 276 ; Thurston v. St. Joseph, 61 Mo. 510, 11 Am. Rep. 463; Little Rock v. Willis, 27 Ark. 572 ; Prince- ton v. Gieske, 93 Ind. 102; Denver v. Rhodes, 9 Col. 654, 13 Pac. 729; Keating r. Cincinnati, 38 Ohio St. 141; Mayor, &c. Savannah v. Spears, 66 Ga. 304. [Miles v. Worcester, 154 Mass. 611, 28 N. E. 676, 13 L. R. A. 841, 26 Am. St. 264.] A city is liable for negligence in repairing a sewer. Fort Wayne v. Coombs, 107 Ind 75, 7 N. K. 743; Kranz v. Mayor. &c. of Baltimore, 64 Md. 491, 2 Atl. 908; Stanchfield v. Newton, 142 Mass. 110, 7 N. E. 703. And a State may be, if it has assumed to make one. Ballou v. State, 111 N. Y. 496, 18 N. E. 627. If a city cuts a sewer in such a manner as to cause the collection of a large quantity of water which otherwise would not have flowed there, and to cast it upon the premises of an individual to his injury, this is a trespass for which the city is liable. Ashley v. Port Huron, 35 Mich. 296, citing many cases. See also Bloomington v. Brokaw, 77 III. 194 ; Elgin v. Kimball, 90 111. 356; Dixon v. Baker, 65 111. 518, 16 Am. Rep. 591; Rowe v. Portsmouth, 66 N. H. 291, 22 Am. Rep. 464 ; Burton v. Chattanooga, 7 Lea, 739; Rhodes v. Cleveland, 10 Ohio, 159, 36 Am. Dec. 82; West Orange v. Field, 37 N. J. Eq 600; Crawfordsville v. Bond, 96 Ind. 236; Lehn v. San Fran- cisco, 66 Cal. 76, 4 Pac. 965 ; Rychlicki v. St. Louis, 98 Mo. 497, 11 S. W. 1001; Blakely v. Devine, 36 Minn. 53, 25 N. W. 342 ; Seifert v. Brooklyn, 101 N. Y. 136, 4 N. E. 321. Olbany . Sikes, 94 Ga. 30, 20 S. E. 257, 26 L. R. A. 653.] As to the liability for increasing the flow of surface water on land by grading streets, compare Bronson r. Wallingford, 64 Conn. 513, 9 Atl. 393; Stewart v. Clin- ton, 79 Mo. 603; Kehrer v. Richmond, 81 Va. 745 ; Meth. Ep. Ch. v. Wyandotte, 31 Kan. 721, 3 Pac. 527 ; Morris v. Coun- cil Bluffs, 67 Iowa, 343, 25 N. W. 274; Kennison v. Beverly, 146 Mass. 467, 16 N. E. 278 ; Heth v. Fond du Lac, 63 Wis. 228, 23 N. W. 495 ; [Jordan v. Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L. R. A. 619, 57 Am. St. 859;] where it was denied, with Peters v. Fergus Falls, 35 Minn. 549, 29 N. W. 586; Gray v. Knox- viile, 85 Tenn. 90, 1 S. W. 622 ; Gilluly v. Madison, 63 Wis. 618, 24 N. W. 137 ; Addy v. Janesville, 70 Wis. 401, 35 N. W. 931, where it was sustained. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 305 quired to assume, and does assume, for the general public, and from which the corporation itself receives neither profit nor special privilege. 1 And the same presumption that legislative action has i Eastman v. Meredith, 36 N. H. 284 ; Hill v. Boston, 122 Mass. 344, 23 AID. Rep. 332. QMarkey v. Queens County, 154 N. Y. 675, 49 N. E. 71, 39 L. R. A. 46; Moran v. Pullman Palace Car Co., 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755, 56 Am. St. 543 ; Snider v. St. Paul, 51 Minn. 466, 53 N. W. 763, 18 L. R. A. 151.3 Nor does it change the rule that the duty is not specially imposed, but is assumed under a general law. Wixon r. Newport, 13 It. I. 454. A city is not liable for the negligent management of its hospitals : Richmond v. Long, 17 Gratt. 375 ; Benton v. Trustees, &c., 140 Mass. 13, 1 N. E. 836 ; [>r for the administration of impure vaccine virus under an ordinance compelling vaccina- tion : Wyatt v. Rome, 105 Ga. 312, 31 S. E. 188, 42 L. It. A. 180, 70 Am. St. 41 ; or for an injury arising from defective machinery in an asylum which the State compelled it to maintain : Hughes i>. County of Monroe, 147 N. Y. 49, 41 N. E. 407, 39 L. R. A. 33. See also Frcel v. School City of Crawfordsville, 142 Ind. 27, 41 N. E. 312, 37 L. R. A. 301, and note thereto in L. It. A. But it is liable for injury to the health of a prisoner whom it confines in a damp, cold, filthy prison. Shields v. Durham, 118 N. C.450," 24 S. E. 794, 36 L. R. A. 293, and note.] A county is not liable for personal injuries sustained by reason of the imperfect con- struction of its court-house. Kincaid v. Hardin, 53 Iowa, 430, 50 N. W. 589, 36 Am. Rep. 236 ; Hollenbeck v. Winnebaeo Co., 95 111. 148, 35 Am. Rep. 151. See further, Little r. Madison, 49 Wis. 605, 6 N. W. 249, 35 Am. Rep. 793 ; Dawson v. Aurelius, 49 Mich. 479, 13 N. W. 824. And compare post, 353-362, an'1 notes. A city is not liable for the torts of its police officers : Cook v. Macon, 54 Ga. 468; M'Elroy v. Albany, 65 Ga. 387, 88 Am. Rep. 791 ; Grumbine v. Washing- ton. 2 McArthur, 578. 29 Am. Rep. 626; Ilarman v. Lynchbnrg, 33 Gratt. 37 ; But- trick v. Lowell, 1 Allen, 172; Elliott v. Philadelphia, 75 Pa. St. 347 ; Norristown v. Fitzpatrick, 94 Pa. St. 121 ; Calwell v. Boone, 51 Iowa, 687, 2 N. W. 614 ; Atta- way v. Cartersville, 68 Ga. 740 ; Worley v. Columbia, 88 Mo. 106; or for their neuligence : Pollock's Adm'r t 1 . Louis- ville, 13 Bush, 221, 26 Am. Rep. 260, and note; Little v. Madison, 49 Wis. 605, 6 N. W. 249, 35 Am. Rep. 793; Jolly v. Hawesville, 89 Ky. 279, 12 S. W. Rep. 313; but see contra, Carrington v. St. Louis, 89 Mo. 208, 1 S. W. 240; or for the negligence of its firemen : Burrill v. Augusta, 78 Me. 118, 3 All. 177; Welsh v. Rutland, 56 Vt. 228; Wilcox v. Chi- cago, 107 III. 334; Grube v. St. Paul, 34 Minn. 402, 26 N. W. 228; [JGillespie v. Lincoln, 35 Neb. 34, 52 N. W. 811, 16 L. R. A. 349; Dodge v. Granger, 17 R. I. 664, 24 All. 100, 15 L. R. A. 781, and note, 83 Am. St. 901 ; or bridge-tender : Corning v. Saginaw, 116 Mich. 74, 74 N. W. 307, 40 L. R. A. 526; or for insufficiency of municipal water-works: Springfield F. & M. Ins. Co. c. Keeseville, 148 N. Y. 46, 42 N. E. 405, ::0 L. It. A. 660, 51 Am. St. 667 ; nor for negligence in not maintaining proper poles in fire- signal system : Pettingell v. Chelsea, 161 Mass. 368, 37 N. E. 380, 24 L. R. A. 426 ;] or for the torts of other officers ; Hunt v. Boonville, 65 Mo. 620, 27 Am. Rep. 299; Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804; Trus- tees r. Schroeder, 58 111. 353 ; Cumberland v. Willison, 50 Md. 138; Cooney v. Hart- land, 95 111. 516 ; Corsicana v. White, 67 Tex. 382; [Gray . Griflin, 111 Ga. 361, 36 S. E. 792, 51 L. R. A. 131 Q or for their errors or neglects : Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101, 83 Am. Rep. 804; Collins v. Philadelphia, 93 Pa. St. 272 ; Hart v. Bridgeport, 13 Blatch. 289; McCarthy v. Boston, 135 Mass 197; Tindley v. Salem, 137 Mass. 171; Summers r. Com'rs Daviess Co., 103 Ind. 262, 2 N. E. 725; Abbett v. Com'rs Johnson Co.. 114 Ind. 61, 16 N. E. 127 ; Wakefield v. Newport, 60 N. H. 374 ; Condict v. Jersey City, 46 N. J. L. 157 ; Donnelly v. Tripp, 12 It I. 97 ; fJBd. of Com'rs Jasper Co. v. Allman, 142 Ind. 573, 42 N. E. 206, 39 L. It. A. 58; A'llern v. Iowa St. Agr'l Socie'y, 91 Iowa, 97, 58 N. W. 1092, 24 L. R. A. 655 ; Williamson v. Louisville Ind. School. 95 Ky. 251, 24 S. W. 1065, 23 L. R. A. 200, and note, 44 20 306 CONSTITUTIONAL LIMITATIONS. [CH. VIII. been devised and adopted on adequate information and under the influence of correct motives, will be applied to tbe discretionary action of municipal bodies, and of the State legislature, and will preclude, in the one case as in the other, all collateral attack. 1 Among the implied powers of such an organization appears to be that of defending and indemnifying its officers where they have incurred liability in the bona fide discharge of their duty. It has been decided in a case where irregularities had occurred in the assessment of a tax, in consequence of which the tax was void, and the assessors had refunded to the persons taxed the moneys which had been collected and paid into the town, county, and State Am. St. 243 ; Whitfield v. Paris, 84 Tex. 481, 19 S. W. 566, 15 L. R. A. 783, and note, 31 Am. St. 69; Brown v. Guyan- dotte, 34 W. Va. 299, 12 S. E. 707, 11 L. R. A. 121 ; Culver v. Streator, 130 111. 238, 22 N. E. 810, 6 L. R. A. 270;] but see Sprague v. Tripp, 13 R. I. 38; or for illegal action of officers under an illegal or- dinance. Trammell c.Russellville,34 Ark. 105, 36 Am. Rep. I; fjlloggard v. Mon- roe, 51 La. Ann. 683, 25 So. 349, 44 L. R. A. 477-3 But it is liable if in obedience to orders an officer acts under such ordi- nance. Durkee v. Kenosha, 59 Wis. 123, 17 N. W. 677. fJSchussler v. Hennepin Co. Com'rs, 67 Minn. 412, 70 N. W. 6, 64 Am. St. 424, 39 L. R. A. 75.] And it may be liable if the negligent person is to be regarded as its servants, and not as a public officer. Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565 ; Waldron v. Haverhill, 143 Mass. 582, 10 N. E. 481 ; Perkins v. Lawrence, 136 Mass. 305; Semple v. Vicksburg, 62 Miss. 63. In the management of the private property held by the corporation for its own profit or advantage, it is held to the same re- sponsibility with private citizens. Moul- ton v. Scarborough, 71 Me. 267, 36 Am. Rep. 308, and cases cited ; Rowland v. Kalamazoo Supts., 49 Mich. 553, 14 N. W. 494. QBut not where the acquisition and holding of such property is ultra vires. Duncan v. Lynchburg, Va. , 34 S. E. 964, 48 L. R. A. 831. Liable for negligent management of city water- works. Esberg-Gunst Cigar Co. v. Port- land, 34 Oreg. 282, 54 Pac. 664, 43 L. R. A. 435, 75 Am. St. 651 ; Augusta v. Mackey, 113 Ga. 64, 38 S. E. 339, and of market buildings which ir. may erect, but is not compelled to : Barron v. Detroit, 94 Mich. 601, 54 N. W. 273, 19 L. R. A. 452, and note, 34 Am. St. 366.] So if the city lets a public building for hire, it is liable for negligence in managing it. Worden v. New Bedford, 131 Mass. 23. See also Toledo v. Cone, 41 Ohio St. 149, fjand note to 39 L. R. A. 33, upon liabilities of counties in actions for torts and negli- gence. The same doctrine of immunity from private suit applies to public officers who are compelled to serve without com- pensation where their duties are quasi- judicial. Daniels v. Hathaway, 65 Vt. 247, 26 All. 970, 21 L. R. A. 377. Mayor duly acting as court is not liable for maliciously issuing an erroneous order. Scott r. Fishblate, 117 N. C. 265, 23 S. E. 436, 30 L. R. A. 696. Statute made municipality liable for injuries done by " riotous or tumultuous assemblages of people." Held, not necessary that there should be any common intent, in those composing such assemblage, to injure in order that municipality be liable. Madi- son ville v. Bishop, Ky. , 67 S. W. 269, 57 L. R. A. 130. See also Aron v. Wausau, 98 Wis. 592, 74 N. W. 354, 40 L. R. A. 733; Scanlon v. Wedger, 156 Mass. 462, 31 N. E. 642, 16 L. R. A. 395.] 1 Milhau v. Sharp, 15 Barb. 193 ; New York, &c. R. R. Co. v. New York, 1 Hil- ton, 662 ; Buell v. Ball, 20 Iowa, 282 ; Freeport v. Marks, 59 Pa St. 253. Com- pare State v. Cincinnati Gas Co., 18 Ohio St. 262. See cases ante, pp. 257-260. fJBut in Weston v. Syracuse, 158 N. Y. 274, 53 N. E. 12, 43 L." R. A. 678, 70 Am. St. 472. it was held that a resolution ac- cepting an imperfect sewer was void be- cause secured by fraud and corruption.] CH. Till.] THE GRADES OF MUNICIPAL GOVERNMENT. 307 treasuries, that the town had authority to vote to raise a sum of money in order to refund to the assessors what had been so paid by them, and that such vote was a legal promise to pay, on which the assessors might maintain action against the town. " The general purpose of this vote," it was said, " was just and wise. The inhabitants, finding that three of their townsmen, who had been elected by themselves to an office, which they could not, without incurring a penalty, refuse to accept, had innocently and inadvertently committed an error which, in strictness of law, an- nulled their proceedings, and exposed them to a loss perhaps to tl)e whole extent of their property, if all the inhabitants individ- ually should avail themselves of their strict legal rights, find- ing also that the treasury of the town had been supplied by the very money which these unfortunate individuals were obliged to refund from their own estates, and that, so far as the town tax went, the very persons who had rigorously exacted it from the assessors, or who were about to do it, had themselves shared in due proportion the benefits and use of the money which had been, paid into the treasury, in the shape of schools, highways, and various other objects which the necessities of a municipal institu- tion call for, concluded to reassess the tax, and to provide for its assessment in a manner which would have produced perfect justice to every individual of the corporation, and would have pro- tected the assessors from the effects of their inadvertence in the assessment which was found to be invalid. The inhabitants of the town had a perfect right to make this reassessment, if they had a right to raise the money originally. The necessary sup- plies to the treasury of a town cannot be intercepted, because of an inequality in the mode of apportioning the sum upon the indi- viduals. Debts must be incurred, duties must be performed, by every town ; the safety of each individual depends upon the execution of the corporate duties and trusts. There is and must be an inherent power in every town to bring the money necessary for the purposes of its creation into the treasury ; and if its course is obstructed by the ignorance or mistakes of its agents, they may proceed to enforce the end and object by correcting the means ; and whether this be done by resorting to their original power of voting to raise money a second time for the same purposes, or by directing to reassess the sum before raised by vote, is immaterial ; perhaps the latter mode is best, at least it is equally good." 1 1 Per Parker, Ch. J., in Nelson v. Mil- ers v. Lucas, 93 U. S. 108 ; State v. ford, 7 Pick. 18, 23. See also Baker v. Hammonton, 38 N. J. 430, 20 Am. Hep. Windham, 13 Me. 74; Fuller r. Groton, 404; Miles v. Albany, 59 Vt. 79, 7 Atl. 11 Gray, 340 ; Board of Commission- 601. The duty, however, must have been 308 CONSTITUTIONAL LIMITATIONS. [CH. VIII. It has also been held competent for a town to appropriate money to indemnify the school committee for expenses incurred in defending an action for an alleged libel contained in a report made by them in good faith, and in which action judgment had been rendered in their favor. 1 And although it should appear that the officer had exceeded kis legal right and authority, yet, if he has acted in good faith in an attempt to perform his duty, the town has the right to adopt his act and to bind itself to indemnify him. 2 And perhaps the legislature may even have power to corn- one authorized by law, and the matter one in which the corporation had an in- terest. Gregory r. Bridgeport, 41 Conn. 76, 19 Am. Rep. 485. In Bristol r. John- son, 34 Mich. 123, it appeared that a township treasurer had been robbed of town moneys, but had accounted to the township therefor. An act of the legis- lature was then obtained for refunding this sum to him by tax. Held, not jus- tified by the constitution of the State, which forbids the allowance of demands against the public by the legislature. See People v. Supervisor of Onondaga, 16 Mich. 254. fJNo indemnity can be given an officer for a loss arising through his negligence. Thorndike v. Camden, 82 Me. 39, 19 Atl. 95, 7 L. R. A. 463. Where local improvements within the power of the legislature to authorize are made under an act later adjudged unconstitu- tional, and the assessment made there- under fails, the legislature may authorize a reassessment of the cost of the im- provement. Chester v. Black, 132 Pa. 568, 19 Atl. 276, 6 L. R. A. 802, and note.] A municipal corporation, it is said, may offer rewards for the detection of offenders within its limits ; but its prom- ise to reward aii officer for that which without such reward, it was his duty to do, is void. Dillon, Mun. Corp. 91, and cases cited. And see note, p. 310 post. 1 Fuller v. Groton, 11 Gray, 340. See also Hadsell v. Inhabitants of Hancock, 3 Gray, 526 ; Pike i\ Middleton, 12 N. H. 278. 2 A surveyor of highways cut a drain for the purpose of raising a legal qiiestion as to the bounds of the highway, and the town appointed a committee to defend an action brought against the surveyor therefor, and voted to defray the expenses incurred by the committee. By the court: " It is the duty of a town to repah all highways within its bounds, at the ex- pense of the inhabitants, so that the same may be safe and convenient for travellers; and we think it has the power, as incident to this duty, to indemnify the surveyor, or other agent, against any charge or lia- bility he may incur in the bona fide dis- charge of this duty, although it may turn out on investigation that he mistook his legal rights and authority. The act by which the surveyor incurred a liability was the digging a ditch, as a drain for the security of the highway ; and if it was done for the purpose of raising a legal question as to the bounds of the highway, as the defendants offered to prove at the trial, the town had, never- theless, a right to adopt the act, for they were interested in the subject, being bound to keep the highway in repair. They had, therefore, a right to deter- mine whether they would defend the surveyor or not ; and having determined the question, and appointed the plaintiffs a committee to carry on the defence, they cannot now be allowed to deny their lia- bility, after the committee have paid the charges incurred under the authority of the town. The town had a right to act on the subject-matter which was within their jurisdiction ; and their votes are binding and create a legal obligation, al- though they were under no previous obli- gation to indemnify the surveyor. That towns have an authority to defend and indemnify their agents who may incur a liability by an inadvertent error, or in the performance of their duties imposed on them by law, is fully maintained by the case of Nelson v. Milford, 7 Pick. 18." Bancroft r. Lynnfield, 18 Pick. 566, 568. And see Briggs v. Whipple, 6 Vt. 95 ; Sherman v. Carr, 8 R. I. 431. A collector may he indemnified for public money stolen from him. Fields v. Highland Co. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 309 pel the town, in such a case, to reimburse its officers the expenses incurred by them in the honest but mistaken discharge of what they believed to be their duty, notwithstanding the town, by vote, has refused to do so. 1 Construction of Municipal Powers, The powers conferred upon municipalities must be construed with reference to the object of their creation, namely, as agencies of the State in local government. 2 The State can create them for no other purpose, and it can confer powers of government to no other end, without at once coming in conflict with the consti- tutional maxim, that legislative power cannot be delegated, or with other maxims designed to confine all the agencies of gov- ernment to the exercise of their proper functions. And wherever the municipality shall attempt to exercise powers not within the proper province of local self-government, whether the right to do so be claimed under express legislative grant, or by implication from the charter, the act must be considered as altogether ultra vires, and therefore void. Commissioners, 36 Ohio St. 476. Com- pare Bristol v. Johnson, 34 Mich. 123. 1 Guilford v. Supervisors of Chenango, 13 N. Y. 143. See this case commented upon by Lyon, J., in State v. Tappan, 29 Wis. 664, 680. On the page last men- tioned it is said : " We have seen no case, except in the courts of New York, which holds that such moral obligation gives the legislature power to compel payment." The case in New York is referred to as authority in New Orleans v. Clark, 95 U. S. 644. Where officers make them- selves liable to penalties for refusal to perform duty, the corporation has no au- thority to indemnify them. Halstead v. Mayor, &c. of New* York, 3 N. Y. 430; Merrill v. Plainfield, 45 N. H. 126 See Frost v. Belmont, 6 Allen, 152 ; People v. Lawrence, 6 Hill, 244 ; Vincent v. Nan- tucket, 12 Cush. 103. 2 A somewhat peculiar question was involved in the case of Jones v. Rich- mond, 18 Gratt. 517. In anticipation of the evacuation of the city of Richmond by the Confederate authorities, and under the apprehension that scenes of disorder might follow which would be aggravated by the opportunity to obtain intoxicating liquors, the common council ordered the seizure and destruction of all such liquors within the city, and pledged the faith of the city to the payment of the value. The Court of Appeals of Virginia after- wards decided that the city might be held liable on the pledge in an action of as- sumpsit. Rives, 3., says: " By its charter the council is specially empowered to ' pass all by-laws, rules, and regulations which they shall deem necessary for the peace, comfort, convenience, good order, good morals, health, or safety of said city, or of the people or property therein.' It is hard to conceive of larger terms for the grant of sovereign legislative powers to the specified end than those thus em- ployed in the charter; and they must be taken by necessary and unavoidable in- tendment to comprise the powers of emi- nent domain within these limits of pre- scribed jurisdiction. There were two modes open to the council: first, to direct the destruction of these stores, leaving the question of the city's liability therefor to be afterwards litigated and determined ; or secondly, assuming their liability, to contract for the values destroyed under their orders. Had they pursued the first mode, the corporation would have been liable in an action of trespass for the damages ; but they thought proper to adopt the latter mode, make it a matter of 310 CONSTITUTIONAL LIMITATIONS. [CH. VIII. A reference to a few of the adjudged cases will perhaps best illustrate this principle. The common coiincil of the city of Buffalo undertook to provide an entertainment and ball for its citizens and certain expected guests on the 4th of July, and for that purpose entered into contract with a hotel-keeper to provide the entertainment at his house, at the expense of the city. The entertainment was furnished and in part paid for, and suit was brought to recover the balance due. The city had authority under its charter to raise and expend moneys for various specified pur- poses, and also " to defray the contingent and other expenses of the city." But providing an entertainment for its citizens is no part of municipal self-government, and it has never been consid- ered, where the common law has prevailed, that the power to do so pertained to the government in any of its departments. The contract was therefore held void, as not within the province of the city government. 1 contract, and approach their citizens, not as trespassers, but with the amicable prof- fer of a formal receipt and the plighted faith of the city for the payment. In this they seem to me to be well justified." Judge Dillon doubts the soundness of this decision. Dillon, Mun. Corp. 871, note. The case seems to us analogous in princi- ple to that of the destruction of buildings to stop the progress of a fire. In each case private property is destroyed to an- ticipate and prevent an impending public calamity. [Jones v. Richmond is over- ruled in Wallace v. Richmond, 94 Va. 204, 26 S. E. 586, 36 L. R. A. 554.] See post, pp. 757, 867, 868. [Village may of- fer reward for arrest and conviction of incendiaries. People v. Holly, 119 Mich. 637, 78 N. W. 665, 44 L. R. A. 677, 75 Am. St. 435-3 1 Hodges v. Buffalo, 2 Denio, 110. See also the case of New London v. Brainard, 22 Conn. 552, which follows and approves this case. The cases differ in this only : that in the first, suit was brought to en- force the illegal contract, while in the second the city was enjoined from paying over moneys which it had appropriated for the purposes of the celebration. The cases of Tash v. Adams, 10 Cush. 252 ; Hood v. Lynn, 1 Allen, 103, and Austin v. Coggeshall, 12 R. I. 329, 34 Am. Rep. 648, are to the same effect. A town, it has been held, cannot lawfully be assessed to pay a reward offered by a vote of the town for the apprehension and conviction of a person supposed to have committed murder therein. Gale v. South Berwick, 51 Me. 174. See also Hawk v. Marion County, 48 Iowa, 472 ; Hanger v. Des Moines, 52 Iowa, 193, 2 N. W. 1105; 35 Am. Rep. 266 ; Board of Commissioners . Bradford, 72 Ind. 455, 37 Am. Rep. 174; Patton v. Stephens, 14 Bush, 324. Contra, Borough of York v. Forscht, 23 Pa. St. 391 ; and see, People v. Holly, supra. As to the power of a municipality to bind itself by the offer of a reward, see, further, Crawshaw v. Roxbury, 7 Gray, 374 ; Lee v. Flemingsburgh, 7 Dana, 28 ; Loveland v. Detroit, 41 Mich. 367, 1 N. W. 952 ; Janvrin v. Exeter, 48 N. H. 83; Murphy v. Jacksonville, 18 Fla. 318. An officer cannot claim an offered reward for merely doing his duty. Pool v. Boston, 5 Cush, 219. See Stamp v. Cass County, 47 Mich. 330, 11 N. W. 183. Nor, under its general authority to raise money for " necessary town charges," is a town authorized to raise and expend moneys to send lobbyists to the legisla- ture. Frankfort v. Winterport, 54 Me. 250; Mead v. Acton, 139 Mass. 341, 1 N. E. 413. Nor, under like authority, to furnish a uniform for a volunteer mili- tary company. Claflin v. Hopkinton, 4 Gray, 502. Under power to raise money for celebration of holidays and "other public purposes," it may raise it for pub- lic concerts. Hubbard v. Taunton, 140 Mass. 467, 5 N. E. 167. Where a munic- ipal corporation enters into a contract CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 311 The supervisors of the city of New York refused to perform a duty imposed upon them by la\v, and were prosecuted severally and judgment recovered, for the penalty which the law imposed for such refusal. The board of supervisors then assumed, on be- half of the city and county, the payment of these judgments, together with the costs of defending the suits, and caused drafts to be drawn upon the treasurer of the city for these amounts. It was held that these drafts upon the public treasury to indemnify officers for disregard of duty were altogether unwarranted and void, and that it made no difference that the officers had acted conscientiously in refusing to perform their duty, and in the hon- est belief that the law imposing the duty was unconstitutional. The city had no interest in the suits against the supervisors, and appropriating the public funds to satisfy the judgments and costs was not within either the express or implied powers conferred upon the board. 1 It was in fact appropriating the public money for private purposes, and a tax levied therefor must consequently be invalid, on general principles controlling the right of taxation, which will be considered in another place. In an Iowa case it is said : "No instance occurs to us in which it would be competent for [a municipal corporation] to loan its credit or make its accom- modation paper for the benefit of citizens, to enable them to execute private enterprises ; " 2 and where it cannot loan its credit to private undertakings, it is equally without power to appropriate the moneys in its treasury for such purposes, or by the conduct of its officers to subject itself to implied obligations. 3 ultra vires, no implied contract arises to shen, 11 Pick. 396 ; Merrill v. Plainfield, compensate the contractor for anything 45 N. H. 126. he may have done under it, notwith- 2 Clark r. Des Moines, 19 Iowa, 199, standing the corporation may have reaped 224; Carter v. Dubuque, 35 Iowa, 416. a benefit therefrom. McSpedon o. New See Tyson v. School Directors, 51 Pa. St. York, 7 Bosw. 601; McDonald /-. Mayor, 9; Freeland v. Hastings, 10 Allen, 570; 68 N. Y. 23 ; Zottman v. San Francisco, Thompson v. Pittston, 59 Me. 545 ; Kelly 20 Cal.96 ; Niles Water Works v. Mayor, v. Marshall, 69 Pa. St. 319; Allen v. Jay, 69 Mich. 311, 26 N. W. 625. Compare 60 Me. 124, Am. Law Reg., Aug., 1873 East St. Louis r. East St. L., &c. Co., 19 with note by Judge Redfield, 11 Am. 111. A pp. 44; Montgomery v. Montgom- Rep. 185. ery Water Works, 79 Ala. 233. ^County 3 " In determining whether the sub- cannot lease rooms of court-house to be ject-matter is within the legitimate au- used for private purposes. State v. Hart, thority of the town, one of the tests is to 144 Ind. 107, 43 N. E. 7, 33 L. R. A. 118; ascertain whether the expenses were in- upon lease of public buildings for private curred in relation to a subject specially purposes, see note to this case in L. R. A] placed by law in other hands. ... It is 1 Halstead v. Mayor, &c. of New York, a decisive test against the validity of all 3 N. Y. 430. See a similar cnse in People grants of money by towns for objects v. Lawrence, 6 Hill, 244. See also Car- liable to that objection, but it does not roll v. St. Louis, 12 Mo. 444 ; Vincent v. settle questions arising upon expenditures Nantucket, 12 Cush. 103 ; Parsons v. Go- for objects not specially provided for. In 312 CONSTITUTIONAL LIMITATIONS. [CH. VIII. The powers conferred upon the municipal governments must also be construed as confined in their exercise to the territorial limits embraced within the municipality ; (a) and the fact that these powers are conferred in general terms will not warrant their exercise except within those limits. A general power "to pur- chase, hold, and convey estate, real and personal, for the public use " of the corporation, will not authorize a purchase outside the corporate limits for that purpose. 1 Without some special pro- vision they cannot, as of course, possess any control or rights over lands lying outside ; 2 and the taxes they levy of their own authority and the moneys they expend, must be for local purposes only. 3 But the question is a very different one how far the legislature of the State may authorize the corporation to extend its action to objects outside the city limits, and to engage in enterprises of a public nature which may be expected to benefit the citizens of the municipality in common with the people of the State at large, and also in some special and peculiar manner, but which never- theless are not under the control of the corporation, and are so far aside from the ordinary purposes of local governments that assistance by the municipality in such enterprises would not be warranted under any general grant of power for municipal such cases the question still will recur, 2 Per Kent, Chancellor, Denton v. whether the expenditure was within the Jackson, 2 Johns. Ch. 320. And see jurisdiction of the town. It may be safely Bullock r. Curry, 2 Met. (Ky.) 171; assumed that, if the subject of the ex- Weaver v. Cherry, 8 Ohio, u. s. 664 ; penditure be in furtherance of some duty North Hempstead ?>. Hempstead, Hopk. enjoined by statute, or in exoneration of 288; Concord v. Boscawen, 17 N. H.465; the citizens of the town from a liability to Coldwater v. Tucker, 36 Mich. 474. A a common burden, a contract made in city may be authorized to take land out- reference to it will be valid and binding side for a park. Matter of Application of upon the town." Allen v. Taunton, 19 Mayor, 99 N. Y. 669. QBut neither the Pick. 485, 487. See Tucker v. Virginia legislature of the home state nor that of City, 4 Nev. 20. It is no objection to the a sister state can authorize the city to validity of an act which authorizes an ex- construct and control a highway in the penditure for a town-hall that rooms to sister state. Becker v. La Crosse, 99 be rented for stores are contained in it. Wis. 414, 76 N. W. 84, 40 L. R. A. 829, White v. Stamford, 37 Conn. 578. 67 Am. St. 874.] 1 Riley v. Rochester, 9 N. Y. 64. It is 3 In Parsons v. Goshen, 11 Pick. 396. competent for a municipal corporation to the action of a town appropriating money purchase land outside to supply itself in aid of the construction of a county with water. Newman v. Ashe, 9 Bax. road was held void and no protection to 380. Or to provide drainage. Coldwater the officers who had expended it. See v. Tucker, 36 Mich. 474, 24 Am. Rep. also Concord v. Boscawen, 17 N. H. 465. 601. See Rochester v. Rush, 80 N. Y. 302 ; A town cannot lay a tax for the benefit Houghton v. Huron Copper M. Co., 57 of a cemetery which it does not control. Mich. 547, 24 N. W. 820. Luques v. Dresden, 77 Me. 186. (a) fJState v. Eason, 114 N. C. 787, 19 S. E. 88, 41 Am. St. 811, 23 L. R. A. 620, and note upon boundary of municipality upon navigable stream.] CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 313 government. For a few years past the sessions of the legisla- tive bodies of the several States have been prolific in legislation which has resulted in flooding the country with municipal secur- ities issued in aid of works of public improvement, to be owned, controlled, and operated by private parties, or by corporations created for the purpose ; the works themselves being designed for the convenience of the people of the State at large, but being nevertheless supposed to be specially beneficial to certain locali- ties because running near or through them, and therefore justify- ing, it is supposed, the imposition of a special burden by taxation upon such localities to aid in their construction. 1 We have elsewhere 2 referred to cases in which it has been held that the legislature may constitutionally authorize cities, townships, and counties to subscribe to the stock of railroad companies, or to loan them their credit, and to tax their citizens to pay these subscriptions, or the bonds or other securities issued as loans, where a peculiar benefit to the municipality was anticipated from the improvement. The rulings in these cases, if sound, must rest upon the same right which allows such municipalities to impose burdens upon their citizens to construct local streets or roads, and they can only be defended on the ground that "the object to be accomplished is so obviously connected with the [municipality] and its interests as to conduce obviously and in a special manner to their prosperity and advancement." 8 But 1 In Merrick v. Inhabitants of Am- writers last named in note to the case herst, 12 Allen, 500, it was held compe- of People v. Township Board of Salem, tent for the legislature to authorize a 9 Am. Law Reg. 487. And Judge Dillon town to raise money by taxation for a well remarks in his Treatise on Municipal State agricultural college, to be located Corporations ( 104) that, "regarded in therein. The case, however, we think, the light of its effects, there is little hesi- stands on different reasons from those tation in affirming that this invention to where aid has been voted by municipali- aid private enterprises has proved itself ties to public improvements. See it ex- baneful in the last degree." plained in Jenkins v. Andover, 103 Mass. If we trace the beginning of this legis- 94. And see similar cases referred to, lation, we shall find it originating at a post, p. 332, note. time when there had been little occasion 2 Ante, pp. 166-168. to consider with care the limitations to 8 Talbot v. Dent, 9 B. Monr. 626. See the functions of municipal government, Hasbrouck v. Milwaukee, 13 Wis. 37. because as yet those functions had been It seems not inappropriate to remark in employed with general caution and pru- this place that the three authors who dence, and no disposition had been mani- have treated so ably of municipal con- fested to stretch their powers to make stitutional law (Mr. Sedgwick, Stat. & them embrace matters not usually recog- Const. Law, 464), of railway law (Judge nized as properly and legitimately falling Redfield), and of municipal corporations within them, or to make use of the mu- (Judjie Dillon), have all united in con- nicipal machinery to further private ends, demning this legislation as unsound and Nor did the earliest decisions attract unwarranted by the principles of consti- much attention, for they referred to tutional law. See the views of the two matters somewhat local, and the spirit of 314 CONSTITUTIONAL LIMITATIONS. [CII. VIII. there are authorities which dispute their soundness, and it can- not be denied that this specie of legislation has been exceedingly speculation was not as yet rife. When the construction of railways and canals was first entered upon by an expenditure of public funds to any considerable extent, the States themselves took them in charge, and for a time appropriated large sums and incurred immense debts in enterprises, some of which were of high importance and others of little value, the cost and management of which threatened them at length with financial disaster, bankruptcy, and possible repudiation. No long experience was required to dem- onstrate that railways and canals could not be profitably, prudently, or safely managed by the shifting administrations of State government ; and many of the States not only made provision for dis- posing of their interest in works of public improvement, but, in view of a bitter experience of the evils already developed in undertaking to construct and control them, they amended their constitutions so as to prohibit the State, when again the fever of speculation should prevail, from engaging anew in such undertakings. All experience shows, however, that men are abundant who do not scruple to evade a constitutional provision which they find opposed to their desires, if they can possibly assign a plausible reason for doing so ; and in the case of the provi- sions before referred to, it was not long before persons began to question their phraseology very closely, not that they might arrive at the actual purpose, which indeed was obvious enough, but to discover whether that purpose might not be defeated without a violation of the express terms. The purpose clearly was to remand all such undertakings to pri- vate enterprise, and to protect the citi- zens of the State from being taxed to aid them; but while the State was forbidden to engage in such works, it was unfor- tunately not expressly declared that the several members of the State, in their corporate capacity, were also for- bidden to do so. The conclusion sought and reached was that the agencies of the State were at liberty to do what was for- bidden to the State itself, and the burden of debt which the State might not directly impose upon its citizens, it might indi- rectly place upon their shoulders by the aid of municipal action. The legislation adopted under this construction some of the courts felt compelled to sustain, upon the accepted principle of constitutional law that no legislative authority is forbidden to the legislature unless forbidden in terms; and the voting of municipal aid to rail- roads became almost a matter of course wherever a plausible scheme could be presented by interested parties to invite it. In some localities, it is true, vigorous protest was made ; but as the handling of a large -amount of public money was usually expected to make the fortune of the projectors, whether the enterprise proved successful or not, means either fair or unfair were generally found to overcome all opposition. Towns some- times voted large sums to railroads on the ground of local benefit where the actual and inevitable result was local injury, and the projectors of one scheme succeeded in obtaining and negotiating the bonds of one municipality to the amount of a quarter of a million dollars, which are now being enforced, though the work they were to aid was never seriously be- gun. A very large percentage of all the aid voted was paid to "work up the aid," sacrificed in discounts to purchasers of bonds, expended in worthless undertak- ings, or otherwise lost to the taxpayers ; and the cases might almost be said to be exceptional in which municipalities, when afterwards they were called upon to meet their obligations, could do so with a feel- ing of having received the expected con- sideration. Some State and territorial governors did noble work in endeavoring to stay this reckless legislative and mu- nicipal action, and some of the States at length rendered such action impossible by constitutional provisions so plain and positive that the most ingenious mind was unable to misunderstand or pervert them. When the United States entered upon a scheme of internal improvement, the Cumberland road was the first important project for which its revenues were de- manded. The promises of this enterprise were of continental magnificence and CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 315 mischievous in its results, that it has created a great burden of public debt, for which in a large number of cases the anticipated importance, but they ended, after heavy national expenditures, in a road no more national than a thousand others which the road-masters in the several States have constructed with the local taxes ; and it was finally abandoned to the States as a common highway. When next a great national scheme was broached, the aid of the general government was demanded by way of subsidies to private corpora- tions, who presented schemes of works of great public convenience and utility, which were to open up the new Territories to improvement and settlement sooner than the business of the country would be likely to induce unaided private capi- tal to do it, and which consequently ap- pealed to the imagination rather than to facts to demonstrate their importance, and afforded abundant opportunity for sharp operators to call to their assistance the national sentiment, then peculiarly strong and active by reason of the at- tempt recently made to overthrow the government, in favor of projects whose national importance in many cases the imagination alone could discover. The general result was the giving away of immense bodies of land, and in some cases the granting of pecuniary aid, with a recklessness and often with an appear- ance of corruption that at length startled the people, and aroused a public spirit before which the active spirits in Con- gress who had promoted these grants, and sometimes even demanded them in the name of the poor settler in the wilder- ness who was unable to get his crops to market, were compelled to give way. The scandalous frauds connected with the Pacific Railway, which disgraced the nation in the face of the world, and the great and disastrous financial panic of 1873, were legitimate results of such subsidies ; but the pioneer in the wilder- ness had long before discovered that land grants were not always sought or taken with a view to an immediate appropria- tion to the roads for the construction of which they were nominally made, but that the result in many cases was that large tracts were thereby kept out of the mar- ket and from taxation, which otherwise would have been purchased and occupied by settlers who would have lessened his taxes by contributing their share to the public burdens. The grants, therefore, in such cases, instead of being at once devoted to improvements for the benefit of settlers, were in fact kept in a state of nature by the speculators who had se- cured them, until the improvements of settlers in their vicinity could make the grantees wealthy by the increase in value which such improvements gave to the land near them. In saying this the ad- mission is freely made that in many cases the grants were promptly and honestly appropriated in accordance with their nominal purpose ; but the general verdict now is that the system was necessarily corruptive and tended to invite fraud, and that some persons of influence man- aged to accumulate great wealth by grants indirectly secured to themselves under the unfounded pretence of a desire to aid and encourage the pioneers in the wilderness. Some States also have recently in their corporate capacity again engaged in issuing bonds to subsidize private corporations, with the natural result of serious State scandals, State insolvency, public discontent, and in some cases, it would seem, almost inevitable repudia- tion. Their governments, amid the dis- orders of the times, have fallen into the bands of strangers and novices, and the hobby of public improvement has been ridden furiously under the spur of indi- vidual greed. It has often been well remarked that the abuse of a power furnishes no argu- ment against its existence ; but a system so open to abuses may well challenge at- tention to its foundations. And when those foundations are examined, it is not easy to find for them any sound support in the municipal constitutional law of this country. The same reasons which justify subsidies to the business of com- mon carriers by railway will support taxation in aid of any private business whatsoever. It is sometimes loosely said that rail- way companies are public corporations, but the law does not so regard them. It is the settled doctrine of the law that, 316 CONSTITUTIONAL LIMITATIONS. [CH. VIII. benefit was never received, and that, as is likely to be the case where municipal governments take part in projects foreign to like banks, mining companies, and man- ufacturing companies, they are mere private corporations, supposed to be or- ganized for the benefit of the individual corporators, and subject to no other pub- lic supervision or control than any other private association for business purposes to which corporate powers have been granted. Darmouth College v. Wood- ward, 4 Wheat. 518; Bonaparte v. Cam- den & Amboy R. R. Co., Baldw. 216; Eustis v. Parker, 1 N. H. 273 ; Ohio, c. R. R. Co. v.. Ridge, 5 Blackf. 78; Cox v. Louisville, &c. R R. Co., 48 Ind. 178, 189 ; Roanoke, &c. R. R. Co. v. Davis, 2 Dev. & Bat. 451 ; Dearborn v. Boston, C. & M. R. R. Co., 4 Fost. 179 ; Trustees, &c. v. Auburn, &c. R. R. Co., 3 Hill, 567 ; Tins- man v. Belvidere, &c. R. R. Co., 26 N. J. 148 ; Thorpe v. Rutland, &c. R. R. Co., 27 Vt. 140 ; Alabama R. R. Co. . Kidd, 29 Ala. 221 ; Turnpike Co. v. Wallace, 8 Watts, 316 ; Seymour r. Turnpike Co., 10 Ohio, 477 ; Ten Eyck v. D. & R. Canal, 3 Harr. 200; Atlantic, &c. Telegraph Co. w. Chicago, &c. R. R. Co., 6 Biss. 158; A. & A. on Corp. 30-36; Redf. on Railw. c. 3, 1 ; Pierce on Railroads, 19, 20. Taxation to subsidize them cannot therefore be justified on the ground of any public character they possess, any more than to subsidize banks or mining companies. fJThis doctrine seems not now to be generally recognized. See Fol- som v. Township Ninety-Six, 159 U. S. 611, 16 Sup. Ct. Rep. 174, and cases therein cited. That railroad corporations are quasi-public, see Central Transp. Co. v. Pullman's P. C. Co., 139 U. S. 24, 11 Supt. Ct. Rep. 478 ; State v. Minnesota T. R. Co., 80 Minn. 108, 83 N. W. 32, 60 L. R. A. 606.3 II is trul y 8aid tnat it; has long been the settled doctrine that the right of eminent domain may be em- ployed in their behalf, and it has some- times been insisted with much earnestness that wherever the State may aid an en- terprise under the right of eminent do- main, it may assist it by taxation also. But the right of taxation and the right of eminent domain are by no means co- extensive, and do not rest wholly upon like reasons. The former compels the citizen to contribute his proportion of the public burden ; the latter compels him to part with nothing for which he is not to receive pecuniary compensation. The tax in the one case is an exaction, the appropriation in the other is only a forced sale. To take money for private purposes under pretence of taxation is, as has been often said, but robbery and plunder; to appropriate under the right of eminent domain for a private corpora- tion robs no one, because the corporation pays for what is taken, and in some cases, important to the welfare and pros- perity of the community, and where a public convenience is to be provided, as in the case of a grist mill, it has long been held competent to exercise the one power, while the other was conceded to be inadmissible. Few persons would at- tempt to justify a tax in aid of a mill- owner, on the ground that laws appro- priating lands for his benefit, but at his expense, have been supported. The truth is, the right to tax in favor of private corporations of any description must rest upon the broad ground that the power of the legislature, subject only to the express restrictions of the constitu- tion, is supreme, and that, in the lan- guage of some of the cases, " if there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy, and not of natural justice, and the determination of the legislature is con- clusive." (Post, p. 698.) But nothing is better settled on authority than that this strong language, though entirely true when it refers to the making provision for those things which it falls within the province of government to provide for its citizens, or to the payment for services performed for the State, or the sat- isfaction of legal, equitable, or moral obligations resting upon it, is wholly inadmissible when the purpose is to im- pose a burden upon one man for the benefit of another. Many such cases might be suggested in which there would not only be a ' possibility," but even a strong probability, that a small burden imposed upon the public to set an indi- vidual up in business, or to build him a house, or otherwise make him coraforta- CI1. VIII.] THE GKADES OF MUNICIPAL GOVERNMENT. 317 the purposes of their creation, it has furnished unusual facilities for fraud and public plunder, and led almost inevitably, at last, ble, would be promotive of the public welfare; but in law the purpose of any such burden is deemed private, and the incidental benefit to the public is not recognized as an admissible basis of taxation. In Allen v. Inhabitants of Jay, 60 Me. 124, 11 Am. Rep. 185, it became uec- essary to reaffirm a doctrine, often de- clared by the courts, that however great was the power to tax, it was exceeded, and the legislature was attempting the exercise of a power not legislative in its character, when it undertook to impose a burden on the public for a private pur- pose. And it was also held that the rais- ing of money by tax in order to loan the same to private parties to enable them to erect mills and manufactories in such town, was raising it for a private purpose, and therefore illegal. Appleton, Ch. J., most truly remarks in that case, that " all security of private rights, all protection of private property, is at an end, when one is compelled to raise money to loan at the will of others for their own use and benefit, when the power is given to a majority to lend or give away the prop- erty of an unwilling minority." And yet how plain it is that the benefit of the local public might possibly have been promoted by the proposed erections. See, to the same effect, Loan Association v. Topeka, 20 Wall. 655, where the whole subject is carefully considered and pre- sented with clearness and force, in an opinion by Mr. Justice Miller ; also Com- mercial Bank v. lola, 2 Dill. C. C. 355 ; 9 Kan. 689; Weismer v. Douglas, 64 N. Y. 91, 21 Am. Rep. 586; Parkers- burg v. Brown, 106 U. S. 487, 1 Sup. Ct. Rep. 442; Cole v. La Grange, 113 U. S. 1, 5 Sup. Ct. Rep. 416, and cases cited ; Mather v. Ottawa, 114 111. 659, 3 N. E. 216. These cases are not singular : they are representative cases ; and they are cited only because they are among he most recent expressions of judicial opinion on the subject. With them may be placed Lowell v. Boston, 111 Mass 454, 15 Am. Rep. 39, in which the Supreme Court of Massachusetts, after the great fire of 1872 in Boston, denied the power of the Commonwealth to permit taxation in order to loan the moneys out to the per- sons who had suffered by the fire. Like decisions are found in State r. Osawkee, 14 Kan. 418, and Feldman i'. City Coun- cil, 23 S. C. 57. These decisions of emi- nent tribunals indicate a limit to legisla- tive power in the matter of taxation, and hold, what has been decided very many times before, that it is not necessary the constitution should forbid expressly the taxing for private purposes, since it is implied in the very idea of taxation that the purpose must be public, and a taking for any other purpose is unlawful confis- cation. Cooley on Taxation, 67 et seq. One difference there undoubtedly is between the case of a railroad corporation and a manufacturing corporation; that there are precedents in favor of taxing for the one and not for the other. But if the precedents are a departure from sound principle, then, as in every other case where principle is departed from, evils were to have been expected. A catalogue of these would include the squandering of the public domain ; the enrichment of schemers whose policy it has been, first, to obtain all they can by fair promises, and then avoid as far and as long as possible the fulfilment of the promises ; the corruption of legislation ; the loss of State credit ; great public debts recklessly contracted for moneys often recklessly expended ; public dis- content because the enterprises fostered from the public treasury and on the pre- tence of public benefit are not believed to be managed in the public interest; and, finally, great financial panic, col- lapse, and disaster. At such a cost has the strong expression of dissent which all the while has accompanied these prece- dents been disregarded and set aside. Where legislature is prohibited from making a gift to any private person or corporation, it cannot release a debt due to State from such person or corporation : Matter of Stanford, 126 Cal. 112, 54 Pac. 259, 58 Pac. 462, 45 L. R. A. 788, an ap- propriation for " relief " of a street con- tractor is void. Conlin v. San Francisco, 99 Cal. 17, 33 Pac. 753, 21 L. R. A. 474, 37 Am. St. 17 ; so one for benefit of suf- 318 CONSTITUTIONAL LIMITATIONS. [CH. VIIL to discontent; sometimes even to disorder and violence. In some of the recent revisions of State constitutions, the legisla- ture has been expressly prohibited from permitting the munici- palities to levy taxes or incur debts in aid of works of public improvement, or to become stockholders in private corporations. 1 Assuming that any such subscriptions or securities may be authorized, the first requisite to their validity would seem, then, to be a special legislative authority to make or issue them; an authority which does.iiot reside in the general words in which the powers of local self-government are usually conferred, 2 and ferers from flood : Pattj r v. Golgan, 97 Cal. 251, 31 Pac. 1133, 18 L. R. A. 744 ; and one for relief of employee of State injured through negligence of his superior officer: Bourn v. Hart, 93 Cal. 321, 28 Pac. 951, 15 L. R. A. 431, 27 Am. St. 203.3 1 The following States have such pro- visions in their constitutions : Colorado, Connecticut, Illinois, Mississippi, Mis- i souri, and New Hampshire. Many of the State constitutions expressly forbid State aid to private corporations of any sort, and it is probable that their provisions are broad enough in some cases to pro- hibit aid by the municipalities also. FJUpon what is an indebtedness within constitutional and statutory restrictions upon indebtedness of municipal corpora- tions, see Beard v. Hopkinsville, 95 Ky. 239, 24 S. W. 872, 44 Am. St. 222, 23 L. R. A. 402, and note ; South Bend v. Reynolds, 155 Ind. 70, 67 N. E. 706, 49 L. R. A. 795 ; La Porte v. Gamewell F. A. T. Co., 146 Ind. 466, 45 N. E. 588, 58 Am. St. 359, 35 L. R. A. 686 ; Brashear v. Madison, 142 Ind. 685, 36 N. E. 252, 42 N. E. 349, 33 L. R. A. 474 ; Lamar W. & E. L. Co. v. Lamar, 128 Mo. 188, 31 S. W. 756, 32 L. R. A. 157 ; McBean v. Fresno, 112 Cal. 159,44 Pac. 358, 53 Am. St. 191, 31 L. R. A. 794 ; Kelley v. Minneapolis, 63 Minn. 125, 65 N. W. 115; Hodges v. Crowley, 186 111. 305, 57 N. E. 889. Where the constitution denies to mu- nicipalities the power to incur debts for any except necessary expenses unless specially authorized by the legislature and by popular vote, a debt for the pur- chase of an electric lighting plant for pub- lic purposes is within the restriction. Mayo v. Washington, 122 N. C. 5, 29 S. E. 343, 40 L. R. A. 163. The prohibition mentioned in the text above does not ex- tend to construction of public improve- ments which shall be the property of the municipality. Sun P. & P. Assn. v. New York, 152 N. Y. 257, 46 N. E. 499, 37 L. R. A. 788. But it prevents a city from becoming part owner. Ampt v. Cincin- nati, 56 Ohio, 47, 46 N. E. 69, 35 L. R. A. 737, and note. Prohibition of aid to any corporation applies only to private cor- porations. Does not prevent gift to United States. Lancey v. King Co., 15 Wash. 9, 45 Pac. 645, 34 L. R. A. 817. ' Where the constitution forbids the loan of the public credit for private benefit a statute authorizing the issue of bonds to pay for a local improvement, the cost thereof to be recovered by the levy of annual instalments upon the property benefited, is void. Martin v. Tyler, 4 N. D. 278, 60 N. W. 392, 25 L. R. A. 838. Upon the general subject of municipal bonds, when they may be issued, for what purposes, etc., see notes to 37 L. ed. U. S. 145 and 34 L. ed. U. S. 344.] Bullock v. Curry, 2 Met. (Ky.) 171. A general power to borrow money or in- cur indebtedness to aid in the construc- tion of " any road or bridge " must be understood to have reference only to the roads or bridges within the municipality. Stokes v. Scott County, 10 Iowa, 166 ; State v. Wapello County, 13 Iowa, 388 ; Lafayette v. Cox, 5 Ind. 38. Power to submit to village voters raising money for extraordinary purposes does not cover the submission of railroad aid. Perrin v. New London, 67 Wis. 416, 30 N. W. 623. There are decisions in the Supreme Court of the United States which appear to be to the contrary. The city charter of Muscatine conferred in detail the usual powers, and then authorized the city " to borrow money for any object in its dis- cretion," after a vote of the city in favor CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 319 one also which must be carefully followed by the municipality in all essential particulars, or the subscription or security will be void. 1 And while mere irregularities (a) of action, not going to the essentials of the power, would not prevent parties who had acted in reliance upon the securities enforcing them, yet as of the loan. In Meyer v. Muscatine, 1 Wall. 384, the court seem to have con- strued this clause as authorizing a loan for any object whatever; though such phrases are understood usually to be con- fined in their scope to the specific objects before enumerated; or at least to those embraced within the ordinary functions of municipal governments. See Lafay- ette v. Cox, 5 Ind. 38. The case in 1 Wallace was followed in Rogers v. Bur- lington, 3 Wall. 654, four justices dissent- ing. See also Mitchell v. Burlington, 4 Wall. 270. See also cases cited, ante, p. 312, notes. A municipal corporation having power to borrow money, it is held, may make its obligations payable wherever it shall agree. Meyer v. Mus- catine, 1 Wall. 384; Lynde v. County, 16 Wall. 6. But some cases hold that such obligations can only be made payable at the corporation treasury, unless there is express legislative authority to make them payable elsewhere. People v. Taze- well County, 22 111. 147 ; Pekin v. Rey- nolds, 31 III. 529. If the power to issue bonds is given, power to tax to meet them is impliedly given, unless a clear intent to the contrary is shown. Quincy v. Jackson, 113 U. S. 332, 5 Sup. Ct. Rep. 544 ; ^Scotland Co. Courts. United States, 140 U. S. 41, 11 Sup. Ct. Rep. 697. But power to borrow money on the credit of the city does not of itself in- clude power to issue negotiable bonds therefor. Brenham v. German Ameri- can Bank, 144 U. S. 173, 540, 12 Sup. Ct. Rep. 559, 975 ; Merrill v. Monticello, 138 U. S. 673, 11 Sup. Ct. Rep. 441.] 1 See Harding v. Rockford, &c. R R. Co., 65 111. 90 ; Dunnovan K. Green, 57 111. 63; Springfield, &c. R. R, Co. v. Cold Spring, 72 111. 603; People v. County Board of Cass., 77 111. 438 ; Cairo, &c. R. R. Co. v. Sparta, 77 111. 505 ; George v. Oxford, 16 Kan. 72 ; Hamlin v. Meadville, 6 Neb. 227 ; McClure v. Oxford, 94 U. S. 429; Bates Co. v. Winters, 97 U. S. 83; Buchanan r. Litchfield, 102 U. S. 278; Bissell v. Spring Valley, 110 U. S. 162, 3 Sup. Ct. Rep. 555. QBonds cannot run a longer time than the legislature has given permission for. Barnumt; Okolona, 148 U. S. 393, 13 Sup. Ct. Rep. 638. Strict compliance with all conditions necessary. Lytle v. Lansing, 147 U. S. 59, 13 Sup. Ct. Rep. 254; Stewart v. Lansing, 104 U. S. 505 ; People v. Van Valkenburg, 63 Barb. 105. But power to issue interest- bearing bonds carries with it power to issue negotiable coupons for the interest. Board of Ed. v. De Kay, 148 U. S. 591, 13 Sup. Ct. Rep. 706. Where the statute requires that the bonds shall recite the purposes for which they are issued, it is not sufficient to recite that they are issued by virtue of a specified ordinance in which is contained a statement of the purpose for which the bonds are to be issued. Bonds containing no further or more specific recital of purpose are void in the hands of every holder. Barnett v. Denison, 145 U. S. 135, 12 Sup. Ct. Rep. 819. Where question submitted to pop- ular vote was on bonds bearing interest payable annually, making interest pay- able semiannually invalidates the bonds. Skinner v. Santa Rosa, 107 Cal. 469, 40 Pac. 742, 29 L. R. A. 512. Where stat- ute prescribes that they shall be payable " in gold coin or lawful money of the United States," making them payable in gold coin invalidates them. Ibid, and see note hereto in L. R. A. Place of payment of coupons cannot be varied. Middleton v. St. Augustine, 42 Fla. 287, 29 So. 421.] (a) Like error in copying a single word in the title of a statute, or a misrecital of the name of the obligor corporation. Board of Ed. v. De Kay, 148 U. S. 591, 13 Sup. Ct. Rep. 706. And any improper or fraudulent action taken by the municipal- ity in regard to the proceeds of the bonds after their issue cannot invalidate them. Cairo v. Zane, 149 U. S. 122, 13 Sup. Ct. Rep. 803.] 320 CONSTITUTIONAL LIMITATIONS. [CH. VIII. the doings of these corporations are matters of public record, and they have no general power to issue negotiable securities, 1 any one who becomes holder of such securities, even though they be negotiable in form, will take them with constructive notice of any want of power in the corporation to issue them, and cannot enforce them when their issue was unauthorized. 2 1 Thomson v. Lee County, 3 Wall. 327; Police Jury v. Britton, 15 Wall. 566; Wells v. Supervisors, 102 U. S. 625 ; Claiborne Co. v. Brooks, 111 U. S. 400, 4 Sup. Ct. Rep. 489 ; Carter Co. '-. Sinton, 120 U. S. 517, 7 Sup. Ct. Rep. 650; Starin v. Genoa, 23 N. Y. 439 ; People v. Super- visors, 11 Cal. 170 ; Dively v. Cedar Falls, 21 Iowa, 565 ; Smith v. Cheshire, 13 Gray, 318; People v. Gray, 23 Cal. 125. See Thomas v. Richmond, 12 Wall. 349; Katzenberger v. Aberdeen, 121 U. S. 172, 7 Sup. Ct. Rep. 947 ; Emery v. Maria- ville, 56 Me. 315; Sherrard v. Lafayette Co., 3 Dill. 236. The power to tax in aid of railroads does not necessarily give power to issue negotiable bonds. Con- cord v. Robinson, 121 U. S. 165, 7 Sup. Ct. Rep. 937 ; Kelly v. Milan, 127 U. S. 139, 8 Sup. Ct. Rep. 1101. Compare Savannah v. Kelly. 108 U. S. 184, 2 Sup. Ct. Rep. 468; Richmond v. McGirr, 78 Ind. 192. 2 There is considerable confusion in the cases on this subject. If the corpo- ration has no authority to issue negotia- ble paper, or if the officers who assume to do so have no power under the charter for that purpose, there can be no doubt that the defence of want of power mny be made by the corporation in any suit brought on the securities. Smith v. Cheshire, 13 Gray, 318; Gould v. Sterling, 23 N. Y. 456; Andover r. Grafton, 7 N. H. 298 ; Clark v, Des Moines, 19 Iowa, 199 ; M'Pherson v. Foster, 43 Iowa, 48 ; Bissell v. Kankakee, 64 111. 249; Big Grove v. Wells, 65 111. 263; Wade v. La Moille, 112 111. 79 ; Elmwood v. Marcy, 92 U. S. 289 ; Concord v. Ports- mouth Savings Bank, 92 U. S. 625; St. Joseph v. Rogers, 16 Wall. 644 ; Pendle- ton Co. v. Amy, 13 Wall. 297; Marsh v. Fulton Co., 10 Wall. 676 ; East Oak- land 17. Skinner, 94 U. S. 255; South Ot- tawa v. Perkins, 94 U. S. 260; McClure t7. Oxford, 94 U. S. 429. [Where un- authorized bonds were issued for rail- way stock the purchaser of bonds from the railway company for practically full value was, after failure in an attempt to enforce the bonds against the town issu- ing them, subrogated to the town's right to the stock. Illinois G. T. R. Co. v. Wade, 140 U. S. 65, 11 Sup. Ct. Rep. 709-3 And in any case, if the holder has re- ceived the securities with notice of any valid defence, he takes them subject thereto. [Lytle v. Lansing, 147 U. S. 59, 13 Sup. Ct. Rep. 254; Stewart v. Lans- ing, 104 U. S. 505.] If the issue is with- out authority, the doctrine of protection to a purchaser in good faith has no ap- plication. Merchants' Bank v. Bergen Co., 115 U. S. 384, 6 Sup. Ct. Rep. 88. But where the corporation has power to issue negotiable paper in some cases, and its officers have assumed to do so in cases not within the charter, whether a bona Jide holder would be chargeable with notice of the want of authority in the particular case, or on the other hand, would be entitled to rely on the securities themselves as sufficient evidence that they were properly issued when nothing ap- peared on their face to apprise him of the contrary, is a question still open to some dispute. [Where the amount of indebt- edness is limited by the State constitu- tion, and the indebtedness has not yet reached that limit, an issue of bonds which carries it beyond that limit is void in tola. No question of estoppel by re- citals can be considered in such case, and the holder of the bonds cannot remit the excess above the constitutional limit and recover upon the remainder. Hedges v. Dixon County, 150 U. S. 182, 14 Sup. Ct. Rep. 71. See also Sutliff v. Bd. of Co. Com., 147 U. S. 230, 13 Sup. Ct. Rep. 318; Nesbit v. Ind. Dist. of Riverside, 144 U. S. 610, 12 Sup. Ct. Rep. 746. But where the debt arises under a continuing contract of lease and the annual instal- ments, together with all other running expenses, are within the current revenues of the city, such debt does not pass the prescribed limit, no matter how great CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 321 In some of the cases involving the validity of the subscriptions made or bonds issued by municipal corporations in aid of internal the aggregate during the life of the con- tract. South Bend v. Reynolds, 155 Ind. 70, 67 N. E. 706, 49 L. It. A. 796. For other cases upon limitation of indebted- ness, see Kiehle v. South Bend, 44 U. S. App. 687, 36 L. R. A. 228; Rauch v. Chapman, 16 Wash. 668, 48 Pac. 253, 36 L. R. A. 407, 68 Am. St. 62; Grand Island & N. W. It. Co. v. Baker, 6 Wyo. 369, 45 Pac. 494, 34 L. R. A. 835, 71 Am. St. 926 ; Saleno v. Neosho, 127 Mo. 627, 30 S. W. 190, 27 L. R. A. 769, 48 Am. St. 653; Brooke v. Philadelphia, 162 Pa. 123, 29 Atl. 387, 24 L. R. A. 781 ; Beard v. Hopkinsville, 95 Ky. 239, 24 S. W. 872, 44 Am. St. 222, 23 L. R. A. 402, and note ; Crowder v. Sullivan, 128 Ind. 486, 28 N. E. 94, 13 L. R. A. 647 ; Quill v. Indian- apolis, 124 Ind. 292, 23 N. E. 788, 7 L. It. A. 681.] In Stoney v. American Life Insurance Co., 11 Paige, 686, it was held that a ne- gotiable security of a corporation which upon its face appears to have been duly issued by such corporation, and in con- formity with the provisions of its charter, is valid in the hands of a bona fide holder thereof without notice, although such se- curity was in fact issued for a purpose, and at a place not authorized by the charter of the company, and in violation of the laws -of the State where it was actually issued. In Gelpcke v. Dubuque, 1 Wall. 175, 203, the law is stated as fol- lows : " When a corporation has power, under any circumstances, to issue nego- tiable securities, tlie bonajide holder has a right to presume they were issued under the circumstances which give the requi- site authority, and they are no more liable to be impeached for any infirmity in the hands of sucli holder than any other com- mercial paper." See also Commissioners of Daviess Co. v. Aspinwall, 21 How. 364; Bissell v. Jeffersonville, 24 How. 287; Lexington v. Butler, 14 Wall. 282 ; Moran v. Commissioners of Miami Co., 2 Black, 722; De Voss v. Richmond, 18 Gratt. 338; San Antonio v. Lane, 32 Tex. 405 ; State v. Commissioners, 37 Ohio St. 626. In Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125, 129, it is said : " A citizen who deals directly with a corporation, or who 21 takes its negotiable paper, is presumed to know the extent of its corporate power. But when the paper is, upon its face, in all respects such as the corpora- tion has authority to issue, and its only defect consists in some extrinsic fact, such as the purpose or object for which it was issued, to hold that the person taking the paper must inquire as to such extraneous fact, of the existence of which he is in no way apprised, would obviously conflict with the whole policy of the law in regard to negotiable paper." In Madison & Indianapolis Railroad Co. r. The Norwich Savings Society, 24 Ind. 457, this doctrine is approved ; and a dis- tinction made, in the earlier case of Smead v. Indianapolis, &c. Railroad Co., 11 Ind. 104, between paper executed ultra vires and that executed within the power of the corporation, but, by an abuse of the power in that particular instance, was re- pudiated. In St. Joseph v. Rogers, 16 Wall. 644, it was decided that where power is conferred to issue bonds, but only in a particular manner, or subject to certain regulations, conditions, or quali- fications, and the bonds are actually issued with recitals showing compliance with the law, the proof that any of the recitals are incorrect will not constitute a defence to a suit on the bonds, "if it appears that it was the sole province of the municipal officers who executed the bonds to decide whether or not there had been an antecedent compliance with the regulation, condition, or qualification which it is alleged was not fulfilled." And see Moran v. Commissioners of Miami Co., 2 Black, 722; Pendleton Co. v. Amy, 13 Wall. 297 ; Chute v. Winegar, 15 Wall. 355 ; Colorna v. Eaves, 92 U. S.484; Venice v. Murdoch, 92 U. S. 494; Marcy v. Os- wego, 92 U. S. 637; Humboldt i>. Long, 92 U. S. 642; Douglas Co. v. Bolles, 94 U. S. 104 ; Johnson Co. v. January,94 U. S. 202 ; Scotland Co. v. Thomas, 94 U. S. 682 ; Wilson v. Salamanca, 99 U. S. 499 ; Menasha v. Hazard, 102 U. S. 81 ; Lin- coln v. Iron Co., 103 U. S. 412 ; Bonham v. Needles, 103 U. S. 648 : [Cairo v. Zane, 149 U. S. 122, 13 Sup. Ct. Rep. 803.] That neither irregularities in issuing bonds nor fraud in obtaining them will 322 CONSTITUTIONAL LIMITATIONS. [CH. VIII. improvements, there has been occasion to consider clauses in the State constitutions designed to limit the power of the legislature be a defence in the hands of bona fide holders, see foregoing cases, and also Maxcy v. Williamson Co., 72 III. 207; Nicolay v. St. Clair, 3 Dillon, 163 ; East Lincoln v. Davenport, 94 U. S. 801 ; Cop- per v. Mayor, &c., 44 N. J. L. 634 ; Aber- deen v. Sykes, 59 Miss. 236 ; Lynchburg v. Slaughter, 75 Va. 57. [But when one in whose hands the bonds are invalid puts them in course of trade so that they get into the hands of a bona fide holder and are enforced against the ob- ligor, he is liable to such obligor for the tort. Winona & St. P. R. Co. v. Plain- view, 143 U. S. 371, 12 Sup. Ct. Rep. 630.] See, further, that there may be an estop- pel by the recitals in favor of a bona fide holder: Ottawa v. Nat. Bank, 105 U. S. 342; Pana v. Bowler, 107 U. S. 529, 2 Sup. Ct. Rep. 704; Sherman Co. v. Simons, 109 U. S. 735, 3 Sup. Ct. Rep. 602 ; New Providence v. Halsey, 117 U. S. 336, 6 Sup. Ct. Rep. 764; Oregon v. Jen- nings, 119 U. S. 74, 7 Sup. Ct. Hep. 124; State r. Montgomery, 74 Ala. 226 ; Shurt- leff v. Wiscasset, 74 Me. 130; QGunnison Co. Com'rs r. Rollins & Sons, 173 U. S. 255, 19 Sup. Ct. Rep. 390; Harper Co. Com'rs v. Rose, 140 U. S. 71, 11 Sup. Ct. Rep. 710; Chaffee Co. Com'rs v. Potter, 142 U. S. 355, 12 Sup. Ct. Rep. 216; Huron v. 2d Ward Sav. Bk., 57 U. S. App. 593, 86 Fed. Rep. 272, 30 C. C. A. 38, 49 L. R. A. 534; Flagg v. School District No. 70, 4 N. D. 30, 58 N. W. 499, 25 L. R. A. 363 ; Hutchinson & S. R. Co. v. Fox, 48 Kan. 70, 28 Pac. 1078, 15 L. R. A. 401. Where a munici- pality is authorized by statute to issue bonds for refunding "binding, subsisting, legal obligations of such " municipality, and in accordance therewith it issues a series of bonds, each of which refers to the statute and recites that " this bond is issued for the purpose of funding and retiring certain binding, subsisting, legal obligations of said county which remain outstanding and unpaid," &c., without describing such outstanding obligations more particularly, and the said bonds comply with all statutory requirements of form, execution, registration, &c., they are valid in the hands of a bona fide holder for value before maturity, even though some of the purported obligations retired by their issue were in fact invalid. Graves v. Saline Co., 161 U. S. 359, 16 Sup. Ct. Rep. 526. See, to like effect, Evansville v. Dennett, 161 U. S. 434, 16 Sup. Ct. Rep. 613; Andes v. Ely, 158 U. S. 312, 15 Sup. Ct. Rep. 954. But where the recitals in the bonds neither expressly nor by necessary implication import a compliance with conditions prec- edent, it is open to the municipality to show that the conditions had not been performed when the bonds were issued, and have never since been performed. Citizens' Sav. & Loan Assn. v. Perry County, 156 U. S. 692, 15 Sup. Ct. Rep. 547. Upon power to issue municipal bonds, &c., see note to 39 L. ed. U. S. 585. See an interesting case upon municipal bonds in Knox County v. Ninth Nat. Bk., 147 U. S. 91, 13 Sup. Ct. Rep. 267, where it became necessary to determine under which of two legislative authorizations the bonds were actually issued.] Such estoppel only applies to matters of pro- cedure which the corporate officers had authority to determine and certify. It cannot supply the lack of statutory au- thority : Northern Bank v. Porter Town- ship, 110 U. S. 608, 4 Sup. Ct. Rep. 254; Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. Rep. 315; School District v. Stone, 106 U. S. 183, 1 Sup. Ct. Rep. 84 ; Parkers- burg v. Brown, 106 U. S. 487, 1 Sup. Ct. Rep. 442; Hayes v. Holly Springs, 114 U. S. 120, 5 Sup. Ct. Rep. 785 ; [Hedges v. Dixon County, 150 U. S. 182, 14 Sup. Ct. Rep. 71; Sutliff v. Bd. of Co. Com., 147 U. S. 230, 13 Sup. Ct. Rep. 318 ; Cass County ?.'. Wilbarger County, Tex. Civ. A p. ,60 S. W. 988 (Jan. 12, 1901) ;] nor avoid the effect of actual knowledge of invalidity. Ottawa v. Carey, 108 U. S. 110, 2 Sup. Ct. Rep. 361. QNor can receipt of proceeds of issue of invalid bonds estop the city from pleading lack of authority to issue the same. Merrill v. Monticello, 138 U. S. 673, 11 Sup. Ct. Rep. 441. Where unauthorized issue was made in aid of railway company, and bonds were sold by such company and proceeds used in erection of railway structures within the limits of the town, an action for " money had and received " will not lie CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 323 to incur indebtedness on behalf of the State, and which clauses, it has been urged, were equally imperative in restraining indebt- against the town to recover the money paid for the bonds. Travellers' Ins. Co. v. Johnson City, 99 Fed. Rep. 663, 49 L. R. A. 123-3 A holder cannot recover if the bonds show on their face their issue under a void act: Cole v. La Grange, 113 U. S. 1, 5 Sup. Ct. Rep. 416; or show non-compliance with an enabling act : Gilson v. Dayton, 123 U. S. 59, 8 Sup. Ct. Rep. 66 ; [Barnum v. Okolona, 148 U. S. 393, 13 Sup. Ct. Rep. 638;] or if, when they contain no recitals, their invalidity could be learned from the records. Mer- chants' Bank v. Bergen Co., 115 U. S. 384, 6 Sup. Ct. Rep. 88; Daviess Co. v. Dick- inson, 117 U. S. 657, 6 Sup. Ct. Rep. 897 ; [Sutliff v. Bd. of Co. Com., 147 U. S. 230, 13 Sup. Ct. Kep. 318 ; Boon Township v. Cummins, 142 U. S. 366, 12 Sup. Ct. Rep. 220; Nat. Life Ins. Co. v. Mead, 13 S. D. 37, 82 N. W. 78, 48 L. R. A. 785, 79 Am. St. 876-3 In Halsiead v. Mayor, &c. of New York, 5 Barb. 218, action was brought upon warrants drawn by the corporation of New York upon its treasurer, not in the course of its proper and legitimate busi- ness. It was held that the corporation under its charier had no general power to issue negotiable paper, though, not being prohibited by law, it might do so for any debt contracted in the course of it8 proper legitimate business. But it was also held that any negotiable secu- rities not issued by the defendants in their proper and legitimate business, were void in the hands of the plaintiff, although received by him without actual notice of their consideration. This decision was affirmed in 3 N. Y. 430. In Gould v. Town of Stirling, 23 N. Y. 456, it was held that where a town had issued nego- tiable bonds, which could only be issued when the written assent of two-thirds of the resident persons taxed in the town had been obtained and filed in the county clerk's office, the bonds issued without such assent were invalid, and that the purchaser of them could not rely upon the recital in the bonds that such assent had been obtained, but must ascertain for himself at his peril. Say the court: "One who takes a negotiable promissory note or bill of exchange, purporting to be made by an agent, is bound to inquire as to the power of the agent. Where the agent is appointed and the power conferred, but the right to exercise the power has been made to depend upon the existence of facts of which the agent may naturally be supposed to be in an especial manner cog- nizant, the bona fide holder is protected ; because he is presumed to have taken the paper upon the faith of the representa- tion of the agent as to those facts. The mere fact of executing the note or bill amounts of itself, in such a case, to a rep- resentation by the agent to every person who may take the paper that the requisite facts exist. But the 'holder has no such protection in regard to the existence of the power itself. In that respect the sub- sequent bona fide holder is in no better situation than the payee, except in so far as the latter would appear of necessity to have had cognizance of facts which the other cannot [must ?] be presumed to have known." And the case is distinguished from that of the Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125, where the extrinsic fact affect- ing the authority related to the state of accounts between the bank and one of its customers, which coulil only be known to the toller and other officers of the bank. See also Brady v. Mayor, &c. of New York, 2 Bosw. 173 ; Hopple v. Brown Township, 13 Ohio St. 311 ; Veeder v. Lima, 19 Wis. 280. The subject is reviewed in Clark v. Des Moines, 19 Iowa, 199. The action was brought upon city warrants, nego- tiable in form, and of which the plaintiff claimed to be bona fide assignee, without notice of any defects. The city offered to show that the warrants were issued without any authority from the city council and without any vote of the council authorizing the same. It was held that the evidence should have been admitted, and that it would constitute a complete defence. See further, Head v. Providence, &c. Co., 2 Cranch, 127 ; Royal British Bank v. Turquand, 6 El. & Bl. 327; Knox County v. Aspinwall, 21 How. 539; Bissell v. Jeffersonville, 24 How. 287 ; Sanborn v. Deerfield, 2 N. H. 251 ; Alleghany City v. McClurkan, 14 Pa. St. 81 ; Morris Canal & Banking Co. v. Fisher, 9 N. J. Eq. 667 ; Clapp v. 324 CONSTITUTIONAL LIMITATIONS. [CH. VIII. edness on behalf of the several political divisions of the State. The Constitution of Kentucky prohibited any act of the legisla- ture authorizing any debt to be contracted on behalf of the Com- monwealth, except for certain specified purposes, unless provision should be made in such act for an annual tax sufficient to pay such debt within thirty years; and the act was not to have effect unless approved by the people. It was contended that this pro- vision was not to apply to the Commonwealth as a mere ideal abstraction, unconnected with her citizens and her soil, but to the Commonwealth as composed of her people, and their territorial Cedar Co., 6 Iowa, 15; Commissioners, c. v. Cox, 6 Ind. 408; Madison & In- dianapolis R. R. Co. v. Norwich Savings Society, 24 Ind. 457 ; Bird v. Daggett, 97 Mass. 494. It is of course impossible to reconcile these cases. In Cagwin v. Han- cock, 84 N. Y. 532, 5 Am. & Eng. R. R. Cas. 150, on a review of the New York authorities it is declared to be the law of that State that there can never be a bonajide holder of town bonds, within the meaning of the law applicable to nego- tiable paper, as such bonds are always issued under special statutory authority, and are only valid when the statute is complied with. To the same effect are Craig v. Andes, 93 N. Y. 405, and Lyons v. Chamberlain, 89 N. Y. 578. See Fish v. Kenosha, 26 Wis. 23. That the powers of the agents of municipal corporations are matters of record, and the corporation not liable for an unauthorized act, see fur- ther Baltimore v. Eschbach, 18 Md. 276; Johnson v. Common Council, 16 Ind. 227. That bonds voted to one railroad com- pany and issued to another are void, see Big Grove 'v. Wells, 65 111. 263. Those who deal with a corporation must take notice of the restrictions in its charter, or in the general law, regarding the making of contracts. Brady ?. Mayor, &c. of New York, 2 Bosw. 173, 20 N. Y. 312; Swift v. Williamsburg, 24 Barb. 427; Zabriskie v. Cleveland, &c. R. R. Co., 23 How. 381 ; Hull v. Marshall County, 12 Iowa, 142; Clark v. Des Moines, 19 Iowa, 199; McPherson v. Foster, 43 Iowa, 48; Marsh v. Supervisors of Fulton Co., 10 Wall. 676. If they are not valid, no subsequent ratification by the corporation can make them so. Leavenworth v. Ran- kin, 2 Kan. 357. If bonds are voted upon a condition, and issued before the condi- tion is complied with, this, as to bonajide holders, is a waiver of the condition. Cliiniquy v. People, 78 111. 670. Compare Supervisors of Jackson v. Brush, 77 111. 59. In some States, after paper has been put afloat under laws which the courts of the State have sustained, it is very justly held that the validity and obligation of such paper will not be suffered to be im- paired by subsequent action of the courts overruling the former conclusions. See Gelpcke . Dubuque, 1 Wall. 175 ; Steines v. Franklin County, 48 Mo. 167 ; Osage, &c. R. R. Co. v. Morgan County, 53 Mo. 156 ; Smith v. Clark Co., 54 Mo. 58 ; State v. Sutterfield, 54 Mo. 391 ; Columbia Co. v. King, 13 Fla. 421 ; Same o. Davidson, 13 Fla. 482; [McCullough v. Com. of Va., 172 U. S. 102, 19 Sup. Ct. Rep. 134; Wilkes County v. Coler, 180 U. S. 606, 21 Sup. Ct. Rep. 458. Bonds issued by a de facto municipal corporation are valid and, after it has been dissolved for the defect in its organization, they may be enforced against the municipalities into which the territory of the de facto corpo- ration has been distributed. Gatzow v. Buening, 106 Wis. 1, 81 N. W. 1003, 80 Am. St. 17, 49 L. R. A. 483. Bonds issued for purpose of refunding an exist- ing indebtedness cannot be considered as increasing the indebtedness of the munic- ipality. Nat. Life Ins. Co. v. Mead, 13 S. D. 37, 82 N. W. 78, 48 L. R. A. 785, 79 Am. St. 876 ; contra, Doon Twp. v. Cummins, 142 U. S. 366, 12 Sup. Ct. Rep. 220, in case issue is not in exchange for outstanding evidence of indebtedness. Irregularities in the conduct of the election held to secure a popular author- ization of a proposed bond issue are a sufficient ground for enjoining the issue. Murphy v. San Luis Obispo, 119 Cal. 624, 51 Pac. 1085, 39 L. R. A. 444.] CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 325 organizations of towns, cities, and counties, which make up the State, and that it embraced in principle every legislative act which authorized a debt to be contracted by any of the local organizations of which the Commonwealth was composed. The courts of that State held otherwise. "The clause in question," they say, " applies in terms to a debt contracted on behalf of the Commonwealth as a distinct corporate body ; and the distinction between a debt on behalf of the Commonwealth, and a debt or debts on behalf of one county, or of any number of counties, is too broad and palpable to admit of the supposition that the latter class of debts was intended to be embraced by terms specifically desig- nating the former only." 1 The same view has been taken by the courts of Iowa, .Wisconsin, Illinois, and Kansas, of the provisions in the constitutions of those States restricting the power of the legislature to contract debts on behalf of the State in aid of in- ternal improvements ; 2 but the decisions of the first-named State have since been doubted, 3 and those in Illinois, it would seem, overruled. 4 In Michigan it has been held that they were inap- plicable to a constitution adopted with a clear purpose to preclude taxation for such enterprises. 6 1 Slack v. Railroad Co., 13 B. Monr. 1. 2 Dubuque County v. Railroad Co., 4 Greene (Iowa), 1 ; Clapp c. Cedar County, 6 Iowa, 15; Clark r. Janesville, 10 Wia. 136; Bushnell v. Beloit, 10 Wis. 195; Prettyman v. Supervisors, 19 111. 406; Robertson v. Rockford, 21 111. 451 ; John- son v. Stark County, 24 111. 75 ; Perkins v. Lewis, 24 111. 208; Butler v. Dunham, 27 111. 474 ; Leavenworth Co. v. Miller, 7 Kan. 479. 8 State v. Wapello County, 13 Iowa, 388. And see People v. Supervisor, &c., 16 Mich. 254. * In People . Mayor, &c. of Chicago, 61 111. 17, 35, it is held expressly that the provision of the State constitution pro- hibiting the State from creating a debt exceeding fifty thousand dollars without the consent of the people manifested at a general election, would preclude the State from creating a like debt against a mu- nicipal corporation, except upon the like conditions. And it was pertinently said : " The protection of the whole implies necessarily the protection of all its organ- ized parts, and the whole cannot be se- cure while all or any of its parts are exposed to danger. What is the real value of this provision of the constitu- tion if the legislature, inhibited from in- curring a debt beyond fifty thousand dollars on behalf of the State, may force a debt tenfold or one hundred-fold greater for there is no limit to the power upon all the cities of the State ? We can perceive none." We do not see how this can be reconciled with the earlier Illinois cases, and it is so manifestly right, it is hoped the learned court will never make the attempt. 6 The following extract from the opin- ion in Bay City v. State Treasurer, 23 Mich. 499, 604, is upon this point: "Our State had once before had a bitter ex- perience of the evils of the government connecting itself with works of internal improvement. In a time of inflation and imagined prosperity, the State had con- tracted a large debt for the construction of 'a system of railroads, and the people were oppressed with heavy taxation in consequence. Moreover, for a portion of this debt they had not received what they bargained for, and they did not recognize their legal or moral obligation to pay for it. The good name and fame of the State suffered in consequence. The result of it all was that a settled conviction fastened itself upon the minds of our people, that 326 CONSTITUTIONAL LIMITATIONS. [CII. VIII. Another class of legislation, which has recently demanded the attention of the courts, has been little less troublesome, from the new, varied, and peculiar questions involved, than that in relation works of internal improvement should be private enterprises ; that it was not with- in the proper province of government to connect itself with their construction or management, and that an imperative State policy demanded that no more bur- dens should be imposed upon the people by State authority, for any such purpose. Under this conviction they incorporated in the constitution of 1850, under the significant title of ' Finance and Taxa- tion,' several provisions expressly pro- hibiting the State from being a party to, or interested in, any work of internal im- provement, or engaged in carrying on any such work, except in the expenditure of grants made to it ; and also from sub- scribing to, or being interested in, the stock of any company, association, or cor- poration, or loaning its credit in aid of any person, association, or corporation. Art. XIV. 9, 8, and 7. " All these provisions were incorpo- rated by the people in the constitution, as precautions against injudicious action by themselves, if in another time of inflation and excitement they should be tempted to incur the like burdensome taxation in order to accomplish public improvements in cases where they were not content to wait the result of private enterprise. The people meant to erect such effectual bar- riers that if the temptation should return, the means of inflicting the like injury upon the credit, reputation, and pros- perity of the State should not be within the reach of the authorities. They be- lieved these clauses of the constitution accomplished this purpose perfectly, and none of its provisions had more influence in recommending that instrument to the hearty good-will of the people. " In process of time, however, a ma- jority in the legislature were found willing, against the solemn warning of the execu- tive, to resort again to the power of taxa- tion in aid of internal improvement. It was discovered that though ' the State ' was expressly inhibited from giving such aid in any form, except in the disposition of grants made to it, the subdivisions of which the State was composed were not under the like ban. Decisions in other States were found which were supposed to sanction the doctrine that, under such circumstances, the State might do indi- rectly through its subdivisions what di- rectly it was forbidden to do. Thus a way was opened by which the whole purpose of the constitutional provisions quoted might be defeated. The State could not aid a private corporation with its credit, but it might require each of its townships, cities, and villages to do so. The State could not load down its people with taxes for the construction of a pub- lic improvement, but it might compel the municipal authorities, which were its mere creatures, and which held their whole authority and their whole life at its will, to enforce such taxes, one by one, until the whole people were bent to the burden. " Now, whatever might be the just and proper construction of similar provisions in the constitutions of States whose his- tory has not been the same with our own, the majority of this court thought when the previous case was before us, and they still think, that these provisions in our constitution do preclude the State from loaning the public credit to private cor- porations, and from imposing taxation upon its citizens or any portion thereof in aid of the construction of railroads. So the people supposed when the constitu- tion was adopted. Constitutions do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own delibera- tive action ; and it cannot be permissible to the courts that, in order to aid eva- sions and circumventions, they shall sub- ject these instruments, which in the main only undertake to lay down broad general principles, to a literal and tech- nical construction, as if they were great public enemies standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient. They must construe them as the people did in their adoption, if the means of ar- riving at that construction are within CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 327 to municipal subscriptions in aid of internal improvements. As the power to declare war and to conduct warlike operations rests in the national government, and that government is vested with unlimited control of all the resources of the country for those purposes, the duty of national defence, and, consequently, the duty to defend all the citizens as well as all the property of all the municipal organizations in the several States, rests upon the national authorities. This much is conceded, though in a qual- fied degree, also, and subordinate to the national government, a like duty rests doubtless upon the State governments, which may employ the means and services of their citizens for the purpose. But it is no part of the duty of a township, city, or county, as such, to raise men or money for warlike operations, nor have they any authority, without express legislative sanction, to impose upon their people any burden by way of taxation for any such purpose. 1 Nevertheless, when a war arises which taxes all the energies of the nation, which makes it necessary to put into the field a large proportion of all the able-bodied men of the country, and which renders imperative a resort to all available means for filling the ranks of the army, recruiting the navy, and replenish- ing the national treasury, the question becomes a momentous one, whether the local organizations those which are managed most immediately by the people themselves may not be made im- portant auxiliaries to the national and State governments in accomplishing the great object in which all alike are interested so vitally; and if they are capable of rendering important assis- tance, whether there is any constitutional principle which would be violated by making use of these organizations in a case where failure on the part of the central authority would precipitate general dismay and ruin. Indeed, as the general government, with a view to convenience, economy, and promptness of action, their power. In these cases we thought viding for the erection of a State grain we could arrive at it from the public his- elevator and warehouse is void. Rippe v. tory of the times." Becker, 66 Minn. 100, 57 N. W. 331, 22 The State cannot provide indirectly L. R. A. 867.] for payment for work of internal improve- 1 Stetson v. Kempton, 13 Mass. 272; ment by authorizing a township to raise Gove v. Epping, 41 N. H. 539 , Crowell money for it by taxation. Anderson v. v. Hopkinton, 45 N. H. 9 ; Baldwin v. Hill, 54 Mich. 477, 20 N. W. 549. [>ml Nortli Branford, 32 Conn. 47; Webster see Oren ;. Pingree, 120 Mich. 550, 79 r. Hnrwinton, 32 Conn. 131. See also N. W. 814, 46 L. R. A. 407, where an act Claflin r. Hopkinton, 4 Gray, 502; Cover attempting to authorize the creation of a v. Baytown, 12 Minn. 124 ; Fiske v. Haz- public board for the purpose of acquiring zanl, 7 R. I. 438; Alley v. Edgecomb, 53 and operating the street railways of De- Me. 446 ; People v. Supervisors of Co- troit was held void. Where the State lumbia, 43 N. Y. 130; Walschlager t % . cannot engage in the erection of works Liberty, 23 Wis. 362; Burrill v. Boston, of internal improvement, a statute pro- 2 Cliff. 590. 328 . CONSTITUTIONAL LIMITATIONS. [CH. VIII. will be very likely to adopt, for any purposes of conscription, the existing municipal divisions of the States, and its demand for men to recruit its armies will assume a form seeming to impose on the people whose municipal organization embraces the terri- tory covered by the demand, the duty of meeting it, the question we have stated may appear to be one rather of form than of sub- stance, inasmuch as it would be difficult to assign reasons why a duty resting upon the citizens of a municipality may not be con- sidered as resting upon the corporation itself of which they are the constituents, and if so, why it may not be assumed by the municipality itself, and then be discharged in like manner as any other municipal burden, if the legislature shall grant permission for that purpose. One difficulty that suggests itself in adopting any such doctrine is, that, by the existing law of the land, able-bodied men between certain specified ages are alone liable to be summoned to the performance of military duty ; and if the obligation is assumed by the municipal organizations of the State, and discharged by the payment of money or the procurement of substitutes, the taxation required for this purpose can be claimed, with some show of reason, to be taxation of the whole community for the particular benefit of that class upon whom by the statutes the obligation rests. When the public funds are used for the pur- pose, -it will be insisted that they are appropriated to discharge the liabilities of private individuals. Those who are already past the legal age of service, and who have stood their chance of being called into the field, or perhaps have actually rendered the re- quired service, will be able to urge with considerable force that the State can no longer honorably and justly require them to contribute to the public defence, but ought to insist that those within the legal ages should perform their legal duty ; and if any upon whom that duty rests shall actually have enrolled them- selves in the army with a view to discharge it, such persons may claim, with even greater reason, that every consideration of equality and justice demands that the property they leave behind them shall not be taxed to relieve others from a duty equally imperative. Much may be said on both sides of this subject, but the judicial decisions are clear, that the people of any municipal corporation or political division of a State have such a general interest in relieving that portion of their fellow-citizens who are liable to the performance of military duty, as will support taxation or render valid indebtedness contracted for the purpose of supplying their places, or of filling any call of the national authorities for CH. VIII.] THE GKADES OF MUNICIPAL GOVERNMENT. 329 men, with volunteers who shall be willing to enter the ranks for such pecuniary inducements as may be offered them. The duty of national defence, it is held, rests upon every person under the protection of the government who is able to contribute to it, and not solely upon those who are within the legal ages. The statute which has prescribed those ages has for its basis the presumption that those between the limits fixed are best able to discharge the burden of military service to the public benefit, but others are not absolved from being summoned to the duty, if at any time the public exigency should seem to demand it. Exemption from military duty is a privilege rather than a right, and, like other statutory privileges, may be recalled at any time when reasons of public policy or necessity seem to demand the recall. 1 Moreover, there is no valid reason, in the nature of things, why those who are incapable of performing military service, by reason of age, physical infirmity, or other cause, should not contribute, in pro- portion to their ability, to the public defence by such means as are within their power; and it may well happen that taxation, for the purpose of recruiting the armies of the nation, will dis- tribute the burden more equally and justly among all the citizens than any other mode which could be devised. Whether it will be just and proper to allow it in any instance must rest with the legislature to determine; but it is unquestionably competent, with legislative permission, for towns, cities, and counties to raise money by loans or by taxation to pay bounty moneys to those who shall volunteer to fill any call made upon such towns, cities, or counties to supply men for the national armies. 2 1 See post, p. 546, and cases cited in unteers are therefore by law to be ac- note. cepted in relief of the municipality from 2 "The power to create a public debt, a compulsory service to be determined and liquidate it by taxation, is too clear by lot or chance. Does this relief involve for dispute. The question is, therefore, the public welfare or interest ? The narrowed to a single point : Is the pur- answer rises spontaneously in the breast pose in this instance a public one 1 Does of every one in a community liable to the it concern the common welfare and in- military burden. It is given, not by the terest of the municipality ? Let us see. voice of him alone who owes the service, Civil war was raging, and Congress pro- but swells into a chorus from his whole vided in the second section of the act of family, relatives, and friends. Military 24th February, 1864, that the quota of service is the highest duty and burden the troops of each ward of a city, town, citizen is called to obey or to bear. It in- township, precinct, &c., should be as volves life, limb, and health, and is there- nearly as possible in proportion to the fore a greater ' burden ' than the taxation number of men resident therein liable to of property. The loss or the injury is not render military service. Section three confined to the individual himself, but provided that all volunteers who may extends to all the relations he sustains, enlist after a draft shall be ordered, shall It embraces those bound to him in the be deducted from the number ordered to ties of consanguinity, friendship, and in- be drafted in such ward, town, &c. Vol- terest ; to the community which must 330 CONSTITUTIONAL LIMITATIONS. [CH. VIII. Relief of the community from an impending or possible draft is not, however, the sole consideration which will support taxation by the municipal corporations of the State to raise money for the purpose of paying bounties to soldiers. Gratitude to those who have entered the military service, whether as volunteers or drafted men, or as substitutes for others who were drafted or were liable to be, is a consideration which the State may well recognize, and it may compensate the service either by the payment of bounty moneys directly to such persons, or by provision for the support of those dependent upon them while they shall be absent from their homes. Whether we regard such persons as public bene- factors, who, having taken upon themselves the most severe and dangerous duty a citizen is ever called upon to perform, have thereby entitled themselves to public reward as an incentive to fidelity and courage, or as persons who, having engaged in the public service for a compensation inadequate to the toil, priva- tion, and danger incurred, are deserving of the bounty as a further recognition on the part of the community of the worth of their services, there seems in either case to be no sufficient reason to question the right of the legislature to authorize the municipal divisions of the State to raise moneys in any of the usual modes, for the purpose of paying bounties to them or their families, in recognition of such services. 1 And if a municipal corporation furnish support to his family, if he can- lieve it from a burden of war. It is not not, and which loses in him a membei; a mere gift or reward, but a consideration whose labor, industry, and property con- for services. It is therefore not a con- tribute to its wealth and its resources ; fiscation of one man's property for who assists to bear its burdens, and another's use, but it is a contribution whose knowledge, skill, and public spirit from the public treasury for a general contribute to the general good. Clearly good. In short, it is simply taxation to the loss of that part of the population relieve the municipality from the stern upon whom the greatest number depend, demands of war, and avert a public bl- and who contribute most to the public jury in the loss of those who contribute welfare by their industry, skill, and prop- most to the public welfare." Speer v. erty, and good conduct, is a common loss, School Directors of Blairsville, 50 Pa. St. and therefore a general injury. These 150, 159. See also Waldo v. Portland, are alike subject to the draft. The 33 Conn. 363; Bartholomew v. Harwin- blind and relentless lot respects no age, ton, 33 Conn. 408 ; Fowler v. Danvers, 8 condition, or rank in life. It is, there- Allen, 80 ; Lowell v. Oliver, 8 Allen, 247 ; fore, clearly the interest of the com- Washington County v. Berwick, 56 Pa. munity that those should serve who are St. 466 ; Trustees of Cass v. Dillon, 16 willing, whose loss will sever the fewest Ohio St. 38: State v. Wilkesville, 20 Ohio ties and produce the least injury. St. 288. Also Opinions of Justices, 52 " The bounty is not a private trans- Me. 505, in which the view is expressed action in which the individual alone is that towns cannot, under the power benefited. It benefits the public by in- to raise money for "necessary town ducing and enabling those to go who feel charges," raise and pay commutation they can best be spared. It is not volun- moneys to relieve persons drafted into tary in those who pay it. The community the military service of the United States. is subject to the draft, and it is paid to re- l The act under which the Pennsyl- CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 331 shall have voted moneys for such purpose without legislative authority, it is competent for the legislature afterwards to legal- ize their action if it shall so choose. 1 The cases to which we have referred in the notes assume that, if the purpose is one for which the State might properly levy a tax upon its citizens at large, the legislature would also have power to apportion and impose the duty, or confer the power of assuming it, upon the towns and other municipal or political divisions. And the rule laid down is one which opens a broad field to legislative discretion, allowing as it does the raising and appropriation of moneys, whenever, in the somewhat extravagant words of one of the cases, there is " the least possibility that it will be promotive in any degree of the public welfare." 2 The same rule, substantially, has been recognized by the Court of Appeals of New York. "The legislature is not confined in its appropriation of the public moneys, or of the sums to be raised by taxation in favor of individuals, to cases in which a legal demand exists against the State. It can thus recognize claims founded in equity and justice in the largest sense of these terms, or in gratitude or charity. Independently of express constitu- tional restrictions, it can make appropriations of money when- ever the public well-being requires or will be promoted by it, and it is the judge of what is for the public good. It can, vania case, cited in the preceding note, missioners v. Bearss, 25 Ind. 110 ; Co- saw decided, authorized the borough to mer v. Fulsom, 13 Minn. 219 ; State v. contract a debt for the payment of three Demorest, 32 N. J. 528; Taylor v. Thomp- hundred dollars to each non-commissioned son, 42 111. 9; Barbour v. Camden, 51 Me. officer and private who might thereafter 608 ; Hart v. Holden, 55 Me. 572 ; Burn- volunteer and enter the service of the ham v. Chelsea, 43 Vt. 69; Butler v. United States, and be credited upon the Pultney, 43 Vt. 481. In State v. Jackson quota of the borough under an impending 33 N. J. 450, a statute authorizing a town draft. The whole purpose, therefore, to raise money by tax to relieve its in- was to relieve the community from the habitants from the burden of a draft threatened conscription. But in the case under a law of Congress, was held void of Brodhead v. Milwaukee, 19 Wis. 624, as tending to defeat the purpose of such 652, it was held constitutional, not only to law. The decision was made by a bare provide for the future by such municipal majority of a bench of eleven judges, taxation, but also to raise moneys to pay Compare O'Hara v. Carpenter, 23 Mich, bounties to volunteers previously enlisted, 410, in which a contract of insurance and even to those who should thereafter against a military draft was held void on procure substitutes for themselves, and grounds of public policy, have them credited on the nmnicipalquota. 2 Booth v. Woodbury, 32 Conn. 118, 1 Booth v. Town of Woodbury, 32 128, per Butler,,!. " To make a tax law Conn. 118; Bartholomew v. Harwinton, unconstitutional on this ground, it must 33 Conn. 408; Crowell'i\ Ilopkinton, 45 be apparent at first blush that the com- N. H. 9; Shackf ord v. Xewington,46N. H. munity taxed can have no possible inter- 415; Lowell v. Oliver, 8 Allen, 247; est in the. purpose to which their money Anl v. Gleim, 52 Pa. St. 43'2; Weister is to be applied." Sharpless v. Mayor, v. Hade, 62 Pa. St. 474; Coffman v. &c., 21 Pa. St. 147, 174, following Cheaney Keightley, 24 Ind. 509 ; Board of Com- v. Hooser, 9 B. Monr. 330. 332 CONSTITUTIONAL LIMITATIONS. [CH. VIII. :noreover, under the power to levy taxes, apportion the public burdens among all the taxpaying citizens of the State, or among those of a particular section or political division." 1 And where citizens have voluntarily advanced moneys for the purpose of paying bounties to recruits who fill the quota of a municipal corporation, on an understanding, based upon informal corporate action, that the moneys should be refunded when a law should be passed permitting it, a subsequent act of the legislature authorizing taxation for this purpose is valid! 2 However broad are the terms employed in describing the legis- lative power over taxation in these cases, it is believed that no one of them has gone so far as to sanction taxation or the appro- priation of the public revenue in order to refund to individuals moneys which they may have paid to relieve themselves from an impending draft, or may have voluntarily contributed to any public purpose, from motives purely personal to themselves, with- out any reason to rely upon the credit of the State, or of any municipal corporation, for reimbursement, and where the circum- stances are not such as fairly to challenge the public gratitude. Taxation in such a case, where no obligation, honorary or other- wise, rests upon the public, would be nothing else than a naked case of appropriating the property of the taxpayer for private purposes, and that, too, without reference to anticipated public benefits. 3 1 Guilford v. Supervisors of Chenango, thorized and required the school directors 13 N. Y. 143, 149. See New Orleans v. to borrow such sums of money as would Clark, 95 U. S. 644. fully reimburse the said Halifax Bounty 2 Weister v. Hade, 52 Pa. St. 474. Association for moneys advanced to free And see People v. Sullivan, 43 111. 412; said township from the draft, and then Johnson v. Campbell, 49 111. 316. Com- further authorized the school directors to pare Susquehanna Depot v. Barry, 61 levy and collect a tax to repay the sums Pa. St. 317. borrowed. The court say : " We are 8 Tyson v. School Directors, &c., 51 bound to regard the statute as an author- Pa. St. 9. A meeting of persons liable to ity to reimburse what was intended by draft under the law of the United States the Association as advances made to the was called, and an association formed, township with the intent or understand- called the Halifax Bounty Association, ing to be reimbursed or returned to those which levied an assessment of thirty doU contributing. This was the light in which lars on each person liable to military duty the learned judge below regarded the in the township, and solicited contribu- terms used; and unless this appears in tions from others. Afterwards, an act support of the present levy by the school was passed by the legislature, with a pre- directors, they are acting without author- amble reciting that certain citizens of ity. But the learned judge, if I properly Halifax township, associated as the Hali- comprehend his meaning, did not give fax Bounty Association, for freeing the sufficient importance to these terms, and said township from the late drafts, ad- hence, I apprehend, he fell into error, vanced moneys, which were expended in He does not seem to have considered it paying bounties to volunteers to fill the material whether the Association paid its quota of the township. The act then au- money voluntarily in aid of its own mem- CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 333 But it has been held by the Supreme Court of Massachusetts that towns might be authorized by the legislature to raise moneys by taxation for the purpose of refunding sums contributed by individuals to a common fund, in order to fill the quota of such towns under a call of the President, notwithstanding such moneys might have been contributed without promise or expectation of reimbursement. The court were of opinion that such contribu- tions might well be considered as advancements to a public object, and, being such, the legislature might properly recognize the obligation and permit the towns to provide for its discharge. 1 On a preceding page we have spoken in strong terms of the complete control which is possessed by the legislative authority bers, or expressly to aid the township in saving its people from a draft, with the understanding that it was advanced in the character of a loan if the legislature chose to direct its repayment, and the school directors chose to act upon the author- ity conferred. This we cannot agree to. Such an enactment would not be legisla- tion at all. It would be in the nature of judicial action, it is true ; but, wanting the justice of notice to parties to be af- fected by the hearing, trial, and all that gives sanction and force to regular judi- cial proceedings, it would much more re- semble an imperial rescript than consti- tutional legislation : first, in declaring an obligation where none was created or previously existed ; and next, in decree- ing payment by directing the money or property of the people to be sequestered to make the payment. The legislature can exercise no such despotic functions ; and as it is not apparent in the act that they attempted to do so, we are not to presume they did. They evidently intended the advancements to be reim- bursed to be only such as were made on the faith that they were to be returned." See also Crowell v. Hopkinton, 45 N. H. 9; Miller v. Grandy, 13 Mich. 540; Pease v. Chicago, 21 111. 500; Ferguson v. Land- ram, 6 Bush, 230; Esty v. Westminster, 97 Mass. 324; Cole ?-. Bedford, 97 Mass. 326 ; Usher v. Colchester, 33 Conn. 667 ; Perkins v. Milford, 69 Me. 315; Thomp- son v. Pittston, 59 Me. 315; Kelly v. Mar- shall, 69 Pa. St. 319. The legislature cannot ratify the action of a town in agreeing to repay those who paid money to avoid the draft. Bowles v. Landaff, 59 N. H. 164. In Freeland v. Hastings, 10 Allen, 570, it was held that the legisla- ture could not empower towns to raise money by taxation for the purpose of re- funding what had been paid by individ- uals for substitutes in military service. In Mead v. Acton, 139 Mass. 341, 1 N. E. 413, it was held that an act passed in 1882 was void, which permitted taxation to pay bounties to those who re-enlisted in 1864, as being for a private purpose. In Cass v. Dillon, 16 Ohio St. 38, it was held that taxes to refund bounties pre- viously and voluntarily paid might be authorized. See also State v. Harris, 17 Ohio St. 608. The Supreme Court of Wisconsin, in the well-reasoned case of State v. Tappan, 29 Wis. 664, deny the power of the State to compel a municipal corporation to pay bounties where it has not voted to do so. fjAct authorizing county to raise by taxation money to pay to men drafted and serving in Union armies in Civil War, or to their heirs, specified sums of money is void, as authorizing a devotion of public moneys to private purposes. Busli v. Bd. of Su- pervisors of Orange Co., 159 N. Y. 212, 63 N. E. 1121, 45 L. R. A. 556, 70 Am. St. 638.;] 1 Freeland v. Hastings, 10 Allen, 670, 686. And see Hilbish v. Catherman, 64 Pa. St. 154, and compare Tyson v. School Directors, 61 Pa. St. 9. [JTlie question of the right to pension school teachers was before the court in Hibhard v. State, 65 Ohio, 674, 61 N. E. 109, and the right denied as involving the taking of private property without due process of law and because the particular act was not uni- form in its operatiou.] CONSTITUTIONAL LIMITATIONS. [CH. VIII. of the State over the municipal corporations. There are never- theless some limits to its power in this regard, as there are in various other directions limits to the legislative power of the State. Some of these are expressly defined ; others spring from the usages, customs, and maxims of our people ; they are a part of its history, a part of the system of local self-government, in view of the continuance and perpetuity of which all our consti- tutions are framed, and of the right to which the people can never be deprived except through express renunciation on their part. One undoubted right of the people is to choose, directly or indirectly, under the forms and restrictions prescribed by the legislature for reasons of general State policy, the officers of local administration, and the board that is to make the local laws. This is a right which of late has sometimes been en- croached upon under various plausible pretences, but almost always with the result which reasonable men should have antici- pated from the experiment of a body at a distance attempting to govern a local community of whose affairs or needs they could know but little, except as they should derive information from sources likely to have interested reasons for misleading. 1 An- 1 On this subject reference is made to what is said by Campbell, Ch. J., in People . Hurlbut, 24 Mich. 44, 87, et seq. ; also p. 97. See s. c. 9 Am. Rep. 103. Much has been said concerning the necessity of legislative interference in some cases where bad men were coming into power through universal suffrage in cities, but the recent experience of the country shows that this has oftener been said to pave the way for bad men to obtain office or grants of unusual powers from the legislature than with any purpose to effect local reforms. And the great mu- nicipal scandals and frauds that have prevailed, like those which were so no- torious in New York City, have been made possible and then nursed and fos- tered by illegitimate interference at the seat of State government. Some officers, usually of local appointment, are un- doubtedly to be regarded as State officers whose choice may be confided to a State authority without any invasion of local rights ; such as militia officers, officers of police, and those who have charge of the execution of the criminal laws ; but those who are to administer the corporate funds and have the control of the corporate property, those who make the local laws and those who execute them, cannot right- fully be chosen by the central authority. Dillon, Mun. Corp. 33. See People v. Com. Council of Detroit, 28 Mich. 228. The legislature cannot appoint a board to have charge of the public works, streets, and fire department of a city. State v. Denny, 118 Ind. 382, 21 N. E. 252, 274, 4 L. R. A. 79 ; Evansville r. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. Nor may a city board control the police of neighboring townships which are not represented on it. Metr. Police Board v. Wayne County Auditors, 68 Mich. 576, 36 N. W. 743. But the State may provide for the ap- pointment of police officials in a city. Com. v. Plaisted, 148 Mass. 374, 19 N. E. 224, 12 Am. St. 666,2 L. R. A. 142; State v. Seavey, 22 Neb. 454, 36 N. W. 228; [JNewport v. Horton, 22 R. I. 196, 47 Atl. 312, 50 L. R. A. 330. Not so in Wiscon- sin. O'Connor v. Fond du Lac, 109 Wis. 253, 85 N. W. 327.] See State v. Hunter, 38 Kan. 578, 17 Pac. 177. And it may empower a board of water commission- ers, created by itself, to bond a city. David v. Portland Water Com., 14 Oreg. 98, 12 Pac. 174. In Ohio it is held no in- fraction of the right of local self-govern- ment to allow the governor to appoint a board of public affairs for cities. State v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 335 other is the right of the local community to determine what pecuniary burdens it shall take upon its shoulders. (a) But here from the very nature of the case there must be some limitations. The municipalities do not exist wholly for the benefit of their corporators, but as a part of the machinery of State government, and they cannot be permitted to decline a performance of their duties or a discharge of their obligations as such. (6) They cannot abolish local government ; they cannot refuse to provide the conveniences for its administration ; they cannot decline to raise the necessary taxes for the purpose ; they cannot repudiate pecuniary obligations that justly rest upon them as a local gov- ernment. Over these matters the legislature of the State must have control, or confusion would inevitably be introduced into the whole system. But beyond this it is not often legitimate for the State to go except in moulding and shaping the local powers, and perhaps permitting the local authorities to do cer- tain things for the benefit of their citizens which under the general grants of power would be inadmissible. 1 On this general subject we shall venture to lay down the fol- lowing propositions as the result of the authorities : 1. That the legislature has undoubted power to compel the municipal bodies to perform their functions as local governments under their charters, and to recognize, meet, and discharge the duties and obligations properly resting upon them as such, whether they be legal, or merely equitable or moral ; and for this purpose it may require them to exercise the power of taxa- tion whenever and wherever it may be deemed necessary or expedient. 2 N. E. 829. In Com. v. Plaisted, supra, the large or an indefinite portion of it. The court say, " We cannot declare an act of municipality may be compelled to submit the legislature invalid because it abridges to a tax levied upon it by the legislature the exercise of the privilege of local self- for the support of a local board of health, government in a particular in regard to created by the legislature. Davock v. which such privilege is not guaranteed Moore, 105 Mich. 120, 63 N. W. 424, 28 by any provision of the Constitution." L. It. A. 783-3 fjAnd the right of local self-government 1 This subject is discussed with some is not involved where a public duty is fulness in Cooley on Taxation, ch. xxi. laid upon a municipality, the proper dis- 2 In support of this, we refer to the charge of which will benefit the State at very strong case of Guilford v. Super- (a) fJWhere the Constitution prohibits the levy by the legislature of any tax upon a municipality for municipal purposes, the municipality cannot be required to pur- chase, when it shall determine to own a water plant, only from a private water com- pany to which it has granted a franchise. Helena Cons. Water Co. v. Steele, 20 Mont. 1, 49 Pac. 382, 37 L. R. A. 412.] (b) [JA county may be compelled to establish and maintain a high school. State v. Freeman, 61 Kan. 90, 58 Pac. 959, 47 L. R. A. 67. And a city, a park. Knowlton v. Williams, 174 Mass. 476, 55 N. E. 77, 47 L. R. A'. 314.] 336 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 2. That in some cases, in view of the twofold character of such bodies, as being on the one hand agencies of State govern- visors of Chenango, 18 Barb. 615, s. c. 13 N. Y. 143, where a town was compelled by the legislative authority of the State to reimburse its officers the expenses in- curred by them in the honest but mis- taken endeavor to discharge what they believed to be their duty ; approved in New Orleans v. Clark, 95 U. S. 644; also to Sinton v. Ashbury, 41 Cal. 525, 530, in which it is said by Crocket, J., that " It is established by an overwhelming weight of authority, and I believe is conceded on all sides, that the legislature has the constitutional power to direct and control the affairs and property of a municipal corporation for municipal purposes, pro- vided it does not impair the obligation of a contract, and by appropriate legislation may so control its affairs as ultimately to compel it, out of the funds in its treasury, or by taxation to be imposed for that purpose, to pay a demand when properly established, which in good conscience it ought to pay, even though there be no legal liability to pay it" (citing Blanding v. Burr, 13 Cal. 343; Beals v. Amador Co., 35 Cal. 624; People v. Supervisors of San Francisco, 11 Cal. 206; Sharp v. Contra Costa Co., 34 Cal. 284 ; People v. McCreery, 34 Cal. 432; People v. Ala- meda, 26 Cal. 641, and holding that a city might be compelled to pay the claim of persons who had acted as commis- sioners in the extension of certain of its streets) ; also to Borough of Dunmore's Appeal, 62 Pa. St. 374, in which the legis- lature assumed the right of apportioning the indebtedness of a town among the boroughs carved out of it ; supported by Layton v. New Orleans, 12 La. Ann. 615; People v. Alameda, 26 Cal. 641; and Burns v. Clarion County, 62 Pa. St. 422; also to People v. Flagg, 46 N. Y. 401, in which the legislative power to direct the construction of a public road, and to compel the creation of a town debt for the purpose, was fully sustained ; to People v. Power, 25 111. 187 ; Waterville v. County Commissioners, 69 Me. 80; and to numerous other cases cited, ante, p. 268, note, and which we will not occupy space by repeating here. The legislature may validate an unauthorized issue of bonds, thereby taking away an inequi- table defence against a holder of them in good faith, and enabling him to en- force them. Read v. Plattsmouth, 107 U. S. 668, 2 Sup. Ct. Rep. 208. So far as an act creates a liability which did not exist, it is void ; so far as it provides a means for enforcing a pre-existing lia- bility, it is valid. Supervisors of Sads- bury v. Dennis, 96 Pa. St. 400. The legislature cannot impose taxation to pay what a county does not owe : Board of Supervisors v. Cowan, 60 Miss. 876; nor to bestow a gratuity ; otherwise if there is an equitable obligation to pay. Fuller v. Morrison Co., 36 Minn. 309, 30 N. W. 824. See State v. Foley, 30 Minn. 350, 15 N. W. 375; Caldwell Co. v. Harbert, 68 Tex. 321, 4 S. W. 607. [Where the Constitution provides that no county shall give any money or property in aid of any individual, association, or corpora- tion, the legislature cannot authorize the retrial of a demand against a county where judgment upon the first trial was for the county. Re Greene, 166 N. Y. 485, 60 N. E. 183.] In Creighton v. San Francisco, 42 Cal. 446, it is said that the power of the legislature to appropri- ate the money of municipal corporations in payment of equitable claims to indi- viduals, not enforceable in the courts, depends on the legislative conscience, and the judiciary will not interfere un- less in exceptional cases. [But the Con- stitution of California now prohibits such action on the part of the legislature. Con- lin v. San Francisco Bd. of Supervisors, 99 Cal. 17, 33 Pac. 753, 21 L. R. A. 474, 37 Am. St. 17. See also other cases to same effect, note 3, p. 316, and latter part of note on p. 318, ante.~^ Unquestion- ably the legislature may decide what taxes shall be levied for proper purposes of local government. Youngblood v. Sex- ton, 32 Mich. 406. [And a territorial legislature may compel the payment of debts incurred for public purposes by tlie inhabitants of a town before the organi- zation of territorial and municipal gov- ernments. Guthrie National Bank v. Guthrie, 173 U. S. 528, 19 Sup. Ct. Rep. 613; Guthrie v. Oklahoma, 1 Okla. 188, 31 Pac. 190, 21 L. R. A. 841. See also State v. Springer, N. J. , 48 Atl. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 337 ment, and on the other, corporations endowed with capacities and permitted to hold property and enjoy peculiar privileges for the benefit of their corporators exclusively, the legislature may permit the incurring of expense, the contracting of obligations, and the levy of taxes which are unusual, and which would not be admissible under the powers usually conferred. Instances of the kind may be mentioned in the offer of military bounties, and the payment of a disproportionate share of a State burden in consideration of peculiar local benefits which are to spring frgm it. 1 3. But it is believed the legislature has no power, against the will of a municipal corporation, to compel it to contract debts for local purposes in which the State has no concern, or to assume obligations not within the ordinary functions of municipal gov- ernment. Such matters are to be disposed of in view of the 605 (March 4, 1901). That penalties re- coverable at suit of party injured may be laid upon counties in which lynch- ings occur, see Bd. of Com'rs of Cham- paign Co. v. Church, 62 Ohio St. 318, 67 N. E. 50, 48 L. R. A. 738. Legislature may compel a city to acquire or con- struct and to pay for bridges and ferries within their limits or contiguous to them, but it cannot compel a county to pay the debts of a city within it. Simon v. Northup, 27 Oreg. 487, 40 Pac. 560, 30 L. R. A. 171.] 1 The subject of military bounties has been sufficiently referred to already. As to the right to permit a municipal corpo- ration to burden itself with a local tax for a State object, we refer to Merrick v. Am- herst, 12 Allen, 600; Marks v. Trustees of Purdue University, 37 Ind. 155; Has- brouck v. Milwaukee, 13 Wis. 37. The first was a case in which, in consideration of the local benefits expected from the location of the State agricultural college in a certain town, the town was permitted to levy a large local tax in addition to its proportion of the State burden, for the erection of the necessary buildings. The second case was of a similar nature. The third was the case of permission to levy a city tax to improve the city harbor, a work usually done by the general govern- ment. There are cases which go further than these, and hold that the legislature may compel a municipal corporation to do what it may thus permit. Thus, in Kirby v. Shaw, 19 Pa. St. 258, it appeared that by an act of April 3, 1848, the commissioners of Bradford County were required to add $500 annually, until 1857, to the usual county rales and levies of the borough of Towanda in said county, for the purpose of defraying the expenses of the court- house and jail, then in process of erection in that borough. The act was held con- stitutional on the principle of assessment of benefits. In Gordon v. Cornes, 47 If. Y. 608, a law was sustained which " authorized and required " the village of Brockport to levy a tax for the erection of a State normal school building at that place. It is to be said of this case, how- ever, that there was to be in the building a grammar-school free to all the children of proper acquirements in the village ; so that the village was to receive a peculiar and direct benefit from it, besides those which would be merely incidental to the location of the normal school in the place. But for this circumstance it would be distinctly in conflict with State v. Haben, 22 Wis. 660, where it was held incompe- tent for the legislature to appropriate the school moneys of a city to the purchase of a site for a State normal school; and also with other cases cited in the next note. It must be conceded, however, that there are other cases which support it And see, as supporting the last case, Livingston County v. Weider, 64 111. 427 ; Burr v. Carbondale, 76 111. 455; Liv- ingston County v. Darlington, 101 U. S. 407. 22 338 CONSTITUTIONAL LIMITATIONS. [CH. VIII. interests of the corporators exclusively, and they have the same right to determine them for themselves which the associates in private corporations have to determine for themselves the ques- tions which arise for their corporate action. The State in such cases may remove restrictions and permit action, but it cannot compel it. 1 1 A city cannot be compelled to erect buildings for a county ; but it may be permitted to do it if it so elects. Callam v. Saginaw, 50 Mich. 7, 14 N. W. 677. There are undoubtedly some cases which go to the extent of holding that municipal corporations and organizations are so completely under the legislative control, that whatever the legislature may permit them to do, it may compel them to do, whether the corporators are willing or not. A leading case is Thomas v. Leland, 24 Wend. 65. In that case it appeared that certain citizens of Utica had given their bond to the people of the State of New York, conditioned for the payment into the canal fund of the sum of $38,615, the estimated difference between the cost of connecting the Chenango Canal with the Erie at Utica, instead of at Whites- borough, as the canal commissioners had contemplated ; and it was held within the constitutional powers of the legislature to require this sum to be assessed upon the taxable property of the city of Utica, supposed to be benefited by the canal connection. The court treat the case as " the ordinary one of local taxation to make or improve a public highway," and dismiss it with few words. If it could be considered as merely a case of the appor- tionment between a number of munici- palities of the expense of a public high- way running through them, it would have the support of Waterville v. County Com- missioners, 59 Me. 80; Commonwealth v. Newburyport, 103 Mass. 129; and also what is said in Bay City v. State Treas- urer, 23 Mich. 499, where it is admitted that over the matter of the construction of such a highway, as well as the appor- tionment of expense, the State authority must necessarily be complete. It has been considered in subsequent New York cases as a case of apportionment merely. See People v. Brooklyn, 4 N. Y. 419 ; Howell v. Buffalo, 37 N. Y. 267: The cases of Kirby v. Shaw, 19 Pa. St. 258, and Gor- don v. Cornes, 47 N. Y. 608, referred to in the preceding note, it will be "per- ceived, were also treated as cases merely of apportionment. How that can be called a case of apportionment, however, which singles out a particular town, and taxes it for benefits to be expected from a high- way running across the State, without doing the same by any other town in the State, it is not easy to perceive. In Com- missioners of Revenue v. The State, 45 Ala. 31*9, it appeared that the legislature had created a local board consisting of the president of the county commissioners of revenue of Mobile County, the mayor of Mobile, the president of the Bank of Mobile, the president of the Mobile Cham- ber of Commerce, and one citizen of Mo- bile, appointed by the governor, . as a board for the improvement of the river, harbor, and bay of Mobile, and required the commissioners of revenue of Mobile County to issue to them for that purpose county bonds to the amount of $1,000,000, and to levy a tax to pay them. Here was an appointment by the State of local officers to make at the expense of the locality an improvement which it has been customary for the general government to take in charge as one of national concern ; but the Supreme Court of the State sus- tained the act, going farther, as we think, in doing so, than lias been gone in any other case. In Hasbrouck v. Milwaukee, 13 Wis. 37, approved and defended in an able opinion in Mills v. Charleton, 29 Wis. 400, the power of the legislature to com- pel the city of Milwaukee to issue bonds or levy a tax for the improvement of its harbor was distinctly denied, though it was conceded that permission might be given, which the city could lawfully act upon. Compare also Knapp v. Grant, 27 Wis. 147; State v. Tappan, 29 Wis. 664, 9 Am. Rep. 622 ; Atkins v. Randolph, 31 Vt. 226. In People v. Batchellor, 53 N. Y. 128, the Court of Appeals, through an able and lucid opinion by Graver, J., denied the validity of a mandatory statute compelling a town to take stock in a rail- CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 339 4. And there is much good reason for assenting also to what several respectable authorities have held, that where a demand road corporation, and to issue its bonds in exchange therefor. The authority to per- mit the town to do this was not discussed, but, taking that as admitted, it is declared that municipal corporations, in the mak- ing or refusing to make arrangements of the nature of that attempted to be forced upon the town in question, were entitled to the same freedom of action precisely which individual citizens might claim. This opinion reviews the prior decisions in the same State, and finds nothing con- flicting with the views expressed. In People v. Mayor, &c. of Chicago, 51 111. 17, 2 Am. Rep. 278, it was denied, in an opinion of great force and ability, de- livered by Chief Justice Breese, that the State could empower a board of park commissioners of State appointment to contract a debt for the city of Chicago, for the purposes of a public park for that city, and without the consent of its citi- zens. The learned judge says (p. 31) : " While it is conceded that municipal corporations, which exist only for public purposes, are subject at all times to the control of the legislature creating them, and have in their franchises no vested rights, and whose powers and privileges the creating power may alter, modify, or abolish at pleasure, as they are but parts of the machinery employed to carry on the affairs of the State, over which and their rights and effects the State may exercise a general superintendence and control (Richland County v. Lawrence County, 12 111. 8; Trustees of Schools v. Tatman, 13 111. 30), we are not of the opinion that that power, such as it is, can be so used as to compel any one of our many cities to issue its bonds against its will, to erect a park, or for any other im- provement to force it to create a debt of millions ; in effect, to compel every prop- erty owner in the city to give his bond to pay a debt thus forced upon the city. It will hardly be contended that the legisla- ture can compel a holder of property in Chicago to execute his individual bond as security for the payment of a debt so or- dered to be contracted. A city is made up of individuals owning the property within its limits, the lots and blocks which com- pose it, and the structures which adorn them. What would be the universal judg- ment, should the legislature, sua sponte, project magnificent and costly structures within one of our cities, triumphal arches, splendid columns, and perpetual fountains, and require in the act creat- ing them that every owner of property within the city limits should give his individual obligation for his proportion of the cost, and impose such costs as a lien upon his property forever? What would be the public judgment of such an act, and wherein would it differ from the act under consideration ? " And again : " Here, then, is a case where taxes may be assessed, not by any corporate author- ity of the city, but by commissioners, to whom is intrusted the erection, embellish- ment, and control of this park, and this without consent of the property owners. " We do not think it is within the con- stitutional competency of the legislature to delegate this power to these commis- sioners. If the principle be admitted that the legislature can, uninvited, of their mere will, impose such a burden as this upon the city of Chicago, then one mucli heavier and more onerous can be imposed; in short, no limit can be as- signed to legislative power in this regard. If this power is possessed, then it must be conceded that the property of every citizen within it is held at the pleasure and will of the legislature. Can it be that the General Assembly of the State, just and honest as its members may be, is the depository of the rights of property of the citizen ? Would there be any suffi- cient security for property if such a power was conceded ? No well-regu- lated mind can entertain the idea that it is within the constitutional competency of the legislature to subject the earnings of any portion of our people to the haz- ards of any such legislation." This case should be read in connec- tion with the following in the same State, and all in the same direction. People v. Common Council of Chicago, 51 111. 58; Lovingston v. Wider, 63 111. 302; Peo- ple v. Canty, 55 111. 33 ; Wider v. East St. Louis, 55 111. 133; Gage v. Graham, 57 111. 144 ; East St. Louis v. Witts, 59 111. 155; Marshall v. Silliman, 61 111. 218; 340 CONSTITUTIONAL LIMITATIONS. [CH. VIII. is asserted against a municipality, though of a nature that the legislature would have a right to require it to incur and dis- charge, yet if its legal and equitable obligation is disputed, the corporation has the right to have the dispute settled by the courts, and cannot be bound by a legislative allowance of the claim. 1 Cairo, &c. R. R. Co. v. Sparta, 77 111. 505 ; Barnes v. Lacon, 84 111. 461. See also People v. Common Council of Detroit, 28 Mich. 228. That the legislature may compel a municipality to levy a tax for a local road, see Wilcox v. Deer Lodge Co., 2 Mont. 574. And where a highway or bridge is beneficial to several munici- palities, the legislature may compel them to contribute to the expense of providing and maintaining it, even though no por- tion of it lies within the boundaries of some of the contributories ; and the leg- islature may apportion the expense. State v. Williams, 68 Conn. 131, 35 Atl. 24, 421, 48 L. R. A. 465, aff. in Wil- liams v. Eggleston, 170 U. S. 304, 18 Sup. Ct. Rep. 617. Upon power of legislature to impose burdens of this character on municipalities, see cases collected in note to 48 L. R. A. 465. That city may be compelled to purchase and maintain a park, see Knowlton v. Williams, 174 Mass. 476, 55 N. E. 77, 47 L. R. A. 314.] The case of People i>. Batchellor, 53 N. Y. 128, seems to us clearly inconsist- ent with Thomas v. Lelaiid, supra. But, on the other hand, the case of Duanes- burgh v. Jenkins, 57 N. Y. 177, goes to the full extent of holding that a subscription of a town to a railroad, made on condition of subsequent assent of the town thereto, may be relieved of the condition by the legislature and enforced against the town, though the original subscription was by a commission which the town did not choose. It is a little difficult, therefore, to determine what the law of New York now is on this subject, especially as in New York, &c. R. R. Co. v. Van Horn, 57 N. Y. 473, the power of the legislature to make valid an ineffectual individual con- tract is denied. But leaving out of view the New York cases, and a few others which were decided on the ground of an apportionment of local benefits, we think the case in Alabama will stflnd substan- tially alone. Before that decision the Su- preme Court of Illinois were able to say, in a case calling for a careful and thor- ough examination of the authorities, that counsel had " failed to find a case wherein it had been held that the legislature can compel a city against its will to incur a debt by the issue of its bonds for a local improvement." People v. Mayor, &c., 51 111. 17, 31. See also cases pp. 699-702, infra. QAnd see Cook Farm Co. v. De- troit, 124 Mich. 426, 83 N. W. 130, that citizens must be permitted to pass upon the proposition to allow a board the power of local taxation, decided on au- thority of Park Commissioners r. Detroit, 28 Mich. 228.] 1 It was held in People v. Hawes, 37 Barb. 440, that the legislature had no right to direct a municipal corporation to satisfy a claim made against it for dam- ages for breach of contract, out of the funds or property of such corporation. In citing the cases of Guilford v. Super- visors of Chenango, 13 N. Y. 143, and People v. Supervisors of New York, 11 Abb. 14, a distinction is drawn by which the cases are supposed to be reconciled with the one then under decision. " Those cases and many others," say the court, p. 455, " related not to the right or power of the legislature to compel an individual or corporation to pay a debt or claim, but to the power of the legislature to raise money by tax, and apply such money, when so raised, to the payment thereof. We could not, under the decisions of the courts on this point, made in these and other cases, now hold that the legislature had not authority to impose a tax to pay any claim, or to pay it out of the State treasury ; and for this purpose to impose a tax upon the property of the whole State, or any portion of the State. This was fully settled in People v. Mayor, &c. of Brooklyn, 4 N. Y. 419; but neither that case nor the case in 13 N. Y. 143, in any manner gave a warrant for the opin- ion that the legislature had a right to direct a municipal corporation to pay a claim for damages for breach of a con- tract out of the funds or property of such corporation, without a submission of such CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 341 Having concisely stated these general views, we add merely, that those cases which hold that the State may raise bounty moneys by taxation, to be paid to persons in the military service, we think stand by themselves, and are supported by different principles from any which can fairly be summoned to the aid of some of the other cases which we have cited. The burden of the public defence unquestionably rests upon the whole community; and the legislature may properly provide for its apportionment and discharge in such manner as its wisdom may prescribe. But those cases which hold it competent for the legislature to give its consent to a municipal corporation engaging in works of public improvement outside its territorial limits, and becoming a stockholder in a private corporation, must be conceded on all hands to have gone to the very limit of constitutional power in this direction ; and to hold that the legislature may go even fur- ther, and, under its power to control the taxation of the political divisions and organizations of the State, may compel them, with- out the consent of their citizens, to raise money for such or any other unusual purposes, or to contract debts therefor, seems to us to be introducing new principles into our system of local self- suited, is less objectionable and less likely to lead to oppression, than the power to impose through taxation a claim upon a corporation which it never was concerned in creating, against which it protests, and which is unconnected with the ordinary functions and purposes of municipal gov- ernment. In Borough of Dunmore's Ap- peal, 52 Pa. St. 374, a decision was made which seems to conflict with that in Peo- ple v. Hawes, supra, and with the subse- quent case of Baldwin r. Mayor, &c. of New York, 42 Barb. 549. The Penn- sylvania court decided that the constitu- tional guaranty of the right to jury trial had no application to municipal corpora- tions, and a commission might be created by the legislature to adjust the demands between them. See also In re Pennsyl- vania Hall, 6 Pa. St. 204; Layton v. New Orleans, 12 La. Ann. 515. In Peo- ple v. Power, 25 III. 187, it was held com- petent for the legislature to apportion the taxes collected in a county between a city therein and the remainder of the county, and that the county revenues " must necessarily be within the control of the legislature for political purposes." And see Portwood v. Montgomery Co., 52 Miss. 523. claim to a judicial tribunal." If by this is meant that the legislature has power to compel a corporation to tax its citizens for the payment of a demand, but has not the authority to make it a charge against the corporation in any other mode, the distinction seems to be one of form rather than of substance. It is no protection to the rights of property of a municipal cor- poration to hold that the legislature can- not determine upon a claim against it, if at the same time the corporation may be compelled by statute to assume and dis- charge the obligation through the levy of a tax for its satisfaction. But if it is only meant to declare that the legislature cannot adjudicate upon disputed claims, there can be no good reason to find fault with the decision. It is one thing to de- termine that the nature of a claim is such as to make it proper to satisfy it by taxa- tion, and another to adjudge how much is justly due upon it. The one is the exer- cise of legislative power, the other of judicial. See Sanborn v. Rice, Minn. 273; Commonwealth r. Pittsburgh, 34 Pa. St. 496; Plimpton v. Somerset, 33 Vt. 283; Gage .-. Graham, 57 111. 144. But the power to decide upon the breach of a contract by a corporation, and the extent of the damages which have re- 342 CONSTITUTIONAL LIMITATIONS. [CH. VIII. government, and to be sanctioning a centralization of power not within the contemplation of the makers of the American consti- tutions. We think, where any such forced taxation is resisted by the municipal organization, it will be very difficult to defend it as a proper exercise of legislative authority in a government where power is distributed on the principles which prevail here. Legislative Control of Corporate Property. The legislative power of the State controls and disposes of the property of the State. How far it may also control and dispose of the property of those agencies of government which it has created and endowed with corporate powers, is a question which happily there has been very little occasion to discuss in the courts. Being created as an agency of government, it is evident that the municipality cannot in itself have that complete and absolute control and power of disposition of its property which is possessed by natural persons and private corporations in respect to their several possessions. For it can hold and' own property only for corporate purposes, (a) and its powers are liable at any time to be so modified by legislation as to render the property no longer available. Moreover, the charter rights may be altogether taken away ; and in that case the legislature has deprived the corporation of its property by depriving it of corporate capacity to hold it. And in many ways, while the corporation holds and enjoys property, the legislature must possess power to interfere with its control, at least incidentally; for the mere fact that the corporation possesses property cannot deprive the State of its complete authority to mould and change the corporate organiza- tion, and enlarge or diminish the powers which it possessed be- fore. But whether the State can directly intervene and take away the corporate property, or convert it to other uses than those for which it was procured, or whether, on repealing a charter of incorporation, it can take to itself the corporate prop- erty, and dispose of it at its discretion, are different questions from any raised by the indirect and incidental interference referred to. In the leading case, in which it was decided by the Supreme Court of the United States that a private charter of incorporation, granted by a State, was a contract between the State and the corporators, not subject to modification or repeal, except in pur- fa) QSueh property is held subject to a trust in behalf of the public, and the municipality is incapable of alienating it unless expressly authorized thereto. See Huron Waterworks Co. . Huron, 8 S. D. 169,65 N. W. 816, 30 L. K. A. 848J CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 343 suance of a right expressly reserved, but that the charter of a municipal corporation was not such a contract, it was at the same time declared, as the opinion of the judges, that the legislature could not deprive such municipal corporations of their vested rights in property. "It may be admitted," says one of the judges, "that corporations for mere public government, such as towns, cities, and counties, may in many respects be subject to legislative control. But it will hardly be contended that even in respect to such corporations the legislative power is so transcen- dent that it may, at its will, take away the private property of the corporation, or change the uses of its private funds acquired under the public faith. Can the legislature confiscate to its own use the private funds which a municipal corporation holds under its charter, without any default or consent of the corporators? If a municipal corporation be capable of holding devises and legacies to charitable uses, as many municipal corporations are, does the legislature, under our forms of limited government, possess the authority to seize upon those funds and appropriate them to other uses, at its own arbitrary pleasure, against the will of the donors and donees? From the very nature of our govern- ment, the public faith is pledged the other way, and that pledge constitutes a valid compact ; and that compact is subject only to judicial inquiry, construction, and abrogation. " 1 " The govern- ment has no power to revoke a grant, even of its own funds, when given to a private person or corporation for special uses. It cannot recall its own endowments, granted to any hospital or college, or city or town, for the use of such corporations. The only authority remaining to the government is judicial, to ascer- tain the validity of the grant, to enforce its proper uses, to sup- press frauds, and, if the uses are charitable, to secure their regular administration through the means of equitable tribunals, in cases where there would otherwise be a failure of justice." 2 "In respect to public corporations," says another judge, "which exist only for public purposes, such as towns, cities, &c., the legislature may, under proper limitations, change, modify, enlarge, or restrain them, securing, however, the property for the use of those for whom and at whose expense it was pur- chased." 3 These views had been acted upon by the same court in preceding cases. 4 They draw a distinction between the politi- 1 Story, J., in Dartmouth College v. 4 Terrett v. Taylor, 9 Cranch, 43 ; Woodward, 4 Wheat. 618, 694, 695. Town of Pawlet v. Clark, 9 Cranch, 292. 2 Story, J., in Dartmouth College v. See also State v. Haben, 22 Wis. 660, Woodward, 4 Wheat. 698. referred to, ante, p. 337, note; Aberdeen 3 Washington, J., in Dartmouth Col- v. Saunderson, 16 Miss. 663. In People lege v. Woodward, 4 Wheat. 663. v. Common Council of Detroit, 28 Mich. 344 CONSTITUTIONAL LIMITATIONS. [CH. VIII. cal rights and privileges conferred on corporations and which are not vested rights in any sense implying constitutional permanency, and such rights in property as the corporation acquires, and which in the view of these decisions are protected by the same reasons which shield similar rights in individuals. 1 When the municipal divisions of the territory of the State are changed in their boundaries, two or more consolidated in one, or one subdivided, it is conceded that the legislature possesses the power to make such disposition of the corporate property as nat- ural equity would require in view of the altered condition of things. The fact that a portion of the citizens, before entitled to the benefits springing from the use of specific property for public purposes, will now be deprived of that benefit, cannot affect the validity of the legislative act, which is supposed in some other way to compensate them for the incidental loss. 2 And in many other cases the legislature properly exercises a similar power of control in respect to the corporate property, and may direct its partition and appropriation, in order to accommodate most justly and effectually, in view of new circumstances, the purposes for which it was acquired. The rule upon the subject we take to be this: when corporate powers are conferred, there is an implied compact between the State and the corporators that the property which they are given the capacity to acquire for corporate purposes under their char- ter shall not be taken from them and appropriated to other uses. 3 228, this subject was largely considered, exercise of this species of power, because and the court denied the right of the it has been conferred upon them by the State to compel a municipal corporation bounty of the legislature, so may any and to contract a debt for a mere local object ; every officer under the government do for example, a city park. Compare Peo- the same." Nelson, J., in People v. Mor- ple v. Board of Supervisors, 50 Cal. 561. ris, 13 Wend. 325, 331. And see Bristol In Texas it is held that municipal corpo- v. New Chester, 3 N. H. 524; Benson v. rations have a constitutional right to pro- Mayor, &c. of New York, 10 Barb. 223. tection in their property as against State It is competent for the legislature to legislation. Milam Co. v. Bateman, 54 transfer the control of the streets of a Tex. 153. city to park commissioners for boulevard 1 " It is an unsound and even absurd or park purposes. People r. Walsh, 96 proposition that political power conferred 111. 232 ; 36 Am. Rep. 135. See Matter of by the legislature can become a vested Woolsey, 95 N. Y. 135. right, as against the government, in any in- 2 Bristol r. New Chester, 3 N. H. 524. dividual or body of men. It is repugnant And see ante, pp. 267-269, notes; post, to the genius of our institutions, and the p. 317, note 1. spirit and meaning of the Constitution ; 8 If land is dedicated as a public for by that fundamental law, all political square, and accepted as such, a law de- rights not there defined and taken out of voting it to other uses is void, because the exercise of legislative discretion, were violating the obligation of contracts, intended to be left subject to its regula- Warren v. Lyons City, 22 Iowa, 351. tion. If corporations can set up a vested As there was no attempt in that case to right as against the government to the appropriate the land to such other uses CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. If the State grants property to the corporation, the grant is an executed contract, which cannot be revoked. The rights ac- quired, either by such grants or by any other legitimate mode in which such a corporation can acquire property, are vested rights, and cannot be taken away. Nevertheless if the corporate powers should be repealed, the corporate ownership would necessarily cease, and even when not repealed, a modification of those pow- ers, or a change in corporate bounds, might seriously affect, if not altogether divest, the rights of individual corporators, so far as they can be said to have any rights in public property. And in other ways, incidentally as well as by direct intervention, the State may exercise authority and control over the disposition and use of corporate property, according to the legislative view of what is proper for the public interest and just to the corpo- rators, subject, however, to this restriction, that the purpose for which the property as originally acquired shall be kept in view, so far as the circumstances will admit, in any disposition that may be made of it. 1 under the right of eminent domain, the question of the power to do so was not considered. 1 This principle is asserted and sus- tained in Mount Pleasant v. Beckwith, 100 U. S. 514, in an elaborate opinion by Mr. Justice Clifford. Also in Meriwether v. Garrett, 102 U. S. 472. And ?ee North Yarmouth v. Skillings, 45 Me. 133. "That the State may make a contract with, or a grant to, a public municipal corporation, which it could not subsequently impair or resume, is not denied ; but in such case the corporation is to be regarded as a pri- vate company. A grant may be made to a public corporation for purposes of pri- vate advantage; and although the public may also derive a common benefit there- from, yet the corporation stands on the same footing, as respects such grant, as would any body of persons upon whom like privileges were conferred. Public or municipal corporations, however, which exist only for public purposes, and pos- sess no powers except such as are be- stowed upon them for public political purposes, are subject at all times to the control of the legislature, which may alter, modify, or abolish them at pleas- ure." Trumbutl, J., in Richland County v. Lawrence County, 12 111. 18. " Public corporations are but parts of the machin- ery employed in carrying on the affairs of the State ; and they are subject to be changed, modified, or destroyed, as the exigencies of the public may demand. The State may exercise a general super- intendence and control over them and their right and effects, so that their prop- erty is not diverted from the uses and objects for which it was given or pur- chased." Trustees of Schools v. Tatman, 13 111. 27, 30, per Treat, Ch. J. And see Harrison v. Bridgeton, 16 Mass. 16; Raw- son v. Spencer, 113 Mass. 40; Mont- pelier v. East Montpelier, 27 Vt. 704 ; Same v. Same, 29 Vt. 12; Benson v. Mayor, &c. of New York, 10 Barb. 223. See also City of Louisville v. University, 15 B. Monr. 642; Weymouth & Brain- tree Fire District v. County Commission- ers, 108 Mass. 142 ; Morgan v. Beloit, 7 Wall. 613. In State v. St. Louis County Court, 34 Mo. 546, the following remarks are made by the court, in considering the cause shown by the county in answer to an application to compel it to meet a re- quisition for the police board of St. Louis : " As to the second cause shown in the return, it is understood to mean, not that there is in fact no money in the treasury to pay this requisition, but that as a mat- ter of law all the money which is in the treasury was collected for specific pur- poses from which it cannot be diverted. The specific purposes for which the money 346 CONSTITUTIONAL LIMITATIONS. [CH. VIII. This restriction is not the less applicable where corporate powers are abolished than it is in other cases; and whatever was collected were those heretofore di- rected by the legislature ; and this act, being a later expression of the will of the legislature, controls the subject, and so far as it conflicts with previous acts re- peals them. The county is not a private corporation, but an agency of the State government; and though as a public corporation it holds property, such hold- ing is subject to a large extent to the will of the legislature. Whilst the legislature cannot take away from a county its prop- erty, it has full power to direct the mode in which the property shall be used for the benefit of the county." For like views, see Palmer v. Fitts, 51 Ala. 489, 492. Compare People v. Mahaney, 13 Mich. 481; Richland Co. v. Richland Cen- ter, 69 Wis. 591, 18 N. W. 497. It will be observed that the strong expression of legislative power is generally to be found in cases where the thing actually done was clearly and unquestionably compe- tent. In Payne v. Treadwell, 16 Cal. 220, 233, this language is used : " The agents, of the corporation can sell or dispose of the property of the corporation only in the way and according to the order of the legislature ; and therefore the legislature may by law operating immediately upon the subject dispose of this property, or give effect to any previous disposition or attempted disposition. The property itself is a trust, and the legislature is the prime and controlling power, managing and directing the use, disposition, and direction of it." Quoted and approved in San Francisco v. Canavan, 42 Cal. 541, 558. These strong and general expres- sions should be compared with what is said in Grogan r. San Francisco, 18 Cal. 590, in which the right of municipal cor- porations to constitutional protection in their property is asserted fully. The same right is asserted in People v. Batch- ellor, 53 N. Y. 128 ; People v. Mayor, &c. of Chicago, 51 111. 17 ; People v. Tap- pan, 29 Wis. 664 ; People v. Hurlbut, 24 Mich. 44 ; and very many others. See Dillon, Mun. Corp. 39 et seq., and cnses referred to in notes. And see Hewison v. New Haven, 87 Conn. 475 ; New Or- leans, &c. R. R. Co. v. New Orleans, 26 La. Ann. 517, as to the distinction be- tween the public or governmental char- acter of municipal corporations, and their private character as respects the owner- ship and management of their own prop- erty. One of the strongest illustrations of the power of legislation over municipal corporations is to be found in the statutes which have been passed in some States to compel these corporations to make compensation for losses occasioned by mobs and riots. The old English law made the hundred responsible for rob- beries, and this was extended by the Riot Act of 1 Geo. I. to cover damages sus- tained at the hands of persons unlawfully, riotously, and tumultuously assembled. See Radcliffe v. Eden, Cowp. 485; Wil- inot v. Horton, Doug. 701, note ; Hyde v. Cogan, Doug. 699, an action growing out of the riot in which Lord Mansfield's house was sacked and his library de- stroyed. Similar statutes it has been deemed necessary to enact in some of the States, and they have received elaborate judicial examination and been sustained as important and beneficial police regula- tions, based upon the theory that, with proper vigilance on the part of the local authorities, the disorder and injury might and ought to have been prevented. Don- oghue v. Philadelphia, 2 Pa. St. 230; Commissioners of Kensington v. Phila- delphia, 13 Pa. St. 76; Allegheny County r. Gibson, 90 Pa. St. 397, 35 Am. Rep. 670; Darlington v. New York, 31 N. Y. 164; Ely v. Niagara Co., 36 N. Y. 297; Folsom v. New Orleans, 28 La. Ann. 936 ; Street v. New Orleans, 32 La. Ann. 677 ; Underbill v. Manchester, 45 N. H. 214; Chadbourne v. New Castle, 48 N. H. 196 ; ^Chicago v. Manhattan Cement Co., 178 111. 372, 53 N. E. 68, 45 L. R. A. 848, 69 Am. St. 321. Municipal corporations may be made liable for lynchings that occur within their boundaries. Brown v. Orangeburg Co., 55 S. C. 45, 32 S. E. 764, 44 L. R. A. 734 : see, in this connec- tion, Champaign Co. r. Church, 62 Ohio St. 318, 57 N. E. 50, 48 L. R. A. 738. Upon liability for destruction by mobs, see note to 24 L. R. A 592.] There is no such liability in the absence of statute. West- ern College v. Cleveland, 12 Ohio St. 375. L~Nor for loss of life at hands of rioters, CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 347 might be the nature of the public property which the corporation had acquired, and whatever the purpose of the acquisition, the legislature, when by taking away the corporate authority it became vested with the control of the property, would be under obligation to dispose of it in such manner as to give the original corporators the benefit thereof by putting it to the use designed, if still practicable, or to some kindred or equally beneficial use having reference to the altered condition of things. The obliga- tion is one which, from the very nature of the case, must rest for its enforcement in great measure upon the legislative good faith and sense of justice ; and it could only be in those cases where there had been a clear disregard of the rights of the original corporators, in the use attempted to be made of the property, that relief could be had through judicial action. No such restriction, however, can rest upon the legislature in regard to the rights and privileges which the State grants to municipal corporations in the nature of franchises, and which are granted only as aids or conveniences to the municipality in effecting the purposes of its incorporation. These, like the corporate powers, must be understood to be granted during pleasure. 1 Towns and Counties. Thus far we have been considering general rules, applicable to all classes of municipal organizations possessed of corporate powers, and by which these powers may be measured, or the duties which they impose defined. In regard to some of these organizations, however, there are other and peculiar rules which % require separate mention. Some of them are so feebly endowed with corporate life, and so much hampered, controlled, and in absence of statute. New Orleans v. void, on the ground that the original Abagnatto, 62 Fed. Rep. 240, 26 L. R. A. grant was of a franchise which consti- 329 ; Gianfortone v. New Orleans, 61 Fed. tuted property, and it could not be trans- Rep. 64, 24 L. R. A. 592.] ferred to another, though it might be 1 East Hartford v. Hartford Bridge repealed. The case cites Bailey v. Mayor, Co., 10 How. 611. On this subject see &c., 3 Hill, 631, and St. Louis v. Russell, ch. ix., post. The case of Trustees of 9 Mo. 507, which seem to have little rele- Aberdeen Academy v. Mayor, &c. of vancy ; also 4 Wheat. 663, 698, 699, and Aberdeen, 13 S. & M. 645, appears to be 2 Kent, 305, note, for the general rule contra. By the charter of the town of protecting municipal corporations in their Aberdeen in 1837, the legislature granted vested rights to property. The case of to it the sole power to grant licenses to Benson v. Mayor, &c. of New York, 10 sell vinous and spirituous liquors within Barb. 223, also holds the grant of a ferry the corporate limits thereof, and to ap- franchise to a municipal corporation to propriate the money arising therefrom to be irrevocable, but the authorities gener- city purposes. In 1848 an act was passed ally will not sustain this view. See post, giving these moneys to the Aberdeen p. 399, and note. Female Academy. The act was held 348 CONSTITUTIONAL LIMITATIONS. [CH. VIII. directed in the exercise of the functions which are conferred upon them, that they are sometimes spoken of as nondescript in character, and as occupying a position somewhere between that of a corporation and a mere voluntary association of citizens. Counties, townships, school districts, and road districts do not usually possess corporate powers under special charters; but they exist under general laws of the State, 1 which apportion the terri- tory of the State into political divisions for convenience of gov- ernment, and require of the people residing within those divisions the performance of certain public duties as a part of the ma- chinery of the State; and, in order that they may be able to perform these duties, vest them with certain corporate powers. Whether the} 7 shall assume those duties or exercise those powers, the people of the political divisions are not allowed the privilege of choice ; the legislature assumes this division of the State to be essential in republican government, and the duties are im- posed as a part of the proper and necessary burden which the citizens must bear in maintaining and perpetuating constitu- tional liberty. 2 Usually their functions are wholly of a public nature, and there is no room to imply any contract between them and the State, in their organization as corporate bodies, except that which springs from the ordinary rules of good faith, and which requires that the property they shall acquire, by local taxation or otherwise, for the purposes of their organization, shall not be seized by the State, and appropriated in other ways. They are, therefore, sometimes called quasi corporations, 3 to distinguish them from the corporations in general, which pos- sess more completely the functions of an artificial entity. Chief Justice Parker, of Massachusetts, in speaking of school districts, has said, "That they are not bodies, politic and corporate, with the general powers of corporations, must be admitted; and the reasoning advanced to show their defect of power is conclusive. 1 A constitutional provision that the Am. Dec. 522; Beardsley v. Smith, 16 legislature shall pass no special act con- Conn. 367 ; Eastman v. Meredith, 36 ferring corporate powers, applies to pub- N. H. 284; Hopple v. Brown, 13 Ohio St. lie as well as private corporations. State 311; Commissioners of Hamilton Co. v. v. Cincinnati, 20 Ohio St. 18 ; Clegg v. Mighels, 7 Ohio St. 109 ; Ray County v. School District, 8 Nev. 178 ; School Dis- Bentley, 49 Mo. 236. In Nebraska coun- trict v. Insurance Co., 103 U. S. 707. ties are not municipal corporations, 2 Granger v. Pulaski County, 26 Ark. Sherman Co. v. Simons, 109 U. S. 735. 37 ; Scales v. Chattahoochee County, 41 3 Sup. Ct. Rep. 502. It is not competent Ga. 225; Palmer v. Fitts, 61 Ala. 489. to organize a town of parcels of territory 8 Riddle v. Proprietors, &c., 7 Mass, which are not contiguous. Chicago, &c. 169, 187 ; School District v. Wood, 13 Railway Co. v. Oconto, 50 Wis. 189, 6 Mass. 192 ; Adams v. Wise-asset Bank, 1 N. W. 607. 36 Am. Rep. 840. See Smith Me. 361 ; Denton r. Jackson, 2 Johns, v. Sherry, 50 Wis. 210, 6 N. W. 561. Ch. 320; Todd v. Birdsall, 1 Cow. 260, 13 CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 349 The same may be said of towns and other municipal societies; which, although recognized by various statutes, and by imme- morial usage, as persons or aggregate corporations, with precise duties which may be enforced, and privileges which may be maintained by suit at law, yet are deficient in many of the powers incident to the general character of corporations. They may be considered, under our institutions, as quasi corporations, with limited powers, coextensive with the duties imposed upon them by statute or usage, but restrained from the general use of authority which belongs to these metaphysical persons by the common law. The same may be said of all the numerous cor- porations which have been from time to time created by various acts of the legislature ; all of them enjoying the power which is expressly bestowed upon them, and perhaps, in all instances where the act is silent, possessing, by necessary implication, the authority which is requisite to execute the purposes of their creation." "It will not do to apply the strict principles of law respecting corporations in all cases to these aggregate bodies which are created by statute in this Commonwealth. By the several statutes which have been passed respecting school dis- tricts, it is manifest that the legislature has supposed that a division of towns, for the purpose of maintaining schools, will promote the important object of general education ; and this valuable object of legislative care seems to require, in construing their acts, that a liberal view should be had to the end to be effected." 1 Following out this view, the courts of the New England States have held, that when judgments are recovered against towns, parishes, and school districts, any of the property of private owners within the municipal division is liable to be taken for their discharge. The reasons for this doctrine, and the custom upon which it is founded, are thus stated by the Supreme Court of Connecticut : "We know that the relation in which the members of munici- pal corporations in this State have been supposed to stand, in respect to the corporation itself, as well as to its creditors, has elsewhere been considered in some respects peculiar. We have treated them, for some purposes, as parties to corporate proceed- ings, and their individuality has not been considered as merged in their corporate connection. Though corporators, they have been holden to be parties to suits by or against the corporation, and individually liable for its debts. Heretofore this has not been doubted as to the inhabitants of towns, located ecclesiastical societies, and school districts. 1 School District v. Wood, 13 Mass. 192, 197. 350 CONSTITUTIONAL LIMITATIONS. [CH. VIII. " From a recurrence to the history of the law on this subject, we are persuaded that the principle and usage here recognized and followed, in regard to the liability of the inhabitants of towns and other communities, were very early adopted by our ancestors. And whether they were considered as a part of the common law of England, or originated here, as necessary to our state of society, it is not very material to inquire. We think, however, that the principle is not of domestic origin, but to some extent was operative and applied in the mother country, especially in cases where a statute fixed a liability upon a municipality which had no corporate funds. The same reasons and necessity for the application of such a principle and practice existed in both coun- tries. Such corporations are of a public and political character; they exercise a portion of the governing power of the State. Statutes impose upon them important public duties. In the per- formance of these, they must contract debts and liabilities, which can only be discharged by a resort to individuals, either by tax- ation or execution. Taxation, in most cases, can only be the result of the voluntary action of the corporation, dependent upon the contingent will of a majority of the corporators, and upon their tardy and uncertain action. It affords no security to cred- itors, because they have no power over it. Such reasons as these probably operated with our ancestors in adopting the more effi- cient and certain remedy by execution, which has been resorted to in the present case, and which triey had seen to some extent in operation in the country whose laws were their inheritance. "The plaintiff would apply to these municipal or quasi corpo- rations the close principles applicable to private corporations. But inasmuch as they are not, strictly speaking, corporations, but only municipal bodies, without pecuniary funds, it will not do to apply to them literally, and in all cases, the law of corporations. 1 '"The individual liability of the members of quasi corporations, though not expressly adjudged, was very distinctly recognized in the case of Russell v. The Men of Devon. 2 It was alluded to as a known principle in the case of the Attorney-General v. The City of Exeter, 3 applicable as well to cities as to hundreds and parishes. That the rated inhabitants of an English parish are considered as the real parties to suits against the parish is now supposed to be well settled ; and so it was decided in the cases of The King v. The Inhabitants of Woburn, 4 and The King v. The 1 School District v. Wood, 13 Mass. 8 2 Russ. 45. 192. * 10 East, 395. * 2 Term Rep. 660. OH. VIII.] THE GRADES OF MUNICIPAL GO VEHEMENT. 351 Inhabitants of Hard wick. 1 And, in support of this principle, reference was made to the form of the proceedings ; as that they are entitled ' against the inhabitants,' . Kemper, 55 111. 316 ; Sutton v. Board, 41 Miss. 236 ; Cooley v. Freeholders, 27 N. J. 415 ; Bigelow v. Randolph, 14 Gray, 541; Symonds v. Clay Co., 71 111. 355; People v. Young, 72 111. 411 ; Frazer v. Lewiston, 76 Me. 531 ; Altnow v. Sibley, 30 Minn. 186, 14 N. W. 877 ; Yeager v. Tippecanoe, 81 Ind. 46 ; Abbettr. Com'rs Johnson Co., 114 Ind. 61, 16 N E. 127. These cases follow the leading English case of Russell v. Men of Devon, 2 T. R. 667. A county is not liable for obstruct- ing a river: White Star Co. v. Gordon Co., 81 Ga. 47, 7 S. E. Rep. 231 ; nor for failure of its treasurer to pay to city money belonging to the latter. Mar- quette Co. v. Ishpeming Treas., 49 Mich. 244, 13 N. W. 609. In the very carefully considered case of Eastman v. Meredith, 36 N. H. 284, it was decided, on the prin- ciple above stated, that if a building erected by a town for a town-house is so imperfectly constructed that the flooring gives way at the annual town-meeting, and an inhabitant and legal voter, in at- tendance on the meeting, receives thereby a bodily injury, he cannot maintain an action against the town to recover dam- ages for this injury. The case is carefully distinguished from those where corpora- tions have been held liable for the negli- gent use of their own property by means of which others are injured. The familiar maxim that one shall so use his own as not to injure that which belongs to an- other is of general application. A similar ruling was made after careful considera- tion in a case where a child was injured by the unsafe condition of a school build- ing which a city was obliged to maintain. The duty being one to the public imposed by law, there is no liability in the ab- sence of statute. Hill v. Boston, 122 Mass. 344. So if the duty is assumed under a general law but not expressly imposed. Wixon v. Newport, 13 R. 1. 454. See Wild v. Paterson, 47 N. J. L. 406, 1 Atl. 490, and cases supra, p. 306. 356 CONSTITUTIONAL LIMITATIONS. [CH. VIIL control of corporate property; and special authority is conferred to make use of the public highways for the special and peculiar convenience of the citizens of the municipality in various modes not permissible elsewhere. The grant hy the State to the muni- cipality of a portion of its sovereign powers, and their acceptance for these beneficial purposes, is regarded as raising an implied promise, on the part of the corporation, to perform the corporate duties, and as imposing the duty of performance, not for the benefit of the State merely, but for the benefit of every individual interested in its performance. 1 In this respect these corporations 1 Selden, J., in Weet v. Brockport, 16 N. Y. 161, note. See also Mayor of Lyme v. Turner, Cowp. 86 ; Henley v. Lyme Regis, 5 Bing. 91 ; s. c. in error, 3 B. & Adol. 77, and 1 Bing. N. C. 222 ; Mayor, &c. of New York v. Furze, 3 Hill, 612 ; Rochester White Lead Co. v. Rochester, 3 N. Y. 463 ; Hutson v. Mayor, &c. of New York, 9 N Y. 163; Conrad v. Ithaca, 16 N. Y. 158 ; Mills v. Brooklyn, 32 N. Y. 489; Barton v. Syracuse, 36 N. Y. 54; Lee v. Sandy Hill, 40 N. Y. 442 ; Clark v. Washington, 12 Wheat. 40; Riddle v. Proprietors of Locks, &c., 7 Mass. 169 ; Bigelow v. Inhabitants of Randolph, 14 Gray, 541 ; Mears v. Commissioners of Wilmington, 9 Ired. 73; Browning v. Springfield, 17 111. 143; Bloomington v. Bay, 42 111. 503 ; Springfield v. LeClaire, 49 111. 476 ; Peru v. French, 55 111. 317 ; Pittsburg v. Grier, 22 Pa. St. 54 ; Jones v. New Haven, 34 Conn. 1 ; Stackhouse v. Lafayette, 26 Ind. 17 ; Brinkrneyer v. Evansville, 29 Ind. 187; Sawyer v. Corse, 17 Gratt. 230; Richmond v. Long, 17 Gratt. 375 ; Noble v. Richmond, 31 Gratt. 271, 31 Am. Rep. 726; Blake v. St. Louis, 40 Mo. 569 ; Scott v. Mayor, &c. of Man- chester, 37 Eng. L. & Eq. 495; Smoot r. Wetumpka, 24 Ala. 112; Albrittin v. Huntsville, 60 Ala. 486, 31 Am. Rep. 46; Detroit v. Corey, 9 Mich. 165; Rusch v. Davenport, 6 Iowa, 443; Commissioners v. Duckett, 20 Md. 468 ; Covington v. Bryant, 7 Bush, 248; Weightman v. Washington, 1 Black, 39; Chicago v. Rob- bins, 2 Black, 418 ; Nebraska v. Campbell, 2 Black, 590; Galveston v. Posnainsky, 62 Tex. 118 ; Hutchinson v. Olympia, 2 Wash. 314; Kellogg v. Janesville, 34 Minn. 132, and see Kent v. Worthing Local Board, L. R. 10 Q. B. D. 118. The same rule applies to cities existing under a general law. Boulder v. Niles, 9 Col. 415, 12 Pac. 632. A city is liable for a defect in a sidewalk maintained by it though in fact outside the highway line : Mansfield v. Moore, 124 111. 133, 16 N. E. 246 ; for negligence of an abutter who for his own purposes renders a sidewalk un- saff, if it has notice. Philadelphia v. Smith, Pa. , 16 Atl. Rep. 493. See Dooley v. Sullivan, 112 Ind. 451, 14 N. E. 566. ^That legislature may exempt mu- nicipal corporations from such liability, see Wilmington v. Ewing, 2 Penn., Del. 66, 43 Atl. 305, 45 L. R. A. 70.] In the case of Detroit r. Blackeby, 21 Mich. 84, this whole subject is considered at length ; and the court (one judge dissenting) deny the soundness of the principle stated in the text, and hold that municipal corpo- rations existing under special charters are not liable to individuals for injuries caused by neglect to perform corporate duties, unless expressly made so by stat- ute. This case is referred to and dis- sented from in Waltham i?. Kemper, 55 111. 347, and approved in Navasota r. Pearce, 46 Tex. 525 ; Young v. Charles- ton, 20 S. C. 116, and Arkadelphia r. Windham, 49 Ark. 139, 4 S. W. 450. The rule in California is similar. Chope v. Eureka, 78 Cal. 588, 21 Pac. 364. Where a street is roped off by order of a court, a city is not liable for an injury caused thereby. Belvin v. Richmond, 85 Va. 574, 8 S. E. Rep. 378. In Mur- taugh v. St. Louis, 44 Mo. 479, 480, Currier, J., says : " The general result of the adjudications seems to be this : When the officer or servant of a municipal cor- poration is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such officer or servant, the corporation is liable, as in the case of private corporations or CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 357 are looked upon as occupying the same position as private cor- porations, which, having accepted a valuable franchise, on con- dition of the performance of certain public duties, are held by the acceptance to contract for the performance of those duties. In the case of public corporations, however, the liability is contingent on the law affording the means of performing the duty, which, in some cases, by reason of restrictions upon the power of taxation, they might not possess. But, assuming the corporation to be clothed with sufficient power by the charter to that end, the liability of a city or village, vested with control of its streets, for any neglect to keep them in repair, or for any improper construction, has been determined in many cases. 1 And a similar liability would exist in other cases where the same reasons would be applicable. But if the ground of the action is the omission by the corpora- tion to repair a defect, it would seem that notice of the defect parties ; but when the acts or omissions complained of were done or omitted in the exercise of a corporate franchise con- ferred upon the corporation for the public good, and not for the private corporate advantage, then the corporation is not liable for the consequences of such acts or omissions." Citing Bailey v. New York, 3 Hill, 531 ; Martin v. Brooklyn, 1 Hill, 550 ; Richmond v. Long's Adm'r, 17 Gratt. 375; Sherbourne v. Yuba Co., 21 Cal. 113; Dargan v. Mobile, 31 Ala. 469; Stewart v. New Orleans, 9 La. Ann. 461 ; Profiler v. Lexington, 13 B. Monr. 659. And as to exemption from liability in exercising or failing to exercise legisla- tive authority, see ante, pp. 301-303, and notes. As to who are to be regarded as municipal officers, see Maxmilian v. New York, 62 N. Y. 160, 20 Am. Rep. 468, and cases there cited. [JUpon remedy over by municipality against wrongdoer after payment of damages for injury done by him or through his negligence, see Wash- ington Gas Light Co. v. District of Co- lumbia, 161 U. S. 316, 16 Sup. Ct. Rep. 664, and note to s. c. in 40 L. ed. U. S. 712.] 1 Weet v. Brockport, 16 N. Y. 161, note; Hickok v. Plattsburg, 16 N. Y. 161; Nelson v. Canisteo, 100 N. Y. 89; Morey v. Newfane, 8 Barb. 645 ; Brown- ing v. Springfield, 17 111. 143; Hyatt v. Rondout, 44 Barb. 385; Lloyd v. Mayor, &c. of New York, 5 N. Y. 3~69 ; Rusch v. Davenport, 6 Iowa, 443. And see Dillon, Mun. Corp. c. 18, and the cases cited in the preceding note. fJSee also Gibson v. Huntington, 38 W. Va. 177, 18 S. E. 447, 22 L. R. A. 661, and note/] The cases of Weet v. Brockport, and Hickok v. Platts- burg, were criticised by Mr. Justice Mar- vin, in the case of Peck i?. Batavia, 32 Barb. 634, where, as well as in Cole v. Medina, 27 Barb. 218, he held that a village merely authorized to make and re- pair sidewalks, but not in terms absolutely and imperatively required to do so, had a discretion conferred upon it in respect to such walks, and was not responsible for a refusal to enact ordinances or by-laws in relation thereto ; nor, if it enacted such ordinances or by-laws, was it liable for damages arising from a neglect to enforce them. The doctrine that a power thus conferred is discretionary does not seem consistent with the ruling in some of the other cases cited, and is criticised in Hyatt v. Rondout, 44 Barb. 385. But see ante, pp. 301-303, and notes. Calling public meetings for political or philanthropic pur- poses is no part of the business of a muni- cipal corporation, and it is not liable to one who, in lawfully passing by where the meeting is held, is injured by the dis- charge of a cannon fired by persons con- cerned in the meeting. Boyland v. Mayor, &c. of New York, 1 Sandf. 27. The noise of a cannon fired outside a highway is not a defect in the way for which a city is liable. Lincoln >. Boston, 148 Mass. 517, 20 N. E. 329. 358 CONSTITUTIONAL LIMITATIONS. [CH. VIII. should be brought home to the corporation, or to officers charged with some duty respecting the streets, or that facts should appear sufficient to show that, by proper vigilance, it must have been known. 1 On the other hand, if the injury has happened in con- sequence of defective construction, notice is not essential, as the facts must be supposed to have been known from the first. 2 In regard to all those powers which are conferred upon the corporation, not for the benefit of the general public, but of the corporators, such as the power to construct works to supply a city with water, or gas-works, or sewers, and the like, the cor- poration is held to a still more strict liability, and is made to respond in damages to the parties injured by the negligent man- ner in which the work is constructed, or guarded, even though, under its charter, the agents for the construction are not chosen or controlled by the corporation, and even where the work is required by law to be let to the lowest responsible bidder. In Bailey v. Mayor, Conn. 351, 11 Atl. 350. Notice of 3 3 Hill, 531 ; 8. c. in error, 2 Demo, 433. CH. VIII.] THE GIJADES OF MUNICIPAL GOVERNMENT. 359 diligence in the selection of agents, the conclusion contended for would seem to follow. They would then be entitled to all the immunities of public officers ch'arged with a duty which, from its nature, could not be executed without availing themselves of the services of others ; and the doctrine of respondeat superior does not apply to such cases. If a public officer authorize the doing of an act not within the scope of his authority, or if he be guilty of negligence in the discharge of duties to be performed by him- self, he will be held responsible; but not for the misconduct or malfeasance of such persons as he is obliged to employ. But this view cannot be maintained on the facts before us. The powers conferred by the several acts of the legislature, authoriz- ing the execution of this great work, are not, strictly and legally speaking, conferred for the benefit of the public; the grant is a special, private franchise, made as well for the private emolu- ment and advantage of the city as for the public good. The State, in its sovereign character, has no interest in it. It owns no part of the work. The whole investment, under the law, and the revenue and profits to be derived therefrom, are a part of the private property of the city, as much so as the lands and houses belonging to it situate within its corporate limits. "The argument of the defendants' counsel confounds the powers in question with those belonging to the defendants in their character as a municipal or public body, such as are granted exclusively for public purposes to counties, cities, towns, and villages, where the corporations have, if I may so speak, no private estate or interest in the grant. "As the powers in question have been conferred upon one of these public corporations, thus blending, in a measure, those conferred for private advantage and emolument with those already possessed for public purposes, there is some difficulty, I admit, in separating them in the mind, and properly distin- guishing the one class from the other, so as to distribute the responsibility attaching to the exercise of each. " But the distinction is quite clear and well settled, and the process of separation practicable. To this end, regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political, or mu- nicipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a com- mon benefit therefrom, the corporation quo hoc is to be regarded as a private company. It stands on the same footing as would 360 CONSTITUTIONAL LIMITATIONS. [CH. VIII. any individual or body of persons upon whom the like special franchises had been conferred. 1 " Suppose the legislature, instead of the franchise in question, had conferred upon the defendants banking powers, or a charter for a railroad leading into. the city, in the usual manner in which such powers are conferred upon private companies, could it be doubted that they would hold them in the same character, and be subject to the same duties and liabilities? I cannot doubt but they would. These powers, in the eye of the law, would be entirely distinct and separate from those appertaining to the de- fendants as a municipal body. So far as related to the charter thus conferred, they would be regarded as a private company, and be subject to the responsibilities attaching to that class of institutions. The distinction is well stated by the Master of the Rolls in Moodalay v. East India Co., 2 in answer to an objection made by counsel. There the plaintiff had taken a lease from the company, granting him permission to supply the inhabitants of Madras with tobacco for ten years. Before the expiration of that period, the company dispossessed him, and granted the privilege to another. The plaintiff, preparatory to bringing an action against the company, filed a bill of discovery. One of the objections taken by the defendants was, that the removal of the plaintiff was incident to their character as a sovereign power, the exercise of which could not be questioned in a bill or suit at law. The Master of the Rolls admitted that no suit would lie against a sovereign power for anything done in that capacity ; but he denied that the defendants came within the rule. ' They have rights,' he observed, ' as a sovereign power; they have also duties as individuals; if they enter into bonds in India, the sums secured may be recovered here. So in this case, as a private company, they have entered into a private contract, to which they must be liable.' It is upon the like distinction that municipal corporations, in their private character as owners and occupiers of lands and houses, are regarded in the same 1 Citing Dartmouth College r. Wood- Richmond v. Long, 17 Gratt. 375; Atkins ward, 4 Wheat 668, 672; Philips v. Bury, v. Randolph, 31 Vt. 226; Small v. Dan- 1 Ld. Raym. 8, 2 T. R. 352; Allen v. Me- ville, 51 Me. 359; Oliver v. Worcester, Keen, 1 Sumn. 297 ; People v. Morris, 13 102 Mass. 489, 3 Am. Rep. 485; Philadel- Wend. 331-338, 2 Kent's Com. 275 (4th pliia v. Fox, 64 Pa. St. 169 ; Detroit v. ed.) ; United States Bank v. Planters' Corey, 9 Mich. 165; People v. Hurlbut, Bank, 9 Wheat. 907; Clark r. Corp. of 24 Mich. 44, 9 Am. Rep. 103; Western Washington, 12 Wheat. 40; Moodalay v. College v. Cleveland, 12 Ohio, N. 8. 375; East India Co , 1 Brown's Ch. R. 469. Hewinson v. New Haven, 37 Conn. 475, See, in addition to the cases cited by the 9 Am. Rep. 342; People v. Batchellor, 53 court, Touchard v. Touchard, 5 Cal. 306; N. Y. 128; Welsh v. St. Louis, 73 Mo. 71. Gas Co. v. San Francisco, 9 Cal. 453; 2 1 Brown's Ch. R. 469. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 361 light as individual owners and occupiers, and dealt with accord- ingly. As such, they are bound to repair bridges, highways, and churches; are liable to poor rates; and, in a word, to the dis- charge of any other duty or obligation to which an individual owner would be subject." 1 In Storrs v. City of Utica, 2 it was held that a city, owing to the public the duty of keeping its streets in a safe condition for travel, was liable to persons receiving injury from the neglect to keep proper lights and guards at night around an excavation which had been made for the construction of a sewer, notwith- standing it had contracted for all proper precautions with the persons executing the work. And in the City of Detroit v. Corey 3 the corporation was held liable in a similar case, not- withstanding the work was required by the charter to be let to the lowest bidder. Manning, !., in speaking to the point whether the contractors were to be considered as the agents of the city, so that the maxim respondeat superior should apply, says: "It is to be observed that the power under which they acted, and which made that lawful which would otherwise have been unlaw- ful, was not a power given to the city for governmental purposes, or a public municipal duty imposed on the city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city ; they belong to the city. The corporation and its corporators, the citzens, are alone interested in them ; the out- side public or people of the State at large have no interest in them, as they have in the streets of the city, which are public highways. " The donee of such a power, whether the donee be an individ- ual or a corporation, takes it with the understanding for such are the requirements of the law in the execution of the power 1 2 Inst. 703; Tlmrsfield v. Jones, Sir used for public purposes, the latter for T. Jones, 187 ; Rex v. Gardner, Cowp. 79; private purposes. While in the exercise Mayor of Lynn v. Turner, Cowp. 87 ; Hen- of the former, the corporation is a muni- ley v. Mayor of Lyme Regis, 5 Binsr. 91 ; cipal government, and while in the exer- s. c. in House of Lords, 1 Bing. N. C. 222. cise of the latter, is a corporate, legal in- See also Lloyd v. Mayor, &c. of New dividual." Ibid., per Foot, J. See upon York, 5 N. Y. 369; Commissioners v. this point also Western Fund Saving So- Duckett, 20 Md. 468. ' The corporation ciety v. Philadelphia, 31 Pa. St. 175; Louis- of the City of New York possesses two ville v. Commonwealth, 1 Duvall, 295 ; kinds of powers, one governmental and People v. Common Council of Detroit, public, and, to the extent they are held 28 Mich. 228; ante, pp. 335-337, and notes, and exercised, is clothed with sover- 2 17 N. Y. 104. eignty ; the other private, and, to the ex- 8 9 Mich. 165. Compare Mills v. Brook- tent they are held and exercised, is a legal lyn, 32 N. Y. 489 ; Jones v. New Haven, individual. The former are given and 34 Conn. 1. 362 CONSTITUTIONAL LIMITATIONS. [CH. VIII. that it shall be so executed as not unnecessarily to interfere with the rights of the public, and that all needful and proper measures will be taken, in the execution of it, to guard against accidents to persons lawfully using the highway at the time. He is indi- vidually bound for the performance of these obligations; he cannot accept the power divested of them, or rid himself of their performance by executing them through a third person as his agent. He may stipulate with the contractor for their per- formance, as was done by the city in the present case, but he cannot thereby relieve himself of his personal liability, or com- pel an injured party to look to his agent, instead of himself, for damages." And in answer to the objection that the contract was let to the lowest bidder, as the law required, it is shown that the provision of law to that effect was introduced for the benefit of the city, to protect it against frauds, and that it should not, therefore, relieve it from any liability. 1 1 See also Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; Grant v. City of Brooklyn, 41 Barb. 381 ; City of Buffalo v. Holloway, 14 Barb. 101, and 7 N. Y. 493 ; Lloyd v. Mayor, &c. of New York, 5 N. Y. 369 ; Delmonico v. Mayor, &c. of New York, 1 Sandf. 222; Barton v. Syracuse, 37 Barb. 292 ; Storrs v. Utica, 17 N. Y. 104 ; Springfield o. LeClaire, 4') 111. 47(5; Blake v. St. Louis, 40 Mo. 509; Baltimore c. Pendleton, 15 Md. 12 ; St. Paul v. Seitz, 3 Minn. 297 ; Denver v. Rhodes, 9 Col. 554, 13 Pac. 729 ; Wilson v. Wheeling, 19 W. Va. 323; Birmingham v. McCary, 84 Ala. 469, 4 So. 630 ; Logans- port i 1 . Dick, 70 Ind. 65 ; Brasso v. Buffalo, 90 N. Y. 679 ; Turner v. Newburgh, 109 N. Y. 301, 16 N. E. 344; Circleville v. Neuding, 41 Ohio St. 465; Jacksonville v. Drew, 19 Fla. 106; Joslyn v. Detroit, 74 Mich. 458, 42 N. W. 50; McCoull v. Manchester, 85 Va. 579, 8 S. E. 379 ; also numerous cases collected and classified in Dillon on Municipal Corpo- rations. But this doctrine seems not to obtain in Pennsylvania : School Dist. v. Fuess, 98 Pa. St. 600; Susquehanna Depot v. Simmons, 112 Pa. St. 384, 5 Atl. 434. If the injury arises from something not collateral to the work, the city is not liable, as where horses are frightened by the noise of blasting in an adjoining street: Herrington t;. Lansingburgh, 110 N. Y. 145, 17 N. E. 728; or a person is in- jured by the blasting. Blumb v. Kansas City, 84 Mo. 112; Murphy v. Lowell, 128 Mass. 396. Compare Joliet v. Harwood, 86 111. 110. A municipal corporation is not liable for neglect to devise and con- struct a proper system of drainage. Carr v. Northern Liberties, 35 Pa. St. 324. See ante, pp. 300, 301, and notes. Cities are not liable for the illegal conduct of offi- cials in the discharge of duty. Dillon, 774-778, and cases cited ; Grumbine v. Washington, 2 McArthur, 578. The following are some of the more recent cases in which the liability of mu- nicipal corporations for neglect of public duties has been considered : For nuisance in highway, sewer, &c. : Todd i'. Troy, 61 N. Y. 506; Masterton w. Mt. Vernon, 58 N. Y. 391 ; Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 592 ; Woodward v. Worcester, 121 Mass. 245; Chicago v. Brophy, 79 111. 277; Chicago i'. O'Brennan, 65 111. 160; Wil- kins o. Rutland, 61 Vt. 336, 17 Atl. Rep. 735 ; Kibele v. Philadelphia, 105 Pa. St. 41 ; Duffy v. Dubuque, 63 Iowa, 171, 18 N. W. 900: Kunz v. Troy, 104 N. Y. 344, 10 N. E. 442; Langan -v. Atchison, 35 Kan. 318, 11 Pac. 38. See Stock v. Bos- ton, 149 Mass. 410, 21 N. E. 871 ; Ray v. St. Paul, 40 Minn. 458, 42 N. W. 297. For invasion of private right or prop- erty : Sheldon v. Kahunazoo, 24 Mich. 383; Babcock v. Buffalo, 56 N. Y. 268; Lee v. Sandy Hill, 40 N. Y. 442 ; Phinizy v. Augusta, 47 Ga. 260 ; Helena v. Thomp- son, 29 Ark. 569 ; Kobs v. Minneapolis, 22 Minn. 159. For negligent construction CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 363 We have not deemed it important, in considering the subject embraced within this chapter, to discuss the various questions which might be suggested in regard to the validity of the pro- ceedings by which it is assumed in any case that a municipal corporation has become constituted. These questions are gen- erally questions between the corporators and the State, with which private individuals are supposed to have no concern. In proceedings where the question whether a corporaton exists or not arises collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color 'of law, and recognized by the State as such. Such a question should be raised by the State itself, by quo warranto or other direct proceeding. 1 And the rule, we apprehend, would be no Charleston, 16 W. Va. 282, 37 Am. Rep. 703 ; Cromarty v . Boston, 127 Mass. 329, 34 Am. Rep. 381 ; Sherwood v. Dist. Columbia, 3 Mackey, 276; Saulsbury v. Ithaca, 94 N. Y. 27 ; Pomfrey v. Saratoga, 104 N. Y. 459, 11 N. E. 43 ; Cloughessey v. Waterhury, 51 Conn. 405. For injury by limb falling from tree overhanging street : Jones v. New Haven, 34 Conn. 1. See Gubasko v. New York, 1 N. Y. Supp. 215. For injury by fall of an awning over sidewalk : Bohen r.Waseca, 32 Minn. 176, 19 N. W. 730 ; Larson v. Grand Forks, 3 Dak. 307, 19 N. W. 414. For failure to keep street in repair : Gorham v. Coopers- town, 59 N. Y. 660 ; Hines v. Lockport, 50 N. Y.236; Bell r.West Point, 51 Miss. 262; Chicago v. McGiven, 78 111. 347; Alton v. Hope, 68 111. 167 ; Centralia v. Scott, 59 111. 129 ; Winbigler v. Los An- geles, 45 Cal. 36 ; Market v. St. Louis, 56 Mo. 189 ; Willey v. Belfast, 61 Me. 669 ; Bill v. Norwich, 39 Conn. 222 ; Lindholm v. St. Paul, 19 Minn. 245; Shartle r. Minneapolis, 17 Minn. 308; O'Leary v. Mankato, 21 Minn. 65 ; Griffin v. Wil- liamstown, 6 W. Va. 312. For failure to keep sewers in repair.: Munn v. Pitts- burg, 40 Pa. St. 364; Jersey City . Kiernan, 50 N. J. L 246, 13 Atl. 170. 1 State v. Carr, 5 N. H. 367 ; Presi- dent, &c. of Mendota v. Thompson, 20 111. 197 ; Hamilton v. President, &c. of Carthage, 24 111. 22. These were prose- cutions by municipal corporations for re- covery of penalties imposed by by-laws, and where the plea of nul tiel corporation was interposed and overruled. See also Kayer v. Bremen, 16 Mo. 88 ; Kettering v. Jacksonville, 50 111. 39 ; Bird v. Per- of sewers : Nims v. Troy, 59 N. Y. 500; Van Pelt v. Davenport, 42 Iowa, 308; Rowe v. Portsmouth, 56 N. H. 291 ; Ash- ley v. Port Huron, 35 Mich. 296, 20 Am. Rep. 628, note ; Noonan v. Albany, 79 N. Y. 470, 35 Am. Rep. 540 ; Chicago v. Hesing, 83 111. 204, 25 Am. Rep. 378 ; Post v. Boston, 141 Mass. 189, 4 N. E. 815. For negligence in construction and improve- ment of streets : Pekin v. Winkel, 77 111. 66 ; Bloomington v. Brokaw, 77 111. 194 ; Pekin v. Brereton, 67 111. 477 ; Chicago v. Lan glass, 66 111. 361 ; Mead v. Derby, 40 Conn. 205 ; Milledgeville v. Cooley, 65 Ga. 17; Prentiss v. Boston, 112 Mass. 43; Saltmarsh v. Bow, 66 N. H. 428; Sewall v. St. Paul, 20 Minn. 511; Kent- worthy v. Ironton, 41 VVis. 647 ; Hoyt v. Hudson, 41 Wis. 105; Talbot v. Taunton, 140 Mass. 552, 5 N. E. 616; Gray v. Dan- bury, 54 Conn. 674, 10 Atl. 198. For de- fective sidewalk : Springfield v. Doyle, 76 111. 202; Champaign c. Pattison, 50 111. 62 ; Townsend v. Des Moines, 42 Iowa, 657; Rice v. Des Moines, 40 Iowa, 638; McAuley v. Boston, 113 Mass. 503; Har- riman v. Boston, 114 Mass. 241 ; Morse v. Boston, 109 Mass. 446 ; Hanscom v. Boston, 141 Mass. 242, 5 N. E. 249; McLaughlin v. Corry, 77 Pa. St. 109; Boucher v. New Haven, 40 Conn. 456 ; Congdon r. Norwich, 37 Conn. 414 ; Stewart v. Ripon, 38 Wis. 584; Chap- man r. Macon, 55 Ga. 566 ; Moore v. Minneapolis, 19 Minn. 300; Furnell r. St. Paul, 20 Minn. 117 ; Omaha v. Olmstead, 6 Neb. 446 ; Higert v. Greencastle, 43 Ind. 574 ; Providence v. Clapp, 17 How. 161; Smith v. Leavenworth, 15 Kan. 81 ; Atchison v. King, 9 Kan. 550; Gillison v. 364 CONSTITUTIONAL LIMITATIONS. [CH. VIII. different, if the constitution itself prescribed the manner of incorporation. Even in such a case, proof that the corporation was acting as such, under legislative action, would be sufficient evidence of right, except as against the State ; and private parties could not enter upon any question of regularity. And the State itself may justly be precluded, on the principle of estoppel, from raising such an objection, where there has been long acquiescence and recognition. 1 kins, 33 Mich. 28 ; Worley v. Harris, 82 Ind. 493. 1 In People v. Maynard, 15 Mich. 463, 470, where the invalidity of an act organiz- ing a county, passed several years before, was suggested on constitutional grounds, Campbell, J., says : " If this question had been raised immediately, we are not pre- pared to say that it would have been alto- gether free from difficulty. But inasmuch as the arrangement there indicated had been acted upon for ten years before the recent legislation, and had been recog- nized as valid by all parties interested, it cannot now be disturbed. Even in pri- vate associations the acts of parties inter- ested may often estop them from relying on legal objections, which might have availed them if not waived. But in pub- lic affairs, where the people have organ- ized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as on the regu- larity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such gen- eral acquiescence, the corporate stand- ing of the community can no longer be open to question. See Rumsey v. People, 19 N. Y. 41; and Lanning v. Carpenter, 20 N. Y. 474, where the effect of the in- validity of an original county organiza- tion is very well considered in its public and private bearings. There have been direct legislative recognitions of the new division on several occasions. The exer- cise of jurisdiction being notorious and open in all such cases, the State as well as county and town taxes being all levied under it, there is no principle which could justify any court, at this late day, in going back to inquire into the regularity of the law of 1857." A similar doctrine has been applied in support of the official character of persons who, without au- thority of law, have been named for mu- nicipal officers by State legislation, and whose action in such offices has been acquiesced in by the citizens or authori- ties of the municipality. See People v. Salomon, 54 111. 51 ; People v. Lothrop, 24 Mich. 235. Compare Kimball v. Al- corn, 45 Miss. 151. But such acquies- cence could not make them local officers and representatives of the people for new and enlarged powers subsequently at- tempted to be given by the legislature. People v. Common Council of Detroit, 28 Mich. 228. Nor in respect to powers not purely local. People v. Springwells, 25 Mich. 153. And see People v. Albertson, 65 N. Y. 50. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 365 CHAPTER IX. PROTECTION TO PERSON AND PROPERTY UNDER THE CONSTITUTION OF THE UNITED STATES. As the government of the United States was to be one of enu- merated powers, it was not deemed important by the framers of the Constitution that a bill of rights should be incorporated among its provisions. If, among the powers conferred, there was none which would authorize or empower the government to deprive the citizen of any of those fundamental rights which it is the object and the duty of government to protect and defend, and to insure which is the sole purpose of bills of rights, it was thought to be at least unimportant to insert negative clauses in that instrument, inhibiting the government from assuming any such powers, since the mere failure to confer them would leave all such powers be- yond the sphere of its constitutional authority. And, as Mr. Ham- ilton argued, it might seem even dangerous to do so. " For why declare that things shall not be done which there is no power to do ? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed ? I will not contend that such a pro- vision would confer a regulating power ; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge, with a semblance of rea- son, that the Constitution ought not to be charged with the ab- surdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the nu- merous handles which would be given to the doctrine of construc- tive powers, by the indulgence of an injudicious zeal for bills of rights." i It was also thought that bills of rights, however important under a monarchical government, were of no moment in a consti- tution of government framed by the people for themselves, and under which public affairs were to be managed by means of agen- 1 Federalist, No. 84. 366 CONSTITUTIONAL LIMITATIONS. [CH. IX. cies selected by the popular choice, and subject to frequent change by popular action. " It has been several times truly remarked, that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. 'Such was Magna Charta, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right, assented to by Charles the First, in the beginning of his reign. Such also was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of Parliament, called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people sur- render nothing; and, as they retain everything, they have no need of particular reservations. ' WE, THE PEOPLE OP THE UNITED STATES, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.' This is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government." 1 Reasoning like this was specious, but it was not satisfactory to many of the leading statesmen of that day, who believed that " the purposes of society do not require a surrender of all our rights to our ordinary governors ; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them ; that there are also certain fences which experience has proved pecu- liarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove." 2 And these governing powers will be no less disposed to be aggressive when chosen by majorities than when selected by the accident of birth, or at the will of privileged classes. Indeed if, during the long struggle for constitutional liberty in England, covering the whole of the seventeenth century, importance was justly attached to a distinct declaration and enumeration of individual rights on the part of the government, 3 Federalist, No. 84, by Hamilton. 2 Jefferson's Works, Vol. HI. p. 201. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 367 when it was still in the power of the governing authorities to infringe upon or to abrogate them at any time, and when, conse- quently, the declaration could possess only a moral force, a similar declaration would appear to be of even more value in the Consti- tution of the United States, where it would constitute authoritative law, and be subject to no modification or repeal, except by the people themselves whose rights it was designed to protect, nor even by them except in the manner b} r the Constitution provided. 1 The want of a bill of rights was, therefore, made the ground of a decided, earnest, and formidable opposition to the confirmation of the national Constitution by the people ; and its adoption was 1 Mr. Jefferson sums up the objections to a bill of rights in the Constitution of the United States, and answers them as follows : " 1. That the rights in question are reserved by the manner in which the federal powers are granted. Answer : A constitutive act may certainly be so formed as to need no declaration of rights. The act itself has the force of a declaration, as far as it goes; and if it goes to all material points, nothing more is wanting. In the draft of a constitution which I had once a thought of proposing in Virginia, and printed afterwards, I en- deavored to reach all the great objects of public liberty, and did not mean to add a declaration of rights. Probably the ob- ject was imperfectly executed; but the deficiencies would have been supplied by others in the course of discussion. But in a constitutive act which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new federal Constitution. This instrument forms us into one State, as to certain objects, and gives us a legislative and executive body for these objects. It should therefore guard us against their abuses of power, within the field sub- mitted to them. 2. A positive declara- tion of some essential rights could not be obtained in the requisite latitude. Answer : Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can. 3. The limited powers of the federal government, and jealousy of the subordinate governments, afford a security, which exists in no other instance. Answer: The first member of this seems resolvable into the first objec- tion before stated. The jealousy, of the subordinate governments is a precious re- liance. But observe that those govern- ments are only agents. They must have principles furnished them whereon to found their opposition. The declaration of rights will be the text whereby they will try all the acts of the federal gov- ernment. In this view it is necessary to the federal government also ; as by the same text they may try the oppo- sition of the subordinate governments. 4. Experience proves the inefficacy of a bill of rights. True. But though it is not absolutely efficacious, under all circum- stances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the inconve- niences which attend a declaration of rights, and those which attend the want of it. The inconveniences of the declara- tion are, that it may cramp government in its useful exertions. But the evil of this is short-lived, moderate, and repara- ble. The inconveniences of the want of a declaration are permanent, afflictive, and irreparable. They are in constant pro- gression from bad to worse. The execu- tive, in our governments, is not the sole, it is scarcely the principal, object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for many years. That of the executive will come in its turn ; but it will be at a remote period." Letter to Madison, March 16, 1789, Jefferson's Works, Vol. III. p. 4. See also same volume, pp. 13 and 101 ; Vol. II. pp. 829, 358. 368 CONSTITUTIONAL LIMITATIONS. [CH. IX. only secured in some of the leading States in connection with the recommendation of amendments which should cover the ground. 1 The clauses inserted in the original instrument, for the protec- tion of person and property, had reference mainly to the action of the State governments, and were made limitations upon their power. The exceptions embraced a few cases only, in respect to which the experience of both English and American history had forcibly demonstrated the tendency of power to abuse, not when wielded by a prince only, but also when administered by the agencies of the people themselves. Bills of attainder were prohibited to be passed, either by the Congress 2 or by the legislatures of the several States. 3 Attain- der, in a strict sense, means an extinction of civil and political rights and capacities ; and at the common law it followed, as of course, on conviction and sentence to death for treason ; and, in greater or less degree, on conviction and sentence for the different classes of felony. A bill of attainder was a legislative conviction for alleged crime, with judgment of death. Such convictions have not been uncom- mon under other governments, and the power to pass these bills has been exercised by the Parliament of England at some periods in its history, under the most oppressive and unjustifiable circum- stances, greatly aggravated by an arbitrary course of procedure, which had few of the incidents of a judicial investigation into alleged crime. For some time before the American Revolution, however, no one had attempted to defend it as a legitimate exer- cise of power ; and if it would be unjustifiable anywhere, there were many reasons why it would be specially obnoxious under a free government, and why consequently its prohibition, under the existing circumstances of our country, would be a matter of more than ordinary importance. Every one must concede that a legis- lative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and im- partiality a criminal charge, especially in those cases in which the popular feeling is strongly excited, the very class of cases most likely to be prosecuted by this mode. And although it would be conceded that, if such bills were allowable, they should properly be presented only for offences against the general laws 1 For the various recommendations 2 Constitution of United States, art. 1, by Massachusetts, South Carolina, New 9. Hampshire, Virginia, New York, North 3 Constitution of United States, art. 1, Carolina, and Rhode Island, see 1 Elliott's 10. Debates, 322-334. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 369 of the land, and be proceeded with on the same full opportunity for investigation and defence which is afforded in the courts of the common law, yet it was remembered that in practice they were often resorted to because an obnoxious person was not subject to punishment under the general law, 1 or because, in proceeding against him by this mode, some rule of the common law requiring a particular species or degree of evidence might be evaded, and a conviction secured on proofs that a jury would not be suffered to accept as overcoming the legal presumption of innocence. Whether the accused should necessarily be served with process ; what degree or species of evidence should be required ; whether the rules of law should be followed, either in determining what constituted a crime, or in dealing with the accused after convic- tion, were all questions which would necessarily address them- selves to the legislative discretion and sense of justice ; and the very qualities which are essential in a court to protect individuals on trial before them against popular clamor, or the hate of those in power, were precisely those which were likely to prove weak or wanting in the legislative body at such a time. 2 And what could be more obnoxious in a free government than the exercise of such a power by a popular body, controlled by a mere majority, fresh from .the contests of exciting elections, and quite too apt, under the most favorable circumstances, to suspect the motives of their adversaries, and to resort to measures of doubtful propriety to secure party ends ? Nor were legislative punishments of this severe character the only ones known to parliamentary history ; there were others of a milder form, which were only less obnoxious in that the conse- quences were less terrible. Those legislative convictions which 1 Cases of this description were most ble in barbarity as possible, the list of numerous during the reign of Henry the proscribed was carefully kept secret VIII., and among the victims was Crom- until after the time fixed for their appear- well, who is said to have first advised ance ! Macaulay's History of England, that monarch to resort to this objection- c. 12. able proceeding. Even the dead were at- 2 This was equally true, whether the tainted, as in the case of Richard III., and attainder was at the command of the later, of the heroes of the Commonwealth, king, as in the case of Cardinal Pole's The most atrocious instance in history, mother, or at the instigation of the popu- however, only relieved by its weakness lace, as in the case of Wentworth, Earl of and futility, was the great act of attain- Strafford. The last infliction of capital der passed in 1688 by the Parliament of punishment in England under a bill of James II., assembled in Dublin, by which attainder was upon Sir John Fenwick, in between two and three thousand persons the Teign of William and Mary. It is were attainted, their property confiscated, worthy of note that in the preceding and themselves sentenced to death if they reign Sir John had been prominent in failed to appear at a time named. And, the attainder of the unhappy Monmouth. to render the whole proceeding as horri- Macaulay's History of England, c. 5. 24 370 CONSTITUTIONAL LIMITATIONS. [CH. IX. imposed punishments less than that of death were called bills of pains and penalties, as distinguished from bills of attainder ; but the constitutional provisions we have referred to were undoubt- edly aimed at any and every species of legislative punishment for criminal or supposed criminal offences ; and the term " bill of attainder " is used in a generic sense, which would include bills of pains and penalties also. 1 The thoughtful reader will not fail to discover, in the acts of the American States during the Revolutionary period, sufficient reason for this constitutional provision, even if the still more monitory history of the English attainders had not been so freshly remembered. Some of these acts provided for the forfeiture of the estates, within the Commonwealth, of those British subjects who had withdrawn from the jurisdiction because not satisfied that grievances existed sufficiently serious to justify the last resort of an oppressed people, or because of other reasons not satisfactory to the existing authorities ; and the only investigation provided for was an inquiry into the desertion. Others mentioned particu- lar persons by name, adjudged them guilty of adhering to the enemies of the State, and proceeded to inflict punishment upon them, so far as the presence of property within the Commonwealth would enable the government to do so. 2 These were the resorts of a time of extreme peril ; and if possible to justify them in a period of revolution, when everything was staked on success, and when the public safety would not permit too much weight to 1 Fletcher v. Peck, 6 C ranch, 87; Story counsel, and no recognized rule of evi- on Constitution, 1314; Cummings v. dence governed the inquiry." Per Miller, Missouri, 4 Wall. 277; Ex purte Garland, 4 J., in Ex parte Garland, 4 Wall. 333, Wall. 333; Drebman v. Stifle, 8 Wall. 388. 695, 601. "I think it will be found that 2 gee Belknap's History of New Hamp- the following comprise those essential shire, c. 26 ; 2 Ramsay's History of South elements of bills of attainder, in addition Carolina, 351 ; 8 Rhode Island Colonial to the one already mentioned [which was Records, 609; 2 Arnold's History of that they declared certain persons at- Rhode Island, 300, 449; Thompson v. tainted and their blood corrupted, so that Carr, 5 N. H. 510 ; Sleght v. Kane, 2 it had lost all heritable property], which Johns. Cas. 236 ; Story on Const. (4th distinguish them from other legislation, ed.) 1344, note. On the general subject and which made them so obnoxious to the of bills of attainder, one would do well statesmen who organized our govern- to consult, in addition to the cases in 4 ment: 1. They were convictions and Wallace, those of Blair v. Ridgeley, 41 sentences pronounced by the legislative Mo. 63 (where it was very elaborately department of the government, instead examined by able counsel) ; State v. of the judicial. 2. The sentence pro- Staten, 6 Cold. 233 ; Randolph v. Good, 3 nounced and the punishment inflicted W. Va. 551 ; Ex parte Law, decided by were determined by no previous law or Judge Erskine, in the United States Dis- fixed rule. 3. The investigation into the trict Court of Georgia, May Term, 1866; guilt of the accused, if an}' such were State v. Adams, 44 Mo. 570 ; Beirne v. made, was not necessarily or generally Brown, 4 W. Va. 72 ; Peerce . Carska- conducted in his presence or that of his don, 4 W. Va. 234. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 371 scruples concerning the private rights of those who were not aid- ing the popular cause, the power to repeat such acts under any- conceivable circumstances in which the country could be placed again was felt to be too dangerous to be left in the legislative hands. So far as proceedings had been completed under those acts, before the treaty of 1783, by the actual transfer of property, they remained valid and effectual afterwards ; but so far as they were then incomplete, they were put an end to by that treaty. 1 The conviction of the propriety of this constitutional provision has been so universal, that it has never been questioned, either in legislative bodies or elsewhere. Nevertheless, cases have recently arisen, growing out of the attempt to break up and destroy the government of the United States, in which the Supreme Court of the United States has adjudged certain action of Congress to be in violation of this provision and consequently void. 2 The action 1 Jackson v. Munson, 3 Caines, 137. 2 On the 2d of July, 1862, Congress, by " an act to prescribe an oath of office, and for other purposes," enacted that " hereafter every person elected or ap- pointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation : I, A B, do solemnly swear or affirm that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encourage- ment to persons engaged in armed hostility thereto ; that I have neither sought nor accepted, nor attempted to exercise, the functions of any office whatever, under any authority or pretended authority in hostility to the United States ; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do fur- ther swear or affirm that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same ; that I take this obligation freely, without any mental reservation or purpose of evasion ; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God." On the 24th of January, 1865, Congress passed a supplementary act as follows: "No per- son after the date of this act shall be ad- mitted to the bar of the Supreme Court of the United States, or at any time after the 4th of March next shall be admitted to the bar of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counsellor of such court, or shall be allowed to appear and to be heard in any such court, by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath" aforesaid. False swearing, under each of the acts, was made perjury. See 12 Stat- utes at Large, 502 ; 13 Statutes at Large, 424. In Ex parte Garland, 4 Wall. 333, a majority of the court held the second of these acts void, as partaking of the nature of a bill of pains and penalties, and also as being an ex post facto law. The act was looked upon as inflicting a punishment for past conduct ; the exaction of the oath being the mode provided for ascertaining the parties upon whom the act was in- tended to operate. See Drehman v. Stifle, 8 Wall. 595. The conclusion declared by the Supreme Court of the United States in Ex parte Garland had been previously reached by Judge Trigg, of the United States Circuit Court, in Matter of Bax- ter ; by Judge Busteed, of the District Court of Alabama, in Matter of Shorter et al. ; and by Judge Erskine, of the Dis- 372 CONSTITUTIONAL LIMITATIONS. [CH. IX. referred to was designed to exclude from practice in the United States courts all persons who had taken up arms against the government during the recent rebellion, or who had voluntarily given aid and encouragement to its enemies ; and the mode adopted to effect the exclusion was to require of all persons, be- fore they should be admitted to the bar or allowed to practise, an oath negativing any such disloyal action. This decision was not at first universally accepted as sound ; and the Supreme Courts of West Virginia and of the District of Columbia declined to fol- low it, insisting that permission to practise in the courts is not a right, but a privilege, and that the withholding it for any reason of State policy or personal unfitness could not be regarded as the infliction of criminal punishment. 1 The Supreme Court of the United States has also, upon the same reasoning, held a clause in the Constitution of Missouri, which, among other things, excluded all priests and clergymen from practising or teaching unless they should first take a similar oath of loyalty, to be void, overruling in so doing a decision of the Supreme Court of that State. 2 Ex post facto laws are also, by the same provisions of the national Constitution already cited, 3 forbidden to be passed, either by the States or by Congress. trict Court of Georgia, in Ex parte Law. An elector cannot be excluded from the right to vote on the ground of being a deserter who has never been tried and convicted as such. Huber c. Reily, 53 Pa. St. 112; McCafferty v. Guyer, 59 Pa. St. 109 , State o. Symonds, 57 Me. 148. See ante, p. 99, note. 1 See the cases Ex parte Magruder, American Law Register, Vol. VI. N. s. p. 292; and Ex parte Hunter, American Law Register, Vol. VI. N. 8. 410; 2 W. Va. 122 ; Ex parte Quarrier, 4 W. Va. 210. See also Cohen v. Wright, 22 Cal. 293. 2 Cummings v. Missouri, 4 Wall. 277. See also the case of State v. Adams, 44 Mo. 570, in which it was held that a legis- lative act declaring that the board of curators of St. Charles College had for- feited their office, was of the nature of a bill of attainder and void. The Missouri oath of loyalty was a very stringent one, and applied to electors, State, county, city and town officers, officers in any cor- poration, public or private, professors and teachers in educational institutions, attor- neys and counsellors, bishops, priests, deacons, ministers, elders, or other clergy- men of any denomination. The Supreme Court of Missouri had held this provision valid in the following cases : State v. Ga- resche, 36 Mo. 256, case of an attorney; State v. Cummings, 36 Mo. 263, case of a minister, reversed as above stated; State v. Bernoudy, 36 Mo. 279, case of the re- corder of St. Louis ; State v. McAdoo, 36 Mo. 452, where it is held that a certificate of election issued to one who failed to take the oath as required by the consti- tution was void. In Beirne v. Brown, 4 W. Va. 72, and Peerce v. Carskadon, 4 W. Va. 234, an act excluding persons from the privilege of sustaining suits in the courts of the State, or from proceedings for a rehearing, except upon their taking an oath that they had never been engaged in hostile measures against the govern- ment, was sustained. And see State v. Neal, 42 Mo. 119. Contra, Kyle v. Jenkins, 6 W. Va. 371 ; Lynch r. Hoffman, 7 W. Va. 553. The case of Peerce v. Carskadon was reversed in 16 Wall. 234, being held covered by the case of Cummings v. Mis- souri. 3 Constitution of United States, art. 1, 9 and 10. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 373 At an early day it was settled by authoritative decision, in opposition to what might seem the more natural and obvious meaning of the term ex post facto, that in their scope and pur- pose these provisions were confined to laws respecting criminal punishments, and had no relation whatever to retrospective legis- lation of any other description. And it has, therefore, been re- peatedly held, that retrospective laws, when not of a criminal nature, do not come in conflict with the national Constitution, unless obnoxious to its provisions on other grounds than their retrospective character. " The prohibition in the letter," says Chase, J., in the leading case, 1 " is not to pass any law concerning or after the fact ; but the plain and obvious meaning and intention of the prohibition is this : that the legislatures of the several States shall not pass laws after a fact done by a subject or citizen, which shall have relation to such fact, and punish him for having done it. The prohibition, considered in this light, is an additional bulwark in favor of the personal security of the subject, to protect his person from pun- ishment by legislative acts having a retrospective operation. I do not think it was inserted to secure the citizen in his private rights of either property or contracts. The prohibitions not to make anything but gold and silver coin a tender in payment of debts, and not to pass any law impairing the obligation of con- tracts, were inserted to secure private rights ; but the restriction not to pass any ex post facto law was to secure the person of the subject from injury or punishment, in consequence of such law. If the prohibition against making ex post facto laws was intended to secure personal rights from being affected or injured by such laws, and the prohibition is sufficiently extensive for that object, the other restraints I have enumerated were unnecessary, and therefore improper, for both of them are retrospective. " I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 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 committed. 3d. Every law that changes the pun^ ishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the of- fence, in order to convict the offender. All these and similar i Calder . Bull, 3 Dall. 386, 390. 374 CONSTITUTIONAL LIMITATIONS. [CH. IX. laws are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law ; the former only are prohibited. Every law that takes away or impairs rights vested, agreeably to existing laws, is retrospective and is gen- erally unjust, and may be oppressive ; and there is a good general rule, that a law should have no retrospect ; but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their com- mencement ; as statutes of oblivion or of pardon. They are cer- tainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto, within the prohibition that mollifies the rigor of the criminal law; but only those that create or aggravate the crime, or in- crease the punishment, or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time, or to save time from the statute of limitations, or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful, and the making an innocent action criminal, and punishing it as a crime. The expressions ex post facto laws are technical ; they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors." l 1 See also Fletcher v. Peck, 6 Cranch, 203. Before a right to an acquittal has 87; Ogden v. Saunders, 12 Wheat. 213; been "absolutely acquired by the com- Satterlee v. Mathewson, 2 Pet. 380; Wat- pletion of the period of limitation, that son v. Mercer, 8 Pet. 88 ; Charles River period is subject to enlargement or repeal Bridge v. Warren Bridge, 11 Pet. 420; without being obnoxious to the constitu- Carpenter v. Pennsylvania, 17 How. 456 ; tional prohibition." Com. v. Duffy, 96 Cummings.r. Missouri, 4 Wall. 277; Ex Pa. St. 506. [[A constitutional provision parte Garland, 4 Wall. 333 ; Baugher v. that crimes less than capital shall be tried Nelson, 9 Gill, 299; Woart v. Winnick, 3 by a jury of eight is ex post facto with N. H. 473 ; Locke v. Dane, 9 Mass. 360 ; regard to crimes committed before its Dash v. Van Kleek, 7 Johns. 477; Evans enactment. Thompson v. Utah, 170 U. S. v. Montgomery, 4 W. & S. 218; Tucker v. 343, 18 Sup. Ct. Rep. 620. But a mere Harris, 13 Ga. 1 ; Perry's Case, 3 Gratt. change in the constitution of the trial 632 ; Municipality No. 1 v. Wheeler, 10 court which leaves unchanged all the La. Ann. 745; New Orleans v. Poutz, 14 substantial protections which the law in La. Ann. 853 ; Huber v. Reily, 63 Pa. St. force at the time of commission of the 115; Wilson v. Ohio, &c. R. R. Co., 64 alleged offence threw about the accused 111. 542. That an act providing for the is not ex post facto. Duncan v. Missouri, punishment of an offence in respect to 152 U. S. 377, 14 Sup. Ct. Rep. 570. " An which prosecution is already barred is ex post facto law does not involve, in any ex post facto, see Moore v. State, 43 N. J. of its definitions, a change of the place of CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 375 Assuming this construction of the constitutional provision to be correct, and it has been accepted and followed as correct by the courts ever since, it would seem that little need be said relative to the first, second, and fourth classes of ex post facto laws, as enumerated in the opinion quoted. 1 It is not essential, however, in order to render a law invalid on these grounds, that it should expressly assume the action to which it relates to be criminal, or provide for its punishment on that ground. If it shall subject an individual to a pecuniary penalty for an act which, when done, involved no responsibility, 2 or if it deprives a party of any valuable right like the right to follow a lawful trial of an alleged offence after its com- mission." Gut v. Minnesota, 9 Wall. 35, quoted and affirmed in Cook v. United States, 138 U. S. 157, 11 Sup. Ct. Rep. 268. Nor of the time when sentence shall be executed. Holden v. Minnesota, 137 U. S. 483, 11 Sup. Ct. Rep. 143. Priv- ilege existing at time of commission of offence (e. g. privilege of earning a short- ening of sentence by good behavior) can- not be taken away by subsequent stat- ute. Murphy v. Commonwealth, 172 Mass. 264, 52 N. E. 505, 43 L R. A. 154, 70 Am. St. 266. Second offences may be made punishable with greater severity, even though first offence was committed before law was passed. Re Miller, 110 Mich. 676, 68 N. W. 990, 34 L. R. A. 398, 64 Am. St. 376, and see note thereto in L. R. A. upon enhanced penalty for second and subsequent offences ; see also Commonwealth v. Graves, 155 Mass. 163, 29 N. E. 579, 16 L. R. A. 256 ; McDonald v. Massachusetts, 180 U. S. 811, 21 Sup. Ct. Rep. 389, aff. 173 Mass. 322, 53 N. E. 874. Right to secure change of magis- trate or place of preliminary examination upon affidavit of accused that he believes magistrate is prejudiced against him may be withdrawn. People v. McDonald, 5 Wyo. 526, 42 Pac. 15, 29 L. R. A. 834. Statute allowing punitive damages where none had been theretofore allowed is ex post facto with regard to past acts. French v. Deane, 19 Col. 504, 36 Pac. 609, 24 L. R. A. 387. Statute diminishing the minimum period of imprisonment is not ex post facto. People v, Hayes, 140 N. Y. 484, 35 N. E. 951, 23 L. R. A. 830, 37 Am. St. 572. Law shortening time between sentence and execution is ex post facto with regard to past crimes. Re Tyson, 13 Col. 482, 22 Pac. 810, 6 L. R. A. 472. But providing that State may appeal from an order granting a new trial is not. Mallett v. North Carolina, 181 U. S. 589, 21 Sup. Ct. Rep. 730, aff. 125 N. C. 718, 34 S. E. 651. A statute providing that persons convicted of murder and await- ing execution shall be confined in the State's prison and executed within its walls is invalid as applied to one con- victed prior to its enactment. People v. McNulty, 93 Cal. 427, 29 Pac. 61. A statute changing the punishment for mur- der from death to imprisonment for life is not ex post facto. McGuire v. State, 76 Miss. 504, 25 So. 495. See, in this con- nection, Storti v. Com., 180 Mass. 57, 61 N. E. 759, 52 L. R. A. 520.] 1 See Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. Rep. 443. A constitutional amendment changed the judicial rule that conviction of one grade of murder bars a subsequent conviction of a higher grade. Before it took effect a crime had been committed. After it on a plea of guilty the prisoner was convicted of murder in the second degree, but the conviction was reversed, and on new trial he was convicted in the first degree. A bare majority of the court held the act ex post facto as to him, as altering the rules of evi- dence and the punishment. The minority considered the change one in procedure, and as the evidence in question, viz., his conviction in the second degree, of the effect of which he was deprived, came into existence after the amendment, held the act good. 2 Falconer v. Campbell, 2 McLean, 195; Wilson . Ohio, &c. R. R. Co., 64 111. 542. 376 CONSTITUTIONAL LIMITATIONS. [CH. IX. calling for acts which were innocent, or at least not punishable by law when committed, 1 the law will be ex post facto in the con- stitutional sense, notwithstanding it does not in terms declare the acts to which the penalty is attached criminal. 2 But how far a law may change the punishment for a criminal offence, and make the change applicable to past offences, is certainly a question of great difficulty, which has been increased by the decisions made concerning it. As the constitutional provision is enacted for the protection and security of accused parties against arbitrary and oppressive legislative action, it is evident that any change in the law which goes in mitigation of the punishment is not liable to this objection. 3 But what does go in mitigation of the punish- ment ? If the law makes a fine less in amount, or imprisonment shorter in point of duration, or relieves it from some oppressive incident, or if it dispenses with some severable portion of the legal penalty, no embarrassment would be experienced in reaching a conclusion that the law was favorable to the accused, and there- fore not ex post facto. But who shall say, when the nature of the punishment is altogether changed, and a fine is substituted for the pillory, or imprisonment for whipping, or imprisonment at hard labor for life for the death penalty, that the punishment is diminished, or at least not increased by the change made ? What test of severity does the law or reason furnish in these cases ? and must the judge decide upon his own view of the pain, loss, ignominy, and collateral consequences usually attending the pun- ishment? or may he take into view the peculiar condition of the accused, and upon that determine whether, in his particular case, 1 Cummings v. Missouri, 4 Wall. 277 ; See also Dent v. West Virginia, 129 U. S. Ex parte Garland, 4 Wall. 333. But a 114, 9 Sup. Ct. Rep. 231, distinguishing divorce is not a punishment, and it may Cummings v. Missouri, 4 Wall. 277, and therefore be authorized for causes hap- explaining Ex parte Garland, 4 Wall, pening previous to the passage of the 333.] divorce act. Jnnes v. Jones, 2 Overt. 2 The repeal of an amnesty law by 2, 6 Am. Dec. 645; Carson v. Carson, 40 a constitutional convention was held in Miss. 349. An act providing for destruc- State v. Keith, 63 N. C. 140, to be ex post tion of liquor as a means of abating an facto as to the cases covered by the law. existing liquor nuisance does not author- An act to validate an invalid conviction ize a criminal proceeding, and is not ex would be ex post facto. In re Murphy, 1 post facto. McLane v. Bonn, 70 Iowa, Woolw. 141. 752, 30 N. W. 478. See Drake v. Jordan, 8 Strong v. State, 1 Blackf. 193 ; Keen 73 Iowa, 707, 36 N. W. 653. QA statute v. State, 3 Chand. 109 ; Boston v. Cum- providing that one who has been con- mins, 16 Ga. 102; Woart v. Winnick, 3 victed of crime is ineligible as a medical N. H. 473; State v. Arlin, 39 N. H. 179; practitioner is not invalid as to a case Clarke r. State, 23 Miss. 261 ; Maul v. where the conviction was prior to the State, 25 Tex. 166. To provide an alter- enactment of the statute. People v. native punishment of a milder form is Hawker, 162 N. Y. 234, 46 N. E. 607, not ex post facto. Turner v. State, 40 aff. 170 U. S. 189, 18 Sup. Ct. Rep. 573. Ala. 21. CH. IX,] FEDERAL PROTECTION TO PERSON, ETC. 377 the punishment prescribed by the new law is or is not more severe than that under the old. In State v. Arlin, 1 the respondent was charged with a robbery, which, under the law as it existed at the time it was committed, was subject to be punished by solitary imprisonment not exceed- ing six months, and confinement for life at hard labor in the State prison. As incident to this severe punishment, he was en- titled by the same law to have counsel assigned him by the government, to process to compel the attendance of witness, to a copy of his indictment, a list of the jurors who were to try him, &c. Before he was brought to trial, the punishment for the offence was reduced to solitary imprisonment not exceeding six months, and confinement at hard labor in the State prison for not less than seven nor more than thirty years. By the new act, the court, if they thought proper, were to assign the respondent counsel, and furnish him with process to compel the attendance of witnesses in his behalf ; and, acting under this discretion, the court assigned the respondent counsel, but declined to do more ; while the respondent insisted that he was entitled to all the privileges to which he would have been entitled had the law remained unchanged. The court held this claim to be unfounded in the law. " It is contended," they say, " that, notwithstanding the severity of the respondent's punishment was mitigated by the alteration of the statute, he is entitled to the privileges demanded, as incidents to the offence with which he is charged, at the date of its commission ; in other words, it seems to be claimed, that, by committing the alleged offence, the respondent acquired a vested right to have counsel assigned him, to be furnished with process to procure the attendance of witnesses, and to enjoy all the other privileges to which he would have been entitled if tried under laws subjecting him to imprisonment for life upon convic- tion. This position appears to us wholly untenable. We have no doubt the privileges the respondent claims were designed and created solely as incidents of the severe punishment to which his offence formerly subjected him, and not as incidents of the offence. When the punishment was abolished, its incidents fell with it ; and he might as well claim the right to be punished under the former law as to be entitled to the privileges connected with a trial under it." 2 1 39 N. H. 179. to the other privileges by which the old 2 With great deference it may be sug- law surrounded the trial, all of which gested whether this case does not over- were designed as securities against unjust look the important circumstance, that the convictions, was directly calculated to new law, by taking from the accused that increase the party's peril, and was in con- absolute right to defence by counsel, and sequence brought within the reason of the 378 CONSTITUTIONAL LIMITATIONS. [CH. IX. In Strong v. State, 1 the plaintiff in error was indicted and con- victed of perjury, which, under the law as it existed at the time it was committed, was punishable by not exceeding one hundred stripes. Before the trial, this punishment was changed to im- prisonment in the penitentiary not exceeding seven years. The court held this amendatory law not to be ex post facto, as applied to the case. "The words ex post facto have a definite, technical signification. The plain and obvious meaning of this prohibition is, that the legislature shall not pass any law, after a fact done by any citizen, which shall have relation to that fact, so as to punish that which was innocent when done, or to add to the pun- ishment of that which was criminal, or to increase the malignity of a crime, or to retrench the rules of evidence so as to make conviction more easy." " Apply this definition to the act under consideration. Does this statute make a new offence? It does not. Does it increase the malignity of that which was an offence before ? It does not. Does it so change the rules of evidence as to make conviction more easy ? This cannot be alleged. Does it then increase the punishment of that which was criminal before its enactment ? We think not." 2 So in Texas it has been held that, the infliction of stripes, from the peculiarly degrading character of the punishment, was worse than the death penalty. " Among all nations of civilized man, from the earliest ages, the infliction of stripes has been considered more degrading than death itself." 3 While, on the other hand, in South Carolina, where, at the time of the commission of a forgery, the punishment was death, but it was changed before final judgment to fine, whipping, and imprisonment, the new law was applied to the case in passing the sentence. 4 These cases rule which holds a law ex post facto which favorable to the accused, when its molli- changes the rules of evidence after the fying circumstance is more than coun- fact, so as to make a less amount or de- terbalanced by others of a contrary gree sufficient. Could a law be void as character. ex post facto which made a party liable to 1 I Blackf. 193. conviction for perjury in a previous oath 2 Mr. Bishop says of this decision: on the testimony of a single witness, and " But certainly the court went far in this another law unobjectionable on this score case." 1 Bishop, Crim. Law, 219 (108). which deprived a party, when put on 8 Berber v. State, 7 Tex. 69. trial for a previous act, of all the usual * State v. Williams, 2 Rich. 418. In opportunities of exhibiting the facts and Clark v. State, 23 Miss. 261, defendant establishing his innocence? Undoubtedly, was convicted of a mayhem. Between the if the party accused was always guilty, commission of the act and his conviction, and certain to be convicted, the new law a statute had been passed, changing the must be regarded as mitigating the of- punishment for this offence from the pit- fence ; but, assuming every man to be lory and a fine to imprisonment in the innocent until he is proved to be guilty, penitentiary, but providing further, that could such a law be looked upon as " mol- '' no offence committed, and no penalty lifying the rigor " of the prior law, or as and forfeiture incurred previous to the CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 379 illustrate the difficulty of laying down any rule which will be readily and universally accepted as to what is a mitigation of punishment, when its character is changed, and when from the very nature of the case there can be no common standard, by which all minds, however educated, can measure the relative severity and ignominy. In Hartung v. People, 1 the law providing for the infliction of capital punishment had been so changed as to require the party liable to this penalty to be sentenced to confinement at hard labor in the State prison until the punishment of death should be in- flicted ; and it further provided that such punishment should not be inflicted under one year, nor until the governor should issue his warrant for the purpose. The act was evidently designed for the benefit of parties convicted, and, among other things, to enable advantage to be taken, for their benefit, of any circumstances subsequently coming to light which might show the injustice of the judgment, or throw any more favorable light on the action of the accused. Nevertheless, the court held the act inoperative as to offences before committed. " In my opinion," says Denio, J., " it would be perfectly competent for the legislature, by a general law, to remit any separable portion of the prescribed punishment. For instance, if the punishment were fine and imprisonment, a law which should dispense with either the fine or the imprison- ment might, I think, be lawfully applied to existing offences ; and so, in my opinion, the term of imprisonment might be reduced, or the number of stripes diminished, in cases punishable in that manner. Anything which, if applied to an individual sentence, would fairly fall within the idea of a remission of a part of the sentence, would not be liable to objection. And any change which should be referable to prison discipline or penal adminis- tration as its primary object might also be made to take effect upon past as well as future offences ; as changes in the manner or kind of employment of convicts sentenced to hard labor, the system of supervision, the means of restraint, or the like. Changes of this sort might operate to increase or mitigate the time when this act shall take effect shall punishment prescribed in that code in be affected by this act, except that when lieu of that to which he was liable before any punishment, forfeiture, or penalty its enactment." But inasmuch as the should have been mitigated by it, its pro- record did not show that the defendant visions should be applied to the judgment claimed a commutation of his punisb- to be pronounced for offences committed ment, the court confirmed a sentence im- before its adoption." In regard to this posed according to the terms of the old statute the court say : " We think that law. On this subject, see further the in every case of offence committed before cases of Holt v. State, 2 Tex. 363 ; Daw- the adoption of the penitentiary code, the son v. State, 6 Tex. 347. prisoner has the option of selecting the l 22 N. Y. 95, 105. 380 CONSTITUTIONAL LIMITATIONS. [CH. IX. severity of the punishment of the convict, but would not raise any question under the constitutional provision we are consider- ing. The change wrought by the Act of 1860, in the punishment of existing offences of murder, does not fall within either of these exceptions. If it is to be construed to vest in the governor a discretion to determine whether the convict should be executed or remain a perpetual prisoner at hard labor, this would only be equivalent to what he might do under the authority to commute a sentence. But he can, under the Constitution, only do this once for all. If he refuses the pardon, the convict is executed according to sentence. If he grants it, his jurisdiction of the case ends. The act in question places the convict at the mercy of the governor in office at the expiration of one year from the time of the conviction, and of all of his successors during the life- time of the convict. He may be ordered to execution at any time, upon any notice, or without notice. Under one of the repealed sections of the Revised Statutes, it was required that a period should intervene between the sentence and execution of not less than four, nor more than eight weeks. If we stop here, the change effected by the statute is between an execution within a limited time, to be prescribed by the court, or a pardon or com- mutation of the sentence during that period, on the one hand, and the placing the convict at the mercy of the executive magistrate for the time, and his successors, to be executed at his pleasure at any time after one year, on the other. The sword is indefinitely suspended over his head, ready to fall at any time. It is not enough to say, even if that can be said, that most persons would probably prefer such a fate to the former capital sentence. It is enough to bring the law within the condemnation of the Constitu- tion, that it changes the punishment after the commission of the offence, by substituting for the prescribed penalty a different one. We have no means of saying whether one or the other would be the most severe in a given case. That would depend upon the disposition and temperament of the convict. The legislature cannot thus experiment upon the criminal law. The law, more- over, prescribes one year's imprisonment, at hard labor in the State prison, in addition to the punishment of death. In every case of the execution of a capital sentence, it must be preceded by the year's imprisonment at hard labor. True, the concluding part of the judgment cannot be executed unless the governor concurs by ordering the execution. But as both parts may, in any given case, be inflicted, and as the convict is consequently, under this law, exposed to the double infliction, it is, within both the defi- nitions which have been mentioned, an ex post facto law. It CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 381 changes the punishment, and inflicts a greater punishment than that which the law annexed to the crime when committed. It is enough, in my opinion, that it changes it in arty manner except by dispensing with divisible portions of it; but upon the other definition announced by Judge Chase, where it is implied that the change must be from a less to a greater punishment, this act cannot be sustained." This decision has since been several times followed in the State of New York, 1 and it must now be regarded as the settled law of that State, that " a law changing the punish- ment for offences committed before its passage is ex post facto arid void, under the Constitution, unless the change consists in the remission of some separable part of the punishment before prescribed, or it is referable to prison discipline or penal adminis- tration as its primary object." 2 And this rule seems to us a sound and sensible one, with perhaps this single qualification, that the substitution of any other punishment for that of death must be regarded as a mitigation of the penalty. 3 But so far as mere modes of procedure are concerned, a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts, in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime. 4 Statutes giving the gov- 1 Shepherd v. People, 25 N. Y. 406 ; is not ex post facto which in a capital case Ratzky v. People, 29 N. Y. 124; Kuckler directs that the imprisonment after sen- is. People, 5 Park. Cr. Rep. 212. tence, and the execution shall be in a pen- 2 Per Davies, J., in Ratzky v. People, itentiary instead of a jail. In re Tyson, 29 N, Y. 124. See Miles v. State, 40 Ala. 13 Col. 482, 22 Pac. Rep. 810. 39. If when the act was committed one 8 See 1 Bishop, Grim. Law, 219 could escape the death penalty by plead- (108). QOne charged with crime cannot ing guilty and a law changes this before be deprived of the benefit of a law en- trial, it is bad. Garvey v. People, 6 Col. acted after its commission. State v. Ed- 659. So if the option of a jury to inflict wards, La. Ann. , 33 So. 209.] death or life imprisonment is taken away, * Jurisdiction may be transferred from and the former is made the only penalty, one court to another. State v. Cooler, Marion v. State, 16 Neb. 349, 20 N. W. 30 S. C. 105, 8 S. E. 69. As to what is 289. See Lindzey v. State, 65 Miss. 542, 5 merely a change in procedure, see dissent- So. 99. Otherwise, of an act which allows ing opinions in Kring v. Missouri, 107 a prisoner to elect between death and im- U. S. 221, 2 Sup Ct. Rep. 443, cited supra, prisonment. Mclnturf v. State, 20 Tex. p. 376, note 1 ; Drake v. Jordan, 73 Iowa, App. 335. An act passed after the offence 707, 36 N. W. 653. Taking from the jury 382 CONSTITUTIONAL LIMITATIONS. [Cll. IX. ernment additional challenges, 1 and others which authorized the amendment of indictments, 2 have been sustained and applied to past transactions, as doubtless would be any similar statute, cal- culated merely to improve the remedy, and in its operation work- ing no injustice to the defendant, and depriving him of no substantial right. 3 And a law is not objectionable as ex post facto which, in pro- viding for the punishment of future offences, authorizes the offender's conduct in the past to be taken into the account, and the punishment to be graduated accordingly. Heavier penalties power to judge of the law is a matter of procedure. Marion v. State, 20 Neb. 233, 29 N. W. 911. 1 Walston v. Commonwealth, 16 B. Monr. 15; Jones v. State, 1 Ga. 610; Warren v. Commonwealth, 37 Pa. St. 45; Walter v. People, 32 N. Y. 147 ; State v. Ryan, 13 Minn. 370; State v. Wilson, 48 N. H. 398 ; Commonwealth v. Dorsey, 103 Mass. 412. 3 State v. Manning, 14 Tex. 402; La- sure v. State, 19 Ohio St. 43; Sullivan v. Oneida, 61 111. 242. See State i>. Corson, 59 Me. 137. The defendant in any case must be proceeded against and punished under the law in force when the proceed- ing is had. State v. Williams, 2 Rich. 418; Keene v. State, 3 Chand. 109; People v. Phelps, 5 Wend. 9; Rand v. Common- wealth, 9 Gratt. 738. A law is not uncon- stitutional which precludes a defendant in a criminal case from taking advantage of variances which do not prejudice him. Commonwealth v. Hall, 97 Mass. 570; La- sure v. State, 19 Ohio St. 43. Nor one which reduces the number of the prison- er's peremptory challenges. Dowling v. State, 13 Miss. 664. Nor one which, though passed after the commission of the offence, authorizes a change of venue to another county of the judicial district. Gut v. State, 9 Wall. 35. Nor one which modifies the grounds of challenge. Stokes t>. People, 63 N. Y. 164. Nor one which merely modifies, simplifies, and reduces the essential allegations in a criminal in- dictment, retaining the charge of a dis- tinct offence. State v. Learned, 47 Me. 426; State v. Corson, 59 Me. 137. And see People v. Mortimer, 46 Cal. 114. In the absence of statutory permission, if a court allows an indictment to be amended by striking out words as surplusage, it must be resubmitted to the jury. Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. Rep. 781. But a statute providing that the rule of law precluding a conviction on the uncorroborated testimony of an accom- plice should not apply to cases of mis- demeanor, it was held could not have retrospective operation. Hart v. State, 40 Ala. 32. 8 But the legislature can have no power to dispense with such allegations in in- dictments as are essential to reasonable particularity and certainty in the descrip- tion of the offence. McLaughlin ;. State, 45 Ind. 338; Brown v. People, 29 Mich. 232; People v. Olmstead, 30 Mich. 431; State v. O'Flaherty, 7 Nev. 153. [A State may between the time of commis- sion of an offence and the time of trial modify the rules of evidence regarding the proof of handwriting. Thompson v. Missouri, 171 U. S. 380, 18 Sup. Ct. Rep. 922 ; aff. 132 Mo. 301, 34 S. W. 31. Upon ex post facto laws, see notes to 1 L. ed. U. S. 648, and 4 L. ed. U. S. 529. May enact that jurors shall be selected from " persons of good intelligence, sound judgment, and fair character." Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. Rep. 904. May change mode of accusation from indictment to infor- mation. Re Wright, 3 Wyo. 478, 27 Pac. 565, 13 L. R. A. 748, 31 Am. St. 94. In Mallett v. North Carolina, 181 U. S. 589, 21 Sup. Ct. Rep. 730, it is held that a provision for an appeal by the State from an order granting a new trial is not ex post facto as applied to a criminal case tried before the statute was passed, the order for a new trial having been made after the enactment of the statute. The opinion cites the principal cases on the constitutional prohibition of ex post facto laws in the Federal Supreme Court/] CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 383 are often provided by law for a second or any subsequent offence than for the first ; and it has not been deemed objectionable that, in providing for such heavier penalties, the prior conviction authorized to be taken into the account may have taken place before the law was passed. 1 In such case, it is the second or subsequent offence that is punished, not the first ; 2 and the statute would be void if the offence to be actually punished under it had been committed before it had taken effect, even though it was after its passage. 3 Laws impairing the Obligation of Contracts. The Constitution of the United States also forbids the States passing any law impairing the obligation of contracts. 4 It is 1 Rand v. Commonwealth, 9 Gratt. 738; Ross's Case, 2 Pick. 165; People v. Butler, 3 Cow. 347 ; Ex parte Guiterrez, 45 Cal. 429. Extradition treaties may provide for the surrender of persons charged with offences previously committed. In re De Giacomo, 12 Blatch. 391. 2 Rand r. Commonwealth, 9 Gratt. 738. 8 Riley's Case, 2 Pick. 171. * Const, art. 1, 10. "A State can no more impair the obligation of a contract by her organic law than by legislative enactment ; for her constitution is a law within the meaning of the contract clause of the National Constitution." New Or- leans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 672, 6 Sup. Ct. Rep. 252; Fisk v. Jefferson Police Jury, 116 U. S. 131, 6 Sup. Ct. Rep. 329 ; St. Tammany Water Works v. New Orleans Water Works, 120 U. S. 64, 7 Sup. Ct. Rep. 405, and see cases, ante, p. 62, note 2. fJSee, Southwest Mo. L. Co. v. Taplin, 113 Fed. 817, in which case the same conclusion was reached, though there was no specific agreement not to erect a municipal plant as in the Walla Walla Case cited post, in this note. See also Hamilton, &c. Co. r. Hamilton, 146 U. S. 258, 13 Sup. Ct. Rep. 90; Skaneateles W. W. Co. v. Skaneateles, 161 N. Y. 154, 55 N. E. 562 ; Syracuse W. Co. v. Syracuse, 116 N. Y. 167, 22 N. E. 381, 5 L. R. A. 546 ; Re Brooklyn, 143 N. Y. 596, 38 N. E. 983, 26 L. R. A. 270; Westerly W. W. v. Westerly, 75 Fed. Rep. 181. In Detroit r. Detroit Cit. St. Ry. Co., 184 U. S. 368, 22 Sup. Ct. Rep. 410, the lines of the railway com- pany were constructed under a statute authorizing construction " under such reg- ulations and upon such terms and con- ditions as the municipal authorities may from time to time prescribe." The city in its agreement witli the company for the construction authorized a particular rate of fare. It subsequently passed an ordinance for the reduction of the rate so fixed. The ordinance was held invalid as impairing the obligation of contract.] The law which impairs must be one passed after the formation of the con- tract. Lehigh Water Co. v. Easton, 121 U. S. 388, 7 Sup. Ct. Rep. 916. A New York law prohibiting the sale of lottery tickets is not invalid because a lottery, the tickets in which are sold, is legal in Louisiana. People v. Noelke, 94 N. Y. 137. That the prohibition does not apply to Congress, see Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. Rep. 170, 312. fJSee on what laws are void as impairing the obli- gation of contracts, note to 3 L. ed. U. S. 162; on what contracts are within the rule, note to 10 L. R. A. 405. A city in granting to a water company power to lay pipe in the streets and to supply the citizens with water at reasonable rates, &c., has power to bind itself for a limited period not to erect any competing water- works. Subsequent ordinance providing for tlie erection of a system of water-works by the city within the limited period is invalid, and its execution may be enjoined. Walla Walla v. W. W. Water Co., 172 U. S. 1, 19 Sup. Ct. Rep. 77. Ordinances of a city are laws of the State within the meaning of this provision of the Con- I 384 CONSTITUTIONAL LIMITATIONS. [CH. IX. remarkable that this very important clause was passed over almost without comment during the discussions preceding the adoption of that instrument, though since its adoption no clause which the Constitution contains has been more prolific of litiga- tion, or given rise to more animated and at times angry contro- versy. It is but twice alluded to in the papers of the Federalist ; l and though its great importance is assumed, it is evident that the writer had no conception of the prominence it was afterwards to hold in constitutional discussions, or of the very numerous cases to which it was to be applied in practice. I The first question that arises under this provision is, What is a contract in the sense in which the word is here employed ? In the leading case upon this subject, it appeared that the legislature of Georgia had made a grant of land, but afterwards, on an allegation that the grant had been obtained by fraud, a subsequent legislature had- passed another act annulling and rescinding the first conveyance, and asserting the right of the State to the land it covered. " A contract," says Ch. J. Marshall, " is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing. Such was the law under which the conveyance was made by the governor. A contract executed is one in which the object of the contract is performed ; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is execu- tory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A stitution. Penn Mutual Life Ins. Co. v. referred to, to the remainder of the line Austin, 168 U. S. 685, 18 Sup. Ct. Rep. 223. thereafter constructed. Houston & T. C. Provision operating only on contracts R. Co. v. Texas, 170 U. S. 243, 18 Sup. thereafter formed cannot impair their Ct. Rep. 610, rev. 90 Tex. 607, 40 S. W. obligation. Galveston, H. & S. A. R. Co. 402. A State cannot compel the non- v. Texas, 170 U. S. 226, 18 Sup. Ct. Rep. resident treasurer of a foreign corpora- 603, aff. 89 Tex. 340, 34 S. W. 746. tion to act as tax-collector and collect Where a railroad company accepts a taxes levied by the State upon resident charter and subsequent legislation en- holders of bonds of the corporation in titling it to construct a line of railroad respect of interest upon such bonds, even and thereby earn certain grants of land, though the corporation does business and enters upon the construction of the within the borders of the State. N. Y., road, and actually completes an impor- L. E. & W. R. Co. v. Pennsylvania, 153 tant part of it by the time a new consti- U. S. 628, 14 Sup. Ct. Rep. 952. See tution for the State is adopted, that also, Bier v. McGehee, 148 U. S. 137, 13 constitution cannot impair the right of Sup. Ct. Rep. 580.] the company to earn the lands attaching, * Federalist, Nos. 7 and 44. under the charter and legislation above CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 385 party is, therefore, always estopped by his own grant. Since then, in fact, a grant is a contract executed, the obligation of which still continues, and since the Constitution uses the general term ' contract ' without distinguishing between those which are executory and those which are executed, it must be construed to comprehend the latter as well as the former. A law annulling conveyances between individuals, and declaring that the grantors should stand seized of their former estates, notwithstanding those grants, would be as repugnant to the Constitution as a law dis- charging the vendors of property from the obligation of executing their contracts by conveyances. It would be strange if a contract to convey was secured by the Constitution, while an absolute con- veyance remained unprotected. If, under a fair construction of the Constitution, grants are comprehended under the term ' con- tracts,' is a grant from the State excluded from the operation of the provision ? Is the clause to b^Tconsidered as inhibiting the State from impairing the obligation of contracts between two individuals, but as excluding from that inhibition contracts made with itself ? The words themselves contain no such distinction. They are general, and are applicable to contracts of every de- scription. If contracts made with the State are to be exempted from their operations, the exception must arise from the char- acter of the contracting party, not from the words which are employed." And the court proceed to .give reasons for their decision, that violence should not " be done to the natural mean- ing of words, for the purpose of leaving to the legislature the power of seizing, for public use, the estate of an individual, in the form of a law annulling the title by which he holds that estate." 1 It will be seen that this leading decision settles two important points : first, that an executed contract is within the provision, and, second, that it protects from violation the contracts of States equally with those entered into between private individuals. 2 1 Fletcher v. Peck, 6 Cranch, 87, 136. a stipulated form or discipline, or to pay 2 This decision has been repeatedly taxes to those whose creed they could followed. In the founding of the Colony not conscientiously believe. By statute of Virginia the religious establishment in 1801, the legislature asserted their of England was adopted, and before the right to all the property of the Episcopal Revolution the churches of that denomi- churches in the respective parishes of nation had become vested, by grants of the State; and, among other things, di- the crown or colony, with large proper- reeled and authorized the overseers of ties, which continued in their possession the poor and their successors in each after the constitution of the State had parish, wherein any glebe land was va- forbidden the creation or continuance of cant or should become so, to sell the any religious establishment possessed of same and appropriate the proceeds to the exclusive rights or privileges, or the use of the poor of the parish. By this compelling the citizens to worship under act, it will be seen, the State sought in 25 386 CONSTITUTIONAL LIMITATIONS. [OIL ix. And it has since been held that compacts between two States are in like manner protected. 1 These decisions, however, do not effect to resume grants made by tlie sov- ereignty, a practice which had been common enough in English history, and of which precedents were not wanting in the History of the American Colonies. The Supreme Court of the United States held the grant not revocable, and that the legislative act was therefore uncon- stitutional and void. Terrett v. Taylor, 9 Cranch, 43. See also Town of Pawlet v. Clark, 9 Cranch, 292 ; Davis v. Gray, 16 Wall. 203 ; Hall v. Wisconsin, 103 U. S. 5; People v. Platt, 17 Johns. 195; Montgom- ery v. Kasson, 16 Cal. 189; Grogan v. San Francisco, 18 Cal. 590 ; Rehoboth v. H unt, 1 Pick. 224 ; Lowry v. Francis, 2 Yerg. 534 ; University of North Carolina v. Foy, 2 Hayw. 310; State i 1 . Barker, 4 Kan. 379 and 435. When a State descends from the plane of its sovereignty and contracts with private persons, it is regarded pro hoc vice as a private person itself, and is bound accordingly. Davis v. Gray, 16 Wall. 203 ; Georgia Pen. Cos. v. Nelms, 71 Ga. 301. The lien of a bondholder, who has loaned money to the State on a pledge of property by legislative act, cannot be divested or postponed by a sub- sequent legislative act. Wabash, &c. Co. v. Beers, 2 Black, 448. An agreement to receive coupons of State bonds in pay- ment for State taxes is binding. Hartman v. Greenhow, 102 U. S. 672; Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. Rep. 903, 962. See Keith v. Clark, 97 U. S. 454. QWheii State officers acting under authority of a statute have re- ceived in payment of obligations due to the State warrants drawn on the State treasury, there is an executed contract, and the obligation is discharged, even though the warrants were illegal and void, as being issued with the intention that they circulate as money or as bills of creditor in aid of rebellion. For the courts of the State to place upon a statute thereafter passed a construction which will treat such payments as void and revive the obligation is to impair the obligation of the contract, and there- fore to violate the Federal Constitu- tion. Houston & T. C. R. Co. v. Texas, 177 U. S. 06, 20 Sup. Ct Rep. 545, rev. 41 S. W. 157. But whore the statute under which a State grants permission to a foreign corporation to do business within its borders provides that such perm^sion may be revoked upon viola- tion of the statute by the corporation, a forfeiiure of the permission because of such violation does not impair the obliga- tion of any contract. Waters-Pierce Oil Co. v. Texas, 177. U. S. 28, 20 Sup. Ct. Rep. 518, aff. 19 Tex. Civ. App. 1, 44 S. W. 93(5. A contract authorized under the interpretation and construction put upon the State constitution by the high- est court of the State at the time the contract is entered into cannot be im- paired by any subsequent amendment of the constitution or by any change in its construction by the courts of the State. Los Angeles v. Los Angeles City Water Co.. 177 U. S. 658, 20 Sup. Ct. Rep. 736. Upon impairment of obligation of con- tract by State constitution, see note to 10 L. R. A. 405; by change in interpretation of constitution, note to 16 L. R. A. 646, and one to 44 L. ed. U. S. 886. In this con- nection, see New Orleans v. Warner, 175 U. S. 120, 20 Sup. Ct. Rep. 44; and s. c. 167 U. S. 467, 17 Sup. Ct. Rep. 802. A railroad company was organized under general statutes which provided for the alteration, amendment, or repeal of corpo- rate charters. Filing a map of a pro- posed route does not vest in it any right to condemn lands upon the proposed route, such that the State is precluded from taking these lands for other pur- poses without impairing, to the damage of the company, the obligation of a con- tract. Adirondack R. Co. v. N. Y., 176 U. S. 335, 20 Sup. Ct. Rep. 460, aff. 160 N. Y. 225, 54 N. E. 689. An appeal bond is a contract hereunder. Schuster v. Weiss, 114 Mo. 158, 21 S. W. 438, 19 L. R. A. 182.] 1 On the separation cf Kentucky from Virginia, a compact was entered into be- tween the proposed new and the old State, by which it was agreed "that all private grants and interests of lands, within the said district, derived from the laws of Virginia, shall remain valid and secure under the laws of the proposed State, and shall be determined by the laws now existing in this State." After the ad- CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 387 fully determine what under all circumstances is to be regarded as a contract, (a) A grant of land by a State is a contract, because in making it the State deals with the purchaser precisely as any other vendor might ; and if its mode of conveyance is any differ- ent, it is only because, by virtue of its sovereignty, it has power to convey by other modes than those which the general law opens to private individuals. But many things done by the State may seem to hold out promises to individuals which after all cannot be treated as contracts without hampering the legislative power of the State in a manner that would soon leave it without the means of performing its essential functions. The State creates offices, and appoints persons to fill them ; it establishes municipal corporations with large and valuable privileges for its citizens ; i mission of the new State to the Union, pany till its debts of a certain class are "occupying claimant" laws were passed paid, is void. De Groff v. St. Paul, &c. by its legislature, such as were not in K. R. Co., 23 Minn. 144; Robertson v. existence in Virginia, and by the force Land Commissioner, 44 Mich. 274, 6 N. W. of which, under certain circumstances, 659. After a contract made by a city the owner might be deprived of his title with a company allowing it to build a to land, unless he would pay the value railroad in certain streets, has been partly of lasting improvements made upon it completed, the legislature cannot make by an adverse claimant. These acts the right to finish it conditional on the were also held void ; the compact was consent of property owners. Hovelman held inviolable under the Constitution, v. Kansas City Ry. Co., 79 Mo. 632. The and it was deemed no objection to its power to withdraw a franchise does not binding character, that its effect was to give a legislature power to authorize a restrict, in some directions, the legisla- city to require a horse railroad company tive power of the State entering into it. to pave outside its rails, when the city Green v. Biddle, 8 Wheat. 1. See also had contracted with it to pave only inside Hawkins v. Barney's Lessee, 5 Pet. 457. the rails. Coast Line R. Co. v. Savan- After a State has granted lands to a nah, 30 Fed. Rep. 646. See New Orleans company, and the grantee has fulfilled v. Great South Tel. Co., 40 La. Ann. 41, the conditions of the grant and earned 3 So. 633; McGee v. San Jose, 68 Cal. the lands, a further enactment, that the 91, 8 Pac. 641 ; [[Chicago Union Tr. Co. lands shall not be transferred to the com- v. Chicago, 111. , 65 N. E. 243.] (a) [^Authority to construct and maintain a dam for the purpose of improving a water-power is only a license and may be revoked at any time. St. Anthony Falls W. P. Co. v. Bd. of Water Com'rs, 168 U. S. 349, 18 Sup. Ct. Rep. 157. Rate of interest allowed upon an unpaid judgment is not contractual unless the judgment is upon a contract to pay interest at a given rate until the debt is paid, and in all other cases it may be changed at any time by the State, and such changed rate will he operative thenceforth. Morley v. L. S. & M. S. R. Co., 146 U. S. 162, 13 Sup. Ct. Rep. 54, aff. 95 N. Y. 667, and following O'Brien r. Young, 95 N. Y. 428; 47 Am. Rep. 64. Contra, Butler v. Rockwell, 17 Col. 290, 29 Pac. 458, 17 L. R. A. 611, and note; Wyoming Nat. Bk. v. Brown, 7 Wyo. 494, 53 Pac. 291, 9 Wyo. 153, 61 Pac. 465, on rehearing (June 29, 1900), holds that contract is merged in judgment, and rate of interest on judgment is not contractual. Judgment upon a tort is not a contract, and power to levy taxes ma} 1 be so restricted as to make such judgment against a city practically worthless. Sherman v. Langham,92 Tex. 13,40 S. W. 140, 42 S. W. 961, 39 L. R.'A. 258; Louisiana v. New Orleans, 109 U. S. 285, 3 Sup. Ct. Rep. 211 ; Louisiana v. Police Jury, 111 U. S. 716, 4 Sup. Ct. Rep. 648.] 388 CONSTITUTIONAL LIMITATIONS. [CH. IX. by its general laws it holds out inducements to immigration ; it passes exemption laws, and laws for the encouragement of trade and agriculture ; and under all these laws a greater or less num- ber of citizens expect to derive profit and emolument. But can these laws be regarded as contracts between the State and the officers and corporations who are, or the citizens of the State who expect to be, benefited by their passage, so as to preclude their being repealed ? On these points it would seem that there could be no difficulty. When the State employs officers or creates municipal corpora- tions as the mere agencies of government, it must have the power to discontinue the agency whenever it comes to be regarded as no longer important. " The f ramers of the Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government." 1 They may, therefore, discontinue offices or change the salary or other com- pensation, or abolish or change the organization of municipal cor- porations at any time, according to the existing legislative view of State policy, unless forbidden by their own constitutions from doing so. 2 And although municipal corporations, as respects the 1 Dartmouth College v. Woodward, 4 Wheat. 518-629, per Marshall, Ch. J. 2 Butler v. Pennsylvania, 10 How. 402 ; United States v. Hartwell, 6 Wall. 385; Newton v. Commissioners, 100 U. S. 559; Warner v. People, 2 Denio, 272; Conner v. New York, 2 Sandf. 355, and 5 N. Y. 285; People v. Green, 58 N. Y. 295; State v. Van Baumbaeh, 12 Wis. 310 ; Coffin v. State, 7 Ind. 157 ; Benford v. Gibson, 15 Ala. 521 ; Perkins v. Corbin, 45 Ala. 103; Evans v. Populus, 22 La. Ann. 121 ; Commonwealth v. Bacon, 6 S. & R. 322; Commonwealth v. Mann, 6 W. & S. 403, 418 ; Koontz v. Franklin Co., 76 Pa. St. 154 ; French v. Common- wealth, 78 Pa. St. 339 ; Augusta v. Swee- ney, 44 Ga. 463; County Commissioners v. Jones, 18 Minn. 199 ; People v. Lippin- cott, 67 111. 333; In re Bulger, 45 Cal. 553; Opinions of Justices, 117 Mass. 603; Kendall v. Canton, 53 Miss. 526; Wil- liams V.Newport, 12 Bush, 438; States. Douglass, 26 Wis. 4-28; State v. Kalb, 50 Wis. 178, 6 N. W. 557; Robinson v. White, 26 Ark. 139 ; Alexander v. Mc- Kenzie, 2 S. C. 81 ; Harvey v. Com'rs Rusli Co., 32 Kan. 159, 4 Pac. 153 ; Com. v. Bailey, 81 Ky. 395. Compare Peo- ple v. Bull, 46 N. Y. 57, 7 Am. Rep. 302 ; Wyandotte v. Drennan, 46 Mich. 478, 9 N. W. 500. " Where an office is created by statute, it is wholly within the control of the legislature. The term, the mode of appointment, and the compensa- tion may be altered at pleasure, and the latter may be even taken away without abolishing the office. Such extreme leg- islation is not to be deemed probable in any case. But we are now discussing the legislative power, not its expediency or propriety. Having the power, the legis- lature will exercise it for the public good, and it is the sole judge of the exigency which demands its interference." Per Sandford, J., 2 Sandf. 355, 369. " The selection of officers who are nothing more than public agents for the effectuating of public purposes is matter of public con- venience or necessity, and so, too, are the periods for the appointment of such agents ; but neither the one nor the other of these arrangements can constitute any obligation to continue such agents, or to reappoint them, after the measures which brought them into being shall have been found useless, shall have been fulfilled, or shall have been abrogated as even detrimental to the well-being of the pub- lic. The promised compensation for ser- vices actually performed and accepted, during the continuance of the particular CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 389 property which they hold, control, and manage, for the benefit of their citizens, are governed by the same rules and subject to the same liabilities as individuals, yet this property, so far as it has been derived from the State, or obtained by the exercise of the ordinary powers of government, must be held subject to control by the State, but under the restriction only, that it is not to be appropriated to uses foreign to those for which it has been ac- agency, may undoubtedly be claimed, both upon principles of compact and of equity ; but to insist beyond this upon the perpetuation of a public policy either useless or detrimental, and upon a reward for acts neither desired nor performed, would appear to be reconcilable with neither common justice nor common sense." Daniel, J., in Butler v. Pennsyl- vania, 10 How. 402, 416. "But after services have been rendered under a law, resolution, or ordinance which fixes the rate of compensation, there arises an implied contract to pay for those services at that rate. This contract is a completed contract. Its obligation is perfect, and rests on the remedies which the law gives for its enforcement," and cannot be im- paired by a change in the State constitu- tion. Fisk v. Jefferson Police Jury, 116 U. S. 131, 6 Sup. Ct. Rep. 329. See also Barker v. Pittsburgh, 4 Pa. St. 49 ; Standi- ford v. 'Wingate, 2 Duv. 443; Taft v. Adams, 3 Gray, 126 ; Walker v. Peelle, 18 Ind. 264; People v. Haskell, 5 Cal. 357; Dart v. Houston, 22 Ga. 506; Wil- liams v. Newport, 12 Bush, 438 ; Terri- tory v. Pyle, 1 Oreg. 149; Bryan v. Cat- tell, 15 Iowa, 538. If the term of an office is fixed by the Constitution, the legislature cannot remove the officer, except as that instrument may allow, either directly, or indirectly by abolish- ing the office. People v. Dubois, 23 111. 647; State v. Messmore, 14 Wis. 163; Commonwealth v. Gamble, 62 Pa. St. 343, 1 Am. Rep. 422 ; Lowe i\ Common- wealth, 3 Met (Ky.) 240 ; State v. Wiltz, 11 La. Ann. 489; Goodin v. Thoman, 10 Kan. 191 ; State r. Draper, 50 Mo. 353. Or by shortening the constitutional term. Brewer v. Davis, 9 Humph. 212. Com- pare Christy v. Commissioners, 39 Cal. 3. But if after the election of a justice, his town becomes part of a city, his office ceases. Gertum v. Board, 109 N. Y. 170, 16 N. E. 328. Nor can the legislature take from a constitutional officer a portion of the characteristic duties belonging to the office, and devolve them upon an office of its own creation. State v. Brunst, 26 Wis. 413, 7 Am. Rep. 84, disapproving State v. Dews, R. M. Charl. 397. QSee also People v. Howland, 155 N. Y. 270, 49 N. E 775, 41 L. R. A. 838. Cameron v. Parker, 2 Okla 277, 38 Pac. 14.] Com- pare Warner v. People, 2 Denio, 272; People v. Albertson, 55 N. Y. 50; People v. Raymond, 37 N Y. 428; King v. Hun- der, 65 N. C. 603, 6 Am. Rep. 754. Nor, where the office is elective, can the legis- lature fill it, either directly, or by extend- ing the term of the incumbent. People v. Bull, 46 N. Y. 57 ; People v. McKinney, 52 N. Y. 374. [[Where the constitution prohibits the removal of an officer during his term except for cause, it equally pro- hibits the transfer of the duties and emoluments of the office. State Prison v. Day, 124 N. C. 362, 32 S. E. 748, 46 L. R. A. 295.] See also on these points cases, p. 99, supra. Compare People v. Flanagan, 66 N. Y. 237. As to control of municipal corporations, see further Marietta v. Fearing, 4 Ohio, 427 ; Brad- ford v. Cary, 5 Me. 339 ; Bush v. Ship- man, 5 III. 186 ; Trustees, &c. v. Tatman, 13 111. 27; People v. Morris, 13 Wend. 325; Mills v. Williams, 11 Ired. 558; People v. Banvard, 27 Cal. 470 ; ante, ch. viii. But where the State contracts as an individual, it is bound as an indi- vidual would be: Davis v. Gray, 16 Wall. 203 ; even though the contract creates an official relation. Hall v. Wis- consin, 103 U. S. 5. QA public office is not property, and a provision that " no person shall be deprived of ... property without . . . the judgment of his peers" is not applicable to a lawful removal from office upon a charge of gross immorality. Moore v. Strickling, 46 W. Va. 515, 33 S. E. 274, 50 L R. A. 279. That notice is necessary to a valid removal of an elected officer, see Jacques v. Litle, 51 Kan. 300, 33 Pac. 106, 20 L. R. A. 304.] 390 CONSTITUTIONAL LIMITATIONS. [CH. IX. quired. And the franchises conferred upon such a corporation, for the benefit of its citizens, must be liable to be resumed at any time by that authority which may mould the corporate powers at its will, or even revoke them altogether. The greater power will comprehend the less. 1 If, however, a grant is made to a munici- 1 In East Hartford v. Hartford Bridge Co., 10 How. 611, 533, Mr. Justice Wood- bury, in speaking of the grant of a ferry franchise to a municipal corporation, says: "Our opinion is ... that the parties to this grant did not by their charter stand in the attitude towards each other of making a contract by it, such as is contemplated in the Constitution, and as could not be modified by subsequent legis- lation. The legislature was acting here on the one part, and public municipal and political corporations on the other. They were acting, too, in relation to a public object, being virtually a highway across the river, over another highway up and down the river. From this standing and relation of these parties, and from the subject-matter of their action, we think that the doings of the legislature as to this ferry must be considered rather as public laws than as contracts. They re- lated to public interests. They changed as those interests demanded. The gran- tees, likewise the towns, being mere organizations for public purposes, were liable to have their public powers, rights, and duties, modified or abolished at any moment by the legislature. They are incorporated for public, and not private, objects. They are allowed to hold priv- ileges or property only for public pur- poses. The members are not sharehold- ers nor joint partners in any corporate estate which they can sell or devise to others, or which can be attached and levied on for their debts. Hence, gener- ally, the doings between them and the legislature are in the nature of legislation rather than compact, and subject to all the legislative conditions just named, and therefore to be considered as not violated by subsequent legislative changes. It is hardly possible to conceive the grounds on which a different result could be vin- dicated, without destroying all legislative sovereignty, and checking most legisla- tive improvements and amendments, as well as supervision over its subordinate public bodies." A different doctrine was advanced by Mr. Justice Barculo, in Ben- son v. Mayor, &c. of New York, 10 Barb. 234, who cites in support of his opinion, that ferry grants to the city of New York could not be taken away by the legisla- ture, what is said by Chancellor Kent, (2 Kent's Com. 275), that " public corpora- tions . . . may be empowered to take and hold private property for municipal uses ; and such property is invested with the security of other private rights. So cor- porate franchises attached to public cor- porations are legal estates, coupled witli an interest, and are -protected as private property." This is true in a general sense, and it is also true that, in respect to such property and franchises, the same rules of responsibility are to be applied as in the case of individuals. Bailey v. Mayor, &c. of New York, 3 Hill, 53 1". But it does not follow that the legislature, under its power to administer the government, of which these agencies are a part, and for the purposes of which the grant has been made, may not at any time modify the municipal powers and privileges, by trans- ferring the grant to some other agency, or revoking it when it seems to have be- come unimportant. A power to tax is not private property or a vested right which when once conferred upon a mu- nicipality by legislative act cannot be subsequently modified or repealed. The grant of such power is not a contract. Williamson v. New Jersey, 130 U. S. 189, 9 Sup. Ct. Rep. 453 ; Richmond v. Rich- mond, &c. R. R. Co., 21 Gratt. 604, 611. See post, p. 355, note 1. In People v. Power, 25 111. 187, 191, Breese, J., in speaking of a law which provided that three-fourths of the taxes collected in the county of Sangamon, with certain de- ductions, should be paid over to the city of Springfield, which is situated therein, says: "While private corporations are regarded as contracts which the legisla- ture cannot constitutionally impair, as the trustee of the public interests it has the exclusive and unrestrained control over public corporations ; and as it may CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 391 pal corporation charged with a trust in favor of an individual, private corporation, or charity, the interest which the cestui que trust has under the grant may sustain it against legislative revo- cation ; a vested equitable interest being property in the same sense and entitled to the same protection as a legal. 1 Those charters of incorporation, however, which are granted, not as a part of the machinery of the government, but for the private benefit or purposes of the corporators, stand upon a different footing, and are held to be contracts between the legis- lature and the corporators, having for their consideration the lia- bilities and duties which the corporators assume by accepting create, so it may modify or destroy, as public exigency requires or the public interests demand. Coles v. Madison County, Breese, 115. Their whole ca- pacities, powers, and duties are derived from the legislature, and subordinate .to that power. If, then, the legislature can destroy a county, they can destroy any of its parts, and take from it any one of its powers. The revenues of a county are not the property of the county, in the sense in which revenue of a private per- son or corporation is regarded. The whole State has an interest in the reve- nue of a county; and for the public good the legislature must have the power to direct its application. The power con- ferred upon a county to raise a revenue by taxation is a political power, and its application when collected must neces- sarily be within the control of the legis- lature for political purposes. This act of the legislature nowhere proposes to take from the county of Sangamon, and give to the city of Springfield, any prop- erty belonging to the county, or revenues collected for the use of the county. But if it did it would not be objectionable. But, on the contrary, it proposes alone to ap- propriate the revenue which may be col- lected by the county, by taxes levied on property both in the city and county, in certain proportions ratably to the city and county." It is held in People v. Ingersoll, 58 N. Y. 1, that the franchise to levy taxes by a county for county pur- poses was not exercised by the county as agt nt for the State, but as principal. And see Bush v. Shipman, 5 111. 186; Rich- land County v. Lawrence County, 12 111. 1 ; Sangamon Co. v. Springfield, 63 III. 66; Borough of Dunmore's Appeal, 5'2 Pa. St. 374; Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N. Y. 143; ante, pp. 342,347, and cases cited. [Statute exempting city's waterworks from taxation is not irrepealable. Cov- ington v. Kentucky, 173 U. S. 231, 19 Sup. Ct. Rep. 383Q * See Town of Pawlet v. Clark, 9 Cranch, 292, and Terrett v. Taylor, 9 Cranch, 43. The municipal corporation holding property or rights in trust might even be abolished without affecting the grant ; but the Court of Chancery might be empowered to appoint a new trustee to take charge of the property, and to execute the trust. Montpelier v. East Montpelier, 29 Vt. 12. Power to repeal a charter cannot be exercised so as to injure creditors already entitled to pay- ment, Morris v. State, 62 Tex. 728. A municipal corporation, like the State, may enter into contracts by legislative action. Where, for example, a village by ordinance grants to a railroad com- pany permission to use the streets of the village for its road-bed, on condition of grading and gravelling them at its own expense, the ordinance when accepted constitutes a contract from which neither party can withdraw. Cincinnati, &c. R. R. Co. v. Carthage, 36 Ohio St. 631. See also Hovelman v. Kansas City Ry. Co., 79 Mo. 632 ; Coast Line Ry. Co. v. Savannah, 30 Fed. Rep. 646 ; Los Angeles v. Water Co., 61 Cal. 65; Chicago, Mun., &c. Co. v. Lake, 130 111. 42, 22 N. E. 616. [Grant to a public corporation of all moneys received by a certain county from fines and penalties may be revoked at pleasure of legislature. Watson Seminary v. Co. Ct. of Pike Co., 149 Mo. 57, 50 S. W. 880, 45 L. R. A. 675.11 392 CONSTITUTIONAL LIMITATIONS. [CH. IX. them ; and the grant of the franchise can no more he resumed by the legislature, or its benefits diminished or impaired without the consent of the grantees, than any other grant of property or valu- able thing, unless the right to do so is reserved in the charter itself. 1 As the power to grant unamendable and irrepealable 1 Dartmouth College v. Woodward, 4 Wheat. 518; Trustees of Vincennes Uni- versity v. Indiana, 14 How. 2ti8 ; Planters' Bank o. Sharp, 6 How. 301 ; Piqua Bank r. Knoop, 16 How. 369 ; Binghamton Bridge Case, 3 Wall. 51 ; Norris v. Trus- tees of Abingdon Academy, 7 G. & J. 7 ; Grammar School v. Burt, 11 Vt. 632 ; Brown v. Hummel, 6 Pa. St. 86; State v. Hey ward, 3 Rich. 389 ; People v. Man- hattan Co., 9 Wend. 351 ; Commonwealth v. Cullen, 13 Pa. St. 132; Commercial Bank of Natchez v. State, 14 Miss. 599 ; Backus v. Lebanon, 11 N. H. 19; Michi- gan State Bank v. Hastings, 1 Doug. (Mich.) 225; Bridge Co. v. Hoboken Co., 13 N. J. Eq. 81; Miners' Bank v. United States, 1 Greene (Iowa), 553; Edwards v. Jagers, 19 Ind. 407 ; State v. Noyes, 47 Me. 189 ; Bruffet v. G. W. R. R. Co., 25 111. 353 ; People v. Jackson & Michigan Plank Road Co., 9 Mich. 285 ; Bank of the State v. Bank of Cape Fear, 13 Ired. 75 ; Mills v. Williams, 11 Ired. 558 ; Haw- thorne v. Calef, 2 Wall. 10; Wales v. Stetson, 2 Mass. 143 ; Nichols v. Bertram, 3 Pick. 342 ; King v. Dedham Bank, 15 Mass. 447 ; State v. Tombeckbee Bank, 2 Stew. 30 ; Central Bridge v. Lowell, 15 Gray, 106; Bank of the Dominion v. McVeigh, 20 Gratt. 457 ; Sloan v. Pacific R. R. Co., 61 Mo. 24 ; State v. Richmond, &c. R. R. Co., 73 N. C. 527; Turnpike Co. v. Davidson Co., 3 Tenn. Ch. 397 ; Detroit v. Plank Road Co., 43 Mich. 140, 5 N. W. 275 ; Penn. R. R. Co. v. Balti- more, &c. R. R. Co., 60 Md. 263 ; Com. v. Erie & W. Tr. Co., 107 Pa. St. 112; Houston & T. C. Ry. Co. v. Texas & P. Ry. Co., 70 Tex. 649, 8 S. W. 498 ; fJCity R. Co. v. Citizens' Street R. Co , 166 L T . S. 557, 17 Sup. Ct. Rep. 653 ; Mich. Tel. Co. v. St. Joseph, 121 Mich. 502, 80 N. W. 383, 47 L. R. A. 87 ; Ingersoll v. Nassau Elec- tric R. Co., 157 N. Y. 453, 52 N. E. 645, 43 L. R. A. 236 ; Franklin Co. Grammar School w. Bailey, 62 Vt. 467, 20 All. 820, 10 L. R. A. 405, and note ; Nashville, M., 6 S. Tump. Co. v. Davidson County, 106 Tenn. 258, 61 S. W. 68; Stale c. Lebanon & N. Turnp. Co., Tenn , 61 S. W. 1096 (Nov. 27, 1900). 3 The mere passage of an act of incorporation, however, does not make the contract ; and it may be re- pealed prior to a full acceptance by the corporators. Mississippi Society v. Mus- grove, 44 Miss. 820, 7 Am. Rep. 723. Or amended, Cincinnati, H. & I. R. R. Co. v. Clifford, 113 Ind. 460, 15 N. E. 624. See, further, Chincleclamouche L. & B. Co. v. Com., 100 Pa. St. 438. After the adoption of a constitutional amendment allowing amendment and repeal of charters, a cor- poration, previously chartered, accepted acts of the legislature. Held that its charter thereby became subject to altera- tion under the amendment, and that it was affected by a constitutional amend- ment passed thereafter. Penn. R. R. Co. v. Duncan, 111 Pa. St. 352. In affirming this decision it is held that the corpora- tion took its charter subject to changes in the constitution and general laws of the State. Penn. R. R. Co. v. Miller, 132 U. S. 75, 10 Sup. Ct. Rep. 34. An act, passed after the granting of a charter, allowing the corporation in a proper case to be wound up, is valid. A corporation is subject to such reasonable regulation as the legislature may prescribe short of a material interference with its privileges. Chicago Life Ins. Co v. Needles, 113 U. S. 574, 5 Sup. Ct. Rep. 681. fjUntil the cor- poration has entered upon the execution of a general power granted to it (e. g. to mortgage its property) the legislature may modify at will the conditions under which that power may be exercised (e. g. may enact that subsequent judgments against the corporation shall be prior liens upon its property). East Tenn., V. & G. R. Co. v. Frazier, 139 U. S. 288, 11 Sup. Ct. Rep. 517-3 The provision in a railroad charter prescribing the manner in which it may take lands for its pur- poses, only gives a remedy which may be altered. Mississippi R. R. Co. v. Mc- Donald, 12 Heisk. 54. Giving the right of cumulative voting to stockholders in a corporation with an irrepealable charter, (JH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 393 charters is one readily susceptible of being greatly abused, to the prejudice of important public interests, and has been greatly abused in the past, the people in a majority of the States, in framing or amending their constitutions, have prudently guarded which provides that each share shall have one vote, is a violation of contract. State v. Greer, 78 Mo. 188. It is under the protection of the decision in the Dart- mouth College Case that the most enor- mous and threatening powers in our country have been created ; some of the great and wealthy corporations actually having greater influence in the country at large, and upon the legislation of the country, than the States to which they owe their corporate existence. Every privilege granted or right conferred no matter by what means or on what pre- tence being made inviolable by the Constitution, the government is frequently found stripped of its authority in very im- portant particulars, by unwise, careless, or corrupt legislation ; and a clause of the federal Constitution, whose purpose was to preclude the repudiation of debts and just contracts, protects and perpetuates the evil. And as to the right to regulate charges for transportation of persons and prop- erty, see post, p. 870. In Mills v. Williams, 11 Ired. 558, 561, Pearson, J., states the difference between the acts of incorporation of. public and private corporations as follows : " The substantial distinction is this : Some cor- porations are created by the mere will of the legislature, there being no other party interested or concerned. To this party a portion of the power of the legis- lature is delegated, to be exercised for the general good, and subject at all times to be modified, changed, or annulled. Other corporations are the result of contract. The legislature is not the only party in- terested ; for, although it has a public purpose to be accomplished, it chooses to do it by the instrumentality of a second party. These two parties make a con- tract. The legislature, for and in consid- eration of certain labor and outlay of money, confers upon the party of the second part the privilege of being a cor- poration, with certain powers and capaci- ties. The expectation of benefit to the public is the moving consideration on one side ; that of expected remuneration for the outlay is the consideration on the other. It is a contract, and therefore can- not be modified, changed, or annulled, without the consent of both parties." An incorporated academy, whose endow- ment comes exclusively from the public, is a public corporation. Dart v. Houston, 22 Ga. 506. Compare State v. Adams, 44 Mo. 570. [In Skaneateles Water Works Co. v. Skaneateles, 161 N. Y 154, 55 N. E. 562, the municipality gave to the water company a franchise to main- tain and operate within its corporate limits a system of water-works for fur- nishing to the municipality and its in- habitants water. Later the municipality took appropriate action for the construc- tion of a system of water-works of its own. The action was enjoined as in violation of the provision of the Federal Constitution against the impairment of contracts. This case differs from Syra- cuse Water Co. v. Syracuse, 116 N. Y. 167, 22 N. E. 381, 5 L. R. A. 546, and Re Brooklyn, 143 N. Y. 596, 38 N. E. 983, 26 L. R. A. 270, in that in those cases it was a question of whether, where the franchise did not purport to be exclusive, a franchise might be given to a com- peting company. The Brooklyn case is affirmed in 166 U. S. 685, 17 Sup. Ct. Rep. 718, sub nom., Long Island Water- Supply Co. v. Brooklyn. The Skaneateles Case affirms the rule of these cases that such second franchises might be granted, but holds that the municipality itself can- not enter such competition without being open to the constitutional objection. See also Vicksburg Waterworks Co. v. Vicks- burg, 185 U. S. 65, Sup. Ct. Rep.. Westerly Water Works r. Westerly, 75 Fed. Rep. 181. See also additional cases cited ante, p. 387, note a. A statute re- lieving street railway company from the obligation to repair any portion of the streets over which its tracks are laid, does not impair the obligation of con- tract. Springfield v. Springfield St. Ry. Co, Mass. , 64 N. E. 577 (July 15, 1902) ; Worcester v. Worcester St. Ry. Co., Mass. , 64 N. E. 581 (July 15, 1902). 3 394 CONSTITUTIONAL LIMITATIONS. [CH. IX. against it by reserving the right to alter, amend, or repeal all laws that may be passed, conferring corporate powers. These provi- sions give protection from the time of their adoption, but the improvident grants theretofore made are beyond their reach. 1 In many States the constitutions also prohibit special charters, and all corporations are formed by the voluntary association of indi- viduals under general laws. 2 1 Respecting the power to amend or repeal corporate grants, some troublesome questions are likely to .arise which have only as yet been hinted at in the decided cases. Corporations usually acquire prop- erty under their grants ; and any property or any rights which become vested under a legitimate exercise of the powers granted, no legislative act can take away. Commonwealth v. Essex Co., 13 Gray, 239 ; Railroad Co. v. Maine, 96 U. S. 499; Sinking Fund Cases, 99 U. S. 700 ; Attor- ney-General v. Railroad Companies, 35 Wis. 425 ; Detroit v. Detroit & Howell P. R. Co., 43 Mich. 140, 6 N. W. 275. See post, pp. 837-839. But a legislature may grant to another corporation the franchises of an existing one, and may authorize the taking of its property upon compensation made. Greenwood v. Freight Co., 105 U. S. 13. A new con- stitution may allow water rates to be fixed by a public board, although the company had under the law of its organi- zation the right of representation upon the board. Spring Valley Water Works . Schottler, 110 U. S. 347, 4 Sup. Ct. Rep. 48. In many cases the property itself becomes valueless unless its employment in the manner contemplated in the cor- porate grant may be continued ; as in the case, for instance, of railroad property ; and whatever individual owners of such property might do without corporate powers, it must be competent for the stockholders to do after their franchises are taken away. Without speculating on the difficulties likely to arise, refer- ence is made to the following cases, in which the reserved power to alter or repeal corporate grants has been consid- ered or touched upon : Worcester v. Nor- wich, &c. R. R. Co., 109 Mass. 103; Railroad Commissioners v. Portland, &c. R. R. Co., 63 Me. 269, 18 Am. Rep 208; State v. Maine Cent. R. R. Co., 66 Me. 488; Ames r. Lake Superior R. R. Co., 21 Minn. 201 ; Sprigg v. Telegraph Co., 46 Md. 67; State v. Com'rs of R. R. Taxation, 37 N. J. 228 ; State v. Mayor of Newark, 35 N. J. 157 ; West Wis. R. R. Co. v. Supervisors, 35 Wis. 257 ; Union Improvement Co. v. Commonwealth, 09 Pa. St. 140; 111. Cent. R. R. Co. v. Peo- ple, 95 111. 313, 1 Am. & Eng. R. R. Cas. 188 ; Rodemacher v Milwaukee, &c. R. R. Co., 41 Iowa, 297, 20 Am. Rep. 5'J2; Gor- man v. Pacific R. R. Co., 20 Mo. 441; Gardner v. Hope Ins. Co., 9 R. I. 194, 11 Am. Rep. 238; Yeaton v. Bank of Old Dom., 21 Gratt. 593 ; Tomlinson c. Jes- sup, 15 Wall. 454; Tomlinson v. Branch, 15 Wall. 400 ; Miller v. State, 15 Wall. 478 ; Holyoke Co. v. Lyman, 15 Wall. 500; Detroit v. Detroit & H. P. R. Co., 43 Mich. 140, 5 N. W. 275; Ashuelot R. R. Co. v. Elliott, 58 N. H. 451 ; [Hamilton Gaslight & Coke Co. v. Hamilton, 146 U. S. 258, 13 Sup. Ct. Rep. 90. After subscribers to stock have paid for it in full, the legislature cannot increase their liabilities. Enterprise Ditch Co. v. Moffit, 58 Neb. 642, 79 N. W. 560. 45 L. R. A. 647.] Where no power to amend a charter has been reserved, amendments may nevertheless be made with the consent of the corporation, but the corporation cannot bind its shareholders by the ac- ceptance of amendments which effect fundamental changes in its character or purpose. See Gray v. Navigation Co., 2 W. & S. 156, 37 Am. Dec. 600; Stevens v. Rutland, &c. R. R. Co., .29 Vt. 545. [Where such power has been reserved, the mode of electing directors may be so modified as to permit cumulative voting in order to secure proportional represen- tation on the board of directors. Looker v. Maynard, 179 U. S. 46, 21 Sup. Ct. Rep. 21.] 2 Where corporations are thus formed, the articles of association, taken in con- nection with the General Statute under which they are entered into, constitute the charter. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 395 Perhaps the most interesting question which arises in this dis- cussion is, whether it is competent for the legislature to so bind up its own hands by a grant as to preclude it from exercising for the future any of the essential attributes of sovereignty in regard to any of the subjects within its jurisdiction ; whether, for instance, it can agree that it will not exercise the power of taxation, or the police power of the State, or the right of eminent domain, as to certain specified property or persons; and whether, if it shall undertake to do so, the agreement is not void on the general principle that the legislature cannot diminish the power of its successors by irrepealable legislation, and that any other rule might cripple and eventually destroy the government itself. If the legislature has power to do this, it is certainly a very dan- gerous power, exceedingly liable to abuse, and may possibly come in time to make the constitutional provision in question as prolific of evil as it ever has been, or is likely to be, of good. So far as the power of taxation is concerned, it has been so often decided by the Supreme Court of the United States, though not without remonstrance on the part of State courts, 1 'that an agreement by a State, for a consideration received or supposed to be received, that certain property, rights, or franchises shall be exempt from taxation, or be taxed only at a certain agreed rate, is a contract protected by the Constitution,)tliat the question can no longer be considered an open one. 2 In any case, however, 1 Mechanics' & Traders' Bank v. De- 2 New Jersey v. Wilson, 7 Cranch, 164; bolt, 1 Ohio St. 691; Toledo Bank v. Gordon v. Appeal Tax Court, 3 How. 133 ; Bond, 1 Ohio St. 622; Knoop v. Piqua Piqua Bank v. Knoop, 16 How. 369; Ohio Bank, 1 Ohio St. 603; Milan & R. Plank Life & Trust Co. v. Debolt, 16 How. Road Co. v. Husted, 3 Ohio St. 578 ; Pis- 416 ; Dodge v. Woolsey, 18 How. 331 ; cataqua Bridge v. N. H. Bridge, 7 N. H. Mechanics' & Traders' Bank v. Debolt, 35; Brewster v. Hough, 10 N. H. 138; 18 How. 380; Mechanics' & Traders' Backus v. Lebanon, 11 N. H. 19; Thorpe Bank v. Thomas, 18 How. 384; McGee v. v. R. & B. R. R. Co., 27 Vt. 140 ; Brainard Mathis, 4 Wail. 143 ; Home of the Friend- v. Colchester, 31 Conn. 407; Mottr. Penn- less v. Rouse, 8 Wall. 430; Washington sylvania R. R. Co., 30 Pa. St. 9; East University v. Rouse, 8 Wall. 43!); Wil- Saginaw Salt Manuf. Co. v. East Saginaw, mington R. R. Co. v. Reid, 13 Wall. 264 ; 19 Mich. 259; West Wis. R. Co. v. Super- Raleigh & Gaston R. R. Co. v. Reid, 13 visor of Trempeleau Co., 35 Wis. 257, 265 ; Wall. 269 ; Humphrey v. Pegues, 16 Wall. Attorney-General?;. Chicago, &C.R.R. Co., 244; Pacific R. R. Co. v. Magnire, 20 35 Wis. 425, 572. See also the dissenting Wall. 36: New Jersey v. Yard, 95 U. S. opinion of Mr. Justice Miller, in Washing- 104; Farrington v. Tennessee, 95 U. S. ton University v. Rouse, 8 Wall. 439, 441, 679; University v. Illinois, 99 U. S. 309; in which the Chief Justice and Justice New Orleans v. Houston, 119 U. S. 265, Field concurred. Also Raleigh, &c. R. R. 7 Sup. Ct Rep. 198. See also Atwater v. Co r. Reid, 64 N. C. 155. That one legisla- Woodbridge, 6 Conn. 223; Osborne v. ture cannot deprive another of the right Humphrey, 7 Conn. 335; Parker v. Red- to amend a charter by delegating to a city field, 10 Conn. 490; Landon v. Litchfield, power to grant corporate rights, see State 11 Conn. 251; Herrick v. Randolph, 13 v. Hilbert, 72 Wis. 184, 39 N. W. 326. Vt. 525 ; Aruaington v. Barnet, 15 Vt. 396 CONSTITUTIONAL LIMITATIONS. [CH. IX. there must be a consideration, so that the State can be supposed to have received a beneficial equivalent ; for it is conceded on all sides that, if the exemption is made as a privilege only, it may be revoked at any time. 1 And it is but reasonable that the exemp-y tion be construed with strictness. 2 745; O'Donnell v. Bailey, 24 Miss. 386; St. Paul, &c. R. R. Co. v. Parcher, 14 Minn. 297; Grand Gulf R. R. Co. v, Buck, 63 Miss. 246 ; Central R. R. Co. v. State, 54 Ga. 401 ; St. Louis, &c. R. R. Co. v. Lof tin, 30 Ark. 693 ; Prop'rs Mt. Auburn Cem. v. Cambridge, 150 Mass. 12, 22 N. E. .Rep. 66, where an exemption from all public taxes was held to cover a sewer assessment. [And see also Mobile & 0. R. Co. v. Tennessee, 153 U. sV~486, 14 Sup. Ct. Rep. 968 ; Stearns v. Minne- sota, 179 U. S. 223, 21 Sup. Ct. Rep. 73; Berger v. United States Steel Corp., N. J. L. , 53 Atl. 68. Where the legis- lature has reserved the right to amend, alter, or repeal any and all corporate charters, the withdrawal of an exemption from taxation does not impair the obli- gation of any contract. Louisville Water Co. v. Clark, 143 U. S. 1, 12 Sup. Ct. Rep. 346.] 1 Christ Church v. Philadelphia, 24 How. 300; Brainard v. Colchester, 31 Conn. 407. See also Commonwealth v. Bird, 12 Mass. 442 ; Dale >. The Gover- nor, 3 Stew. 387; Com'rs Calhoun Co. v. Woodstock Iron Co., 82 Ala. 151, 2 So. 132. [Grand Lodge of Louisiana v. New Orleans, 166 U. S. 143, 17 Sup. Ct. Rep. 523. But see Farrington v. Tennessee, 95 U. S. 679, and Bk. of Commerce v. Tennessee, 161 U. S. 134, 16 Sup. Ct. Rep. 456, both of which seem to overlook the necessity for a consideration.] If an exemption from taxation exists in any case, it must be the result of a deliberate intention to relinquish this prerogative of sovereignty, distinctly manifested. Easton Bank v. Commonwealth, 10 Pa. St. 450 ; Providence Bank v. Billings, 4 Pet. 514 ; Christ Church v. Philadelphia, 24 How. 300; Gilman v. Sheboygan, 2 Black, 510; Louisville & N. R. R. Co. v. Palmes, 109 U. S. 244, 3 Sup. Ct. Rep. 193 ; Memphis Gaslight Co. v. Shelby Co., 109 U. S. 398, 3 Sup. Ct. Rep. 205; Chicago, B. & K. C. Ry. Co. v. Guffey, 120 U. S. 569, 7 Sup. Ct. Rep. 693 ; State . Hilbert, 72 Wis. 184, 39 N. W. 326; Herrick v. Randolph, 13 Vt. 525; East Saginaw Salt Manuf. Co. v. East Saginaw, 19 Mich. 259; in error, 13 Wall. 373; People v. Roper, 35 N. Y. 629; People v. Commis- sioners of Taxes, 47 N. Y. 501 ; People v. Davenport, 91 N. Y. 574 ;. Lord v. Litch- field, 36 Conn. 116, 4 Am. Rep. 41 ; Erie Railway Co. v. Commonwealth, 66 Pa. St. 84, 5 Am. Rep. 351 ; Bradley v. McAtee, 7 Bush, 667, 3 Am. Rep. 309; North Missouri R. R. Co. v. Maguire, 49 Mo. 490, 8 Am. Rep. 141 ; Illinois Cent. R. R. Co. v. Irvin, 72 111. 452. [Coving- ton v. Kentucky, 173 U. S. 231, 19 Sup. Ct. Rep. 383; Citizens' Sav. Bk. v. Owensboro, 173 U. S. 636, 19 Sup. Ct. Rep. 530, 571 ; Louisville v. Bk. of Louis- ville, 174 U. S. 439, 19 Sup. Ct. Rep. 753. But taxes cannot, after revocation of an exemption, be levied for any part of the time prior to such revocation. Louisville Water Co. v. Kentucky, 170 U. S. 127, 18 2 See Cooley on Taxation, 146, and cases cited. Hoge v. Railroad Co., 99 U. S. 348; Railway Co. v. Philadelphia, 101 U. S. 528; Vicksburg, S. & P. R. R. Co. v. Dennis, 116 U. S. 665, 6 Sup. Ct. Rep. 625 ; Chicago, B. & K. C. Ry. Co. v. Guffey, 120 U. S. 569, 7 Sup. Ct. Rep. 693; Yazoo & M. R. R. Co. v Thomas, 132 U. S. 174, 10 Sup. Ct. Rep. 68. Bk. of Commerce v. Tennessee, 163 U. S. 416, 16 Sup. Ct. Rep. 1113, mod. s.C. 161 U. S. 134, 16 Sup. Ct. Rep. 456. Exemption will not be presumed. New Orleans C. & L. R, Co. v. New Orleans, 143 U. S. 192, 12 Sup. Ct. 406. Strictly construed, St. Paul, M. & M. R. Co. v. Todd County,, 142 U. S. 282, 12 Sup. Ct. Rep. 281, aff. 38 Minn. 163, 36 N. W. 109. See also Wheeling & B. Bridge Co. v. Wheeling Bridge Co., 138 U. S. 287, 11 Sup. Ct. Rep. 301 ; Joy v. St. Louis, 138 U. S. 1, 11 Sup. Ct. Rep. 243, and Free- port W. Co. v. Freeport, 180 U. S. 587, 21 Sup. Ct. Rep. 493.] CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 397 The power of the legislature to preclude itself in any case from exercising the power of eminent domain is not so plainly decided. It must be conceded, under the authorities, that the State may grant exclusive franchises, like the right to construct the only Sup. Ct. Rep. 571, rev. 18 Ky. L. Rep. 620, 37 S. W. 576.] Upon the reorganiza- tion of a corporation which had enjoyed an exemption, it passes, if all the " privi- leges " of the old pass to the new ; not, if the " rights and franchises" alone pass. Memphis & L. R. R. R. Co. v. R. R. Com'rs, 112 U. S. 009, 5 Sup. Ct. Rep. 209 ; St. Louis Iron M. & S. Ry. Co. v. Berry, 113 U. S. 465, 5 Sup. Ct. Rep. 529; Tennessee v. Whitworth, 117 U. S. 139, 6 Sup. Ct. Rep. 645. See Detroit St. Ry. Co. v. Guthard, 51 Mich. 180, 16 N. W. 328. FJGrant of "powers, rights, and capacities " of old corporation to new does not include exemptions enjoyed by old. Covington & L. Turnpike Road Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct. Rep. 198. Grant of "all the rights and privileges," omitting "and immunities," impliedly excludes the grant of exemp- tion from taxation enjoyed by old coiji- pany. Phoenix F. & M. Ins. Co. v. Ten- nessee, 161 U. S. 174, 16 Sup. Ct. Rep. 471, aff. 91 Tenn. 566. And where a corporation is exempt from taxation and becomes insolvent and its charter is sold under judicial decree, but not the shares of stock of the stockholders, the pur- chasers acquire only the right to reor- ganize as a corporation, subject to all the laws then in force, including a con- stitutional amendment passed after the organization of the original corporation and prior to the sale of the charter. Mercantile Bank v. Tennessee, 161 U. S. 161, 16 Sup. Ct. Rep. 466, aff. 95 Tenn. 212, 31 S. W. 989. Delay in accepting a charter containing exemptions from tax- ation until after a constitutional provision prohibiting exemptions has been passed is fatal. Planters' Ins. Co. v. Tennessee, 161 U. S. 193, 16 Sup. Ct. Rep. 466, aff. 95 Tenn. 203, 31 S. W. 992. An act giving a new corporation "all the . . . powers, rights, reservations, restrictions and liabilities given to and imposed upon " the old, does not convey to the new an exemption from taxation enjoyed by the old. Home Ins. & T. Co. v. Tennessee, 161 U. S. 198, 16 Sup. Ct. Rep. 476, fol- lowing Phoenix F. & M. Ins. Co. v. Ten- nessee, above ; People, &c. v. Cook, 148 U. S. 397, 13 Sup. Ct. Rep. 645, aff. 110 N. Y. 443, 18 N. E. 113, 47 Hun, 467. See also Wilmington & W. R. Co. i\ Alsbrook, 146 U. S. 279, 13 Sup. Ct. Rep. 72. Nor the power to fix tolls. St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 15 Sup. Ct. Rep. 484, 491, aff. 54 Ark. 101, 15 S. W. 18, 11 L. R. A. 452; Norfolk & W. R. Co. v. Pendleton, 156 U. S. 667, 15 Sup. Ct. Rep. 413. Where a corporation authorized to carry on an insurance business takes advantage, after the adoption of a constitutional provision prohibiting exemptions from taxation, of a statute permitting it to do a banking business, it so radically changes the char- acter of its business as to lose its exemp- tion from taxation. Memphis City Bank v. Tennessee, 161 U. S. 186, 16 Sup. Ct. Hep. 468, aff. 91 Tenn. 574, 19 S. W. 1045. And when two corporations are consolidated, a new corporation is formed, and if before the consolidation takes place a constitutional prohibition of ex- emptions from taxation has been made, the legislative grant to the consolidated corporation of all the " rights, privileges, and immunities" of the old corporations is ineffective to exempt the new from taxation. Keokuk & W. R. Co. v. Mis- souri, 152 U. S. 301, 14 Sup. Ct. Rep. 592, aff. 99 Mo. 30, 12 S. W. 290; Yazoo & M. V. R.R. Co. v. Adams, 180 U. S. 1, 21 Sup. Ct. Rep. 240, aff. 77 Miss. 302, 305, 315, 24 So. 200, 317, 28 So. 956. Where corporations are taxed upon their capital stock, the consolidated cor- poration may be compelled by the State under whose laws it is incorporated to pay the tax upon its entire capital stock, and not merely upon that of the consoli- dating corporation which was formerly a corporation of that State. Ashley r. Ryan, 153 U. S. 436, 14 Sup. Ct. Rep. 865. The new corporation is subject to all the laws existing at the time of its organization. People, &c. v. Cook, 148 U. S. 397, 13 Sup. Ct. Rep. 645, aff. 110 N. Y. 443, 18 N. E. 113, 47 Hun, 467.] 398 CONSTITUTIONAL LIMITATIONS. [CH. IX. railroad which shall be built between certain termini ; or the only bridge which shall be permitted over a river between specified limits; or to own the only ferry which shall be allowed at a cer- tain point, 1 but the grant of an exclusive privilege will not pre- vent the legislature from exercising the power of eminent domain in respect thereto. Franchises, like every other thing of value, and in the nature of property, within the State, are subject to this power; and any of their incidents may betaken away, or them- selves altogether annihilated, by means of its exercise. 2 And it is believed that an express agreement in the charter, that the power of eminent domain should not be so exercised as to impair or affect the franchise granted, if not void as an agreement be- yond the power of the legislature to make, must be considered as only a valuable portion of the privilege secured by the grant, and as such liable to be appropriated under the power of eminent domain. The exclusiveness of the grant, and the agreement against interference with it, if valid, constitute elements in its value to be taken into account in assessing compensation ; but appropriating the franchise in such a case no more violates the obligation of the contract than does the appropriation of land which the State has granted under an express or implied agree- ment for quiet enjoyment by the grantee, but which nevertheless may be taken when the public need requires. 3 All grants are subject to this implied condition ; and it may well be worthy of inquiry, whether the agreement that a franchise granted shall not afterwards be appropriated can have any other or greater force than words which would make it an exclusive franchise, but which, notwithstanding, would not preclude a subsequent grant 1 West River Bridge Co. v. Dix, 16 v. Union R. R. Co., 35 Md. 224 ; Eastern Vt. 446, and 6 How. 507; Binghamton R. R. Co. v. Boston, &c. R. R. Co., Ill Bridge Case, 3 Wall. 51; Shorten;. Smith, Mass. 125, 15 Am. Rep. 13. A way may 9 Ga. 517; Piscataqua Bridge v. N. H. be condemned through a cemetery in Bridge, 7 N. H. 35; Boston Water Power spite of a contract to the contrary. In re Co., v. Boston & Worcester R. R. Co., Twenty-second St., 16 Phila. 409, 102 Pa. 23 Pick. 360; Boston & Lowell R. R. St. 108. The use of land held by the v. Salem & Lowell R. R., 2 Gray, 1 ; State under contract to redeliver posses- Costar v. Brush, 25 Wend. 628; Cali- sion may be condemned. Tait's Exec. v. fornia Telegraph Co. v. Alta Telegraph Central Lunatic Asylum, 84 Va. 27, 4 S. E. Co., 22 Cal. 398. QWilliams v. Wingo, 697. That property has been acquired 177 U. S. 601, 20 Sup. Ct. Rep. 793.] by a corporation under the right of emi- 2 Matter of Kerr, 42 Barb. 119; En- nent domain does not prevent further field Toll Bridge Co. v. Hartford & N. H. appropriation of it under the same right. R. R. Co., 17 Conn. 40, 454; West River Chicago, &c. R. R. Co. v. Lake, 71 HI. Bridge Co. v. Dix, 16 Vt. 446, and 6 How. 333 ; Peoria, &c. R. R. Co. v. Peoria, &c. 507; Philadelphia & Gray's Ferry Co.'s Co, 66 111. 174; Eastern R. R, Co. v. Appeal, 102 Pa. St. 123. Boston, &c. R. R. Co., 11 1 Mass. 125. See 3 Alabama, &c. R. R. Co. v. Kenney, post, pp. 757, note 3, 806, note l.and cases 39 Ala. 307 ; Baltimore, &c. Turnpike Co. referred to. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 399 on making compensation. 1 The words of the grant are as much in the way of the grant of a conflicting franchise in the one case as in the other. It has also been intimated in a very able opinion that the police power of the State could not be alienated even by express grant. 2 And this opinion is supported by those cases where it 1 Mr. Greenleaf, in a note to his edi- tion of Cruise on Real Property, Vol. II. p. 67, says upon this subject : " In regard to the position that the grant of the fran- chise of a ferry, bridge, turnpike, or rail- road is in its nature exclusive, so that the State cannot interfere with it by the creation of another similar franchise tend- ing materially to impair its value, it is with great deference submitted that an important distinction should be observed between those powers of government which are essential attributes of sover- eignty, indispensable to be always pre- served in full vigor, such as the power to create revenues for public purposes, to provide for the common defence, to provide safe and convenient ways for the public necessity and convenience, and to take private property for public uses, and the like, and those powers which are not thus essential, such as the power to alien- ate the lands and other property of the State, and to make contracts of service, or of purchase and sale, or the like. Powers of the former class are essential to the constitution of society, as without them no political community can well exist; and necessity requires that they should continue unimpaired. They are intrusted to the legislature to be exer- cised, not to be bartered away ; and it is indispensable that each legislature should assemble with the same measure of sov- ereign power which was held by its predecessors. Any act of the legislature disabling itself from the future exercise of powers intrusted to it for the public good must be void, being in effect a covenant to desert its paramount duty to the whole people. It is therefore deemed not com- petent for a legislature to covenant that it will not, under any circumstances, open another avenue for the public travel within certain limits, or in a certain term of time ; such covenant being an alien- ation of sovereign powers, and a violation of public duty." See also Redfield on Railways (3d. ed.), Vol. I. p. 258. That the intention to relinquish the right of eminent domain is not to be presumed in any legislative grant, see People v. Mayor, &c. of New York, 32 Barb. 102; Illinois & Michigan Canal v. Chicago & Hock Island Railroad Co., 14 111. 314; Eastern R. R. Co. v. Boston, &c. R. R. Co., Ill Mass. 125, 15 Am. Rep. 13; Turnpike Co. v. Union R. R. Co., 35 Md. 224. 2 " We think the power of the legisla- ture to control existing railways in this respect may be found in the general con- trol over the police of the country, which resides in the law-making power in all free States, and which is, by the fifth ar- ticle of the Bill of Rights of this State, expressly declared to reside perpetually and inalienably in the legislature, which is perhaps no more than the enunciation of a general principle applicable to all free States ; and which cannot therefore be violated so as to deprive the legis- lature of the power, even by express grant to any mere public or private cor- poration. And when the regulation of the policy of a city or town, by general ordi- nances, is given to such towns and cities, and the regulation of their own internal police is given to railroads, to be carried into effect by their by-laws and other regulations, it is, of course, always, in all such cases, subject to the superior control of the legislature. That is a responsibil- ity which legislatures cannot divest them- selves of, if they would." Thorpe v. R. & B. R. R. Co., 27 Vt. 140, 149, per Redfield, Ch. J. The legislature cannot make an irrepealable contract as to that which affects public morals or public health, so as to limit the exercise of the police power over the subject-matter. Butcher's Union Co. v. Crescent City Co., Ill U. S. 746, 4 Sup. Ct. Rep. 052. See also Indian- apolis, &c. R. R. Co. v. Kercheval, Ifi Ind. 84; Ohio, &c. R. R. Co. v. McClelland, 25 111. 140. See State v. Noyes, 47 Me. 189, on the same subject. In Bradley ?. McAtee, 7 Bu*h, 607, 3 Am. Rep. 300, it was decided that a provision in a city 400 CONSTITUTIONAL LIMITATIONS. [CH. IX. has been held that licenses to make use of property in certain modes may be revoked by the State, notwithstanding they may be connected with grants and based upon a consideration. 1 But this subject we shall recur to hereafter. It would .seem, therefore, to be the prevailing opinion, and one based upon sound reason, that the State cannot barter away, or in any manner abridge or weaken, any of those essential powers which are inherent in all governments, and the existence of which in full vigor is important to the well-being of organized society ; and that any contracts to that end are void upon general prin- ciples, and cannot be saved from invalidity by the provision of the national Constitution now under consideration. If the tax cases are to be regarded as an exception to this statement, the exception is perhaps to be considered a nominal rather than a charter that, after the first improvement of a street, repairs should be made at the expense of the city, was not a contract; and on its repeal a lot-owner, who had paid for the improvement, might have his lot assessed for the repairs. Compare Hammett v. Philadelphia, 65 Pa. St. 146, 3 Am. Eep. 615. 1 See, upon this subject, Brick Pres- byterian Church v. Mayor, &c. of New York, 6 Cow. 638 ; Vanderbilt v. Adams, 7 Cow. 349 ; State v. Sterling, 8 Mo. 697 ; Him v. State, 1 Ohio St. 15; Calder v. Kurby, 5 Gray, 597 ; Brimmer v. Boston, 102 Mass. 19. The power of the State, after granting licenses for the sale of liq- uors and receiving fees therefor, to revoke the licenses by a general law forbidding sales, has been denied in some cases. See State v. Phalen, 3 Harr. 441; Adams 17. Hachett, 27 N. H. 289 ; Boyd v. State, 36 Ala. 329. But there is no doubt this is entirely competent. Freleigh v. State, 8 Mo. 606; State v. Sterling, 8 Mo. 697 ; Calder v. Kurby, 5 Gray, 697 ; Met. Board of Excise v. Barrie, 34 N. Y. 657 ; Balti- more v. Cluner, 23 Md. 449; Fell v. State, 42 Md. 71, 20 Am. Rep. 83; Common- wealth v. Brennan, 103 Mass. 70 ; McKin- ney v. Salem, 77 Ind. 213; Moore v. Indianapolis, 120 Ind. 483, 22 N. E. 424 ; La Croix v. Co. Com'rs, 60 Conn. 321; Brown v. State, 82 Ga. 224, 7 S. E. 915; Beer Company r. Massachu- setts, 97 U. S. 25. Compare State v. Cooke, 24 Minn. 247; Pleuler v. State, 11 Neb. 647, 10 N. W. 481. An addi- tional license may be required within the period covered by a former one. Row- land v. State, 12 Tex. App. 418. A mer- chant's license may be revoked by a police regulation inconsistent with it. State v. Burgoyne, 7 Lea, 173. But a munici- pality cannot add to the statutory grounds for revocation. Lantz v. Highstown, 46 N. J. L. 102. Grants of the right to es- tablish lotteries are mere privileges, and as such are revocable. Bass v. Nash- ville, Meigs, 421, 83 Am. Dec. 154; State t7. Morris, 77 N. C. 612 ; Stone v. Missis- sippi, 101 U. S. 814 ; Justice v. Com., 81 Va. 209; State v. Woodward, 89 Ind. 110; [Douglas v. Kentucky, 168 U. S. 488, 18 Sup. Ct. Rep. 199.] But if they are au- thorized by the constitution, they cannot be abolished by the legislature. New Orleans v. Houston, 119 U. S. 265, 7 Sup. Ct. Rep. 198. In short, the State cannot by any legislation irrevocably hamper itself in the exercise of its police power. Toledo, &c. R. R. Co. v. Jacksonville, 67 111. 37; Chicago Packing Co. v. Chicago, 88 111. 221 ; Beer Company v. Massachu- setts, 97 U. S. 25; Fertilizing Co v. Hyde Park, 97 U. S. 659; Stone v. Mississippi, 101 U. S. 814; People v. Commissioners, 69 N. Y. 92. An act requiring all under- ground electric lines to be laid under the orders of a commission violates no con- tract rights of their owners. People r. Squire, 107 N. Y. 693, 14 N. E. 820. No doubt if a license is revoked for which the State has collected money, good faith would require that the money be returned. Him v. State, 1 Ohio St. 15. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 401 real one, since taxation is for the purpose of providing the State a revenue, and the State laws which have been enforced as con- tracts in these cases have been supposed to be based upon con- sideration, by which the State receives the benefit which would have accrued from an exercise of the relinquished power in the ordinary mode. Exclusive Privileges. Under the rulings of the federal Supreme Court, the grant of any exclusive privilege by a State, if lawfully made, is a contract, and not subject to be recalled. 1 As every exclusive privilege is in the nature of a monopoly, it may at some time become a question of interest, whether there are any, and if so what, limits to the power of the State to grant them. In former times, such grants were a favorite resort in England, not only to raise money for the personal uses of the monarch, but to reward favorites ; and the abuse grew to such enormous magni- tude that Parliament in the time of Elizabeth, and again in the times of James I., interfered and prohibited them. What is more important to us is, that in 1602 they were judicially declared to be illegal. 2 These, however, were monopolies in the ordinary occupations of life ; and the decision upon them would not affect the special privileges most commonly granted. Where the grant is of a franchise which would not otherwise exist, no question can be made of the right of the State to make it exclusive, unless the constitution of the State forbids it ; because, in contemplation of law, no one is wronged when he is only excluded from that to which he never had any right. An exclusive right to build and maintain a toll bridge or to set up a ferry may therefore be granted ; and the State may doubtless limit, by the requirement of a license, the number of persons who shall be allowed to en- gage in employments the entering upon which is not a matter of common right, and which, because of their liability to abuse, may require special and extraordinary police supervision. The busi- ness of selling intoxicating drinks and of setting up a lottery are illustrations of such employments. But the grant of a monopoly in one of the ordinary and necessary occupations of life must be as clearly illegal in this country as in England; and it would be impossible to defend and sustain ifc, except upon the broad ground that the legislature may control and regulate the ordinary em- ployments, even to the extent of fixing the prices of labor and of commodities. As no one pretends that the legislature pos- sesses such a power, and as its existence would be wholly incon- sistent with regulated liberty, it must follow that lawful grants 1 Ante, p. 395, and cases cited; Slaugli- 2 Darcy v. Allain, 11 Rep. 84. ter-House Cases, 16 Wall. 36, 74. 26 402 CONSTITUTIONAL LIMITATIONS. [oil. IX. of special privileges must be confined to cases where they will take from citizens generally nothing which before pertained to them as of common right. 1 Changes in the General Laws. We have said in another place that citizens have no vested right in the existing general laws of the State which can preclude their amendment or repeal, and that there is no implied promise on the part of the State to protect its citizens against incidental injury occasioned by changes in the law. Nevertheless there may be laws which amount to proposi- tions on the part of the State, which, if accepted by individuals, will become binding contracts. Of this class are perhaps to be considered bounty laws, by which the State promises the payment of a gratuity to any one who will do any particular act supposed to be for the State interest. Unquestionably the State may re- peal such a law at any time ; 2 but when the proposition has been accepted by the performance of the act before the law is repealed, the contract would seem to be complete, and the promised gra- tuity becomes a legal debt. 3 And where a State was owner of the stock of a bank, and by the law its bills and notes were to be received in payment of all debts due to the State, it was properly held that this law constituted a contract with those who should receive the bills before its repeal and that a repeal of the law could not deprive these holders of the right which it assured. Such a law, with the acceptance of the bills under it, " comes within the definition of a contract. It is a contract founded upon a good and valuable consideration, a consideration beneficial to the State ; as its profits are increased by sustaining the credit, 1 The grant of an exclusive privilege U. S. 674, 6 Sup. Ct. Rep. 273; St. Tam- in slaughtering cattle in the vicinity of many Water Works v. New Orleans Water New Orleans was upheld as an exercise Works, 120 U. S. 64, 7 Sup. Ct. Rep. 405; of the police power, in the Slaughter- Citizens' Water Co. v. Bridgeport, &c. Co., House Cases, 16 Wall. 36. But the legis- 65 Conn. 1, 10 Atl. 170. lature could not by a grant of this kind 2 Christ Church v. Philadelphia, 24 make an irrepealable contract. In regard How. 300; East Saginaw Salt Manuf. to public health and public morals a legis- Co. v. East Saginaw, 19 Mich. 259, 2 lature cannot by any contract limit the Am. Rep. 82, and 13 Wall. 373. So as to exercise of the police power to the preju- pension to a policeman: Pennie v. Reis, dice of the general welfare. Butcher's 80 Cal. 266, 22 Pac. 176; or an exempiion Union Co. v. Crescent City Co., Ill U. S. from taxation to persons planting forest 746, 4 Sup. Ct. Rep. 652. An irrepealable trees. Shiner v. Jacobs, 62 Iowa, 392, 17 contract giving exclusive privileges with N. W. 613. reference to lighting a city, may be made. 8 People v. Auditor-General, 9 Mich. New Orleans Gaslight Co. v. Louisiana 327. See Montgomery v. Kasson, 16 Cal. Light Co., 115 U. S. 650, 6 Sup. Ct. Rep. 189 ; Adams v. Palmer, 51 Me. 480. 25'2 ; Louisville Gas Co. v. Citizens' Gas QState cannot lower the rate of interest Co., 115 U. S. 683, 6 Sup. Ct. Rep. 265. upon its warrants already issued. State So as to the privilege of furnishing water, v. Barrett, 25 Mont. 112, 63 Pac. 1030.] New Orleans Water Works r. Rivers, 115 CII. IX.] FEDERAL PROTECTION TO PERSON, ETC. 403 and consequently extending the circulation, of the paper of the bank." l That laws permitting the dissolution of the contract of marriage are not within the intention of the clause of the Constitution under discussion, has been many times affirmed. 2 It has been intimated, however, that, so far as property rights are concerned, the con- tract must stand on the same footing as any other, and that a law passed after the marriage, vesting the property in the wife for her sole use, would be void, as impairing the obligation of con- tracts. 3 But certainly there is no such contract embraced in the marriage as would prevent the legislature changing the law, and vesting in the wife solely all property which she should acquire thereafter ; and if the property had already become vested in the husband, it would be protected in him, against legislative transfer to the wife, on other grounds than the one here indicated. " TJie obligation of a contract" it is said, " consists in its bind- ing force on the party who makes it. This depends on the laws in existence when it is made ; these are necessarily referred to in all contracts, and forming a part of them as the measure of the obligation to perform them by the one party, and the right ac- quired by the other. There can be no other standard by which to ascertain the extent of either, than that which the terms of the contract indicate, according to their settled legal meaning ; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty or to impair the right, it necessarily bears on the obligation of the contract, in favor of one party, to the injury of the other ; 1 Woodruff v. Trapnall, 10 How. 190. 246. So of county warrants. People See Winter v. Jones, 10 Ga. 190 ; Fur- v. Hall, 8 Col. 485, 9 Pac. 34. An act, man v. Nichol, 8 Wall. 44. A law which changing after issue the place of payment makes coupons on State bonds receivable of municipal bonds, is bad. Dillingham v. for all taxes and dues is a contract, the Hook, 32 Kan. 185, 4 Pac. 166. So one obligation of which no subsequent law requiring bonds payable to bearer to be can impair. Antoni v. Wright, 22 Gratt. registered. Priestly v. Watkins, 62 Miss. 833; Hartman v. Greenhow, 102 U. S. 672 ; 798. See People v. Otis, 90 N. Y. 48. Poindexter v. Greenhow, 111 U. S. 270, But compare Gurnee v. Speer, 68 Ga. 6 Sup. Ct. Rep. 903, 962; [McCullough 711. v. Virginia, 172 U. S. 102, 19 Sup. Ct. Rep. 2 Per Marshall, Ch. J., Dartmouth Col- 134, and many cases therein cited. A lege v. Woodward, 4 Wheat. 518, 629; valuable history of the persistent attempts Maynard v. Hill, 125 U..S. 190, 8 Sup. Ct. of Virginia to avoid the obligation of these Rep. 723; Maguire . Maguire, 7 Dana, bonds and their coupons may be found in 181 ; Clark v. Clark, 10 N. H. 380 ; Cronise McGahey v. Virginia, 135 U. S. 662, 10 v. Cronise, 54 Pa. St. 255; Carson v. Car- Sup. Ct. Rep. 972.] Compare Corn wall u. son, 40 Miss. 349,; Adams v. Palmer, 51 Com.. 82 Va. 644 ; Com. v. Jones, 82 Va. Me. 480. 789 ; Ellett v. Com., 85 Va. 517, 8 S. E. 8 Holmes v. Holmes, 4 Barb. 295. 404 CONSTITUTIONAL LIMITATIONS. [CH. IX. hence any law which in its operations amounts to a denial or obstruction of the rights accruing by a contract, though profess- ing to act only on the remedy, is directly obnoxious to the pro- hibition of the Constitution." 1 " It is the civil obligation of con- tracts which [the Constitution] is designed to reach ; that is, the obligation which is recognized by, and results from, the law of the State in which it is made. If, therefore, a contract when 1 McCracken v. Hay ward, 2 How. 608, 612. " The obligation of a contract . . . is the law which binds the parties to per- form their agreement. The law, then, which has this binding obligation must govern and control the contract, in every shape in which it is intended to bear upon it, whether it affects its validity, con- struction, or discharge. It is, then, the municipal law of the State whether that be written or unwritten, which is emphatic- ally the law of the contract made within the State, and must govern it throughout, whenever its performance is sought to be enforced." Washington, J., in Ogden ;. Saundere, 12 Wheat. 213, 257, 259. " As I understand it, the law of the contract forms its obligation." Thompson, J., ibid. 302. "The obligation of the contract consists in the power and efficacy of the law which applies to, and enforces per- formance of, the contract, or the payment of an equivalent for non-performance. The obligation does not inhere and sub- sist in the contract itself, proprio vigore, but in the law applicable to the contract. This is the sense, I think, in which the Constitution uses the term 'obligation.'" Trimble, J., ibid. 318. And see Van Baumbach v. Bade, 9 Wis. 559 ; Johnson v. Higgins, 3 Met. (Ky.) 566; People v. Ingersoll, 58 N. Y. 1. Requirement of a license tax for permission to do what a contract with the city gives authority to do, without " let, molestation, or hin- drance," is void. Stein v. Mobile, 49 Ala. 362, 20 Am. Rep. 283. But licenses in general are subject to the taxing power. Home Ins. Co. v. Augusta, 93 U. S. 116; Reed v. Beall, 42 Miss. 472; Cooley on Taxation, 386, and cases cited. A law taxing a debt to the debtor and making him pay the tax and deduct the amount from the debt is valid. Lehigh V. R. R. Co. v. Com., 129 Pa. St. 429, 18 Atl. 410. So where the debtor, a foreign cor- poration, has paid for the privilege of being exempt from taxation. New York, L. E. & W. R. R. Co. v. Com., 129 Pa. St. 463, 18 Atl. 412. A law giving in- terest on debts, which bore none when contracted, was held void in Goggans v. Turnispeed, 1 S. C. (N. s.) 40, 7 Am. Rep. 23. The legislature cannot authorize the compulsory extinction of ground rents, on payment of a sum in gross. Palairet's Appeal, 67 Pa. St. 479, 5 Am. Rep. 450. A State law, discontinuing a public work, does not impair the obligation of con- tracts, the contractor having his just claim for damages. Lord v. Thomas, 64 N. Y. 107. A law giving an abutter a right to damages when a railroad is laid in the street is valid as to changes there- after made by a railroad, though a city ordinance had given it the right to use the street. Drady v. Des Moines, &c. Co , 57 Iowa, 393, 10 N. W. 754. See also Mulholland v. Des Moines, &c. Co., 60 Iowa, 740, 13 N. W. 726. A statute pro- viding for reversion of land condemned for railroad purposes if work on the road has ceased for eight years is valid. The property right does not attach to the land independent of its use for public purposes. Skillman v. Chicago, &c. Ry. Co., 78 Iowa, 404, 43 N. W. 275. Where at the time a contract was made a judgment for damages for breach thereof was renew- able indefinitely, a later enacted statute limiting absolutely the life of the judg- ment is void with regard to this contract. Bettman v. Cowley, 19 Wash. 207, 53 Pac. 53, 40 L. R. A. 815, and see also Palmer v. Laberee, 23 Wash. 409, 63 Pac. 216. Warrant of attorney to holder of note to enter judgment against maker upon default of payment, and issue exe- cution, etc., valid when note was made cannot be invalidated by subsequent statute. Second Ward Savings Bank v. Schranck, 97 Wis. 250, 73 N. W. 31, 39 L. R. A. 669J CH. IX.] FEDERAL PEOTECTION TO PERSON, ETC. 405 made is by the law of the place declared to be illegal, or deemed to be a nullity, or a nude pact, it has no civil obligation; because the law in such cases forbids its having any binding efficacy or force. It confers no legal right on the one party, and no cor- respondent legal duty on the other. There is no means allowed or recognized to enforce it ; for the maxim is ex nudo pacto non oritur actio. But when it does not fall within the predicament of being either illegal or void, its obligatory force is coextensive with its stipulations." 1 Such being the obligation of a contract, it is obvious that the rights of the parties in respect to it are liable to be affected in many ways by changes in the laws, which it could not have been the intention of the constitutional provision to preclude. " There are few laws which concern the general police of a State, or the government of its citizens, in their intercourse with each other or with strangers, which may not in some way or other affect the contracts which they have entered into or may thereafter form. For what are laws of evidence, or which concern remedies, frauds, and perjuries, laws of registration, and those which affect land- lord and tenant, sales at auction, acts of limitation, and those which limit the fees of professional men, and the charges of tavern-keepers, and a multitude of others which crowd the codes of every State, but laws which may affect the validity, construc- tion, or duration, or discharge of contracts ?" 2 But the changes in these laws are not regarded as necessarily affecting the obliga- tion of contracts. Whatever belongs merely to the remedy may 1 Story on Const. 1380. Slave con- Levy v. Hitsche, 40 La. Ann. 600, 4 tracts, which were legal when made, are So. 472 ; QLos Angeles v. Los Angeles not rendered invalid by the abolition of City Water Co., 177 U. S. 558, 20 Sup. Ct. slavery ; nor can the States make them Rep. 736 .] But such construction is not void by their constitutions, or deny rem- " settled " by a single decision. McLure edies for their enforcement. White v. v. Melton, 24 S. C. 659. The same rule Hart, 13 Wall. 646; Osborn v. Nicholson, applies to the settled construction of a 13 Wall. 654 ; .Tacoway v. Denton, 25 constitution. Louisiana v. Pilsbury, 105 Ark. 641. An act of indemnity held not U. S. 278. QAn ordinance which in effect to relieve a sheriff from his obligation on denies any contract obligation is not a his official bond to account for moneys law impairing the obligation of contract which had been paid away under mili- though the obligation does exist. The tary compulsion. State v. Gatzweiler, 49 contract may still be enforced if found Mo. 17, 8 Am. Rep. 119. The settled to exist notwithstanding such denial, judicial construction of a statute, so far St. Paul Gaslight Co. v. St. Paul, 181 as con tract rights are there under acquired, U. S. 142, 21 Sup. Ct. Rep. 675, aff. 78 is to be deemed a part of the statute Minn. 39, 80 N. W. 774, 877.] itself, and enters into and becomes a part a Washington, J., in Odgen v. Saunders, of the obligation of the contract ; ami no 12 Wheat. 213, 259. As to the indirect subsequent change in construction can be modification of contracts by the opera- suffered to defeat or impair the contracts tion of police laws, see ante, pp. 399, 400, already entered into. Douglass v. Pike notes ; post, pp. 831-851. County, 101 U. S. 677, and cases cited. 406 CONSTITUTIONAL LIMITATIONS. [CH. IX. be altered according to the will of the State, provided the altera- tion does not impair the obligation of the contract ; l and it does not impair it, provided it leaves the parties a substantial remedy, according to the course of justice as it existed at the time the contract was made. 2 Changes in Remedies. It has accordingly been held that laws changing remedies for the enforcement of legal contracts, or abolishing one remedy where two or more existed, may be perfectly valid, even though the new or the remaining remedy be less convenient than that which was abolished, or less prompt and speedy. 3 " Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall 1 Bronson v. Kinzie, 1 How. 311, 316, per Taney, Ch. J. ^Whether impairing remedy impairs obligation of contract, see note to 26 L. ed. U. S. 132.] 2 Stocking v. Hunt, 3 Denio, 274 ; Van Baumbach v. Bade, 9 Wis. 559 ; Bronson v. Kinzie, 1 How. 316 ; McCraoken v. Hay ward, 2 How. 608; Butler v. Palmer, 1 Hill, 324 ; Van Rensselaer v. Snycler, 9 Barb. 302, and 13 N. Y. 299; Conkey v. Hart, 14 N. Y. 22; Guild v. Rogers, 8 Barb. 502; Story v. Furman, 25 N. Y. 214; Coriell v. Ham, 4 Greene (Iowa), 455; Hey ward v. Judd, 4 Minn. 483; Swift y. Fletcher, 6 Minn. 550; Maynes v. Moore, 16 Ind. 116; Smith v. Packard, 12 Wis. 371; Grosvenor v. Chesley, 48 Me. 369; Van Rensselaer v. Ball, 19 N. Y. 100 ; Van Rensselaer v. Hays, 19 N. Y. 68 ; Litchfield v. McComber, 42 Barb. 288 ; Paschal v. Perez, 7 Tex. 348 ; Auld v. Butcher, 2 Kan. 135 ; Kenyon v. Stew- art, 44 Pa. St. 179; Clark v. Martin, 49 Pa. St. 299; Rison v. Farr, 24 Ark. 161 ; Oliver v. McClure, 28 Ark. 555; Holland v. Dickerson, 41 Iowa, 367 ; Chicago Life Ins. Co. ?>. Auditor, 101 111. 82 ; Wales v. Wales, 119 Mass. 89 ; Sanders v. Hills- borough Insurance Co., 44 N. H. 238 ; Huntzinger v. Brock, 3 Grant's Cases, 243; Mechanics', &c. Bank Appeal, 31 Conn. 63 ; Garland v. Brown's Adm'r, 23 Gratt. 173 ; Chattaroi Ry. Co. v. Kin- ner, 81 Ky. 221. A requirement that be- fore a mandamus shall issue to compel the receipt in accordance with contract of coupons for taxes, the petitioner shall pay the tax, and on proving the genuine- ness of the coupons shall have it refunded, is valid, though adopted after the forma- tion of the contract. Antoni v. Green- how, 107 U. S. 769, 2 Sup. Ct. Rep. 91 ; Moore v. Greenhow, 1 14 U. S. 338, 5 Sup. Ct. Rep. 1020. See Rousseau v. New Or- leans, 35 La. Ann. 557. A statute pro- viding for a review of judgments does not enter into contracts so that it may not be changed. Rupert v. Martz, 116 Ind. 72, 18 N. E. 381. See United Cos. v. Weldon, 47 N. J. L. 59 ; State v. Slevin, 16 Mo. App, 541. But the collection of a special tax cannot be hindered by requiring, after it is voted, a special collection bond with local sureties: Edwards v. Williamson, 70 Ala. 145; or a new and cumbrous mode of collection. Seibert v. Lewis, 122 U. S. 284, 7 Sup. Ct. Rep. 1190. 3 Ogden v. Saunders, 12 Wheat. 213 ; Beers v. Haughton, 9 Pet. 329 ; Tennes- see v. Sneed, 96 U. S. 69 ; Bumgardner v. Circuit Court, 4 Mo. 50; Tarpley r. Hamer, 17 Miss. 310; Danks v. Quack- enbush. 1 Denio, 128^ 3 Denio, 594, and 1 N. Y. 129 ; Bronson v. Newberry, 2 Doug. (Mich.) 38; Rockwell v. Hub- bell's Admr's, 2 Doug. (Mich.) 197 ; Evans v. Montgomery, 4 W. & S. 218; Hollo- way u. Sherman, 12 Iowa, 282 ; Sprecker v. Wakeley, 11 Wis. 432; Smith r. Pack- ard, 12 Wis. 371 ; Porter v. Mariner, 60 Mo. 364; Morse v. Goold, 11 N. Y. 281 ; Penrose v. Erie Canal Co., 56 Pa. St. 46; Smith v. Van Gilder, 26 Ark. 527 ; Coosa River St. B. Co. v. Barclay, 30 Ala. 120 ; Baldwin v. Newark, 38 N. J. 158: Moore v. State, 43 N. J. 203; Newark Savings Bank v. Forman, 33 N. J. Eq. 436 ; Simp- son v. Savings Bank, 56 N. H. 466. CH. IX.] FEDEEAL PKOTECTION TO PERSOX, ETC. 407 direct." J To take a strong instance : although the law at the time the contract is made permits the creditor to take the body of his debtor in execution, there can be no doubt of the right to abolish all laws for this purpose, leaving the creditor to his remedy against property alone. " Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punishment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair the obligation." 2 Nor is there any constitutional objection to 1 Sturges v. Crowninshield, 4 Wheat. 122, 200, per Marshall, Ch. J. ; Ward ?. Farwell, 97 III. 593. A statute allowing the defence of want of consideration in a sealed instrument previously given does not violate the obligation of contracts. Williams v. Haines, 27 Iowa, 251. See further Parsons v. Casey, 28 Iowa, 431 ; Curtis v. Whitney, 13 Wall. 68 ; Cook v. Gregg, 46 N. Y. 439. Right accruing under stipulation in a note to waive pro- cess and confess judgment may be taken away. Worsham v. Stevens, 66 Tex. 89, 17 S. W. 404. A statutory judgment lien may be taken away. Watson v. New York Central R. R. Co., 47 N. Y. 157 ; Woodbury v. Grimes, 1 Col. 100. Contra, Gunn v. Barry, 15 Wall. 610. The law may be so changed that a judgment lien shall not attach before a levy. Moore v. Holland, 16 S. C. 15. It may be ex- tended before it has expired. Ellis v. Jones, 61 Mo. 180. The mode of per- fecting a lien may be changed before it has actually attached. Whitehead v. Latham, 83 N. C. 232. The value of a mechanic's lien may not be materially affected by a statute making consum- mate a previously inchoiite right of dower. Buser v. Shepard, 107 Ind. 417, 8 N. E. 280. The obligation of the contract is not impaired if a substantial remedy remains. Richmond v. Rich- mond, &c. R. R. Co., 21 Gratt. 611. See Mabry v. Baxter, 11 Heisk. 682; Edwards v. Kearzey, 96 U. S.595; Bald- win v. Newark, 38 N. J. 158; Augusta Bank v. Augusta, 49 Me. 507 ; Thistle v. Frostbury Coal Co, 10 Md. 129. It is competent to provide by law that all mortgages not recorded by a day speci- fied shall be void. Vance v. Vance, 32 La. Ann. 186 ; aff. 108 U. S. 514, 2 Sup. Ct. Rep. 854. See Gilfillan v. Union Canal Co., 109 U S. 401, 3 Sup. Ct. Rep. 304 ; Gurnee v. Speer, 68 Ga. 711. Where the individual liability of offi- cers or stockholders in a corporation is a part of the contract itself, it cannot be changed or abrogated as to existing debts. Hawthorne r. Calef, 2 Wall. 10 ; Corning v. McCullough, 1 N. Y. 47; Story v. Furman, 25 N. Y. 214 ; Norris n. Wren- shall, 34 Md. 494 ; Brown v. Hitchcock, 36 Ohio St. 667 ; Providence Savings In- stitute r. Skating Rink, 52 Mo. 452 ; St. Louis, &c. Co. v. Harbine, 2 Mo. App. 134. But where it is imposed as a pen- alty for failure to perform some corpo- rate or statutory duty, it stands on the footing of all other penalties, and may be revoked in the discretion of the legis- lature. Union Iron Co. v. Pierce, 4 Biss. 327; Bay City, &c. Co. v. Austin, 21 Mich. 390; Breitung v. Lindauer, 37 Mich. 217 ; Gregory v. Denver Bank, 3 Col. 332. See Coffin v. Rich, 45 Me. 507 ; Weidenger v. Spruance, 101 111. 278. Where formerly when building subject to mechanic's lien stood upon mortgaged premises, it had upon fore- closure of lien to be sold and removed from premises, provision may be made by statute that the court when deeming it to be for best interests of parties may order land and building sold at the same time, giving mortgagee priority of claim upon proceeds of land and lienor priority upon those of buildings. Red Riv. V. Nat. Bk. v. Craig, 181 U. S. 548, 21 Sup. Ct. Rep. 703.] 2 Sturges v. Crowninshield, 4 Wheat. 122, per Marshall, Ch. J. ; Mason v. Haile, 12 Wheat. 370 ; Beers v. Haughton, 9 Pet. 408 CONSTITUTIONAL LIMITATIONS. [CH. IX. such a modification of those laws which exempt certain portions of a debtor's property from execution as shall increase the exemp- tions to any such extent as shall not take away or substantially impair the remedy, nor to the modifications being made applicable to contracts previously entered into. The State " may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furni- ture, shall, like wearing-apparel, not be liable to execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not, by every sovereignty, ac- cording to its own views of policy and humanity. It must reside in every State to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every commun- ity." 1 But a homestead exemption law, where none existed before, cannot be applied to contracts entered into before its enactment; 2 and in several recent cases the authority to increase exemptions and make them applicable to existing contracts has been altogether denied, 3 on the ground that, while professedly 329; Penniman's Case, 103 U. S. 714; Sommers v. Johnson, 4 Vt. 278, 24 Am. Dec. 604; Ware v. Miller, 9 S. C. 13; Bronson v. Newberry. 2 Doug. (Mich.) 38 ; Maxey v. Loyal, 38 Ga. 531. A spe- cial act admitting a party imprisoned on a judgment for tort to take the poor debt- or's oath was sustained in Matter of Nichols, 8 R. I. 50. In Alabama, where imprisonment for fraud is not permitted, a law making receipt of deposits by an insolvent banker a crime was held in- valid. Can- v. State, 106 Ala. 35, 34 L. R. A. 634, 54 Am. St. 17, 17 So. 350; see note to this case in L. R. A. upon constitutionality of imprisonment for debt. Guest who defrauds inn-keeper may be imprisoned. State v. Yardley, 95 Tenn. 546, 32 S. W. 481, 34 L. R. A. 656.] i Bronson v. Kinzie, 1 How. 311, 315, per Tanei/, Ch. J. ; Rockwell v. Hubbell's Adm'rs, 2 Doug. (Mich.), 197 ; Quacken- bush v. Danks, 1 Denio, 128, 3 Denio, 594, and 1 N. Y. 129 ; Morse v. Goold, 11 N. Y. 281; Sprecker v. Wakeley, 11 Wis. 432; Cusic v. Douglas, 3 Kan. 123 ; Maxey v. Loyal, 38 Ga. 531 ; Hardeman v. Downer, 39 Ga. 425 ; Hill v. Kessler, 63 N. C. 437 ; Farley r. Dowe, 45 Ala. 324 ; Sneider v. Heidelberger, 45 Ala. 126 ; In re Kennedy, 2 S. C. 216 ; Martin v. Hughes, 67 N. C. 293 ; Maull v. Vaughn, 45 Ala. 134 ; Breit- ung v. Lindauer, 37 Mich. 217; Coleman v. Ballandi, 22 Minn. 144. [^Assignments for purpose of evading exemption laws may be prohibited. Sweeney v. Hunter, 145 Pa. 363, 22 Atl. 653, 14 L. R. A. 594.] 2 Gunn v. Barry, 15 Wall. 610; Ed- wards v. Kearzey, 96 U. S. 595 ; Home- stead Cases, 22 Gratt. 266; Lessley v. Phipps, 49 Miss. 790; Foster v. Byrne, 76 Iowa, 295, 35 N. W. 513, 41 N. W. 22; Squire v. Mudgett, 61 N. H. 149. It may, however, be made applicable to previous rights of action for torts. Parker v. Sav- age, 6 Lea, 406 ; McAfee v. Covington, 71 Ga. 272. [^Statute providing that general assignment for benefit of creditors shall dissolve all attachments made within ten days prior thereto, is invalid as applied to contracts made when right of attachment was absolute. Peninsular Lead & C. Wks. v. Union Oil & P. Co., 100 Wis. 488, 76 N. W. 359, 42 L. R. A. 331, 69 Am. St. 934.] 8 Johnson v. Fletcher, 54 Miss. 628, 28 Am. Rep. 388 : Wilson v. Brown, 68 Ala. 62, 29 Am. Rep. 727; Duncan v. Barnett, 11 S. C. 333, 32 Am. Rep. 476 ; CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 409 operating upon the remedy only, they in effect impair the obliga- tion of the contract. 1 And laws which change the rules of evidence relate to the remedy only ; and while, as we have elsewhere shown, such laws may, on general principles, be applied to existing causes of action, so, too, it is plain that they are not precluded from such applica- tion by the constitutional clause we are considering. 2 And it has been held that the legislature may even take away a common-law remedy altogether, without substituting any in its place, if another and efficient remedy remains. Thus, a law abolishing distress for rent has been sustained as applicable to leases in force at its passage; 3 and it was also held that an express stipulation in the lease, that the lessor should have this remedy, would not prevent the legislature from abolishing it, because this was a subject con- cerning which it was not competent for the parties to contract in such manner as to bind the hands of the State. In the language of the court : " If this is a subject on which parties can contract, and if their contracts when made become by virtue of the Con- stitution of the United States superior to the power of the legis- lature, then it follows that whatever at any time exists as part of the machinery for the administration of justice may be per- petuated, if parties choose so to agree. That this can scarcely have been within the contemplation of the makers of the Con- stitution, and that if it prevail as law it will give rise to grave inconveniences, is quite obvious. Every such stipulation is in its Harris v. Austell, 2 Bax. 148; Wright v. 31 S. C. 1, 9 S. E. 726; post, pp. 533- Straub, 64 Tex. 64; Cochran v. Miller, 637. On this subject see the discussions 74 Ala. 60 ; Colin v. Hoffman, 45 Ark. in the federal courts. Sturges v. Crown- 376. \Jte Estate of Heilbron, 14 Wash, inshield, 4 Wheat. 122 ; Ogden v. Saun- 636, 45 Pae. 153, 35 L. R. A. 602. See ders, 12 Wheat. 213 ; Bronson v. Kinzie, also Canadian & A. M. & Trust Co. r. 1 How. 311 ; McCracken v. Hayward, 2 Blake, 24 Wash. 102, 63 Pac. 1100.] How. 608; Curtis r. Whitney. 13 Wall. 68. 1 " Statutes pertaining to the remedy An act declaring that no policy of life are merely such as relate to the course insurance shall be received in evidence, and form of proceedings, but do not affect when the application is referred to in it, the substance of a judgment when pro- unless a copy thereof is attached to it, is nounced." Per Merrick, Ch. J.,in Mortun valid. New Era Life Ass. r. Musser, v. Valentine, 15 La. Ann. 150. See Wat- 120 Pa. St. 384, 14 All. 155. But the rule son i?. N. Y. Central R. R. Co., 47 N. Y. that failure to register evidences of titles 157; Edwards v. Kearzey, 96 U. S. 595. shall not render them inadmissible in evi- But if after the debt is contracted and be- dence, cannot be changed by a new con- fore judgment upon it, the debtor marries, stitution. This is put on the ground that it is held in Tennessee that he is thereby the only means to establish and enforce entitled to the exemption in land owned the contract would be thus destroyed. by him before. Dye v. Cook, 88 Tenn. Texas Mex. Ry. Co. v. Locke, 74 Tex. 275, 12 S. W. 631. 370, 12 S. W 80. 2 Neass v. Mercer, 15 Barb. 318; Rich a Van Rensselaer v. Snyder, 9 Barb. v. Flanders, 39 N. H. 304 ; Howard v. 302, and 13 N. Y. 299 ; Guild v. Rogers, Moot, 64 N. Y. 262 ; Henry v. Henry, 8 Barb. 502 ; Conkey i>. Hart, 14 N. Y. 22. 410 CONSTITUTIONAL LIMITATIONS. [GIL IX. own nature conditional upon the lawful continuance of the pro- cess. The State is no party to their contract. It is bound to afford adequate process for the enforcement of rights ; but it has not tied its own hands as to the modes by which it will administer justice. Those from necessity belong to the supreme power to prescribe; and their continuance is not the subject of contract between private parties. In truth, it is not at all probable that the parties made their agreement with reference to the possible abolition of distress for rent. The first clause of this special provision is, that the lessor may distrain, sue, re-enter, or re- sort to any other legal remedy, and the second is, that in cases of distress the lessee waives the exemption of certain property from the process, which by law was exempted. This waiver of exemp- tion was undoubtedly the substantial thing which the parties had in view ; but yet perhaps their language cannot be confined to this object, and it may therefore be proper to consider the con- tract as if it had been their clear purpose to preserve their legal remedy, even if the legislature should think fit to abolish it. In that aspect of it the contract was a subject over which they had no control." 1 But a law which deprives a party of all legal remedy must necessarily be void. " If the legislature of any State were to undertake to make a law preventing the legal remedy upon a contract lawfully made and binding on the party to it, there is no question that such legislature would, by such act, exceed its legit- imate powers. Such an act must necessarily impair the obligation of the contract within the meaning of the Constitution." 2 This has been held in regard to those cases in which it was sought to deprive certain classes of persons of the right to maintain suits because of their having participated in rebellion against the gov- 1 Conkey v. Hart, 14 N. Y. 22, 30; only a barren right to sue, is void. State citing Handy v. Cliatfield, 23 Wend. 35; v. Bank of South Carolina, 1 S. C. 63. Mason v. Haile, 12 Wheat. 370; Stock- As the States are not suable except at ing v. Hunt, 3 Denio, 274 ; and Van Rens- their own option, the laws which they selaer v. Snyder, 13 N. Y. 299. See may pass for the purpose they may re- Briscoe v. Anketell, 28 Miss. 361. peal at discretion. Railroad Co. v. Ten- 2 Call v. Hagger, 8 Mass. 430. See nessee, 101 U. S. 337; Railroad Co. v. Osborn v. Nicholson, 13 Wall. 662 ; U. S. Alabama, 101 U. S. 832; State v. Bank, v. Conway, Hempst. 313 ; Johnson v. 8 Bax. 395 ; and this even after suit has Bond, Hempst. 533 ; West v. Sansom, 44 been instituted. Home v. State, 84 N. C. Ga. 295. See Griffin v. Wilcox, 21 Ind. 3(52 ; Railroad Co. v. Tennessee, supra. 370; Penrose v. Erie Canal Co., 56 Pa. FjThe more so where the judgment of the St. 46; Thompson v. Commonwealth, 81 court is only recommendatory. Baltzer Pa. St. 314 ; post, p. 517. An act with- v. North Carolina, 161 U. S. 240, 1.6 Sup. drawing all the property of a debtor from Ct. Rep. 500.] the operation of legal process, leaving CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 411 ernment. 1 And where a statute does not leave a part}' a sub- stantial remedy according to the course of justice as it existed at the time the contract was made, but shows upon its face an intention to clog, hamper, or embarrass the proceedings to enforce the remedy, so as to destroy it entirely, and thus impair the con- tract so far as it is in the power of the legislature to do it, such statute cannot be regarded as a mere regulation of the remedy, but is void, because a substantial denial of right. 2 But a judg- ment for a tort is not a contract, since it is not based upon the assent of parties. 3 It has also been held where a statute dividing a town and in- corporating a new one enacted that the new town should pay its proportion towards the support of paupers then constituting a charge against the old town, that a subsequent statute exoner- ating the new town from this liability was void, as impairing the contract created by the first-mentioned statute; 4 but there are cases which have reached a different conclusion, reasoning from the general and almost unlimited control which the State retains over its municipalities. 5 In any case the lawful repeal of a stat- ute cannot constitutionally be made to destroy contracts which have been entered into under it ; these being legal when made, they remain valid notwithstanding the repeal. 6 1 Rison K. Farr, 24 Ark. 611 ; McFar- tered into before the passage of the law. land v. Butler, 8 Minn. 116; Jackson v. Walker v. Whiteliead, 16 Wall. 314. Butler, 8 Minn. 117. But there is nothing 2 Oatman r. Bond, 16 Wis. 20. As to to preclude the people of a State, in an control of remedies, see post, p. 615. amendment to their constitution, taking 8 Louisiana v. New Orleans, 109 U. S. away rights of action, or other rights, so 285, 3 Sup. Ct. Rep. 211 ; Freeland v. long as they abstain from impairing the Williams, 131 U. S. 405, 9 Sup. Ct. Rep. obligation of contracts, and from impos- 763 ; Peerce v. Kitzmiller, 19 W. Va. 564. ing punishments. The power to do so In the former case a judgment for injury has been exercised with a view to the done by a mob became uncollectible by quieting of controversies and the restora- the diminution by legislation of the taxing tion of domestic peace after the late civil power of the city. In the two latter, re- war. Thus, in Missouri and some other covery for a tort committed as an act of States, all rights of action for anything war was forbidden after judgment by done by the State or Federal military au- constitutional amendment. Both the en- thorities during the war were taken away actment and the amendment were upheld, by constitutional provision ; and the au- See also, State v. New Orleans, 38 La. thority to do this was fully supported. Ann. 119, and cases post, p. 517, note 3- Drehman v. Strifel, 41 Mo. 184, in error, 4 Bowdoinham v. Richmond, 6 Me. 8 Wall. 595. And see Hess v. Johnson, 112. 3 W. Va. 645. A remedy also may be 6 See ante, pp. 268, 269, and cases cited denied to a party until he has performed in notes. his duty to the State in respect to the 6 Tuolumne Redemption Co. i>. Sedg- demand in suit; e.g. paid the tax upon wick, 15 Cal. 515; McCauley v. Brooks, the debt sued for. Walker v. Whiteliead, 16 Cal. 11 ; Commonwealth v. New Bed- 43 Ga. 538; Garrett v. Cordell, 43 Ga. ford Bridge, 2 Gray, 339 ; State v. Phalen, 366; Welborn v. Akin, 44 Ga. 420. But 3 Harr. 441; State v. Hawthorn, 9 Mo. this is denied as regards contracts en- 389. 412 CONSTITUTIONAL LIMITATIONS. [CH. IX. So where, by its terms, a contract provides for the payment of money by one party to another, and, by the law then in force, property would be liable to be seized, and sold on execution to the highest bidder, to satisfy any judgment recovered on such contract, a subsequent law, forbidding property from being sold on execution for less than two-thirds the valuation made by ap- praisers, pursuant to the directions contained in the law, though professing to act only on the remedy, amounts to a denial or ob- struction of the rights accruing by the contract, and is directly obnoxious to the prohibition of the Constitution. 1 So a law which takes away from mortgagees the right to possession under their mortgages until after foreclosure, is void, because depriving them of the right to the rents and profits, which was a valuable portion of the right secured by the contract. " By this act the mortgagee is required to incur the additional expense of a foreclosure, before obtaining possession, and is deprived of the right to add to his security, by the perception of the rents and profits of the premises, during the time required to accomplish this and the time of re- demption, and during that time the rents and profits are given to another, who may or may not appropriate them to the payment of the debt, as he chooses, and the mortgagee in the mean time is subjected to the risk, often considerable, of the depreciation in the value of the security." 2 So a law is void which extends the 1 McCracken v. Hay ward, 2 How. 608; N. C. 554; Billiard v. Moore, 65 N. C. Willard v. Longstreet, 2 Doug. (Mich.) 540; Pharis v. Dice, 21 Gratt. 303 ; Thor- 172 ; Rawley v. Hooker, 21 Ind. 144. So ington v. Smith, 8 Wall. 1. A statute is a law which, as to existing mortgages bad which permits in such case a recov- forecloseable by sale, prohibits the sale ery of what a jury may think is the fair for less than half the appraised value of value of the property sold. Effinger v. the land, is void for the same reason. Kenney, 115 U. S. 566, 6 Sup. Ct. Rep. Gantly's Lessee v. Ewing, 3 How. 707 ; 179. Bronson v. Kinzie, 1 How. 311. See to 2 Mundy v. Monroe, 1 Mich. 68, 76; like effect, Robards v. Brown, 40 Ark. Blackwood v. Vanvleet, 11 Mich. 252. 423; Collins v. Collins, 79 Ky. 88. So Compare Dikeman v. Dikeman, 11 Paige, one which takes away the power of sale. 484; James v. Stull, 9 Barb. 482; Cook O'Brien v. Krenz, 36 Minn. 136, 30 N. W. v. Gray, 2 Houst. 456. In the last case 458. And a law authorizing property to it was held that a statute shortening the be turned out in satisfaction of a contract notice to be given on foreclosure of a is void. Abercrombie v. Baxter, 44 Ga. mortgage under the power of fale, from 36. The " scaling laws," so called, under twenty-four to twelve weeks, was valid which contracts made while Confederate as affecting the remedy only; and that a notes were the only currency, are allowed stipulation in a mortgage that on default to be satisfied on payment of a sum equal being made in payment the mortgagee to what the sum called for by them in might sell " according to law," meant ac- Confederate notes was worth when they cording to the law as it should be when were made, have been sustained, but this sale was made. But see Ashuelot R. R. is on the assumption that the contracts Co. v. Eliot, 52 N. H. 387, and what is said are enforced as near as possible accord- on the general subject in Cochran r. ing to the actual intent. Harmon r. Wai- Darcy, 6 Rich. 125. A redemption law lace, 2 S. C. 208 ; Robeson v. Brown, 63 cannot take from the mortgagee the right CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 413 time for the redemption of lands sold on execution, or for delin- quent taxes, after the sales have been made ; for in such a case the contract with the purchaser, and for which he has paid his money, is, that he shall have title at the time then provided by the law ; and to extend the time for redemption is to alter the substance of the contract, as much as would be the extension of the time for payment of a promissory note. 1 So a law which shortens the time for redemption from a mortgage, after a fore- closure sale has taken place, is void ; the rights of the party being fixed by the foreclosure and the law then in force, and the mortgagor being entitled, under the law, to possession of the land until the time for redemption expires. 2 And where by statute a to recover rents from the owner in pos- session after foreclosure sale. Travellers Ins. Co. v. Brouse, 83 Ind. 62. But the debtor's tenant in possession may be made primarily liable to the mortgagee instead of to the debtor. Edwards v. Johnson, 105 Ind. 594, 5 N. E. 716. In Berthold v. Fox, 13 Minn. 501, it was de- cided that in the case of a mortgage given while the law allowed the mortgagee possession during the period allowed for redemption after foreclosure, sucli law might be so changed as to take away this right. But this seems doubtful. In Baldwin v. Flagg, 43 N. J. 495, it was held that where bond and mortgage had been given, it was not competent to provide by subsequent legislation that the mortgage should be first foreclosed, and resort to the. bond only had in case of deficiency. Nor that the foreclosure sale should be opened if a judgment is had upon the bond. Coddington v. Bispham, 36 N. J. Eq. 574. See Morris v. Carter, 46 N. J. L. 260 ; Toffey r. Atcheson, 42 N. J. Eq. 182, 6 Atl. 885. A stipulation in a chattel mortgage that the mortgagee may take possession whenever he deems himself insecure, is not to be impaired by subse- quent legislation forbidding him to do so without just cause. Boice v. Boice, 27 Minn. 371, 7 N. W. 687. Reducing the rate of interest payable on redemption to the foreclosure purchaser violates no con- tract with the mortgagee. Conn. Mut. Ins. Co. v. Cushuian, 108 U. S. 51, 2 Sup. Ct. Rep. 236. 1 Robinson v. Howe, 13 Wis. 341 ; Dike- man v. Dikeman, 11 Paige, 484; Goenen v. Schroeder, 8 Minn. 387 ; January K, January, 7 T. B. Monr. &2, 18 Am. Dec. 211; Greenfield v. Dorris, 1 Sneed, 550. [Barnitz v. Beverly, 163 U. S. 118; 16 Sup. Ct. Rep. 1042, rev. 55 Kan. 466, 42 Pac. 725, 31 L. R. A. 74.] But see Stone v. Basset, 4 Minn. 298 ; Hey ward v. Judd, 4 Minn. 483; Freeborn v. Petti- bone, 5 Minn. 277; Davis v. Rupe, 114 Ind. 588, 17 N. E. 163. A provision that the right to redeem from a pre-existing mortgage shall not expire if a creditor of the mortgagor comes into equity and gets a decree to enable him to fulfil the con- ditions of the mortgage and hold the property, is void as against the mort- gagee. Phinney v. Phinney, 81 Me. 450. So, on the other hand, a law is void which takes away an existing right of a creditor of the mortgagor to redeem from the sale. O'Brien v. Krenz, 36 Minn. 136, 30 N. W. 458. 2 Cargill v. Power, 1 Mich. 369. The contrary ruling was made in Butler v. Palmer, 1 Hill, 324, by analogy to the Statute of Limitations. The statute, it was said, was no more in effect than saying: "Unless you redeem within the shorter time prescribed, you shall have no action for a recovery of the land, nor shall your defence against an action be allowed, provided you get possession." And in Robinson v. Howe, 13 Wis. 341, 346, the court, speaking of a similar right in a party, say : " So far as his right of redemption was concerned, it was not derived from any contract, but was given by the law only ; and the time within which he might exercise it might be shortened by the legislature, provided a reasonable time was left in which to ex- ercise it, without impairing the obligation of any contract. And see Smith v. Pack- 414 CONSTITUTIONAL LIMITATIONS. [CH. IX. purchaser of lands from the State had the right, upon the for- feiture of his contract of purchase for the non-payment of the sum due upon it, to revive it at any time before a public sale of the lands, by the payment of all sums due upon the contract, with a penalty of five per cent, it was held that this right could not be taken away by a subsequent change in the law which subjected the forfeited lands to private entry and sale. 1 And a statute which authorizes stay of execution, for an unreasonable or indef- inite period, on judgments rendered on pre-existing contracts, is void, as postponing payment, and taking away all remedy during the continuance of the stay. 2 And a law is void on this ground which declares a forfeiture of the charter of a corporation for acts or omissions which constituted no cause of forfeiture at the time they occurred. 3 And it has been held that where a statute au- ard, 12 Wis. 371, to the same effect. An increase of the rate of interest to be paid on redemption of a pre-existing mortgage is bad. Hillebert v. Porter, 28 Minn. 496, 11 N. W. 84. 1 State v. Commissioners of School and University Lands, 4 Wis. 414. A right to reimbursement if a tax purchase is set aside cannot by subsequent legis- lation be taken away from the purchaser of a tax title. State v. Foley, 30 Minn. 350, 15 N. W. 375. 2 Chadwick v. Moore, 8 W. & S. 49 ; Bunn v. Gorgas, 41 Pa. St. 441; Town- send v. Townsend, Peck, 1, 14 Am. Dec. 722; Stevens v. Andrews, 31 Mo. 205. Hasbrouck v. Shipman, 16 Wis. 296 ; Jacobs v. Small wood, 63 N. C. 112; Web- ster v. Rose, 6 Heisk. 93 ; Edwards v. Kearzey, 96 U. S. 595. In Breitenbach v. Bush, 44 Pa. St. 313, and Coxe v. Mar- tin, 44 Pa. St. 322, it was held that an act staying all civil process against volun- teers who had enlisted in the national ser- vice for three years or during the war was valid, "during the war" being construed to mean unless the war should sooner terminate. See also State v. Ca- rew, 13 Rich. 498. A general law that all suits pending should be continued until peace between the Confederate States and the United States, was held void in Burt v. Williams, 24 Ark. 94. See also Taylor v. Stearns, 18 Gratt. 244; Hudspeth v. Davis, 41 Ala. 389; Aycock v. Martin, 37 Ga. 124; Coffman v. Bank of Kentucky, 40 Miss. 29; Jacobs v. Smallwood, 63 N. C. 112; Cutts v. Hardee, 38 Ga. 350; Sequestration Cases, 30 Tex. 688. A law permitting a year's stay upon judgments where security is given was held valid in Farnsworth v. Vance, 2 Cold. 108; but this decision was overruled in Webster v. Rose, 6 Heisk. 93, 19 Am. Rep. 583. A statute was held void which stayed all proceedings against volunteers who had enlisted " during the war," this period being indefinite. Clark v. Martin, 3 Grant's Cas. 393. In Johnson v. Higgins, 3 Met. (Ky.) 566, it was held that the act of the Kentucky legislature of May 24, 1861, which forbade the rendition in all the courts of the State, of any judgment from date till January 1st, 1862, was valid. It related, it was said, not to the remedy for enforcing a contract, but to the courts which administer the remedy ; and those courts, in a legal sense, constitute no part of the remedy. A law exempting sol- diers from civil process until thirty days after their discharge irom military service was held valid as to all contracts subse- quently entered into, in Burns v. Craw- ford, 34 Mo. 330. And see McCormick v. Rusch, 15 Iowa, 127. A statute sus- pending limitation laws during the exist- ence of civil war, and until the State was restored to her proper relations to the Union, was sustained in Bender v. Craw- ford, 33 Tex. 745. Compare Bradford v. Shine, 13 Fla. 393. 8 People v. Jackson & Michigan Plank Road Co., 9 Mich. 285, per Chrisliancy, J. ; State v. Tombeckbee Bank, 2 Stew. 30. See Ireland w. Turnpike Co., 19 Ohio St. 369. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 415 thorized a municipal corporation to issue bonds, and to exercise the power of local taxation in order to pay them, and persons bought and paid value for bonds issued accordingly, this power of taxation is part of the contract, and cannot be withdrawn until the bonds are satisfied ; that an attempt to repeal or restrict it by statute is void ; and that unless the corporation imposes and collects the tax in all respects as if the subsequent statute had not been passed, it will be compelled to do so by mandamus. 1 And it has also been held that a statute repealing a former statute, which made the stock of stockholders in a corporation liable for its debts, was, in respect to creditors existing at the time of the repeal, a law impairing the obligation of contracts. 2 In each of these cases it is evident that substantial rights were affected ; and so far as the laws which were held void operated upon the remedy, they either had an effect equivalent to import- ing some new stipulation into the contract, or they failed to leave the party a substantial remedy such as was assured to him by the law in force when the contract was made. In Pennsylvania it has been held that a statute authorizing a stay of execution on contracts in which the debtor had waived the right was uncon- stitutional ; 3 but it seems to us that an agreement to waive a legal privilege which the law gives as a matter of State policy cannot be binding upon a party, unless the law itself provides for the waiver. 4 Where, however, by the operation of existing laws, a contract cannot be enforced without some new action of a party to fix his liability, it is as competent to prescribe by statute the requisites to the legal validity of such action as it would be in any case to prescribe the legal requisites of a contract to be thereafter made. Thus, though a verbal promise is sufficient to revive a debt barred by the Statute of Limitations or by bankruptcy, yet this rule may be changed by a statute making all such future promises void un- 1 Von Hoffman v. Quincy, 4 Wall. 535 ; 284, 7 Sup. Ct. Rep. 1190. For a similar Murray v. Charleston, 96 U. S. 432; Lou- principle, see Sala v. New Orleans, 2 mand v. New Orleans, 102 U. S. 203; Woods, 188. Wolff v. New Orleans, 103 U. S. 358; 2 Hawthorne v. Calef, 2 Wall. 10. Nelson v. St. Martin's Parish, 111 U. S. QJpon individual liability of stockhold- 716, 4 Sup. Ct. Rep. 648 ; Beckwith v. ers for debts of corporation, see note to Racine, 7 Biss. 142. The liability cannot 40 L. ed. U. S. 751.] be escaped by turning a city into a mere 3 Billmeyer v. Evans, 40 Pa. St. 324 ; taxing district. Mobile v. Watson, 116 Lewis v. Lewis, 47 Pa. St. 127. See U. S. 289, 6 Sup. Ct. Rep. 398; O'Connor Laucks' Appeal, 24 Pa. St. 426; Case v. v. Memphis, 6 Lea, 730. See also Soutter Dunmore, 23 Pa. St. 93; Bowman v. Smi- v. Madison, 15 Wis. 30; Smith v. Apple- ley, 31 Pa. St. 225. ton, 19 Wis. 468 ; Rahway v. Munday, 44 * See Conkey v. Hart, 14 N. Y. 22 ; N. J. L. 395; Seibert v. Lewis, 122 U. S. Handy v. Chatfield, 23 Wend. 35. 416 CONSTITUTIONAL LIMITATIONS. [CH. IX. less in writing. 1 It is also equally true that where a legal im- pediment exists to the enforcement of a contract which parties have entered into, the constitutional provision in question will not preclude the legislature from removing such impediment and validating the contract. A statute of that description would not impair the obligation of contracts, but would perfect and enforce it. 2 And for similar reasons the obligation of contracts is not impaired by continuing the charter of a corporation for a certain period, in order to the proper closing of its business. 3 State Insolvent Laws. In this connection some notice may seem requisite of the power of the States to pass insolvent laws, and the classes of contracts to which they maybe made to apply. As this whole subject has been gone over very often and very fully by the Supreme Court of the United States, and the impor- tant questions seem at last to be finally set at rest, and moreover as it is comparatively unimportant whenever a federal bankrupt law exists, we content ourselves with giving what we understand to be the conclusions of the court. 1. The several States have power to legislate on the subject of bankrupt and insolvent laws, subject, however, to the authority conferred upon Congress by the Constitution to adopt a uniform system of bankruptcy, which authority, when exercised, is para- mount, (a) and State enactments in conflict with those of Congress upon the subject must give way. 4 1 Joy v. Thompson, 1 Doug. (Mich.) 3 Foster v. Essex Bank, 16 Mass. 245. 373; Kingley v. Cousin.*, 47 Me. 91. [[Upon -the protection of contracts by 2 As where the defence of usury to a the constitution, see article in 3(3 Am. contract is taken away by statute. Welsh L. Rev. 70.] v. Wadsworth, 30 Conn. 149 ; Curtis v. 4 Sturges v, Crowninshield, 4 Wheat. Leavitt, 15 N. Y. 9. And see Wood v. 122 ; Farmers' & Mechanics' Bank v. Kennedy, 19 Ind. 68, and the cases cited, Smith, 6 Wheat. 131 ; Ogden v. Saunders, post, pp. 635-537. But the validation, 12 Wheat. 213; Baldwin v. Hale, 1 Wall, of an invalid contract cannot be made to 223 ; QBrown v. Smart, 145 U. S. 454, relate back so as to take precedence of a 12 Sup. Ct. Rep. 958. aff. 69 Md. 320, lien which attached after the invalid con- 17 Atl. 1101 ; Ketcham v. McNamara, tract was created, but before it was vali- 72 Conn. 709, 46 Atl. 146, 50 L. R. A. dated. Merchants' Bank of Danville v. 641.] Ballou, 98 Va. 112, 32 S. E. 481, 44 L. R. A. 306.] (a) p' After an adjudication in bankruptcy, an action in replevin in a State court cannot be commenced and maintained against the bankrupt to recover property in the possession of and claimed by the bankrupt at the time of that adjudication, and in the possession of a referee in bankruptcy at the time when the action of replevin is begun ; " and if under such attempted action in replevin, any such property is seized, " the district court sitting in bankruptcy " has "jurisdiction by summary pro- ceedings to compel the return of the property seized." Per Gray, J , in White v. Schloerb, 178 U. S. 542, 20 Sup. Ct. Rep. 1007. Bankruptcy law merely suspends State insolvency laws, so that when it is repealed they revive. Butler v. Gorely, 146 CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 417 2. Such State laws, however, discharging the person or the property of the debtor, and thereby terminating the legal obliga- tion of the debts, cannot constitutionally be made to apply. to contracts entered into before they were passed, but they may be made applicable to such future contracts as can be considered as having been made in reference to them. 1 3. Contracts made within a State where an insolvent law exists, between citizens of that State, are to be considered as made in reference to the law, and are subject to its provisions. But the law cannot apply to a contract made in one State be- tween a citizen thereof and a citizen of another State, 2 nor to contracts not made within the State, even though made between citizens of the same State, 3 except, perhaps, where they are citi- zens of the State passing the law. 4 And where the contract is made between a citizen of one State and a citizen of another, the circumstance that the contract is made payable in the State where the insolvent law exists will not render such contract sub- ject to be discharged under the law. 5 If, however, the creditor in any of these cases makes himself a party to proceedings under the insolvent law, he will be bound thereby like any other party to judicial proceedings, and is not to be heard afterwards to object that his debt was protected by the Constitution from the reach of the law. 6 The New Amendments to the Federal Constitution. New provi- sions for personal liberty, and for the protection of the right to life, liberty, and property, are made by the thirteenth and four- teenth amendments to the Constitution of the United States ; and 1 Ogden v. Saunders, 12 Wheat. 213 ; 8 McMillan v. McNeill, 4 Wheat [Brown v. Smart, 145 U. S. 454, 12 Sup. 209. Ct. Rep. 958, aff. 69 Md. 320, 17 All. 1101 ; * Marsh v. Putnam, 3 Gray, 561. Hans v. Louisiana, 134 U. S. 1, 10 Sup. * Baldwin t>. Hale, 1 Wall. 223; Bald- Ct. Rep. 504.] win v. Bank of Newbury, 1 Wall. 234; 2 Ogden v. Saunders, 12 Wheat. 213; Gilman v. Lockwood, 4 Wall. 409. See Springer v. Foster, 2 Story, 383; Boyle v. also Norris v. Atkinson, 64 N. H. 87, 5 Zacharie, 6 Pet. 348; Woodhull v. Wag- Atl. 710. ner, Baldw. 296; Suydam v. Broadnax, Clay v. Smith, 3 Pet. 411; Baldwin 14 Pet. 67 ; Cook v. Moffat, 5 How. 295; v. Hale, 1 Wall. 223 ; Gilman v. Lockwood, Baldwin v. Hale, 1 Wall. 223 ; [Hammond 4 Wall. 409 ; Perley v. Mason, 64 N. H. 6, Beef & P. Co. v. Best, 91 Me. 431, 40 Atl. 3 Atl. 629. 338, 42 L. R. A. 528. j U. S. 303, 13 Sup. Ct. Rep. 84, aff. 147 Mass. 8, 16 N. E. 734. And upon effect of removal of a Federal bar to operation of a State statute, see Blair v. Ostrander, 109 Iowa, 204, 80 N. W. 330, 47 L. R. A. 469. That supersession of State insolvency law may be only partial, see State v. Superior Court for King Co., 20 Wash. 545, 56 Pac. 35, 45 L. R, A. 177, and upon relation of bankruptcy law to State laws upon insol- vency and assignments, see note to this case in L. R. A.] 27 418 CONSTITUTIONAL LIMITATIONS. [CH. IX. these will be referred to in the two succeeding chapters. 1 The most important clause in the fourteenth amendment is that part of .section one which declares that 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 re- side. 2 This provision very properly puts an end to any question of the title of the freedmen and others of their race to the rights of citizenship; but it may be doubtful whether the further pro- visions of the same section surround the citizen with any pro- tections additional to those before possessed under the State constitutions; though, as a principle of State constitutional law has now been made a part of the Constitution of the United States, the effect will be to make the Supreme Court of the United States the final arbiter of cases in which a violation of this prin- ciple by State laws is complained of, inasmuch as the decisions of the State courts upon laws which are supposed to violate it will be subject to review in that court on appeal. 3 1 See ante, pp. 14-17; post, pp. 423, before. This amendment of the Consti- 567. tution does not concentrate power in the 2 The complete text of this section is general government for any purpose of as follows : " Section 1. All persons born police government within the States ; its or naturalized in the United States, and object is to preclude legislation by any subject to the jurisdiction thereof, are State which shall "abridge the privileges citizens of the United States, and of the or immunities of citizens of the United State wherein they reside. No State shall States," or "deprive any person of life, make or enforce any law which shall liberty, or property without due process abridge the privileges and immunities of of law," or " deny to any person within citizens of the United States ; nor shall its jurisdiction the equal protection of any State deprive any person of life, lib- the laws;" and Congress is empowered erty, or property without due process of to pass all laws necessary to render such law, nor deny to any person within its unconstitutional State legislation ineffect- jurisdiction the equal protection of the ual. This amendment has received a laws." very full examination at the hands of the 8 See ante, pp. 24-36. Notwithstand- Supreme Court of the United States in ing this section, the protection of all citi- the Slaughter-House Case, 16 Wall. 36, zens in their privileges and immunities, and in United States v. Cruikshank, 92 and in their right to an impartial adminis- U. S. 542, with the conclusion above tration of the laws, is just as much the stated. See Story on Const. (4th ed.) business of the individual State as it was App. to Vol. II. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 419 CHAPTER X. OP THE CONSTITUTIONAL PROTECTIONS TO PERSONAL LIBERTY. ALTHOUGH the people from whom we derive our laws now pos- sess a larger share of civil and political liberty than any other in Europe, there was a period in their history when a consider- able proportion were in a condition of servitude. Of the servile classes one portion were villeins regardant, or serfs attached to the soil, and transferable with it, but not otherwise, 1 while the other portion were villeins in gross, whose condition resembled that of the slaves known to modern law in America. 2 How these people became reduced to this unhappy condition, it may not be possible to determine at this distance of time with entire accu- racy ; 3 but in regard to the first class, we may suppose that when a conqueror seized the territory upon which he found them living, he seized also the people as a part of the lawful prize of war, granting them life on condition of their cultivating the soil for his use ; and that the second were often persons whose lives had been spared on the field of battle, and whose ownership, in accord- ance with the custom of barbarous times, would pertain to the persons of their captors. Many other causes also contributed to reduce persons to this condition. 4 At the beginning of the reign of John it has been estimated that one-half of the Anglo-Saxons were in a condition of servitude, and if we go back to the time of 1 Litt. 181 ; 2 Bl. Com. 92. " They tude, used and employed in the most ser- originally held lands of their lords on con- vile works ; and belonging, they and their dition of agricultural service, which in a children and effects, to the lord of the soil, certain sense was servile, but in reality like the rest of the stock or cattle upon was not so, as the actual work was done it.' " Reeves, History of English Law, by the theows, or slaves. . . . They did Ft. I. c. 1. not pay rent, and were not removable at 8 As to slavery among the Anglo-Sax- pleasure ; they went with the land and ons, see Stubbs, Const. Hist, of England, rendered services, uncertain in their na- ch. V. ture, and therefore opposed to rent. They 4 For a view of the condition of the were the originals of copyholders." Note servile classes, see Wright, Domestic Man- to Reeves, History of English Law, Pt. I. ners and Sentiments, 101, 102 ; Crabbe, c. 1. History of English Law (ed. of 1829), 2 Litt. 181; 2 Bl. Com. 92. "These 8, 78, 365; Hallam, Middle Ages, Pt. are the persons who are described by Sir II. c. 2 ; Vaughan, Revolutions in Eng- William Temple as 'a sort of people who lish History, Book 2, c. 8; Broom, Const, were in a condition of downright servi- Law, 74 et seq. 42 J CONSTITUTIONAL LIMITATIONS. [CH. X. the Conquest, we find a still larger proportion of the people held as the property of their lords, and incapable of acquiring and holding any property as their own. 1 Their treatment was such as might have been expected from masters trained to war and violence, accustomed to think lightly of human life and human suffering, and who knew little of and cared less for any doctrine of human rights which embraced within its scope others besides the governing classes. It would be idle to attempt to follow the imperceptible steps by which involuntary servitude at length came to an end in England. It was never abolished by statute, 2 and the time when slavery ceased altogether cannot be accurately determined. 3 The causes were at work silently for centuries ; the historian did not at the time note them ; the statesman did not observe them ; they were not the subject of agitation or controversy ; but the time arrived when the philanthropist could examine the laws and institutions of his country, and declare that slavery had ceased to be recog- nized, though at what precise point in legal history the condition became unlawful he might not with certainty specify. Among the causes of its abrogation he might be able to enumerate : 1. That the slaves were of the same race with their masters. There was therefore not only an absence of that antipathy which is often found existing when the ruling and the ruled are of differ- ent races, and especially of different color, but instead thereof an active sympathy might often be supposed to exist, which would lead to frequent emancipations. 2. The common law presumed every man to be free until proved to be otherwise ; and this pre- 1 Hume, History of England, Vol. I. more of this kind of servitude. And see App. 1. Crabbe, History of English Law (ed. of 2 Harrington on the Statutes (3d ed.), 1829), 574. This author says that vil- 272. leinage had disappeared by the time of 8 Mr. Hargrave says, at the commence- Charles II. Kurd says in 1661. Law of ment of the seventeenth century. 20 State Freedom and Bondage, Vol. I. p. 136. Trials, 40 ; May, Const. Hist. c. 11. And And see 2 Bl. Com. 96. Lord Campbell's Mr. Barrington (on the Statutes 3d ed. p. Lives of the Chief Justices, c. 5. Mac- 278) cites from Rymer a commission from aulay says there were traces of slavery Queen Elizabeth in the year 1574, directed under the Stuarts. History of England, to Lord Burghley and Sir Walter Mild- c. 1. Hume (History of England, c. 23) may, for inquiring into the lands, tene- thinks there was no law recognizing it ments, and other goods of all her bondmen after the time of Henry VII., and that it and bondwomen in the counties of Corn- had ceased before the death of Elizabeth, wall, Devonshire, Somerset, and Glouces- Froude (History of England, c. 1) says in ter, such as were by blood in a slavish con- the reign of Henry VIII. it had practically dition, by being born in any of her manors, ceased. Mr. Christian says the last claim and to compound with any or all of such of villeinage which we find recorded in bondmen or bondwomen for their manu- our courts was in 15th James I. Noy, 27 ; mission and freedom. And this commis- 11 State Trials, 342. Note to Blackstone, sion, he says, in connection with other Book 2, p. 96. circumstances, explains why we hear no CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 421 sumption, when the slave was of the same race as his master, and had no natural badge of servitude, must often have rendered it extremely difficult to recover the fugitive who denied his thral- dom. 3. A residence for a year and a day in a corporate town rendered the villein legally free ; l so that to him the towns con- stituted cities of refuge. 4. The lord treating him as a freeman as by receiving homage from him as tenant, or entering into a contract with him under seal thereby emancipated him, by recognizing in him a capacity to perform those acts which only a freeman could perform. 5. Even the lax morals of the times were favorable to liberty, since the condition of the child followed that of the father ; 2 and in law the illegitimate child was nullius filius, had no father. And, 6. The influence of the priesthood was generally against slavery, and must often have shielded the fugitive and influenced emancipations by appeals to the con- science, especially when the master was near the close of life and the conscience naturally most sensitive. 3 And with all these in- fluences there should be noted the further circumstance, that a class of freemen was always near to the slaves in condition and suffering, with whom they were in association, and between whom and themselves there were frequent intermarriages, 4 and that from these to the highest order in the State there were successive grades ; the children of the highest gradually finding their way into those below them, and ways being open by which the chil- dren of the lowest might advance themselves, by intelligence, energy, or thrift, through the successive grades above them, until the descendants of dukes and earls were found cultivating; the 1 Crabbe, History of English Law (ed. " Whereas God created all men free, but of 1829), 79. But this was only as to afterwards the laws and customs of na- third persons. The claim of the lord tions subjected some under the yoke of might be made within three years. Ibid, servitude, we think it pious and meritori- And see Mackintosh, History of England, ous with God to manumit Henry Knight, a c. 4. tailor, and John Herle, a husbandman, our 2 Harrington on Statutes (3d ed.), 276, natives, as being born within the manor note ; 2 Bl. Com. 93. But in the very of Stoke Clymercysland, in our county of quaint account of " Villeinage and Nief- Cornwall, together with all their issue ty," in Mirror of Justices, 28, it is said, born or to be born, and all their goods, among other things, that " those are vil- lands, and chattels acquired, so as the said leins who are begotten of a freeman and persons and their issue shall from hence- a nief, and born out of matrimony." The forth by us be free and of free condition." ancient rule appears to have been that Barrington on Statutes (3d ed.), 275. See the condition of the child followed that of Mackintosh, History of England, c. 4. the mother ; but this was changed in the Compare this with a deed of manumission time of Henry I. Crabbe, History of in Massachusetts, to be found in Sumner's English Law (ed. of 1829), 78; Hallam, Speeches, 11.289; Memoir of Chief Jus- Middle Ages, Pt. II. c. 2. tice Parsons, by his son, 176, note. 3 In 1514, Henry VIII. manumitted * Wright, Domestic Manners and Sen- two of his villeins in the following words : timents, 112. 422 CONSTITUTIONAL LIMITATIONS. [CH. X. soil, and the man of obscure descent winning a place among the aristocracy of the realm, through his successful exertions at the bar or his services to the State. Inevitably these influences must at length overthrow the slavery of white men which existed in England, 1 and no other ever became established within the realm. Slavery was permitted, and indeed fostered, in the colonies ; in part because a profit was made of the trade, and in part also be- cause it was supposed that the peculiar products of some of them could not be profitably cultivated with free labor ; 2 and at times masters brought their slaves with them to England and removed them again without question, until in Sommersett's Case, in 1771, it was ruled by Lord Mansfield that slavery was repugnant to the common law, and to bring a slave into England was to emanci- pate him. 3 , The same opinion had been previously expressed by Lord Holt but without authoritative decision. 4 In Scotland a condition of servitude continued to a later period. The holding of negroes in slavery was indeed held to be illegal soon after the Sommersett Case ; but the salters and colliers did not acquire their freedom until 1799, nor without an act of Par- 1 Macaulay (History of England, c. 1) says the chief instrument of emancipa- tion was the Christian religion. Mack- intosh (History of England, c. 4), also, attributes to the priesthood great influ- ence in this reform, not only by their di- rect appeals to the conscience, but by the judges, who were ecclesiastics, multiply- ing presumptions and rules of evidence consonant to the equal and humane spirit which breathes throughout the morality of the Gospel. Hume (History of Eng- land, c. 23) seems to think emancipation was brought about by selfish considera- tions on the part of the barons, and from a conviction that the returns from their lands would be increased by changing vil- leinage into socage tenures. 2 Robertson, America, Book 9 ; Ban- croft, United States, Vol. I. c. 5. 3 Lofft, 18; 20 Howell State Trials, 1; Life of Granville Sharp, by Hoare, c. 4 ; Hurd, Law of Freedom and Bondage, Vol. I. p. 189. The judgment of Lord Mansfield is said to have been delivered with evident reluctance. 20 State Trials, 79 ; per Lord Stowell, 2 Hagg. Adm. 105, 110 ; Broom, Const. Law, 105. Of the practice prior to the decision Lord Stow- ell said : " The personal traffic in slaves resident in England had been as public and as authorized in London as in any of our West India Islands. They were sold on the Exchange, and other places of public resort, by parties themselves resi- dent in London, and witli as little reserve as they would have been in any of our West India possessions. Such a state of tilings continued without impeachment from a very early period up to nearly the end of the last century." The Slave Grace, 2 Hagg. Adm. 105. In this case it was decided that if a slave, carried by his master into a free country, voluntarily returned with him to a country where slavery was allowed by the local law, the status of slave would still attach to him, and the master's right to his service be resumed. Mr. Broom collects the author- ities on this subject in general, in the notes to Sommersett's Case, Const. Law, 105. 4 " As soon as a slave comes into Eng- land, he becomes free ; one may be a villein in England, but not a slave." Holt, Ch. J., in Smith v. Brown, 2 Salk. 666. See also Smith v. Gould, Ld. Raym, 1274 ; s. c. Salk. 666. There is a learned note in Quincy's Rep. 94, collecting the English authorities on the subject of slavery. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 423 liainent. 1 A previous statute for their enfranchisement through judicial proceedings had proved ineffectual. 2 The history of slavery in this country pertains rather to general history than to a work upon State constitutional law. Through- out the land involuntary servitude is abolished by constitutional amendment, except as it may be imposed in the punishment of crime. 3 Nor do we suppose the exception will permit the convict to be subjected to other servitude than such as is under the con- trol and direction of the public authorities, in the manner hereto- fore customary. The laws of the several States allow the letting of the services of the convicts, either singly or in numbers, to contractors who are to employ them in mechanical trades in or near the prison, and under the surveillance of its officers ; but it might well be doubted if a regulation which should suffer the convict to be placed upon the auction block and sold to the highest bidder, either for life or for a term of years, would be in harmony with the constitutional prohibition. It is certain that it would be open to very grave abuses, and it is so inconsistent with the general sentiment in countries where slavery does not exist, that it may well be believed not to have been within the under- standing of the people in incorporating the exception with the prohibitory amendment. 4 1 39 Geo. III. c. 56. 2 May's Const. Hist. c. 11. 8 Amendments to Const, of U. S. art. 13. See Story on the Constitution (4th ed.), c. 46, for the history of this article, and the decisions bearing upon it. The Maryland act for the apprenticing of col- ored children, which made important and invidious distinctions between them and white children, and gave the master prop- erty rights in their services not given in other cases, was held void under this arti- cle. Matter of Turner, 1 Abb. U. S. 84. This thirteenth amendment conferred no political rights, and left the negro under all his political disabilities. Marshall v. Donovon, 10 Bush, 681. See also United States v. Cruikshank, 94 U. S. 542. Con- tracts for personal services cannot, as a general rule, be enforced, and applica- tion to be discharged from service under them on habeas corpus is evidence that the service is involuntary. Cases of ap- prenticeship and cases of military and naval service are exceptional. A person over twenty-one years of age cannot bind himself as apprentice. Clark's Case, 1 Blackf. 122, 12 Am. Dec. 213. * The State has no power to imprison a child in a house of correction who has committed no crime, on a mere allegation that he is " destitute of proper parental care, and is growing up in mendicancy, ignorance, idleness, and vice." People v. Turner, 55 111. 280, 8 Am. Rep. 645. But a female child who begs in public or has no proper parental care, may be confined in an industrial school. County of Mc- Lean v. Humphrey, 104 111. 378; citing Milwaukee Industrial School v. Super- visors, 40 Wis. 328; Roth v. House of Refuge, 31 Md. 329. See, further, that under proper safeguards vagrant children may be so committed, House of Refuge v. Ryan, 37 Ohio St. 197 ; Prescott v. State, 19 Ohio St. 184, 2 Am. Rep. 388 ; Farnham v. Pierce, 141 Mass. 203, 6 N. E. 830 ; Peo- ple v. N. Y. Catholic Protectory, 101 N. Y. 195, 4 N. E, 177. That in cases of com- mitment of vicious and incorrigible youth to reform schools jury trial is unneces- sary, see State v. Brown, 60 Minn. 353, 52 N. W. 935, 16 L. R. A. 691, and note; also Lee v. McClelland, 157 Ind. 84, 60 N. E. 692. Court has no power in civil action for damages to person to compel 424 CONSTITUTIONAL LIMITATIONS. [CH. X. The common law of England permits the impressment of sea- faring men to man the royal navy ; 1 but this species of servitude was never recognized in the law of America. 2 The citizen may doubtless be compelled to serve his country in her wars ; but the common law as adopted by us lias never allowed arbitrary discriminations for this purpose between persons of different avocations. Unreasonable Searches and Seizures, (a) Near in importance to exemption from any arbitrary control of plaintiff to submit her body to inspection 172, 20 Sup. Ct. Rep. 617. But sheriff by defendant's physicians outside of court may lawfully photograph his prisoner for purpose of obtaining evidence. All and take physical measurements of him, Buch inspection must be made in court, etc., for purposes of future identification. U. P. Ry. Co. v. Botsf ord, 141 U. S. 250, State v. Clausmeier, 154 Ind. 599, 57 N. E. 11 Sup. Ct. Rep. 1000. Contra, Lane v. 641, 50 L. R. A. 73J Spokane Falls &N.R. Co., 21 Wash. 119, 1 Broadfoot's Case, 18 State Trials, 57 Pac. 367, 46 L. R. A. 153; Wanek v. 1323; Fost. Cr. Law, 178; Rex v. Tubbs, Winona, 78 Minn. 98, 80 N. W. 851, 46 Cowp. 512; Ex parte Fox, 5 State Trials, L. R. A. 448 ; Ala. G. S. R. Co. v. Hill, 90 276 ; 1 Bl. Com. 419 ; Broom, Const. Law, Ala. 71,8 So. 90, 9 L. R. A. 412, 24 Am. St. 116. 764. See in this connection Lyon v. Man- 2 There were cases of impressment in hattan R. Co., 142 N. Y. 298, 37 N. E. 113, America before the Revolution, but they 25 L. R. A. 402 ; McQuigan v. Delaware, were never peaceably acquiesced in by L. & W. R. Co., 129 N. Y. 50, 29 N.E.235, the people. See Life and Times of 14 L. R. A. 466, and note, 26 Am. St. 507 ; Warren, 55. Camden & S. R. Co. v. Stetson, 177 U. S. (a) [^Search made by permission of agent or servant in possession is not unreason- able, nor is the taking away of an article there found, the agent consenting thereto, a prohibited seizure. State v. Griswold, 67 Conn. 290, 34 Atl. 1046, 33 L. R. A. 227. Where a boiler exploded, killing several persons and wounding many others, and the person in charge was prosecuted for criminal negligence, the property owner may object to an order of court delivering the wreck and premises into the custody of a police officer, charged to keep them unmolested until the time of trial, although it is probable that in the absence of such custody, much valuable real evidence will be lost. Newberry v. Carpenter, 107 Mich. 567, 65 N. W. 630, 31 L. R. A. 163, 61 Am. St. 346. The court cannot compel a plaintiff to submit a horse, over whose condi- tion the controversy arises, to the inspection of a veterinary surgeon, even though the inspection is to be made in the presence of the plaintiff or his agent. Martin v. Elliott, 106 Mich. 130, 03 N. W. 998, 31 L. R. A. 169 ; but a statute requiring one person to submit his property to inspection of another for purpose of procuring evidence to aid that other in enforcing his rights is valid. Montana Co. v. St. Louis Mining and M. Co., 152 U. S. 160, 14 Sup. Ct. Rep 506. With regard to inspection of person to procure evidence, see note 1, page 442, ante. In Potter r. Beale, 50 Fed. Rep. 860, the order of a court that a master should searcli the trunk of the president of an in- solvent national bank and deliver to such president his private papers, and to the receiver all belonging to the bank, was held to be in violation of the prohibition against unreasonable searches and seizures. Money in possession of prisoner under arrest can be taken from him only when there are reasonable grounds for believing it to be connected with the crime charged or that it may be used as evidence. Ex parte Hum, 92 Ala. 102, 9 So. 515, 13 L. R. A. 120, 25 Am. St. 23. Pawnbroker may be compelled to take out license, and to keep list of property received and per- sons from whom received, and to exhibit such property and list to inspection of CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 425 the person (a) is that maxim of the common law which secures to the citizen immunity in his home against the prying eyes of the government, and protection in person, property, and papers against even the process of the law, except in a few specified cases. The maxim that "every man's house is his castle," 1 is 1 Broom's Maxims, 321 ; Ilsley v. see Delafoile v. State, 54 N. J. L. 381, 24 Nichols, 12 Pick. 270; Swain v. Miz- All. 557, 16 L. R. A. 500, and note.] The ner, 8 Gray, 182; People v. Hubbard, 24 eloquent passage in Chatham's speech on Wend. 369, 35 Am. Dec. 628 ; Curtis v. General Warrants is familiar :" Thepoor- Hubbard, 4 Hill, 437 ; Bailey v. Wright, est man may, in his cottiige, bid defiance 39 Mich. 96. QThat officer may not to all the forces of the Crown. It may break and enter to serve a writ of re- be frail ; its roof may shake ; the wind plevin, see Kelley v. Schuyler, 20 R. I., may blow through it; the storm may 432, 39 Atl. 893, 44 L. R. A. 435. House- enter; the rain may enter ; but the King holder may kill in defending h : s house of England may not enter ; all his force against attack. Wilson v. State, 30 Fla. dares not cross the threshold of the ruined 234, 11 So. 656, 17 L. R. A. 654. As to tenement." And see Lieber on Civil when officer may enter without warrant, Liberty and Self-Government, c. 6. mayor and police officers. Shuman v. Fort Wayne, 127 Ind. 109, 26 N. E. 560, 11 L. R. A. 378, and note. Statute authorizing vendors of liquors to sue out search warrants to secure bottles not returned by customers is unconstitutional. Lippman v. People, 175 111. 101, 51 N. E. 872.3 (a) [^Sheriff may take photographs, measurements, etc., of his prisoner for pur- poses of future identification. State v. Clausmeier, 154 Ind. 599, 57 N. E. 541, 50 L. R. A. 73. But a person cannot be lawfully arrested merely because he is a " sus- picious person," and any statute which attempts to authorize such arrest is void under the clause prohibiting unreasonable seizures. Stoutenburgh v. Frazier, 16 D. C. App. 229, 48 L. R. A. 220. Prisoner discharged upon parol may be summarily arrested and recommitted. Fuller v. State, 122 Ala. 32, 26 So. 146, 45 L. R. A. 602. Arrest under warrant not supported by oath or affirmation is illegal. State v. Higgins, 51 S. C. 51, 28 S. E. 15, 38 L. R. A. 561. But witness refusing to testify before grand jury may be summarily imprisoned by a justice of the peace upon com- plaint of the grand jury. Re Clark, 65 Conn. 17, 31 Atl. 522, 28 L. R. A. 242. Such power to imprison is judicial however and cannot be conferred upon a county attor- ney. Re Sims, 54 Kan. 1, 37 Pac. 135, 25 L. R. A. 110, 45 Am. St. 261 ; nor upon a board of tax commissioners, Langenberg v. Decker, 131 Ind. 471, 31 N. E. 190, 16 L. R. A. 108. Statute may authorize arrest without warrant in case of misdemeanor committed in presence of officer, as well as in case of breach of peace. Burroughs v. Eastman, 101 Mich. 419, 59 N. W. 817, 24 L. R. A. 859; 45 Am. St. 419. Person cannot be surrendered to foreign government except in accordance with treaty stip- ulations. Ex parte McCabe, 46 Fed. Rep. 363, 12 L. R. A. 589. Chairman of board of county commissioners may be authorized by statute to remove summarily to the pauper's place of legal settlement any pauper who applies for public support. Lovell v. Seeback, 45 Minn. 465, 48 N. W. 23, 11 L. R. A. 667. Person arrested without ex- tradition process in sister State is illegally detained and is entitled to be discharged upon habeas corpus. Re Robinson, 29 Neb. 135, 45 N. W. 267, 8 L. R. A. 398, 26 Am. St. 378; but see cases cited in note. Person brought into State by extradition pro- ceedings and there tried or discharged cannot be arrested upon civil process until a reasonable time has elapsed in which he might have returned to the State from which he was brought. Moletor v. Sinnen, 76 Wis. 308, 44 N. W. 1099, 7 L. R. A. 817, 20 Am. St. 71. Person arrested without warrant can be detained only so long as is reasonably necessary to obtain a legal warrant. Leger v. Warren, 62 Ohio St. 600, 57 N. E. 506, 51 L. R. A. 193.3 426 CONSTITUTIONAL LIMITATIONS. [CH. X. made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and has always been looked upon as of high value to the citizen. If in English history we inquire into the original occasion for these constitutional provisions, we shall probably find it in the abuse of executive authority, and in the unwarrantable intrusion of executive agents into the houses and among the private papers of individuals, in order to obtain evidence of political offences either committed or designed. The final overthrow of this prac- tice is so clearly and succinctly stated in a recent work on the constitutional history of England, that we cannot refrain from copying the account in the note below. 1 1 "Among the remnants of a juris- prudence which had favored preroga- tive at the expense of liberty was that of the arrest of persons under general war- rants, without previous evidence of their guilt or identification of their persons. This practice survived the Revolution, and was continued without question, on the ground of usage, until the reign of George III., when it received its death- blow from the boldness of Wilkes and the wisdom of Lord Camden. This ques- tion was brought to an issue by No. 45 of the ' North Briton,' already so often mentioned. There was a libel, but who was the libeller ? Ministers knew not, nor waited to inquire, after the accus- tomed forms of law; but forthwith Lord Halifax, one of the secretaries of state, issued a warrant, directing four mes- sengers, taking with them a constable, to search for the authors, printers, and pub- lishers ; and to apprehend and seize them, together with their papers, and bring them in safe custody before him. No one hav- ing been charged or even suspected, no evidence of crime having been of- fered, no one was named in this dread instrument. The offence only was pointed at, not the offender. The magistrate who should have sought proofs of crime de- puted this office to his messengers. Armed with their roving commission, they set fortli in quest of unknown offenders ; and, unable to take evidence, listened to ru- mors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect. Nor were they triflers in their work. In three days they arrested no less than forty-nine persons on suspicion, many as innocent as Lord Halifax him- self. Among the number was Dryden Leach, a printer, whom they took from his bed at night. They seized his papers, and even apprehended his journeymen and servants. He had printed one num- ber of the ' North Briton,' and was then reprinting some other numbers ; but as lie happened not to have printed No. 45, he was released without being brought be- fore Lord Halifax. They succeeded, how- ever, in arresting Kearsley, the publisher, and Balfe, the printer, of the obnoxious number, witli all their workmen. From them it was discovered that Wilkes was the culprit of whom they were in search ; but the evidence was not on oath; and the messengers received verbal directions to apprehend Wilkes under the general warrant. Wilkes, far keener than the crown lawyers, not seeing his own name there, declared it ' a ridiculous warrant against the whole English nation,' and re- fused to obey it. But after being in cus- tody of the messengers for some hours, in his own house, he was taken away in a chair, to appear before the secretaries of state. No sooner had he been removed than the messengers, returning to his house, proceeded to ransack his drawers, and carried off all his private papers, in- cluding even his will and his pocket-book. When brought into the presence of Lord Halifax and Lord Egremont, questions were put to Wilkes which he refused to answer ; whereupon he was committed close prisoner to the Tower, denied the use of pen and paper, and interdicted from receiving the visits of his friends, or even of his professional advisers. From this imprisonment, however, he CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 427 The history of this controversy should be read in connection with that in America immediately previous to the American Revo- was shortly released on a writ of habeas corpus, by reason of his privilege as a member of the House of Commons. " Wilkes and the printers, supported by Lord Temple's liberality, soon ques- tioned the legality of the general war- rant. First, several journeymen printers brought action against the messengers. On the first trial Lord Chief Justice Pratt not allowing bad precedents to set aside the sound principles of English law held that the general warrant was il- legal ; that it was illegally executed ; and that the messengers were not indemnified by statute. The journeymen recovered three hundred pounds damages ; and the other plaintiffs also obtained verdicts. In all these cases, however, bills of excep- tions were tendered and allowed. Mr. Wilkes himself brought an action against Mr. Wood, under-secretary of state, who had personally superintended the execu- tion of the warrant. At this trial it was proved that Mr. Wood and the messen- gers, after Wilkes's removal in custody, had taken entire possession of his house, refusing admission to his friends ; had sent for a blacksmith, who opened the drawers of his bureau; and having taken out the papers, had carried them away in a sack, without taking any list or inven- tory. All his private manuscripts were seized, and his pocket-book filled up the mouth of the sack. Lord Halifax WHS examined, and admitted that the warrant had been made out three days before he had received evidence that Wilkes was the author of the 'North Briton.' Lord Chief Justice Pratt thus spoke of the war- rant : ' The defendant claimed a right, under precedents, to force persons' houses, break open escritoires, and seize their pa- pers upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their sus- picions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and prop- erty of every man in this kingdom, and is totally subversive of the liberty of the subject.' The jury found a verdict for the plaintiff, with one thousand pounds damages. "Four days after Wilkes had obtained his verdict against Mr. Wood, Dryden Leach, the printer, gained another ver- dict, with four hundred pounds damages, against the messengers. A bill of excep- tions, however, was tendered and received in this as in other cases, and came on for hearing before the Court of King's Bench in 1765. After much argument and the citing of precedents showing the practice of the secretary of state's office ever since the Revolution, Lord Mansfield pro- nounced the warrant illegal, saying: 'It is not fit that the judging of the informa- tion should be left to the discretion of the officer. The magistrate should judge, and give certain directions to the officer.' The other three judges agreed that the warrant was illegal and bad, ' believing that no degree of antiquity can give sanc- tion to an usage bad in itself.' The judgment was therefore affirmed. " Wilkes had also brought actions for false imprisonment against both the sec- retaries of state. Lord Egremont's death put an end to the action against him; and Lord Halifax, by pleading privilege, and interposing other delays unworthy of his position and character, contrived to put off his appearance until after Wilkes had been outlawed, when he appeared and pleaded the outlawry. But at length, in 1769, no further postponement could be contrived ; the action was tried, and Wilkes obtained no less than four thou- sand pounds damages. Not only in this action, but throughout the proceedings, in which persons aggrieved by the general warrant had sought redress, the govern- ment offered an obstinate and vexatious resistance. The defendants were harassed by every obstacle which the law per- mitted, and subjected to ruinous costs. The expenses which government itself incurred in these various actions were said to have amounted to one hundred thousand pounds. " The liberty of the subject was further assured at this period by another remark- able judgment of Lord Camden. In No- vember, 1762, the Earl of Halifax, as 428 CONSTITUTIONAL LIMITATIONS. [CH. X. lution, in regard to writs of assistance issued by the courts to the revenue officers, empowering them, in their discretion, to search suspected places for smuggled goods, and which Otis pro- nounced " the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book ; " since they placed "the liberty of every man in the hands of every petty officer." l All these matters are now a long way in the past ; but secretary of state, had issued a warrant power, so assumed by the secretary of directing certain messengers, taking a state, is an execution upon all the party's constable to their assistance, to search for papers in the first instance. His house is John Entinck. clerk, the author or one rifled; his most valuable papers are taken concerned in the writing of several num- out of his possession, before the paper, bers of the 'Monitor, or British Free- for which he is charged, is found to be holder,' and to seize him, together with criminal by any competent jurisdiction, his books and papers, and bring him in and before he is convicted either of writ- safe custody before the secretary of state, ing, publishing, or being concerned in In execution of this warrant, the mes- the paper.' It had been found by the sengers apprehended Mr. Entinck in his special verdict that many such warrants house, and seized the books and papers had been issued since the Revolution ; in his bureau, writing-desk, and drawers, but he wholly denied their legality. He This case differed from that of Wilkes, as referred the origin of the practice to the the warrant specified the name of the Star Chamber, which, in pursuit of libels, person against whom it was directed. In had given search-warrants to their mes- respect of the person, it was not a general senger of the press, a practice which, warrant, but as regards the papers, it after the abolition of the Star Chamber, was a general search-warrant, not speci- had been revived and authorized by the fying any particular papers to be seized, licensing act of Charles II., in the person but giving authority to the messengers to of the secretary of state. And he con- take all his books and papers according jectured that this practice had been con- to their discretion. tinued after the expiration of that act, " Mr. Entinck brought an action of a conjecture shared by Lord Mansfield trespass against the messengers for the and the Court of King's Bench. With seizure of his papers, upon which a jury the unanimous concurrence of the other found a special verdict, with three hun- judges of his court, this eminent magis- dred pounds damages. This special ver- trate now finally condemned this danger- diet was twice learnedly argued before ous and unconstitutional practice." May's the Court of Common Pleas, where, at Constitutional History of England, c. 11. length, in 1765, Lord Camden pronounced See also Semayne's Case, 5 Coke, 91 ; 1 an elaborate judgment. He even doubted Smith's Lead. Cas. 183; Entinck v. Car- the right of the secretary of state to com- rington, 2 Wils. 275, and 19 State Trials, mit persons at all, except for high treason ; 1030 ; note to same case in Broom, Const. but in deference to prior decisions, the Law, 6 13; Money . Leach, Burr. 1742; court felt bound to acknowledge the right. Wilkes's Case, 2 Wils. 151, and 19 State The main question, however, was the Trials, 1405. For debates in Parliament legality of a search warrant for papers, on the same subject, see Hansard's De- 'If this point should be determined in bates, Vol. XV. pp. 1393-1418 ; Vol. XVI. favor of the jurisdiction,' said Lord Cam- pp. 6 and 209. In further illustration of den, 'the secret cabinets and bureaus of the same subject, see De Lolme on the every subject in this kingdom will be English Constitution, c. 18 ; Story on thrown open to the search and inspection Const. 1901, 1902; Bell v. Clapp, 10 of a messenger, whenever the secretary Johns. 263, 6 Am. Dec. 339; Sailly v. of state shall see fit to charge, or even to Smith, 11 Johns. 500. suspect, a person to be the author, printer, 1 Works of John Adams, Vol. II. pp. or publisher of a seditious libel.' 'This 623, 524; 2 Hildreth's U. S. 499; 4 Ban- CII. X.] CONSTITUTIONAL PROTECTIONS, ETC. 429 it has not been deemed unwise to repeat in the State constitu- tions, as well as in the Constitution of the United States, 1 the principles already settled in the common law upon this vital point in civil liberty. For the service of criminal process, the houses of private par- ties are subject to be broken and entered under circumstances which are fully explained in the works on criminal law, and need not be enumerated here. And there are also cases where search- warrants are allowed to be issued, under which an officer may be protected in the like action. But as search-warrants are a species of process exceedingly arbitrary in character, and which ought not to be resorted to except for very urgent and satisfactory reasons, the rules of law which pertain to them are of more than ordinary strictness ; and if the party acting under them expects legal protection, it is essential that these rules be carefully observed. In the first place, they are only to be granted in the cases ex- pressly authorized by law ; and not generally in such cases until after a showing made before a judicial officer, under oath, that a crime has been committed, and that the party complaining has reasonable cause to suspect that the offender, or the property which was the subject or the instrument of the crime, is concealed in some specified house or place. 2 And the law, in requiring a showing of reasonable cause for suspicion, intends that evidence shall be given of such facts as shall satisfy the magistrate that the suspicion is well founded ; for the suspicion itself is no ground for the warrant except as the facts justify it. 3 In the next place, the warrant which the magistrate issues must particularly specify the place to be searched and the object for which the search is to be made. If a building; is to be croft's U. S. 414 ; Quincy, Mass. Reports, embarrass, annoy, and obstruct the mer- 61. See also the appendix to these re- chant in his business were not borne in ports, p. 395, for a history of writs of mind. The federal decisions, however, assistance. go very far to establish the doctrine that, 1 U. S. Const. 4th Amendment. The in matters of revenue, the regulations scope of this work does not call for finy Congress sees fit to establish, however discussion of the searches of private prem- unreasonable thej' may seem, must pre- ises, and seizures of books and papers, vail. For a very striking case, see Hen- which are made under the authority, or derson's Distilled Spirits, 14 Wall. 44. claim of authority, of the revenue laws - 2 Hale, P. C. 142; Bishop, Cr. Pro. of the United States. Perhaps, under no 716-719; Archbold, Cr. Law, 147. An other laws are such liberties taken by officer may base a complaint upon the ministerial officers ; and it would be sur- information of a third person. Collins v. prising to find oppressive action on their Lean, 68 Cal. 284. part so often submitted to without legal 8 Commonwealth v. Lottery Tickets, contest, if the facilities they possess to 5 Cush. 869; Else v. Smith, 1 D. & R. 97. 430 CONSTITUTIONAL LIMITATIONS. [CH. X. searched, the name of the owner or occupant should be given; 1 or, if not occupied, it should be particularly described, so that the officer will be left to no discretion in respect to the place ; and a misdescription in regard to the ownership, 2 or a description so general that it applies equally well to several buildings or places, would render the warrant void in law. 3 Search-warrants are always obnoxious to very serious objections ; and very great par- ticularity is justly required in these cases before the privacy of a man's premises is allowed to be invaded by the minister of the law. 4 And therefore a designation of goods to be searched for as " goods, wares, and merchandises," without more particular description, has been regarded as insufficient, even in the case of goods supposed to be smuggled, 5 where there is usually greater difficulty in giving description, and where, consequently, more latitude should be permitted than in the case of property stolen. Lord Hale says : " It is fit that such warrants to search do express that search be made in the daytime ; and though I do not say they are unlawful without such restriction, yet they are very inconvenient without it ; for many times, under pretence of searches made in the night, robberies and burglaries have been committed, and at best it creates great disturbance." 6 And the statutes upon this subject will generally be found to provide for searches in the daytime only, except in very special cases. The warrant should also be directed to the sheriff or other proper officer, and not to private persons ; though the party complainant may be present for the purposes of identification, 7 and other assistance can lawfully be called in by the officer if necessary. The warrant must also command that the goods or other arti- 1 Stone v. Dana, 5 Met. 98. See Bell v. Certain Liquors, 146 Mass. 509, 16 v. Rice, 2 J. J. Marsh. 44, 19 Am. Dec. N. E. 298. 12'J. * A warrant for searching a dwelling- 2 Sandford v. Nichols, 13 Mass. 286; house will not justify a forcible entry into 8. c. 7 Am. Dec. 151 ; Allen v. Staples, 6 a barn adjoining the dwelling-house. Gray, 491. Jones v. Fletcher, 41 Me. 254 ; Downing 8 Thus a warrant to search the "houses v. Porter, 8 Gray, 639; Bishop, Cr. Pro. and buildings of Hiram Lie and Henry 716-719. Ide," is too general. Humes v. Tabor, 6 Sandford v. Nichols, 13 Mass. 286, 1 R. I. 464. See McGlinchy v. Barrows, 7 Am. Dec. 151 ; Archbold, Cr. Law, 143. 41 Me. 74; Ashley v. Peterson, 25 Wis. "A certain quantity of rum being about 021; Com. v. Intox. Liquors, 140 Mass, and not exceeding 100 gallons" is suffi- 287, 3 N. E. 4. So a warrant for the cient. State v. Fitzpatrick, 16 R. I. 54, arrest of an unknown person under the 11 Atl. Rep. 767. designation of John Doe, without fur- 6 2 Hale, P. C. 150. See Archbold, ther description, is void. Common- Cr. Law (7th ed.), 146; Com. v. Hinds, wealth v. Crotty, 10 Allen, 403. For de- 145 Mass. 182, 13 N. E. 397. scriptions held sufficient, see Wright v. 1 2 Hale, P. C. 160; Archbold, Cr. Dressel, 140 Mass. 147, 3 N. E. 6 ; Com. Law (7th ed.), 145. en. x.] CONSTITUTIONAL PROTECTIONS, ETC. 431 cles to be searched for, if found, together with the party in whose custody they are found, be brought before the magistrate, to the end that, upon further examination into the facts, the goods, and the party in whose custody they were, may be disposed of accord- ing to law. 1 And it is a fatal objection to such a warrant that it leaves the disposition of the goods searched for to the ministerial officer, instead of requiring them to be brought before the magis- trate, that he may pass his judgment upon the truth of the com- plaint made; and it would also be a fatal objection to a statute authorizing such a warrant if it permitted a condemnation or other final disposition of the goods, without notice to the claimant, and without an opportunity for a hearing being afforded him. 2 The warrant is not allowed for the purpose of obtaining evi- dence of an intended crime ; but only after lawful evidence of an offence actually committed. 3 Nor even then is it allowable to invade one's privacy for the sole purpose of obtaining evidence against him, 4 except in a few special cases where that which is the subject of the crime is supposed to be concealed, and the public or the complainant has an interest in it or in its destruc- 1 2 Hale, P. C. 150; Bella-. Clapp, 10 Johns. 263, 6 Am. Dec. 339; Hibhard v. People, 4 Mich. 126; Fisher v. McGirr, 1 Gray, 1. If the statute ordains that the warrant shall require the officer to to make an inventory, one omitting this command is no protection, though in fact an inventory is made by the officer. Hussey v. Davis, 58 N. H. 317. 2 The " Search and Seizure " clause in some of the prohibitory liquor laws was held void on this ground. Fisher v. McGirr, 1 Gray, 1 ; Greene v. Briggs, 1 Curtis, 311 ; Hibbard v. People, 4 Mich. 126. See also Matter of Morton, 10 Mich. 208; Sullivan v. Oneida, 61 111. 242; State v. Snow, 3 R. I. 64, for a somewhat similar principle. It is not competent by law to empower a magistrate on mere infornvition, or on his own personal knowledge, to seize and destroy gaming- tables or devices without a hearing and trial. Lowry v. Rainwater, 70 Mo. 152, 35 Am. Rep. 420. An act which declared that all nets, &c. used in catching fish in violation thereof should be forfeited, and might be seized and destroyed or sold by the peace officer, was declared void in Hey Sing Jeck ?. Anderson, 57 Cal. 251. After seizure of money and acquittal of larceny, the money must be delivered to defendant. State v. Williams, 61 Iowa, 517, 16 N. W. 586. 8 We do not say that it would be in- competent to authorize, by statute, the issue of search-warrants for the preven- tion of offences in some cases ; but it is difficult to state any case in which it might be proper, except in such cases of attempts, or of preparations to commit crime, as are in themselves criminal. QSlot machine to be used as a gambling device. Its seizure justified to prevent the offence. Board of Police Com'rs v. Wagner, 93 Md. 182, 48 Atl. 465, 62 L. R, A. 775.] 4 The fourth amendment to the Con- stitution of the United States, found also in many State constitutions, would clearly preclude the seizure of one's papers in order to obtain evidence against him ; and the spirit of the fifth amendment that no person shall be compelled in a criminal case to give evidence against himself would also forbid such seizure. [State v. Slamon, 73 Vt. 212, 60 Atl. 1097, 87 Am. St. 711. In this last case it was held a violation of the constitu- tional right to take a letter while search- ing for stolen goods by virtue of a search-warrant."] 432 CONSTITUTIONAL LIMITATIONS. [CH. X tiou. Those special cases are familiar, and well understood in the law. Search-warrants have heretofore been allowed to search for stolen goods, for goods supposed to have been smuggled into the country in violation of the revenue laws, for implements of gaming or counterfeiting, for lottery tickets or prohibited liquors kept for sale contrary to law, for obscene books and papers kept for sale or circulation, and for powder or other explosive and dangerous material so kept as to endanger the public safety. 1 A statute which should permit the breaking and entering a man's house, and the examination of books and papers with a view to discover the evidence of crime, might possibly not be void on constitutional grounds in some other cases ; but the power of the legislature to authorize a resort to this process is one which can properly be exercised only in extreme cases, and it is better oftentimes that crime should go unpunished than that the citizen should be liable to have his premises invaded, his desks broken open, his private books, letters, and papers exposed to prying curiosity, and to the misconstructions of ignorant and suspicious persons, and all this under the direction of a mere ministerial officer, who brings with him such assistants as he pleases, and who will select them more often with reference to physical strength and courage than to their sensitive regard to the rights and feelings of others. To incline against the enactment of such laws is to incline to the side of safety. 2 In principle they are 1 These are the most common cases, cannot be excused. The importance of but in the following, search-warrants are public confidence in the inviolability of also sometimes provided for by statute : correspondence through the post-office books and papers of a public character, cannot well be overrated ; and the propo- retained from their proper custod}- ; sition to permit letters to be opened at females supposed to be concealed in the discretion of a ministerial officer, houses of ill-fame; children enticed or would excite general indignation. See kept away from parents or guardians; Ex parte Jackson, 96 U. S. 727. In Maine concealed weapons ; counterfeit money, it has been decided that a telegraph oper- and forged bills or papers. See cases ator may be compelled to disclose the under English statutes specified in 4 contents of a message sent by him for Broom and Hadley's Commentaries, 332. another party, and that no rule of public 2 Instances sometimes occur in which policy would forbid. State v. Litchfield, ministerial officers take such liberties in 68 Me. 267. The case is treated as if no endeavoring to detect and punish offend- other considerations were involved than ers, as are even more criminal than the those which arise in the ordinary case of offences they seek to punish. The em- a voluntary disclosure by one private ployment of spies and decoys to lead men person to another, without necessity. on to the commission of crime, on the Such, however, is not the nature of the pretence of bringing criminals to justice, communication made to the operator of cannot be too often or too strongly con- the telegraph. That instrument is used demned; and that prying into private as a means of correspondence, and as a correspondence by officers which has valuable, and in many cases an indispen- sometimes been permitted by post-mas- sable, substitute for the postal facilities ; ters, is directly in the face of the law, and and the communication is made, not be- CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 433 objectionable; in the mode of execution they are necessarily- odious ; and they tend to invite abuse and to cover the commis- sion of crime. We think it would generally be safe for the legis- lature to regard all those searches and seizures " unreasonable " which have hitherto been unknown to the law, and on that ac- count to abstain from authorizing them, leaving parties and the public to the accustomed remedies. 1 cause the party desires to put the oper- ator in possession of facts, but because transmission without it is impossible. It is not voluntary in any other sense than this, that the party makes it rather than deprive himself of the benefits of this great invention and improvement. The reasons of a public nature for maintaining the secrecy of telegraphic communication are the same with those which protect correspondence by mail ; and though the operator is not a public officer, that cir- cumstance appears to us immaterial. He fulfils an important public function, and the propriety of his preserving inviolable secrecy in regard to communications is so obvious, that it is common to provide statutory penalties for disclosures. If on grounds of public policy the operator should not voluntarily disclose, why do not the same considerations forbid the courts compelling him to do so ? Or if it be proper to make him testify to the correspondence by telegraph, what good reason can be given why the postmaster should not be made subject to the process of subpoena for a like purpose, and com- pelled to bring the correspondence which passes through his hands into court, and open it for the purposes of evidence ? This decision has been followed in some other cases. Henisler v. Freedman, 2 Pars. Sel. Cas. (Pa.) 274; First National Bank of Wheeling v. Merchants' National Bank, 7 W. Va. 544; Ex parte Brown, 72 Mo. 83, 37 Am. Rep. 426 ; Woods v. Mil- ler, 55 Iowa, 168, 7 N. W. 484 ; U. S. v. Hunter, 15 Fed. Eep. 712. See Gray, Communication by Telegraph, ch. v. We should suppose, were it not for the opinions to the contrary by tribunals so eminent, that the public could not be en- titled to a man's private correspondence, whether obtainable by seizing it in the mails, or by compelling the operator of the telegraph to testify to it, or by requir- ing his servants to take from his desks his private letters and journals, and bring them into court on subpoena duc.es tecum. Any such compulsory process to obtain it seems a most arbitrary and unjustifiable seizure of private papers ; such an " un- reasonable seizure" as is directly con- demned by the Constitution. In England, the secretary of state sometimes issues his warrant for opening a particular let- ter, where he is possessed of such facts as he is satisfied would justify him with the public; but no American officer or body possesses such authority, and its usurpation should not be tolerated. Let- ters and sealed packages subject to letter postage in the mail can be opened and examined only under like warrant, issued upon similar oath or affirmation, particu- larly describing the thing to be seized, as is required when papers are subjected to search in one's own household. Ex parte Jackson, 96 U. S. 727. See this case for a construction of the law of Congress for excluding improper matter from the mails. For an account of the former and present English practice on opening letters in the mail, see May, Constitutional History, c. 11 ; Todd, Parliamentary Government, Vol. I. p. 272 ; Broom, Const. Law, 615. 1 A search-warrant for libels and other papers of a suspected party was illegal at the common law. See 11 State Trials, 313, 321 ; Archbold, Cr. Law (7th ed.), 141 ; Wilkes v. Wood, 19 State Trials, 1153. "Search-warrants were never re- cognized by the common law as processes which might be availed of by individuals in the course of civil proceedings or for the maintenance of any mere private right; but their use was confined to the case of public prosecutions instituted and pursued for the suppression of crime and the detection and punishment of crimi- nals. Even in those cases, if we may rely on the authority of Lord Coke, their le- gality was formerly doubted ; and Lord Camden said they crept into the law by 28 434 CONSTITUTIONAL LIMITATIONS. [CH. X. We have said that if the officer follows the command of his warrant, he is protected; and this is so even when the complaint proves to have been unfounded. 1 But if he exceed the command by searching in places not described therein, or by seizing persons or articles not commanded, he is not protected by the warrant, and can only justify himself as in other cases where he assumes to act without process. 2 Obeying strictly the command of his warrant, he may break open outer or inner doors, and his justi- fication does not depend upon his discovering that for which he is to make search. 3 In other cases than those to which we have referred, and sub- ject to the general police power of the State, the law favors the complete and undisturbed dominion of every man over his own premises, and protects him therein with such jealousy that he may defend his possession against intruders, in person or by his servants or guests, even t3 the extent of taking the life of the intruder, if that seem essential to the defence. 4 imperceptible practice. But their legal- ity IIHS long been considered to be estab- lished on the ground of public necessity ; because without them felons and other malefactors would escape detection." Merrick, J., in Robinson v. Richardson, 13 Gray 456. " To enter a man's house," said Lord Camden, " by virtue of a name- less warrant, in order to procure evidence, is worse than the Spanish Inquisition, a law under which no Englishman would wish to live an hour." See his opinion in Entinck v. Carrington, 19 State Trials, 1029 ; 8. c. 2 Wils. 275, and Broom, Const. Law, 558 ; Huckleu Money, 2 Wils. 205; Leach v. Money, 19 State Trials, 1001; s. c. 3 Burr. 1892 ; and 1 W. Bl. 555 ; note to Entinck v. Carrington, Broom, Const. Law, 613. [That the evidence was obtained by an unlawful search and seizure is not sufficient to make it inad- missible. Williams v. State, 100 Ga. 511, 28 S. E. 624, 39 L. R. A. 269. An order compelling one to deliver his private pa- pers to another who has no ownership in them is in violation of the constitutional provision against unwarrantable seizures. Ex parte Clarke, 126 Cal. 235, 68 Pac. 546, 77 Am. St. 176.] 1 Barnard v. Bartlett, 10 Cush. 501. After the goods seized are taken before the magistrate, the officer is not liable for them to the owner. Collins v. Lean, 68 Cal. 284, 9 Pac. 173. 2 Crozier v. Cudney, 9 D. & R. 224 ; Same case, 6 B. & C. 232 ; State v. Bren- nan's Liquors, 25 Conn. 278. Where the warrant was for the search of the person, and the goods were found on the floor of the room where lie was, their seizure was held lawful. Collins v. Lean, 68 Cal. 284, 9 Pac. 173. 8 2 Hale, P. C. 151 ; Barnard v. Bart- lett, 10 Cush. 501. * That in defence of himself, any member of his family, or his dwelling, a man has a right to employ all necessary violence, even to the taking of life, see Shorter v. People, 2 N. Y. 193; Yates v. People, 32 N. Y. 509 ; Logue v. Common- wealth, 38 Pa. St. 265; Pond v. People, 8 Mich. 150 ; Maher v. People, 24 111. 211 ; Bohannan v. Commonwealth, 8 Bush, 481, 8 Am. Rep. 474; Bean v. State, 25 Tex. App. 346. But except where a forcible felony is attempted against person or property, he should avoid such conse- quences, if possible, and cannot justify standing up and resisting to the death, when the assailant might have been avoided by retreat. People v. Sullivan, 7 N. Y. 396 ; Carter . State, 82 Ala. 13, 2 So. 766. But a man assaulted in his dwelling is under no obligation to re- treat ; his house is his castle, which he may defend to any extremity. And this means not simply the dwelling-house proper, but includes whatever is within CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 435 Quartering Soldiers in Private Houses. A provision is found incorporated in the constitution of nearly every State, that " no soldier shall in time of peace be quartered in any house without the" consent of the owner, nor in time of war but in a manner to be prescribed by law." To us, after four- fifths of a century have passed away since occasion has existed for complaint of the action of the government in this particular, the repetition of this declaration seems to savor of idle form and ceremony ; but " a frequent recurrence to the fundamental prin- ciples of the Constitution " can never be unimportant, and indeed may well be regarded as " absolutely necessary to preserve the advantages of liberty, and to maintain a free government." 1 It is difficult to imagine a more terrible engine of oppression than the power in the executive to fill the house of an obnoxious per- son with a company of soldiers, who are to be fed and warmed at his expense, under the direction of an officer accustomed to the exercise of arbitrary power, and in whose presence the ordinary laws of courtesy, not less than the civil restraints which protect person and property, must give way to unbridled will ; who is sent as an instrument of punishment, and with whom insult and outrage may appear quite in the line of his duty. However con- trary to the spirit of the age such a proceeding may be, it may always be assumed as possible that it may be resorted to in times of great excitement, when party action is generally violent ; and " the dragonnades of Louis XIV. in France, of James II. in Scot- land, and those of more recent and present date in certain coun- tries, furnish sufficient justification for this specific guaranty." 2 The clause, as we find it in the national and State constitutions, has come down to us through the Petition of Right, the Bill of Rights of 1688, and the Declaration of Independence ; and it is the curtilage as understood at the com- the cases above cited ; also Schnier v. mon law. Pond v. People, 8 Mich. 150; People, 23 111. 17; Patten v. People, 18 State v. Middleham, 62 Iowa, 150, 17 Mich. 314; Hinton v. State, 24 Tex. 454 ; N. W. 446 ; State v. Scheele, 57 Conn. 307, People v. Flanagan, 60 Cal. 2. But the 18 Atl. 256; Parrish r. Com., 81 Va. 1 ; belief must be bona fide and upon rea- Bledsoe v. Com., 11 S. W. 84, 7 S. W. sonable grounds. State v. Peacock, 40 Rep. 884 (Ky.). And in deciding what Ohio St. 3,'}3. force it is necessary to employ in resist- 1 Constitutions of Massachusetts, New ing the assault, a person must act upon Hampshire, Vermont, Florida, Illinois, the circumstances as they appear to him and North Carolina. See also Constitu- at the time ; and he is not to be held tions of Virginia, Nebraska, and Wiscon- criminal because on a calm survey of the sin for a similar declaration, facts afterwards it appears that the force 2 Lieber, Civil Liberty and Self-Gov- employed in defence was excessive. See ernment, c. 11. 436 CONSTITUTIONAL LIMITATIONS. [en. x. but a branch of the constitutional principle, that the military shall in time of peace be in strict subordination to the civil power. 1 Criminal Accusations. Perhaps the most important of the protections to personal liberty consists in the mode of trial which is secured to every person accused of crime. At the -common law, accusations of felony were made in the form of an indictment by a grand jury ; and this process is still retained in many of the States, 2 while others have substituted in its stead an information filed by the prosecuting officer of the State or county. The mode of investi- gating the facts, however, is the same in all ; and this is through a trial by jury, surrounded by certain safeguards which are a well- understood part of the system, and which the government cannot dispense with. 1 Story on the Constitution, 1899, 1900; Rawle on Constitution, 126. In exceptional cases, however, martial law may be declared and enforced whenever the ordinary legal authorities are unable to maintain the public peace and suppress violence and outrage. Todd, Parliamen- tary Government in England, Vol. I. p. 342; 1 Bl. Com 413-415. As to mar- tial law in general, see Ex parte Milligan, 4 Wall. 129. 2 The accusation, whether by indict- ment or information, must be sufficiently specific fairly to apprise the respondent of the nature of the charge against him, so that he may know what he is to an- swer, and so that the record may show, as far as may be, for what he is put in jeopardy. Whitney v. State, 10 Ind. 404 ; State v. O'Flaherty, 7 Nev. 153 ; State v. McKenna, 16 R. I. 398, 17 All. Rep. 51. The legislature may allow simplification of old forms of indictment. Coin. v. Freelove, 150 Mass. 66, 22 N. E. Rep. 435. As to amendment of indictments, see p. 327. A law authorizing commit- ment without examination, upon sum- mary arrest, of a pardoned convict for violating the condition of his pardon, is invalid. People v. Moore, 62 Mich. 496, 29 N. W. 80. The indictment for a State offence can only be by the grand jury of the county of offence. Ex parte Slater, 72 Mo. 102; Weyrich v. People, 89 111. 90. The fourteenth amendment to the federal Constitution is not violated by dispensing with a grand jury. Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. Rep. 111,292; Kalloch v. Superior Court, 66 Cal. 229 ; State v. Boswell, 104 Ind. 541, 4 N. E. 675. [[Prosecution by "in- formation " is due process. Balla v. Ne- braska, 176 U. S. 83, 20 Supt. Ct. Rep. 287.] Nor does it forbid a grand jury of seven, if a State law so provides. Hau- senfluck v. Com., 85 Va. 702, 8 S. E. Rep. 683. In the federal courts infamous crimes must be prosecuted by indictment, and they are held to be such as are punished by imprisonment in a penitentiary with or without hard labor. Ex parte W\\son, 114 U. S. 417, 5 Sup. Ct. Rep. 935; Mackin v. United States, 117 U. S. 348, 6 Sup. Ct. Rep. 777 ; United States v. De Walt, 128 U. S. 393, 9 Sup. Ct. Rep. 111. See State v. West, 42 Minn. 147, 43 N, W. 845. Compare State v. Nolan, 15 R. I. 529, 10 Atl. 481. [Re Butler, 84 Me. 25, 24 Atl. 456, 17 L. R. A:764, and note on infamous crimes ; that the judge in charging the grand jury must be tem- perate in his language, see Clair v. State, 40 Neb. 534, 59 N. W. 118, 28 L. R. A. 367, and note. Upon number of jurors necessary or proper to act on grand jury, see State v. Belvel, 89 Iowa, 405, 56 N. W. 545, 27 L. R. A. 846, and note ; organiza- tion of grand jury, State v. Noyes, 87 Wis. 340, 58 N. W. 386, 27 L. R. A. 776, and note, 41 Am. St. 45. Concurrence of nine cannot be made sufficient by statute where constitution does not so provide. State v. Barker, 107 N. C. 913, 12 S. E. 115, 10 L. R. A. 50, and note.} CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 437 First, we may mention that the humanity of our law always presumes an accused party innocent until he is proved to be guilty. This is a presumption which attends all the proceedings against him, from their initiation until they result in a verdict, which either finds the party guilty or converts the presumption of innocence into an adjudged fact. 1 If there were any mode short of confinement which would, with reasonable certainty, insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him, in a greater or less degree, to the punishment of a guilty person, 1 See Sullivan v. Oneida, 61 111. 242. An act making the fact of killing of cattle by a railroad train prima facie evi- dence of negligence, and such negligence a misdemeanor on the part of the super- intendent and president, is void as de- priving of this presumption. State v. Divine, 98 N. C. 778, 4 S. E. 477. It is sometimes claimed that where insanity is set up as a defence in a criminal case, the defendant takes upon himself the burden of proof to establish it, and tliat he must make it out beyond a reasonable doubt. See Clark v. State, 12 Ohio, 494 ; Loeffner v. State, 10 Ohio, N. s. 599; Bond v. State, 23 Ohio, N. s. 346 ; State v. Felton, 32 Iowa, 49 ; McKenzie v. State, 42 Ga. 334; Bos well v. Commonwealth, 20 Gratt. 800 ; Baccigalupo v . Common- wealth, 33 Gratt. 807, 36 Am. Rep. 795 ; State v. Hoyt, 47 Conn. 518; Wright v. People, 4 Neb. 407 ; State v. Pratt, 1 Houst. C. C 249; State v. Hurley, 1 Houst. C. C. 28 ; State v. De Ranee, 34 La. An. 186. Or at least by a clear pre- ponderance of evidence. Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20; State v. Redemeier, 71 Mo. 173, 36 Am. Rep. 462; Webb v. State, 9 Tex. App. 490; Johnson v. State, 10 Tex. App. 571 ; State v. Coleman, 27 La. An. 691; State v. Strauder, 11 W. Va. 745, 823; Ortwein v. Commonwealth, 76 Pa. St. 414, 18 Am. Rep. 420; Stater. Starling, 6 Jones (N. C .), 366; State v. Payne, 80 N. C. 609; State v. Smith, 63 Mo. 267; People v. Mc- Donnell, 47 Cal. 134 ; Commonwealth v. Eddy, 7 Gray, 583; Danforth v. State, 75 Ga. 614 ; Ball v. Com , 81 Ky. 662 ; State v. Bundy, 24 S. C. 439. Other well-con- sidered cases do not support this view. The burden of proof, it is held, rests throughout upon the prosecution to es- tablish all the conditions of guilt ; and the presumption of innocence that all the while attends the prisoner entitles him to an acquittal, if the jury are not reason- ably satisfied of his guilt. See State v. Marler, 2 Ala. 43; Commonwealth v. Myers, 7 Met. 500; Polk v. State, 19 Ind. 170; Chase v. People, 40 111. 352: People v. Schryver, 42 N. Y. 1 ; Stevens v. State, 31 Ind. 485; State v. Pike, 49 N. H. 399; State v. Jones, 50 N. H. 349 ; People v. McCann, 16 N. Y. 58; Common- wealth v. Kimball, 24 Pick. 373; Com- monwealth v. Dana, 2 Met. 340; Hopps v. People, 31 111. 385 ; People v. Garbutt, 17 Mich. 23 ; State v. Klinger, 43 Mo. 127 ; State v. Hundley, 46 Mo. 414; State v. Lowe, 93 Mo. 547, 6 S. W. 889; Ballard v. State, 19 Neb. 609, 28 N. W. 271 ; State v. Crawford, 11 Kan. 32 ; Brotherton r. People, 75 N. Y. 159; O'Connell v. Peo- ple, 87 N. Y. 377 ; Pollard P. State, 53 Miss. 410; Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360. But the prosecu- tion may rely upon the presumption of sanity which exists in all cases, until the defence puts in evidence which creates a reasonable doubt. People v. Finley, 38 Mich. 482. And see Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99. A statute may require insanity to be specially pleaded. Bennett v. State, 57 Wis. 69, 14 N. W. 912. FJAccused is entitled to appear without manacles unless he is violent and dis- orderly. Keeping him manacled at trial will cause a reversal of a judgment against him. State v. Williams, 18 Wash. 47, 50 Pac. 580, 39 L. R. A. 821, 63 Am. St. 869. Upon this right, see note to this case in L. R. A. 3 438 CONSTITUTIONAL LIMITATIONS. [CH. X. while as yet it is not determined that he has committed any crime. If the punishment on conviction cannot exceed in sever- ity the forfeiture of a large sum of money, then it is reasonable to suppose that such a sum of money, or an agreement by respon- sible parties to pay it to the government in case the accused should fail to appear, would be sufficient security for his attend- ance ; and therefore, at the common law, it was customary to take security of this character in all cases of misdemeanor ; one or more friends of the accused undertaking for his appearance for trial, and agreeing that a certain sum of money should be levied .of their goods and chattels, lands and tenements, if he made default. But in the case of felonies, the privilege of giving bail before trial was not a matter of right ; and in this country, although the criminal code is much more merciful than it for- merly was in England, and in some cases the allowance of bail is almost a matter of course, there are others in which it is dis- cretionary with the magistrate to allow it or not, and where it will sometimes be refused if the evidence of guilt is strong or the presumption great. Capital offences are not generally regarded as bailable ; at least, after indictment, or when the party is charged by the finding of a coroner's jury ; 1 and this upon the supposition that one who may be subjected to the terrible punish- ment that would follow a conviction, would not for any mere pecuniary considerations remain to abide the judgment. 2 And where the death penalty is abolished and imprisonment for life substituted, it is believed that the rule would be the same not- withstanding this change, and bail would still be denied in the case of the highest offences, except under very peculiar circum- stances. 3 In the case of other felonies it is not usual to refuse bail, and in some of the State constitutions it has been deemed important to make it a matter of right in all cases except on capital charges " when the proof is evident or the presumption great." * 1 Matter of Barronet, 1 El. & Bl. 1; Gratt. 705; People v. Smith, 1 Cal. 9; Ex parte Tayloe, 5 Cow. 39. In homicide People v. Van Home, 8 Barb. 158. In it is said bail should be refused if the England when all felonies were capital evidence is such that the judge would it was discretionary with the courts to sustain a capital conviction upon it. Ex allow bail before trial. 4 Bl. Com. 297, parte Brown, 65 Ala. 446. and note. a State r. Summons, 19 Ohio, 139. 4 The constitutions of a majority of 3 The courts have power to bail, even the States now contain provisions to this in capital cases. United States v. Hamil- effect. And see Foley v. People, 1 111. ton, 3 Dall. 17 ; United States v. Jones, 3 81 ; Ullery v. Commonwealth, 8 B. Monr. Wash. 209; State v. Rockafellow, 6 N. J. 3; Shore v. State, 6 Mo. 640; State v. 332; Commonwealth v. Semmes, 11 Summons, 19 Ohio, 139 ; Ex parte Wray, Leigh, 665 ; Commonwealth v. Archer, 6 30 Miss. 673 ; Moore v. State, 36 Miss. CM. X.] CONSTITUTIONAL PROTECTIONS, ETC. 439 When bail is allowed, unreasonable bail is not to be required ; but the constitutional principle that demands this is one which, from the very nature of the case, addresses itself exclusively to the judicial discretion and sense of justice of the court or magis- trate empowered to fix upon the amount. That bail is reasonable which, in view of the nature of the offence, the penalty which the law attaches to it, and the probabilities that guilt will be established on the trial, seems no more than sufficient to secure the party's attendance. In determining this, some regard should be had to the prisoner's pecuniary circumstances ; that which is reasonable bail to a man of wealth being equivalent to a denial of right if exacted of a poor man charged with the like offence. When the court or magistrate requires greater security than in his judgment is needful to secure attendance, and keeps the pris- oner in confinement for failure to give it, it is plain that the right to bail which the constitution attempts so carefully to secure has been disregarded ; and though the wrong is one for which, in the nature of the case, no remedy exists, the violation of consti- tutional privilege is aggravated, instead of being diminished, by that circumstance. 1 The presumption of innocence is an absolute protection against conviction and punishment, except either, first, on confession in open court ; or, second, on proof which places the guilt beyond any reasonable doubt. Formerly, if a prisoner arraigned for felony stood mute wilfully, and refused to plead, a terrible mode was resorted to for the purpose of compelling him to do so ; and this might even end in his death : 2 but a more merciful proceed- ing is now substituted ; the court entering a plea of not guilty for a party who, for any reason, fails to plead for himself. 137 ; Ex parte Banks, 28 Ala. 89 ; Ex ony, and misdemeanors, wilfully standing parte Dykes, 83 Ala. 114, 3 So. 306 ; Ex mute was equivalent to a conviction, and parte Kendall, 100 Ind. 599; In re Mali- the same punishment might be imposed; son, 36 Kan. 725, 14 Pac. 144 ; Matter of but in other cases there could be no trial Troia, 64 Cal. 152, 28 Pac. 231. ^Re or judgment without plea; and an accused Losasso, 15 Col. 163, 24 Pac. 1080, 10 party might therefore sometimes stand L. R. A. 847, and note.] mute and suffer himself to be pressed to 1 The magistrate in taking bail exer- death, in order to save his property from cises an authority essentially judicial, forfeiture. Poor Giles Corey, accused of Regina v. Badger, 4 Q. B. 468; Linford v. witchcraft, was perhaps the only person Fitzroy, 13 Q. B. 240. As to his duty to ever pressed to death for refusal to plead look into the nature of the charge and in America, 3 Bancroft's U. S. 93; 2 the evidence to sustain it, see Barronet's Hildreth's U. S. 160. For English cases, Case, 1 El. & Bl. 1. See Carmody v. see Cooley's Bl. Com. 325, note. Now in State, 105 Ind. 546, 5 N. E. 679, as to fix- England the court enters a plea of not ing amount of bail in advance for differ- guilty for a prisoner refusing to plead, ent classes of cases. and the trial proceeds as in other cases. 2 4 Bl. Com. 32 i. In treason, petit fel- 440 CONSTITUTIONAL LIMITATIONS. [CH. X. Again, it is required that the trial be speedy ; and here also the injunction is addressed to the sense of justice and sound judg- ment of the court. 1 In this country, where officers are specially appointed or elected to represent the people in these prosecutions, their position gives them an immense power for oppression ; and it is to be feared they do not always sufficiently appreciate the responsibility, and wield the power with due regard to the legal rights and privileges of the accused. 2 When a person charged with crime is willing to proceed at once to trial, no delay on the part of the prosecution is reasonable, except only that which is necessary for proper preparation and to secure the attendance of witnesses. 3 Very much, however, must be left to the judgment of the prosecuting officer in these cases; and the court would not compel the government to proceed to trial at the first term after indictment found or information filed, if the officer who represents it should state, under the responsibility of his official oath, that he was not and could not be ready at that time. 4 But further delay would not generally be allowed without a more specific showing of the causes which prevent the State proceeding to trial, including the names of the witnesses, the steps taken to procure them, 5 and the facts expected to be proved by them, in order that the court might judge of the reasonableness of the 1 Speedy trial is said to mean a trial trial under the belief that certain wit- so soon after indictment as the prosecu- nesses for the State were absent, when in tion can, by a fair exercise of reasonable fact they were present and kept in con- diligence, prepare for trial ; regard being cealment by this functionary. Curtis v. had to the terms of court. United States State, 6 Cold. 9. v. Fox, 3 Mont. 512; Creston v. Nye, 74 3 See this discussed in Ex parte Stan- Iowa, 369, 37 N. W. 777. If it becomes ley, 4 Nev. 113; [jind In re Begerow, 133 necessary to adjourn the court without Cal. 349, 65 Pac. 828, 85 Am. St. 178. A giving trial, the prisoner should be bailed, valuable monographic note to this case though not otherwise entitled to it. Ex discussing the law of this clause of the parte Caplis, 58 Miss. 358. constitution is found at pages 187 to 204 2 It is the duty of the prosecuting at- inclusive of 85 Am. St.] torney to treat the accused with judicial * Watts v. State, 26 Ga. 231. fairness: to inflict injury at the expense 5 The Flaheas Corpus Act, 31 Ch. II. of justice is no part of the purpose for c. 2, 1, required a prisoner charged with which he is chosen. Unfortunately, how- crime to be released on bail, if not in- ever, we sometimes meet with cases in dieted the first term after the commit- which these officers appear to regard ment, unless the king's witnesses could themselves as the counsel for the com- not be obtained; and that he should be plaining party rather than the impartial brought to trial as early as the second representatives of public justice. But term after the commitment. The prin- we trust it is not often that cases occur ciples of this statute are considered as like one in Tennessee, in which the having been adopted into the American Supreme Court felt called upon to set common law. Post, p. 490. See In re aside a verdict in a criminal case, where Garvey, 7 Col. 502, 4 Pac. 758 ; In re Ed- by the artifice of the prosecuting officer wards, 35 Kan. 99, 10 Pac. 639. the prisoner had been induced to go to CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 441 application, and that the prisoner might, if he saw fit to take that course, secure an immediate trial by admitting that the witnesses, if present, would testify to the facts which the prosecution have claimed could be proved by them. 1 It is also requisite that the trial be public. By this is not meant that every person who sees fit shall in all cases be per- mitted to attend criminal trials ; because there are many cases where, from the character of the charge arid the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a public trial is for the benefit of the accused ; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the impor- tance of their functions ; and the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose' presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether. 2 1 Such an admission, if made by the citizens and taxpayers are excluded from prisoner, is binding upon him, and dis- court room to such an extent that only a penses with the necessity of producing very few are admitted, while there is the witnesses. United States v. Sacra- ample room for them in the court room, mento, 2 Mont. 239, 25 Am. Rep. 742 ; and many apply for admission and are Hancock r. State, 14 Tex. App. 392 ; refused. People v. Murray, 89 Mich. 276, State v. Fooks, 65 Iowa, 452, 21 N. W. 60 N. W. 995, 14 L. R. A. 809, and note, 773. But in general the right of the 28 Am. St. 294. Not only is the accused prisoner to be confronted with the wit- entitled to a public trial, but also, that nesses against him cannot be waived in such trial shall be in a court in which advance. Bell v. State, '2 Tex. App. 216, each step shall be in the presence of the 28 Am. Rep. 429. Nor can lie be forced presiding judge of the court who has full to admit what an absent witness would authority to protect his every legal right, testify to. Wills v. State, 73 Ala. 362. Where the judge calls an attorney to the A statute forbidding a continuance if the bench and leaves him in charge while prosecutor admits that defendant's absent the judge absents himself from the court witness would testify as stated in the room for a quarter of an hour, the trial affidavit for continuance, is void. State going on in the meantime, there is a dis- v. Berkley, 92 Mo. 41, 4 S. W. 24. solution of the court, and the trial is void, 2 See People v. Kerrignn, 73 Cal. 222, and a new trial will be ordered. Ellerbee 14 Pac. 849; People v. Swafford, 65 Cal. v. State, 75 Miss. 622. 22 So. 950, 41 L. 223, 3 Pac. 809; Grirnmett v. State, 22 R. A. 6(59, and see note to this case in Tex. App. 36, 2 S. W. 631 ; State v. L. R. A. upon when temporary absence Brooks, 92 Mo. 642, 6 S. W. 257, 330. of judge is fatal to the trial.] QRight to a public trial is violated where 442 CONSTITUTIONAL LIMITATIONS. [CH. X. But a far more important requirement is that the proceeding to establish guilt shall not be inquisitorial. A peculiar excellence of the common-law system of trial over that which has prevailed in other civilized countries, consists in the fact that the accused is never compelled to give evidence against himself. Much as there was in that system that was heartless and cruel, it recog- nized fully the dangerous and utterly untrustworthy character of extorted confessions, and was never subject to the reproach that it gave judgment upon them. 1 1 See Lieber's paper on Inquisitorial Trials, Appendix to Civil Liberty and Self-Government. Also the article on Criminal Procedure in Scotland and Eng- land, Edinb. Review, Oct., 1858 Qand one in 15 Harv. L. Rev. 610, on the History of the Privilege against Self-Crimination. See also an article on " Physical Exami- nations in Divorce Cases " in 35 Am. L. Rev. 698, and one on "Physical Exami- nations in Personal Injury Cases " in 1 Mich. L. Rev. 193, 277.] And for an illustration of inquisitorial trials in our own day, see Trials of Troppman and Prince Pierre Bonaparte, Am. Law Re- view, Vol. V. p. 14. Judge Foster relates from Whitelocke, that the Bishop of Lon- don having said to Felton, who had as- sassinated the Duke of Buckingham, " If you will not confess you must go to the rack," the man replied, "If it must be so, I know not whom I may accuse in the extremity of my torture, Bishop Laud, perhaps, or any lord of this board." " Sound sense," adds Foster, " in the mouth of an enthusiast and ruffian." Laud having proposed the rack, the mat- ter was shortly debated at the board, and it ended in a reference to the judges, wfio unanimously resolved that the rack could not be legally used. De Lolme on Consti- tution of England (ed. of 1807), p. 181, note ; 4 Bl Com. 325; Broom, Const. Law, 148 ; Trial of Felton, 3 State Trials, 368, 371 ; Fortescue De Laud, c. 22, and note by Amos ; Brodie, Const. Hist. c. 8. A legislative body has no more right than a court to make its examination of par- ties or witnesses inquisitorial. Emery's Case, 107 Mass. 172. See further, Horst- man v. Kaufman, 97 Pa. St. 147 ; Black- well v. State, 67 Ga. 76 ; State v. Lurch, 12 Oreg. 95, 6 Pac. 405. [The right to refuse to answer any question, the answer to which might incriminate the witness, is not sufficiently preserved by a statute which provides merely that such answer shall never be given against the witness in any trial to which he may be subjected. If it is desired to compel him to answer such question, he must be made absolutely exempt from trial and punishment for any offence thus disclosed in pertinent response to the question which he is com- pelled to answer. This applies to proceed- ings before grand juries and legislative committees as well as trial juries. See Counselman v. Hitchcock, 142 U. S. 647, 12 Sup. Ct. Rep. 195, where the sub- ject is fully discussed by Mr. Justice Blatchford. See review of Counselman v. Hitchcock, 5 Harv. L. Rev. 24 ; In re Walsh, 104 Fed. Rep. 518; In re Scott, 95 Fed. Rep. 816, and In re Rosser, 96 Fed. Rep. 305, are decided on authority of Counselman v. Hitchcock, supra ; Mackel v. Rochester, 102 Fed. Rep. 314, seems op- posed to the doctrine of that case. And where he is made absolutely exempt from trial and punishment for any offence thus disclosed, he is compellable to answer. Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. Rep. 644, 5 Inters. Com. Rep. 369; Ex parte Cohen, 104 Cal. 524, 38 Pac. 364, 26 L. R. A. 423, 43 Am. St. 127; Re Buskett, 106 Mo. 602, 17 S. W. 753, 14 L. R. A. 407, and note, 27 Am. St. 378 ; Bradley v. Clarke, 133 Cal. 196, 65 Pac. 395. For a case where the court was extremely tender of the recalcitrant witness, see Ex parte Miskimins, 8 Wyo. 392, 68 Pac. 411, 49 L. R. A. 831, and see also the dissenting opinion of Knight, J. Property of the accused, other than his papers, even though seized upon his own premises without authority and by a trespass, may be introduced in evi- dence against him. State v. Griswold, 67 Conn. 290, 34 Atl. 1046, 33 L. R. A. 227. Witness is privileged not to be com- CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 443 It" is the law in some of the States, when a person is charged with crime, and is brought before an examining magistrate, and the witnesses in support of the charge have been heard, that the prisoner may also make a statement concerning the transaction charged against him, and that this may be used against him on the trial if supposed to have a tendency to establish guilt. But the prisoner is to be first cautioned that he is under no obligation to answer any question put to him unless he chooses, and that whatever he says and does must be entirely voluntary. 1 He is also to be allowed the presence and advice of counsel ; and if that privilege is denied him it may be sufficient reason for discrediting any damaging statements he may have made. 2 When, however, the statute has been complied with, and no species of coercion appears to have been employed, the statement the prisoner may have made is evidence which can be used against him on his trial, and is generally entitled to great weight. 3 And in any other case except treason 4 the confession of the accused may be re- ceived in evidence to establish his guilt, provided no circumstance accompanies the making of it which should detract from its weight in producing conviction. pelled to testify against himself in con- tempt proceedings. Ex pdrte Gould, 99 Cal. 360, 33 Pac. 1112, 21 L. R. A. 751, 37 Am. St. 57. Officer of corporation can- not be compelled to report under oath whether corporation has violated Anti- Trust Act. State v. Simmons Hardware Co., 109 Mo. 118, 18 S. W. 1125, 15 L. R. A. 676. Testimony as to marks and scars introduced to identify prisoner is not in- admissible because obtained by forcible examination of prisoner's body. O'Brien v. State, 125 Ind. 38, 25 N. E. 137, 9 L. R. A. 323, and note. But see State v. Height, Iowa, , 91 N. W. 935, in which case physicians making a compulsory physical examination of the accused were not permitted to testify. An action to exclude a foreign corporation from the State is a civil action, and the defendant corporation may be compelled to give evidence against itself. State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 413.] 1 See Rev. Stat. of New York, Pt. 4, c. 2, tit. 2, 14-16. 2 Rex v. Ellis, Ry. & Mood. 432. How- ever, there is no absolute right to the pres- ence of counsel, or to publicity in these preliminary examinations, unless given by statute. Cox v. Coleridge, 1 B. & C. 37. 8 It should not, however, be taken on oath, and if it is, that will be sufficient reason for rejecting it. Rex v. Smith, 1 Stark. 242 ; Rex v. Webb, 4 C. & P. 564 ; Rex v. Lewis, 6 C. & P. 161 ; Rex v. River, 7 C. & P. 177 ; Reginav. Pikesley, 9 C. & P. 124 ; People v. McMahon, 15 N. Y. 384. "The view of the English judges, that an oath, even where a party is informed he need answer no questions unless he pleases, would, with most persons, over- come that caution, is, I think, founded on good reason and experience. I think there is no country certainly there is none from which any of our legal no- tions are borrowed where a prisoner is ever examined on oath." People v. Thomas, 9 Mich. 314, 318, per Camp- bell, J. A person compelled to testify before the grand jury cannot be indicted upon evidence so secured. State v. Gardiner, Minn. , 92 N. W. 529 (Dec. 19, 1902). See upon the general subject, Greenleaf on Evidence, ed. 16, 333 a, and notes. 4 In treason there can be no conviction unless on the testimony of two witnesses to the same ov^rt act, or on confession in open court. Const, of United States, art 3, 3. 444 CONSTITUTIONAL LIMITATIONS. [CH. X. But to make it admissible in any case it ought to appear that it was made voluntarily, and that no motives of hope or fear were employed to induce the accused to confess. 1 The evidence ought to be clear and satisfactory that the prisoner was neither threat- ened nor cajoled into admitting what very possibly was untrue. Under the excitement of a charge of crime, coolness and self- possession are to be looked for in very few persons ; and however strongly we may reason with ourselves that no one will confess a heinous offence of which he is not guilty, the records of criminal courts bear abundant testimony to the contrary. If confessions could prove a crime beyond doubt, no act which was ever pun- ished criminally would be better established than witchcraft ; 2 and the judicial executions which have been justified by such confessions ought to constitute a solemn warning against the too ready reliance upon confessions as proof of guilt in any case. As " Mr. Justice ParJce several times observed," while holding one of his circuits, " too great weight ought not to be attached to evidence of what a party has been supposed to have said, as it very frequently happens, not only that the witness has misunder- stood what the party has said, but that by unintentionally alter- ing a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say." 3 And when the admission is full and positive, it perhaps quite as often happens that it has been made under the influence of the terrible fear excited by the charge, and in the hope that confession may ward off some of the consequences likely to follow if guilt were persistently denied. A confession alone ought not to be sufficient evidence of the corpus delicti. There should be other proof that a crime has actually been committed ; and the confession should only be allowed for the purpose of connecting the defendant with the 1 See Smith v. Commonwealth, 10 employed freely in cases of alleged witch- Gratt. 734 ; Sliifflet v. Commonwealth, craft, but the delusion was one which 14 Gratt. 652; Page v. Commonwealth, 27 often seized upon the victims as well as Gratt. 954 ; Williams i?. Commonwealth, tlieir accusers, and led the former to freely 27 Gratt. 997; United States v. Cox, 1 confess the most monstrous and impossible Cliff. 6, 21; Jordan's Case, 32 Miss. 382; actions. Much curious and valuable in- Runnels v. State, 28 Ark. 121 ; Common- formation on this subject may be found wealth v. Holt, 121 Mass. 61 ; Miller v. in " Superstition and Force," by Le;i ; People, 39 111. 457. " A Physician's Problems," by Elam ; 2 See Mary Smith's Case, 2 Howell's and Lecky, History of Rationalism. State Trials, 1049 ; Case of Essex Witches, 8 Note to Earle v. Picken, 5 C. & P. 4 Howell's State Trials, 817 ; Case of Suf- 542. See also 1 Greenl. Ev. 214, and folk Witches, 6 Howell's State Trials, 647 ; note ; Commonwealth v. Curtis, 97 Mass. Case of Devon Witches, 8 Ho well's State 574; Derby v. Derby, 21 N. J. Eq. 36; Trials, 1017. It is true that torture was State v. Chambers, 39 Iowa, 179. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 445 offence. 1 And if the party's hopes or fears are operated upon to induce him to make it, this fact will be sufficient to preclude the confession being received ; the rule upon this subject being so strict that even saying to the prisoner it will be better for him to confess, has been decided to be a holding out of such inducements to confession, especially when said by a person having a prisoner in custody, as should render the statement obtained by means of it inadmissible. 2 If, however, statements have been made before 1 In Stringfellow v. State, 26 Miss. 157, a confession of murder was held not suf- ficient to warrant conviction, unless the death of the person alleged to have been murdered was shown by other evidence. In People ?;. Hennessy, 15 Wend. 147, it was decided that a confession of embez- zlement by a clerk would not warrant a conviction where that constituted the sole evidence that an embezzlement had been committed. So on an indictment for blasphemy, the admission by the defend- ant that he spoke the blasphemous charge, is not sufficient evidence of the uttering. People v. Porter, 2 Park. Cr. R. 14. And see State v. Guild, 10 N. J. 163, 18 Am. Dec. 404; Long's Case, 1 Hayvv. 524; People v. Lambert, 5 Mich. 349; Ruloff v. State, 18 N. Y. 179; Hector v. State, 2 Mo. 166, 22 Am. Dec. 454; Roberts v. People, 11 Col. 213, 17 Pac. 637; Winslow v. State, 76 Ala. 42. 2 Rex v. Enoch, 5 C. & P. 539; State v. Bostick, 4 Harr. 563 ; Boyd v. State, 2 Humph. 390; Morehead v. State, 9 Humph. 635; Commonwealth v. Taylor, 6 Gush. 605 ; Rex v. Partridge, 7 C. & P. 551 ; Commonwealth v. Curtis, 97 Mass. 574 ; State v. Staley, 14 Minn. 105 ; Frain v. State, 40 Ga. 529; Austine v. State, 51 III. 236; People o. Phillips, 42 N. Y. 200; State v. Brokman, 46 Mo. 566 ; Common- wealth v. Mitchell, 117 Mass. 431 ; Com- monwealth v. Sturtivant, 117 Mass. 122; Corley v. State, 50 Ark. 305, 7 S. W. 255. Mr. Phillips states the rule thus: "A promise of benefit or favor, or threat or intimation of disfavor, connected with the subject of the charge, held out by a per- son having authority in the matter, will be sufficient to exclude a confession made in consequence of such inducements, either of hope or fear. The prosecutor, or the prosecutor's wife or attorney, or the prisoner's master or mistress, or a con- stable, or a person assisting him in the apprehension or custody, or a magistrate acting in the business, or other magistrate, has been respectively looked upon as having authority in the matter; and the same principle applies if the inducement has been held out by a person without authority, but in the presence of a person who has such authority, and with his sanction, either express or implied." 1 Phil. Ev. by Cowen, Hill, and Edwards, 544, and cases cited. But we think the better reason is in favor of excluding confessions where inducements have been held out by any person, whether acting by authority or not. Rex v. Simpson, 1 Mood. C. C. 410; State v. Guild, 10 N. J. 163, 18 Am. Dec. 404; Spears v. State, 2 Ohio St. 583; Commonwealth v. Knapp, 9 Pick. 496; Rex v. Clewes, 4 C. & P. 221 ; Rex v. Kingston, 4 C. & P. 387 ; Rex v. Dunn, 4 C. & P. 543; Rex v. Walkley, 6 C. & P. 175; Rex v. Thomas, 6 C. & P. 353. " The reason is, that in the agitation of mind in which the party charged is supposed to be, he is liable to be influenced by the hope of advantage or fear of injury to state things which are not true." Per Morton, J. in Common- wealth v. Knapp, 9 Pick. 496, 502 ; People v. McMahon, 15 N. Y. 387. There are not wanting many opposing authorities, which proceed upon the idea, that "a promise made by an indifferent person, who interfered officiously without any kind of authority, and promised without the means of performance, can scarcely be deemed sufficient to produce any effect, even on the weakest mind, as an induce- ment to confess." 1 Greenl. Ev. 223. No supposition could be more fallacious; and, in point of fact, a case can scarcely occur in which some one, from age, su- perior wisdom, or experience, or from his relations to the accused or to the prose- cutor, would not be likely to exercise more influence upon his mind than some 446 CONSTITUTIONAL LIMITATIONS. [CH. X. the confession which were likely to do away with the effect of the inducements, so that the accused cannot be supposed to have of the persons who are regarded as " in authority " under the rule as stated by Mr. Phillips. Mr. Greenleaf thinks that, while as a rule of law all confessions made to persons in authority should be rejected, " promises and threats by private persons, however, not being found so uniform in their operation, perhaps may, with more propriety, be treated as mixed questions of law and fact; the principle of law, that a confession must be voluntary, being strictly adhered to, and the question, whether the promises or threats of the private individuals who employed them were sufficient to overcome the mind of the prisoner, being left to the discretion of the judge under all the circumstances of the case." 1 Greenl. Ev. 223. This is a more reasonable rule than that which admits such confessions under all circum- stances ; but it is impossible for a judge to say whether inducements, in a particular case, have influenced the mind or not; if their nature were such that they were calculated to have that effect, it is safer, and more in accordance with the humane principles of our criminal law, to presume, in favor of life and liberty, that the con- fessions were " forced from the mind by the flattery of hope, or by the torture of fear" (per Eyre, C. B., Warickshall's Case, 1 Leach, C. C. 299), and exclude them altogether. In case of doubt as to the fact that the confession was voluntary, the jury should be left to exclude it, if they think it involuntary. Com. v. Preece, 140 Mass. 276, 5 N. E. 494; People v. Barker, 60 Mich. 277, 27 N. W. 639. In Ellis i'. State, 65 Miss. 44, 3 So. 188, it is held the duty of the court to decide whether it was voluntary, and that the jury may or may not believe it true, if admitted. This whole subject is very fully considered in note to 2 Leading Criminal Cases, 182. And see Whart. Cr. Law, 686 et seq. The cases of People v. McMahon, 15 N. Y. 385, and Commonwealth v. Curtis, 97 Mass. 574, have carefully considered the general subject. In the second of these, the prisoner had asked the officer who made the arrest, whether ne had better plead guilty, and the officer had replied that " as a general thing it was better for a man who was guilty to plead guilty, for he got a lighter sentence." After this he made statements which were relied upon to prove guilt. These statements were not allowed to be given in evidence. Per Foster, J. : " There is no doubt that any inducement of temporal fear or favor coming from one in authority, which pre- ceded and may have influenced a confes- sion, will cause it to be rejected, unless the confession is made under such circum- stances as show that the influence of the inducement has passed away. No cases require more careful scrutiny than those of disclosures made by a party under ar- rest to the officer who has him in custody, and in none will slighter threats or prom- ises of favor exclude the subsequent con- fessions. Commonwealth v. Taylor, 5 Gush. 610 ; Commonwealth v. Tuckerman, 10 Gray, 193; Commonwealth v. Morey, 1 Gray, 461. ' Saying to the prisoner that .it will be the worse for him if he does not confess, or that it will be the better for him if he does, is sufficient to exclude the confession, according to constant experi- ence.' 2 Hale, P. C. 659 ; 1 Greenl. Ev. 219; 2 Bennett and Heard's Lead. Cr. Cas. 164 ; Ward v. State, 50 Ala. 120. Each case depends largely on its own special circumstances. But we have be- fore us an instance in which the officer actually held out to the defendant the hope and inducement of a lighter sen- tence if he pleaded guilty. And a deter- mination to plead guilty at the trial, thus induced, would naturally lead to an im- mediate disclosure of guilt." And the court held it an unimportant circumstance that the advice of the officer was given at the request of the prisoner, instead of be- ing volunteered. A voluntary confession obtained by artifice is admissible. State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330 ; Heldt v. State, 20 Neb. 492, 30 N. W. 626. So, if made in response to a simple request by the officer in charge of the person. Ross v. State, 67 Md. 286, 10 Atl. 218. Statements made to the grand jury as in- dividuals in the jury room are admissible. State v. Coffee, 66 Conn. 399, 16 Atl. 151. But not those made to a coroner by an ignorant foreigner, without counsel, or knowledge of his rights. People v. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 447 acted under their influence, the confession may be received in evidence ; 1 but the showing ought to be very satisfactory on this point before the court should presume that the prisoner's hopes did not still cling to, or his fears dwell upon, the first inducements. 2 Before prisoners were allowed the benefit of assistance from counsel on trials for high crimes, it was customary for them to make such statements as they saw fit concerning the charge against them, during the progress of the trial, or after the evi- dence for the prosecution was put in ; and upon these statements the prosecuting officer or the court would sometimes ask ques- tions, which the accused might answer or not at his option. And although this practice has now become obsolete, yet if the accused in any case should manage or assist in his own defence, and should claim the right of addressing the jury, it would be difficult to confine him to " the record " as the counsel may be confined in his argument. A disposition has been manifested of late to allow the accused to give evidence in his own behalf ; and statutes to that effect are in existence in some of the States, the operation of which is believed to have been generally satisfactory. 3 These statutes, however, cannot be so construed as to authorize com- pulsory process against an accused to compel him to disclose more than he chooses ; they do not so far change the old system as to establish an inquisitorial process for obtaining evidence ; they confer a privilege, which the defendant may use at his option. If he does not choose to avail himself of it, unfavorable inferences are not to be drawn to his prejudice from that circum- stance ; 4 and if he does testify, he is at liberty to stop at any Mondon, 103 N. Y. 211, 8 N. E. 496. State, 19 Tex. A pp. 593 ; Coffee v. State, The rule does not cover statements of 25 Fla. 501, 6 So. 493; QPeople v. Stewart, facts not involving guilt, but which in 75 Mich. 21, 42 N. W. 662.] Before the connection with other facts may tend to confession can be received, it must be show it. People v. Le Roy, 65 Cal. 613, shown by the prosecution that it was 4 Pac. 649. See, upon the general sub- voluntary. State v. Garvey, 28 La. Ann. ject of admissibility of confessions with 955, 26 Am. Rep. 123. Compare Hopt v. reference to their voluntary character, Utah, 110 U. S. 574, 4 Sup. Ct. Rep. 202. Greenleaf en Evidence, ed. 16, 219-230. 8 See American Law Register, Vol.V. 1 State v. Guild, 10 N. J. 163, 18 Am. N. s. pp. 129, 705; Ruloff v. People, 45 Dec. 404; Commonwealth v. Harman, N. Y. 213. As such statutes do not com- 4 Pa. St. 269; State v. Vaigneur, 5 Rich. pel. even morally, a defendant to testify, 391 ; Rex v. Cooper, 5 C. & P. 535; Rex they are valid. People v. Courtney, 94 v. Howes, 6 C. &P. 404; Rex v. Richards, N. Y. 490. In Tennessee, the prisoner's 6 C. & P. 318; Thompson v. Common- statement is not, in a legal sense, testi- wealth, 20 Gratt. 724. mony, but the jury may nevertheless be- 2 See State v. Roberts, 1 Dev. 259 ; lieve and act upon it. Wilson v. State, Rex. v. Cooper, 5 C. & P. 535 ; Thompson 3 Heisk. 342. v. Commonwealth, 20 Gratt. 724; State * People v. Tyler, 36 Cal. 522; State v. Lowhorne, 66 N. C. 538 ; Thompson v. v. Cameron, 40 Vt. 555. For a case rest- 448 CONSTITUTIONAL LIMITATIONS. [CH. X. point he chooses, and it must be left to the jury to give a state- ment, which he declines to make a full one, such weight as, under ing upon an analogous principle, see Carne v. Litchfield, 2 Mich. 340. A different view would seem to be taken in Maine. See State v. Bartlett, 55 Me. 200. The views of the court are thus stated in the recent case of State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422. The judge below had instructed the jury that the fact that the defendant did not go upon the stand to testify was a proper matter to be taken into consideration by them in determin- ing the question of her guilt or innocence. This instruction was sustained. Appleton, Ch. J. "It has been urged that this view of the law places the prisoner in an embarrassed condition. Not so. The em- barrassment of the prisoner, if embar- rassed, is the result of his own previous misconduct, not of the law. If innocent, he will regard the privilege of testifying as a boon justly conceded. If guilty, it is optional with the accused to testify or not, and he cannot complain of the elec- tion he may make. If he does not avail himself of the privilege of contradiction or explanation, it is his fault if by his own misconduct or crime he has placed himself in such a situation that lie pre- fers any inferences which may be drawn from his refusal to testify, to those which must be drawn from his testimony, if truly delivered. The instruction given was correct, and in entire accordance with the conclusions to which, after mature deliberation, we have arrived. State v. Bartlett, 55 Me. 200; State v. Lawrence, 57 Me. 375." In People v. Tyler, 36 Cal. 522, 529, Sawyer, Ch. J., expresses the contrary view as follows : " At the trial, by his plea of not guilty, the party charged denies the charge against him. This is itself a positive act of denial, and puts upon the people the burden of affirmatively prov- ing the offence alleged against him. When he lias once raised this issue by his plea of not guilty, the law says he shall thenceforth be deemed innocent till he is proved to be guilty ; and both the common law and the statute give him the benefit of any reasonable doubt arising on the evidence. Now, if at the trial, when for all the purposes of the trial the burden is on the people to prove the of- fence charged by affirmative evidence, and the defendant is entitled to rest upon his plea of not guilty, an inference of guilt could legally be drawn from his de- clining to go upon the stand as a witness, and again deny the charge against him in the form of testimony, he would practi- cally if not theoretically, by his act de- clining to exercise his privilege, furnish evidence of his guilt that might turn the scale and convict him. In this mode lie would indirectly and practically be de- prived of the option which the law gives him, and of the benefit of the provision of the law and the Constitution, which say in substance that he shall not be com- pelled to criminate himself. If the infer- ence in question could be legally drawn, the very act of exercising his option, as to going upon the stand as a witness, which he is necessarily compelled by the adoption of the statute to exercise one way or the other, would be, at least to the extent of the weight given by the jury to the inference arising from his declining to testify, a crimination of himself. What- ever the ordinary rule of evidence, with reference to inferences to be drawn from the failure of parties to produce evidence that must be in their power to give, we are satisfied that the defendant, with re- spect to exercising his privilege under the provisions of the act in question, is enti- tled to rest in silence and security upon his plea of not guilty, and that no infer- ence of guilt can be properly drawn against him from his declining to avail himself of the privilege conferred upon him to testify in his own behalf; that to permit such an inference would be to vio- late the principles and the spirit of the Constitution and the statute, and defeat rather than promote the object designed to be accomplished by the innovation in question." See also Commonwealth v. Bonner, 97 Mass. 587; Commonwealth v. Morgan, 107 Mass. 109; Commonwealth f. Nichols, 114 Mass. 285, 19 Am. Rep. 346; Commonwealth v. Scott, 123 Mass. 239, 25 Am. Rep. 87 ; Bird v. State, 50 Ga. 585. In New York and Ohio, by statute, unfavorable inferences are not allowed to be drawn from the fact of the defendant not offering himself as a witness. See CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 449 the circumstances, they think it entitled to ; l otherwise the stat- ute must have set aside and overruled the constitutional maxim which protects an accused party against being compelled to testify against himself, and the statutory privilege becomes a snare and a danger. 2 Brandon v. People, 42 N. Y. 265 ; Connors v. People, 60 N. Y. 240; Stover n. People, 66 N. Y. 316; Calkins v. State, 18 Ohio St. 366. In Devries v. Phillips, 63 N. C. 53, the Supreme Court of North Carolina held it not admissible for counsel to comment to the jury on the fact that the opposite party did not come forward to be sworn as a witness as the statute permitted. In Michigan the wife of an accused party may be sworn as a witness with his as- sent; but it has been held that his failure to call her was not to subject him to in- ferences of guilt, even though the case was such that, if his defence was true, his wife must have been cognizant of the facts. Knowles v. People, 15 Mich. 408. When a defendant in a criminal case takes the stand in his own behalf, he is subject to impeachment like other wit- nesses. Fletcher v. State, 49 Ind. 124, 19 Am. Rep. 673; Mershon r. State, 61 Ind. 14; State v. Beal, 68 Ind. 345; Morrison v. State, 76 Ind. 335; Common- wealth v. Bonner, 97 Mass. 687 ; Com- monwealth v. Gallagher, 126 Mass. 54; State v. Hardin, 46 Iowa, 623, 26 Am. Eep. 174; Gifford v. People, 87 111. 211. As to the extent to which a prisoner may be cross-examined, see Hanoff v. State, 37 Ohio St. 178; People v. Noelke, 94 N. Y. 137; State v. Clinton, 67 Mo. 380; State . Saunders, 14 Oreg. 300, 12 Pac. 441 ; People v. O'Brien, 60 Cal. 602. 6 Pac. 695. [[That cross-examination may be full and searching, see Filzpatriek v. United States, 178 U. S. 304, 20 Sup. Ct. Rep. 944.] On the whole subject of the accused as witness, see 4 Grim. Law Mag. 323 i In State v. Ober, 52 N. H. 459, 13 Am. Rep. 88, the defendant was put on trial for an illegal sale of liquors ; and having offered himself as a witness, was asked on cross-examination a question directly relating to the sale. He declined to answer, on the ground that it might tend to criminate him. Being convicted, it was alleged for error that the court suffered the prosecuting officer to com- ment on this refusal to the jury. The Supreme Court held this no error. This ruling is in entire accord with the prac- tice which has prevailed without question in Michigan, and which has always as- sumed that the right of comment, where the party makes himself his own witness, and then refuses to answer proper ques- tions, was as clear as the right to exemp- tion from unfavorable comment when he abstains from asserting his statutory privilege. The case of Conners v. People, 50 N. Y. 240, is different. There the defendant, having taken the stand as a witness, ob- jected to answer a question ; but was directed by the court to do so, and obeyed the direction. This was held no error because he had waived his privilege. If the defendant had persisted in refusing we are not advised what action the court would have deemed it proper to take, and it is easy to conceive of serious embar- rassments in such a case. Under the Michigan practice, when the court had decided the question to be a proper one it would have been left to the defendant to answer or not at his option, but if he failed to answer what seemed to the jury a proper inquiry, it would be thought sur- prising if they gave his imperfect state- ment much credence. On this point see further State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688; State v. Witham, 72 Me. 531. As to extent to which comment may be made upon the defendant's testimony or his failure to make it full, see Ileldt v. State, 20 Neb. 492, 30 N. W. 626 ; Watt v. People, 126 III. 9, 18 N. E. 340 ; State v. Graves, 95 Mo. 510, 8 S. W. 739 ; State v. Ward, 61 Vt. 153, 17 Atl. Rep. 483. 2 The statute of Michigan of 1861, p. 169, removed the common-law disa- bilities of parties to testify and added, " Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify ; but any such 29 450 CONSTITUTIONAL LIMITATIONS. [CH. X. The testimony for the people in criminal cases can only, as a general rule, be given by witnesses who are present in court. 1 defendant shall be at liberty to make a statement to the court or jury, and may be cross-examined on any such state- ment." It has been held that this state- ment should not be under oath. People v. Thomas, 9 Mich. 314. That its pur- pose was to give every person on trial for crime an opportunity to make full ex- planation to the jury, in respect to the circumstances given in evidence which are supposed to have a bearing against him. Annis v. People, 13 Mich. 511. That the statement is evidence in the case, to which the jury can attach such weight as they think it is entitled to. Maher v. People, 10 Mich. 21 That the court has no right to instruct the jury that, when it conflicts with the testimony of an unimpeached witness, they must believe the latter in preference. Durant r. People, 13 Mich. 351. And that the prisoner while on the stand, is entitled to the assistance of counsel in directing his attention to any branch of the charge, that he may make explanations concern- ing it if he desires. Annis v. People, 13 Mich. 511. The prisoner does not cease to be a defendant by becoming a witness, nor forfeit rights by accepting a privilege. In People v. Thomas, 9 Mich. 321, Camp- bell, J., in speaking of the right which the statute gives to cross-examine a defend- ant who has made his statement, says : " And while his constitutional right of declining to answer questions cannot be removed, yet a refusal by a party to an- swer any fair question, not going outside of what he has offered to explain, would have its proper weight with the jury." See Commonwealth v. Mullen, 97 Mass. 547 ; Commonwealth v. Curtis, 97 Mass. 674 ; Commonwealth r. Morgan, 107 Mass. 199. In Florida under a similar statute the prisoner may make his state- ment even after the evidence is closed. Higginbotham v. State, 19 Fla. 557. [^Defendant may be compelled to testify against his interest in civil cases. Levy v. Superior Court of San Francisco, 105 Cal. 600, 38 Pac. 965, 29 L. R. A. 811, and note in L. R. A. And in criminal cases the accused may be compelled to stand up before the jury for identification. People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. 741, and note in L. R. A. Where accused offers him- self as witness he may be cross-examined. People v. Tice. 131 N. Y. 651, 30 N. E. 494, 15 L. R. A. 669, and note. The con- stitutional maxim which protects one from testifying against himself is avail- able to one though he is not on trial. Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. Rep. 195.3 1 State v. Thomas, 64 N. C. 74 ; Good- man v. State, Meigs, 197 ; Jackson v. Commonwealth, 19 Gratt. 656. See Skaggs v. State, 108 Ind. 63, 8 N. E. 695. By the old common law, a party accused of felony was not allosved to call wit- nesses to contradict the evidence for the Crown ; and this seems to have been on some idea that it would be derogatory to the royal dignity to permit it. After- wards, when they were permitted to be called, they made their statements with- out oath ; and it was not uncommon for both the prosecution and the court to comment upon their testimony as of little weight because unsworn. It was not until Queen Anne's time that they were put under oath. The rule that the prisoner shall be con- fronted with the witnesses against him does not preclude such documentary evi- dence to establish collateral facts as would be admissible under the rules of the com- mon law in o'her cases. United States ;;. Benner, Baldw. 234 ; United States v. Little, 2 Wash. C. C. 159; United States v. Ortega, 4 Wash. C. C. 531 ; People v. Jones, 24 Mich. 215. But the corpus de- licti e . g. the fact of marriage in an in- dictment for bigamy cannot be proved by certificates. People v. Lambert, 6 Mich. 349. Compare Patterson v. State, 17 Tex. App. 102. fJOn right to be con- fronted with witnesses, see Motes v. United States, 178 U. S. 458, 20 Sup. Ct. Rep. 993 ; also Gore v. State, 52 Ark. 285, 12 S. W. 564, 5 L. R. A. 832, and note. Jury may view the premises where the crime was committed, and the prisoner has no right to be present. People v. Thorn, 156 N. Y. 286, 50 N. E. 947, 42 L. R. A. 368 ; upon view by jury, see note to this case in L. R. A.] CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 451 The defendant is entitled to be confronted with the witnesses against him ; l and if any of them be absent from the Common- wealth, so that their attendance cannot be compelled, or if they be dead, or have become incapacitated to give evidence, there is no mode by which their statements against the prisoner can be used for his conviction. 2 The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circum- stances; but they are far from numerous. If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allow- able to make use of his deposition, or of the minutes of his ex- amination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party. 3 So, 'also, if a person is 1 Bell v. State, 2 Tex. App. 216, 28 Am. Rep. 429. It has been held com- petent, even in a criminal case, to make the certificate of the proper official ac- countant prima facie evidence of an official delinquency in the tax collector. Johns v. State, 65 Md. 350. QSo a stat- ute making evidence that a bank failed and that deposits were received by an officer of the bank shortly before the fail- ure, prima facie evidence of a taking with knowledge of insolvency is valid. State v. Buck, 120 Mo. 479, 25 S. W. 573. See also, People v. Cannon, 139 N. Y. 32, 34 N. E. 759, 36 Am. St. 668.3 It is not competent for the legislature to make reputation evidence against an accused of a public offence, e. g. of keeping a place for the sale of liquors, which the jury are bound to follow. State v. Beswick, 13 R. L 211; contra, State v. Thomas, 47 Conn. 546, 36 Am. Rep. 98. It may be made sufficient evi- dence, provided the jury, while free to convict upon it, are not bound to do so. State v. Wilson, 15 R. I. 180, 1 Atl. 415. QThe prisoner must be allowed to see wit- ness's face and to be near enough to hear what witness says and to watch its effect upon jury. State v. Mannion, 19 Utah, 505, 57 Pac. 542, 45 L. R. A. 638. Record which does not show the prisoner present during the entire trial is fatally defective. French v. State, 85 Wis. 400, 55 N. W. 666, 21 L. R. A. 402, 39 Am. St. 855.] 2 People t-. Howard, 60 Mich. 239, 15 N. W. 101. But a statute may give the prisoner the right to take depositions out of the State upon condition that the State shall have the like right. Butler v. State, 97 Ind. 378. 3 1 Greenl. Ev. 163-166; Bishop, Cr. Pro. 520-527; Whart. Cr. Law, 667 ; 2 Phil. Ev. by Cowen, Hill, and Edwards, 217, 229; Beets v. State, Meigs, 108; Kendricks v. State, 10 Humph. 479; United States v. McComb, 5 McLean, 286; Summons v. State, 5 Ohio St. 325; Pope v. State, 22 Ark. 371; Brown v. Com- monwealth, 73 Pa. St. 321 ; Johnson v. State, 1 Tex. App. 333 : O'Brien v. Com- monwealth, 6 Bush, 663 ; Commonwealth v. Richards, 18 Pick. 434; People v. Mur- phy, 45 Cal. 137; People v. Devine, 46 Cal. 45; Davis v. State, 17 Ala. 354; Marler v. State, 67 Ala. 56; State v. Johnson, 12 Nev. 121; State v. Hooker, 17 Vt. 658; State v. Elliott, 90 Mo. 350, 2 S. W. 411; Hair v. State, 16 Neb. 601, 21 N. W. 464; State v. Fitzgerald, 63 Iowa, 268, 19 N. W. 202. fJMattox r. United States, 156 U. S. 237, 15 Sup. Ct. Rep. 337 ; s. c. 146 U. S. 140, 13 Sup. Ct. Rep. 50. Contra, Cline v. State, 36 Tex. Crim. 320, 36 S. W. 1099, 37 S. W. 722, 61 Am. St. 850. See, upon this right of confrontation, note to Cline?'. State, supra, 61 Am. St. 886, and dissenting opinion of Henderson, J., in same case.J Compare Puryear v. State, 63 Ga. 692; State v. Campbell, 1 Rich. 124. That the legis- lature may make the notes of the official stenographer evidence in a subsequent trial, see State v. Frederic, 69 Me. 400, 452 CONSTITUTIONAL LIMITATIONS. [CH. X. on trial for homicide, the declarations of the party whom he is charged with having killed, if made under the solemnity of a conviction that he was at the point of death, and relating to matters of fact concerning the homicide, which passed under his own observation, may be given in evidence against the accused ; the condition of the party who made them being such that every motive to falsehood must be supposed to have been silenced, and the mind to be impelled by the most powerful considerations to tell the truth. 1 Not that such evidence is of very conclusive character ; it is not always easy for the hearer to determine how much of the declaration related to what was seen and positively known, and how much was surmise and suspicion only ; but it is admissible from the necessity of the case, and the jury must judge of the weight to be attached to it. In cases of felony, where the prisoner's life or liberty is in peril, he has the right to be present, and must be present, during the whole of the trial, and until the final judgment. If he be absent, either in prison or by escape, there is a want of jurisdic- tion over the person, and the court cannot proceed with the trial, or receive the verdict, or pronounce the final judgment. 2 But misdemeanors may be tried in the absence of the accused. 3 Am. Cr. R. 78. See People v. Sligh, 48 Mich. 54, 11 N. W. 782. Whether evi- dence that the witness cannot be found after diligent inquiry, or is out of the jurisdiction, would be sufficient to let in proof of his former testimony, see Bui. N. P. 239, 242 ; Rex r. Hagan, 8 0. & P. 167 ; Sills v. Brown, 9 C. & P. 601 ; People v. Chung Ah Chue, 57 Cal. 567. Evi- dence of a witness at a former trial, alive but out of the State, is inadmissible. Owens v. State, 63 Miss. 450. i Greenl. Ev. 156; 1 Phil. Ev. by Cowen, Hill, and Edwards, 285-289; Whart. Cr. Law, 669-682 ; Donnelly v. State, 26 N. J. 463 ; Anthony v. State, Meigs, 265; Hill's Case, 2 Gratt. 594; State v. Freeman, 1 Speers, 57; State v. Brunetto, 13 La. Ann. 45; Dunn v. State, 2 Ark. 229 ; Mose v. State, 35 Ala. 421 ; Brown v. State, 32 Miss. 433; Whitley v. State, 38 Ga. 70; State v. Quick, 15 Rich. 158 ; Jackson v. Commonwealth, 19 Gratt. 656 ; State v. Oliver, 2 Houst 585 ; People v. Simpson, 48 Mich. 474, 12 N. W. 6G2; State v. Saunders, 11 Oreg. 300, 12 Pac. 441 ; State v. Vansant, 80 Mo. 67. This whole subject was largely considered in Morgan v. State, 31 Ind. 193; State v. Framburg, 40 Iowa, 555. 2 See Andrews v. State, 2 Sneed. 550; Jacobs v. Cone, 5 S. & R. 335 ; Witt v. State, 5 Cold. 11; State v. Alman, 64 N. C. 364 ; Gladden v. State, 12 Fla. 577 ; Maurer v. People, 43 N. Y. 1 ; note to Winchell v. State, 7 Cow. 525; Hopt v. .Utah, 110 U. S. 574, 4 Sup. Ct. Rep. 202 ; Smith v. People, 8 Col. 457, 8 Pac. 920; State v. Kelly, 97 N. C. 404, 2 S. E. 185. In capital cases the accused stands upon all his rights, and waives nothing. Nomaque i\ People, Breese, 145 ; Demp- sey v. People, 47 111. 325 ; People v. McKay, 18 Johns. 217 ; Burley v. State, 1 Neb. 385. The court cannot make an order changing the venue in a criminal case in the absence of and without notice to the defendant. Ex parte Brynn, 44 Ala. 404. Nor in the course of the trial allow evidence to be given to the jury in his absence, even though it be that of a witness which had been previously re- duced to writing. Jackson v. Common- wealth, 19 Gratt. 656; Wade v. State, 12 Ga. 25. See People v. Bragle, 88 N. Y. 585. And in a capital case the record CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 453 The Traverse Jury. Accusations of criminal conduct are tried at the common law by jury; 1 and wherever the right to this trial is guaranteed by the constitution without qualification or restriction, it must be understood as retained in all those cases which were triable by jury at the common law, 2 and with all the common-law inci- must affirmatively show the presence of the accused at the trial, and when the verdict is received and sentence pro- nounced. Dougherty v. Commonwealth, 69 Pa. St. 286. As to right to be present, at a view of the locus in quo, see People v. Lowrey, 70 Cal. 193, 11 Pac. 605; State v. Congdon, 14 R. I. 458 ; Schular v. State, 105 Lid. 289, 4 N. E. 870 ; People v. Thorn, 156 N. Y. 286, 50 N. E. 947, 4 L. R. A. 368, and note in L. R. A., at argument of motion for a new trial : People v. Ormsby, 48 Mich. 494, 12 N. W. 671 ; State v. Jefcoat, 20 S. C. 383 ; Bond v. Com., 83 Va. 581, 3 S. E. 149; when jury come in for further instructions : Shipp v. State, 11 Tex. App. 46 ; Roberts v. State, 111 Ind. 340, 12 N. E. 500; State v. Myrick, 38 Kan. 238, 16 Pac. 330 ; State v. Jones, 29 S. C. 201, 7 S. E. Rep. 296. Whether an}- of the steps in the trial can be taken in the defendant's absence if he is under bail, see Barton *'. State, 67 Ga. 653; Sahlinger v. People, 102 III. 241; State v. Smith, 90 Mo. 37, 1 S. W. 753; Gore v. State, 52 Ark. 285, 12 S. W. 564, 6 L. R. A. 832. Qlf the accused wilfully absents himself pending the trial, it may proceed in his absence. Gore v. State, 52 Ark. 285, 12 S. W. 664, 5 L. R. A. 832, and note/] 1 See in general Thompson and Mer- riam on Juries. It is worthy of note that all that is extant of the legislation of the Plymouth Colony for the first five years, consists of the single regulation, " that all criminal facts, and also all manner of trespasses and debts between man and man, shall be tried by the verdict of twelve honest men, to be impanelled by authority, in form of a jury, upon their oath." 1 Palfrey's New England, 340. L~Upon right to trial by jury, see Thomp- son v. Utah, 170 U. S. 343, 18 Sup. Ct. Rep. 620, and note to 42 L. ed. U. S. 1061. The right to trial by jury may be con- ditioned upon furnishing an affidavit of merits in actions ex contractu. Fidelity & Deposit Co. v. United States, U. S. , 23 Sup. Ct. Rep. 120 (Dec. 1. 1902).] 2 Cases of contempt of court were never triable by jury; and the object of the power would be defeated in many cases if they were. The power to punish contempts summarily is incident to courts of record. King v. Almon, 8 St. Trials, 63; Respublica r. Oswald, 1 Dall. 319, 1 Am. Dec. 246 ; Mariner v. Dyer, 2 Me. 165; Morrison v. McDonald, 21 Me. 650; State v. White, T. U. P. Chart. 136; Yates v. Lansing, 9 Johns. 395, 6 Am. Dec. 290; Sanders v. Metcalf, 1 Tenn. Ch. 419; Clark v. People, 1 111. 340, 12 Am. Dec. 177 ; People v. Wilson, 64 111. 195, 16 Am. Rep. 528; State v. Morrill, 16 Ark. 384 ; Gorham v. Luckett, 6 B. Monr. 638 ; State v. Woodfin, 5 Ired. 199 ; Ex parte Adams, 25 Miss. 883; State v. Copp, 15 N. H. 212; State v. Mathews, 37 N. H. 450; Neel v. State, 9 Ark. 259; State v. Tipton, 1 Blackf. 166 ; Middle- brook v. State, 43 Conn. 259; Garrigus v. State, 93 Ind. 239; Chafee v. Quidnick Co., 13 R. I. 442. rJTinsley v. Anderson, 171 U. S. 101, 18 Sup. Ct. Rep. 805. Upon powers of court to punish for contempt, see note to 22 L. ed. U. S. 205; limits to rule of no review of contempt proceedings, note to 22 L. ed. U. S. 354. Also, Smith v. Speed, Okla. , 55 L. R. A. 402. A court of review may cut down an excessive verdict and give judgment for the modified amount without violating the right to a jury trial. Burdick v. Missouri Pacific Ry. Co. 123 Mo. 221, 27 S. W. 453.] This is true of the federal courts. United States v. Hudson, 7 Cranch, 32; United States v. New Bed- ford Bridge, 1 Wood. & M. 401. See Ex parte Robinson, 19 Wall. 505; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. Rep. 77. The legislature may designate the cases in which a court may punish summarily. In re Oldham, 89 N. C. 23; State v. McClaugherty, 33 W. Va. 250, 10 S. E. Rep. 407. Whether justices of 454 CONSTITUTIONAL LIMITATIONS. [CH. X. dents to a jury trial, so far, at least, as they can be regarded as tending to the protection of the accused. 1 (a) the peace may punish contempts in the absence of any statute conferring the power, will perhaps depend on whether the justice's court is or is not deemed a court of record. See Lining v. Bentham, 2 Bay, 1 ; Re Cooper, 32 Vt. 253 ; Ex parte Kerrigan, 33 N. J. 345; Rhinehart v. Lance, 43 N. J. 311, 39 Am. Rep. 692. But court commissioners have no such power. In re Remington, 7 Wis. 643; Haight v. Lucia, 36 Wis. 355; Ex parte Perkins, 29 Fed. Rep. 900 : nor notaries ; Burtt v. Pyle, 89 Ind. 398; but see Dogge v. State, 21 Neb. 272, 31 N. W. 929. Nor can the legislature confer it upon munici- pal councils. Whitcomb's Case, 120 Mass. 118. As the courts in punishing contempts are dealing with cases which concern their own authority and dignity, and which are likely to suggest, if not to excite, personal feelings and animosities, the case should be plain before they should assume the authority. Bachelder v. Moore, 42 Cal. 415. See Storey v. People, 79 111. 45 ; Hollingsworth v. Du- ane, Wall. C. C. 77 ; Ex parte Bradley, 1 See note to p. 590, post. A citizen not in the land or naval service, or in the militia in actual service, cannot be tried by court-martial or military commission, on a charge of discouraging volunteer enlistments or resisting a military con- scription. In re Kemp, 16 Wis. 359. See Ex parte Milligan, 4 Wall. 2. The con- stitutional right of trial by jury extends to newly created offences. Plimpton v. Somerset, 33 Vt. 283; State v. Peterson, 41 Vt. 504. Contra, Tims v. State, 26 Ala. 165 [case of an inferior offence]. But not to offences against city by-laws. McGear v. Woodruff, 33 N. J. 213. Ex parte Schmidt, 24 S. C. 363 ; Wong v. Astoria, 13 Oreg. 538, 11 Pac. 205; Lieberman v. State, 26 Neb. 464, 42 N. W. 419; Man- kato v. Arnold, 36 Minn. 62, 30 N. W. 305. COgden v. City of Madison, 111 Wis. 413, 87 N. W. 568, 55 L. R. A. 506J Otherwise if the offence is a crime. In re Rolfs, 30 Kan. 758, 1 Pac. 523 ; Creston v. Nye, 74 Iowa, 369, 37 N. W. 777. A provision in an excise law, authorizing the excise board to revoke licenses, is not void as violating the constitutional right of jury trial. People v. Board of Commissioners, 59 N. Y. 92. See LaCroix v. Co. Com'rs, 60 Conn. 321. fJA jury may by statute be dispensed with where the defendant pleads guilty, and the court may be empowered to examine witnesses and determine from their testimony what is the degree of the offence. This is true even in capital cases. Hallinger v. Davis, 146 U. S. 314, 13 Sup. Ct. Rep. 105; and see note to 36 L. ed. U. S. 986; State r. Almy, 67 N. H. 274, 28 All. 372, 22 L. R. A. 744; Craig v. State, 49 Ohio St. 415, 30 N. E. 1120, 16 L. R. A. 358. The jury may by law be required to be drawn from a special list secured by a special commissioner by eliminating unfit persona from the general list. People v. Dunn, 157 N. Y. 528, 52 N. E. 572, 43 L. R. A. 247. Fixing of period of sentence is no part of constitutional function of jury of which it cannot be deprived. Miller v. State, 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109. Statute authorizing dis- missal of part of jury and receipt of ver- dict from remainder is void. McRae v. Grand Rapids, L. & D. R. Co., 93 Mich. 399, 53 N. W. 5(51, 17 L. R. A. 750. Where the Constitution gives right to trial by jury in civil cases, it is a viola- tion of that right for the court to take the question of negligence from the jury though the facts are undisputed if dif- ferent inferences may be drawn from such facts. Shobert v. May, Oreg. , 66 Pac. 466, 65 L. R. A. 810. The power of a court to set aside the verdict of a jury as against the weight of evidence is not in conflict with the constitutional right to trial by jury. Hintz v. Mich. Cent. Ry. Co., Mich. , 93 N. W. 634.] (a) FJBut any State is competent to establish through its constitution a jury of fewer than twelve persons for the trial of criminal charges, and it may probably provide that less than the whole number of jurors may render a verdict. Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. Rep. 448, 494. M. was tried upon an information filed by the prosecuting attorney of a Utah county, charging him with robbery. He CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 455 A petit, petty, or traverse jury is a body of twelve men, who are sworn to try the facts of a case, as they are presented in 7 Wall. 364. If the contempt is in the L. R. A. 159, 70 Am. St. 280; Dahnke v. presence of the court, it may be punished People,' 168 111. 102, 48 N. E. 137, 39 L. R. without notice or opportunity for defence. A. 197; Dixon v. People, 168 111. 179, 48 Exparte Terry, 128 U. S. 289, 9 Sup. Ct. N. E. 108, 39 L. R. A. 116; State v. Cir- Rep 77. See State v. Gibson, 33 W. Va. cuit Court, 97 Wis. 1, 72 N. VV. 193, 38 97, 10 S. E. Rep. 58. A libellous publi- L. R. A. 554, 65 Am. St. 90 ; Re Huron, cation as to a pending cause may be pun- 58 Kan. 152, 48 Pac. 574, 36 L. R. A. 822, ished as a contempt. Coopers. People, 6'2 Am. St. 614, and note in L. R. A.; 13 Col. 373, 22 Pac. Rep. 790. [The Coleman v. Roberts, 113 Ala. 323, 21 So. power to punish a party for contempt of 449, 36 L. R. A. 84, 69 Am. St. Ill ; Ex court cannot be so used as to deprive him parte Senior, 37 Fla. 1, 19 So. 652, 32 L. of his right to a defense upon the merits R. A. 133 ; Dailey v. Superior Court of in the principal case. A decree pro con- San Francisco, 112 Cal. 94, 44 Pac. 458, fesso entered after striking a party's 32 L. R. A. 273, 53 Am. St. 160; Clair answer from the files as a punishment for v. State, 40 Neb. 534, 59 N. W. 118, 28 his refusal to obey an order of the court L. R. A. 367 ; Mullin v. People, 15 Col. is void for want of due process. Hovey 437, 24 Pac. 880, 9 L. R. A. 566, and note, i'. Elliott, 167 U. S. 409, 17 Sup. Ct. Rep. 22 Am. St. 414; Thomas v. People, 14 841, aff. 145 N. Y. 126, 39 N. E. 841. See Col. 254, 23 Pac. 326, 9 L. R. A. 569. the whole subject of contempts very fully Court has no inherent power to prohibit discussed by Mr. Justice White in deliv- the publication of testimony given before ering the opinion of the court in this it. Re Sliortridge, 99 Cal. 526, 34 Pac. case. See, also, Carter v. Commonwealth, 227, 21 L. R. A. 755, 37 Am. St. 78.] 96 Va. 791, 32 S. E. 780, 45 L. R. A. 310; Charges of vagrancy and disorderly Telegram Newspaper Co. v. Common- conduct were never triable by jury. See wealth, 172 Mass. 2 ( J4, 52 N. E. 445, 44 full review by Alvey, J., in State v. Glenn, was tried before a jury composed of but eight jurors, was convicted, sentenced to imprisonment in the State prison, and duly committed. Section 13, Article 1, of the Constitution of Utah provides: "Offences heretofore required to be prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the State, or by indictment, with or without sucli examination and commitment. The grand jury shall consist of seven persons, five of whom must concur to find an indictment; but no grand jury shall be drawn or summoned unless in the opinion of the judge of the district public interest demands it." Section 10, Article 1, of that Constitution is as follows : " In capital cases the right of trial by jury shall remain inviolate. In courts of general jurisdiction, except in capital cases, a jury shall consist of eight jurors. In courts of inferior jurisdic- tion, a jury shall consist of four jurors. In criminal cases the verdict shall be unani- mous. In civil cases three-fourths of the jurors may find a verdict. A jury in civil cases shall be waived unless demanded." M. after incarceration " applied to the supreme court of the State for a writ of habeas corpus, and alleged in his sworn petition that he was a natural-born citizen of the United States, and that his imprisonment was unlawful because he was prose- cuted under an information instead of by indictment by a grand jury, and was tried by a jury composed of eight instead of twelve jurors. He specially set up and claimed (1) that to prosecute him by information abridged his privileges and immu- nities as a citizen of the United States, under Article 5 of the Amendments to the Constitution of the United States, and also violated section 1 of Article 14 of those Amendments; (2) that a trial by jury of only eight persons abridged his privileges and immunities as a citizen of the United States, under Article 6, and also violated section 1 of Article 14 of such Amendments; (3) that a trial by such a jury, and his subsequent imprisonment by reason of the verdict of that jury, deprived him of hia 456 CONSTITUTIONAL LIMITATIONS. [CH. X. the evidence placed before them. Any less than this number of twelve would not be a common-law jury, and not such a jury 54 Md. 572. Also State v. Anderson, 40 the Chinese exclusion act object that he N. J. 224. Petty offences need not be so was not given a jury trial of his claimed tried. Ex parte Wooten, 62 Miss. 174 ; right to remain. Fong Yue Ting v. Inwood v. State, 42 Ohio St. 186; Ex United States, 149 U. S. 698, 13 Sup. Ct. parte Marx, 86 Va. 40, 9 S. E. 617. Rep. 1016. The procedure in equity to QNor are breaches of the rules pre- enforce a mechanics' lien is not in con- scribed for the discipline of the national flict with the constitutional right to trial guard. State v. Wagener, 74 Minn. 518, by jury. Hathorne V.Panama Park Co., 77 N. W. 424, 42 L. R. A. 749. Nor is Fla. , 32 So. 812.] But one may a summary proceeding for a restraining not be imprisoned for two years as an order. Ex parte Keeler, 45 S. C. 537, 23 habitual drunkard upon a chamber order. S. E. 865, 31 L. R. A. 678, 55 Am. St. 785. State v. Ryan, 70 Wis. 676, 36 N. W. 823. But an offence triable by jury at time QAnd a commitment until further of adoption of Constitution cannot subse- order of court is void for indefiniteness. quently be made triable without jury in Ex parte Curtis, 10 Okla. 660, 63 Pac. the first instance. Miller v. Com. ,88 Va. 963. That right to jury extends to trial 618, 14 S. E. 161, 342, 979, 15 L. R. A. 441, of issues of fact in quo warranto proceed- and note. The provision being consid- ings, see Buckman v. State, 34 Fla. 48, ered does not require trial by jury of 15 So. 697, 24 L. R. A. 806, and note, offences before consuls under the au- But not to actions of book-account. Hall thority of treaty stipulations, though such v. Armstrong, 65 Vt. 421, 26 Atl. 592, 20 offence was committed on the deck of an L. R. A. 366. Nor to assessment of dam- American vessel. Ross v. Mclntyre, 140 ages for negligence on default of answer. U. S. 453, 11 Sup. Ct. Rep. 897. Nor can Dean v. Willamette Bridge Co., 22 Oreg. one ordered to leave this country under 167,- 29 Pac. 440, 15 L. R. A. 614/] liberty without due process of law, in violation of section 1 of Article 14, which pro- vides that no State shall deprive any person of life, liberty, or property without due process of law." "The supreme court of the State, after a hearing of the case, denied the petition for a writ, and remanded the prisoner to the custody of the keeper of the State prison to undergo the remainder of his sentence ; and he then sued out a writ of error and brought the case" before the Supreme Court of the United States. Said that court, speaking by Mr. Justice Peckham : " The objection that the proceeding by information does not amount to due process of law has been hereto- fore overruled, and must be regarded as settled by the case of Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. Rep. 111,292. The case has since been frequently ap- proved. Hallinger v. Davis, 146 U. S. 314, 322, 991, 13 Sup. Ct. Rep. 105; McNulty v. California, 149 U. S. 645, 13 Sup. Ct Rep. 959; Hodgson v. Vermont, 168 U. S. 262, 272, 18 Sup. Ct. Rep. 80; Holden v. Hardy, 169 U. S. 366, 384, 18 Sup. Ct. Rep. 383; Brown v. New Jersey, 175 U. S. 172, 176, 20 Sup. Ct. Rep. 77; Bolln v. Ne- braska, 176 U. S. 83, 20 Sup. Ct. Rep. 287. " But the plaintiff in error contends that the Hurtado case did not decide the question whether the State law violated that clause in the Fourteenth Amendment which provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ... In a Federal court no person can be held to answer for a capital or otherwise infamous crime unless by indictment by a grand jury, with the exceptions stated in the Fifth Amendment. Yot this amendment was held in the Hurtado case not to apply to a prosecution for murder in a State court pursuant to a State law. The claim was made in that case (and referred to in the opinion) that the adoption of the Fourteenth Amendment provided an additional security to the individual against oppression by the States themselves, and limited their powers to the same extent as the amendments thereto- fore adopted had limited the powers of the federal government. By holding that the conviction upon an information was valid, the court necessarily held that the CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 457 as the Constitution guarantees to accused parties, when a less indictment was not necessary ; that exemption from trial for an infamous crime, excepting under an indictment, was not one of those privileges of a citizen of the United States which a State was prohibited from abridging. The whole case was probably regarded as involved in the question as to due process of law. The par- ticular objection founded upon the privileges and immunities of citizens of the United States is now taken and insisted upon in this case." That the first ten Amendments to the Constitution of the United States " were intended as restraints and limitations upon the powers of the general government, . . . and did not have any effect upon the powers of the respective States . . . has been many times decided," citing Spies v. Illinois, 123 U. S. 86, 131, 166, 8 Sup. Ct. Rep. 21 ; Holden v. Hardy, 169 U. S. 366, 382, 787, 18 Sup. Ct. Rep. 383; Brown v. New Jersey, 175 U. S. 172, 174, 20 Sup. Ct. Hep. 77. These cases cite many others to the same effect. That the Fourteenth Amendment did not extend these restric- tions to the States was decided in the Slaughter-House Cases, 16 Wall. 36. In conclusion, Mr. Justice Peckham says: "It appears to us that the questions whether a trial in criminal cases not capital shall be by a jury composed of eight instead of twelve jurors, and whether in case of an infamous crime a person shall only be liable to be tried after presentment or indictment of a grand jury, are emi- nently proper to be determined by the citizens of each State for themselves, and do not come within the clause of the amendment under consideration, so long as all persons within the jurisdiction of the State are made liable to be proceeded against by the same kind of procedure and to have the same kind of trial, and the equal protection of the laws is secured to them. Caldwell v. Texas, 137 U. S. 692, 11 Sup. Ct. Rep. 224; Leeper v. Texas, 139 U. S. 462, 11 Sup Ct. Rep. 577. It is emphati- cally the case of the people by their organic law providing for their own affairs, and we are of opinion they are mucli better judges of what they ought to have in these respects than any one else can be. Tlie reasons given in the learned and most able opinion of Mr. Justice Matthews, in the Hurtado case, for the judgment therein ren- dered, apply with equal force in regard to a trial by a jury of less than twelve jurors. The right to be proceeded against only by indictment, and the right to a trial by twelve jurors, are of the same nature, and are subject to the same judgment, and the people in the several States have the same right to provide by their organic law for the change of both or either. Under this construction of the amendment there can be no just fear that the liberties of the citizen will not be carefully pro- tected by the States respectively. It is a case of self-protection, and the people can be trusted to look out and care for themselves. There is no reason to doubt their willingness or their ability to do so, and when providing in their Constitution and legislation for the manner in which civil or criminal actions shall be tried, it is in entire conformity with the character of the Federal government that they should have the right to decide for themselves what shall be the form and character of the procedure in such trials, whether there shall be an indictment or an information only, whether there be a jury of twelve or a lesser number, and whether the verdict must be unanimous or not. These are matters which have no relation to the character of the Federal government. As was stated by Mr. Justice Brewer, in delivering the opinion of the court in Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. Rep. 77, the State has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution. The legislation in question is not, in our opinion, open to either of these objections. " Judged by the various cases in this court, we think there is no error in this record, and the judgment of the Supreme Court of Utah must therefore be affirmed." To this there was a vigorous dissenting opinion by Mr. Justice Ilarlan, chiefly upon the ground that the holding of the court made, the amendment clause in question only declaratory of the earlier law.] 458 CONSTITUTIONAL LIMITATIONS. [CH. X number is not allowed in express terms (a) ; and the necessity of a full panel could not be waived at least in case of felony even by consent. 1 The infirmity in case of a trial by jury of less than twelve, by consent, would be that the tribunal would be one i Work v. State, 2 Ohio St. 296 ; Can- cemi v. People, 18 N. Y. 128; Brown v. State, 8 Blackf. 561; 2 Lead. Cr. Cas. 337; Hill v. People, 16 Midi. 351. And see State v. Cox, 3 Eng. 436 ; Murphy v. Commonwealth, 1 Met. (Ky.) 365; Tyzee v. Commonwealth, 2 Met. (Ky.) 1; Suite v. Mansfield, 41 Mo. 470; Brown v. State, 16 Ind. 496; Opinions of Judges, 41 N. H. 550; Lincoln v. Smith, 27 Vt. 328; Dow- ling's Case, 13 Miss. 664; Tillmann v. Arlles, 13 Miss. 373; Vaughan v. Seade, 30 Mo. 600; Kleinschmidt v. Dumphy, 1 Mont. 118; Allen v. State, 54 Ind. 461 ; State v. Everett, 14 Minn. 447 ; State v. Lockwood, 43 Wis. 403 j State v. Davis, 66 Mo. 484; Williams v. State, 12 Ohio St. 622; Allen v. State, 54 Ind. 461; Swart v. Kimball, 43 Mich. 443, 5 N. W. 635; Mays v. Com., 82 Va. 550; Harris v. People, 128 III. 585, 21 N. E. 563; State v. Stewart, 89 N. C. 563. In Common- wealth v. Dailey, 12 Cush. 80, it was held that, in a case of misdemeanor, the con- sent of the defendant that a verdict might be received from eleven jurors was bind- ing up*on him, and the verdict was valid. See also State v. Borowsky, 11 Nev. 119; Murphy v. Commonwealth, 1 Met. (Ky.) 365; Connelly v. State, 60 Ala. 89, 31 Am. Rep. 34; State v. Sackett, 39 Minn. 69, 38 N. W. 773. No distinction is made in the last case between felony and mis- demeanor in this regard. In Iowa the right to jury trial is regarded as a per- sonal privilege which may be waived. State v. Poison, 29 Iowa, 133; State v. Kaufman, 51 Iowa, 578, 2 N. W. 275, 33 Am. Hep. 148. But not in case of homicide. State v. Carman, 63 Iowa, 130, 18 N. W. 691. And in Connecticut and Ohio, under statutes permitting a defend- ant in a criminal case to elect to be tried by the court, his election is held to bind him. State v. Worden, 46 Conn. 349, 33 Am. Rep. 27; Dillingham v. State, 5 Ohio St. 280. Such a statute is valid: Edwards v. State, 45 N. J. L. 419 ; except as to a capital case. Murphy v. State, 97 Ind. 579. In Hill v. People, 16 Mich. 356, it was decided that if one of the jurors called was an alien, the defendant did not waive the objection by failing to challenge him, if he was not aware of the disqualification ; and if the court re- fused to set aside the verdict on affidavits showing these facts, the judgment upon it would be reversed on error. The case of State v. Quarrel, 2 Bay, 150, is contra. The case of State v. Stone, 3 111. 326, in which it was held competent for the court, even in a capital case, to strike off a juryman after he was sworn, because of alienage, affords some support for Hill v. People. " Struck " juries are permis- sible. Lommen ?'. Minneapolis Gaslight Co , 65 Minn. 196, 68 N. W. 53, 33 L. R. A. 437, 60 Am. St. 450Q (a) QThat a jury composed, as at common law, of twelve jurors was intended by the Sixth Amendment to the Federal Constitution, see Thompson v. Utah, 170 U. S. 343, 349, 18 Sup. Ct. Rep. 620; and that their verdict shall be unanimous in all Federal courts where a jury trial is held, see American Pub. Co. v. Fisher, 166 U. S. 464, 17 Sup. Ct. Rep. 618, and Springville v. Thomas, 166 U. S. 707, 17 Sup. Ct. Rep. 717. See also Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. Rep. 580. Upon number of jurymen necessary to jury, etc., see note to 14 L. ed. U. S. 394. With regard to grand jury, and that it must, unless otherwise expressly stated in constitution, consist of not less than twelve, whose verdict must be concurred in by twelve, see State v Hartley, 22 Nev. 342, 40 Pac. 372, 28 L. 11. A. 33, and note. Under the constitution of Wyoming providing that the right to a jury trial in crim- inal cases shall remain inviolate, but that in 'civil cases a jury may consist of less than twelve, it is held that a statute providing that a verdict might be found in civil cases by an agreement of three-fourths of the jurors is void. First Nat'l Bank of Rock Springs ?;. Foster, 9 Wyo. 157, 61 Pac. 466, 63 Pac. 1056, 54 L. R. A. 549.] CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 459 unknown to the law, created by mere voluntary act of the parties ; and it would in effect be an attempt to submit to a species of arbitration the question whether the accused has been guilty of an offence against the State. But in*those cases which formerly were not triable by jury, if the legislature provide for such a trial now, they may doubtless create for the purpose a statutory tri- bunal, composed of any number of persons, and no question of constitutional power or right could arise. Many of the incidents of a common-law trial by jury are essen- tial elements of the right. The jury must be indifferent between the prisoner and the Commonwealth ; and to secure impartiality challenges are allowed, not only for cause, 1 ' but also peremptory without assigning cause. The jury must also be summoned from the vicinage where the crime is supposed to have been com- mitted; 2 and the accused will thus have the benefit on his trial 1 Inability to read and write may be made good cause for challenge. Mc- Campbell v. State, 9 Tex. App. 124, 35 Am. Rep. 726. But not inability to un- derstand English, in New Mexico, in the absence of statute. Terr. v. Komine, 2 New Mexico, 114. See, on the subject of challenges for opinion formed, Hayes o. Missouri, 120 U. S. 68, 7 Sup. Ct. Rep. 350; Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. Rep. 21 ; Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. Rep. 614 ; Palmer v. State, 42 Ohio St. 596; State i;. Munchrath, 78 Iowa, 268, 43 N. W. 211. FJCoughlin v. People, 144 111. 140, 33 N. E. 1, 19 L. R. A. 67; and upon challenges generally, notes to 41 L. ed. U. S. 104 and 20 L. ed. U. S. 659.] 2 Offences against tbe United States are to be tried in the district, and those against the State in the county in which they are charged to have been committed : Swart v. Kimball, 43 Mich. 443, 5 N. W. 635 ; but courts are generally empowered, on the application of an accused party, to order a change of venue, where for any reason a fair and impartial trial cannot be had in the locality. See Hudson v. State, 3 Cold. 355; Rowan r. State, 30 Wis. 129; State v. Mooney, 10 Iowa, 607 ; State v. Read, 49 Iowa, 85 ; Way- rick v. People, 89 111. 90 ; Manly . State, 52 Ind. 215; Gut v. State, 9 Wall. 35; State v. Albee, 61 N. H. 423. [State v. McCarty, 52 Ohio St. 363, 39 N. E. 1041, 27 L. R. A. 534.] It has been held incompetent to order such a change of venue on the application of the prosecu- tion. Kirk v. State, 1 Cold, 344. See also Wheeler v. State, 24 Wis. 52 ; Osborn v. State, 24 Ark. 629. [People v. Powell, 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75.] And in another case in Tennessee it was decided that a statute which permitted offences committed near the boundary line of two counties to be tried in either was an invasion of the constitutional principle stated in the text. Armstrong v. State, 1 Cold. 338. See also State v. Denton, 6 Cold. 539. Contra, State v. Robinson, 14 Minn. 447; Willis v. State, 10 Tex. App. 493. [Statute providing that where the blow is struck outside the state and the stricken one dies within the state, the crime shall be deemed to have been committed at the place of death was sustained in Exparte McNeely, 36 W. Va. 84, 14 S. E. 436, 16 L. R. A. 226, 32 Am. St. 831. Jury cannot be summoned from country districts to exclusion of residents of city in which crime occurred. Zanone v. State, 97 Tenn. 101, 36 S. W. 711, 35 L. R. A. 556.] The case of Dana decided by Judge Blatckford, when U. S. District Judge for the southern district of New York, is of interest in this connection. The " New York Sun," of which Mr. Charles A. Dana was editor-in-chief, published an article reflecting upon the public conduct of an official at Washington. This article was claimed to be a libel. The actual offence, if any, was committed in New York ; but a technical publication also took place in 460 CONSTITUTIONAL LIMITATIONS. [CH. X. of his own good character and standing with his neighbors, if these he has preserved ; and also of such knowledge as the jury may possess of the witnesses who may give evidence against him. He will also be able with more certainty to secure the attendance of his own witnesses. The jury must unanimously concur in the verdict (a). This is a very old requirement in the English com- mon law, and it has been adhered to, notwithstanding very eminent men have assailed it as unwise and inexpedient. 1 And the jurors must be left free to act in accordance with the dictates of their judgment. The final decision of the facts is to rest with them, and interference by the court with a view to coerce them into a verdict against their convictions is unwarrantable and irregular. A judge is not justified in expressing his conviction to the jury that the defendant is guilty upon the evidence adduced. 2 Still Washington, by the sale of papers there. The offended party chose to have his complaint tried summarily by a police justice of the latter city, instead of sub- mitting it to a jury required to be indiffer- ent between the parties. A federal com- missioner issued a warrant for Mr. Dana's arrest in New York for transportation to Washington for trial ; but Judge Blatch- ford treated the proceeding with little re- spect, and ordered Mr. Dana's discharge. Matter of Dana, 7 Ben. 1. It would have been a singular result of a revolution where one of the grievances complained of was the assertion of a right to send parties abroad for trial, if it should have been found that an editor might be seized anywhere in the Union and transported by a federal officer to every territory into which his paper might find its way, to be tried in each in succession for offences which consisted in a single act not actu- ally done in any of them. QJpon right of accused to object to local judge for prejudice, see State v. Kent, 4 N. D. 577, 62 N. W. 631, 27 L. R, A. 686.] 1 For the origin of this principle, see Forsyth, Trial by Jury, c. 11. The re- quirement of unanimity does not prevail in Scotland, or on the Continent. Among the eminent men who have not approved it may be mentioned Locke and Jeremy Bentham. See Forsyth, supra; Lieber, Civil Liberty and Self-Government, c. 20. (^Unanimity necessary. American Pub- lishing Co. v. Fisher, 166 U. S. 464, 17 Sup. Ct. Rep. 618; Springville City v. Thomas, 166 U. S. 707, 17 Sup. Ct. Rep. 717.] 2 A judge who urges his opinion upon the facts to the jury decides the cause, while avoiding the responsibility. How often would a jury be found bold enough to declare their opinion in opposition to that of the judge upon the bench, whose words would fall upon their ears with all the weight which experience, learning, and commanding position must always carry with them ? What lawyer would care to sum up his case, if he knew that the judge, whose words would be so much more influential, was to declare in his favor, or would be bold enough to argue the facts to the jury, if he knew the judge was to declare against him ? Blackstone has justly remarked that "in settling and adjusting a question of fact, when in- trusted to any single magistrate, partial- ity and injustice have an ample field to range in ; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, (a) [Tint see the note on Maxwell v. Dow, note (a), page 454, ante. And upon number and agreement of jurors necessary to constitute a valid verdict, see note to 43 L. R. A. 33. See also Jacksonville, T. & K. W. R. Co. v. Adams, 33 Fla. 608, 15 So. 257, 24 L. R. A. 272, and note. That statute may make majority of three-fourths sufficient in civil cases, where the constitution expressly so provides, see Hess v. White, 9 Utah, 61, 33 Pac. 243, 24 L. R. A. 277 J CH. X.] CONSTITUTIONAL PKOTECTIONS, ETC. 461 less would he be justified in refusing to receive and record the verdict of the jury, because of its being, in his opinion, rendered in favor of the prisoner when it ought not to have been (a). He discharges his duty of giving instructions to the jury when he informs them what in his view the law is which is applicable to the case before them, and what is essential to constitute the offence charged; and the jury should be left free and unbiased by his opinion to determine for themselves whether the facts in evidence are such as, in the light of the instructions of the judge, make out beyond any reasonable doubt that the accused party is guilty as alleged. 1 How far the jury are to judge of the law as well as of the facts, is a question, a discussion of which we do not propose to enter upon. If it be their choice to do so, they may return specially what facts they find established by the evidence, and allow the court to apply the law to those facts, and thereby to determine whether the party is guilty or not. But they are not obliged in any case to find a special verdict ; they have a right to apply for themselves the law to the facts, and to express their own opinion, upon the whole evidence, of the defendant's guilt. Where a stretching and warping others, and dis- opposition of the judges, they almost all tinguishing away the remainder." 3 BI. spitefully followed this course. I myself Com. 380. These are evils which jury heard one judge say : 'As the legislature trial is designed to prevent; but the effort requires me to give my own opinion in must be vain if the judge is to control by the present case, I am of opinion that this his opinion, where the law has given him is a diabolically atrocious libel.'" Upon no power to command. In Lord Camp- this subject, see McGuffie v. State, 17 Ga. bell's Lives of the Chancellors, c. 181, the 497 ; State v. McGinnis, 5 Nev. 337 ; Pit- author justly condemns the practice with tock v. O'Niell, 63 Pa. St. 253. 3 Am. Rep. some judges in libel cases, of expressing 544; People v. Gastro, 75 Mich. 127, 42 to the jury their belief in the defendant's N. W. 937. guilt. On the trial of parties, charged 1 The independence of the jury, with with a libel on the Empress of Russia, respect to the matters of fact in issue be- Lord Kenyan, sneering at the late Libel fore them, was settled by Penn's Case, 6 Act, said : "I am bound by my oath to Howell's State Trials, 951, and by Bush- declare my own opinion, and I should el's Case, which grew out of it, and is forget my duty were I not to say to you reported in Vaughan's Reports, 135. A that it is a gross libel." Upon this Lord very full account of these cases is also Campbell remarks: "Mr. Fox's act only found in Forsytli on Trial by Jury, 397. requires the judges to give their opinion See Bushel's Case also in Broom's Const. on matters of law in HI el cases as in Law, 120, nnd the valuable note thereto, other cases. But did any judge ever say, Bushel was foreman of the jury which 'Gentlemen, I am of opinion that this is refused to find a verdict of guilty at the a wilful, malicious, and atrocious mur- dictation of the court, and he was pun- der 1 ?' For a considerable time after ished as for contempt of court for his re- the act passed, against the unanimous fusal, but was released on habeas corpus. (a) QBut when verdict is unintelligible or its parts are repugnant the jury may be sent back to correct it. Grant v. State, 33 Fla. 291, 14 So. 757, 23 L. R. A. 723, and note upon correction of Yerdict/] 462 CONSTITUTIONAL LIMITATIONS- [CH. X. general verdict is thus given, the jury necessarily determine in their own mind what the law of the case is j 1 and if their deter- mination is favorable to the prisoner, no mode is known to the law in which it can be reviewed or reversed. A writ of error does not lie on behalf of the Commonwealth to reverse an ac- quittal, unless expressly given by statute ; 2 nor can a new trial be granted in such a case; 3 but neither a writ of error nor a motion for a new trial could remedy an erroneous acquittal by the jury, because, as they do not give reasons for their verdict, the precise grounds for it can never be legally known, and it is always presumable that it was given in favor of the accused be- cause the evidence was not sufficient in degree or satisfactory in character; and no one is at liberty to allege or assume that they have disregarded the law. Nevertheless, as it is the duty of the court to charge the jury upon the law applicable to the case, it is still an important ques- tion whether it is the duty of the jury to receive and act upon the law as given to them by the judge, or whether, on the other hand, his opinion is advisory only, so that they are at liberty either to follow it if it accords with their own convictions, or to disregard it if it does not. In one class of cases, that is to say, in criminal prosecutions for libels, it is now very generally provided by the State constitu- tions, or by statute, that the jury shall determine the law and the 1 "As the main object of the institution dence of the truth as constituting no de- of the trial by jury is to guard accused fence, but Hamilton appealed to the jury persons against all decisions whatsoever as the judges of the law, and secured by men invested with any permanent an acquittal. Street's Council of Re- official authority, it is not only a settled vision, 71. principle that the opinion which the judge 2 See State v. Reynolds, 4 Hay w. 110 ; delivers has no weight but such as the United States v. More, 3 Cranch, 174; jury choose to give it, but their verdict People v. Dill, 2 111. 257; People v. Royal, must besides [unless they see fit to return 2 111. 557 ; Commonwealth v. Cummings, a special finding] comprehend the whole 3 Cush. 212 ; People v. Corning, 2 N. Y. matter in trial, and decide as well upon 9; State v, Kemp, 17 Wis. 669; compare the fact as upon the point of law that may State v. Robinson, 37 La. Ann. 673. A arise out of it ; in other words, they must constitutional provision, saving " to the pronounce both on the commission of a defendant the right of appeal "in criminal certain fact, and on the reason which cases, does not, by implication, preclude makes such fact to be contrary to law." the legislature from giving to the prose- De Lolme on the Constitution of Eng- cution the same right, State v. Ta.lt, 22 land, c. 13. In January, 1735, Zenger, Iowa, 143. Compare People v. Webb, 38 the publisher of Zenger's Journal in New Cal. 467 ; State v. Lee, 10 R. I 494. York, was informed against for a libel on 3 People v. Comstock, 8 Wend. 649; the governor and other officers of the State v. Brown, 16 Conn. 54; State v. king in the province. He was defended Kanouse, 20 N. J. 115; State v. Burns, by Hamilton, a Quaker lawyer from 8 Tex. 118; State v. Taylor,! Hawks, Philadelphia, who relied upon the truth 462. ns a defence. The court excluded evi- CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 463 facts. 1 How great a change is made in the common law by these provisions it is difficult to say, because the rule of the common law was not very clear upon the authorities ; but for that very reason, and because the law of libel was sometimes administered with great harshness, it was certainly proper and highly desirable that a definite and liberal rule should be thus established. 2 In all other cases the jury have the clear legal right to return a simple verdict of guilty or not guilty, and in so doing they necessarily decide such questions of law as well as of fact as are involved in the general question of guilt. If their view conduce to an acquittal, their verdict to that effect can. neither be reviewed 1 See Constitutions of Alabama, Con- necticut, California, Delaware, Georgia, Kentucky, Maine, Michigan, Missouri, Nebraska, New York, Pennsylvania, South Carolina, Tennessee, and Texas. See post, p. 696, note. That of Maryland makes the jury judges of the law in all criminal cases; and the same rule is established by constitution or statute in some other States. In Holder v. State, 5 Ga. 444, the following view was taken of such a statute : " Our penal code de- clares, ' On every trial of a crime or of- fence contained in this code, or for any crime or offence, the jury shall be judges of the law and the fact, and shall in every case give a general verdict of guilty or not guilty, and on the acquittal of any defendant or prisoner, no new trial shall on any account be granted by the court.' Juries were, at common law, in some sense judges of the law. Having the right of rendering a general verdict, that right involved a judgment on the law as well as the facts, yet not such a judg- ment as necessarily to control the court. The early commentators on the common law, notwithstanding they concede this right, yet hold that it is the duty of the jury to receive the law from the court. Thus Blackstone equivocally writes : ' And such public or open verdict may be either general, guilty or not. guilty, or spe- cial, setting forth all the circumstances of the case, and praying the judgment of the court whether, for instance, on the facts stated, it be murder or manslaughter, or no crime at all. This is where they doubt the matter of the law, and therefore choose to leave it to the determination of the court, though they have an unquestion- able right of determining upon all the circumstances, and of finding a general verdict, if they think proper so to hazard a breach of their oaths,' &c. 4 Bl. Com. 361; Co. Lit. 228 a; 2 Hale, P. C. 313. Our legislature have left no doubt about this matter. The juries in Georgia can find no special verdict at law. They are declared to be judges of the law and the facts, and are required in every case to give a general verdict of guilty or not guilty ; so jealous, and rightfully jealous, were our ancestors of the influence of the State upon the trial of a citizen charged with crime. We are not called upon in this case to determine the relative strength of the judgment of the court and the jury, upon the law in criminal cases, and shall express no opinion thereon. We only say it is the right and duty of the court to declare the law in criminal cases as well as civil, and that it is at the same time the right of the jury to judge of the law as well as of the facts in criminal cases. I would not be understood as holding that it is not the province of the court to give the law of the case distinctly in charge to the jury; it is unquestion- ably its privilege and its duty to instruct them as to what the law is. and officially to direct their finding as to the law, yet at the same time in such way as not to limit the range of their judgment." See also McGuffie v. State, 17 Ga. 497; Clem v. State, 31 Ind. 480 ; and/>os(,p.652, et seq. 2 For a condensed history of the strug- gle in England on this subject, see May's Constitutional History, c. 9. See also Lord Campbell's Lives of the Chancellors, c. 178; Introduction to Speeches of Lord Erskine, edited by James L. High ; For- syth's Trial by Jury, c. 12. 464 CONSTITUTIONAL LIMITATIONS. [CH. X. nor set aside. In such a case, therefore, it appears that they pass upon the law as well as the facts, and that their finding is con- clusive. If, on the other hand, their view leads them to a verdict of guilty, and it is the opinion of the court that such verdict is against law, the verdict will be set aside and a new trial granted. In such a case, although they have judged of the law, the court sets aside their conclusion as improper and unwarranted. But it is clear that the jury are no more the judges of the law when they acquit than when they condemn, and the different result in the two cases comes from the merciful maxim of the common law, which will not suffer an accused party to be twice put in jeopardy for the same cause, however erroneous may have been the first acquittal. In theory, therefore, the rule of law would seem to be, that it is the duty of the jury to receive and follow the law as delivered to them by the court ; and such is the clear weight of authority. 1 There are, however, opposing decisions, 2 and it is evident that * United States v. Battiste, 2 Sum. 240; Stettinus v. United States, 6 Craneh, C. C. 673 ; United States v. Morris, 1 Curt. 63; United States v. Riley, 6 Blatch. 204; United States v. Greathouse, 4 Sawyer, 459; Montgomery v. State, 11 Ohio, 427 ; Bobbins v. State, 8 Ohio St. 131 ; Commonwealth v. Porter, 10 Met. 2o3 ; Commonwealth v, Anthes, 5 Gray, 185; Commonwealth v. Bock, 10 Gray, 4 ; State v. Peace, 1 Jones, 251 ; Handy v. State, 7 Mo. 607 ; Nels v. State, 2 Tex. 280; State v. Tally, 23 La. Ann. 677; State v. Tisdale, 41 La. Ann. 338, 6 So. 579; People v. Pine, 2 Barb. 566; Car- penter v. People, 8 Barb. 603 ; People v. Finnigan, 1 Park C. R. 147 ; Safford v. People, 1 Park C. R. 474; McMath v. State, 55 Ga. 303 ; Hamilton v. People, 29 Mich. 173 ; McGowan v. State, 9 Yerg. 184; Pleasant v. State, 13 Ark. 360; Montee v. Commonwealth, 3 J. J. Marsh. 132 ; Commonwealth v. Van Tuyl, 1 Met. (Ky.) 1; Pierce v. State, 13 N. H. 536; People v. Stewart, 7 Cat. 40; Mullinex v. People, 76 111. 211; Batre v. State, 18 Ala. 119; reviewing previous cases in the same State. "As the jury have the right, and if required by the prisoner are bound to return a general verdict of guilty or not guilty, they must neces- sarily, in the discharge of this duty, de- cide such questions of law as well as of fact as are involved in the general ques- tion, and there is no mode in which their opinions upon questions of law can be reviewed by this court or by any other tribunal. But this does not diminish the obligation resting upon the court to ex- plain the law. The instructions of the court in matters of law may safely guide the consciences of the jury, unless they know them to be wrong ; and when the jury undertake to decide the law (as they undoubtedly have the power to do) in op- position to the advice of the court, they assume a high responsibility, and should be very careful to see clearly that they are right." Commonwealth v. Knapp, 10 Pick. 496 ; cited with approval in Mc- Gowan v. State, 9 Yerg. 195, and Dale v. State, 10 Yerg. 655. And see Kane v. Commonwealth, 89 Pa. St. 522, 33 Am. Rep. 787 ; Habersham v. State, 56 Ga. 61, 2 Am. Cr. Rep. 45; Hunt v. State, 81 Ga. 140, 7 S. E. 142. Even where the jury are judges of the law and facts and instructions are only advisory, error in the charge is prejudicial. State v. Rice, 66 Iowa, 431 ; Hudelson v. State, 94 Ind. 426. Even if there is no dispute, a court cannot direct a conviction. United States v. Taylor, 3 McCrary, 500. 2 See especially State v. Croteau, 23 Vt. 14, where will be found a very full and carefully considered opinion, holding that at the common law the jury are the judges of the law in criminal cases. See also State v. Wilkinson, 2 Vt. 280; Doss v. Commonwealth, 1 Gratt. 657; State r. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 465 the judicial prerogative to direct conclusively upon the law can- not be carried very far or insisted upon with much pertinacity, when the jury have such complete power to disregard it, without the action degenerating into something like mere scolding. Upon this subject the remarks of Mr. Justice Baldwin, of the Supreme Court of the United States, to a jury assisting him in the trial of a criminal charge, and which are given in the note, seem pecul- iarly dignified and appropriate, and at the same time to embrace about all that can properly be said to a jury on this subject. 1 Jones, 5 Ala. 666 ; State v. Snow, 18 Me. 346; State v. Allen, 1 McCord, 625, 10 Am. Dec. 687 ; Armstrong v. State, 4 Blackf. 247 ; Warren v. State, 4 Blackf. 150 ; Stocking v. State, 7 Ind. 326 ; Lynch v. State, 9 Ind. 541 ; Nelson v. State, 2 Swan, 482; People v. Thayers, 1 Park. C. R. 596 ; People v. Videto, 1 Park. C. R. 603. The subject was largely dis- cussed in People v. Croswell, 3 Johns. Cas. 337. In Virginia, it is said that unless instructions are asked, a court should in general not instruct the jury upon the law ; Dejarnette v. Com., 75 Va. 867, and in Maryland it seems to be optional witli the court to instruct them. Broil v. State, 45 Md. 356. 1 " In repeating to you what was said on a former occasion to another jury, that you have the power to decide on the law as well as the facts of this case, and are not bound to find according to our opinion of the law, we feel ourselves con- strained to make some explanations not then deemed necessary, but now called for from the course of the defence. You may find a general verdict of guilty or not guilty, as you think proper, or you may find the facts specially, and leave the guilt or innocence of the prisoner to the judgment of the court. If your ver- dict acquit the prisoner, we cannot grant a new trial, however much we may differ with you as to the law which governs the case; and in this respect a jury are the judges of the law, if they choose to be- come so. Their judgment is final, not because they settle the law, but because they think it not applicable, or do not choose to apply it to the case. "But if a jury find a prisoner guilty against the opinion of the court on the law of the case, a new trial will be granted. No court will pronounce a judgment on a prisoner against what they believe to be the law. On an acquittal there is no judgment ; and the court do not act, and cannot judge, there remaining nothing to act upon. " This, then, you will understand to be what is meant by your power to decide on the law ; but you will still bear in mind that it is a very old, sound, and valuable maxim in law, that the court answers to questions of law, and the jury to facts. Every day's experience evinces the wisdom of this rule." United States f. Wilson, Baldw. 108. We quote also from an Alabama case : " When the power of juries to find a general verdict, and consequently their right to determine without appeal both law and fact, is ad- mitted, the abstract question whether it is or is not their duty to receive the law from the court becomes rather a question of casuistry or conscience than one of law; nor can we think that anything is gained in the administration of criminal justice by urging the jury to disregard the opinion of the court upon the law of the case. It must, we think, be admitted, that the judge is better qualified to ex- pound the law, from his previous train- ing, than the jury ; and in practice, unless he manifests a wanton disregard of the rights of the prisoner, a circumstance which rarely happens in this age of the world and in this country, his opinion of the law will be received by the jury as an authoritative exposition, from their conviction of his superior knowledge of the subject. The right of the jury is doubtless one of inestimable value, es- pecially in those cases where it may be supposed that the government has an in- terest in the conviction of the criminal; but in this country, where the govern- ment in all its branches, executive, legis- lative, and judicial, is created by the people, and is in fact their servant, we 30 466 CONSTITUTIONAL LIMITATIONS. [CH. X. One thing more is essential to a proper protection of accused parties, and that is, that one shall not be subject to be twice put in jeopardy upon the same charge. One trial and verdict must, as a general rule, protect him against any subsequent accusation of the same offence, 1 whether the verdict be for or against him, are unable to perceive why the jury should be invited or urged to exercise this right contrary to their own convic- tions of their capacity to do so, without danger of mistake. It appears to us that it is sufficient that it is admitted that it is their peculiar province to determine facts, intents, and purposes; that it is their right to find a general verdict, and conse- quently that they must determine the law; and whether in the exercise of this right they will distrust the court as ex- pounders of the law, or whether they will receive the law from the court, must be left to their own discretion under the sanction of the oath they have taken." State v. Jones, 5 Ala. 672. But as to this case, see Batre v. State, 18 Ala. 119. It cannot be denied that discredit is sometimes brought upon the administra- tion of justice by juries acquitting parties who are sufficiently shown to be guilty, and where, had the trial been by the court, a conviction would have been sure to follow. In such cases it must be sup- posed that the jury have been controlled by their prejudices or their sympathies. However that may be, it by no means follows that because the machinery of jury trial does not work satisfactorily in every case, we must therefore condemn and abolish the system, or, what is still worse, tolerate it, and 3 - et denounce it as being unworthy of public confidence. The remarks of Lord Erskine, the most distinguished jury lawyer known to Eng- lish history, may be quoted as peculiarly appropriate in this connection : " It is of the nature of everything that is great and useful, both in the animate and in- animate world, to be wild and irregular, and we must be content to take them with the alloys which belong to them, or live without them. . . . Liberty herself, the last and best gift of God to his crea- tures, must be taken just as she is. You might pare her down into bashful regu- larity, shape her into a perfect model of severe, scrupulous law ; but she would then be liberty no longer ; and you must be content to die under the lash of this inexorable justice which you have ex- changed for the banners of freedom." The province of the jury is sometimes invaded by instructions requiring them to adopt, as absolute conclusions of law, those deductions which they are at liberty to draw from a particular state of facts, if they regard them as reasonable : such as that a homicide must be presumed malicious, unless the defendant proves the contrary ; which is a rule contradictory of the results of common observation ; or that evidence of a previous good char- acter in the defendant ought to be dis- regarded, unless the other proof presents a doubtful case ; which would deprive an accused party of his chief protection in many cases of false accusations and con- spiracies. See People v. Garbutt, 17 Mich. 9; People v. Lamb, 2 Keyes, 860; State v. Henry, 5 Jones (N. C.), 66 ; Har- rington v. State, 19 Ohio St. 269; Silvus v. State, 22 Ohio St. 90 ; State v. Patter- son, 45 Vt. 308; Remsen v. People, 43 N. Y. 6 ; Kistler v. State, 64 Ind. 400- Upon the presumption of malice in homi- cide, the reader is referred to the Review of the Trial of Professor Webster, by Hon. Joel Parker, in the North American Review, No. 72, p. 178. See also, upon the functions of judge and jury respec- tively, the cases of Commonwealth v. Wood, 11 Gray, 86; Maher v. People, 10 Mich. 212 ; Commonwealth v. Billings, 97 Mass. 405; State v. Patterson, 63 N. C. 620; State v. Newton, 4 Nev. 410. QSee, upon the right of the jury to pass upon the law, note to State v. Whitmore in 42 Am. St. Rep. 290-295; 13 Am. Law Reg. 355, and 7 Crim. Law Mag. 652. No more scholarly contribution to the dis- cussion of this general subject of "Law and Fact in Jury Trials " can be found than in the late Professor Thayer's " Pre- liminary Evidence at the Common Law," c.5.: 1 By the same offence is not signified the same eo nomine, but the same crim- inal act or omission. Hershfield v. State, 11 Tex. App. '207; Wilson v. State, 24 Conn. 57; State v. Thornton, 37 Mo. 360; CH. X.] CONSTITUTIONAL PKOTECTIONS, ETC. 467 and whether the courts are satisfied with the verdict or not. We shall not attempt in this place to collect together the great number of judicial decisions bearing upon the question of legal jeopardy, and the exceptions to the general rule above stated ; for these the reader must be referred to the treatises on criminal law, where the subject will be found to be extensively treated. It will be sufficient for our present purpose to indicate very briefly some general principles. A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. 1 And a jury is Holt v. State, 38 Ga. 187 ; Commonwealth v. Hawkins, 11 Bush, 603; People v. 'Majors, 65 Cal. 138, 3 Pac. 597 ; People v. Stephens, 79 Cal. 428, 21 Pac. 856; State v. Colgate, 31 Kan. 611, 3 Pac. 346 ; State v. Mikesell, 70 Iowa, 176, 30 N. W. 474 ; Hurst v. State, 86 Ala. 604, 6 So. 120; Moore v. State, 71 Ala. 307. [[The same act may be an offence against two or more jurisdictions, and each may punish it. He Chapman, 166 U. S. 661, 17 Sup. Ct. Rep. 677 ; Crosslcy v. California, 168 U. S. 640, 18 Sup. Ct. Rep. 242; s. c , be- low, People v. Worden, 113 Cal. 569, 45 Pac. 844. Where accused is acquitted of the offence charged, he cannot thereafter be prosecuted for perjury in swearing that he did not commit the offence charged. Cooper v. Commonwealth, 106 Ky.909, 51 S. W. 789, 45 L. R. A. 216. That same act may involve two offences against the State, see Commonwealth v. Vaughn, 101 Ky. 603, 42 S. W. 117, 45 L. R. A. 858, and note thereto in L. R. A. Where putative father is liable to fine, no appeal can be allowed against successful defend- ant in a bastardy proceeding. State v. Ostwalt, 118 N. C. 1208, 24 S. E. 660, 32 L. R. A. 396. Statute giving State right of appeal upon questions of law in crim- inal cause is valid. State v. Lee, 65 Conn. 265, 30 Atl. 1110, 27 L. R. A. 498,48 Am. St. 202.] 1 Commonwealth v. Cook, 6 S. & R. 586; Stater. Norvell, 2 Yerg. 24; Wil- liams v. Commonwealth, 2 Gratt. 568 ; People v. McGowan, 17 Wend. 386; Mounts v. State, 14 Ohio, 295; Price v. State, 19 Ohio, 423; Wright . State,5Ind. 292 ; State v. Nelson, 26 Ind. 366 ; State v. Spier, 1 Dev. 491 ; State v. Ephraim, 2 Dev. & Bat. 162; Commonwealth v. Tuck, 20 Pick. 356; People v. Webb, 28 Cal. 467; People v. Cook, 10 Mich. 164 ; State v. Ned, 7 Port. 217 ; State v. Callendine, 8 Iowa, 288 ; [State v. Rook, 61 Kan. 382, 59 Pac. 653, 49 L. R. A. 186 ; State v. Richardson, 47 S. C. 166, 25 S. E. 220, 35 L. R. A. 238J If a defendant is arraigned before a justice who has jurisdiction, and pleads guilt}', and the prosecutor dismisses the case, he has been in jeopardy. Boswell v. State, 111 Ind. 47. It cannot be said, however, that a party is in legal jeopardy in a prosecu- tion brought about by his own procure- ment; and a former conviction or acquit- tal is consequently no bar to a second indictment, if the former trial was brought about by the procurement of the defend- ant, and the conviction or acquittal was the result of fraud or collusion on his part. Commonwealth v. Alderman, 4 Mass. 477 ; State v. Little, 1 N. H. 257 ; State v. Lowry, 1 Swan, 35; State v. Green, 16 Iowa, 239. See also State v. Reed, 26 Conn. 202 ; Bigham v. State, 59 Miss. 529 ; State v. Simpson, 28 Minn. 66, 9 N. W. 78; McFarland v. State, 68 Wis. 400, 32 N. W. 226. And if a jury is called and sworn, and then discharged for the reason that it is discovered the defendant has not been arraigned, this will not constitute a bar. United States v. Riley, 5 Blatch. 204. In State v. Gar- vey, 42 Conn. 232, it is held that a prose- cution nol. pressed after the jury is sworn is no bar to a new prosecution, " If the prisoner does not claim a verdict, but waives his right to insist upon it." See Hoffman v. State, 20 Md. 425. QSee notes to 21 L. ed. U. S. 872, 6 L. ed. U. S. 468 CONSTITUTIONAL LIMITATIONS. [CH. X. said to be thus charged when they have been impanelled and sworn. 1 The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be de- prived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continu- ance of the cause. 2 If, however, the court had no jurisdiction of the cause, 3 or if the indictment was so far defective that no valid judgment could be rendered upon it, 4 or if by any overruling necessity the jury are discharged without a verdict, 5 which might happen from the 165, 4 L. R. A. 543, and 1 L. R. A. 451. Indefinite suspension of sentence and dis- charge without recognizance after plea of guilty amounts to a complete loss of power over prisoner, and he cannot sub- sequently be taken and sentenced. Peo- ple v. Allen, 155 111. 61, 39 N. E. 568, 41 L. R. A. 473; but the court may after sentence suspend in whole or in part the execution thereof, and may at any time thereafter within the term in which such sentence was rendered revoke the suspen- sion of execution. Weber v. State, 58 Ohio St. 616, 61 N. E. 116, 41 L. R. A 472. See also People v. Monroe Co. Ct., 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856. Stat- ute giving complainant in criminal case for illegal fishing a right of appeal in case of acquittal is void. People v. Miner, 144 111. 308, 33 N. E. 40, 19 L. R. A. 342, and note.] 1 McFadden v. Commonwealth, 23 Pa. St. 12; Lee v. State, 26 Ark. 260, 7 Am. Rep. 611; O'Brian v. Commonwealth, 9 Bush, 333, 15 Am. Rep. 715. The jury must be of competent men. If, after the jury is sworn but before any evidence is taken, an incompetent juror is set aside, there has been no jeopardy. People v. Barker, 60 Mich. 277, 27 N. W. 539; State v. Pritchard, 16 Nev. 101. Com- pare Adams v. State, 99 Ind. 244; Whit- more v. State, 43 Ark. 271. 2 People v. Barrett, 2 Caines, 304 ; Commonwealth v. Tuck, 20 Pick. 305; Mounts v. State, 14 Ohio, 295; State v. Connor, 5 Cold. 311 ; State v. Callcndine, 8 Iowa, 288; Baker v. State, 12 Ohio St. 214; Grogan v. State, 44 Ala. 9; State v. Alman, 64 N. C. 364 ; Nolan v. State, 55 Ga. 521 ; Pizano v. State, 20 Tex. App. 139. It is otherwise in Vermont. State v. Champeau, 53 Vt. 313, 36 Am. Rep. 754. A judge cannot order discharge in order to try again upon another com- plaint. Com. v. Hart, 149 Mass. 7, 20 N. E. 310. QProof that a juror is sick must be given in open court in order to justify discharge of jury and retention of prisoner. Telephone message is insuffi-' cient. State v. Nelson, 19 R. I. 467, 34 Atl. 990, 33 L. R. A. 559, 61 Am. St. 780. See also Upchurch v. State, 36 Tex. Cr. 624, 38 S. W. 206, 44 L. R. A. 694. Where one in his defence to a prosecution for an assault with intent to murder offers to prove a former conviction of a battery for the same attack, held a good defence. People v. McDonald, Cal. , 69 Pac. 1006. But see Reg. v. Morris, 10 Cox C. C. 480, where a prosecution for an assault, afterward resulting in death, is held to be no bar of a prosecution for the felony.] 8 Commonwealth v. Goddard, 13 Mass. 455; People r. Tyler, 7 Mich. 161 ; Mon- tross v. State, 61 Miss. 429; State v. Shelly, 98 N. C. 673, 4 S. E. 530 ; Brown r. State, 79 Ga. 324, 4 S. E. 861. Acquittal by court-martial is no bar to a prosecution in the criminal courts. State v. Rankin, 4 Cold. 146; United States v. Cashiel, 1 Hughes, 552. 4 Gerard v. People, 4 111. 363; Pritch- ett v. State, 2 Sneed, 285; People i\ Cook, 10 Mich. 164; Mount v. Commonwealth, 2 Duv. 93; People v. McXealy, 17 Cal. 333; Kohlheimer v. State, 39 Miss. 548; State v. Kason, 20 La. Ann. 48; Black v. State, 36 Ga. 447 ; Commonwealth v. Bakeman, 105 Mass. 53; State v. Ward, 48 Ark. 36, 2 S. W. 191; People v. Clark, 67 Cal. 99, 7 Pac. 178; Garvey's Case, 7 Col. 384, 4 Pac. 758. 6 United States v. Perez, 9 Wheat. State v. Ephraim, 2 Dev. & Bat. Commonwealth v. Fells, 9 Leigh, 579 166 620; People v. Goodwin, 18 Johns. 205; CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 469 sickness or death of the judge holding the court, 1 or of a juror, 2 or the inability of the jury to agree upon a verdict after reason- able time for deliberation and effort ; 3 or if the term of the court as fixed by law comes to an end before the trial is finished ; 4 or the jury are discharged with the consent of the defendant ex- pressed or implied ; 5 or if, after verdict against the accused, it has been set aside on his motion (a) for a new trial, or on writ of error, 6 Commonwealth v. Bowden, 9 Mass. 194; Hoffman v. State, 20 'Md. 425 ; Price v. State, 36 Miss. 533. In State v. Wise- man, 68 N. C. 203, the officer in charge of the jury was found to have been convers- ing with them in a way calculated to in- fluence them unfavorably towards the evidence of the prosecution, and it was held that this was such a case of neces- sity as authorized the judge to permit a juror to be withdrawn, and that it did not operate as an acquittal. See also State v. Washington, 89 N. C. 635. If a nolle prosaqui to an indictment is entered after the jury is sworn, because it is found that the person alleged to have been murdered is misnamed, this is no bar to a new in- dictment which shall give the name cor- rectly. Taylor v. State, 35 Tex. 97. 1 Nugent v. State, 4 Stew. & Port. 72. 2 Hector v. State, 2 Mo. 166 ; State v. Curtis, 5 Humph. 601 ; Mahala v. State, 10 Yerg. 532 ; Commonwealth v. Fells, 9 Leigh, 613; Doles v. State, 97 Ind. 555; State v. Emery, 59 Vt. 84, 7 Atl. 129. Or from the fact just then brought to ihe judge's notice that one of the jurors had sat upon the grand jury that returned the indictment. Thompson v. United States, 155 U. S. 271, 15 Sup. Ct. Rep. 73. Or was otherwise incompetent. Simmons v. United States, 142 U. S. 148, 12 Sup. Ct. Rep. 171.] 8 People v. Goodwin, 18 Johns. 187; Commonwealth v. Olds, 5 Lit. 140; Dob- bins v. State, 14 Ohio St. 493; Miller v. State, 8 Ind. 325; State v. Walker, 26 Ind. 346 ; Commonwealth v. Fells, 9 Leigh, 613; Winsor v. The Queen, L. R. 1 Q. B. 289; State v. Prince, 63 N. C. 529; Moseley v. State, 33 Tex. 671 ; Les- ter v. State, 33 Ga. 329; Ex parte. Mc- Laughlin, 41 Cal. 211, 10 Am. Rep. 272 ; People v. Harding, 53 Mich. 481, 18 N. W. 555, 19 N. W. 155; Conklin v. State, 25 Neb. 784, 41 N. W. 788; Powell v. State, 17 Tex. App. 345; State v. Sut- fin, 2*2 W. Va. 771. Upon discharging jury without a verdict, see notes to 21 L. ed. U. S. 872, and 6 L. ed. U. S. 165. That jury may be discharged when un- able to agree, and prisoner may then be retried, see State v. Hager, 61 Kan. 504, 59 Pac. 1080, 48 L. R. A. 254 ; Re Allison, 13 Col. 525, 22 Pac. 820, 10 L. R. A. 790, 16 Am. St. 224. See also United States v. Perez, 9 Wheaton, 579. The opposite conclusion is reached by the Supreme Court of Pennsylvania in Com. v. Fitz- patrick, 121 Pa. St. 109, 15 Atl. 466, 6 Am. St. 757; Dreyer v. Illinois, U. S. , 23 Sup. Ct. Rep. 28.] 4 State v. Brooks, 3 Humph. 70 ; State r. Battle, 7 Ala. 259; Mahala v. State, 10 Yerg. 632; State v. Spier, 1 Dev. 491; Wright r. State, 5 Ind. 290. See Whitten v. State, 61 Miss. 717. 6 State v. Slack, 6 Ala. 676 ; Elijah v. State, 1 Humph. 103 ; Commonwealth v. Stowell, 9 Met. 572 ; People v. Curtis, 76 Cal. 67, 17 Pac. 941 ; People v. White, 68 Mich. 648, 37 N. W. 34; State ;.-. Parker, 66 Iowa, 586, 24 N. W. 225. As to the effect of jury's separation by defendant's consent, see State v. Ward, 48 Ark. 36, 2 S. W. 191; Hilands v. Com., Ill Pa. St. 1, 2 Atl. 70. 6 Kendall v. State, 65 Ala. 492 ; State v. Blaisdell, 59 N. H. 328; Gannon v. People, 127 111. 507, 21 N. E. 525; State r. Brecht, 41 Minn. 50, 42 N. W. 602; People v. Hardisson, 61 Cal. 378. See Com. v. Downing, 150 Mass. 197, 22 N. E. 912. And it seems, if the verdict is so defective that no judgment can be rendered upon it, it may be set aside even against the defendant's objection, and a new trial had. State v. Redman, 17 Iowa, 329. (a) See Murphy v. Massachusetts, 177 U. S. 155, 20 Sup. Ct. Rep. 639, aff. 174 Mass. 369, 54 N. E. 860. 470 CONSTITUTIONAL LIMITATIONS. [CH. X. or the judgment thereon been arrested, 1 in any of these cases the accused may again he put upon trial upon the same facts before charged against him, and the proceedings had will consti- tute no protection. But where the legal bar has once attached, (a) the government cannot avoid it by varying the form of the charge in a new accusation : if the first indictment or information were such that the accused might have been convicted under it on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached on the first must constitute a protection against a trial on the second. 2 And if a prisoner is acquitted on some of the counts in an indictment, and convicted on others, and a new trial is obtained on his motion, he can be put upon trial a second time on those counts only on which he was before convicted, and is forever discharged from the others. 3 1 Casborus v. People, 13 Johns. 351 ; State v. Clark, 69 Iowa, 196, 28 N. W. 537. But where the indictment was good, and the judgment was erroneously arrested, the verdict was held to be a bar. State v. Norvell, 2 Yerg. 24. See People v. Webb, 28 Cal. 467. So if the error was in the judgment and not in the prior pro- ceedings, if the judgment is reversed, the prisoner must be discharged. See post, p. 473. But it is competent for the legis- lature to provide that on reversing the erroneous judgment in such case, the court, if the proper proceedings are regu- lar, shall remand the case for the proper sentence. McKee v. People, 32 N. Y. 239. QUpon correction of sentence and re-sen- tence, see note to 36 L. ed. U. S. 969.] It is also competent, by statute, in the absence of express constitutional prohibi- tion, to allow an appeal or writ of error to the prosecution, in criminal cases. See cases, p. 462, note 2. 2 State v. Cooper, 13 N. J. 360 ; Com- monwealth v. Roby, 12 Pick. 504 ; Peo- ple v. McGowan, 17 Wend. 386 ; Price v. State, 19 Ohio, 423 ; Leslie v. State, 18 Ohio St. 395 ; State v. Benham, 7 Conn. 414. See Mitchell v. State ; 42 Ohio St. 383 ; Williams v. Com., 78 Ky. 93 ; Sims v. State, 63 Miss. 33, 5 So. 525. Where judge is authorized to discharge jury when a juror becomes sick, such dis- charge must be in open court and in presence of prisoner ; else he will be al- lowed to plead former jeopardy. Up- church v. State, 36 Tex. Cr. 624, 38 S. W. 206, 44 L. R. A. 694; State v. Nelson, 19 R. I. 467, 34 Atl. 990, 33 L. R. A. 559 ; and upon former jeopardy by reason of dis- charge of jury in prisoner's absence, see note to this case in L. R. A. Where in- junction may issue to prevent a pro- hibited act, punishment for contempt in disobey ing the injunction will not prevent a prosecution for the crime. State r. Roby, 142 Ind. 168, 41 N. E. 145, 33 L. R. A. 213, 51 Am. St. 174. The fact that acquittal was secured by bribery of prosecuting attorney does not invalidate plea of former jeopardy. Shideler v. State, 129 Ind. 523, 28 N. E. 537, 29 N. E. 36, 16 L. R. A. 225, 28 Am. St. 206.] 3 Campbell v. State, 9 Yerg. 333 ; State v. Kettle, 2 Tyler, 475 ; Morris v. State, 8 S. & M. 762; Esmon v. State, 1 Swan, 14 ; Guenther v. People, 24 N. Y. 100 ; State r. Kattleman, 35 Mo. 105 ; State v. Ross, 29 Mo. 39 ; State v. Martin, 30 Wis. 216, 11 Am. Rep. 567; United States v. Davenport, Deady, 264, 1 Green, Cr. R. 429; Stuart v. Commonwealth, 28 Gratt. 950 ; Johnson v. State, 29 Ark. 31 ; Barnett v. People, 54 111. 331 ; contra, State v. Behimer, 20 Ohio St. 572. A nolle pro- sequi on one count of an indictment after a jury is called and sworn, is a bar to a new indictment for the offence charged therein. Baker v. State, 12 Ohio St. 214; Murphy v. State, 25 Neb. 807, 41 N. W. (a) FJAs to when jeopardy attaches, see notes to 4 L. R. A. 543, and 1 L. R. A. 451 ; also to l L. ed. U. S. 872, and to 6 L. ed. U. S. 165.] CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 471 Excessive Fines and Cruel and Unusual Punishments. It is also a constitutional requirement that excessive bail shall not be required, nor cruel and unusual punishments inflicted. Within such bounds as may be prescribed by law, the question what fine shall be imposed is one addressed to the discretion of the court. But it is a discretion to be judicially exercised ; and there may be cases in which a punishment, though not beyond any limit fixed by statute, is nevertheless so clearly excessive as to be erroneous in law. 1 A fine should have some reference to the party's ability to pay it. By Magna Charta a freeman was not to be amerced for a small fault, but according to the degree of the fault, and for a great crime in proportion to the heinous- ness of it, saving to him his contenement ; and after the same man- ner a merchant, saving to him his merchandise. And a villein was to be amerced after the same manner, saving to him his wain- age. The merciful spirit of these provisions addresses itself to the criminal courts of the American States through the provisions of their constitutions. 792. See Com. v. Dunster, 145 Mass. 101, 13 N. E. 350. [On the subject of double jeopardy, see 50 Cent. L. Jour. 143.] 1 The subject of cruel and unusual punishments was somewhat considered in Barker r. People, 3 Cow. 686, where the opinion was expressed by Chancellor Sanford that a forfeiture of fundamental right e. g. the right to jury trial could not be imposed as a punishment, but that a forfeiture of the right to hold office might be. But such a forfeiture could not be imposed without giving a right to trial in the usual mode. Com- monwealth r. Jones, 10 Bush, 725. In Done v. People, 5 Park. 364, the cruel punishments of colonial times, such as burning alive and breaking on the wheel, were enumerated by W. W. Campbell, J., who was of opinion that they must be regarded as "cruel" if not "unusual," and therefore as being now forbidden. And where the criminal is convicted of many offences, he cannot complain if the punishments therefor are cumulated, provided the punishment for a single of- fence is not excessive, although the aggre- gate punishments may amount to im- prisonment for a term much greater than his natural life. O'Neil v. Vermont, 144 U. S. 323, 12 Sup. Ct. Rep. 693 ; but see the vigorous dissenting opinion of Mr. Justice Field in this case, and also the dissenting opinion of Harlan and Brewer, JJ. And see also State v. Whitaker, 48 La. Ann. 527, 19 So. 457, 35 L. R. A. 561, and note thereto in L. R. A., in which cases upon " cruel and unusual punishment" are collected. In Wliita- ker's case it was held, that a total im- prisonment for 2160 days or fine of $720 for 72 violations imposed within one hour ami forty minutes, though upon separate complaints, was within the pro- hibition of the constitution. Also Ex parte Keeler, 45 S. C. 537, 23 S. E. 865, 31 L. R. A. 678, 55 Am. St. 785. See also People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211, upon cumulative punishment, holding that punishment for several offences charged in separate counts of same indictment is unlawful : that punishment for one offence exhausts the power of the court under that indict- ment. Life imprisonment for construc- tive rape is not invalid, even though the legal age of consent is as high as sixteen years, and the female lacked only a few months of that age, and actually con- sented, and the male was a mere youth. Com. v. Murphy, 165 Mass. 66, 42 N. E. 504, 30 L. R. A. 734, 52 Am. St. 496.} 472 CONSTITUTIONAL LIMITATIONS. [OH. X. It has been decided by the Supreme Court of Connecticut that it was not competent in the punishment of a common-law offence to inflict fine and imprisonment without limitation. The prece- dent, it was said, cited by counsel contending for the opposite doctrine, of the punishment for a libel upon Lord Chancellor Bacon, was deprived of all force of authority by the circum- stances attending it ; the extravagance of the punishment being clearly referable to the temper of the times. *' The common law can never require a fine to the extent of the offender's goods and chattels, or sentence of imprisonment for life. The punishment is both uncertain and unnecessary. It is no more difficult to limit the imprisonment of an atrocious offender to an adequate number of years than to prescribe a limited punishment for minor offences. And when there exists no firmly established practice, and public necessity or convenience does not imperiously demand the principle contended for, it cannot be justified by the common law, as it wants the main ingredients on which that law is founded. Indefinite punishments are fraught with danger, and ought not to be admitted unless the written law should authorize them." ! It is certainly difficult to determine precisely what is meant by cruel and unusual punishments. Probably any punishment de- clared by statute for an offence which was punishable in the same way at the common law could not be regarded as cruel or unusual in the constitutional sense. And probably any new statutory offence may be punished to the extent and in the mode per- mitted by the common law for offences of similar nature. But those degrading punishments which in any State had become obso- lete before its existing constitution was adopted, we think may well be held forbidden by it as cruel and unusual. We may well doubt the right to establish the whipping- post and the pillory in States where they were never recognized as instruments of pun- 1 Per Hosmer, Ch. J., in State v. Dan- with power to prison managers to re- forth, 3 Conn. 112-116. Peters, J., in the lease upon parol and good hehavior after same case, pp. 122-124, collects a number satisfactory conduct during minimum of cases in which perpetual imprisonment period. Miller v. State, 149 Ind. 607, 49 was awarded at the common law, but, N. E. 894, 40 L. K. A. 109 ; People v. as his associates believed, unwarrantably. Bd. of Managers, &c., 148 111. 413, 36 Compare Blydenburg v. Miles, 39 Conn. N. E. 76, 23 L. R. A. 139 ; contra, People 484. [^Fixing by statute the minimum v. Curnmings, 88 Mich. 249, 50 N. W. 310, fine to be collected for a certain offence, 14 L. R. A. 285, and note. A statute pro- but not the maximum, is not the irnposi- viding for a more severe punishment for tion of an excessive fine. Southern Ex- a second conviction is not for that reason press Co. v. Com., 92 Va. 59, 22 S. E. invalid. Moore v. Missouri, 159 U- S. 809, 41 L. R. A. 436. Prisoner upon con- 673, 16 Sup. Ct. Rep. 179, aff. 121 Mo. viction may, where statute authorizes, 514, 26 S. W. 345.] be sentenced for the maximum period CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 473 ishment, or in States whose constitutions, revised since public opinion had banished them, have forbidden cruel and unusual punishment. In such States the public sentiment must be re- garded as having condemned them as " cruel," and any punish- ment which if ever employed at all, has become altogether obsolete, must certainly be looked upon as "unusual." 1 A defendant, however, in any case is entitled to have the pre- cise punishment meted out to him which the law provides, and no other. A different punishment cannot be substituted on the ground of its being less in severity. Sentence to transportation for a capital offence would be void ; and as the error in such a case would be in the judgment itself, the prisoner would be en- titled to his discharge, and could not be tried again. 2 If, how- ever, the legal punishment consists of two distinct and severable 1 In New Mexico it lias been decided that flogging may be made the punish- ment for horse-stealing : Garcia v. Terri- tory, 1 New Mex 415 ; so for wife-beating. Foote v. State, 59 Md. 264. For the non- payment of fine for unlicensed liquor selling, street labor may be imposed. Ex parte Bedell, 20 Mo. App. 125. See further as to unusual punishments, Ex pnrte Swann, 96 Mo. 44, 9 S. W. 10 ; Peo- ple v. Haug, 68 Mich. 549, 37 N. W. 21. The- power in prison keepers to inflict corporal punishment for the misconduct of convicts cannot be delegated to con- tractors for convict labor or their man- agers. Cornell v. State, 6 Lea, 624. The keeper of a workhouse may not be author- ized to inflict such punishment at his dis- cretion. Smith v. State, 8 Lea, 744. A jailer may not chain up a prisoner for several hours by the neck so he cannot lie or sit. In re Birdsong, 39 Fed. Rep. 599. [^Punishment of death may be in- flicted by electric shock. Re Kernmler, 136 U. S. 436, 10 Sup. Ct. Rep. 930, aff. People v. Durston, 55 Hun, 64, 119 N. Y. 569, 24 N. E. 6, 16 Am. St. 859; Mc- Elvaine v. Brush, 142 U. S. 155, 12 Sup. Ct. Rep. 166, aff. 121 N. Y. 250, 24 N. E. 465, 125 N. Y. 596, 26 N. E. 929 ; Re Storti, 178 Mass. 549, 60 N. E. 210, 62 L. R. A. 620. Permitting the warden to fix the particular day of execution does not render statute void upon the theory that such permission tends to aggravate the punishment. Id. A sentence fixing a maximum and minimum term of im- prisonment, the prison board to determine when the prisoner shall be discharged within such limits, is not within the con- stitutional prohibition. Miller v. State, 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109. An act of Congress providing for the arrest, trial, and punishment of one as a " suspicious person " is invalid as providing a punishment without an of- fence, which is cruel and unusual. Stout- enburgh r. Frazier, 16 D. C. App. 229, 48 L. R. A. 220. An act providing the death penalty for assault upon a railway train with intent to commit robbery or other felony, does not prescribe a cruel or un- usual punishment. Terr, of New Mexico v. Ketchum, 10 N. M. 718, 65 Pac. 169, 55 L. R. A. 90. A statute providing that any tramp who shall threaten to do in- jury to the person or property of any person shall be imprisoned in the State penitentiary, is not one providing for cruel or unusual punishments. State v. Hogan, 63 Ohio St. 202, 58 N. E. 672, 81 Am. St. 626-3 2 Bourne v. The King, 7 Ad. & El. 58; Lowenberg v. People, 27 N. Y. 336 ; Har- tung v. People, 26 N. Y. 167 ; Elliott v. People, 13 Mich. 365 ; Ex parte Page, 49 Mo. 291 ; Christian v. Commonwealth, 6 Met. 530; Ex parte Lange, 18 Wall. 163; McDonald v. State, 45 Md. 90. See also Whitebread v. The Queen, 7 Q. B. 682; Rex v. Fletcher, Russ. & Ry. 68. It is competent, however, to provide by stat- ute that on setting aside an erroneous sentence the court shall proceed to im- pose the sentence which the law required. Wilson v. People, 24 Mich. 410; McDon- ald v. State, 45 Md. 90. 474 CONSTITUTIONAL LIMITATIONS. [CH. X. things, as fine and imprisonment, the imposition of either is legal, and the defendant cannot be heard to complain that the other was not imposed also. 1 The Right to Counsel, (a) Perhaps the privilege most important to the person accused of crime, connected witli his trial, is that to be defended by counsel. From very early days a class of men who have made the laws of their country their special study, and who have been accepted for the confidence of the court in their learning and integrity, have been set apart as officers of the court, whose special duty it should be to render aid to the parties and the court 2 in the appli- cation of the law to legal controversies. These persons, before entering upon tbeir employment, were to take an oath of fidelity to the courts whose officers they were, and to their clients ; 3 and 1 See Kane v. People, 8 Wend. 203. 55 Am. St. 785, and People ex rel. Tweed When one has been convicted and sen- v. Liscomb, 60 N. Y. 559, 19 Am. Rep. tenced to confinement, it is not cotnpe- 21 1]; so increased punishment for second tent, after the period of his sentence has offence may be imposed. Kelly v. Peo- expired, to detain him longer in punish- pie, 115 111. 583, 4 N. E. 644 ; Chenowith ment for misbehavior in prison; and a v. Com., 11 Ky. L. 561, 12 S. W. 585. statute to that effect is unwarranted. 2 In Commonwealth v. Knapp, 9 Pick. Gross v. Rice, 71 Me. 241. The whole 498, the court denied the application of measure of punishment must be imposed the defendant that Mr. Rantoul should at once. The judgment cannot be split be assigned as his counsel, because, up. People v. Felker, 61 Mich. 110, 114, though admitted to the Common Pleas, 27 N. W. 869, 28 N. W. 83. Cumulative he was not yet an attorney of the Su- punishment may be imposed : Lillard v. preme Court, and that court, conse- State, 17 Tex. App. 114; State v. O'Neil, quently, had not the usual control over 58 Vt. 140, 2 Atl. 686, [^sustained in 144 him ; and, besides, counsel was to give U. S. 323, 12 Sup. Ct. Rep. 693, but with aid to the court as well as to the prisoner, very vigorous dissenting opinions from and therefore it was proper that a per- field, Harlan, and Brewer, JJ. But see son of more legal experience should be State v. Whitaker, 48 La. Ann. 627, 19 assigned. So. 457, 35 L. R. A. 561 ; Exparte Keeler, 8 " Every counter is chargeable by the 45 S. C. 537, 23 S. E. 865, 31 L. R. A. 678, oath that he shall do no wrong nor falsity, (a) [JThe right to compulsory process by which to secure witnesses in his favor is also an important right of the accused. Where the constitution secures this right, the witnesses thus compelled to appear do not thereby become entitled to claim their fees of the county. Henderson, Petitioner, in State v. Evans, 51 S. C. 331, 29 S. E. 5, 40 L. R. A. 426 ; Whittle /-. Saluda Co., 69 S. C. 554, 38 S. E. 168. Where important witnesses for the accused are absent from the court without his fault, a continuance must be granted until they can be brought in. Ryder v. State, 100 Ga. 528, 28 S. E. 246, 38 L. R. A. 721, 62 Am. St. 334. But after a reasonable time and opportunity have been allowed for this purpose, the prosecution may be allowed to proceed upon the admission of the prosecutor that the witnesses for the accused would, if present, testify as accused alleges they would. It is not necessary to admit that such testi- mony is true. Atkins v. Commonwealth. 98 Ky. 539, 33 S. W. 948, 32 L. R. A. 108; Hoyt v. People, 140 111. 588. 30 N E. 315, 16 L R. A. 239, and note ; State v. Gibbs, 10 Mont. 213, 25 Pac. 289, 10 L. R. A. 749, and note. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 475 it was their special duty to see that no wrong was done their clients by means of false or prejudiced witnesses, or through the perversion or misapplication of the law by the court. Strangely enough, however, the aid of this profession was denied in the very cases in which it was needed most, and it has cost a long struggle, continuing even into the present century, to rid the English law of one of its most horrible features. In civil causes and on the trial of charges of misdemeanor, the parties were entitled to the aid of counsel in eliciting the facts, and in presenting both the facts and the law to the court and jury ; but when the government charged a person with treason or fel- ony, he was denied this privilege. 1 Only such legal questions contrary to his knowledge, but shall plead for his client the best he can, according to his understanding." Mirror of Jus- tices, c. 2, 5. The oath in Pennsylvania, on the admission of an attorney to the bar, " to behave himself in the office of an attor- ney, according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client; that he will use no falsehood, nor delay any man's cause, for lucre or malice," is said, by Mr. Sharswood, to present a compre- hensive summary of his duties as a prac- titioner. Sharswood's Legal Ethics, p. 3. The advocate's oath, in Geneva, was as follows : " I solemnly swear, before Al- mighty God, to be faithful to the Repub- lic, and to the canton of Geneva; never to depart from the respect due to the tribunals and authorities; never to coun- sel or maintain a cause which does not appear to be just or equitable, unless it be the defence of an accused person ; never to employ, knowingly, for the purpose of maintaining the causes confided to me, any means contrary to truth, and never to seek to mislead the judges by any artifice or false statement of facts or law ; to abstain from all offensive personality, and to advance no fact contrary to the honor and reputation of the parties, if it be not indispensable to the cause with which I may be charged ; not to encourage either the commencement or continuance of a suit from any motives of passion or inter- est ; nor to reject, for any consideration personal to myself, the cause of the weak, the stranger, or the oppressed." In " The Lawyer's Oath, its Obligations, and some of the Duties springing out of them," by D. Bethune Duffield, Esq., a masterly analysis is given of this oath ; and he well says of it: "Here you have the creed of an upright and honorable lawyer. The clear, terse, and lofty language in which it is expressed needs no argument to elucidate its principles, no eloquence to enforce its obligations. It has in it the sacred savor of divine inspiration, and sounds almost like a restored reading from Sinai's original, but broken tablets." 1 When an ignorant person, unaccus- tomed to public assemblies, and perhaps feeble in body or in intellect, was. .put upon trial on a charge which, whether true or false, might speedily consign him to an ignominious death, with able coun- sel arrayed against him, and all the ma- chinery of the law ready to be employed in bringing forward the evidence of cir- cumstances indicating guilt, it is painful to contemplate the barbarity which could deny him professional aid. Especially when in most cases he would be impris- oned immediately on being apprehended, and would thereby be prevented from making even the feeble preparations which might otherwise have been within his power. A " trial " under such circum- stances would be only a judicial murder in very many cases. The spirit in which the old law was administered may be judged of from the case of Sir William Parkins, tried for high treason before Lord Holt and his associates in 1695, after the statute 7 Wm. III. c. 3, allowing coun- sel to prisoners indicated for treason, had been passed, but one day before it was to take effect. He prayed to be allowed counsel, and quoted the preamble to the statute that such allowance was just and reasonable. His prayer was denied ; Lord 476 CONSTITUTIONAL LIMITATIONS. [CH. X. as he could suggest was counsel allowed to argue for him ; and this was but a poor privilege to one who was himself unlearned in the law, and who, as he could not fail to perceive the mon- strous injustice of the whole proceeding, would be quite likely to accept any perversion of the law that might occur in the course of it as regular and proper, because quite in the spirit that denied him a defence. Only after the Revolution of 1688 was a full defence allowed on trials for treason, 1 and not until 1836 Holt declaring that he must administer the law as he found it, and could not an- ticipate the operation of an act of Parlia- ment, even by a single day. The accused was convicted and executed. See Lieber's Hermeneutics, c. 4, 15; Sedgwick on Stat. and Const. Law, 81. In proceedings by the Inquisition against suspected her- etics the aid of counsel was expressly prohibited. Lea's Superstition and Force, 377. 1 See an account of the final passage of this bill in Macaulay's " England," Vol. IV. c. 21. It is surprising that the effort to extend the same right to all per- sons accused of felony was so strenuously resisted afterwards, and that, too, not- withstanding the best lawyers in the realm admitted its importance and jus- tice. " I have myself," said Mr. Scarlett, " often seen persons I thought innocent convicted, and the guilty escape, for want of some acute and intelligent counsel to show the bearings of the different circum- stances on the conduct and situation of the prisoner." House of Commons De- bates, April 25, 1826. " It has lately been my lot," said Mr. Denman, on the same occasion, " to try two prisoners who were deaf and dumb, and who could only be made to understand what was passing by the signs of their friends. The cases were clear and simple ; but if they had been circumstantial cases, in what a situ- ation would the judge and jury be placed, when the prisoner could have no counsel to plead for him." The cases looked clear and simple to Mr. Denman ; but how could he know they would not have looked otherwise, had the coloring of the prose- cution been relieved by a counter-pres- entation for the defence? See Sydney Smith's article on Counsel for Prisoners, 45 Edinb. Rev. p. 74 ; Works, Vol. II. p. 353. The plausible objection to extend- ing the right was, that the judge would be counsel for the prisoner, a pure fal- lacy at the best, and, with some judges, a frightful mockery. Baron Garroio, in a charge to a grand jury, said : "It has been truly said that, in criminal cases, judges were counsel for the prisoners. So, un- doubtedly, they were, as far as they could be, to prevent undue prejudice, to guard against improper influence being excited against prisoners ; but it was impossible for them to go further than this, for they could not suggest the course of defence prisoners ought to pursue ; for judges only saw the deposition so short a time before the accused appeared at the bar of their country, that it was quite impossible for them to act fully in that capacity." If one would see how easily, and yet in what a shocking manner, a judge might pervert the law and the evidence, and act the part of both prosecutor and king's counsel, while assuming to be counsel for the prisoner, he need not go further back than the early trials in our own country, and he is referred for a specimen to the trials of Robert Tucker and others for piracy, before Chief Justice Trott at Charleston, S. C., in 1718, as reported in 6 State Trials (Ernlyn), 150 et seg. Es- pecially may he there see how the state- ment of prisoners in one case, to which no credit was given for their exculpation, was used as hearsay evidence to condemn a prisoner in another case. All these abuses would have been checked, perhaps altogether prevented, had the prisoners had able and fearless counsel. But with- out counsel for the defence, and under such a judge, the witnesses were not free to testify, the prisoners could not safely make even the most honest explanation, and the jury, when they retired, could only feel that returning a verdict in ac- cordance with the opinion of the judge was merely matter of form. Sydney Smith's lecture on " The judge that smites CH. X.] CONSTITUTIONAL PEOTECTIONS, ETC. 477 was the same privilege extended to persons accused of other felonies. 1 With us it is a universal principle of constitutional law, that the prisoner shall be allowed a defence by counsel. And generally it will be found that the humanity of the law has provided that, if the prisoner is unable to employ counsel, the court may designate some one to defend him who shall be paid by the government ; but when no such provision is made, it is a duty which counsel so designated owes to his profession, to the court engaged in the trial, and to the cause of humanity and justice, not to withhold his assistance nor spare his best exertions, in the defence of one who has the double misfortune to be stricken by poverty and ac- cused of crime. No one is at liberty to decline such an appoint- ment, 2 and few, it is to be hoped, would be disposed to do so. In guaranteeing to parties accused of crime the right to the aid of counsel, the Constitution secures it with all its accustomed incidents. Among these is that shield of protection which is thrown around the confidence the relation of counsel and client requires, and which does not permit the disclosure by the former, even in the courts of justice, of communications which may have contrary to the law " is worthy of being carefully pondered in this connection. " If ever a nation was happy, if ever a nation was visibly blessed by God, if ever a nation was honored abroad, and left at home under a government (which we can now conscientiously call a liberal govern- ment) to the full career of talent, industry, and vigor, we are at this moment that people, and this is our happy lot. First, the Gospel has done it, and then justice lias done it ; and he who thinks it his duty that this happy condition of exist- ence may remain, must guard the piety of these times, and he must watch over the spirit of justice which exists in these times. First, lie must take care that the altars of God are not polluted, that the Christian faith is retained in purity and in perfection ; and then, turning to human affairs, let him strive for spotless, incor- ruptible justice ; praising, honoring, and loving the just judge, and abhorring as the worst enemy of mankind him who is placed there to ' judge after the law, and who smites contrary to the law.'" 1 By statute 6 & 7 Wm. IV. c. 114; 4 Cooley's Bl. Com. 355 ; May's Const. Hist. c. 18. 2 Vice v. Hamilton County, 19 111. 18 ; Wayne Co. v. Waller, 90 Pa. St. 99, 85 Am. Rep. 636; House v. White, 5 Bax. 690. It has been held that, in the absence of express statutory provisions, counties are not obliged to compensate counsel assigned by the court to defend poor prisoners. Bacon v. Wayne County, 1 Mich. 461; Wayne Co. v. Waller, 90 Pa. St. 99, 35 Am. Rep. 636. But there are several cases to the contrary. Webb v. Baird, 6 Ind. 13; Hall v. Washington County, 2 Greene (Iowa), 473; Carpen- ter v. Dane County, 9 Wis. 277. But we think a court has a right to require the service, whether compensation is to be made or not ; and that counsel who should decline to perform it, for no other reason than that the law does not provide pecuniary compensation, is unworthy to hold his responsible office in the adminis- tration of justice. Said Chief Justice Hale in one case : " Although Serjeants have a monopoly of practice in the Com- mon Pleas, they have a right to practice, and do practice, at this bar ; and if we were to assign one of them as counsel, and he was to refuse to act, we should make bold to commit him to prison." Life of Chief Justice Hale, in Campbell's Lives of the Chief Justices, Vol. II. 478 CONSTITUTIONAL LIMITATIONS. [CH. X. . TS" been made to him by the latter, with a view to pending or antici- pated litigation. This is the client's privilege ; the counsel can- not waive it ; and the court would not permit the disclosure even if the client were not present to take the objection. 1 Having once engaged in a cause, the counsel is not afterwards at liberty to withdraw from it without the consent of his client and of the court ; and even though he may be impressed with a belief in his client's guilt, it will nevertheless be his duty to see that a conviction is not secured contrary to the law. 2 The worst 1 The history and reason of the rule which exempts counsel from disclosing professional communications are well stated in Whiting v. Barney, 30 N. Y. 330. And see 1 Phil. Ev., by Cowen, Hill, and Edwards, 130 et seq.; Earle v. Grant, 46 Vt. 113; Machette v. Wanless, 2 Col. 169. The privilege would not cover communications made, not with a view to professional assistance, but in order to induce the attorney to aid in a criminal act. People v. Blakely, 1 Park. Cr. R. 176; Bank of Utica v. Mersereau, 3 Barb. Ch. 398. And see the analogous case of Hewitt v. Prince, 21 Wend. 79. Nor communications before a crime with a view to being guided as to it. Orman v. State, 22 Tex. App. 604, 3 S. W. 468 ; People v. Van AUtine, 57 Mich. 69, 23 N. W. 594. But it is not confined to cases where litigation is begun or con- templated : Root v. Wright, 84 N. Y. 72; or to cases where a fee is received : An- drews v. Simms, 33 Ark. 771; Bacon v. Fisher, 80 N. Y. 394, 36 Am. Rep. 627 ; [Bruley r. Garvin, 105 Wis. 625, 81 N. W. 1038, 48 L. R. A. 839 ;] and is not waived by the party becoming a witness for him- self. Dettenhofer v. State, 34 Ohio St. 91, 32 Am. Rep. 362; Button v. State, 16 Tex. App. 490; but see Jones v. State, 65 Miss. 179, 3 So. 379. Communica- tions to a State's attorney with a view to a prosecution are privileged. Vogel v. Gruaz, 110 U. S. 311, 4 Sup. Ct. Rep. 12. Communications extraneous or imperti- nent to the subject-matter of the profes- sional consultation are not privileged. Dixon v. Parmelee, 2 Vt. 185. See Bran- don v. Cowing, 7 Rich. 459. Or commu- nications publicly made in the presence of others. Hartford F. Ins. Co. v. Rey- nolds, 36 Mich. 502. See Perkins v. Grey, 55 Miss. 153; Moffatt v. Hardin, 22 S. C. 9; [Kramer v. Kister, 187 Pa. 227, 40 Atl. 1008, 44 L. R. A. 432.] Or to the communications made to or by the attorney when acting for both parties. Hanlon v. Doherty, 109 Ind. 37, 9 N. E. 782; Cady v. Walker, 62 Mich. 157, 28 N. W. 805; Goodwin, &c. Co.'s Appeal, 117 Pa. St. 514, 12 Atl. 736. Or to an attorney if he acts as a mere scrivener. Smith v. Long, 106 111. 485; Todd v. Mun- son, 53 Conn. 679, 4 Atl. 99. Or facts within the personal knowledge of counsel, such as the dating of a bond. Rundle v. Foster, 3 Tenn. Ch. 658. The privilege extends to communications by other means than words : State v. Dawson, 90 Mo. 149, 1 S. W. 827 ; and to communi- cations to a legal adviser, who is not a licensed attorney. Benedict v. State, 44 Ohio St. 679, 11 N. E. 125; Ladd v. Rice, 57 N. H. 374. fJBut see 1 Greenleaf on Evidence, ed. 16, 239, and cases cited. See also People v. Barker, 60 Mich. 277, 27 N. W. 539, 1 Am. St. 501. It is waived by asking the attorney who drew a will to be a witness to it. Matter of Coleman, 111 N. Y. 220, 19 N. E. 71.] It has been intimated in New York that the statute making parties wit- nesses has done away with the rule which protects professional communications. Mitchell's Case, 12 Abb. Pr. R. 249; note to 1 Phil. Ev., by Cowen, Hill, and Edwards, 159 (marg. ). Supposing this to be so in civil cases, the protection would still be the same in the case of persons charged with crime, for such persons can- not be compelled to give evidence against themselves, so that the reason for pro- tecting professional confidence is the same as formerly. 2 If one would consider this duty and the limitations upon it fully, he should read the criticisms upon the conduct of Mr. Charles Phillips on the trial of Cour- voisier for the murder of Lord William CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 479 criminal is entitled to be judged by the laws ; and if his con- viction is secured by means of a perversion of the law, the injury to the cause of public justice will be more serious and lasting in its results than his being allowed to escape altogether. 1 But how persistent counsel may be in pressing for the acquittal of his client, and to what extent he may be justified in throwing his own personal character as a weight in the scale of justice, are questions of ethics rather than of law. No counsel is justifiable who defends even a just cause with the weapons of fraud and falsehood, and no man on the other hand can excuse himself for accepting the confidence of the accused, and then betraying it by a feeble and heartless defence. And in criminal cases we think the court may sometimes have a duty to perform in seeing that Russell. See Sharswood, Legal Ethics, 46; Littell, Living Age, Vol. XXIV. pp. 179, 230; Vol. XXV. pp. 289, 306; West. Rev. Vol. XXXV. p. 1. 1 There may be cases in which it will become the duty of counsel to interpose between the court and the accused, and fearlessly to brave all consequences per- sonal to himself, where it appears to him that in no other mode can the law be vin- dicated and justice done to his client; but these cases are so rare, that doubtless they will stand out in judicial history as notable exceptions to the ready obedience which the bar should yield to the author- ity of the court. The famous scene be- tween Mr. Justice Bu/ler and Mr. Erskine, on the trial of the Dean of St. Asaph for libel, 5 Campbell's Lives of the Chan- cellors, c. 158 ; Erskine's Speeches, by Jas. L. High, Vol. I. p. 242, will readily occur to the reader as one of the excep- tional cases. Lord Campbell says of Er- skine's conduct : " This noble stand for the independence of the bar would alone have entitled Erskine to the statue which the profession affectionately erected to his memory in Lincoln's Inn Hall. We are to admire the decency and propriety of his demeanor during the struggle, no less than its spirit, and the felicitous pre- cision with which he meted out the re- quisite and justifiable portion of defiance. His example has had a salutary effect in illustrating and establishing the relative duties of judge and advocate in Eng- land." And elsewhere, in speaking of Mr. Fox's Libel Act, he makes the following somewhat extravagant remark : " I have said, and I still think, that this great con- stitutional triumph is mainly to be as- cribed to Lord Camden, who had been fighting in the cause for half a century, and uttered his last words in the House of Lords in its support; but had he not received the invaluable assistance of Erskine, as counsel for the Dean of St. Asaph, the Star Chamber might have been re-established in this country." And Lord Brougham says of Erskine : " He was an undaunted man ; he was an undaunted advocate. To no court did he ever truckle, neither to the court of the King, neither to the court of the King's Judges. Their smiles and their frowns he disre- garded alike in the fearless discharge of his duty. He upheld the liberty of the peers against the one ; he defended the rights of the people against both com- bined to destroy them. If there be yet amongst us the power of freely discuss- ing the acts of our rulers ; if there be yet the privilege of meeting for the promo- tion of needful reforms ; if he who de- sires wholesome changes in our Constitu- tion be still recognized as a patriot, and not doomed to die the death of a traitor, let us acknowledge with gratitude that to this great man, under Heaven, we owe this felicity of the times." Sketches of Statesmen of the Time of George III. A similar instance of the independence of counsel is narrated of that eminent advo- cate, Mr. Samuel Dexter, in the reminis- censes of his life by "Sigma," published at Boston, 1857, p. 61. See Stor on Const. (4th ed.) 1064, note. 480 CONSTITUTIONAL LIMITATIONS. [CH. X. the prisoner suffers nothing from inattention or haste on the part of his counsel, or impatience on the part of the prosecuting officer or of the court itself. Time may be precious to the court ; but it is infinitely more so to him whose life or whose liberty may de- pend upon the careful and patient consideration of the evidence ; when the counsel for the defence is endeavoring to sift the truth from the falsehood, and to subject the whole to logical analysis, so as to show that how suspicious soever the facts may be, they are nevertheless consistent with innocence. Often indeed it must happen that the impression of the prisoner's guilt, which the judge and the jury unavoidably receive when the case is opened to them by the prosecuting officer, will, insensibly to themselves, color all the evidence in the case, so that only a sense of duty will induce a due attention to the summing up for the prisoner, which after all may prove unexpectedly convincing. Doubtless the privilege of counsel is sometimes abused in these cases ; we cannot think an advocate of high standing and character has a right to endeavor to rob the jury of their opinion by asseverating his own belief in the innocence of his client ; and cases may arise in which the court will feel compelled to impose some reason- able restraints upon the address to the jury; 1 but it is better in these cases to err on the side of liberality ; and restrictions which do not leave to counsel, who are apparently acting in good faith, such reasonable time and opportunity as they may deem necessary for presenting their client's case fully, may possibly in some cases be so far erroneous in law as to warrant setting aside a verdict of guilty. 2 Whether counsel are to address the jury on questions of law in criminal cases, generally, is a point which is still in dispute. If the jury in the particular case, by the constitution or statutes of the State, are judges of the law, it would seem that counsel should be allowed to address them fully upon it, 8 though the contrary seems to have been held in Maryland : 4 while in Massachusetts where it is expected that the jury will receive the law from the 1 Tims it has been held, that, even * Franklin v. State, 12 Md 236. What though the jury are the judges of the law was held there was, that counsel should in criminal cases, the court may refuse not argue the constitutionality of a stat- to allow counsel to read law-books to the ute to the jury; and that the Constitu- jury. Murphy v. State, 6 Ind. 490. And tion, in making the jury judges of the see Lynch v. State, 9 Ind. 541; Phoenix law, did not empower them to decide a Ins. Co. v. Allen, 11 Mich. 501. statute invalid. This ruling corresponds 2 In People v. Keenan, 13 Gal. 581, a to that of Judge Chase in United States verdict in a capital case was set aside on v. Callendar, Whart. State Trials, 688, this ground. 710. But see remarks of Perkins, J., in 8 Lynch v. State, 9 Ind. 541 ; Murphy Lynch v. State, 9 Ind. 542. v. State, 6 Ind. 490. CII. X.] CONSTITUTIONAL PROTECTIONS, ETC. 481 court, it is nevertheless held that counsel has a right to address them upon the law. 1 It is unquestionably more decorous and more respectful to the bench that argument upon the law should always be addressed to the court ; and such, we believe, is the general practice. The jury hear the argument, and they have a right to give it such weight as it seems to them properly to be entitled to. For misconduct in their practice, the members of the legal profession may be summarily dealt with by the courts, who will not fail, in all proper cases, to use their power to protect clients or the public, as well as to preserve the profession from the con- tamination and disgrace of a vicious associate. 2 A man of bad reputation may be expelled for that alone ; 3 and counsel who has 1 Commonwealth v. Porter, 10 Met. 263 ; Commonwealth v. Austin, 7 Gray, 61. 2 " As a class, attorneys are supposed to be, and in fact have always been, the vindicators of individual rights, and the fearless assertors of the principles of civil liberty, existing, where alone they can ex- ist, in a government, not of parties nor of men, but of laws. On the other hand, to declare them irresponsible to any power but public opinion and their consciences, would be incompatible with free govern- ment. Individuals of the class may, and sometimes do, forfeit their professional franchise by abusing it ; and a power to exact the forfeiture must be lodged some- where. Such a power is indispensable to protect the court, the administration of justice, and themselves. Abuses must necessarily creep in ; and, having a deep stake in the character of their profes- sion, they are vitally concerned in pre- venting it from being sullied by the misconduct of unworthy members of it. No class of the community is more depend- ent on its reputation for honor and integ- rity. It is indispensable to the purposes of its creation to assign it a high and honorable standing; but to put it above the judiciary, whose official tenure is good behavior and whose members are remov- able from office by the legislature, would render it intractable ; and it is therefore necessary to assign it but an equal share of independence. In the absence of spe- cific provision to the contrary, the power of removal is, from its nature, commen- surate with the power of appointment, and it is consequently the business of the 31 judges to deal with delinquent members of the bar, and withdraw their faculties when they are incorrigible." Gibson, Ch. J., In re Austin et al., 5 Rawle, 191, 203, 28 Am. Dec. 657. See State v. Kirke, 12 Fla. 278 ; Rice's Case, 18 B. Monr. 472 ; Walker . State, 4 W. Va. 749. An attorney may be disbarred for a personal attack upon the judge for his conduct as such ; but the attorney is en- titled to notice, and an opportunity to be heard in defence. Beene v. State, 22 Ark. 149. See In re Wallace, L. R. 1 P. C. 283 ; Ex parts Bradley, 7 Wall. 364 ; Withers v. State, 35 Ala. 252 ; Matter of Moore et al., 63 N. C. 397; Ex parte Biggs, 64 N. C 202 ; Bradley v. Fisher, 13 Wall. 335 ; Dickens's Case, 67 Pa. St. 169. 8 For example, one whose reputation for truth and veracity is such that his neighbors would not believe him when under oath. Matter of Mills, 1 Mich. 393. See In re Percy, 36 N. Y. 651 ; Peo- ple '. Ford, 54 III. 520. An attorney convicted and punished for perjury, and disbarred, was refused restoration, not- withstanding his subsequent behavior had been unexceptionable. Ex parte Garbett, 18 C. B. 403. See Matter of McCarthy, 42 Mich. 71, 51 N. W. 963; Ex parte Walls, 64 Ind. 461. An attorney dis- barred for collusion to procure false testi- mony. Matter of Gale, 75 N. Y. 526. See "Matter of Eldridge, 82 N. Y. 161, 37 Am. Rep. 658. For inducing a commis- sioner to admit to bail without right a convicted prisoner. State v. Burr, 19 Neb. 693, 28 N. W. 261. For antedating jurat and acknowledgment. Matter of 482 CONSTITUTIONAL LIMITATIONS. [CH. X. once taken part in litigation, and been the adviser or become entrusted with the secrets of one party, will not afterwards be suffered to engage for an opposing party, notwithstanding the original employment has ceased, and there is no imputation upon his motives. 1 And, on the other hand, the court will not allow counsel to be made the instrument of injustice, nor permit the client to exact of him services which are inconsistent with the obligation he owes to the court and to public justice, a higher and more sacred obligation than any which can rest upon him to gratify a client's whims, or to assist in his revenge. 2 Arctander, 26 Minn. 25, 1 N. W. 43. For embezzlement of client's papers, though lie has settled with client. In re Davies, 93 Pa. St. 116. For want of fidelity to client. Matter of Wool, 36 Mich. 299; Strout r. Proctor, 71 Me. 288 ; Slemmer v. Wright, 54 Iowa, 164, 6 N. W. 181 ; People v. Murphy, 119 111. 159, 6 N. E. 488. If he commits a crime in his pro- fessional capacity he may be disbarred, though he has not been convicted of the crime. State v. Winton, 11 Greg. 456, 6 Pac. 337. Even if it is not committed as an attorney. The rule is not inflexi- ble that he must be convicted before dis- barment. Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. Rep. 569; Delano's Case, 58 N. H. 5. See Ex parte Steinman, 95 Pa. St. 220. One may be disbarred for pub- lishing a libel on the court unless some constitutional or statutory provision for- bids. State v. McClaugherty, 33 W. Va. 250, 10 S. E. 407. 1 In Gaulden v. State, 11 Ga. 47, the late solicitor-general was not suffered to assist in the defence of a criminal case, because he had, in the course of his offi- cial duty, instituted the prosecution, though he was no longer connected with it. And see Wilson . State, 16 Ind. 392. A late city attorney for accepting a re- tainer not to appear for the city in cer- tain cases against it, appealed by him while such attorney, was suspended for six months from practice. In re Cowdery, 69 Cal. 32, 10 Pac. 47. 2 Upon this subject the remarks of Chief Justice Gibson in Rush v. Cava- naugh, 2 Pa. St. 189, are worthy of being repeated in this connection. The prosecutor in a criminal case had refused to pay the charges of the counsel em- ployed by him to prosecute in the place of the attorney -general, because the coun- sel, after a part of the evidence had been put in, had consented that the charge might be withdrawn. In considering whether this was sufficient reason for the refusal, the learned judge said: "The material question is, did the plaintiff vio- late his professional duty to his client in consenting to withdraw his charge, . . . instead of lending himself to the prose- cution of one whom he then and has since believed to be an innocent man 1 " It is a popular but gross mistake to suppose that a lawyer owes no fidelity to any one except his client, and that the latter is the keeper of his professional conscience. He is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the court as well as to the client ; and he violates it when he consciously presses for an unjust judgment; much more so when he presses for the conviction of an innocent man. But the prosecution was depending before an alderman, to whom, it may be said, the plaintiff was bound to no such fidelity. Still he was bound by those obligations which, without oaths, rest upon all men. The high and honor- able office of a counsel would be degraded to that of a mercenary, were he compel- lable to do the bidding of his client against the dictates of his conscience. The ori- gin of the name proves the client to be subordinate to his counsel as his patron. Besides, had the plaintiff succeeded in having Crean held to answer, it would have been his duty to abandon the prose- cution at the return of the recognizance. As the office of attorney-general is a pub- lic trust which involves, in the discharge of it, the exercise of an almost boundless discretion by an officer who stands as im- partial as a judge, it might be doubted whether counsel retained by a private CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 483 The Writ of Habeas Corpus. It still remains to mention one of the principal safeguards to personal liberty, and the means by which illegal restraints upon it are most speedily and effectually remedied. To understand this guaranty, and the instances in which the citizen is entitled to appeal to the law for its enforcement, we must first have a correct idea of what is understood by personal liberty in the law, and inquire what restraints, if any, must exist to its enjoyment. Sir William Blackstone says, personal liberty consists in the power of locomotion, of changing situation, or moving one's per- son to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. 1 It ap- pears, therefore, that this power of locomotion is not entirely unrestricted, but that by due course of law certain qualifications and limitations may be imposed upon it without infringing upon constitutional liberty. Indeed, in organized society, liberty is the creature of law, and every man will possess it in proportion as the laws, while imposing no unnecessary restraints, surround him and every other citizen with protections against the lawless acts of others. 2 prosecutor can be allowed to perform any part of his duty ; certainly not unless in subservience to his will and instruc- tions. With that restriction, usage has sanctioned the practice of employing pro- fessional assistants, to whom the attorney- general or his regular substitute may, if he please, confide the direction of the particular prosecution ; and it has been beneficial to do so where the prosecuting officer has been overmatched or over- borne by numbers. In that predicament the ends of justice may require him to accept assistance. But the professional assistant, like the regular deputy, exer- cises not his own discretion, but that of the attorney-general, whose locum tenens at sufferance he is ; and he consequently does so under the obligation of the offi- cial oath." And see Meister v. People, 31 Mich. 99. pn furtherance of the full discharge of the duties which an attorney owes to his client and to the court, he is granted certain privileges. One is to be exempt from the service of process while attending upon the court and in going to and returning from the same. Hoffman r. Judge of Circuit Court, 113 Mich. 109, 71 N. W. 480; 38 L. R. A. 663; 67 Am. St. 458. Similar exemption in regard to service of summons and other civil pro- cess extends to parties and witnesses. Mulhearn v. Press Publishing Co., 53 N. J. L. 153, 21 Atl. 186, 11 L. R. A. 101.] 1 1 Bl. Com. 134. Montesquieu says : " In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing what- ever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow-citizens would enjoy the same power." Spirit of the Laws, Book 11, c. 3. 2 " Liberty," says Mr. Webster, " is the creature of law, essentially different from that authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civil- ization, which the savage never under- stood, and never can understand. Lib- erty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have. It is an error to suppose that lib' 484 CONSTITUTIONAL LIMITATIONS. [CH. X. In examining the qualifications and restrictions which the law imposes upon personal liberty, we shall find them classed, accord- ing to their purpose, as, first, those of a public, and, second, those of a private nature. The first class are those which spring from the relative duties and obligations of the citizen to society and to his fellow-citizens. These may be arranged into sub-classes as follows : (1) Those imposed to prevent the commission of crime which is threatened ; (2) those in punishment of crime committed; (3) those in pun- ishment of contempts of court or legislative bodies, or to render their jurisdiction effectual ; (4) those necessary to enforce the duty citizens owe in defence of the State ; 1 (5) those which may become important to protect the community against the acts of those who, by reason of mental infirmity, are incapable of self- control. All these limitations are well recognized and generally understood, but a particular discussion of them does not belong to our subject. The second class are those which spring from the helpless or dependent condition of individuals in the various relations of life. 1. The husband, at the common law, is recognized as having legal custody of and power of control over the wife, with the right to direct as to her labor, and to insist upon its performance. The precise nature of the restraints which may be imposed by the husband upon the wife's actions, it is not easy, from the nature of the case, to point out and define ; but at most they can only be such gentle restraints upon her liberty as improper conduct on her part may appear to render necessary ; 2 and the general tendency of public sentiment, as well as of the modern decisions, has been in the direction of doing away with the arbitrary power which the husband was formerly supposed to possess, and of placing erty consists in a paucity of laws. If one 2 2 Kent, 181. See Cochran's Case, 8 wants few laws let him go to Turkey. Dowl. P. C. 630. The husband, however, The Turk enjoys that blessing. The is under no obligation to support his wife working of our complex system, full of except at his own home ; and it is only checks and restraints on legislative, ex- when he wrongfully sends her away, or ecutive, and judicial power, is favorable so conducts himself as to justify her in to liberty and justice. Those checks and leaving him, that he is bound to support restraints are so many safeguards set her elsewhere. Rumney r. Keyes, 7 N. H. around individual rights and interests. 670 ; Allen v. Aldrich, 29 N. H. 63 ; Shaw That man is free who is protected from v. Thompson, 16 Pick. 198 ; Clement v. injury." Works, Vol. II. p. 393. Mattison, 3 Rich. 93. In such a case his 1 In Judson v. Reardon, 16 Minn. 431, liability to supply her with necessaries a statute authorizing the members of a cannot be restricted by giving notice to municipal council to arrest and imprison particular persons not to trust her. Bol- without warrant persons refusing to obey ton v. Prentice, 2 Strange, 1214; Harris the orders of fire wardens at a fire was v. Morris, 4 Esp 41; Watkins v. De Ar- held unwarranted and void. mond, 89 Ind. 563. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 485 the two sexes in the marriage relation upon a footing nearer equality. It is believed that the right of the husband to chas- tise the wife, under any circumstances, would not be recognized in this country ; and such right of control as the law gives him would in any case be forfeited by such conduct towards the wife as was not warranted by the relation, and which should render it improper for her to live and cohabit with him, or by such conduct as, under the laws of the State, would entitle her to a divorce. 1 And he surrenders his right of control also, when he consents to her living apart under articles of separation. 2 2. The father of an infant, being obliged by law to support his child, has a corresponding right to control his actions, and to employ his services during the continuance of legal infancy. The child may be emancipated from this control before com- ing of age, either by the express assent of the father, or by being turned away from his father's house, and left to care for himself ; 3 though in neither case would the father be re- leased from an obligation which the law imposes upon him to prevent the child becoming a public charge, and which the State may enforce whenever necessary. The mother, during the father's life, has a power of control subordinate to his ; but on his death, 4 or conviction and sentence to imprisonment for felony, 5 she succeeds to the relative rights which the father possessed before, (a) 3. The guardian has a power of control over his ward, corre- sponding in the main to that which the father has over his child, though in some respects more restricted, while in others it is broader. The appointment of guardian, when made by the courts, 1 Hutcheson v. Peck, 5 Johns. 196; * Dedham v. Natick, 16 Mass. 135; Love v. Moynahan, 16 III. 277. Com'rs Harford Co. v. Hamilton, 60 Md. 2 Saunders v. Rodway, 16 Jar. 1005, 340. 13 Eng. L. & Eq. 463. & Bailey's Case, 6 Dowl. P. C. 311. 8 Whiting v. Earle, 3 Pick. 201 ; 15 If, however, there be a guardian ap- Am. Dec. 207 ; McCoy v. Huffman, 8 pointed for the child by the proper court, Cow. 841; State v. Barrett, 45 N. H. 15; his right to the custody of the child is Wolcott v. Rickey, 22 Iowa, 171; Fair- superior to that of the parent. Mac-ready hurst v. Lewis, 23 Ark. 435; Hardwick v. v. Wolcott, 33 Conn. 321. Pawlet, 36 Vt. 320. (a) Upon the principle that an ounce of prevention is worth a pound of cure, the State is asserting more and more control over children allowed by their parents to grow up in evil associations, and for the prevention of crime to which such courses so strongly tend recent statutes authorize the summary arrest and detention, in reform schools and like institutions, of youth of incorrigibly vicious habits. Such detention is not looked upon as imprisonment and punishment to the validity of which a jury trial is necessary. State v. Brown, 50 Minn. 353, 52 N. W. 935, 36 Am. St. 651, 16 L. R. A. 691, and note on commitment of minors to reformatories without conviction of crime. To the same effect, see Lee v. McClelland, 157 Ind. 84, 60 N. E. 692.] 486 CONSTITUTIONAL LIMITATIONS. [CH. X. is of local force only, being confined to the State in which it is made, and the guardian would have no authority to change the domicile of the ward to another State or country. But the ap- pointment commonly has reference to the possession of property by the ward, and over this property the guardian is given a power of control which is not possessed by the father, as such, over the property owned by his child. 1 4. The relation of master and apprentice is founded on a con- tract between the two, generally with the consent of the parent or party standing in loco parent-is to the latter, by which the master is to teach the apprentice some specified trade or means of living, and the apprentice, either wholly or in part in considera- tion of the instruction, is to perform services for the master while receiving it. This relation is also statutory and local, and the power to control the apprentice is assimilated to that of the parent by the statute law. 2 5. The power of the master to impose restraints upon the action of the servant he employs is of so limited a nature that practically it may be said to rest upon continuous voluntary assent. If the servant misconducts himself, or refuses to submit to proper control, the master may discharge him, but cannot resort to confinement or personal chastisement. 6. The relation of teacher and scholar places the former more nearly in the place of the parent than either of the two preceding relations places the master. While the pupil is under his care, he has a right to enforce obedience to his commands lawfully given in his capacity of teacher, even to the extent of bodily chastisement or confinement. And in deciding questions of discipline he acts judicially, and is not to be made liable, either civilly or criminally, unless he has acted with express malice, or been guilty of such excess in punishment that malice may fairly be implied. All presumptions favor the correctness and justice of his action. 3 7. Where parties bail another, in legal proceedings, they are regarded in law as his jailers, selected by himself, and with the 1 Cooley's Bl. Com. 462, and cases 8 State v. Pendergrass, 2 Dev. & Bat. cited. 365; Cooper v. McJunkin, 4 Ind. 290; 2 The relation is one founded on per- Commonwealth v. Randall, 4 Gray, 38; sonal trust and confidence, and the master Anderson v. State, 3 Head, 455; Lander cannot assign the articles of apprentice- v. Seaver, 32 Vt. 114; Morrow v. Wood, ship except by consent of the apprentice 35 Wis. 59; Patterson v. Nutter, 78 Me. and of his proper guardian. Haley v. 509, 7 Atl. 273; Sheehan v. Sturges, 53 Taylor, 3 Dana, 222 ; Nickerson v. How- Conn. 481, 2 Atl. 841 ; Vanvactor v. State, ard, 19 Johns. 113; Tucker v. Magee, 18 113 Ind. 276, 15 N. E. 341. Ala. 99. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 487 right to his legal custody for the purpose of seizing and delivering him up to the officers of the law at any time before the liability of the bail has become fixed by a forfeiture being judicially de- clared on his failure to comply with the condition of the bond. 1 This is a right which the bail may exercise in person or by agent, and without resort to judicial process. 2 8. The control of the creditor over the person of his debtor, through the process which the law gives for the enforcement of his demand, is now very nearly abolished, thanks to the humane provisions which have been made of late by statute or by constitu- tion. In cases of torts and where debts were fraudulently con- tracted, or where there is an attempt at a fraudulent disposition of property with intent to delay the creditor, or to deprive him of payment, the body of the debtor is allowed to be seized and confined ; but the reader must be referred to the constitution and statutes of his State for specific information on this subject, (a) These, then, are the legal restraints upon personal liberty. For any other restraint, or for any abuse of the legal rights which have been specified, the party restrained is entitled to immediate process from the courts, and to speedy relief. The right to personal liberty did not depend in England on any statute, but it was the birthright of every freeman. As slavery ceased it became universal, and the judges were bound to protect it by proper writ when infringed. But in those times when the power of Parliament was undefined and in dispute, and the judges held their offices only during the king's pleasure, it was almost a matter of course that rights should be violated, and that legal redress should be impracticable, however clear those rights might be. But in many cases it was not very clear what the legal i Harp v. Osgood, 2 Hill, 216; Com- 4 Conn. 166, 10 Am. Dec. 110; Nicolls monwealth v. Brickett, 8 Pick. 138; v. Ingersoll, 7 Johns. 145. After the re- Worthen v. Prescott, 60 Vt. 68, Jl Atl. cognizance is defaulted, surrender does 690. The principal may be followed, if not discharge the bail. State v. McGuire, necessary, out of the jurisdiction of the 16 R. I. 519, 17 Atl. 918. Nor will sur- court in which the bail was taken, and render discharge surety on bond for the arrested wherever found. Parker v. Bid- support of a deserted wife. Miller v. well, 3 Conn. 84. Even though it be out Com., 127 Pa. St. 1'22, 17 Atl. 864. of the State. Harp v. Osgood, supra. And 2 Parker v. Bidwell, 3 Conn. 8t; Nic- doors, if necessary, may be broken in oils v. Ingersoll, 7 Johns. 145 ; Worthen order to make the arrest. Read v. Case, v. Prescott, 60 Vt. 68, 11 Atl. 690. (a) [^Obligation arising under order of court to pay money for support of a husband, is not a debt. Livingston ?;. Los Angeles Sup. Ct., 117 Cal. 633, 49 Pac. 836, 38 L. R. A. 175. And a defendant may be imprisoned for refusing to pay alimony as ordered. Barclay v. Barclay, 184 111. 375, 56 N. E. 636, 51 L. R. A. 351 ; State v. Cook, 66 Ohio, 566, 64 N. E. 567. Person removing baggage from hotel or lodging-house when such baggage is subject to lien for unpaid bills may be punished by imprisonment. State v. Engle, 156 lud. 339, 58 N. E. 698.] 488 CONSTITUTIONAL LIMITATIONS. [CH. X. rights of parties were. The courts which proceeded according to the course of the common law, as well as the courts of chancery, had limits to their authority which could be understood, and a definite course of proceeding was marked out for them by statute or by custom ; and if they exceeded their jurisdiction and invaded the just liberty of the subject, the illegality of the process would generally appear in the proceedings. But there were two tribu- nals unknown to the common law, but exercising a most fearful authority, against whose abuses it was not easy for the most up- right and conscientious judge in all cases to afford relief. Theso were, 1. The Court of Star Chamber, which became fully recog- nized and established in the time of Henry VII., though originat- ing long before. Its jurisdiction extended to all sorts of offences, contempts of authority and disorders, the punishment of which was not supposed to be adequately provided for by the common law ; such as slanders of persons in authority, the propagation of seditious news, refusal to lend money to the king, disregard of executive proclamations, &c. It imposed fines without limit, and inflicted any punishment in the discretion of its judges short of death. Even jurors were punished in this court for verdicts in State trials not satisfactory to the authorities. Although the king's chancellor and judges were entitled to seats in this court, the actual exercise of its powers appears to have fallen into the hands of the king's privy council, which sat as a species of inqui- sition, and exercised almost any authority it saw fit to assume. 1 The court was abolished by the Long Parliament in 1641. 2. The Court of High Commission, established .in the time of Elizabeth, and which exercised a power in ecclesiastical matters correspond- ing to that which the Star Chamber assumed in other cases, and in an equally absolute and arbitrary manner. This court was also abolished in 1641, but was afterwards revived for a short time in the reign of James II. It is evident that while these tribunals existed there could be no effectual security to liberty. A brief reference to the remark- able struggle which took place during the reign of Charles I. will perhaps the better enable us to understand the importance of' those common-law protections to personal liberty to which we shall have occasion to refer, and also of those statutory securities which have since been added. 1 See Hallam, Constitutional History, set forth in Brodie's Constitutional His- c 1 and 8; Todd, Parliamentary Govern- tory of the "British Empire, to which the ment in England, Vol. II. c. 1. The rise reader is referred for more particular and extension of authority of this court, information, and its arbitrary character, are very fully CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 489 When the king attempted to rule without the Parliament, and in 1625 dissolved that body, and resorted to forced loans, the grant of monopolies, and the levy of ship moneys, as the means of replenishing a treasury that could only lawfully be supplied by taxes granted by the commons, the privy council was his conven- ient means of enforcing compliance with his will. Those who refused to contribute to the loans demanded were committed to prison. When they petitioned the Court of the King's Bench for their discharge, the warden of the Fleet made return to the writ of habeas corpus that they were detained by warrant of the privy council, informing him of no particular cause of imprisonment, but that they were committed by the special command of his majesty. Such a return presented for the decision of the court the question, " Is such a warrant, which does not specify the cause of detention, valid by the laws of England ? " The court held that it was, justifying their decision upon supposed prece- dents, although, as Mr. Hallam says, "it was evidently the con- sequence of this decision that every statute from the time of Magna Charta, designed to protect the personal liberties of Englishmen, became a dead letter, since the insertion of four words in a warrant (per speciale mandatum regis~), which might become matter of form, would control their remedial efficacy. And this wound was the more deadly in that the notorious cause of these gentlemen's imprisonment was their withstanding an illegal exaction of money. Everything that distinguished our constitutional laws, all that rendered the name of England valu- able, was at stake in this issue." 1 This decision, among other violent acts, led to the Petition of Right, one of the principal charters of English liberty, but which was not assented to by the king until the judges had intimated that if he saw fit to violate it by arbitrary commitments, they would take care that it should not be enforced by their aid against his will. And four years later, when the king committed members of Parliament for words spoken in debate offensive to the royal prerogative, the judges evaded the performance of their duty on habeas corpus, and the members were only discharged when the king gave his consent to that course. 2 The Habeas Corpus Act was passed in 1679, mainly to prevent such abuses and other evasions of duty by judges and ministerial officers, and to compel prompt action in any case in which illegal imprisonment was alleged. That act gave no new right to the 1 Hallam, Const. Hist. c. 7. See also 2 Hallam, Const. Hist. c. 8; Brodie, BroJie, Const. Hist. Vol. II. c. 1. Const. Hist, Vol. I. c. 8. 490 CONSTITUTIONAL LIMITATIONS. [CH. X. subject, but it furnished the means of enforcing those which ex- isted before. 1 The preamble recited that " whereas great delays have been used by sheriffs, jailers, and other officers to whose custody any of the king's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus, to them directed, by standing out on alias or pluries habeas corpus, and sometimes more, and by other shifts to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the king's subjects have been and hereafter may be long detained in prison in such cases, where by law they are bailable, to their great charge and vexation. For the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters," the act proceeded to make elaborate and care- ful provisions for the future. The important provisions of the act may be summed up as follows : That the writ of habeas corpus might be issued by any court of record or judge thereof, either in term-time or vacation, on the application of any person confined, or of any person for him; the application to be in writing and on oath, and with a copy of the warrant of commitment attached, if procurable ; the writ to be returnable either in court or at cham- bers ; the person detaining the applicant to make return to the writ by bringing up the prisoner with the cause of his detention, and the court or judge to discharge him unless the imprisonment appeared to be legal, and in that case to take bail if the case was bailable ; and performance of all these duties was made compul- sory, under heavy penalties. Thus the duty which the judge or other officer might evade with impunity before, he must now per- form or suffer punishment. The act also provided for punishing severely a second commitment for the same cause, after a party had once been discharged on habeas corpus, and also made the sending of inhabitants of England, Wales, and Berwick-upon- Tweed abroad for imprisonment illegal, and subject to penalty. Important as this act was, 2 it was less broad in its scope than the remedy had been before, being confined to cases of imprisonment for criminal or supposed criminal matters; 3 but the attempt in Parliament nearly a century later to extend its provisions to other 1 Hallam, Const. Hist. c. 13; Beech- Corpus, gives a complete copy of the ing's Case, 4 B. & C. 136 ; Matter of act. See also appendix to Lieber, Civil Jackson, 15 Mich. 436. For a valuable Liberty and Self-Government ; Broom, article on the History of the Writ of Const. Law, 218. Habeas Corpus, see 18 Law Quar. Rev. 3 See Mayor of London's Case, 3 Wils. 64.] 198 ; Wilson's Case, 7 Queen's Bench 2 Mr. Hurd, in the appendix to his Rep. 984. excellent treatise on the Writ of Habeas CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 491 cases was defeated by the opposition of Lord Mansfield, on the express ground that it was unnecessary, inasmuch as the common- law remedy was sufficient ; 1 as perhaps it might have been, had officers been always disposed to perform their duty. Another attempt in 1816 was successful. 2 The Habeas Corpus Act was not made, in express terms, to extend to the American colonies, but it was in some expressly, and in others by silent acquiescence, adopted and acted upon, and all the subsequent legislation in the American States has been based upon it, and has consisted in little more than a re-enact- ment of its essential provisions. What Courts issue the Writ. The protection of personal liberty is for the most part confided to the State authorities, and to the State courts the party must apply for relief on habeas corpus when illegally restrained. There are only a few cases in which the federal courts can interfere ; and those are cases in which either the illegal imprisonment is under pretence of national authority, or in which this process be- comes important or convenient in order to enforce or vindicate some right, or authority under the Constitution or laws of the United States. The Judiciary Act of 1789 provided that each of the several federal courts should have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which might be necessary for the exercise of their re- spective jurisdictions, and agreeable to the principles and usages of law ; and that either of the justices of the Supreme Court, as well as the district judges, should have power to grant writs of habeas corpus for the purposes of an inquiry into the cause of commitment ; provided that in no case should such writs extend to prisoners in jail, unless where they were in custody under or by color of the authority of the United States, or were committed to trial before some court of the same, or were necessary to be brought into court to testify. 3 Under this statute no court of the United States or judge thereof could issue a habeas corpus to bring up a prisoner in custody under a sentence or execution of a State court, for any other purpose than to be used as a witness. And this was so whether the imprisonment was under civil or criminal process. 4 1 Life of Mansfield by Lord Campbell, 2 By Stat. 56 Geo. III. c. 100. See 2 Lives of Chief Justices, c. 35; 15 Han- Broom, Const. Law, 224. sard's Debates, 397 et seq. 3 1 Statutes at Large, 81. * Ex parte Dorr, 3 How. 103. 492 CONSTITUTIONAL LIMITATIONS. [CH. X. During what were known as the nullification troubles in South Carolina, the defect of federal jurisdiction in respect to this writ became apparent, and another act was passed, having for its ob- ject, among other things, the protection of persons who might be prosecuted under assumed State authority for acts done under the laws of the United States. This act provided that either of the justices of the Supreme Court, or a judge of any District Court of the United States, in addition to the authority already conferred by law, should have power to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined on or by any authority of 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 any judge or court thereof. 1 In 1842 further legislation seemed to have become a necessity, in order to give to the federal courts authority upon this writ over cases in which questions of international law were involved, and which, consequently, could properly be disposed of only by the jurisdiction to which international concerns were by the Con- stitution committed. The immediate occasion for this legislation was the arrest of a subject of Great Britain by the authorities of the State of New York, for an act which his government avowed and took the responsibility of, and which was the subject of diplo- matic correspondence between the two nations. An act of Con- gress was consequently passed, which provides that either of the justices of the Supreme Court, or any judge of any District Court of the United States in which a prisoner is confined, in addition to the authority previously conferred by law, shall have power to grant writs of habeas corpus in all cases of any prisoner or prisoners in jail or confinement, where he, she, or they, being subjects or citizens of a foreign State, and domiciled therein, 1 4 Stat. at Large, 634. See Ex parte thority of the United States, and in ex- Robinson, 6 McLean, 355, 1 Bond, 39. ecution of its laws. The federal district Robinson was United States marshal, judge entered upon an examination of the and was imprisoned under a warrant facts on habeas corpus, and ordered the issued by a State court for executing relator discharged. A similar ruling has process under the Fugitive Slave Law, been made where a marshal was charged and was discharged by a justice of the in a State court with murder committed Supreme Court of the United States un- while protecting a Justice of the Supreme der this act. See also United States v. Court from an attack. In re Neagle, 39 Jailer of Fayette Co., 2 Abb. U. S. 265. Fed..Rep. 833, aff. 135 U. S. 1, 10 Sup. Ct. The relator in that case was in custody Kep. 658. See also Ex parte Virginia, of the jailer under a regular commitment 100 U. S. 339; Ex parte Siebold, 100 charging him under the laws of Kentucky U. S. 371 ; Ex parte Clark, 100 U. S. with murder. He averred and offered to 399 ; Ex parte Bridges, 2 Woods, 428 ; show that the act with which he was Ex parte McKean, 3 Hughes, 23 ; Ex charged was done by him under the au- parte Jenkins, 2 Wall. Jr. 521. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 493 shall be committed, or confined, or in custody, under, or by any authority, or law, or process founded thereon, of the United States or of any one of them, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commis- sion, or order, or sanction of any foreign State or sovereignty, the validity or effect whereof depends upon the law of nations, or under color thereof. 1 In 1867 a further act was passed, which provided that the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any per- son may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States. 2 These are the cases in which the national courts and judges have jurisdiction of this writ: in other cases the party must seek his remedy in the proper State tribunal. 3 And although the State courts formerly claimed and exercised the right to inquire into the lawfulness of restraint under the national authority, 4 it is now settled by the decision of the Supreme Court of the United States, that the question of the legality of the detention in such cases is one for the determination, exclusively, of the federal ju- diciary, so that, although a State court or judge may issue this process in any case where illegal restraint upon liberty is alleged, yet when it is served upon any officer or person who detains an- other in custody under the national authority, it is his duty, by proper return, to make known to the State court or judge the authority by which he holds such person, but not further to obey 1 5 Stat. at Large, 539. McLeod's Sup. Ct. Rep. 734, 742. [TTpon jurisdic- Case, which was the immediate occasion tion of U. S. courts to issue writs of of the passage of this act, will be found habeas corpus, see Tinsley v. Anderson, reported in 25 Wend. 482, and 1 Hill, 171 U. S. 101, 18 Sup. Ct. Rep. 805, and 377, 37 Am. Dec. 328. It was reviewed notes to 43 L. ed. U. S. 91, 4 L. R. A. by Judge Talmadge in 26 Wend. 663, 236, 27 L. ed. U. S. 288, and 1 L. ed. U. S. and a reply to the review appears in 3 490. Upon suspension of writ of habeas Hill, 635. corpus, see note to 12 L. ed. U. S. 681.] 2 R. S. U. S. 751 et seq. See In re 3 Ex parte Dorr, 3 How. 103 ; Barry Brosnahan, 18 Fed. Rep. 62; In re Ah v. Mercein, 6 How. 103; De Krafft v. Jow, 29 Fed. Rep. 181 ; Jn re Chow Goo Barney, 2 Black, 704. See United States Pooi, 25 Fed. Rep. 77. While in advance v. French, 1 Gall. 1 ; Ex parte Barry, of trial in a State court for an offence 2 How. 65. QFor valuable note upon against a State law which is void under habeas corpus, collecting many cases, see the federal Constitution, a federal court 43 L. ed. U. S. 92.] may discharge a defendant, yet ordinarily 4 Seethe cases collected in Hurd on when bail is granted it will not do so. Habeas Corpus, B. 2, c. 1, 6, and in Ex parte Royall, 117 U. S. 241, 254, 6 Abb. Nat. Dig. 609, note. 494 CONSTITUTIONAL LIMITATIONS. [CH. X. the process ; and that as the State judiciary have no authority within the limits of the sovereignty assigned by the Constitution to the United States, the State court or judge can proceed no further with the case. 1 The State constitutions recognize the writ of habeas corpus as an existing remedy in the cases to which it is properly applicable, and designate the courts or officers which may issue it ; but they do not point out the cases in which it may be employed. Upon this subject the common law and the statutes must be our guide ; and although the statutes will be found to make specific provi- sion for particular cases, it is believed that in no instance which has fallen under our observation has there been any intention to restrict the remedy, and make it less broad and effectual than it was at the common law. 2 1 Ableman v. Booth, 21 How. 506. See Norris v. Newton, 5 McLean, 92 ; United States v. Rector, 5 McLean, 174; Spangler's Case, 11 Mich. 298; In re Hopson, 40 Barb. 34 ; Ex parte Hill, 5 Nev. 154; Ex parte Bur, 49 Cal. 159. Not- withstanding the decision of Ableman v. Booth, the State courts have frequently since assumed to pass definitely upon cases of alleged illegal restraint under federal authority, and this, too, by the acquiescence of the federal officers. As the remedy in the State courts is gener- ally more expeditious and easy than can be afforded in the national tribunals, it is possible that the federal authorities may still continue to acquiesce in such action of the State courts, in cases where there can be no reason to fear that they will take different views of the questions in- volved from those likely to be held by the federal courts. Nevertheless, while the case of Ableman v. Booth stands un- reversed, the law must be held to be as there declared. It has been approved in Tarble's Case, 13 Wall. 397, Chief Justice Chase dissenting. An agent of a State to receive from another State a person under extradition proceedings is not an officer of the United States, nor is his detention of the prisoner so far under national authority that a State court may not compel him to bring in the prisoner for an inquiry into the legality of his detention ; that is, whether the warrant and the delivery to the agent were in conformity to the federal stat- utes. In summing up the discussion Harlan, J., says : " Subject, then, to the exclusive and paramount authority of the national government, by its own judicial tribunals, to determine whether persons held in custody by authority of the courts of the United States, or by the commis- sioners of such courts, or by officers in the general government, acting under its laws, are so held in conformity with law, the States have the right, by their own courts, or by the judges thereof, to in- quire into the grounds upon which any person, within their respective territorial limits, is restrained of his liberty, and to discharge him, if it be ascertained that such restraint is illegal ; and this, not- withstanding such illegality may arise from a violation of the Constitution or the laws of the United States." Robb v. Connolly, 111 U. S. 624, 4 Sup. Ct. Rep. 544. 2 See Matter of Jackson, 15 Mich. 417, where this whole subject is fully consid- ered. The application for the writ is not necessarily made by the party in person, but may be made by any other person on his behalf, if a sufficient reason is stated for its not being made by him personally. The Hottentot Venus Case, 13 East, 195; Child's Case, 29 Eng. L. & Eq. 259. A wife may have the writ to release her husband from unlawful imprisonment, and may herself be heard on the applica- tion. Cobbett's Case, 15 Q. B. 181, note ; Cobbett v. Hudson, 10 Eng. L. & Eq. 318 ; s. c. 16 Q. B. 988. Lord Campbell in this case cites the case of the wife of John Bunyan, who was heard on his behalf CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 495 We have elsewhere referred to certain rules regarding the va- lidity of judicial proceedings. 1 In the great anxiety on the part of our legislatures to make the most ample provision for speedy relief from unlawful confinement, authority to issue the writ of habeas corpus has been conferred upon inferior judicial offi- cers, who make use of it sometimes as if it were a writ of error, under which they might correct the errors and irregularities of other judges and courts, whatever their relative jurisdiction and dignity. Any such employment of the writ is an abuse. 2 Where a party who is in confinement under judicial process is brought up on habeas corpus, the court or judge before whom he is returned will inquire : 1. Whether the court or officer issuing the process under which he is detained had jurisdiction of the case, and has acted within that jurisdiction in issuing such pro- cess. 3 If so, mere irregularities or errors of judgment in the when in prison. See note to 43 L. ed. U. S. 92.] 1 See post, p. 675 et seq. 2 Exparte Clay, 98 Mo. 678, 11 S. W. 998; State v. Hayden, 35 Minn. 283, 28 N. W. 659; Willis v. Bayles, 105 Ind. 363, 5 N. E. 8; State v. Orton, 67 Iowa, 654, 25 N. W. 775; People v. Liscomb, 60 N. Y. 559, 574; Petition of Crandall, 34 Wis. 177; Ex parte Van Hagan, 25 Ohio St. 42(3 ; Ex parte Shaw, 7 Ohio St. 81 ; Ex parte Parks, 93 U. S. 18, 23 ; Perry v. State, 41 Tex. 488 ; Matter of Underwood, 30 Mich. 602; Matter of Eaton, 27 Mich. 1; In re Burger, 39 Mich. 203; Ex parte Simmons, 62 Ala. 416; Re Stupp, 12 Blatch. 601; Exparte Winslow, 9 Nev. 71 ; Ex parte Hartman, 44 Cal. 32; In re Falvey, 7 Wis. 630; Petition of Semler, 41 Wis. 517 ; In re Stokes, 5 Sup. Ct. (N. Y.) 71; Prohibi- tory Amendment Cases, 24 Kan. 700 ; Ex parte Thompson, 93 111. 89; Ex parte Fernandez, 10 C. B. N. s. 2, 37. This is so, even though there be no appellate tribunal in which the judgment may be reviewed in the ordinary way. Ex par/e Plante, 6 Lower Can. Rep. 106. The writ cannot be used to prevent the com- mission upon a trial of anticipated errors. Ex parte Crouch, 112 U. S. 178, 5 Sup. Ct. Rep. 96. It is worthy of serious con- sideration whether, in those States where the whole judicial power is by the con- stitution vested in certain specified courts, it is competent by law to give to judicial officers not holding such courts authority to review, even indirectly, the decisions of the courts, and to discharge persons committed under their judgments. Such officers could exercise only a special statutory authority. Yet its exercise in such cases is not only judicial, but it is in the nature of appellate judicial power. The jurisdiction of the Supreme Court of the United States to issue the writ in cases of confinement under the order of the District Courts, was sustained in Exparte Bollman & Swartwout, 4 Cranch, 75, and Matter of Metzger, 6 How. 176, on the ground that it was appellate. It is original only where a State is a party, or an ambassador, minister, or consul. Ex parte Hung Hang, 108 U. S. 652, 2 Sup. Ct. Rep. 863. See also Ex parte Kearney, 7 Wheat. 38 ; Ex parte Watkins, 7 Pet. 608 ; Exparte Milburn, 9 Pet. 701 ; Matter of Kaine, 14 How. 103; Matter of Eaton, 27 Mich. 1 ; Matter of Buddington, 29 Mich. 472. 8 The validity of the appointment or election of an officer de facto cannot be inquired into on habeas corpus. Exparte Strahl, 16 Iowa, 369 ; Russell v. Whiting, 1 Wins. (N. C.) 463. Otherwise if a mere usurper issues process for the imprison- ment of a citizen. Ex parte Strahl, supra. If the record shows that relator stands convicted of that which is no crime, he is of course entitled to his discharge. Ex parte Kearney, 65 Cal. 212. So if punished for contempt in disobeying a void order of court. In re Ayers, 123 U. S. 443, 8 Sup. Ct. Rep. 104; Ex parte 496 CONSTITUTIONAL LIMITATIONS. [CH. X. exercise of that jurisdiction must be disregarded on this writ, and must be corrected either by the court issuing the process, or on regular appellate proceedings. 1 2. If the process is not void for want of jurisdiction, the further inquiry will be made, whether, by law, the case is bailable, and if so, bail will be taken if the party offers it ; otherwise he will be remanded to the proper custody. 2 This writ is also sometimes employed to enable a party to en- force a right of control which by law he may have, springing from some one of the domestic relations ; especially to enable a parent to obtain the custody and control of his child, where it is detained from him by some other person. The courts, however, do not generally go farther in these cases than to determine what is for the best interest of the child ; and they do not feel com- Fisk, 113 U. S. 713, 5 Sup. Ct. Rep. 724. So if he is held under a sentence which contravenes an express constitutional immunity, as when sentenced a second time for the same offence. Nielsen, Pe- titioner, 1.31 U. S. 176, 9 Sup. Ct. Rep. 672. See, also, Ex parte Royall, 117 U. S. 241, 254, 6 Sup. Ct. Rep. 734, 742 , In re Dill, 32 Kan. 648, 5 Pac. 39 ; Brown v. Duff us, 66 Iowa, 193, 23 N. W. 396; Ex parte Rollins, 80 Va. 314; Ex parte Rosenblatt, 19 Nev. 439, 14 Pac. 298. The question of jurisdiction of a court of limited jurisdiction is open upon this writ. People v. The Warden, &c., 100 N. Y. 20, 2 N. E. 870. 1 People v. Cassels, 5 Hill, 164 ; Bush- nell's Case, 9 Ohio St. 183; Ex parte Watkins, 7 Pet. 568 ; Matter of Metzger, 6 How. 176; Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. Rep. 152 ; Ex parte Harding, 120 U. S. 782, 7 Sup. Ct. Rep. 780; Petition of Smith, 2 Nev. 338; Ex parte Gibson, 31 Cal. 619 ; Hammond v. People, 32 III. 472, per Breese, 3. In State v. Shattuck, 45 N. H. 211, Bellows, J., states the rule very correctly as fol- lows : " If the court had jurisdiction of the matter embraced in these causes, this court will not, on habeas corpus, revise the judgment. State v. Towle, 42 N. H. 541 ; Ross's Case, 2 Pick. 166; and Riley's Case, 2 Pick. 171 ; Adams v. Vose, 1 Gray, 61. If in such case the proceedings are irregular or erroneous, the judgment is voidable and not void, and stands good until revised or annulled in a proper pro- ceeding instituted for that purpose ; but when it appears that the magistrate had no jurisdiction, the proceedings are void, and the respondent may be discharged on habeas corpus. , State v. Towle, before cited ; Ex parte Kellogg, 6 Vt. 509. See also State v. Richmond, 6 N. H. '232; Burnham v. Stevens, 33 N. H. 247 ; Hurst v. Smith, 1 Gray, 49." If the court has jurisdiction of an offence, its judgment as to what acts are necessary to constitute it cannot be reviewed. In re Coy, 127 U. S. 731, 8 Sup. Ct. Rep. 1263. 2 It is not a matter of course that the party is to be discharged even where the authority under which he is held is ad- judged illegal. For it may appear that he should be lawfully confined in differ- ent custody; in which case the proper order may be made for the transfer. Matter of Mason, 8 Mich. 70 ; Matter of Ring, 28 Cal. 247 ; Ex parte Gibson, 31 Cal. 619. See People v. Kelly, 97 N. Y. 212. And where he is detained for trial on an imperfect charge of crime, the court, if possessing power to commit de novo, instead of discharging him, should proceed to inquire whether there is prob- able cause for holding him for trial, and if so, should order accordingly. Hurd on Habeas Corpus, 416. A discharge on habeas corpus is, apart from statute, con- clusive upon the State. People v. Fair- man, 69 Mich. 568, 26 N. W. 669; State v. Miller, 97 N. C. 451 ; Gagnet v. Reese, 20 Fla. 438. A refusal to discharge is not conclusive. Application may be made to another judge. In re Snell, 31 Minn. 110, 16 N. W. 692. But a statute making such refusal conclusive, unless reversed on appeal, is valid. Ex parte Hamilton, 65 Miss. 98, 3 So. 68. See Ex parte Cuddy, 40 Fed. Rep. 62. CH. X.] CONSTITUTIONAL PKOTECTIONS, ETC. 497 pellcd to remand him to any custody where it appears not to be for the child's interest. The theory of the writ is, that it relieves from improper restraint ; and if the child is of an age to render it proper to consult his feelings and wishes, this may be done in any case ; J and it is especially proper in many cases where the par- ents are living in separation and both desire his custody. The right of the father, in these cases, is generally recognized as best ; but this must depend very much upon circumstances, and the tender age of the child may often be a controlling consideration against his claim. The courts have large discretionary power in these cases, and the tendency of modern decisions has been to extend, rather than restrict it. 2 There is no common-law right to a trial by jury of the ques- tions of fact arising on habeas corpus ; but the issues both of fact and of law are tried by the court or judge before whom the pro- ceeding is had ; 3 though without doubt a jury trial might be pro- vided for by statute, and perhaps even ordered by the court in some cases. 4 Right of Discussion and Petition. The right of the people peaceably to assemble, and to petition the government for a redress of grievances is one which " would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared, and the people had become so servile and debased as to be unfit to exer- cise any of the privileges of freemen." 5 But it has not been 1 Commonwealth v. Aves, 18 Pick. Com. v. Hart, 14 Phila. 352; Ex parte 193; Shaw v. Nachwes, 43 Iowa, 653; Murphy, 75 Ala. 409 ; Sturtevant v. State, Garner v. Gordan, 41 Ind. 92; People v. 15 Neb. 459; Bonnett v. Bonnett, 61 Iowa, Weissenbach, GO N. Y. 385. 199, 16 N. W. 91 ; Jones v. Darnall, 103 2 Barry's Case may almost be said to Ind. 569, 2 N. E. 229. Where the court exhaust all the law on this subject. We is satisfied that the interest of the child refer to the various judicial decisions would be subserved by refusing the cus- made in it, so far as they are reported in tody to either of the parents, it may be the regular reports. 8 Paige, 47 ; 25 confided to a third party. Chetwynd v. Wend. 64; People z>. Mercein, 3 Hill, 399; Chetwynd, L. R. 1 P. & D. 39; In re. 2 How. 65; Barry v. Mercein, 5 How. Goodenough, 19 Wis. 274. See Matter of 105. See also the recent case of Adams Heather Children, 50 Mich. 261, where t7. Adams, 1 Duv. 167. For the former the guardian of their estate was refused rule, see The King v. De Mannevill, 5 the custody of their persons. East, 221 ; Ex parte Skinner, 9 J. B. 8 See Hurd on Habeas Corpus, 297- Moore, 278. The rules of equity prevail 302, and cases cited ; Baker v. Gordon, at present in England on the question of 23 Ind. 209. custody. In re Brown, L. R. 13 Q. B. 4 See Matter of Hakewell, 22 Eng P. 614. Cases illustrating the doctrine L. & Eq. 395; s. c. 12 C. B. 232. that the good of the child will control: 5 Story on the Constitution, 1894. 32 498 CONSTITUTIONAL LIMITATIONS. [oil. X. thought unimportant to protect this right by statutory enactments in England ; and indeed it will be remembered that one of the most notable attempts to crush the liberties of the kingdom made the right of petition the point of attack, and selected for its con- templated victims the chief officers in the Episcopal hierarchy. The trial and acquittal of the seven bishops in the reign of James II. constituted one of the decisive battles in English con- stitutional history ; 1 and the right which was then vindicated is " a sacred right which in difficult times shows itself in its full magnitude, frequently serves as a safety-valve if judiciously treated by the recipients, and may give to the representatives or other bodies the most valuable information. It may right many a wrong, and the deprivation of it would at once be felt by every freeman as a degradation. The right of petitioning is indeed a necessary consequence of the right of free speech and delibera- tion, a simple, primitive, and natural right. As a privilege it is not even denied the creature in addressing the Deity." 2 Hap- pily the occasions for discussing and defending it have not been numerous in this country, and have been confined to ail exciting subject now disposed of. 3 Right to bear Arms. Among the other safeguards to liberty should be mentioned the right of the people to keep and bear arms. 4 A standing army is peculiarly obnoxious in any free government, and the jealousy of such an army has at times been so strongly manifested in England as to lead to the belief that even though recruited from among themselves, it was more dreaded by the people as an in- strument of oppression than a tyrannical monarch or any foreign power. So impatient did the English people become of the very 1 See this case in 12 Howell's State Abridgement of Debates, 5-28, 266-290, Trials, 183: 3 Mod. 212. Also in Broom, 557-562. Also Benton's Thirty Years' Const. Law, 408. See also the valuable View, Vol. I. c. 135, Vol. II. c. 82, 33, 36, note appended by Mr. Broom, p. 403, in 37. Also the current political histories which the historical events bearing on and biographies. The right to petition the right of petition are noted. Also, Congress is one of the attributes of na- Mav, Const. Hist. c. 7 ; 1 Bl Com. 143. tional citizenship, and as such is under 2 Lieber, Civil Liberty and Self-Gov- the protection of the national authority, eminent, c. 12. United States v. Cruikshank, 92 U. S. 3 For the discussions on the right of 542, 552, per Waite, Ch. J. No such pro- petition in Congress, particularly with ceeding as a petition of right to a court reference to slavery, see 1 Benton's to determine the constitutionality of a Abridgement of Debates, 3'.7 ; 2 Benton's statute is now recognized. In re Miller, Abridgement of Debates. 57-60, 182-188, 5 Mackey, 507. 209, 436-444 ; 12 Benton's Abridgement of * 1 Bl. Com. 143. Debates, 660-679, 705-743; 13 Benton's CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 499 army that liberated them from the tyranny of James II. that they demanded its reduction even before the liberation became com- plete ; and to this day the British Parliament render a standing army practically impossible by only passing a mutiny act from session to session. The alternative to a standing army is " a well-regulated militia ; " but this cannot exist unless the people are trained to bearing arms. The federal and State constitutions therefore provide that the right of the people to bear arms shall not be infringed ; but how far it may be in the power of the legis- lature to regulate the right we shall not undertake to say. 1 Hap- pily there neither has, been, nor, we may hope, is likely to be, much occasion for an examination of that question by the courts. 2 1 See Wilson v. State, 33 Ark. 557. 2 In Bliss i\ Commonwealth, 2 Lit. 90. the statute to "prevent persons wearing concealed arms " was held unconstitu- tional, as infringing on the right of the people to bear arms in defence of them- selves and of the State. But see Nunn . State, 1 Kelly, 243; State v. Mitchell, 3 Blackf. 229; Aynette v. State, 2 Humph. 154 ; State v. Buzzard, 4 Ark. 18 ; Carroll v. State, 28 Ark. 99, 18 Am. Rep. 538 ; State v. Jumel, 13 La. Ann. 399 ; 1 Green, Cr. Rep. 481 ; Owen v. State, 31 Ala. 387; Cockrum v. State, 24 Tex. 394; Andrews v. State, 3 Heisk. 165, 8 Am. Rep. 8; State v. Wilburn, 7 Bax. 51; State v. Reid, 1 Ala. 612; State v. Shelby, 90 Mo. 302, 2 S. W. 468. A statute prohibiting the open wearing of arms upon the person was held unconstitutional in Stockdale v. State, 32 Ga. 225, and one forbidding carrying, either publicly or privately, a dirk, sword-cane, Spanish stiletto, belt or pocket pistol or revolver, was sustained, except as to the last-mentioned weapon ; and as to that it was held that, if the weapon was suitable for the equipment of a soldier the right of carrying it could not be taken away. As bearing also upon the right of self-defence, see Ely v. Thomp- son, 3 A. K. Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for "lifting their hands in opposition " to a white person was unconstitutional. And see, in general, Bishop on Stat. Crimes, c. 36, and cases cited. [^Unauthorized bodies of men may be prohibited the right to drill or parade with arms, and to associate as a military organization. Com. v. Murphy, 166 Mass. 171, 44 N. E. 138, 32 L. R. A. 606. A regulation forbidding the carrying of weapons generally is invalid, though such regulation as to concealed weapons is valid. Re Brickey, Idaho, , 70 Pac. 609.3 500 CONSTITUTIONAL LIMITATIONS. [CH. XI. CHAPTER XL OF THE PROTECTION TO PROPERTY BY " THE LAW OF THE LAND." THE protection of the subject in the free enjoyment of his life, his liberty, and his property, except as they might be declared by the judgment of his peers or the law of the land to be forfeited, was guaranteed by the twenty-ninth chapter of Magna Charta, " which alone," says Sir William Blackstone, " would have mer- ited the title that it bears of the G-reat Charter." l The people of the American States, holding the sovereignty in their own hands, have no occasion to exact pledges from any one for a due observ- ance of individual rights ; but the aggressive tendency of power is such, that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and re-enact this guaranty, and thereby adopt it as a principle of constitu- tional protection. In some form of words, it is to be found in each of the State constitutions ; 2 and though verbal differences 1 4 Bl. Com. 424. The chapter, as it stood in the original charter of John, was: " Ne corpus liberi hominis capiatur nee imprisonetur nee disseisietur nee ut- lagetur nee exuletur, nee aliquo inodo destruatur, nee rex eat vel mittat super eum vi, nisi per judieium parium suorum, vel per legem terrae." No freeman shall be taken or imprisoned or disseised or outlawed or banished, or any ways de- stroyed, nor will the king pass upon him, or commit him to prison, unless by the judgment of his peers, or the law of the land. In the charter of Henry III. it was varied slightly, as follows: "Nullus liber homo capiatur vel imprisonetur, aut dis- seisietur de libero tenemento suo vel lib- ertatibus vel liheris consuetudinibus suis, aut utlagetur aut exuletur, aut aliquo modo destruatur, nee super eum ibimus, nee super eum mittemus, nisi per legale judieium parium suorum, vel per legem teme." See Blackstone's Charters. The Petition of Right 1 Car. I. c. 1 prayed, among other things, " that no man be compelled to make or yield any gift, loan, benevolence, tax. or such like charge, without common consent, by act of Parliament ; that none be called upon to make answer for refusal so to do ; that freemen be imprisoned or detained only by the law of the land, or by due process of law, and not by the king's special command, without any charge." The Bill of Rights 1 Wm. and Mary, 2, c. 2 was confined to an enumeration and condemnation of the illegal acts of the preceding reign ; but the Great Charter of Henry III. was then, and is still, in force. 2 The following are the constitutional provisions in the several States : Alabama: "That, in all criminal pros- ecutions, the accused . . . shall not be compelled to give evidence against him- self, or be deprived of his life, liberty, or property, but by due course of law." Art. 1, 7. Arkansas: " That no person shall ... be deprived of his life, liberty, or property, without due process of law." Art. 1, 9. California: Similar to that of Alabama. Art. 1, 8. Connecticut: CH. XL] PROTECTION BY "THE LAW OF THE LAND." 501 appear in the several provisions, no change in language, it is thought, has in any case been made with a view to essential Same as Alabama. Art. 1, 9. Dela- ware: Like that of Alabama, substituting for "course of law," "the judgment of his peers, or the law of the land." Art. 1, 7. Florida: Similar to that of Ala- bama. Art. 1, 9. Georgia: "No per- son shall be deprived of life, liberty, or property, except by due process of law." Art. 1, 3. Illinois : " No person shall be deprived of life, liberty, or property, without due process of law." Art. 1, 2. Colorado: The same. Art. 1, 25. Iowa: The same. Art. 1, 9. Ken- tucky : " Nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers, or the law of the land." Art. 13, 12. Maine : " Nor be deprived of his life, liberty, property, or privileges, but by the judgment of his peers, or the law of the land." Art. 1, 6. Mart/land : " That no man ought to be taken or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land." Dec- laration of Rights, 23. Massachusetts: " No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." Declaration of Rights, Art. 12. Michigan: "No person shall ... be de- prived of life, liberty, or property, without due process of law." Art. 6, 82. Min- nesota : Like that of Michigan. Art. 1, 7. Mississippi: The same. Art. 1, 2. Missouri: Same as Delaware. Art. 1, 18. Nevada: "Nor be deprived of life, lib- erty, or property, without due process of law." Art. .1, 8. New Hampshire: Same as Massachusetts Bill of Rights, Art. 15. New York: Same as Nevada. Art. 1, 6. North Carolina: " That no person ought to be taken, imprisoned, or disseised of his freehold, liberties, or privi- leges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land." Declaration of Rights, 17. Pennsylvania: Like Delaware. Art. 1, 9. Rhode Island : Like Delaware. Art. 1, 10. South Carolina: Like that of Massachusetts, substituting " person " for "subject." Art. 1, 14. Tennessee: " That no man shall be taken or impris- oned, or disseised of his freehold, liber- ties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land." Art. 1, 8. Texas: "No citizen of this State shall be deprived of life, liberty, property, or privileges, out- lawed, exiled, or in any manner disfran- chised, except by due course of the law of the land." Art. 1, 16. West Vir- ginia: " No person, in time of peace, shall be deprived of life, liberty, or property, without due process of law." Art. 2, 6. Under each of the remaining constitu- tions, equivalent protection to that which these provisions give is believed to be afforded by fundamental principles recog- nized and enforced by the courts. QA corporation is within the term " person " and " man " as used in the various consti- tutional provisions as to " Law of the Land" and "Due Process." Knoxville & Ohio Ry. Co. v. Harris, 99 Tenn. 684, 43 S. W. 115, 53 L. R. A. 921 ; Johnson v. Goodyear Mining Co., 127 Cal. 4, 59 Pac. 304, 47 L. R. A. 338. A corporation is not, however, a " citizen " within the meaning of that term as used in section 2 of article 4, of the federal constitution, nor within the meaning of that term as used in section 1 of article 14, of the amendments referring to privileges and immunities of citizens of the several States, and of the United States respect- ively. Hawley v. Hurd, 72 Vt. 122, 47 Atl. 401, 82 Am. St. 922; Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. Rep. 281. "Property" within the meaning of the term as used in the federal constitu- tion involves the right to acquire and dis- pose of the subject of the right. Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S. W. 955, 76 Am. St. 682. " Liberty " in the constitutional sense involves the right to use one's faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling, vocation, trade, or profession, and to enjoy the 502 CmSTITUTIONAL LIMITATIONS. [CH. XI. change in legal effect ; and the differences in phraseology will not, therefore, be of importance in our discussion. Indeed, the language employed is generally nearly identical, except that the phrase " due process [or course] of law " is sometimes used, sometimes " the law of the land," and in some cases both ; but the meaning is the same in every case. 1 And, by the fourteenth amendment, the guaranty is now incorporated in the Constitution of the United States. 2 If now we shall ascertain the sense in which the phrases " due process of law " and " the law of the land " are employed in the several constitutional provisions which we have referred to, when the protection of rights in property is had in view, we shall be able, perhaps, to indicate the rule, by which the proper conclusion may be reached in those cases in which legislative action is objected to, as m>t being " the law of the land ;" or judicial or ministerial action is contested as not being " due process of law," within the meaning of these terms as the Constitution employs' them. If we examine such definitions of these terms as are met with in the reported cases, we shall find them so various that some difficulty must arise in fixing upon one which shall be accurate, complete in itself, and at the same time appropriate in all the cases. The diversity of definition is certainly not surprising, when we consider the diversity of cases for the purposes of which it has been attempted, and reflect that a definition that is suffi- cient for one case and applicable to its facts may be altogether insufficient or entirely inapplicable in another. Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College Case : " By the law of the land is most clearly intended the general law ; a law which hears before it condemns ; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land." 3 fruits thereof. Harbison v. Knoxville 18 How. 272, 276, per Curtis, J. ; Parsons Iron Co., supra.^ v. Russell, 11 Mich. 113, 129, per Manning, 1 2 Inst. 50; Bouv. Law Die. "Due J. ; Ervine's Appeal, 16 Pa. St. 256; process of Law," "Law of the Land;" Banning v. Taylor, 24 Pa. St. 289, 292; State v. Simons, 2 Speers, 767 ; Vanzant State v. Staten, 6 Cold. 244; Huber v. v. Waddell, 2 Yerg. 260; Wally's Heirs Reily, 53 Pa. St. 112. v. Kennedy, 2 Yerg. 654, 24 Am. Dec. 2 See ante, p. 15. 511; Greene v. Briggs, 1 Curt. 311; 'Dartmouth College v. Woodward, 4 Murray's Lessee v. Hoboken Land Co., Wheat. 519 ; Works of Webster, Vol. V. CH. XL] PROTECTION BY " THE LAW OF THE LAND.' 503 The definition here given is apt and suitable as applied to judicial proceedings, which cannot be valid unless they " proceed upon inquiry " and " render judgment only after trial." It is entirely correct, also, in assuming that a legislative enactment is not necessarily the law of the land. " The words ' by the law of the land,' as used in the Constitution, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. The people would be made to say to the two houses : ' You shall be vested with the legislative power of the State, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose. In other words, you shall not do the wrong unless you choose to do it.' " 1 When the law p. 487. And he proceeds : " If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts revers- ing judgments, and acts directly trans- ferring one man's estate to another, legislative judgments, decrees and forfeit- ures in all possible forms, would be the law of the land. Such a strange construc- tion would render constitutional provi- sions of the highest importance com- pletely inoperative and void. It would tend directly to establish the union of nil powers in the legislature. There would be no general permanent law for courts to administer or men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees, not to declare the law or administer the justice of the country." 1 Per Branson, J., in Taylor v. Porter, 4 Hill, 140, 145. See also Jones v. Perry, 10 Yerg. 59, 30 Am. Dec. 430 ; Ervine's Appeal, 16 Pa. St. 256 ; Arrowsmith v. Burlingim, 4 McLean, 489; Lane v. Dor- man, 4 111. 238 ; Reed v. Wright, 2 Greene (Iowa), 15 ; Woodcock v. Bennett, 1 Cow. 711 ; Kinney v. Beverley, 2 II. & M. 636 ; Commonwealth v. Byrne, 20 Gratt. 165; Rowan v. State, 30 Wis. 129, 11 Am. Rep. 659. " Those terms, ' law of the land,' do not mean merely an act of the General Assembly. If they did, every restriction upon the legislative authority would be at once abrogated. For what more can the citizen suffer than to be taken, imprisoned, disseised of his freehold, liberties, and privileges ; be outlawed, exiled, and de- stroyed, and be deprived of his property, his liberty, and his life, without crime ? Yet all this he may suffer if an act of the assembly simply denouncing those penal- ties upon particular persons, or a particu- lar class of persons, be in itself a law of the land within the sense of the Consti- tution ; for what is in that sense the law of the land must be duly observed by all, and upheld and enforced by the courts. In reference to the infliction of punish- ment and divesting the rights of property, it has been repeatedly held in this State, and it is believed in every other of the Union, that there are limitations upon the legislative power, notwithstanding these words ; and that the clause itself means that such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode, and usages of the common law, as derived from our forefathers, are not effectually ' laws of the land ' for those purposes." Hoke v. Henderson, 4 Dev. 15, 25 Am. Dec. 677. In Bank of Michigan v. Wil- liams, 5 Wend. 478, 486, Mr. Justice Sutherland says, vested rights "are pro- tected under general principles of para- mount, and, in this country, of universal authority." -Mr. Broom says : " It is in- deed an essential principle of the law of England, ' that the subject hath an un- doubted property in his goods and pos- sessions ; otherwise there shall remain no 504 CONSTITUTIONAL LIMITATIONS. [CH. XI. of the land is spoken of, " undoubtedly a pre-existing rule of con- duct" is intended, "not an ex post facto rescript or decree made for the occasion. The design " is " to exclude arbitrary power from every branch of the government ; and there would be no exclusion if such rescripts or decrees were to take effect in the form of a statute." l There are nevertheless many cases in which the title to property may pass from one person to another, with- out the intervention of judicial proceedings, properly so called; and in preceding pages it has been shown that special legislative acts designed to accomplish the like end, are allowable in some cases. The necessity for " general rules," therefore, is not such as to preclude the legislature from establishing special rules for particular cases, provided the particular cases range themselves under some general rule of legislative power ; nor is there any requirement of judicial action which demands that, in every case, the parties interested shall have a hearing in court. 2 On the other hand, we shall find that general rules may some- times be as obnoxious as special, if they operate to deprive indi- vidual citizens of vested rights. While every man has a right to require that his own controversies shall be judged by the same rules which are applied in the controversies of his neighbors, the whole community is also entitled, at all times, to demand the protection of the ancient principles which shield private rights against arbitrary interference, even though such interference may be under a rule impartial in its operation. It is not the partial nature of the rule, so much as its arbitrary and unusual char- acter, that condemns it as unknown to the law of the land. Mr. Justice Edwards has said in one case : " Due process of law un- doubtedly means, in the due course of legal proceedings, accord- more industry, no more justice, no more 378, 432, per Sehhn, J. In Janes v. Rey- valor; for who will labor 1 who will haz- nolds, 2 Tex. 250, Chief Justice Hemphlll ard his person in the day of battle for says : " The terms ' law of the land ' . . . that which is not his own? The Bank- are now, in their most usual acceptation, er's Case, by Tumor, 10. And therefore regarded as general public laws, binding our customary law is not more solicitous upon all the members of the community, about anything than ' to preserve the under all circumstances, and not partial property of the subject from the inunda- or private laws, affecting the rights of tion of the prerogative.' Ibid." Broom's private individuals or classes of individ- Const. Law, 228. uals." And see Vanzant v. Waddell, 2 1 Gibson, Ch. J., in Norman v. Heist, 5 Yerg. 260, per Peck, J. ; Hard v. Nearing, W. & S. 171, 173. There is no power 44 Barb. 472. Nevertheless there are which can authorize the dispossession by many cases, as we have shown, ante, force of an owner whose property has pp. 140, 152, in which private laws may been sold for taxes, without giving him be passed in entire accord with the general opportunity for trial. Calhoun v. Flet- public rules which govern the State ; and cher, 63 Ala. 674. we shall refer to more cases further on. 2 See Wynehamer v. People, 13 N. Y. GIL XI.] PROTECTION BY " THE LAW OF THE LAND." 505 ing to those rules and forms which have been established for the protection of private rights." 1 And we have met in no judicial decision a statement that embodies more tersely and accurately' the correct view of the principle we are considering, than the following, from an opinion by Mr. Justice Johnson of the Supreme Court of the United States : " As to the words from. Magna Charta incorporated in the Constitution of Maryland, after vol- umes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this, that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice." 2 The principles, then, upon which the process is based are to determine whether it is " due process " or not, and not any con- siderations of mere form. Administrative and remedial process may be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen. 3 When the government through its established agencies interferes with the title to one's property, or with his independent enjoy- ment of it, and its action is called in question as not in accord- ance with the law of the land, we are to test its validity by those principles of civil liberty and constitutional protection which have 1 Westervelt v. Gregg, 12 N. Y. 202, our guide Zylstra's Case, 1 Bay, 382 ; 209. See, also, State v. Staten,6Cold. 233; White v. Kendrick, 1 Brev. 469 ; State v. McMillen v. Anderson, 95 U. S. 37 ; Pear- Coleman & Maxcy, 1 McMull. 502, there son v. Yewdall, 95 U. S. 294; Pennoyer can be no hesitation in saying that these v. Neff, 95 U. S. 714; Davidson v. New words mean the common law and the Orleans, 96 U. S. 97 ; and cases in notes statute law existing in this State at the pp. IS, 19, ante, in which the true meaning adoption of our constitution. Altogether of due process of law is considered. Also they constitute a body of law prescribing San Mateo County v. Southern Pacific 11. the course of justice to which a free man R. Co., 13 Fed. Hep. 722. QSee Maxwell is to be considered amenable for all time v. Dow, 176 U. S. 581, 20 Sup. Ct. Rep. to come." Per O'Neill, J., in State v. 448,494; Bolln v. Nebraska, 176 U. S. 83, Simons, 2 Speers, 761, 767. See, also, 20 Sup. Ct. Rep. 287 ; Brown v. New Jer- State v. Doherty, 60 Me. 609. It must eey, 175 U. S. 172,20 Sup. Ct. Rep. 77; not be understood from this, however, Holden v. Hardy, 169 U. S. 366, 18 Sup. that it would not be competent to change Ct. Rep. 383; Hodgson v, Vermont, 168 either the common law or the statute law, U. S. 262, 18 Sup. Ct. Rep. 80 ; McNulty so long as the principles therein embod- v. California, 149 U. S. 615, 13 Sup. Ct. ied, and which protected private rights, Rep. 959 ; Hallinger v. Davis, 146 U. S. were not departed from. 314, 13 Sup. Ct. Rep. 105 ; also extensive 3 Hurtado v. California, 110 U. S. 516, citations of cases in notes upon "what 4 Sup. Ct. Rep. Ill, 292; QMaxwell r. constitutes due process of law," appended Dow, 176 U. S. 581, 20 Sup. Ct. Hep. 448, to 42 L. ed. U. S. 865, and 24 L. ed. U. S. 494, and cases therein cited. States have 436.] full power to regulate the amendment 2 Bank of Columbia j>. Okely, 4 Wheat, of pleadings in their courts. Carr v. 235, 244. " What is meant by ' the law Nichols, 157 U. S. 370, 15 Sup. Ct. Rep. of the land ' ? In this State, taking aa 640.] 506 CONSTITUTIONAL LIMITATIONS. [CH. XI. become established in our system of laws, and nbt generally by rules that pertain to forms of procedure merely. In judicial pro- ceedings the law of the land requires a hearing before condemna- tion, and judgment before dispossession ;" l but when property is appropriated by the government to public uses, or the legislature interferes to give direction to its title through remedial statutes, different considerations from those which regard the controversies between man and man must prevail, different proceedings are required, and we have only to see whether the interference can be justified by the established rules applicable to the special case. Due process of law in each particular case means, such an exer- tion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. 2 1 Vanzant v. Waddell, 2 Yerg. 260 ; Lenz v. Cliarlton, 23 Wis. 478 ; Pennoyer v. Neff, 95 U. S. 714. 2 See Wynehamer v. People, 13 N". Y. 378, 432, per Selden, J. ; Kalloch v. Su- perior Court, 56 Cal. 229 ; Baltimore v. Scharf, 54 Md. 499. In State v. Allen, 2 McCord, 56, the court, in speaking of process for the collection of taxes, say : " We think that any legal process which was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be considered an exception to the right of trial by jury, and is embraced in the alternative ' law of the land.' " To the same effect are In re Hackett, 53 Vt. 354 ; Weimer v. Bunbury, 30 Mich. 201. And see Hard v. Nearing, 44 Barb. 472 ; New Orleans v. Cannon, 10 La. Ann. 764; McCarrol v. Weeks, 5 Hayw. 246 ; Sears v. Cottrell, 5 Mich. 250 ; Gibson v. Mason, 5 Nev. 283. The fourteenth amendment has not enlarged the meaning of the words " due process of law." Whatever was such in a State before that amendment, is so still. Hence, a statute is good which allows execution on judgments against a town to be levied on the goods of individ- ual inhabitants. Eames v. Savage, 77 Me. 212. Taking property under the taxing power is due process of law. Davidson v. New Orleans, 96 U. S. 97; Kelly v. Pittsburgh, 104 U. S. 78 ; High v. Shoe- maker, 22 Cal. 863. QWeyerhauser v. Minnesota, 176 U. S. 550, 20 Sup. Ct. Eep. 485. Upon sufficiency of oppor- tunity for hearing upon assessment, see Pittsburgh C- C. & St. L. R. Co. v. Board of Public Works, 172 U. S. 32, 19 Sup. Ct. Rep. 90.3 See, also, Cruikshanks v. Charleston, 1 McCord, 360; State v. May- hew, 2 Gill, 487; Harper v. Commission- ers, 23 Ga. 566 ; Myers o. Park, 8 Heisk. 550. So is the seizure and sale under proceedings prescribed by law, of stray beasts. Knoxville v. King, 7 Lea, 441 ; Hamlin r. Mack, 33 Mich. 103; Stewart v. Hunter, 16 Oreg. 62, 16'Pac. 876. That the owner should have notice of the sale, see Varden v. Mount, 78 Ky. 86. A col- lateral-inheritance tax-law which makes no provision for notice to heirs, legatees, and devisees, and affords no opportunity for them to be heard in the matter of appraisal, is void. Ferry v. Campbell, 110 Iowa, 290, 81 N. W. 604, 50 L. R. A. 92.] An act allowing an agent of a humane society to condemn and kill an animal and fix its value conclusively without notice is not due process of law. King v. Hayes, 80 Me. 206, 13 Atl. 882. But a health officer may be empowered to kill a diseased beast, if the owner may after- wards contest the existence of conditions which made the beast a nuisance, and obtain redress, if such conditions are not shown to have existed. Newark & S. O. Co. v. Hunt, 50 N. J. L. 308, 12 Atl. 697. fJWhere such officer seizes and kills healthy animals, the owner does not thereby acquire any claim against the State. Houston v. State, 98 Wis. 481, 74 N. W. Ill, 42 L. R. A. 39J It is CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 507 Private rights may be interfered with by either the legislative, executive, or judicial department of the government. The execu- tive department in every instance must show authority of law for its action, and occasion does not often arise for an examination of the limits which circumscribe its powers. The legislative department may in some cases constitutionally authorize interfer- ence, and in others may interpose by direct action. Elsewhere we shall consider the police power of the State, and endeavor to show how completely all the property, as well as all the people within the State, are subject to control under it, within certain limits, and for the purposes for which that power is exercised. The right of eminent domain and the right of taxation will also be discussed separately, and it will appear that under each the law of the land sanctions divesting individuals of their property against their will, and by somewhat summary proceedings. In every government there is inherent authority to appropriate the property of the citizen for the necessities of the State, and con- stitutional provisions do not confer the power, though they gener- ally surround it with safeguards to prevent abuse. The restraints are, that when specific property is taken, a pecuniary compensa- tion, agreed upon or determined by judicial inquiry, must be paid ; and in other cases property can only be taken for the support of the government, and each citizen can only be required to contrib- ute his proportion to that end. But there is no rule or principle known to our system under which private property can be taken from one person and transferred to another, for the private use and benefit of such other person, whether by general law or by special enactment. 1 The purpose must be public, and must have no violation of this principle to exclude with reference to the transfer to a receiver from the State debauched women who of the assets of a dissolved corporation, are being imported for improper pur- It is not competent to provide that the poses. Matter of Ah Fook, 49 Cal. 403. claimant or purchaser of property, for QUpon what constitutes *' due process of the seizure or sale of which an indem- law," see valuable notes to 42 L. ed. U. S. nifying bond has been taken and returned 865, and 24 L. ed. U. S. 436, and see cases by the officer, shall be barred of any cited in note 1, page 505, ante. Issuance action against the officer, and confined to and record of writ of error in court his action on the bond as his only remedy, of first instance may be made sufficient Foule v. Mann, 53 Iowa, 42, 3 N. W. 814; notice to adverse party that suit is to be Sunberg v. Babcock, 61 Iowa, 601, 16 continued in the higher court. State v. N. W. 716. See, also, Ehlers v. Stoeckle, Canfield, 40 Fla. 36, 23 So. 591, 42 L. R. A. 37 Mich. 261. Contra, Hein v. Davidson, 72. Expulsion from benevolent society 96 N. Y. 175. Compare Dodd v. Thomas, under proper by-laws is, though it deprives 69 Mo. 364. A lien may be created by of property rights. Moore v. Natl. Com. statute in favor of a laborer for a con- of K. & L. of S., Kan. , 70 Pac. 352.] tractor, as against the owner of logs, 1 Lebanon Sell. Dist. v. Female Sem., between whom and the laborer there is 12 Atl. 857 (Pa.) ; People v. O'Brien, 111 no privity of contract. Reilly v. Steph- N. Y. 1, 18 N. E. 692. The latter case is enson, 62 Mich. 509, 29 N. W. 99. But 508 CONSTITUTIONAL LIMITATIONS. [CH. XL reference to the needs or convenience of the public, and no reason of general public policy will be sufficient to validate other trans- fers when they concern existing vested rights. 1 Nevertheless, in many cases and many ways remedial legisla- tion may affect the control and disposition of property, and in some cases may change the nature of rights, give remedies where none existed before, and even divest legal titles in favor of sub- stantial equities where the legal and equitable rights do not chance to concur in the same persons. The chief restriction upon this class of legislation is, that vested rights must not be disturbed ; but in its application as a shield of protection, the term " vested rights " is not used in any narrow or technical sense, or as importing a power of legal con- trol merely, but rather as implying a vested interest which it is right and equitable that the government should recognize and protect, and of which the individual could not be deprived arbi- trarily without injustice. The right to private property is a sacred right ; not, as has been justly said, " introduced as the re- sult of princes' edicts, concessions, and charters, but it was the such laborer may not enforce a lien in spite of any contract between the con- ractor and owner, or of payment by the latter. John Spry Lumber Co. v. Sault Sav. Bank, 77 Mich. 199, 43 N. W. 778. Nor can the owner's failure to enjoin the labor be made conclusive evidence of his assent to it. Meyer v. Berlandi, 39 Minn. 448, 40 N. W. 513. A mechanic's lien may be made applicable to buildings in process of erection. Colpetzer v. Trinity Church, 24 Neb. 113, 37 N. W. 931. ^The one in possession of property may be taxed therefor, even though the property belongs to another. Such taxation is not a taking of the property of one person for the benefit of another, for the tax- payer has a lien upon the property for the tax he has paid. Minneapolis & N. El. Co. . Traill Co., 9 N. D. 213, 82 N. W. 727, 60 L. R. A. 266. One electric light company cannot be authorized to use poles of another unless provision is made for compensation and for regulation of joint use. Citizens' El. Light & P. Co. v. Sands, 95 Mich. 561, 66 N. W.452, 20 L. R. A. 411. Statutes inaugurating the so-called " Torrens System " for registra- tion of land titles have been before the courts and attacked for violation of the rule of "due process," but have been usually upheld. Tyler v. Registration Court Judges, 175 Mass. 71, 65 N. E. 812, 61 L. R. A. 433; People ex rel. Deneen v. Simon, 176 111. 165, 52 N. E. 910, 68 Am. St. 175, 44 L. R. A. 801 ; State ex rel. Douglas v. School District, 85 Minn. 230, 88 N. W. 751, 57 L. R. A. 297. The val- idity of such act was denied in State ex rel. Monnett v. Guilbert, 56 Ohio St. 575, 47 N. E. 551, 38 L. R. A. 619, 60 Am. St. 756. And see the Massachusetts case in the Supreme Court of the United States, 179 U. S. 405, 21 Sup. Ct. Rep. 206.] 1 Taylor v. Porter, 4 Hill, 140 ; Osborn v. Hart, 24 Wis. 89, 91, 1 Am. Rep. 161. In Matter of Albany Street, 11 Wend. 149, 25 Am. Dec. 618, it is intimated that the clause in the Constitution of New York, witholding private property from public use except upon compensation made, of itself implies that it is not to be taken in invitum for individual use. And see Matter of John & Cherry Streets, 19 Wend. 659. A different opinion seems to have been held by the Supreme Court of Pennsylvania, when they decided in Harvey v. Thomas, 10 Watts, 63, that the legislature might authorize the lay- ing out of private ways over the lands of unwilling parties, to connect the coal- beds with the works of public improve- ment, the constitution not in terms pro- hibiting it. See note to p. 765, post. CH. XL] PROTECTION BY "THE LAW OF THE LAND.' 509 old fundamental law, springing from the original frame and con- stitution of the realm." 1 But as it is a right which rests upon equities, it has its reason- able limits and restrictions ; it must have some regard to the gen- eral welfare and public policy ; it cannot be a right which is to be examined, settled, and defended on a distinct and separate consideration of the individual case, but rather on broad and gen- eral grounds, which embrace the welfare of the whole community, and which seek the equal and impartial protection of the interests of all. 2 And it may be well at this point to examine in the light of the reported cases the question, What is a vested right in the consti- tutional sense ? and when we have solved that question, we may be the better able to judge under what circumstances one may be justified in resisting a change in the general laws of the State affecting his interests, and how far special legislation may control his rights without coming under legal condemnation. In organ- ized society every man holds all he possesses, and looks forward to all he hopes for, through the aid and under the protection of the laws ; 3 but as changes of circumstances and of public opinion, 1 Arg. Nightingale v. Bridges, Show. 138. See also case of Alton Woods, 1 Rep 45 a ; Alcock v. Cooke, 5 Bing. 340 ; Bowman v. Middleton, 1 Bay, 252 ; Ken- nebeti Purchase v. Laboree, 2 Me. 275, 11 Am. Dec. 79; ante, p. 68, and note, p. 244, and note. Any one may acquire and hold any species of property, and the acquisition cannot be taxed as a privilege. But the use may he regulated to prevent injury to others. Stevens v. State, 2 Ark. 291, 35 Am. Dec. 72. 2 The evidences of a man's rights the deeds, bills of sale, promissory notes, and the like are protected equally with his lands and chattels, or rights and fran- chises of any kind ; and the certificate of registration and right to vote may be properly included in the category. State r. Staten, 6 Cold. 233. See Davies v. Mc- Keeby, 5 Nev. 369. 8 The interest acquired in the practice of learned professions, that is, " the right to continue their prosecution," is property which cannot be arbitrarily taken away. Field, J., in Dent r. West Virginia, 129 U. S. 114, 9 Sup. Ot. Rep. 213. The office of an attorney is property, and he cannot be deprived of it except for pro- fessional misconduct or proved unfituess. The public discussion of the official con- duct of a judge is not professional mis- conduct, unless it is designed to acquire an influence over the conduct of the judge in the exercise of his judicial functions by the instrumentality of popular preju- dice. Ex parte Steinman, 95 Pa. St. 220. But see State v. McClaugherty, 33 W. Va. 250, 10 S. E. 407. [Right of property involves right to dispose of same, and statute prescribing who shall and who shall not sell the common proprietary medicines and restricting such sale to registered pharmacists is taking property without due process. Noel v. State, 187 111. 587, 58 N. E. 616, 79 Am. St. 238, 52 L. R. A. 287. Property in the constitu- tional sense is said, in Harbison v. Knox- ville Iron Co., 103 Tenn. 421, 53 S. W. 955, 76 Am. St. 682, to include every- thing having an exchangeable value and as well tlie right to acquire and dispose of the thing which is the subject of property rights. The office of Governor of a State is not "property." Taylor v. Beckhani, 178 U. S. 548, 20 Sup. Ct. Rep. 890, 1009. It is held in Hoover v. Mc- Chesney, 81 Fed. Rep. 472, that the right to use the mails is " property " in the sense that one cannot be deprived of it without 510 CONSTITUTIONAL LIMITATIONS. [CH. XI. as well as other reasons affecting the public policy, are all the while calling for changes in the laws, and as these changes must influence more or less the value and stability of private posses- sions, and strengthen or destroy well-founded hopes, and as the power to make very many of them could not be disputed without denying the right of the political community to prosper and ad- vance, it is obvious that many rights, privileges, and exemptions which usually pertain to ownership under a particular state of the law, and many reasonable expectations, cannot be regarded as vested rights in any legal sense. 1 In many cases the courts, in the exercise of their ordinary jurisdiction, cause the property vested in one person to be transferred to another, either through the exercise of a statutory power, or by the direct force of their judgments or decrees, or by means of compulsory conveyances. If in these cases the courts have jurisdiction, they proceed in ac- cordance with " the law of the land ; " and the right of one man is divested by way of enforcing a higher and better right in an- other. Of these cases we do not propose to speak : constitutional questions cannot well arise concerning them, unless they are at- tended by circumstances of irregularity which are supposed to Tyroler v. Warden, etc., 157 N. Y. 116, 51 N. E. 1006, 43 L. R. A. 264, 68 Am. St. 763.] 1 " A person has no property, no vest- ed interest, in any rule of the common law . . . Rights of property which have been created by the common law, cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim of the legislature, unless prevented by constitutional limitations." Waite, Ch. J., in Munn v. Illinois, 94 U. S. 113, 134. See Railroad Co. v. Richmond, 96 U. S. 521 ; Transportation Co. v. Chi- cago, 99 U. S. 635 ; Newton v. Commis- sioners, 100 U. S. 648; post, 548, note. The State may take away rights in a public fishery by appropriating the water to some other use. Howes v. Crush, 131 Mass. 207. QBut not the previously ac- quired right of a co-tenant to enter and extract ores without accounting therefor. Butte & B. Consol. Min. Co. v. Mont. Ore P. Co., 25 Mont. 41, 63 Pac. 825. The rights of a stockholder as the owner of stock cannot be taken through the re- tirement of stock by conversion into bonds. Berger i;. United States Steel Corporation, 63 N. J. Eq. 809, 53 Atl. 68, rev. 63 N. J. Eq. 506, 53 Atl. 14] a chance to be heard and defend. The so-called " right to privacy " has, in sev- eral cases, been asserted and protection asked for it through the judicial depart- ment of the government, but in the cases which have arisen the courts have de- clined to recognize such a property or per- sonal right. Atkinson v. Doherty & Co., 121 Mich. 372, 80 N. W. 285, 46 L. R. A. 219, 80 Am. St. 507, and cases cited in the opinion ; Roberson v. Rochester, etc. Co., 171 N. Y. 538, 64 N. E. 442, Articles in 4 Harv. Law Rev. 193 ; 22 Canada Law Times, 281, by E. L. Adams, counsel in Roberson case, supra; 175 No. Am. Re- view, 361 ; 2 Columbia Law Review, 437 ; Corliss v. E. W. Walker Co., 57 Fed. Rep. 434, 31 L. R. A. 283, 64 Fed. Rep. 280; Schuyler v. Curtis, 147 N. Y. 434, 42 N. E. 22, 31 L. R. A. 286,49 Am. St. 671. See also articles in 10 Am. Lawyer, 293, and 55 Cent. Law Journal, 123. The ticket bro- kerage legislation has been frequently be- fore the courts on constitutional grounds and as against the constitutional objec- tion has been usually upheld. Fry v. State, 63 Ind. 552, 30 Am. Rep. 238; Ex parte Lorenzen, 128 Cal. 431, 61 Pac. 68, 60 L. R. A. 55; Burdick v. People, 149 111. 600, 36 N. E. 948, 24 L. R. A. 152, 41 Am. St. 329. Contra, People ex rel. CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 511 take them out of the general rule. All vested rights are held subject to the laws for the enforcement of public duties and pri- vate contracts, and for the punishment of wrongs ; and if they be- come divested through the operation of those laws, it is only by way of enforcing the obligations of justice and good order. What we- desire to reach in this connection is the true meaning of the term "vested rights" when employed for the purpose of indicating the interests of which one cannot be deprived by the mere force of legislative enactment, or by any other than the rec- ognized modes of transferring title against the consent of the owner, to which we have alluded. Interests in Expectancy, First, it would seem that a right cannot be considered a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws : it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another. 1 Acts of the legislature, as has been well said by Mr. Justice Woodbury, cannot be regarded as opposed to fundamental axioms of legislation, " unless they impair rights which are vested ; because most civil rights are derived from public laws ; and if, before the rights become vested in particular individuals, the convenience of the State procures amendments or repeals of those laws, those individuals have no cause of com- plaint. The power that authorizes or proposes to give, may always revoke, before an interest is perfected in the donee." 2 And Chancellor Kent, in speaking of retrospective statutes, says that while such a statute, " affecting and changing vested rights, is very generally considered in this country as founded on uncon- stitutional principles, and consequently inoperative and void," yet that " this doctrine is not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy by curing defects and adding to the means of enfor- cing existing obligations. Such statutes have- been held valid when clearly just and reasonable, and conducive to the general 1 \Veidenger v. Spruance, 101 111. 278. is vested. Moore v. Irby, 69 Ark. 102, See Wanser v. Atkinson, 43 N. J. 571. 61 S. W. 371.J The right of a minor to redeem, when 2 Merrill v. Slierburne, 1 N. H. 199, 213, he comes of age, lands forfeited during 8 Am. Dec. 52. See Rich v. Flanders, 39 his minority through failure to pay taxes N. H. 30i. And cases, ante, p. 402, note 2. 512 CONSTITUTIONAL LIMITATIONS. [CH. XI. welfare, even though they might operate in a degree upon exist- ing rights." l And it is because a mere expectation of property in the future is not considered a vested right, that the rules of descent (a) are held subject to change in their application to all estates not already passed to the heir by the death of the owner. No one is heir to the living ; and the heir presumptive has no other reason to rely upon succeeding to the property than the promise held out by the statute of descents. But this promise is no more than a declar- ation of the legislature as to its present view of public policy as regards the proper order of succession, a view which may at any time change, and then the promise may properly be with- drawn, and a new course of descent be declared. The expecta- tion is not property ; it cannot be sold or mortgaged ; it is not subject to debts ; and it is not in any manner taken notice of by the law until the moment of the ancestor's death, when the stat- ute of descents comes in, and for reasons of general public policy transfers the estate to persons occupying particular relations to the deceased in preference to all others. It is not until that moment that there is any vested right in the person who becomes heir, to be protected by the Constitution. An anticipated inter- est in property cannot be said to be vested in any person so long as the owner of the interest in possession has full power, by virtue of his ownership, to cut off the expectant right by grant or devise. 2 If this be so, the nature of estates must, to a certain extent, be subject to legislative control and modification. 3 In this country estates tail have been very generally changed into estates in fee simple, by statutes the validity of which is not disputed. 4 Such 1 1 Kent, Com. 445. See Briggs v. But after property has once vested un- Hubbard, 19 Vt. 86; Bridgeport v. Hou- der the laws of descent, it cannot be satonic R. R. Co., 15 Conn. 475; Baugher divested by any change in those laws. v. Nelson, 9 Gill, 299; Gilman v. Cutts, Norman v. Heist, 5 W. & S. 171. And 23 N. H. 376, 382; Foule v. Mann, 53 the right to change the law of descents in Iowa, 42, 3 N. W. 184. the case of the estate of a person named 2 In re Lawrence, 1 Redfield, Sur. Rep. without his cor sent being had, was denied 310. [[See also Bass v. Roanoke Xav. & in Beall v. Beall, 8 Ga. 210. See post, W. P. Co., Ill N. C. 439, 16 S. E 402, pp 612, 540, 541, and notes. 19 L. R. A. 247, and note on power to * Smith on Stat. and Const. Construe- defeat contingent interests ; McNeer v. tion, 412. McNeer, 142 111. 388, 32 N. E. 681, 19 * De Mill v. Lockwood, 3 Blatch. 66. L. R. A. 256, and note on power to The legislature may by special act con- change or destroy dower, curtesy, &c] firm a conveyance in fee simple by a a {[These rules do not control succession to land among the members of Indian tribes. Such succession, so long as the tribal organization is still recognized by the Federal government, is according to the laws, usages and customs of the tribe. Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. Kep. I/] CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 513 statutes operate to increase and render more valuable the interest which the tenant in tail possesses, and are not therefore open to objection by him. 1 But no other person in these cases has any vested right, either in possession or expectancy, to be affected by such change ; and the expectation of the heir presumptive must be subject to the same control as in other cases. 2 The cases of rights in property to result from the marriage relation must be referred to the same principle. -At the common law the husband immediately on the marriage succeeded to cer- tain rights in the real and personal estate which the wife then possessed. These rights became vested rights at once, and any subsequent alteration in the law could not take them away. 3 But other interests were merely in expectancy. He could have a right as tenant by the courtesy initiate in the wife's estates of inheritance the moment a child was born of the marriage, who might by possibility become heir to such estates. This right would be property, subject to conveyance and to be taken for debts ; and must therefore be regarded as a vested right, no more subject to legislative interference than other expectant interests which have ceased to be mere contingencies and become fixed. But while this interest remains in expectancy merely, that is to say, until it becomes initiate, the legislature must have full right to modify or even to abolish it. 4 And the same rule will tenant in tail. Comstock v. Gay, 51 which, however, does not reach the gen- Conn. 45. eral principle above stated in 2 Bishop, 1 On the same ground it has been held Law of Married Women, 46, and note, in Massachusetts that statutes converting Rights under an ante-nuptial contract, existing estates in joint tenancy into which become vested by the marriage, estates in common were unobjectionable, cannot be impaired by subsequent legis- They did not impair vested rights, but lation. Desnoyer v. Jordan, 27 Minn, rendered the tenure more beneficial. 295, 7 N. W. 140. [JWhere at the time Holbrook v. Finney, 4 Mass. 565, 3 Am. community property is acquired, power to Dec. 243 ; Miller v. Miller, 16 Mass. 59 ; dispose of it rests entirely in the husband, Annable v. Patch, 3 Pick. 860 ; Burghardt subsequent legislation requiring the as- v. Turner, 12 Pick. 533. Moreover, such sent of the wife to its disposition is invalid statutes do no more than either tenant with regard to such property. Spreckels at the common law has a right to do, v. Spreckels, 116 Cal. 339, 48 Pac. 228, 36 by conveying his interest to a stranger. L R. A. 497, 58 Am. St. 170. An act See Bombaugh v. Bombaugh, 11 S. & R. taking away a statutory right of the 192; Wildes v. Vanvoorhis, 15 Gray, 139. husband in the wife's land which existed 2 See 1 Wash. Real Pr. 81-84, and at the time of the marriage, is void as to notes. The exception to this statement, such right. Rose v. Rose, 104 Ky. 48, if any, must be the case of tenant in tail 46 S. W. 524, 84 Am. St. 430.] after possibility of issue extinct; where * Hathon v. Lyon, 2 Mich. 93; Tong the estate of the tenant has ceased to be v. Marvin, 15 Mich. 60. And see the an inheritance, and a reversionary right cases cited in the next note. The right has become vested. of a tenant by the courtesy initiate is 8 Westervelt v. Gregg, 12 N. Y. 202. vested, and it cannot be taken away to See Mr. Bishop's criticism of this case the injury of the husband's creditors. 83 514 CONSTITUTIONAL LIMITATIONS. [CH. XI. apply to the case of dower ; though the difference in the requi- sites of the two estates are such that the inchoate right to dower does not become property, or anything more than a mere expec- tancy at any time before it is consummated by the husband's death. 1 In neither of these cases does the marriage alone give a Wyatt v. Smith, 25 W. Va. 813. See Hersliizer v. Florence, 39 Ohio St. 516. But see to the contrary, Breeding v. Davis, 77 Va. 639; Alexander v. Alex- ander, 85 Va. 353, 7 S. E. 835. 1 When dower is duly assigned it be- comes a right not to be divested by sub- sequent legislation. Talbot v. Talbot, 14 R. I. 57. The law in force at the death of the husband is the measure of the right of the widow to dower. Noel v. Ewing, 9 Ind. 37; May v. Fletcher, 40 Ind. 575; Lucas v. Sawyer, 17 Iowa, 517; Sturdevant v. Norris, 30 Iowa, 65; Meli- zet's Appeal, 17 Pa. St. 449; Barbour v. Barbour, 46 Me. 9; Magee ?>. Young, 40 Miss. 164 ; Bates v. McDowell, 58 Miss. 815; Walker v. Deaver, 5 Mo. App. 139; Guerin r. Moore, 25 Minn. 462; Morrison v. Kice, 35 Minn. 436, 29 N. W. 168; Ware v. Owens, 42 Ala. 212; Pratt v. Tefft, 14 Mich. 191; Bennett v. Harms, 51 Wis. 251, 8 N. W. 222. But if we apply this rule universally, we shall run into some absurdities, and most certainly in some cases encounter difficulties which will prove insurmountable. Suppose the land has been sold by the husband with- out relinquishment of dower, and the dower right is afterwards by statute en- larged, will the wife obtain the enlarged dower at the expense of the purchaser? Or suppose it is diminished ; will the pur- chaser thereby acquire an enlarged estate which he never bought or paid for? These are important questions, and the authorities furnish very uncertain and unsatisfactory answers to them. In Illi- nois it is held that though the estate is contingent, the right to dower, when mar- riage and seisin unite, is vested and abso- lute, and is as completely beyond legisla- tive control as is the principal estate. Russell v. Rumsey, 35 111. 362 ; Steele v. Gellatly, 41 111. 39. See Lawrence . Miller, 2 N. Y. 245. But it is also held that after marriage a new right corre- sponding to dower may be conferred upon the husband, and that his homestead right depends on the law in force at the wife's death. Henson v. Moore, 104 111. 403. In North Carolina before 1867, the wife had dower only in the lands of which the hus- band died seised ; the statute then restored the common-law right to dower held to be inapplicable to lands which the husband had previously acquired. Sutton v. As- ken, 66 N. C. 172, 8 Am. Rep. 500; Hunting v. Johnson, 66 N. C. 189; Jen- kins v. Jenkins, 82 N. C. 202; O'Kelly v. Williams, 84 N. C. 281. In Iowa it is held that when the law of dower is changed after the husband lias conveyed lands subject to the inchoate right, the dower is to be measured by the law in force when the conveyance was made. Davis v. O'Ferrall, 4 Greene (Iowa), 168; Young v. Wolcott, 1 Iowa, 174 ; O'Fer- rall v. Simplot, 4 Iowa, 381 ; Moore v. Kent, 37 Iowa, 20; Craven v. Winter, 38 Iowa, 471. In Indiana, on the other hand, a atatute enlarging the right of dower to one-third of the land in fee simple was so applied as to deprive the widow, in cases where the husband had previously con- veyed, of both the statutory dower and the dower at the common law, thereby enlarging the estate of the purchaser. Strong v. Clem, 12 Ind. 37 ; Logan v. Walton, 12 Iiid. 839; Bowen v. Preston, 48 Ind. 367; Taylor v. Sample, 51 Ind. 423. See May v. Fletcher, 40 Ind. 675. A provision that upon a judicial sale of the husband's property the inchoate dower right shall vest does not apply to a mechanic's lien resting on the whole property before the act passed. Buser v. Shepard, 107 Ind. 417, 8 N. E. 280. In Missouri it is held that the widow takes dower according to the law in force at the husband's death, except as against those who had previously acquired specific rights in the estate, and as to them her right must depend on the law in force at the time their rights originated. Kennedy v. Insurance Co., 11 Mo. 204. In Williams v. Courtney, 77 Mo. 587, it is held that, marriage and seisin concurring, dower cannot be barred by a guardian's sale of the husband's property. In Massachusetts CH. XI.] PROTECTION BY "THE LAW OF THE LAND. 515 vested right. It gives only a capacity to acquire a right. The same remark may be made regarding the husband's expectant interest in the after-acquired personalty of the wife ; it is subject to any changes in the law made before his right becomes vested by the acquisition. 1 Change of Remedies. Again : the right to a particular remedy is not a vested right. This is the general rule ; and the exceptions are of those peculiar cases in which the remedy is part of the right itself. 2 As a gen- eral rule, every State has complete control over the remedies which it offers to suitors in its courts. 3 It may abolish one class of courts and create another. It may give a new and additional remedy for a right or equity already in existence. 4 And it may doubt is expressed of the right of the legislature to cut off the inchoate right of dower. Dunn v. Sargent, 101 Mass. 336, 340. But in Hamilton v. Hirsch, 2 Wash. Terr. 223, 5 Pac. 215, such power is affirmed. 1 Westervelt t;. Gregg, 12 N. Y. 202 ; Norris v. Beyea, 13 N. Y. 273 ; Kelly v. McCarthy, 3 Bradf. 7. And see Plumb v. Sawyer, 21 Conn. 351; Clark v. Mc- Creary, 12 S. & M. 247 ; Jackson v. Lyon, 9 Cow. 664; ante, pp. 406-415. On the point whether the husband can be re- garded as having an interest in the wife's choses in action, before he has reduced them to possession, see Bishop, Law of Married Women, Vol. II. 45, 46. If the wife has a right to personal property subject to a contingency, the husband's contingent interest therein cannot be taken away by subsequent legislation. Dunn v. Sargent, 101 Mass. 336. It is competent to provide by statute that married women shall hold their property free from claims of husbands, and to make the law apply to those already married. Rugh v. Ottenheimer, 6 Oreg. 231, 25 Am. Rep. 513. See Pritchard v. Citizens' Bank, 8 La. 130, 23 Am. Dec. 132. But vested rights belonging to the husband jure uxoris cannot thus be di- vested. Hershizer v. Florence, 39 Ohio St. 516 ; Koehler v. Miller, 21 111. App. 557. 2 See ante, p. 410, and cases cited. It has been held in some cases that the giving of a lien by statute does not con- fer a vested right, and it may be taken away by a repeal of the statute. See ante, 407, note 1. 8 Rosier v. Hale, 10 Iowa, 470 ; Smith v. Bryan, 34 111. 364; Lord v. Chad- bourne, 42 Me. 429; Rockwell v. Hub- bell's Adm'rs, 2 Doug. (Mich.) 197; Cusic v. Douglas, 3 Kan. 123; Holloway r. Sherman, 12 Iowa, 282 ; MoCorrnick v. Rusch, 15 Iowa, 127 ; Me Arthur v. Goddin, 12 Bush, 274; Grundy v. Com- monwealth, 12 Bush, 350 ; Briscoe v. Anketell, 28 Miss. 361. 4 Hope v. Johnson, 2 Yerg. 125 ; Fos- ter v. Essex Bank, 16 Mass. 245, 9 Am. Dec. 168 ; Paschall v. Whitsett, 11 Ala. 472 ; Commonwealth v. Commissioners, &c., 6 Pick. 501; Whipple v. Farrar, 3 Mich. 436 ; United States v. Samperyac, 1 Hemp. 118; Sutherland v. De Leon, 1 Tex. 250; Anonymous, 2 Stew. 228; See also Lewis v. McElvain, 16 Ohio, 347 ; Trustees, &c. v. McCaughey, 2 Ohio St. 152; Hepburn v. Curts, 7 Watts, 300;. Schenley v. Commonwealth, 36 Pa. St. 29 ; Bacon v. Callender, 6 Mass. 303 ; Brackett v. Norcross, 1 Me. 92 ; Ralston v. Lothain, 18 Ind. 303; White School House n. Post, 31 Conn. 241 ; Van Rens- selaer v. Hayes, 19 N. Y. 68 ; Van Rens- selaer v. Ball, 19 N. Y. 100 ; Sedgwiok Co. v. Bunker, 16 Kan. 498 ; Danville v. Pace, 25 Gratt. 1. Thus it may give a legal remedy where before there was only one in equity. Bartlett v. Lang, 2 Ala. 401. In Bolton v. Johns, 5 Pa. St. 145, the ex- treme ground was taken that the legis- lature might give a lien on property for a prior debt, where no contract would be 516 CONSTITUTIONAL LIMITATIONS. [CH. XL abolish old remedies and substitute new ; or even without substi- tuting any, if a reasonable remedy still remains. 1 If a statute providing a remedy is repealed while proceedings are pending, such proceedings will be thereby determined, unless the legisla- ture shall otherwise provide; 2 and if it be amended instead of repealed, the judgment pronounced in such proceedings must be according to the law as it then stands. 3 And any rule or regu- violated' in doing so. In Towle v. East- ern Railroad, 18 N. II. 546, the power of the legislature to give retrospectively a remedy for consequential damages caused by the taking of property for a public use was denied. On the ground that the rem- edy only is affected, a judgment against a principal on an existing bond, may be made conclusive on the surety. Pickett v. Boyd, 11 Lea, 498. So a resale on mortgage foreclosure, if the purchase price is inadequate, may be allowed as to an existing mortgage. Chaffe v. Aaron, 62 Miss. 29 ; and a foreclosure of a tax lien, if the title fails. Schoenheit v. Nel- son, 16 Neb. 235, 20 N. W. 205. QA lien for the whole value of labor or material furnished may be made to take prece- dence of any mortgage or other contract, lien, or conveyance arising subsequent to the beginning of the labor or of the sup- ply of the material, but prior to the com- pletion thereof, upon condition that notice of such lien shall be filed prior to filing of mortgage, &c. Hightower v. Bailey & Koerner, 22 Ky. L. 88, 56 S. W. 147, 49 L. R. A. 255.] 1 Stocking v. Hunt, 3 Denio, 274 ; Van Rensselaer v. Read, 26 N. Y. 558 ; Lennon v. New York, 55 N. Y. 361 ; Parker v. Shannohouse, 1 PhiL (N. C.) 209. An existing remedy may be modified and the modified remedy made applicable to ex- isting rights. Phelps' Appeal, 98 Pa. St. 646. 2 Bank of Hamilton v. Dudley, 2 Pet. 492 ; Ludlow v. Johnson, 3 Ohio, 553, 17 Am. Dec. 609; Yeaton v. United States, 5 Cranch, 281 ; Schooner Rachel v. United States, 6 Cranch, 329. If an act is repealed without any saving of rights, no judgment can afterwards be taken under it. State v. Passaic, 36 N. J. 382 ; Menard County v. Kincaid, 71 111. 687 ; Musgrove v. Vicksburg, &c. R. R. Co., 60 Miss. 677; Abbott v. Common- wealth, 8 Watts, 617, 34 Am. Dec. 492. But it is well said in Pennsylvania that before a statute should be construed to take away the remedy for a prior injury, it should clearly appear that it embraces the very case. Chalker v. Ives, 55 Pa. St. 81. And see Newsom v. Greenwood, 4 Oreg. 119. 8 See cases cited in last note. Also Commonwealth v. Duane, 1 Binney, 601, 2 Am. Dec. 497 ; United States v. Pass- more, 4 Dall. 372 ; Patterson v. Philbrook, 9 Mass. 151 ; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Kimball, 21 Pick. 373 ; Hartung v. People, 22 N. Y. 95 ; State v. Daley, 29 Conn. 272 ; Rath- bun v. Wheeler, 29 lud. 601; State y. Norwood, 12 Md. 195 ; Bristol v. Su- pervisors, &c., 20 Mich. 95; Summer r. Miller, 64 N. C. 688. [Pending the decision upon an appeal, the constitution was so amended that whereas under the old rule the appeal had been upon ques- tions of law alone, it was under the new to be upon questions of fact also. The case was thereupon remanded, in order that the evidence might be incorporated in the record upon a new trial, and the whole brought up again if either party were dissatisfied. Cassard v. Tracy, 52 La. Ann. 835, 27 So. 368, 49 L. R. A. 272. A mechanic's lien, which is a security given by statute and is in the nature of a remedy, rather than a right springing from contract or the rules of the common law, may be abolished by general statute without disturbing vested rights. Wilson v. Simon, 91 Md. 1, 46 Atl. 1022, 80 Am. St. 427. But a statute taking away the lien of a judgment having effect by op- eration of law upon the recovery of the judgment, is void as to judgments on con- tracts made before the enactment of the statute. Merchants' Bank v. Ballou, 98 Va. 112, 32 S. E. 481, 81 Am. St. 715, 44 L. R. A. 306. A statute exempting the earnings of a married man from compul- sory process for the collection of debt is CH. XL] PROTECTION BY "THE LAW OF THE LAND. 517 lation in regard to the remedy which does not, under pretence of modifying or regulating it, take away or impair the right itself, cannot be regarded as beyond the proper province of legislation. 1 But a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. 2 Where it springs from contract, or from the principles of the common law, it is not competent for the legislature to take it away. 3 And every man is entitled to a certain remedy in the law for all wrongs against his person or his valid as going to the remedy only. Kirk- man v. Bird, 22 Utah, 100, 61 Pac. 338, 83 Ann. St. 774.] 1 See ante, pp. 406-416; Lennon v. New York, 55 N. Y. 361. The right to a particular mode of procedure is not a vested right. A statute allowing attor- ney's fees may affect pending causes. Drake v. Jordan, 73 Iowa, 707, 36 N. W. 653. 2 It is not incompetent, however, to compel the party instituting a suit to pay taxes on the legal process as a condition. Harrison v. Willis, 7 Heisk 35, 19 Am. Rep. 004. That right of action is prop- erty and cannot be made worthless by legislative grant of property of one cor- poration to another, see Angle v. Chicago, M. & St. P. R. Co., 151 U. S. 1, 14 Sup. Ct. Rep. 240-3 3 Dash v. Van Kleeck, 7 Johns. 477, 5 Am. Dec. 291 ; Streubel v. Milwaukee 6 M. R. R. Co., 12 Wis. 67; Clark v. Clark, 10 N. H. 380; Westervelt v. Gregg, 12 N. Y. 20'2; Thornton v. Turner, 11 Minn. 339; Ward v. Barnard, 1 Aik 121 ; Keith v. Ware, 2 Vt. 174 ; Lyman v. Mower, 2 Vt. 517 ; Kendall v. Dodge, 3 Vt. 360 ; State . Auditor, &c., 33 Mo. 287; Griffin v. Wilcox, 21 Ind. 370 ; Norris v. Doniphan, 4 Met. (Ky.) 385; Terrill v. Rankin, 2 Bush, 453; Wil- liar v. Baltimore, &c. Association, 45 Md. 646 ; Dunlap v. Toledo, &c. Ry. Co., 50 Mich. 470, 15 N. W. 555. The legislature cannot interfere witli the enforcement of a judgment by enactments subsequent to it. Strafford v. Sharon, 61 Vt. 126, 17 All. 793. An act of the Dominion Parlia- ment of Canada, assuming to authorize a railroad company to issue bonds in sub- stitution for others previously issued, and at a lower rate of interest, and declaring that the holders should be deemed to assent, was held void, because opposed to the fundamental principles of justice. Geb- hard v. Railroad Co., 17 Blatch. 416. An equitable title to lands, of which the legal title is in the State, is under the same constitutional protection that the legal title would be. Wright v. Hawkins, 28 Tex. 452. Where an individual is al- lowed to recover a sum as a penalty, the right may be taken away at any time be- fore judgment. Pierce v. Kimball, 9 Me. 54, 23 Am. Dec. 537 ; Oriental Bank v. Freeze, 18 Me. 109 ; Engle v. Schurtz, 1 Mich. 150; Confiscation Cases, 7 Wall. 454; Washburn v. Franklin, 35 Barb. 599; Welch v. Wadsworth, 30 Conn. 149; O'Kelly v. Athens Manuf. Co., 36 Ga.51 ; United States v. Tynen, 11 Wall. 88; Chicago & Alton R. R. Co. i?. Adler, 56 III. 344; Van Inwagen v. Chicago, 61 III. 31 ; Lyon v. Morris, 15 Ga. 480 ; post, p 547; but not after judgment. Dunham v. Anders, 128 N. C. 207, 38 S. E. 832.] See also Curtis v. Leavitt, 17 Barb. 309, and 15 N. Y. 9; Coles v. Madison County, Breese, 115, 12 Am. Dec. 161 ; Parmelee v. Lawrence, 48 III. 331 ; post, pp. 536, 537. The legislature may re- mit penalties accruing to a county. State v. Baltimore, &c. R. R. Co., 12 Gill & J. 399, 38 Am. Dec. 317. Whether claims arising in tort are protected against State legislation by the federal Constitution, see State v. New Orleans, 32 La. Ann. 709; Langford v. Fly, 7 Humph. 685; Parker v. Savage, 6 Lea, 406 ; Griffin v. Wilcox, 21 Ind. 370 ; Johnson v. Jones, 44 111. 142; Drehman v. Stifel, 41 Mo. 184; 8 Wall. 595. See cases ante, p. 411, note 3. The rule against disturbing vested rights does not preclude a decla- ration of a rule of law at variance with that made in other cases. Mobile Trans- portation Co. v. Mobile, U. S. , 23 Sup. Ct. Rep. 170.] 518 CONSTITUTIONAL LIMITATIONS. [CH. XI. property, and cannot be compelled to buy justice, or to submit to conditions not imposed upon his fellows as a means of obtaining it. 1 Nor can a party by his misconduct so forfeit a* right that it may be taken from him without judicial proceedings in which the forfeiture shall be declared in due form. Forfeitures of rights and property cannot be adjudged by legislative act, and confiscations without a judicial hearing after due notice would be void as not being due process of law. 2 Even Congress, it has been held, has no power to protect parties assuming to act under the authority of the general government, during the existence of a civil war, by depriving persons illegally arrested by them of all redress in the courts. 3 And if the legislature cannot confiscate 1 Thus, a person cannot be precluded by test oaths from maintaining suits. McFarland v. Butler, 8 Minn. 116; ante, p. 410,note. Before attacking a tax deed, payment of taxes and value of improve- ments may be required. Coats v. Hill, 41 Ark. 149. See Coonradt v. Myers, 31 Kan. 30,2 Pac. 858; Lombard v. Antioch College, 60 Wis. 459, 19 N. W. 367. But free recourse to the courts is denied, if a deposit of double the amount of the pur- chase-money and all taxes, &c., is required before suit. Lassiter v. Lee, 68 Ala. 287. See post, pp. 526, 527, note. 2 Griffin v. Mixon, 38 Miss. 424. See next note. Also Rison v. Far'r, 24 Ark. 161 ; Woodruff v. Scruggs, 27 Ark. 26 ; Hodgson v. Millward, 3 Grant's Cas. 406 ; leek v. Anderson, 57 Cal. 251, a case of forfeiting nets for illegal fishing ; Boor- man v. Santa Barbara, 65 Cal. 313, 4 Pac. 31, a case of assessing benefits upon lands for improvements without notice. But no constitutional principle is violated by a statute which allows judgment to be entered up against a defendant who has been served with process, unless within a certain number of days he files an affi- davit of merits. Hunt v. Lucas, 97 Mass. 404. Nor by an ordinance allowing a city, on default of the owner, to build a side- walk and charge the property with the expense, if when sued on the tax bill, he has his day in court. Kansas City v. Huling, 87 Mo. 203. An act subjecting a prisoner's property from the time of his arrest to a lien for the fine and costs, is valid. Silver Bow Co. v. Strombaugh, 9 Mont. 81, 22 Pac. 453. 8 Griffin v. Wilcox, 21 Ind. 370. In this case the act of Congress of March 3, 1863, which provided " that any order of the President or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts, to any action or prosecution, civil or criminal, pending or to be com- menced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress," was held to be uncon- stitutional. The same decision was made in Johnson v. Jones, 44 111. 142. It was said in the first of these cases that " this act was passed to deprive the citizens of all redress for illegal arrests and imprison- ment ; it was not needed as a protection for making such as are legal, because the common law gives ample protection for making legal arrests and imprisonments." And it may be added that those acts which are justified by military or martial law are equally legal with those justified by the common law. So in Hubbard v. Brainerd, 35 Conn. 563, it was decided that Congress could not take away a vested right to sue for and recover back an illegal tax which had been paid under protest to a collector of the national reve- nue. See also Bryan v. Walker, 64 N. C. 141. Nor can the right to have a void tax sale set aside be made conditional on the payment of the illegal tax. Wilson v. McKenna, 52 111. 43, and other cases cited, post, p. 528, note. The case of Nor- ris v. Doniphan, 4 Met. (Ky.) 385, may properly be cited in this connection. It was there held that the act of Congress of July 17, 1862, " to suppress insurrec- tion, to punish treason and rebellion, to seize and confiscate the property of CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 519 property or rights, neither can it authorize individuals to assume at their option powers of police, which they may exercise in the condemnation and sale of property offending against their regu- lations, or for the satisfaction of their charges and expenses in its management and control, rendered or incurred without the consent of its owners. 1 And a statute which authorizes a party rebels, and for other purposes," in so far as it undertook to authorize the confisca- tion of the property of citizens as a pun- ishment for treason and oilier crimes, by proceedings in rem in nny district in which the property might be, without present- ment and indictment by a grand jury, without arrest or summons of the owner, and upon such evidence of his guilt only as would be proof of any fact in admi- ralty or revenue cases, was unconsti- tutional and void, and therefore that Congress had no power to prohibit the State courts from giving the owners of property seized the relief they would be entitled to under the State laws. A statute which makes a constitutional right to vote depend upon an impossible con- dition is void. Davies v. McKeeby, 5 Nev. 369. See further, State v. Staten, 6 Cold. 233 ; Kison v. Farr, 24 Ark. lb'1 ; Hodgson v. Millward, 3 Grant, 406. Where no express power of removal is conferred on the executive, he cannot declare an office forfeited for misbeha- vior; but the forfeiture must be declared in judicial proceedings. Page v. Hardin, 8 B. Monr. 648; State r. Prichard, 36 N. J. 101. The legislature cannot declare the forfeiture of an official salary for mis- conduct. Ex parte Tully, 4 Ark. 220, 38 Am. Dec. 33. 1 The log-driving and booming cor- porations, which were authorized to be formed under a general law in Michigan, were empowered, whenever logs or lum- ber were put into navigable streams with- out adequate force and means provided for preventing obstructions, to take charge of the same, and cause it to be run, driven, boomed, &c., at the owner's expense ; and it gave them a lien on the same to satisfy all just and reasonable charges, with power to sell the property for those charges and for the expenses of sale, on notice, either served personally on the owner, or posted as therein provided. In Ames v. Port Huron Log-Driving and Booming Co., 11 Mich. 139, 147, it was held that the power which this law as- sumed to confer was in the nature of a public office ; and Campbell, J., says : " It is difficult to perceive by what process a public office can be obtained or exercised without either election or appointment. The powers of government are parcelled out by the Constitution, which certainly contemplates some official responsibility. Every officer not expressly exempted is required to take an oath of office as a preliminary to discharging his duties. It is absurd to suppose that any official power can exist in any person by his own assumption, or by the employment ofsome other private person ; and still more so to recognize in such an assumption a power of depriving individuals of their property. And it is plain that the exercise of such a power is an act in its nature public, and not private. The case, however, involves more than the assumption of control. The corporation, or rather its various agents, must of necessity determine when the case arises justifying interference; and having assumed possession it assesses its own charges ; and having assessed them, proceeds to sell the property seized to pay them, with the added expense of such sale. These proceedings are all ex parte, and are all proceedings in invitnm. Their validity must therefore be deter- mined by the rules applicable to such cases. Except in those cases where pro- ceedings to collect the public revenue may stand upon a peculiar footing of their own, it is an inflexible principle of constitutional right that no person can legally be divested of his property with- out remuneration, or against his will, unless he is allowed a hearing before an impartial tribunal, where he may contest the claim set up against him, and be al- lowed to meet it on the law and the facts. When his property is wanted in specie, for public purposes, there are methods assured to him whereby its value can be ascertained. Where a debt or penalty or forfeiture may be set up against him, the 520 CONSTITUTIONAL LIMITATIONS. [CH. XI. to seize the property of another, without process or warrant, and to sell it without notification to the owner, for the punishment of a private trespass, and in order to enforce a penalty against the owner, can find no justification in the Constitution. 1 Limitation Laws. Notwithstanding the protection which the law gives to vested rights, it is possible for a party to debar himself of the right to assert the same in the courts, by his own negligence or laches. If one who is dispossessed " be negligent for a long and unreason- able time, the law refuses afterwards to lend him any assistance to recover the possession merely, both to punish his neglect (nam leges vigilantibus, non dormientibus subveniunt), and also because it is presumed that the supposed wrong-doer has in such a length of time procured a legal title, otherwise he would sooner have been sued." 2 Statutes of limitation are passed which fix upon a determination of his liability becomes a judicial question ; and all judicial func- tions are required by the Constitution to be exercised by courts of justice, or judi- cial officers regularly chosen. He can only be reached through the forms of law upon a regular hearing, unless he has by contract referred the matter to another mode of determination." 1 A statute of New York authorized any person to take into his custody and possession any animal which might be trespassing upon his lands, and give no- tice of the seizure to a justice or commis- sioner of highways of the town, who should proceed to sell the animal after posting notice. From the proceeds of the sale, the officer was to retain his fees, pay the person taking up the animal fifty cents, and also compensation for keeping it, and the balance to the owner, if lie should claim it within a year. In Rock- well v. Nearing, 35 N. Y. 307, 308, Porter, J., says of this statute: "The legisla- ture has no authority either to deprive the citizen of his property for other than public purposes, or to authorize its seiz- ure without process or warrant, by per- sons other than the owner, for the mere punishment of a private trespass. So far as the act in question relates to animals trespassing on the premises of the captor, the proceedings it authorizes have not even the mocking semblance of due pro- cess of law. The seizure may be pri- vately made ; the party making it is permitted to conceal the property on his own premises ; he is protected, though the trespass was due to his own conniv- ance or neglect ; he is permitted to take what does not belong to him without notice to owner, though that owner is near and known ; he is allowed to sell, through the intervention of an officer, and without even the form of judicial pro- ceedings, an animal in which he has no interest by way either of title, mortgage, pledge, or lien ; and all to the end that he may receive compensation for detain- ing it without the consent of the owner, and a fee of fifty cents for his services as an informer. He levies without pro- cess, condemns without proof, and sells without execution." And he distinguishes these proceedings from those in distrain- ing cattle damage feasant, which are al- ways remedial, and under which the party is authorized to detain the property in pledge for the payment of his damages. See also opinion by Morgan, J., in the same case, pp. 314-317, and the opinions of the several judges in Wynehamer v. People, 13 N. Y. 395, 419, 434, and 468. Compare Campbell v. Evans, 45 N. Y. 356 ; Cook v. Gregg, 46 N. Y. 439 ; Grover v. Huckins, 26 Mich. 476 ; Campau v. Langley, 39 Mich. 451, 33 Am. Rep. 414. 2 3 Bl. Com. 188 ; Broom, Legal Max- ims, 857. CH. XL] PROTECTION BY " THE LAW OF THE LAND." 521 reasonable time within which a party is permitted to bring suit for the recovery of his rights, and which, on failure to do so, es- tablish a legal presumption against him that he has no rights in the premises. Such a statute is a statute of repose. 1 Every gov- ernment is under obligation to its citizens to afford them all need- ful legal remedies ; 2 but it is not bound to keep its courts open indefinitely for one who neglects or refuses to apply for redress until it may fairly be presumed that the means by which the other party might disprove his claim are lost in the lapse of time. 3 When the period prescribed by statute has once run, so as to cut off the remedy which one might have had for the recovery of property in the possession of another, the title to the property, irrespective of the original right, is regarded in the law as vested in the possessor, who is entitled to the same protection in respect to it which the owner is entitled to in other cases. A subsequent repeal of the limitation law could not be given a retroactive effect, so as to disturb this title.* It is vested as completely and perfectly, and is as safe from legislative interference as it would have been had it been perfected in the owner by grant, or by any species of assurance. 6 1 Such a statute was formerly con- strued with strictness, and the defence tinder it was looked upon as unconscion- able, and not favored ; but Mr. Justice Story has well said, it has often been matter of regret in modern times that the decisions had not proceeded upon princi- ples better adopted to carry into effect the real objects of the statute ; that in- stead of being viewed in an unfavorable light as an unjust and discreditable de- fence, it had not received such support as would have made it what it was intended to be, emphatically a statute of repose. It is a wise and beneficial law, not de- signed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale de- mands after the true state of the trans- action may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. Bell v. Morrison, 1 Pet. 351, 360. See Leffing- well v. Warren, 2 Black, 599; Toll v. Wright, 37 Mich. 93. 2 Call v. Hagger, 8 Mass. 423. 8 Beal v. Nason, 14 Me. 344 ; Bell v. Morrison, 1 Pet. 351 ; Stearns v. Gittings, 23 111. 387; State v. Jones, 21 Md. 432. See Biddle v. Hooven, 120 Pa. St. 221, 13 All. 927. 4 Brent v. Chapman, 5 Cranch, 358 ; Newby's Adm'rs v. Blakey, 3 H. & M. 67 ; Parish v. Eager, 15 Wis. 532; Bagg's Ap- peal, 43 Pa. St. 512 ; Lefflugwell v. War- ren, 2 Black, 599; Bicknell v. Comstock, 113 U. S. 149, 5 Sup. Ct. Rep. 399. See cases cited in next note. QA statute ex- tending the time for filing a bill of excep- tions is held to be invalid as applied to cases in which judgment was rendered before its enactment. Johnson v. Geh- baner, Ind. , 64 N. E. 855 J 5 Although there is controversy on this point, we consider the text fully war- ranted by the following cases : Holden v. James, 11 Mass. 396; Wright v. Oakley, 6 Met. 400; Lewis v. Webb, 3 Me. 326; Atkinson v. Dunlap, 50 Me. Ill ; Davis v. Minor, 2 Miss. 183, 28 Am. Dec. 325; Hicks v. Steigleman, 49 Miss. 377 ; Knox v. Cleveland, 13 Wis. 245 ; Sprecker v. Wakeley, 11 Wis. 482; Pleasants v. Rohrer, 17 Wis. 577 ; Moor v. Luce, 29 Pa. St. 260 ; Morton v. Sharkey, McCahon (Kan.), 113; McKinney v. Springer, 8 Blackf. 506; Bradford v. Brooks, 2 Aik. 284, 16 Am. Dec. 715 ; Stipp v. Brown, 2 Ind. 647 ; 522 CONSTITUTIONAL LIMITATIONS. [CH. XI. All limitation laws, however, must proceed on the theory that the party, by lapse of time and omissions on his part, has forfeited his right to assert his title in the law. 1 Where they relate to property, it seems not to be essential that the adverse claimant should be in actual possession; 2 but one who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another, for failure to bring suit against that other within a time specified to test the validity of a claim which the latter asserts, but takes no steps to enforce. It has consequently Briggs v. Hubbard, 19 Vt. 86 ; Wires v. Farr, 25 Vt. 41 ; Woart v. Winnick, 3 N. H. 473, 14 Am. Dec. 384; Roekport v. Walden, 54 N. H. 167, 20 Am. Rep. 131 ; Thompson v. Caldwell, 3 Lit. 137 ; Couch v. McKee, 6 Ark. 495 ; Reynolds v. Baker, 6 Cold. 221 ; Trim v. McPherson, 7 Cold. 15; Girdner v. Stephens, 1 Heisk. 280, 2 Am. Rep. 700; Yancy v. Yancy, 5 Heisk. 353, 13 Am. Rep. 5 ; Bradford v. Shine's Ex'rs, 13 Fla. 393, 7 Am. Rep. 239; Lock- hart v. Horn, 1 Woods, 628; Horbach v. Miller, 4 Neb. 31; Pitman v. Bump, 5Oreg. 17; Thompson v. Read, 41 Iowa, 48 ; Re- formed Church v. Schoolcraft, 65 N. Y. 134 ; Union Savings Bank v. Taber, 13 R. I. 683 ; McDuffee v. Sinnott, 119 111. 449, 10 N. E. 385. CMcEldowney v. Wyatt, 44 W. Va. 711, 30 S. E. 239, 45 L. R. A. 609, and note; Bd. of Edu. v. Blodgett, 155 111. 441, 40 N. E. 1025, 31 L. R. A. 70, 46 Am. St. 348 ; Lawrence v. Louisville, 96 Ky. 595, 29 S. W. 450, 27 L. R. A. 560, 49 Am. St. 309 ; Ireland v. Mackintosh, 22 Utah, 296, 61 Pac. 901.] In some cases an inclination has been manifested to distinguish between the case of prop- erty adversely possessed, and a claim not enforced ; and while it is conceded that the title to the property cannot be disturbed after the statute has run, it is held that the claim, under new legislation, may still be enforced ; the statute of limitations pertaining to the remedy only, and not barring the right. So it was held in Jones v. Jones, 18 Ala. 248, where the remedy on the claim in dispute had been barred by the statute of another State where the debtor then resided. [jSee post, 529, note ()] And see Bentinck v. Franklin, 38 Tex. 458. In Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. Rep. 209, a similar ruling was made, though against vigorous dissent. It was held that one has no property in the bar of the statute as a defence to a promise to pay a debt, and that such bar may be removed by a statute in such case after it has become complete. But this last-mentioned doc- trine is rejected in an opinion of much force by Dixon, Ch. J., in Brown v. Parker, 28 Wis. 21, 28. To like effect is Mc- Cracken Co. v. Merc. Trust Co., 84 Ky. 344, 1 S. W. 585. And see Roekport v. Walden, 54 N. H. 167, 20 Am. Rep. 131 ; McMerty v. Morrison, 62 Mo. 140; Good- man v. Munks, 8 Port. (Ala.) 84 ; Harri- son v. Stacy, 6 Rob. (La.) 15; Baker v. Stonebraker's Adm'r, 36 Mo. 338 ; Shelby v. Guy, 11 Wheat. 361. The law of the forum governs as to limitations. Barbour v. Erwin, 14 Lea, 716 ; Stirling v. Winter, 80 Mo. 141. See Chevrier v. Robert, 6 Mont. 319, 12 Pac. 702; Thompson v. Reed, 75 Me. 404. But the statute of limitations may be suspended for a period as to demands not already barred. Ward- law v. Buzzard, 15 Rich. 158 ; Caperton v. Martin, 4 W. Va. 138, 6 Am. Rep. 270; Bender v. Crawford, 33 Tex. 745, 7 Am. Rep. 270 ; Pearsall v. Kenan, 79 N. C. 472, 28 Am. Rep. 336. A class of cases may be excepted from the operation of the statute, though barred when such except- ing act was passed. Sturm v. Fleming, 31 W. Va. 701, 8 S. E. 263. [And see a peculiar case in Bates v. Cullum, 177 Pa. 633, 35 All. 861, 34 L. R. A. 440, 55 Am. St. 753.] The legislature may compel a county to pay a claim barred by'tlie gen- eral statute. Caldwell Co. v. Harbert, 68 Tex. 321, 4 S. W. 607. 1 Stearns v. Gittings, 23 111. 387, per Walker, J. ; Sturges r. Crowninshield, 4 Wheat. 122, 207, per Marshall, Ch. J. Pearce v. Patton, 7 B. Monr. 162 ; Griffin v. Mt-Kenzie, 7 Ga. 163 ; Colman v. Holmes, 44 Ala. 124. 2 Stearns v Gittings, 23 111. 387 ; Hill v. Kricke, 11 Wis. 442. CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 523 been held that a statute which, after a lapse of five years, makes a recorded deed purporting to be executed under a statutory power conclusive evidence of a good title, could not be valid as a lim- itation law against the original owner in possession of the land. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims. 1 All statutes of limitation, also, must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing right of claimants without affording this opportunity : if it should attempt to do so, it would be not a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reason- able time after they take effect for the commencement of suits upon existing causes of action ; 2 though what shall be considered 1 Groesbeck v. Seeley, 13 Mich. 329. In Case v. Dean, 16 Mich. 12, it was held that this statute could not be enforced as a limitation law in favor of tiie party in possession, inasmuch as it did not pro- ceed on the idea of limiting the time for bringing suit, but by a conclusive rule of evidence sought to pass over the property to the claimant under the statutory sale in all cases, irrespective of possession. See also Baker v. Kelly, 11 Minn. 480; Eldridge v. Kuehl, 27 Iowa, 160, 173; Monk v. Corbin, 58 Iowa, 503, 12 N. W. 671; Farrar v. Clark, 85 Ind. 449; Dingey v. Paxton, 60 Miss. 1038. The case of Leffingwell v. Warren, 2 Black, 599, is contra. That case follows Wisconsin de- cisions. In the leading case of Hill v. Kricke, 11 Wis. 442, the holder of the original title was not in possession ; and what was decided was that it was not necessary for the holder of the tax title to be in possession in order to claim the benefit of the statute ; ejectment against a claimant being permitted by law when the lands were unoccupied. See also Barrett v. Holmes, 102 U. S. 651. To stop the running of the statute it is not necessary that the owner should be in continuous possession. Smith v. Sherry, 54 Wis. 114, 11 N. W. 465. This circum- stance of possession or want of posses- sion in the person whose right is to be extinguished seems to us of vital import- ance. How can a man justly be held guilty of laches in not asserting claims to property, when he already possesses and enjoys the property ? The old maxim is, " That which was originally void can- not by mere lapse of time be made valid ; " and if a void claim by force of an act of limitation can ripen into a con- clusive title as against the owner in pos- session, the policy underlying that species of legislation must be something beyond what has been generally supposed. 2 So held of a statute which took ef- fect some months after its passage, and which, in its operation upon certain classes of cases, would have extinguished adverse claims unless asserted by suit before the act took effect. Price v. Hop- kin, 13 Mich. 318. See also Koshkonong v. Burton, 104 U. S. 668; King v. Bel- cher, 30 S. C. 381, 9 S. E. 359 ; People v. Turner, 117 N. Y. 227, 22 N. E. 1022; Call v. Hagger, 8 Mass. 423; Proprietors, &c. v. Laboree, 2 Me. 294 ; Society, &c. v. Wheeler, 2 Gall. 141; Blackford v. Peltier, 1 Blackf . 36 ; Thornton v. Turner, 11 Minn. 336; State v. Messenger, 27 Minn. 119, 6 N. W. 457 ; Osborn v. Jaines, 17 Wis. 573 ; Morton v. Sharkey, McCa- hon (Kan.), 113; Berry v. Ransdell, 4 Met. (Ky.) 292; Ludwig v. Stewart, 32 Mich. 27 ; Hart v. Bostwick, 14 Fla. 162. In the case last cited it was held that a statute which only allowed thirty days in which to bring action on an existing demand was unreasonable and void. And see what is said in Auld v Butcher, 2 Kan. 135. Compare Davidson v. Law- rence, 49 Ga. 335; Kimbro i>. Bank of Fulton, 49 Ga. 419. In Terry v. Ander- 524 CONSTITUTIONAL LIMITATIONS. [CH. XL a reasonable time must be settled by the judgment of the legisla- ture, and the courts will not inquire into the wisdom of its deci- sion in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice. 1 Alterations in the Rules of Evidence. It must also be evident that a right to have one's controversies determined by existing rules of evidence is not a vested right. These rules pertain to the remedies which the State provides for its citi- son, 95 U. S. 628, a statute which as to the demand sued upon limited the time to ten and a half months was held not unreasonable. In Krone v. Krone, 37 Mich. 308, the limitation which was supported was to one year where the general law gave six. In Pereless v. Watertown, 6 Biss. 79, Judge Hopkins, U. S. District Judge, decided that a limi- tation of one year for bringing suits on mu- nicipal securities of a class generally sold abroad was unreasonable and void. But a statute giving a new remedy against a railroad company for an injury, may limit to a short time, e. g. six months, the time for bringing suit. O'Bannon v. Louis- ville, &c. R. R. Co., 8 Bush, 348. So the remedy by suit against stockholders for corporate debts, it is held, may be lim- ited to one year. Adamson v. Davis, 47 Mo. 268. QSix months is not an unrea- sonably short time to which to limit the assertion of all then existing claims to lands hitherto sold for non-payment of taxes. Turner v. New York, 168 U. S. 90, 18 Sup. Ct. Rep. 38. Nine months is not an unreasonably short time to al- low for bringing suit upon a judgment rendered nearly twelve years before. Osborne v. Lindstrom, 9 N. D. 1, 81 N. W. 72, 46 L. R. A. 715. That statute must expressly provide a reasonable time to be open, after it goes into effect, and not merely after it is enacted, see Gilbert v. Ackerman, 159 N. Y. 118, 53 N.- E. 753, 45 L. R. A. 118 ; contra, Osborne w. Lindstrom, above.] It is always com- petent to extend the time for bringing suit before it has expired. Keith v. Keith, 26 Kan. 27. fJLawton v. Waite, 103 Wis.244, 79 N. W. 321, 45 L. R. A. 616.] A statute fixing a time for taking out a sheriff's deed after sale applies to a prior sale if a reasonable time is left. Ryhiner v. Frank, 105 111. 326. 2 Stearns v. Gittings, 23 111. 389 ; Call v. Hagger, 8 Mass. 423; Smith v. Mor- rison, 22 Pick. 430 ; Price v. Hopkin, 13 Mich. 318 ; De Moss v. Newton, 31 Ind. 219. [^Wheeler v. Jackson, 137 U. S. 245, 11 Sup. Ct. Rep. 76, and note in 34 L. ed. U. S. 659.3 But see Berry v. Ransdell, 4 Met. (Ky.) 292. It may be remarked here, that statutes of limitation do not apply to the State unless they so provide expressly. Gibson v. Choteau, 13 Wall. 92 ; State v. Piland, 81 Mo. 519 ; State v. School Dist., 34 Kan. 237, 8 Pac. 208. [Nor is the defence of laches or stale claim good as against a State or the United States. United States v. Dalles Military Road Co., 140 U. S. 699, 11 Sup. Ct. Rep. 988. But a cred- itor of the State cannot take advantage of the State's exemption where he seeks to subject debts due the State to the satisfaction of his claim by means of garnishment proceedings. Cressey v. Meyer, 138 U. S. 525, 11 Sup. Ct. Rep. 387.] And State limitation laws do not apply to the United States. United States v. Hoar, 2 Mas. 311; People v. Gilbert, 18 Johns. 227 ; Rabb v. Super- visors, 62 Miss. 589 ; United States v. Nashville, &c. Ry. Co., 118 U. S. 120, 6 Sup. Ct. Rep. 1006. [Although the United States may take advantage of them. Stanley v. Schwalhy, 147 U. S. 608, 13 Sup. Ct. Rep. 418.] Nor to suits for the infringement of patents. May v. Logan Co., 30 Fed. Rep. 250. And it lias been held that the right to maintain a public nuisance cannot be acquired under the statute. State v. Franklin Falls Co., 49 N. H. 240. CH. XI.] PROTECTION BY " THE LAW OF THE LA.ND." 525 zens ; and generally in legal contemplation they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting the remedy, they must therefore at all times be subject to modification and control by the legislature; 1 and the changes which are enacted may lawfully be made appli- cable to existing causes of action, even in those States in which retrospective laws are forbidden. For the law as changed would only prescribe rules for presenting the evidence in legal contro- versies in the future ; and it could not therefore be called retro- spective even though some of the controversies upon which it may act were in progress before. It has accordingly been held in New Hampshire that a statute which removed the disqualifica- tion of interest, and allowed parties in suits to testify, might law- fully apply to existing causes of action. 2 So may a statute which modifies the common-law rule excluding parol evidence to vary the terms of a written contract ; 3 and a statute making the pro- test of a promissory note evidence of the facts therein stated. 4 These and the like cases will sufficiently illustrate the general rule, that the whole subject is under the control of the legislature, which prescribes such rules for the trial and determination as well of existing as of future rights and controversies as in its judgment will most completely subserve the ends of justice. 5 A strong instance in illustration of legislative control over evi- dence will be found in the laws of some of the States in regard to conveyances of lands upon sales to satisfy delinquent taxes. In- dependent of special statutory rule on the subject, such convey- ances would not be evidence of title. They are executed under a statutory power ; and it devolves upon the claimant under them to show that the successive steps which under the statute lead to such conveyance have been taken. But it cannot be doubted that this rule may be so changed as to make a tax-deed prima facie evi- 1 Kendall v. Kingston, 5 Mass. 524 ; v. Southwick, 49 N. Y. 610. And see Ogden v. Saunders, 12 Wheat. 213, 349 ; Cowan v. McCutchen, 43 Miss. 207 ; Car- per Marshall, Ch. J. ; Fales v. Wads- others v. Hurly, 41 Miss. 71. The right worth, 23 Me. 653; Karney v. Paisley, to testify existing when a contract is 13 Iowa, 89 ; Commonwealth v. Williams, made may be taken away. Goodlett v. 6 Gray. 1 ; Hickox v. Tallman, 38 Barb. Kelly, 74 Ala. 213. 608; Webb v. Den, 17 How. 576; Pratt 8 Gibbs v. Gale, 7 Md. 76. v. Jones, 25 Vt. 303. [[Pennsylvania Co. * Fales v. Wadsworth, 23 Me. 553. v. McCann, 64 Ohio St. 10, 42 N. E. 768, 6 Per Marshall, Ch. J., in Ogden v. 31 L. R. A. 651.] See ante, p. 400, and Saunders, 12 Wheat. 213, 249; Webb v. note. Den, 17 How. 676 ; Delaplaine v. Cook, 7 2 Rich v. Flanders, 39 N. H. 304. A Wis. 44 ; Kendall v. Kingston, 6 Mass, very full and satisfactory examination of 624 ; Towler v, Chatterton, 6 Bing. 268 ; the whole subject will be found in this Himmelman v. Carpentier, 47 Cal. 42. case. To the same effect is Southwick 526 CONSTITUTIONAL LIMITATIONS. [CTI. XI. dence that all the proceedings have been regular, and that the pur- chaser has acquired under them a complete title. 1 The burden of proof is thereby changed from one party to the other; the legal presumption which the statute creates in favor of the purchaser being sufficient, in connection with the deed, to establish his case, unless it is overcome by countervailing testimony. Statutes mak- ing defective records evidence of valid conveyances are of a simi- lar nature ; and these usually, perhaps always, have reference to records before made, and provide for making them competent evi- dence where before they were merely void. 2 But they divest no title, and are not even retrospective in character. They merely establish what the legislature regards as a reasonable and just rule for the presentation by the parties of their rights before the courts in the future. But there are fixed bounds to the power of the legislature over this subject which cannot be exceeded. As to what shall be evi- dence, and which party shall assume the burden of proof in civil cases, (a) its authority is practically unrestricted, so long as its regulations are impartial and uniform ; but it has no power to es- tablish rules which, under pretence of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibit- ing his rights. Except in those cases which fall within the famil- iar doctrine of estoppel at the common law, or other cases resting upon the like reasons, it would not, we apprehend, be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it. In judicial investigations the law of the land requires an opportunity for a trial ; 8 and there can be no trial if only one party is suffered to produce his proofs. The most formal convey- ance may be a fraud or a forgery ; public officers may connive with rogues to rob the citizen of his property ; witnesses may testify or officers certify falsely, and records may be collusively manufac- tured for dishonest purposes ; and that legislation which would 1 Hand v. Ballou, 12 N. Y. 541 ; Forbes rule once established may be abolished, v. Halsey, 26 N.Y. 63; Delaplainer. Cook, even as to existing deeds. Hickox v. 1 Wis. 44 ; Allen v. Armstrong, 16 Iowa, Tallman, 38 Barb. 608 ; Strode v. Washer, 608 ; Adams v. Beale, 19 Iowa, 61 ; Am- 17 Oraff. 50, 16 Pac. 920 ; Gage v. Caraher, berg v. Rogers, 9 Mich. 332 ; Lumsden v. 125 111! 447, 17 N. E. 777. Cross, 10 Wis. 282 ; Lacey v. Davis, 4 2 See .Webb v. Den, 17 How. 576. Mich. 140; Wright v. Dunliam, 13 Mich. 8 Tift v. Griffin, 5 Ga. 185; Lenz v. 414 ; Abbott v. Lindenbower, 42 Mo. 162, Charlton, 23 Wis. 478; Conway v. Cable, 46 Mo. 291. QMarx v. Hanthorn, 148 37 111. 82 ; ante, p. 523, note ; post, pp. U. S. 172, 18 Sup. Ct. Rep. 608.] The 579-685, and notes. (a) And in criminal cases the doing of a certain act may be made prima : facie evidence of criminal intent. Meadowcroft v. People, 163 111. 66, 45 N. E. 303, 35 L. R. A. 176, 54 Am. St. 447.] CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 527 preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law. A statute, therefore, which should make a tax-deed conclusive evidence of a complete title, and preclude the owner of the original title from showing its invalidity, would he void, because being not a law regulating evi- dence, but an unconstitutional confiscation of property. 1 And a statute which should make the certificate or opinion of an officer conclusive evidence of the illegality of an existing contract would be equally nugatory ; 2 though perhaps if parties should enter into 1 Groesbeck v. Seeley, 13 Mich. 329 ; Case v. Dean, 16 Mich. 12; White . Flynn, 23 Ind. 46 ; Corbin v. Hill, 21 Iowa, 70; Abbott v. Lindenbower, 42 Mo. 162, 46 Mo. 291 ; Dingey v. Paxton, 60 Miss. 1038. ([Wilson v. Wood, 10 Okla. 279, 61 Pac. 1045.] And see the well-reasoned case of McCready v. Sexton, 29 Iowa, 356; Little Rock, &c. R. R. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55. Also Wright . Cradlebaugh, 3 Nev. 341. As to how far the legislature may make the tax- deed conclusive evidence that mere ir- regularities have not intervened in the proceedings, see Smith v. Cleveland, 17 Wis. 556; Allen v. Armstrong, 10 Iowa, 608. It may be conclusive as to matters not essential and jurisdictional. Matter of Lake, 40 La. Ann. 142, 3 So. 479; Ensign v. Barse, 107 N. Y. 329, 14 N. E. 400, 15 N. E. 401. Undoubtedly the leg- islature may dispense with mere matters of form in the proceedings as well after they have taken place as before ; but this is quite a different thing from mak- ing tax-deeds conclusive on points mate- rial to the interest of the property owner. See further, Wantlan v. White, 19 Ind. 470; People v. Mitchell, 45 Barb. 212; McCready v. Sexton, supra. It is not competent for the legislature to compel an owner of land to redeem it from a void tax sale as a condition on which he shall be allowed to assert his title against it. Conway v. Cable, 37 111. 82; Hart v. Hen- derson, 17 Mich. 218 ; Wilson t>. McKenna, 62 111. 43 ; Reed v. Tyler, 66 III. 288 ; Dean t;. Borchsenius, 30 Wis. 236. But it seems that if the tax purchaser has paid taxes and made improvements, the payment for these may be made a condition precedent to a suit in ejectment against him. Pope v. Macon, 23 Ark. 644. See cases ante. 618, note 1. In Wright v. Cradlebaugh, 3 Nev. 341, 349, Beatty, C. J., says: " We apprehend that it is beyond the power of the legislature to restrain a defendant in any suit from setting up a good defence to an action against him. The legislature could not directly take the property of A. to pay the taxes of B. Neither can it indirectly do so by depriv- ing A. of the right of setting up in his answer that his separate property has been jointly assessed with that of B., and asserting his right to pay his own taxes without being encumbered with those of B. . . . Due process of law not only requires that a party shall be properly brought into court, but that he shall have the opportunity when in court to establish any fact which, according to the usages of the common law or the pro- visions of the constitution, would be a protection to him or his property." See Taylor v. Miles, 6 Kan. 498, 7 Am. Rep. 658. ^Certificate of a public weigh-mas- ter cannot be made conclusive. Vega Steamship Co. v. Cons. Elevator Co., 75 Minn. 308, 77 N. W. 973, 43 L. R. A. 843.] 2 Young v. Beardsley, 11 Paige, 93. See also Howard Co. v. State, 120 Ind. 282, 22 N. E. 255. But a provision that six months after the passage of the act certain tax-deeds made on past sales should be conclusive evidence, has been upheld. People r. Turner, 117 N. Y. 227, 22 N. E. 1022. An act to authorize per- sons whose sheep are killed by dogs, to present their claim to the selectmen of the town for allowance and payment by the town, and giving the town after pay- ment an action against the owner of the dog for the amount so paid, is void, aa taking away trial by jury, and as author- 528 CONSTITUTIONAL LIMITATIONS. [CH. XI. a contract in view of such a statute then existing, its provisions might properly be regarded as assented to and incorporated in their contract, and therefore binding upon them. 1 Retrospective Laws, (a) Regarding the circumstances under which a man may be said to have a vested right to a defence against a demand made by an- other, it is somewhat difficult to lay down a comprehensive rule which the authorities will justify. It is certain that he who has satisfied a demand cannot have it revived against him, and he who has become released from a demand by the operation of the statute of limitations is equally protected. 2 In both cases the demand is gone, and to restore it would be to create a new contract for the parties, a thing quite beyond the power of legislation. 3 So he who was never bound, either legally or equitably, cannot have a demand created against him by mere legislative enactment.* But there are many cases in which, by existing laws, defences based upon mere informalities are allowed in suits upon contracts, or in respect to legal proceedings, in some of which a regard to sub- stantial justice would warrant the legislature in interfering to take away the defence if it possesses the power to do so. izing the selectmen to pass upon one's accident occurring to the cars, &c., irre- rights without giving him an opportunity spective of any wrong or negligence of to be heard. East Kingston v. Towle, 48 the company or its servants. Ohio & M. N. H. 67, 2 Am. Rep. 174. R. R. Co. v. Lackey, 78 111. 55. Absolute 1 See post, p. 581, note. liability, irrespective of negligence, can- 2 Ante, p. 621, note, and cases cited. not be imposed on a railroad company for 8 Albertson v. Landon, 42 Conn. 209. stock killing. Cateril v. Union Pac. Ry. < In Medford v. Learned, 16 Mass. 215, Co., 2 Idaho, 540, 21 Pac. 416, Bielenberg it was held that where a pauper had re- v. Montana N. Ry. Co., 8 Mont. 271, 20 ceived support from the parish, to which Pac. 314. In Atchison, &c. R. R. Co. v. by law he was entitled, a subsequent Baty, 6 Neb. 37, 29 Am. Rep 356, it is legislative act could not make him liable held incompetent to make a railroad corn- by suit to refund the cost of the support, pany liable to double the value of stock This case was approved and followed in accidentally injured or destroyed on the People v. Supervisors of Columbia, 43 railroad track. But the contrary was N. Y. 130. See ante, p. 618, and note; held in Missouri Pac. Ry. Co. v. Humes, Towle v. Eastern R. R., 18 N. H. 547. A 115 U. S. 512, 6 Sup. Ct. Rep. 110. In right of action may not be given against such cases attorney's fees may be allowed. a husband to a creditor of the wife upon Peoria, D. & E. Ry. Co v. Duggan, 109 her contract. Addoms v. Marx, 60 N. J. L. 111. 637. But see Wilder v. Chicago & 253, 12 Atl. 909. A railroad company W. M. Ry. Co., 70 Mich. 382, 38 N. W. cannot be made responsible for the cor- 289. See cases on above points, pout, 841, oner's inquest and burial of persons dying note 1. on the cars, or killed by collision or other (a) FJUpon retroactive laws, vested rights, &c., see note to 41 L. cd. 94. An inheri- tance-tax law, void for lack of provision for notice, may be corrected in this regard, and is then applicable to property not yet distributed, although the testator died before the law was amended. Ferry v. Campbell, 110 Iowa, 290, 81 N. W. 604, 50 L. R. A. 92.] CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 529 In regard to these cases, we think investigation of the authori- ties will show that a party has no vested right in a defence based upon an informality not affecting his substantial equities, (a) And this brings us to a particular examination of a class of statutes which is constantly coming under the consideration of the courts, and which are known as retrospective laws, by reason of their reaching back to and giving to a previous transaction some differ- ent legal effect from that which it had under the law when it took place. There are numerous cases which hold that retrospective laws are not obnoxious to constitutional objection, while in others they have been held to be void. The different decisions have been based upon diversities in the facts which make different princi- ples applicable. There is no doubt of the right of the legislature to pass statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws are not forbidden, eo nomine, by the State constitution, and provided further that no other objection exists to them than their ret- rospective character. 1 Nevertheless, legislation of this charac- ter is exceedingly liable to abuse ; and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively. 2 And some of the States have 1 Thornton v. McGrath, 1 Duvall, 349 ; 32 Me. 333 ; Atkinson v. Dunlop, 60 Me. Aldridge v. Railroad Co., 2 Stew. & Port. Ill; Rogers v. Greenbush, 58 Me. 395; 199, 23 Am. Dec. 307; State v. Squires, Guard v. Rowan, 3 111. 499; Garrett v. 26 Iowa, 340; Beach v. Walker, 6 Conn. Doe, 2 111. 335; Thompson v. Alexander, 190; Schenley v. Commonwealth, 36 Pa. 11 111. 54; Conway v. Cable, 37 111. 82; St. 57; Shonk v. Brown, 61 Pa. St. 320; In re Tuller, 79 111. 99; Knight v. Begole, Lane v. Nelson, 79 Pa. St. 407. [Miller 66 111. 122; McHaney v. Trustees of v. Hixson, 64 Ohio, 39, 59 N. E. 749.] Schools, 68 111. 140; Hatcher v. Toledo, 2 Dash v. Van Kleeck, 7 Johns. 477 ; &c. R. R. Co., 62 111. 477 ; Harrison v. 6 Am. Dec. 291; Sayre v. Wisner, 8 Metz, 17 Mich. 377; Thomas v. Collins, Wend. 661; Watkins v. Haight, 18 Johns. 68 Mich. 64, 24 N. W. 553; Danville v. 138 ; Bay v. Gage, 36 Barb. 447 ; Norris v. Pace, 25 Gratt. 1 ; Cumberland, &c. R. R. Beyea, 13 N. Y. 273 ; Drake v. Gilmore, Co. v. Washington Co. Court, 10 Bush, 62 N. Y. 389; Quackenbush v. Danks, 1 664; State v. Barbee, 3 Ind. 258; State Denio, 128; Hapgood v. Whitman, 13 v. Atwood, 11 Wis. 422; Bartruff v. Mass. 464; Medford v. Learned, 16 Mass. Remey, 15 Iowa, 257 ; Knoulton v. Reden- 215; Gerry v. Stoneham, 1 Allen, 319; baugh, 40 Iowa, 114; Allbyer v. State, Kelley v. Boston, &c. R. R. Co., 135 Mass. 10 Ohio St. 588; Colony v. Dublin, 32 448 ; Perkins v. Perkins, 7 Conn. 558, 18 N. H. 432 ; Ex parte Graham, 13 Rich. Am. Dec. 120; Plumb v. Sawyer, 21 277; Garrett v. Beaumont, 24 Miss. 377 { Conn. 351; Hubbard o. Brainerd, 35 Clark v. Baltimore, 29 Md. 277; Wil- Conn. 563; Sturgis v. Hull, 48 Vt. 302; liams v. Johnson, 30 Md. 500; State v. Brings v. Hubbard, 19 Vt. 86; Hastings The Auditor, 41 Mo. 25; State v. Fer- v. Lane, 15 Me. 134 ; Torrey v. Corliss, guson, 62 Mo. 77 ; Merwin v. Ballard, () [Danforth v. Groton Water Co., 178 Mass. 472, 59 N. E. 1033, 85 Am. St. 495. See D unbar v. Boston, & P. Ry. Co., 181 Mass. 383, 63 N. E. 916 J 34 530 CONSTITUTIONAL LIMITATIONS. [CH. XI. deemed it just and wise to forbid such laws altogether by their constitutions. 1 A retrospective statute curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds, unless expressly forbidden. Of this class are the stat- utes to cure irregularities in the assessment of property for taxation and the levy of taxes thereon; 2 irregularities in the 66 N. C. 398 ; Tyson v. School Directors, 51 Pa. St. 9; Haley v. Philadelphia, 68 Pa. St. 45, 8 Am. Ren. 158; Baldwin v. Newark, 38 N. J. 158 ; Warshung v. Hunt, 47 N. J. L. 256; McGeehan v. State Treasurer, 37 La. Ann. 156 ; State v. Pinckney, 22 S. C. 484; Richmond v. Supervisors, 83 Va. 204, 2 S. E. 26. This doctrine applies to amendments of statutes. Ely v. Holton, 15 N. Y. 595. If no vested right is disturbed, a retroactive effect may be given a statute, though the language does not render it necessary, provided such is the clear intent. People v. Spicer, 99 N. Y. 225, 1 N. E. 680. 1 See the provision in the Constitution of New Hampshire, considered in Woart t;. Winniek", 3 N. H. 473, 14 Am. Dec. 384; Clark v. Clark, 10 N. H. 380; Willard v. Harvey, 24 N. H. 344; Rich v. Flanders, 39 N. H. 304; and Simpson v. Savings Bank, 56 N. H. 466; and that in the Con- stitution of Texas, in De Cordova v. Gal- veston, 4 Tex. 470; and that in the Con- stitution of Missouri, in State v. Hernan, 70 Mo. 441 ; StaTe v. Greer, 78 Mo. 188. The provision covers only civil, not criminal cases. State v. Johnson, 81 Mo. 60. A statute, passed after a munici- pality has levied a tax, may annul it be- fore it becomes due and put the right to levy it in another body. State v. St. Louis, &c. Ry. Co., 79 Mo. 420. The Constitution of Ohio provides that " the General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; provided, however, that the General Assembly may, by general laws, authorize the courts to carry into effect the manifest intention of parties and officers, by cur- ing omissions, defects, and errors in in- struments and proceedings, arising out of their want of conformity with the laws of this State, and upon such terms as shall be just and equitable." Under this clause it was held competent for the General Assembly to pass an act authorizing the courts to correct mistakes in deeds of married women previously executed, whereby they were rendered ineffectual. Goshorn v. Purcell, 11 Ohio St. 641. An act for the payment of bounties for past services was held not retrospective, in State v. Richland, 20 Ohio St. 369. QAn act "for refunding taxes erroneously paid " is bad as applied to past transactions. Hamilton Co. Comm'rs v. Rasche, 60 Ohio St. 103, 33 N. E. 408, 19 L. R. A. 584-3 Under a provision in the Constitution of Tennessee that no retrospective law shall be passed, it has been held that a statute passed after a death cannot allow for the first time a recovery for the loss suffered by the children of deceased from the death. Railroad v. Pounds, 11 Lea, 127. But a law authorizing a bill to be filed by slaves, by their next friend, to emancipate them, although it applied to cases which arose before its passage, was held not a retrospective law within the meaning of this clause. Fisher's Negroes r. Dobbs, 6 Yerg. 119. So of a law making a judg- ment against the principal conclusive upon the surety. Pickett v. Boyd, 11 Lea, 498. See further, Society v. Wheeler, 2 Gall. 105 ; Officer v. Young, 5 Yerg. 320, 26 Am. Dec. 268. Under like provision in the Colorado Constitution a statute is void which allows a writ of error on a ( judgment in respect to which an appeal was barred. Willoughby v. George, 6 Col. 80. Legislation may be ordered to take immediate effect notwithstanding retrospective laws are forbidden. Thomas v. Scott, 23 La. Ann. 689. That the legislature cannot retrospec- tively construe statutes and bind parties thereby, see ante., p. 134 et seq. 2 Butler v. Toledo, 5 Ohio St. 225; Strauch v. Shoemaker, 1 W. & S. 166; CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 531 organization or elections of corporations ; l irregularities in the , votes or other action by municipal corporations, or the like, where a statutory power has failed of due and regular execution through the carelessness of officers, or other cause; 2 irregular proceed- ings in court, . Bailey, 1 Binn. 470 ; Underwood v. Lilly, 10 S. & R. 97 ; Barnet r. Barnet, 15 S. & R. 72, 16 Am. Dec. 516 ; Tate v. Stooltzfoos, 16 S. & R. 35, 16 Am. Dec. 546 ; Watson v. Mercer, 8 Pet. 88 ; Carpenter v. Pennsylvania, 17 How. 456; Davis v. State Bank, 7 Inl. 816; Estate of Sticknoth, 7 Nev. 227; Ferguson v. Williams, 68 Iowa, 717, 13 N. W.. 49; Johnson v. Taylor, 60 Tex. 860 ; Johnson v. Richardson, 44 Ark. 365 ; Goshorn v. Purcell, 11 Ohio St. 641. In the last case the court say : " The act of the married woman may, under the law, have been void and inoperative ; but in justice and equity it did not leave her right to the property untouched. She had capacity to do the act in a form pre- scribed by law for her protection. She intended to do the act in the prescribed form. She attempted to do it, and her attempt was received and acted on in good faith. A mistake subsequently dis- covered invalidates the act; justice and equity require that she should not take advantage of that mistake ; and she has therefore no just right to the property. She has no right to complain if the law which prescribed forms for her protec- tion shall interfere to prevent her reli- ance upon them to resist the demands of CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 539 to go beyond the mere confirmation of a contract, and to be at least technically objectionable, as depriving a party of property without an opportunity for trial, inasmuch as they proceed upon the assumption that the title still remained in the grantor, and that the healing act was required for the purpose of divesting him of it, and passing it over to the grantee. 1 Apparently, therefore, there would seem to be some force to the objection that such a statute deprives a party of vested rights. But the objection is more specious than sound. If all that is wanting to a valid con- tract or conveyance is the observance of some legal formality, the party may have a legal right to avoid it ; but this right is coupled with no equity, even though the case be such that no remedy could be afforded the other party in the courts. The right which the healing act takes away in such a case is the right in the party to avoid his contract, a naked legal right which it is usually unjust to insist upon, and which no constitutional pro- vision was ever designed to protect. 2 As the point is put by Chief Justice Parker of Massachusetts, a party cannot have a vested right to do wrong ; 3 or, as stated by the Supreme Court of New Jersey, " Laws curing defects which would otherwise oper- ate to frustrate what must be presumed to be the desire of the party affected, cannot be considered as taking away vested rights. Courts do not regard rights as vested contrary to the justice and equity of the case." 4 The operation of these cases, however, must be carefully re- stricted to the parties to the original contract, and to such other justice." Similar language is employed 8 Foster v. Essex Bank, 16 Mass. 245. in the Pennsylvania cases. See further, See also Lycoming v. Union, 15 Pa. St. Dentzel v. Waldie, 30 Cal. 138 ; Skel- 166, 170. There is no vested right in the lenger v. Smith, 1 Wash. Ter. 369. statutory defence that a contract was 1 This view has been taken in some made on Sunday. Berry v. Clary, 77 Me. similar cases. See Russell v. Rumsey, 482, 1 Atl. 360. 35 111. 362 ; Alabama, &c. Ins. Co. v. Boy- * State v. Newark, 25 N. J. 185, 197. kin, 38 Ala. 510; Orton v. Noonan, 23 Compare Blount v. Janesville, 31 Wis. Wis. 102; Dale v. Medcalf, 9 Pa. St. 108. 648 ; Brown v. New York, 63 N. Y. 239; 2 In Gibson v. Hibbard, 13 Mich. 214, Hughes v. Cannon, 2 Humph. 594. A a check, void at the time it was given for law merely taking away an unconscion- want of a revenue stamp, was held valid able defence is valid. Read v. Platts- after being stamped as permitted by a worth, 107 U. S. 568, 2 Sup. Ct. Rep. 108. subsequent act of Congress. A similar In New York, &c. R. R. Co. v. Van Horn, ruling was made in Harris v. Rutledge, 67 N. Y. 473, the right of the legislature 19 Iowa, 387. The case of State r. Nor- to validate a void contract was denied on wood, 12 Md. 195, is still stronger. The the ground that to validate it would be curative statute was passed after judg- to take the property of the contracting ment had been rendered against the right party without due process of law. The claimed under the defective instrument, cases which are contra are not examined and it was held that it must be applied in the opinion, or even referred to. by the appellate court. See post, p. 544. 540 CONSTITUTIONAL LIMITATIONS. [CH. XL persons as may have succeeded to their rights with no greater equities. A subsequent bona fide purchaser cannot be deprived of the property which he has acquired, by an act which retro- spectively deprives his grantor of the title which he held when the purchase was made. Conceding that the invalid deed may be made good as between the parties, yet if, while it remained invalid, and the grantor still retained the legal title to the land, a third person has purchased and received a conveyance, with no notice of any fact which should preclude his acquiring an equi- table as well as a legal title thereby, it would not be in the power of the legislature to so confirm the original deed as to divest him of the title he has acquired. The position of the case is alto- gether changed by this purchase. The legal title is no longer separated from equities, but in the hands of the second purchaser is united with an equity as strong as that which exists in favor of him who purchased first. Under such circumstances even the courts of equity must recognize the right of the second purchaser as best, and as entitled to the usual protection which the law accords to vested interests. 1 If, however, a grantor undertakes to convey more than he pos- sesses, or contrary to the conditions or qualifications which, for the benefit of others, are imposed upon his title, or in fraud of the rights of others whose representative or agent he is, so that the defect in his conveyance consists not in any want of due formal- ity, nor in any disability imposed by law, it is not in the power of the legislature to validate it retrospectively ; and we may add, also, that it would not have been competent to authorize it in advance. In such case the rights of others intervene, and they are entitled to protection on the same grounds, though for still stronger reasons, which exist in the case of the bona fide purchas- ers above referred to. 2 1 Brinton t. Seevers, 12 Iowa, 389; thy v. Hoffman. 23 Pa. St. 607; Bolton Southard v. Central R. R. Co., 26 N. J. v. Johns, 6 Pa. St. 145; State v. War- IB; Thompson v. Morgan, 6 Minn. 292; ren, 28 Md. 338. The cases here cited Meighen v. Strong, 6 Minn. 177 ; Norman must not be understood as establishing v. Heist, 6 W. & S. 171; Greenough v. any different principle from that laid Greenough, 11 Pa. St. 489 ; Les Bois v. down in Goshen v. Stonington, 4 Conn. Bramell, 4 How. 449 ; McCarthy v. Hoff- 209, where it was held competent to vali- man, 23 Pa. St. 507 ; Sherwood v. Flem- date a marriage, notwithstanding the ing, 25 Tex. 408 ; Wright v. Hawkins, 28 rights of third parties would be inciden- Tex. 452. See Fogg ?>. Holcomb, 64 tally affected. Rights of third parties are Iowa, 621, 21 N. W. Ill ; McGehee v. liable to be incidentally affected more or McKenzie, 43 Ark. 156. The legislature less in any case in which a defective con- cannot validate an invalid trust in a will, tract is made good ; but this is no more by act passed after the death of the tes- than might happen in enforcing a contract tator, and after title vested in the heirs, or decreeing a divorce. See post, p. 548. Hilliard v. Miller, 10 Pa. St. 326. See Also Tallman v. Janesville, 17 Wis. 71. Snyder v. Bull, 17 Pa. St. 64; McCar- 2 In Shonk v. Brown, 61 Pa. St. 327, CH. XI.] PKOTECTION BY " THE LAW OF THE LAND." 41 We have already referred to the case of contracts hy municipal corporations which, when made, were in excess of their authority, but subsequently have been confirmed by legislative action. If the contract is one which the legislature might originally have authorized, the case falls within the principle above laid down, and the right of the legislature to confirm ifc must be recognized. 1 the facts were that a married woman held property under a devise, with an express restraint upon her power to alienate. She nevertheless gave a deed of the same, and a legislative act was after- wards obtained to validate this deed. Held void. Agnew, J. : " Many cases have been cited to prove that this legis- lation is merely confirmatory and valid, beginning with Barnet v. Barnet, 15 S. & II. 72, and ending with Journeay v. Gib- son, 56 Pa. St. 57. The most of them are cases of the defective acknowledgments of deeds of married women. But there is a marked difference between them and this. In all of them there was a power to convey, and only a defect in the mode of its exercise. Here there is an absolute want of power to convey in any mode. In ordinary cases a married woman has both the title and the power to convey or to mortgage her estate, but is restricted merely in the manner of its exercise. This is a restriction it is competent for the legislature to remove, for the defect arises merely in the form of the proceed- ing, and not in any want of authority. Those to whom her estate descends, be- cause of the omission of a prescribed form, are really not injured by the vali- dation. It was in her power to cut them off, and in truth and conscience she did so, though she failed at law. They can- not complain, therefore, that the legisla- ture intervenes to do justice. But the case before us is different. [The grantor] had neither the right nor the power dur- ing coverture to cut off her heirs. She was forbidden by the law of the gift, which the donor impressed upon it to suit his own purposes. Her title was qualified to this extent. Having done an act she had no right to do, there was no moral obligation for the legislature to enforce. Her heirs have a right to say, . . . ' The legislature cannot take our estate and vest it in another who bought it with no- tice on the face of his title that our mother could not convey to him.' " " The true principle on which retrospective laws are supported was stated long ago by Duncan, J., in Underwood v. Lilly, 10 S. & K. 101 ; to wit, where they impair no contract, or disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, which do not vary exist- ing obligations contrary to their situation when entered into and when prosecuted." In White Mountains R. R. Co. v. White Mountains R. R. Co. of N. H., 50 N. H. 50, it was decided that the legislature had no power, as against non-assenting parties, to validate a fraudulent sale of corporate property. In Alter's Appeal, 67 Pa. St. 341, 5 Am. Rep. 433, the Supreme Court of Pennsylvania declared it incompe- tent for the legislature, after the death of a party, to empower the courts to cor- rect a mistake in his will which rendered it inoperative, the title having already passed to his heirs. But where it was not known that the decedent left heirs, it was held competent, as against the State, to cure defects in a will after the death, and thus prevent an escheat. Es- tate of Sticknoth, 7 Nev. 223. 1 See Shaw v. Norfolk R. R. Corp., 5 Gray, 162, in which it was held that the legislature might validate an unauthor- ized assignment of a franchise. Also May v. Holdridge, 23 Wis. 93, and cases cited, in which statutes authorizing the reassess- ment of irregular taxes were sustained. In this case, Paine, J., says : " This rule must of course be understood with its proper restrictions. The work for which the tax is sought to be assessed must be of such a character that the legislature is authorized to provide for it by taxation. The method adopted must be one liable to no constitutional objection. It must be such as the legislature might origi- nally have authorized had it seen fit. With these restrictions, where work of this character has been done, I think it competent for the legislature to supply a defect of authority in the original proceedings, to adopt and ratify the im- 542 CONSTITUTIONAL LIMITATIONS. [CH. XI. This principle is one which has very often been acted upon in the case of municipal subscriptions to works of internal improvement, where the original undertaking was without authority of law, and the authority given was conferred by statute retrospectively. 1 It has not usually been regarded as a circumstance of impor- tance in these cases, whether the enabling act was before or after the corporation had entered into the contract in question ; and if the legislature possesses that complete control over the subject of taxation by municipal corporations which has been declared in many cases, it is difficult to perceive how such a corporation can successfully contest the validity of a special statute, which only sanctions a contract previously made by the corporation, and which, though at the time ultra vires, was nevertheless for a pub- lic and local object, and compels its performance through an ex- ercise of the power of taxation. 2 provement, and provide for a reassess- ment of the tax to pay for it." And see Brewster v. Syracuse, 19 N. Y. 116 ; Kun- kle v. Franklin, 13 Minn. 127 ; Boyce v. Sinclair, 3 Bush, 261 ; Dean v. Borch- senius, 30 Wis. 236; Stuart v. Warren, 37 Conn. 225. A city ordinance may be validated retrospectively. Truchelut r. Charleston, 1 N. & McC. 227 ; Morris v. State, 62 Tex. 728. Otherwise where the city had no power to annex territory as it tried to do. Strosser v. Fort Wayne, 100 Ind. 443. 1 See, among other cases, McMillan v. Boyles, 6 Iowa, 304 ; Gould v. Sterling, 23 N. Y. 456; Thompson v. Lee County, 3 Wall. 327 ; Bridgeport v. Housatonic R. It. Co., 15 Conn. 475; Board of Com- missioners v. Bright, 18 Ind. 93; Gibbons v. Mobile, &c. R. R. Co., 36 Ala. 410. 2 In Hasbrouck v. Milwaukee, 13 Wis. 37, it appeared that the city of Milwaukee had been authorized to contract for the construction of a harbor, at an expense not to exceed $100,000. A contract was entered into by the city providing for a larger expenditure ; and a special legisla- tive act was afterwards obtained to ratify it. The court held that the subsequent legislative ratification was not sufficient, proprio viyore, and without evidence that such ratification was procured with the assent of the city, or had been subse- quently acted upon or confirmed by it, to make the contract obligatory upon the city. The court say, per Dixon, Cli. J. : " The question is, can the legislature, by recognizing the existence of a previously void contract, and authorizing its dis- charge by the city, or in any other way, coerce the city against its will into a per- formance of it, or does the law require the assent of the city, as well as of the legis- lature, in order to make the obligation binding and efficacious ? I must say that, in my opinion, the latter act, as well as the former, is necessary for that pur- pose, and that without it the obligation cannot be enforced. A contract void for want of capacity in one or both of the contracting parties to enter into it is as no contract ; it is as if no attempt at an agreement had ever been made. And to admit that tlie legislature, of its own choice, and against the wishes of either or botli of the contracting parties, can give it life and vigor, is to admit that it is within the scope of legislative authority to divest settled right of property, and to take the property of one individual or corporation and transfer it to another." This reasoning is of course to be under- stood in the light of the particular case before the court ; that is to say, a case in which the contract was to do something not within the ordinary functions of local government. See the case explained and defended by the same eminent judge in Mills v. Charlton, 29 Wis. 400. Compare Fisk v. Kenosha, 26 Wis. 23, 33 ; Knapp v. Grant, 27 Wis. 147 ; and Single v. Supervisors of Marathon, 38 Wis. 363, in which the right to validate a contract which might originally have been author- CH. XL] PROTECTION BY "THE LAW OF THE LAND." 543 Nor is it important in any of the cases to which we have re- ferred, that the legislative act which cures the irregularity, defect, or want of original authority, was passed after suit brought, in which such irregularity or defect became matter of importance. The bringing of suit vests in a party no right to a particular decision ; J and his case must be determined on the law as it stands, not when the suit was brought, but when the judgment is rendered. 2 It has been held that a statute allowing amend- ized was fully affirmed. And see Mar- shall v. Silliman, 61 111. 218, 225, opinion by Chief Justice Lawrence, in which, after referring to Harward v. St. Glair, &c. Drainage Co., 51 111. 130 ; People v. Mayor of Chicago, 51 111. 17 ; Hessler v. Drainage Com'rs, 53 111. 105 ; and Lovingston v. Wider, 53 111. 302, it is said, . " These cases show it to be the settled doctrine of this court, that, under the constitution of 1848, the legislature could not compel a municipal corporation to incur a debt for merely local purposes, against its own wishes, and this doctrine, as already re- marked, has received the sanction of express enactment in our existing consti- tution. That was the effect of the cura- tive act under consideration, and it was therefore void." The cases of Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N. Y. 143 ; Brewster v. Syracuse, 19 N. Y. 116; and Thomas v. Leland, 24 Wend. 65, especially, go much further than is necessary to sustain the text. See also Bartholomew v. Harwinton, 33 Conn. 408 ; People v. Mitchell, 35 N. Y. 551 ; Barbour v. Camden, 51 Me. 608 ; Weister v. Hade, 52 Pa. St. 474 ; State v. Sulli- van, 43 111. 412 ; Johnson v. Campbell, 49 111. 316. In Brewster v. Syracuse, parties had constructed a sewer for the city at a stipulated price which had been fully paid to them. The charter of the city forbade the payment of extra compen- sation to contractors in any case. The legislature afterwards passed an act em- powering the Common Council of Syra- cuse to assess, collect, and pay over the further sum of $600 in addition to the contract price ; and this act was held con- stitutional. In Thomas v. Leland, certain parties had given bond to the State, con- ditioned to pay into the treasury a cer- tain sum of money as an inducement to the State to connect the ChenaiiKO Canal with the Erie at Utica, instead of at Whitestown as originally contemplated, the sum mentioned being the increased expense in consequence of the change. Afterwards the legislature, deeming the debt thus contracted by individuals un- reasonably partial and onerous, passed an act, tha object of which was to levy the amount on the owners of real estate in Utica. This act seemed to the court unobjectionable. " The general purpose of raising the money by tax was to con- struct a canal, a public highway, which the legislature believed would be a benefit to the city of Utica as such ; and inde- pendently of the bond, the case is the ordinary one of local taxation to make or improve a highway. If such an act be otherwise constitutional, we do not see how the circumstance that a bond had before been given securing the same money can detract from its validity. Should an individual volunteer to secure a sum of money, in itself properly levi- able, by way of tax on a town or county, there would be nothing in the nature of such an arrangement which would pre- clude the legislature from resorting, by way of tax, to those who are primarily and more justly liable. Even should he pay the money, what is there in the con- stitution to preclude his being reimbursed by a tax ? " Here, it will be perceived, the corporation was compelled to assume an obligation which it had not even at- tempted to incur, but which private per- sons, for considerations which seemed to them sufficient, had taken upon their own shoulders. We have expressed doubts of the correctness of this decision, ante, p. 338, note, where a number of cases are cited, bearing upon the point. 1 Bacon v. Callender, 6 Mass. 303; Butler v. Palmer, 1 Hill, 324; Cowgill v. Long, 15 111. 202; Miller v. Graham, 17 Ohio St. 1 ; State v. Squires, 26 Iowa, 340 ; Patterson v. Philbrook, 9 Mass. 151. 2 Watson r. Mercer, 8 Pet. 88 ; Mather v. Chapman, 6 Conn. 54 ; People v. Su- 544 CONSTITUTIONAL LIMITATIONS. [CH. XL ments to indictments in criminal cases might constitutionally be applied to pending suits ; 1 and even in those States in which re- trospective laws are forbidden, a cause must be tried under the rules of evidence existing at the time of the trial, though differ- ent from those in force when the suit was commenced. 2 And if a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision is rendered. 3 But the healing statute must in all cases be confined to validat- ing acts which the legislature might previously have authorized. It cannot make good retrospectively acts or contracts which it pervisors, &c., 20 Mich. 95 ; Satterlee v. Matthewson, 10 S. & R. 169, and 2 Pet. 380; Excelsior Mfg. Co. v. Keyser, 62 Miss. 155; Phenix Ins. Co. v. Pollard, 63 Miss. 641 ; M'Lane v. Bonn, 70 Iowa, 752, 30 N. W. 478; Johnson v. Richardson, 44 Ark. 365. See cases, p. 539, note 1, ante. A statute giving a wife a right to recover in her own name for personal injury, may apply to a pending action. McLimans v. Lancaster, 63 Wis. 596, 23 N. W. 689, following Weldon v. Winslow, L. R. 13 Q. B. D. 784. But an act which is penal as to a plaintiff cannot apply to a pending suit. Powers v. Wright, 62 Miss. 35. After an appeal hond was signed by an attorney, the court held such bonds void, and then the legislature attempted to validate all existing bonds so signed. This was held bad as against the appellee in the case. Andrews v. Beane, 15 R. I. 451, 8 Atl. 540. See Thweatt v. Bank, 81 Ky. 1. [^Judgment correct when ren- dered on account of invalidity of law under which action was brought, may be reversed upon appeal when in the interim the statute has been corrected by amend- ment providing for proper notice to par- ties interested. Ferry v. Campbell, 110 Iowa, 290, 81 N. W. 604, 50 L. R. A. 92.] 1 State v. Manning, 14 Tex. 402. 2 Rich t-. Flanders,' 39 N. H. 304. 8 State v. Norwood, 12 Md. 195. Con- tra, Wright t>. Graham, 42 Ark. 140. In Yeaton v. United States, 5Cranch, 281, a vessel had been condemned in admiralty, and pending an appeal the act under which the condemnation was declared was repealed. The court held that the cause must be considered as if no sentence had been pronounced ; and if no sentence had been pronounced, then, after the expira- tion or repeal of the law, no penalty could be enforced or punishment inflicted for a violation of the law committed while it was in force, unless some special provi- sion of statute was made lor that pur- pose. See also Schooner Rachel v. United States, 6 Cranch, 329 ; Commonwealth v. Duaue, 1 Binney, 601 ; United States v. Passmore, 4 Dall. 372 ; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v Kimball, 21 Pick. 373; Hartung v. People, 22 N. Y. 95; Union Iron Co. v. Pierce, 4 Biss. 327 ; Norris v. Crocker, 13 How. 429; Insurance Co. v. Ritchie, 5 Wall. 541 ; Ex parte McCardle, 7 Wall. 506; United States v. Tynen, 11 Wall. 88; Engle v. Shurts, 1 Mich. 150. In the McCardle Case the appellate jurisdiction of the United States Supreme Court in certain cases was taken away while a case was pending. Per Chase, Ch. J. : " Jurisdiction is power to declare the law ; and when it ceases to exist, the only func- tion remaining to the court is that of an- nouncing the fact and dismissing the cause. And this is not less clear upon authority than upon principle." But where a State has jurisdiction of a sub- ject, e. g. pilotage, until Congress estab- lishes regulations, and penalties are incurred under a State act, and after- wards Congress legislates on the subject, this does not repeal, but only suspends the State law ; and a penalty previously incurred may still be collected. Sturgis v. Spofford, 45 N. Y. 446. And see Peo- ple v. Hobson, 48 Mich. 27, 11 N. W. 771. L~Refusal to pay alimony may be by statute made a contempt of court, pun- ishable by imprisonment, and as this affects the remedy only it may operate retrospectively. Judd v. Judd, 125 Mich. 228, 84 N. W. 134.J CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 545 had and could have no power to permit or sanction in advance. 1 There lies before us at this time a volume of statutes of one of the States, in which are contained acts declaring certain tax-rolls valid and effectual, notwithstanding the following irregularities and imperfections : a failure in the supervisor to carry out sepa- rately, opposite each parcel of land on the roll, the taxes charged upon such parcel, as required by law ; a failure in the supervisor to sign the certificate attached to the roll ; a failure in the voters of the township to designate, as required by law, in a certain vote by which they had assumed the payment of bounty moneys, whether they should be raised by tax or loan ; corrections made in the roll by the supervisor after it had been delivered to the col- lector ; the including by the supervisor of a sum to be raised for township purposes without the previous vote of the township, as required by law ; adding to the roll a sum to be raised which could not lawfully be levied by taxation without legislative au- thority ; the failure of the supervisor to make out the roll within the time required by law ; and the accidental omission of a parcel of land which should have been embraced by the roll. In each of these cases, except the last, the act required by law, and which failed to be performed, might by previous legislation have been dispensed with ; and perhaps in the last case there might be question whether the roll was rendered invalid by the omission referred to, and, if it was, whether the subsequent act could legal- ize it. 2 But if township officers should assume to do acts under the power of taxation which could not lawfully be justified as an exercise of that power, no subsequent legislation could make them good. If, for instance, a part of the property in a taxing district should be assessed at one rate, and a part at another, for a burden resting equally upon all, there would be no such appor- tionment as is essential to taxation, and the roll would be beyond the reach of curative legislation. 3 And if persons or property 1 Kimball i\ Rosendale, 42 Wis. 407 ; see Allen v. Armstrong, 16 Iowa, 508 ; Maxwell v. Goetschius, 40 N. J. 383, Smith v. Cleveland, 17 Wis. 656, and Ab- 29 Am. Rep. 242. bott v. Lindenbower, 42 Mo. 162. In 2 See Weeks v. Milwaukee, 10 Wis. Tallman v. Janesville, 17 Wis. 71, thecon- 242 ; Dean r. Gleason, 16 Wis. 1 ; post, p. stitutional authority of the legislature to 742, note. cause an irregular tax to be reassessed in 8 This is clearly shown by McKinstry, a subsequent year, where the rights of J., in People v. Lynch, 51 Cal. 15. And bona fide purchasers had intervened, was see Billings v. Detten, 15 111. 218, Con way disputed; but the court sustained the v. Cable, 37 111. 82, and Thames Manufac- authority as "a salutary and highly bene- turing Co. v. Lathrop, 7 Conn. 550, for ficial feature of our systems of taxation," cases where curative statutes were held and "not to be abandoned because in not effectual to reach defects in tax pro- some instances it produces individual ceedings. As to what defects may or may hardships." Certainly bona fide purchas- not be cured by subsequent legislation, ers, as between themselves and the State, 35 546 CONSTITUTIONAL LIMITATIONS. [OH. XL should be assessed for taxation in a district which did not include them, not only would the assessment be invalid, but a healing statute would be ineffectual to charge them with the burden. 1 In such a case there would be a fatal want of jurisdiction ; and even in judicial proceedings, if there was originally a failure of jurisdiction, no subsequent law can confer it. 2 Statutory Privileges and Exemptions. The citizen has no vested right in statutory privileges and ex- emptions. Among these may be mentioned, exemptions from the performance of public duties upon juries, or in the militia, and the like ; exemptions of property or person from assessment for the purposes of taxation ; exemptions of property from being seized on attachment, or execution, or for the payment of taxes ; exemption from highway labor, and the like. All these rest upon reasons of public policy, and the laws are changed as the varying circumstances seem to require. The State demands the perform- ance of military duty by those persons only who are within cer- tain specified ages ; but if, in the opinion of the legislature, the public exigencies should demand military service from all other persons capable of bearing arms, the privilege of exemption might be recalled, without violation of any constitutional principle. must take their purchases subject to all 111. 226, where a statute came under con- public burdens justly resting upon them, sideration which assumed to make valid The case of Conway v. Cable is instruc- certain proceedings in court which were live. It was there held, among other void for want of jurisdiction of the per- things, and very justly, as we think, sons concerned. A void appeal bond that the legislature could not make good cannot be validated so as to give to an a tax sale effected by fraudulent combi- appellate court jurisdiction which has nation between the officers and the pur- failed by reason of such defective bond, chasers. The general rule is undoubted, Andrews v. Beane, 15 R. I. 451, 8 Atl. that a sale for illegal taxes cannot be val- 540. See also Israel v. Arthur, 7 Col. 5, idated. Silsbee v. Stockel, 44 Mich. 561, 1 Pac. 438 ; Yeatman v. Day, 79 Ky. 186 ; 7 N. W. 160, 367 ; Brady v. King, 53 Cal. Roche v. Waters, 72 Md. 264, 19 Atl. 44; Harper v. Rowe, 53 Cal. 233. In 535; Denny v. Mattoon, 2 Allen, 881; Miller v. Graham, 17 Ohio St. 1, a statute Nelson r. Rountree, 23 Wis. 367 ; Griffin's validating certain ditch assessments was Ex'r v. Cunningham, 20 Gratt. 31, 109, per sustained, notwithstanding the defects Joi/nes, J. ; Richards v. Rote, 68 Pa. St. covered by it were not mere irregulari- 248 ; State v. Doherty, 60 Me. 604 ; Pryor ties ; but that statute gave the parties an v. Downey, 50 Cal. 388 ; 19 Am. Rep. 656. opportunity to be heard as to these If land is assessed for taxation in a town defects. where it does not lie, it is not competent 1 See Wells v. Weston, 22 Mo. 384; to make the tax-deed evidence of title. People v. Supervisors of Chenango, 11 Smith v. Sherry, 54 Wis. 114, 11 N. W. N. Y. 563; Hughey's Lessee v. Horrel, 2 465. Compare Walpole v. Elliott, 18 Ind. Ohio, 231 ; Covington v. Southgate, 15 B. 258, in which there was not a failure of Monr. 491 ; Morford v. Unger, 8 Iowa, 82; jurisdiction, but an irregular exercise post, pp. 718-721. of it. 2 So held in McDaniel v. Correll, 19 CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 547 The fact that a party had passed the legal age under an existing law, and performed the service demanded by it, could not protect him against further calls, when public policy or public necessity was thought to require them. 1 In like manner, exemptions from taxation are always subject to recall, when they have been granted merely as a privilege, and not for a consideration received by the public ; as in the case of exemption of buildings for relig- ious or educational purposes, and the like. 2 So, also, are exemp- tions of property from execution. 3 So, a license to carry on a particular trade for a specified period, may be recalled before the period has elapsed. 4 So, as before stated, a penalty given by statute may be taken away by statute at any time before judg- ment is recovered. 5 So, an offered bounty may be recalled, except as to so much as was actually earned while the offer was a con- tinuing one ; and the fact that a party has purchased property or incurred expenses in preparation for earning the bounty cannot preclude the recall. 6 A franchise granted by the State with a reservation of a right of repeal must be regarded as a mere priv- ilege while it is suffered to continue, but the legislature may take it away at any time, and the grantees must rely for the perpe- tuity and integrity of the franchises granted to them solely upon 1 Commonwealth v. Bird, 12 Mass. 443; Swindle v. Brooks, 84 Ga. 67 ; Mayer, Ex parte, 27 Tex. 715; Bragg v. People, 78 111. 828; Moore v. Cass, 10 Kan. 288; Murphy v. People, 37 111. 447; State v. Miller, 2 Blackf. 35; State v. Quimby, 51 Me. 395; State v. Wright, 53 Me. 328; State v. Forshner, 43 N. H. 89 ; Dunlap v. State, 76 Ala. 460; Ex parte Thomp- son, 20 Fla. 887. And see Dale v. The Governor, 3 Stew. 387. 2 See ante, pp. 395, 396, and notes. All the cases concede the right in the legislature to recall an exemption from taxation, when not resting upon contract. The subject was considered in People v. Roper, 35 N. Y. 629, in which it was de- cided that a limited immunity from taxa- tion, tendered to the members of volun- tary military companies, might be recalled at any time. It was held not to be a con- tract, but " only an expression of the legislative will for the time being, in a matter of mere municipal regulation." And see Christ Church v. Philadelphia, 24 How. 300; Lord v. Litchfield, 36 Conn. 116; East Saginaw Salt Mfg. Co. v. East Saginaw, 19 Mich. 259; s. c. in error, 13 Wall. 373. [[Citizens' Saving Bank v. Owensboro, 173 U S. \3\U,<$up. Ct. Rep. 530, 571.] WVAfcS 3 Bull v. Conroe, 13 'v-'W* * See ante, pp. 399-4 5 Oriental Bank v. Freeze, 18 Me. 109. The statute authorized the plaintiff, su- ing for a breach of a prison bond, to re- cover the amount of his judgment and costs. This was regarded by the court as in the nature of a penalty ; and it was therefore held competent for the legisla- ture, even after breach, to so modify the law as to limit the plaintiff's recovery to his actual damages. See ante, p. 516, note 2, and cases cited. 6 East Saginaw Salt Mfg. Co. v. East Saginaw, 19 Mich. 259, 2 Am. Rep, 82, and 13 Wall. 373. But as to so much of the bounty as was actually earned before the change in the law, the party earning it has a vested right which can- not be taken away. People v. Auditor- General, 9 Mich. 327. And it has been held competent in changing a country seat to provide by law for compensation, through taxation, to the residents of the old site. Wilkinson i: Cheatham, 43 Ga, 258. 548 CONSTITUTIONAL LIMITATIONS. [CH. XL the faith of the sovereign grantor. 1 A statutory right to have cases reviewed on appeal may be taken away, by a repeal of the statute, even as to causes which had been previously appealed. 2 A mill-dam act which confers upon the person erecting a dam the right to maintain it, and flow the lands of private owners on pay- ing such compensation as should be assessed for the injury done, may be repealed even as to dams previously erected. 3 These illustrations must suffice under the present head. Consequential Injuries. It is a general rule that no one has a vested right to be protected against consequential injuries arising from a proper exercise of rights by others. 4 This rule is peculiarly applicable to injuries resulting from the exercise of public powers. Under the police power the State sometimes destroys, for the time being, and per- haps permanently, the value to the owner of his property, without affording him any redress. The construction of a new way or the discontinuance of an old one may very seriously affect the value of adjacent property ; the removal of a county or State capital will often reduce very largely the value of all the real estate of the place from whence it was removed ; but in neither case can the parties whose interests would be injuriously affected, enjoin the act or claim compensation from the public. 5 The general laws of the State may be so changed as to transfer, from one town to another, the obligation to support certain individuals, who may become entitled to support as paupers, and the constitution will present no impediment. 6 The granting of a charter to a new corporation may sometimes render valueless the franchise of an existing corporation ; but unless the State by contract has pre- cluded itself from such new grant, the incidental injury can con- 1 Per Smith, J., in Pratt . Brown, 3 to the other party for the permanent Wis. 603, 611. See post, pp. 837-840. flowing of his land a compensation as- 2 Ex parte McCardle, 7 Wall. 506. sessed under the statute, it might be See State v. Slevin, 16 Mo. App. 541. otherwise. And that the right to an appeal, if not * For the doctrine damnum absque fn- expressly given by constitution, need not juria, see Broom's Maxims, 185; Sedg- be provided for. Kundinger v. Saginaw, wick on Damages, 30, 112; Cooley on 69 Mich. 325, 26 N. W. 634; Minneapolis Torts, 93. v. Wilkin, 30 Minn. 140, 14 N. W. 581; 5 See ante, p 299, and cases cited in La Croix v. Co. Com'rs, 50 Conn. 321. note. Also Wilkinson v. Cheatham, 43 Time may be shortened during a period Ga. 258; Fearing t;. Irwin, 55 N. Y. 486; of disability, in which one may bring an Newton v. Commissioners, 100 U. S. 548; appeal after such disability is removed. Howes v. Crush, 131 Mass. 207; Heller v. Rupert v. Martz, 116 Ind. 72, 18 N. E. 381. Atchison, &c. R. R. Co., 28 Kan. 625. 3 Pratt v. Brown, 3 Wis. 603. But if 6 Goshen v. Richmond, 4 Allen, 458; the party maintaining the dam had paid Bridgewater v. Plymouth, 97 Mass. 382. CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 549 stitute no obstacle. 1 But indeed it seems idle to specify instances, inasmuch as all changes in the laws of the State are liable to in- flict incidental injury upon individuals, and, if every citizen was entitled to remuneration for such injury, the most beneficial and necessary changes in the law might be found impracticable of accomplishment. We have now endeavored to indicate what are and what are not to be regarded as vested rights, and to classify the cases in which individual interests, in possession or expectancy, are protected against being divested by the direct interposition of legislative authority. Some other cases may now be considered, in which legislation has endeavored to control parties as to the manner in which they should make use of their property, or has permitted claims to be created against it through the action of other parties against the will of the owners. We do not allude now to the con- trol which the State may possess through an exercise of the police power, a power which is merely one of regulation with a view to the best interests and the most complete enjoyment of rights by all, but to that which, under a claim of State policy, and without any reference to wrongful act or omission by the owner, would exercise a supervision over his enjoyment of undoubted rights, or which, in some cases, would compel him to recognize and satisfy demands upon his property which have been created without his assent. In former times sumptuary laws were sometimes passed, and they were even deemed essential in republics to restrain the lux- ury so fatal to that species of government. 2 But the ideas \vhicli 1 The State of Massachusetts granted resulting injury was incidental to the ex- to a corporation the right to construct a ercise of an undoubted right by the State, toll-bridge across the Charles River, under and as all the vested rights of the first a charter which was to continue for forty corporation still remained, though re- years, afterwards extended to seventy, at duced in value by the new grant, the the end of which period the bridge was case was one of damage without legal to become the property of the Common- injury. Charles River Bridge v. Warren wealth. During the term the corpora- Bridge, 7 Pick. 344, and 11 Pet. 420. tion was to pay 200/. annually to Harvard See also Turnpike Co. v. State, 3 Wall. College. Forty-two years after the bridge 210; Piscataqua Bridge v. New Hamp- was opened for passengers, the State in- shire Bridge, 7 N. H. 35; Hollister v. corporated a company for the purpose of Union Co , 9 Conn. 436, 25 Am. Dec. erecting another bridge over the same 86 ; English v. New Haven, &c. Co., 32 river, a short distance only from the first, Conn. 240; Binghamton Bridge Case, 27 and which would accommodate the same N. Y. 87, and 3 Wall. 51 ; Lehigh Valley passengers. The necessary effect would Water Co.'s App , 102 Pa. St. 515; Rock- be to decrease greatly the value of the land Water Co. v. Camden & R. W. Co., first franchise, if not to render it alto- 80 Me. 544, 15 Atl. 785; Montjoy v. gether worthless. But the first charter Pillow, 64 Miss. 705, 2 So. 108. See was not exclusive in its terms ; no contract cases cited ante, p. 296, note 1. was violated in granting the second ; the 2 Montesquieu's Spirit of the Laws, 550 CONSTITUTIONAL LIMITATIONS. [CH. XL suggested such laws are now exploded utterly, and no one would seriously attempt to justify them in the present age. The right of every man to do what he will with .his own, not interfering with the reciprocal right of others, is accepted among the funda- mentals of our law. The instances of attempt to interfere with it have not been numerous since the early coloni'al days. A notable instance of an attempt to substitute the legislative judgment for that of the proprietor, regarding the manner in which lie should use and employ his property, may be mentioned. In the State of Kentucky at an early day an act was passed to compel the owners of wild lands to make certain improvements upon them within a specified time, and it declared them forfeited to the State in case the statute was not complied with. It would be difficult to frame, consistently with the general principles of free government, a plausible argument in support of such a statute. It was not an exercise of the right of eminent domain, for that appropriates property to some specific public use on making compensation. It was not taxation, for that is simply an apportionment of the bur- den of supporting the government. It was not a police regulation, for that could not go beyond preventing an improper use of the land with reference to the due exercise of rights and enjoyment of legal privileges by others. It was purely and simply a law to for- feit a man's property, if he failed to improve it according to a standard which the legislature had prescribed. To such a power, if possessed by the government, there could be no limit but the legislative discretion ; and if defensible on principle, then a law which should authorize the officer to enter a man's dwelling and seize and confiscate his furniture if it fell below, or his food if it exceeded an established legal standard, would be equally so. But in a free country such laws when mentioned are condemned instinctively. 1 But cases may sometimes present themselves in which improve- ments actually made by one man upon the land of another, even though against the will of the owner, ought on grounds of strict B. 7. Such laws, though common in est impertinence and presumption in some countries, have never been numer- kings and ministers to pretend to watch ous in England. See references to the over the economy of private people, legislation of this character, 4 Bl. Com. and to restrain their expense, either by 170. Some of these statutes prescribed sumptuary laws, or by prohibiting the the number of courses permissible at importation of foreign luxuries." Wealth dinner or other meal, while others were of Nations, B. 2, c. 3. As to prohibitory directed to restraining extravagance in Liquor Laws, see post, pp. 845-851. dress. See Hallam, Mid. Ages, c. 9, pt. J The Kentucky statute referred to II.; and as to Roman sumptuary laws, was declared unconstitutional in Gaines Encyc. Metrop. Vol. X. p. 110. Adam r. Buford, 1 Dana, 484. See also Violett Smith said of such laws, " It is the high- v. Violett, 2 Da.ua., 325. CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 551 equity to constitute a charge upon the land improved. If they have been made in good faith, and under a reasonable expectation on the part of the person making them, that he was to reap the benefit of them, and if the owner has stood by and suffered them to be made, but afterwards has recovered the land and appropri- ated the improvements, it would seem that there must exist against him at least a strong equitable claim for reimbursement of the expenditures, and perhaps no sufficient reason why pro- vision should not be made by law for their recovery. Accordingly in the several States statutes will be found which undertake to provide for these equitable claims. These statutes are commonly known as betterment laws ; and as an illustration of the whole class, we give the substance of that adopted in Ver- mont. It provided that after recovery in ejectment, where he or those through whom he claimed had purchased or taken a lease of the land, supposing at the time that the title purchased was good, or the lease valid to convey and secure the title and interest therein expressed, the defendant should be entitled to recover of the plaintiff the full value of the improvements made by him or by those through whom he claimed, to be assessed by jury, and to be enforced against the land, and not otherwise. The value was ascertained by estimating the increased value of the land in con- sequence of the improvements ; but the plaintiff at his election might have the value of the land without the improvements as- sessed, and the defendant should purchase the same at that price within four years, or lose the benefit of his claim for improve- ments. But the benefit of the law was not given to one who had entered on land by virtue of a contract with the owner, unless it should appear that the owner had failed to fulfil such contract on his part. 1 This statute, and similar ones which preceded it, have been adjudged constitutional by the Supreme Court of Vermont, and have frequently been enforced. In an early case the court ex- plained the principle of these statutes as follows : " The action for betterments, as they are termed in the statute, is given on the supposition that the legal title is found to be in the plaintiff in ejectment, and is intended to secure to the defendant the fruit of his labor, and to the plaintiff all that he is justly entitled to, which is his land in as good a situation as it would have been if no labor had been bestowed thereon. The statute is highly equi- table in all its provisions, and would do exact justice if the value either of the improvements or of the land was always correctly estimated. The principles upon which it is founded are taken 1 Revised Statutes of Vermont of 1839, p. 216. 552 CONSTITUTIONAL LIMITATIONS. [cH. XI. from the civil law, where ample provision was made for reimburs- ing to the bona fide possessor the expense of his improvements, if lie was removed from his possession by the legal owner. It gives to the possessor not the expense which he has laid out on the land, but the amount which he has increased the value of the land by his betterments thereon ; or, in other words, the difference between the value of the land as it is when the owner recovers it, and the value if no improvement had been made. If the owner takes the laud together with the improvements, at the advanced value which it has from the labor of the possessor, what can be more just than that he should pay the difference ? But if he is unwilling to pay this difference, by giving a deed as the statute provides, he receives the value as it would have been if nothing had been done thereon. The only objection which can be made is, that it is sometimes compelling the owner to sell when he may have been content with the property in its natural state. But this, when weighed against the loss to the bona fide possessor, and against the injustice of depriving him of the fruits of his labor, and giving it to another, who, by his negligence in not sooner enforcing his claim, has in some measure contributed to the mis- take under which he has labored, is not entitled to very great consideration." 1 The last circumstance stated in this opinion the negligence of the owner in asserting his claim is evidently deemed impor- tant in some States, whose statutes only allow a recovery for improvements by one who has been in possession a certain num- ber of years. But a later Vermont case dismisses it from con- sideration as not being a necessary ground on which to base the right of recovery. " The right of the occupant to recover the value of his improvements," say the court, " does not depend upon the question whether the real owner has been vigilant or negligent in the assertion of his rights. It stands upon a princi- ple of natural justice and equity ; viz., that the occupant in good faith, believing himself to be the owner, has added to the perma- nent value of the laud by his labor and his money ; is in equity entitled to such added value ; and that it would be unjust that the owner of the land should be enriched by acquiring the value of such improvements without compensation to him who made them. This principle of natural justice has been very widely we may say universally recognized." 2 1 Brown v. Storm, 4 Vt. 37. This class other cases referred to in the succeeding of legislation was also elaborately exam- note. See also Bright v. Boyd, 1 Story, ined and defended by Trumbtdl, J., in Ross 478, 2 Story. 605. v. Irving, 14 111. 171, and in some of the a Whitney v. Richardson, 31 Vt. 300, CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 553 Betterment laws, then, recognize the existence of an equitable right, and give a remedy for its enforcement where none had ex- isted before. It is true that they make a man pay for improve- ments which he has not directed to be made ; but this legislation presents no feature of officious interference by the government with private property. The improvements have been made by one person in good faith, and are now to be appropriated by an- other. The parties cannot be placed in statu quo, and the statute accomplishes justice as nearly as the circumstances of the case will admit, when it compels the owner of the land, who, if he declines to sell, must necessarily appropriate the betterments made by another, to pay the value to the person at whose expense they have been made. The case is peculiar ; but a statute can- not be void as an unconstitutional interference with private prop- erty which adjusts the equities of the parties as nearly as possible according to natural justice. 1 306. For other cases in which similar laws have been held constitutional, see Armstrong v. Jackson, 1 Blackf. 374 ; Fowler v. Halbert, 4 Bibb, 54 ; Withington . Corey, 2 N". H. 115; Bacon v. Callen- der, 6 Mass. 303 ; Pacquette t>. Pickness, 19 Wis 219 ; Childs v. Shower, 18 Iowa, 261 ; Scott v. Mather, 14 Tex. 235; Saun- ders v. Wilson, 19 Tex. 194 ; Brackett v. Norcross, 1 Me. 89 ; Hunt's Lessee v. McMalian, 5 Ohio, 132 ; Longworth v. Wortliington, 6 Ohio, 9; Stump v. Horn- back, 94 Mo. 26, 6 S. W. 356. See further, Jones v. Carter, 12 Mass. 314; Coney v. Owen, 6 Watts, 435; Steele c. Spruance, 22 Pa. St. 256; Lynch ?. Brudie, 63 Pa. St. 206 ; Dothage v. Stuart, 35 Mo. 251 ; Fenwick v. Gill, 38 Mo. 510; Howard v. Zeyer, 18 La. Ann. 407 ; Pope v. Macon, 23 Ark. 644 ; Marlow v. Adams, 24 Ark. 109 ; Ormond v. Martin, 37 Ala. 598 ; Love v. Shartzer, 31 Cal. 487 ; Gris- wold v. Bragg, 48 Conn. 577, 18 Blatch. 202; Guild v. Kidd, 48 Mich. 307, 12 N. W. 158. [Lay o. Sheppard, 112 Ga. Ill, 37 S. E. 132.] For a contrary ruling, see Nelson v. Allen, 1 Yerg. 360, in which, however, Judge Catron in a note says the question was really not involved. Mr. Justice Story held in So- ciety, &c. v. Wheeler, 2 Gall. 105, that such a law could not constitutionally be made to apply to improvements made before its passage ; but this decision was made under the New Hampshire Consti- tution, which forbade retrospective laws. The principles of equity upon which such legislation is sustained would seem not to depend upon the time when the improve- ments were made. See Davis's Lessee v. Powell, 13 Ohio, 308. In Childs v. Shower, 18 Iowa, 261, it was held that the legislature could not constitutionally make the value of the improvements a personal charge against the owner of the land, and authorized a personal judgment against him. The same ruling was had in McCoy v. Grandy, 3 Ohio St. 463. A statute had been passed authorizing the occupying claimant at his option, after judgment rendered against him for the recovery of the land, to demand pay- ment from the successful claimant of the full value of his lasting and valuable im- provements, or to pay to the successful claimant the value of the land without the improvements, and retain it. The court say: "The occupying claimant act, in securing to the occupant a compensa- tion for his improvements as a condition precedent to the restitution of the lands to the owner, goes to the utmost stretch of the legislative power touching this sub- ject. And the statute . . . providing for the transfer of the fee in the land to the occupying claimant, without the consent of the owner, is a palpable invasion of the right of private property, and clearly in conflict with the Constitution." 1 In Harris v. Inhabitants of Marble- head, 10 Gray, 40, it was held that the betterment law did not apply to a town 554 CONSTITUTIONAL LIMITATIONS. [CH. XI. Unequal and Partial Legislation. In the course of our discussion of this subject, it has been seen that some statutes are void though general in their scope, while others are valid though establishing rules for single cases only. An enactment may therefore be the law of the land without being a general law. And this being so, it may be important to con- sider in what cases constitutional principles will require a statute to be general in its operation, and in what cases, on the other hand, it may be valid without being general. We speak now in reference to general constitutional principles, and not to any peculiar rules which may have become established by special provisions in the constitutions of individual States. The cases relating to municipal corporations stand upon pecu- liar grounds from the fact that those corporations are agencies of government, and as such are subject to complete legislative control. Statutes authorizing the sale of property of minors and other persons under disability are also exceptional, in that they are applied for by the parties representing the interests of the owners, and are remedial in their character. Such statutes are supported by the presumption that the parties in interest would consent if capable of doing so; and in law they are to be con- sidered as assenting in the person of the guardians or trustees of their rights. And perhaps in any other case, if a party petitions for legislation and avails himself of it, he may justly be held estopped from disputing its validity ; l so that the great bulk of private legislation which is adopted from year to year may at once be dismissed from this discussion. Laws public in their objects may, unless express constitutional provision forbids, 2 be either general or local in their application ; which had appropriated private property who had obtained a statute for the levy for the purposes of a school-house, and of a tax to refund bounty moneys, which erected the house thereon. The law, it statute was held void as to other per- was said, did not apply "where a party is sons. And see Motz v. Detroit, 18 Mich, taking land by force of the statute, and 495; Dewlmrst v. Allegheny, 95 Pa. St. is bound to see that all the steps are reg- 437 ; Andrus v. Board of Police, 41 La. ular. If it did, the party taking the land Ann. 697, 6 So. 603. A man may be might in fact compel a sale of the land, bound by his assent to an act changing or compel the party to buy the school- the rules of descent in his particular case, house, or any other building erected though it would be void if not assented upon it." But as a matter of constitu- to. Beall v. Beall, 8 Ga. 210. tional authority, we see no reason to 2 See ante, pp. 17(3-181, notes, and cases doubt that the legislature might extend cited. To make a statute a public law such a law even to the cases of this of general obligation, it is not necessary description. that it should be equally applicable to all 1 This doctrine was applied in Fergu- parts of the State. All that is required son v. Landram, 5 Bush, 230, to parties is that it shall apply equally to all per- CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 555 they may embrace many subjects or one, and they may extend to all citizens, or be confined to particular classes, as minors or married women, bankers or traders, and the like. 1 The authority that legislates for the State at large must determine whether particular rules shall extend to the whole State and all its citi- zens, or, on the other hand, to a subdivision of the State or a single class of its citizens only. The circumstances of a par- ticular locality, or the prevailing public sentiment in that section of the State, may require or make acceptable different police regulations from those demanded in another, or call for different taxation, and a different application of the public moneys. The legislature may therefore prescribe or authorize different laws of police, allow the right of eminent domain to be exercised in different cases and through different agencies, and prescribe peculiar restrictions upon taxation in each distinct municipality, provided the State constitution does not forbid. 2 These discrim- inations are made constantly ; and the fact that the laws are of local or special operation only is not supposed to render them obnoxious in principle. The legislature may also deem it desir- able to prescribe peculiar rules for the several occupations, and to establish distinctions in the rights, obligations, duties, and capaci- ties of citizens. 3 The business of common carriers, for instance, sons within the territorial limits described equal protection of the laws does not in the act. State v. County Commission- make necessary the same local regula- ers of Baltimore, 29 Md. 516. See Pol- tions, municipal powers, or judicial or- lock v. McClurken, 42 111. 370 ; Haskel v. ganization or jurisdiction. Missouri v. Burlington, 30 Iowa, 232 ; Unity v. Bur- Lewis, 101 U. S. 22. See Strauder v. W. rage, 103 U. S. 447. Liquor sales may Virginia, 100 U. S. 303; Virginia v. be forbidden in the country and per- Rives, 100 U. S. 313 ; Ex parte Virginia, mitted in the towns. State v. Berlin, 21 100 U. S. 339. S. C. 292; Howell v. State, 71 Ga. 324. 8 The prohibition of special legisla- See Marmet v. State, 45 Ohio St. 63, 12 N. tion for the benefit of individuals does E. 463. Compare Hatcher v. State, 12 not preclude laws for the benefit of par- Lea, 368. An act may be made a mis- ticular classes ; as, for example, mechan- demeanor in certain counties only, ics and other laborers. Davis r. State, 3 Davis v. State, 68 Ala. 58; State v. Lea, 376. But under it peculiar provi- Moore, 104 N. C. 714, 10 S. E. 143. But sions as to liens cannot be made appli- a law is void which makes pool selling cable to but two counties. Woodard v. innocent under certain circumstances, Brien, 14 Lea, 520. QWhen the laws while it is generally an offence. Daly already provide for the inspection of v. State, 13 Lea, 228. QAn act requiring grain, live-stock, and dressed meats, an repayment of taxes erroneously paid can- exception of dealers in such products not be made applicable to a single county, from the provisions of an act requiring Hamilton Co. Com'rs v. Rasche, 50 Ohio commission merchants in cities of speci- St. 103, 33 N. E. 408, 19 L. R. A. 584.] fled size to take out licenses is not void 1 See the Iowa R. R. Land Co. v. Soper, on account of arbitrariness. Lasher v. 39 Iowa, 112; Matter of Goodell, 39 Wis. People, 183 111. 226, 55 N. E. 663, 47 232, 20 Am. Rep. 42; Commonwealth v. L. R. A. 802, 75 Am. St. 103.] A statute Hamilton Mfg. Co., 120 Mass. 383. exempting from taxation property to the 2 The constitutional requirement of amount of $500 of widows and maids 556 CONSTITUTIONAL LIMITATIONS. [CH. XI. or of bankers, may require special statutory regulations for the general benefit, and it may be matter of public policy to give laborers in one business a specific lien for their wages, when it would be impracticable or impolitic to do the same for persons engaged in some other employments, (a) If the laws be otherwise unobjectionable, all that can be required in these cases is, that they be general in their application to the class or locality to which they apply ; and they are then public in character, and of their propriety and policy the legislature must judge, (b) But a statute would not be constitutional which should pro- scribe a class or a party for opinion's sake, 1 or which should held unconstitutional because unequal. State v. Indianapolis, 69 Ind. 375, 35 Am. Rep. 223; Warner v. Outran, 75 Ind. 309. QA statute forbidding contracts between railway companies and their em- ployees, and exempting such companies from liability for danlages for personal injuries, is void as class legislation and as an unreasonable restraint upon freedom of contract. Shaver v. Pennsylvania Ry. Co., 71 Fed. Rep. 931.] It is not competent to except from right to recover for injury from defective sidewalk all who do not reside in States where similar injuries constitute right of action. Pearson v. Portland, 69 Me. 278, 31 Am. Rep. 276. The rule of non-lia- bility of the master to a servant for in- jury suffered through a fellow-servant's negligence may be abrogated as to rail- road companies. Missouri Pac. Ry. Co. v. Mackeye, 33 Kan. 298, 6 Pac. 291. A police regulation, affecting all railroads, to enforce a quicker delivery of freight is valid. Little Rock, &c. Ry. Co. v. Hanniford, 49 Ark. 291, 5 S. W. 294. [A statute rendering telegraph companies liable for mental anguish caused by fail- ure to promptly transmit and deliver messages does not deprive them of prop- erty without due process of law or deny them the equal protection of the law. Simmons v. West. U. Tel. Co., 63 S. C. 425, 41 S. E. 521, 57 L. R. A. 607.] So one forbidding burying an animal killed by a train. Bannon v. State, 49 Ark. 167, 4 S. W. 655. An attorney fee, as a penalty, may be allowed for non-compliance with fencing law if animal is so killed. Peoria, D. & E. Ry. Co. v. Duggan, 109 111. 537. Contra, Wilder v. Chicago, &c. Ry. Co., 76 Mich. 382, 38 N. W. 289 ; South, &c. R. R. Co. v. Morris, 65 Ala. 193; as class legislation. QSee in addition upon statutes allowing attorney's fees in par- ticular classes of cases. Gano v. Minne- apolis & St. L. Ry. Co., 114 Iowa, 713, 87 N. W. 714, 55 L. R. A. 263, and cases cited. Hocking Valley Coal Co. v. Ros- ser, 53 Ohio St. 12, 41 N. E. 263, 29 L. R, A. 386 ; Vogel v. Pekoe, 157 III. 339, 42 N. E. 386, 30 L. R. A. 491 ; Cameron v. Chicago, M. & St. P. Ry. Co., 60 Minn. 100, 61 N. W. 814, 31 L. R. A. 553 ; Title Guaranty Co. r. Wrenn, 35 Oreg. 62, 56 Pac. 271, 76 Am. St. 454.] 1 The sixth section of the Metropoli- tan Police Law of Baltimore (1859) pro- vided that " no Black Republican, or in- dorser or supporter of the Helper book, shall be appointed to any office " under the Board of Police which it established. This was claimed to he unconstitutional, as introducing into legislation the princi- (a) QThe classification underlying such legislation must be a reasonable one. If arbitrary or unreasonable, the courts do not hesitate to declare the legislation void. Sutton v. State, 96 Tenn. 696, 36 S. W. 697, 33 L'. R. A. 589. A statute^ providing for the treatment of inebriates at the expense of the county, and limiting the operation of such legislation to counties having a population of fifty thousand or more, is void as being unreasonable to so restrict its application. Murray v. Board of Co. Com'rs, 81 Minn. 359, 84 N. W. 103, 83 Am. St. 379, 51 L. R. A. 828.] (b) [But see People v. Coolidge, 124 Mich. 664, 83 N. W. 594, 50 L. R. A. 493, ap- parently conira.] CH. XI.] PROTECTION BY "THE LAW OF TI1E LAND." 557 select particular individuals from a class or locality, and subject them to peculiar rules, or impose upon them special obligations or burdens from which others in the same locality or class are exempt. 1 pie of proscription for the sake of politi- cal opinion, which was directly opposed to the cardinal principles on which the Constitution was founded. The court dismissed the objection in the following words : " That portion of the sixth sec- tion which relates to Black Republicans, &c., is obnoxious to the objection urged against it, if we are to consider that class of persons as proscribed on account of their political or religious opinions. But we cannot understand, officially, who are meant to be affected by the proviso, and therefore cannot express a judicial opinion on the question." Baltimore c. State, 15 Md. 376, 4(58, 484. This does not seem to be a very satisfactory disposition of so grave a constitutional objection to a leg- islative act. That courts may take judi- cial notice of the fact that the electors of the country are divided into parties with well-known designations cannot be doubted ; and when one of these is pro- scribed by a name familiarly applied to it by its opponents, the inference that it is done because of political opinion seems to be too conclusive to need further sup- port than that which is found in the act itself. And we know no reason why courts should decline to take notice of these facts of general notoriety, which, like the names of political parties, are a part of the public history of the times. A statute requiring causes in which the venue has been changed to be remanded on the affidavits of three unconditional Union men, that justice can be had in the courts where it originated, held void, on the principles stated in the text, in Brown v. Haywood, 4 Heisk. 357. It has been decided that State laws forbidding the intermarriage of whites and blacks are such police regulations as are entirely within the power of the States, notwithstanding the provisions of the new amendments to the federal Constitu- tion. State v. Jackson, 80 Mo. 175 ; State v. Gibson, 36 Ind. 389, 10 Am. Rep. 42; State v. Hairston, 63 N. C. 451 ; State v. Kenny, 76 N. C. 251, 22 Am. Rep. 683; Ellis r. State, 42 Ala. 525 ; Green v. State, 58 Ala. 190, 29 Am. Rep. 739; Kinney's Case, 30 Gratt. 858 ; Frasher v. State, 3 Tex. App. 263, 30 Am. Rep. 131 ; Lonas v. State, 3 Heisk. 287, 1 Green, Cr. R. 452 ; Ex rel. Hobbs & Johnson, 1 Woods, 537 ; Ex parte Kinney, 3 Hughes, 9; Ex parte Francois, 3 Woods, 367. FjThe exclusion of colored persons from a jury on account of color violates the constitutional provi- sion for the protection of civil rights. State v. Peoples, 131 N. C. 784, 42 S. E. 814.] It is also said colored children may be required to attend separate schools, if impartial provision is made for their instruction. State v. Duffy, 7 Nev. 342, 8 Am. Rep. 713; Cory v. Carter, 48 Ind. 327 ; Ward v. Flood, 48 Cal. 36 ; State v. McCann, 21 Ohio St. 198; People v. Gallagher, 93 N. Y. 438 ; Ber- tonneau v. School Directors, 3 Woods, 177. But some States forbid this. People v. Board of Education, 18 Mich. 400; Clark v. Board of Directors, 24 Iowa, 266; Dove v. School District, 41 Iowa, 689; Chase v. Stephenson, 71 111. 383; People v. Board of Education of Quincy, 101 111. 308 ; Board of Education v. Tin- non, 26 Kan. 1 ; Pierce v. Union Dist., 46 N. J. L. 76 ; Kaine v. Com., 101 Pa. St. 490. See Dawson v. Lee, 83 Ky. 49. And when separate schools are not established for colored children, they are entitled to admission to the other public schools. State v. Duffy, supra. Where separate schools are allowed, property of whites cannot be taxed for white schools alone, and of negroes for negro schools. Puitt v. Com'rs, 94 N. C. 709; Clay brook v. Owensboro, 16 Fed. Rep. 297. i Lin Sing v. Washburn, 20 Cal. 534 ; Brown r. Haywood, 4 Heisk. 357. A San Francisco ordinance required every male person imprisoned in the county jail to have his hair cut to an uniform length of one inch. This was held invalid, as be- ing directed specially against the Chinese. Ah Kow v. Nonan, 5 Sawyer, 652. See Tick Wo v. Hopkins, 118 U. S 356, 6 Sup. Ct. Rep. 1064. QA statute defining a " tramp " and prescribing a heavier punishment for certain criminal conduct 558 CONSTITUTIONAL LIMITATIONS. [CH. XI. The legislature may suspend the operation of the general laws of the State ; but when it does so the suspension must be general, and cannot be made for individual cases or for particular locali- ties. 1 Privileges may be granted to particular individuals when by so doing the rights of others are not interfered with ; disabili- ties may be removed ; the legislature as parens patrice, when not forbidden, may grant authority to the guardians or trustees of incompetent persons to exercise a statutory control over their estates for their assistance, comfort, or support, or for the dis- of such persons than is attached to simi- lar conduct of others is not invalid for that reason. It is uniform in its applica- tion to all within the class. State v. Hogan, 63 Ohio, 202, 58 N. E. 672, 62 L. R. A. 863. See post, 837, a. Upon question of special legislation see Arms v. Ayer, 192 111. 601, 61 N. E. 851, 85 Am. St. 357.] In Louisiana an ordi- nance forbidding the sale of goods on Sunday, but excepting from its opera- tion those keeping their places of business closed on Saturday, was held partial and therefore unconstitutional. Shreveport v. Levy, 26 La. Ann. 671, 21 Am. Rep. 653. A Sunday closing law is not une- qual because it excepts certain business as necessary. Lieberman v State, 26 Neb. 464, 42 N. W. 419. A liquor seller may not be forbidden to sign the bond of an- other liquor seller. Kulm v. Common Council, 70 Mich. 534, 38 N. W. 470. Nor may the right to sell liquor, where a lawful business, be made dependent on the caprice or private judgment of the board which approves the sellers' bond. People v. Haug, 68 Mich. 549, 37 N. W. 21. Keeping open after legal hours can- not be declared a breach of the peace for which an arrest may be made without a warrant. Id. There is no reas.on, how- ever, why the law should not take notice of peculiar views held by some classes of people, which unfit them for certain pub- lic duties, and excuse them from the performance of such duties ; as Quakers are excused from military duty, and per- sons denying the right to inflict capital punishment are excluded from juries in capital cases. These, however, are in the nature of exemptions, and they rest upon considerations of obvious necessity. fjA fire tax upon property is void as to railroads unless their property is accorded equality of opportunity with other prop- erty taxed to be protected by the meas- ures provided out of the proceeds of such taxes. Atchison, T. & S. F. R. Co. v. Clark, 60 Kan. 826, 58 Pac. 477, 47 L. R. A. 77. The recent "department store" legislation enacted in some form in several of the StHtes has been before the courts in several cases, and has generally been overturned as an arbitrary and unreason- able restraint upon the freedom to con- tract, as an attempt to use the police power of the State where there is no occasion for its exercise, and as denying property rights to one class in the com- munity, permitted to others. Chicago v. Netcher, 183 III. 104, 65 N. E. 707, 75 Am. St. 93 ; State ex rcl. Wyatt v. Ash- brook, 154 Mo. 375, 55 S. W. 627, 77 Am. St. 765, 48 L. R. A. 265.] 1 The statute of limitations cannot be suspended in particular cases while al- lowed to remain in force generally. Hoi- den v. James, 11 Mass. 396; Davison v. Johonnot, 7 Met. 388. See ante, p. 521, note. The general exemption laws can- not be varied for particular cases or local- ities. Bull v. Conroe, 13 Wis. 233, 244. The legislature, when forbidden to grant divorces, cannot pass special acts author- izing the courts to grant divorces in par- ticular cases for causes not recognized in the general law. Teft v. Teft, 3 Mich. 67 ; Simonds v. Simonds, 103 Mass. 672. See, for the same principle, Alter's Ap- peal, 67 Pa. St. 341. The authority in emergencies to suspend the civil laws in a part of the State only, by a declara- tion of martial law, we do not call in question by anything here stated. Nor in what we have here said do we have any reference to suspensions of the laws generally, or of any particular law, under the extraordinary circumstances of re- bellion or war. CH. XT.] PROTECTION BY "THE LAW OF THE LAND.' 559 charge of legal or equitable liens upon their property ; but every one has a right to demand that he be governed by general rules, and a special statute which, without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not within the province of free governments. Those who make the laws " are to govern by promulgated, established laws, not to be varied in par- ticular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough." 1 This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments. 2 1 Locke on Civil Government, 142; State v. Duffy, 7 Nev. 349 ; Strauder v. W. Virginia, 100 U. S. 303 ; Bernier v. Kussell, 89 111. 60. [This principle is not to be carried so far as to put all persons on an equality as to rights which are not natural rights. So though there be a statute providing that the masculine shall include all genders, a woman is not enti- tled to admission to the bar under a stat- ute providing thnt"any male citizen," possessing certain qualifications, shall be admitted, and such statute is valid. Re Maddox, 93 Md. 727, 50 All. 487, 55 L. R. A. 298, and cases cited in note.] 2 In Lewis v. Webb, 3 Me. 326, the validity of a statute granting an appeal from a decree of the Probate Court in a particular case came under review. The court say : " On principle it can never be within the bounds of legitimate legisla- tion to enact a special law, or pass a re- solve dispensing with the general law in a particular case, and granting a privilege and indulgence to one man, by way of exemption from the operation and effect of such general law, leaving all other per- sons under its operation. Such a law is neither just nor reasonable in its conse- quences. It is our boast that we live under a government of laws, and not of men ; but this can hardly be deemed a blessing, unless those laws have for their immovable basis the great principles of constitutional equality. Can it be sup- posed for a moment that, if the legisla- ture should pass a general law, and add a section by way of proviso, that it never should be construed to have any opera- tion or effect upon the persons, rights, or property of Archelaus Lewis or John Gordon, such a proviso would receive the sanction or even the countenance of a court of law ? And how does the sup- posed case differ from the present ? A resolve passed after the general law can produce only the same effect as such pro- viso. In fact, neither can have any legal operation." See also Durham v. Lewis- ton, 4 Me. 140; Holden v. James, 11 Mass. 396 ; Piquet, Appellant, 6 Pick. 65; Budd v. State, 3 Humph. 483 ; Van Zant v. Wad- dell, 2 Yerg. 260 ; People . Frisbie, 26 Cal. 135; Davis v. Menasha, 21 Wis.491 ; Lancaster r. Barr, 25 Wis. 560; Brown v. Haywood,4 Heisk. 357 ; Wally's Heirs v. Kennedy, 2 Yerg. 564, 24 Am. Dec. 511. In the last case it is said: "The rights of every individual must stand or fall by the same rule or law that governs every other member of the body politic, or land, under similar circumstances ; and every partial or private law, which directly proposes to destroy or affect in- dividual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals and corporations would be governed by one law ; the mass of the community and those who made the law, by another; whereas the like general law affecting the whole community equally could not have been passed." Special burdens can- not be laid upon a particular class in the community. Millett v. People, 117 111. 294, 7 N. E. 631. Miners and manufac- turers alone cannot be forbidden to pay in store orders. State v. Goodwill, 38 W. Va. 179, 10 S. E. 285. See, also, Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. 364 ; State v. Fire Creek, &c. Co., 560 CONSTITUTIONAL LIMITATIONS. [CH. XI. Special courts cannot be created for the trial of the rights and obligations of particular parties ; 1 and those cases in which legis- lative acts granting new trials or other special relief in judicial proceedings, while they have been regarded as usurpations of judicial authority, have also been considered obnoxious to the objection that they undertook to suspend general laws in special cases. The doubt might also arise whether a regulation made for any one class of citizens, entirely arbitrary in its character, and restricting their rights, privileges, or legal capacities in a manner before unknown to the law, could be sustained, notwithstanding its 33 W. Va. 188, 10 S. E. 288. [Statute attempting to give laborers, employed by any corporation that fails to pay its labor- ers monthly, " a lien on all tlie property of said corporation . . . which lien shall take preference over all other liens ex- cept duly recorded mortgages or deeds of trust," and in addition " a reasonable attorney's fee " upon suit brought there- under, is void as involving an uncon- stitutional discrimination. Johnson v. Goodyear Mining Co., 127 Cal. 4, 59 Pac. 304, 47 L. R. A. 338 ; and see other cases pro and con in notes on equal protection on pp. 15 and 560, ante and post. A statute making it unlawful to prevent or attempt to prevent an employee from joining any lawful labor organization, or to discharge a laborer because of his connection with such organization, is void as violating the constitutional guarantee against depriv- ing any person of life, liberty, or property without due process of law. Gillespie v. People, 188 111. 176, 58 N. E. 1007, 62 L. R. A. 283; State v. Julow, 129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 50 Am. St. 443.] Recovery against news- paper publishers for libel cannot be limited to actual damage, provided a retraction is published and the libel was published in good faith. Park v. Detroit Free Press Co., 72 Mich. 568, 40 N. W. 731. Otherwise in Minnesota. Allen v. Pioneer Press Co., 40 Minn. 1 17, 41 N. W. 936. See further, Officer v. Young, 5 Yerg. 320; Griffin v. Cunningham, 20 Gratt. 31 (an instructive case) ; Dorsey v. Dorsey, 37 Md. 64, 11 Am. Rep. 628; Trustees v. Bailey, 10 Fla. 238 ; Lawson v. Jeffries, 47 Miss. 686, 12 Am. Rep. 342; Arnold v. Kelley, 6 W. Va. 446; ante, pp. 137-139. But an act was sus- tained in Minnesota which gave one individual a right of appeal from the legal tribunal and denied it to others. Dike v. State, 38 Minn. 866, 38 N. W. 95. [The legislature cannot restrict the power of the courts to determine whether the facts in a case coming before the court amount to negligence or not, nor can it make the failure of a railroad commis- sioner to require a flagman to be sta- tioned at a railway crossing conclusive that the failure of the railway company to station one there is not negligence. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. Rep. 679J And physicians who have not a diploma and have not practised a certain time in the State may be required to take out a license. State v. Green, 112 Ind. 462, 14 N. E. 352; People v. Phippen, 70 Mich. 6, 37 N. W. 888. Contra in New Hampshire, State v. Pennoyer, 65 N. H. 113, 18 Atl. 878; State v. Hinman, 65 N. H. 103, 18 AtL 194. See further cases, p. 890, note 2, post. 1 As, for instance, the debtors of a particular bank. Bank of the State ?;. Cooper, 2 Yerg. 699, 24 Am. Dec. 517. Compare Durkee v. Janesville, 28 Wis. 464, in which it was declared that a special exemption of the city of Janes- ville from the payment of costs in any proceeding against it to set aside a tax or tax sale was void. And see Memphis v. Fisher, 9 Bax. 240. In Matter of Nichols, 8 R. I. 60, a special act admitting a tort debtor committed to jail to take the poor debtor's oath and be discharged, was held void. The legislature cannot confer upon a corporation privileges or exemptions which it could not confer constitutionally upon a private person. Gordon v. Build- ing Association, 12 Bush, 110. As to what is not a violation of this principle, see United States v. Union Pac. R. R. Co., 98 U. S. 669. CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 561 generality. Distinctions in these respects must rest upon some reason upon which they can be defended, like the want of capa- city in infants and insane persons ; and if the legislature should undertake to provide that persons following some specified lawful trade or employment should not have capacity to make contracts, or to receive conveyances, or to build such houses as others were allowed to erect, or in any other way to make such use of their prop- erty as was permissible to others, it can scarcely be doubted that the act would transcend the due bounds of legislative power, even though no express constitutional provision could be pointed out with which it would come in conflict, (a) To forbid to an individual or a class the right to the acquisition or enjoyment of property in such manner as should be permitted to the community at large, would be to deprive them tff liberty in particulars of primary importance to their " pursuit of happiness ; " l and those who should claim a right to do so ought to be able to show a specific authority there- 1 Burlamaqui (Politic. Law, c. 3, 15) degree as the same claim of protection defines natural liberty as the right which of each individual admits of, or in the nature gives to all mankind of disposing most efficient protection of his rights, of their persons and property after the claims, interests, as a man or citizen, or manner they judge most consonant to of his humanity manifested as a social their happiness, on condition of their act- being." Civil Liberty and Self-Govern- ing within the limits of the law of nature, ment. " Legal Liberty," says Mackin- and so as not to interfere with an equal tosh, in his essay on the Study of the exercise of the same rights by other men. Law of Nature and of Nations, " con- See 1 Bl. Com. 125. Lieber says : " Lib- sists in every man's security against erty of social man consists in the protec- wrong." tion of unrestrained action in as high a (a) QAct requiring commission-merchants engaged in the sale of farm produce to give bonds in specified sum conditioned upon faithful performance of contracts, held bad in People o. Coolidge, 124 Mich. 664, 83 N. W. 594, 50 L. H. A. 493, 83 Am. St. 352. On the other hand, such legislation was sustained in State v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134, 46 L. K. A. 442, 77 Am. St. 681, and in Lasher v. People, 183 111. 226, 55 N. E. 663, 75 Am. St. 103, 47 L. K. A. 802. The exemption of real estate dealers and contractors whose business does not amount to $1,000 per annum, from the operation of an ordinance imposing a license tax for the transaction of business, is unconstitutional. Com. v. Clark, 195 Pa. 634, 46 Atl. 286, 57 L. R. A. 348. A statute providing for the inspection of coal mines is not void for exempting mines not employing more than five men. Consol. Coal Co. v. Illinois, 185 U. S. 203, 22 Sup. Ct. Rep. 616 ; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. Rep. 431 ; Brown & Allen v. Jacobs Pharmacy Co., 115 Ga. 429, 41 So. 553, 67 L. R. A. 547. An ordinance giving a monopoly to union labor by providing that all city contracts shall provide that none but union labor shall be employed, is uncon- stitutional as class legislation. Fiske v. State, 188 111. 206, 58 N. E. 985, 52 L. R. A. 291. A statute requiring persons before practising osteopathy to study four years, and pass certain examinations, while not requiring equivalent preparation of those practising according to other schools of medicine, is unconstitutional. State v. Gravette, 65 Ohio, 289, 62 N. E. 325, 87 Am. St. 605, 55 L. R. A. 791. See also Cook v. Marshall Co., Iowa, , 92 N. W. 372 ; Verges v. Milwaukee Co., Wis. , 92 N. W. 44.3 86 562 CONSTITUTIONAL LIMITATIONS. [CH. XI. for, instead of calling upon others to show how and where the authority is negatived. Equality of rights, privileges, and capacities unquestionably should be the aim of the law ; and if special privileges are granted, or special burdens or restrictions imposed in any case, it must be presumed that the legislature designed to depart as little as possible from this fundamental maxim of government. 1 1 In the Case of Monopolies, Darcy v. Allain, 11 Rep. 84, the grant of an exclu- sive privilege of making playing cards was adjudged void, inasmuch as "the sole trade of any mechanical artifice, or any other monopoly, is not only a dam- age and prejudice to those who exercise the same trade, but also to all other sub- jects ; for the end of all these monopolies is for the private gain of the patentees." And see Norwich Gas Light Co. v. Nor- wich City Gas Co, 25 Conn. 19; State v. Cincinnati, &c. Gas Co., 18 Ohio St. 262. Compare with these, State v. Milwaukee Gas Light Co., 29 Wis. 454. On this ground it has been denied that the State can exercise the power of taxation on behalf of corporations who undertake to make or to improve the thoroughfares of trade and travel for their own benefit. The State, it is said, can no more tax the community to set one class of men up in business than another ; can no more sub- sidize one occupation than another; can no more make donations to the men who build and own railroads in consideration of expected incidental benefits, than it can make them to the men who build stores or manufactories in consideration of similar expected benefits. People v. Township Board of Salem, 20 Mich. 452. See further, as to monopolies, Chicago v. Kumpff, 45 111. 90 ; Gale v. Kalamazoo, 28 Mich. 344. In State v. Mayor, &c. of Newark, 35 N. J. 157, 10 Am. Rep. 223, the doctrine of the text was applied to a case in which by statute the property of a society had been exempted from " taxes and assessments ;'' and it was held that only the ordinary public taxes were meant, and the property might be subjected to local assessments for municipal purposes. State grants are not exclusive unless made so in express terms. Tuckahoe Canal Co. v. Railroad Co., 11 Leigh, 42, 36 Am. Dec. 374; Gaines v. Coates, 5L Miss. 335 ; Wright . Nagle, 101 U. S. 791. Where monopolies are forbidden, it is nevertheless competent to give exclusive rights to a water company to supply a city for a term of years. Memphis r. Water Co., 5 Heisk. 495. A corporation formed under a general law allowing for- mation of gas companies cannot as part of its corporate purposes include the pur- chase and holding of shares of existing gas companies, thus creating a monopoly. People v. Chicago Gas Trust Co., 130 Til. 268, 22 N. E. 798. See People v. Refining Co., 7 N. Y. Supp. 406. [City council's grant of exclusive right to re- move garbage from all places within city limits, was sustained in Walker v. Jame- son, 140 Ind. 591, 39 N. E. 869, 28 L. R. A. 679, 49 Am. St. 222; and in Smiley v. McDonald, 42 Neb. 5, 60 N. W. 355, 27 L. R. A. 540, 47 Am. St. 684 ; but not in Re Lowe, 54 Kan. 757, 39 Pac. 710, 27 L. R. A. 545; upon such contracts, see note in 27 L. R. A. 540. The question of equality of protection and privilege under the Constitution was before the Supreme Court of the United States in Connolly v. Union Sewer-Pipe Co., 184 U. S. 540, 22 Sup. Ct. Rep. 431, and in speaking of an anti-trust statute of Illi- nois which exempted from its operation producers of agricultural products and raisers of live stock, that court said : "The difficulty is not met by saying that generally speaking the State, when t enacting laws, may, in its discretion, make - a classification of firms, corporations, and associations in order to subserve public objects. For this court has held that , ^/classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed and can never be made arbitrarily and without any such basis. . . . But arbitrary selec- tion can never be justified by calling it classification. The equal protection de- manded by the Fourteenth Amendment forbids this. . . . No duty rests more imperatively upon the courts than the CH. XI.] PROTECTION BY " THE LAW OF THE LAND.' 563 The State, it is to be presumed, has no favors to bestow, and designs to inflict no arbitrary deprivation of rights. Special privileges are always obnoxious, and discriminations against per- sons or classes are still more so ; and, as a rule of construction, it is to be presumed they were probably not contemplated or designed. It has been held that a statute requiring attorneys to render services in suits for poor persons without fee or reward, was to be confined strictly to the cases therein prescribed, and if by its terms it expressly covered civil cases only, it could not be extended to embrace defences of criminal prosecutions. 1 So enforcement of those constitutional pro- visions intended to secure that equality of rights which is the security of free government. ... It is apparent that the mere fact of classification is not suffi- cient to relieve a statute from the reach of the equality clause of the Fourteenth Amendment, and that in all cases it must appear, not only that a classification has been made, but also that it is one based upon some reasonable ground some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection." The Connolly case is followed in People v. Butler St. F. & I. Co., 111. , 66 N. E. 349. The prior cases on the validity of legislation affecting different classes dif- ferently are cited in the opinion, and certain of them distinguished, particu- larly Magoun v. Illinois Trust & S. B. Co., 170 U. S. 283, 18 Sup. Ct. Rep. 594, and American Sugar R. Co. v. Louisiana, 179 U. S. 89, 21 Sup. Ct. Rep. 43. See also Iowa Life Ins. Co. v. Lewis, U. S. , 23 Sup. Ct. Rep. 126, upon the right of a State to provide for the recovery of damages and attorney's fees against life and health insurance companies for failure to pay losses when they mature, against the objection of class legislation. In the opinion, Fidelity Mut. L. Ins. Asso. v. Mettler, 185 U. S. 308, 22 Sup. Ct. Rep. 662, is relied upon and followed, the court holding the act valid. In Magoun v. Illinois, etc., su/>ra, the court made the fol- lowing declaration of the principles appli- cable to the determination of questions of classification of objects for purposes of legislation : " The State may distinguish, select, and classify objects of legislation, and necessarily the power must have a wide range of discretion, and this because of the function of legislation and the pur- poses to which it is addressed. Classifi- cation for such purposes is not invalid, because not depending on scientific or marked differences in things or persons or their relations. It suffices if it is prac- X tical, and is not reviewable unless palpa- \ bly arbitrary." In Boorum v. Connelly, / 66 N. 3. L. 197, 48 Atl. 955, 88 Am. St. 469, it is held, upon the authority of Van Riper v. Parsons, 40 N. J. L. 123, and Rutgers v. Mayor of Brunswick, 42 N. J. L. 51, that "a law framed in general terms, restricted to no locality, and operating equally upon all of a group of objects which, having regard to the purpose of the legislation, are distinguished by char- acteristics sufficiently marked and im- portant to make them a class by them- selves, is not a special or local law, but a general law, without regard to the consideration that, within this State, there happens to be but one individual of that class, or one place where it produces effect."} 1 Webb t>.Baird,6Ind. 13. fJLegisIa- ture cannot confine the use of low-test petroleum oil for lighting purposes to apparatus of one maker, where there are others adapted to the same use. State v. Santee, 111 Iowa, 1, 82 N. W. 445, 53 L. R. A. 763, 82 Am. St. 489. It may be noted that this case is not authority for the doctrine that a State may not under any circumstances create a monopoly. A statute requiring a longer course of study as a condition to the obtaining of a limited certificate for the practice of " osteopathy " than is required of those contemplating the regular practice of medicine, is void for inequality. State v. Gravett, 65 Ohio St. 289, 62 N. E. 325, 55 L. R. A. 791, 87 Am. St. 605 ; a statute for the regulation of the practice of medicine excluded from its operation, 564 CONSTITUTIONAL LIMITATIONS. [CH. XL where a constitutional provision confined the elective franchise to " white male citizens," and it appeared that the legislation of the State had always treated of negroes, mulattoes, and other colored persons in contradistinction to white, it was held that although quadroons, being a recognized class of colored persons, must be ex- cluded, yet that the rule of exclusion would not be carried further. 1 So a statute making parties witnesses against themselves cannot be construed to compel them to disclose facts which would subject them to criminal punishment. 2 And a statute which authorizes summary process in favor of a bank against debtors who have by express contract made their obligations payable at such bank, being in derogation of the ordinary principles of private right, must be subject to strict construction. 3 These cases are only illustrations of a rule of general acceptance. 4 There are unquestionably cases in which the State may grant privileges to specified individuals without violating any constitu- tional principle, because, from the nature of the case, it is impos- sible they should be possessed and enjoyed by all ; 5 and if it is important that they should exist, the proper State authority must be left to select the grantees. 6 Of this class are grants of the franchise to be a corporation. 7 Such grants, however, which con- osteopaths, dentists, and non-residents called in consultation or engaged in practice adjacent to- the State line, and was upheld as a reasonable classification. Parks v. State, Ind. , 64 N. E. 862. An act imposing a penalty upon the failure of an insurance company to pay its losses as provided in its contracts, is not uncon- stitutional, as not applicable to the obli- gations of all persons. New York Life Ins. Co. v. English, Tex. Civ. App. , 70 S. W. 440. Decided on authority of Association v. Mettler, 185 U. S. 308, 22 Sup. Ct. Rep. 662.] 1 People v. Dean, 14 Mich. 406. See Bailey v. Fiske, 34 Me. 77 ; Monroe v. Collins, 17 Ohio St. 665. The decisions in Ohio were still more liberal, and ranked as white persons all who had a prepon- derance of white blood. Gray v. State, 4 Ohio, 353 ; Jeffres v. Ankeny, 11 Ohio, 372; Thacker v. Hawk, 11 Ohio, 376; Anderson v. Millikin, 9 Ohio St. 568. But see Van Camp i*. Board of Education, 9 Ohio St. 406. Happily all such ques- tions are now disposed of by constitutional amendments. It seems, however, in the opinion of the Supreme Court of Cali- fornia, that these amendments do not preclude a State denying to a race, e. y. the Chinese, the right to testify against other persons. People v. Brady, 40 Cal. 198, 6 Am. Rep. 604. 2 Broadbent v. State, 7 Md. 416. See Knowles v. People, 15 Mich. 408. 8 Bank of Columbia v. Okely , 4 Wheat. 235. 4 See 1 Bl. Com. 89, and note. 5 Mason v. Bridge Co., 17 W. Va. 396. But a franchise is not necessarily exclu- sive so long as there is nothing to prevent grant! ng like power to another corporation. Matter of Union Ferry Co., 98 N. Y. 139. 6 In Gordon v. Building Association, 12 Bush, 110, it is decided that a special privilege granted to a particular corpora- tion to take an interest on its loans greater than the regular interest allowed by law is void ; it not being granted in consideration of any obligation assumed by the corporation to serve the pub'lic. 7 That proper grants of this sort are not to be regarded as partial legislation, see Tipton v. Locomotive Works, 103 U. S. 623, 1 Am. & Eng. R. R. Gas. 517; North and S. Ala. R. R. Co. v. Morris, 65 Ala. 193. CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 565 fer upon a few persons what cannot be shared by the many, and which, though supposed to be made on public grounds, are never- theless frequently of great value to the corporators, and therefore sought with avidity, are never to be extended by construction beyond the plain terms in which they are conferred. No rule is better settled than that charters of incorporation are to be con- strued strictly against the corporators. 1 The just presumption in every such case is, that the State has granted in express terms all that it designed to grant at all. " When a State," says the Supreme Court of Pennsylvania, " means to clothe a corporate body with a portion of her own sovereignty, and to disarm herself to that extent of the power which belongs to her, it is so easy to say so, that we will never believe it to be meant when it is not said. ... In the construction of a charter, to be in doubt is to be resolved ; and every resolution which springs from doubt is against the corporation. If the usefulness of the company would be increased by extending [its privileges], let the legislature see to it, but let it be remembered that nothing but plain English words will do it." 2 This is sound doctrine, and should be vigilantly observed and enforced. 1 Providence Bank v. Billings, 4 Pet. 614; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544 ; Perrine v. Ches- apeake & Delaware Canal Co., 9 How. 172 ; Richmond, &c. R. R. Co. v. Louisa R. R. Co., 13 How. 71 ; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 294 ; Parker v. Sunbury & Erie R. R. Co., 19 Pa. St. 211; Wales v. Stetson, 2 Mass. 143; Clionango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 87, and 3 Wall. 61 ; State v. Krebs, 64 N. C. 604. [Stein >;. Bienville Water S. Co., 141 U. S. 67, 11 Sup. Ct. Rep. 892 ; Central Transp. Co. v. Pullman's P. C. Co., 139 U. S. 24, 11 Sup. Ct. Rep. 478; Skaneateles Water- works Co. v. Skaneateles, 161 N. Y. 154, 55 N. E. 562, 46 L. R. A. 687.] 2 Pennsylvania R. R. Co. v. Canal Commissioners, 21 Pa. St. 9, 22. And see Commonwealth v. Pittsburg, &c. R. R. Co., 24 Pa. St. 169; Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 87, 93, per Wright, J. ; Baltimore v. Balti- more, &c. R. R. Co., 21 Md. 60 ; Tucka- hoe Canal Co. v. Railroad Co., 11 Leigh, 42, 36 Am. Deo. 374; Richmond v. Rich- mond & Danville R. R. Co., 21 Gratt. 604; Holyoke Co. v. Lyman, 15 Wall. 600 ; Delancey v. Insurance Co., 52 N. H. 581 ; Spring Valley Water Works v. San Francisco, 62 Cal. Ill ; Gaines v. Coates, 51 Miss. 335. We quote from the Supreme Court of Connecticut in Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 294, 306 : " The rules of construc- tion which apply to general legislation, in regard to those subjects in which the public at large are interested, are essen- tially different from those which apply to private grants to individuals, of powers or privileges designed to be exercised with special reference to their own ad- vantage, although involving in their exercise incidental benefits to the com- munity generally. The former are to be expounded largely and beneficially for the purposes for which they were en- acted, the latter liberally, in favor of the public, and strictly as against the gran- tees. The power in the one case is origi- nal and inherent in the State or sovereign power, and is exercised solely for the general good of the community ; in the other it is merely derivative, is special if not exclusive in its character, and is in derogation of common right, in the sense that it confers privileges to which the members of the community at large are not entitled. Acts of the former kind, 566 CONSTITUTIONAL LIMITATIONS. [CH. XL And this rule is not confined to the grant of a corporate fran- chise, but it extends to all grants of franchises or privileges by the State to individuals, in the benefits of which the people at large cannot participate. " Private statutes," says Parsons, Ch. J., " made for the accommodation of particular citizens or corpora- tions, ought not to be construed to affect the rights or privileges of others, unless such construction results from express words or from necessary implication." 1 And the grant of ferry rights, or the right to erect a toll-bridge, and the like, is not only to be being dictated solely by a regard to the benefit of the public generally, attract none of that prejudice or jealousy towards them which naturally would arise towards those of the other description, from the consideration that the latter were obtained with a view to the benefit of particular individuals, and the apprehension that their interests might be promoted at the sacrifice or to the injury of those of others whose interests should be equally re- garded. It is universally understood to be one. of the implied and necessary con- ditions upon which men enter into society and form governments, that sacrifices must sometimes be required of individuals for the general benefit of the community, for which they have no rightful claim to specific compensation ; but, as between the several individuals composing the community, it is the duty of the State to protect them in the enjoyment of just and equal rights. A law, therefore, enacted for the common good, and which there would ordinarily be no inducement to pervert from that purpose, is entitled to be viewed with less jealousy and distrust than one enacted to promote the interests of particular persons, and which would constantly present a motive for encroach- ing on the rights of others." 1 Coolidge v. Williams, 4 Mass. 140. See also Dyer v. Tuscaloosa Bridge Co., 2 Port. (Ala.) 296, 27 Am. Dec. 655; Grant v. Leach, 20 La. Ann. 329. In Sprague v. Birdsall, 2 Cow. 419, it was held that one embarking upon the Cayuga Lake six miles from the bridge of the Cayuga Bridge Co., and crossing the lake in an oblique direction, so as to land within sixty rods of the bridge, was not liable to pay toll under a provision in the charter of said company which made it unlawful for any person to cross within three miles of the bridge without paying toll. In another case arising under the same charter, which authorized the com- pany to build a bridge across the lake or the outlet thereof, and to rebuild in case it should be destroyed or carried away by the ice, and prohibited all other per- sons from erecting a bridge within three miles of the place where a bridge should be erected by the company, it waa held, after the company had erected a bridge across the lake and it had been carried away by the ice, that they had no authority afterwards to rebuild across the outlet of the lake, two miles from the place where the first bridge was built, and that the restricted limits were to be measured from the place where the first bridge was erected. Cayuga Bridge Co. v. Magee, 2 Paige, 116, 6 Wend. 85. In Chapin v. The Paper Works, 30 Conn. 461, it was held that statutes giving a preference to certain creditors over others should be construed with reasonable strictness, as the law favored equality. In People v. Lambier, 5 Denio, 9, it ap- peared that an act of the legislature had authorized a proprietor of lands lying in the East River, which is an arm of the sea, to construct wharves and bulkheads in the river, in front of his land, and there was at the time a public highway through the land, terminating at the river. Held, that the proprietor could not, by filling up the land between the shore and the bulkhead, obstruct the public right of passage from the Land to the water, but that the street was, by operation of law, extended from the former terminus over the newly made land to the water. Com- pare Commissioners of Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446, 6 Am. Rep. 247 ; Kingsland v. Mayor, &c., 35 Hun, 458; Backus v. Detroit, 49 Mich. 110, 13 N. W. 380. CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 567 construed strictly against the grantees, but it will not be held to exclude the grant of a similar and competing privilege to others, unless the terms of the grant render such construction imperative. 1 The Constitution of the United States contains provisions which are important in this connection. One of these is, that the citi- zens of each State shall be entitled to all the privileges and im- munities of citizens of the several States, 2 and all persons born or naturalized in the United States, and subject to its jurisdiction, are declared to be citizens thereof, and of the State wherein they reside. 3 The States are also forbidden to make or enforce any law which shall abridge the privileges or immunities of the citi- zens of the United States, 4 or to deprive any person of life, liberty, 1 Mills v. St. Clair County, 8 How. 569; Mohawk Bridge Co. v. Utica & S. R. 11. Co., 6 Paige, 554 ; Clienango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 87, 3 Wall. 51; Montjoy o. Pillow, 64 Miss. 705, 2 So. 108. See cases, ante, p. 549, note 1. Compare Haoket v. Wil- son, 12 Oreg. 25, 6 Pac. 652. A ferry franchise may be limited to carrying one way, and another granted for carrying the other. Power v. Athens, 99 N. Y. 592, 2 N. E. 609. An exclusive ferry franchise over a river within certain limits does not prevent carrying up and down the river from a point within the limits. Broadnax v. Baker, 94 N. C. 675. See Hunter v. Moore, 44 Ark. 184. *. Const, of United States, art. 4, 2. See ante, pp. 37, 38. 3 Const, of United States, 14th Amend- ment. 4 " The line of distinction between the privileges and immunities of citizens of the United States and those of citizens of the several States must be traced along the boundary of their respective spheres of action, and the two classes must be as different in their nature as are the func- tions of the respective governments. A citizen of the United States, as such, has the right to participate in foreign and interstate commerce, to have the benefit of the postal laws, to make use in com- mon with others of the navigable waters of the United States, and to pass from State to State, and into foreign countries, because over all these subjects the juris- diction of the United States extends, and they are covered by its laws. Story on Const. 4th ed. 1937. These, therefore, are among the privileges of citizens of the United States. So every citizen may petition the federal authorities which are set over him, in respect to any matter of public concern ; may examine the public records of the federal jurisdiction ; may visit the seat of government without be- ing subjected to the payment of a tax for the privilege : Crandall v. Nevada, 6 Wall. 35 ; may be purchaser of the public lands on the same terms with others ; may par- ticipate in the government if he comes within the conditions of suffrage, and may demand the care and protection of the United States when on the high seas or within the jurisdiction of a foreign government. Slaughter House Cases, 10 Wall. 36. The privileges suggest the immunities. Wherever it is the duty of the United States to give protection to a citizen against any harm, inconvenience, or deprivation, the citizen is entitled to an immunity which pertains to federal citizenship. " One very plain and unquestionable immunity is exemption from any tax, burden, or imposition under State laws, as a condition to the enjoyment of any right or privilege under the laws of the United States. A State, therefore, can- not require one to pay a tax as importer, under the laws of Congress, of foreign merchandise : Ward v. Maryland, 12 Wall. 163; nor impose a tax upon travellers passing by public conveyances out of the State: Crandall v. Nevada, 6 Wall. 35; nor impose conditions to the right of citizens of other States to sue its citizens in the federal courts. Insurance Co. v. Morse, 20 Wall. 445. These instances sufficiently indicate the general rule. "Whatever one may claim as of right 568 CONSTITUTIONAL LIMITATIONS. [CH. XL or property, without due process of law, or to deny to any person within their jurisdiction the equal protection of the laws. 1 Al- under the Constitution and laws of the United States by virtue of his citizenship, is a privilege of a citizen of the Lnited States. Whatever the Constitution and laws of the United States entitle him to exemption from, he may claim an immu- nity in respect to. Slaughter House Cases, 16 Wall. 36. And such a right or privilege is abridged whenever the State law interferes with any legitimate opera- tion of the federal authority which con- cern his interest, whether it be an authority actively exerted, or resting only in the express or implied command or assurance of the federal Constitution or Laws." Coo'ey, Principles of Const. Law, 216. See United States v. Reese, 92 U. S. 214; United States v. Cruik- shank, 92 U. S/542; Hall v. De Cuir, 95 U. S. 485; Kirkland v. Hotchkiss, 100 U. S. 491. Qlt is a privilege of a citizen of the United States to inform the proper United States officer of any infraction of the laws of the United States, and any conspiracy to prevent the exercise of this privilege is a crime. Re Quarles, 158 U. S. 532, 15 Sup. Ct. Rep. 959. But not to practise law before a State Court. Ex parte Lockwood, 154 U. S. 116, 14 Sup. Ct. Rep. 1C82. A citizen of the United States while in custody of a Federal marshal is entitled as such citizen to pro- tection from unlawful violence. Logan v. United States, 144 U. S. 263, 12 Sup. Ct. Rep. 617. Right to vote for a United States representative is a privilege of a properly qualified citizen. Wiley v. Sink- ler, 179 U. S. 58, 21 Sup. Ct. Rep. 17. So, to use the United States flag in any way not prohibited by Congress. Ruhstrat v. People, 185 111. 133, 57 N. E. 41, 49 L. R. A.' 181, 76 Am. St. 30. But not the right to purchase or receive as gift, intoxicating liquors. People v. Bray, 105 Cal. 344, 38 Pae. 731, 27 L. R. A. 158.] 1 Const, of United States, 14th Amend- ment. See cases pp. 14-18, ante. The fourteenth amendment is violated by a statute which allows the overseers of the poor to commit paupers and vagrants to the work-house without trial. Portland v. Bangor, 65 Me. 120 ; Dunn v. Burleigh, 62 Me. 24. It does not confer the right of suffrage upon females. Van Valken- burgh v. Brown, 43 Cal. 43; Bradwell v. State, 16 Wall. 130; Minor v. Happersett, 21 Wall. 162. See ante, pp. 556, 557, notes. Granting licenses for the sale of in- toxicating drinks to males only does not violate a constitutional provision which forbids the grant of special privileges or immunities. Blair v. Kilpatrick, 40 Ind. 315. L~State may require a licensed pharmacist to procure from the county officers a druggist's license for the sale of spirituous liquors before he can use them in the preparation of pharmacists' com- pounds. Gray v. Connecticut, 159 U. S. 74, 15 Sup. Ct. Rep. 985. Upon constitu- tionality of laws regulating sale of liquors, see note to 28 L. ed. U. S. 696. State may compel one person to submit his property to inspection of another for purpose of procuring evidence to aid that other in enforcing his rights. Mon- tana Co. v. St. Louis Mining and Milling Co., 152 U. S. 160, 14 Sup. Ct. Rep. 506; but a court cannot. Martin v. Elliott, 106 Mich. 130, 63 N. W. 998, 31 L. R. A. 169. With regard to inspection of person to procure evidence, see note 4, page 423, ante. But a State cannot deny the right of a seller of merchandise to give witli the thing sold a trading-stamp which en- titles the purchaser to something of value upon presentation to a third person. State v. Dalton, 22 R. I. 77, 46 Atl. 234, 48 L. R. A. 775. Though it may impose a license tax upon dealers using trading stamps, and so may a city, authorized to require licenses for any lawful purpose. Fleetwood v. Read, 21 Wash. 547, 58 Pac. 665, 47 L. R. A. 205. An act prohibiting payment of laborers in scrip, truck, &c., and made applicable only to trusts and corporations employing ten or more persons is void as denying the equal pro- tection of the laws. State t. Haun, 61 Kan. 146, 59 Pac. 340, 47 L. R. A. 369. But see State v. Brown & S. Mfg. Co., 18 R. 1. 16, 25 Atl. 246, 17 L. R. A. 856 ; and Com. v. Hillside Coal Co., 22 Ky. L. 659, 58 S.W. 441 (Sept. 27, 1900), both of which are contra. A statute which requires rail- roads to transport cattle in car-load lots at the usual rates, and in addition to furnish the shipper free transportation to and from the point of destination of the CH. XI.] PROTECTION BY "THE LAW OF THE LAND. 569 though the precise meaning of " privileges and immunities " is not very conclusively settled as yet, it appears to be conceded cattle, is void as denying the equal pro- tection of the laws. Atchison, T. & S. F. R. Co. v. Campbell, 61 Kan. 439, 59 Pac. 1051, 48 L. R. A. 251. The defendant cannot claim that he is denied the equal protection of the laws simply because he is one of a class expressly excepted from the shield of a statute of limitations. Narron v. Wilmington & W. R. Co., 122 N. C. 856, 29 S. E. 356, 40 L. R. A. 415. Statute providing that where corporation neglects to file list of officers upon whom process against it may be served, copies of such process may be left with register of deeds of county in which is the prin- cipal office of corporation, is invalid as not providing due process. Pinney v. Providence L. & Inv. Co., 106 Wis. 396, 82 N. W. 308, 50 L. R. A. 577, and note. Where defendant in a divorce suit denies that plaintiff is his wife, no decree for temporary alimony can issue against him until this question has been determined adversely to him. Kite v. Hite, 124 Cal. 389, 57 Pac. 227, 45 L. R. A. 793, 71 Am. St. 82. Due process of law is satisfied where persons yet unborn are repre- sented by a guardian ad litem. Loring v. Hildreth, 170 Mass. 328, 49 N. E. 652, 40 L. R. A. 127, 64 Am. St. 301. Prohibition to sell trout, or to have them for purpose of sale, does not deprive of property without due process, so long as owner is permitted to eat them or give them away. State v. Schuman,360reg. 16, 58 Pac. 661, 47 L. R. A. 153. Commission merchants dealing in farm produce may be compelled to take out licenses, and submit their business to inspection, and give bonds to secure the faithful performance of their duties to their consignors. State r. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134,46 L. R. A. 442,76 Am. St. 681; contra^ People t>. Berrien Circuit Judge, 124 Mich. 664, 83 N. W. 594, 50 L. R. A. 493, 83 Am. St. 352. See other cases, ante, 561, note a. Statute prohibiting officers of railroad and mining corporations from having any interest in mercantile business in a certain county, but not prohibiting those of other corporations, is void. Luman v. Hitchins Bros. Co., 90 Md. 14, 44 All. 1051, 46 L. R. A. 393. An act requiring employers of unnaturalized foreign-born persons to pay a per-diem tax for each such employee, and deduct the same from his wages, is a denial of the equal protection of the laws. Juniata Limestone Co. v. Fagley, 187 Pa. 193, 40 Atl. 977, 42 L. R. A. 442. A creditor whose debt is secured by mortgage can- not be restricted in his remedy to the property mortgaged. Such a restriction imposed upon freedom of contract is an arbitrary and unwarranted infringement of the liberty of the citizen. Dennis v. Moses, 18 Wash. 537, 52 Pac. 333, 40 L. R. A. 302. Nor can the right to contract for payment in gold coin be taken away by State statute. 76. Tempo- rary confinement of a person duly alleged to be insane, made during pendency of determination of question of insanity, is not an unwarranted deprival of liberty. Porter v. Ritch, 70 Conn. 235, 39 Atl. 169, 39 L. R. A. 353. Denial of right to make defence in contempt proceedings is a denial of due process. McClatchy o. Superior Court of Sacramento Co., 119 Cal. 413, 51 Pac. 696, 39 L. R. A. 691 ; and striking out defendant's answer in proceedings for contempt renders void any judgment thereafter entered against him, in the action. Hovey v. Elliott, 145 N. Y. 126, 39 N. E. 841, 39 L. R. A. 449, aff. in 167 U. S. 409, 17 Sup. Ct. Rep. 841. Employer is not unlawfully deprived of his property when he has entrusted it to his travelling salesman, and an innkeeper seizes it from such salesman to enforce payment of hotel bill. Brown Shoe Co. r. Hunt, 103 Iowa, 586, 72 N. W. 765, 39 L. R. A. 291, 64 Am. St. 198. Non- residents may be partially or wholly exempted from penalties for allowing stock to run at large within the limits of the city. Broadfoot v. Fayetteville, 121 N. C. 418, 28 S. E. 515, 39 L. R. A. 245, 61 Am. St. 668; Jones v. Duncan, 127 N. C. 118, 37 S. E. 135. An act for the registration of land titles, making such registration conclusive evidence in certain cases, was held void because it did not provide for actual notice to claimants within the State, attempting to make a constructive notice sufficient. State r. Guilbert, 66 Ohio, 575, 47 N. E. 651, 38 L. R. A. 619, 60 Am. St. 756. Service 570 CONSTITUTIONAL LIMITATIONS. [GIL XI. that the Constitution secures in each State to the citizens of all other States the right to remove to, and carry on business upon the highest officer or agent within the jurisdiction, where the party is a non- resident joint-stock association, is suffi- cient. State v. Adams Express Co., 66 Minn. 271, 68 N. W. 1085, 38 L. R. A. 225. Equal protection of the laws is denied by a statute requiring citizens of all other counties to secure licenses before fishing in two specified counties, 'none being re- quired of citizens of those counties. State v. Higgins, 51 S. C. 51, 28 S. E. 15, 38 L. R. A. 561. Warrant of arrest not sup- ported either by oath or affirmation is void. Ib. A State may limit the liability of a railroad company for fires caused by sparks from its locomotives, in the entire absence of negligence, to the uninsured value of the property burned, and the insurer whose contract subrogated him to the rights of the insured against the tort feasor cannot complain that lie is denied the equal protection of the law or deprived of property without due process. Leavitt v. Canadian P. R. Co., 90 Me. 153, 37 Atl. 886, 38 L. R. A. 152. A statute abolish- ing the fellow-servant rule as to railway employees, held constitutional in Callahan v. St. Louis M. B. T. Co., Mo. ,71 S. W. 208, following Tullis v. Railway Co., 175 U. S. 348, 20 Sup. Ct. Rep. 136. Statute authorizing administration of property of person who has disappeared and not been heard of for seven years is void. Carr v. Brown, 20 R. I. 215, 38 Atl. 9, 38 L. R. A. 294. So is a statute pro- viding for an ante mortem probate of a will. Lloyd v. Chambers, 56 Mich. 236, 23 N. W. 28. After verdict of guilty, due process will not prevent denial of request for investigation of sanity of prisoner. Baughn v. State, 100 Ga. 554, 28 S. E. 68, 38 L. R. A. 677 ; upon insanity after commission of criminal act, see note to this case in L. R. A. Law prescribing eight hour day for work in underground mines is valid. Holden v. Hardy, 14 Utah, 71, 46 Pac. 756, 87 L. R. A. 103 ; see this case in Supreme Court of the United States, 169 U. S. 366, 18 Sup. Ct. Rep. 383, where the judgment of the State Court is affirmed. Contra, Re Morgan, 26 Col. 415, 58 Pac. 1071, 47 L. R. A. 62, and see Ritchie v. People, 155 111. 98, 40 N. E. 454, 462, 29 L. R. A. 79, 46 Am. St. 315, denying validity of an act providing that no woman should be employed in any clothing manufactory more than eight hours per day. See also Low v. Ilees Printing Co., 41 Neb. 127, 59 N. W. 362, 24 L. R. A. 702, 43 Am. St. 670. Wages cannot be required to be computed upon weight of coal as it comes from mine before it is sorted. Ramsey v. People, 142 111. 380, 32 N. E. 364, 17 L. R. A. 853 ; Re Preston, 63 Ohio St. 428, 59 N. E. 101 ; contra, Peel Splint Coal Co. v. State, 36 W. Va. 802, 15 S. E. 1000, 17 L. R. A. 385. Statute forbidding pay- ment of employees in anything but money is void. State v. Haun, 61 Kan. 146, 59 Pac. 340. In People v. Hill, 163 111. 186, 46 N. E. 796, 36 L. R. A. 634, a law com- pelling a person financially able, to sup- port his pauper sister was sustained. It is not clear, however, upon what ground such a law can be sustained. The sup- port of a pauper is either a public or a pri- vate purpose. If the former, it would seem that moneys to be used therefor should be raised by taxation, and to sad- dle the support of such pauper upon a person of whose family she is not a mem- ber, and who is by no act or neglect of his own chargeable with her creation and existence, is to violate the uniformity and equality necessary to legitimate taxation. If the purpose is private, the case against the validity of the law is still stronger. That service of process by publication may be made sufficient in case no officers or agents of a domestic corporation can be found within the State, see Bernhardt . Brown, 118 N. C. 700, 119 N. C. 506, 24 S. E. 527, 715, 26 S. E. 162, 36 L. R. A. 402. Statute permitting certain agents of humane societies to kill neglected, abandoned, or diseased animals without notice to owner, is void. Loesch v. Koehler, 144 Ind. 278, 41 N. E. 326, 35 L. R. A. 682. Where State's lien for taxes had expired by limitation, the State can- not arbitrarily seize the property. Owner must have notice and opportunity to defend. Kipp v. Elwell, 65 Minn. 525, 68 N. W. 105, 33 L. R. A. 435. Parties to be affected by location of section- corners must have notice of the time at which such location is to be determined. CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 571 therein ; the right by the usual modes to acquire and hold prop- erty, and to protect and defend the same in the law ; the right to Davis v. St. Louis County Comr's, 65 Minn. 310, 67 N. W. 997, 33 L. R. A. 432. Private property cannot be taken for private use, nor can fishermen be author- ized by law to cross private property against the will of the owner in order to reach public fishing grounds. New England Tr. & S. Club v. Mather, 68 Vt. 3'58, 35 Atl. 323, 33 L. R, A. 569. See also Priewe v. Wisconsin State L. & Imp. Co.,93 Wis. 534, 67 N. W. 918, 33 L. R. A. 645. Denial of dramshop license to a person who does not bring petition signed by requisite number of residents is not denial of equal protection, &c. Swift v. People, 162 111. 534, 44 N. E. 528, 33 L. R. A. 470. Arbitrarily to single out a certain class of men (e. g. barbers) and deny to them the right to pursue their ordinary vocation upon Sunday deprives them of property without due process. Eden v. People, 161 111. 296, 43 N. E. 1108, 32 L. R. A. 659, 52 Am. St. 365. Grant- ing the right of appeal to resident land- holders in annexation proceedings, and not to non-resident land-holders, is not a denial of the equal protection of the laws. Taggart v. Claypole, 145 Ind. 590, 44 N. E. 18, 32 L. R. A. 586. Nor is a discrimination between different localities and between different kinds of fish in game laws. Nor is a summary seizure and destruction of nets, used in violation of such laws. Bittenhaus v. Johnston, 92 Wis. 588, 66 N. W. 805, 32 L. R. A. 380. Statute may allow successful plain- tiff in certain cases reasonable attorney's fees, without allowing successful de- fendant in same cases his attorney's fees. Cameron v. Chicago, M. & St. P. R. Co., 63 Minn. 384, 65 N. W. 652, 31 L. R. A. 653 ; Vogel v. Pekoe, 157 111. 339, 42 N. E. 386, 30 L. R. A. 491 ; see also Union C. Life Ins. Co. . Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504; Perkins v. St. Louis, I. M. & S. R. Co., 103 Mo. 52, 15 S. W. 320, 11 L. R. A. 426; contra, Hocking Valley Coal Co. v. Rosser, 53 Ohio St. 12, 41 N. E. 263, 29 L. R. A. 386 ; Phenix Ins. Co. v. Hart, 112 Ga. 765, 38 S. E. 67, and see also Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. Rep. 255; Atchison, T., etc. R. Co.v. Matthews, 174 U. S 96, 19 Sup. Ct. Rep. 609. Rail- roads cannot arbitrarily be required to haul freight over long lines connecting certain points at same rates as are charged for hauling over short lines connecting those points. State v. Sioux City, O. & W. R. Co., 46 Neb. 682, 65 N. W. 766, 791, 31 L. U. A. 47. Notice by letter and by publication is sufficient when the defendant cannot be found and that fact is established by affidavit. Bickerdike v. Allen, 157 111. 95, 41 N. E. 740, 29 L. R. A. 782. Making any person who drives a herd of animals over a hillside road liable for all damage done by them, does not discriminate against him. Brim v. Jones, 11 Utah, 200, 39 Pac. 825, 29 L. R. A. 97 ; aff. in 165 U. S. 180, 17 Sup. Ct. Rep. 282. Refractory witness before grand jury may be summarily imprisoned by justice of peace upon complaint of the grand jury. Re Clark, 65 Conn. 17, 31 Atl. 522, 28 L. E. A. 242. Statute authorizing a probate judge to declare a turnpike road abandoned and vacated, no provision being made for jury trial or for right of appeal, is void. Salt Creek V. T. Co. v. Parks, 50 Ohio St. 568, 35 N. E. 304, 28 L. R. A. 769. Statute authorizing execution against members of limited partnership to extent of unpaid subscrip- tions in satisfaction of debts of partner- ship is valid if amount unpaid is subject to judicial ascertainment. Rouse, H. & Co. v. Donovan, 104 Mich. 234, 62 N. W. 359, 27 L. R. A 577, 53 Am. St. 457. Where tenement-house owner is entitled to trial before any penalty can be assessed against him, he is not entitled to be heard before board of health can issue order requiring him to furnish city water on each floor of tenement house. Health Dept. v. Rector of Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St. 578. Held, that a statute authorizing a road supervisor to enter without notice upon private lands, and take therefrom gravel needed in repairing highways, is valid so long as it contains provisions whereby land-owner is per- mitted to sue and recover from the county his damages. Branson v. Gee, 25 Oreg. 462, 36 Pac. 627, 24 L. R A. 355. State may compel corporations to pay em- ployees at time of discharge, although 572 CONSTITUTIONAL LIMITATIONS. [CH. XI. the usual remedies for the collection of debts and the enforcement regular pay day has not yet arrived, but cannot prevent deduction for damages caused by employee's breach of contract resulting in his discharge. Leep v. St. Louis, I. M. & S. R. Co., 58 Ark. 407, 25 S. W. 75, 41 Am. St. 109, 23 L. R. A. 264. Where property receives no benefit what- ever from a local improvement, collection of an assessment thereon would amount to a taking without due process, and will be enjoined. Oregon & C. R. Co. v. Port- land, 25 Oreg. 229, 35 Pac. 452, 22 L. R. A. 713. A statute attempting to compel the issue of interchangeable railway mileage tickets, and their acceptance by other roads in payment of fare, without giving any lien on tangible property, or providing any fund for their redemption, is void. Att.-Gen. v. Old Colony R. Co., 160 Mass. 62, 35 N. E. 252, 22 L. R. A. 112. Attempted vacation of portion of street solely for private benefit is void. Smith v. McDowell, 148 111. 51, 35 N. E. 141, 22 L. R. A. 393. Statute attempting to deprive lot-owners of right to build out to street line, without providing com- pensation for such deprivation, is void. St. Louis v. Hill, 116 Mo. 527, 22 S. W. 861, 21 L. R. A. 226. Scrip and truck act sustained. Peel Splint Coal Co. ;. State, 36 W. Va. 802, 15 S. E. 1000, 17 L. R. A. 385 ; Hancock v. Yaden, 121 Ind. 366, 23 N. E. 253, 6 L. R. A. 576, 16 Am. St. 396 ; contra, Frorer v. People, 141 111. 171,31 N. E. 395, 16 L. R. A. 492; State v. Goodwill, 33 W. Va. 179, 10 S. E. 285, 6 L. R. A. 621, 25 Am.-St. 863 ; State i'. Fire Creek C. & C. Co., 33 W. Va. 188, 10 S. E. 288, 6 L. R. A. 359, 25 Am. St. 891. Statute restricting right of banking to corporations is bad. State v. Scougal, 3 S. D. 55, 51 N. W. 858, 15 L. R. A. 477, and note, 44 Am. St. 756 ; contra, State v. Woodmanse, 1 N. D. 246, 46 N. W. 970, 11 L. R. A. 420. So is one forbidding employer to levy fine upon employee for defective work. Com. v. Perry, 155 Mass. 117, 28 N. E. 1126, 14 L. R. A. 325, and note, 31 Am. St. 633. So in one requiring judgment debtor, at whose suit execution sale is set aside, to repay to purchaser in such sale the money paid by purchaser. Oilman v. Tucker, 128 N. Y. 190, 28 N. E. 1040, 13 L. R. A. 304, 26 Am. St. 464. Except as expressly provided in the Constitution, the right to appeal is subject to legislative regulation. Sullivan v. Hang, 82 Mich. 548, 46 N. W. 795, 10 L. R. A. 263. State may abso- lutely prohibit the taking of opium into the human bo. 568; Bronson v. Bruce, 59 Mich. 467, 26 Circuit Court, 97 Wis. 1, 72 N. W. 193, N. W. 671. And see cases, p. 628, note, 38 L. R. A. 554, 65 Am. St. 90.] ante. [[Newspapers are not privileged to 2 See Crane v. Waters, 10 Fed. Rep. attempt by their comments to intimidate 619. Lowell, J., 26 Alb. Law Jour. 217. the judges of a court and compel them 3 The following extracts are made to submit to popular clamor the decision from an opinion in Atkinson v. Detroit of a particular case before the court. Free Press, 46 Mich. 341, 376, 9 N. W. Until the decision has been rendered, the 501, which was a suit for libel in a pub- newspapers have no right to comment lication concerning what appeared to be upon or to criticise what they suppose that the dishonest bankruptcy of a member it will be. After it is rendered, and not of the Detroit Board of Trade. As the until then, is it properly before the public, case went off on an unimportant point, Conduct contrary to this rule is a contempt the extracts are given as the views of bf court and may be punished as such, the judge from whose opinion they are State v. Bee Pub. Co., 60 Neb. 282, 83 taken. N. W. 204, 50 L. R. A. 195; State v. "What is a case of privilege? In Tugwell, 19 Wash. 238, 52 Pac. 1056, 43 general terms it may be said to be a case L. R. A. 717 ; People v. Stapleton, 18 in which the circumstances rebut the pre- Col. 568, 33 Pac. 167, 23 L. R. A. 787; sumption of legal malice. By legal ma-' Cooper v. People. 13 Col. 337, 373, 22 lice is meant no more than the wrongful GIL XII.] LIBERTY OF SPEECH AND OF THE PRESS. 647 The publisher of a newspaper, however, even when responsible for all the actual damage which a party may suffer in consequence intention which the law always presumes as accompanying a wrongful act, without any proof of malice in fact. Wason v. Walter, L. R. 4 Q. B. 73, 87. If one tra- duce another, whether knowing him or not, and whether intending to do him an injury or not, the law considers it as done of malice because it is wrongful and in- tentional. It equally, works an injury whether injury was intended or not, and if there was no excuse for the slander, there should be an appropriate remedy. Bromage v. Prosser, 4 B. & C. 247, 255. But the presumption of law may be re- butted by the circumstances under which the defamatory words have been uttered or published ; and whenever this is the case no right of action can arise, even though the character of the party con- cerned may have suffered, unless he is able to show that there was malice in fact. Wason v. Walter, L. R. 4 Q. B. 73, 87 ; Toogood v. Spyring, 1 C. M. & R. 181 ; Lewis v. Levy, El. Bl. & El. 537 ; Taylor v. Hawkins, 16 Q. B. 308, 321; Clark v. Molyneaux, L. R. 3 Q..B. 1). 237; Bar- rows v. Bell, 7 Gray, 301 ; Terry v. Fel- lows, 21 La. Ann. 375; McBee v. Fulton, 47 Md. 403. " The privilege in a communication springs from the fact that there existed in the case some obligation or duty to speak or publish on the subject. Some- times this obligation is mandatory ; the duty is either imposed by law, or the cir- cumstances render it so far imperative that the party upon whom it rests must suffer some penalty or loss unles she rec- ognizes and performs it. In such cases the protection should be as conclusive as the duty is imperative. We have an illustration in the case of a witness in court; the law compels him to state what he knows that is relevant and competent in the controversy, and he will not be suffered to refuse if he would. But the conflicts in testimony give abundant evi- dence that witnesses are frequently mis- taken ; and if they must testify under a responsibility to civil suits for all mis- takes injurious to the reputation of other persons, we should encounter such evasion of process and such suppression of the facts as would in many cases make the truth practically unattainable. In a civil suit against the" witness, therefore, the law will not permit malice to be alleged or shown ; if the witness testify falsely with evil intent, he may be indicted and punished ; but in a civil suit which brings it in question, his evidence must be con- clusively presumed to have been given under the inspiration of proper motives. The same conclusive presumption will attend the filing of the necessary plead- ings and other papers in a cause, and the arguments of counsel, provided they do not wander from the case for the pur- poses of vituperation or harmful imputa- tion upon character, conduct, or motives. Torrey v. Field, 10 Vt. 353; Gilbert v. People, 1 Denio, 41 ; Hoar v. Wood, 3 Met. 193; Strauss v. Meyer, 48 III. 386; Johnson v. Brown, 13 W. Va. 71. But there are other cases in which the privi- lege is only pri ma facie and conditional; it exists so far as to rebut any legal pre- sumption of malice, and constitutes a protection until actual malice is shown. It is therefore a privilege conditioned on the publication having been made with proper motives, but the proof of bad mo- tives or, in other words, of malice in fact must be made by the party who asserts it. Spill v. Maule, L. R. 4 Ex. 232; Shurtleff v. Stevens, 51 Vt. 501. Such a case is where a voter publicly criticises and condemns the character or conduct of a candidate for public honors ; he has a right to do this, and is prima facie protected in his criticism ; but if it is made to appear that his privilege is used as a cloak for groundless and malicious assaults, the protection ceases, because the reason on which it rests ceases. The privilege is the handmaid of good faith. " In the cases of qualified privilege, the duty to speak or publish is not im- perative in the sense that a law is violated if it is not recognized ; it may be a moral or social duty of imperfect obligation. Lord Campbell, Ch. J., in Harrison v. Bush, 6 E. & B. 344. Indeed, most cases of conditional privilege are cases in which a party may speak or abstain at his option ; and if he speaks, it is because others de- sire and have a right to receive infor- mation ou some subject which specially 648 CONSTITUTIONAL LIMITATIONS. [CH. XII. of injurious publications in bis paper, cannot properly be made liable for exemplary or vindictive damages, if the article corn- concerns them, or because in his opinion some moral, social, or political obligation demands it. The law imposes upon no citizen the duty to call the attention of the public to the maladministration of public affairs, or to the misconduct of public servants ; but good citizenship may require him to speak, if his real mo- tive in doing so is to bring about a reform of abuses, or to defeat the re-election or re-appointment of an incompetent officer. Palmer v. Concord, 48 N. H. 211, 216. And nothing is plainer than that to hold him to the strict and literal truth of every statement, recital, and possible inference would be to subject the right to con- ditions making any attempt at public discussion practically worthless. Lord Campbell has well shown in Harrison v. Bush, 5 El. & Bl. 844, and especially by his reference to the cases of Rex v. Bailie, 21 State Trials, 1, and Fairman ?-. Ives, 5 B. & Aid. 642, that the law cherishes this right, and regards liberally its exercise for the public good, so that an honest mistake in seeking the proper remedy through the publication will not be suf- fered to constitute a ground for recovery. Chief Justice Parker thus states the true rule in State v. Burnham, 9 N. H. 34, 41 : 'If the end to be attained is justifiable; as, if the object is the removal of an in- competent officer, or to prevent the elec- tion of an unsuitable person to office, or, generally, to give useful information to the community or to those who have a right and ought to know, in order that they may act upon such information, the occasion is lawful, and the party may then justify or excuse the publication.' Still more comprehensive is the language of the trial judge in Kelly v. Sherlock, L. R. 1 Q. B. 686, G89 : ' Every man has a right to discuss matters of public inter- est. A clergyman with his flock, an ad- miral with his fleet, a general with his army, and a judge with his jury, we are all of us the subjects for public dis- cussion. So also is it matter of public in- terest, the dispute between the plaintiff [a clergyman] and his organist, and the way in which a church is used : they are all public matters, and may be publicly discussed. And provided a man, whether in a newspaper or not, publishes a com- ment on a matter of public interest, fair in tone, and temperate, although he may express opinions that you may not agree with, that is not a subject for an action for libel; because whoever fills a public position renders himself open to public discussion, and if any part of his public acts is wrong, he must accept the attack as a necessary though un- pleasant circumstance attaching to his position. In this country, everything, either by speech or writing, may be dis- cussed for the benefit of the public.' This strong language is approved in Kelly v. Tinling, L. R. 1 Q. B. 699 ; and in Hen- wood v. Harrison, L. R. 7 C. P. 606, 622, the principle is declared to be ' a univer- sal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting hon- estly without actual malice, notwithstand- ing that they involve relevant comments condemnatory of .individuals.' The same principle is found in Toogood v. Spyring, 1 C. M. & R. 181 ; Whitely v. Adams, 15 C. B. (N. s.), 417; Gott v. Pulsifer, 122 Mass. 235 ; McBee v. Fulton, 47 Md. 403 ; Shurtleff v. Stevens, 51 Vt. 501. [And after recapitulating the facts] : " There is no room for plausible sug- gestion that these matters \vere not of public concern. The Detroit Board of Trade is a public institution, in the sense that it challenges public confidence by giving assurances that it is composed of individuals whose business integrity is known and undoubted. The public had reason to trust and confide in Clark, be- cause he had been accepted as a suitable and proper member for this body ; and reason is found in this record for the belief that his associates trusted him be- cause he had won their confidence, and not because of any actual responsibility. It is as important to the city of Detroit that it should have an honorable and trustworthy board of trade a board that would reject and spurn association with one known or believed to be unre- liable and dishonest as it is that it should have a trustworthy mayor or con- CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 649 plained of was inserted in his paper without his personal knowl- edge, and he has been guilty of no negligence in the selection of troller, or police authorities or other pub- lic functionaries. The business prosperity of a commercial city must depend quite as largely upon the honor and integrity of its commercial classes as upon the char- acter of its political rulers; and confidence in these must cease unless fraud, when it appears, can be publicly rebuked. " The defendant is publisher of a daily journal, established to give the facts of important current events, and to discuss, for the information and instruction of its readers, public affairs. This case affords neither occasion nor excuse for any gen- eral discussion of the liberty of the press in giving news ; what was done here might have been done by any individual in a pamphlet under the same privilege that protects a newspaper. Nor has the fact that the liberty of the press is frequently and most grossly abused any relevancy in this case ; we are concerned only with the question whether the liberty of pub- lic discussion was abused in the particular case. The conductors of the defendant's paper, in the regular course of their busi- ness, had had brought to their attention the facts of a transaction which no one ventures to defend. This transaction in its direct consequences was calculated to defraud a number of persons of consider- able sums of money ; in its indirect con- sequences it was likely to disturb the prevailing confidence in an important public institution, and to injure the busi- ness reputation of the city. They inves- tigated the case, and laid the results before the public. No doubt they might have used more carefully-guarded lan- guage, and avoided irritfiting head lines ; but in a case of palpable fraud, which this seemed to be and was, something must be excused to honest indignation ; for the beneficial ends to be subserved by public discussion would, in large measure, be defeated if dishonesty must be handled with delicacy, and fraud spoken of with such circumspection and careful and dif- ferential choice of words as to make it appear in the discussion a matter of in- difference. It is complained that the paper followed its first publication with a review of the whole case a week after it was all settled ; but this review was quite as proper as the first notice. No settlement could relieve the case of its worse aspects. If Clark had repented before he left Windsor, and had followed his money in its remarkable journey, by hack and sail-boat, on foot and in car- riage, and recovered it for the use of his creditors, he ought still to have been brought to the bar of public opinion to be dealt with for his extraordinary con- duct whereby a considerable percentage of his assets had already been wasted. Mott . Dawson, 46 Iowa, 533. The de- fendant's paper would have been unwor- thy of the confidence and support of commercial men if its conductors had shut their eyes to such a transaction. If the plaintiff was not in fault, then it was his misfortune that it was impossible to deal with the case without bringing him into the discussion. "The communication in this case be- ing privileged, and there being in its terms no manifest abuse of the privilege, it was incumbent on the plaintiff to give some evidence of malice before he was entitled to ask a verdict in his favor. Taylor v. Hawkins, 16 Q. B. 308, 321 ; Kenwood v. Harrison, L. R. 7 C. B. 606. The case therefore failed to be made out. If such a discussion of a matter of public interest were prima facie an unlawful act, and the author were obliged to justify every statement by evidence of its literal truth, the liberty of public discussion would be unworthy of being named as a privilege of value. It would be better to restore the censorship of a despotism than to assume to give a liberty which can only be accepted under a responsibility that is always threatening, and may at any time be ruinous. A caution in ad- vance after despotic methods would be less objectionable than a caution in dam- ages after, in good faith, the privilege had been exercised. No public discus- sion of important matters involving the conduct and motives of individuals could possibly be at the same time valuable and safe under the rules for which the plain- tiff contends. It is a plausible suggestion that strict rules of responsibility are es- sential to the protection of reputation ; but it is most deceptive, for every man 650 CONSTITUTIONAL LIMITATIONS. [CH. XII. agents, and no personal misconduct, and is not shown habitually to make his paper the vehicle of detraction and malice. 1 Publication of Legislative Proceedings. Although debates, reports, and other proceedings in legislative bodies are privileged, it does not seem to follow that the publica- tion of them is always equally privileged. The English decisions do not place such publications on any higher ground of right than any other communication through the public press. A member of Parliament, it is said, has a right to publish his speech, but it must not be made the vehicle of slander against any individual, and if it is, it is a libel. 2 And in another case : " A member of [the House of Commons] has spoken what he thought material, and what he was at liberty to speak, in his character as a mem- ber of that house. So far he was privileged ; but he has not stopped there, but, unauthorized by the house, has chosen to pub- lish an account of that speech, in what he has pleased to call a more corrected form, and in that publication has thrown out re- flections injurious to the character of an individual." And he was convicted and fined for the libel. 3 The circumstance that the publication was unauthorized by the house was alluded to in this opinion, but the rule of law would seem to be unaffected by it, since it was afterwards held that an order of the house directing a report made to it to be published did not constitute any protection to the official printer, who had of common discernment, who observes ' l Daily Post Co. v. McArthur, and what is taking place around him, and Detroit Free Press v. Same, 16 Mich. 447 ; what influences control public opinion, Perret v. New Orleans Times, 25 La. cannot fail to know that reputation is Ann. 170 ; Scripps v. Reilly, 35 Mich. 371 ; best protected when the press is free. Same v. Same, 38 Mich. 10 ; Evening Impose shackles upon it and the protec- News v. Tryon, 42 Mich. 529, 4 N. W. 267, tion fails when the need is greatest. Who 36 Am. Rep. 450. A statutory provision would venture to expose a swindler or a that in actions against newspapers only blackmailer, or to give in detail the facts actual damages to property, business, &c., of a bank failure or other corporate def- should be recovered, if the publication alcation, if every word and sentence was in good faith and did not involve a must be uttered witli judicial calmness criminal charge, and if, as soon as possi- and impartiality as between the swindler ble, a correction was published, is bad ; a and his victims, and every fact and every class of citizens cannot be thus favored inference be justified by unquestionable nor can damages be thus limited. Park v. legal evidence ? The undoubted truth is Detroit Free Press Co., 72 Mich. 560, 40 that honesty reaps the chief advantages N. W. 731. But a like statute has been of free discussion ; and fortunately it is upheld in Minnesota. Allen v. Pioneer honesty also that is least liable to suffer Press Co., 40 Minn. 117, 41 N. W. 936. serious injury when the discussion inci- 2 Rex v. Lord Abington, 2 Esp. 226. dentally affects it unjustly." And see 8 Rex v. Creevey, 1 M. & S. 273, 278. Miner v. Detroit Post & Tribune, 49 Mich. 358, 13 N. W. 773. CH. XII.] LIBERTY OF SPEECH AND OF THE PEESS. 651 published it in the regular course of his duty, in compliance with such order. All the power of the house was not sufficient to pro- tect its printer in obeying the order to make this publication ; and a statute was therefore passed to protect in the future per- sons publishing parliamentary reports, votes, or other proceedings, by order of either house. 1 It has been intimated, however, that what a representative is privileged to address to the house of which he is a member, he is also privileged to address to his constituents ; and that the bona fide publication for that purpose of his speech in the house is pro- tected. 2 And the practice in this country appears to proceed on this idea ; the speeches and proceedings in Congress being fully reported by the press, and the exemption of the member from 1 Stat. 3 and 4 Victoria, c. 9. The case was tliat of Stockdale v. Hansard, very fully reported in 9 Ad. & El. 1. See also 11 Ad. & El. 253. The Messrs. Han- sard were printers to the House of Com- mons, and had printed by order of that house the report of the inspectors of prisons, in which a book, published by Stockdale, and found among the pris- oners in Newgate, was described as ob- scene and indecent. Stockdale brought an action against the printers for libel, and recovered judgment. Lord Denman, pre- siding on the trial, said that " the fact of the House of Commons having directed Messrs. Hansard to publish all their par- liamentary reports is no justification for them, or for any bookseller who publishes any parliamentary report containing a libel against any man." The house re- sented this opinion and resolved, " that the power of publishing such of its re- ports, votes, and proceedings as it shall deem necessary or conducive to the pub- lic interests is an essential incident to the constitutional functions of Parliament, more especially of this house as the rep- resentative portion of it." They also resolved that for any person to institute a suit in order to call its privileges in ques- tion, or for any court to decide upon matters of privilege inconsistent with the determination of either house, was a breach of privilege. Stockdale, however, brought other actions, and again recov- ered. When he sought to enforce these judgments by executions, his solicitor and himself were proceeded against for con- tempt of the house, and imprisoned. While in prison Stockdale commenced a further suit. The sheriffs, who had been ordered by the House of Commons to restore the money which they had col- lected, were, on the other hand, com- pelled by attachments from the Queen's Bench to pay it over to Stockdale. In this complicated state of affairs, the proper and dignified mode of relieving the difficulty by the passage of a statute making such publications privileged for the future was adopted. For an account of this controversy, in addition to what appears in the law reports, see May, Law and Practice of Parliament, 156-159, 2d ed. ; May, Constitutional History, c. 7. A case in some respects similar to that of Stockdale v. Hansard is that of Popham v. Pickburn, 7 Hurl. & Nor. 891. The defendant, the proprietor of a newspaper, was sued for publishing a report made by a medical officer of health to a vestry board, in pursuance of the statute, and which reflected severely upon the con- duct of the plaintiff. The publication was made without any comment, and as a part of the proceedings of the vestry board. It was held not to be privileged, notwithstanding the statute provided for the publication of the report by the ves- try board, which, however, had not yet been made. A substantially correct re- port of an open meeting of a town council is privileged. Wallis v. Bazet, 34 La. Ann. 131. 2 Lives of Chief Justices, by Lord Campbell, Vol. III. p. 167; Davison v. Duncan, 7 El. & Bl. 229, 233. 652 CONSTITUTIONAL LIMITATIONS. [CH. XII. being called to account for his speech being apparently supposed to extend to its publication also. When complete publicity is thus practised, perhaps every speech published should be regarded as addressed bona fide by the representative, not only to the house, but also to his constituents. But whether that view be taken or not, if publication is provided for by law, as in the case of Congressional debates, the publishing must be considered as privileged. The Jury as Judges of the Law. In a considerable number of the State constitutions it is pro- vided that, in prosecutions for libel, the jury shall have a right to determine the law and the fact. In some it is added, " as in other cases ; " in others, " under the direction of the court." For the necessity of these provisions we must recur to the rulings of the English judges in the latter half of the last century, and the memorable contests in the courts and in Parliament, resulting at last in the passage of Mr. Fox's Libel Act, declaratory of the rights of juries in prosecutions for libel. In the year 1770, Woodfall, the printer of the " Morning Ad- vertiser," was tried before Lord Mansfield for having published in his paper what was alleged to be a libel on the king ; and his lordship told the jury that all they had to consider was, whether the defendant had published the paper set out in the information, and whether the innuendoes, imputing a particular meaning to particular words, were true, as that " the K " meant his Majesty King George III. ; but that they were not to consider whether the publication was, as alleged in the information, false and malicious, those being mere formal words ; and that whether the letter was libellous or innocent was a pure question of law, upon which the opinion of the court might be taken by a de- murrer, or a motion in arrest of judgment. His charge obviously required the jury, if satisfied the publication was made, and had the meaning attributed to it, to render a verdict of guilty, whether they believed the publication false and malicious or not; in other words, to convict the party of guilt, notwithstanding they might believe the essential element of criminality to be wanting. The jury, dissatisfied with these instructions, and unwilling to make their verdict cover matters upon which they were not at liberty to exercise their judgment, returned a verdict of " guilty of printing and publishing only ;" but this the court afterwards rejected as ambiguous, and ordered a new trial. 1 In Miller's case, which was tried the same year, Lord Mansfield 1 20 State Trials, 895. CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 653 instructed the jury as follows : " The direction I am going to give you is with a full conviction and confidence that it is the language of the law." " If you by your verdict find the defend- ant not guilty, the fact established by that verdict is, he did not publish a paper of that meaning; that fact is established, and there is an end of the prosecution. You are to try that fact, be- cause your verdict establishes that fact, that he did not publish it. If you find that, according to your judgment, your verdict is final, and if you find it otherwise it is between God and your con- sciences, for that is the basis upon which all verdicts ought to be founded ; then the fact finally established by your verdict, if you find him guilty, is, that he printed and published a paper of the tenor and of the meaning set forth in the information ; that is the only fact finally established by your verdict ; and whatever fact is finally established never can be controverted in any shape whatsoever. But you do not by that verdict give an opinion, or establish whether it is or not lawful to print or publish a paper of the tenor, and meaning in the information ; for, supposing the defendant is found guilty, and the paper is such a paper as by the law of the land may be printed and published, the defendant has a right to have judgment respited, and to have it carried to the highest court of judicature." l Whether these instructions were really in accordance with the law of England, it would be of little importance now to inquire. They were assailed as not only destructive to the liberty of the press, but as taking from the jury that right to cover by their verdict all the matter charged and constituting the alleged of- fence, as it was conceded was their right in all other cases. In no other case could the jury be required to find a criminal intent which they did not believe to exist. In the House of Lords they were assailed by Lord Chatham; and Lord Camden, the Chief Justice of the Common Pleas, in direct contradiction to Lord Mansfield, declared his instructions not to be the law of England. Nevertheless, with the judges generally, the view of Lord Mans- field prevailed, and it continued to be enforced for more than twenty years, so far as juries would suffer themselves to be con- trolled by the directions of the courts. The act known as Mr. Fox's Libel Act was passed in 1792, against the protest of Lord Thurlow and five other lords, who predicted from it " the confusion and destruction of the law of England." It was entitled " An act to remove doubts respect- 1 20 State Trials, 870, 891. For an see The Forum, by David Paul Brown, account of the raising of the same ques- Vol. I. p. 280. tion in Pennsylvania, so early as 1692, 654 CONSTITUTIONAL LIMITATIONS. [CH. XII. ing the functions of juries in cases of libel," and it declared and enacted that the jury might give a general verdict of guilty or not guilty, upon the whole matter put in issue upon the indict- ment or information, and should not be required or directed by the court or judge before whom it should be tried to find the de- fendant guilty, merely on the proof of the publication of the paper charged to be a libel, and of the sense ascribed to the same in the indictment or information : Provided, that on every such trial the court or judge before whom it should be tried should, according to their discretion, give their opinion and direction to the jury on the matter in issue, in like manner as in other crim- inal cases : Provided also, that nothing therein contained should prevent the jury from finding a special verdict in their discretion, as in other criminal cases : Provided also, that in case the jury should find the defendant guilty, he might move in arrest of judgment on such ground and in such manner as by law he might have done before the passing of the act. Whether this statute made the jury the rightful judges of the law as well as of the facts in libel cases, or whether, on the other hand, it only placed these cases on the same footing as other criminal prosecutions, leaving it the duty of the jury to accept and follow the instructions of the judge upon the criminal char- acter of the publication, are questions upon which there are still differences of opinion. Its friends have placed the former con- struction upon it, while others adopt the opposite view. 1 In the United States the disposition of the early judges was to adopt the view of Lord Mansfield as a correct exposition of the respective functions of court and jury in cases of libel ; and on the memorable trial of Callendar, which lead to the impeachment of Judge Chase, of the United States Supreme Court, the right of the jury to judge of the law was the point in dispute upon which that judge first delivered his opinion, and afterwards invited argu- ment. The charge there was of libel upon President Adams, and it was prosecuted under the Sedition Law, so called, which expressly provided that the jury should have the right to deter- mine the law and the fact, under the direction of the court, as in other cases. The defence insisted that the Sedition Law was unconstitutional and void, and proposed to argue that question to the jury, but were stopped by the court. The question of the constitutionality of a statute, it was said by Judge Chase, was a judicial question, and could only be passed upon by the court ; the jury might determine the law applicable to the case under 1 Compare Forsyth on Trial by Jury, c. 12, with May's Constitutional History of England, c. 9. CH. XII.] LIBERTY OF SPEECH AND OF THE PEESS. 655 the statute, but they could not inquire into the validity of the statute by which that right was given. 1 Whatever may be the true import of Mr. Fox's Libel Act, it would seem clear that a constitutional provision which allows the jury to determine the law, refers the questions of law to them for their rightful decision. Wherever such provisions exist, the jury, we think, are the judges of the law ; and the argument of coun- sel upon it is rightfully addressed to both the court and the jury. Nor can the distinction be maintained which was taken by Judge Chase, and which forbids the jury considering questions affecting the constitutional validity of statutes. When the question before them is, what is the law of the case, the highest and paramount law of the case cannot be shut from view. Nevertheless, we con- ceive it to be proper, and indeed the duty of the judge, to instruct the jury upon the law in these cases, and it is to be expected that they will generally adopt and follow his opinion. Where, however, the constitution provides that they shall be judges of the law "as in other cases," or may determine the law and the fact " under the direction of the court," we must perhaps conclude that the intention has been simply to put libel cases on the same footing with any other criminal prosecutions, 2 and that the jury will be expected to receive the law from the court. 1 Wharton's State Trials, 688. tock v. O'Neill, 63 Pa. St. 256, 3 Am. 2 " By the last clause of the sixth sec- Rep. 544, Sharswood, J., says : " There tion of the eighth article of the Constitu- can be no doubt that both in criminal tion of this State, it is declared that ' in and civil cases the court may express all indictments for libels the jury shall to thejury their opinion as to whether have the right to determine the law and the publication is libellous. The dif- the facts under the direction of the court, ference is that in criminal cases they as in other cases.' It would seem from are not bound to do so, and if they do, this that the framers of our Bill of Rights their opinion is not binding on the jury, did not imagine that juries were right- who may give a general verdict in oppo- fully judges of law and fact in criminal sition to it; and if that verdict is for the cases, independently of the directions of defendant, a new trial cannot be granted courts. Their right to judge of the law against his consent. As our declaration is a right to be exercised only under the of rights succinctly expresses it, the jury direction of the court; and if they go have the right to determine the law and aside from that direction and determine the facts in indictments for libel, as in the law incorrectly, they depart from other cases. But in civil cases the judge their duty, and commit a public wrong ; is bound to instruct the jury as to whether and this in criminal as well as in civil the publication is libellous, supposing the cases." Montgomery v. State, 11 Ohio, innuendoes to be true ; and if that in- 424, 427. See also, State v. Allen, 1 Me- struction is disregarded, the verdict will Cord, 525 ; State v. Jay, 34 N. J. 368, be set aside as contrary to law. In Eng- 370. land, the courts have recently disregarded, The Constitution of Pennsylvania de- to some extent, this plain distinction be- clares that " in all indictments for libels tween criminal and civil proceedings. It the jury shall have a right to determine appears to be put upon the ground that the law and the facts, under the direction Mr. Fox's act, though limited in terms to of the court, as in other cases." In Pit- indictments and informations, was declara- 656 CONSTITUTIONAL LIMITATIONS. [CH. XII. " Good Motives and Justifiable Ends" In civil suits to recover damages for slander or libel, the truth is generally a complete defence, if pleaded and established. 1 In criminal prosecutions it was formerly not so. The basis of the prosecution being that the libel was likely to disturb the peace and order of society, that liability was supposed to be all the greater if the injurious charges were true, as a man would be more likely to commit a breach of the peace when the matters alleged against him were true than if they were false, in which latter case he might, perhaps, afford to treat them with contempt. 3 Hence arose the common maxim, " The greater the truth, the greater the libel," which subjected the law on this subject to a great deal of ridicule and contempt. The constitutional provi- sions we have quoted generally make the truth a defence if pub- lished with good motives and for justifiable ends. Precisely what showing shall establish good motives and justifiable occasion must be settled by future decisions. In one case the suggestion was thrown out that proof of the truth of the charge alone might be sufficient, 3 but this was not an authoritative decision, and it could tory of the law in all cases of libel ; upon what principle of construction, however, it is not very easy to understand. It is there the approved practice for the judge in civil actions, after explaining to the jury the legal definition of a libel, to leave to them the question whether the publication upon which the action is founded falls within that definition. Fol- kard's Stark. 202 ; Baylis v. Lawrence, 11 A. & E. 920; Parmiter v. Coupland, 6 M. & W. 105; Campbell v. Spottiswoode, 3 B. & S. 781 ; Cox v. Lee, L. R. 4 Exch. 284. These cases were followed in Shat- tuck v. Allen, 4 Gray, 540. Yet it is clearly held that a verdict for the defendant upon that issue will be set aside, and a new trial granted. Hakewell v. Ingram, 28 Eng. Law & Eq. 413. ' Though in crim- inal proceedings for libel,' says Jam's, Ch. J., ' there may be no review, in civil matters there are cases in which verdicts for the defendant are set aside upon the ground that the matter was a libel, thougli the jury found it was not.' This must be conceded to be an anomaly ; and it will be best to avoid a practice which leads to such a result. The law, indeed, may be considered as settled in this State by long practice, never questioned, but incidentally confirmed in McConkle v. Binns, 6 Binn. 340 ; and Hays v. Brierly, 4 Watts, 392. It was held in the case last cited that where words of a dubious import are used, the plaintiff has a right to aver their meaning by innuendo, and the truth of such innuendo is for the jury. In New York, since the recent English cases, the question has been ably dis- cussed and fully considered in Snyder v. Andrews, 6 Barb. 43; Green v. Telfair, 20 Barb. 11; Hunt v. Bennett, 19 N. Y. 173; and the law established on its old foundations." Under like provisions in Tennessee, it is held no error to charge that, if the jury finds certain things true, the publication is prima fucte libellous. Banner Pub. Co. v. State, 16 Lea, 176. Although the jury are judges of the law and facts, it is held that the court should declare the law, as in other cases. State v. Syphrett, 27 S. C. 29, 2 S. E. 624. 1 Foss v. Hildreth, 10 Allen, 76. See ante, pp. 607, 608. 2 State v. Lehre, 2 Brev. 446, 4 Am. Dec. 596. 8 Charge of Judge Belts to the jury in King v. Root, 4 Wend. 121 : " Should the scope of proofs and circumstances lead you to believe the defendants had no CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 657 not be true in any case where the matter published was not fit to be spread before the public, whether true or false. It must be held, we think, that where the defendant justifies in a criminal prosecution, the burden is upon him to prove, not only the truth of the charge, but also the " good motives and justifiable ends " of the publication. These might appear from the very character of the publication itself, if it was true ; as where it exhibited the misconduct or unfituess of a candidate for public office ; but where it related to a person in private life, and who was himself taking no such action as should put his character in issue before the public, some further showing would generally be requisite after the truth had been proved. 1 good end in contemplation, that they again, Was it you ? Was it you ? " On were instigated to these charges solely the trial the defendant introduced evi- to avenge personal and political resent- dence to prove, and contended that he ments against the plaintiff, still, if they did prove, all the facts alleged in his pub- have satisfactorily shown the charges to lication. The court charged the jury be true, they must be acquitted of all lia- that the burden was upon the defendant bility to damages in a private action on to show that the matter charged to be account of the publication. Indeed, if libellous was published with good mo- good motives and justifiable ends must tives and for justifiable ends; that mal- be shown, they might well be implied ice is the wilful doing of an unlawful act, from the establishment of the truth of a and does not necessarily imply personal charge, for the like reason that malice is ill-will towards the person libelled. The inferred from its falsity." Malice, it is defendant excepted to the ruling of the said by Abbott, Ch. J., is alleged in the court as applied to the facts proved, con- declaration " rather to exclude the suppo- tending that, having proved the truth of sition that the publication may have been all the facts alleged in the libel, and the made on some innocent occasion than for publication being in reference to an ille- any other purpose." Duncan v. Thwaites, gal traffic, a public nuisance, the jury 3 B. & C. 556, 585. See Moore v. Stephen- should have been instructed that it was son, 27 Conn. 14. incumbent on the government to show 1 In Commonwealth v. Bonner, 9 Met. that defendant's motives were malicious, 410, the defendant was indicted for a in the popular sense of the word, as re- libel on one Oliver Brown, in the fol- spects said Brown. By the court, Shaw, lowing words : " However, there were a Ch. J. : " The court are of opinion that few who, according to the old toper's the charge of the judge of the Common dictionary, were drunk ; yea, in all con- Pleas was strictly correct. If the pub- science, drunk as a drunken man; and lication be libellous, that is, be such as to who and which of you desperadoes of bring the person libelled into hatred, con- the town got them so ? Was it you tempt, and ridicule amongst the people, whose groggery was open, and the rat malice is presumed from the injurious soup measured out at your bar to drunk- act. But by Rev. Stat. c. 133, 6, ' in ards, while a daughter lay a corpse in every prosecution for writing or publish- your house, and even on the day she was ing a libel, the defendant may give in laid in her cold and silent grave, a victim evidence, in his defence upon the trial, of God's chastening rod upon your guilty the truth of the matter contained in the drunkard-manufacturing head? Was it publication charged as libellous: pro- you who refused to close your drunkery vided, that such evidence shall not be on the day that your aged father was deemed a sufficient justification, unless laid in the narrow house appointed for it shall be further made to appear, on all the living, and which must ere long the trial, that the matter charged to be receive your recreant carcass ? We ask libellous was published with good rao- 42 658 CONSTITUTIONAL LIMITATIONS. [CH. XII. tives and for justifiable ends.' Nothing can be more explicit. The judge, there- fore, was right in directing the jury that, after the publication had been shown to have been made by the defendant, and to be libellous and malicious, the burden was on the defendant, not only to prove the truth of the matter charged as libel- lous, but likewise that it was published with good motives and for justifiable ends. We are also satisfied that the judge was right in his description or definition of legal malice, that it is not malice in its popular sense ; viz., that of hatred and ill-will to the party libelled, but an act done wilfully, unlawfully, and in violation of the just rights of another." And yet it would seem as if, conceding the facts published to be true, the jury ought to have found the occasion a proper one for correcting such indecent conduct by public exposure. See further on this subject, Regina v. Newman, 1 El. & Bl. 268 and 558; s. c. 18 Eng. L. & Eq. 113; Barthelemy v. People, 2 Hill, 248 ; State v. White, 7 Ired. 180 ; State v. Burnham, 9 N. H. 34; Cole v. Wilson, 18 B. Monr. 212 ; Hagan v. Hendry, 18 Md. 177 ; Brad- ley v. Heath, 12 Pick. 163, 22 Am. Dec. 418 ; Snyder v. Fulton, 34 Md. 128, 6 Am. Rep. 614; Commonwealth v. Snelling, 15 Pick. 337. The fact that the publication is copied from another source is clearly no protection, if it is not true in fact. Regina v. Newman, ubi sup. Compare Saunders v. Mills, 6 Bing. 213 ; Creevy v. Carr, 7 C. & P. 64; Sullings v. Shake- speare, 46 Mich. 408, 9 N. W. 451. Neither are the motives cr good char- acter of the defendant, if he has pub- lished libellous matter which is false. Barthelemy v. People, 2 Hill, 248; Com- monwealth v. Snelling, 15 Pick. 337 ; Wilson v. Noonan, 27 Wis. 598. Where the truth is relied upon as a defence, the charge should appear to be true as made. Whittemore v. Weiss, 33 Mich. 348; Palmer v. Smith, 21 Minn. 419. [For an article on this general subject of Liberty of the Press, see 34 Am. L. Rev. 321.] CH. XIII.] OF RELIGIOUS LIBERTY. 659 CHAPTER XIII. OP RELIGIOUS LIBERTY. A CAREFUL examination of the American constitutions will disclose the fact that nothing is more fully set forth or more plainly expressed than the determination of their authors to pre- serve and perpetuate religious liberty, and to guard against the slightest approach towards the establishment of an inequality in the civil and political rights of citizens, which shall have for its basis only their differences of religious belief. The American people came to the work of framing their fundamental laws, after centuries of religious oppression and persecution, sometimes by one party or sect and sometimes by another, had taught them the utter futility of all attempts to propagate religious opinions by the rewards, penalties, or terrors of human laws. They could not fail to perceive, also, that a union of Church and State, like that which existed in England, if not wholly impracticable in America, was certainly opposed to the spirit of our institutions, and that any domineering of one sect over another was repressing to the energies of the people, and must necessarily tend to dis- content and disorder. Whatever, therefore, may have been their individual sentiments upon religious questions, or upon the pro- priety of the State assuming supervision and control of religious affairs under other circumstances, the general voice has been, that persons of every religious persuasion should be made equal before the law, and that questions of religious belief and reli- gious worship should be questions between each individual man and his Maker. Of these questions human tribunals, so long as the public order is not disturbed, are not to take cognizance, except as the individual, by his voluntary action in associating himself with a religious organization, may have conferred upon such organization a jurisdiction over him in ecclesiastical matters. 1 1 The religious societies which exist in tion of attendants upon religious worship, America are mere voluntary societies, with power in the corporation to hold having little resemblance to those which real and personal estate for the purposes constitute a part of the machinery of gov- of their organization, but not for other ernment in England. They are for the purposes. Such a society is "a volun- most part formed under general laws, tary association of individuals or families, which permit the voluntary incorpora- united for the purpose of having a com- 660 CONSTITUTIONAL LIMITATIONS. [CH. XIII. These constitutions, therefore, have not established religious tol- eration merely, but religious equality-; in that particular being nion place of worship, and to provide a proper teacher to instruct them in relig- ious doctrines and duties, and to adminis- ter the ordinances of baptism, &c. Al- though a church or body of professing Christians is almost uniformly connected with such a society or congregation, the members of tlie church have no other or greater rights than any other members of the society who statedly attend with them for the purposes of divine worship. Over the church, as such, the legal or temporal tribunals of the State do not profess to have any jurisdiction what- ever, except so far as is necessary to protect the civil rights of others, and to preserve the public peace. All questions relating to the faith and practice of the church and its members belong to the church judicatories, to which they have voluntarily subjected themselves. But, as a general principle, those ecclesiastical judicatories cannot interfere with the temporal concerns of the congregation or society with which the church or the members thereof are connected." Wai- worth, Chancellor, in Baptist Church v. Wetherell, 3 Paige, 296, 301, 24 Am. Dec. 223. See Ferraria v. Vasconcellos, 31 111. 25 ; Lawyer v. Cipperly, 7 Paige, 281 ; Shannon v. Frost, 3 B. Monr. 253; German, &c. Cong. v. Pressler, 17 La. Ann. 127 ; Sohier v. Trinity Church, 109 Mass. 1 ; Calkins v. Cheney, 92 111. 463. Equity will not determine questions of faith, doctrine, and schism unless neces- sarily involved in the enforcement of ascertained trusts. Fadness v. Braun- borg, 73 Wis. 257, 41 N. W. 84. Such a corporation is not an ecclesiastical, but merely a private civil corporation, the members of the society being the corpo- rators, and the trustees the managing officers, with such powers as the statute confers, and the ordinary discretionary powers of officers in civil corporations. Robertson v. Bullions, 11 N. Y. 243; Miller v. Gable, 2 Denio, 492. Compare Watson v. Jones, 13 Wall. 679. The church connected with the society, if any there be, is not recognized in the law as a distinct entity ; the corporators in the society are not necessarily members thereof, and the society may change its government, faith, form of worship, dis- cipline, and ecclesiastical relations at will, subject only to the restraint imposed by their articles of association, and to the general laws of the State. Keyser v. Stansifer, 6 Ohio, 363 ; Robertson v. Bullions, 11 N. Y. 243 ; Parish of Bellport v. looker, 29 Barb. 256, 21 N. Y. 267; Burrel v. Associated Reform Church, 44 Barb. 282; O'Hara v. Stack, 90 Pa. St. 477; Warner v. Bowdoin Sq. Bapt. Soc. ; 148 Mass. 400, 19 N. E. 403. In New Hampshire the signers of the articles of association and not the pew-owners are the corporators. Trinitarian Cong. Soc. . Union Cong. Soc., 61 N. H. 384. See also Holt v. Downs, 8 N. H. 170. An action will not lie against an incorporated ecclesiastical society for the wrongful expulsion of a nit'inber by the church, Hard in v. Baptist Church, 51 Mich. 137, 16 N. W. 403 ; Sale v. First Baptist Cl>., 62 Iowa, 26, 17 N. W. 143. The courts of the State have no general jurisdiction and control over the officers of such cor- porations in respect to the performance of their official duties ; but as in respect to the property which they hold for the corporation they stand in position of trustees, the courts may exercise the same supervision as in other cases of trust. Ferraria v. Vasconcellos, 31 111. 25; Smith v. Nelson, 18 Vt. 511 ; Watson v. Avery, 2 Bush, 332; Watson v. Jones, 13 Wall. 679; Hale v. Everett, 53 N. H. 9; Box- well v. Affleck, 79 Va. 402; First Ref. Pres. Ch. v. Bowden, 14 Abb. N. C. 356. Where a bishop holds property in trust, upon his insolvency, courts will prevent the diversion of the property to his credi- tors. Mannix v. Purcell, 46 Ohio St. 102, 19 N. E. 572. But the courts will inter- fere where abuse of trust is alleged, only in clear cases, especially if the abuse alleged be a departure from the tenets of the founders of a charity. Happy v. Mor- ton, 33 111. 398. See Hale v. Everett, 53 N. H. 9. It is competent to form such societies on the basis of a community of property. Scribner v. Rapp, 5 Watts, 311, 30 Am. Dec. 327 ; Gass v. Wilhite, 2 Dana, 170, 26 Am. Dec. 446 ; Waite o. Merrill, 4 Me. 102, 16 Am. Dec. 238. The articles of association will determine who may CH. XIII.] OF EELIGIOUS LIBERTY. 661 far in advance not only of the mother country, but also of much of the colonial legislation, which, though more liberal than that vote when the State law does not pre- scribe qualifications. State v. Crowell, 9 N. J. 391. Should there be a disruption of the society, the title to the property will remain witli that part of it which is acting in harmony with its own law ; se- ceders will be entitled to no part of it. McGinnis v. Watson, 41 Pa. St. 9 ; M. E. Church v. Wood, 5 Ohio, 283; Keyser v. Stansifer, 6 Ohio, 363 ; Shannon v. Frost, 3 B. Monr. 253 ; Gibson v. Armstrong, 7 B. Monr. 481 ; Hadden v. Chorn, 8 B. Monr. 70; Ferraria v. Vasconcellos, 23 111. 456 ; Fernstler v. Siebert, 114 Pa. St. 196, 6 Atl. 165 ; Dressen v. Brameier, 56 Iowa, 756, 9 N. W. 193. And this even though there may have been a change in doctrine on the part of the controlling majority. Keyser i. Stansifer, 6 Ohio, 363. See Petty r. Tooker, 21 N. Y. 267 ; Horton v. Baptist Church, 34 Vt. 309; Eggleston v. Doolittle, 33 Conn. 396 ; Miller v. English, 21 N. J. 317 ; Nice-oils v. Kugg, 47 111. 47 ; Kinkead r. McKee, 9 Bush, 535; Baker v. Ducker, 79 Cal. 365, 21 Pac. 764. Whichever body the ecclesiastical authorities recognize as the church, whether it contains a majority of members or not, is entitled to the prop- erty. Gaff v. Greer, 88 Ind. 122; White Lick Meeting v. White Lick Meeting, 89 Ind. 136. Peculiar rights sometimes arise on a division of a society ; as to which we can only refer to Reformed Church r. Schoolcraft, 65 N. Y. 134 ; Kin- kead i'. McKee, 9 Bush, 535; Niccolls v. Rugg, 47 III. 47; Smith v. Swormstedt, 16 How. 288; Henry v. Deitrich, 84 Pa. St. 286. The administration of church rules or discipline the courts of the State do not interfere with, unless civil rights become involved, and then only for the protection of such rights. Hendrickson v. Decow, 1 N. J. Eq. 577 ; Harmon v. Dreher, Speers Eq. 87 ; Dieffendorf v. Ref. Cal. Church, 20 Johns. 12; Wilson . Johns Island Church, 2 Rich Eq. 192 ; Den r. Bolton, 12 N. J. 206; Baptist Church v. Wetlierell, 3 Paige, 801 ; Ger- man Reformed Church v. Seibert, 3 Pa. St. 282; State v. Farris, 45 Mo. 183; McGinnis v. Watson, 41 Pa. St. 9; Wat- son v. Jones, 13 Wall. 679 ; Chase r. Cheney, 58 111. 509 ; Calkins v. Cheney, 92 111. 463; Gartin v. Penick, 5 Bush, 110; Lucas v. Case, 9 Bush, 297 ; People ;;. German, &c. Church, 53 N. Y. 103 ; Gros- venor t>. United Society, 118 Mass. 78; State v. Hebrew Congregation, 30 La. Ann. 205. 33 Am. Rep. 217; State v. Bibb St. Ch., 84 Ala. 23,4 So. 40 ; Living- ston v. Rector, &c., 45 N. J. L. 230; Richardson v. Union Cong. Soc., 58 N. H. 187 ; Matter of First Pres. Soc., 106 N. Y. 251, 12 N. E. 626; Fadness v. Braunborg, 73 Wis. 257, 41 N. W. 84. Decision of church tribunal as to the election of a deacon is conclusive. Atty.-Gen. v. Geer- lings, 55 Midi. 562, 22 N. W. 89. But trustees may be prevented by the courts from continuing to employ a minister who has been deposed : Isliam v. Fullager, 14 Abb. N. C. 363; see Hatchett t;. Mt. Pleasant Ch., 46 Ark. 291 ; from closing a church building : Isliam v. Trustees, 63 How. Pr. 465; and may be compelled to open it to a regularly assigned pastor. People v. Conley, 42 Hun, 98; Whitecar v. Michenor, 37 N. J. Eq. 6. In a congre- gationally governed church a minority of officers may be enjoined from putting in an organ against the wish of the majority of the officers and members : Hackney i>. Vawter, 39 Kan. 615, 18 Pac. 699; and a minority of members from excluding the majority from using the church. Bates v. Houston, 66 Ga. 198. But an excom- munication will not be allowed to affect civil rights. Fitzgerald v. Robinson, 112 Mass. 371. As to the nature and effect of the contract between the society and the minister, see Avery v. Tyringham, 3 Mass. 160, 3 Am. Dec. 105, and note ; Perry v. Wheeler, 12 Bush, 541 ; East Norway Lake Ch. v. Froislie, 37 Minn. 447, 35 N. W. 260; Downs r. Bowdoin Sq. Bapt. Soc., 149 Mass. 135, 21 N. E. 291 ; West v. First Pres. Ch., 41 Minn. 94, 42 N. W. 922. Under New York statute unless a minister's salary is fixed in a certain way, the church is not liable. Landers r. Frank St. M. E. Ch., 97 N. Y. 119. The civil courts may intervene as to a breach of contract for salary. Bird v. St. Mark's Church, 62 Iowa, 667, 17 N. W. 747. As to what is extra vires for such a society, see Harriman v. Baptist Church, 63 Ga. 186, 36 Am. Rep. 117. 662 CONSTITUTIONAL LIMITATIONS. [CH. XIII. of other civilized countries, nevertheless exhibited features of discrimination based upon religious beliefs or professions. 1 Considerable differences will appear in the provisions in the State constitutions on the general subject of the present chapter ; some of them being confined to declarations and prohibitions whose purpose is to secure the most perfect equality before the law of all shades of religious belief, while some exhibit a jealousy of ecclesiastical authority by making persons who exercise the functions of clergyman, priest, or teacher of any religious per- suasion, society, or sect, ineligible to civil office ; 2 and still others show some traces of the old notion, that truth and a sense of duty do not consort with scepticism in religion. 3 There are excep- 1 For the distinction between religious toleration and religious equality, see Bloom v. Richards, 2 Ohio St. 389 ; Hale v. Everett, 53 N. H. 1. And see Madison's views, in his Life by Rives, Vol. l,p. 140. It was not easy, two centuries ago, to make men educated in the ideas of those days understand how there could be com- plete religious liberty, and at the same time order and due subordination to au- thority in the State. " Coleridge said that toleration was impossible until in- difference made it worthless." Lowell, " Among my Books," 336. Roger Wil- liams explained and defended his own views, and illustrated the subject thus : " There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a commonwealth, or human combination or society. It hath fallen out sometimes that both Papists and Pro- testants, Jews and Turks, may be em- barked in one ship; upon which supposal I affirm that all the liberty of conscience I ever pleaded for turns upon these two hinges : that none of the Papists, Protes- tants, Jews, or Turks be. forced to come to the ship's prayers or worship if they practise any. I further add that I never denied that, notwithstanding this liberty, the commander of this ship ought to com- mand the ship's course, yea, and also command that justice, peace, and sobriety be kept and practised, both among the seamen and all the passengers. If any of the seamen refuse to perform their ser- vice, or passengers to pay their freight ; if any refuse to help, in person or purse, towards the common charges or defence ; if any refuse to obey the common laws and orders of the ship, concerning their common peace and preservation ; if any shall mutiny and rise up against their commanders and officers ; if any should preach or write that there ought to be no commanders or officers, because all are equal in Christ, therefore no masters nor officers.no lawsnororders.no corrections nor punishments ; I say I never denied but in such cases, whatever is pretended, the commander or commanders may judge, resist, compel, and punish such transgressors according to their deserts and merits." Arnold's History of Rhode Island, Vol. I. p. 254, citing Knowles, 279, 280. There is nothing in the first amendment to the federal Constitution which can give protection to those who practise what is forbidden by the statute as criminal, e.g. bigamy, on the pre- tence that their religion requires or sanc- tions it. Reynolds v. United States, 98 U. S. 145. 2 There are provisions to this effect, more or less broad, in the Constitutions of Tennessee, Delaware, Maryland, and Kentucky. 3 The Constitution of Pennsylvania provides " that no person who acknowl- edges the being of God, and a future state of rewards and punishments, shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth." Art. 1, 4. The Constitution of North Carolina : " The following classes of per- sons shall be disqualified for office : First: All persons who shall deny the existence of Almighty God," &c. Art. 6, 5 The Constitutions of Mississippi and South Carolina : " No person who denies CH. XIII.] OF RELIGIOUS LIBERTY. 663 tional clauses, however, though not many in number ; and it is believed that, where they exist, they are not often made use of to deprive any person of the civil or political rights or privileges which are placed by law within the reach of his fellows. Those things which are not lawful under any of the American constitutions may be stated thus : 1. Any law respecting an establishment of religion. The legis- latures have not been left at liberty to effect a union of Church and State, or to establish preferences by law in favor of any one religious persuasion or mode of worship. There is not complete religious liberty where any one sect is favored by the State and given an advantage by law over other sects. 1 Whatever estab- the existence of the Supreme Being shall hold any office under this Constitution." The Constitution of Tennessee : " No person who denies the being of a God, or a future state of rewards and punish- ments, shall hold any office in the civil department of this State." On the other hand, the Constitutions of Georgia, Kan- sas, Virginia, West Virginia, Maine, Del- aware, Indiana, Iowa, Oregon, Ohio, New Jersey, Nebraska, Minnesota, Arkansas, Texas, Alabama, Missouri, Rhode Island, Nevada, and Wisconsin expressly forbid religious tests as a qualification for office or public trust. Very inconsistently the Constitutions of Mississippi and Tennes- see contain a similar prohibition. In the Constitutions of Alabama, Colorado, Georgia, Illinois, Iowa, Kentucky, Michi- gan, New Jersey, Rhode Island, and West Virginia, it is provided that no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions. The Constitution of Maryland provides " that no religious test ought ever to be required as a qualifica- tion for any office of trust or profit in this State, other than a declaration of belief in the existence of God ; nor shall the legislature prescribe any other oath of office than the oath prescribed by this con- stitution." Declaration of Rights, Art. 37. The Constitution of Illinois provides that "the free exercise and enjoyment of religious profession and worship without discrimination shall forever be guaran- teed ; and no person shall be denied any civil or political right, privilege, or ca- pacity, on account of his religious opin- ions ; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices in- consistent with the peace or safety of the State. No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of wor- ship." Art. 2, 3. The Constitutions of California, Colorado, Connecticut, Flor- ida, Georgia, Illinois, Maryland, Minne- sota, Mississippi, Missouri, Nevada, New York, and South Carolina contain pro- visions that liberty of conscience is not to justify licentiousness or practices incon- sistent with the peace and moral safety of society. 1 A city ordinance is void which gives to one sect a privilege denied to others. Shreveport v. Levy, 26 La. Ann. 671. It is not unconstitutional to permit a school- house to be made use of for religious purposes when it is not wanted for schools. Nichols v. School Directors, 93 111.61, 34 Am. Rep. 160; Davis v. Boget, 60 Iowa, 11. But in Missouri it seems the school directors have no authority to permit such use. Dorlin v. Shearer, 67 Mo. 301. Under the Illinois Constitution of 1848 the legislature had no authority to take a private school-house, erected under the provisions of a will as a school- house and place of worship, and constitute it a school district, and provide for the election of trustees, and invest them with taxing power for the support of a school therein. People v. McAdams, 82 111. 356. But the basement of a church may be used for a school and teachers of one sect employed. And if religious instruction is given daily, though not required by 664 CONSTITUTIONAL LIMITATIONS. [CH. XIII. lishes a distinction against one class or sect is, to the extent to which the distinction operates unfavorably, a persecution ; and if based on religious grounds, a religious persecution. The extent of the discrimination is not material to the principle ; it is enough that it creates an inequality of right or privilege. 2. Compulsory support, by taxation or otherwise, of religious instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary. It is not within the sphere of gov- ernment to coerce it. 1 3. Compulsory attendance upon religious worship. Whoever is not lead by choice or a sense of duty to attend upon the ordi- nances of religion is not to be compelled to do so by the State. It is the province of the State to enforce, so far as it may be found practicable, the obligations and duties which the citizen may be under or may owe to his fellow-citizens or to society ; but those which spring from the relations between himself and his Maker are to be enforced by the admonitions of the conscience, and not by the penalties of human laws. Indeed, as all real worship must essentially and necessarily consist in the free-will offering of adoration and gratitude by the creature to the Creator, human laws are obviously inadequate to incite or compel those internal and voluntary emotions which shall induce it, and human penalties at most could only enforce the observance of idle cere- monies, which, when unwillingly performed, are alike valueless to the participants and devoid of all the elements of true worship. the authorities, a taxpayer cannot have but failed, though at the same time the equitable relief. Millard v. Board of acceptance of the Protestant religion as Education, 121 111. 297, 10 N. E. 669. a test for office was abolished, and the QA municipal corporation cannot hold as application of moneys raised by taxation trustee real estate devoted to religious to the support of denominational schools uses. Maysville v. Wood, 102 Ky. 263, was prohibited. [[But to appropriate 43 S. W. 403, 39 L. R. A. 93.] moneys to a hospital in payment for 1 We must exempt from this the State treatment and cure of poor persons under of New Hampshire, whose constitution a contract for such treatment is not to permits the legislature to authorize " the appropriate moneys in support of a reli- several towns, parishes, bodies corporate, gious society, even though all the in- or religious societies within this State to corporators of the hospital are of one make adequate provisions, at their own faith, the hospital corporation being en- expense, for the support and maintenance tirely independent of all church or reli- ef public Protestant teachers of piety, re- gious organizations, and being open to ligion, and morality;" but not to tax persons of all faiths or no faith. Bradfield those of other sects or denominations for v. Roberts, 175 U. S. 291, 20 Sup. Ct. Rep. their support. Part 1, Art. 6. As to 121. Subventions cannot be made to meaning of Protestant, see Hale v. Ever- sectarian schools to aid them in even ett, 53, N. H. 1. The attempt to amend purely secular instruction. Synod of the above provision by striking out the Dakota v. State, 2 S. I"). 366, 50 N. W. word "Protestant" was made in 187t>, 632, 14 L. R. A. 418, and note.] CH. XIII.] OF RELIGIOUS LIBERTY. 665 4. Restraints upon the free exercise of religion according to the dictates of the conscience. No external authority is to place itself between the finite being and the Infinite when the former is seeking to render the homage that is due, and in a mode which commends itself to his conscience and judgment as being suitable for him to render, and acceptable to its object. 1 5. Restraints upon the expression of religious belief. An earnest believer usually regards it as his duty to propagate his opinions, and to bring others to his views. To deprive him of this right is to take from him the power to perform what he considers a most sacred obligation. These are the prohibitions which in some form of words are to be found in the American constitutions, and which secure free- dom of conscience and of religious worship. 2 No man in religious 1 This guaranty does not prevent adopting reasonable rules for the use of streets, and forbidding playing therein on an instrument, though it be done as an act of worship. Com. v. Plaisted, 148 Mass. 374, 19 N. E. 224; State v. White, 64 N. H. 48, 5 All. 828. 2 This whole subject was considered very largely in the case of Minor v. The Board of Education, in the Superior Court of Cincinnati, involving the right of the school board of that city to exclude the reading of the Bible from the public schools. The case was reported and pub- lished by Robert Clarke & Co., Cincinnati, under the title, " The Bible in the Public Schools," 1870. The point of the case may be briefly stated. The constitution of the State, after various provisions for the protection of religious liberty, con- tained this clause : " Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws to protect every religious denomina- tion in the peaceable enjoyment of its own mode of public worship, and to en- courage schools and the means of instruc- tion." There being no legislation on the subject, except such as conferred large discretionary power on the Board of Edu- cation in the management of schools, that body passed a resolution, " that re- ligious instruction and the reading of religious books, including the Holy Bible, are prohibited in the Common Schools of Cincinnati ; it being the true object and intent of this rule to allow the children of the parents of all sects and opinions, in matters of faith and worship, to enjoy alike the benefit of the Common School fund." Certain taxpayers and citizens of said city, on the pretence that this ac- tion was against public policy and mo- rality, and in violation of the spirit and intent of the provision in the constitution which has been quoted, filed their com- plaint in the Superior Court, praying that the board be enjoined from enforcing said resolution. The Superior Court made an order granting the prayer of the complaint ; but the Supreme Court, on appeal, reversed it, holding that the pro- vision in the constitution requiring the passage of suitable laws to encourage morality and religion was one addressed solely to the judgment and discretion of the legislative department ; and that, in the absence of any legislation on the sub- ject, the Board of Education could not be compelled to permit the reading of the Bible in the schools. Board of Educa- tion v. Minor, 23 Ohio St. 211. On the other hand, it has been decided that the school authorities, in their discretion, may compel the reading of the Bible in schools by pupils, even though it be against the objection and protest of their parents. Donahoe v Richards, 38 Me. 376 ; Spiller v. Woburn, 12 Allen, 127. [The Consti- tution of Iowa, Article 1, Sec. 3, bill of rights, provides : " The general assembly shall make no law respecting an establish- ment of religion, or prohibiting the free exercise thereof ; nor shall any person be compelled to attend any plnce of worship, 666 CONSTITUTIONAL LIMITATIONS. [CH. XIII. matters is to be subjected to the censorship of the State or of any pay tithes, taxes, or other rates for build- ing or repairing places of worship or the maintenance of any minister or ministry." A statute of the State provided, " The Bible shall not be excluded from any school or institution in this State, nor shall any pupil be required to read it, contrary to the wishes of his parent or guardian." In Moore v. Monroe, 64 Iowa 367, 20 N. W. 475, the State Supreme Court was called upon to pass upon the constitution- ality of the statute, and of the practice on the part of a teacher of occupying a few minutes each morning in reading selec- tions from the Bible, in repeating the Lord's Prayer, and singing religious songs. The court, adopting the view of the complainant, that such practice was " wor- ship," within the meaning of that term as used in the constitution, yet that such practice did not constitute the school- room a " place of worship," and the logic of the opinion would require the conclu- sion that the teacher was not a " minis- ter " within the meaning of that term as used in the constitution. The view of the court being that the object of the pro- vision was accomplished by a construction which would prevent the burdening of the taxpayer, for the building or repair- ing of " any place designed to be used distinctively as a place of worship," and that the casual use of a public building as a place for offering prayer, or doing*, other acts of religious worship, was not within the prohibition of the constitution. This case in Iowa was followed, six years later, 1899, by State v. District Board, 76 Wis. 177, 44 N. W.967, 7 L. R. A. 330, 20 Am. St. 41. The Constitution of Wisconsin contained these provisions : "The right of every man to worship Al- mighty God according to the dictates of his own conscience shall never be in- fringed ; nor shall any man be com- pelled to attend, erect, or support any place of worship ; . . . nor shall any control of or interference with the rights of conscience be permitted, or any pref- erence be given by law to any religious establishments or modes of worship," Const. Art. 1, Sec. 18; and, "The legis- lature shall provide by law for the estab- lishments of district schools, which shall be as nearly uniform as practicable : and such schools shall be free and without charge for tuition, to all children between the ages of four and twenty years; and no sectarian instruction shall be allowed therein." Const. Art. x. Sec. 3. These provisions were construed in a case in which it appeared that the teacher of one of the district schools in the State was in the habit, daily, of reading in the school some portion of the King James version of the Bible, without comment and with- out requiring pupils who did not care to be present to attend while it was being done. It was held that the stated read- ing of the Bible constituted the school- room for the time a place of worship, and against this the taxpayer had a right to object. Also that the use of any version of the Bible as a text-book, and the stated readings thereof in the public schools, though unaccompanied by any comment, " was sectarian instruction " within the meaning of that phrase as used in the constitution. In 1898 the Supreme Court of Michi- gan was called upon to consider the effect of the constitutional provisions of that State in a case in which it appeared that a teacher practised reading, during fifteen minutes preceding the close of school each day, from a book entitled " Read- ings from the Bible," largely made up of extracts from the Bible. No comments were made on the matter read, and pupils not desiring to attend were excused. The constitutional provisions considered were : " The legislature shall pass no law . . . to compel any person to attend, erect, or support any place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel or teacher of religion." Const. Art. 4, Sec. 39; and, " No money shall be appro- priated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary, nor shall property belonging to the State be appropriated for any such purposes." Const. Art. 4, Sec. 40 ; and, " The legisla- ture shall not diminish or enlarge the civil or political rights, privileges, and capacities of any person on account of his opinion or belief concerning matters of religion." Const. Art. 4, Sec. 41. It was held, such use of such a book did not violate any of the provisions referred to ; that it did not constitute the school- CH. XIII.] OF EELIGIOUS LIBERTY. 667 public authority ; and the State is not to inquire into or take room a "place of religious worship," nor was the teacher, a " teacher of religion "; that it did not violate any " civil or polit- ical rights," nor did it involve the " ap- propriation" of any money, or property of the State "for the benefit of any religious sect, society or theological, or religious seminary." Pfeiffer v. Bd. of Education, 118 Mich. 560, 77 N. W. 250, 42 L. R. A. 536. In 1902, in the case of State v. Scheve, Neb. ,91 N. W. 846, the provisions of the Constitution of Nebraska were construed. Sec. 4 of Art. 1 provides, among other things, that, " No person shall be compelled to attend, erect, or support any place of worship against his consent, and no preference shall be given by law to any religious society, nor shall any interference with the rights of conscience be permitted." Sec. 11 of Art. 8 provides that " no sectarian in- struction shall be allowed in any school or institution supported in whole or in part by the public funds set apart for educational purposes." Held, that exer- cises by a teacher in a public school, in a school building, in school hours, and in the presence of the pupils, consisting of the reading of passages from the Bible, and in the singing of songs and hymns, and offering prayer to the Diety in ac- cordance with the doctrines, beliefs, cus- toms, or usages of sectarian churches or religious organizations is forbidden by the constitution. On rehearing, the court uses the following language : " The deci- sion (referring to the one just noted) does not, however, go to the extent of entirely excluding the Bible from the public schools. It goes only to the extent of denying the right to use it for the pur- pose of imparting sectarian instruction. The pith of the opinion is in the syllabus, which declares that 'exercises by a teacher in a public school in a school building, in school hours, and in the presence of the pupils, consisting of the reading of passages from the Bible, and in the singing of songs and hymns, and offering prayer to the Deity, in accord- ance with the doctrines, beliefs, customs, or usages of sectarian churches or relig- ious organizations, are forbidden by the constitution of this State.' Certainly the Iliad may be read in the schools without inculcating a belief in the Olympic divin- ities, and the Koran may be read without teaching the Moslem faith. Why may not the Bible also be read without indoc- trinating children in the creed or dogma of any sect 1 Its contents are largely historical and moral. Its language is un- equalled in purity and elegance. Its style has never been surpassed. Among the classics of our literature it stands pre- eminent. It has been suggested that the English Bible is, in a special and limited sense, a sectarian book. To be sure, there are, according to the Catholic claim, vital points of difference with respect to faith and morals between it and the Douay version. In a Pennsyl- vania case cited by counsel for respon- dents, the author of the opinion says that he noteil over 50 points of difference be- tween the two versions, some of them important, and others trivial. These dif- ferences constitute the basis of some of the peculiarities of faith and practice that distinguish Catholicism from Prot- estantism, and make the adherents of each a distinct Christian sect. But the fact that the King James translation may be used to inculcate sectarian doctrines affords no presumption that it will be so used. The law does not forbid the use of the Bible in either version in the public schools. It is not proscribed either by the constitution or the statutes, and the courts have no right to declare its use to be unlawful, because it is possible or probable that those who are privileged to use it will misuse the privilege by at- tempting to propagate their own peculiar theological or ecclesiastical views and opinions. The point where the courts may rightfully intervene, and where they should intervene without hesitation, is where legitimate use has degenerated into abuse, where a teacher employed to give secular instruction has violated the constitution by becoming a sectarian propagandist. That sectarian instruction may be given by the frequent reading, without note or comment, of judiciously selected passages, is, of course, obvious. A modern philosopher perhaps the greatest has said that persistent iter- ation is the most effective means of forcing alien conceptions upon reluctant minds. Whether it is prudent or politic 668 CONSTITUTIONAL LIMITATIONS. [CH. XIII. notice of religious belief, when the citizen performs his duty to the State and to his fellows, and is guilty of no breach of public morals or public decorum. 1 But while thus careful to establish, protect, and defend reli- gious freedom and equality, the American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions to permit Bible reading in the public schools is a question for the school au- thorities to determine, but whether the practice of Bible reading has taken the form of sectarian instruction in a partic- ular case is a question for the courts to determine upon evidence. It cannot be presumed that the law has been violated. The alleged violation must in every instance be established by competent proof. The value of the common schools as disseminators of knowledge and social levelers is well understood and justly appreciated, and there is little likelihood that the people will ever permit their usefulness to be impaired by sectarian controversies. When we consider that this is the first case of its kind ever presented to this court for decision, we feel assured that neither teachers nor school boards have been much inclined to bring discord into the schools for the chance of securing by indirection a slight sectarian advantage. But if the fact were otherwise, it could not in any way affect our conclusion. The section of the constitution which provides that ' no sectarian instruction shall be allowed in any school or institution supported, in whole or in part, by public funds set apart for educational purposes,' cannot, under any canon of instruction with which we are acquainted, be held to mean that neither the Bible, nor any part of it, from Genesis to the Revelation, may be read in the educational institutions fos- tered by the State. We do not wish to be understood as either countenancing or discountenancing the reading of the Bible in the public schools. Even where it is an irritant element, the question whether its legitimate use shall be continued or discontinued is an administrative, and not a judicial question. It belongs to the school authorities, not to the courts."] 1 Congress is forbidden, by the first amendment to the Constitution of the United States, from making any law re- specting an establishment of religion, or prohibiting the free exercise thereof. Mr. Story says of this provision : " It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intoler- ance of sects, exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act up- on the subject. The situation, too, of the different States equally proclaimed the policy as well as the necessity of such an exclusion. In some of the States, Episcopalians constituted the predom- inant sect ; in others, Presbyterians ; in others, Congregationalists ; in others, Quakers ; and in others again there was a close numerical rivalry among contend- ing sects. It was impossible that there should not arise perpetual strife and per- petual jealousy on the subject of ecclesi- astical ascendancy, if the national govern- ment were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declara- tion of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the State govern- ments, to be acted upon according to their own sense of justice and the State constitutions ; and the Catholic and Prot- estant, the Calvinist and the Arminian, the Jew and the infidel, may sit down at the common table of the national coun- cils, without any inquisition into their faith or mode of worship." Story on the Constitution, 1879 ; 1 Tuck. Bl. Com. App. 296. For an examination of this amendment, see Reynolds v. United States, 98 U. S. 145. CH. XIII.] OF RELIGIOUS LIBERTY. G69 and exercises as the general religious sentiment of mankind in- spires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the great Governor of the Universe, and of acknowledging with thanksgiving His boundless Savors, of bowing in contrition when visited with the penalties of His broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed ; when chaplains are designated for the army and navy ; when legislative sessions are opened with prayer or the reading of the Scriptures, or when reli- gious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State gov- ernment. Undoubtedly the spirit of the constitution will require, in all these cases, that care be taken to avoid discrimination in favor of or against any one religious denomination or sect ; but the power to do any of these things does not become unconstitu- tional simply because of its susceptibility to abuse. 1 This public recognition of religious worship, however, is not based entirely, perhaps not even mainly ,.upon a sense of what is due to the Su- preme Being himself as the author of all good and of all law ; but the same reasons of State policy which induce the government to aid institutions of charity and seminaries of instruction, will incline it also to foster religious worship and religious institutions, as con- servators of the public morals, and valuable, if not indispensable assistants in the preservation of the public order. Nor, while recognizing a superintending Providence, are we always precluded from recognizing also, in the rules prescribed for the conduct of the citizen, the notorious fact that the prevail- ing religion in the States is Christian. Some acts would be offen- sive to public sentiment in a Christian community, and would tend to public disorder, which in a Mahometan or Pagan country might be passed by without notice, or even be regarded as meritorious ; just as some things would be considered indecent, and worthy of reprobation and punishment as such, in one state of society, which in another would be in accord with the prevailing customs, and therefore defended and protected by the laws. The criminal laws of every country are shaped in greater or less degree by the prevailing public sentiment as to what is right, proper, and decor- ous, or the reverse ; and they punish those acts as crimes which disturb the peace and order, or tend to shock the moral sense or sense of propriety and decency, of the community. The moral sense is largely regulated and controlled by the religious belief ; 1 See Trustees First M. E. Ch. v. Atlanta, 76 Ga. 181. 670 CONSTITUTIONAL LIMITATIONS. [oil. XIII. and therefore it is that those things which, estimated by a Chris- tian standard, are profane and blasphemous, are properly pun- ished as crimes against society, since they are offensive in the highest degree to the general public sense, and have a direct ten- dency to undermine the moral support of the laws, and to corrupt the community. It is frequently said that Christianity is a part of the law of the land. In a certain sense and for certain purposes this is true. The best features of the common law, and especially those which regard the family and social relations ; which compel the parent to support the child, the husband to support the wife ; which make the marriage-tie permanent and forbid polygamy, if not derived from, have at least been improved and strengthened by the prevailing religion and the teachings of its sacred Book. But the law does not attempt to enforce the precepts of Chris- tianity on the ground of their sacred character or divine origin. Some of those precepts, though we may admit their continual and universal obligation, we must nevertheless recognize as being incapable of enforcement by human laws. That standard of morality which requires one to love IMS neighbor as himself we must admit is too elevated to be accepted by human tribunals as the proper test by which to judge the conduct of the citizen ; and one could hardly be held responsible to the criminal laws if in goodness of heart and spontaneous charity he fell something short of the Good Samaritan. The precepts of Christianity, moreover, afi'ect the heart, and address themselves to the conscience : while the laws of the State can regard the outward conduct only ; and for these several reasons Christianity is not a part of the law of the land in any sense which entitles the courts to take notice of and base their judgments upon it, except so far as they can find that its precepts and principles have been incorporated in and made a component part of the positive law of the State. 1 Mr. Justice Story has said in the Girard Will case that, al- though Christianity is a part of the common law of the State, it is only so in this qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or to the injury of the public. 2 It may be doubted, however, if the 1 Andrews v. Bible Society, 4 Sandf. also by Dr. S. T. Spear in his book enti- 156, 182 ; Ayres v. Methodist Church, 3 tied " Religion and the State." Sandf. 351 ; State . Chandler, 2 Harr. 2 Vidal v. Girard's Ex'rs, 2 How. 127, 553; Bloom v. Richards, 2 Ohio St. 387; 198. Mr. Webster's argument that Chris- Board of Education v. Minor, 23 Ohio St. tianity is a part of the law of Pennsylvania 210. The subject is largely considered in is given in 6 Webster's Works, p. 175. FJAn Hale v. Everett, 53 N. H. 1, 201 et set}., and indictment for blasphemy and profane CH. XIII.] OF RELIGIOUS LIBERTY. 671 punishment of blasphemy is based necessarily upon an admission of the divine origin or truth of the Christian religion, or incapable of being otherwise justified. Blasphemy has been defined as consisting in speaking evil of the Deity, with an impious purpose to derogate from the divine majesty, and to alienate the minds of others from the love and reverence of God. It is purposely using words concerning the Supreme Being calculated and designed to impair and destroy the reverence, respect, and confidence due to him, as the intelli- gent Creator, Governor, and Judge of the world. It embraces the idea of detraction as regards the character and attributes of God, as calumny usually carries the same idea when applied to an individual. It is a wilful and malicious attempt to lessen men's reverence of God, by denying his existence or his attributes as an intelligent Creator, Governor, and Judge of men, and to prevent their having confidence in him as such. 1 Contumelious reproaches and profane ridicule of Christ or of the Holy Scriptures have the same evil effect in sapping the foundations of society and of public order, and are classed under the same head. 2 In an early case where a prosecution for blasphemy came before Lord Hale, he is reported to have said : " Such kind of wicked, blasphemous words are not only an offence to God and religion, but a crime against the laws, State, and government, and there- fore punishable in the Court of King's Bench. For to say reli- gion is a cheat, is to subvert all those obligations whereby civil society is preserved; that Christianity is a part of the laws of England, and to reproach the Christian religion is to speak in subversion of the law." 3 Eminent judges in this country have adopted this language, and applied it to prosecutions for blas- phemy, where the charge consisted in malicious ridicule of the Author and Founder of the Christian religion. The early cases in New York and Massachusetts 4 are particularly marked by swearing is defective unless it charges Aid. 161 ; Cowan v. Milbourn, Law R. 2 that the words were uttered in the pres- Exch. 230. ence of other persona and in their hearing. 8 The King v. Taylor, 3 Keb. 607, Com. v. Linn, 158 Pa. St. 22, 27 Atl. 843, Vent. 293. See also The King v. Wool- 22 L. R. A. 353, and note on blasphemy ston, 2 Stra. 834, Fitzg. 64, Raym. 162, in and profanity as crimes.] which the defendant was convicted of 1 Shaw, Ch. J., in Commonwealth v. publishing libels, ridiculing the miracles Kneeland, 20 Pick. 206, 213. of Christ, his life and conversation. 2 People v. Ruggles, 8 Johns. 289, 5 Lord Ch. J. Raymond in that case says : Am. Dec. 335; Commonwealth v. Knee- "I would have it taken notice of, that land, 20 Pick. 206 ; Updegraph v. Com- we do not meddle with the difference of monwealth, 11 S. & R. 394; State v. opinion, and that we interfere only where Chandler, 2 Harr. 553; Rex v. Wadding- the root of Christianity is struck at." ton, 1 B. & C. 26 ; Rex v. Carlile, 3 B. & * People v. Ruggles, 8 Johns. 289, 5 672 CONSTITUTIONAL LIMITATIONS. [CH. XIII. clearness and precision on this point, and Mr. Justice Clayton, of Delaware, has also adopted and followed the ruling of Lord Chief Justice Hale, with such explanations of the true basis and justifi- cation of these prosecutions as to give us a clear understanding of the maxim that Christianity is a part of the law of the land, as understood and applied by the courts in these cases. 1 Taken with the explanation given, there is nothing in the maxim of which the believer in any creed, or the disbeliever of all, can justly complain. The language which the Christian regards as blasphemous, no man in sound mind can feel under a sense of duty to make use of under any circumstances, and no person is therefore deprived of a right when he is prohibited, under penalties, from uttering it. But it does not follow, 'because blasphemy is punishable as a crime, that therefore one is not at liberty to dispute and argue against the truth of the Christian religion, or of any accepted dogma. Its "divine origin and truth" are not so far admitted in the law as to preclude their being controverted. To forbid dis- cussion on this subject, except by the various sects of believers, would be to abridge the liberty of speech and of the press in a point which, with many, would be regarded as most important of all. Blasphemy implies something more than a denial of any of the truths of religion, even of the highest and most vital. A bad motive must exist ; there must be a wilful and malicious attempt to lessen men's reverence for the Deity, or for the accepted reli- gion. But outside of such wilful and malicious attempt, there is a broad field for candid investigation and discussion, which is as much open to the Jew and the Mahometan as to the professors of Am. Dec. 335 ; Commonwealth v. Knee- clared ; because, in the judgment of our land, 20 Pick. 206. See also Zeisweiss v. English ancestors and their judicial tri- James, 63 Pa. St. 465, 471 ; McGinnis v. bunals, he who reviled, subverted, or Watson, 41 Pa. St. 9, 14. ridiculed Christianity, did an act which 1 State v. Chandler, 2 Harr. 553. The struck at the foundation of our civil case is very full, clear, and instructive, society, and tended by its necessary con- and cites all the English and American sequences to disturb that common peace authorities. The conclusion at which it of the land of which (as Lord Coke had arrives is, that "Christianity was never reported) the common law was the pre- considered a part of the common law, so server. The common law . . . adapted far as that for a violation of its injunc- itself to the religion of the country just tions independent of the established laws so far as was necessary for the peace and of man, and without the sanction of any safety of civil institutions ; but it took positive act of Parliament made to en- cognizance of offences against God only, force those injunctions, any man could be when, by their inevitable effects, they be- drawn to answer in a common-law court, came offences against man, and his tern- It was a part of the common law, ' so far poral security." See also what is said that any person reviling, subverting, or on this subject by Duer, J., in Andrew v. ridiculing it, might be prosecuted at Bible Society, 4 Sandf. 156, 182. common law/ as Lord Mansfield has de- Oil. XIII.] OF EELIGIOUS LIBERTY. 673 the Christian faith. " No author or printer who fairly and con- scientiously promulgates the opinions with whose truths he is im- pressed, for the benefit of others, is answerable as a criminal. A malicious and mischievous intention is, in such a case, the broad boundary between right and wrong; it is to be collected from the offensive levity, scurrilous and opprobrious language, and other circumstances, whether the act of the party was malicious." l Legal blasphemy implies that the words were uttered in a wanton manner, " with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion." 2 The courts have always been careful, in administering the law, to say that they did not intend to include in blasphemy disputes between learned men upon particular controverted points. 3 The constitutional provisions for the protection of religious liberty not only include within their protecting power all sentiments and pro- fessions concerning or upon the subject of religion, but they guar- antee to every one a perfect right to form and to promulgate such opinions and doctrines upon religious matters, and in relation to the existence, power, attributes, and providence of a Supreme Being as to himself shall seem reasonable and correct. In doing this he acts under an awful responsibility, but it is not to any human tribunal. 4 1 Updegraph v. Commonwealth, 11 S. & R. 394. In Ayres v. Metliodist Church, 3 Sandf. 351, 377, Duer, J., in speaking of " pious uses," says : " If the Presbyterian and the Baptist, the Methodist and the Protestant Episcopalian, must each be allowed to devote the entire income of his real and personal estate, forever, to the support of missions, or the spreading of the Bible, so must the Roman Catholic his to the endowment of a monastery, or the founding of a perpetual mass for the safety of his soul ; the Jew his to the translation and publication of the Mishna or the Talmud, and the Mahometan (if in that colludes gentium to which this city [New York], like ancient Rome, seems to be doomed, such shall be among us), the Mahometan his to the assistance or relief of the annual pilgrims to Mecca." 2 People v. Ruggles, 8 Johns. 289, 293, 6 Am. Dec. 335, per Kent, Ch. J. 3 Rex v. Woolston, Stra. 834, Fitzg. 64; People v. Ruggles, 8 Johns. 289, 6 Am. Dec. 335, per Kent, Ch. J. 4 Per Shaw, Ch. J., in Commonwealth K. Kneeland, 20 Pick. 206, 234. The lan- guage of the courts has perhaps not al- ways been as guarded as it should have been on this subject. In The King v. Waddington, 1 B. & C. 26, the defendant was on trial for blasphemous libel, in say- ing that Jesus Christ was an impostor, and a murderer in principle. One of the jurors asked the Lord Chief Justice (Ab- bott) whether a work which denied the di- vinity of the Saviour was a libel. The Lord Chief Justice replied that " a work speaking of Jesus Christ in the language used in the publication in question was a libel, Christianity being a part of the law of the land." This was doubtless true, as the wrong motive was apparent; but it did not answer the juror's question. On motion for a new trial, the remarks of Best, J., are open to a construction which answers the question in the affirmative: " My Lord Chief Justice reports to us that he told the jury that it was an in- dictable offence to speak of Jesus Christ in the manner that he is spoken of in the publication for which this defendant is indicted. It cannot admit of the least doubt that this direction was correct. The 53 Geo. III. c. 160, has made noalterr ation in the common law relative to libel. 674 CONSTITUTIONAL LIMITATIONS. [CH. XIII. Other forms of profanity, besides that of blasphemy, are also made punishable by statutes in the several States. The cases these statutes take notice of are of a character no one can justify, and their punishment involves no question of religious liberty. The right to use profane and indecent language is recognized by no religious creed, and the practice is reprobated by right-thinking men of every nation and every religious belief. The statutes for the punishment of public profanity require no further justification than the natural impulses of every man who believes in a Supreme Being and recognizes his right to the reverence of his creatures. The laws against the desecration of the Christian Sabbath by labor or sports are not so readily defensible by arguments the If, previous to the passing of that statute, it would have been a libel to deny, in any printed book, the divinity of the second person in the Trinity, the same publica- tion would be a libel now. The 53 Geo. III. c. 160, as its title expresses, is an act to relieve persons who impugn the doctrine of the Trinity from certain penalties. If we look at the body of the act to see from what penalties such persons are re- lieved, we find that they are the penal- ties from which the 1 W. & M. Sess. 1, c. 18, exempted all Protestant dissenters, except such as denied the Trinity, and the penalties or disabilities which the 9 & 10 W. III. imposed on those who denied the Trinity. The 1 W. & M. Sess. 1, c. 18, is, as it has been usually called, an act of toleration, or one which allows dis- senters to worship God in the mode that is agreeable to their religions opinions, and exempts them from punishment for non-attendance at the Established Church and non-conformity to its rites. The leg- islature, in passing that act, only thought of easing the consciences of dissenters, and not of allowing them to attempt to weaken the faith of the members of the church. The 9 & 10 W. III. was to give security to the government by rendering men incapable of office, who entertained opinions hostile to the established reli- gion. The only penalty imposed by that statute is exclusion from office, and that penalty is incurred by any manifesta- tions of the dangerous opinion, without proof of intention in the person entertain- ing it, either to induce others to be of that opinion, or in any manner to disturb per- sons of a different persuasion. This stat- ute rested on the principle of the test laws, and did not interfere with the com- mon law relative to blasphemous libels. It is not necessary for me to say whether it be libellous to argue from the Scrip- tures against the divinity of Christ; that is not what the defendant professes to do; he argues against the divinity of Christ by denying the truth of the Scrip- tures. A work containing such argu- ments, published maliciously (which the jury in this case have found), is by the common law a libel, and the legislature has never altered this law, nor can it ever do so while the Christian religion is considered the basis of that law." It is a little diffi- cult, perhaps, to determine precisely how far this opinion was designed to go in holding that the law forbids the public denial of the truth of the Scriptures. That arguments against it, made in good faith by those who do not accept it, are legitimate and rightful, we think there is no doubt; and the learned judge doubt- less meant to admit as much when he required a malicious publication as an in- gredient in the offence. However, when we are considering what is the common law of England and of this country as re- gards offences against God and religion, the existence of a State Church in that country and the effect of its recognition upon the law are circumstances to be kept constantly in view. In People v. Porter, 2 Park. Cr. R. 14, the defence of drunkenness was made to a prosecution for a blasphemous libel. Walworth, Circuit Judge, presiding at the trial, declared the intoxication of de- fendant, at the time of uttering the words, to be an aggravation of the offence rather than an excuse. CH. XIII.] OF RELIGIOUS LIBERTY. 675 force of which will be felt and admitted by all. It is no hardship to any one to compel him to abstain from public blasphemy or other profanity, and none can complain that his rights of con- science are invaded by this forced respect to a prevailing religious sentiment. But the Jew who is forced to respect the first day of the week, when his conscience requires of him the observance of the seventh also, may plausibly urge that the law discriminates against his religion, and by forcing him to keep a second Sabbath in each week, unjustly, though by indirection, punishes him for his belief. The laws which prohibit ordinary employments on Sunday are to be defended, either on the same grounds which justify the punishment of profanity, or as establishing sanitary regulations, based upon the demonstration of experience that one day's rest in seven is needful to recuperate the exhausted energies of body and mind. If sustained on the first ground, the view must be that such laws only require the proper deference and regard which those not accepting the common belief may justly be required to pay to the public conscience. The Supreme Court of Pennsylvania have preferred to defend such legislation on the second ground rather than the first ; J but it appears to us that if the benefit to the individual is alone to be considered, the argument against the 1 "It intermeddles not with the nat- d;iy Christian, to command or even per- ural and indefeasihle right of all men to suade their attendance in the temples of worship Almighty God according to the those who especially approach the altar dictates of their own consciences ; it com- on Sunday. It does not in the slightest pels none to attend, erect, or support any degree infringe upon the Sabbath of any place of worship, or to maintain any min- sect, or curtail their freedom of worship, istry against his consent ; it pretends It detracts not one hour from any period not to control or to interfere with the of time they may feel bound to devote to rights of conscience, and it establishes no this object, nor does it add a moment preference for any religious establish- beyond what they may choose to employ, ment or mode of worship. It treats no Its sole mission is to inculcate a tempo- religious doctrine as paramount in the rary weekly cessation from labor, but it State ; it enforces no unwilling attend- adds not to this requirement any religious ance upon the celebration of divine wor- obligation." Specht v. Commonwealth, ship. It says not to Jew or Sabbatarian, 8 Pa. St. 312, 325. See also Charleston ' You shall desecrate the day you esteem v. Benjamin, 2 Strob. 608 ; Bloom v. as holy, and keep sacred to religion that Richards, 2 Ohio St. 387 ; McGatrick v. we deem to be so' It enters upon no Wason, 4 Ohio St. 566; Hudson v. Geary, discuvion of rival claims of the first and 4 R. I. 485 ; Bohl v. State, 3 Tex. App. seventh d;iys of the week, nor pretends 683; Johnston v. Commonwealth, 22 Pa. to bind upon the conscience of any man St. 102 ; Commonwealth v. Nesbit, 34 Pa. any conclusion upon a subject which St. 398 ; Commonwealth v. Has, 122 Mass, each must decide for himself. It intrudes 40; Commonwealth v. Starr, 144 Mass. not into the domestic circle to dictate 359, UN. E. 533; State v. Bott, 31 La. when, where, or to what god its inmates Ann. 663, 33 Am. Rep. 224 ; State r. shall address their orisons ; nor does it Judge, 39 La. Ann. 132, 1 So. 437; State presume to enter the synagogue of the v. Bait. & O. R. R. Co., 15 W. Va. 362, 36 Israelite, or the church of the Seventh- Am. Rep. 803. 676 CONSTITUTIONAL LIMITATIONS. [CH. XIII. law which he may make who has already observed the seventh day of the week, is unanswerable. But on the other ground it is clear that these laws are supportable on authority, notwithstanding the inconvenience which they occasion to those whose religious sentiments do not recognize the sacred character of the first day of the week. 1 Whatever deference the constitution or the laws may require to be paid in some cases to the conscientious scruples or religious convictions of the majority, the general policy always is, to avoid with care any compulsion which infringes on the religious scruples of any, however little reason may seem to others to underlie them. Even in the important matter of bearing arms for the public de- fence, those who cannot in conscience take part are excused, and their proportion of this great and sometimes imperative burden is borne by the rest of the community. 2 Some of the State constitutions have also done away with the distinction which existed at the common law regarding the admis- sibility of testimony in some cases. All religions were recognized by the law to the extent of allowing all persons to be sworn and to give evidence who believed in a superintending Providence, who rewards and punishes, and that an oath was binding on their conscience. 3 But the want of such belief rendered the person 1 Commonwealth . Wolf, 3 S. & R. or persuasions." For decisions sustain- 48; Commonwealth v. Fisher, 17 S. & R. ing the prohibition of liquor sales on 160 ; Shover v. State, 7 Ark. 629 ; Scales Sunday, see State v. Common Pleas, 36 N. v. State, 47 Ark. 476, 1 S. W. 769; Vogle- J. 72, 13 Am. Rep. 422; State r. Bott, song v. State, 9 Ind. 112 ; State v. Arabs, 31 La. Ann. 663, 33 Am. Rep. 224 ; State 20 Mo. 214 ; Cincinnati v. Rice, 15 Ohio, v. Gregory, 47 Conn. 276 ; Blahnt v. State, 225 ; Ex parte Koser, 60 Cal. 177 ; Parker 34 Ark. 447 ; and of dramatic entertain- v. State, 16 Lea, 478. A proviso in a ments, see Menserdorff v. Dwyer, 69 Sunday law for the benefit of observers N. Y. 557. of Saturday is valid. Johns v. State, 78 2 There are constitutional provisions to Ind. 332. In Simonds's Ex'rs v. Gratz, 2 this effect more or less broad in Alabama, Pen. & Watts, 412, it was held that the Arkansas, Colorado, Georgia, Illinois, conscientious scruples of a Jew to appear Indiana, Iowa, Kansas, Kentucky, Maine, and attend a trial of his cause on Saturday Michigan, Missouri, New Hampshire, were not sufficient cause for a contin- New York, North Carolina, Oregon, and uance. "Butqucereof this. In Frolickstein South Carolina, and statutory provisions v. Mayor of Mobile, 40 Ala. 725, it was in some other States. In Tennessee "no held that a statute or municipal ordinance citizen shall be compelled to bear arms, prohibiting the sale of goods by merchants provided he will pay an equivalent to be on Sunday, in its application to religious ascertained by law." Art. 1, 28. Jews " who believe that it is their reli- 3 See upon this point the leading case gious duty to abstain from work on Sat- of Ormichund v. Barker, Willes, 538, and urdays, and to work on all the other six 1 Smith's Leading Cases, 535, where will days of the week," was not violative of be found a full discussion of this subject, the article in the State constitution which Some of the earlier American cases re- declares that no person shall, " upon any quired of a witness that he should be- pretence whatsoever, be hurt, molested, lieve in the existence of God, and of a or restrained in his religious sentiments state of rewards and punishments after CH. XIII.] OF RELIGIOUS LIBERTY. 677 incompetent. Wherever the common law remains unchanged, it must, we suppose, be held no violation of religious liberty to recognize and enforce its distinctions ; but the tendency is to do away with them entirely, or to allow one's unbelief to go to his credibility only, if taken into account at all. 1 the present life. See especially Atwood v. Welton, 7 Conn. 66. But this rule did not generally obtain ; belief in a Supreme Being who would punish false swearing, whether in this world or in the world to come, being regarded sufficient. Cubbi- sou v. McCreary, 7 W. & S. 262 ; Blocker v. Burness, 2 Ala. 354; Jones v. Harris, 1 Strob. 160; Shaw v. Moore, 4 Jones (N. C.), 25 ; Hunscom v. Hunscom, 15 Mass. 184; Brock v. Milligan, 10 Ohio, 121 ; Bennett v. State, 1 Swan, 411 ; Cen- tral R. R. Co. v. Rockafellow, 17 111. 541 ; Arnold v. Arnold, 13 Vt. 362; Butts v. Swartwood, 2 Cow. 431 ; Free v. Bucking- ham, 50 N. H. 219. But one who lacked this belief was not sworn, because there was no mode known to the law by which it was supposed an oath could be made binding upon his conscience. Arnold v. Arnold, 13 Vt. 362 ; Scott v. Hooper, 14 Vt. 535 ; Norton v. Ladd, 4 N. H. 444 ; Cent. R. R. Co. v. Rockafellow, 17 111. 641. 1 The States of Iowa, Minnesota, Michigan, Oregon, Wisconsin, Arkansas, Florida, Missouri, California, Indiana, Kansas, Nebraska, Nevada, Ohio, and New York have constitutional provisions expressly doing away with incompetency from want of religious belief. Perhaps the general provisions in some of the other constitutions, declaring complete equality of civil rights, privileges, and capacities are sufficiently broad to ac- complish the same purpose. Perry's Case, 3 Gratt. 632. In Michigan and Oregon a witness is not to be questioned concerning his religious belief. See Peo- ple v. Jenness, 5 Mich. 305. In Georgia, the code provides that religious belief shall only go to the credit of a witness, and it has been held inadmissible to in- quire of a witness whether he believed in Christ as the Saviour. Donkle v. Kohn, 44 Ga. 266. In Maryland, no one is in- competent as a witness or juror " provided he believes in the existence of God, and that, under His dispensation, such per- son will be held morally accountable for his acts, and be rewarded or punished therefor, either in this world or the world to come." Const. Dec. of Rights, 36. In Missouri, an atheist is competent. Londoner v. Lichtenheim, 11 Mo. App. 385. 678 CONSTITUTIONAL LIMITATIONS. [CH. XIV. CHAPTER XIV. THE POWER OF TAXATION. THE power to impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. It reaches to every tra'de or occupation ; to every object of industry, use, or enjoyment ; to every species of possession ; and it imposes a bur- den which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property. No attribute of sovereignty is more pervading, and at no point does the power of the government affect more constantly and intimately all the relations of life than through the exactions made under it. Taxes are denned to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes. 1 The power to tax rests upon necessity, and is inherent in every sovereignty. The legislature of every free State will possess it under the general grant of legislative power, whether particularly specified in the constitution among the pow- ers to be exercised by it or riot. No constitutional government can exist without it, and no arbitrary government without regular and steady taxation could be anything but an oppressive and vexatious despotism, since the only alternative to taxation would be a forced extortion for the needs of government from such per- sons or objects as the men in power might select as victims. Chief Justice Marshall has said of this power : " The power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to 1 Blaekwell on Tax Titles, 1. A tax b. 12, c. 30. In its most enlarged sense is a contribution imposed by government the word" taxes " embraces all the regular on individuals for the service of the State, impositions made by government upon It is distinguished from a subsidy as being the person, property, privileges, occupa- certain and orderly, which is shown in its tions, and enjoyments of the people for derivation from Greek, rafts, ordo, order the purpose of raising public revenue, or arrangement. Jacob, Law Die. ; Bou- See Perry v. Washburn, 20 Cal. 318, 350 ; vier, Law Die. " The revenues of a State Loan Association v. Topeka, 20 Wall. 655, are a portion that each subject gives of 664; Van Horn v. People, 46 Mich. 183, his property in order to secure, or to have, 9 N. W. 246 ; fJ7?e Page, 60 Kan. 842, 58 the agreeable enjoyment of the remain- Pac. 478, 47 L. R. A. 68. See also note der." Montesquieu, Spirit of the Laws, to 13 L. R. A. 533.] CH. XIV.] THE POWER OF TAXATION. 679 which it is applicable to the utmost extent to which the govern- ment may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constit- uents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their government a right of taxing themselves and their prop- erty ; and as the exigencies of the government cannot be limited, they prescribe no limits to the exercise of this right, resting con- fidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard them against its abuse." 1 The same eminent judge has said in another case : "The power of legislation, and consequently of taxation, operates on all persons and property belonging to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all for the benefit of all. It resides in the govern- ment as part of itself, and need not be reserved where property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the legislature. This vital power may be abused; but the interest, wisdom, and justice of the representa- tive body, and its relations with its constituents, furnish the only security where there is no express contract against unjust and ex- cessive taxation, as well as against unwise legislation generally." 2 And again, the same judge says, it is " unfit for the judicial de- partment to inquire what degree of taxation is the legitimate use, and what degree may amount to the abuse, of the power." 3 The like general views have been frequently expressed in other cases. 4 The Constitution of the United States declares that " the Con- gress shall have power to levy 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, 1 McCulloch v. Maryland, 4 Wheat. Sharpless v. Mayor, &c., 21 Pa. St. 316, 428. 147 ; Weister v. Hade, 52 Pa. St. 474 ; 2 Providence Bank v. Billings, 4 Pet. Wingate v. Sluder, 6 Jones (N. C.), 552; 514, 561. Herriek v. Randolph, 13 Vt. 525; Arm- 8 McCulloch v. Maryland, 4 Wheat, ington v. Barnet, 15 Vt. 745; Thomas v. 316, 430. See Kirtland v. Hotchkiss, 100 Leland ? 24 Wend. 65; People v. Mayor, U. S. 491 ; Board of Education v. Me- &c. of Brooklyn, 4 N. Y. 419 ; Portland Landsborough, 36 Ohio St. 227; State v. Bank r. Apthorp, 12 Mass. 252; Western Board of Education, 38 Ohio St. 3. Union Telegraph Co. v. Mayer, 28 Ohio Kirby v. Shaw, 19 Pa. St. 258 ; St. 521. 680 CONSTITUTIONAL LIMITATIONS. [CH. XIV. and excises shall be uniform throughout the United States." l The duties, imposts, and excises here specified are merely different kinds of taxes ; the first two terms being commonly applied to the levies made by governments on the importation and exporta- tion of commodities, while the term " excises " is applied to the taxes laid upon the manufacture, sale, or consumption of commodi- ties within the country, upon licenses to pursue certain occupations, and upon corporate privileges. " No tax or duty shall be laid on articles exported from any State ; " 2 but this provision of the Constitution is not violated by a requirement /that an article in- tended for exportation shall be stamped, as a protection against fraud. 3 Direct taxes, when la-id by Congress, must be appor- tioned among the several States according to the representative population. 4 The term " direct taxes," as employed in the Consti- tution, has a technical meaning, and embraces capitation and land taxes only. 5 These are express limitations, imposed by the Con- stitution upon the federal power to tax ; but there are some others which are implied, (a) and which under the complex system of American government have the effect to exempt some subjects otherwise taxable from the scope and reach, according to circum- stances, of either the federal power to tax or the power of the several States. One of the implied limitations is that which pre- cludes the States from taxing the agencies whereby the general government performs its functions. The reason is that, if they 1 Const. U. S. Art. 1, 8, cl. 1. Springer v. United States, 102 U. S. 586. 2 Const. U. S. Art. 1, 9, cl. 5. ([Pollock v. Farmers' Loan & T. Co., 158 8 Pace v. Burgess, 92 U. S. 372. U. S. 601, 15 Sup. Ct. Rep. 912, would 4 Const. U. S. Art. 1, 2; Art. 1, 9, seem to modify tlie statement of the text cl. 4. by declaring capitation taxes and those 5 Hylton v. United States, 3 Dall. 171 ; levied upon general property, whether Pacific Ins. Co. v. Soule, 7 Wall. 433; real or personal or both, and the income Veazie Bank v. Fenno, 8 Wall. 533; derived therefrom, direct taxes.] (a) It is held that the States are restricted from taxing patent rights. People v. Brooklyn Bd. of Assessors, 156 N. Y. 417, 51 N. E. 269, 42 L. R. A. 290 ; Com. v. Edison Electric Light Co., 157 Pa. 529, 27 Atl. 379, 87 Am. St. 747 ; Com. v. Phila- delphia Co., 157 Pa. 527, 27 Atl. 378; Com. v. Westingliouse El. & Mfg. Co., 151 Pa. 265, 24 Atl. 1107, 1111; Com. v. Westinghouse Air Brake Co., 151 Pa. 276, 24 Atl. 1111, 1113. See other cases upon State taxation of patent rights in note to 44 L. ed. U. S. 374. A State under a general law taxing legacies may tax a bequest to the United States, since the tax is levied on the bequest before it reaches the United States. United States v. Perkins, 163 U. S. 625, 16 Sup. Ct. Rep. 1073; aff. 141 N. Y. 479, 36 N. E. 505. And the fact that a corporation possesses a franchise from the federal government, and is engaged in inter-state commerce, will not prevent the State's taxing it upon a franchise from the State. Central Pac. R. Co. v. California, 162 U. S. 91, 16 Sup. Ct. Rep 766, aff. 105 Cal. 576, 38 Pac. 905. Copyrights not taxable by States, People v. Roberts, 159 N. Y. 70, 53 N. E. 685, 45 L. R. A. 126. As to what lands of tribal Indians cannot be taxed by State, see Allen County Com'rs v. Simons, 129 Ind. 193, 28 N. E. 420, 13 L. R. A. 512.] U. S. 577, 15 Sup. Ct. Rep. 415; Singer Mfg. Co. v. Wright, 97 Ga. 114, 25 S. E. 249, 35 L. R. A. 497 Q but not, if it is taxed by reason of its being so brought. Welton v. Missouri, 91 U. S. 275. See Phila. S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. Rep. 1118. A tax upon receipts from the transportation of goods from one State to another by rail is bad. Case of State Freight Tax, 15 Wall. 232; Fargo v. Michigan, 121 U. S. 230, 7 Sup. Ct. Rep. 857. So is one upon the gross receipts from transportation by sea between differ- ent States, or to and from foreign coun- tries : Phila. S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. Rep. 1118; im- CH. XIV.] THE POWER OF TAXATION. 689 are also forbidden to lay. 1 The meaning of this seems to be that pairing the force of Case of Tax on Kailway Gross Receipts, 15 Wall. 284; one upon gross receipts of car companies derived from inter-state business ; State v. Woodruff, &c. Co., 114 Ind. 155, 15 N. E. 814. See Central R. R. Co. v. Board of Assessors, 49 N. J. L. 1, 7 All. 306. So is a privilege tax upon cars used as instruments of inter-state commerce. Pickard v. Pullman, &c. Co., 117 U. S. 34, 6 Sup. Ct. Rep. 635. So is the tax upon the capital stock of a foreign ferry corpo- ration engaged in such commerce, which lands and receives passengers and freight within the State. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196,5 Sup. Ct. Rep. 826. So is one on all telegraph messages sent out of a State. Telegraph Co. v. Texas, 105 U. S. 460. See Ratter- man v. W. U. Tel. Co., 127 U. S. 411, 8 Sup. Ct. Rep. 1127. A State may not exact, as a condition of duing business, a license from a company, a large part of whose business is the transmission of inter-state telegrams. Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. Rep. 1380. fJBut it may exact a license fee from an express company engaged in inter-state commerce before permitting it to do local business. Osborne v. Florida, 164 U. S. 650, 17 Sup. Ct. Rep. 214, aff. 33 Fla. 162, 14 So. 588, 25 L. It. A. 120, 39 Am. St. 99, 4 Inters. Cora. Rep. 731. And may tax such company upon its gross receipts from business done entirely within the State. Pacific Exp. Co. v. Sei- bert, 142 U. S. 339, 12 Sup. Ct. Rep. 250. Likewise with telegraph companies. Postal Tel. Cable Co. v. City Council of Charleston, 153 U. S. 692, 14 Sup. Ct. Rep. 1094 ; Western Un. Tel. Co. v. Freemont, 39 Neb. 692, 58 N. W. 415, 43 Neb. 499, 61 N. W. 724, 26 L. R. A. 698, 706. See, in this connection, Postal Tel. Cable Co. v. Richmond, 99 Va. 102, 37 S. E. 789. ^ And a charge of five dollars per annum for each pole planted by an inter-state telegraph company in a city's streets is not a tax on inter-state commerce, but a rental charged for use of the streets, and is valid. St. Louis v. W. U. Tel. Co., 148 U. S. 92, 13 Sup. Ct. Rep. 485 ; s. c. aff. 149 U. S. 465, 13 Sup. Ct. Rep. 990. Taking orders by sample and sending them to principal in another State by whom they are filled, is inter-state com- merce. Re Spain, 47 Fed. Rep. 208, 14 L. 11. B. 97, and note ; Brennan v. Titus- ville, 158 U. S. 289, 14 Sup. Ct. Rep. 829, 4 Inters. Cum. R. 658 ; and see, in this connection, Re Houston, 47 Fed. Rep. 539, 14 L. R. A. 719 ; Re White, 43 Fed. Rep. 913, 11 L. R. A. 284; McLaughlin v. South Bend, 126 Ind. 471, 26 N. E. 185, 10 L. R. A. 357 ; French v. State, Tex. Cr. Ap. , 58 S. W. 1015, 52 L. R. A. 160 ; State v. Willingham, 9 Wyo. 290, 62 Pac. 797, 52 L. R. A. 198. Stockard v. Morgan, 105 Tenn. 412, 58 S. W. 1061, holds that a merchandise broker repre- senting only non-resident principals is subject to a State tax on occupation and is not engaged in inter-state com- merce, but this case was afterward re- versed in the Supreme Court of the United States, see Stockard v. Morgan, 185 U. S. 27, 22 Sup. Ct. Rep. 576. But where the agent carries the goods with him and sells them, he is subject to the State law. Emert v. Missouri, 156 U. S. 296, 15 Sup. Ct. Rep. 367, aff. 103 Mo. 241, 15 S. W.81, 3 Inters. Com. Rep. 627, 11 L. R. A. 219, 23 Am. St. 874 ; Rash v. Farley, 91 Ky. 344, 15 S. W. 862. Also where he forwards the orders, and the goods are shipped to him in bulk, and he breaks bulk and distributes them. Racine I. Co. v. McCommons, 111 Ga. 536, 36 S. E. 866, 51 L. R. A. 134; Camp v. State, Tex. Cr. Ap. , 61 S. W. 401 (Feb. 13, 1901) ; Croy v. Epperson, 104 Tenn. 525, 58 S. W. 235; State v. Caldwell, 127 N. C. 521, 37 S. E. 138. State may tax the corporate franchise of a company organized under its laws, although that company is engaged in inter- state commerce. People v. Wemple, 117 N. Y. 136, 22 N. E. 1046, 6 L. R. A. 303, and note.] That is not domestic com- merce which in going between ports of the same State passes more than a marine league from shore. Pacific Coast S. S. Co. v. Board R. R. Com'rs, 18 Fed. Rep. 10. Compare Com. v. Leliigh Valley R. R. Co., 129 Pa. St. 308, 18 Atl. 126. Aff. in Lehigh V. R. Co. v. Pennsylvania, 145 U. S. 1 92, 12 Sup. Ct. Rep. 806, holding that the domestic character of the com- Const, of U. S. art. 1, 10, cl. 2. 44 690 CONSTITUTIONAL LIMITATIONS. [CH. XIV. vessels must not be taxed as vehicles of commerce, according merce between termini in the same State is not destroyed by the fact that in the carriage of tlie passengers and the goods, a portion of the route traversed lies in another State, thus reversing the rule of 18 Fed. Rep. 10, above. In L. V. R. Co. v. Pa., above, the tax was levied upon receipts, and an apportionment upon a mileage basis of receipts from domestic commerce, a portion of whose route lay without the State, was sustained/] For further discussion of this subject, see New York v. Miln, 11 Pet. 102; License Cases, 5 How. 504 ; Lin Sing v. Wash- burn, 20 Cal. 534; Erie Railway Co. v. New Jersey, 81 N. J. 531, rev. 30 N. J. 473; Pennsylvania R. R. Co. v. Common- wealth, 3 Grant, 128 ; Hinson v. Lott, 40 Ala. 123 ; Commonwealth v. Erie R. R., 62 Pa. St. 286; Osborne v. Mobile, 44 Ala. 493 ; s. c. in error, 16 Wall. 479 ; State v. Philadelphia, &c. R. R. Co., 45 Md. 361 ; Walcott v. People, 17 Mich. 68. In Crandall v. Nevada, 6 Wall. 35, it was held that a State law imposing a tax of one dollar on each person leaving the State by public conveyance was not void as coming in conflict with the control of Congress over commerce, though set aside on other grounds. Logs belonging to a non-resident are liable to be taxed though intended for transportation to another State, and partially prepared for it by being deposited at the place of ship- ment. Coe v. Errol, 116 U. S. 617, Sup. Ct. Rep. 475. See Com'rs Brown Co. v. Standard Oil Co., 103 Ind. 302, 2 N. E. 758. On the subject of inter-state com- merce, see further, pp. 846, 851-859, 873, post. Cooley on Taxation, 61-64. QUpon power of States over inter-state telegraph and telephone companies, see Postal Tel. Cable Co. v, Baltimore, 79 Md. 502, 29 Atl. 819, 24 L. R. A. 161, and note; and In re Pennsylvania Telephone Co., 48 N. J. Eq. 91, 20 Atl. 816. Municipal license tax levied upon tugs engaged in towing boats engaged in inter-state com- merce is void. Harmon v. Chicago, 147 U. S. 396, 13 Sup. Ct. Rep. 306, and see also note to this case in 37 L. ed. U. S. 216, upon State statutes and inter-state commerce. Railroad corporation engaged in iuter-state commerce may send its agent into any State there to secure such commerce to his principal, and the State cannot exact of him a license fee for the transaction of such business. McCall v. California, 136 U. S. 104, 10 Sup. Ct. Rep. 881 ; Norfolk & W. R. Co. v. Pennsylvania, 136 U. S. 114, 394, 10 Sup. Ct. Rep. 958. Sheep driven through a State for purpose of grazing, as well as to reach another State, are taxable in first State, even though they remain but a short time. Kelley v. Rhodes, 7 Wyo. 237, 51 Pac. 593, 39 L. R. A. 594; s. c. 9 Wyo. 352, 63 Pac. 935. License tax upon those engaged in packing oysters for sale or transportation is valid, even though oysters are intended to be shipped out of the State. State v. Applegarth, 81 Md. 293, 31 Atl. 961, 28 L. R. A. 812. State may tax corporate franchise of a domestic corporation, even though the corporation is organized to carry on in- ter-state commerce. State v. Bd. of Assessors, 55 N. J. L. 529, 26 Atl. 711, 25 L. R. A. 134. One selling merchandise that is in a foreign State is engaged in inter-state commerce and cannot be com- pelled to pay a license. Adkins v. Rich- mond, 98 Va. 91, 34 S. E. 967. In Western Union T. Co. v. New Hope, U. S. , 23 Sup. Ct. Rep. 204, an ordi- nance requiring a license fee of $1.00 per pole, and -^2.50 per mile of wire, was sus- tained though imposed upon poles and wires used in inter-state business. For oilier cases upon inter-state commerce and State's power of taxation, see Singer Mfg. Co. v. Wright, 97 Ga. 114, 25 S. E. 249, 35 L. R. A. 497; Commonwealth v. Myers, 92 Va. 809, 23 S. E. 915, 31 L. R. A. 379; Carrollton v. Bazzette, 159 111. 284, 42 N. E. 837, 31 L. R. A. 522 ; San Bernar- dino v. Southern Pac. Co., 107 Cal. 524, 40 Pac. 796, 29 L. R. A. 327 ; South Bond v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L. R. A. 531 ; Commonwealth v. Harmel, 166 Pa. 89, 30 Atl. 1036, 27 L. R. A. 388; Wind v. Her & Co., 93 Iowa, 316, 61 N. W. 1001, 27 L. R. A. 219 ; Leavell v. Western. U. Tel. Co., 116 N. C. 211, 21 S. E. 391, 27 L. R. A. 843 ; State v. Bd. of Asses- sors, 57 N. J. L. 516, 31 Atl. 220, 27 L. R. A. 684 ; State v. Gorham, 115 N. C. 721, 20 S. E. 179, 25 L. R. A. 810 ; Coit v. Sutton, 102 Mich. 324, 60 N. W. 690, 25 L. R. A. 819; Georgia Packing Co. v. Macon, 60 Fed. Rep. 774, 4 Inters. Com. Rep. 50S, 22 L. R. A. 775; San CH. XIV.] THE POWER OF TAXATION. 691 to capacity ; l but it is admitted they may be taxed like other property. 2 Francisco v. Western U. Tel. Co., 96 Cal. 140, 31 Pac. 10, 17 L. U. A. 301 ; Rother- mel v. Meyerle, 136 Pa. 250, 20 Atl. 583, 9 L. R. A. 366, and note ; State v. Zophy, 14 S. D. 119, 84 N. W. 391, State v. Omaha 6 C. B. R. & B. Co., 113 Iowa, 30, 84 N. W. 983.3 1 Cannon r. New Orleans, 20 Wall. 677; Huse v. Glover, 119 U. S. 543, 7 Sup. Ct Rep. 313. See Steamship Co. ;. Port Wardens, 6 Wall. 31 ; State Tonnage Tax Cases, 12 Wall. 204 ; Inman Steam- ship Co. v. Tinker, 94 U. S. 238; Lott v. Morgan, 41 Ala. 246; Johnson v. Drum- mond, 20 Gratt. 419 ; State v. Charleston, 4 Rich. 286 ; Johnson i\ Ix>per, 46 N. J. L. 321. A license tax upon the business of running a ferry between two States is not a tonnage tax. Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 2 Sup. Ct. Rep. 257. But such tax upon running towboats between New Orleans and the Gulf is a regulation of commerce. Moran v. New Orleans, 112 U. S. 69, 5 Sup. Ct. Rep. 38. Tolls based on tonnage may be charged for the use of improved water- ways. Huse v. Glover, 119 U. S. 543, 7 Sup. Ct. Rep. 313. Port dues may not be laid unless services are rendered. Harbor Com'rs v. Pashley, 19 S. C. 315; Webb v. Dunn, 18 Fla. 721. 2 See above cases. Also Peete v. Mor- gan, 19 Wall. 581; Transportation Co. v. Wheeling, 99 U. S. 273 ; N. W. Lumber Co. v. Chehalis County, 24 Wash. 626, 64 Pac. 909.] Wharfage charges are not forbidden by the above clause of the Constitution : Marshall v. Vicksburg, 15 Wall. 146; Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423 ; Vicksburg v. Tobin, 100 U. S. 430 ; and they may be measured by ton- nage. Packet Co. v. Catlettsburg, 105 U. S. 559 ; Transportation Co. v. Parkers- burg, 107 U. S. 091, 2 Sup. Ct. Rep. 732. fjAs to inter-state bridges, see Keokuk & H. Bridge Co. v. Illinois, 175 U. S. 626, 20 Sup. Ct. Rep. 205. The State may tax the average number of refrigerator cars used within its borders, even though they are owned outside the State and are engaged in inter-state commerce. Union Ref. Transit Co v. Lynch, 177 U. S. 149, 20 Sup. Ct. Rep. 631 ; aff. 18 Utah 378, 55 Pac. 639, 48 L. R. A. 790; Am. Refr. Transit Co. v. Hall, 174 U. S. 70, 19 Sup. Ct. Rep. 599. Upon State taxes and com- merce, see notes to 39 L. ed. U. S. 538, 24 C. C. A. 21, 8 C. C. A. 492, 13 L. R. A. 686, 11 L. R. A. 179, and 9 L. R. A. 366. State may tax capital employed within its limits, even though part of the business conducted is inter-state commerce. People v. Roberts, 171 U. S. 658, 19 Sup. Ct. Rep. 58 ; aff. 91 Hun, 158, 149 N. Y. 608, 44 N. E. 1127. Although the control of navigable waters used for inter state com- merce is in Congress, yet the State that owns the soil underneath is not thereby prohibited from taxing structures erected thereon ; it may also delegate this power of taxation to a municipality. Hender- son Bridge Co. v. Henderson, 173 U. S. 592, 19 Sup. Ct. Rep. 877 ; aff. 99 Ky. 623, 36 S. W. 561. Upon relation between State power of taxation and Federal control of commerce, note to 37 L. ed. U. S. 216. In the taxation of companies engaged in inter-state commerce, such as railway, telegraph, telephone, and express companies, and the like, a State is not restricted to the tangible property of such companies within its borders, but may tax in addition an equitable proportion of the intangible property of such companies used in such business, even though the companies are chartered by other States or countries, and have their principal office outside the taxing State. Exactly what rules shall be followed in the valua- tion of such intangible property, and its apportionment among the various States in which such companies operate, is not very well settled. See the whole subject exhaustively discussed in Adams Express Co. v. Ohio State Auditor, 165 U. S. 194, 17 Sup. Ct. Rep. 305 ; s. c. in 61 Fed. Rep. 449, 470, 51 Ohio St. 492, 37 N. E. 945, 64 Fed. Rep. 9, 37 U. S. Ap. 378, 399, 69 Fed. Rep. 546, 557. See also Western U. Tel Co. r. Taggart, 163 U. S. 1, 16 Sup. Ct. Rep. 1054 ; aff. 141 Ind.281, 40 N. E. 1051 ; Cleveland, C., C. & St. L. R. Co. v. Backus, 154 U. S 439, 14 Sup. Ct. Rep. 1122; 4 Int St. Com. R. 671 ; Pittsburg, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. Rep. 1114; Massachusetts v. W. U. Tel. Co., 141 U. S. 40, 11 Sup. Ct. 692 CONSTITUTIONAL LIMITATIONS. [CH. XIV. It is also believed that that provision in the Constitution of the United States, which declares that " the citizens of each State Rep. 889; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. Rep. 876, 3 Int. St. Com. R. 595 ; Western U. Tel. Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. Rep. 961 ; Henderson Bridge Co. v. Kentucky, 166 U. S. 150, 17 Sup. Ct. Rep. 532 ; Adams Express Co. v. Kentucky, 166 U. S. 171, 17 Sup. Ct. Rep. 527; and in particular, see Adams Express Co. v. Ohio State Auditor, 106 U. S. 185, 17 Sup. Ct. Rep. 604, in which Mr. Justice Brewer, in delivering the opinion of the court denying a petition for a rehearing of 165 U. S. 194, lays down the very sensible proposition that " it is a cardinal rule which should never be forgotten, that whatever property is worth for the pur- poses of income and sale, it is worth for the purposes of taxation." See also State, Guilbert v. Halliday, 58 Ohio St. 728, 51 N. E. 1102, 49 L. R, A. 427. The principle regulating the relation between the taxing power of the States and the commerce power of Congress, is stated by Mr. Chief Justice Fuller in Postal Telegraph Co. v. Adams, 155 U. S. 688, 15 Sup. Ct. Rep. 268, 360 ; aff. 71 Miss. 555, 14 So. 36, 4 Inter. Com. R. 416, 42 Am. St. 476, as follows: "Property in a State belonging to a corporation, whether foreign or domestic, engaged in foreign or inter-state commerce, maybe taxed, or a tax imposed on the corporation on account of its property within a State, and may take the form of a tax for the privilege of exercising its franchises with- in the State, if the ascertainment of the amount is made dependent in fact on the value of its property situated within the State (the exaction therefor not being susceptible of exceeding the sum which might be leviable directly thereon), and if payment be not made a condition pre- cedent to the right to carry on the busi- ness, but its enforcement left to the ordinary means devised for the collection of taxes." This is reaffirmed in New York, L. E. & W. R. Co. v. Pennsylvania, 158 U. S. 431, 15 Sup. Ct. Rep. 896, which sustained a tax upon tolls received by a lessor of a railroad from a lessee engaged in inter-state commerce. See note upon State tax laws and inter-state commerce, in 39 L. ed. U. S. 311, and another to 38 L. ed. U. S. 1041. Two other very important cases upon the " unit rule " in taxation of properties lying in two or more States, are Pittsburg, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. Rep. 1114, and Cleveland, C., C. & St. L. R. Co. v. Backus, 154 U S. 439, 1041, 14 Sup. Ct. Rep. 1T22. The intangible pro- perty taxable within the State may be apportioned by the State, for purposes of county taxation, among the counties into or through which the railway extends. Columbus S. R. Co. v. Wright, 151 U. S. 470, 14 Sup. Ct. Rep. 396, aff. 89 Ga. 574, 15 S. E. 293. See also Pullman's P. C. Co. v. Hayward, 141 U. S. 36, 11 Sup. Ct. Rep. 883. Where the tangible property in the State consists entirely of railway coaches running into or through the State, the property in the State may be valued by taking such fraction of the total capital stock of the company as the miles of road over which it runs its coaches in the State are of the total number of miles of road over which it runs his coaches. Pullman's P. C. Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. Rep. 876. And a State may levy an excise tax upon a railroad opera- ting within its borders, and such excise may be proportioned upon a graduated scale to the gross receipts of such road derived within the State, such gross receipts being determined from the total gross receipts for the entire system, with- in and without the State, from local, inter-state, and foreign commerce, by the application of a track mileage ratio. Maine v. Grand Trunk R. Co. of Canada, 142 U. S. 217, 12 Sup. Ct. Rep. 121, 163; Cumberland & P. R. Co. v. State, 92 Md. 668, 48 All. 503. And the State may en- force the payment of all such taxes by the imposition of whatever penalties it may see fit to prescribe by general law. A penalty of 50 % and attorneys' fees was sustained in Western U. Tel. Co. v. Indiana, 165 U. S. 304, 17 Sup. Ct. Rep. 345, aff. 146 Ind. 54, 44 N. E. 793. State cannot require a foreign corporation to pay a license before engaging in inter-state commerce within its borders. Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. Rep. 851. Nor can it make mandatory and conclusive any arithmetical rule for CH. XIV.] THE POWER OF TAXATION. 693 shall be entitled to all the privileges and immunities of the citi- zens of the several States," 1 will preclude any State from impos- ing upon the property which citizens of other States may own, or the business which they may carry on within its limits, any higher burdens by way of taxation than are imposed upon corresponding property or business of its own citizens. This is the express decision of the Supreme Court of Alabama, 2 following in this particular the dictum of an eminent federal judge at an early day, 3 and the same doctrine has been recently affirmed by the federal Supreme Court. 4 As the States are forbidden to pass any laws the determination of that portion of the intangible property of an inter-state busi- ness to be assessed as being within the State. Such rule is to be considered merely directory and presumptive. Wells, F. & Co.'s Express r. Crawford County, 63 Ark. 576, 40 S. W. 710, 37 L. R. A. 371. Business of a foreign railroad com- pany having only terminal facilities in the State cannot be taxed by the State. People v. Wemple, 138 N. Y. 1, 33 N. E. 720, 19 L. R. A. 694. The intangible capital of steamship companies may be distributed among the States in proportion to their tangible propriety. Beaufort Co. Com'rs v. Old Dominion S. S. Co., 128 N. C. 558, 39 S. E. 18. Cost of construc- tion, cost of replacement, connections with other roads, and other commercial advantages, rental value, net earnings, and market value of stocks and bonds should all be considered in assessing railroad property. Oregon & C. R. Co. v. Jackson County, 38 Oreg. 589, 64 Pac. 307, 65 Pac. 369. For other cases upon assessment of railroad property, see State i'. Virginia & T. R. Co., 23 Nev. 283, 46 Pac. 723, 35 L. R. A. 759 ; Detroit City St. R. Co. v. Common Council, 125 Mich. 673, 85 N. W. 96, 86 N. W. 809.] 1 Art. 4, 2. A license tax may not be imposed upon one who contracts with or induces laborers to leave a State. Joseph v. Randolph, 71 Ala. 499. fj Con- tra, Williams v. Fears, 179 U. S. 270, 21 Sup. Ct. Rep. 128, aff. 110 Ga. 320, 35 S. E. 699. A license tax upon buyers who come into a certain county to buy pro- duce therein for shipment to markets outside the county is not repugnant to the equal privileges clause. Rothermel v. Meyerle, 136 Pa. 250, 20 Atl. 583, 9 L. R. A. 366 ] * Wiley v, Parmer, 14 Ala. 627. 8 Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 371, 380. And see Camp- bell v. Morris, 3 H. & Mcll. 554; Ward v. Morris, 4 H. & McH. 340 ; and other cases cited, ante, p. 37, note. See also Oliver v. Washington Mills, 11 Allen, 268, * Ward v. Maryland, 12 Wall. 419, 430; Case of State Tax on Foreign Held Bonds, 15 Wall. 300. Compare Machine Co. v. Gage, 100 U. S. 676. A State can- not impose, for the privilege of doing busi- ness within its limits, a license tax upon travelling agents from other States, offer- ing for sale or selling merchandise, when none is imposed upon its own people. McGuire v. Parker, 32 La. Ann. 832. Or a heavier license tax upon non-residents than upon residents carrying on the same business. Ward v. Maryland, 12 Wall. 418; State v. Wiggin, 64 N. II. 508, 15 Atl. 128. Nor a license tax upon those dealing in goods, wares, and merchandise not the product of the State, while impos- ing none on similar traders selling the products of the State. Welton v. Mis- souri, 91 U. S. 275 ; Walling v. Michigan, 116 U. S. 446, 6 Sup. Ct. Rep. 454 ; Ex parte Thomas, 71 Cal. 204. See GrafTty v. Rushville, 107 Ind. 502, 8 N. E. 609 ; Mar- shallstown j;. Blum, 58 Iowa, 184, 12 N. W. 266; Pacific Junction v. Dyer, 64 Iowa, 38, 19 N. W. 862 ; State v. Pratt, 59 Vt. 502, 9 Atl. 552. Compare People v. Lyng, 74 Mich. 579, 42 N. W. 139 ; rev. in 135 U. S. 161, 10 Sup. Ct. Rep. 725. [But it may impose upon such traders a license tax, when it imposes upon those dealing in its own similar products an equal tax. Emert v. Missouri, 166 U. S. 296, 15 Sup. Ct. Rep. 367, aff. 103 Mo. 241, 15 S. W. 81, 3 Inters. Com. R. 627, 11 L. R. A. 219, 23 Am. St. 874 ; contra, McGraw v. Marion, 98 Ky. 673, 34 S. W. 18, 47 L. R. A. 593. That a license tax levied upon itinerant 694 CONSTITUTIONAL LIMITATIONS. [CH. XIV. impairing the obligation of contracts, they are of course precluded from levying any taxes which would have that effect. Therefore, as was shown in a previous chapter, if the State by any valid contract has obligated itself not to tax particular property, or not to tax beyond a certain rate, a tax in disregard of the obligation is void. 1 It is also held that to tax in one State contracts owned in another impairs their obligation, even though they are made and are payable in the State imposing the tax, and are secured by mortgage in that State. 2 venders may be bad as against non-resi- dents, is no reason for holding it void as to residents. Brownback v. North Wales, 194 Pa. 609, 45 All. 660, 49 L. R. A. 446.] Nor charge vessels loaded with the products of other States larger fees for the use of the public wharves than are charged vessels loaded with products of the same State. Guy v. Baltimore, 100 U. S. 434. See further Woodruff v. Par- ham, 8 Wall. 123; Cook v. Pennsylvania, 97 U. S. 566. " The negotiation of sales of goods which are in another State for the purpose of introducing them into the State in which the negotiation is made is inter-state commerce," and a statute im- posing a privilege license upon all persons selling by sample within a Tennessee tax- ing district is void as applied to the drummer for an Ohio house, as interfering with such commerce, and this although Tennessee and foreign drummers are put on the same footing. Bobbins v. Shelby Taxing District, 120 U. S. 489, 7 Sup. Ct. Rep. 692 ; Corson v. Maryland, 120 U. S. 502, 7 Sup. Ct. Rep. 655; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. Rep. 1 ; State v. Agee, 83 Ala. 110, 3 So. 856; State v. Bracco, 103 N. C. 349, 9 S. E. 404 ; Sim- mons Hardware Co. v. McGuire, 39 La. Ann. 848, 2 So. 592 ; Fort Scott v. Pelton, 39 Kan. 764, 18 Pac. 954 ; Ex parte Rosen- blatt, 19 Nev. 439, 14 Pac. 298. [Brennan v. Titusville, 153 U. S. 289, 14 Sup. Ct. Rep. 829; Adkins v. Richmond, 98 Va. 91, 34 S. E. 967, 47 L. R. A. 583 ; Laurens v. Elmore, 65 S. C. 477, 33 S. E. 560, 45 L. R. A. 249.] A license tax can be demanded only in respect of the business of an express company carried on entirely within the State. Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. Rep. 851 rev. Crutcher v. Com., 89 Ky. 6, 12 S. W. 141.] See also State v. Richards, 32 W. Va. 348, 9 S. E. 245. [And a State may tax resi- dent commission merchants upon their commissions, even though those commis- sions are earned entirely upon inter-state commerce. Ficklen v. Shelby Taxing District, 145 U. S. 1, 12 Sup. Ct. Rep. 810. And it may tax sellers of alcoholic liquors, and may exempt from such tax manufacturers who sell at the place of manufacture in quantities above a given amount. Such exemption does not dis- criminate against non-resident manufac- turers. Reymann Brewing Co. v. Brister, 179 U. S. 445, 21 Sup. Ct. Rep. 201.] 1 See ante, p. 395, and cases cited in note. 2 State Tax on Foreign Held Bonds, 15 Wall. 300; Street Railroad Co. v. Mor- row, 87 Tenn. 406, 11 S. W. 348. See also Mayor of Baltimore v. Hussey, 67 Md. 112, 9 Atl. 19; Railroad Co. v. Com'rs, 91 N. C. 454; Railroad Co. v. Jackson, 7 Wall. 262 ; Oliver v. Washing- ton Mills, 11 Allen, 268. The stock of a foreign corporation is not taxable, though its property is used within the State by its licensees. Com. v. Amer. Bell Tel. Co., 129 Pa. St. 217, 18 Atl. 122; People v. Amer. Bell Tel. Co., 117 N. Y. 241, 22 N. E. 1057. Compare Catlin v. Hull, 21 Vt. 152; Jenkins v. Charleston, 5 S. C. 393; Mumford v. Sewall, 11 Oreg. 67, 4 Pac. 585. A State may tax its citizen upon the public debt of another State held by him, though exempt from taxes in such State. Bonaparte v. Tax Court, 104 U. S. 592. A foreign corporation having a rail- road and doing business in a State, may, as a condition of doing business, be re- quired, like a domestic corporation, to collect a tax upon its loans held by resi- dents of the State. Com. v. New York, L. E. & W. R. R. Co., 129 Pa. St. 463, 8 Atl. 412. [The estate of a bankrupt in the hands of hia assignee may be taxed by the State and county till distribution. CH. XIV.] THE POWER OF TAXATION. 695 Having thus indicated the extent of the taxing power, 1 it is necessary to add that certain elements are essential in all taxation, and that it will not follow as of course, because the power is so vast, that everything which may be done under pretence of its ex- ercise will leave the citizen without redress, even though there be no conflict with express constitutional inhibitions. Everything that may be done under the name of taxation is not necessarily a tax ; and it may happen that an oppressive burden imposed by the government, when it comes to be carefully scrutinized, will prove, instead of a tax, to be an unlawful confiscation of prop- erty, unwarranted by any principle of constitutional government. Re Sims, 118 Fed. Rep. 356. But where moneys are loaned by a creditor residing in one State to a debtor residing in another, the loan being effected through the intervention of an agent resident in the latter, the creditor is taxahle in the latter State in respect of moneys so loaned, particularly if the moneys, as they fall due and are paid, are reloaned in that State. Bristol v. Washington Co., 177 U. S. 133, 20 Sup. Ct. Rep. 585. To substantially the same effect is New Orleans v. Stempel, 175 U. S. 309, 20 Sup. Ct. Rep. 110, although here the notes and other evidences of debt were left in the hands of the agent in Louisiana. See many cases cited in a note on " Situs for taxation of debts evidenced by notes or mortgages held by agent residing in dif- ferent State from principal " appended to the Stempel Case in 44 L. ed. U. S. 174. These cases, taken in connnection with King r. Cross, 175 U. S. 396, 20 Sup. Ct. Rep. 131, and Chicago, R. I. & P. R. Co. v. Sturm, 174 U. S. 710, 19 Sup. Ct. Rep. 797, show a decided tendency to disregard the rule mobilia personam sequuntur, so far at least as taxation and attachment are concerned. And see in this connection Savings and Loan Society v. Multnomah County, 169 U. S. 421, 18 Sup. Ct. Rep. 392, where the right of a State to tax the interest of a non-resident mortgagee in lands within its boundaries is upheld, and the case of State Tax on Foreign Held Bonds, 15 Wall. 300, distinguished, and sundry dicta in it disapproved.] 1 A State may, if it see fit, tax the property owned, held, and used by itself or its municipalities for public purposes ; but this would so obviously be unwise and impolitic that the intent to do so is never assumed, but public property is always, by implication of law, exempt from the operation of the general terms of tax laws. People t*. Salomon, 51 111. 37 ; Trustees of Industrial University v. Champaign Co., 76 111. 184; Directors of Poor v. School Directors, 42 Pa. St. 21 ; People v. Austin, 47 Cal. 353 ; People v. Doe, 30 Cal. 220 ; Wayland v. County Com'rs, 4 Gray, 500; Worcester Co. v. Worcester, 116 Mass. 193; State v. Gaff- ney, 34 N. J. 133; Camden r. Camden Village Corp., 77 Me. 530, 1 Atl. 689; Erie Co. v. Erie, 113 Pa. St. 360, 6 Atl. 269. But city water-works may be taxed for county purposes. Erie Co. v. Com'rs Water-Works, 113 Pa. St. 368, 6 Atl. 138. The same rule applies to special city assessments. Green v. Hotaling, 44 N. J. L. 347 ; Polk Co. Savings Bank v. State, 69 Iowa, 24, 28 N. W. 416; Harris Co. v. Boyd, 70 Tex. 237, 7 S. W. 713. But see contra, Adams Co. v. Quincy, 130 111. 566, 22 N. E. 624. And the exemption extends to lands acquired by a city outside its limits to supply itself with water. West Hartford v. Water Com'rs, 44 Conn. 360; Rochester v. Rush, 80 N. Y. 302. So of a ferry landing in Brooklyn owned by New York City, to which the ferry privilege belongs. Peo- ple v. Assessors, 111 N. Y. 505, 19 N. E. 90. See Black v. Sherwood, 84 Va. 906, 6 S. E. 484. But not so of land taken by a city in payment of the defalcation of an officer. People v. Chicago, 124 111. 636, 17 N. E. 56. fJPublic property is in Louisiana liable to special assessments for public improvements. New Orleans v. Warner, 175 U. S. 120, 20 Sup. Ct. Rep. 44. Upon liability of public property to assessment for public improvements, see many cases cited and discussed in note to 44 L. ed. U. S. 96-3 696 CONSTITUTIONAL LIMITATIONS. [CH. XIV. In the first place, taxation having for its only legitimate object the raising of money for public purposes (a) and the proper needs (a) [[Appropriation of money for the expenses of a school controlled by a private corporation in consideration of the gratuitous instruction of common school-teachers is for a public purpose, and it is not an assumption of debts of a private corporation or a loan to it. Boehm v. Hertz, 182 111. 154, 64 N. E. 973, 48 L. R. A. 575. Pur- chase of rights necessary to the beautification of public parks is a public purpose. Knowlton v. Williams, 174 Mass. 476, 55 N. E. 77, 47 L. R. A. 314. So is erection of a bridge for highway and railway purposes, even though bridge is property of a private corporation authorized to collect tolls for its use. Pritchard v. Magoun, 109 Iowa, 364, 80 N. \V. 512, 46 L. R. A. 381. To aid in the building of a railroad is a public purpose. Folsom v. Township Ninety Six, 159 U. S. (511, 16 Sup. Ct. Rep. 174, and cases therein cited. Contra, People v. Tp. Bd. of Salem, 20 Mich. 452. So, possibly, to pension those dependent upon an officer dying in office. Opinion of Jus- tices, 175 Mass. 599, 57 N. E. 675, 49 L. R. A. 564. An enterprise may be public, even though it is controlled by a private corporation for profit. Ryan v. L. & N. Terminal Co., 102 Tenn. Ill, 50 S. W. 744, 45 L. R. A. 303. See also Phoenix Fire As. Co. v. Montgomery Fire Dept., 117 Ala. 631, 23 So. 843, 42 L. R. A. 468. Main- tenance of a State university established by constitutional authority is a public purpose, but the creation of free scholarships and allowances for needy students, even though appointments to them are made upon public competitive examina- tions, is not. State v. Switzler, 143 Mo. 287, 45 S. W. 245, 40 L. R. A. 280, 65 Am. St. 653. To make a county exhibit at the Omaha exposition in 1898, was held a public purpose in State v. Cornell, 53 Neb. 556, 74 N. W. 59, 39 L. R. A. 513. Erec- tion of electric-lighting plant to furnish light to citizens as well as to municipality is. Mitchell v. Negaunee, 113 Mich. 359, 71 N. W. 646, 38 L. R. A. 157, 67 Am. St. 468; Jacksonville El. L. Co. v. Jacksonville, 36 Fla. 229, 18 So. 677, 30 L. R. A. 540, 51 Am. St. 24 ; Opinion of Justices, 150 Mass. 592, 24 N. E. 1084, 8 L. R. A. 487, and note ; Middleton v. St. Augustine, 42 Fla. 287, 39 So. 421 (Nov. 3, 1900); contra, Mauldin v. Greenville, 33 S. C. 1, 11 S. E. 434, 8 L. R. A. 291. Construction of an under- ground street railway is. Sun P. & P. Assn. v. New York, 152 N. Y. 257, 46 N. E. 499, 37 L. R. A. 788. Treatment of habitual drunkards at a private institution is not. Wis. Keeley Inst. Co. v. Milwaukee County, 95 Wis. 153, 70 N. W. 68, 36 L. R. A. 55; contra, Re House, 23 Col. 87, 46 Pac. 117, 33 L. R. A. 832 ; Baltimore v. Keeley Insti- tute, 81 Md. 106, 31 All. 437, 27 L. R. A. 646. To make an exhibit of county re- sources at an exposition is. Shelby County v. Tennessee C. Exp. Co., 96 Tenn. 653, 36 S. W. 694, 33 L. R. A. 717. So to construct a subway beneath city streets, which when completed is to be leased to a street railway company. Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610. To provide bounties for killing coyotes. Ingram v. Colgan, 106 Cal. 113, 120, 38 Pac. 315, 39 Pac. 437, 28 L. R. A. 187, 46 Am. St. 221. Moneys for benefit of an insolvent railroad company with provision that resident creditors shall first be paid out of proceeds cannot be raised by taxa- tion. Baltimore & E. S. R. Co. v. Spring, 80 Md. 510, 31 All. 208, 27 L. R. A. 72. But medical treatment and care of poor persons may be provided at public expense in time of epidemic. Thomas v. Mason, 39 W. Va. 626, 20 S. E. 680, 26 L. R. A. 727, and note. A municipal electric plant to supply electricity for municipal pur- poses, even though electricity is to be supplied also to private consumers, provided rea- sonable rates be charged, may be erected at public cost. Linn v. Chambersburg, 160 Pa. 511, 28 Atl. 842, 25 L. R. A. 217 ; Crawfordsville v. Braden, 130 Ind. 149, 28 N. K. 849, 14 L. R. A. 268, and note, 30 Am. St. 214. To make State exhibit at World's Columbian Exposition is. Norman v. Kentucky Bd. of Managers, 93 Ky. 537, 20 S. W. 901, 18 L. R. A. 556; Daggett v. Colgan, 92 Cal. 63, 28 Pac. 61; 14 L. R. A. 474, and note on public purposes, 27 Am. St. 95. Purchase of fuel and distribution and sale thereof to inhabitants is not a public service. Opinion of Justices, 155 Mass. 598, 30 N. E. 1142, 15 L. R. A. 809; In re Municipal Fuel Plants, Mass. , 66 N. E. 25 (1903). Public moneys cannot be applied toward part payment of tuition of pupils attending private academies. Underwood v. Wood, 93 Ky. 177, 19 S. W. CH. XIV.] THE POWER OF TAXATION. 697 of government, the exaction of moneys from the citizens for other purposes is not a proper exercise of this power, and must there- fore be unauthorized. In this place, however, we do not use the word public in any narrow and restricted sense, nor do we mean to be understood that whenever the legislature shall overstep the legitimate bounds of their authority, the case will be such that the courts can interfere to arrest their action. There are many cases of unconstitutional action by the representatives of the people which can be reached only through the ballot-box ; and there are other cases where the line of distinction between that which is allowable and that which is not is so faint and shadowy that the decision of the legislature must be accepted as final, even though the judicial opinion might be different. But there are still other cases where it is entirely possible for the legislature so clearly to exceed the bounds of due authority that we cannot doubt the right of the courts to interfere and 'check what can only be looked upon as ruthless extortion, provided the nature of the case is such that judicial process can afford relief. An un- limited power to make any and every thing lawful which the legislature might see fit to call taxation, would be, when plainly stated, an unlimited power to plunder the citizen. 1 1 Tyson v. School Directors, 51 Pa. v. Vernon, 27 Iowa, 28 ; Allen v. Jay, 60 St. 9; Morford v. Unger, 8 Iowa, 82; Me. 124, 11 Am. Rep. 185; Ferguson Talbot v. Hudson, 16 Gray, 417 ; Hansen v. Landram, 6 Bush, 230; People v. 405, 15 L. R. A. 825, and note. To provide bounties for planting forest trees is not a public purpose. Deal v. Mississippi County, 107 Mo. 464, 18 S. W. 24, 14 L. R. A. 622. But enlargement of a private millrace may be if it extends river and canal navigation to a public street. Waterloo W. Mfg. Co. v. Shanahan, 128 N. Y. 345, 28 N. E. 358, 14 L. R. A. 481. Disposal of sewage is. Re Kingman, 153 Mass. 566, 27 N. E. 778, 12 L. R. A. 417, and note. So is supplying natural gas to the corporation and to its citizens. State v. Toledo, 48 Ohio St. 112, 26 N. E. 1061, 11 L. R. A. 729. Erection of a memorial hall is, but maintenance and support of a G. A. R. post is not. King- man v. Brockton, 153 Mass. 255, 26 N. E. 998, 11 L. R. A. 123, and note. Distribut- ing water power to private consumers is not. Re Barre Water Co., 62 Vt. 27, 20 Atl. 109, 9 L. R. A. 195. Where the Constitution authorizes counties to loan their aid for the " necessary support of the poor," a statute " authorizing counties to issue bonds to procure seed-grain for needy farmers resident therein " is valid. State v. Nelson County, 1 N. D. 88, 45 N. W. 33, 8 L. R. A. 283, and note, 26 Am. St. 609. Keeping private fords clear of driftwood is a private purpose. Hutton v. Webb, 126 N. C. 897, 36 S. E. 341. To raise money to pay to men drafted and serving in Union Armies in Civil War, or to their heirs, specified sums is a private purpose. Bush v. Bd. of Supervrs. of Orange Co., 159 N. Y. 212, 63 N. E. 1121, 46 L. R. A. 556. 70 Am. St. 538. An act providing for the raising of money to pay a bounty to private producers of beet sugar is invalid. Michigan Sugar Co. v. Auditor Gen- eral, 124 Mich. 674, 83 N. W. 625, 83 Am. St. 364. A grant of land by the city of Minneapolis to a private corporation for use for an Industrial Exhibition was held valid upon the theory that though it involved taxation, the purpose was " public " within the requirement of the rule. Minneapolis v. Janney, 86 Minn. Ill, 90 N. W. 312. For other cases on public purposes, see Skinner v. Henderson, 20 Fla. 121, 7 So. 464, 8 L R. A. 65.] 698 CONSTITUTIONAL LIMITATIONS. [CH. XIV. It must always be conceded that the proper authority to deter- mine what should and what should not constitute a public burden is the legislative department of the State. This is not only true for the State at large, but it is true also in respect to each munici- pality or political division of the State ; these inferior corporate existences having only such authority in this regard as the legis- lature shall confer upon them. 1 And in determining this ques- tion, the legislature cannot be held to any narrow or technical rule. Not only are certain expenditures absolutely essential to the continued existence of the government and the performance of its ordinary functions, but as a matter of policy it may some- times be proper and wise to assume other burdens which rest entirely on considerations of honor, gratitude, or charity. The officers of government must be paid, the laws printed, roads con- structed, and public buildings erected; but with a view to the general well-being of society, it may also be important that the children of the State should be educated, the poor kept from starvation, 2 losses in the public service indemnified, and incen- tives held out to faithful and fearless discharge of duty in the future, by the payment of pensions to those who have been faith- ful public servants in the past. There will therefore be necessary expenditures, and expenditures which rest upon considerations of policy only, and, in regard to the one as much as to the other, the decision of that department to which alone questions of State policy are addressed must be accepted as conclusive. Township Board of Salem, 20 Mich. 452; rather than in the interest of the individ- Washington Avenue, 69 Pa. St. 352, ual. Deering & Co. v. Peterson, 75 Minn. 8 Am. Rep. 255. " It is the clear right 118, 77 N. W. 568 J of every citizen to insist that no un- * Litchfield v. Vernon, 41 N. Y. 123. lawful or unauthorized exaction shall be A law may determine absolutely the made upon him under the guise of taxa- amount of tax to be raised for a local im- tion. If any such illegal encroachment provement,and the property upon which is attempted, he can always invoke the it is to be apportioned. Spencer v. Mer- aid of the judicial tribunals for his pro- chant, 100 N. Y. 585, 3 N. E. 682; aff. tection, and prevent his money or other 125 U. S. 345, 8 Sup. Ct. Rep. 921. property from being taken and appropri- See ante, p. 335, and cases cited in note ated for a purpose and in a manner not 1, p. 699. authorized by the Constitution and laws." 2 Taxes cannot be levied to donate to Per Bige/oiv, Ch. J., in Freeland v. Hast- benevolent and charitable societies, which ings, 10 Allen, 670, 575. See Hooper v. are controlled by private individuals, and Emery, 14 Me. 375; People v. Sup'rs of over which the public authorities have no Saginaw, 26 Mich. 22; Weismer r. Doug- supervision or control. So held in an las, 64 N. Y. 91, 21 Am. Rep. 586. fJA able opinion in St. Mary's Industrial statute authorizing the State to loan its School v. Brown, 45 Md. 310. But a city money to individuals for the buying of may be allowed to pay a part of the seeds in cases where crops have failed, is expense of an orphanage to which its invalid for violating the principle that the magistrates may commit poor children, functions of the State are to be exercised Shepherd's Fold v. Mayor, &c. New York, primarily in the interest of the public 96 N. Y. 137. CH. XIV.] THE POWER OF TAXATION. 699 Very strong language has been used by the courts in some of the cases on this subject. In a case where was questioned the validity of the State law confirming township action winch granted gratuities to persons enlisting in the military service of the United States, the Supreme Court of Connecticut assigned the following reasons in its support: "In the first place, if it be conceded that it is not competent for the legislative power to make a gift of the common property, or of a sum of money to be raised by taxation, where no possible public benefit, direct or indirect, can be derived therefrom, such exercise of the legislative power must be of an extraordinary character to justify the interference of the judiciary ; and this is not that case. " Second. If there be the least possibility that making the gift will be promotive in any degree of the public welfare, it be- comes a question of policy, and not of natural justice, and the determination of the legislature is conclusive. And such is this case. Such gifts to unfortunate classes of society, as the indigent blind, the deaf and dumb, or insane, or grants to particular col- leges or schools, or grants of pensions, swords, or other mementos for past services, involving the general good indirectly and in slight degree, are frequently made and never questioned. " Third. The government of the United States was consti- tuted by the people of the State, although acting in concert with the people of other States, and the general good of the people of this State is involved in the maintenance of that general govern- ment. In many conceivable ways the action of the town might not only mitigate the burdens imposed upon a class, but render the service of that class more efficient to the general government, and therefore it must be presumed that the legislature found that the public good was in fact thereby promoted. " And fourth. It is obviously possible, and therefore to be in- tended, that the General Assembly found a clear equity to justify their action." L And the Supreme Court of Wisconsin has said : " To justify i Booth v. Woodbury, 32 Conn. 118, v. Merchant, 100 N. Y. 585, 3 N. E. 682; 128. See to the same effect Speer v. aff. 125 U. S. 345, 8 Sup. Ct. Rep. 921. School Directors of Blairville, 50 Pa. St. Compare People v. Common Council of .150. The legislature is not obliged to Detroit, 28 Mich. 228. The legislature consult the will of the people concerned cannot delegate to parties concerned the in ordering the levy of local assessments authority to levy taxes for the benefit of for the public purposes of the local gov- their own estates, and of those of others ernment. Cheaney v Hooser, 9 B. Monr. interested with them but not consenting. 330; Slack v. Maysville, &c. R. R. Co., Scuffletown Fence Co. v. McAllister, 12 13 B. Monr. 1 ; Cypress Pond Draining Bush, 312. Co. v. Hooper, 2 Met. (Ky.) 350 ; Spencer 700 CONSTITUTIONAL LIMITATIONS. [CH. XIV. the court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear and palpable ; so clear and palpable as to be perceptible by every mind at the first blush. . . . It is not denied that claims founded in equity and justice, in the largest sense of those terms, or in gratitude or charity, will sup- port a tax. Such is the language of the authorities." 1 But we think it is plain, as has been said by the Supreme Court of Wisconsin, that " the legislature cannot ... in the form of a tax, take the money of the citizens and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well-being of the community required to contribute." 2 Or, as stated by the Supreme Court of Pennsylvania, " the legislature has no constitutional right to ... lay a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority passed to the assembly by the general grant of the legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder. Transferring money from the owners of it into the possession of those who have no title to it, though it be done under the name and form of a tax, is unconstitutional for 1 Brodhead ?-. City of Milwaukee, 19 442; Cole v. La Grange, 113 U. S. 1, Wis. 624, 652. See Mills v. Charleton, 29 5 Sup. Ct. Rep. 416 ; though it be under Wis. 411, 9 Am. Rep. 578; Spring v. pretence of sanitary improvements. Clee Russell, 7 Me. 273 ; Williams v. School v. Sanders, 74 Mich. 692, 42 N. W. 154. District, 33 Vt. 271. Taxation to supply Power to tax in aid of a water grist natural gas to a city valid. Fellows i: mill, recognized in Nebraska: Traver v. Walker, 39 Fed. Rep. 651. It is not com- Merrick Co., 14 Neb. 327, 15 N. W. 690 ; petent for a city to levy taxes to loan to contra, in aid of steam mill, Osborn v. persons who have suffered from a fire. Adams Co., 109 U. S. 1, 3 Sup. Ct. Rep. Lowell r. Boston, 111 Mass. 454, 15 Am. 150. Taxation to pay a subscription to a Rep. 39, and note, p. 56 ; Feldman v. City private corporation is not for a public Council of Charleston, 23 S. C. 57. Or to purpose. Weismer v. Douglas, 64 N. Y. supply farmers, whose crops have been 91, 21 Am. Rep. 686. A city cannot be destroyed, with provisions, and grain for empowered to erect a dam, with the privi- seed and feed. State v, Osawkee, 14 Kan. lege afterwards at discretion to devote 418. Or to aid manufacturing enter- it to either a public or private purpose; prises: Allen v. Jay, 60 Me. 124, 11 Am. but the public purpose must appear. Rep. 185; Commercial Bank v. Tola, 2 Attorney- General v. Eau Claire, 37 Wis. Dili. 353; Loan Association v. Topeka, 400. 20 Wall. 655 ; Opinions of Judges, 58 ' 2 Per Dixon, Ch. J., in Brodhead v. Me. 590 ; Coates v. Campbell, 37 Minn. Milwaukee, 19 Wis. 624, 652. See also 498, 35 N. W. 366 ; Mather v. Ottawa, 114 Lunsden v. Cross, 10 Wis. 282 ; Opinions 111. 659, 8 N. E. 216; Parkersburg v. of Judges, 58 Me. 690; Moulton v Ray- Brown, 106 U. S. 487, 1 Sup. Ct. Rep. mond, 60 Me. 121 ; post, p. 704, and note. CH. XIV.] THE POWER OF TAXATION. 701 all the reasons which forbid the legislature to usurp any other power not granted to them." l And by the same court, in a still later case, where the question was whether the legislature could lawfully require a municipality to refund to a bounty association the sums which they had advanced to relieve themselves from an impending military conscription, " such an enactment would not be legislation at all. It would be in the nature of judicial action, it is true, but wanting the justice of notice to parties to be af- fected by the hearing, trial, and all that gives sanction and force to regular judicial proceedings ; it would much more resemble an imperial rescript than constitutional legislation : first, in declar- ing an obligation where none was created or previously existed ; and next, in decreeing payment, by directing the money or prop- erty of the people to be sequestered to make the payment. The legislature can exercise no such despotic functions." 2 1 Per Black, Ch. J., in Sharpless v. Mayor, &c., '21 Pa. St. 147, 168. See Opin'ons of Judges, 58 Me. 590. 2 Tyson v. School Directors of Halifax, 61 Pa St. 922. See also Grim v. Weisen- burg School District, 57 Pa. St. 433. The decisions in Miller v. Grandy, 13 Mich. 540 ; Crowell v. Hopkinton, 45 N. H. 9 ; and Shackford v. Newington, 46 N. H. 415, so far as they hold that a bounty law is not to be held to cover moneys before advanced by an individual without any pledge of the public credit, must be held referable, we think, to the same principle. And see cases, ante, p. 332, note 3. Compensation for money voluntarily contributed for levee purposes by allowing such sums as a credit on fu- ture levee taxes is not allowable. Those incidentally benefited cannot be com- pelled to refund money thus spent. Davis v. Gaines, 48 Ark. 370, 3 S. W. 184. We are aware that there are some cases the doctrine of which seems opposed to those we have cited, but perhaps a careful ex- amination will enable us to harmonize them all. One of these is Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N. Y. 143. The facts in that case were as follows : Cornell and Clark were formerly commissioners of highways of the town of Guilford, and as such, by di- rection of the voters of the town, had sued the Butternut and Oxford Turnpike Road Company. They were unsuccessful in the action, and were, after a long litigation, obliged to pay costs. The town then re- fused to reimburse them these costs. Cor- nell and Clark sued the town, and, after prosecuting the action to the court of last resort, ascertained that they had no legal remedy. They then applied to the legis- lature, and procured an act authorizing the question of payment or not by the town to be submitted to the voters at the succeeding town meeting. The voters decided that they would not tax them- selves for any such purpose. Another application was then made to the legisla- ture, which resulted in a law authorizing the county judge of Chenango County to appoint three commissioners, whose duty it should be to hear and determine the amount of costs and expenses incurred by Cornell and Clark in the prosecution and defence of the suits mentioned. It au- thorized the commissioners to make an award, which was to be filed with the county clerk, and the board of super- visors were then required, at their next annual meeting, to apportion the amount of the award upon the taxable property of the town of Guilford, and provide for its collection in the same manner as other taxes are collected. The validity of this act was affirmed. It was regarded as one of those of which Denio, J., says, "The statute book is full, perhaps too full, of laws awarding damages and compensa- tion of various kinds to be paid by the public to individuals who had failed to obtain what they considered equitably due to them by the decision of adminis- trative officers acting under the provi- 702 CONSTITUTIONAL LIMITATIONS. [CH. XIV. A like doctrine has been asserted by the Supreme Court of Michigan in a recent case. That State is forbidden by its consti- sions of former laws. The courts have no power to supervise or review the doings of the legislature in such cases." It is ap- parent that there was a strong equitable claim upon the township in this case for the reimbursement of moneys expended by public officers under the direction of their constituents, and perhaps no prin- ciple of constitutional law was violated by the legislature thus changing it into a legal demand and compelling its satisfac- tion. Mr. SeJgwick criticises this act, and says of it that it " may be called taxation, but in truth it is the reversal of a judicial decision." Sedg. on Stat. and Const. Law, 414. There are very many claims, however, resting in equity, which the courts would be compelled to reject, but which it would be very proper for the legislature to recognize, and pro- vide for by taxation. Brewster v. City of Syracuse, 19 N. Y. 116. Another case, perhaps still stronger than that of Guil- ford v. The Supervisors, is Thomas v. Le- land, 24 Wend. 65. Persons at Utica had given bond to pay the extraordinary ex- pense that would be caused to the State by changing the junction of the Che- nango Canal from Whitesborough to Utica, and the legislature afterwards passed an act requiring the amount to be levied by a tax on the real property of the city of Utica. The theory of this act may be stated thus : The canal was a pub- lic way. The expense of constructing all public ways may be properly charged on the community especially or peculiarly benefited by it. The city of Utica was specially and peculiarly benefited by hav- ing the canal terminate there ; and as the expense of construction was thereby in- creased, it was proper and equitable that the property to be benefited should pay this difference, instead of the State at large The act was sustained by the courts, and it was well remarked that the fact that a bond had been before given securing the same money could not de- tract from its validity. Whether this case can stand with some others, and especially with that of Hampshire v. Franklin, 16 Mass. 76, we have elsewhere expressed a doubt, and it must be conceded that, for the legislature in any case to compel a municipality to assume a burden, on the ground of local benefit or local obligation, against the will of the citizens, is the ex- ercise of an arbitrary power little in har- mony with the general features of our republican system, and only to be justi- fied, if at all, in extreme cases. The gen- eral idea of our tax system is, that those shall vote the burdens who are to pay them; and it would be intolerable that a central authority should have power, not only to tax localities, for local pur- poses of a public character which they did not approve, but also, if it so pleased, to compel them to assume and discharge private claims not equitably chargeable upon them. See the New York cases above referred to criticised in State v. Tappan, 29 Wis. 664, 680, 9 Am. Kep. 622. The legislature may require a county to pay for a road : Wilcox v. Deer Lodge Co., 2 Mont. 674 ; and may apportion to a township such part of the cost as the length of it in the township bears to its total length. Mahoney v. Comry, 103 Pa. St. 362. See also Shaw v. Den- nis, 10 111. 405. The cases of Cheaney v. Hooser, 9 B. Monr. 330 ; Sharp's Ex. v. Dunavan, 17 B. Monr. 223 ; Maltus v. Shields. 2 Met. (Ky.) 553, will throw some light on this general subject. The case of Cypress Pond Draining Co. r. Hooper, 2 Met. (Ky.) 350, is also instructive. The Cypress Pond Draining Company was in- corporated to drain and keep drained the lands within a specified boundary, at the cost of the owners, and was authorized by the act to collect a tax on each acre, not exceeding twenty-five cents per acre, for that purpose, for ten years, to be col- lected by the sheriff. With the money thus collected, the board of managers, six in number, named in the act, was re- quired to drain certain creeks and ponds within said boundary. The members of the board owned in the aggregate 3,840 acres, the larger portion of which was low land, subject to inundation, and of little or no value in its then condition, but which would be rendered very valuable by the contemplated draining. The corporate boundary contained 14,621 acres, owned by sixty-eight persons. Thirty-four of these, owning 5,975 acres, had no agency CH. XIV.] THE POWER OF TAXATION. 703 tution to engage in works of public improvement, except in the expenditure of grants of land or other property made to it for this purpose. The State, with this prohibition in force, entered into a contract with a private party for the construction by such party of an improvement in the Muskegon River, for which the State was to pay the contractor fifty thousand dollars, from the Internal Im- provement Fund. The improvement was made, but the State officers declined to draw warrants for the amount, on the ground that the fund from which payment was to have been made was exhausted. The State then passed an act for the levying of tolls upon the property passing through the improvement sufficient to pay the contract price within five years. The court held this act void. As the State had no power to construct or pay for such a work from its general fund, and could not constitutionally have agreed to pay the contractors from tolls, there was no theory on which the act could be supported, except it was that the State had misappropriated the Internal Improvement Fund, and there- fore ought to provide payment from some other source. But if the State had misappropriated the fund, the burden of reimburse- ment would fall upon the State at large ; it could not lawfully be imposed upon a single town or district, or upon the commerce of a single town or district. The burden must be borne by those upon whom it justly rests, and to recognize in the State a power to compel some single district to assume and discharge a State debt would be to recognize its power to make an obnoxious district or an obnoxious class bear the whole burden of the State govern- ment. An act to that effect would not be taxation, nor would it be the exercise of any legitimate legislative authority. 1 And it in the passage of the act, and no notice of Anderson v. Hill, 54 Mich. 477, 20 N. W. the application therefor, gave no assent 549. " Uniformity in taxation implies to its provisions, and a very small por- equality in the burden of taxation." tionof their land, if any, would be bene- Bank v. Hines, 3 Ohio St. 1, 15. "This filed or improved in value by the proposed equality in the burden constitutes the draining ; and they resisted the collection very substance designed to be secured of the tax. As to these owners the act of by the rule." Weeks v. City of Milwau- incorporation was held unconstitutional kee, 10 Wis. 242, 258. See also Sanborn and inoperative. See also the City of v. Rice, 9 Minn. 273 ; State v. Haben, 22 Covington v. Southgate, 15 B. Monr. 491 ; Wis. 660. The reasoning of these cases Lovingston v. Wider, 53 111. 302 ; Curtis seems not to have been satisfactory to v. Wiiipple, 24 Wis. 350 ; People v. Flagg, the New York Court of Appeals, See 46 N. Y. 401 ; People v. Batchellor, 53 Gordon v. Comes, 47 N. Y. 608, in which N. Y. 128, 13 Am. Rep. 480; People v. an act was sustained which authorized Common Council of Detroit, 28 Mich. 228. " and required " the village of Brockport The author has considered the subject of to levy a tax for the erection of a State this note at some length in his treatise Normal School building at that place. on taxation, c. 21. No recent case, we think, has gone so far 1 Ryerson v. Utley, 16 Mich. 269. See as this. Compare State v. Tappan, 29 also People v. Springwells, 25 Mich. 153; Wis. 664, 9 Am. Rep. 622; Mayor of 704 CONSTITUTIONAL LIMITATIONS. [CH. XIV. may be said of such an act, that, so far as it would operate to make those who would pay the tolls pay more than their propor- tion of the State obligation, it was in effect taking their property for the private benefit of other citizens of the State, and was obnoxious to all the objections against the appropriation of private property for private purposes which could exist in any other case. And the Supreme Court of Iowa has said : " If there be such a flagrant and palpable departure from equity in the burden im- posed ; if it be imposed for the benefit of others, or for purposes in which those objecting have no interest, and are therefore not bound to contribute, it is no matter in what form the power is exercised, whether in the unequal levy of the tax, or in the regu- lation of the boundaries of the local government, which results in subjecting the party unjustly to local taxes, it must be regarded as coming within the prohibition of the constitution designed to protect private rights against aggression however made, and whether under color of recognized power or not." 1 When, therefore, the legislature assumes to impose a pecu- niary burden upon the citizen in the form of a tax, two questions / may always be raised : First, whether the purpose of such burden may properly be considered public on any of the grounds above indicated ; 2 and second, if public, then whether the burden is Mobile v. Dargan, 45 Ala. 310; Living- and only differs in principle from Gordon ston County v. Weider, 64 111. 427 ; Burr v. Cornes, in that the one permittfd what v. Carbondale, 76 III. 455. " There can the other required. The case of Marks be no doubt that, as a general rule, where v. Trustees of Purdue University, 37 Ind. an expenditure is to be made for a pub- 155, follows Merrick v. Ainherst, and lie object, the execution of which will be Burr v. Carbondale, 76 111. 455; Hensley substantially beneficial to every portion Township v. People, 84 111. 544, and Liv- of the Commonwealth alike, and in the ingston County v. Darlington, 101 U. S. benefits and advantages of which all 407, are to the same effect.. Taxation the people will equally participate, if the not levied according to the principles money is to be raised by taxation, the upon which the right to tax is based is assessment would be deemed to come an unlawful appropriation of private within that class which is laid to defray property to public uses. City of Coving- one of the general charges of govern- ton v. Southgate, 15 B. Monr. 491 ; Peo- ment, and ought therefore to be imposed pie v. Township Board of Salem, 20 Mich, as nearly as possible with equality upon 452; Tide Water Co. v. Costar, 18 N. J. all persons resident and estates lying Eq. 518; Hammett v. Philadelphia, 65 within the Commonwealth. . . . An assess- Pa. St. 146, 3 Am. Rep. 615. ment for such a purpose, if laid in any 1 Morford v. Unger, 8 Iowa, 82, 92. other manner, could not in any just or See Durant v. Kauffman,34 Iowa, 194. proper sense be regarded as 'proper- 2 Though the legislature first decides tional ' within the meaning of the Con- that the use is public, the decision is not stitution." Merrick v. Inhabitants of conclusive. They cannot make that a Amherst, 12 Allen, 500, 504, per Bigelow, public purpose which is not so in fact. Ch. J. This case holds that local tax- Gove v. Epping, 41 N. H. 539 ; Crowell v. ation for a State purpose may be per- Hopkinton, 45 N. H. 9; Freeland v. Hast- mitted in consideration of local benefits, ings, 10 Allen, 570 ; Hooper v. Emery, 14 CH. XIV.] THE POWER OF TAXATION. 705 one which should properly be borne by the district upon which it is imposed. If either of these questions is answered in the nega- tive, the legislature must be held to have assumed an authority not conferred in the general grant of legislative power, and which is therefore unconstitutional and void. " The power of taxation," says an eminent writer, " is a great governmental at- tribute, with which the courts have very wisely shown extreme unwillingness to interfere ; but if -abused, the abuse should share the fate of all other usurpations." 1 In the case of burdens thus assumed by the legislature on behalf of the State, it is not always that a speedy and safe remedy can properly be afforded in the courts. It would certainly be a very dangerous exercise of power for a court to attempt to stay the collection of State taxes because an illegal demand was included in the levy ; and indeed, as State taxes are not usually levied for the purpose of satisfying specific demands, but a gross sum is raised which it is calculated will be sufficient for the wants of the year, the question is not usually one of the unconstitutionality of taxation, but of the misappropriation of moneys which have been raised by taxation. But if the State should order a city, township, or village to raise money by taxa- tion to establish one of its citizens in business, or for any other object equally removed from the proper sphere of government, or should undertake to impose the whole burden of the govern- ment upon a fraction of the State, the usurpation of authority would not only be plain and palpable, but the proper remedy would also be plain, and no court of competent jurisdiction could feel at liberty to decline to enforce the paramount law. 2 In the second place, it is of the very essence of taxation that it be levied with equality and uniformity, and to this end, that there should be some system of apportionment. 3 Where the burden is Me. 375; Allen v. Jay, 60 Me. 124, 11 Am. it is held that, in the absence of any pro- Rep 185 ; Tyler v. Beacher, 44 Vt. 651, 8 vision to that effect in the federal or State Am. Rep. 398; Ferguson v. Landram, 5 constitution, the taxing power of the legis- Bush, 230; Kelly v. Marshall, 69 Pa. lature is not restricted by any implied St. 319; People v. Flugg, 46 N. Y. 401 ; rule of fundamental law that taxes-must Curtis v. Whipple, 24 Wis. 350; Loan be equal and uniform. The court is Association v. Topeka, 20 Wall. 655; unanimous upon three propositions as [Re Page, 60 Kan. 842, 58 Pac. 478, expressed by Baldwin, J., (1) "There is 47 L. II. A. 68.] nothing in the constitution of Connecti- 1 Sedgwick on Const, and Stat. Law, cut, nor in the 14th amendment to that 414. of the United States, which, either ex- 2 Loan Association v. Topeka, 20 pressly or by implication, requires that "Wall. 655. 8ee also Chicago & G. T. all taxation by this State shall be uniform R. Co. v. Chappell, 124 Mich. 72, 82 or equal ; (2) there is no fundamental N. W. 809.] principal of free government or natural 3 In State v. Traveller's Ins. Co., 73 justice that all taxation shall be uniform Conn. 255, 47 All. 209, 57 L. R. A. 481, or equal ; (3) a citizen of another State 45 706 CONSTITUTIONAL LIMITATIONS. [CH. XIV. common, there should be common contribution to discharge it. who participates as a shareholder in a corporation in the enjoyment of a special franchise granted by this State will) a reservation of the power of amendment or repeal at pleasure, is not deprived of any privilege or immunity coming within the meaning of 2, Art. 4, of the Consti- tution of the United States, by a statute imposing a State tax of 1J per cent on the market value of his shares without any provision for deduction of capital in- vested in real estate," though such deduc- tion is provided for in taxation of market value of shares of resident stockholders. The majority opinion seems to assert that the judicial power would be incom- petent to declare a statute to be no law, though there were a fundamental princi- ple of free government and natural justice, that all taxation should be uniform and equal which was violated by the statute. The judgment in this case was affirmed in the Supreme Court of the United States in Traveller's Ins. Co., v. Connecticut, 185 U. S. 364, 22 Sup. Ct. Rep. 673, upon the peculiar provisions of the Connecticut tax laws.] The legis- lature cannot itself make an assessment directly or by placing a value on certain property. In re House Bill, 9 Col. 635, 21 Pac. 476; Slaughter v. Louisville, 89 Ky. 112, 8 S. W. 917 ; Ex parte Low, 24" W. Va. 620. QNor can it classify the counties, and arbitrarily value the lands in each class. Hawkins v. Mangum, 78 Miss. 97. 28 So. 872.] That it is not essential to provide for the taxation of all property, see Mississippi Mills v. Cook, 56 Miss. 40; that it is competent to provide for taxing railroad corpora- tions in a different way from individu- als : State Railroad Tax Cases, 92 U. S. 675 ; State Board v. Central R. R. Co., 48 N\ J. L. 146, 4 Atl. 578 ; Cincinnati, N. 0. & T. Ry. Co. v. Com., 81 Ky. 492; Franklin Co. v. Railroad, 12 Lea, 521 ; Central la. Ry. Co. v. Board, 67 Iowa, 199, 25 N. W. 128. [McHenry v. Alford, 163 U. S. 651, 18 Sup. Ct. Rep. 242. Upon taxation of railroads, see Cass County v. Chicago, B. & Q. R. Co., 25 Neb. 348, 41 N. W. 246, 2 L. R. A. 188, and note. A tax against a railway com- pany whose lines are partly without the State levied under a statute providing for an assessment upon gross receipts in such proportion as its mileage within the State bears to its total mileage, is valid. State Treas. v. Auditor General, 46 Mich. 224, 9 N. W. 258. Cumberland & P. Ry. Co. r. State, 92 Md. 668, 48 Atl. 503, 52 L. R. A. 764.] But some railroads may not be taxed on gross receipts, while others are taxed on capital. Worth v. Wilmington, &<:. R. R. Co., 89 N. C. 291 ; nor may they alone be taxed to raise a fund to pay railroad commissioners: Atchison, T. & S. F. R. R. Co. v. Howe, 32 Kan. 737, 5 Pac. 397; nor may the assessed value of other real property be made the standard of value of railroad property. Williams v. State Board, 51 N. J. L. 512, 18 Atl. 750. See California v. Central Pac. R. R. Co., 127 U. S. 1, 8 Sup. Ct. Rep. 1073; Santa Clara Co. v. South. Pac. R. R. Co., 118 U. S. 394, 6 Sup. Ct, Rep. 1132. [Nor may telegraph and telephone lines be taxed at a rate determined by taking the average rate of taxes, general, municipal, and local, levied throughout the State during the previous year, and applying it to the entire property of the company in the State for the present year, Pingree v. Dix, 120 Mich. 95, 78 N. W. 1025, 44 L. R. A. 679.] That property may be classified for taxation, Coal Run Co. v. Finlen, 124 111. 666, 17 N. E. 11; People v. Henderson, 12 Col. 369, 21 Pac. 144 ; Fahey v. State, 27 Tex. App. 146, 11 S. W. 108. Corporate and individual obligations may be put in different classes. Com. v. Del. Div. Canal Co., 123 Pa. St. 594, 16 Atl. 584. That the rule of uniformity must be applied to all subjects of taxation within the district and class : Marsh v. Supervisors, 42 Wis. 502 ; Philleo v. Hiles, 42 Wis. 527 ; Bureau 1 2 Kent, 231; Sanborn v. Rice, 9 Minn. 273; Ryerson v. Utley, 16 Mich. 269; Oliver v. Washington Mills, 11 Al- len, 268; Tidewater Co. v. Costar, 18 N. J. Eq. 518. [[A poll tax cannot be levied in such wise that those actually voting shall be exempt therefrom. Kansas City v. Whipple, 136 Mo. 475, 38 S. W. 295, 35 L. R. A. 747, 58 Am. St. 657.] CH. XIV.] THE POWER OF TAXATION. 707 Taxation is the equivalent for the protection which the govern- ment affords to the persons and property of its citizens ; and as Co. v. Railroad Co., 44 111. 229; Cum- mings v. National Bank, 101 U. S. 153; that it is not competent to add a per- centage to the list for refusal or neglect to make oath to the tax list : McCormick v. Fitch, 14 Minn. 252 ; but see Ex parte Lynch, 16 S. C. 32 ; that it is competent to permit a deduction for debts from the assessment : Wetmore v. Multnomah Co., 6 Oreg. 463 ; contra, Exchange Bank v. Hines, 3 Ohio St. 1 ; that where property is required to be taxed by value, it is not competent to tax a corporation on its property and also on its capital stock : State v. Cumberland, &c. R. R. Co., 40 Md. 22 ; that a statute making a portion only of a certain kind of property tax- able is unconstitutional : Pike v. State, 6 Ark. 204 ; that occupation taxes are no violation of the rule of uniformity : Youngblood v. Sexton, 32 Mich. 406; Ex parte Robinson, 12 Nev. 263 ; Gatlin v. Tarboro, 78 N. C. 119; [FUetwood v. Read, 21 Wash. 547, 58 Pac. 665, 47 L. R. A. 205 ;] that foreign insurance com- panies may be required to pay different taxes from others : State v. Lathrop, 10 La. Ann. 398; Commonwealth v. Ger- mania L. I. Co., 11 Pliila. 553; Ex parte Cohn, 13 Nev. 424 ; see San Francisco v. Liverpool, &c. Co., 74 Cal. 113, 15 Pac. 380. They may be required to pay such taxes as companies of the taxing State are made to pay in the home States of such companies. Home Ins. Co. v. Swigert, 104 111. 653; Phoenix Ins. Co. v. Welch, 29 Kan. 672; People v. Fire Ass., 92 N. Y. 311 ; State v. Ins. Co., 115 Ind. 257, 17 N. E. 674. [But holders of contracts made with com- panies not doing business within this State cannot be subjected to higher taxa- tion thereupon. He Page, 60 Kan 842, 58 Pac. 478, 47 L. R. A. 68.3 Taxation for roads upon the citizens only of a township is unequal. Marion, &c. Ry. Co. v. Champlin, 37 Kan. 682, 16 Pac. 222. So is the exemption from such taxes of all property in incorporated villages. Com'rs v, Owen, 7 Col. 467, 4 Pac. 795. But uniformity provisions do not apply to the distribution of a road fund. Holton v. Com'rs Mecklenburg Co., 93 N. C. 430. And see Weber v. Reinhard, 73 Pa. St. 370, 13 Am. Rep. 747 ; Louisville, &c. R. R. Co. v. State, 25 Ind. 177; Whitney v. Ragsdale, 33 Ind. 107; Francis v. Railroad Co., 19 Kan. 303; Primm v. Belleville, 69 111. 142; Wis. Cent. R. R. Co. r. Taylor Co., 52 Wis. 37, 8 N. W. 833 ; State v. Esta- brook, 3 Neb. 173; Murray r. Lehman, 61 Miss. 283; Graham v. Com'rs Chau- tauqua Co., 31 Kan. 473, 2 Pac. 649 ; Dunham v. Cox, 44 N. J. Eq. 273, 14 Atl. 123. The following are special cases : A tax on drays, &c., proportioned to the num- ber of animals employed in drawing them, contravenes the constitutional require- ment of uniformity in license taxes. State v. Endom, 23 La. Ann. 663. See New Orleans v. Home Ins. Co., 23 La. Ann. 449. A railroad company cannot be taxed according to the length of its road. State v. South Car. R. R. Co., 4 S. C. 376. A tax on cotton cannot be proportioned to the weight regardless of grades. Sims v. Jackson, 22 La. Ann. 440. Income is not property for the purposes of taxation. Waring c. Savannah, 60 Ga. 93. A col- lateral inheritance tax is not a property tax. Schoolfield's Exec. v. Lynchburg, 78 Va. 66. A tax on the franchises of a coal company may be proportioned to the coal mined. Kittanning Coal Co. v. Commonwealth, 79 Pa. St. 100. The keepers of private markets may be charged a license tax though none is im- posed on those who sell in the public mar- kets. New Orleans v. Uubarry, 33 La. Ann. 481, 39 Am. Rep. 273. QAnd taxes may be levied upon venders of merchan- dise, proportional to their annual gross receipts from sales, and such venders may be classified into retail and wholesale and dealers at boards of trade, and the rates for the several classes may differ. Knisely v. Cotterel, 196 Pa. 614, 46 Atl. 861, 50 L. R. A. 86. Where the Consti- tution requires uniformity of rate as well as of valuation, the legislature cannot pro- vide that pupils outside of a high-school district shall be admitted to attend the high-school upon payment of specified rates. II. S. Disk No. 137 v. Lancaster Co., 60 Neb. 147, 82 N. W. 380, 49 L. R. A. 343. A tax that is clearly discrimina- 708 CONSTITUTIONAL LIMITATIONS. [CH. XIV. all arc alike protected, so all alike should bear the burden, in proportion to the interests secured. Taxes by the poll are justly regarded as odious and are seldom resorted to for the collection of revenue ; and when taxes are levied upon property there must be an apportionment with reference to a uniform standard, or they degenerate into mere arbitrary exactions. 1 In this particular the State constitutions have been very specific, though in provid- ing for equality and uniformity they have done little more than to state in concise language a principle of constitutional law which, whether declared or not, would inhere in the power to tax. Taxes may assume the form of duties, imposts, and excises ; (a) tory in favor of particular classes of tions are exempt. Russell v. Croy, 164 debtors is void. Hamilton v. Wilson, 61 Mo. 69, 63 S. W. 849.] Kan. 511, 59 Pac. 1069, 48 L. R. A. 238. 1 A tax on negro polls and negroes' The uniformity clause of the Montana property alone, to be applied to the edu- Constitution does not apply to license cation of negro children alone, is bad. taxes upon occupations. State v. French, Puitt r. Com'rs Gaston Co., 94 N. C. 709. 17 Mont. 54, 41 Pac. 1078, 30 L. R. A. 415. [JA tax on bicycles for the construction Requirement of uniformity does not of bicycle paths, bicycles being within prevent separate classification of railroad the classes of property subjected to gen- property and its assessment by special eral taxation, is void for inequality, and tribunal. St. Louis, I. M. & S. R. Co. v. where such tax is assessed regardless of Worthen, 52 Ark. 529, 13 S. W. 254, 7 valuation, it is invalid for like reasons. L. R. A. 374. Holders of mortgages Ellis v. Frazier, 38 Oreg. 462, 63 Pac. 642, issued by individuals cannot be taxed 53 L. R. A. 454. See, on general question while those holding mortgages issued by of uniformity in taxation, Florida C. Ry. railroad and other quasi-public corpora- Co. v. Reynolds, 183 U. S. 471, 22 Sup. Ct. Rep. 176-3 (a) A tax upon legacies and distributive shares is not a tax upon property, but an excise upon the transmission or receipt of such legacies and distributive shares, and, in the absence of constitutional prohibition, the rate at which it is levied may be graduated with regard both to the value of the share, and to the remoteness of relationship between the deceased and the recipient of the property. Knowlton v. Moore, 178 U. S. 41, 20 Sup. Ct. Rep. 747 ; State v. Hamlin, 86 Me. 495, 30 Atl. 76, 25 L. R. A. 632, 41 Am. St. 569; Minot v. Winthrop, 162 Mass. 113, 38 N. E. 512, 26 L. R. A. 259. Upon taxes on succession and collateral inheritances, see note to Magoun v. Illinois Tr. & Sav. Bank, 42 L. ed. U. S. 1037; see also Orr v. Oilman, 183^U. S. 278, 22 Sup. Ct. Rep. 213; High v. Coyne, 93 Fed. Rep. 450. Re Romaine, 127 N. Y. 80, 27 N. E. 759, 12 L. R. A. 401 ; Com. v. Ferguson, 137 Pa. 595, 20 Atl. 870, 10 L. R. A. 240; Wallace v. Myers, 38 Fed. Rep. 184, 4 L. R. A. 171; Re Howe, 112 N. Y. 100, 19 N. E. 513, 2 L. R. A. 825, and notes to 4 L. R. A. 171, and 2 L. R. A. 825. Exemptions from a statute taxing legacies and inheritances, pro- vided they apply equally to all persons in the same class, do not deny to any person the equal protection of the laws, and it rests with the legislature to determine the amounts of the exemptions and the basis of the classification, which basis, however, must not be clearly unreasonable. Magoun v. Illinois Tr. & Sav. Bank, 170 U. S. 283, 18 Sup. Ct. Rep. 594. Upon succession tax upon foreigners, see Rixner's Suc- cession, 48 La. Ann. 552, 19 So. 597, 32 L. R. A. 177, and note. Graduated inheri- tance tax sustained. Kochersperger v. Drake, 167 111. 122, 47 N. E. 321, 41 L. R. A. 446 ; contra, as violating rule of uniformity. State v. Switzler, 143 Mo. 287, 45 S. W. 245, 40 R. L A. 280, 65 Am. St. 653. An arbitrary statutory exemption sustained in CH. XIV.] THE POWER OF TAXATION. 709 and those collected by the national government are very largely of this character. They may also assume the form of license fees, for permission to carry on particular occupations, or to enjoy special franchises. 1 They may be specific; such as are often 1 As to taxes on business and fran- chises, see Cooley on Taxation, c. 18. Offices, posts of profit, and occupations are proper subjects of taxation. Brown's App., Ill Pa. St. 72, 2 All. 77. That all occupations may be taxed when no re- straints are imposed by the Constitution, see State v. Hayne, 4 Rich. 403; Quid v. Richmond, 23 Gratt. 464, 14 Am. Rep. 139; Commonwealth v. Moore, 25 Gratt. 951 ; Cousins v. State, 60 Ala. 113, 20 Am. Rep. 290 ; Stewart v. Potts, 49 Miss. 749 ; Morrill v. State, 38 Wis. 428, 20 Am. Rep. 12; Albrecht v. State, 8 Tex. App. 216, 34 Am. Rep. 737 ; Young v. Thomas, 17 Fla. 169, 35 Am. Rep. 93 ; Richmond & D. R. R. Co. v. Reidsville, 101 N. C. 404, 8 S. E. 124. Such a tax may be based on the average amount of a merchant's stock. Newton v. Atchison, 31 Kan. 161, 1 Pac. 288. See Danville v. Shelton, 76 Va. 325. A city may be empowered to impose a license upon the business of a foreign insurance company, as well as a tax upon its net income : St. Joseph v. Ernst, 95 Mo. 360, 8 S. W. 558; or an occupation tax upon saloons, in addition to the license to sell. State v. Bennett, 19 Neb. 191, 26 N. W. 714. A privilege tax on private carriages in addition to an ad valorem tax is invalid. Livingston v. Paducah, 80 Ky. 656. An occupation tax must not be so unreasonable as to be pro- hibitory. Caldwell v. Lincoln, 19 Neb. 669, 27 N. W. 647. Gee Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361; Western U. Tel. Co. v. Philadelphia, 12 Atl. 144 ; Jackson v. Newman, 69 Miss. 385; People v. Russell, 49 Mich. 617, 14 N. W. 568; Ex parte Gregory, 20 Tex. App. 210; Kneeland v. Pittsburgh, Pa. St. , 11 Atl. 657, as to what is a reasonable license, tax, or fee. But revenue cannot be raised in the form of license fees under an authority to require licenses to b taken out for mere police purposes. Ante, 283, and note ; Burlington v. Bumgardner, 42 Iowa, 673, and cases cited. As to when a power to license can be made use of as a means of raising revenue, see Ex parte Frank, 52 Cal. b'06, 28 Am. Rep. 642; Pleuler v. State, 11 Neb. 647, 10 N. W. 481; U. S. Dist. Co. v. Chicago, 112 111. 19; In re Guerrero, 69 Cal. 88, 10 Pac. 261 ; Flanagan . Plainfield, 44 N. J. L. 118. Q Where the business licensed is not one of common right, but one which may be entirely prohibited, tl:ere is no limit to the license fee which may be imposed. State v. Bixman, 162 Mo. 1,62 S. W. 828.] It is no valid objection to a tux on business that its operation will not be uniform. Youngblood v. Sexton, 32 Mich. 406; Adler v. Whitbeck, 44 Ohio St. 539, 9 N. E. 672. But see Pullman P. C. Co. v. State, 64 Tex. 274; Banger's State v. Furnell, 20 Mont. 299, 61 Pac. 267, 39 L. R. A. 170; but an arbitrary ex- emption which is applied only to those estates not exceeding it in amount, while larger estates have no exemption whatever, is void, and invalidates the entire statute. State v. Ferris, 53 Ohio St. 314, 41 N. E. 579, 30 L. R. A, 218; contra, State r. Alston, 94 Tenn. 674, 30 S. W. 750, 28 L. R. A. 178; Minot v. Winthrop, 162 Mass. 113, 38 N. E. 512, 26 L. R. A. 259. Distinction in rates may be made between heirs and legatees in direct and collateral lines, and between these and strangers. Minot v. Winthrop, 162 Mass. 113, 38 N. E. 512, 26 L. R. A. 259; State v. Hamlin, 86 Me. 495, 30 Atl. 76, 25 L. R. A. 632, 41 Am. St. 569. Contingent estates are not subject to the tax until they become vested. Re Estate of Roosevelt. 143 N. Y. 120, 38 N. E. 281, 25 L. R. A. 695. Real estate situated outside the State is not subject to inheritance tax, even after conversion into money in the hands of the executors. Re Swifts' Estate, 137 N. Y. 77, 32 N. E. 1096, 18 L. R. A. 709. For other cases upon inheritance and succession taxes, see Re Rohan-Chabot's Estate, 167 N. Y. 280, 60 N. E. 598; Re Mahony's Estate, 133 Cal. 180, 65 Pac. 389; Union Trust Co. v. Durfee, 125 Mich. 487, 84 N. W. 1101 ; Ayers v. Chicago Title & T. Co., 187 111. 42, 58 N. E. 318; Billings v. People, 189 111. 472, 59 N. E. 798; Hooper v. Bradford, 178 Mass. 95, 59 N. E. 678.] 710 CONSTITUTIONAL LIMITATIONS. [CH. XIV. levied upon corporations, in reference to the amount of capital stock, or to the business done, or profits earned by them. Or they may be direct ; upon property, in proportion to its value, (a) or upon some other basis of apportionment which the legislature shall regard as just, and which shall keep in view the general idea of uniformity. The taxes collected by the States are mostly of the latter class, and it is to them that the constitutional prin- ciples we shall have occasion to discuss will more particularly apply. As to all taxation apportioned upon property, there must be App., 109 Pa. St. 79. It should operate uniformly upon each class taxed. Smith t;. Louisville, 9 Ky. L. 779, 6 S. W. 911 ; St. Louis v. Bowler, 94 Mo. 630, 7 S. W. 434; Braun v. Chicago, 110 111. 186. Further as to taxes on occupations, see Boye v. Girardey, 28 La. Ann. 717; Hodgson v. New Orleans, 21 La. Ann. 801 ; New Orleans v. Kaufman, 29 La. Ann. 283, 29 Am. Rep. 328; Texas B. & I. Co. v. State, 42 Tex. 636. In the following cases license fees were held not to be taxes, but merely police regulations : Required of foreign corporations doing business in the State : People v. Thurber, 13 111. 554; Walker v. Springfield, 94 111. 364. Of dealers in in- toxicating liquors : Burch v. Savannah, 42 Ga. 596; Durach's Appeal, 62 Pa. St. 491 ; East St. Louis v. Wehrung, 46 111. 392; Lovingston v. Trustees, 99 111. 664; Baker v. Panola Co., 30 Tex. 86; East St. Louis v. Trustees, 102 111. 489; Rochester v. Upman, 19 Minn. 108 ; State v. Cassidy, 22 Minn. 312,21 Am. Rep. 765; State v. Klein, 22 Minn. 328; Pleuler v. State, 11 Neb. 647, 10 N. W. 481. Of auctioneers : Goshen v. Kern, 63 Ind. 468. Of a street railway company : Johnson v. Philadelphia, 60 Pa. St. 445. But see New York v. Railway Co., 32 N. Y. 261. Of insurance companies: Fire Depart- ment v. Helfenstein, 16 Wis. 136. Of gas companies for inspection : Cincinnati Gas Co. v. State, 18 Ohio St. 237. Of pro- prietors of theatres : Boston v. Schaffer, 9 Pick. 415. For building licenses : Welch v. Hotchkiss, 39 Conn. 140. The fee exacted in granting a ferry license is not a tax, but is paid for the franchise. Chilvers v. People, 11 Mich. 43. See Wiggins Ferry Co. v. East St. Louis, 102 111. 560. The exaction of license fees under the police power is no violation of the consti- tutional requirement of uniform taxation. State v. Cassidy, 22 Minn. 312, 21 Am. Rep. 765; Walters v. Duke, 31 La. Ann. 668. An act sustained which imposed a smaller license tax on proprietors of bars on steamboats than on those of bars on land. State v. Rolle, 30 La. Ann. 991. The exemption from taxation of the Louisiana Saving Bank held not to ex- clude a city license tax on the business. New Orleans v. Savings Bank, 31 La. Ann. 637. An exemption of all property in a town from parisli taxes does not pre- vent the imposition of a license. More- house Parish v. Brigham, 41 La. Ann. 665, 6 So. 257. For instances of license fees held to be taxes and not warranted by statute, see ante, 283, note. (a) QUpon mode of valuing telephones, &c., where the property has attached to it a monopoly, see State v. Halliday, 58 Ohio St. 728, 51 N. E. 1102, 49 L. R. A. 427. For a very full discussion of the subject of the taxation of corporate franchises with exhaustive citation of authorities, see 57 L. R. A. 33, in the note to Louisville T. W. Co. v. Com., 106 Ky. 165, 49 S. W. 1069. See also South Covington & C. S. Ry. Co. v. Bellevue, 105.Ky. 283, 49 S. W. 23, 57 L. R. A. 50; State v. Duluth G. & W. Co., 76 Minn. 96, 78 N. W. 1032, 57 L. R. A. 63; Commercial E. L. & P. Co. v. Judson, 21 Wash. 49, 56 Pac. 829, 57 L. R. A. 78. The taxation of the franchise or business of corporations doing business in the State, with an exemption of all corporations wholly engaged in the business of manufacturing within the State, is constitutional. New York v. Roberts, 171 U. S. 658, 19 Sup. Ct. Rep. 58Q CH. XIV.] THE POWER OF TAXATION. 711 taxing districts, (a) and within these districts the rule of absolute uniformity must be applicable. 1 A State tax is to be apportioned through the State, a county tax through the county, a city tax through the city ; 2 while in the case of local improvements, bene- fiting in a special and peculiar manner some portion of the State or of a county or city, it is competent to arrange a special taxing district, within which the expense shall be apportioned. School districts and road districts are also taxing districts for the pecu- liar purposes for which they exist, and villages may have special powers of taxation distinct from the townships of which they form a part. Whenever it is made a requirement of the State constitution that taxation shall be upon property according to value, such a requirement implies an assessment of valuation by public officers at such regular periods as shall be provided by law, and a taxation upon the basis of sucli assessment until the period arrives for making it anew. 3 Thus, the Constitutions of Maine 1 If the proper rule of uniformity is general purpose. Bromley v. Reynolds, established by tl^e legislature, but the 2 Utah, 525. See State v. Fuller, 39 taxing officers purposely evade it and as- N. J. 576 ; McBean v. Chandler, 9 Ileisk. sess unequal taxes, the collection will be 349. A State tax must be apportioned enjoineil. Merrill v. Humphrey, 24 Mich, uniformly through the State, a county 170; Lefferts K. Supervisors, 21 Wis. 688; tax through the county, a city tax Mason v. Lancaster, 4 Bush, 406 ; Fuller v. through the city. East Portland v. Mult- Gould, 20 Vt. 643 ; Cummings v. National nomah Co., 6 Oreg. 62 ; Exchange Bank Bank, 101 U. S. 153, and cases cited. v. Hines, 3 Ohio St. 1, 15; Tine Grove v. The constitutional requirement that Talcott, 19 Wall. 666, 675 ; Fletcher v. property shall be assessed for taxation Oliver, 25 Ark. 289; Chicago, &c. R. R. by uniform rules, and according to true Co. v. Boone Co., 44 111. 240. For pe- value, does not make it necessary to tax culiar cases, see State v. New Orleans, 15 all property, and it is satisfied by such La. Ann. 354; Kent v. Kentland, 62 Ind. regulations as impose the same percent- 291, 30 Arn. Rep. 182; Com'rs of Ottawa age of actual value upon such property as Co. v. Nelson, 19 Kan. 234, 27 Am. Rep. is made taxable, in the township for town- 101; Cleveland v. Heisley, 41 Ohio St. ship purposes, in the county for county 670. The whole burden of expense for purposes, &c. Stratton v. Collins, 43 N. J. fire protection, police, &c., cannot be 563. imposed upon an area within a city. 2 An act requiring a school-district tax Morgan v. Elizabeth, 44 N. J. L. 571. when collected to be distributed between 3 Where a tax is to be assessed by the tlie district collecting it and others is value of property, or in proportion to void, as being in effect a local tax for a benefits, the right of the owner to be (a) fj"lf the State Constitution does not prohibit, the legislature, speaking gen- erally, may create a new taxing district, determine what territory shall belong to sucli district and what property shall be considered as benefited by a proposed improve- ment. And in so doing it is not compelled to give notice to the parties resident within the territory or permit a hearing before itself, one of its committees, or any other tribunal, as to the question whether the property so included within the taxing district is in fact benefited. Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. Rep. 921 ; Parsons v. Dist. of Columbia, 170 U. S. 45, 18 Sup. Ct. Rep. 521." Per Mr. Justice Brewer, in Williams v. Eggleston, 170 U. S. 304, 18 Sup. Ct. Rep. 617, aff. 68 Conn. 131, 35 All. 24, 421. See also Gilson v. Rush County, 128 Ind. 65, 27 N. E. 235, 11 L. R. A. 833.] 712 CONSTITUTIONAL LIMITATIONS. [CH. XIV. and Massachusetts require that there shall be a valuation of es- tates within the Commonwealth to be made at least every ten years ; J the Constitution of Michigan requires the annual assess- ments which are made by township officers to be equalized by a State board, which reviews them for that purpose every five years; 2 and the Constitution of Rhode Island requires the legis- lature " from time to time " to provide for new valuations of property for the assessment of taxes in such manner as they may deem best. 3 Some other constitutions contain no provisions upon this subject ; but the necessity for valuation is nevertheless im- plied, though the mode of making it, and the periods at which it shall be made, are left to the legislative discretion. There are some kinds of taxes, however, that are not usually assessed according to the value of property, and some which could not be thus assessed. And there is probably no State which does not levy other taxes than those which are imposed upon property. 4 heard in some stage of the proceedings would seem to be clear ; and it has been expressly affirmed in some cases. See Philadelphia v. Miller, 49 Pa. St. 440 ; Stewart v. Trevor, 56 Pa. St. 374; But- ler i;. Supervisors of Saginaw, 26 Mich. 22 ; Thomas v. Gain, 35 Mich. 155; Cleg- horn v. Postlewaite, 43 111. 428; Darling ?. Gunn, 50 111. 424; Kuntz r. Sumption, 117 Ind. 1, 19 N. E. 474; Redwood Co. v. Winona, &c. Co., 40 Minn. 512, 41 N. W. 465, 42 N. W. 473 ; Chauvin v. Valiton, 8 Mont. 451, 20 Pac. 658; QViolett v. Alexandria, 92 Va. 561, 23 S. E. 909, 31 L. R. A. 382, 63 Am. St. 825 ;] post, 722, note. The statutes generally provide for a hearing before some board, either on some day and at some place fixed by the statute, or after notice publicly given. That such statutes are mandatory, and an assessment made in disregard of them void, see Thames Manuf. Co. v. Lathrop, 7 Conn. 550; Philips v. Stevens Point, 25 Wis. 594 ; Walker v. Chapman, 22 Ala. 116; Sioux City, &c. R. R. Co. v. Wash- ington Co , 3 Neb. 30 ; Leavenworth Co. v. Lang, 8 Kan. 284 ; Griswold v. School District, 24 Mich. 262. Where the tax- payer is examined upon his return at the time it is made, he cannot claim a later hearing. McTwiggan v. Hunter, 19 R. I. 265, 33 Atl. 5, 29 L. R. A. 526.] On the general right to notice in tax cases, see the opinion of Mr. Justice Field in the case of San Mateo County v. So. Pac. R. R. Co., 13 Fed. Rep. 722 ; where the right is strongly affirmed. FJ" A no- tice to all property holders of the time and place at wliich the assessment is to be made is all that ' due process ' requires in respect to the matter of notice in tax proceed- ings." Per Mr. Justice Brewer in Mer- chants' & M. Nat. Bank v. Pennsylvania, 167 U. S. 461, 17 Sup. Ct. Rep. 829. See also Paulson v. Portland, 149 U. S. 30, 13 Sup. Ct. Rep. 750, aff. 16 Oreg. 450, 19 Pac. 450, 1 L. R. A. 673. The action of the assessors after giving opportunity for a hearing is final in the absence of fraud or mistake. Albuquerque Nat. Bk. v. Perea, 147 U. S. 87, 13 Sup. Ct. Rep. 194. The assessment is void if the notice of opportunity for hearing fails to desig- nate tribunal, place, and time, or any of them. Norfolk v. Young, 97 Va. 728, 34 S. E. 886, 47 L. R. A. 574. Statute, if definite, is sufficient notice, Streight v. Durham, lOOkla. 361, 61 Pac. 1096. That assessed value of tangible replaceable property cannot exceed the cost of repro- duction or replacement, see People v, Clapp, 152 N. Y. 490, 46 N. E. 842, 39 L. R. A. 237 (railroad real estate).] 1 Constitution of Maine, art. 9, 7 ; Constitution of Mass., Part 2, c. 1, 1, art. 4. 2 Constitution of Mich., art. 14, 13. 8 Constitution of Rhode Island, art. 4, 15. * See Bright v. McCullouch, 27 Ind. 223; Quid v. Richmond, 23 Gratt. 464, 14 Am. Rep. 139 ; Youngblood v. Sexton, CH. XIV.] THE POWER OF TAXATION. 713 Every burden which the State imposes upon its citizens with a view to a revenue, either for itself .or for any of the municipal governments, or for the support of the governmental machinery in any of the political divisions, is levied under the power of tax- ation, whether imposed under the name of tax, or under some other designation. The license fees which are sometimes required to be paid by those who follow particular employments are, when imposed for purposes of revenue, taxes ; 1 the tolls upon persons or property, for making use of the works of public improvement owned and controlled by the State, are a species of tax ; stamp duties when imposed are taxes ; and it is not uncommon, as we have already stated, to require that corporations shall pay a cer- tain sum annually, assessed according to the amount or value of their capital stock, or some other standard ; this mode being re- garded by the State as most convenient and suitable for the taxa- tion of such organizations. It is evident, therefore, that the express provisions, which are usual in State constitutions, that taxation upon property shall be according to value, do not include every species of taxation ; and that all special cases like those we have here referred to are, by implication, excepted. But in addition to these cases, there are others where taxes are levied directly upon property, which are nevertheless held not to be within the constitutional provisions. Assessments for the opening, making, improving, or repairing of streets, the draining of swamps, and the like local works, (a) have been generally 32 Mich. 406, 20 Am. Rep. 654 ; Albrecht District, 4 Lea, 219. QSuch taxes are not v. State, 8 Tex. App. 216, 34 Am. Rep- property taxes, and are not subject to 737. the provisions requiring uniformity and 1 See Ould v. Richmond, 23 Gratt, equality. State v. Applegarth, 81 Md. 464, 14 Am. Rep. 139; Wilmington v. 293, 31 Atl. 961, 28 L. R. A. 812.] Macks, 86 N. C. 88 ; Lightburne v. Taxing (ri) [JAs to what are public improvements, see Re Kingman, 153 Mass. 566, 27 N. E. 778, 12 L. R. A. 417, and note. Cost of maintenance of sewers may be met by special assessments, although cost of construction has already been levied and paid by parties assessed for maintenance. Carson v. Brockton Sewer Comm'rs, 182 U. S. 398, 21 Sup. Ct. Rep. 860, aff. 175 Mass. 242, 56 N. E. 1, 48 L. R. A. 277. That the construction of irrigation works in an arid region which will become fertile under irrigation is a public improvement, see Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 Sup. Ct. Rep. 56. Country highways are not "local improvements," and their cost cannot be levied upon adjacent lands alone. Sperry v. Flygare, 80 Minn. 325, 83 N. W. 177, 49 L. R. A. 757. Where the duty to repair rests upon the city, and it, in contracting for the paving of a street, incorporates in the contract a clause requiring the contractor to keep the street in repair for a stated period, the parties assessed to pay for paving can have the total cost abated by a reasonable sum for probable repairs. They are liable only for cost of construction. Robert- son 17. Omaha, 55 Neb. 718, 76 N. W. 442, 44 L. R. A. 534 ; State v. Trenton, 61 N. J. L. 699, 40 Atl. 575, 44 L. R. A. 540. Upon power of city to bind contractor to repair pavement which he makes, see Portland v. Portland Bit. Paving & I. Co., 714 CONSTITUTIONAL LIMITATIONS. [CH. XIV. made upon property, with some reference to the supposed benefits which the property would receive therefrom. Instead, therefore, of making the assessment include all the property of the munici- pal organization in which the improvement is made, a new and special taxing district is created, whose bounds are confined to the limits within which property receives a special and peculiar benefit, in consequence of the improvement. Even within this district the assessment is sometimes made by some other standard than that of value ; (a) and it is evident that if it be just to cre- ate the taxing district with reference to special benefits, it would 33 Oreg. 307, 52 Pac. 28, 44 L. R. A. 527, and note, 72 Am. St. 713. Expense of maintaining and repairing boulevards and pleasure ways cannot be met by special assessments, as the work is not a local improvement. Crane v. West Chicago P. Comm'rs, 153 111. 348, 38 N. E. 943, 26 L. R. A. 311. Nor is that of sprinkling streets. Chicago v. Blair, 149 111. 310, 36 N. E. 829, 24 L. R. A. 412, and note, citing cases pro and con. But expense of sweeping streets may be specially assessed. Reinken v. Fuehring, 130 Ind. 382, 30 N. E. 414, 15 L. R. A. 624, 30 Am. St. 247.] (a) The determination of this standard of assessment is a matter for the discre- tion of the legislature, and the judiciary will inquire into its fitness only when the action of the legislature is clearly unreasonable. Fallbrook Irri. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. Rep. 56. See also Norwood v. Baker, 172 U. S. 269, f ( J Sup. Ct. Rep. 187; in which case it is held that the cost of an improvement, which consisted in the condemnation of property for a street and the opening of the same, could not all be assessed against the person whose property was so taken, he being the sole abutter. This case lias been used as authority for the doctrine that there must be an opportunity for particular inquiry for special benefits in each case, and an assessment made proportionate to such benefits so ascertained, rather than an assessment by general rule without an opportunity to urge special or peculiar bene- fits to particular abutting or adjacent property, but in French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. Rep. 625, aff. 158 Mo. 534, 58 S. W. 934, the court repudiates this construction of Norwood v. Baker, and holds that in that case at least such an assessment was lawful. Vigorous dissenting opinions were rendered in both these cases. French v. Barber Asphalt, &c. Co. was followed by Wight v. Davidson et al, 181 U. S. 371, 21 Sup. Ct. Rep. 616, rev. 16 App. D. C. 371 ; Town of Tonawanda et. al. v. Lyon, 181 U. S. 389, 21 Sup Ct. Rep. 609, rev. the Circuit Court of United States for Northern Dist. of New York ; Cass Farm Co. Ltd. r. Detroit, 181 U. S. 395, 21 Sup. Ct. Rep. 644, 645, aff. 124 Mich. 433, 83 N. W. 108; Detroit v. Parker, 181 U. S. 398, 21 Sup. Ct. Rep. 624, 645, rev. 103 Fed. Rep. 357; Farrell v. West Chicago Park Commissioners, 181 U. S. 403, 21 Sup. Ct. Rep. 609, 645, aff. 182 111. 250, 55 N. E. 325 ; Shumate v. Heman, 181 U. S. 402, 21 Sup. Ct. Rep. 645, aff. 156 Mo. 634, 57 S. W. 559; Wormley v. District of Columbia and Allen v. District of Columbia, reported together in 181 U. S. 402, 21 Sup. Ct. Rep. 609, and aff. 15 App. D. C. 58 and 70. The litigation in these cases seems to have been founded on the opinion in Norwood v. Baker before it was construed in French v. Barber, &c. Co. See also Smith v. Worcester, Mass. , 65 N. E. 40. A sewer assessment cannot be made in proportion to frontage, regardless of benefits. Dexter v. Boston, 176 Mass. 247, 67 N. E. 379, 79 Am. St. 306. An assessment for public improvements is limited to the value of the improvements to the property assessed. Walsh v. Barron, 61 Ohio St. 15, 55 N. E. 164; State v. Newark, 37 N. J. L. 415. The question of the basis upon which such assessments shall be laid is a legislative one, subject to review by the courts for unreasonableness only. Spencer v. Merchant, 100 N. Y. 585, 3 N. E. 682. See this case in 125 U. S. 345, 8 Sup. Ct. Rep. 921.] CH. XIV.] THE POWER OF TAXATION. 715 be equally just and proper to make the taxation within the dis- trict have reference to the benefit each parcel of property receives, rather than to its relative value. The opening or paving of a street may increase the value of all property upon or near it ; and it may be just that all such property should contribute to the expense of the improvement : but it by no means follows that each parcel of the property will receive from the improvement a benefit in proportion to the previous value. One lot upon the street may be greatly increased in value, another at a little dis- tance may be but slightly benefited ; and if no constitutional pro- vision interferes, there is consequently abundant reason why the tax levied within the taxing district should have reference, not to value, but to benefit, (a) It has been objected, however, to taxation upon this basis, that inasmuch as the district upon which the burden is imposed is compelled to make the improvement for the benefit of the general public, it is, to the extent of the tax levied, an appropriation of private property for the public use ; and as the persons taxed, as a part of the public, would be entitled of right to the enjoyment of the improvement when made, such right of enjoyment could not be treated as compensation for the exaction which is made of them exclusively, and such exaction would therefore be opposed to those constitutional principles which declare the inviolability of private property. But those principles have no reference to the taking of property under legitimate taxation. When the Constitution provides that private property shall not be taken for public use without just compensation made therefor, it has refer- ence to an appropriation thereof under the right of eminent domain. Taxation and eminent domain indeed rest substantially on the same foundation, as each implies the taking of private property for the public use on compensation made ; but the com- pensation is different in the two cases. When taxation takes money for the public use, the taxpayer receives, or is supposed (a) fJThat an elevated railway operating above a street and having stairways leading from the street to its stations may be benefited by paving the street, see Lake St. El. R. Co. v. Chicago, 183 111. 75, 55 N. E. 721, 47 L. R. A. 624. But a right of way of a surface railroad cannot. Detroit G H. & M. R. Co. v. Grand Rapids, 106 Mich. 13, 63 N. W. 1007, 28 L. R. A. 793, 58 Am. St 466 ; Chicago, M. & S. P. R. Co. v. Milwaukee, 89 Wis. 506, 62 N. W. 417, 28 L. R. A. 249, and see note pro and con in L. R. A. ; Chicago, R. I. & P. R. Co. v. Ottumwa, 112 Iowa, 300, 83 N. W. 1074, 51 L. R A. 763; contra, Kuehner n. Freeport, 143 111. 92, 32 N. E. 372, 17 L. R. A. 774. But in California it was held that local improvement districts for the con- struction of irrigation works might be created at will by the legislature, that assess- ments to pay for such works might be levied upon property according to its value, and that the question of benefit was immaterial. Re Bonds Madera Irrigation Dis- trict, 92 Cal 296, 341, 28 Pac. 272, 675, 14 L. R. A. 755, and notej 716 CONSTITUTIONAL LIMITATIONS. [CH. XIV. to receive, his just compensation in the protection which govern- ment affords to life, liberty, and property, in the public con- veniences which it provides, and in the increase in the value of possessions which comes from the use to which the government applies the money raised by the tax ; 1 and these benefits amply support the individual burden. But if these special local levies are taxation, do they come under the general provisions on the subject of taxation to be found in our State constitutions ? The Constitution of Michigan directs that " the legislature shall provide an uniform rule of taxation, except on property paying specific taxes ; and taxes shall be levied upon such property as shall be prescribed by law ; " 2 and again : " All assessments hereafter authorized shall be on property at its cash value." 3 In the construction of these provisions the first has been regarded as confiding to the discretion of the legislature the establishment of the rule of uniformity by which taxation was to be imposed; and the second as having reference to the annual valua- tion of property for the purposes of taxation, which it is customary to make in that State, and not to the actual levy of a tax. A local tax, therefore, levied in the city of Detroit, to meet the expense of paving a public street, and which was levied, not in proportion to the value of property, but according to an arbitrary scale of supposed benefit, has been held not invalid under the constitutional provision. 4 So the Constitution of Illinois declares that " the General As- sembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property ; such value to be ascertained by some person or persons to be elected or appointed in such manner as the General Assembly shall direct, and not otherwise," 5 &c. The charter of the city of Peoria provided that, when a public street was opened or improved, commissioners should be appointed by the county court to assess upon the property benefited the expense of the improvement in proportion to the benefit. This provision was held to be constitutional, on the ground that assessments of this character were not such taxation as was contemplated by 1 People v. Mayor, &c. of Brooklyn, 8 Art. 14, 12. 4 N. Y. 419 ; Williams v. Mayor, &c. of * Williams v. Mayor, &c. of Detroit, Detroit, 2 Mich. 560; Scovill v. Cleve- 2 Mich. 560. And see Woodbridge v. land, 1 Ohio St. 126 ; Northern Indiana Detroit, 8 Mich. 274 ; State v. Stout, 61 R. R. Co. v. Connelly, 10 Ohio St. 159; Ind. 143; Taylor v. Boyd, 63 Tex. 533; Washington Avenue, 69 Pa. St. 352, QBauman v. Ross, 167 U. S. 548, 17 Sup. 8 Am. Rep. 255 ; White v. People, 94 Ct. Rep. 966.] 111. 604. 6 Art. 9, 2. 2 Art. 14, 11. CH. XIV.] THE POWER OF TAXATION. 717 the general terms which the constitution employed. 1 Like de- cisions have been made in other States in regard to similar assessments. 2 1 City of Peoria v. Kidder, 26 111. 351. See also Canal Trustees v. Chicago, 12 111. 403. In Chicago v. Lamed, 34 111. 203, it was decided tliat, while taxation for these local assessments might consti- tutionally be made in proportion and to the extent of the benefits received, it could not under the Constitution of 1848 be made on the basis of frontage. This case was followed in Wright v. Chicago, 46 111. 44. The contrary is held under the Constitution of 1870. White v. People, 94 111. 604; Craw v. Tolono, 96 111. 255, 36 Am. Rep. 143. 2 People r. Mayor, &c. of Brooklyn, 4 N. Y. 419 ; Matter of Mayor, &c. of New York, 11 Johns. 77; Sharp v. Spier, 4 Hill, 76 ; Livingston v. Mayor, &c. of New York, 8 Wend. 85; Matter of Furman St., 17 Wend. 649; Louisville v. Hyatt, 2 B. Monr. 177, 36 Am. Dec. 594; Nichcls v. Bridgeport, 23 Conn. 189; Schenley v. City of Alleghany, 25 Pa. St. 128; Wray v. Pittsburg, 46 Pa. St. 365 ; Hammett v. Philadelphia, 65 Pa. St. 146, 3 Am. Rep. 615; Washington Avenue, 69 Pa. St. 353, 8 Am. Rep. 255; McBride v. Chicago, 22 111. 574; Chicago u. Larned, ,34 111. 203; Murphy v. People, 120 111. 234, 11 N. E. 202; Springfield v. Green, 120 111. 269, 11 N. E. 261 ; City of Lexington v. McQuil- lan's Heirs, 9 Dana, 513; Burnes v. Atchison, 2 Kan. 454; Hines v. Leaven- worth. 3 Kan. 186; St. Joseph v, O'Don- oghue, 31 Mo. 345 ; Egyptian Levee Co. v. Hardin, 27 Mo. 495 ; St. Joseph v. Anthony, 30 Mo. 537 ; Farrar r. St. Louis, 80 Mo. 379; Burnet v. Sacramento, 12 Cal. 76 ; Yeatraan v. Crandell, 11 La. Aim. 220; Wallace v. Shelton, 14 La. Ann. 498; Richardson v. Morgan, 16 La. Ann. 429; Hill v. Higdon, 5 Ohio St. 243; Marian v. Epler, 5 Ohio St. 250 ; Reeves v. Treasurer of Wood Co., 8 Ohio St. 333 ; Northern Ind. R. R. Co. v. Connelly, 10 Ohio St. 159; Baker v. Cincinnati, 11 Ohio St. 534; Maloy v. Marietta, 11 Ohio St. 636 ; State (--. Dean, 23 N. J. 335 ; State v. Mayor, &c. of Jersey City, 24 N. J. 662 ; Bond v. Kenosha, 17 Wis. 284 ; City of Fairfield v. Ratcliff, 20 Iowa, 396; Muni- cipality No. 2 v. White, 9 La. Ann. 447 ; Gumming v. Police Jury, 9 La. Ana. 503; Northern Liberties v. St. John's Church, 13 Pa. St. 103; McGehee v. Mathis, 21 Ark. 40; Goodrich v. Winchester, &c. Turnpike Co., 26 Ind. 119; Emery v. Gas Co, 28 Cal. 345; Palmer v. Stumph, 29 Ind. 329; Dorgan v. Boston, 12 Allen, 223; Anderson v. Kerns Draining Co., 14 Ind. 199; Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; Cain v. Commis- sioners, 86 N. C. 8; Norfolk v. Ellis, 26 Gratt. 224 ; Willcins v. Detroit, 46 Mich. 120, 8 N. W. 701, 9 N. W. 427 ; Yasser r. George, 47 Miss. 713; Roundtree v. Gal- veston, 42 Tex. 612 ; Richmond & A. R. R. Co. v. Lynchburg, 81 Va. 473. For a special case, see Cincinnati Gas, &c. Co. v. State, 18 Ohio St. 237. In Alabama a decision has been made the other way. Tlie constitution provides that "all taxes levied on property in this State shall be assessed in exact proportion to the value of such property ; provided, how- ever, that the General Assembly may levy a poll-tax not to exceed one dollar and fifty cents on each poll, which shall be applied exclusively in aid of the public- school fund." This, it was decided, would preclude the levy of a local assessment for the improvement of a street by the foot front. Mayor of Mobile v. Dargan, 45 Ala. 310. In Colorado only improve- ments within the domain of the police power can be paid for by special assess- ment. Expense of sewers may be, but not that of gutters and curbs. Pueblo v. Robinson, 12 Col. 593, 21 Pac. 899 ; Wilson v. Chilcott, 12 Col. 600, 21 Pac. 901. QNew sidewalks and drains necessitated by a change in the established grade are for a public or municipal purpose, and the cost must be paid out of the general fund. It cannot be assessed upon owners of abut- ting property. Mauldin v. Greenville, 53 S. C. 285, 31 S. E. 252, 43 L. R, A. 101, mod. s. c. 42 S. C. 293, 20 S. E. 842, 27 L. R. A. 284. But the cost of watering a street may be. Sears v. Board of Alder- men, 173 Mass. 71, 53 N. E. 138, 43 L. R. A. 834.J The cases of Weeks v. Milwaukee, 10 Wis. 242, and Lumsden v. Cross, 10 Wis. 282, recognize the fact that these local burdens are generally imposed under the name of assessments instead of 718 CONSTITUTIONAL LIMITATIONS. [CH. XIV. But whatever may be the basis of the taxation, the require- ment that it shall be uniform is universal. It applies as much to these local assessments as to any other species of taxes. The difference is only in the character of the uniformity, and in the basis on which it is established. 1 But to render taxation uni- form in any case, two things are essential. The first of these taxes, and that therefore they are not covered by the general provisions in the constitution of the State on the subject of taxation. And see Bond v. Kenosha, 17 Wis. 284; Hale v. Kenosha, 29 Wis. 693. QAnd the cost of a local improve- ment may not only be assessed in pro- portion to benefits, but the cost of main- tenance may also be so assessed. Carson v. Sewerage Comm'rs of Brockton, 175 Mass. 242, 56 N. E. 1, 48 L. R. A. 277, aff. in 182 U. S. 398, 21 Sup. Ct. Rep. 860. But where lands abutting upon a portion of street amounting to a cul-de-sac have been assessed for its construction in pro- portion to benefits, they cannot be again assessed for the extension of the portion first constructed. Re Orkney Street, 194 Pa. 425, 45 All. 314, 48 L. R. A. 274. In Tennessee, levee improvements must be assessed upon property in proportion to its value. Reelfoot Lake Levee Dist. v. Dawson, 97 Tenn. 161, 36 S. W. 1041, 34 L. R. A. 725.] An exemption of church property from taxation will not preclude its being assessed for improving streets in front of it. See post, p. 740, note. L~That exemptions from taxation do not exempt from special assessment for local improvements, see Bd. of Im- provement v. School Dist., 66 Ark. 354, 19 S. W. 969, 16 L. R. A. 418 ; Zabel v. Louisville B. 0. Home, 92 Ky. 89, 17 S. W. 212, 13 L. R. A. 668; Atlanta v. First P. Church, 86 Ga. 730, 13 S. E. 252, 12 L. R. A. 852, and note ; Home, &c. r. Wilkinsburg, 131 Pa. 109, 18 Atl. 937, 6 L. R. A. 631 ; Adams County v. Quincy, 130 111. 666, 22 N. E. 624, 6 L. R. A. 155, and note ; note to 4 L. R. A. 171.] 1 In the case of assessments which are to be made on the basis of benefits, pro- vision is usually made for a hearing. As to the right to this, sec p. 617, note. (^Requirement that tax upon personal property be paid at time of assessment with provision made for hearing con- cerning value, &c., and refund of excess, does not violate uniformity requirement. Tax upon real estate is secured by lien, and collection may safely be deferred longer than in case of personal prop- erty. Rode v. Siebe, 119 Cal. 518, 51 Pac. 869, 39 L. R. A. 342. Uniformity clause does not apply to license taxes. State v. French, 17 Mont. 54, 41 Pac. 1078, 30 L. R. A. 415; Denver City R. Co. v. Denver, 21 Col. 350, 41 Pac. 826, 29 L. R. A. 608. Nor does it require that the mode of assessment be uniform. Com- monwealth v. Brown, 91 Va. 762, 21 S. E. 357, 28 L. R. A. 110. But where prop- erty is to be assessed at its " cash value," and property taxes are required to be uniform and equal, an ordinance levying an ad valorem tax upon realty and a license tax upon personalty is bad in respect to the license tax. Levi v. Louis- ville, 97 Ky. 394, 30 S. W. 973, 28 L. R. A. 480. Uniformity is not violated by a statute allowing deduction of debts from credits. Florer v. Sheridan, 137 Ind. 28, 36 N. E. 365, 23 L. R. A. 278, and note. But it is violated by a statute giving a State revenue agent power to assess at discretion and without notice, property which has escaped assessment in prior years, the owner being permitted to be heard only in defence of suit to collect taxes upon such assessment. Adams v. Tonella, 70 Miss. 701, 14 So. 17, 22 L. R. A. 346. That lack of uniformity may arise from administration in a par- tial and oppressive way, see Hoefling v. San Antonio, 85 Tex. 228, 20 S. W. 86, 16 L. R. A. 608. An arbitrary tax of 81 per mile upon railroads is bad. Pitts- burgh, C. & St. L. R. Co. v. State, 49 Ohio St. 189, 30 N. E. 435, 16 L. R. A. 380. Where taxation is required to be " ad valorem on all property subject to be taxed," the rate must be uniform. Savannah v. Weed, 84 Ga. 683, 11 S. E. 235, 8 L. R. A. 270, and note. For other cases on question of uniformity, see Wasson v. Wayne Co. Comm'rs, 49 Ohio St. 622, 32 N. E. 472, 17 L. R. A. 795.] CH. XIV.] THE POWER OF TAXATION. 719 is that each taxing district should confine itself to the objects of taxation within its limits. Otherwise there is, or may be, duplicate taxation, and of course inequality. Assessments upon real estate not lying within the taxing districts would be void, 1 and assessments for personal property made against persons not residing in the district would also be void, unless made with reference to the actual presence of the property in such district. 2 1 But sometimes when a parcel of real estate lies partly in two districts, authority is given by law to assess the whole in one of these districts, and the whole parcel may then be considered as having been embraced within the district where taxed, by an enlargement of the district bounds to include it. Saunders v. Springstein, 4 Wend. 429. It is as competent to provide for the repairing of a street by special assessment on adjoining land, as for the original paving. See Willard v. Presbury, 14 Wall. 67(i; Gurnee v. Chicago, 40 III. 165; Bradley v. MeAtee, 7 Bush, 607; Sheley v. De- troit, 45 Midi. 431, 8N. W. 62; Blount v. Janesville, 31 Wis. 648; Municipality v. Dunn, 10 La. Ann. 67 ; Jeliff v. New- ark, 49 N. J. L. 239, 12 Atl. 770; Estes v. Owen, 90 Mo. 113, 2 S. W. 133. Contra, Hammett v. Philadelphia, 65 Pa. SFT46 ; Orphan Asylum's Appeal, 111 Pa. St. 135, 3 Atl. 217; Williamsport v. Beck, 128 Pa. St. 147, 18 Att. 329. The ex- pense of sewer repairs properly payable by a city cannot be imposed on adjoining owners by calling tlie work street im- provement. Clay v. Grand Rapids, 60 Mich. 451, 27 N. W. 696. [Tower to impose licenses upon occupations author- izes a license tax upon a non-resident who carries on his occupation in the city. Petersburg v. Cocke, 94 Va. 244, 26 S. E. 676, 36 L. II. A. 432. Real estate mort- gages may be made taxable at the situs of the realty covered by them. Detroit Com. Council v. Rentz, 91 Mich. 78, 51 N. W. 787, 16 L. R. A. 69, and note upon taxation of mortgages. Assessment is wholly void if it covers property partly within and partly without the disirict, unless the parts can be distin- guished. Sioux City B. Co. v. Dakota County, 61 Neb. 75, 84 N. W. 607.] 2 People v. Supervisors of Chenango, 11 N. Y. 663; Mygatt v. Washburn, 16 N. Y. 316 ; Brown t;. Smith, 24 Barb. 419 ; Hartland v. Church, 47 Me. 169 ; Lessee of Hughey v. Horrell, 2 Ohio, 231. QHeld that under this principle credits cannot be taxed to the creditor at the residence of the debtor. Liverpool & L. & G. Ins. Co. v. Bd. of Assessors, 51 La. Ann. 1028, 25 So. 970, 45 L. R. A. 524 ; but see in this connection cases cited in note a, p. 696. Moneys and securities held in the State for investment, rein- vestment, and sale are taxable against the owners where so held. Buck v. Miller, 147 Ind. 586, 45 N. E. 647, 37 L. R. A. 384. And so are unpaid legacies and distributive shares taxable within the State, even though the beneficiaries are non-resident. Schmidt v. Failey, 148 Ind. 150, 47 N. E. 326, 37 L. It. A. 442. A vessel engaged in commerce is taxable only at her home port if she is duly registered there, even though she is used practically all of the time within the limits of another State than that of her home port. Johnson v. De Bary-Baya M. Line, 37 Fla. 499, 19 So. 640, 37 L. R. A. 518; upon situs of ships for purpose of taxation, see note to this case in L. It. A. Water-power is deemed for purposes of taxation to have its situs where it is used. Union W. P. Co. v. Auburn, 90 Me. 60, 37 Atl. 331, 37 L. R. A. 651; but see Amoskeag M'fg Co. v. Concord, 66 N. H. 662, 34 Atl. 241, 32 L. R. A. 621, holding that water power is appurtenant to lands upon which it may be used. Ice may be taxed where stored, though it is to be used elsewhere. Winkley v. Newton, 67 N. H. 80, 36 Atl. 610, 85 L. R. A. 756. Average amount of livestock in the hands of cattle-dealers may be taxed, although brought from other States and usually retained by dealers for only one day. Myers v. Bal- timore Co. Comm'rs, 85 Md. 885, 35 Atl. 144, 34 L. R. A. 30'J. So with bonds of 720 CONSTITUTIONAL LIMITATIONS. [CH. XIV. Iii Wells v. City of "Weston, 1 the Supreme Court of Missouri deny the right of the legislature to subject property located in one taxing district to assessment in another, upon the express ground that it is in substance the arbitrary taxation of the prop- erty of one class of citizens for the benefit of another class. The case was one where the legislature sought to subject real estate lying outside the limits of a city to taxation for city purposes, on the theory that it received some benefit from the city government, and ought to contribute to its support. In Kentucky 2 and Iowa 3 decisions have been made which, while affirming the same prin- ciple as the case above cited, go still further, and declare that it is not competent for the legislature to increase the limits of a city, in order to include therein farming lands, occupied by the owner for agricultural purposes, and not required for either streets or houses, or other purposes of a town, where the purpose is merely to increase the city revenue by taxation. The courts admit that foreign corporation when kept in safe deposit vault within the State. Re Whit- ing's Estate, 150 N. Y. 27, 44 N. E. 715, 34 L. R. A. 232. And with moneys of non-resident. Re Houdayer's Estate, 150 N. Y. 37, 44 N. E. 718, 34 L. 11. A. 235. So with stock of domestic corporation held outside of State by a non-resident, but not with bonds. Re Bronson's Estate, 150 N. Y. 1, 44 N. E, 707, 34 L. R. A. 238. So with credits in hands of resident trustee holding legal title. Detroit v. Lewis, 109 Mich. 155, 66 N. W. 958, 32 L. R A. 439. Real estate mortgages owned and controlled by non- resident cannot be taxed. Holland v. Comm'rs of Silver Bow Co., 15 Mont. 460, 39 Pac. 675, 27 L. R. A. 797. Stock in trade of a partnership is located for purposes of taxation in the city where it actually is for purpose of sale, without regard to residence of owners. Hopkins v. Baker Bros., 78 Md. 363, 28 All. 284, 22 L. R. A. 477, and note on partnership property tax. In Maine, water pipes are considered real-estate taxable in the dis- trict in which they are actually situated. Paris v. Norway Water Co., 85 Me. 330, 27 Atl. 143, 21 L. R. A. 525; but in Illi- nois, Iowa, and Wisconsin it is otherwise, see note to 21 L. R. A. 525, and see also Shelbyville Water Co. v. People, 140 III. 545, 30 N. E. 678, 16 L. R. A. 605; Oska- loosa Water Co. v. Bd. of Equalization, 81 Iowa, 407, 51 N. W. 18, 15 L. R. A. 296, and note; Fond du Lac Water Co. v. Fond du Lac, 82 Wis. 322, 52 N. W. 439, 16 L. R. A. 681. On situs of trust prop- erty, see Trustees of Richmond Co. Acad- emy v. Augusta, 90 Ga. 634, 17 S. E. 61, 20 L. R. A. 151, and note. As to where franchise is taxable, see Spring Valley Water-works r. Barber, 99 Cal. 36, 33 Pac. 735, 21 L. R. A. 416; Yellow R. Imp. Co. v. Wood County, 81 Wis. 554, 51 N. W. 1004, 17 L. R. A. 92, and note. Negotiable promissory notes have situs with creditor. Boyd v. Selma, 96 Ala. 144, 11 So. 393, 16 L. R. A. 729, and note on situs of notes and mortgages ; Liver- pool & L. & G. Ins. Co. <>. Bd. of Asses- sors, 44 La. Ann. 760, 11 So. 91, 16 L. R. A. 56.] 1 22 Mo. 384. To the same effect is In re Flatbush, 60 N. Y. 898. Compare case of State Tax on Foreign Held Bonds, 17 Wall. 300; St. Charles v. Nolle, 61 Mo. 122, 11 Am. Rep. 440; People v. Townsend, 56 Cal. 633; State Treasurer v. Auditor-General, 46 Mich. 224, 9 N. W. 258. The case of Langhorne v. Robinson, 20 Gratt. 661, is contra. 2 City of Covington v. Southgate, 15 B. Monr. 491 ; Arbegust v. Louisville, 2 Bush, 271 ; Swift v. Newport, 7 Bush, 37. [JBut the mere fact that the land is not yet plotted is not sufficient to exempt it. Bripgs v. Russelville, 99 Ky. 515, 36 S. W. 558, 34 L. R. A. 193.] 3 Morford v. Unger, 8 Iowa, 82. CH. XIV.] THE POWER OF TAXATION. 721 the extension of the limits of a city or town, so as to include its actual enlargement, as manifested by houses and population, is to be deemed a legitimate exercise of the taxing power, but they declare that an indefinite or unreasonable extension, so as to em- brace lands or farms at a distance from the local government, does not rest upon the same authority. And although it may be a delicate as well as a difficult duty for the judiciary to interpose, the court had no doubt but strictly there are limits beyond which the legislative discretion cannot go. "It is not every case of injustice or oppression which may be reached ; and it is not every case which will authorize a judicial tribunal to inquire into the minute operation of laws imposing taxes, or defining the boun- daries of local jurisdictions. The extension of the limits of the local authority may in some cases be greater than is necessary to include the adjacent population, or territory laid out into city lots, without a case being presented in which the courts would be called upon to apply a nice and exact scrutiny as to its practical operation. It must be a case of flagrant injustice and palpable wrong, amounting to the taking of private property with- out such compensation in return as the taxpayer is at liberty to consider a fair equivalent for the tax." This decision has been subsequently recognized and followed as authority, in the last- named State. 1 1 Langworthy v. Dubuque, 13 Iowa, Iowa, 458; Deeds v. Sanborn, 26 Iowa, 86; Fulton v. Davenport, 17 Iowa, 404; 419; Durant v. Kauffman, 34 Iowa, 194. Buell v . Ball, 20 Iowa, 282. Tliese cases QBut such exemption does not cover lands were cited and followed in Bradshaw v. held for speculative purposes and only Omaha, 1 Neb. 16. These cases, how- incidentally or temporarily used for agri- ever, do not hold the legislative act which culture. Farwell v. Des Moines Brick enlarges the city limits to be absolutely Mfg. Co., 97 Iowa, 286, 66 N. W. 176, 35 void, but only hold that they will limit L. R. A. 63. Where the statute permits the exercise of the taxing power as nearly the annexation of plotted sections and as practicable to the line where the ex- " land adjacent thereto," the adjacent tension of the boundaries ceases to be land must be somewhat suburban in beneficial to the proprietor in a municipal character. State v. Minnetonka, 57 Minn, point of view. For this purpose they 526, 59 N. W. 972, 25 L. R. A. 755, and enter into an inquiry of fact, whether note. But some allowance may be made the lands in question, in view of their for prospective growth. Ferguson v. relative position to the growing and im- Snohomish, 8 Wash. 668, 36 Pac. 969, 24 proved parts of the town, and partaking L. R. A. 795. See also Vestal v. Little more or less of the benefits of municipal Rock, 54 Ark. 321, 329, 15 S. W. 891, 16 government, are proper subjects of muni- S. W. 291, 11 L. R. A. 778.] There are cipal taxation ; and if not, they enjoin decisions adverse to these. See Stiltz ?. the collection of such taxes. It would Indianapolis, 55 Ind. 515; Martin v. Dix, seem as if there must be great practical 52 Miss. 53, 24 Am. Rep. 661 ; Giboney difficulties if not some of principle v. Cape Girardeau, 58 Mo. 141 ; New in making this disposition of such a case. Orleans v. Cazelear, 27 La. Ann. 156; They have nevertheless been followed re- ^Kimball v. Grantsville City, 19 Utah, 368, peatedly in Iowa. Davis v. Dubuque, 20 67 Pac. 1,45 L. R. A. 628, overr. Kaysville 46 722 CONSTITUTIONAL LIMITATIONS. [CH. XIV. The second essential is that there should be uniformity in the manner of the assessment, and approximate equality in the amount of exactions within the district ; J and to this end that all the objects of taxation within the district should be embraced. The correctness of this principle will be conceded, but whether in practice it has been applied or not, it may not always be easy to determine. " With the single exception of specific taxes," says Christiancy, J., in Woodbridge v. Detroit, 2 "the terms 'tax' and 'assess- ment ' both, I think, when applied to property, and especially to lands, always include the idea of some ratio or rule of apportion- ment, so that, of the whole sum to be raised, the part paid by one City v. Ellison, 18 Utah, 163, 55 Pac. 386 ; 43 L. R. A. 81.] Compare Weeks v. Mil- waukee, 10 VVis. 242 ; Kelly v. Pittsburgh, 85 Pa. St. 170; Hewitt's Appeal, 88 Pa. St. 55 ; Stoner v. Flournoy, 28 La. Ann. 850 ; Norris v. Waco, 57 Tex. 635 ; Wash- burn v. Oshkosh, 60 Wis. 453, 19 N. W. 364; EState v. Eidson, 76 Tex. 302, 13 S. W. 263, 7 L. R. A. 733.] That the legi- lature cannot annex to a village, territory not contiguous for the purpose of increas- ing its revenues, see Smith v. Sherry, 50 Wis. 210, 6 N. W. 561. [The Federal courts will not intervene to correct any purely arbitrary action of the State au- thorities in respect to the annexation of territory to municipalities. Forsyth i;. Hammond, 166 U. S. 506, 17 Sup. Ct. Rep. 665. Upon municipal taxation of rural lands, see Briggs v. Russellville,99Ky.515, 36 S. W. 558, 34 L. R. A. 193, and note. Legislature cannot annex non-contiguous lands. Denver v. Coulehan, 20 Col. 471, 39 Pac. 425, 27 L. R. A. 751. Upon power of legislature to annex territory to municipalities, see State v. Cincinnati, 52 Ohio St. 419, 40 N. E. 508, 27 L. R. A. 737, and notes ; also a valuable case, Vestal v. Little Rock, 54 Ark. 321, 329, 15 S. W. 891, 16 S. W. 291, 11 L. R. A. 778, and note.] 1 See Davis v. Gaines, 48 Ark. 370, 3 S. W. 184 ; State v. Dist. Court, 33 Minn. 235, 22 N. W. 625; Warren ?;. Chicago, 118 111. 329, 11 N. E. 218. Where an assessment is to be made by benefits, property owners have an absolute right to be heard, and a law for making it with- out provision for a hearing is void. Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Baltimore v. Scharf, 54 Md. 499 ; Davidson v. New Orleans, 96 U. S. 97; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. Rep. 921 ; Campbell v. D wig- gins, 83 Ind. 473 ; Gilmore v. Hentig, 33 Kan. 156, 5 Pac. 781 ; Brown r. Denver, 7 Col. 305, 3 Pac. 455; Boorman v. Santa Barbara, 65 Cal. 313, 4 Pac. 31 ; Gatch v. Des Moines, 63 Iowa, 718, 18 N. W. 310 ; Trustees v. Davenport, 65 Iowa, 633, 22 N. W. 904 ; [Paulsen v. Portland, 149 U. S. 30, 13 Sup. Ct. Rep. 750.] See Waples, Proceedings in Rem, 64 ; ante, 711, note. Contra, Baltimore v. Johns Hopkins Hosp., 56 Md. 1 ; Cleveland v. Tripp, 13 R. I. 50 ; Davis v. Lynchburg, 84 Va. 861, 6 S. E. 230. Notice is unnecessary if only a mathematical calculation is in- volved. Amery v. Keokuk, 72 Iowa, 701, 30 N. W. 780 ; Qand for the fixing of the rate of charge per 1000 gallons of sewer- age discharged into the city sewer, no hearing is necessary. Carson v. Sewerage Comm'rs of Brockton, 175 Mass. 242, 56 N. E. 1, 48 L. R. A. 277, aff. 182 U. S. 398, 21 Sup. Ct. Rep. 860.] If an oppor- tunity for a hearing is given at some step of the proceedings it is enough ; as in judicial proceedings to enforce the assess- ment. Hagar c. Reclamation Dist, 111 U. S. 701, 4 Sup. Ct. Rep. 663; [Taulsen v. Portland, 149 U. S. 30, 13 Sup. Ct. Rep. 750, aff. 16 Oreg. 450, 19 Pac. 450, 1 L. R. A. 673. Unless expressly author- ized, a municipality cannot make exemp* tions from taxation. McTwiggan v. Hunter, 19 R. I. 265, 33 Atl. 5, 29 L. R. A. 526.] 2 8 Mich. 274, 301. See also Chicago . Larned, 34 III. 203; Creote v. Chicago, 56 III. 422. CH. XIV.] THE POWER OF TAXATION. 723 piece of property shall bear some known relation to, or be affected by, that paid by another. Thus, if one hundred dollars are to be raised from tracts A, B, and C, the amount paid by A will reduce by so much that to be paid by B and C ; and so of the others. In the case of specific taxes, as well as duties and imposts, though the amount paid by one is not affected by that paid by another, yet there is a known and fixed relation of one to the other, a uniform rate by which it is imposed upon the whole species or class of property or persons to which the specific tax applies ; and this is so of duties and imposts, whether specific or ad valorem. To compel individuals to contribute money or property to the use of the public, without reference to any common ratio, and without requiring the sum paid by one piece or kind of property, or by one person, to bear any relation whatever to that paid by another, is, it seems to me, to lay a forced contribution, not a tax, duty, or impost, within the sense of these terms, as applied to the exercise of powers by any enlightened or responsible government." In the case of Knowlton v. Supervisors of Rock County, 1 an important and interesting question arose, involving the very point now under discussion. The Constitution of Wisconsin provides that " the rule of taxation shall be uniform," which, if we are cor- rect in what we have already stated, is no more than an affirm- ance of a settled principle of constitutional law. The city of Janesville included within its territorial limits, not only the land embraced within the recorded plat of the village of Janesville and its additions, but also a large quantity of the adjacent farming or agricultural lands. Conceiving the owners of these lands to be greatly and unequally burdened by taxation for the support of the city government, the legislature passed an act declaring that 1 9 Wis. 410. A tax case of much crimination in taxation between the more than ordinary interest and impor- property of natural persons and railroad tance is that of San Mateo County v. The corporations was an unwarrantable de- Southern Pacific R. R. Co., 13 Fed. Rep. parture from the rule of equality and 722, Justice Field delivering an elabo- uniformity in taxation ; that the provi- rate opinion, in the conclusions of which sion which establishes the discrimination Judge Sawyer concurred. The suit was is not due process of law, and is therefore brought for the recovery of a tax assessed opposed to the fourteenth amendment to upon the franchises, roadway, road-bed, the Constitution of the United States, rails, and rolling-stock of the defendant, which is equally effectual to protect By the Constitution of the State the real against an unwarranted exercise of the estate of private individuals is valued for taxing power as against any other un- taxation, with a deduction of all mort- lawful deprivation of property. It was gages and other liens, but the value of also affirmed that the State has no power, the property of railroads is to be assessed by its constitution or otherwise, to with- without any such deduction. It was held draw corporations from the guaranties of by these eminent judges that this dis- the Federal Constitution. 724 CONSTITUTIONAL LIMITATIONS. [CH. XIV. " in no case shall the real and personal property within the terri- torial limits of said city, and not included within the territorial limits of the recorded plat of the village of Janesville, or of any additions to said village, which may be used, occupied, or re- served for agricultural or horticultural purposes, be subject to an annual tax to defray the current expenses of said city, exceeding one-half of one per cent ; nor for the repair and building of roads and bridges, and the support of the poor, more than one-half as much on each dollar's valuation shall be levied for such purposes as on the property within such recorded plats, nor shall the same be subject to any tax for any of the purposes mentioned in 3 of c. 5 of [the city charter] ; nor shall the said farming or gardening land be subject to any tax, other than before mentioned, for any city purpose whatsoever." Under the charter the property of the city was liable to an annual tax of one per centum to defray the current expenses of the city ; and also an additional tax of such sum as the common council might deem necessary for the repair and building of roads and bridges, and for the support of the poor. Thus it will be perceived that the legislature within the same taxing district, if the whole city is to be considered one district only, undertook to provide that a portion of the property should be taxed at one rate in proportion to value, and another portion at a much lower rate ; while from taxation for certain proper local purposes the latter class was exempted altogether. " It was contended in argument," say the court, " that as those provisions fixed one uniform rate without the recorded plats, and another within them, thus taxing all the property without alike, and all within alike, they do not infringe the constitution. In other words, that for the purpose of taxation, the legislature have the right arbitrarily to divide up and classify the property of the citizens, and, having done so, they do not violate the con- stitutional rule of uniformity, provided all the property within a given class is rated alike. " The answer to this argument is, that it creates different rules of taxation, to the number of which there is no limit, except that fixed by legislative discretion, while the constitution establishes but one fixed, unbending, uniform rule upon the subject. It is believed that if the legislature can, by classification, thus arbi- trarily, and without regard to value, discriminate in the same municipal corporation between personal and real property within, and personal and real property without a recorded plat, they can also by the same means discriminate between lands used for one purpose and those used for another, such as lands used for CH. XIV.] THE POWER OF TAXATION. 725 growing wheat and those used for growing corn, or any other crop ; meadow-lands and pasture-lands, cultivated and unculti- vated lands ; or they can classify by the description, such as odd- numbered lots and blocks and even-numbered ones, or odd and even-numbered sections. Personal property can be classified by its character, use, or description, or, as in the present case, by its location, and thus the rules of taxation may be multiplied to an extent equal in number to the different kinds, uses, descriptions, and locations of real and personal property. We do not see why the system may not be carried further, and the classification be made by the character, trade, profession, or business of the own- ers. For certainly this rule of uniformity can as well be applied to such a classification as any other, and thus the constitutional provision be saved intact. Such a construction would make the constitution operative only to the extent of prohibiting the legis- lature from discriminating in favor of particular individuals, and would reduce the people, while considering so grave and impor- tant a proposition, to the ridiculous attitude of saying to the legis- lature, ' You shall not discriminate between single individuals or corporations ; but you may divide the citizens up into different classes, as the followers of different trades, professions, or kinds of business, or as the owners of different species or descriptions of property, and legislate for one class, and against another, as much as you please, provided you serve all of the favored or un- favored classes alike ; ' thus affording a direct and solemn con- stitutional sanction to a system of taxation so manifestly and grossly unjust that it will not find an apologist anywhere, at least outside of those who are the recipients of its favor. We do not believe the framers of that instrument intended such a construc- tion, and therefore cannot adopt it." l The principle to be deduced from the Iowa and Wisconsin cases, assuming that they do not in any degree conflict, seems to 1 Per Dixon, Ch. J., 9 Wis. 410, 421. paved with the Nicholson pavement at the Besides the other cases referred to, see, expense of the adjoining owners, when on tliis same general subject, Lin Sing v. the owners of the larger part of the front- Washburn, 20 Cal. 534; State v. Mer- age should petition therefor. An amen- chants' Ins. Co., 12 La. Ann. 802; Adams datory act authorized it as to a portion of o. Somerville, 2 Head, 363; McComb v. a certain street without such a petition; Bi-ll, 2 Minn. 295; Attorney-General v. thus permitting a special improvement on Winnebago Lake & Fox River P. R. Co., that street, at the expense of the owners 11 Wis. 35; Weeks v. Milwaukee, 10 of adjoining lots, on a different principle Wis. 242 ; O'Kane v. Treat, 25 111. 557 ; from that adopted for the city generally. Philadelphia Association, &c. v. Wood, 39 In Howell v. Bristol, 8 Bush, 493, this Pa. 73; Sacramento v. Crocker, 16 Cal. amendment was held inconsistent with the 119. There was a provision in the char- fundamental principles of taxation, and ter of Covington that a street might be consequently void. 726 CONSTITUTIONAL LIMITATIONS. [CH. XIV. be this : The legislature cannot arbitrarily include within the limits of a village, borough, or city, property and persons not properly chargeable with its burdens, and for the sole purpose of increasing the corporate revenues by the exaction of the taxes. But whenever the corporate boundaries are established, it is to be understood that whatever property is included within those limits has been thus included by the legislature, because it justly be- longs there, as being within the circuit which is benefited by the local government, and which ought consequently to contribute to its burdens. The legislature cannot, therefore, after having al- ready, by including the property within the corporation, declared its opinion that such property should contribute to the local gov- ernment, immediately turn about and establish a basis of taxation which assumes that the property is not in fact urban property at all, but is agricultural lands, and should be assessed accordingly. The rule of apportionment must be uniform throughout the taxing district, applicable to all alike ; but the legislature have no power to arrange the taxing districts arbitrarily, and without reference to the great fundamental principle of taxation, that the burden must be borne by those upon whom it justly rests. The Kentucky and Iowa decisions hold that, in a case where they have manifestly and unmistakably done so, the courts may interfere and restrain the imposition of municipal burdens on property which does not properly belong within the municipal taxing district at all. It must be manifest, however, that the effect of the decisions in the States last referred to is to establish judicially two or more districts within a municipality where the legislature has established one only ; and as this is plainly a legislative function, it would seem that the legislature must be at least as competent to establish them directly as any court can be to do the same thing indirectly. And in Missouri, Kentucky, and Pennsylvania, no difficulty has been found in sustaining legislation which discriminated in taxa- tion between " rural " lands and others within the same city. 1 This rule of uniformity has perhaps been found most difficult of i Benoist v. St. Louis. 19 Mo. 179 ; Agricultural land in tracts of ten acres Henderson v. Lambert, 8 Bush, 607 ; or more brought within a city may be Parkland v. Gains, 88 Ky. 562, 11 S. W. exempted from city taxes : Leicht v. Bur- 649; Serrilli-. Philadelphia, 38 Pa. St. 355. lington, 73 Iowa, 29, 34 N. W. 494; if And see Gillette v. Hartford, 31 Conn. 351. brought in after the passage of an act In Missouri such land, though taxed at a allowing it. Perkins v. Burlington, 77 different rate, must be valued like other Iowa, 553, 42 N. W. 441. Under Indiana land. State v. O'Brien, 89 Mo. 631, 1 statutes such land may not be taxed for S. W. 763. In Utah it is denied that such general purposes above township rates, land within the limits, but outside the city but is liable for special assessments. as built, can be subjected to city taxes. Dickerson v. Franklin, 112 Ind. 178, 13 Terr. v. Daniels, 6 Utah, 288, 22 Pac. 159. N. E. 579. CH. XIV.] THE POWER OF TAXATION. 727 application in regard to those cases of taxation which are com- monly known under the head of assessments, and which are made either for local improvement and repair, or to prevent local causes resulting in the destruction of health or property. In those cases where it has been held that such assessments were not covered by the constitutional provision that taxation should be laid upon property in proportion to value, it has, nevertheless, been decided that the authority to make them must be referred to the taxing power, and not to the police power of the State, under which side- walks have sometimes been ordered to be constructed. Apportion- ment of the burden was therefore essential, though it need not be made upon property in proportion to its value. But the question then arises : What shall be the rule of apportionment ? Can a street be ordered graded and paved, and the expense assessed ex- clusively upon the property which, in the opinion of the assessors, shall be peculiarly benefited thereby, in proportion to such benefit ? Or may a taxing district be created for the purpose, and the. ex- pense assessed in proportion to the area of the lots ? Or may the street be made a taxing district, and the cost levied in proportion to the frontage ? Or may each lot-owner be required to grade and pave in front of his lot ? These are grave questions, and they have not been found of easy solution. The case of The People v. The Mayor, &c. of Brooklyn^ 1 is a leading case, holding that a statute authorizing a municipal cor- poration to grade and improve streets, and to assess the expense among the owners and occupants of lands benefited by the im- provement, in proportion to the amount of such benefit, is a con- stitutional and valid law. The court in that case concede that taxation cannot be laid without apportionment, but hold that the basis of apportionment in these cases is left by the constitution with the legislature. The application of any one rule or principle of apportionment to all cases would be manifestly oppressive and unjust. Taxation is sometimes regulated by one principle, and sometimes by another ; and very often it has been apportioned without reference to locality, or to the taxpayer's ability to con- tribute, or to any proportion between the burden and the benefit. " The excise laws, and taxes on carriages and watches, are among the many examples of this description of taxation. Some taxes affect classes of inhabitants only. All duties on imported goods are taxes on the class of consumers. The tax on one imported article falls on a large class of consumers, while the tax on an- other affects comparatively a few individuals. The duty on one article consumed by one class of inhabitants is twenty per cent of 1 4 N. Y. 419, 427 ; reversing same case, 6 Barb. 209. 728 CONSTITUTIONAL LIMITATIONS. [CH. XIV. its value, while on another, consumed by a different class, it is forty per cent. The duty on one foreign commodity is laid for the purpose of revenue mainly, without reference to the ability of its consumers to pay, as in the case of the duty on salt. The duty on another is laid for the purpose of encouraging domestic manu- factures of the same article, thus compelling the consumer to pay a higher price to one man than he could otherwise have bought the article for from another. These discriminations may be im- politic, and in some cases unjust; but if the power of taxation upon importations had not been transferred by the people of this State to the federal government there could have been no pretence for declaring them to be unconstitutional in State legislation. " A property tax for the general purposes of the government, either of the State at large or of a county, city, or other district, is regarded as a just and equitable tax. The reason is obvious. It apportions the burden according to the benefit more nearly than any other inflexible rule of general taxation. A rich man derives more benefit from taxation, in the protection and improve- ment of his property, than a poor man, and ought therefore to pay more. But the amount of each man's benefit in general taxation cannot be ascertained and estimated with any degree of certainty ; and for that reason a property tax is adopted, instead of an esti- mate of benefits. In local taxation, however, for special pur- poses, the local benefits may in many cases be seen, traced, and estimated to a reasonable certainty. At least this has been sup- posed and assumed to be true by the legislature, whose duty it is to prescribe the rules on which taxation is to be apportioned, and whose determination of this matter, being within the scope of its lawful power, is conclusive." The reasoning of this case has been generally accepted as satis- factory, and followed in subsequent cases. 1 1 Scoville v. Cleveland, 1 Ohio St. 126 ; Wend. 85, 22 Am. Dec. 622 ; Wright v. Hill v. Higdon, 5 Ohio St. 243 ; Marion v. Boston, 9 Gush. 233 ; Jones v. Boston, 104 Epler, 5 Ohio St. 250; Maloy v. Mari- Mass. 461 ; Nichols v. Bridgeport, 23 Conn, etta, 11 Ohio St. 636; City of Peoria v. 189 ; Cone v. Hartford, 28 Conn. 3G3 ; Alex- Kidder, 26 111. 351 ; Reeves v. Treasurer ander e. Baltimore, 5 Gill, 383 ; Howard v. of Wood Co., 8 Ohio St. 333; Garrett v. The Church, 18 Md. 451; Hoyt u. East St. Louis, 25 Mo. 505; Unrig v. St. Louis, Saginaw, 19 Mich. 39; Sheley v. Detroit, 44 Mo. 458; Bradley v. McAtee, 7 Bush, 45 Mich. 431, 8 N. W. 52 ; Burnett v. Sac- 667, 3 Am. Rep. 309; Jones v. Boston, ramento, 12 Gal. 76; LaFayette v. Fowler, 104 Mass. 461; Sessions v. Crunkilton, 34 Ind. 140. The right to assess by bene- 20 Ohio St. 349 ; State v. Fuller, 34 N. J. fits has been denied in South Carolina. 227; Holton v. Milwaukee, 31 Wis. 27; State v. Charleston, 12 Rich. 702. The McMasters v. Commonwealth, 3 Watts, legislation in Ohio on the subject has au- 292; Allentown v. Henry, 73 Pa. St. 404 ; thorized the cities and villages, in open- Weber v. Reinhard, 73 Pa. St. 370, 13 ing and improving streets, to assess the Am. Rep. 747; Livingston v. New York, 8 expense either upon the lots abutting on CH. XIV.] THE POWER OF TAXATION. 729 On the other hand, and on the like reasoning, it has been held equally competent to make the street a taxing district, and assess the expense of the improvement upon the lots in propor- tion to the frontage. 1 Here also is apportionment by a rule the street in proportion to the street front, or upon the lands in proportion to their assessed value. In a case where the former mode was resorted to, and an as- sessment made upon property owned by the Northern Indiana Railroad Company for its corporate purposes, Peck, J., thus states and answers an objection to the validity of the tax : " But it is said that assessments, as distinguished from gen- eral taxation, rest solely upon the idea of equivalents, a compensation proportioned to the special benefits derived from the improvement, and that, in the case at bar, the railroad company is not, and in the nature of things cannot be, in any degree benefited by the improvement. It is quite true that the right to impose such special taxes is based upon a presumed equivalent; but it by no means follows that there must be in fact such full equiv- alent in every instance, or that its ab- sence will render the assessment invalid. The rule of apportionment, whether by the front foot, or a percentage upon the assessed valuation, must be uniform, af- fecting all the owners and all the prop- erty abutting on the street alike. One rule cannot be applied to one owner, and a different rule to another owner. One could not be assessed ten per cent, an- other five, another three, and another left altogether unassessed because he was uot in fact benefited. It is manifest that the actual benefits resulting from the im- provement may be as various almost as the number of the owners, and the uses to which the property may be applied. No general rule, therefore, could be laid down which would do equal and exact justice to all. The legislature have not attempted so vain a thing, but have pre- scribed two different modes in which the assessment may be made, and left the city authorities free to adopt either. The mode adopted by the council becomes the statutory equivalent for the benefits conferred, although in fact the burden imposed ma}' greatly preponderate. In such case, if no fraud intervene, and the assessment does not substantially exhaust the owner's interest in the land, his rem- edy would seem to be to procure, by a timely appeal to the city authorities, a reduction of the special assessment, and its imposition, in whole or in part, upon the public at large." Northern Indiana R. R. Co. v. Connelly, 10 Ohio St. 159, 165. And see Howell v. Bristol, 8 Bush, 493 ; [Webster v. Fargo, 181 U. S. 334, 21 Sup. Ct. Rep. 623, aff. 9 N. D. 208, 82 N. W. 732; Ramsey County v. Robert P. Lewis Co., 72 Minn. 87, 75 N. W. 108, 63 L. R. A. 421.] It is competent to provide for assessing benefits upon the owner instead of the land. In re Centre St., 115 Pa. St. 247, 8 All. 56. [CWra, Ivanhoe v. Enterprise, 29 Oreg. 245, 45 Pac. 771, 35 L. R. A. 58, and see also note to this case in L. R. A.] As to re- paving, see ante, 719, note. The legisla- tive determination that certain land is benefited is conclusive. Only the ques- tion of apportionment reiihains open. Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. Rep. 921; Pacific Bridge Co. v. Kirkham, 64 Cal. 519, 2 Pac. 409,. The fir.ding of benefits by a common council is conclusive unless palpably un- just. Paulson v. Portland, 16 Oreg. 450, 19 Pac. 450, 1 L. R. A. G73 ; Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198 ; Pueblo v. Robinson, 12 Col. 693, 21 Pac. Rep. 899. In ordering a local assess- ment the common council may determine that the benefits to property within the district will equal the cost of the improve- ment. Cook v. Slocum, 27 Minn. 609, 8 N. W. 755. If a council has made an assessment district, a jury in apportioning benefits must impose some on each parcel in it. Rentz v. Detroit, 48 Mich. 544, 12 N. W. 694, 911. Contra, Kansas City v. Baird, 98 Mo. 215, 11 S. W. 243, 562. But a wholly arbitrary apportionment that could not possibly be just would be void. Thomas v. Gain, 35 Mich. 155. A council cannot be impowered to impose expense as it may " deem equitable and just." Barnes v. Dyer, 66 Vt. 419. i Williams v. Detroit, 2 Mich. 560; Northern Indiana R. R. Co. v. Connelly, 730 CONSTITUTIONAL LIMITATIONS. [CH. XIV. which approximates to what is just, but which, like any other rule that can be applied, is only an approximation to absolute 10 Ohio St. 159 ; Lumsden v. Cross, 10 Wis. 282. And see St. Joseph v. O'Don- oghue, 31 Mo. 345; Burnett v. Sacra- mento, 12 Cal. 76; Scoville v. Cleveland, 1 Ohio St. 126; Hill v. Higdon, 5 Ohio St. 243; Ernst v. Kunkle, 5 Ohio St. 520 ; Hines v. Leaven worth, 3 Kan. 186 ; Magee v. Commonwealth, 46 Pa. St. 358 ; Wray v. Pittsburg, 46 Pa. St. 365 ; Palmer v. Stumph, 29 Ind. 329; White v. People, 94 III. 604; Wilbur v. Spring- field, 123 III. 395, 14 N. E. 871 ; Davis v. Lynchburg, 84 Va. 861, 6 S. E. 230; Farrar v. St. Louis, 80 Mo. 379 ; Taylor v. Boyd, 63 Tex. 533 ; O'Reilley v. Kings- ton, 114 N. Y. 439, 21 N. E. 1004; [Ra- leigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330, and note on constitu- tionality of frontage rule. Frontage rule will not be sustained where provision has not been made for a hearing in which property owners may appear and show that such assessment is not proportional to benefits. Ulman v. Baltimore, 72 Md. 587, 597, 609, 20 Atl. 141, 21 Atl. 709, 21 Atl. 711, 11 L. R. A. 224, and note;] al- though the assessment exceeds the value of a long, shallow strip assessed. Mc- Cormick's Est. v. Harrisburg, 129 Pa. St. 213, 18 Atl. 126. In Hammett v. Phila- delphia, 65 Pa. St. 146, 3 Am. Rep. 615, while the cases here cited are approved, it is denied that a street already laid out and in good condition can be taken and improved for a public drive or carriage- way at the expense of the adjacent owners ; this not being an improvement for local but for general purposes. See Washington Avenue, 69 Pa. St. 352, 8 Am. Rep. 255 ; Orphan Asylum's Appeal, 111 Pa. St. 135, 3 Atl. 217; Williamsport v. Beck, 128 Pa. St. 147, 18 Atl. 329. But a borough may cause a sidewalk to be relaid at the cost of an abutter. Smith v. Kingston, 120 Pa. St. 357, 14 Atl. 170. [An ordinance requiring abutting prop- erty-owners to remove snow and ice is unconstitutional. State v. Tuckman, 69 N. H. 318, 41 Atl. 347, 42 L. R. A. 438; Gridley v. Bloomington, 88 111. 554 ; Chi- cago v. O'Brien, 111 111. 532.] Compare Allen r. Drew, 44 Vt. 174 (case of water- rents) ; Willard v. Presbury, 14 Wall. 676; Hoyt v. East Saginaw, 19 Mich. 39, 2 Am. Rep. 76; La Fayette v. Fowler, 34 Ind. 140 ; Chambers v. Satterlee, 40 Cal. 497 ; Bradley v. McAtee, 7 Bush, 667, 3 Am. Rep. 309. In Washington Avenue, 69 Pa. St. 352, 8 Am. Rep. 255, it is denied that this principle can be applied to the country and to fanning lands. Agnew, J., says : " To apply it to the country, or to farm lands, would lead to such inequality and injustice as to deprive it of all soundness as a rule, or as a substitute for a fair and impartial valuation of benefits in pur- suance of law ; so that at the very first blush every one would pronounce it pal- pably unreasonable and unjust." The able opinion in this case is a very satis- factory and very thorough examination of the principles on which local assess- ments are supported. The cases of Seely v. Pittsburg, 82 Pa. St. 360 ; Craig r. Philadelphia, 89 Pa. St. 265; Philadel- phia v. Rule, 93 Pa. St. 15, and Scranton v. Penn Coal Co., 105 Pa. St. 445, are in principle similar. The rule of assess- ment by frontage is not sanctioned in Arkansas : Peay v. Little Rock, 32 Ark. 31; Monticello v. Banks, 48 Ark. 251, 2 S. W. 852 ; nor in Tennessee. McBean v. Chandler, 9 Heisk. 349. [Nor will the frontage rule be sustained where it results in an apportionment varying substantially from the value of bene- fits conferred and in excess thereof. In Norwood v. Baker, a peculiar state of facts showed the frontage rule in a most unfavorable light. B. owned a parcel of land on W. Ave. I. Ave. intersected W. Ave. at right angles, but was inter- rupted for a space of 300 ft. by B.'s land, through which the street had not yet been opened. It had, however, been opened beyond B.'s land, so that by the opening of the street for this distance of 300 ft. across B.'s land, the street would be open throughout its length. The vil- lage council of N. by ordinance provided for the appropriation of this strip through B.'s land, and the value thereof was duly assessed and paid to B. Thereupon the council, following the frontage rule, as- sessed upon B., whose land was the only land fronting upon the new portion of the street, the entire cost of the land ap- propriated, and in addition all the ex- CH. XIV.] THE POWER OF TAXATION. 731 equality. But if, in the opinion of the legislature, it is the proper rule to apply to any particular case, the courts must enforce it. penses connected with such appropriation. As a matter of fact the land of B. was probably not at all benefited by the open- ing of the street through it, since all parts of it had had substantially equally good street facilities before. The United States Supreme Court sustained an injunction against the assessment on the ground that it amounted to a taking without due process. Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. Rep. 187. But under a statute authorizing the entire expense of a street pavement to be apportioned on abutting lots according to the frontage rule, and without any preliminary hearing as to benefits, the assessment cannot, in the absence of allegation and proofs that the resulting assessment is substantially in excess of benefits, be set aside where the lots are of equal depth, and are sub- stantially similarly related to the im- provement. The statute is good to the extent at least of furnishing a prima facie rule of apportionment. French v. Barber A. Paving Co., 181 U. 8,324, 21 Sup. Ct. Rep. 625, aff. 158 Mo. 534, 58 S. W. 934, 54 L. R. A. 492. To same effect see Farrell v. W. Chicago Park Comm'rs, 182111.250, 55 N. E. 325 ; Cass Farm Co. v. Detroit, 124 Mich. 433, 7 Det. L. N. 283, 83 N. W. 108; Heman v. Allen, 156 Mo. 534, 57 S. W. 559, all of which are sustained in 181 U. S. 402, 21 Sup. Ct. Rep. 645, the Mis- souri case sub nom. Shumate v. Heman ; see the vigorous dissenting opinion of Mr. Justice Harlan in 181 U. S. 402, 21 Sup. Ct. Rep. 633. See also Banaz v. Smith, 133 Cal. 102, 65 Pac. 309, sustaining the frontage rule as a prima facie rule; also Ramsey County v. Lewis Co., 82 Minn. 402, SON. W. 611 (June 18, 1901),rev.same case, 82 Minn. 390, 85 N. W. 207 ; Indian- apolis v. Holt, 155 Ind. 222, 57 N. E. 966, 988, 1100; Baltimore v. Stewart, 92 Md. 535, 48 Atl. 165 ; Barfield v. Gleason, 23 Ky. L. 128, 63 S. W. 964, (sustaining as- sessment proportional to area). Notice by publication is sufficient in street improve- ment proceedings. Wight v. Davidson, 181 U. S. 371, 21 Sup. Ct. Rep. 616. And such notice may be by a minute in the publi- cation of the council's proceedings. State v. Pillsbury, 82 Minn. 359, 85 N. W. 175. Upon constitutionality of frontage rule, see Raleigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330, and note; upon necessity of special benefit, see Re Bonds of Madera Irrig. Dist., 92 Cal. 296, 341, 28 Pac. 272, 675, 14 L. R. A. 755, and note; upon distinction between taxes and special assessments, see Adams Co. v. Quincy, 130 111. 566, 22 N. E. 624, 6 L. R. A. 155, and note. Upon practi- cally unlimited power of Congress over special assessments in District of Colum- bia, see Parsons v. District of Columbia, 170 U. S. 45, 18 Sup. Ct. 621 ; Wight v. Davidson, 181 U. S. 371,21 Sup. Ct. Rep. 616. The frontage rule is no longer valid in Indiana, and no special assess- ment can exceed the benefit. If the cost of the improvement exceeds the amount of the special benefits, the excess must be paid out of the general fund raised by taxation. Adams v. Shelbyville, 154 Ind. 467, 57 N. E. 114, 49 L. R. A. 797. " Compensation paid to a landowner for lands taken by appropriation proceedings to open a street cannot be assessed back upon the lands of the owner remaining after such taking. Neither can costs and expenses incurred in such proceeding be so assessed." Cincinnati, L. & N. R. Co. v. Cincinnati, 62 Ohio St. 465, 57 N. E. 229, 49 L. R. A. 566; Bloomington v. Latham, 142 111. 462, 32 N. E. 506, 18 L. R. A. 487. Assessment by the front- age rule rejected. Assessments must be proportioned to benefits and not in ex- cess thereof. Kersten v. Milwaukee, 106 Wis. 200, 81 N. W. 948, 1103, 48 L. R. A. 851 ; Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289. For other cases on special assessments, see Asberry v. Roanoke, 91 Va. 562, 22 S. E. 360, 42 L. R. A. 636; Weed v. Boston, 172 Mass. 28, 51 N. E. 204, 42 L. R. A. 642; Rolph v. Fargo, 7 N. D. 640, 76 N. W. 242, 42 L. R. A. 646 (sustaining frontage rule) ; Detroit v. Chapin, 112 Mich. 688, 71 N. W. 149, 42 L. R. A. 638 ; Ramsey County v. Lewis Company, 72 Minn. 87, 75 N. W. 108, 42 L. R. A. 639 ; Violett v. Alexandria, 92 Va. 561, 23 S. E. 909, 31 L. R. A. 382; Hayes v. Douglas County, 92 Wis. 429, 65 N. W. 482, 31 L. R. A. 213 ; Denver v. Knowles, 17 Col. 204, 30 Pac. 1041, 17 L. It. A. 732 CONSTITUTIONAL LIMITATIONS. [CH. XIV. But a very different case is presented when the legislature undertakes to provide that each lot upon a street shall pay the whole expense of grading and paving the street along its front, (a) For while in such a case there would be something having the outward appearance of apportionment, it requires but slight ex- amination to discover that it is a deceptive semblance only, and that the measure of equality which the constitution requires is entirely wanting. If every lot-owner is compelled to construct the street in front of his lot, his tax is neither increased nor diminished by the assessment upon his neighbors ; nothing is divided or apportioned between him and them ; and each partic- ular lot is in fact arbitrarily made a taxing district, and charged with the whole expenditure therein and thus apportionment avoided. If the tax were for grading the street simply, those lots which were already at the established grade would escape altogether, while those on either side, which chanced to be above and below, must bear the whole burden, though no more bene- fited by the improvement than the others. 1 It is evident, there- fore, that a law for making assessments on this basis could not have in view such distribution of burdens in proportion to bene- fits as ought to be a cardinal idea in every tax-law. 2 It would be nakedly an arbitrary command of the law to each lot-owner to construct the street in front of his lot at his own expense, accord- ing to a prescribed standard ; and a power to issue such com- mand could never be exercised by a constitutional government, unless we are at liberty to treat it as a police regulation, and place the duty to make the streets upon the same footing as that to keep the sidewalk free from obstruction and fit for passage. But any such idea is clearly inadmissible. 3 135 (sustaining frontage rule in absence surface to the grade of the street, which of any showing of unfairness) ; Speer v. the others escape. Athens, 85 Ga.49, 11 S. E.802,9 L. R. A. 2 The case of Warren v. Henley, 31 402; Graham v. Chicago, 187 111. 411, 68 Iowa, 31, is opposed to the reasoning of N. E. 393; King v. City of Portland, 38 the text; but the learned judge who de- Oreg. 402, 03 Pac. 2, 55 L. R. A. 812. livers the opinion concedes that he is un- Where a street is widened upon one side able to support his conclusions on the only, the lands on both sides of the street authorities within his reach, abut on the improvement. Cincinnati v. 3 All lots in the district must be as- Batsche, 52 Ohio St. 324, 40 N. E. 21, 27 sessed, not simply those in front of which L. R. A. 536.] work has been done. Diggins v. Brown, 1 In fact, lots above and below an es- 76 Cal. 318, 18 Pac. 373. See City of tablished grade are usually less benefited Lexington v. McQuillan's Heirs, 9 Dana, by the grading than the others ; because 513, and opinions of Campbell and Chris- the improvement subjects them to new tiancy, JJ., in Woodbridge v. Detroit, 8 burdens, in order to bring the general Mich. 274. The case of Weeks v. Mil- (a) QSuch assessment held clearly arbitrary and void in Davis v. Litchfield, 145 111. 313, 33 N. E. 888, 21 L. R. A. 563, and note upon such assessments/] CH. XIV.] THE POWER OF TAXATION. 733 In many other cases, besides the construction, improvement, and repair of streets, may special taxing districts be created, with waukee, 10 Wis. 258, seems to be contra. We quote from the opinion of the court by Paine, J. After stating the rule that uniformity in taxation implies equality in the burden, he proceeds : " The prin- ciple upon which these assessments rest is clearly destructive of this equality. It requires every lot-owner to build what- ever improvements the public may re- quire on the street in front of his lot, without reference to inequalities in the value of the lots, in the expense of con- structing the improvements, or to the question whether the lot is injured or benefited by their construction. Corner lots are required to construct and keep in repair three times as much as other lots ; and yet it is well known that the differ- ence in value bears no proportion to this difference in burden. In front of one lot the expense of building the street may exceed the value of the lot ; and its con- struction may impose on the owner additional expense, to render his lot ac- cessible. In front of another lot of even much greater value, the expense is com- paratively slight. These inequalities are obvious ; and 1 have always thought that the principle of such assessments was radically wrong. They have been very extensively discussed, and sustained upon the ground that the lot should pay be- cause it receives the benefit. But if this be true, that the improvements in front of a lot are made for the benefit of the lot only, then the right of the public to tax the owner at all for that purpose fails; because the public has no right to tax the citizen to make him build improvements for his own benefit merely. It must be for a public purpose ; and it being once established that the construction of streets is a public purpose that will justify taxa- tion, I think it follows, if the matter is to be settled on principle, that the taxation should be equal and uniform, and that to make it so the whole taxable property of the political division in which the im- provement is made should be taxed by a uniform rule for the purpose of its construction. " But in sustaining these assessments when private property was wanted for a street, it bas been said the State could take it, because the use of a street was a public use ; in order to justify a resort to the power of taxation, it is said the building of a street is a public purpose. But then, having got the land to built it on, and the power to tax by holding it a public purpose, they immediately aban- don that idea, and say that it is a private benefit, and make the owner of the lot build the whole of it. 1 think this is the same in principle as it would be to say that the town in which the county seat is located should build the county build- ings, or that the county where the capital is should construct the public edifices of the State, upon the ground that, by being located nearer, they derived a greater benefit than others. If the question, therefore, was, whether the system of assessment could be sustained upon principle, I should have no hesitation in deciding it in the negative. I fully agree with the reasoning of the Supreme Court of Louisiana in the case of Muni- cipality No. 2 v. White, 9 La. Ann. 447, upon this point. " But the question is not whether this system is established upon sound prin- ciples, but whether the legislature has power, under the constitution, to estab- lish such a system. As already stated, if the provision requiring the rule of taxation to be uniform was the only one bearing upon the question, I should an- swer this also in the negative. But there is another provision which seems to me so important, that it has changed the re- sult to which I should otherwise have ar- rived. That provision is 3 of art. 11, and is as follows : ' It shall be the duty of the legislature, and they are hereby em- powered, to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assess- ment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts by such municipal corporations." " It cannot well be denied that if the word ' assessment,' as used in this section, had reference to this established system of special taxation for municipal im- provements, that then it is a clear recog- -34 CONSTITUTIONAL LIMITATIONS. [CH. XIV. a view to local improvements. The cases of drains to relieve swamps, marshes, and other low lands of their stagnant water, and of levees to prevent lands being overflowed by rivers, will at once suggest themselves. In providing for such cases, however, the legislature exercises another power besides the power of tax- ation. On the theory that the drainage is for the sole purpose of benefiting the lands of individuals, it might be difficult to defend such legislation. But if the stagnant water causes or threatens disease, it may be a nuisance, which, under its power of police, the State would have authority to abate. The laws for this purpose, so far as they have fallen under our observation, have proceeded upon this theory. Nevertheless, when the State incurs expense in the exercise of its police power for this purpose, it may be proper to assess that expense upon the portion of the community specially and peculiarly benefited. The assessment is usually made with reference to the benefit to property ; and it is difficult to frame or nition of the existence and legality of the power." And the court, having reached the conclusion that the word did have reference to such an established system, sustained the assessment, adding : " The same effect was given to the same clause in the Constitution of Ohio, by the Su- preme Court of that State, in a recent decision in the case of Hill v. Higdon, 6 Ohio, N. s. 243. And the reasoning of Chief Justice Hanney on the question I think it impossible to answer." If the State of Wisconsin had any set- tled and known practice, designated as assessments, under which each lot-owner was compelled to construct the streets in front of his lot, then the constitution as quoted may well be held to recognize such practice. In this view, however, it is still difficult to discover any " restric- tion " in a law which perpetuates the ar- bitrary and unjust custom, and which still permits the whole expense of making the street in front of each lot to be imposed upon it. The only restriction which the law imposes is, that its terms exclude uniformity, equality, and justice, which surely could not be the restriction the constitution designed. Certainly the learned judge shows very clearly that such a law is unwarranted as a legiti- mate exercise of the taxing power; and as it cannot be warranted under any other power known to constitutional govern- ment, the authority to adopt it should not be found in doubtful words. The case of Hill v. Higdon, referred to, is dif- ferent. There the expense of improving the street was assessed upon the property abutting on the street, in proportion to the foot front. The decision there was, that the constitutional provision that "laws shall be passed taxing by a uni- form rule all moneys, &c., and also all real and personal property, according to the true value in money," had no refer- ence to these local assessments, which might still be made, as they were before the constitution was adopted, with refer- ence to the benefits conferred. The case, therefore, showed a rule of apportionment which was made applicable throughout the taxing district, to wit, along the street so far as the improvement extended. The case of State v. City of Portage, 12 Wis. 562, holds that a law authorizing the ex- pense of an improvement to be assessed upon the abutting lots, in proportion to their front or size, would not justify and sustain city action which required the owner of each lot to bear the expense of the improvement in front of it. It has been often contended that taxa- tion by frontage was in effect a taking of property for the public use, but the courts have held otherwise. People v. Mayor, &c. of Brooklyn, 4 N. Y. 419 ; Allen v. Drew, 44 Vt. 174; Warren v. Henley, 31 Iowa, 31 ; Washington Avenue, 69 Pa. St. 352, 8 Am. Rep. 255; White v. Peo- ple, 94 111. 604. CH. XIV.] THE POWER OF TAXATION. 735 to conceive of any other rule of apportionment that would operate so justly and so equally in these cases. There may be difficulty in the detail ; difficulty in securing just and impartial assessments; but the principle of such a law would not depend for its soundness upon such considerations. 1 1 See Reeves v. Treasurer of Wood Co, 8 Ohio St. 333; Sessions v. Crunk- linton, 20 Ohio St. 349 ; French v. Kirk- land, 1 Paige, 117 ; Phillips v. Wickham, 1 Paige, 590; Anderson v. Kerns Co., 14 Ind. 199; O'Reiley v. Kankakee Co., 32 Ind. 1G9; Draining Co. Case, 11 La. Ann. 338; Hagar v. Supervisors of Yolo, 47 Cal. 222; Davidson i>. New Orleans, 96 U. S. 97. [Re Tuthill, 163 N. Y. 133, 57 N. E. 303, 49 L. R. A. 781.] In Wood- ruff v. Fisher, 17 Barb. 224, Hand, J., speaking of one of these drainage laws, says: "If the object to be accomplished by this statute may be considered a pub- lic improvement, the power of taxation seems to have been sustained upon analo- gous principles. [Citing People ;;. Mayor, &c. of Brooklyn, 4 N. Y. 419 ; Thomas v. Leland, 24 Wend. 65; and Livingstone. Mayor, &c. of New York, 8 Wend. 85, 22 Am. Dec. 622.] But if the object was merely to improve the property of indi- viduals, I think the statute would be void, although it provided for compensation. The water privileges on Indian River cannot be taken or affected in any way solely for the private advantage of oth- ers, however numerous the beneficiaries. Several statutes have been passed for draining swamps, but it seems to me that the principle above advanced rests upon natural and constitutional law. The pro- fessed object of this statute is to promote public health. And one question that arises is, whether the owners of large tracts of land in a state of nature can be taxed to pay the expense of -draining them, by destroying the dams, &c., of other persons away from the drowned lands, and for the purposes of public health. This law proposes to destroy the water power of certain persons against their will, to drain the lands of others, also, for all that appears, against their will ; and all at the expense of the latter, for this public good. If this taxation is illegal, no mode of compensation is pro- vided, and all is illegal." " The owners of these lands could not be convicted of maintaining a public nuisance because they did not drain them; even though they were the owners of the lands upon which the obstructions are situated. It does not appear by the act or the com- plaint that the sickness to be prevented prevails among inhabitants on the wet lands, nor whether these lands will be benefited or injured by draining; and certainly, unless they will be benefited, it would seem to be partial legislation to tax a certain tract of land, for the expense of doing to it what did not improve it, merely because, in a state of nature, it may be productive of sickness. Street assessments are put upon the ground that the land assessed is improved, and its value greatly enhanced." The remarks of Green, J., in Williams v. Mayor, &c. of Detroit, 2 Mich. 660, 567, may be here quoted: "Every species of taxation, in every mode, is in theory and principle based upon an idea of compensation, ben- efit, or advantage to the person or prop- erty taxed, either directly or indirectly. If the tax is levied for the support of the government and general police of the State, for the education and moral instruction of the citizens, or the con- struction of works of internal improve- ment, he is supposed to receive a just compensation in the security which the government affords to his person and property, the means of enjoying his pos- sessions, and their enhanced capacity to contribute to his comfort and gratifica- tion, which constitute their value." It has been held incompetent, how- ever, for a city which has itself created a nuisance on the property of a citizen, to tax him for the expense of removing or abating it. Weeks v. Milwaukee, 10 Wis. 258. In Egyptian Levee Co. v. Hardin, 27 Mo. 495, it was held that a special assess- ment for the purpose of reclaiming a dis- trict from inundation might properly be laid upon land in proportion to its area, and that the constitutional provision that taxation should be levied on property in 736 CONSTITUTIONAL LIMITATIONS. [CH. XIV. Sewers in cities and populous districts are a necessity, not only that the streets may be kept clean and in repair, but to prevent the premises of individuals from becoming nuisances. The ex- pense of these is variously assessed. It may unquestionably be made by benefits and by frontage under proper legislation. 1 In certain classes of cases, it has been customary to call upon the citizen to appear in person and perform service for the State, in the nature of police duties. The burden of improving and repair- ing the common highways of the country, except in the urban districts, is generally laid upon the people in the form of an assessment of labor. The assessment may be upon each citizen, in proportion to his property ; or, in addition to the property assessment, there may be one also by the poll. But though the public burden assumes the form of labor, it is still taxation, and must therefore be levied on some principle of uniformity. But it is a peculiar species of taxation; and the general terms "tax" or "taxation," as employed in the State constitutions, would not generally be understood to include it. It has been decided that the clause in the Constitution of Illinois, that " the mode of levy- ing a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession," did not prevent the levy of poll-taxes in highway labor. " The framers of the constitution intended to direct a uniform mode of taxation on property, and not to pro- proportion to its valuation did not pre- Rutherford v, Hamilton, 97 Mo. 543, 11 elude this mode of assessment. The S. W. 249; Stroud i>. Philadelphia, 61 Pa. same ruling was made in Louisiana cases. St. 255 ; Philadelphia v. Tyron, 35 Pa. St. Crowley v. Copley, 2 La. Ann. 329 ; Yeat- 401 ; Warner v. Grand Haven, 30 Mich, man o. Crandall, 11 La. Ann. 220; Wai- 24. It may be made according to the lace v. Shelton, 14 La. Ann. 498 ; Bishop value of the lots : Mason v. Spencer, 35 v. Marks, 15 La. Ann. 147; Richardson v. Kan. 512, 11 Pac. 402; Snow v. Fitchburg, Morgan, 16 La. Ann. 429. So with ref- 136 Mass. 183; or by area. Keese r. Den- erence to assessments for irrigating arid ver, 10 Col. 112, 15 Pac. 825. It would lands. Turlock Irrig. Dist. v. Williams, not be competent, however, to make the 76 Cal. 360, 18 Pac. 379. And see McGe- assessment for a city sewer by the area hee v. Mathis, 21 Ark. 40; Jones v. Boston, upon both in and out lots, as this, from 104 Mass. 461 ; Daily v. Swope, 47 Miss, the nature of the case, could not possibly 367; Alcorn v. Hamer, 38 Miss. 652 ; Boro be equal. Thomas v. Gain, 35 Mich. 155. v. Phillips Co., 4 Dill. 216. ^Expense of Street sprinkling may be paid for accord- street sprinkling may be met by special ing to the frontage upon the street sprin- assessments on the benefit rule. Phillips kled. State v. Reis, 38 Minn 371, 38 Academy v. Andover, 175 Mass. 118, 55 N. W. 97. [^Expense of maintenance of N. E 841, 48 L R. A. 550.] sewers, as well as of construction, may be 1 In England it is made by benefits, met by special assessments according In this country different methods are to benefits. Carson v. Brockton Sewer adopted. See Wright v. Boston, 9 Cush. Comm'rs, 182 U. S. 398, 21 Sup. Ct. Rep. 233; Leominster v. Conant, 139 Mass. 384, 860, aff. 175 Mass. 242, 56 N. E. 1, 48 2 N. E. 690 ; Cone v. Hartford, 28 Conn. L. R. A. 277.] 363; St. Louis v. Osiers, 36 Mo. 456; CH. XIV.] THE POWER OF TAXATION. 737 hibit any other species of taxation, but to leave the legislature the power to impose such other taxes as would be consonant to public justice, and as the circumstances of the country might re- quire. They probably intended to prevent the imposition of an arbitrary tax on property, according to kind and quantity, and without reference to value. The inequality of that mode of taxa- tion was the object to be avoided. We cannot believe they intended that all the public burdens should be borne by those having property in possession, wholly exempting the rest of the community, who, by the same constitution, were made secure in the exercise of the rights of suffrage, and all the immunities of the citizen." 1 And in another case, where an assessment of high- way labor is compared with one upon adjacent property for widen- ing a street, which had been held not to be taxation, as that term was understood in the constitution, it is said: "An assessment of labor for the repair of roads and streets is less like a tax than is such an assessment. The former is not based upon, nor has it any reference to, property or values owned by the per- son of whom it is required, whilst the latter is based alone upon the property designated by the law imposing it. Nor is an assess- ment a capitation tax, as that is a sum of money levied upon each poll. This rate, on the contrary, is a requisition for so many days' labor, which may be commuted in money. No doubt, the number of days levied, and the sum which may be received by commutation, must be uniform within the limits of the dis- trict or body imposing the same. This requisition for labor to repair roads is not a tax, and hence this exemption is not repug- nant to the constitution." 2 It will be apparent from what has already been said, that it is not essential to the validity of taxation that it be levied according to the rules of abstract justice. 3 It is only essential that the legislature keep within its proper sphere of action, and do not impose burdens under the name of taxation which are not taxes in fact ; and its decision as to what is proper, just, and politic, 1 Sawyer v. City of Alton, 4 111. 127, adjoining premises irrespective of any ap- 130; State v. Halifax, 4 Dev. 345; Ame- portionment, and appears to suppose our nia v. Stamford, 6 Johns. 92 ; Draining views rest upon the injustice of such a Go. Case, 11 La. Ann. 338, 372. proceeding. This is not strictly correct; 2 Town of Pleasant v. Kost, 29 111. it may or may not be just in any particu- 490, 494. lar case ; but taxation necessarily implies 8 Frellsen v. Mahan, 21 La. Ann. 79; apportionment, and even a just burden People v. Whyler, 41 Cal. 351 ; Warren cannot be imposed as a tax without it. v. Henley, 31 Iowa, 31. In this last case, QSee a peculiar case in Baldwin v. Doug- Bec/c, ,J., criticises the position taken ante, las County, 37 Neb. 283, 66 N. W. 876, pp. 730-732, that the cost of a local 20 L. R. A. 850, declaring a doubtful improvement cannot be imposed on the rule.] 47 738 CONSTITUTIONAL LIMITATIONS. [CH. XIV. must then be final and conclusive. Absolute equality and strict justice are unattainable in tax proceedings. The legislature must be left to decide for itself how nearly it is possible to approxi- mate so desirable a result. It must happen under any tax law that some property will be taxed twice, while other property will escape taxation altogether. 1 Instances will also occur where per- sons will be taxed as owners of property which has ceased to exist. Any system adopted for taking valuations of property must fix upon a certain time for that purpose, and a party be- comes liable to be taxed upon what he possesses at the time the valuing officer calls upon him. Yet changes of property from person to person are occurring while the valuation is going on, and the same parcel of property may be found by the assessor in the hands of two different persons, and be twice assessed, while another parcel in the transfer from hand to hand fails to be assessed at all. So the man who owns property when the assess- ment is taken may have been deprived of it by accident or other misfortune before the tax becomes payable ; but the tax is never- theless a charge against him. And when the valuation is made but once in a series of years, the occasional hardships and in- equalities in consequence of relative changes in the value of property from various causes, becomes sometimes very glaring. Nevertheless, no question of constitutional law is raised by these inequalities and hardships, and the legislative control is complete. 2 1 Duplicate taxation must occasion- nessee, 161 U. S. 134, 16 Sup. Ct. Rep. ally take place, however carefully the 456, s. c. 163 U. S. 416, 16 Sup. Ct. Rep. law may have been framed to avoid it. 1113, where it is held that the language A tax cannot be set aside on that ground " Said institution . . . shall pay to the merely. Augusta Bank c. Augusta, 36 State an annual tax of \ of 1 per cent Me. 255. It is customary to tax corpora- on each share of capital stock, which tions on their capital stock, or on their shall be in lieu of all other taxes" property, and also the corporators on makes the shares in the hands of the their shares; and this is entirely admis- stockholders non-taxable. But the bank sible. Farrington r. Tennessee, 95 U. S. may be taxed upon its capital stock 679; Sturges r. Carter, 114 U. S. 611, under that provision. Shelby Co. v. 5 Sup. Ct. Rep. 1014 ; Belo r. Commis- Union & Planters' Bank, 161 U. S. 149, sioners, 82 N. C. 415, 33 Am. Rep. 688 ; 16 Sup. Ct, Rep. 558.] So land may be Bradley v. Bander, 36 Ohio St. 28, 38 Am. taxed at its full value, and also the mort- Rep. 547 ; Cook v. Burlington, 59 Iowa, gage upon it. People v. Board of Super- 251, 13 N. W. 113; Lee v. Sturges, 46 visors, 71 Mich. 16,38 N. W. 639. [But Ohio St. 153, 19 N. E. 560. The tax on not in California. Germania Trust Co. the shares may be collected from the cor- v. San Francisco, 128 Cal. 589, 61 Pac. poration out of dividends. Street Rail- 178.] road Co. v. Morrow, 87 Tenn. 406, 11 2 In Shaw v. Dennis, 10 111. 405, ob- S. W. 348. But it is said the intent to jection was taken to an assessment made tax both stock and shares must be clear, for a local improvement under a special Penn. Co. v. Com., Pa. St. , 15 Atl. statute, that the commissioners, in deter- 456. QAnd see Farrington v. Tennessee, mining who should be liable to pay the 95 U. S. 679, and Bk. of Commerce v. Ten- tax, and the amount each should pay, CH. XIV.] THE POWER OF TAXATION. 739 The legislature must also, except when an unbending rule has been prescribed for it by the constitution, have power to select in its discretion the subjects of taxation. 1 The rule of uniform- ity requires an apportionment among all the subjects of taxation within the districts; but it does not require that everything which the legislature might make taxable shall be made so in fact. Many exemptions are usually made from taxation from reasons the cogency of which is at once apparent. The agencies of the national government, we have seen, are not taxable by the States ; and the agencies and property of States, counties, cities, boroughs, towns, and villages are also exempted by law, (a) be- were to be governed by the last assess- ment of taxable property in the county. It was insisted that this was an unjust criterion, for a man might have disposed of all the taxable property assessed to him in the last assessment before this tax was actually declared by the commission- ers. The court, however, regarded the objection as more refined than practical, and one that, if allowed, would at once annihilate the power of taxation. "In the imposition of taxes, exact and criti- cal justice and equality are absolutely unattainable. If we attempt it, we might have to divide a single year's tax upon a given article of property among a dozen different individuals who owned it at dif- ferent times during the year, and then be almost as far from the desired end as when we started. The proposition is Utopian. The legislature must adopt some practical system ; and there is no more danger of oppression or injustice in taking a former valuation than in relying upon one to be made subsequently." And see People v. Worthington, 21 111. 171. 1 Wisconsin Cent. R. R. Co. v. Taylor County, 52 Wis. 37, 8 N. W. 833 ; Strat- ton v. Collins, 43 N. J. 563 ; New Orleans v. People's Bank, 32 La. Ann. 82 ; New Orleans v. Fourchy, 30 La. Ann. pt. 1, 910; Gibbons v. Dist. Columbia, 110 U. S. 401, 6 Sup. Ct. Rep. 427; University v. Skidmore, 87 Tenn. 155, 9 S. W. 892. But if provision for certain exemptions is made by the constitution, no others are valid. Le Due v. Hastings, 39 Minn. 110, 38 N. W. 803. fJBut it seems that the legislature may exempt lands received from the Federal government in trust to aid in the building of railways without regard to the constitutional provisions concerning exemptions. See Stearns v. Minnesota, 179 U. S. 223, 21 Sup. Ct. Rep. 73, and Duluth & I. R. R. Co. v. St. Louis Co., 179 U. S. 302, 21 Sup. Ct. Rep. 124. Held, that an exemption of $5,000 in each estate from the operation of the inheritance tax law is void, as being re- pugnant to the requirement of uniform- ity. Re Cope, 191 Pa. 1, 43 Atl. 79, 45 L. R. A. 316. Where the Constitution requires that the legislature " shall pro- vide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation," failure on the part of the legislature to prescribe such rules for any class of property (e. g. paid-up and partly paid-up life insurance policies) exempts that class. State Board of Tax Commissioners v. Holliday, 150 Ind. 216, 49 N. E. 14, 42 L. R. A. 826. In Mary- land the legislature cannot exempt per- sonal property and improvements upon lands, leaving the bare land values to be assessed. Wells v. Hyattsville Comm'rs, 77 Md. 125, 26 Atl. 357, 20 L. R. A. 89. Oregon legislature cannot exempt rail- road property upon condition that State troops and munitions of war be carried free. Hogg v. Mackay, 23 Oreg. 339, 31 Pac. 779, 19 L. R. A. 77, and note upon power of exemption. No exemptions allowed in North Carolina. Redmond v. Tarboro, 106 N. C. 122, 10 S. E. 845, 7 L. R. A. 639.;] (a) FjBut in Kentucky, a municipal corporation may be taxed upon its franchise to operate water-works. Newport v. Com., 106 Ky. 434, 50 S. W. 845, 46 L. R. A. 518. Public parks and the property used by the fire department are public prop- 740 CONSTITUTIONAL LIMITATIONS. [CH. XIV. cause, if any portion of the public expenses was imposed upon them, it must in some form be collected from the citizens before it can be paid. No beneficial object could therefore be accomplished by any such assessment. The property of educational and religious institutions is also generally exempted from taxation by law upon very similar considerations, and from a prevailing belief that it is the policy and the interest of the State to encourage them. 1 If 1 As in the case of other special privi- leges, exemptions from taxation are to be strictly construed. Trustees of M. E. Church v. Ellis, 38 Ind. 3 ; State v. Mills, 34 N. J. 177; Nashville, &c. R. R. Co. v. Hodges, 7 Lea, 663; Railway Co. v. Philadelphia, 101 U. S. 528; Morris v. Royal Arch Masons, 68 Tex. 698, 5 S. W. 519 ; Yazoo & M. V. R. R. Co. v. Thomas, 65 Miss. 553, 5 So. 108 ; People v. Davenport, 91 N. Y. 574 ; Common- wealth's Appeal, 127 Pa. St. 435, 17 Atl. 1094; Third Cong. Soc. v. Springfield, 147 Mass. 396, 18 N. E. 68; ante, 396 ; and many other cases cited in Cooley on Taxation, 146. [[Exemption of the capital of a bank does not include property bought in on foreclosure of its stock and stock-loan mortgages. Louisiana v. Bd. of Assessors, 167 U. S. 407, 17 Sup. Ct. Rep. 1000 ; Bk. of Commerce v. Tennes- see, 161 U. S. 134, 16 Sup. Ct. Rep. 450 ; Shelby Co. v. Union & Planters' Bank, 161 U. S. 149, 16 Sup. Ct. Rep. 558. Whether exemption is contract or not, see Tucker v. Ferguson, 22 L. ed. U. S. 805, and note. Exemptions narrowly construed. Ford v. Delta & Pine Land Co., 164 U. S. 662, 17 Sup. Ct. Rep. 230 ; Byram v. Marion Co.Comm'rs, 145 Ind. 240, 44 N. E. 357, 33 L. R. A. 476; Montana Catholic Mis- sion v. L. & C. County, 13 Mont. 559, 35 Pac. 2, 22 L. R. A. 684 ; Wells v. Savan- nah, 181 U. S. 531, 21 Sup. Ct. Rep. 697, aff. 107 Ga. 1, 32 S. E. 669. Exemption from taxation of lands granted by Con- gress until such lands are sold by railroad, extends only to time when equitable title is conveyed, although legal title may not be given until long after. Winona & St. Peter Land Company v. Minnesota, 159 U. S. 526, 16 Sup. Ct. Rep 83. Exemp- tions not so strictly construed as to de- feat their purpose. Brown University v. Granger, 19 R. I. 704, 36 Atl. 720, 36 L. R. A. 847. Exemption of shares of stock from taxation exempts the company unless the contrary expressly appears. State v. Heppenheimer, 58 N. J. L. 633, 34 Atl. 1001, 32 L. R. A. 643. For other cases on exemptions, see Commonwealth v. Juniata Coke Co., 157 Pa. 607, 27 Atl. 373, 22 L. R. A. 232; Com. v. Pottsville Iron & S. Co., 157 Pa. 500, 27 Atl. 371, 22 L. R. A. 228; Ramsey County v. MacAlester College, 61 Minn. 437, 53 N. W. 704, 18 L. R. A. 278; Re Prime's Estate, 136 N. Y. 347, 32 N. E. 1091, 18 L. R. A. 713; State v. Keokuk & W. R. Co., 99 Mo. 30, 12 S. W. 290, 6 L. R. A. 222.] The local authorities cannot be authorized by the legislature to make exemptions. Farnsworth Co. v. Lisbon, 62 Me. 451 ; Wilson v. Super- visors of Sutler, 47 Cal. 91 ; State v. Han- nibal, &c. R. R. Co., 75 Mo. 208; Austin v. Gas Co., 69 Tex. 180, 7 S. W. 200. See Brewer Brick Co. v. Brewer, 62 Me. 62, 16 Am. Rep. 395; State v. Hudson, &c. Com'rs, 37 N. J. 12 ; Augusta Factory v. Augusta, 83 Ga. 734, 10 S. E. 359. Com- pare Danville c. Shelton, 76 Va. 325. But they may doubtless be authorized to decide upon the facts what persons or property come within the rules of exemp- tion prescribed by the legislature. It lias erty and are exempt. Owensboro v. Com., 105 Ky. 344, 49 S. W. 320, 44 L. R. A. 202. But property not used for public purposes is not within the rule. San Diego v. Linda Vista Irrigation Dist., 108 Cal. 189, 41 Pac. 291, 35 L. R. A. 33. Nor is public property in private hands, even though used for public purposes. State '. Cooley, 62 Minn. 183, 64 N. W. 379, 29 L. R. A. 777. Where the State cannot be sued, State property is necessarily exempt from special assessments. Mt. Vernon v. People, 147 111. 359, 35 N. E. 533, 23 L. R. A. 807, and note on municipal assessment of State property. State university with appurtenant property is exempt. Auditor General v. University, 83 Mich. 467, 47 N. W. 440, 10 L. R. A. 376, and note.] CH. XIV.] THE POWER OF TAXATION. 741 the State may cause taxes to be levied from motives of char- ity or gratitude, so for the like reasons it may exempt the objects of charity and gratitude from taxation. 1 Property is sometimes released from taxation by contract between the State and corpo- rations, (a) and specified occupations are sometimes charged with been generally held that an exemption from taxation would not exempt the property from being assessed for a local improvement. Matter of Mayor, &c., 11 Johns. 77; Baltimore v. Cemetery Co., 7 Md. 517 ; La Fayette v. Orphan Asylum, 4 La. Ann. 1 ; Pray v. Northern Liberties, 31 Pa. St. 69 ; Le Fever v. Detroit, 2 Mich. 686 ; Loekwood v. St. Louis, 24 Mo. 20 ; Broadway Baptist Church v. Me A tee, 8 Bush, 508, 8 Am. Rep. 480 ; Universalist Society v. Providence, 6 R. 1. 235 ; Patter- son v. Society, &c., '24 N. J. 385; Cincinnati College v. State, 19 Ohio, 110; Brewster v. Hough, ION. H. 138; Seymour v. Hart- ford, 21 Conn. 481; Palmer v. Stumph, 29 Ind. 329 ; Peoria v. Kidder, 26 111. 351 ; Hale v. Kenosha, 29 Wis. 599 ; Seamen's Friend Society v. Boston, 116 Mass. 181 ; Orange, &c. R. R. Co. v. Alexandria, 17 Gratt. 176; Lima v. Cemetery Ass., 42 Ohio St. 128; State v. Kansas City, 89 Mo. 34, 14 S. W. 515 ; Chicago v. Baptist Union, 115 111. 245,2 N. E. 254; QLake Shore & M. S. R. Co. v. Grand Rapids, 102 Mich. 374, 60 N. W. 767, 29 L. R. A. 195 ; Board of Improvement v. School Dist., 56 Ark. 354, 19 S. W. 969, 16 L. R. A. 418; Zabel v. Louisville B. O. Home, 92 Ky. 89, 17 S. W. 212, 13 L. R. A. 668; Atlanta v. First Pr. Church, 86 Ga. 730, 13 S. E. 252, 12 L. R. A. 852, and note; Home, &c. v. Wilkinsburg, 131 Pa. 109, 18 All. 937, 6 L. R. A. 531; Adams County v. Quincy, 130 111. 566, 22 N. E. 624, 6 L. R. A. 155, and note ; note to 4 L. R. A. 171.] Contra, Trustees M. E. Ch. v. Atlanta, 76 Ga. 181, and see Swan Point Cera. v. Tripp, 14 R. I. 199. QUpon exemptions and special assessments, see III. Cent. R. Co. v. Decatur, 126 111. 92, 18 N. E 315, 1 L. R. A. 613, and note, s. c. 147 U. S. 190, 13 Sup. Ct. Rep. 293, sustaining the rule that "exemption from all taxation of every kind " does not exempt from special assessments for street improvements. See also San Diego v. Linda Vista Irrigation Dist., 108 Cal. 189, 41 Pac. 291, 35 L. R. A. 33, and note. Upon what are public improvements, see Re Kingman, 153 Mass. 666, 27 N. E. 778, 12 L. R. A. 417, and note. Upon whether exemption is a contract or not, see note to 22 L. ed. U. S. 805; exemption of church property, note to 29 L. ed. U. S. 680. And in an exemption a reservation of limited taxing power to " municipal corporations" extends to municipalities subsequently incorporated. Central R. & Bkg. Co. v. Wright, 164 U. S. 327, 17 Sup. Ct. Rep. 80.] Land held in trust for the State is exempt. People v. Trustees of Schools, 118 111. 52, 7 N. E. 262. The customary constitutional inhi- bition of any law respecting an establish- ment of religion, &c., is not violated by an exemption of church property from taxation. Trustees of Griswold College v. State, 46 Iowa, 275, 26 Am. Rep. 138. QWhere a school admits pupils of all creeds, races, colors, and conditions with- out discrimination, it is a public charity, even though owned by a private corpora- tion, and it may lawfully be exempted from taxation. White r. Smith, 189 Pa. 222, 43 L. R. A. 498, 42 Atl. 125. So with college buildings used exclusively as dor- mitories and boarding halls for the accom- modation of students. Yale University v. New Haven, 71 Conn. 316, 42 Atl. 87, 43 L. R. A. 490. Exemption will cover in- come-producing property if income is de- voted solely to charitable purposes, and free education of female orphan children is such purpose. Trustees of Kentucky F. O. School v. Louisville, 100 Ky. 470, 36 S. W. 921, 40 L. R. A. 119; contra, on first proposition, Portland H. Benev. So- ciety v. Kelly, 28 Oreg. 173, 42 Pac. 3, 30 L. R. A. 167 ; American S. S. Union v. Taylor, 161 Pa. 307, 29 Atl. 26, 23 L. R. A. 695.] 1 But it is not competent to grant ex- emptions from taxation based on sex or age, e. g., widows, maids, and female minors, and an act attempting to make such exemptions is void. State t'. In- dianapolis, 69 Ind. 375, 35 Am. Rep. 22& (a) Q~Upon exemption from taxation, see note to 22 L. ed. U. S. 805.] 742 CONSTITUTIONAL LIMITATIONS. [CH. XIV. specific taxes in lieu of all taxation of their property. A broad field is here opened to legislative discretion. As matter of State policy it might also be deemed proper to make general exemption of sufficient of the tools of trade or other means of support, to enable the poor man, not yet a pauper, to escape becoming a pub- lic burden. There is still ample room for apportionment after all such exemptions have been made. The constitutional require- ment of equality and uniformity only extends to such objects of taxation as the legislature shall determine to be properly subject to the burden. 1 The power tv determine the persons and the objects to be taxed is trusted exclusively to the legislative de- partment; 2 but over all those objects the burden must be spread or it will be unequal and unlawful as to such as are selected to make the payment. 3 1 States North, 27 Mo. 464; People v. Colman, 3 Cal. 46; Duracli's Appeal, 62 Pa. St. 491; Brewer Brick Co. v. Brewer, 62 Me. 62, 16 Am. Rep. 395. [Crafts v. Ray, R. I. , 46 All. 1043, 49 L. R. A. 004. See also Maine Water Co. v. Waterville, 93 Me. 686, 45 Atl. 830, 49 L. R. A. 294Q 2 Wilson v. Mayor, &c. of New York, 4 E. D. Smith, 675; Hill v. Higdon, 6 Ohio St. 243; State v. Parker, 33 N. J. 313; State v. County Court, 19 Ark. 360. Classes of property as well as classes of persons may be exempted. Butler's Ap- peal, 73 Pa. St. 448 ; Sioux City v. School District, 55 Iowa, 150, 7 N. W. 488. Not- withstanding a requirement that " the rule of taxation shall be uniform," the legislature may levy specific State taxes on corporations, and exempt them from municipal taxation. So held on the ground of stare decisis. Kneeland v. Milwaukee, 16 Wis. 454. See 111. Cent. R. R. Co. v. McLean Co., 17 111. 291 ; New Orleans v. Savings Bank, 31 La. Ann. 826; Hunsaker v. Wright, 30 111. 146; Portland v. Water Co., 67 Me. 135. 8 In the case of Weeks v. Milwaukee, 10 Wis. 242, a somewhat peculiar exemp- tion was made. It appears that several lots in the city upon which a new hotel was being constructed, of the value of from -$150,000 to $200,000, were purposely omitted to be taxed, under the direction of the Common Council, " in view of the great public benefit which the construc- tion of the hotel would be to the city." Paine, J., in delivering the opinion of the court, says : " I have no doubt this ex- emption originated in motives of gener- osity and public spirit. And perhaps the same motives should induce the taxpay- ers of the city to submit to the slight in- crease of the tax thereby imposed on each, without questioning its strict legal- ity. But they cannot be compelled to. No man is obliged to be more generous than the law requires, but each may stand strictly upon his legal rights. That this exemption was illegal, was scarcely contested. I shall therefore make no effort to show that the Common Council had no authority to suspend or repeal the general law of the State, declaring what property shall be taxable and what ex- empt. But the important question pre- sented is, whether, conceding it to have been entirely unauthorized, it vitiates the tax assessed upon other property. And upon this question I think the follow- ing rule is established, both by reason and authority. Omissions of this character, arising from mistakes of fact, erroneous computations, or errors of judgment on the part of those to whom the execution of the taxing laws is entrusted, do not neces- sarily vitiate the whole tax. But inten- tional disregard of those laws, in such manner as to impose illegal taxes on those who are assessed, does. The first part of the rule is necessary to enable taxes to be collected at all. The execution of these laws is necessarily entrusted to men, and men are fallible, liable to frequent mistakes of fact and errors of judgment. If such errors, on the part of those who CH. XIV.] THE POWER OF TAXATION. 743 In some of the States it has been decided that the particular provisions inserted in their constitutions to insure uniformity are so worded as to forbid exemptions. Thus the late Constitution of Illinois provided that " the General Assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property. " l Under this it was held that exemption by the legislature of per- sons residing in a city from a tax levied to repair roads beyond the city limits, by township authority, the city being embraced within the township which, for that purpose, was the taxing dis- trict, was void. 2 It is to be observed of these cases, however, that they would have fallen within the general principle laid down in Knowlton v. Supervisors of Rock Co., 3 and the legisla- tive acts under consideration might, if that case were followed, have been declared void on general principles, irrespective of the peculiar wording of the constitution. These cases, notwithstand- ing, as well as others in Illinois, recognize the power in the legis- are attempting in good faith to perform their duties, should vitiate the whole tax, no tax could ever be collected. And therefore, though they sometimes increase improperly the burdens of those paying taxes, that part of the rule which holds the tax not thereby avoided is absolutely essential to a continuance of government. But it seems to me clear that the other part is equally essential to the just pro- tection of the citizen. If those executing these laws may deliberately disregard them, and assess the whole tax upon a part only of those who are liable to pay it, and have it still a legal tax, then the laws afford no protection, and the citizen is at the mercy of those officers, who, by being appointed to execute the laws, would seem to be thereby placed beyond legal control. I know of no considerations of public policy or necessity that can justify carrying the rule to that extent. And the fact that in this instance the disregard of the law proceeded from good motives ought not to affect the decision of the question. It is a rule of law that is to be established ; and, if established here because the motives were good, it would serve as a precedent where the motives were bad, and the power usurped for purposes of oppression," pp. 812-315. See also Henry v. Chester, 15 Vt. 460; State /. Collector of Jersey City, 24 N. J. 108 ; Insurance Co. v. Yard, 17 Pa. St. 331 ; Williams v. School District, 21 Pick. 75 ; Hersey v. Supervisors of Milwaukee, 16 Wis. 185 ; Crosby v. Lyon, 37 Cal. 242 ; Primm v. Belleville, 69 111. 142 ; Adams v. Beman, 10 Kan. 37; Brewer Brick Co. v. Brewer, 62 Me. 62, 16 Am. Rep. 395. But it seems that an omission of property from the tax-roll by the assessor, un- intentionally, through want of judgment and lack of diligence and business habits, will not invalidate the roll. Dean v. Gleason, 16 Wis. 1 ; liicketts v. Spraker, 77 Ind. 371. In Scofield v. Watkins, 22 III. 66, and Merritt v. Karris, 22 111. 303, it appears to be decided that even in the case of intentional omissions the tax-roll would not be invalidated, but the parties injured would be left to their remedy against the assessor. See also Dunham \ Chicago, 55 111. 359; State v. Maxwell, 27 La. Ann. 722 ; New Orleans v. Fourchy, 30 La. Ann. pt. 1. 910. Compare Francis v. Railroad Co., 19 Kan. 303. 1 Art. 9, 2, of the old Constitution. 2 O'Kane v. Treat, 25 111. 557 ; Hun- saker v. Wright, 30 111. 146. See also Trustees v. McConnell, 12 111. 138 ; Madi- son County r. People, 58 111. 456 ; Dunham v. Chicago, 55 III. 357; Louisville, &c. R. R. Co. v. State, 8 Heisk. 663, 744. Peo- ple's Loan & H. Assn. r. Keith, 153 111. 609, 39 N. E. 1077, 28 L. R. A. 65.] 9 Wis. 410. See ante, p. 723. 744 CONSTITUTIONAL LIMITATIONS. [CH. XIV. lature to commute for a tax, or to contract for its release for a consideration. The Constitution of Ohio provides 1 that " laws shall be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise ; and also all real and personal property, according to its true value in money." Under this section it was held not competent for the legislature to provide that lands within the limits of a city should not be taxed for any city purpose, except roads, unless the same were laid off into town lots and recorded as such, or into out-lots not exceeding five acres each. 2 Upon this case we should make the same remark as upon the Illinois cases above referred to. The Constitution of California provides that " all property in the State shall be taxed in proportion to its value;" and this is held to preclude all exemptions of private property when taxes are laid for either general or local purposes. 3 It is, moreover, essential to valid taxation that the taxing offi- cers be able to show legislative authority for the burden they assume to impose in every instance. Taxes can only be voted by the people's representatives. They are in every instance an ap- propriation by the people to the government, which the latter is to expend in furnishing the people protection, security, and such facilities for enjoyment as it properly pertains to government to provide. This principle is a chief corner-stone of Anglo-Saxon liberty ; and it has operated not only as an important check on government, in preventing extravagant expenditures, as well as unjust and tyrannical action, but it has been an important guar- anty of the right of private property. Property is secure from the lawless grasp of the government, if the means of existence of the government depend upon the voluntary grants of those who own the property. Our ancestors coupled their grants with de- mands for the redress of grievances : but in modern times the surest protection against grievances has been found to be to vote specific taxes for the specific purposes to which the people's representatives are willing they shall be devoted ; 4 and the per- sons exercising the functions of government must then become petitioners if they desire money for other objects. And then these grants are only made periodically. Only a few things, such as the salaries of officers, the interest upon the public debt, the support of schools, and the like, are provided for by permanent 1 Art. 12, 2. 8 People v. McCreery, 34 Cal. 432 ; 2 Zanesville v. Auditor of Muskingum Crosby v. Lyon. 37 Cal. 242 ; People v. County, 6 Ohio St. 589. See also Fields Eddy ,"43 Cal. 331, 13 Am. Rep. 143. v. Com'rs of Highland Co., 36 Ohio St. * Hoboken v. Phinney, 29 N. J. 65. 476. CH. XIV.] THE POWER OF TAXATION. 745 laws ; and not always is this done. The government is depend- ent from year to year on the periodical vote of supplies. And this vote will come from representatives who are newly chosen by the people, and who will be expected to reflect their views regarding the public expenditures. State taxation, therefore, is not likely to be excessive or onerous, except when the people, in times of financial ease, excitement, and inflation, have allowed the incurring of extravagant debts, the burden of which remains after the excitement has passed away. But it is as true of the political divisions of the State as it is of the State at large, that legislative authority must be shown for every levy of taxes. 1 The power to levy taxes by these divisions comes from the State. The State confers it, and at the same time exercises a parental supervision by circumscribing it. In- deed, on general principles, the power is circumscribed by the rule that the taxation by the local authorities can only be for local purposes. 2 Neither the State nor the local body can authorize the imposition of a tax on the people of a county or town for an object in which the people of the county or town are not concerned. And by some of the State constitutions it is expressly required that the State, in creating municipal corporations, shall restrict their power of taxation over the subjects within their control. These requirements, however, impose an obligation upon the legislature which only its sense of duty can compel it to perform. 3 It is evident that if the legislature fail to enact the restrictive legislation, the courts have no power to compel such action. 1 State v. Charleston, 2 Speers, 623 ; 42 L. ed. U. S. 445.] Without express au- Columbia v. Guest, 3 Head, 413 ; Bangs thority a city cannot tax its own bonds. v. Snow, 1 Mass. 181 ; Clark v. Daven- Macon v. Jones, 67 Ga. 489. Where a city port, 14 Iowa, 494 ; Burlington v. Kellar, has power to issue securities, it has im- 18 Iowa, 59 ; Mays v. Cincinnati, 1 Ohio plied power to tax to meet them, unless St. 268 ; Richmond v. Daniel, 14 Gratt. there is a clear limitation upon its power 385; Simmons v. Wilson, 66 N. C. 336; so to do. Quincy v. Jackson, 113 U. S. Lott v. Ross, 38 Ala. 156 ; Lisbon v. Bath, 332, 5 Sup. Ct. Rep. 544. And, if a city is 21 N. H. 319; Daily v. Swope, 47 Miss, dissolved, the legislature may tax for 367. The same rule applies to laying like purpose, although thus it lays a special assessments. Augusta v. Mur- higher tax than it has the right, under pliey, 79 Ga. 101, 3 S. E. 326; Vaughn ordinary circumstances, to impose. Hare v. Ashland, 71 Wis. 502, 37 N. W. 809. v. Kennerly, 83 Ala. 608, 3 So. 683. [And all conditions precedent which may 2 Foster o. Kenosha, 12 Wis. 616. See have been prescribed by law for the levy ante, p. 312. of special assessments must be strictly 8 In Hill v. Higdon, 5 Ohio St. 243, complied with. They are jurisdictional, 248, Ranney, J., says of this provision : and their omission makes the levy void. " A failure to perform this duty may be Ogden City v. Armstrong, 168 U. S. 224, of very serious import, but lays no foun- 18 Sup. Ct. Rep. 98, aff. 12 Utah, 476, 43 dation for judicial correction." And see Pac. 119. As to equitable relief against Maloy v. Marietta, 11 Ohio St. 636. illegal taxation, see note to this case in 746 CONSTITUTIONAL LIMITATIONS. [CH. XIV. Whether in any case a charter of incorporation could be held void on the ground that it conferred unlimited powers of taxation, is a question that could not well arise, as a charter is probably never granted which does not impose some restrictions ; and where that is the case, it must be inferred that those were all the restrictions the legislature deemed important, and that therefore the constitu- tional duty of the legislature has been performed. 1 When, however, it is said to be essential to valid taxation that 1 Tlie Constitution of Ohio requires the legislature to provide by general laws for the organization of cities and in- corporated villages, and to restrict their power of taxation, assessment, &c. The general law authorizing the expense of grading and paving streets to be assessed on the grounds bounding and abutting on the street, in proportion to the street front, was regarded as being passed in at- tempted fulfilment of the constitutional duty, and therefore valid. The chief re- striction in the case was, that it did not authorize assessment in any other or dif- ferent mode from what had been custom- ary. Northern Indiana R. R. Co. v. Connelly, 10 Ohio St. 159. The statute also provided that no improvement or repair of a street or highway, the cost of which was to be assessed upon the own- ers, should be directed without the con- currence of two-thirds of the members elected to the municipal council, or un- less two-thirds of the owners to be charged should petition in writing there- for. In Maloy v. Marietta, 11 Ohio St. 636, 639, Peck, J., says: "This may be said to be a very imperfect protection ; and in some cases will doubtless prove to be so ; but it is calculated and designed, by the unanimity or the publicity it re- quires, to prevent any flagrant abuses of the power. Such is plainly its object ; and we know of no rights conferred upon courts thus to interfere with the exercise of a legislative discretion which the con- stitution has delegated to the law-making power." And see Weeks v. Milwaukee, 10 Wis. 242. The Constitution of Michi- gan requires the legislature, in providing for the incorporation of cities and villages, to " restrict their power of taxation," &c. The Detroit Metropolitan Police Law made it the duty of the Board of Police to prepare and submit to the city con- troller, on or before the first day of May in each year, an estimate in detail of the cost and expense of maintaining the police department.and the Common Council was required to raise the same by general tax. These provisions, it was claimed, were in conflict with the constitution, because no limit was fixed by them to the estimate that might be made. In People v. Ma- haney, 13 Mich. 481, 498, the court say : " Whether this provision of the constitu- tion can be regarded as mandatory in a sense that would make all charters of municipal corporation and acts relating thereto which are wanting in this limita- tion invalid, we do not feel called upon to decide in this case, since it is clear that a limitation upon taxation is fixed by the act before us. The constitution has not prescribed the character of the restriction which shall be imposed, and from the nature of the case it was impossible to do more than to make it the duty of the legislature to set some bounds to a power so liable to abuse. A provision which, like the one complained of, limits the power of taxation to the actual expenses as estimated by the governing board, after first limiting the power of the board to incur expense within narrow limits, is as much a restriction as if it confined the power to a certain percentage upon tax- able property, or to a sum proportioned to the number of inhabitants in the city. Whether the restriction fixed upon would as effectually guard the citizen against abuse as any other which might have been established was a question for the legislative department of the govern- ment, and does not concern us on this inquiry." QWhere townships are mere adjuncts or branches of county govern- ments, as in Missouri, the township tax rate is a part of the rate to which the county is limited. State v. Mo. P. R. Co., 123 Mo. 72, 27 S. W. 367, 26 L. R. A. 36-3 CH. XIV.] THE POWER OF TAXATION. 747 there be legislative authority for every tax that is laid, it is not meant that the legislative department of the State must have passed upon the necessity and propriety of every particular tax ; but those who assume to seize the property of the citizen for the satisfaction of the tax must be able to show that that particular tax is authorized, either by general or special law. The power inherent in the government to tax lies dormant until a constitu- tional law has been passed calling it into action, and is then vitalized only to the extent provided by the law. Those, there- fore, who act under such a law should be careful to keep within its limits, lest they remove from their acts the shield of its pro- tection. While we do not propose to enter upon any attempt to point out the various cases in which a failure to obey strictly the requirements of the law will render the proceedings void, in regard to which a diversity of decision would be met with, we think we shall be safe in saying that, in cases of this description, which propose to dispossess the citizen of his property against his will, not only will any excess of taxation beyond what the law allows render the proceedings void, but any failure to comply with such requirements of the law as are made for the protection of the owner's interest will also r.ender them void, (a) There are several reported cases in which the taxes levied were slightly in excess of legislative power, and in which it was urged in support of the proceedings, that the law ought not to take notice of such unimportant matters ; but the courts have held that an excess of jurisdiction is never unimportant. In one case in Maine, the excess was eighty-seven cents only in a tax of $225.75, but it was deemed sufficient to render the proceedings void. Said Mellen, Ch. J., delivering the opinion of the court: " It is contended that the sum of eighty-seven cents is such a trifle as to fall within the range of the maxim de minimis, &c. ; but if not, that still this small excess does not vitiate the assess- ment. The maxim is so vague in itself as to form a very unsafe ground of proceeding or judging; and it may be almost as diffi- culty to apply it as a rule in pecuniary concerns as to the interest which a witness has in the event of a cause ; and in such case it cannot apply. Any interest excludes him. The assessment was therefore unauthorized and void. If the line which the legisla- ture has established be once passed, we know of no boundary to (a) [Ogden City v. Armstrong, 168 U. S. 224, 18 Sup. Ct. Rep. 98, aff. 12 Utah, 476, 43 Pac. 119 ; and see many cases cited in note in 42 L. ed. U. S. 445. See Farns- worth Lumber Co., v. Fairley, Miss. , 28 So. 569, (April 30, 1900) for an assess- ment held void for lack of opportunity to taxpayers to object to it, right to object being secured by statute.] 748 CONSTITUTIONAL LIMITATIONS. [CH. XIV. the discretion of the assessors." J The same view has been taken by the Supreme Court of Michigan, by which the opinion is ex- pressed that the maxim de minimis lex non curat should be applied with great caution to proceedings of this character, and that the excess could not be held unimportant and overlooked where, as in that case, each dollar of legal tax was perceptibly increased thereby. 2 Perhaps, however, a slight excess, not the result of intention, but of erroneous calculations, may be over- looked, in view of the great difficulty in making all such calcula- tions mathematically correct, and the consequent impolicy of requiring entire freedom from all errors. 3 What method shall be devised for the collection of a tax, the legislature must determine, subject only to such rules, limitations, and restraints as the constitution of the State may have imposed. 4 Very summary methods are sanctioned by practice and precedent. 5 1 Huse v. Merriam, 2 Me. 375. See Joyner v. School District, 3 Gush. 567 ; Kemper v. Me del Ian fl, 19 Ohio, 308; School District v. Merrills, 12 Conn. 437 ; El well v. Shaw, 1 Me. 339 ; Wells v. Bur- bank, 17 N. H.393; Kinsworthy v. Mitch- ell, 21 Ark. 145. 2 Case v. Dean, 16 Mich. 12. And see Commonwealth v. Savings Bank, 5 Allen, 428 ; Bucknall v. Story, 36 Cal. 67; Drew v. Davis, 10 Vt. 506 ; Wells v. Burbank, 17 N. H. 393 ; Axtell v. Gerlach, 67 Cal. 483, 8 Pac. 34. 8 This was the view taken by the Su- preme Court of Wisconsin in Kelley v. Corson, 8 Wis. 182, where an excess of $8.61 in a tax of $6,654.57 was held not to be fatal ; it appearing not to be the re- sult of intention, and the court thinking that an accidental error no greater than this ought to be disregarded. See also O'Grady v. Barnhisel, 23 Cal. 287 ; State v. Newark, 25 N. J. 399; Harvard v. Day, 62 Miss. 748. In Iowa the statute re- quires a sale to be upheld if any portion of the tax was legal. See Parker v. Sex- ton, 29 Iowa, 421. If a part of a tax only is illegal, the balance will be sustained if capable of being distinguished. O'Kane v. Treat, 25 111. 557; People v. Nichols, 49 111. 517. See State v. Plainfield, 38 N. J. L. 93. QThat unintentional error arising from making an exemption mis- takenly believed to be authorized by law will not vitiate, see McTwiggan v. Hunter, 19 R. I. 265. 33 Atl. 6, 29 L. R. A. 526-3 4 The following methods are resorted to : Suit at law ; arrest of the person taxed, distress of goods, and sale if neces- sary ; detention of goods, in the case of imports, until payment is made ; sale or leasing of land taxed; imposition of pen- alties for non-payment ; forfeiture of prop- erty ; making payment a condition pre- cedent to the exercise of some legal right, such the institution of a suit, or voting at elections, or to the carrying on of a busi- ness ; requiring stamps on papers, docu- ments, manufactured articles, &c. In Prentice v. Weston, 111 N. Y. 460, 18 N. E. 720; it is held not an unwarrantable interference with private property to for- bid cutting of timber on land on which a tax remains unpaid, when the chief value of the land lay in the timber. A village occupation tax cannot be enforced by fine and imprisonment. State v. Green, 27 Neb. 64, 42 N. W. 913. [> case of gross under-assessment, the assessment may be corrected in manner prescribed by law, and the taxes based on such cor- rection collected from the present owner of the property. Weyerhauser v. Minne- sota, 176 U. S. 550, 20 Sup. Ct. Rep. 485, aff. 72 Minn. 519, 75 N. W. 718. Upon reassessment of taxes, see note to 6 L. R. A. 802. Lands may be forfeited to State for non return to assessor, if statute so pro- vides. State v. Sponaugle, 45 W. Va. 415, 32 S. E. 283, 43 L R. A. 727 ] 5 See Henderson's Distilled Spirits, 14 Wall. 44 ; Weimer v. Bunbury, 38 Mich. 201 ; Lydecker v. Palisade Land Co , 33 N. J. Eq. 415 ; Springer v. United States, CH. XIV.] THE POWER OF TAXATION. 749 Wherever a tax is invalid because. of excess of authority, or be- cause the requisites in tax proceedings which the law has pro- vided for the protection of the taxpayer are not complied with, any sale of property based upon it will be void also. The owner is not deprived of his property by " the law of the land," if it is taken to satisfy an illegal tax. And if property is sold for the satisfaction of several taxes, any one of which is unauthorized, or for any reason illegal, the sale is altogether void. 1 And the 102 U. S. 686 ; In re Hackett, 53 Vt, 354 ; Adler v. Whitbeck, 44 Ohio St. 639, 9 N. E. 672 ; ante, 505, note, fj Weyerhauser v. Minnesota, 176 U. S. 550, 20 Sup. Ct. Rep. 485; King v. Mullins, 171 U. S. 404, 18 Sup. Ct. Rep. 925. See notes on power of State to tax, 10 L. ed. U. S. 1022; sale of land for taxes, 4 L. ed. U. S. 518.] 1 This has been repeatedly held. El- well ?.'. Shaw, 1 Me. 339 ; Lacy ?'. Davis, 4 Mich. 140; Bangs v. Snow, 1 Mass. 180; Thurston v. Little, 3 Mass. 42U; Dilling- ham v. Snow, 5 Mass 647 ; Stetson v. Kempton, 13 Mass. 283; Libby v. Burn- ham, 15 Mass. 144; Hayden v. Foster, 13 Pick. 492; Torrey v. Millbury, 21 Pick. 64; Alvord v. Collin, 20 Pick. 418; Drew v. Davis, 10 Vt. 506; Doe v. McQuilkin, 8 Blackf. 335 ; Kemper v. McClelland, 19 Ohio, 308 ; Peterson v. Kittredge, 65 Miss. 33, 3 So. 65, 5 So. 824 ; fJDever v. Corn- well, 10 N. D. 123, 86 N. W. 227 ; Sheets v. Paine, 10 N. D. 103, 86 N. W. 117; Nehasane Park Assn. v. Lloyd, 167 N. Y. 431, 60 N. E. 741.] This is upon the ground that, the sale being based upon both the legal and the illegal tax, it is manifestly impossible afterwards to make the distinction, so that the act shall be partly a trespass and partly innocent. [But see South worth v. Edmands, 152 Mass. 203, 25 N. E. 106, 9 L. R. A. 118.] But when a party asks relief in equity before a sale against the collection of taxes, a part of which are legal, he will be required first to pay that part, or at least to so distinguish it from the rest that process of injunction can be so framed as to leave the legal taxes to be enforced ; and failing in this, his bill will be dismissed. Conway v. Waverley, 15 Mich. 257 ; Palmer v. Napoleon, 16 Mich. 176; Hersey v. Supervisors of Milwau- kee, 16 Wis. 185; Bond v. Kenosha, 17 Wis. 284 ; Myrick v. La Crosse, 17 Wis. 442 ; Roseberry v. Huff, 27 Ind. 12 ; Mont- gomery v. Wasem, 116 Ind. 343, 15 N. E. 796, 19 N. E. 184; Com'rs Allegany Co. v. Union Min. Co., 61 Md. 645; Brown v. School Dist., 12 Oreg. 345, 7 Pac. 357; Gage v. Caraher, 126 111. 447, 17 N. E. 777. Compare Solomon v. Oscoda, 77 Mich. 365, 43 N. W. 990; [Albuquerque Nat. Bank v. Perea, 147 U. S. 87, 13 Sup. Ct. Rep. 194; Altgeld v. San Antonio, 81 Tex. 436, 17 S. W. 75, 13 L. R. A. 383.] As to the character and extent of the irregularities which should defeat the proceedings for the collection of taxes, we could not undertake to speak here. We think the statement in the text, that a failure to comply with any such re- quirements of the law as are made for the protection of the owner's interest will prove fatal to a tax sale, will be found abundantly sustained by the authorities, while many of the cases go still further in making irregularities fatal. It appears to us that where the requirement of the law which has failed of observance was one which had regard simply to the due and orderly conduct of the proceedings, or to the protection of the public interest, as against the officer, so that to the tax- payer it is immaterial whether it was complied witli or not, a failure to comply ought not to be recognized as a founda- tion for complaint by him. But those safeguards which the legislature has thrown around the estates of citizens to protect them against unequal, unjust, and extortionate taxation, the courts are not at liberty to do away with by declaring them non-essential. To hold the require- ment of the law in regard to them direc- tory only, and not mandatory, is in effect to exercise a dispensing power over the laws. Mr. Blackwell, in his treatise on. Tax Titles, has collected the cases on this subject industriously, and perhaps we shall be pardoned for saying also with 750 CONSTITUTIONAL LIMITATIONS. [CH. XIV. general rule is applicable here, that where property is taken under statutory authority in derogation of common right, every requisite of the statute having a semblance of benefit to the owner must be complied with, or the proceeding will be ineffectual. 1 a perceptible leaning against that species of conveyance. As illustrating how far the courts will go, in some cases, to sus- tain irregular taxation, where officers have acted in gooil faith, reference is made to Kelley v. Corson, 11 Wis. 1 ; Her- sey v. Supervisors of Milwaukee, 16 Wis. Ib5. See also Mills v. Gleason, 11 Wis. 470, where the court endeavors to lay down a general rule as to the illegalities which should render a tax roll invalid. A party bound to pay a tax, or any por- tion thereof, cannot get title to the land by neglecting payment and allowing a sale to be made at which he becomes the purchaser. MuMinn v. Whelan, 27 Cal. 300. See Butler v. Porter, 13 Mich. 292 ; Cooley on Taxation, 500 et seq. See on sale of land for taxes, note to 4 L. ed. U. S. 518; injunction to restrain col- lection of tax, when granted, note to 20 L. ed. U. S. 65, and one to 22 L. R. A. 699; recovery of taxes illegally assessed, note to 21 L. ed. U. S. 63 ; tax as cloud on title, Odlin v. Woodruff, 31 Fla. 160, 12 So. 227, 22 L. R. A. 699, and note. Upon when taxes illegally assessed can be recovered back, see note to 21 L. ed. U. S. 63. Upon sale of land for taxes, note to 4 L. ed. U. S. 518. Where lands are forfeited to the State for non-payment of taxes, and are thereafter assessed for taxation in the name of an assumed or non-existent owner, and then sold for non-payment of taxes based upon such assessment, the purchaser gets no valid title. Rich v. Braxton, 158 U. S. 375, 15 Sup. Ct. Rep. 1006. Assessment in name of a dead man is void. Ty. v. Perea, 10 N. M. 362, 62 Pac. 1094; Millaudon v. Gallagher, 104 La. 713, 29 So. 307. But since 1890 as- sessment may be in name of registered owner, whether alive or dead. Owner must see that proper change in registra- tion is made when he comes into the title. Geddes v. Cunningham, 104 La. 306, 29 So. 138. Where land is assessed to holder of legal title and also to holder of equitable title, and latter pays tax assessed, rale for non-payment of tax assessed agiinst former is void. Boggess v. Scott, 48 W. Va. 316, 37 S. E. 661. And where a new map has been made, and the landowner in ignorance thereof reports his lands for assessment under the descriptions of the old map, giving the quantities correctly, and the assessor assumes that the lot-numbers are accord- ing to the new map, and modifies the quantities reported to make them con- form to the new map, and the owner in ignorance of such modification pays all taxes assessed against him, the sale of the plots not covered by the assessor's list is invalid for mistake. Lewis v. Monson, 151 U. S. 645, 14 Sup. Ct. Rep. 424. Sale for unpaid taxes is void if at time tax was due owner appeared before proper officer and offered to pay his tax and did pay all that the officer stated as the amount of tax, although he erro- neously understated it. Gould v. Sulli- van, 84 Wis. 659, 54 N. W. 1013, 20 L. R. A. 487, and note. And redemption is valid if the person redeeming pays all that the proper officer states is due, al- though the officer erroneously states the sum too small. Hintrager v. Mahony, 78 Iowa, 537, 43 N. W. 522, 6 L. R. A. 50, and note. State cannot tax lands belong- ing to United States, and a sale based upon tax levied upon such lands is void. Young v. Charnquist, 114 Iowa, 116, 86 N. W. 205.] 1 See ante, pp. 109-114. Also Newell v. Wheeler, 48 N. Y. 486; Westfall v. Preston, 49 N. Y. 349, 353 ; Stratton v. Collins, 43 N. J. 563; Cooley on Taxa- tion, c. 15. [JSee also Ogden City v. Armstrong, 168 U. S. 224, 18 Sup. Ct. Rep. 98, aff. 12 Utah, 476, 43 Pac. 119; also extensive note upon equitable relief against illegal taxation, 42 L. ed. U. S. 445. Thirty days' publication of notice of sale of lands for taxes is not insufficient to constitute due process of law. Castillo v. McConnico, 168 U. S. 674, 18 Sup. Ct. Rep. 229 ; s. c. 47 La. Ann. 1473, 17 So. 868. Necessity of strict compliance, both in assessment and in subsequent pro- ceedings. Marx v. Hanthorn, 148 U. S. 172, 13 Sup. Ct. Rep. 508, and note to 4 L. CH. XIV.] THE POWER OF TAXATION. 751 ed. U. S. 518; Gage v. Bani, 141 U. S. 344, 12 Sup. Ct. Rep. 22 ; Stout v. Mastin, 139 U. S. 151, 11 Sup. Ct. Rep. 519 ; Mar- tin v. Barbour, 140 U. S. 634, 11 Sup. Ct. Rep. 944 ; Bird v. Benlisa, 142 U. S. 664, 12 Sup. Ct. Rep. 323 ; Smith v. Callanan, 103 Iowa, 218, 72 N. W. 513, 42 L. R. A. 482; Power v. Bowdle, 3 N. D. 107, 54 N. W. 404, 21 L. R. A. 328; Budge v. Grand Forks, 1 N. D. 309, 47 N. W. 390, 10 L. R. A. 165 ; Dever v. Cornwell, 10 N. D. 123, 86 N. W. 227; Tliweatt v. Howard, 68 Ark. 426, 69 S. W. 764 ; State v. Dugan, 105 Tenn. 245, 58 S. W. 259 ; Condon v. Galbraith, 106 Tenn. 14, 58 S. W. 916; Olson v. Phillips, 80 Minn. 339, 83 N. W. 189. Absence of " $ " before number in- tended to show amount of tax is fatal. Russell v. Chittenden, 123 Mich. 546, 82 N. W. 204; Norris v. Hall, 124 Mich. 170, 82 N. W. 832.] It should be stated that in Iowa, under legislation favorable to tax titles, the courts go further in sustaining them than in perhaps any other State. Reference is made to the following cases : Eldridge v. Keuhl, 27 Iowa, 160 ; McCready v. Sex- ton, 29 Iowa, 356; Hurley v. Powell, 31 Iowa, 64; Rima v. Cowan, 31 Iowa, 125; Thomas v. Stickle, 32 Iowa, 71 ; Hender- son v. Oliver, 32 Iowa, 512; Bulkley v. Callanan, 32 Iowa, 461 ; Ware v. Little, 35 Iowa, 234 ; Jeffrey v. Brokaw, 35 Iowa, 505; Genther v. Fuller, 36 Iowa, 604; Leavitt v. Watson, 37 Iowa, 93; Phelps v. Meade, 41 Iowa, 470. It may be use- ful to compare these cases with Kimball v. Rosendale, 42 Wis. 407, and Silsbee v. Stockle, 44 Mich. 561, 7 N. W. 160, 367. "52 CONSTITUTIONAL LIMITATIONS. [CH. XV. CHAPTER XV. THE EMINENT DOMAIN. EVERY sovereignty possesses buildings, lands, and other prop- erty, which it holds for the use of its officers and agents, to enable them to perform their public functions. It may also have prop- erty from the rents, issues, and profits, or perhaps the sale, of which it is expected the State will derive a revenue. Such prop- erty constitutes the ordinary domain of the State. In respect to its use, enjoyment, and alienation, the same principles apply which govern the management and control of like property of individuals ; and the State is in fact but an individual proprietor, whose title and rights are to be tested, regulated, and governed by the same rules that would have pertained to the ownership of the same property by any of its citizens. There are also cases in which property is peculiarly devoted to the general use and enjoy- ment of the individual citizens who compose the organized society, but the regulation and control of which are vested in the State by virtue of its sovereignty. The State may be the proprietor of this property, and retain it for the common use, as a means of contributing to the general health, comfort, or happiness of the people ; but generally it is not strictly the owner, but rather the governing and supervisory trustee of the public rights in such property, vested with the power and. charged with the duty of so regulating, protecting, and controlling them, as to secure to each citizen the privilege to make them available for his purposes, so far as may be consistent with an equal enjoyment by every other citizen of the same privilege. 1 In some instances these rights are 1 In The Company of Free Fishers, rights of fishery in this country, see Car- fee, v. Gann, 20 C. B. N. s. 1, it was held son v. Blazer, 2 Binn. 476, 4 Am. that the ownership of the Crown in the Dec. 463; Commonwealth v. Chapin, 5 bed of navigable waters is for the bene- Pick. 199, 16 Am. Dec. 386 ; Parker fit of the subject, and cannot be used in v. Milldam Co., 20 Me. 353, 37 Am. any such manner as to derogate from or Dec. 66 ; Parsons v. Clark, 76 Me. 476 ; interfere with the right of navigation, Commonwealths. Look, 108 Mass. 462; which belongs by law to all the subjects Cole v. Eastham, 133 Mass. 65; Packard of the realm. And that consequently the v. Ryder, 144 Mass. 440, 11 N. E. 678; grantees of a particular portion, who oc- Sloan v. Biemiller, 34 Ohio St. 472 ; Lin- cupied it for a fishery, could not be law- coin v. Davis, 63 Mich. 376, 19 N. W. 103 ; fully authorized to charge and collect Angell on Watercourses, 56 a, and cases anchorage dues from vessels anchoring cited ; Cooley on Torts, 388-390. therein. As regards public and exclusive CH. XV.] THE EMINENT DOMAIN. 753 of such a nature, or the circumstances are such, that the most feasible mode of enabling every citizen to participate therein may seem to be for the State to transfer its control, wholly or partially, to individuals, either receiving by way of augmentation of the public revenues a compensation therefor, or securing in return a release to the citizens generally from some tax or charge which would have rested upon them in respect to such rights, had the State retained the usual control in its own hands, and borne the incidental burdens. The rights of which we here speak are considered as pertaining to the State by virtue of an authority existing in every sovereignty, and which is called the eminent domain. Some of these are com- plete without any action on the part of the State ; as is the case with the rights of navigation in its seas, lakes, and public rivers, the rights of fishery in public waters, and the right of the State to the precious metals which may be mined within its limits. 1 Others only become complete and are rendered effectual through the State displacing, either partially or wholly, the rights of private owner- ship and control ; and this it accomplishes either by contract with the owner, by accepting his gift, or by appropriating his property against his will through an exercise of its superior authority. Of these, the common highway furnishes an example ; the public rights therein being acquired either by the grant or dedication of the owner of the land over which they run, or by a species of forcible dispossession when the public necessity demands the way, and the private owner will neither give nor sell it. All these rights rest upon a principle which in every sovereignty is essential to its ex- istence and perpetuity, and which, so far as when called into ac- tion it excludes pre-existing individual rights, is sometimes spoken of as being based upon an implied reservation by the government when its citizens acquire property from it or under its protection, (a) And as there is not often occasion to speak of the eminent domain except in reference to those cases in which the government is called upon to appropriate property against the will of the owners, the right itself is generally defined as if it were restricted to such cases, and is said to be that superior right of property pertaining to the sovereignty by which the private property acquired by its citizens under its protection may be taken or its use controlled for 1 1 Bl. Com. 294 ; 3 Kent, 378, note, carries with it to the grantee the title to In California, it has been decided that a all mines. Boggs v. Merced, &c. Co., 14 grant of public lands by the government Cal. 279 ; Moore v. Smaw, 17 Cal. 199. (a) The right of eminent domain does not depend upon the Constitution, but exists independent of it, it is inherent in sovereignty. Steaines v. Barre, 73 Vt. 281, 60 Atl. 1086, 87 Am. St. 721.] 48 754 CONSTITUTIONAL LIMITATIONS. [CH. XV. the public benefit without regard to the wishes of its owners. More accurately, it is the rightful authority, which exists in every sovereignty, to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may demand. 1 When the existence of a particular power in the government is recognized on the ground of necessity, no delegation of the legisla- tive power by the people can be held to vest authority in the de- partment which holds it in trust, to bargain away such power, or 1 Vattel, c. 20, 34; Bynkershoek, lib. 2, c. 15; Ang. on Watercourses, 457 ; 2 Kent, 338-340 ; Redf. on Railw. c. 11, 1 ; Waples, Pro. in Rem, 242. " The right which belongs to the society or to the sovereign of disposing, in case of necessity, and for the public safety, of all the wealth contained in the State, is called the eminent domain." McKinley, J., in Pollard's Lessee v. Hagan, 3 How. 212, 223. "Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the ag- gregate body of the people in their sov- ereign capacity ; and they have a right to resume the possession of the property, in the manner directed by the constitu- tion and laws of the State, whenever the public interest requires it. This right of resumption may be exercised, not only where the safety, but also where the in- terest, or even the expediency of the State is concerned: as where the land of the individual is wanted for a road, canal, or other public improvement." Walworth, Chancellor, in Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 45, 73, 22 Am. Dec. 679. The right is inherent in all governments, and requires no constitutional provision to give it force. Brown v. Beatty, 34 Miss. 227 ; Taylor v. Porter, 4 Hill, 140 ; Lake Shore, &c. R. R. Co. v. Chicago, &c., R. R. Co., 97 111. 506, 2 Am. & Eng. R. R. Cas. 440; United States v. Jones, 109 U. S. 513, 3 Sup. Ct. Rep. 346. " Title to property is always held upon the implied condition that it must be surrendered to the govern- ment, either in whole or in part, when the public necessities, evidenced according to the established forms of law, demand." Hogeboom, J., in People v. Mayor, &c. of New York, 32 Barb. 102, 112. And see Hey ward v. Mayor, &c. of New York, 7 N. Y. 314; Water Works Co. v. Burk- hart, 41 Ind. 364 ; Weir v. St. Paul, &c. R. R. Co., 18 Minn. 155. That one exer- cise of the power of appropriation will not preclude others for the same purpose, see Central Branch U. P. R. R. Co. v. Atchi- son, &c., R. R. Co., 26 Kan. 669, 5 A. & E. R. R. Cas. 397, and cases in note ; Peck v. Louisville, &c. Ry. Co., 101 Ind. 366 ; Dietrichs v. Lincoln, &c. R. R. Co., 13 Neb. 361, 13 N. W. 624. But when a bridge company has once located its line of approach and begins work, it cannot change it without legislative authority. Matter of Poughkeepsie Bridge Co., 108 N. Y. 483, 15 N. E. 601. The constitu- tional prohibition against the taking of private property for public use without compensation is self-enforcing, and equity may enjoin the damaging of such prop- erty though the legislature has provided no method of determining compensation. Kansas City, St. J. & C. B. Ry. Co. v. Terminal Ry. Co., 97 Mo. 457, 10 S. W. 826, 3 L. R. A. 240; Hickman v. Kansas City, 120 Mo. 110, 25 S. W. 225, 22 L. R. A. 658, 41 Am. St. 684 ; Searle v. Lead, 10 S. D. 312, 73 N. W. 101, 39 L. R. A. 345. A taking under the police power is not in exercise of the power of eminent domain. State v. Schlemmer, 42 La. Ann. 1166, 8 So. 307, 10 L. R. A. 135. See Ruch v. City of New Orleans, 43 La. Ann. 275, 9 So 473; Peart v. Meeker, 45 La. Ann. 421, 12 So. 490; Sweet v. Rechel, 37 Fed. Rep. 323 ; Id. 159 U. S. 380, 16 Sup. Ct. Rep. 43; State v. Griffin, 69 N. H. 1, 39 All. 260, 41 L. R. A. 177. So in case of destruction of mill and mill dam to avoid damage to highway and other property. Aitken v. Wells River, 70 Vt. 308, 40 Atl. 829, 67 Am. St. 672, 41 L. R. A. 566-3 CH. XV.] THE EMINENT DOMAIN. 755 to so tie up the hands of the government as to preclude its re- peated exercise, as often and under such circumstances as the needs of the government may require. For if this were otherwise, the authority to make laws for the government and welfare of the State might be so exercised, in strict conformity with its constitu- tion, as at length to preclude the State performing its ordinary and essential functions, and the agent chosen to govern the State might put an end to the State itself. It must follow that any legislative bargain in restraint of the complete, continuous, and repeated ex- ercise of the right of eminent domain is unwarranted and void; and that provision of the Constitution of the United States which forbids the States violating the obligation of contracts could not be so construed as to render valid and effectual such a bargain, which originally was in excess of proper authority, (a) Upon this subject we shall content ourselves with referring in this place to what has been said in another connection. 1 As under the peculiar American system the protection and regulation of private rights, privileges, and immunities in general belong to the State governments, and those governments are ex- pected to make provision for the conveniences and necessities which are usually provided for their citizens through the exer- cise of the right of eminent domain, the right itself, it would seem, must pertain to those governments also, rather than to the government of the nation ; and such has been the conclusion of the authorities. In the new Territories, however, where the govern- ment of the United States exercises sovereign authority, it pos- sesses, as incident thereto, the right of eminent domain, which it may exercise directly or through the territorial governments; but this right passes from the nation to the newly formed State whenever the latter is admitted into the Union. 2 So far, however, 1 See ante, p. 396. Federal Government only. Withers v. 2 Pollard's Lessee v. Hagan, 3 How. Buckley, 20 How. 84.] Although it has 212 ; Goodtitle v. Kibbee, 9 How. 471 ; been held in some cases that the States Doe v. Beebe, 13 How. 25; United States have authority, under the eminent do- v. The Railroad Bridge Co., 6 McLean, main, to appropriate the property of 617 ; Weber v. Harbor Commissioners, individuals in order to donate it to the 18 Wall. 57 ; Swan . Williams, 2 Mich, general government for national pur- 427 ; Warren v. St. Paul, &c. R. R. Co., poses : Reddall v. Bryan, 14 Md. 444 ; 18 Minn. 384. [Article V. of the amend- Gilmer v. Lime Point, 18 Cal. 229; Burt ments to the Federal constitution provid- v. Merchants' Ins. Co., 106 Mass. 356, and ing among other things that private Cummings v. Ash, 60 N. H. 591 ; ^Lancey property shall not be taken for public v. King County, 15 Wash. 9, 46 Pac. 645, use without just compensation is not 34 L R. A. 817,] the contrary is now applicable to a taking by a State or its determined. See Trombley v. Auditor- authority, but is a limitation on the General, 23 Mich. 471; Kohl v. United (a) CWoodmere Cemetery v. Roulo, 104 Mich. 695 [599]. 62 N. W. 1010; Lock Haven Bridge Co. v. Clinton County, 157 Pa. St. 379, 27 Atl. 726.] 756 CONSTITUTIONAL LIMITATIONS. [CH. XV. as the general government may deem it important to appropriate lands or other property for its own purposes, and to enable it to perform its functions, as must sometimes be necessary in the case of forts, light-houses, military posts or roads, and other con- veniences and necessities of government, the general govern- ment may still exercise the authority, as well within the States as within the territory under its exclusive jurisdiction, and its right to do so may be supported by the same reasons which support the right in any case ; that is to say, the absolute necessity that the means in the government for performing its functions and perpetu- ating its existence should not be liable to be controlled or defeated by the want of consent of private parties, or of any other au- thority. 1 What Property is subject to the Right. Every species of property which the public needs may require and which government cannot lawfully appropriate under any other right, is subject to be seized and appropriated under the right of eminent domain. 2 Lands for the public ways ; timber, stone, and gravel with which to make or improve the public ways ; 3 buildings standing in the way of contemplated improve- States, 91 U. S. 367. Such an authority in the States is needless, for the power of the general government is ample for all needs. But a statute is valid which grants to the United States the right to in- stitute condemnation proceedings. Mat- ter of Petition of United States, 96 N. Y. 227. [General government may exercise the eminent domain either in the territo- ries or in the States for the execution of powers granted to it. Cherokee Nation v. South Kansas Ry. Co., 135 U. S. 641, 10 Sup. Ct. Rep. 965, 33 Fed. Rep. 900. The United States may exercise the right of eminent domain in the interest of in- ter-state commerce. Monongahela Navi- gation Co. v. United States, 148 U. S. 312, 13 Sup. Ct. Rep. 622 ; in the District of Columbia, Shoemaker v. United States, 147 U. S. 282, 13 Sup. Ct. Rep. 361 ; for the preservation of the battlefield of Gettysburg, U. S. v. Gettysburg Elec. Ry. Co., 160 U. S. 668, 16 Sup. Ct. Rep. 427 ; see also Luxton v. North River Bridge Co , 153 U. S. 525, 14 Sup. Ct. Rep. 891.] 1 Kohl v. United States, 91 U. S. 367; Trombley v. Auditor-General, 23 Mich. 471 ; Darlington v. United States, 82 Pa. St. 382. The United States may delegate to a State tribunal the power to ascertain the compensation to be paid. United States v. Jones, 109 U. S. 513, 3 Sup. Ct. Rep. 346. 2 People v. Mayor, &c. of New York, 32 Barb. 102; Bailey v. Miltenberger, 31 Pa. St. 37. [Authority to condemn does not authorize condemnation of lands of State unless so expressed. Seattle & M. Ry. Co. v. State, 7 Wash. 150, 34 Pac. 551, 38 Am. St. 866, 22 L. R. A. 217-3 Land belonging to, but not in actual use by a State university, may be condemned. In re St. Paul & N. P. Ry. Co., 34 Minn. 227, 25 N. W. 345. [Water from natural watercourse for irrigation : McGhee Irr. Ditch Co. v. Hudson, 85 Tex. 587, 22 S. W. 398, 967 ; property of church : Macon and A. Ry. Co. v. Riggs, 87 Ga. 158, 13 S. E. 312; homestead: Jockheck v. Shawnee Co. Com'rs, 53 Kan. 780, 37 Pac. 621 ; works and franchise of a water company : Brooklyn v. Long Island Water Supply Co., 143 N. Y. 596, 38 N. E. 983, 26 L. R. A. 270; aff. 166 U. S. 685, 17 Sup. Ct. Rep. 718J 8 Wheelock v. Young, 4 Wend. 647 ; Lyon v. Jerome, 15 Wend. 569 ; Jerome v. Ross, 7 Johns. Ch. 315, 11 Am. Dec. CH. XV.] THE EMINENT DOMAIN. 757 ments, or which for any other reason it becomes necessary to take, remove, or destroy for the public good; 1 streams of water; 2 cor- porate franchises; 3 and generally, it may be said, legal and equi- 484; Bliss v. Hosmer, 15 Ohio, 44; Wat- kins v. Walker Co., 18 Tex. 685. In Eldridge v. Smith, 34 Vt. 484, it was held competent for a railroad company to ap- propriate lands for piling the wood and lumber used on the road, and brought to it to be transported thereon. i Wells v. Somerset, &c. R. R. Co., 47 Me. 345. So of a pier. Matter of Union Ferry Co., 98 N. Y. 139. But the de- struction of a private house during a fire to prevent the spreading of a conflagra- tion has been held not to be an appropri- ation under the right of eminent domain, but an exercise of the police power. " The destruction of this property was authorized by the law of overruling necessity ; it was the exercise of a natural right belonging to every individual, not conferred by law, but tacitly accepted from all human codes." Per Sherman, Senator, in Russell v. Mayor, &c. of New York, 2 Demo, 461, 473. See also So- rocco v. Geary, 3 Cal. 69; Conwell v. Emrie, 2 Ind. 35 ; American Print Works r. Lawrence, 21 N. J. 248 ; Same v. Same, 23 N. J. 9, 590 ; McDonald v. Redwing, 13 Minn. 38 ; Field v. Des Moines, 39 Iowa, 675. The municipal corporation whose officers order the destruction is not liable forthe damages unless expres9, 16 Sup. Ct. Rep. 397. Lands L. R. A. 303. Cannot condemn lands for for militia encampment: States. Heppen- supply pipe line to convey water to city heimer, 54 N. J. L. 268, 23 Atl. 664. until city has authorized owners of pipe Lands for cemetery though to be owned line to supply public with water. Wis- by private persons, if right of burial consin Water Co. v. Winans, 85 Wis. 26, common to public. Stannard's Corners 64 N. W. 1003, 20 L. R. A. 662. Drain- Rural Cem. Assn., v. Brandes, 14 Misc. ing of agricultural lands across the lands (N. Y.) 270; Farneman v. Mt. Pleasant of others, under the provisions of New Cem. Assn., 135 Ind. 344, 35 N. E. 271 ; York statutes and constitution is a tak- Matter of Board of Street Opening, 133 ing of private property for private use N. Y. 329, 31 N. E. 316, 28 Am. St. 640. and in violation of the fourteenth amend- Condemnation in interest of public health ment to the federal constitution. Peti- is for public purpose. Van Reipen v. tion of Tuthill, 163 N. Y. 133, 57 N. E. City of Jersey City, 58 N. J. L. 262, 33 303, 49 L. R. A. 781/] CH. XV.] THE EMINENT DOMAIN. 769 to those matters of public necessity, convenience, or welfare, which, on account of their peculiar character, and the difficulty perhaps impossibility of making provision for them otherwise, it is alike proper, useful, and needful for the government to provide. Every government is expected to make provision for the public ways, and for this purpose it may seize and appropriate lands. And as the wants of traffic and travel require facilities beyond those afforded by the common highway, over which any one may pass with his own vehicles, the government may establish the higher grade of highways, upon some of which only its own vehicles can be allowed to run, while others, differently con- structed, shall be open to use by all on payment of toll. The common highway is kept in repair by assessments of labor and money ; the tolls paid upon turnpikes, or the fares on railways, are the equivalents to these assessments ; and when these im- proved ways are required by law to be kept open for use by the public impartially, they also may properly be called highways, and the use to which land for their construction is put be denomi- nated a public use. The government also provides court-houses for the administration of justice ; buildings for its seminaries of instruction; 1 aqueducts to convey pure and wholesome water into large towns ; 2 it builds levees to prevent the country being overflowed by the rising streams; 3 it may cause drains to be 1 Williams v. School District, 33 Vt. v. Green Bay and M. Canal Co., 142 U. S. 271. See Hooper v. Bridgewater, 102 254, 12 Sup. Ct. Rep. 173. State cannot Mass. 612 ; Longw. Fuller, 68 Pa. 170. condemn to create water power for sole 2 Reddall v. Bryan, 14 Md. 444 ; Kane purpose of leasing for manufacturing v. Baltimore, 15 Md. 240; Gardner v. purposes though may lease surplus power Newburg, 2 Johns. Ch. 162, 7 Am. Dec. where condemnation primarily for public 626; Ham v. Salem, 100 Mass. 350; Bur- use, Id, Obstruction to use of landing of den v. Stein, 27 Ala. 104 ; Riche v. Bar riparian owner incidental to act of gov- Harbor Water Co., 75 Me. 91 ; Olmsted ernment in improving navigation without v. Prop'rs Morris Aqueduct, 46 N. J. L. actual taking, contact with or flowing 495; Lake Pleasanton W. Co. v. Contra of the lands does not give right to com- Costa W. Co., 67 Cal. 659, 8 Pac. 601. pensation. Gibson v. United States, 166 Where land was to be taken for a canal, U. S. 269, 17 Sup. Ct. Rep. 678. State and it was set forth that "the uses for may authorize condemnation of water which said water is intended and designed supply sj'stem by a city for its use. are mining, irrigation, manufacturing, Long Island Water Supply Co. v. City of and household and domestic purposes," Brooklyn, 166 U. S. 685, 17 Sup. Ct. Rep. it was held a sufficient statement of pub- 718. Fact that such company has a con- lie uses. Cummings v. Peters, 56 Cal. tract with the city to supply : t water will 693. A canal to bring logs and water to not defeat such condemnation ; a contract a city is for a public purpose. Dalles may be condemned like other property. Lumbering Co. v. Urquhart, 16 Oreg. 57, ld.~^ 19 Pac. 78. CA taking for the improve- 8 Mitlioff v. Carrollton, 12 La. Ann. ment of the navigation of a river is for a 185; Cash v. Whitworth, 13 La. Ann. 401; public use. Kaukauna Water Power Co. Inge v. Police Jury, 14 La. Ann. 117. 49 770 CONSTITUTIONAL LIMITATIONS. [CH. XV. stagnant constructed to relieve swamps and marshes of their water ; 1 and other measures of general utility, in which the public at large are interested, and which require the appropriation of private property, are also within the power, where they fall within the reasons underlying the cases mentioned. 2 1 Anderson v. Kerns Draining Co., 14 Ind. 199 ; Reeves v. Treasurer of Wood County, 8 Ohio St. 333. See a clear statement of the general principle and its necessity in the last mentioned case. The drains, however, which can be authorized to be cut across the land of unwilling parties, or for which individuals can be taxed, must not be mere private drains, but must have reference to the public health, convenience, or welfare. Reeves v. Treasurer, &c., supra. And see People v. Nearing, 27 N. Y. 306. QMay con- demn for drainage to abate nuisance. Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. Rep. 43. Term "sanitary" does not in- dicate public purpose. In re Theresa Drainage District, 90 Wis. 301, 63 N. W. 2^8; and see Poundstone v. Baldwin, 145 Ind. 139, 44 N. E. 191.J It is said in a New Jersey case that an act for the drain- age of a large quantity of land, which in its present condition is not only worth- less for cultivation but unfit for residence, and for an assessment of the cost by benefits, is for a purpose sufficiently pub- lic to justify an exercise of the right of em- inent domain. Matter of Drainage of Lands, 35 N. J. 497. It is competent under the eminent domain to appropriate and re- move a dam owned by private parties, in order to reclaim a considerable body of lands flowed by means of it, paying the owner of the dam its value. Talbot v. Hudson, 10 Gray, 417. See the valuable note to Beekman v. Railroad Co., 22 Am. Dec. 686, where the authorities as to what is a public use are collated. 2 Such, for instance, as the construc- tion of a public park, which in large cities is as much a matter of public util- ity as a railway, or a supply of pure water. See Matter of Central Park Ex- tension, 16 Abb. Pr. Rep. 56 ; Owners of Ground v. Mayor, &c., of Albany, 15 Wend. 374 ; Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70; County Court v. Griswold, 58 Mo. 175. The legislature may authorize land to be taken by an exposition company. Rees* App., 12 Atl. 427. Or by a boom com- pany for the purposes of a boom. Pat- terson v. Mississippi, &c., Boom Co., 3 Dill. 465. Or for the purposes of a tele- graph line. Turnpike Co. v. News Co., 43 N. J. 381 ; New Orleans R. R. Co. v. Southern Tel. Co., 53 Ala. 211 ; Pierce v. Drew, 136 Mass. 75. Or sewers in cities. Hildreth v. Lowell, 11 Gray, 345. Or for a market. RK Cooper, 28 Hun, 515. A city may be authorized to appropriate lands in order to fill them up, and thereby abate a nuisance upon them. Dingley v. Boston, 100 Mass. 544. But it may not appropriate a wharf to lease it to a pri- vate corporation. Belcher Sugar Refin- ing Co. v. St. Louis Elev. Co., 82 Mo. 121. A private corporation may be empowered to exercise the right of eminent domain to obtain a way along which to lay pipe for the transportation of oil to a railroad or navigable water. West Va. .Trans- portation Co. v. Volcanic Oil & Coal Co., 6 W. Va. 382. It is held in Evergreen Cemetery v. New Haven, 43 Conn. 234 ; Edgecombe v. Burlington, 46 Vt. 218, and Balch v. Commissioners. 103 Mass. 106 ; [JFarneman v. Mt. Pleasant Cem. Assn., 135 Ind. 344, 35 N. E. 271 ; Westfield Cem. Assn. v. Danielson, 62 Conn. 319, 26 Atl. 345; Stannard's Corners Rural Cem. Assn. v. Brandes, 14 Misc. (N. Y.) 270.] that lands may be appropriated under this power for a cemetery ; but in Matter of Deansville Cemetery Associa- tion, 66 N. Y. 569, it is decided that this cannot be done for the exclusive use of a private corporation. QBoard of Health v. Van Hoesen, 87 Mich. 533, 49 N. W. 894, and cases cited. These cases seem to proceed upon the theory that the right of burial is not common, but only at the will of the corporation owning.] Land may not be taken for a private warehouse and dock company : Matter of Eureka Basin, &c. Co., 96 N. Y. 42; nor for a railroad along the bottom of the Niagara Cliffs. Matter of Niagara Falls & W. Ry. Co., 108 N. Y. 375, 15 N. E. 429. The development of mines has been CH. XV.] THE EMINENT DOMAIN. 771 Whether the power of eminent domain can rightfully be exer- cised in the condemnation of lands for manufacturing purposes where the manufactories are to be owned, and occupied by indi- viduals is a question upon which the authorities are at variance. Saw-mills, grist-mills, and various other manufactories are cer- tainly a public necessity ; and while the country is new, and capi- tal not easily attainable for their erection, it sometimes seems to be essential that government should offer large inducements to par- ties who will supply this necessity. Before steam came into use, water was almost the sole reliance for motive power ; and as reser- voirs were generally necessary for this purpose, it would some- times happen that the owner of a valuable mill site was unable to render it available, because the owners of lands which must be flowed to obtain a reservoir would neither consent to the construc- tion of a dam, nor sell their lands except at extravagant and in- admissible prices. The legislatures in some of the States have taken the matter in hand, and have surmounted the difficulty, sometimes by authorizing the land to be appropriated, and at other times by permitting the erection of the dam, but requiring the mill- owner to pay annually to the proprietor of the land the damages caused by the flowing, to be assessed in some impartial mode. 1 The reasons for such statutes have been growing weaker with the introduction of steam power and the progress of improvement, but their validity has repeatedly been recognized in some of the States, and probably the same courts would continue still to recognize it, notwithstanding the public necessity may no longer appear to de- mand such laws. 2 The rights granted by these laws to mill-owners are said by Chief Justice Shaw, of Massachusetts, to be " granted for the better use of the water power, upon considerations of public policy and the general good ; " 3 and in this view, and in order to render available a valuable property which might otherwise be made of little use by narrow, selfish, and unfriendly conduct on the part of individuals, such laws may perhaps be sustained on the same grounds which support an' exercise of the right of eminent held such a matter of public interest as 2 " The encouragement of mills has would justify an exercise of the eminent always been a favorite object with the domain. Hand Gold Mining Co. v. legislature ; and though the reasons for it Packer, 59 Ga. 419; Dayton Mining Co. may have ceased, the favor of the legis- v. Seawell, 11 Nev. 394. But see Salt lature continues." Wolcott Woollen Company v. Brown, 7 W. Va. 191 ; Con- Manufacturing Co. v. Upliam, 5 Pick, solidated Channel Co. v. Railroad Co., 51 292, 294. The practice in Michigan has Cal. 261 ; Edgewood R. R. Co.'s Appeal, been different. See Ryerson v. Brown, 79 Pa. St. 257. 85 Mich. 333, 24 Am. Rep. 564. 1 See Angell on Watercourses, c. 12, 8 French v. Braintree Manufacturing for references to the statutes on this Co., 23 Pick. 216, 220. subject. 772 CONSTITUTIONAL LIMITATIONS. [CH. XV. domain to protect, drain, and render valuable the lands which, by the overflow of a river, might otherwise be an extensive and worthless swamp. 1 1 Action on the case for raising a dam across the Merrimae River, by which a mill stream emptying into that river, above the site of said dam, was set back and overflowed, and a mill of the plaintiff situated thereon, and the mill privilege, were damaged and destroyed. Demurrer to the declaration. The defendant com- pany were chartered for the purpose of constructing a dam across the Merrimae River, ami constructing one or more locks and canals, in connection with said dam, to remove obstructions in said river by falls and rapids, and to create a water power to be used for mechanical and manufacturing purposes. The defend- ants claimed that they were justified in what they had done, by an act of the leg- islature exercising the sovereign power of the State, in the right of eminent do- main ; that the plaintiffs property in the mill and mill privilege was taken and ap- propriated under this right ; and that his remedy was by a claim of damages under the act, and not by action at common law as for a wrongful and unwarrantable encroachment upon his right of property. Shaw, Ch. J. : " It is then contended that if this act was intended to authorize the defendant company to take the mill power and mill of the plaintiff, it was void be- cause it was not taken for public use, and it was not within the power of the gov- ernment in the exercise of the right of eminent domain. This is the main ques- tion. In determining it we must look to the declared purposes of the act ; and if a public use is declared, it will be so held, unless it manifestly appears by the pro- visions of the act that they can have no tendency to advance and promote such public use. The declared purposes are to improve the navigation of the Merri- mae River, and to create a large mill power for mechanical and manufacturing purposes. In general, whether a particu- lar structure, as a bridge, or a lock, or canal, or road, is for the public use, is a question for the legislature, and which may be presumed to have been correctly decided by them. Commonwealth v. Breed, 4 Pick. 460. That the improve- ment of the navigation of a river is done for the public use has been too frequently decided and acted upon to require au- thorities. Anil so to create a wholly artificial navigation by canals. The establishment of a great mill power for manufacturing purposes, as an object of great public interest, especially since manufacturing has come to he one of the great public industrial pursuits of the Commonwealth, seems to have been re- garded by the legislature, and sanctioned by the jurisprudence of the Common- wealth, and in our judgment rightly so, in determining what is a public use, jus- tifying the exercise of right of eminent domain. See St. 1825, c. 148, incorporat- ing the Salem Mill Dam Corporation ; Boston & Roxbury Mill Dam Corpora- tion v. Newman, 12 Pick. 467. The acts since passed, and the cases since decided on this ground, are very numerous. That the erection of this dam would have a strong and direct tendency to advance both these public objects, there is no doubt. We are therefore of opinion that the powers conferred on the corporation by this act were so done within the scope of the authority of the legislature, and were not in violation of the Constitution of the Commonwealth." Hazen v. Essex Company, 12 Cush. 475, 477. See also Boston & Roxbury Mill Corporation v. Newman, 12 Pick. 467 ; Fiske v. Framing- ham Manufacturing Co., 12 Pick. 67 ; Harding o. Goodlett, 3 Yerg. 41, 24 Am. Dec. 546. The courts of Wisconsin have sustained such laws. Newcomer. Smith, 1 Chand. 71 ; Thien v. Voegtlander, 3 Wis. 461 ; Pratt v. Brown, 3 Wis. 603. But with some hesitation in la ter cases. See Fisher v. Horricon Co., 10 Wis. 351 ; Curtis v. Whipple, 24 Wis. 350. And see the note of Judge Redjield to Allen v. Inhabitants of Jay, Law Reg., Aug. 1873, p. 493. And those of Connecticut. Olmstead v. Camp, 33 Conn. 532. And of Maine. Jordan v. Woodward, 40 Me. 317. And of Minnesota. Miller v. Troost, 14 Minn. 365. And of Kansas. Venard v. Cross, 8 Kan. 248; Harding v. Funk, 8 Kan. 315. And of Indiana. Hankins v. Law- rence, 8 Blackf. 266. And they have been enforced elsewhere without question. CH. XV.] THE EMINENT DOMAIN. 773 On the other hand, it is said that the legislature of New York has never exercised the right of eminent domain in favor of mills of any kind, and that " sites for steam-engines, hotels, churches, and other public conveniences might as well be taken by the exer- cise of this extraordinary power." l Similar views have been taken by the Supreme Courts of Alabama and Michigan. 2 It is quite possible that, in any State in which this question would be entirely a new one, and where it would not be embarrassed by long acqui- escence, or by either judicial or legislative precedents, it might be held that these laws are not sound in principle, and that there is no such necessity, and consequently no such imperative reasons of public policy, as would be essential to support an exercise of the right of eminent domain. 3 But accepting as correct the de- cisions which have been made, it must be conceded that the term " public use," as employed in the law of eminent domain, has a meaning much controlled by the necessity, and somewhat different from that which it bears generally. 4 Burgess v. Clark, 13 Ired. 109 ; McAfee's Heirs v. Kennedy, 1 Lit. 92; Smith v. Connelly, 1 T. B. Monr. 58 ; Shackleford v. Coffey, 4 J. J. Marsh. 40 ; Crenshaw v. Slate River Co., 6 Rand. '245; Gammel r. Potter, 6 Iowa, 548. The whole subject was very fully considered, and the valid- ity of such legislation affirmed, in Great Falls Manuf. Co. . Fernald, 47 N. H. 444. And see Ash v. Cummings, 50 N. H. 591. In Head v. Amoskeag Co., 113 U. S. 9, 5 Sup. Ct. Rep. 441, such an act was upheld as a regulation of the manner in which the rights of proprietors adjacent to a stream may be enjoyed. In Lough- bridge v. Harris, 42 Ga. 500, an act for the condemnation of land for a grist-mill was held unconstitutional, though the tolls were regulated, and discrimination forbidden. In Newell v. Smith, 15 Wis. 101, it was held not constitutional to au- thorize the appropriation of the property, and leave the owner no remedy except to subsequently recover its value in an action of trespass. 1 Hay v. Cohoes Company, 3 Barb. 47. Ryerson v. Brown, 35 Mich. 333, 24 Am. Rep. 564 ; Saddler v. Langham, 34 Ala. 3.11. In this last case, however, it was assumed that lands for the purposes of grist-mills which grind for toll, and were required to serve the public impartially, might, under proper legislation, be taken under the right of eminent domain. The case of Loughbridge v. Harris, 42 Ga. 500, is contra. In Tyler v. Beacher, 44 Vt. 648, 8 Am. Rep. 398, it was held not com- petent, where the mills were subject to no such requirement. See the case, 8 Am. Rep. 398. And see nole by Redjield, Am. Law Reg., Aug., 1873, p. 493. 8 See this subject in general discussed in a review of Angell on Watercourses, 2 Am. Jurist, p. 25. 4 In People v. Township Board of Salem, 20 Mich. 452, the court consider the question whether a use which is re- garded as public for the purposes of an exercise of the right of eminent domain, is necessarily so for the purposes of taxa- tion. They say : " Reasoning by analogy from one of the sovereign powers of gov- ernment to another is exceedingly liable to deceive and mislead. An object may be public in one sense and for one pur- pose, when in a general sense and for other purposes it would be idle or mis- leading to apply the same term. All governmental powers exist for public purposes, but they are not necessarily to be exercised under the same conditions of public interest. The sovereign police power which the State possesses is to be exercised only for the general public wel- fare, but it reaches to every person, to every kind of business, to every species of property within the Commonwealth. The conduct of every individual, and the 774 I CONSTITUTIONAL LIMITATIONS. [CH. XV. The question what is a public use is always one of law. (a) Def- erence will be paid to the legislative judgment, as expressed in use of all property and of all rights is regulated by it, to any extent found neces- sary for tlie preservation of the public order, and also for the protection of the private rights of one individual against encroachment by others. The sover- eign power of taxation is employed in a great many cases where the power of eminent domain might be made more im- mediately efficient and available, if con- stitutional principles could suffer it to be resorted to ; but each of these has its own peculiar and appropriate sphere, and the object which is public for the demands of the one is not necessarily of a character to permit the exercise of the other." " If we examine the subject critically, we shall find that the most important consideration in the case of eminent do- main is the necessity of accomplishing some public good which is otherwise im- practicable ; and we shall also find that the law does not so much regard the means as the need. The power is much nearer akin to that of the public police than to that of taxation ; it goes but a step farther, and that step is in the same direction. Every man has an abstract right to the exclusive use of his own property for his own enjoyment in such manner as he shall choose ; but if he should choose to create a nuisance upon it, or to do anything which would pre- clude a reasonable enjoyment of adja- cent property, the law would interfere to impose restraints. He is said to own his private lot to the centre of the earth, but he would not be allowed to exca- vate it indefinitely, lest his neighbor's lot should disappear in the excavation. The abstract right to make use of his own property in his own way is compelled to yield to the general comfort and pro- tection of the community, and to a proper regard to relative rights in others. The situation of his property may even be such that he is compelled to dispose of it because the law will not suffer his regu- lar business to be carried on upon it. A needful and lawful species of manufacture may so injuriously affect the health and comfort of the vicinity that it cannot be tolerated in a densely settled neighbor- hood, and therefore the owner of a lot in that neighborhood will not be allowed to engage in that manufacture upon it, even though it be his regular and legitimate business. The butcher in the vicinity of whose premises a village has grown up finds himself compelled to remove his business elsewhere, because his right to make use of his lot as a place for the slaughter of cattle has become inconsistent with the superior right of the community to the enjoyment of pure air and the ac- companying blessings and comforts. The owner of a lot within the fire limits of a city may be compelled to part with the property, because he is unable to erect a brick or stone structure upon it, and the local regulations will not permit one of wood. Eminent domain only recognizes and enforces the superior right of the community against the selfishness of in- dividuals in a similar way. Every branch of needful industry has a right to exist, and the community has aright to demand that it be permitted to exist; and if for that purpose a peculiar locality already in possession of an individual is essential, the owner's right to undisturbed occu- pancy must yield to the superior interest of the public. A railroad cannot go around the farm of every unwilling per- son, and the business of transporting persons and property for long distances by rail, which has been found so essential to the general enjoyment and welfare, could never have existed if it were in the power of any unwilling person to stop the road at his boundary, or to demand unreasonable terms as a condition of pass- ing him. The law interferes in these cases, and regulates the relative rights of the owner and of the community with as strict regard to justice and equity as the circumstances will permit. It does not deprive the owner of his property, but it compels him to dispose of so much of it as is essential on equitable terms. While, (a) QThe question of whether the use is a public one may become a " federal question " under the " due process of law " clause of the federal constitution. Fall- brook Irrigation District v. Bradley, 164 U. S. 112, 17 Sup. Ct. Rep. 66; Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403, 17 Sup. Ct. Rep. 130.3 CH. XV.] THE EMINENT DOMAIN. 775 enactments providing for an appropriation of property, but it will not be conclusive. 1 The Taking of Property. Although property can only be taken for a public use, and the legislature must determine in what cases, it has been long settled that it is not essential the taking should be to or by the State itself, if by any other agency, in the opinion of the legislature, the use can be made equally effectual for the public benefit. There are many cases in which the appropriation consists simply in throwing the property open to use by such persons as may see frt to avail themselves of it ; as in the case of common highways and public parks. In these cases the title of the owner is not disturbed, except as it is charged with this burden ; and the State defends the easement, not by virtue of any title in the property, but by means of criminal proceedings when the general right is disturbed. But in other cases it seems important to take the title; 2 and in many of these it is convenient, if not necessary, that the taking be, not by the State, but by the municipality for which the use is specially designed, and to whose care and gov- ernment it will be confided. When property is needed for a dis- trict school-house, it is proper that the district appropriate it ; therefore, eminent domain establishes no Engleman, 106 Mo. 628, 17 S. W. 759 ; industry, it so regulates the relative rights Shoemaker v. U. S., 147 U. S. 282, 13 of all that no individual shall have it in Sup. Ct. Rep. 361; Welton v. Dickson, his power to preclude its establishment." 38 Neb. 767, 67 N. W. 559, 41 Am. St. On this general subject see Olmstead v. 771, 22 L. R. A. 496 ; Call v. Town of Camp, 33 Conn. 532, in which it was very Wilkesboro, 115 N. C. 337, 20 S. E. 468 ; fully and carefully considered. Wulzen v. Board of Supervisors, 101 Cal. 1 Harding v. Goodlett, 3 Yerg. 40, 15, 35 Pac. 353, 40 Am. St. 17, and note ; 24 Am. Dec. 546 ; Bankhead v. Brown, Van Witson v. Gutman, 79 Md. 405, 29 25 Iowa, 540 ; Chicago, &c. R. R. Co. v. Atl. 608, 24 L. R. A. 403 ; Moore v. Lake, 71 111. 333; Olmstead o. Camp, 33 Sanford, 151 Mass. 285, 24 N. E. 323, 7 Conn. 551 ; Tyler v. Beacher, 44 Vt. 648 ; L. R. A. 151 ; Waterloo, &c. Mfg. Co. v. Matter of Deansville Cemetery Associa- Shanahan, 128 N. Y. 345, 28 N. E. 358 ; tion, 66 N. Y. 569, 23 Am. Rep. 86 ; Mat- Bridal Veil Lumbering Co. v. Johnson, ter of Union Ferry Co., 98 N. Y. 139; 30 Oreg. 205, 46 Pac. 790, 60 Am. St. Matter of Niagara Falls & W. Ry. Co., 818. But see, contra, City of Pasadena 108 N. Y. 375, 15 N. E. 429 ; Loughbridge v. Stimson, 91 Cal. 238, 27 Pac. 604. See v. Harris, 42 Ga. 600 ; Water Works Co. extended note, 89 Am. St. 926J v. Burkhart, 41 Ind. 364 ; Scudder v. 2 The fee is not to be taken unless the Trenton, &c. Co., 1 N. J. Eq. 694, 23 Am. purpose requires it. New Orleans, &?.. Dec. 766 ; Ryerson v. Brown, 35 Mich. R. R. Co. r. Gay, 32 La. Ann. 471 ; New 333. 24 Am. Rep. 564 ; Beekman v. Rail- Jersey Zinc Co. v. Morris Canal, &c. Co., road Co., 3 Paige, 45, 22 Am. Dec. 679, 44 N. J. Eq. 398, 15 Atl. 227. See Hi- and note ; McQuillen v, Hatton, 42 Ohio bernia R. R. Co. v. Camp, 47 N. J. L. 618. St. 202; Savannah v. Hancock, 91 Mo. There are constitutional provisions in 54, 3 S. W. 215; In re St. Paul & N. P. some States which limit the taking for Ry. Co., 34 Minn. 227, 25 N. W. 345; railroads to a mere easement. [TState ex rel. City of Cape Girardeau r. 776 CONSTITUTIONAL LIMITATIONS. [CH. XV. and it is strictly in accordance with the general theory as well as with the practice of our government for the State to delegate to the district the exercise of the power of eminent domain for this special purpose. So a county may be authorized to take lands for its court-house or jail ; a city, for its town hall, its reservoirs of water, its sewers, and other public works of like importance. In these cases no question of power arises ; the taking is by the public ; the use is by the public ; and the benefit to accrue there- from is shared in greater or less degree by the whole public. If, however, it be constitutional to appropriate lands for mill dams or mill sites, it ought also to be constitutional that the taking be by individuals instead of by the State or any of its organized political divisions ; since it is no part of the business of the government to engage in manufacturing operations which come in competition with private enterprise ; and the cases must be very peculiar and very rare where a State or municipal corpo- ration could be justified in any such undertaking. And although the practice is not entirely uniform on the subject, the general sentiment is adverse to the construction of railways by the State, and the opinion is quite prevalent, if not general, that thoy can be better managed, controlled, and operated for the public benefit in the hands of individuals than by State or municipal officers or agencies. And while there are unquestionably some objections to com- pelling a citizen to surrender his property to a corporation, whose corporators, in receiving it, are influenced by motives of private gain and emolument, so that to them the purpose of the appropri- ation is altogether private, yet conceding it to be settled that these facilities for travel and commerce are a public necessity, if the legislature, reflecting the public sentiment, decide that the general benefit is better promoted by their construction through individuals or corporations than by the State itself, it would clearly be pressing a constitutional maxim to an absurd extreme if it were to be held that the public necessity should only be pro- vided for in the way which is least consistent with the public interest. Accordingly, on the principle of public benefit, not only the State and its political divisions, but also individuals and cor- porate bodies, have been authorized to take private property for the construction of works of public utility, and when duly empowered by the legislature so to do, their private pecuniary interest does not preclude their being regarded as public agencies in respect to the public good which is sought to be accomplished. 1 1 Beekman v. Saratoga & Schenectady Wilson v. Blackbird Creek Marsh Co., R. R. Co., 3 Paige, 73, 22 Am. Dec. 679 ; 2 Pet. 245 ; Buonaparte v. Camden & CH. XV.] THE EMINENT DOMAIN. 777 The Necessity for the Taking. The authority to determine in any case whether it is needful to permit the exercise of this power must rest with the State itself ; and the question is always one of strictly political charac- ter, not requiring any hearing upon the facts or any judicial deter- mination. 1 Nevertheless, when a work or improvement of local importance only is contemplated, the need of which must be de- termined upon a view of the facts which the people of the vicinity may be supposed best to understand, the question of necessity is generally referred to some local tribunal, and it may even be sub- mitted to a jury to decide upon evidence. 2 But parties interested have no constitutional right to be heard upon the question, unless the State constitution clearly and expressly recognizes and pro- vides for it. On general principles, the final decision rests with the legislative department of the State ; 3 and if the question is Amboy R. R. Co., 1 Bald. 205 ; Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9 ; Lebanon v. Olcott, 1 N. H. 339 ; Petition of Mount Washington Road Co., 35 N. H 134 ; Pratt v. Brown, 3 Wis. 603; Swan v. Williams, 2 Mich. 427; Stevens v. Middlesex Canal, 12 Mass. 466; Boston Mill Dam v. Newman, 12 Pick. 467; Gilmer v. Lime Point, 18 Cal. 229; Arm- ington v. Barnet, 15 Vt. 745; White River Turnpike v. Central Railroad, 21 Vt. 590 ; Raleigh, &o. R R. Co. v. Davis, 2 Dev. & Bat. 451 ; Whiteman's Ex'r v. Wilmington, &c. R. R. Co., 2 Harr. 514; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 294; Olmstead v. Camp, 33 Conn. 53-2 ; Eaton v. Boston, C. & M. R. R. Co., 61 N. H. 504 ; Moran v. Ross, 79 Cal. 159, 21 Pac. 547. 1 Varick v. Smith, 5 Paige Ch. 137, 28 Am. Dec. 417; Aldridge ?;. Railroad Co., 2 Stew. & Port. 199, 23 Am. Dec. 307; QSt, Louis, I. M. & S. Ry. Co. v. Petty, 57 Ark. 359, 21 S. W. 884, 20 L. R. A. 434; Van Witson v. Gutman, 79 Md. 405, 29 Atl. 608, 24 L. R. A. 403; Moore v. Sanford, 151 Mass. 285, 24 N. E. 323, 7 L. R. A. 151 ; Wisconsin Water Co. v. Winans, 39 Am. St. 813, 85 Wis. 26, 54 N. W. 1003; Paxton & Hershey Irriga- ting C. & L. Co. v. Farmer's & M. I. & L. Co., 45 Neb. 884, 64 N. W. 343, 60 Am. St. 585, and note.] 2 Iron R. R. Co. v. Ironton, 19 Ohio St 299. The constitutions of some of the States require the question of the necessity of any specific appropriation to be submitted to a jury; and this require- ment cannot be dispensed with. Mans- field, &c. R. R. Co. v. Clarke, 23 Mich. 619; Arnold v. Decatur, 29 Mich. 77; QSaginaw, &c. Ry. Co. v. Bordner, 108 Mich. 236, 66 N. W. 62. As to what is " necessity," see City of Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604 ; City of Santa Cruz v. Enright, 95 Cal. 105, 30 Pac. 197; Detroit & S. P. Ry. Co. v. City of Detroit, 81 Mich. 562, 46 N. W. 12. Future as well as present needs to be considered. St. Louis & S. F. Ry. Co. v. Faltz, 52 Fed. Rep. 627; Kountze v. Prop. Morris Aqueduct, 58 N. J. L. 303, 33 Atl. 252, 58 N. J. L. 695, 34 Atl. 1099. Is a practical question ; Butte A. & P. Ry. Co. v. Montana U. Ry. Co., 16 Mont. 604, 41 Pac. 232, 31 L. R. A. 298J 8 United States v. Harris, 1 Sum. 21, 42; Ford v. Chicago, &c. R. R Co., 14 Wis. 609; People v. Smith, 21 N. Y. 595; Water Works Co. v. Burkliart, 41 Ind. 364 ; Tait's Exec. v. Centr. Lunatic As}'- lum, 84 Va. 271, 4 S. E 697. If the use is public, the legislative determination of necessity is conclusive. Sholl v. German Coal Co., 118 111. 427, 10 N. E. 199; Matter of Union Ferry Co., 98 N. Y. 139; QO'Hare v. Chicago, M. & N. Ry. Co , 139 111. 151, 28 N. E. 923; Barrett v. Kemp, 91 Iowa, 296, 59 N. W. 76 ; Lynch v. Forbes, 161 Mass. 302, 37 N. E. 437, 42 Am. St. 402, and extended note ; City of Cape Giradeau v. Honck, 129 Mo. 607, 31 778 CONSTITUTIONAL LIMITATIONS. [CH. XV. referred to any tribunal for trial, the reference and the opportu- nity for being heard are matters of favor and not of right. The State is not under any obligation to make provision for a judicial contest upon that question. And where the case is such that it is proper to delegate to individuals or to a corporation (a) the power to appropriate property, it is also competent to delegate the authority to decide upon the necessity for the taking. 1 S. VV. 933 ; City of Philadelphia v. Ward, 174 Pa. St. 45, 34 Atl. 458; Douglas v. Byrnes, 59 Fed. Rep. 29; Joplin Consol. Mining Co. v. City of Joplin, 124 Mo. 129, 27 8. VV. 406; Monongahela Nav. Co. v. United States, 148 U. S. 312, 13 Sup. Ct. Rep. 622 ; but see contra Stearnes v. Barre, 73 Vt. 281, 50 Atl. 1086, 87 Am. St. 721. See also note, 87 Am. St. 734. The extent of taking is a legislative question. Shoemaker v. United States, 147 U. S. 282, 13 Sup. Ct. Rep. 361 ; United States ?;. Gettysburg!! Elec. Ry. Co., 160 U. S. 668, 16 Sup. Ct. Rep. 427, rev. United States v. Tract of Land, &c., 67 Fed. Rep. 869. Courts will relieve against abuse of power to determine necessity. Colorado E. Ry. Co. v. W. Pac. Ry. Co., 41 Fed. Rep. 293; St. Louis, I. M. & S. Ry. Co. v. Petty, 57 Ark. 359, 21 S. W. 884, 20 L. R. A. 434; Creston Water Wks. Co. v. McGrath, 89 Iowa, 602, 56 N. W. 680; Robinson v. Pa. Ry. Co., 161 Pa. St. 561, 29 Atl. 268.] 1 People v. Smith, 21 N. Y. 595; Ford v. Chicago & N. W. R. R. Co., 14 Wis. 617; Matter of Albany St., 11 Wend. 152, 25 Am. Dec. 619; Lyon v. Jerome, 26 Wend. 484; Hays v. Risher, 32 Pa. St. 169 ; North Missouri R. R. Co. v. Lack- land, 25 Mo. 515: Same r. Gott, 25 Mo. 540; Bankhead v. Brown, 25 Iowa, 540; Contra Costa R. R. v. Moss, 23 Cal. 323 ; Matter of Fowler, 53 N. Y. 60; N. Y. Central, &c R. R. Co. v. Met. Gas Co., 63 N. Y. 326 ; Chicago, &c. R. R. Co. v. Lake, 71 111. 333 ; Warren v. St. Paul, &c. R. R. Co., 18 Minn. 384; Smeaton v. Martin, 67 Wis. 364, 15 N. W. 403 ; State v. Stew- art, 74 Wis. 620, 43 N. W. 947. But where a general power to condemn is given, for example, to a railroad company, the ne- cessity for its exercise in the taking of particular property is a judicial question. Matter of New York Central R. R. Co., 66 N. Y. 407 ; In re St. Paul, & N. P. Ry. Co., 34 Minn. 227, 25 N. W. 345; Olmsted P. Prop'rs Morris Aqueduct, 46 N. J. L. 495 ; Tracy v. Elizabethtown, &c. R. R Co., 80 Ky. 259 ; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123, 28 Pac. 447. In the case first above cited, Denio, J., says : " The question then is, whether the State, in the exercise of the power to appropriate the property of in- dividuals to a public use, where the duty of judging of the expediency of making the appropriation, in a class of cases, is committed to public officers, is obliged to afford to the owners of the property an op- portunity to be heard before those officers when they sit for the purpose of making the determination. I do not speak now of the process for arriving at the amount of compensation to be paid to the owners, but of the determination whether, under the circumstances of a particular case, the property required for the purpose shall be taken or not ; and I am of opinion that the State is not under any obligation to make provisions for a judicial contest upon that question. The only part of the Constitution which refers to the subject is that which forbids private property to be taken for public use without compen- sation, and that which prescribes the manner in which the compensation shall be ascertained. It is not pretended that the statute under consideration violates either of these provisions. There is therefore no constitutional injunction on the point under consideration. The ne-\ cessity for appropriating private property | for the use of the public or of the gor- / ernment is not a judicial question. The power resides in the legislature. It may be exercised by means of a statute which shall at once designate the property to (17) fJPn'vate corporation cannot be authorized to condemn for the use of a municipality or vice versa. Seattle & Montana Ry. Co. v. State, 7 Wash. 150, 34 Pac. 551, 38 Am. St. 866, 22 L. R. A. 217.] CH. XV.] THE EMINENT DOMAIN. 779 How much Property may be taken. The taking of property must always be limited to the necessity of the case, and consequently no more can be appropriated in any instance than the proper tribunal shall adjudge to be needed for the particular use for which the appropriation is made. When a part only of a man's premises is needed by the public, the neces- sity for the appropriation of that part will not justify the taking of the whole, even though compensation be made therefor. The moment the appropriation goes beyond the necessity of the case, it ceases to be justified on the principles which underlie the right of eminent domain. 1 If, however, the statute providing for such be appropriated and the purpose of the appropriation ; or it may be delegated to public officers, or, as it has been repeat- edly held, to private corporations estab- lished to carry on enterprises in which the public are interested. There is no restraint upon the power, except that re- quiring compensation to be made. And where the power is committed to public officers, it is a subject of legislative dis- cretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority. The constitutional provision securing a trial by jury in certain cases, and that which declares that no citizen shall be deprived of his property without due process of law, have no application to the case. The jury trial can only be claimed as a constitutional right where the subject is judicial in its character. The exercise of the right of eminent do- main stands on the same ground with the power of taxation. Both are emanations of the law-making power. They are the attributes of political sovereignty, for the exercise of which the legislature is under no necessity to address itself to the courts. In imposing a tax, or in appropriating the property of a citizen, or a class of citizens, for a public purpose, with a proper provision for compensation, the legislative act is itself due process of law ; though it would not be if it should under- take to appropriate the property of one citizen for the use of another, or to con- fiscate the property of one person or a class of persons, or a particular descrip- tion of property, upon some view of pub- lic policy, where it could not be said to be taken for a public use. It follows from these views that it is not necessary for the legislature, in the exercise of the right of eminent domain, either directly, or in- directly through public officers or agents, to invest the proceedings witli the forms or substance of judicial process. It may allow the owner to intervene and partici- pate in the discussion before the officer or board to whom the power is given of determining whether the appropriation shall be made in a particular case, or it may provide that the officers shall act upon their own views of propriety and duty, without the aid of a forensic contest. The appropriation of the property is an act of public administration, and the form and manner of its performance is such as the legislature in its discretion pre- scribes " The fact that a road company has pur- chased a right of way across a man's land and bargained with him to build it, will not preclude its appropriating a right of way over the same land on another line. Cape Girardeau, &c. Road v. Dennis, G7 Mo. 438; [^Baltimore, &c. Ry. Co. v. P. W. & K. Ry. Co., 17 W. Va. 812, 843 ; Railroad Co. v. Blake, 9 Rich. 228. See Lynch v. Forbes, 101 Mass. 302, 37 N. E. 437, 42 Am. St. 402.] 1 By a statute of New York it was enacted that whenever a part only of a lot or parcel of land should be required for the purposes of a city street, if the commissioners for assessing compensa- tion should deem it expedient to include the whole lot in the assessment, they should have power so to do ; and the part not wanted for the particular street or improvement should, upon the confirma- tion of the report, become vested in the 780 CONSTITUTIONAL LIMITATIONS. [CH. XV. appropriation is acted upon, and the property owner accepts the compensation awarded to him under it, he will be precluded by this implied assent from afterwards objecting to the excessive appropriation. 1 And where land is taken for a public work, there is nothing in the principle we have stated which will preclude the appropriation of whatever might be necessary for incidental con- veniences : such as the workshops or depot buildings of a railway company, 2 or materials to be used in the construction of their road, and so on. (a) Express legislative power, however, is needed for these purposes ; it will not follow that, because such things are convenient to the accomplishment of the general object, the public may appropriate them without express author- ity of law ; but the power to appropriate must be expressly con- corporation, and might be appropriated to public uses, or sold in case of no such appropriation. Of this statute it was said by the Supreme Court of New York : " If this provision was intended merely to give to the corporation capacity to take property under such circumstances with the consent of the owner, and then to dis- pose of the same, there can be no objec- tion to it ; but if it is to be taken literally, that the commissioners may, against the consent of the owner, take the whole lot, when only a part is required for public use, and the residue to be applied to pri- vate use, it assumes a power which, with all respect, the legislature did not possess. The constitution, by authorizing the ap- propriation of private property to public use, impliedly declares that for any other use private property shall not be taken from one and applied to the private use of another. It is in violation of natural right ; and if it is not in violation of the letter of the constitution, it is of its spirit, and cannot be supported. This power has been supposed to be convenient when the greater part of a lot is taken, and only a small part left, not required for public use, and that small part of but little value in the hands of the owner. In such case the corporation has been supposed best qualified to take and dispose of such par- cels, or gores, as they have sometimes been called ; and probably this assump- tion of power has been acquiesced in by the proprietors. I know of no case where the power has been questioned, and where it has received the deliberate sanction of this court. Suppose a case where only a few feet, or even inches, are wanted, from one end of a lot to widen a street, and a valuable building stands upon the other end of such lot ; would the power be con- ceded to exist to take the whole lot, whether the owner consented or not ? The quantity of the residue of any lot can- not vary the principle. The owner may be very unwilling to part with only a few feet ; and I hold it equally incompetent for the legislature thus to dispose of pri- vate property, whether feet or acres are the subject of this assumed power." Mat- ter of Albany St., 11 Wend. 151, 25 Am. Dec. 618, per Savage, Ch. J. To the same effect is Dunn v. City Council, Har- per, 129. And see Paul v. Detroit, 32 Mich. 108; Baltimore, &c. K. R. Co. v. Pittsburgh, &c. R. 11. Co., 17 W. Va. 812. 1 Embury v. Conner, 3 N. Y. 511. There is clearly nothing in constitutional principles which would preclude the legis- lature from providing that a man's prop- erty might be taken with his assent, whether the assent was evidenced by deed or not ; and if he accepts payment, he must be deemed to assent. See Has- kell v. New Bedford, 108 Mass. 208. 2 Chicago, B. & Q. R. R. Co. v. Wil- son, 17 111. 123 ; Low v. Galena & C. U. R. R. Co., 18 111. 324 ; Giesy v. Cincin- nati, W. & Z. R. R. Co., 4 Ohio St. 308. Or extra track room. Matter of Staten Island Transit Co., 103 N. Y. 251, 8 N. E. 548. (a) A question as to the amount to be taken is a legislative not a judicial one. U. S. v. Gettysburgh Elec. Ry. Co., 160 U. S. 668, 16 Sup. Ct. Rep. 427.J GIT. XV.] THE EMINENT DOMAIN. 781 ferred, and the public agencies seeking to exercise this high prerogative must be careful to keep within the authority dele- gated, since the public necessity cannot be held to extend beyond what has been plainly declared on the face of the legislative enactment. What constitutes a Taking of Property. Any proper exercise of the powers of government, which does not directly encroach upon the property of an individual, or dis- turb him in its possession or enjoyment, will not entitle him to compensation, or give him a right of action. 1 If, for instance, the State, under its power to provide and regulate the public highways, should authorize the construction of a bridge across a navigable river, it is quite possible that all proprietary interests in land upon the river might be injuriously affected ; but such 1 Zimmerman v. Union Canal Co., 1 W. & S. 846 ; Shrunk v. Schuylkill Navi- gation Co., 14 S. & R. 71 ; Monongahela Navigation Co. v. Coons, 6 W. & S. 101 ; Davidson v. Boston & Maine R. R. Co., 3 Cush. 91 ; Gould v. Hudson River R. R. Co., 12 Barb. 616, and 6 N. Y. 522 ; Rad- cliff v. Mayor, &c. of Brooklyn, 4 N. Y. 195 ; Murray v. Menefee, 20 Ark. 661 ; Hooker v. New Haven & Northampton Co., 14 Conn. 146; People v. Kerr, 27 N. Y. 188; Fuller v. Edings, 11 Rich. Law, 239 ; Eddings v. Seabrook, 12 Rich. Law, 504 ; Richardson v. Vermont Cen- tral R. R. Co., 25 Vt. 465; Kennett's Petition, 24 N. H. 139 ; Alexander v. Mil- waukee, 16 Wis. 247 ; Richmond, &c. Co. v. Rogers, 1 Duvall, 135 ; Harvey v . Laek- awanna, &c. R. R. Co., 47 Pa. St. 428; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21; Railroad Co. v. Richmond, 96 U. S. 521. The discontinuance of a high- way does not entitle parties incommoded thereby to compensation. Fearing v. Irwin, 65 N. Y. 486; fJLevee District No. 9 v. Farmer, 101 Cal. 178, 35 Pac. 569, 23 L. R. A. 388. This is particularly true if such persons are not abutting owners. Stanwood v. City of Maiden, 157 Mass. 17, 31 N. E. 702, 16 L. R. A. 591 ; Glasgow v. City of St. Louis, 107 Mo. 198, 17 S. W. 743. To the effect that vacation of a street is a taking, see Cullen v. N. Y., N. H. & H. R. Ry. Co., 66 Conn. 211, 33 All. 910; Pearsall v. Eaton County Supervisors, 74 Mich. 558, 42 N. W. 77, 4 L. R. A. 193. See cases pro and con cited in notes to Selden v. Jacksonville, 14 L. R. A. 370, and 29 Am. St. 278. Many of which depend upon particular statutes ; and Buhl v. Fort Street Union Depot Co., 98 Mich. 696, 57 N. VV. 829, 23 L. R. A. 392 ; Dant- zer v. Indianapolis Union Ry. Co., 141 Ind. 604, 39 N. E. 223, 34 L. R A. 769.] Incidental injury to adjoining lot-owners from constructing a tunnel in a street to pass under a river will give no right of action. Transportation Co. v. Chicago, 99 U. S. 635. See the case in the Cir- cuit Court, 7 Biss. 45. But a railroad company cannot be required at its own expense to construct and maintain across its right of way every new highway which may be laid out over it. That would be a taking without just compen- sation. People '. Lake Shore, &c. Ry. Co., 52 Mich. 277, 17 N. W. 841 ; Chicago & G. T. Ry. Co. v. Hough, 61 Mich. 507, 28 N. W. 632. [JStatute requiring exist- ing railway companies to build farm crossings, their roads having been built when the statute did not require it, is unconstitutional. If such crossings are considered as for public use, it is tak- ing without compensation. People v. D. G. H. & M. Ry. Co., 79 Mich. 471, 44 N. W. 934, 7 L. R. A. 717. The State or its grantees may construct wharves upon its lands under navigable waters without compensation to riparian owners for in- juries resulting. Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 639, 12 L. R. A. 632.] 782 CONSTITUTIONAL LIMITATIONS. [CH. XV. injury could no more give a valid claim against the State for dam- ages, than could any change in the general laws of the State, which, while keeping in view the general good, might injuriously affect particular interests. 1 So if by the erection of a dam in order to improve navigation the owner of a fishery finds it dimin- ished in value, 2 or if by deepening the channel of a river to im- 1 Davidson v. Boston & Maine R. R. Co., 3 Cusli. 91; Transportation Co. v. Chicago, 99 U. S. 635. 2 Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71. In Green v. Swift, 47 Cal. 636, and Green v. State, 73 Cal. 29, 11 , Pac. 602, 14 Pac. 610, it is held that where one finds his land injured in con- sequence of a change in the current of a river, caused by straightening it, he can- not claim compensation as of right. A riparian proprietor is entitled to compen- sation for land taken for public dam, for overflow of his lands, and diversion of water by reason thereof. Kaukauna W. P. Co. v. Green Bay & M. C. Co., 142 U. S. 254, 12 Sup. Ct. Rep. 173. But not, it seems, for injury from washing away soil of banks through reasonable increase of flow of water at times, caused by a dam authorized by the legislature. Brooks v. Cedar Brook & S. C. R. I. Co., 82 Me. 17, 19 Atl. 87, 7 L. R. A. 460; nor for injuries to rice fields by construc- tion of harbor improvements in a navi- gable stream. Mills v. United States, 46 Fed. Rep. 738, 12 L. R. A. 673; Farist Steel Co. v. City of Bridgeport, 60 Conn. 278, 22 Atl. 561, 13 L. R. A. 590; Rum- sey v. N. Y. &c. Ry. Co., 133 N. Y. 79, 30 N. E. 654, 28 Am. St. 600. The construc- tion by tlie United States of a pier in a navigable river under authority of Con- gress for the improvement of navigation gives an owner of lands bordering on the river no right to compensation though his access to navigable water be cut off. Scranton v. Wheeler, 113 Mich. 565, 71 N. W. 1091, aff. 179 U. S. 141, 21 Sup. Ct. Rep. 48. Same doctrine, Sage v. New York, 154 N. Y. 61, 47 N. E. 1096, 61 Am. ,St. 592, 38 L. R. A. 606. A riparian owner on navigable water owns to high-water mark, which is that line below which the lands are so frequently flowed that they are not productive as agricultural lands, and the State cannot, even in aid of public navigation, by artificial means maintain such waters above high-water mark to the injury of riparian owners. In re Minnetonka Lake Improvement, 56 Minn. 513, 58 N. W. 295, 45 Am. St. 494. Below high-water mark the State has full au- thority and right on navigable waters to do whatsoever it pleases in aid of public navigation, and any injury resulting inci- dentally to the riparian owner is damnum absque injuria. In re Minnetonka Lake Improvement, supra. Right in lands flowed under exercise of right of eminent domain is more than a mere easement. It includes the right of exclusive occupation, and carries right to cut ice which forms on the water. Wright v. Woodcock, 86 Me. 113, 29 Atl. 953, 24 L. R. A. 499. See also, on general subject of taking riparian interests in lands, Patten Paper Co. Ltd. v. Kaukauna Water Power Co., 90 Wis. 370, 61 N. W. 1121, 63 N. W. 1019, 28 L. R. A. 443; Priew v. Wiscon- sin State Land & Imp. Co., 93 Wis. 534, 67 N. W. 918, 33 L. R. A. 645; Carlson v. St. Louis Kiver D. & I. Co., 73 Minn. 128, 75 N. W. 1044, 72 Am. St. 610, 41 L. R. A. 371 ; Platt Bros. & Co. v. Water- bury, 72 Conn. 531, 45 Atl. 154, 48 L. R. A. 691 ; Valparaiso v. Hagen, 153 Ind. 337, 54 N. E. 1062, 48 L. R. A. 707. These last two cases are opposed to each other on the question of whether a ripa- rian owner is entitled to compensation for the casting of the sewage of a city upon his lands to their injury. The Con- necticut case finds support in Smith v. Sedalia, 152 Mo. 283, 53 S. W. 907, 48 L. R. A. 711, and in Grey ex rel. Simmons v. Paterson, N. J. , 45 Atl. 995. The retention of surface water on lot in city, caused by change of grade in street, is not a taking in violation of constitution. Jordan v. Ben wood, 42 W. Va. 312, 26 S. E. 266, 57 Am. St. 859, 36 L. R. A. 519. In Maine and Massachusetts where the " great ponds " belong to the State, the taking of a reasonable quantity of water by authority of the State is not a " taking" as against a mill owner with a water power on the outlet. Auburn v. CH. XV.] THE EMINENT DOMAIN. 783 prove the navigation a spring is destroyed, 1 or by a change in the grade of a city street the value of adjacent lots is diminished, 2 Union Water Power Co., 90 Me. 676, 38 All. 561, 38 L. R. A. 188. The diversion of water from its natural course in which it serves as motive power for a mill is in Michigan unlawful, and will be enjoined where such diversion is for drainage pur- poses only. Stock v. Jefferson, 114 Mich. 357, 72 N. W. 132, 38 L. R. A. 356J 1 Commonwealth v. Richter, 1 Pa. St. 467. But in Winklemans v. Des Moines, &c. Ry. Co., 62 Iowa, 11, 17 N. W. 82, the value of a spring destroyed in rail- road construction is held recoverable. ^Incidental draining of a well through construction of a public work is a " direct injuring "of property within the meaning of that term in a statute authorizing the construction. United States o. Alexan- der, 148 U. S. 186, 13 Sup. Ct. Rep. 529.] It is justly said by Mr. Justice Miller, in Pumpelly v. The Green Bay, &c. Co., 13 Wall. 166, 180, that the decisions " that for the consequential injury to the prop- erty of an individual from the prosecution of improvement of roads, streets, rivers, and other highways for the public good, there is no redress," " have gone to the extreme and limit of sound judicial con- struction in favor of this principle, and in some cases beyond it ; and it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as effectually to destroy or im- pair its usefulness, it is a taking within the meaning of the Constitution." See also Arimond v. Green Bay, &c. Co., 81 Wis. 316 ; Aurora r. Reed, 67 III. 29, 1 1 Am. Rep. 1. This whole subject is most elaborately considered by Smith, J., in Eaton v. Boston, C. & M. R. R. Co., 61 N. H. 504. It was decided in that case that, notwithstanding a party had re- ceived compensation for the taking of his land for a railroad, he was entitled to a further remedy at the common law for the flooding of his land in conse- quence of the road being cut through a ridge on 'the land of another; and that this flooding was a taking of his property within the meaning of the constitution. The cases to the contrary are all consid- ered by the learned judge, who is able to adduce very forcible reasons for his conclusions. QA change in the plan of construction of a railway after condem- nation may entitle the owner of lands condemned to additional compensation. Wabash, St. L. & P. R. Co. v. McDougall, 126 111. Ill, 18 N. E. 291, 1 L. R. A. 207. The conversion of a public way into a pleasure driveway, and excluding loaded vehicles from it, is not, as against per- sons desiring to use it with such vehicles, a taking of their property for public use without compensation. Cicero Lumber Co. v. Cicero, 176 III. 9, 61 N. E. 768, 68 Am. St. 155, 42 L. R. A. 696J Compare Aldrich v. Cheshire R. R. Co., 21 N. H. 859; West Branch, &c. Canal Co. v. Mulliner, 68 Pa. St. 857 ; Bellinger v. N. Y. Central R. R. Co., 23 N. Y. 42; Hatch v. Vt. Central R. R. Co., 25 Vt. 49 ; and cases, ante, p. 767. 2 British Plate Manufacturing Co. v. Meredith, 4 T. R. 794 ; Matter of Furman Street, 17 Wend. 649 ; Radcliff' s Ex'rs v. Mayor, &c. of Brooklyn, 4 N. Y. 195; Graves* v. Otis, 2 Hill, 466; Wilson v. Mayor, &c. of New York, 1 Denio, 695 ; Murphy v . Chicago, 29 111. 279 ; Roberta v. Chicago, 26 III. 249 ; Charlton v. Alle- ghany City, 1 Grant, 208 ; La Fayette i\ Bush, 19 Ind. 326 ; Macy v. Indianapolis, 17 Ind. 267; Vincennes v. Richards, 23 Ind. 381 ; Green v. Reading, 9 Watts, 382 ; O'Conner v. Pittsburg, 18 Pa. St. 187 ; In re Ridge Street, 29 Pa. St. 391 ; Callendar v. Marsh, 1 Pi. New York Elevated Rail- way Co., 90 N. Y. 122. In Lahr v. Metr. Elev. R. R. Co., 104 N. Y. 268, 10 N. E. 528, the doctrine was extended to a case where there was no such covenant and the plaintiff whose lot only went to the street line held under mesne conveyances, from one whose land had been condemned for use as a public street forever. QAben- droth v. Manhattan R, Co., 122 N. Y. 1, 25 N. E. 496, 19 Am. St. 461, 11 L. R. A. 634, one of the so-called " Elevated Rail- way Cases " presented the question of compensation of an abutting owner for an injury claimed to result from the erec- tion of an elevated railway in the street. There was no claim that the abutter, or any predecessor in title, at the time of the injury complained of, or at any prior time, owned any interest or right in the street, except such as was appurtenant to ownership of lands abutting, which were never, so far as was made to appear, a part of the lands in the street. It was held in the case that an abutting owner had such property rights in the street as might be " taken " against the prohibi- tion of the constitution, and this though that which results in the injury is done under legislative sanction. Andrews, J., says : " The judgments for damages which have been recovered and sustained against the elevated roads do not, and cannot, rest upon the ground that the roads are public nuisances, for they were constructed pursuant to statutes; and besides a public nuisance does not create a private cause of action unless a private right exists and is injured by it specially. The only remaining ground upon which they may and do stand is that by the common law the plaintiffs had private rights in the streets before the railways were built or authorized to be built. It is clear, we think, that these rights were not created by the statutes under which the corporations were organized, nor by the construction of the roads ; nor do they exist by virtue of the judgment in Story's Case .(90 N. Y. 122); but they existed anterior to the construction of the roads, and have simply been defined and protected by the decisions made in the litigations against these corporations. ... It then becomes material to inquire whether rights of action are cut off because the road was constructed pursu- ant to legislative authority. The consti- tution of this State provides ' Nor shall 800 CONSTITUTIONAL LIMITATIONS. [CH. XV. last decision settles a long-pending controversy, and is in harmony with the cases in Indiana and Michigan ahove referred to. (a) It is not easy, as is very evident, to trace a clear line of au- thority running through the various decisions bearing upon the appropriation of the ordinary highways and streets to the use of railroads of any grade or species ; but a strong inclination is ap- parent to hold that, when the fee in the public way is taken from the former owner, it is taken for any public use whatever to which the public authorities, with the legislative assent, may see fit afterwards to devote it, in furtherance of the general purpose of the original appropriation ; 1 and if this is so, the owner must be private property be taken for public use without just compensation.' Art. 1, sec. 6. It is settled by Story's Case and Lahr's Case (104 N. Y. 268, 10 N. E. 528), that such rights as plaintiff has in Pearl Street are ' private property ' within the mean- ing of the constitutional provision quoted ; and these cases also hold that by the con- struction and operation of an elevated road in the street in front of an owner's premises, his rights are ' taken for public use' within the meaning of the constitu- tion. It follows that the authority con- ferred by the legislature to construct the road is not a defence to the action." It is to be noticed that this interpretation of the terms "taking of private property" does not necessarily involve an actual physical invasion of lands of the claimant in order to entitle him to compensation under the constitution, and that it is not necessary that the constitution should provide that compensation shall be made for " injury " or " damage " in order that compensation can be coerced by an abut- ting owner, though he have no interest in the fee of the street, for injury to his right to ingress and egress, to access of light and air, or for depreciation in value of the abutting property, by reason of the construction and operation of the improvement in the public street. But see these Elevated Railway Cases distin- guished from the cases growing -out of the so-called " Park Avenue Improve- ment " Cases in the same court : Fries v. New York & H. R. Co., 169 N. Y. 270, 62 N. E. 358 ; Muhlker v. N. Y. & H. R. Co., 173 N. Y. 549, 66 N. E. 558. O'Brien, J., in the Fries Case, says : The law is well settled in this State that where the prop- erty of an abutting owner is damaged, or even its easements interfered with in con- sequence of the work of an improvement in a public street conducted under lawful authority, he is without remedy or redress, even though no provision for compensa- tion is made in the statute. Whatever detriment the improvement may be to the abutter in such cases is held to be damnum absque injuria." The Elevated Railway Cases are distinguished in this language : They " proceed upon the prin- ciple, that, as against abutting owners, the railroad was unlawfully in the street, as they had not consented to the construc- tion or conveyed the right to interfere with their easements. But in the case at bar, we have an express finding that the defendant had acquired the right as against the plaintiff to use the street for the operation of the railroad. Hence the principles upon which that mass of litiga- tion proceeded have no application to this case." Citing Conabeer v. N. Y. C. & H. R. R. Co., 156 N. Y. 474, 51 N. E. 402. See Lewis v. New York & H. R. Co., 162 N. Y. 202, 66 N. E. 540.] 1 On this subject see, in addition to the other cases cited, West v. Bancroft, 32 Vt. 367 ; Kelsey v. King, 32 Barb. 410 ; Ohio & Lexington R. R. Co. v. Apple- gate, 8 Dana, 289 ; Hinchman v. Paterson Horse R. Co., 17 N. J. Eq. 75; Covington St. R. Co. v. Covington, &c. R. Co. (Ky.), 19 Am. Law Reg. N. s. 765. When, how- ever, land is taken or dedicated specifi- cally fora street, it would seem, although the fee is taken, it is taken for the re- stricted use only ; that is to say, for such uses as streets in cities are commonly put to. See State v. Laverack, 34 N. J. 201 ; (a) See reference to later cases in preceding note. CH. XV.] THE EMINENT DOMAIN. 801 held to be compensated at the time of the original taking for any such possible use ; and he takes his chances of that use, or any change in it, proving beneficial or deleterious to any remaining property he may own, or business he may be engaged in ; and it must also be held that the possibility that the land may, at some future time, revert to him, by the public use ceasing, is too remote and contingent to be considered as property at all. 1 At the same time it must be confessed that it is difficult to determine precisely how far some of the decisions made have been governed by the circumstance that the fee was, or was not in the public, or, on the other hand, have proceeded on the theory that a railway was only in furtherance of the original purpose of the appropriation, and not to be regarded as the imposition of any new burden, even where an easement only was originally taken. 2 Railroad Co. v. Shurmeir, 7 Wall. 272. QThe weight of judicial opinion is that an ordinary surface street railway is not an additional servitude, whether operated by horses or electricity. See Fobes v. Rome, W. & 0. Ry. Co., 121 N. Y. 605, 24 N. E. 919, 8 L. II. A. 453. Contra, as to electric railwav in a public highway : Zehren v. Milwaukee El. Ry. Co., 99 Wis. 83, 74 N. W. 538.] 1 As to whether there is such possi- bility of reverter, see Heyward v. Mayor, &c. of New York, 7 N. Y. 314 ; People v. Kerr, 27 N. Y. 188, 211, per Wright, J. ; Plitt v. Cox, 43 Pa. St. 486. 2 QThe following case illustrates that view of the courts which makes owner- ship in the fee of the street essential to the right to compensation for the new or added use of the street. O'Brien v. Bal- timore Belt Ry. Co., 74 Md. 363, 22 All. 141, 13 L. R. A. 126. The following illustrate the view that ownership of the fee is not essential to the right to com- pensation. Abendroth v. Manhattan Ry. Co., 122 N. Y. 1, 25 N. E. 496, 19 Am. St. 461, 11 L. R. A. 634 (elevated railway, injury to easement of light, air, and ac- cess) ; Kane v. N. Y. E. Ry. Co., 125 N. Y. 164, 26 N. E. 278, 11 L. R. A. 6 JO; Stowers v. Postal Telegraph Co., 68 Miss. 559, 9 So. 356, 12 L. R. A. 864, 24 Am. St. 2 ( ,)0; telegraph line in street : Egerer v. N. Y. C. & H. R. Ry. Co., 130 N. Y. 108, 29 N. E. 95, 14 L. R. A. 381, and note. Can be no damages for injury to easement of light and air if property worth more after than before the improvement : Somers v. Met. El. Ry. Co., 129 N. Y. 576, 29 N. E. 802, 14 L. R. A. 344.3 There is great difficulty, as it seems to us, in supporting impor- tant distinctions upon the fact that the fee was originally taken for the use of the public instead of a mere easement. If the fee is appropriated or dedicated, it is for a particular use only ; and it is a conditional fee, a fee on condition that the land continue to be occupied for that use. The practical difference in the cases is, that when the fee is taken, the possession of the original owner is ex- cluded ; and in the case of city streets, where there is occasion to devote them to many other purposes besides those of passage, but nevertheless not inconsis- tent, such as for the laying of water and gas pipes, and the construction of sewers, this exclusion of any private right of oc- cupation is important, and will sometimes save controversies and litigation. But to say that when a man has declared a dedi- cation for a particular use, under a stat- ute which makes a dedication the gift of a fee, he thereby makes it liable to be appropriated to other purposes, when the same could not be done if a perpetual easement had been dedicated, seems to be basing important distinctions upon a difference which after all is more techni- cal than real, and which in any view does not affect the distinction made. The same reasoning which has sustained the legisla- ture in authorizing a railroad track to be laid down in a city street would support its action in authorizing it to be made 51 802 CONSTITUTIONAL LIMITATIONS. [CH. XV. Perhaps the true distinction in these cases is not to be found in the motive power of the railway, or in the question whether the fee-simple or a mere easement was taken in the original appro- priation, but depends upon the question whether the railway con- stitutes a thoroughfare, or, on the other hand, is a mere local convenience. When land is taken or dedicated for a town street, it is unquestionably appropriated for all the ordinary purposes of a town street; not merely the purposes to which such streets were formerly applied, but those demanded by new improvements and new wants. Among these purposes is the use for carriages which run upon a grooved track ; and the preparation of impor- tant streets in large cities for tlieir use is not only a frequent necessity, which must be supposed to have been contemplated, but it is almost as much a matter of course as the .grading and pav- ing. 1 The appropriation of a country highway for the purposes of a railway, on the other hand, is neither usual nor often impor- into a canal ; and the purpose of the orig- inal dedication or appropriation would thereby be entirely defeated. Is it not more consistent with established rules to hold that a dedication or appropriation to one purpose confines the use to that pur- pose ; and when it is taken for any other, the original owner has not been compen- sated for the injury he may sustain in consequence, and is therefore entitled to it now? Notwithstanding a dedication which vests the title in the public, it must be conceded that the interest of the adjacent lot-owners is still property. "They have a peculiar interest in the street, which neither the local nor the general public can pretend to claim; a private right of the nature of an incor- poreal hereditament, legally attached to their contiguous grounds, and the erec- tions thereon ; an incidental title to cer- tain facilities and franchises assured to them by contracts and by law, and with- out which their property would be com- paratively of little value. This ease- ment, appendant to the lots, unlike any right of one lot-owner in the lot of another, is as much property as the lot itself." Crawford v. Delaware, 7 Ohio St. 450, 469. See some very pertinent and sensible remarks on the same subject by Ranney, J., in Street Railway v. Cum- minsville, 14 Ohio St. 641. See also Railroad Co v. Hambleton, 40 Ohio St. 490. It makes no difference that the fee is not in the abutter. Railway Co. v. Lawrence, 38 Ohio St. 41. He has, inde- pendent of the ownership of the soil, an interest in the street appurtenant to his lot, for the admission of light and air. Adams v. Chicago, &c. R. R. Co., 3 ( J Minn. 286, 39 N. W. 629. Whether the fee is in him or the public, he is to be paid if a steam railroad is laid in the street, as the use is not for an ordinary street purpose. Theobold v. Louisville, &c. Ry. Co., 66 Miss. 279, 6 So. 230. See Columbus & W. Ry. Co. v. Witherow, 82 Ala. 190, 3 So. 23, and cases p. 797, note 1, supra. FJBut see contra, Fobes v. Rome, W. & 0. Ry. Co., 121 N. Y. 505, 24 N. E. 919, 8 L. R. A. 453.] 1 Attorney-General v. Railway Co., 125 Mass. 615, 28 Am. Rep. 264; Hiss v. Railway Co., 52 Md. 242, 36 Am. Rep. 371 ; Covington St. R. Co. v. Covington, &c. R. Co. (Ky.), 19 Am. Law Reg. N. s. 765. See cases p. 794, note 4, supra. If a street railroad is used for passing from place to place on the street, a change in the motive power from horses to steam is not a change in the use. Not the motor but the use of the street is the criterion. Briggs v. Lewiston, &c. R. R. Co., 79 Me. 360, 10 Atl. 47. So where cars were run in trains by steam motors, but the use was no substantial infringement upon the common public right of passage. Newell v. Minneapolis, &c. Ry. Co., 35 Minn. 112, 27 N.W. 839. CH. XV.] THE EMINENT DOMAIN. 803 tant ; and it cannot with any justice be regarded as within the contemplation of the parties when the highway is first established. 1 And if this is so, it is clear that the owner cannot be considered as compensated for the new use at the time of the original appropriation, (a) 1 A steam railroad in such road is a Co. v. Ingalls, 15 Neb. 123, 16 N. W. new servitude. Hastings & G. I. II. R. 762. (a) [[What will constitute such a new use or additional servitude as will entitle an owner whose rights are subject to a prior use or servitude to compensation'? Steam railway in a public street or highway is : East End St. Ry. Co. v. Doyle, 88 Tenn. 747, 13 S W. 936, 9 L. R. A. 100; Am. Bank Note Co. v. N. Y. El. Ry. Co., 12 ( J N. Y. 252, 21) N. E. 302 ; Nichols v. A. A. & Y. Ry. Co., 87 Mich. 361, 49 N. W. 538, 16 L. R. A. 371 ; Kauffman v. Tacoma, O. & G. H. Ry. Co., 11 Wash. 632, 40 Pac. 137; Jones v. Erie & \V. V. Ry. Co., 151 Pa. St. 30, 25 All. 134, 31 Am. St. 722, and note, 18 L. Li. A. 339 ; Finch v. Riverside & A. Ry. Co., 87 Cal. 697 ; Freiday v. Sioux City Rap. Tran. Co., 92 Iowa, 191, 60 N. W. 656, 26 L. R. A. 246; Western Ry. Co. *>." Ala. G. T. Ry. Co., 96 Ala. 272, 11 So. 483, 17 L. R. A. 474; White n. N. W. N. C. Ry. Co., 118 N. C. 610, 18 S. E. 330, 37 Am. St. 639, 22 L. R. A. 627; Schaaf v. Cleveland M. & S. Ry. Co., 60 Ohio, 215, 64 N. E. 145. Contra, Henry Gans & Sons Mfg. Co. v. St. L. K. & N. W. Ry. Co., 113 Mo. 308, 20 S. W. 658, 18 L. R A. 339, 35 Am. St. 506; also in Pennsylvania, unless excavation or embankment injures adjoining property or access is cut off, or light and air excluded : Jones r. Erie & W. V. Ry. Co., 151 Pa. St. 30, 25 Atl. 134, 31 Am. St. 722 ; Montgomery v. Santa Ana & W. Ry. Co., 104 Cal. 186, 37 Pac. 786, 24 L. R. A. 654 ; use of lines of one railway company by another is not: Miller v. G. B. W. & St. P. Ry. Co., 59 Minn. 169, 60 N. W. 1006, 26 L. R. A. 443 ; grant by one railway company to another of part of its right of way for construction of tracks ; such new line is: Fort Worth & R. G. Ry. Co. v. Jennings, 76 Tex. 373, 13 S. W. 270, 8 L. R. A. 180. Surface street railway propelled by horses, cable, or electricity is not in a city street. Dean v. Ann Arbor St. Ry. Co., 93 Mich. 330, 53 N. W. 396 ; State v. Jack- sonville St. Ry. Co., 29 Fla. 590, 10 So. 590 ; Penn. Ry. Co. v. Montgomery Co., &c., 167 Pa. St. 62, 31 Atl. 468. 46 Am. St. 659, 27 L. R. A. 766 ; (contra, in country high- way, Id.) Cumberland Tel. & Telph. Co. v. United El. Ry. Co., 93 Tenn. 492, 29 S. W. 104, 27 L. R. A. 236; Green v. City & Suburban Ry. Co., 78 Md. 294, 28 Atl. 626, 44 Am. St. 288 ; Ashland & C. S. Ry. Co. v. Faulkner, Ky. , 45 S. W. 235, 43 L. R. A. 554 ; Finch v. Riverside & A. Ry. Co., 87 Cal. 597, 25 Pac. 765 ; Rafferty t. Central Traction Co., 147 Pa. St. 679, 23 Atl. 884 ; Chicago & C. Terminal Ry. Co. v. Whiting. H. & E. C. St. Ry. Co., 139 Ind. 297, 33 N. E. 604, 47 Am. St. 264, 26 L. R. A. 337 ; New Jersey ex rel. Kennelly v. Jersey City, 57 N. J. L. 293, 30 Atl. 531, 26 L. R. A. 281 ; Chicago, B. & Q. Ry. Co. v. West Chicago S. Ry. Co., 156 111. 255, 40 N. E. 1008, 29 L. R. A. 485. Unless constructed in disregard of convenience of abutting owners on a city street, a trolley railway is not : Snyder v. Fort Madison St. Ry. Co., 105 Iowa, 284, 75 N. W. 179, 41 L. R. A. 3 to; Birmingham T. Co. r. Birmingham R. & E. Co., 119 Ala. 137, 24 So. 502, 43 L. R. A. 233. Electric rail- way in village street is an additional servitude : Chicago & N. W. Ry. Co. v. Mil- waukee R. & K. El. Ry., 95 Wis. 561, 70 N. W. 678, 60 Am. St. 136, 37 L. R. A. 856. So held in case of city street, in Jaynes v. Omaha S. Ry. Co., 53 Neb. 631, 74 N. W. 67, 39 L. R. A. 751. Such railway in public country highway is: Zehren v. Mil- waukee El. Ry. & L. Co., 99 Wis. 83, 74 N. W. 638, 67 Am. St. 844, 41 L. R. A. 675. Elevated street railway is : Williams v. Brooklyn El. Ry. Co., 126 N. Y. 96, 26 N. E. 1048, (rev. 67 Hun, 691.) Contrti, Doane v. Lake Street El. Ry. Co., 165 111. 510, 46 N. E. 520, 56 Am. St. 265, 36 L. R. A. 97. See Jaynes v. Omaha St. Ry. Co., 53 Neb. 631, 74 N. W. 67, 39 L. R. A. 751. Substitution of electric motors with trolley sys- tem on street railway operated by horses is not : State v. Trenton Pass. Ry. Co., 68 804 CONSTITUTIONAL LIMITATIONS. [CH. XV. The cases thus far considered are those in which the original use is not entirely foreign to the purpose of the new appropriation ; and it is the similarity that admits of the question which has been discussed. Were the uses totally different, there could be no question whatever that a new assessment of compensation must be made before the appropriation could be lawful. 1 And in any 1 Where lands were appropriated by a streets by telegraph and telephone com- railroad company for its purposes, and panies and the effect upon the rights afterwards leased out for private occupa- of abutting owners, see 52 Cent. Law tion, it was held that the owner of the Jour. 205; Callen v. Columbus M. & S. fee was entitled to maintain a writ of Ry. Co., 66 Ohio, 166, 64 N. E. 141.] So entry to establish his title and recover a city may not condemn a pier to let it damages for the wrongful use. Proprie- to a private corporation. Belcher Sugar tors of Locks, &c. v. Nashua & Lowell Refining Co. v. St. Louis Elev. Co., 82 Mo. R. R. Co., 104 Mass. 1, 6 Am. Rep. 121. As to what use may be made of 181. QUse of vacant portion of rail- land in which an easement has been con- way depot grounds for place of business demned for a railroad station, see Pierce by customer of the railway company is an u. Boston, &c. R. R. Corp., 141 Mass. 481, additional servitude : Lyon v. McDonald, 6 N. E. 96 ; Hoggatt v. Vicksburg, &c. R. 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295. R. Co., 34 La. Ann. 624. Where land The legislature cannot authorize a com- has been taken for a street, it cannot be mission to compel a railway company to appropriated as a house to confine tramps : grant the use of its lands to private Winchester v. Capron, 63 N. H. 605, 4 persons for elevator purposes. Missouri All. 795 ; nor for the erection of a market Pacific Ry. Co. v. Nebraska, 164 U. S. building without making compensation : 403, 17 Sup. Ct. Rep. 130, rev. 29 Neb. State v. Mayor, &c. of Mobile, 5 Porter, 550, 45 N. W. 785. As to the use of 279, 30 Am. Dec. 564 ; State v. Laverack, N. J. L. 666, 34 Atl. 1090, 33 L. R. A. 129; Reid . Norfolk City Ry. Co., 94 Va. 117, 26 S. E. 428, 36 L. R. A. 274, 64 Am. St. 708. Telegraph or telephone line in public highway or street is: Pac. Postal Telph. Cable CD. v. Irvine, 49 Fed. Rep. 113 ; Callen v. Columbus E. E. L. Co., 66 Ohio, 166, 64 N. E. 141 ; Stowers v. Postal Telph. Cable Co., 68 Miss. 559, 9 So. 356, 24 Am. St. 290, 12 L. R. A. 564 ; Nicholl v. New York & N. J. Tel. Co., 62 N. J. L. 733, 42 Atl. 583; West. Union Telph. Co. v. Williams, 86 Va. 696, 11 S. E. 106, 19 Am. St. 908, 8 L. R. A. 429; Postal Telegraph Cable Co. v. Eaton, 170 111. 513, 49 N. E. 365, 62 Am. St. 3!)0, 39 L. R. A. 722; Krueger v. Wisconsin Telne. Co., 106 Wis. 96, 81 N. W. 1041, 50 L. R. A. 298. Contra: Cater v. N. W. Telephone Exchange Co., 60 Minn. 539, 63 N. W. Ill, 27 L. R. A. 310, 51 Am. St. 543 ; People v. Eaton, 100 Mich. 208, 50 N. W. 145, 24 L. R. A. 721 ; Irwin v. Great Southern Telph. Co , 37 La. Ann. 63; Magee v. Overshiner, 150 Ind. 127, 40 N. E. 951, 65 Am. St. 358, 40 L. R. A. 370; State ex rel. National Subway Co. v. St. Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113. Telegraph line on railway line, if for use of railway is not: Am. Telph. & Telne. Co. . Pearce, 71 Md. 535, 18 Atl. 910, 7 L. R. A. 200. Contra, if not for use of railway: Id. Poles for electric light wires in country highway are not: Palmer v. Larchmont E. Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672. Pipe line for natural gas in public highway is: Kincaid v. Indianapolis N. G. Co., 124 Ind. 577, 24 N. E. 1066, 19 Am. St. 113, 8 L. R. A. 602. When pipe is laid under walk in city street, it is not : McDevitt v. Peoples N. G. Co., 160 Pa. St. 367, 28 Atl. 948. Sewer system in a town road is not in Massachusetts : Lincoln v. Comm., 164 Mass. 1. Change of country road to city street is not to create a new servitude: Huddleston Admx. v. City of Eugene, 34 Oreg. 343, 55 Pac. 868, 43 L. R. A. 444. Construction of grain elevator on lands condemned for railway by the railway com- pany or its lessee is not misuse of easement condemned : Gurney v. Minneapolis Union Elevator Co., 63 Minn. 70, 65 N. W. 136, 30 L. R. A. 534.] Oil. XV.] THE EMINENT DOMAIN. 805 case, to authorize lands already taken for one public use to be 34 N. J. 201. The opinion of Beasley, Ch. J., in the New Jersey case, will justify lib- eral quotations. He says (p. 204) : " I think it undeniable that the appropriation of this land to the purposes of a market was an additional burthen upon it. Clearly it was not using it as a street. So far from that, what the act authorized to be done was incongruous with such use; for the market was an obstruction to it, considered merely as a highway. . . . When, therefore, the legislature declared that these streets in the city of Paterson might be used for market pur- poses, the power which was conferred in substance was an authority to place obstructions in these public highways. The consequence is that there is no force in the .argument, which was the principal one pressed upon our attention, that the use of these streets for the purpose now claimed is as legitimate as the use of a public highway by a horse railroad, which latter use has been repeatedly sanctioned by the courts of the State. The two cases, so far as related to prin- ciple, stand precisely opposite. I have said that a market is an obstruction to a street, that it is not a use of it as a street, but, if unauthorized, is a nuisance. To the contrary of this, a horse railroad is a new mode of using a street as such, and it is precisely upon this ground that it has been held to be legal. The cases rest upon this foundation. That a horse railway was a legitimate use of a high- way was decided in Hinchman v. Pater- son Horse Railroad Co., 17 N. J. Eq. 76 ; and, in his opinion, Chancellor Greene as- signs the following as the reasons of his judgment : ' The use of the road is nearly identical with that of the ordinary high- way. The motive power is the same. The noise and jarring of the street by the cars is not greater, and ordinary less, than that produced by omnibuses and other vehicles in ordinary use. Admit that the nature of the use, as respects the travelling public, is somewhat variant, how does it prejudice the land-owner ? Is his property taken ? Are his rights as a land-owner affected ? Does it interfere with the use of his property any more than the ordinary highway 1 ' It is clear that this reasoning can have no appropri- ate application to a case in which it ap- pears that the use of the street is so far from being nearly identical with that of the ordinary highway that in law it has always been regarded as an injury to such public easement, and on that account an indictable offence. " I regard, then, a right to hold a mar- ket in a street as an easement additional to, and in a measure inconsistent with, its ordinary use as a highway. The ques- tion therefore is presented, Can such ease- ment be conferred by the legislature on the public without compensation to the land-owner ? I have already said that from the first it has appeared to me this question must be answered in the nega- tive. I think the true rule is, that land taken by the public for a particular use cannot be applied under such a seques- tration to any other use to the detriment of the land-owner. This is the only rule which will adequately protect the consti- tutional right of the citizen. To permit land taken for one purpose, and for which the land-owner lias been compensated, to be applied to another and additional pur- pose, for which he has received no com- pensation, would be a mere evasion of the spirit of the fundamental law of the State. Land taken and applied for the ordinary purpose of a street would often be an im- provement of the adjacent property ; an appropriation of it to the uses of a mar- ket would, perhaps, as often be destruc- tive of one-half the value of such property. Compensation for land, therefore, to be used as a highway, might, and many times would IK--, totally inadequate com- pensation if such land is to be used as a public market place. Few things would be more unjust than, when compensation has been made for land in view of one of these purposes, to allow it to be used without compensation for the other. The right of the public in a highway consists in the privilege of passage, and such priv- ileges as are annexed as incidents by usage or. custom, as the right to make sewers and drains, and to lay gas and water pipes. These subordinate privi- leges are entirely consistent with the pri- mary use of the highway, and are no detriment to the land-owner. But I am not aware of any case in which it has been held that the pulbic has any right in a highway which is incongruous with the 806 CONSTITUTIONAL LIMITATIONS. [CH. XV. appropriated to another, there must be distinct and express legislative authority. 1 purpose for which it was originally cre- ated, and which at the same time is inju- rious to the proprietor of the soil. Such certainly has not been the course of judi- cial decision in our own courts. Indeed the cases appear to be all ranged on the opposite side. I have shown that the legalization of the use of a street by a horse railroad has been carefully placed on the ground that such an appropriation of the street was merely a new mode of its legitimate and ordinary use. The rationale adopted excludes by necessary implication the hypothesis that the dedi- cation of a street to a new purpose, incon- sistent with its original nature, would be legal with respect to the uncompensated land-owner. But beyond this it has been expressly declared that such superadded use would be illegal. In the opinion of Mr. Justice Haines, in Starr v. Camden & Atlantic R. R. Co., 24 N. J. 692, it is very explicitly held that the constitution of this State would prevent the legislature from granting to a railroad company a right to use a public highway as a bed for their road without first making com- pensation to the owner of the soil. And in the case of Hinchman v. The Paterson Horse Railroad Co., already cited, Chan- cellor Greene quotes these views, and gives the doctrine the high sanction of his own approval. See also the Central R. R. Co. v. Hetfield, 29 N. J. 206." The learned judge then distinguishes Wright v. Carter, 27 N. J. 76, and quotes, as sustaining his own views, State v. Mayor, &c. of Mobile, 6 Porter, 279, SO Am. Dec. 664; Trustees of Presby- terian Society v. Auburn & Rochester R. R. Co., 3 Hill, 567 ; Williams v. N. Y. C. R. R. Co., 16 N. Y. 97; Angell on Highways, 243 et seq., and cases cited. [JA public park may be taken for rapid transit railway : Suburban Rapid Tran- sit Co. v. City of New York, 128 N. Y. 610, 28 N. E. 525, rev. 60 Hun, 577. Highway for railway: Louisville & W. Ry. Co. v. Whitley Co. Court, 96 Ky. 215, 24 S. W. 604, 44 Am. St. Rep. 220, note ; Chicago & Northwestern Ry. Co. . Chicago, 151 111. 348, 37 N. E. 842; City of Valparaiso v. Chicago & Grand Trunk Ry. Co., 123 Ind. 467, 24 N. E. 249; modified in Lake Erie & Western Ry. Co. v. City of Kokomo, 130 Ind. 224, 29 N. E. 780 ; Minneapolis Western Ry. Co. i;. Minneapolis & St. Louis Ry. Co., 61 Minn. 502, 63 N. W. 1035. Part of school house site may be taken for a pub- lic way, though such taking to some extent diminishes its usefulness : East- hampton v. Hampshire County, 154 Mass. 424, 28 N. E. 298; 13 L. R. A. 157.] 1 In re Boston, &c. R. R. Co., 63 N. Y. 457 ; State v. Montclair R. Co., 35 N. J. 328 ; Railroad Co. r. Dayton, 23 Ohio St. 610 ; Stanley v. Davenport, 54 Iowa, 463, 2 N. W. 1064, 6 N. W. 706, 37 Am. Rep. 216; [[Suburban Rap. Trans. Co. v. City of N. Y., 128 N. Y. 510, 28 N. E. 525, rev. 60 Hun, 577. Wharves of railway company, for public wharves, authority for may be implied, if implication is clear. In re Mayor of City of New York, 135 N. Y. 253, 31 N. E. 1043, 31 Am. St. 825. Rail- way lands for street crossing with viaduct rather than at grade, not under general authority to cross. 111. Cent. Ry. Co. v. City of Chicago, 141 111. 686, 30 N. E. 1044, 17 L. R. A. 530. Railway depot grounds for street : Cin., Wab. & M. Ry. Co. v. City of Anderson, 139 Ind. 490, 38 N. E. 167, 47 Am. St. 285, citing previ- ous Indiana cases and others. Colorado E. Ry. Co. v. Union Pac. Ry. Co., 41 Fed. Rep. 293.3 ^ n a case where a steamboat company's dock was suffered to be taken by a railroad, it was said that the test of whether land is thus held for public use " appears to be not what the owner does or may choose to do, but what under the law it must do, and whether a public trust is impressed upon it." Matter of New York, L. & W. R. R. Co., 99 N. Y. 12, 1 N. E. 27. One railroad may condemn an easement to cross another. East St. Louis Conn. Ry. Co. v. East St. Louis, &c. Co., 108 111. 265 ; Toledo A. A. &c. Ry. Co. v. Detroit, &c. R. R. Co., 62 Mich. 664, 29 N. W. 600 ; pMinn. & St. Louis Ry. Co.v. Minn. West. Ry. Co., 61 Minn. 502, 63 N. W. 1035; United N. J. Ry. & Canal Co. v. Nat'l Docks & N. J. J. C. Ry. Co., 52 N. J. L. 90, 18 Atl. 674; Nat'l Docks & N. J. J. C. Ry. Co. v. State, 53 N. J L. 217, 21 Atl. 570, 26 Am. St. 421; Mem- CH. XV.] THE EMINENT DOMAIN. 807 Although the regulation of a navigable stream will give to the persons incidentally affected no right to compensation, yet if the stream is diverted from its natural course, so that those entitled to its benefits are prevented from making use of it as before, the deprivation of this right is a taking which entitles them to com- pensation, notwithstanding the taking may be for the purpose of creating another and more valuable channel of navigation. 1 The owners of land over which such a stream flows, although they do not own the flowing water itself, yet have a property in the use phis & C. Ry. Co. v. Birmingham S. & T. R. Ry. Co., 96 Ala: 671, 11 So. 642, 18 L. R. A. 166.] When by agreement it already has a crossing, a f urtlier one may be condemned. Chicago & W. I. R. R. Co. v. 111. Centr. R. R. Co., 113 111. 156. One railroad may not condemn a strip lengthwise of another without express legislative authority. Alexandria & F. Ry. Co. o. Alexandria, &c. R. R. Co., 75 Va. 780 ; Barre R. R. Co. v. Montpelier, &c. R. R. Co., 61 Vt. 1, 17 Atl. 923, 4 L. R. A. 785; [Seattle & M. Ry. Co. v. State, 7 Wash. 150, 34 Pac. 651, 38 Am. St. 866, 22 L. R. A. 217 ; Minn. & St. Louis Ry. Co. v. Minn. West. Ry. Co., 61 Minn. 502, 63 N. W. 1035 ; In re Provi- dence & W. Ry. Co., 17 R. I. 324, 21 Atl. 965] Nor may it take a considerable portion of another's yard unless abso- lutely necessary. Appeal of Sharon Ry., 122 Pa. St. 533, 17 Atl. 234,9 Am. St. 133, and note, 137. But see Chicago & N. W. Ry. Co. v. Chicago, &c. R. R. Co., 112 111. 589. As to the right of condemnation where a track is alreadj r laid in a narrow pass, see Anniston, &c. R. R Co. v. Jack- sonville, &c. R. R. Co., 82 Ala. 297, 2 So. 710; Montana Centr. Ry. Co. v. Helena, &c. Co., 6 Mont. 416, 12 Pac. 916; Den- ver & R. G. Ry. Co. v. Denver, &c. Co., 17 Fed. Rep. 837; 111. Centr. R. R. Co. v. Chicago, &c. R. R. Co., 122 111. 473, 13 N. E. 140. If by necessary implication under the circumstances such power is intended to be granted, a lengthwise con- demnation is valid. Providence, &c. R. R. Co. v. Norwich, &c. R. R. Co., 138 Mass. 277. Streets may be opened across tracks : St. Paul, M. & M. Ry. Co. v. Minneapolis, 35 Minn. 141, 27 N. W. 500 ; Pres't &c. D. & H. C. Co. v. Whitehall, 90 N. Y. 21 ; hut not, without express au- thority, across necessary depot grounds acquired by condemnation. Prospect Park, &c. R. R. Co. v. Williamson, 91 N. Y. 552, or by purchase: St. Paul Union Depot Co. v. St. Paul, 30 Minn. 359, 15 N. W. 684. Compare New York 6 L. B. R. R. Co. v. Drummond, 46 N. J. L. 644. Nor may a ditch be located lengthwise of a railroad right of way. Baltimore & O. &c. R. R. Co. v. North, 103 Ind. 486, 3 N. E. 144. Without such authority a railroad may not condemn land dedicated as a levee : Oregon Ry. Co. v. Portland, 9 Oreg 231 ; nor a school district, a poor farm for school site. Ap- peal of Tyrone School Dist, 15 Atl. 667. The existing use must be actual and in good faith. Rochester, H. & L. R. R. Co. v. New York, &c. Co., 110 N. Y. 128, 17 N. E. 680 ; Matter of Rochester H. & L. R. R. Co., Id. 119, 17 N. E. 678; New York & A. R. R. Co. v. New York, &c. R. R. Co., 11 Abb. N. C. 386. See also cases, p. 757, note 3, ante. When for a way land already used for that purpose is taken, everything upon it is also taken ; such as flagstones, bridges, culverts, &c. ; and the assessment of damages should cover the whole : Ford v. County Commissioners, 64 Me. 408 ; also any buildings which it may be necessary to destroy. Lafayette, &c. It. R. Co. v. Wins- low, 66 111. 219. [Legislature cannot authorize the taking by one from another of property held for a public use to he held by that other for the same use. Cary Library v. Bliss, 151 Mass. 364, 25 N. E. 92, 7 L. R. A. 765.] 1 People v. Canal Appraisers, 13 Wpnd. 856. And see Hatcli v. Vermont Central R. R. Co., 25 Vt. 49; Bellinger f. New York Central R. R Co.. 23 N. Y. 42; Gardner v. Newburg, 2 Johns. Ch. 162, 7 Am. Dec. 526; Thunder Bay, &c. Co. r. Spepch'y, 31 Mich. 336; Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 265. 808 CONSTITUTIONAL LIMITATIONS. [CH. XV. of that water as it flows past them, for the purpose of producing mechanical power, or for any of the other purposes for which they can make it available, without depriving those below them of the like use, or encroaching upon the rights of those above ; and this property is equally protected with any of a more tangible character. 1 What Interest in Land can be taken under the Right of Eminent Domain. Where land is appropriated to the public use under the right of eminent domain, and against the will of the owner, we have seen how careful the law is to limit the public authorities to their precise needs, and not to allow the dispossession of the owner from any portion of his freehold which the public use does not require. This must be so on the general principle that the right, being based on necessity, cannot be any broader than the neces- sity which supports it. For the same reason, it would seem that, in respect to the land actually taken, if there can be any conjoint occupation of the owner and the public, the former should not be altogether excluded, but should be allowed to occupy for his private purposes to any extent not inconsistent with the public use. As a general rule, the laws for the exercise of the right of eminent domain do not assume to go further than to appropriate the use, and the title in fee still remains in the original owner. In the common highways, the public have a perpetual easement, but the soil is the property of the adjacent owner, and he may make any use of it which does not interfere with the public right of passage, and the public can use it only for the purposes usual with such ways. 2 And when the land ceases to be used by the public as a way, the owner will again become restored to his complete and exclusive possession, and the fee will cease to be encumbered with the easement. 3 1 Morgan v. King, 18 Barb. 284, 35 488, 37 N. W. 845. Hay standing on N. Y. 454 ; Gardner v. Newburg, 2 Johns, land which has been condemned for right Ch. 162, 7 Am. Dec. 526; Emporia v. of way belongs to the land-owner. Bailey Soden, 25 Kan. 588, 37 Am. Rep. 265. v. Sweeney, 64 N. H. 296, 9 Atl. 543. So 2 In Adams v. Rivers, 11 Barb. 390, a of ice. Julien v. Woodsmall, 82 Ind. 568. person who stood in the public way and Where in the course of a sewer improve- abused the occupant of an adjoining lot ment the fee of an island is not taken, the was held liable in trespass as being Tin- gravel taken from it may be used else- lawfully there, because not using the where in the sewer work. Titus v. highway for the purpose to which it was Boston, 149 Mass. 164, 21 N. E. 310. appropriated. See, as to what is a proper 3 Dean v. Sullivan R. R. Co., 22 N. H. use of highway by land, Bliss v. South 316 ; Blake v. Rich, 34 N. H. 282 ; Henry Hadley, 145 Mass. 91, 13 N. E. 352 ; Gul- v. Dubuque & Pacific R. R, Co., 2 Iowa, line i>. Lowell, 144 Mass. 491, UN. E. 723 ; 288; Weston v. Foster, 7 Met. 297; by water, Sterling v. Jackson, 69 Mich. Quitnby v. Vermont Central R. R. Co., 23 CH. XV.] THE EMINENT DOMAIN. 809 It seems, however, to be competent for the State to appropriate the title to the land in fee, and so to altogether exclude any use by the former owner, except that which every individual citizen is entitled to make, if in the opinion of the legislature it is need- ful that the fee be taken. 1 The judicial decisions to this effect proceed upon the idea that, in some cases, the public purposes cannot be fully accomplished without appropriating the complete title ; and where this is so in the opinion of the legislature, the same reasons which support the legislature in their right to decide absolutely and finally upon the necessity of the taking will also support their decision as to the estate to be taken. The power, it is said in one case, " must of necessity rest in the legis- lature, in order to secure the useful exercise and enjoyment of the right in question. A case might arise where a temporary use would be all that the public interest required. Another case might require the permanent and apparently the perpetual occu- pation and enjoyment of the property by the public, and the right to take it must be coextensive with the necessity of the case, and the measure of compensation should of course be graduated by the nature and the duration of the estate or interest of which the owner is deprived." 2 And it was therefore held, where the statute provided that lands might be compulsorily taken in fee- simple for the purposes of an almshouse extension, and they were taken accordingly, that the title of the original owner was thereby entirely divested, so that when the land ceased to be used for the public purpose, the title remained in the municipality which had appropriated it, and did not revert to the former owner or his heirs. 3 And it does not seem to be uncommon to provide that, Vt. 387; Giesy v. Cincinnati, &c. R. R. 2 Hey ward v. Mayor, &c. of New York, Co., 4 Ohio St. 308. See Skillman v. 1 N. Y. 314, 325. See also Dingley v. Chicago, &c. Ry. Co., 78 Iowa, 404, 43 Boston, 100 Mass. 544 ; Brooklyn Park N. VV. 275, ante. p. 796, note 1. Coni'rs v. Armstrong, 2 Lans. 429 ; 8. c. 1 Roanoke City v. Berkowitz, 80 Va. on appeal, 45 N. Y. 234, and 6 Am. 616. See Matter of Amsterdam Water Rep. 70. Commissioners, 96 N. Y. 351. This, how- 8 Hey ward v. Mayor, &c. of New ever, is forbidden by the Constitution of York, 7 N. Y. 314. And see Baker v. Illinois of 1870, in the case of land taken Johnson, 2 Hill, 342 ; Wheeler v. Roches- for railroad tracks. Art. 2, 13. And ter, &c. R. R. Co., 12 Barb. 227 ; Hunger we think it would be difficult to demon- v. Tonawanda R. R. Co., 4 N. Y. 349 ; strate the necessity for appropriating the Rexford v. Knight, 11 N. Y. 308; Coin- fee in case of any thoroughfare ; and if monwealth v. Fisher, 1 Pen. & Watts, 462 ; never needful, it ought to be held ineom- De Varaigne v. Fox, 2 Blatch. 95 ; Coster petent. See New Orleans, &c. R. R. Co. v. N. J. R. R. Co., 23 N. J. 227; Plitt r. v. Gay, 32 La. Ann 47 1. [JAny easement Cox, 43 Pa. St. 486; Brooklyn Park or right connected with land may be Com'rs r. Armstrong, 45 N. Y. 234, 6 Am. taken as well as the absolute fee. John- Rep. 70 ; Water Works Co. v. Burkhart, ston v. Old Colony R. Co., 18 R. I. 642, 41 Ind. 364. Compare Gebhardt v. Reeves, 29 All. 694, 49 Am. St. 800.3 75 111. 301. 810 CONSTITUTIONAL LIMITATIONS. [CH. XV. in the case of some classes of public ways, and especially of city and village streets, the dedication or appropriation to the public use shall vest the title to the land in the State, county, or city ; the purposes for which the land may be required by the public being so numerous and varied, and so impossible of complete specification in advance, that nothing short of a complete owner- ship in the public is deemed sufficient to provide for them. In any case, however, an easement only would be taken, unless the statute plainly contemplated and provided for the appropriation of a larger interest. 1 The Damaging of Property. In addition to providing for compensation for the taking of property for public use, several States since 1869 have embodied in their constitutions provisions that property shall not be " damaged " or " injured " in the course of public improvements without compensation. 2 The construction of these provisions has not been uniform. In some cases they are held to require compensation only where like acts done by an individual would warrant the recovery of damages at common law. 3 In others a 1 Barclay v. Howell's Lessee, 6 Pet. 498; Rust v. Lowe, 6 Mass. 90; Jackson v. Rutland & B. R. R. Co., 25 Vt. 1'50; Jackson v. Hathaway, 15 Johns. 447. 2 Constitution of Alabama, Art. XIII., 7; Arkansas, Art. II. 22; California, Art. I. 14; Colorado, Art. II. 14; Georgia, Bill of Rights, I. 3; Illinois, Art. II. 13 ; Louisiana, Art. 156 ; Mis- souri, Art. I. 20; Nebraska, Art. I. 21; Pennsylvania, Art. I. 8 ; Texas, Art. I. 17; West Virginia, Art. III. 9. 8 The purpose was to impose on cor- porations " having the right of eminent domain a liability for consequential dam- ages from which they had been previously exempt," when for doing the same act an individual would have been liable. Edmundson r. Pittsburgh, &c. R. R. Co., Ill Pa. St. 316, 2 Atl. 404. "Injured" means such legal wrong as would have been the subject of an action for damages at common law. Pennsylvania R. R. Co. v. Marchant, 119 Pa. St. 541, 13 Atl. 690; Pa. S. V. R. R. Co. v. Walsh, 124 Pa. St. 544, 17 Atl. 186. "In all cases, to war- rant a recovery it must appear that there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property and which gives to it an addi- tional value, and that by reason of such disturbance he lias sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statu- tory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present constitution to require compensa- tion to be made in all cases where but for some legislative enactment an action would lie at the common law." Alulkey, J., in Rigney v. Chicago, 102 III. 64 ; fol- lowed in Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. Rep. 820; Rude v. St. Louis, 93 Mo. 408, 6 S. W. 257. To the same effect is Trinity & S. Ry. Co. v. Meadows, 73 Tex. 32, 3 L. R. A. 565, 11 S. W. 145; [Austin v. Augusta T. Ry. Co., 108 Ga. 671, 34 S. E. 852,47 L. R. A. 755. To " damage " property within the meaning of that term as used in the Georgia constitution there must be some physical interference with property or with a right or use appurtenant to prop- erty. A railway company is not liable, therefore, to the owner of real property for diminution in the market value re- sulting from the making of noise or CH. XV.] THE EMINENT DOMAIN. 811 broader scope has been given to them. 1 Compensation has been awarded under them for the laying of a railroad track in the street, the fee of which the abutter does not own; 2 for a change in the grade of the street ; 3 for cutting off egress by it ; * and for sending forth of smoke and cinders caus- ing personal inconvenience and discom- fort only to the occupants. Austin v. Ter- minal Ry. Co., 108 Ga. 671, 34 S. E. 852, 47 L. 11. A. 755. Under constitution pro- viding for compensation where property is " injured," one whose property is de- preciated, in common with others of the general public, by reason of noise, smoke, etc., resulting from the ordinary opera- tion of a railway, and suffered by the public generally, is not entitled to com- pensation. But if by reason of the near location of a turn-table this depreciation is unusual he is entitled to compensation. Louisville Ry. Co. v. Foster, 22 Ky. L. 458, 57 S. W. 480, 50 L. R. A. 813-3 In Alabama the provision in case of a change of grade is held to cover only such alterations as could not have been anticipated at the time of the first tak- ing. City Council of Montgomery v. Townsend, 80 Ala. 489. The English statute covering the same ground as these provisions receives substantially the same construction as that put upon them in the Pennsylvania cases, noted above. Caledonian Ry. Co. v. Walker's Trustees, L. R. 7 App. Cas. 259. 1 The word " damaged " embraces more than physical invasions of prop- erty. It is not restricted to cases where the owner is entitled to recover as for a tort at common law. Reardon v. San Francisco, 66 Cal. 492, 6 Fac. 317. The language is intended to cover " all cases in which even in the proper prosecution of a public work or purpose the right or property of any person in a pecuniary way may be injuriously affected." Gulf C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467. See Gottschalk v. Chicago, &c. R. R. Co., 14 Neb. 650, 16 N. W. 475, 17 N. W. 120; Hot Springe R. R. Co. v Williamson, 45 Ark. 429 ; Atlanta v. Green, 67 Ga. 386 ; Denver v. Bayer, 7 Col. 113, 2 Pac. 6; Denver Circle R. R. Co. v. Nestor, 10 Col. 403, 15 Pac. 714. The damages are not restricted to such as could reasonably have been anticipated when the structure was built. Omaha & R. V. R. R. Co. v. Standen, 22 Neb. 343, 35 N. W. 183. [^Depreciation in value by reason of noise, smoke, and vibration incident to the operation of a railway near by, but entirely on lands of private persons, is " damage " within meaning of the term in the constitution, though no land taken. Gainesville, H. & W. Ry. Co. v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298.] 2 Hot Springs R. R. Co. v. Williamson, 45 Ark. 429 ; Columbus & W. Ry. Co. w. Witherow, 82 Ala. 190, 3 So. 23; Denver v. Bayer, 7 Col. 113, 2 Pac. 6 ; Denver & R. G. Ry. Co. v. Bourne, 11 Col. 59, 16 Pac. 839 ; McMahon v. St. Louis, &c. Hy. Co., 41 La. Ann. 827, 6 So. 640; Gulf C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467 ; G.ottschalk v. Chicago, &c. R. R. Co., 14 Neb. 550, 16 N. W. 475, 17 N. W. 120. [Reining v. N. 'Y. L. & W. Ry. Co., 128 N. Y. 157, 623, 28 N. E. 640, 14 L. R. A. 133 ; Jones v. Erie & W. V. Ry. Co., 151 Pa. St. 30, 25 Atl. 134, 31 Am. St. 722, 17 L. R. A. 758. So damages have been awarded under such circumstances though no such specific constitutional provision. Kansas N. & D. Ry. Co. v. Cuykendall, 42 Kan. 234, 21 Pac. 1051, 16 Am. St. 479.} So of a street railroad. Campbell v. Metrop. St. Ry. Co., 82 Ga. 320, 9 S. E. 1078. In Illinois it is so held as to a track in a road : Chicago & W. I. R. R. Co. v. Ayres, 106 III. 511 ; but not as to one laid in the street of a city by its permission under legislative authority. Olney v. Wharf, 115 111. 519, 6 N. E. 366. Nor can a railroad which crosses a street com- plain that another crosses it in the street. Kansas City, St. J., &c. R. R. Co. v. St. Joseph, &c. Co., 97 Mo. 457, 10 S. W. 826. 8 Reardon v. San Francisco, 66 Cal. * Rigney v. Chicago, 102 111. 64 ; Chi- cut off. Pa. S. V. R. R. Co. v. Walsh, 124 cago v. Taylor, 125 U. S. 161, 8 Sup. Ct. Pa. St. 544, 17 Atl. 186, 10 Am. St. Oil. Rep. 820; Chicago, K. & N. Ry. Co. v. See also Quigley v. Pa. S. V. R. R. Co., Hazels, 26 Neb. 364, 42 N. W. 93. So if 121 Pa. St. 35, 15 Atl. 478. access is rendered dangerous where not 812 CONSTITUTIONAL LIMITATIONS. [CH. XV. other damage from the construction of public works. 1 It has been denied, however, where a railway viaduct has been built on the other side of a narrow street from the plaintiff's lot, 2 and where the street has been rendered impassable at some distance from the property of the complaining party, 3 and where the damage results from the operation and not the construction of the work. 4 Compensation for Property Taken. It is a primary requisite, in the appropriation of lands for pub- lic purposes, that compensation shall be made therefor. Eminent domain differs from taxation in that, in the former case, the citi- zen is compelled to surrender to the public something beyond his due proportion for the public benefit. The public seize and ap- propriate his particular estate, because of a special need for it, and not because it is right, as between him and the government, that he should surrender it. 5 To him, therefore, the benefit and protection he receives from the government are not sufficient compensation; for those advantages are the equivalent for the taxes he pays, and the other public burdens he assumes in common with the community at large. And this compensation must be 492, 6 Pac. 317 ; Atlanta v. Green, 67 Ga. 386; Moon v. Atlanta, 70 Ga. 611; Sheehy v. Kansas City, &c. Co., 94 Mo. 674, 7 S. W. 579; New Brighton v. Peir- sol, 107 Pa. St. 280; Hutchinson v. Par- kersburg, 25 W. Va. 226. So as to the establishment of the grade. Harmon v. Omaha, 17 Neb. 548, 23 N. W. 503. But if after a grade is established one buys and the walk is then cut down to grade, there is no damage. Denver v. Vernia, 8 Col. 399, 8 Pac. 656. In Alabama there is none, if the change might have been anticipated. City Council of Montgom- ery t-. Townsend, 80 Ala. 489. 1 In Omaha Horse Ry. Co. v. Cable Tramway Co., 32 Fed. Rep. 727, the lay- ing of a cable road by the side of a horse railroad was held a damaging. So of the erection of a bridge near a ferry. Mason v. Harper's Ferry B. Co , 17 W. Va. 396. But the clogging of a stream caused by the removal of timber incidental to proper railroad construction is not a ground for damages. Trinity & S. R. Ry. Co. v. Meadows, 73 Tex. 32, 11 S. W. 145. 2 Pennsylvania R. R. Co. v. Lippin- cott, 116 Pa. St. 472, 9 Atl. 871 ; Penn- sylvania R. R. Co. v. Marchant, 119 Pa. St. 541, 13 Atl. 690, 4 Am. St. 659. QSee Pennsylvania, &c. Ry. v. Walsh, 124 Pa. St. 644, 17 Atl. 186, 10 Am. St. 611, where these cases are interpreted as holding that the constitutional provision was not in- tended to apply to injuries which are the result of the operation of the railway, as distinguished from such as result from its construction. It is here held that where access to abutting property is cut off or rendered dangerous, the provision is ap- plicable.] 3 Rude v. St. Louis, 93 Mo. 408, 6 S. W. 257 ; East St. Louis v. O'Flynn, 119 III. 200, 10 N. E. 395. 4 Pennsylvania R. R. Co. v. Marchant, 119 Pa. St. 541, 13 Atl. 690, 4 Am. St. 659. See Caledonian Ry. Co. v. Walker's Trustees, L. R. 7 App. Gas. 259. Nor may damages be given for negligence in the construction. Edmundson v. Pitts- burgh, &c. R. R. Co., Ill Pa. St. 316, 2 Atl. 404; Atlanta v. Word, 78 Ga. 276. Contra, Omaha & R. V. R. R. Co. v. Standen, 22 Neb. 343, 35 N. W. 183. 5 People v. Mayor, &c. of Brooklyn, 4 N. Y. 419; Woodbridge v. Detroit, 8 Mich. 274; Booth v. Woodbury, 32 Conn. 118. CH. XV.] THE EMINENT DOMAIN. 813 pecuniary in its character, because it is in the nature of a payment for a compulsory purchase. 1 The time when the compensation must be made may depend upon the peculiar constitutional provisions of the State. In some of the States, by express constitutional direction, compensation must be made before the property is taken. No constitutional principle, however, is violated by a statute which allows private property to be entered upon and temporarily occupied for the purpose of a survey and other incipient proceedings, with a view to judging and determining whether or not the public needs re- quire the appropriation, and, if they do, what the proper location shall be ; and the party acting under this statutory authority would neither be bound to make compensation for the temporary possession, nor be liable to action of trespass. 2 When, however, the land has been viewed, and a determination arrived at to ap- propriate it, the question of compensation is to be considered ; and in the absence of any express constitutional provision fixing the time and the manner of making it, the question who is to take the property whether the State, or one of its political divisions or municipalities, or, on the other hand, some private corporation may be an important consideration. When the property is taken directly by the State, or by any municipal corporation by State authority, it has been repeatedly held not to be essential to the validity of a law for the exercise of the right of eminent domain, that it should provide for making compensation before the actual appropriation. It is sufficient if provision is made by the law by which the party can obtain com- pensation, and that an impartial tribunal is provided for assess- ing it. 3 The decisions upon this point assume that, when the 1 The effect of the right of eminent that taken and the amount of damages domain against the individual "amounts for injury to that not taken. This results to nothing more than a power to oblige in a taking without compensation. City him to sell and convey when the public of Bloomington v. Latham, 142 111. 462, necessities require it." Johnson, J., in 32 N. E. 606, 18 L. R. A. 487.] The Fletcher v. Peck, 6 Cranch, 87, 145. And power of a treaty is such that it may take see Bradshaw v. Rogers, 20 Johns. 103, private property without compensation, per Spencer, Ch. J. ; People v. Mayor, &c. Cornet v. Winton, 2 Yerg. 143. of Brooklyn, 4 N. Y. 419 ; Carson v. Cole- 2 Bloodgood v. Mohawk & Hudson R. man, 11 N. J. Eq.106; Young v. Harrison, R. Co., 14 Wend. 51, and 18 Wend. 9; 6 Ga. 130; United States v. Minnesota, Cushman v. Smith, 34 Me. 247; Nichols &c. R. R. Co., 1 Minn. 127 ; Railroad Co. v. Somerset, &c. R. R. Co., 43 Me. 356; w. Ferris, 26 Tex. 588; Currant;. Shattuck, Mercer c. Me Williams, Wright (Ohio), 24Cal.427; State v. Graves, 19 Md. 351 ; 132; Walther v. Warner, 25 Mo. 277; Weckler v. Chicago, 61 111.142, 147. Fox v. W. P. R. R. Co., 31 Cal. 538; State (^Constitutional requirement of compen- t. Seymour, 35 N. J. 47, 53. sation is not satisfied by taxing back on 8 Bloodgood v. Mohawk & Hudson portion of lands not taken, the value of R. R. Co., 18 Wend. 9 ; Rogers v. Brad- 814 CONSTITUTIONAL LIMITATIONS. [CH. XV. State has provided a remedy by resort to which the party can have his compensation assessed, adequate means are afforded for its satisfaction ; since the property of the municipality, or of the State, is a fund to which he can resort without risk of loss. 1 It shaw, 20 Johns. 744; Calking r. Baldwin, 4 Wend. 667, 21 Am. Dec. 168; Case v. Thompson, 6 Wend. 634 ; Fletcher v. Auburn & Syracuse R. K. Co., 25 Wend. 462; Rexford v. Knight, 11 N. Y. 308; Taylor v. Marcy, 25 111. 518; Callison v. Hedrick, 15 Gratt. 244 ; Jackson v. Winn's Heirs, 4 Lit. 323; People v. Green, 3 Mich. 496 ; Lyon v. Jerome, 26 Wend. 485, 497, per Verplanck, Senator; Gard- ner v. Newburg, 2 Johns. Ch. 162, 7 Am. Dec. 526; Charlestown Branch R. R. Co. v. Middlesex, 7 Met. 78 ; Har- per v. Richardson, 22 Cal. 251 ; Baker v. Johnson, 2 Hill, 342 ; People v. Hayden, 6 Hill, 359 ; Orr v. Quimby, 54 N. H. 590; Ash v. Cummings, 50 N. H. 591; White v. Nashville, &c. R. R. Co., 7 Heisk. 518 ; Simrns v. Railroad Co., 12 Heisk. 621 ; State v. Messenger, 27 Minn. 119, 6 N. W. 457 ; Chapman v. Gates, 54 N. Y. 132 ; Hamersley v. New York, 56 N. Y. 633 ; Lovveree v. Newark, 38 N. J. 151 ; Brock v. Hishen, 40 Wis. 674 ; Long v. Fuller, 68 Pa. St. 170 (case of a school district) ; Smeaton v. Martin, 57 Wis. 364, 15 N. W. 403 ; Com'rs of State Park v. Henry, 88 Minn. 266, 36 N. H. 874. [Provision re- quiring payment into court in case of an appeal from assessment, of double the amount of the assessment is adequate. Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641, 10 Sup. Ct, Rep. 965 ; Sweet v. Rechel, 159 U. S. 380, 40 L. ed. U. S. 188, and note, 16 Sup. Ct. Rep. 43 ; Backus v. Fort St. Union Depot Co., 169 U. S. 657, 42 L. ed. U. S. 853, and note, 18 Sup. Ct. Rep. 445 ; Consumer's Gas Trust Co. r. Harless, 131 Ind. 446, 29 N. E. 1062, 15 L. R. A. 605. But pro- vision for payment into court of only the amount awarded is not sufficient. Harris- burg C. & C. T. R. Co. '. Harrisburg & M. E. Ry. Co., 177 Pa. St. 585, 35 Atl. 850, 34 L. R. A. 439.] The same rule applies to the United States. Great Falls M'f'g Co. v. Garland, 25 Fed. Rep. 621 : " Al- though it may not be necessary, within the constitutional provision, that the amount of compensation should be actu- ally ascertained and paid before property is thus taken, it is, I apprehend, the set- tled doctrine, even as respects the State itself, that at least certain and ample pro- vision must first be made by law (except in cases of public emergency), so that the owner can coerce payment through the judicial tribunals or otherwise, with- out any unreasonable or unnecessary delay ; otherwise the law making the appropriation is no better than blank paper. Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9. The provisions of the statute prescribing the mode of compensation in cases like the present, when properly understood and adminis- tered, come fully up to this great funda- mental principle ; and even if any doubt could be entertained about their true construction, it should be made to lean in favor of the one that is found to be most in conformity with the constitutional requisite." People v. Hayden, 6 Hill, 359, 301 ; [Branson v. Gee, 25 Oreg. 462, 36 Pac. 527, 24 L. R. A. 355 ; Old Colony Ry. Co. v. Framingham Water Co., 163 Mass. 601, 27 N. E. 662, 13 L. R. A. 332; Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. Rep. 43.] " A provision for com- pensation is an indispensable attendant upon the due and constitutional exercise of the power of depriving an individual of his property." Gardner v. Newburg, 2 Johns. Ch. 162, 168, 7 Am. Dec. 526 ; Buffalo, &c. R. R. Co. v. Ferris, 26 Tex. 588; Ash v. Cummings, 50 N. H. 691, 613; Haverhill Bridge Proprietors v. County Com'rs, 103 Mass. 120, 4 Am. Rep. 518 ; Langford v. Com'rs of Ramsay Co., 16 Minn. 375; Southwestern R. R. Co. v. Telegraph Co., 46 Ga. 43. [Statute making no provision for measuring com- pensation is void. Mulligan v. City of Perth- Amboy, 52 N. J. L. 132, 18 Atl. 670. See also Tuttle v. Justice of Knox County, 89 Tenn. 157, 14 S. W. 486; Cherokee Nation v. Southern K. Ry. Co., 135 U. S. 641, 10 Sup. Ct. Rep. 965; Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. Rep. 48.] 1 In Commissioners, &c. v. Bowie, 34 Ala. 461, it was held that a provision by CH. XV.] THE EMINENT DOMAIN. 815 is essential, however, that the remedy be one to which the party can resort on his own motion ; (a) if the provision be such that only the public authorities appropriating the land are authorized to take proceedings for the assessment, it must be held to be void. 1 But if the remedy is adequate, and the party is allowed to pursue it, it is not unconstitutional to limit the period in which he shall resort to it, and to provide that, unless he shall take proceedings for the assessment of damages within a specified time, all right thereto shall be barred. 2 The right to compensation, when prop- erty is appropriated by the public, may always be waived ; 3 and law that compensation, when assessed, should be paid to the owner by the county treasurer, sufficiently secured its payment. And see Zimmerman v. Can- field, 42 Ohio St. 463 ; Talbot v. Hudson, 16 Gray, 417 ; Chapman o. Gates, 64 N. Y. 132. But it is not competent to leave compensation to be made from the earn- ings of a railroad company. Conn. Riv. R. R. Co. v. Commissioners, 127 Mass. 60, 34 Am. Dec 338. QAs to whether sufficient where provision is for payment out of special fund of municipality, see In re Lincoln Park, 44 Minn. 299, 46 N. W. 355.3 1 Shepardson v. Milwaukee & Be- loit R. R. Co., 6 Wis. 605; Powers v. Bears, 12 Wis. 213. See McCann v, Sierra Co., 7 Cal. 121; Colton v. Rossi, 9 Cal. 595; Ragatz v. Dubuque, 4 Iowa, 343. An impartial tribunal for the ascer- tainment of the damage must exist when the land is taken. State v. Perth Amboy, 62 N. J. L. 132, 18 Atl. 670. But in People v. Hayden, 6 Hill, 359, where the statute provided for appraisers who were to proceed to appraise the land as soon as it was appropriated, the proper remedy of the owner, if they failed to perform this duty, was held to be to apply for a mandamus. If land is taken without pro- vision for compensation, the owner has a common-law remedy. Hooker v. New Haven, &c. Co., 16 Conn. 146, 36 Am. Dec. 477. The party making an appro- priation may abandon it if the terms, when ascertained, are not satisfactory. Lamb v. Schotter, 64 Cal. 319. But not after judgment : Drath v. Burlington, &c. R. R. Co., 15 Neb. 367, 18 N. W. 717 ; nor after verdict when an appeal has been taken and entry made. Witt i;. St. Paul, &c. R. R. Co., 35 Minn. 404, 29 N. W. 161. But see Denver & N. 0. R. R. Co. v. Lamborn, 8 Col. 880, 8 Pac. 582, contra. 2 People u. Green, 3 Mich. 496 ; Charles- town Branch R. R. Co. v. Middlesex, 7 Met. 78; Rexford v. Knight, 11 N. Y. 308; Taylor v. Marcy, 25 111. 518; Cam- son v. Hedrick, 15 Grat. 244 ; Gilmer v. Lime Point, 18 Cal. 229; Harper v. Rich- ardson, 22 Cal. 251 ; Cupp v. Commis- sioners of Seneca, 19 Ohio St. 173; Cage r. Tracer, 60 Miss. 663. fjSee Snohomish County v. Hay wood, 11 Wash. 429, 39 Pac. 652, to the effect that compensation must not be dependent upon application for it. Contra, Branson v. Gee, 25 Oreg. 462, 36 Pac. 627, 24 L. R. A. 855.] 8 Matter of Albany St., 11 Wend. 149, 25 Am. Dec. 618; Brown v. Worcester, 13 Gray, 31 ; ante, p. 250. (^Uncondi- tional consent in writing to construction is waiver of compensation. White v. Manhattan Ry. Co., 139 N. Y. 19, 34 N. E. 887. Knowledge of construction without objection is not a waiver. Maysville & B. S. Ry. Co. v. Ingraham, 16 Ky. L. 853, 30 S. W. 8. See further upon this ques- tion of waiver, Abendroth v. Manhattan Ry. Co., 122 N. Y. 1, 25 N. E. 496, 19 Am. St. 461, 11 L. R. A. 634; Pennsylvania Co. v. Platt, 47 Ohio, 366, 25 N. E. 1028 ; (a) FJHickman v. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658. The constitutional guarantee is for the protection of a right and not for the redress of a wrong, and a rule which permits land to be taken without proof of the right to do so, and casts upon the owner the burden of instituting proceedings to save his property, does not meet the constitutional requirement. Stearns v. Barre, 73 Vt. 281, 60 Atl. 1086, 87 Am. St. 781.] 816 CONSTITUTIONAL LIMITATIONS. [CH. XV. a failure to apply for and have the compensation assessed, when reasonable time and opportunity and a proper tribunal are afforded for the purpose, may well be considered a waiver. Where, however, the property is not taken by the State, or by a municipality, but by a private corporation which, though for this purpose to be regarded as a public agent, appropriates it for the benefit and profit of its members, and which may or may not be sufficiently responsible to make secure and certain the payment, in all cases, of the compensation which shall be assessed, it is cer- tainly proper, and it has sometimes been questioned whether it was not absolutely essential, that payment be actually made before the owner could be divested of his freehold. 1 Chancellor Kent has expressed the opinion that compensation and appropriation should be concurrent. " The settled and fundamental doctrine is, that government has no right to take private property for pub- lic purposes without giving just compensation ; and it seems to be necessarily implied that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception, concurrently in point of time with the actual exercise of the right of eminent domain." 2 And while this is not an inflexible rule unless in terms established by the constitution, it is so just and reasonable that statutory provisions for taking private property very generally make payment precede or accom- pany the appropriation, and by several of the State constitutions this is expressly required. 3 And on general principles it is essen- tial that an adequate fund be provided from which the owner of Quackenbush v. District of Columbia, 20 tion of Iowa, art. 1, 18; Constitution of 1). C. 300. Acquiescence in construction Kansas, art. 12, 4 ; Constitution of Ken- is waiver : Merchant, Union Barb-wire tucky, art. 13, 14 ; Constitution of Co. v. C. R, I. & P. Ry. Co., 79 Iowa, 613, Maryland, art. 1, 40; Constitution of 44 N. W. 900.] Minnesota, art. 1, 13; Constitution 1 This is the intimation in Shepard- of Mississippi, art. 1, 13; Constitution son v. Milwaukee & Beloit R. R. Co., of Missouri, art. 2, 21 ; Constitution of Wis. 605; Powers v. Bears, 12 Wis. 213; Nevada, art. 1, 8; Constitution of State v. Graves, 19 Md. 351; Dronberger Ohio, art. 1, 19; Constitution of Penn- v. Reed, 11 Ind. 420; Loweree v. Newark, sylvania, art. 1, 10. The Constitution 38 N. J. 151. QBrown v. Chicago, R. I. of Indiana, art. 1, 21, and that of Ore- & P. Ry. Co., Neb. , 02 N. \V. 128.] gon, art. 1, 19, require compensation But see Calking U.Baldwin, 4 Wend. 667, to be first made, except when the prop- 21 Am. Dec. 168. erty is appropriated by the State. The 2 2 Kent, 339, note. Constitution of Alabama, art. 1, 24, and 3 The Constitution of Florida provides of South Carolina, art. 1, 23, are in legal " that private property shall not be taken effect not very different. A construction or applied to public use, unless just com- requiring payment before appropriation pensation be first made therefor." Art. 1, is given to the Constitution of Illinois. 14. See also, to the same effect, Con- Cook v. South Park Com'rs, 61 111. 115, Btitution of Colorado, art. 1, 15; Consti- and cases cited; Phillips v. South Park tution of Georgia, art. 1, 17 ; Constitu- Com'rs, 119 111. 626, 10 N. E. 230. CH. XV.] THE EMINENT DOMAIN. 817 the property can certainly obtain compensation ; it is not com- petent to deprive him of his property, and turn him over to an action at law against a corporation which may or may not prove responsible, and to a judgment of uncertain efficacy. 1 For the consequence would be, in some cases, that the party might lose his estate without redress, in violation of the inflexible maxim upon which the right is based. What the tribunal shall be which is to assess the compensation must be determined either by the constitution or by the statute which provides for the appropriation. The case is not one where, as a matter of right, the party is entitled to a trial by jury, un- less the constitution has provided that tribunal for the purpose. 2 Nevertheless, the proceeding is judicial in its character, and the party in interest is entitled to have an impartial tribunal, and the usual rights and privileges which attend judicial investiga- tions. 3 It is not competent for the State itself to fix the compen- sation through the legislature, for this would make it the judge in its own cause. 4 And, if a jury is provided, the party must have the ordinary opportunity to appear when it is to be impanelled, that he may make any legal objections. 5 And he has the same 1 Shepardson v. Milwaukee & Beloit R. It. Co., 6 Wis. 605 ; Walther v. War- ner, 25 Mo. 277 ; Gilmer v. Lime Point, 18 Cal. 229 ; Curran v. Shattuck, 24 Cal. 427 ; Memphis & Charleston R. R. Co. v. Payne, 37 Miss. 700 ; Henry v. Dubuque & Pacific R. 11. Co., 10 Iowa, 540 ; Ash v. Cummings, 60 N. H. 691 ; Carr v. Georgia R. R. Co., 1 Ga. 524 ; Southwest- ern R. R. Co.v. Telegraph Co., 46 Ga.43; Yazoo Delta Levee Board v. Dancy, 65 Miss. 335, 3 So. 568 ; State v. Mclver, 88 N. C. 686. Statutory provisions for a de- posit under an order of court pending a contest about compensation, in order that the work may not be delayed, are valid. Ex parte Reynolds, 52 Ark. 330, 12 S. W. 670, citing St. Louis & S. F. R. R. Co. v. Evans, &c. Brick Co., 85 Mo. 307 ; Centr. B. U. P. R. R. Co. v. Atchison, &c. Co., 28 Kan. 453 ; Wagner v. Railway Co., 38 Ohio St. 32. See also McClain v. People, 9 Col. 190, 11 Pac. 85. [Upon question of whether provision for payment out of a special fund of a municipality is suffi- cient, see In re Lincoln Park, 44 Minn. 299, 46 N. W. 355.] 2 Petition of Mount Washington Co., 35 N. IL 134; Ligat v. Commonwealth, 19 Pa. St. 456, 460; Rich v. Chicago, 59 111. 286 ; Ames v. Lake Superior, &c. R. R. Co., 21 Minn. 241 ; United States v. Jones, 109 U. S. 513, 3 Sup. Ct. Rep. 346 ; Oliver v. Union, &c. R. R. Co., 83 Ga. 257,9 S. E. 1086. 8 Rich v . Chicago, 59 111. 286 ; Cook v. South Park Com'rs, 61 111. 115; Ames v. v. Lake Superior, &c. R. R. Co., 21 Minn. 241. [[Question of compensation is a judicial one and not for the legislature. Monongahela Nav. Co. v. United States, 148 U. S. 312, 13 Sup. Ct. Rep. 622.] Whatever notices, &c., the law requires, must be given. People r. Kniskern, 54 N. Y. 62 ; Powers's Appeal, 29 Mich. 504. A judgment for damages where a railroad has entered without paying is enforceable against a purchaser of the road upon foreclosure. Buffalo, N. Y. & P. R. R. Co. v. Harvey, 107 Pa. St. 319. 4 Charles River Bridge v. Warren Bridge, 7 Pick. 344, 11 Pet. 420, 671, per McLean, J. And see Rhine v. McKin- ney, 53 Tex. 354 ; Tripp v. Overocker, 7 Col. 72, 1 Pac. 695. 6 People v. Tallman, 36 Barb. 222; Booneville v. Ormrod, 26 Mo. 193. That it is essential to any valid proceedings for the appropriation of land to public uses that the owner have notice and an 52 818 CONSTITUTIONAL LIMITATIONS. [CH. XV. right to notice of the time and place of assessment that he would have in any other case of judicial proceedings, and the assessment will be invalid if no such notice is given. 1 These are just, as well as familiar rules, and they are perhaps invariably recognized in legislation. It is not our purpose to follow these proceedings, and to at- tempt to point out the course of practice to be observed, and which is so different under the statutes of different States. An inflexible rule should govern them all, that the interest and ex- clusive right of the owner is to be regarded and protected so far as may be consistent with a recognition of the public necessity. While the owner is not to be disseised until compensation is pro- vided, neither, on the other hand, when the public authorities have taken such steps as finally to settle upon the appropriation, ought he to be left in a state of uncertainty, and compelled to wait for compensation until some future time, when they may see fit to use his land. The land should either be his or he should be paid for it. Whenever, therefore, the necessary steps have been taken on the part of the public to selecb the property to be taken, locate the public work, and declare the appropriation, the owner becomes absolutely entitled to the compensation, whether the public proceed at once to occupy the property or not. If a street is legally es- tablished over the land of an individual, he is entitled to demand payment of his damages, without waiting for the street to be opened. 2 And if a railway line is located across his land, and the opportunity to be heard, see Baltimore, upon its view of the land. Grand Rapids &c., R. R. Co. v. Pittsburg, &c. R. R. Co., v. Perkins, 78 Mich. 93, 43 N. W. 1037. 17 W.Va. 812. A jury, without further 1 Hood v. Finch, 8 Wis. 381; Dickey explanation in the law, must be under- v. Tennison, 27 Mo. 373; Powers's Ap- stood as one of twelve persona. Lamb v. peal, 29 Mich. 504. Notice by publica- Lane, 4 Ohio St. 167. See ante, p. 455. tion may be sufficient. Huling v. Kaw Where a jury is the constitutional tribu- Valley Ry. Co., 130 U. S. 559, 9 Sup. Ct. nal, it is not waived by failure to demand Eep. 603 ; Missouri Pac. Ry. Co. v. House- it. Port Huron, &c. Ry. Co. v. Callanan, man, 41 Kan. 300, 304, 21 Pac. 284. As 61 Mich. 12, 27 N. W. 717. Nor can a to the right to order reassessments, see court of chancery usurp its functions. Clark v. Miller, 54 N. Y. 528. Clark v. Drain Com'r, 50 Mich. G18, 16 2 Philadelphia v. Dickson, 38 Pa. St. N. W. 167. It must act even where an 247; Philadelphia v. Dyer, 41 Pa. St. officer only takes material from an indi- 463 ; Hallock v. Franklin County, 2 Met. vidual's land to repair roads. Hender- 658; Harrington v. County Commission- shot v. State, 44 Ohio St. 208, 6 N. E. ers, 22 Pick. 263 ; Blake v. Dubuque, 13 245. It need not, where the amount of a Iowa, 66 ; Higgins v. Chicago, 18 111. 276; deposit is to be fixed, pending a final de- County of Peoria v. Harvey, 18 111. 364; termination of compensation. Ex parte Shaw v. Charlestown, 3 Allen, 538; Reynolds, 52 Ark. 330, 12 S. W. 570. But Hampton v. Coffin, 4 N. H. 517 ; Clough v. see Wagner v. Railway Co., 38 Ohio St. Unity, 18 N. H. 75. And where a city 32. The jury may not disregard testi- thus appropriates land for a street, it mony and determine compensation solely would not be allowed to set up, in defence CH. XV.] THE EMINENT DOMAIN. 819 damages are appraised, his right to payment is complete, and he cannot be required to wait until the railway company shall actually occupy his premises, or enter upon the construction of the road at that point. It is not to be forgotten, however, that the proceed- ings for the assessment and collection of damages are statutory, and displace the usual remedies ; that the public agents who keep within the statute are not liable to common-law action; 1 that it is only where they fail to follow the statute that they render themselves liable as trespassers; 2 though if they construct their work in a careless, negligent, and improper manner, by means of which carelessness, negligence, or improper construction a party is injured in his rights, he may have an action at the common law as in other cases of injurious negligence. 3 The principle upon which the damages are to be assessed is al- ways an important consideration in these cases ; and the circum- stances of different appropriations are sometimes so peculiar that it has been found somewhat difficult to establish a rule that shall always be just and equitable. If the whole of a man's estate is taken, there can generally be little difficulty in fixing upon the measure of compensation ; for it is apparent that, in such a case, he ought to have the whole market value of his premises, and he cannot reasonably demand more. The question is reduced to one of market value, to be determined upon the testimony of those who have knowledge upon that subject, or whose business or ex- perience entitles their opinions to weight. It may be that, in such a case, the market value may not seem to the owner an adequate compensation ; for he may have reasons peculiar to himself, spring- ing from association, or other cause, which make him unwilling to part with the property on the estimate of his neighbors ; but such reasons are incapable of being taken into account in legal proceed- ings, where the question is one of compensation in money, inas- much as it is manifestly impossible to measure them by any standard of pecuniary value. Concede to the government a right to appro- priate the property on paying for it, and we are at once remitted to the same standards for estimating values which are applied in to a demand for compensation, its own tibone v. La Crosse & Milwaukee R. R. irregularities in the proceedings taken to Co., 14 Wis. 443; Vilas v. Milwaukee & condemn the land. Higgins v. Chicago, 18 Mississippi R. R. Co., 15 Wis. 233. III. 276 ; Chicago v. Wheeler, 25 111. 478. 2 Dean v. Sullivan R. R. Co., 22 N. H. 1 East & West India Dock, &c. Co. 316 ; Furniss v. Hudson River R. R. Co., v. Gattke, 15 Jur. 61 ; Kimble v. White 5 Sandf. 651. Water Valley Canal, 1 Ind. 285 ; Mason 3 Lawrence v. Great Northern R. Co., v. Kennebec, &c. R. R. Co., 31 Me. 215; 20 L. J. Q. B. 293; Bagnall v. London & Aldrich v. Cheshire R. R. Co., 21 N. H. N. W. R., 7 H. & N. 423 ; Brown v. Cayuga 359; Brown v. Beatty, 34 Miss. 227 ; Pet- & Susquehanna R. R. Co., 12 N. Y. 486. 820 CONSTITUTIONAL LIMITATIONS. [CH. XV. other cases, and which necessarily measure the worth of property by its value as an article of sale, or as a means of producing pecu- niary returns. When, however, only a portion of a parcel of land is appro- priated, just compensation may perhaps depend upon the effect which the appropriation may have on the owner's interest in the remainder, to increase or diminish its value, in consequence of the use to which that taken is to be devoted, or in consequence of the condition in which it may leave the remainder in respect to convenience of use. If, for instance, a public way is laid out through a tract of land which before was not accessible, and if in consequence it is given a front, or two fronts, upon the street, which furnish valuable and marketable sites for building lots, it may be that the value of that which remains is made, in conse- quence of taking a part, vastly greater than the whole was before, and that the owner is benefited instead of damnified by the appro- priation. Indeed, the great majority of streets in cities and vil- lages are dedicated to the public use by the owners of lands, with- out any other compensation or expectation of compensation than the increase in market value which is expected to be given to such lands thereby ; and this is very often the case with land for other public improvements, which are supposed to be of peculiar value to the locality in which they are made. But where, on the other hand, a railroad is laid out across a man's premises, running be- tween his house and his out-buildings, necessitating, perhaps, the removal of some of them, or upon such a grade as to render deep cuttings or high embankments necessary, and thereby greatly in- creasing the inconveniences attending the management and use of the land, as well as the risks of accidental injuries, it will often happen that the pecuniary loss which he would suffer by the ap- propriation of the right of way would greatly exceed the value of the land taken, and to pay him that value only would be to make very inadequate compensation. It seems clear that, in these cases, it is proper and just that the injuries suffered and the benefits received by the proprietor, as owner of the remaining portion of the land, should be taken into account in measuring the compensation. This, indeed, is gener- ally conceded ; but what injuries shall be allowed for, or what benefits estimated, is not always so apparent. The question, as we find it considered by the authorities, seems to be, not so much what the value is of that which is taken, but whether what re- mains is reduced in value by the appropriation, and if so, to what extent; in other words, what pecuniary injury the owner sus- tains by a part of his land being appropriated. But, in estimating cir. xv.] THE EMINENT DOMAIN. 821 either the injuries or the benefits, those which the owner sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use, and enjoyment of the particular parcel of land, should be alto- gether excluded, as it would be unjust to compensate him for the one, or to charge him with the other, when no account is taken of such incidental benefits and injuries with other citizens who receive or feel them equally with himself, but whose lands do not chance to be taken. 1 1 In Somerville & Easton R. R. Co. ads. Doughty, 22 N. J. 495, a motion was made for a new trial on an assessment of compensation for land taken by a railroad company, on the ground that the judge in his charge to the jury informed them "that they were authorized by law to ascertain and assess the damages sus- tained by the plaintiff to his other lands not taken and occupied by the defendants ; to his dwelling-house, and other buildings and improvements, by reducing their value, changing their character, obstruct- ing their free use ; by subjecting his buildings to the hazards of fire, his fam- ily and stock to injury and obstruction in their necessary passage across the road ; the inconvenience caused by embank- ments or excavations, and, in general, the effect of the railroad upon his adja- cent lands, in deteriorating their value in the condition they were found, whether adapted for agricultural purposes only, or for dwellings, stores, shops, or other like purposes." "On a careful review of this charge," says the judge, delivering the opinion of the court, " I cannot see that any legal principle was violated, or any unsound doctrine advanced. The charter provides that the jury shall assess the value of the land and materials taken by the company, and the damages. The damages here contemplated are not damages to the land actually occupied or covered by the road, but sucli damages as the owner may sus- tain in his other and adjacent lands not oc- cupied by the company's road. His build- ings may be reduced in value by the con- tiguity of the road and the use of engines upon it. His lands and buildings, before adapted and used for particular purposes, may, from the same cause, become utterly unfitted for such purposes. The owner may be incommoded by high embank- ments or deep excavations on the line of the road, his buildings subjected to greater hazard from fire, his household and stock to injury and destruction, unless guarded with more than ordinary care. It requires no special experience or saga- city to perceive that such are the usual and natural effects of railroads upon the adjoining lands, and which necessarily de- teriorate not only their marketable but their intrinsic value. The judge, there- fore, did not exceed his duty in instruct- ing the jury that these were proper sub- jects for their consideration in estimating the damages which the plaintiff might sustain by reason of the location of this road upon and across his lands." And in the same case it was held that the jury, in assessing compensation, were to adopt as the standard of value for the lands taken, not such a price as they would bring at a forced sale in the market for money, but such a price as they could bo purchased at, provided they were for sale, and the owner asked such prices as, in the opinion of the community, they were rea- sonably worth ; that it was matter of uni- versal experience that land would not always bring at a forced sale what it was reasonably worth, and the owner, not de- siring to sell, could not reasonably be re- quired to take less. In Sater v. Burlington & Mount Pleasant Plank Road Co., 1 Iowa, 386, 393, Isbell, J., says : " The terms used in the constitution, 'just com- pensation,' are not ambiguous. They un- doubtedly mean a fair equivalent; that the person whose property is taken shall be made whole. But while the end to be attained is plain, the mode of arriving at it is not without its difficulty. On due consideration, we see no more practical rule than to first ascertain the fair mar- ketable value of the premises over which the proposed improvement is to pass, ir- respective of such improvement, and also a like value of the same, in the condition 822 CONSTITUTIONAL LIMITATIONS. [CH. XY. The question, then, in these cases, relates first to the value of the land appropriated ; which is to be assessed with reference to what it is worth for sale, in view of the uses to which it may he applied, and not simply in reference to its productiveness to the owner in the condition in which he has seen fit to leave it. 1 Sec- ond, if less than the whole estate is taken, then there is further to be considered how much the portion not taken is increased or diminished in value in consequence of the appropriation. 2 in which they will be immediately after the land for the improvement has been taken, irrespective of tlie benefit which will result from the improvement, and the difference in value to constitute the measure of compensation. But in ascer- taining the depreciated value of the prem- ises after that part which has been taken for public use has been appropriated, re- gard must be had only to the immediate, and not remote, consequence of the ap- propriation ; that is to say, the value of the remaining premises is not to be de- preciated by heaping consequence on con- sequence. While we see no more practical mode of ascertainment than this, yet it must still be borne in mind that this is but a mode of ascertainment; that, after all, the true criterion is tlie one provided by tlie constitution, namely, just compen- sation for tlie property taken." See this rule illustrated and applied in Henry v. Dubuque & Pacific R. R. Co., 2 Iowa, 300, where it is said : " That the language of the constitution means that the person whose property is taken for public use shall have a fair equivalent in money for the injury done him by such taking; in other words, that he shall be made whole so far as money is a measure of compen- sation, we are equally clear. This just compensation should be precisely com- mensurate with the injury sustained by having the property taken ; neither more nor less." And see Richmond, &c. Co. v. Rogers, 1 Duvall, 135; Robinson v. Rob- inson, 1 Duvall, 162; Holton v. Milwau- kee, 31 Wis. 27 ; Root's Case, 77 Pa. St. 276; East Brandy wine, &c. R. R. Co. v. Ranck, 78 Pa. St. 454. FJThe compensa- tion to which owner is entitled for land taken for a street includes in addition to the value of land taken such expenses as are naturally incident to the taking, like cost of moving fence and the like. City of Detroit v. Beecher, 75 Mich. 454, 42 N. W. 986, 4 L. R. A. 813 ; but not future and contingent expenses like assessments for improvements, nor for removing snow from sidewalks, for grading or paving. tdl 1 Matter of Furman Street, 17 Wend. 649; Tidewater Canal Co. i?. Archer, 9 Gill & J. 479; Sater v. Burlington, &c. R. R. Co., 1 Iowa, 386; Parks v. Boston, 15 Pick. 206; First Parish, &c. v. Middle- sex, 7 Gray, 106; Dickenson v. Inhab- itants of Fitchburg, 13 Gray, 546; Lex- ington v. Long, 31 Mo. 369 ; Moulton v. Newburyport Water Co., 137 Mass. 163. The compensation should be the fair cash market value of the land taken: Brown v. Calumet R. Ry. Co., 125 111. 600, 18 N. E. 283; including that of appurtenances used in connection with it : Chicago, S. F. & C. Ry. Co. v. Ward, 128 111. 349, 18 N. E. 828, 21 N. E. 562 ; but not the value of an illegal use: Kingsland v. Mayor, 110 N. Y. 569, 18 N. E. 435. While its value as mineral land may be considered : Doud v. Mason City, &c. Ry. Co., 76 Iowa, 438, 41 N. W. 65; the estimated specific value of minerals in it may not. Reading & P. R. R. Co. v. Balthaser, 119 Pa. St. 472, 13 Atl. 294. Where railroad land is taken, the reasonable expectation of future use is to be considered. Port- land & R. R. R. Co. v. Deering, 78 Me. 61, 2 Atl. 670. The availability of land for a bridge site or ferry landing may be considered: Little Rock June. Ry. Co. v. Woodruff, 49 Ark. 381, 5 S W. 792; Little Rock & F. S. Ry. Co. v. McGehee, 41 Ark. 202 ; but not the enhanced value due to the proposed improvement. Shen- andoah V. R, R. Co. v. Shepherd, 26 W. Va. 672. Nor can the damage to the ferry privilege by building a bridge be compensated for. Moses v. Sanford, 11 Lea, 731. Compare Mason v. Harper's Ferry B. Co., 17 W. Va. 396. 2 Deaton v. Polk, 9 Iowa, 594 ; Parks CH. XV.] THE EMINENT DOMAIN. 823 But, in making this estimate, there must be excluded from con- sideration those benefits which the owner receives only in common v. Boston, 15 Pick. 198 ; Dickenson v. Fitchburg, 13 Gray, 546 ; Harvey v. Lack- awanna, &c. K. R. Co., 47 Pa. St. 428; Newby v. Platte .County, 25 Mo. 258; Pacific R. R. Co. v. Chrystal, 25 Mo. 544; Somerville & Easton R. R. Co. ads. Doughty, 22 N. J. 495 ; Carpenter v. Landaff, 42 N. H. 218 ; Troy & Boston R. R. Co. v. Lee, 13 Barb. 109; Tide- water Canal Co. v. Archer, 9 Gill & J. 479; Winona & St. Paul R. R. Co. v. Waldron, 11 Minn. 515; Nicholson v. N. Y. & N. H. R. R. Co., 22 Conn. 74 ; Nichols U.Bridgeport, 23 Conn. 189; Harding v. Funk, 8 Kan. 315; Holton v. Milwaukee, 31 Wis. 27. If the whole tract is not taken, the value of the part taken as part of the whole should be allowed. Chicago, B. & N. R. R. Co. i'. Bowman, 122 111. 695, 13 N. E. 814; Balfour o. Louisville, &c. R. R. Co., 62 Miss. 608; Asher v. Louisville, &c. R. R. Co., 87 Ky. 391, 8 S. W. 854. As to how far different lots or subdivisions used as one tract are to be held one parcel within this rule, see Port Huron, &c. Ry. Co. v. Voorheis, 50 Mich. 506, 15 N. W. 882 ; Wilcox v. St. Paul, &c. Ry. Co., 35 Minn. 439, 29 N. W. 148; Cox v. Mason City, &c. R. Co., 77 Iowa, 20, 41 N. W. 475 ; Ham v. Wiscon- sin, &c. Ry. Co., 61 Iowa, 716, 17 N. W. 157 ; Northeastern Neb. Ry. Co. v. Frazier, 25 Neb. 42, 53, 40 N. W. 604, 609; Cameron v. Chicago, &c. Ry. Co., 42 Minn. 75, 43 N. W. 785 ; Potts v. Penn. S. V. R. R. Co., 119 Pa. St. 278, 13 All. 291. " Compensation is an equivalent for property taken, or for an injury. It must be ascertained by estimating the actual damage the party has sustained. That damage is the sum of the actual value of the property taken, and of the injury done to the residue of the property by the use of that part which is taken. The benefit is, in part, an equivalent to the loss and damage. The loss and damage of the defendant is the value of the land the company has taken, and the injury which the location and use of the road through his tract may cause to the re- mainder. The amount which may be assessed for these particulars the com- pany admits that it is bound to pay. Bur, as a set-off, it claims .credit for the benefit the defendant has received from the construction of the road. That bene- fit may consist in the enhanced value of the residue of his tract. When the com- pany has paid the defendant the excess of his loss or damage over and above the benefit and advantage he has derived from the road, he will have received a j ust compensation. It is objected that the enhanced salable value of the land should not be assessed as a benefit to the defend- ant, because it is precarious and uncertain. The argument admits that the enhanced value, if permanent, should be assessed. But whether the appreciation is perma- nent and substantial, or transient and illusory, is a subject about which the court is not competent to determine. It must be submitted to a jury, who will give credit to the company according to the circumstances. The argument is not tenable, that an increased salable value is no benefit to the owner of land unless he sells it. This is true if it be assumed that the price will decline. The chance of this is estimated by the jury, in the amount which they may assess for that benefit. The sum assessed is therefore (so far as human foresight can anticipate the future) the exponent of the substantial increase of the value of the land. This is a bene- fit to the owner, by enlarging his credit and his ability to pay his debts or pro- vide for his familj-, in the same manner and to the same extent as if his fortune was increased by an acquisition of prop- erty." Greenville & Columbia R. R. Co. v. Partlow, 6, Rich. 428. And see Pennsylvania R. R. Co. v. Heister, 8 Pa. St. 445; Matter of Albany Street, 11 Wend. 149, 25 Am. Dec. 618; Upton v. South Reading Branch R. R., 8 Cush. 600 ; Proprietors, &c. v. Nashua & Lowell R. R. Co., 10 Cush. 385; Mayor, &c. of Lexington v. Long, 31 Mo. 369; St. Louis, &c. R. R. Co. v. Richardson, 45 Mo. 466; Little Miami R. R. Co. i'. Col- lett, 6 Ohio St. 182; Bi-:elow v. West Wisconsin R. R. Co., 27 Wis. 478. In Newby v. Platte County, 25 Mo. 258, the right to assess benefits was referred to the taxing power; but this seems not necessary, and indeed somewhat difficult on principle. See Button's Heirs v. Louis- 824 CONSTITUTIONAL LIMITATIONS. [CH. XV. with the community at large in consequence of his ownership of other property, 1 and also those incidental injuries to other property, ville, 5 Dana, 28. Qn measuring com- pensation for a taking it is not competent to increase compensation by any amount as the increase of value caused by the projected improvement. Shoemaker v. United States, 147 U. S. 282, 13 Sup. Ct. liep. 861.] 1 Dickenson v. Inhabitants of Fitch- burg, 13 Gray, 540 ; Cliilds v. New Haven, &c. II. R. Co., 133 Mass. 253 ; Newby v. Platte County, 25 Mo. 258; Pacific K. R. Co. v. Chrystal, 25 Mo. 544 ; Carpenter v. Landaff, 42 N. H. 218; Mount Washing- ton Co.'s Petition, 35 N. H. 134 ; Penrice v. Wnllis, 37 Miss. 172; Haislip v. Wil- mington, &c. R. R. Co., 102 N. C. 376, 8 S. E. 926; Omaha v. Schaller, 26 Neb. 522, 42 N. W. 721 ; Railroad Co. v. Fore- man, 24 W. Va. 662 ; Palmer Co. v. Fer- rill, 17 Pick. 58; Meacham v. Fitchburg R. R. Co., 4 Cush. 291, where the jury were instructed that, if they were satis- fied that the laying out and constructing of the railroad had occasioned any bene- fit or advantage to the lands of the peti- tioner through which the road passed, or lands immediately adjoining or con- nected therewith, rendering the part not taken for the railroad more convenient or useful to the petitioner, or giving it some peculiar increase in value com- pared with other lands generally in the vicinity, it would be the duty of the jury to allow for such benefit, or increase of value, by way of set-off, in favor of the railroad company ; but, on the other hand, if the construction of the railroad, by increasing the convenience of the people of the town generally as a place for residence, and by its anticipated and probable effect in increasing the popula- tion, business, and general prosperity of the place, had been the occasion of an increase in the salable value of real estate generally near the station, includ- ing the petitioner's land, and thereby occasioning a benefit or advantage to him, in common with other owners of real estate in the vicinity, this benefit was too contingent, indirect, and remote to be brought into consideration in settling the question of damages to the petitioner for taking his particular parcel of land. Up- ton v. South Reading Branch R. R. Co., 8 Cush. 600. See Pittsburgh, &c. R. R. Co. v. Reich, 101 111. 157 ; Chicago, B. & N. R. R. Co. v. Bowman, 122 111. 595, 13 N. E. 814. QThis rule is applicable as well where the claim is for a " damag- ing" of property where such constitu- tional provisions exist as where it is for a " taking." Hickman i;. Kansas City, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658; Randolph v. Board of Freeholders, 63 N. J. L. 155, 41 Atl. 960. See Wagner v. Gage County, 3 Neb. 237.] Remote and speculative benefits are not allowed. Whitely v. Miss., &c. Co., 38 Minn. 523, 38 N. W. 753. Locating a depot near a lot is not a special benefit. Washburn v . Milwaukee, &c. R. R. Co., 59 Wis. 364, 18 N. W. 328. It lias sometimes been objected, with great force, that it was un- just and oppressive to set off benefits against the loss and damage which the owner of the property sustains, because thereby he is taxed for such benefits, while his neighbors, no part of whose land is taken, enjoy the same benefits without the loss; and the courts of Ken- tucky have held it to be unconstitutional, and that full compensation for the land taken must be made in money. Sutton v. Louisville, 5 Dana, 28 ; Rice v. Turn- pike Co., 7 Dana, 81 ; Jacob v. Louis- ville, 9 Dana, 114. So in Mississippi. Natchez, J. & C. R. R. Co. v. Currie, 62 Miss. 506. And some other States have established, by their constitutions, the rule that benefits shall not be deducted. See cases, note 4, 825. That the dam- age and benefits must be separately as- sessed and returned by the jury where part only of the land is taken, see De- troit v. Daly, 68 Mich. 603, 37 N. W. 11. But the cases generally adopt the doc- trine stated in the text ; and if the owner is paid his actual damages, he has no occasion to complain because his neigh- bors are fortunate enough to receive a benefit. Greenville & Columbia R. R. Co. v. Partlow, 5 Rich. 428 ; Mayor, &c. of Lexington v. Long, 31 Mo. 369. Bene- fits to the adjacent property owned in severally may be deducted from damage to property owned jointly. Wilcox r. Merfden, 57 Conn. 120, 17 Atl. 366. CH. XV.] THE EMINENT DOMAIN. 825 such as would not give to other persons a right to compensation ; 1 while allowing those which directly affect the value of the remain- der of the land not taken, such as the necessity for increased fencing, and the like. 2 And if an assessment on these principles makes the benefits equal the damages, and awards the owner noth- ing, he is nevertheless to be considered as having received full compensation, and consequently as not being in position to com- plain. 3 But in some States, by constitutional provision or by statute, the party whose property is taken is entitled to have the value assessed to him without any deduction for benefits. 4 The statutory assessment of compensation will cover all con- sequential damages which the owner of the land sustains by means 1 Somerville, &c. R. R. Co. ads. Doughty, 22 N. J. 495; Dorian v. East Brandywine, &c. R. R. Co., 46 Pa. St. 520; Proprietors, &c. v. Nashua & Lowell R. R. Co., 10 Gush. 385 ; Louis- ville & Nashville R. R. Co. v. Thomp- son, 18 B. Mour. 735; Winona & St. Peter's R. R. Co. v. Denman, 10 Minn. 267 ; Shenandoah V. R. R. Co. v. Shep- herd, 26 W. Va. 672; Stone v. Inh. of Heath, 135 Mass. 561 ; Com'rs Dickinson Co. v. Hogan, 39 Kan. 606, 18 Pac. 611. So of increased danger from fire in case a railroad is laid out. Texas & St. L. Ry. Co. v. Cella, 42 Ark. 523 ; Setzler o. Pa. &c. R. R. Co., 112 Pa. St. 56, 4 Atl. 370. 2 Pennsylvania R. R. Co. v. Heister, 8 Pa. St. 445; Greenville & Columbia R. R. Co. v. Partlow, 5 Rich. 428 ; Dear- born v. Railroad Co., 24 N. H. 179; Car- penter v. Landaff , 42 N. H. 218 ; Dorian v. East Brandywine, &c. R. R. Co., 46 Pa St. 520; Winona & St. Peter's R. R. Co. >/. Denman, 10 Minn. 267 ; Mount Washington Co.'s Petition, 35 N. H. 134. Where a part of a meeting-house lot was taken for a highway, it was held that the anticipated annoyance to worshippers by the use of the way by noisy and disso- lute persons on the Sabbath, could form no basis for any assessment of damages. First Parish in Woburn v. Middlesex County, 7 Gray, 106. 8 White v. County Commissioners of Norfolk, 2 Cush. 361; Whitman v. Bos- ton & Maine R. R. Co., 3 Allen, 133; Nichols v. Bridgeport, 23 Conn. 189; State v. Kansas City, 89 Mo. 34, 14 S. W. 515; Ross v. Davis, 97 Ind. 79. The benefits upon the owner's property not taken, but in the assessment district, may exceed the damages. Genet v. Brooklyn, 99 N. Y. 296, 1 N. E. 777. But it is not competent for the commis- sioners who assess the compensation to require that which is to be made to be wholly or in part in anything else than money. An award of "one hundred and fifty dollars, with a wagon-way and stop for cattle," is void, as undertaking to pay the owner in part in conveniences to be furnished him, and which he may not want, and certainly cannot be compelled to take instead of money. Central Ohio R. R. Co. v. Holler, 7 Ohio St. 220. See Rockford, &c. R. R. Co. v. Coppinger, 66 111. 510 ; Toledo, A. A. & N. Ry. Co. v. Munson, 57 Mich. 42, 23 N. W. 455. [^Compensation cannot be made by charg- ing the owner with the amount of it, as a special tax on that portion of his lands not taken : Bloomington v. Latham, 142 111. 462, 32 N. E. 506, 18 L. R. A. 487.] * Wilson v. Rockford, &c. R. R. Co., 59 III. 273 ; Carpenter v. Jennings, 77 111. 250; Todd v. Kankakee, &c. R. R. Co., 78 111. 530; Atlanta v. Central R. R. Co., 53 Ga. 120; Koestenbader v. Peirce, 41 Iowa, 204 ; Britton v. Des Moines, &c. R. R. Co., 59 Iowa, 540, 13 N. W. 710; Pacific Coast Ry. Co. v. Porter, 74 Cal. 261, 15 Pac. 774"; Leroy & W. R. R. Co. v. Ross, 40 Kan. 598, 20 Pac. 197; Giesy v. Cincinnati, &c. R. R. Co., 4 Ohio St. 308 ; Woodfolk v. Nashville R. R. Co., 2 Swan, 422 ; Memphis v. Bolton, 9 Heisk. 508. In Illinois benefits may not be set off against the value of the land taken, but may be against damage to land not taken. Harwood v. Bloomington, 124 111. 48, 16 N. E. 91. 826 CONSTITUTIONAL LIMITATIONS. [CH. XV. of the construction of the work, except such as may result from negligence or improper construction, 1 and for which an action at the common law will lie, as already stated, (a) 1 Philadelphia & Reading R. R. Co. v. St. 42, and note.] But see Roushlange v. Yeiser, 8 Pa. St. 366 ; O'Connor v. Pitts- Chicago, &c. Ry. Co., 115 Ind. 106, 17 burgh, 18 Pa. St. 187 ; Aldrich v. Cheshire N. E. 198. The rule applies to cases of R. R. Co., 21 N. H. 359; Dearborn v. purchase instead of condemnation. North Boston, Concord, & Montreal R. R. Co., & W. B. Ry. Co. v. Swank, 105 Pa. St. 24 N. H. 179 ; Eaton r. Boston C. & M. 655 ; Cassidy v. Old Colony R. R. Co., R. R. Co., 51 N. H. 504 ; Dodge v. County 141 Mass. 174, 6 N. E. 142 ; Houston & Commissioners, 3 Met. 380; Brown v. E. T. Ry. Co. v. Adams, 68 Tex. 476. Providence, W. & B. R. R. Co., 5 Gray, The rule covers a case where a right of 35 ; Mason v. Kennebec & Portland R. R. action existed for a former invalid con- Co., 31 Me. 215 ; Bellinger v. N. Y. Cen- damnation. Dunlap v. Toledo, &c. Ry. tral R. R. Co., 23 N. Y. 42 ; Hatch v. Vt. Co., 50 Mich. 470, 15 N. W. 555. A cor- Central R. R. Co., 25 Vt. 49 ; Slatten v. poration appropriating property under Des Moines Valley R. R. Co., 29 Iowa, the right of eminent domain is always 148; Whitehouse v. Androscoggin R. R. liable for any abuse of the privilege or Co., 52 Me. 208; Denver City Irrig. Co. neglect of duty under the law under v. Middaugh, 12 Col. 434, 21 Pac. 565; which they proceed. Fehr v. Schuylkill [Stork v. Philadelphia, 195 Pa. St. 101,45 Nav. Co., 69 Pa. St. 161 ; Eaton v. Eos- Ail 678, 49 L. R. A. 600, Hunt v. Iowa ton, C. & M. R. R. Co., 61 N. H. 604 ; Cent. Ry. Co., 86 Iowa, 15, 52 N. W. 608, Terre Haute, &c. R. R. Co. v. McKinley, 41 Am. St. 473 ; Gainesville, &c. Ry. Co. 33 Ind. 274 ; Neilson v. Chicago, &c. Ry. v. Hall, 78 Tex. 169, 14 S. W. 259, 22 Am. Co., 58 Wis. 516, 17 N. W. 310. (a) ^Compensation. The question of compensation may arise in one of three classes of cases : A. Where the whole interest of a particular owner is taken in a particular tract. Here, as stated in the text, the amount of compensation is generally held to be the market value of that interest at the time of the taking. Chicago, K. & W. Ry. Co. v. Parsons, 51 Kan. 408, 32 Pac. 1083; Texas, W. Ry. Co. v. Cave, 80 Tex. 137, 15 S. W. 786. When taken by municipality, at time of determination to take: Shana- han v. City of Waterbury, 63 Conn. 420, 28 All. 611; In re Condemnation of Land for a State House, 19 R. I. 382, 33 Atl. 523. In some jurisdictions compensation is assessed at market value at time of assessment: Leeds v. Cainden & A. Ry. Co., 53 N. J. L. 229, 233, 23 Atl. 168, 169. Where the compensation is fixed in an appel- late proceeding, assessment is as of the time of the assessment appealed from : Ellsworth v. Chicago & I. W. Ry. Co., 91 Iowa, 386, 59 N. W. 78 ; Forsyth Boulevard v. Forsyth, 127 Mo. 417, 30 S. W. 188. At time of filing of petition for appraisal: Fremont, E. & M. V. Ry. Co. v. Bates, 40 Neb. 381, 68 N. W. 959. The assessment must be irrespective of prospective general, as distinguished from special, benefits, resulting from the improvement : Shoemaker v. U. S., 147 U. S. 282, 13 Sup. Ct. Rep. 361 ; Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. Rep. 966, 42 L. ed. U. S. 270, and note ; Louisville and N. Ry. Co. v. Ingram, 12 Ky. L. 456, 14 S. W. 634 ; West Va., P. & T. Ry. Co. v. Gibson, 94 Ky. 234, 21 S. W. 1055 ; Benton v. Town of Brookline, 151 Mass. 250, 23 N. E. 846; May v. City of Boston, 158 Mass. 21, 32 N. E. 902 ; (by virtue of statute in Massachusetts) ; Harris v. Schuylkill River E. S. Ry. Co., 141 Pa. St. 242, 21 Atl. 690, 23 Am. St. Rep. 278. Contra, Sanitary District of Chicago v. Loughran, 160 111. 362, 43 N. E. 359. May consider effect of improvements pre- viously made. In re Condemnation of Land for State House, 19 R. I. 382, 33 Atl. 523 ; Bowditch v. City of Boston, 164 Mass. 107, 41 N. E. 132. See further De Benneville v. Philadelphia, Pa. St. ,53 Atl. 621. It is market value for any legitimate use : Muller z;. So. Pac. B. Ry. Co., 83 Cal. 240, 23 Pac. 265 ; Seattle and M. Ry. Co. n. Murphine, 4 Wash. 448, 30 Pac. 720; North. Pac. & M. Ry. Co. v. Forbis, 15 Mont. 452, 39 Pac. 671, 48 Am. St. 692; Alloway . City of Nashville, 88 CH. XV.] THE EMINENT DOMAIN. 827 Tenn. 510, 13 S. W. 123, 8 L. R. A. 123. Value for special use, only competent as assisting to fix market value: Miss. & R. R. Boom Co. v. Patterson, 98 U. S. 403; Denver & R. G. Ry. Co. v. Griffith, 17 Col. 698, 81 Pac. 171; Fales v. Town of E. Hampton, 102 Mass. 422, 38 M. E. 1129; N. Pacif. & M. Ry. Co. v. Forbis, supra ; Currie v. Waverly & N. Y. B. Ry. Co., 62 N. J. L. 381, 20 All. 66, 19 Am. St. 452; Harris v. Schuylkill Riv. E. S. Ry. Co., 141 Pa. St. 242, 21 Atl. 590, 23 Am. St. 278; San Diego Land & Town Co. v. Neale, 88 Cal. 50, 25 Pac. 977, 11 L. R. A. 604. Not prospective, but present value : Omaha Bell Ry. Co. v. McDermott, 25 Neb. 714, 41 N. W. 648; Lee v. Springfield Water Power Co., 176 Pa. St. 223, 35 Atl. 184; Penn. S. V. Ry. Co. v. Cleary, 125 Pa. St. 442, 17 Atl. 468, 11 Am. St. 913. Not what its value may be to any particular person : City of Santa Ana v. Harlan, 99 Cal. 538, 34 Pac. 224. If, in addition to material property, a franchise is destroyed, compensation should cover value of material thing and also of the franchise: Clarion Turnpike & Bridge Co. v. Clarion Co., 172 Pa. St. 243, 33 Atl. 580. B. Where, part only of a sini/le tract is taken. In this case the rule is variously stated as follows: (1) Difference between the value of the whole tract just before and just after the improvement is made : Chicago, P. & St. L. Ry. Co. v. Eaton, 136 III. 9, 26 N. E. 575; Evansville & R. Ry. Co. v. Swift, 128 Ind. 34, 27 N. E. 420; Struthers v. Phila. & D. C. Ry. Co., 174 Pa. St. 29 L, 34 Atl. 443; West Va., P. & T. Ry. Co. v. Gibson, 94 Ky. 234, 21 S. W. 1055; Driscoll v. City of Taunton, 160 Mass. 486, 36 N. E. 495; Richmond & M. Ry. Co. v. Humphreys, 90 Va. 425, 18 S. E. 901 ; St. Louis, A. & T. Ry. Co. v. Henderson, Tex. Civ. App. , 32 S. W. 143; Mo. Pac. Ry. Co. v. Porter, 112 Mo. 361, 20 S. W. 568. This allows consideration of benefits and injuries common to whole community. (2) Value of part taken as a portion of whole and damage to remainder: Omaha So. Ry. Co. v. Todd, 39 Neb. 818, 58 N. W. 289; Liverman v. Roanoke & T. Ry. Co., 114 N. C. 692, 19 S. E. 61; Greeley S. L. Ry. Co. v. Yount, 7 Col. App. 189, 42 Pac. 1023 ; L. S. & M. S. Ry. Co. v. City of Chicago, 151 111. 359, 37 N. E. 880; Orth v. City of Milwaukee, 92 Wis. 230, 65 N. W. 1029; Comstock v. Cleared & M. Ry. Co., 169 Pa. St. 582, 32 Atl. 431, 17 L. R. A. 785; State v. Hudson County Board, &c., 55 N. J. L. 88, 25 Atl. 322. In State v. Sup. Ct. of King Co., Wash. , 70 Pac. 484, the measure of damages allowed was the value of that taken and depreciation of portion not taken, disregard- ing benefits. Upon principle, damages common to all in the community should not be compensated for. See citations, f^ost. Benefits accruing to owner by reason of the construction of the improvement and not common to general public, which en- hance the value of lands not taken, but which were part of the same parcel, a portion of which was taken, should be considered in determining compensation. Butchers Slaughtering & Melting Ass'n r. Commonwealth, 163 Mass. 386, 40 N. E. 176; Good- wine v. Evans, 134 Ind. 262, 33 N. E. 1031. Benefits common to all in the community should not be considered in fixing damages. Spencer v. Metropolitan Street Ry. Co., 120 Mo. 154, 23 S. W. T26, 22 L. R. A. 668; Beveridge v. Lewis, Cal. , 70 Pac. 1083. Injury to business by reason of taking of lands for right of way is held not re- coverable. Bailey v. Boston & P. Ry. Co, Mass. , 66 N. E. 203; Sawyer v. Conn, Mass. , 65 N. E. 52 ; following Monongahela Nav. Co. v. United States, 148 U. S. 312, 13 Sup. Ct. Rep. 622. If there is a grant of a portion of a tract of land for a public use, such grunt will operate to prevent recovery of damages for injuries to por- tion not taken. Watts v. Norfolk & Western Ry. Co , 39 W. Va. 196, 19 S. E. 521, 23 L. R. A. 674. Where lands have been subdivided into lots, but not separated in ownership, all belonging naturally to the particular tract are to be considered in determining .compensation. Metropolitan W. S. El. Ry. v. Johnson, 159 111. 434, 42 N. E. 871; Cox v. Mason City & Ft. Dodge Ry. Co., 77 Iowa, 20, 41 N. W. 475; Atchinson & N. Ry. Co. v. Boerner, 34 Neb. 240, 51 N. W. 842, 33 Am. St. 637 ; Currie v. Waverly & N. Y. B. Ry. Co., 52 N. J. L. 381, 20 Atl. 66, 19 Am. St. 452; Lincoln v. Commonwealth, 164 Mass. 368, 41 N. E. 489; Bischoff v. N. Y. El. Ry. Co., 138 N. Y. 257, 33 N. E. 1073; Kremer r. C. M. & St. P. Ry. Co., 51 Minn 15, 62 N. W. 977, 38 Am. St. 468. If lots not adjacent, though parts of same general tract, they cannot be considered. Wellington v. Boston & M. Ry. Co., 164 Mass. 380, 41 N. E. 652; Cameron v. Chicago, M. & St. Paul Ry. Co., 42 Minn. 75, 43 N. W. 785. 828 CONSTITUTIONAL LIMITATIONS. [CH. XV. Though adjacent, if not used together, they should not be considered. Koerper v. St. P. & N. P. Ky. Co., 42 Minn. 340, 44 N. W. 195. Separation of parcels by high- way, railway, canal, or the like, may defeat the consideration of all as one tract dependent upon, whether or not they are occupied and used as one tract. White v. Met. W. S. El. Ry. Co., 154 111. 620, 39 N. E. 270; Union El. Co. v. Kansas City Sub. Belt Ry. Co., Mo. , 33 S. W. 926; Cameron v. P. & L. E. Ry. Co., 157 Pa. St. 617, 27 All. 668, 22 L. R. A. 443; Duluth & W. Ry. Co. v. West, 51 Minn. 163, 53 N. W. 197 . Upon the question as to what lands are to be regarded as a part of the parcel taken, see Sharpe v. United States, 60 C. C. A. 697, 112 Fed. Rep. 893, 57 L. R. A. 932, and extended note in 67 L. R. A. 932. C. Where there is no actual taking, but such interference as directly affects and injures some right of property. No new principle is involved in such cases, but compensation is assessed at the difference between the value of the property before and after the construction of the improvement. Nicks v. Chicago, St. P. & K. C. Ry. Co., 84 Iowa, 27, 50 N. W. 222; City of Bloomington v. Pollock, 141 111. 346, 31 N. E. 146 ; Beale v. City of Boston, 166 Mass. 53, 43 N. E. 1029. This condition arises moat often in cases where there is a change in grade, or some new use granted of a public way, claimed, by an abutting owner who does not own the land under the street, to be in- jurious to him. The following cases illustrate the view of such courts as hold that such owner may be entitled to compensation. Adams v. Chicago, B. & Q. Ry. Co., 39 Minn. 286, 39 N. W. 629, 1 L. R. A. 493. Followed in Lamm . Chicago, M. & St. P. Ry. Co., 45 Minn. 71, 47 N. W. 455, 10 L. R. A. 268 ; Ottawa, O. C. & C. G. Ry. Co. v. Larsen, 40 Kan. 301, 19 Pac. 661, 2 L. R. A. 59. The so-called " Elevated Rail- way " Cases are of this class : Abendroth v. Manhattan Ry. Co., 122 N. Y. 1, 25 N. E. 496, 19 Am. St. 461 ; Arbenz v. Wheeling & Harrisburg Ry. Co., 33 W. Va. 1, 10 S.E. 14, 5 L. R. A. 371. Much more is it true, where the adjoining proprieter owns the fee in the street. Reichert v. St. Louis & S. Ry. Co., 51 Ark. 491, 11 S. W. 696, 5 L. II. A. 183. Many of the cases holding that abutting proprietors may be entitled to compensation though no actual taking, are cases involving the construction of constitutional provisions providing for compensation where property is " damaged " for public use. Blair v. Charleston, 43 W. Va. 62, 26 S. E. 341, 35 L. R. A. 852, will illustrate. The injury must be peculiar as distinguished from such as is common to all in the neighborhood. Campbell v. Met. St. Ry. Co., 82 Ga. 320, 9 S. E. 1078 ; Ft. Worth & N. O. Ry. Co. v. Garoin, Tex. , 29 "s. W. 794 ; Blair v. Charleston, 43 W. Va. 62, 26 S. E. 341, 35 L. R. A. 852. Generally it may be said that in assessing the amount of compensation the nature of the taking or injury should be considered. If permanent, the prospective as well as present injury is an element in the proper measure of such compensation. Joy v. Grindstone-Neck Water Co., 85 Me. 109, 26 All. 1052 ; City of Centralia v. Wright, 156 111. 561, 41 N. E. 217 ; Highland Avenue 6 B. R. Co. v. Matthews, 99 Ala. 24, 10 So. 267, 14 L. R. A. 462. See notes, ante, pp. 811, 822, et seq., for other cases on these and similar propositions as to compensa- tion. Where lands of railway company are condemned for street crossing, those ex- penses more properly the result of the exercise of the police power of the State are not assessable. Such are the expenses of erecting gates, planking the crossing, and maintaining a flagman: Chicago, B. & Q. Ry. Co. v Chicago, 166 U. S. 226, 17 Sup. Ct. Rep. 581. Only nominal damages can be allowed as against a telegraph company for constructing telegraph line along and on lands of railway company through an agricultural country. Mobile & O. Ry. Co. v. Postal T. C. Co., 101 Tenn. 62, 46 S. W. 571, 41 L. R. A. 403. See case between same parties, 76 Miss. 731, 26 So. 370, 45 L. R. A. 223. Wife is not entitled to compensation for her inchoate right of dower in lands taken. Flynn v. Flynn, 171 Mass. 312, 50 N. E. 660, 68 Am. St. 427, 42 L. R. A. 98.] CH. XVI.] THE POLICE POWER OF THE STATES. 829 CHAPTER XVI. THE POLICE POWER OP THE STATES. FREQUENTLY when questions of conflict between national and State authority are made, and also when it is claimed that gov- ernment has exceeded its just powers in dealing with the property and controlling the actions of individuals, it becomes necessary to consider the extent and pass upon the proper bounds of another State power, which, like that of taxation, pervades every depart- ment of business and reaches to every interest and every subject of profit or enjoyment. We refer to what is known as the police power. The police of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offences against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is rea- sonably consistent with a like enjoyment of rights by others. 1 1 Blackstone defines the public police be classed the provision which it is now and economy as " the due regulation and customary with all enlightened States to domestic order of the kingdom, whereby make for the custody and care, and if pos- tlie inhabitants of a State, like members sible the cure, of insane persons. That of a well-governed family, are bound to the State, for the protection of others, conform their general behavior to the may cause such persons to be restrained rules of propriety, good neighborhood, of their liberty is undoubted, and it has and good manners, and to be decent, in- been common to provide that this may dustrious, and inoffensive in their respec- be done on the certificate of physicians tive stations." 4 Bl. Com. 162. Jeremy to the diseased mental condition. But Bentham, in his General View of Public while confinement on such a certificate Offences, has this definition: "Police is may be justified when no mistake is made in general a system of precaution, either as to the fact, it is certain that it cannot for the prevention of crimes or of calam- be if the person deprived of his liberty ities. Its business may be distributed was not in truth at the time insane. No into eight distinct branches : 1. Police number of physicians can be given the for the prevention of offences ; 2. Police power to take from a sane man his liberty, for the prevention of calamities ; 3. Po- without a public investigation in which he lice for the prevention of endemic dis- may produce his witnesses ; and any leg- eases; 4. Police of charity; 5. Police of islation assuming to confer such. power interior communications ; 6. Police of would be void. On this general subject public amusements ; 7. Police for recent the following cases are of interest : An- intelligence ; 8. Police for registration." derdon v. Burrows, 4 C. & P. 210 ; Fletcher Edinburgh ed. of Works, Part IX, p. 157. v. Fletcher, 1 El. & El. 420; Colby v. Under the head of police for charity may Jackson, 12 N. H. 526 ; Look v. Dean, 830 CONSTITUTIONAL LIMITATIONS. [CH. XVI. In the present chapter we shall take occasion to speak of the police power principally as it affects the use and enjoyment of property ; the object being to show the universality of its pres- ence, and to indicate, so far as may be practicable, the limits which settled principles of constitutional law assign to its in- terference. No definition of the power can be more complete and satisfac- tory than some which have been given by eminent jurists in deciding cases which have arisen from its exercise, and which have been so often approved and adopted, that to present them in any other than the language of the decisions would be unwise, if not inexcusable. Says Chief Justice Shaw, " We think it is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and un- qualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this Commonwealth is ... held subject to those general regula- tions which are necessary to the common good and general wel- fare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoy- ment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. This is very different from the right of eminent domain, the ; right of a government to take and appropriate private property whenever the public exigency requires it, which can be done only ion condition of providing a reasonable compensation therefor. /The power we allude to is rather the police power ; the power 1 vested in the legislature by the constitution to make, ordain, and jestablish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the Commonwealth, and of the subjects of the same, tt is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to jits exercise." 1 108 Mass. 116; Van Deusen v. Newcomer, bury, 11 Met. 55; Hart ;. Mayor, &c. of 40 Mich. 90; Morton r. Sims, G4 Ga. 298 ; Albany, 9 Wend. 571; New Albany & In re Gannon, 16 R. I. 537, 18 Atl. 159. Salem R. R. Co. v. Tilton, 12 Ind. 3 ; In- 1 Commonwealth v. Alger, 7 Cush 53, dianapolis & Cincinnati R. R. Co. v. 84. See also Commonwealth v. Tewks- Kercheval, 16 Ind. 84 ; Ohio & Missis- CH. XVI.] THE POLICE POWER OF THE STATES. 831 " This police power of the State," says another eminent judge, " extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State. According to the maxim, Sic utere tuo ut ulienum non loedas, which being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others." And again : [By this] " general police power of the State, persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State ; of the perfect right in the legislature to do which, no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are con- cerned." l And neither the power itself, nor the discretion to exercise it as need may require, can be bargained away by the State. 2 Where the Power is located. In the American constitutional system, the power to establish the ordinary regulations of police has been left with the individual States, and it cannot be taken from them, either wholly or in part, and exercised under legisla- tion of Congress. 3 Neither can the national government, through sippi R. R. Co. v. McClelland, 25 111. 140 ; People v. Draper, 25 Barb. 344 ; Baltimore v. State, 15 Md. 376 ; Police Commission- ers v. Louisville, 3 Bush, 597 ; Wyne- hamer v. People, 13 N. Y. 378; Taney, Ch. J., in License Cases, 5 How. 504, 583 ; Waite, Ch. J., in Munn v. Illinois, 94 U. S. 113, 124. [Brown, J., in Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. Rep. 499, says of this power of the State, that " It is generally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement by summary proceedings of whatever may be re- garded as a public nuisance. Under this power it has been held that the state may order the destruction of a house falling to decay, or otherwise endangering the lives of passers-by ; the demolition of such as are in the path of a conflagration ; the slaughter of diseased cattle ; the prohibi- tion of wooden buildings in cities; the regulations of railways and other means of public conveyance, and of interments in burial grounds ; the restrictions of objectionable trades to certain localities; the compulsory vaccination of children ; the confinement of the insane or those afflicted with contagious diseases ; the restraint of vagrants, beggars, and habit- ual drunkards ; the suppression of ob- scene publications and houses of ill-fame and the prohibition of gambling houses and places where intoxicating liquors are sold." See article in 36 Am. L. Rev. 681, trac- ing in some measure the judicial develop- ment of the doctrine of the police power.] i Redfiehl, Ch. J., in Thorpe v. Rutland & Burlington R, R. Co., 27 Vt. 140, 149. See the maxim, Sic utere, &c., " Enjoy your own property in such man- ner as not to injure that of another," in Broom, Legal Maxims, (5th Am. ed.) p. 327 ; Wharton, Legal Maxims, No. XC. See also Turbeville v. Stampe, 1 Ld. Raym. 264; and 1 Salk. 13; Jeffries v. Williams, 5 Exch. 792; Humphries?;. Brogden, 12 Q. B. 739 ; Pixley v. Clark, 35 N. Y. 520 ; Philadelphia v. Scott, 81 Pa. St. 80. " Beer Company v. Massachusetts, 97 U. S. 25, 33, citing Boyd v. Alabama, 94 U. S. 645. 8 So decided in United States v. I)e Witt. 9 Wall. 41, in which a section of the Internal Revenue Act of 1867 832 CONSTITUTIONAL LIMITATIONS. [CH. XVI. any of its departments or officers, assume any supervision of the police regulations of the States. All that the federal authority can do is to see that the States do not, under cover of this power, invade the sphere of national sovereignty, obstruct or impede the exercise of any authority which the Constitution has confided to the nation, or deprive any citizen of rights guaranteed by the federal Constitution. 1 Conflict with Federal Authority. But while the general au- thority of the State is fully recognized, it is easy to see that the power might be so employed as to interfere with the jurisdiction of the general government ; and some of the most serious ques- tions regarding the police of the States concern the cases in which authority has been conferred upon Congress. In those cases it has sometimes been claimed that the ordinary police jurisdiction is by necessary implication excluded, and that, if it were not so, the State would be found operating within the sphere of the national powers, and establishing regulations which would either abridge the rights which the national Constitution under- takes to render absolute, or burden the privileges which are con- ferred by law of Congress, and which therefore cannot properly be subject to the interference or control of any other authority. fBut any accurate statement of the theory upon which the police power rests will render it apparent that a proper exercise of it by which undertook to make it a misde- Fourteenth Amendment does not limit meanor to mix for sale naphtha and illu- the subjects in relation to which the minating oils, or to sell oil of petroleum police power of the State may be exer- inflammable at a less temperature than cised. Barbier v. Connolly, 113 U. S. 27, 110 Fahrenheit was held to be a mere 5 Sup. Ct. Rep. 357; Minneapolis & St. police regulation, and as such void within Louis Ry. Co. v. Beckwith, 129 U. S. 26, the States. That the States may pass 9 Sup. Ct. Rep. 207, and cases cited, such laws, see Patterson v. Common- Congress has no power to authorize a wealth, 11 Bush, 811. A license may be business within a State which is pro- required for the peddling of patented hibited by the State. License Tax Cases, articles. People v. Russell, 49 Mich. 617, 6 Wall. 462, per Chase, Ch. J. In Canada, 14 N. W. 568. On the general subject of power over sales of liquor is in the Do- the police power of the States, see also minion parliament, and, after license in United States r.:.,Reese, 92 U. S. 214; pursuance of its authority, the provincial United States v. Cruikshank, 92 U. S. parliament cannot forbid. Severn v. The 542. But the States cannot, by police Queen, 2 Can. Sup. Ct. 71 ; Mayor, &c. v. regulations, interfere with the control The Queen, 3 Can. Sup. Ct. 505. QAc- by Congress over inter-state commerce, tion in the nature of police regulation Post, pp. 857, 858, 867, and notes. is void if against the express provisions 1 See this subject considered at large of the constitution though otherwise in the License Cases, 5 How. 604, the within the general power to make police Passenger Cases, 7 How. 283, and the regulations. State '. Fraehlich, 115 Wis. Slaughter-House Case, 16 Wall. 36; Peo- , 91 N. W. 115. On the constitutional pie v. Compagnie Ge'n., 107 U. S. 59, limitations of the police power, see 55 2 Sup. Ct. Rep. 87 ; Head Money Cases, Cent. L. Jour. 225J 112 U. S. 580, 5 Sup. Ct. Rep. 247. The CH. XVI.] THE POLICE POWEK OF THE STATES. 833 the State cannot come in conflict with the provisions of the Con- stitution of the United States. If the power extends only to a just regulation of rights with a view to the due protection and enjoyment of all, and does not deprive any one of that which is justly and properly his own, it is obvious that its possession by the State, and its exercise for the regulation of the property and actions of its citizens, cannot well constitute an invasion of national jurisdiction, or afford a basis for an appeal to the pro- tection of the national authorities. Obligation of Contracts. The occasions to consider this subject in its bearings upon the clause of the Constitution of the United States which forbids the States passing any laws impairing the obligation of contracts have been frequent and varied ; and it has been held without dissent that this clause does not so far remove from State control the rights and properties which depend for their existence or enforcement upon contracts, as to relieve them from the operation of such general regulations for the good gov- ernment of the State and the protection of the rights of individuals as may be deemed important. All contracts and all rights, it is declared, are subject to this- power; (a) and not only may regula- (fl) What shall be the public policy of a State is determined by itself, and is subject to no Federal control unless it contravenes the Federal Constitution or some treaty or congressional statute conformable thereto. Hartford Fire Insurance Co. v. Chicago, M & St. P. R. Co., 175 U. S. 91, 20 Sup. Ct. Rep. 33. And the Federal courts will enforce the public policy of a State in regard to usurious contracts. Mis- souri, K. & T. Trust Co. v. Krumseig, 172 U. S. 351, 19 Sup. Ct. Rep. 179. But the public policy of a State cannot be extended to the infringement of rights acquired outside of the State, nor can the State penalize acts merely collateral to the enjoy- ment of such rights. In 1894 Louisiana enacted " that any person . . . who in any manner whatever does any act to effect for himself, or for another, insurance on property then in this State, in any marine insurance company which has not com- plied in all respects with the laws of this State, shall be subject to a fine of,"&c. This came under consideration in Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. Rep. 427. A. was a citizen of L., resident in New Orleans. He was an exporter of cotton from N. 0. to the ports of Great Britain and of the Continent. As incidental to his business, he entered in N. Y. City into a contract of insurance with the Atl. M. Ins. Co. of that city, which contract was for an open policy of $200,000. This con- tract was to be performed entirely within the State of N. Y. and was there entirely valid. Under it, whenever A. made a shipment of cotton which he desired insured, he notified the insurance company by mail or by telegraph, and the insurance at- tached to the parcel specified at the instant of despatch of the letter or telegram. Upon receipt of the notification, the insurance company made out a special policy of insurance upon the parcel and delivered it to A.'s agent in N. Y., who thereupon paid the premium. The insurance company never complied with the conditions pre- scribed by Louisiana to be observed by all marine insurance companies doing busi- ness therein. A. mailed in N. O., in compliance with the conditions of the contract, a letter addressed to the insurance company, specifying a particular cargo of cotton then "hipped upon which insurance was to attach, and for this L. filed its petition against him, praying judgment for the penalty, which was decreed. A. sued out a writ of error, alleging that the action of L. deprived him of his liberty and his prop- 63 834 CONSTITUTIONAL LIMITATIONS. [CH. XVI. tions which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity. 1 1 In the case of Thorpe v. Rutland & sufficient to prevent cattle and other ani- Burlington R. It. Co., 27 Vt. 140, a ques- mals from getting upon the railroad, and tion arose under a provision in the Ver- which made the corporation and its agents mont General Railroad Law of 1849, liable for all damages which should be which required each railroad corporation done by its agents or engines to cattle, to erect and maintain fences on the line horses, or other animals thereon, if occa- of its road, and also cattle-guards at all sioned by the want of such fences and farm and road crossings, suitable and cattle-guards. It was not disputed that erty without due process of law. The U. S. Supreme Court reversed the action of the L. court, and, in giving the opinion of the court, Mr. Justice Peckham said : " The act done within the limits of the State, under the circumstances of this case and for the purpose therein mentioned, we hold a proper act, one which defendants were at liberty to perform, and which the State legislature had no right to prevent, at least with reference to the Federal Constitution. ... In the privilege of pursuing an ordinary calling or trade and of acquiring, holding, and selling property [which, earlier in the opinion, had been declared to be included in the liberty of the citizen] must be embraced the right to make all proper contracts in relation thereto, ami although it may be conceded that this right to contract in relation to persons or property, or to do business within the jurisdiction of the State, may be regulated and sometimes prohibited when the contracts or business conflict with the policy of the State as contained in the statutes, yet the power does not and cannot extend to pro- hibiting the citizen from making contracts of the nature involved in this case outside of the limits and jurisdiction of the State, and which are also to be performed out- side of such jurisdiction ; nof can the State legally prohibit its citizens from doing such an act as writing this letter of notification, even though the property which is to be insured may at the time when such insurance attaches be within the limits of the State. The mere fact that a citizen may be within the limits of a particular State does not prevent his making a contract outside its limits while he himself remains within it. Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 ; Tildon v. Blair, 21 Wall. 241. The contract in this case was thus made. It was a valid contract, made outside of the State, to be performed outside of the State, although the subject was property temporarily within the State. As the contract was valid in the place where made and where it was to be performed, the party to the contract upon whom is devolved the right or duty to send the notification in order that the insurance provided for by the contract may attach to the property specified in the shipment mentioned in the notice, must have liberty to do that act and to give that notification within the limits of the State, any prohibition of the State statute to the contrary notwithstanding. The giving of the notice is a mere collateral matter; it is not the contract itself, but is an act performed pursuant to a valid contract which the State had no right or jurisdiction to prevent its citizens from making outside the limits of the State." But in Hooper v. California, 155 U. S. 648, 15 Sup. Ct. Rep. 207, it was held that a State may in pursuance of its public policy penalize any act done within its borders, looking toward the formation of contract relations with foreign corporations which it has forbidden to do business within its borders. The State may regulate the formation of contracts of insurance within its borders, and the parties are powerless to waive the benefits of such regulation. Equitable Life A. S. v. Clements, 140 U. S. 226, 11 Sup. Ct. Rep 822. See Nutting v. Massachu- setts, 183 U. S. 553, 22 Sup. Ct. Rep. 238 ; aff . 175 Mass. 156, 55 N. E. 895, in which the cases of Hooper and Allgeyer are distinguished and reconciled.^ CH. XVI.] THE POLICE POWER OF THE STATES. 835 Perhaps the most striking illustrations of the principle here stated will be found among the judicial decisions which have held this provision would be valid as to such corporations as might be afterwards cre- ated witliin the State; but in respect to those previously in existence, and whose charters contained no sucli provision, it was claimed that this legislation was in- operative, since otherwise its effect would be to modify, and to that extent to violate, the obligation of the charter-con- tract. " The case," says the court, " re- solves itself into the narrow question of the right of the legislature, by general statute, to require all railways, whether now in operation or hereafter to be char- tered or built, to fence their roads upon both sides, and provide sufficient cattle- guards at all farm and road crossings, under penalty of paying all damages caused by their neglect to comply with such requirements. . . . We think the power of the legislature to control exist- ing railways in this respect may be found in the general control over the police of the country, which resides in the law- making power in all free States, and which is, by the fifth article of the bill of rights of this State, expressly declared to reside perpetually and inalienably in the legislature ; which is, perhaps, no more than the enunciation of a general prin- ciple applicable to all free States, and which cannot therefore be violated so as to deprive the legislature of the power, even by express grant to any mere pub- lic or private corporation. And when the regulation of the police of a city or town, by general ordinances, is given to such towns and cities, and the regulation of their own internal police is given to rail- roads to be carried into effect by their by- laws and other regulations, it is of course always, in all such cases, subject to the superior control of the legislature. That is a responsibility which legislatures can- not divest themselves of if they would. " So far as railroads are concerned, this police power which resides primarily and ultimately in the legislature is two- fold : 1. The police of the roads, which, in the absence of legislative control, the corporations themselves exercise over their operatives, and to some extent over all who do business with them, or come upon their grounds, through their general statutes, and by their officers. We ap- prehend there can be no manner of doubt that the legislature may, if they deem the public good requires it, of which they are to judge, and in all doubtful cases their judgment is final, require the several rail- roads in the State to establish and main- tain the same kind of police which is now observed upon some of the more impor- tant roads in the country for their own security, or even such a police as is found upon the English railways, and those upon the continent of Europe. No one ever questioned the right of the Connecticut legislature to require trains upon all of their railroads to come to a stand before passing draws in bridges ; or of the Massa- chusetts legislature to require the same thing before passing another railroad. And by parity of reasoning may all rail- ways be required so to conduct them- selves as to other persons, natural or cor- porate, as not unreasonably to injure them or their property. And if the busi- ness of railways is specially dangerous, they may be required to bear the expense of erecting such safeguards as will render it ordinarily safe to others, as is often required of natural persons under such circumstances. " There would be no end of illustra- tions upon this subject. ... It may be extended to the supervision of the track, tending switches, running upon the time of other trains, running a road with a single track, using improper rails, not using proper precaution by way of safety- beams in case of the breaking of axle- trees, the number of brakemen upon a train with reference to the number of cars, employing intemperate or incom- petent engineers and servants, running beyond a given rate of speed, and a thou- sand similar tilings, most of which have been made the subject of legislation or judicial determination, and all of which may be. Hegeman v. Western R. Co., 16 Barb. 353. "2. There is also the general police power of the State, by which persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and pros- perity of the State ; of the perfect right 836 CONSTITUTIONAL LIMITATIONS. [CH. XVI. that the rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regula- tions as from time to time may be made by the State with a view to the public protection, health, and safety, and in order to guard properly the rights of other individuals and corporations. Al- though these charters are to be regarded as contracts, and the rights assured by them are inviolable, it does not follow that these rights are at once, by force of the charter-contract, removed from the sphere of State regulation, and that the charter implies an undertaking, on the part of the State, that in the same way in which their exercise is permissible at first, and under the regula- tions then existing, and those only, may the corporators continue to exercise their rights while the artificial existence continues. The obligation of the contract by no means extends so far ; but, on the contrary, the rights and privileges which come into exist- ence under it are placed upon the same footing with other legal rights and privileges of the citizen, and subject in like manner to proper rules for their due regulation, protection, and enjoyment. in the legislature to do which no question ever was or, upon acknowledged general principles, ever can be, made, so far as natural persons are concerned. And it is certainly calculated to excite surprise anil alarm that the right to do the same in regard to railways should be made a seri- ous question." And the court proceed to consider the various cases in which the right of the legislature to regulate matters of private concern with reference to the general public good has been acted upon as unquestioned, or sustained by judicial decisions ; and quote, as pertinent to the general question of what laws are prohibited on the ground of impairing the obligation of contracts, the language of Chief Justice Marshall in Dartmouth College v. Woodward, 4 Wheat. 518, 629, that " the framers of the Constitution did not intend to restrain the 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." See, to the same effect, Suydam v. Moore, 8 Barb. 358; Waldron v. Rensselaer & Saratoga R. R. Co., 8 Barb. 390 ; Galena & Chicago U. R. R. Co. v. Loomis, 13 111. 548 ; Fitchburg R. R. v. Grand Junction R. R. Co , 1 Al- len, 552; Veazie v. Mayo, 45 Me. 560; Peters v. Iron Mountain R. R. Co., 23 Mo. 107; Grannahan v. Hannibal, &c. R. R. Co., 30 Mo. 546; Indianapolis & Cincin- nati R. R. Co. v. Kercheval, 16 Ind. 84 ; Galena & Chicago U. R. R. Co. v. Ap- pleby, 28 111. 283 ; Blair v. Milwaukee, &c. R. R. Co., 20 Wis. 254 ; State v. Mathews, 44 Mo. 523; Commissioners, &c. v. Hoi- yoke Water Power Co., 104 Mass. 446 ; Railroad Co. v. Fuller, 17 Wall. 560; To- ledo, &c. R. R. Co. v. Deacon, 63 111. 91 ; Ames v. Lake Superior, &c. R. R. Co., 21 Minn. 241 ; N. W. Fertilizing Co. v. Hyde Park, 70 III. 634; State v. New Haven, &c. Co., 43 Conn. 351. [[Missouri, K. & T. Trust Co. v. Krumseig, 172 U. S. 351, 19 Sup. Ct. Rep. 179; Matthews v. St. Louis & S. F. R. Co., 121 Mo. 298, 24 S. W. 591, 25 L. R. A. 161, and note. Upon the proposition that police regula- tions are subject to change, from time to time, as the public welfare may demand, without impairing the obligation of con- tract, see Pingree v. Michigan Central Ry. Co., 118 Mich. 814, 76 N. W. 635, 53 L. R. A. 274, where the charter gave to the company the right to fix rates for passenger carriage within the maximum of three cents per mile, and it was held that any subsequent attempt to fix rates was unconstitutional as impairing the obligation of contract. See, also, Detroit v. Detroit Cit. St. Ry. Co., 184 U. S. 368, 22 Sup. Ct. Rep. 410 ] CH. XVI.] THE POLICE POWER OF THE STATES. 837 The limit to the exercise of the police power (a) in these cases must be this : the regulations must have reference to the comfort, safety, or welfare of society ; they must not be in conflict with (a) [[Police regulations cannot be purely arbitrary nor purely for the promotion of private interests. A statute requiring railroads and transportation companies to turn over to a storage company or public warehouseman all property which the con- signee fails to call for or receive within twenty days after its arrival is unconstitu- tional. State v. Chicago, M. & St. P. R. Co., 68 Minn. 381, 71 N. W. 400, 38 L. R. A. 672. A gift element carried on by a merchant in connection with his business and involving no element of chance cannot be prohibited. Long v. State, 73 Md. 527, 21 All. 683, 74 Md. 565, 22 Atl. 4, 12 L. R. A. 425. In State v. Ashbrook, 154 Mo. 376, 65 S. W. 627, 48 L. R. A. 2(i5, an act of the legislature which was aimed at depart- ment stores of any considerable magnitude was considered and held void. The act divided commodities into twenty-eight groups, and provided that in cities having fifty thousand inhabitants or more, any merchant who employed more than fifteen persons in the same establishment and sold more than one group of commodities should be subject to a certain license fee, not less than three hundred dollars per group. No provision for inspection or other regulation was made. The court held that the whole scheme was an unwarranted attempt at discrimination against large merchants. In discussing the limits of the police power, Robinson, J., in giving the opinion of the court, said : " In order to sustain legislation of the character of the act in question as a police measure, the courts must be able to see that its object [opera- tion] to some degree tends towards the prevention of some offence or manifest evil, or has for its aim the preservation of the public health, morals, safety, or welfare. If no such object is discernible, but the mere guise and masquerade of public control, under the name of 'An Act to Regulate Business and Trade, &c./ is adopted, that the liberty and property rights of the citizens may be invaded, the courts will strike down the act as unwarranted. Mere legislative assumption of the right to direct and indicate the channel and course into which the private energies of the citizen shall flow, or the attempt to abridge or hamper his right to pursue any lawful call- ing or avocation which he may choose without unreasonable regulation or molesta- tion, have ever been condemned in all free government." For an ordinance of similar purpose, similarly disposed of, see Chicago v. Netcher, 183 111. 104, 55 N. E. 707, 48 L. R. A. 261, and for cases on department stores and their regulation, see note to this case in L R. A.; see also People v. Coolidge, 124 Mich. 664, 83 N. W. 594, 50 L. R. A. 493. Police regulations cannot be purely arbitrary; e.g., barbers cannot be singled out from men of all trades and callings and alone deprived of right to work on Sunday. Eden v. People, 161 111. 29(5, 43 N. E. 1108, 32 L. R. A. 659; Ex parte Jentzsch, 112 Cal. 468, 44 Pac. 803, 32 L. R. A. 664 ; contra, People v. Havnor, 149 N. Y. 195, 43 N. E. 541, 31 L. R. A. 689. Mines shipping by rail or by water cannot be singled out and alone compelled to provide special facilities for coal weigh- ing. Harding v. People, 160 111. 459, 43 N. E. 624, 32 L. R. A. 445. Upon extent of police power, see State v. Schlemmer, 42 La. Ann. 1166, 8 So. 307, 10 L. R. A. 135, and note. Restrictions upon the use of property by its owner cannot be purely arbi- trary. They must be in some degree necessary to protect the legitimate interests of others. A riparian owner cannot be prevented from driving piles upon liis own land and erecting buildings upon such piles, where they neither impede the flow materially nor interfere with navigation. Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, 8 L. R. A. 808, and note ; State v. Oilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847 ; Northwestern Telephone & E. Co. v. Minneapolis, 81 Minn. 140, 83 N. W. 627, 86 N. W. 69, 53 L. R. A. 175. But see Summerville v. Pressley, 33 S. C. 66, 11 S. E. 645, 8 L. R A. 854, and note. Non-performance of an impossibility cannot be made a crime. Port Huron v. Jenkinson, 77 Mich. 414, 43 N. W. 923, 6 L. R. A. 54. Nor can any other police regulation be purely arbitrary. Noel v. People, 187 111. 587, 58 N. E. 616. See also Allgeyer v. Louisiana, note a, p. 833, ante; also many of the cases in note 1, p. 568, and note a, p. 15, ante/] 838 CONSTITUTIONAL LIMITATIONS. [CH. XVI. any of the provisions of the charter ; and they must not, under pretence of regulation, take from the corporation any of the es- sential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise. 1 The maxim, Sic utere tuo ut alienum non Icedas, is that which lies at the foundation of the power; and to whatever enactment affecting the management and business of private corporations it cannot fairly be applied, the power itself will not extend. It has accordingly been held that where a corporation was chartered with the right to take toll from passengers over their road, a sub- sequent statute authorizing a certain class of persons to go toll free was void. 2 This was not a regulation of existing rights, but it took from the corporation that which they before possessed, 1 Washington Bridge Co. v. State, 18 Conn. 53 ; Bailey v. Philadelphia, &c. R. R. Co., 4 Harr. 389 ; State v. Noyes, 47 Me. 189; Pingry v. Washburn, 1 Aiken, 264; Miller v. N. Y. & Erie R. R. Co., 21 Barb. 513; People i>. Jackson & Michi- gan Plank Road Co., 9 Mich. 285, 307 ; Sloan v. Pacific R, R. Co., 61 Mo. 24 ; At- torney-General v. Chicago, &c. R. R. Co., 35 Wis. 425. In Benson v. Mayor, &c. of New York, 10 Barb. 223, 245, it is said, in considering a ferry right granted to a city : " Franchises of this description are partly of a public and partly of a private nature. So far as the accommodation of passengers is concerned, they are publici juris ; so far as they require capital and produce revenue, they are privati juris. Certain duties and burdens are imposed upon the grantees, who are compensated therefor by the privilege of levying ferri- age, and security from spoliation arising from the irrevocable nature of the grant. The State may legislate touching them, so far as they are publici juris. Thus, laws may be passed to punish neglect or mis- conduct in conducting the ferries, to se- cure the safety of passengers from danger and imposition, &c. But the State can- not take away the ferries themselves, nor deprive the city of their legitimaie rents and profits." And see People v. Mayor, &c. of New York, 32 Barb. 102, 116; Com- monwealth v. Pennsylvania Canal Co., 66 Pa. St. 41 ; Hegeman v. Western R. R., 13 N. Y. 9. FJPowers granted to corpora- tions are to be narrowly construed where their exercise is inimical to the public welfare, and a power granted by charter to one railroad " to connect with any rail- road running in the same direction with this road, and where there may be any portion of another road which may be used by this company " does not author- ize the consolidation of two parallel and competing lines, and a subsequently en- acted constitutional prohibition of such consolidation does not impair the obliga- tion of a contract, even if it could be held that the deprivation of a long granted but yet unused power were such impairment. Pearsall v. Great N. R. Co., 161 U. S. 646, 16 Sup. Ct. Rep. 705, and Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 16 Sup. Ct. Rep. 714, aff. 97 Ky. 675, 31 S. W. 476. State may compel insur- ance companies doing business within its borders to make full reports concerning their business and their financial condi- tion. Eagle Ins. Co. v. Ohio, 153 U. S. 446, 14 Sup. Ct. Rep. 868.] After the organization of a company for electric communication, it may be required to obtain the approval of its plans by city commissioners before laying wires in the streets. People v. Squire, 107 N. Y. 593, 14 N. E. 820. A provision that an insur- ance policy referring to the application shall not be received in evidence unless such application is attached to it, is valid as to policies issued thereafter by an ex- isting company. New Era Life Ins. Co. v. Musser, 120 Pa. St. 384, 14 Atl. 155. 2 Pingry v. Washburn, 1 Aiken, 264. Of course the charter reserved no right to make such an amendment. CH. XVI.] THE POLICE POWER OF THE STATES. 839 namely, the right to tolls, and conferred upon individuals that which before they had not, namely, the privilege to pass over the road free of toll. " Powers," it is said in another case, " which can only be justified on this specific ground [that they are police regulations], and which would otherwise be clearly prohibited by the Constitution, can be such only as are so clearly necessary to the safety, comfort, and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the Constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it." 1 And it was therefore held that an act subsequent to the charter of a plank-road company, and not assented to by the corporators, which subjected them to a total forfeiture of their franchises for that which by the charter was cause for partial forfeiture only, was void as impairing the obligation of contracts. 2 And even a pro- vision in a corporate charter, empowering the legislature to alter, modify, or repeal it would not authorize a subsequent act which, on pretence of amendment, or of a police regulation, would have the effect to appropriate a portion of the corporate property to the public use. 3 And where by its charter the corporation was em- 1 Christiancy, J , in People v. Jackson & Michigan Plank Road Co., 9 Mich. '285, 307. Compare Commonwealth v. Pennsylvania Canal Co., 66 Pa. St. 41. Where the corporation by its charter has the right to fix its own tolls for a speci- fied period, the legislature is without the power to regulate them till that period has expired. Sloan v. Pacific R. R. Co., 61 Mo. 24, 21 Am. Rep. 397. 2 Ibid. And see State v. Noyes, 47 Me. 189. 8 Detroit v. Plank Road Co., 43 Mich. 140, 5 N. W. 275. It has been held that the reservation of a right to amend or repeal would not justify an act requiring a railroad company to cause a proposed new street or highway to be taken across their track, and to cause the necessary embankments, excavations, and other work to be done for that purpose at their own expense ; thus not only appropriat- ing a part of their property to another public use, but compelling them to fit it for such use: Miller v. N. Y. & Erie R. R. Co., 21 Barb. 513 ; People v. Lake Shore, &c. Ry. Co., 52 Mich. 277, 17 N. W. 841 ; Chicago & G. T. Ry. Co. t;. Hough, 61 Mich. 507, 28 N. W. 532. Contra, Portland & R. R. R. Co. v. Deer- ing, 78 Me. 61, 2 Atl. 670; even if there is no reservation in the charter of the right to alter, &c. Boston & M. 11. R. Co. v. Com'rs, 79 Me. 386, 10 Atl. 113. Com- panies may be compelled to put in farm crossings at their own expense. 111. Cent. R. R. Co. v. Willenborg, 117 III. 203, 7 N. E. 698. See also Montclair v. New York, &e. Ry. Co., 45 N. J. Eq. 436, 18 Atl. 242. This, however, can scarcely be a more severe exercise of the power than is the amendment to the charter of a railroad corporation which limits the rates of fare and freight which may be charged; for the exercise of this might be carried to an extent which would annihilate the whole value of railroad property. The power, however, is very fully sustained, where the right to amend is reserved in the charter. Attorney-General v. Chi- cago, &c. R. R. Co., 35 Wis. 425 ; Blake r. Winona, &c. R. R. Co., 19 Minn. 418, 18 Am. Rep. 345; Chicago, &c. R. R. Co. v. Iowa, 94 U. S. 155; Piek v. Chicago, &c. R. R. Co., 6 Biss. 177. See a like rule applied to a ferry company in Par- 840 CONSTITUTIONAL LIMITATIONS. [CH. XVI. powered to construct over a river a certain bridge, which must necessarily constitute an obstruction to the navigation of the river, a subsequent amendment making the corporation liable for such obstruction was held void, as in effect depriving the corporation of the very right which the charter assured to it. 1 So where the charter reserved to the legislature the right of modification after the corporators had been reimbursed their expenses in construct- ing the bridge, with twelve per cent interest thereon, an amend- ment before such reimbursement, requiring the construction of a fifty-foot draw for the passage of vessels, in place of one of thirty- two feet, was held unconstitutional and void. 2 So it has been held that a power to a municipal corporation to regulate the speed of railway carriages would not authorize such regulation, except in the streets and public grounds of the city ; such being the fair construction of the power, and the necessity for this police regu- lation not extending further. 3 But there are decisions on this point which are the other way. 4 On the other hand, the right to require existing railroad cor- porations to fence (a) their track, and to make them liable for all ker v. Metropolitan R. R. Co., 109 Mass, late the running of cars within the cor- 506. A requirement that rates of fare porate limits would justify an ordinance and freight shall be annually fixed and entirely prohibiting the use of steam for published is legitimate as an exercise of propelling cars through any part of the the police power. Railroad Co. v. Fuller, city. And see Great Western R. R. Co. 11 Wall. 560. For discussion of the right v. Decatur, 33 111. 381 ; Branson v. Phila- of the State to fix rates, see post, pp. 871- delphia, 47 Pa. St. 329 ; Whitson v. 875, notes. It is no impairment of the Franklin, 34 Ind. 392. Affirming the obligation of the charter of a railroad general right to permit the municipalities company to pass laws to prevent extor- to regulate the speed of trains, see Chi- tion and unjust discrimination. Illinois Cent. R. R. Co. v. People, 95 111. 313, 1 Am. & Eng. R. R. Cas. 188. That the issuing and taking up of tickets and cou- pons of tickets by common carriers may be regulated by statute, see Fry v. State, 63 Ind. 552. 1 Bailey v. Philadelphia, &c. R. R. Co., 4 Harr. 389. Compare Commonwealth v. Pa. Canal Co., 66 Pa. St. 41, 5 Am. Rep. 329. cago, &c. R. R. Co. v. Haggerty, 67 111. 113 ; Pennsylvania R. R. Co. v. Lewis, 79 Pa. St. 33 ; Haas v. Chicago, &c. R. R. Co., 41 Wis. 44. That the legislature may compel railroad companies to carry impartially for all, see Chicago, &c. R. R. Co. v. People, 67 111. 11 ; Cincinnati, &c. R. R. Co. v. Cook (Ohio), 6 Am. & Eng. R. R. Cas. 317 ; Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 So. 203 ; but an act abrogating the requirement of im- 2 Washington Bridge Co. v. State, 18 partial carriage is void as to inter-state Conn. 53. 8 State v. Jersey City, 29 N. J. 170. 4 Crowley v. Burlington, &c. Ry. Co., 65 Iowa, 658, 20 N. W. 467, 22 N. W. 918. transportation. The Sue, 22 Fed. Rep. 843. But if the carriage is of persons from State to State, the State has no such control. Hall v. De Cuir, 95 U. S. 485. See Merz v. Missouri P. Ry. Co., 88 Mo. See Carton v. Illinois Cent. R. R. Co., 59 672. In Buffalo & Niagara Falls R. R. Iowa, 148, 13 N. W. 67, 6 Am. & Eng. Co. v. Buffalo, 5 Hill, 209, it was held R. R. Cas. 305. See cases, post, pp. 840, that a statutory power in a city to regu- 873. (a) QOther landowners may be required to fence their lands also, and may be denied the right to recover for trespasses by domestic animals unless their lands are OH. XVI.] THE POLICE POWER OF THE STATES. 841 beasts killed by going upon it, has been sustained on two grounds : first, as regarding the division fence between adjoining proprie- tors, and in that view being but a reasonable provision for the protection of domestic animals ; and second, and chiefly, as essen- tial to the protection of persons being transported in the railway carriages. 1 Having this double purpose in view, the owner of 1 Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 140; New Albany & . Saletu R. R. Co. v. Tilton, 12 Ind. 3; Same v. Maiden, 12 Ind. 10; Same v. McNamara, 11 Ind. 543; Ohio & Mis- sissippi H. R. Co. v. McClelland, 25 III. 140; Madison & Indianapolis R. R. Co. v. Whiteneck, 8 Ind. 217; Indianapolis & Cincinnati R. R. Co. v. Townsend, 10 Ind. 38 ; Same v. Kercheval, 16 Ind. 84 ; Corwin r. N. Y. & Erie R. R. Co., 13 N. Y. 42 ; Horn v. Atlantic & St. Law- rence R. R. Co., 35 N. H. 169, and 86 N. H. 440; Fawcett v. York & North Midland R. R. Co., 15Jur. 173; Smith v. Eastern R. R. Co., 35 N. H. 356 ; Bulkley v. N. Y. & N. H. R. R. Co., 27 Conn. 479; Jones v. Galena, &c. R. R. Co., 16 Iowa, 6 ; Winona, &c. R. R. Co. v. Wal- dron, 11 Minn. 513; Bradley v. Buffalo, &c. R. R. Co., 34 N. Y. 420 ; Sawyer v. Vermont, &c. R. R. Co., 105 Mass. 196; Pennsylvanfa R. R. Co. v. Riblet, 66 Pa. St. 164, 5 Am. Rep. 360; Kansas Pacific R. R. Co. v. Mower, 16 Kan. 573 ; Wilder v. Maine Central R. R. Co., 66 Me. 332; Blewette v. Wyandotte, &c. 11. R. Co., 72 Mo. 583. [State may en- force such regulations by making railroad companies liable for all damages that may be suffered by any individual through their non-compliance. Minneapolis & St. L. R. Co. v. Emmons, 149 U. S. 364, 13 Sup. Ct. Rep. 870.3 The Minnesota statute imposes no duty toward children. Fitzgerald v. St. Paul, &c. Ry. Co., 29 Minn. 336, 13 N. W. 168. As to the de- gree of care required of railroad com- panies in keeping up their fences, com- pare Antisdel v. Chicago, &c. R. R. Co., 26 Wis. 145; Lemmmi v. Chicago, &c. R. R. Co., 32 Iowa, 151 ; Carey v. Chi- cago, &c. Ry. Co., 61 Wis. 71, 20 N. W. 648 ; Chicago, &c. R. R, v. Barrie, 55 111. 226, and cases cited therein. It is com- petent to make the company liable for double the value of stock killed in con- sequence of the neglect to fence. Mis- souri Pac. Ry. Co. v. Humes, 115 U. 8. 612, 6 Sup. Ct. Rep. 110; Barnettw. Rail- road Co., 68 Mo. 56, 30 Am. Rep. 773; Spealman v. Railroad Co., 71 Mo. 434; Tredway v. Railroad Co., 43 Iowa, 527 ; Little Rock, &c. R. R. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 65; Cairo, &c. R. R. Co. v. People, 92 111. 97, 34 Am. Rep. 112. Contra, Atchison, &o. R. R. Co. v. Baty, 6 Nev. 37, 29 Am. Rep. 386. A much higher attorney fee than is al- lowed in other cases cannot be imposed by law in actions against a railroad for stock killing. Wilder v. Chicago & W. M. Ry. Co., 70 Mich. 382, 38 N. W. 289. Compare Peoria, D. & E. Ry. Co. v. Dug- gan, 109 111. 537. A statute making rail- road companies liable for injuries by fire communicated by their locomotive en- gines was sustained, as to companies pre- viously in existence, in Lyman v. Boston & Worcester R. R. Co., 4 Cush. 288; Rodemacher v. Milwaukee, &c. R. R. Co., 41 Iowa, 297, 20 Am. Rep. 592; Gorman v. Pacific Railroad, 20 Mo. 441, [regard- less of the question of negligence. Mat- thews v. St. Louis & S. F. R. Co., 121 Mo. 298, 24 S. W. 691, 25 L. R. A. 161, and note; aff. 165 U. S. 1, 17 Sup. Ct. Rep. 243 ; Grissell v. Housatonic Ry. Co., 64 Conn. 447, 9 All. 137, 1 Am. St. 138. A statute authorizing full recovery by a passenger against a public carrier of passengers for injuries resulting from the carriage is constitutional though negli- gence of the carrier is not made an ele- ment of the course of action. Clark v. Russell, 97 Fed. Rep. 900 ; St. Louis, &c.. Ry. Co. v. Matthews, 165 U. S. 1, 17 Sup. Ct. Rep. 243-3 But a statute making a t fenced as required. Poindexter v. May, 98 Va. 143, 34 S. E. 971, 47 L. R. A. 688. And a law permitting half of a party wall to be placed upon the land of an adjoining proprietor, even against his will, is good. Swift v. Calnan, 102 Iowa, 206, 71 N. W. 233, 37 L. R. A. 462-3 842 CONSTITUTIONAL LIMITATIONS. [CH. X\ 7 I. beasts killed or injured may maintain an action for the damage suffered, notwithstanding he may not himself be free from negli- gence. 1 But it would, perhaps, require an express legislative declaration that the corporation should be liable for the beasts thus destroyed to create so great an innovation in the common law. The general rule, where a corporation has failed to obey the police regulations established for its government, would not make the corporation liable to the party injured, if his own negligence con- tributed with that of the corporation in producing the injury. 2 The State may also regulate the grade of railways, and pre- scribe how, and upon what grade, railway tracks shall cross each other : and it may apportion the expense of making the neces- sary crossings between the corporations owning the roads. 3 And railroad liable for cattle killed irrespec- tive of negligence is bad. Jensen v. Union Pac. Ry. Co., 6 Utah, 253, 21 Pac. 994, 4 L. R. A. 724; Bielenberg v. Mon- tana, &c. Ry. Co., 8 Mont. 271, 20 Pac. 314. And it is not competent to make railroad companies liable for injuries for which they are in no way responsible. It is therefore held that an act imposing upon railroad companies the expense of coroners' inquests, burial, &c., of persons who may die on its cars, or be killed by collision, &c., is invalid as applied to cases where the company is not in fault. Ohio, &c. R. R. Co. c. Lackey, 78 111. 53. That it is as competent to lessen the common-law liabilities of railroad com- panies as to increase them, see Kirby v. Pennsylvania R. R. Co., 76 Pa. St. 506. And see Camden & Amboy R. R. Co. v. Briggs, 22 N. J. 623 ; Trice v. Hannibal, &c. R. R. Co., 49 Mo. 438. i Corwin v. N. Y. & Erie R. R. Co., 13 N. Y. 42 ; Indianapolis & Cincinnati R. R. Co. v. Townsend, 10 Ind. 38 ; Jef- fersonville, &c. R. R. Co. v. Nichols, 30 Ind. 321; Same v. Parkhurst, 34 Ind. 601; Suydam v. Moore, 8 Barb. 358; Fawcett v. York & North Midland R. Co., 15 Jur. 173; Waldron v. Rensselaer & Schenectady R. R. Co., 8 Barb. 390; Horn v. Atlantic & St. Lawrence R. R. Co., 35 N. H. 169 ; O'Banhon v. Louis- ville, &c. R. R. Co., 8 Bush, 348; Illinois Cent. R. R. Co. v. Arnold, 47 111. 173 ; Hinman v. Chicago, &c. R. R. Co., 28 Iowa, 491 ; Quackenbush v. Wisconsin, &c. R. R. Co., 62 Wis. 411, 22 N. W. 519; Burlington & M. R. R. Co. v. Webb, 18 Neb. 215, 24 N. W. 706. [And a State may make a railroad company liable for all property lost through fires arising from its locomotives, whether through its negligence or not. St. Louis & S. F. R. Co. v. Matthews, 165 U. S. 1, 17 Sup. Ct. Rep. 243, aff. 121 Mo. 298, 24 S. W. 591, 25 L. R. A. 161.] 2 Jackson v. Rutland & Burlington R. R. Co., 25 Vt. 150. And see Marsh v. N. Y. & Erie R. R. Co., 14 Barb. 364 ; Joliet & N. I. R. R. Co. v. Jones, 20 III. 221 ; Tonawanda R. R. Co. v. Munger, 5 Denio, 255, and 4 N. Y. 349 ; Price v. New Jersey R. R. Co., 31 N. J. 229; Drake v. Philadelphia, &c. R. R. Co., 51 Pa. St. 240. In Indianapolis & Cincinnati R. R. Co. v. Kercheval, 16 Ind. 84, it was held that a clause in the charter of a railroad cor- poration which declared that when the corporators should have procured a right of way as therein provided, they should be seised in fee-simple of the right to the land, and should have the sole use and oc- cupation of the same, and no person, body corporate or politic, should in any way interfere therewith, molest, disturb, or injure any of the rights and privileges thereby granted, &c., would not take from the State the power to establish a police regulation making the corporation liable for cattle killed by their cars. [Jensen v. Union P. R. Co., 6 Utah, 253, 21 Pac. 994, 4 L. R. A. 724, holds that railroad cannot in the absence of negli- gence on its part be made liable for stock killed by it.] 8 Fitchburg R. R. Co. v. Grand Junc- tion R. R. Co., 1 Allen, 552, and 4 Allen, 198; Pittsburgh, &c. R. R. Co. r. S. W. Pa. R. R. Co., 77 Pa. St. 173. They may CH. XVI.] THE POLICE POWER OF THE STATES. 843 it may establish regulations requiring existing railways to ring the bell or blow the whistle of their engines immediately before passing highways at grade, or other places where their approach might be dangerous to travel, 1 or to station flagmen at such or any other dangerous places. 2 And it has even been intimated that it might be competent for the State to make railway corpo- rations liable as insurers for the safety of all persons carried by them, in the same manner that they are by law liable as carriers of goods ; though this would seem to be pushing the police power to an extreme. 3 But those statutes which have recently become be required to put up depots at railroad junctions. State v. Wabash, &c. Ry. Co., 83 Mo. 144. Part of the expense of changing grade to overhead crossings may be laid upon a town. Appeal of Westbrook, 57 Conn. 95, 17 All. 368. The legislature may regulate the speed at highway and other crossings. Kockford, &c. R. R. Co. v. Hillmer, 72 111. 235. " While the franchise of a railroad com- pany licenses generally unlimited speed, power is reserved to the legislature to regulate the exercise of the franchise for public security." Ryan, Ch. J., in Horn v. Chicago, &c. R. R. Co., 38 Wis. 463. The regulation is in favorem vitce. Haas v. Chicago, &c. R. R. Co., 41 Wis. 44. But running at unlawful speed does not impose an absolute liability. Louisville, N. 0. & T. Ry. Co. v. Caster, Miss. , 5 So. 388. [[The State, acting directly or through a city council, may compel the railway companies over whose tracks a viaduct extends to repair the same, and may apportion among them the expense of such repair, although the viaduct was built at the joint expense of the railway companies and the city, acting under agreement. Chicago, B. & Q. R. Co. v. Nebraska, 170 U. S. 57, 18 Sup. Ct. Rep. 613, aff. 47 Neb. 549, 66 N. W. 624. A railway company may be required to pay the whole expense of change of grade at a crossing. New York & N. E. R. Co. . Town of Bristol, 161 U. S. 556, 14 Sup. Ct. Rep. 437, aff. 62 Conn. 527, 26 Atl. 122.3 1 " The legislature has the power, by general laws, from time to time, as the public exigencies may require, to regu- iate corporations in their franchises, so as to provide for the public safety. The provision in question is a mere police regulation, enacted for the protection and safety of the public, and in no manner interferes with or impairs the powers conferred on the defendants in their act of incorporation." Galena & Chicago U. R. R. Co. v. Loomis, 13 111. 648. And see Stuyvesant v. Mayor, &c. of New York, 7 Cow. 588 ; Benson . Mayor, &c. of New York, 10 Barb. 223 ; Bulkley v. N. Y. & N. H. R. R. Co., 27 Conn. 486 ; Veazie v. Mayo, 45 Me. 560 ; 49 Me. 156 ; Galena & Chicago U. R. R. Co. v. Dill, 22 111. 264 ; Same v. Appleby, 28 111. 283; Ohio & Mississippi R. R" Co. v. McClelland, 25 111. 140; Clark's Adm'r v. Hannibal & St. Jo. R. R. Co., 36 Mo. 202; Chicago, &c. R. R. Co. v. Triplett, 38 111. 482; Commonwealth v. Eastern R. R. Co., 103 Mass. 254, 4 Am. Rep. 555 ; Kaminitsky v. R. R. Co., 25 S. C. 63. 2 Toledo, &c. R. R. Co. v. Jacksonville, 67 111. 37 ; Western & A. R. R. Co. v. Young, 81 Ga. 397, 7 S. E. 912. In many States now there are railroad commission- ers appointed by law, with certain powers of supervision, more or less extensive. Re- specting these it has been said in Maine : " Our whole system of legislative super- vision through the railroad commission- ers acting as a State police over railroads is founded upon the theory that the public duties devolved upon railroad corpora- tions by their charter are ministerial, and therefore liable to be thus enforced." Railroad Commissioners v. Portland, &c. R. R. Co., 63 Me. 269, 18 Am. Rep. 208. 8 Thorpe v. Rutland & Burlington R. R. Co., 27 Vt 140: Carriers, of goods are liable as insurers, notwithstanding they may have been guiltless of negli- gence, because such is their contract with the shipper when they receive his goods for transportation ; but carriers of per- sons assume no such obligations at the 844 CONSTITUTIONAL LIMITATIONS. [CH. XVI. common, and which give an action to the representatives of per- sons killed by the wrongful act, neglect, or default of another, may unquestionably be made applicable to corporations previously chartered, and may be sustained as only giving a remedy for a wrong for which the common law had failed to make provision. 1 And it cannot be doubted that there is ample power in the legis- lative department of the State to adopt all necessary legislation for the purpose of enforcing the obligations of railway companies as carriers of persons and goods to accommodate the public im- partially, and to make every reasonable provision for carrying with safety and expedition. 2 common law, and where a company of individuals receive from the State a char- ter which makes them carriers of persons, and chargeable as such for their own de- fault or negligence only, it may well be doubted if it be competent for the legisla- ture afterwards to impose upon their contracts new burdens, and make them respond in damages where they have been guilty of no default. In other words, whether that could be a proper police regulation which did not assume to regu- late the business of the carrier with a view to the just protection of the rights and interests of others, but which im- posed a new obligation, for the benefit of others, upon a party guilty of no neglect of duty. But perhaps such a regulation would not go further than that in Stanley v. Stanley, 26 Me. 191, where it was held competent for the legislature to pass an act making the stockholders of existing banks liable for all corporate debts there- after created ; or in Peters v. Iron Moun- tain R. R. Co., 23 Mo. 107, and Grannahan v. Hannibal, &c. R. R. Co., 80 Mo. 546, where an act was sustained which made companies previously chartered liable for the debts of contractors to the workmen whom they had employed. [[That a statute creating such absolute liability is valid, is held in Chicago, R. I. & P. Ry. Co. v. Zernecke, 59 Neb. 689, 82 N. W. 26, 55 L R. A. 610.] 1 Southwestern R. R. Co. v. Paulk, 24 Ga. 356; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120. In Boston, Con- cord, and Montreal R. R. v. State, 32 N. H. 215, a statute making railroad cor- porations liable to indictment and fine, in case of the loss of life by the negligence or carelessness of the proprietors or their servants, was adjudged constitutional, as applicable to corporations previously in existence. To an indictment or action under a like Massachusetts act contribu- tory negligence is no defence. Com. v. Boston, &c. R. R., 134 Mass. 211; Merrill v. Eastern R. R., 139 Mass. 238, 1 N. E. 548, 139 Mass. 252, 29 N. E. 666 2 Railroad employees may be required to be examined to test their fitness, and for color-blindness. Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. Rep. 564 ; Mc- Donald v. State, 81 Ala. 279 ; Nashville, C. & St. L. Ry. Co. v. State, 83 Ala. 71, 3 So. 702, 128 U. S. 96, 9 Sup. Ct. Rep. 28. fJThe entire expenses of the State railroad commission, including salaries of commissioners, may be assessed upon the railroad companies operating within the State in proportion to their operated track mileage. Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386, 12 Sup. Ct. Rep. 255, aff 27 S. C. 385, 4 S. E. 49; Louis- ville & N. R. Co. v. Baldwin, 85 Ala. 619, 5 So. 311, 7 L. R. A. 266, contra.^ On this subject in general, see Redf. on Railw. c. 32, sec. 2 ; Louisville, &c. R. R. Co. v. Burke, 6 Cold. 45 ; New Albany & Salem R. R. Co. v. Tilton, 12 Ind. 3; Buckley v. N. Y. & N. H. R. R. Co., 27 Conn 479 ; Ohio & Mississippi R. R. Co. v. McClel- land, 25 III. 140 ; Bradley v. Buffalo, &c. R. R. Co., 34 N. Y. 427 ; Boston, C. & M. R. R. Co. v. State, 32 N. H. 215 ; Penn- sylvania R. R. Co. v. Riblet, 66 Pa. St. 164, 5 Am. Rep. 360. And see other cases cited, ante, pp. 839, 840, notes. [That telephone companies are common carriers and must render their services impartially to all who may apply for them, see Nebraska Telephone Co. v. State, 55 Neb. 627, 76 N. W. 171, 46 CH. XVI.] THE POLICE POWER OF THE STATES. 845 Restraints on Sale of Liquors. Those statutes which regulate or altogether prohibit the sale of intoxicating drinks as a bever- age have also been, by some persons, supposed to conflict with the federal Constitution. Such of them, however, as assume to regulate merely, and to prohibit sales by other persons than those who are licensed by the public authorities, have not suggested any serious question of constitutional power. They are but the ordinary police regulations, such as the State may make in re- spect to all classes of trade or employment. 1 But those which undertake altogether to prohibit the manufacture and sale of intoxicating drinks as a beverage have been assailed as violating express provisions of the national Constitution, and also as sub- versive of fundamental rights, and therefore not within the grant of legislative power. That legislation of this character was void, so far as it affected imported liquors or such as might be introduced from one State into another, because in conflict with the power of Congress over commerce, was strongly urged in the License Cases before the Supreme Court of the United States ; but that view did not obtain the assent of the court. Opinions were expressed by a majority L. R. A. 113. Upon power to regulate the consolidation of competing railroads, see State v. Montana Ity. Co., 21 Mont. 221, 53 Pac. 623, 4~> L. R. A. 271, and note thereto in L. 11. A. Upon duty of a railroad company to furnish cars to shippers, see Houston, E. & W. T. R. Co. r. Campbell, 91 Tex. 551, 45 S. W. 2, 43 L. R. A. 225, and note. Carriers of goods may be compelled to forward within a certain time after receiving them. Bagg v. Wilmington, C. & A. R. Co., 109 N. C. 279, 14 S. E. 79, 14 L. R. A. 596. Street railways may be required to provide screens for protection of motormen. State v. Whitaker, 160 Mo. 59, 60 S. W. 1068 ; State v. Nelson, 52 Ohio St. 88, 39 N. E. 22, 26 L. R. A. 317; State v. Hos- kins, 58 Minn. 35, 59 N. W. 545, 25 L. R. A.- 759, and note.] 1 Bode v. State, 7 Gill, 326 ; Bancroft ?). Dumas, 21 Vt. 456; Thomasson v. State, 15 Ind. 449 ; License Cases, 5 How. 504; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; Goddard v. Jack- sonville, 1 5 111. 588 ; Kettering v. Jackson- ville, 50 111. 39 ; State v. Allmond, 2 Houst 612. [JPlumb v. Christie, 103 Ga. 686, 30 S. E. 759, 42 L. R. A. 181.] That a terri- tory may make such laws : Terr. v. Con- nell, Ariz. , 16 Pac. 209. That such laws may be applied to corporations char- tered to manufacture liquors, as well as to others, see Commonwealth v. Intoxica- ting Liquors, 115 Mass. 153; Beer Com- pany v. Massachusetts, 97 U. S. 25. That, when the prohibition is total, even a drug- gist cannot sell as medicine on a physi- cian's prescription, see Woods v. State, 36 Ark. 36, 38 Am. Rep. 22. [And a li- censed pharmacist may be required to take out a special liquor license before he shall be permitted to use spirituous liquors in the preparation of pharmacist's compounds. Gray v. Connecticut, 159 U. S. 74, 15 Sup. Ct. Rep. 985; Com. v. Fowler, 96 Ivy. 166, 28 S. W. 786, 33 L. R. A. 839. Upon constitutionality of laws regulating sale of liquors, see note to, 28 L. ed. U. S. 696. Sale of other commodities in rooms where sale of liquors is authorized may be prohibited. State D. Gerhard t, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313.] Sales within cer- tain hours may be forbidden. Hedderich v. State, 101 Ind. 664. A farmer may be forbidden to give cider on Sunday to an intoxicated person. Altenburg v. Com., 126 Pa. St. 602, 17 All. 799. 846 CONSTITUTIONAL LIMITATIONS. [CH. XVI. of the court that the introduction of imported liquors into a State, and their sale in the original packages as imported, could not be forbidden, because to do so would be to forbid what Con- gress, in its regulation of commerce, and in tiie levy of imposts, had permitted ; J but it was conceded by all, that when the origi- nal package was broken up for use or for retail by the importer, and also when the commodity had passed from his hands into the hands of a purchaser, it ceased to be under Congressional protec- tion as an import, or a part of foreign commerce, and became subject to the laws of the State, and might be taxed for State purposes, and the sale regulated by the State like any other property. 2 It was also decided, in these cases, that the power of Congress to regulate commerce between the States did not ex- clude regulations by the States, except so far as they might come in conflict with those established by Congress ; and that, conse- quently, as Congress had not undertaken to regulate commerce in liquors between the States, a law of New Hampshire could not be held void which punished the sale, in that State, of gin pur- chased in Boston and sold in New Hampshire, notwithstanding the sale was in the cask in which it was imported, but by one not licensed by the selectmen. 3 The authority of the License Cases is, however, seriously impaired by late decisions of the same court. Upon the principle, now well settled, 4 that the failure of Congress to act as to matters directly affecting interstate commerce is equivalent to a declaration that it shall be free, it is held a State has no power to prevent the bringing of liquor into it from another 1 Taney, Ch. J., 5 How. 504, 574 ; Me- 41 N. W. 671 ; Leisy v. Hardin, 78 Iowa, Lean, J., 5 How. 689 ; Catron, J., 5 How. 286, 43 N. W. 188. QSame case, 135 U. S. 608. And see Brown v. Maryland, 12 100, 10 Sup. Ct. Rep. 681J See Water- Wheat. 419; License Tax Cases, 5 Wall, bury v. Newton, 50 N. J. L. 534, 14 Atl. 462 ; Cook v. Pennsylvania, 97 U. S. 566 ; 604 ; People v. Lyng, 74 Mich. 579, 42 Tiernan v. Rinker, 102 U. S. 123; Lin- N. W. 139, rev. in 135 U. S. 161, 10 Sup. coin v. Smith, 27 Vt. 328, 335 ; Bradford Ct. Rep. 725. See also Bode v. State, 7 v. Stevens, 10 Gray, 379 ; States Robin- Gill, 326; Jones v. People, 14 111. 196; son, 49 Me. 285. State c. Wheeler, 25 Conn. 290; Santo v. 2 Daniel, J., held that the right to State, 2 Iowa, 165, 202 ; Commonwealth regulate was not excluded, even while v. Clapp, 5 Gray, 97 ; Metropolitan Board the packages remained in the hands of r. Barrie, 34 N. Y. 657 ; Beer Company v. the importer unbroken (p. 612). See also Massachusetts, 97 U. S. 25; Jones v. Sur- the views of Grier, J. (p. 631). [See, in prise, 64 N. H. 243, 9 Atl. 384 ; Lang v. this connection, Re Wilson, 8 Mackey Lynch, 38 Fed Rep. 489; State . Co- (D. C.), 341, 12 L. R. A. 624. While the baugh, 78 Me. 401, 6 Atl. 4. In Iowa it is liquor is yet in the original package, the held competent to except from the gen- State may prohibit and punish its sale to eral prohibition of the sale of wines all a person of known intemperate habits, those made from fruit grown in the State. Com. v. Zelt, 138 Pa. 615, 21 Atl. 7, 11 State v. Stucker, 68 Iowa, 496, 12 N. W. L. R. A. 602.] 483. But this seems not in harmony with s This rule has lately been followed Tiernan v. Rinker, 102 U. S. 123. in Iowa. Collins v. Hills, 77 Iowa, 181, * See p. 688, note 2. CH. XVI.] THE POLICE POWER OF THE STATES. 847 State, and that it cannot prohibit the sale within it of liquor in the original package by a non-resident. 1 But the manufacture of 1 Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465, 8 Sup. Ct. Rep. 689, 1062; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. Rep. 681. In the former case a majority of the court held that the statute could not be upheld as an inspection law nor as a sanitary law ; that it was a regulation of commerce, although its purpose was to perfect the policy of the State as to intem- perance ; and left undecided the question of the right of the State to forbid the sale of the liquor when imported. In the lat- ter case this point is distinctly ruled, so far as the case of the sale by a foreigner or non-resident in the original package is concerned, Qhe court holding that the State is powerless to prohibit or regulate the sale by the importer in the original package, fol. Brown v. Maryland, 12 Wheat. 419-3 For the State rulings upon it, see cases p. 846, note 3, supra. |T)i- rectly after the decision of Leisy v. Har- din, 135 U. S. 100, 10 Sup. Ct. Rep. 681, Congress enacted the so-called Wilson Bill, providing that " All fermented, dis- tilled, or other intoxicating liquors 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 being introduced therein in original packages or otherwise." 26 Stat. at Large, 313, chap. 728. In re Rahrer, 140 U. S. 545, 11 Sup. Ct. Rep 865, it was held that this enact- ment permitted the law of Kansas, pro- hibiting and penalizing the manufacture, sale, or barter of " any spirituous, malt, vinous, fermented, or other intoxicating liquors " to extend to all such liquors imported into the State. In Scott r. Donald, 165 U. S. 58, 17 Sup. Ct. Rep. 265, was considered the validity of the State Dispensary Law of South Carolina, which, as it then stood, required that " no wines or liquors, except domestic wines, should be manufactured or sold, except through the agency of a State board of control, a commissioner and cer- tain county dispensers, and after an in- spection by a State chemist. Packages of wines and liquors made in other States and imported by a resident of the State for his own use, and in the possession of railroad companies which, as common carriers, had brought the packages within the State, were seized and confiscated as contraband by constables of the State." The court held " that when a State recog- nizes the manufacture, sale, and use of intoxicating liquors as lawful, it cannot discriminate against the bringing of such articles in, and importing them from other States ; that such legislation is void as a hindrance to interstate commerce, and an unjust preference of the products of the enacting State as against similar products of the other States," and that therefore " as respected residents of the State of South Carolina desiring to import foreign wines and liquors for their own use, the act in question in that case was void." The statute was thereupon modi- fied in such manner as to permit the importation, but to require that before any such importation the intending im- porter should " first certify to the [official] chemist . . . the quantity and kind of liquor proposed to be imported, together with the name and place of business of the person, firm, or corporation from whom it is desired to purchase, accom- panying such certificate with the state- ment that the proposed consignor has been requested to forward a sample of such liquor to the said chemist. . . . Upon the receipt of said sample, the said chem- ist shall immediately proceed to test the same, and . . . [upon finding it pure, &c.] shall issue a certificate to that effect," which should be attached to the consign- ment. Any package imported without such certificate was to be confiscated and destroyed. This provision was consid- ered in Vance v. Vandercook Co., 170 U. S. 438, 18 Sup. Ct. Rep. 674, and held invalid as an unlawful interference with interstate commerce. In Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. Rep. 664, it was held that the importation was not completed until the goods had been de- livered to the consignee, or at any rate 848 CONSTITUTIONAL LIMITATIONS. [CH. XVI. intoxicating liquor within the State may be forbidden although intended solely for exportation. l until the carrier ceased to hold them as carrier. The Iowa law forbidding trans- portation from place to place within the State did not apply to the station agent who unloaded a box containing whiskey from a freight car and wheeled it into the railway company's freight warehouse, there to await delivery to the consignee. And in State v. Holleyman, 55 S. C. 207, 31 S. E. 362, 33 S. E. 366, 45 L. B. A. 667, it was held that, despite the Dispensary Law, a person might purchase liquors outside the State and himself transport them from the place of purchase to his home, and there keep them for his own use, because such act was interstate com- merce, and the Wilson Law did not per- mit the State law to attach until the liquors had reached their destination. For other cases on South Carolina Dis- pensary Law, see State r. Aiken, 42 S. C. 222, 20 S. E. 221, 26 L. R. A. 345 ; Mc- Cullough v. Brown, 41 S. C. 220, 19 S. E. 458, 23 L. R. A. 410. For a construction of the Alabama Dispensary Law, see Sheppard i;. Dowling, 127 Ala. 1, 28 So. 791, 85 Am. St. 68. Upon interstate sales of intoxicating liquors and State regula- tion thereof, see a valuable note to 42 L. ed. U. S. 1089. Upon liquor legislation generally, see Foster v. Kansas, 112 U. S., 205, 6 Sup. Ct. Rep. 8, 97 ; Re Caswell, 18 R. I. 835, 29 Atl. 259, 27 L. R. A. 82, 85, and note; State v. Creeden, 78 Iowa, 656, 43 N. W. 673, 7 L. R. A. 296 ; Lemly v. State, 70 Miss. 241, 12 So. 22, 20 L. R. A. 645, and note ; Tragesser v. Gray, 73 Md. 260, 20 Atl. 905, 9 L. R. A. 780, and note ; and Veon v. Creaton, 138 Pa. 48, 20 Atl. 865, 9 L. R. A. 814, and note. Upon what is an original package, see Austin v. Ten- nessee, 179 U. S. 343, 21 Sup. Ct. Rep. 132, in which it was held that a cigarette package three inches long, and an inch and a half wide, containing ten cigarettes, was not an original package where many such were deposited by the shipper in a basket owned by the express company and by that company carried to consignee in the same basket and poured out on con- signee's counter ; whether, if each small package had been addressed to consignee, the holding would have been otherwise, qucere ; see concurring opinion by Mr. Justice White. For a similar holding with regard to cigarette packages, see McGregor v. Cone, 104 Iowa, 465, 73 N. W. 1041, 39 L. R. A. 484. See also State v. Chapman, 1 S. I). 414, 47 N. W. 411, 10 L. R. A. 432; Keith v. State, 91 Ala. 2, 8 So. 353, 10 L. R. A. 430. Upon the Constitutional protection of the " original package," see 65 Cent. L. Jour. 342, and 35 Am. L. Rev. 669. For further cases upon interstate com- merce, see Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. VV. 29, 750, 35 L. R. A. 241; Ohio & M. R. Co. v. Taber, 98 Ky. 603, 32 S. W. 168, 36 S. W. 18, 34 L. R. A. 685; Houston Direct Navigation Co. r. Ins. Co. of N. A., 89 Tex. 1, 32 S. W. 889, 30 L. R. A. 713 ; State v. Wheelock, 95 Iowa, 577, 64 N. W. 620, 30 L. R. A. 429 ; Hopkins v. Lewis, 84 Iowa, 690, 51 N. W. 256, 15 L. R. A. 397 (original package) ; Lang v. Lynch, 38 Fed. Rep. 489, 4 L. R. A. 831.] After a railroad has stored such liquor in its warehouse for several days, it ceases to be a carrier and becomes amenable to the law. State v. Creeden, 78 Iowa, 556, 43 N. W. 673. See also State v. O'Neil, 58 Vt. 140, 2 Atl. 686; [aff. 144 U. S. 323, 12 Sup. Ct. Rep. 693. A State may not prohibit the sale within its borders of oleomargarine manufactured in another State, so long as such substance is recognized by Congress as a legitimate article of commerce. Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. Rep. 767. On oleomargarine in original packages, see Re Goocli, 44 Fed. Rep. 276, 10 L. R. A. 830. Nor is it permitted to indirectly accomplish such prohibition by requiring all oleomargarine sold within its borders to be colored pink or other- wise adulterated. Collins v. New Hamp- shire, 171 U. S. 30, 18 Sup. Ct. Rep. 768. Upon prohibition of sale of oleomargarine, 1 Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. Rep. 6. " The manufacture of intoxi- cating liquors in a State is none the less a business within that State, because the manufacturer intends, at his convenience, to export such liquors to foreign coun- tries or to other States." Lamar, J., p. 24. CH. XVI.] THE POLICE POWER OF THE STATES. 849 These State laws, known as Prohibitory Liquor Laws, the pur- pose of which is to prevent altogether the manufacture and sale of intoxicating drinks as a beverage, so far as legislation can accomplish that object, cannot be held void as in conflict with the fourteenth amendment. 1 And in several cases it has been held that the fact that such laws may tend to prevent or may abso- lutely preclude the fulfilment of contracts previously made is no objection to their validity. 2 Any change in the police laws, or indeed in any other laws, might have a like consequence. The same laws have also been sustained, when the question of conflict with State constitutions, or with general fundamental principles, has been raised. They are looked upon as police regulations established by the legislature for the prevention of intemperance, pauperism, and crime, and for the abatement of nuisances. 3 It has also been held competent to declare the liquor see Com. v. Miller, 131 Pa. 118, 18 Atl. 938, 6 L. R. A. 633, and note. State may prohibit the sale within its borders of adulterated articles designed to defraud the consumer, e. g. oleomargarine colored to imitate butter. Plumley v. Massachu- setts, 155 U. S. 461, 15 Sup. Ct. Rep. 154, aff. 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839; see also State v. Capital Cy. Dairy Co., 62 Ohio, 350, 57 N. E. 62, McCann u. Cora., 198 Pa. 609, 48 Atl. 470, State v. Rogers, 95 Me. 94, 49 Atl. 664. Use of oleomargarine in a soldiers' home which is under the exclusive juris- diction of Congress is not subject to con- trol by the State. Ohio v. Thomas, 173 U. S. 276, 19 Sup. Ct. Rep. 453.] 1 If the State ^o determines, it may forbid the manufacture, sale, and use of liquor as prejudicial to public health, safety, and morals, even though thereby existing property is depreciated in value without compensation. Mugler v. Kan- sas, 123 U. S. 623, 8 Sup. Ct. Rep. 273 ; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. Rep. 6. See also Bartemeyer v. Iowa, 18 Wall. 129; Foster v. Kansas, 112 U. S. 201, 5 Sup. Ct. Rep. 8, 97 ; Prohibitory Am. Cases, 24 Kan. 700; Re Intox. Li- quors, 25 Kan. 751, 37 Am. Rep. 284. Nor is permission for sale by druggists, and no others, class legislation. /(/. See Beer Co. v. Massachusetts, 97 U. S. 25. pn Noel v. State, 187 111. 587, 68 N. E. 616, 52 L. R. A. 287, it is held that a law restricting the sale of patent medicines by others than registered pharmacists was void.] 2 People v. Hawley, 3 Mich. 330 ; Rey- nolds v. Geary, 26 Conn. 179. Contracts cannot hamper or impede the State power of police. Beer Company v. Massachu- setts, 97 U. S. 25. 8 Commonwealth v. Kendall, 12 Cush. 414 ; Commonwealth v. Clapp, 5 Gray, 97 ; Commonwealth v. Howe, 13 Gray, 26 ; Santo v. State, 2 Iowa, 202; Our House v. State, 4 Greene (Iowa), 172 ; Zumlioff v. State, 4 Greene (Iowa), 526 ; State v. Donehey, 8 Iowa, 396 ; State v. Wheeler, 25 Conn. 290; Reynolds v. Geary, 26 Conn. 179 ; Oviatt v. Pond, 29 Conn. 479 ; People v. Hawley, 3 Mich. 330 ; People v. Gallagher, 4 Mich. 244 ; Jones v. Peo- ple, 14 III. 196 ; State v. Prescott, 27 Vt. 194 ; Lincoln v. Smith, 27 Vt. 328 ; Gill v. Parker, 31 Vt. 610. Compare Beebe v. State, 6 Ind. 501 ; Meshmeier u. State, 11 Ind. 484; Wynehamerv. People, 13 N. Y. 378. See State v. Kennedy, 16 R. I. 409, 17 Atl. 51. So of local prohibitory laws. Whitney v. Township Board, 71 Mich. 234, 39 N. W. 40 ; State w. Berlin, 21 S. C. 292 ; Burnside v. Lincoln Co. Ct., 86 Ky. 423, 6 S. W. 276 ; Ex parte Campbell, 74 Cal. 20, 15 Pac. 318. The territories may pass such laws. Terr. v. O'Connor, 5 Dak. 397, 41 N. W. 746 ; Terr. v. Guyot, 9 Mont. 46, 22 Pac. 134. But the mere keeping of liquor for another cannot be made a crime. State v. Oilman, 33 W. Va. 146, 10 S. E. 283. In Reynolds v. Geary, 26 Conn. 179 ; Jones v. Surprise, 64 N. H. 243, 9 Atl. 384 ; Lang v. Lynch, 38 Fed. Rep. 489, the State law forbid- ding suits for the price of liquors sold out 850 CONSTITUTIONAL LIMITATIONS. [CH. XVI. kept for sale a nuisance, and to provide legal process for its con- demnation and destruction, and to seize and condemn the build- ing occupied as a dram-shop on the same ground. 1 And it is only where, in framing such legislation, care has not been taken to observe those principles of protection which surround the per- sons and dwellings of individuals, securing them against unrea- sonable searches and seizures, and giving them a right to trial before condemnation, that the courts have felt at liberty to de- clare that it exceeded the proper province of police regulation. 2 Perhaps there is no instance in which the power of the legislature to make such regulations as may destroy the value of property, without compensation to the owner, appears in a more striking light than in the case of these statutes. The trade in alcoholic drinks being lawful, and the capital employed in it being fully protected by law, the legislature then steps in, and by an enact- ment based on general reasons of public utility, annihilates the traffic, destroys altogether the employment, and reduces to a nominal value the property on hand. Even the keeping of that, for the purposes of sale, becomes a criminal offence ; and, with- out any change whatever in his own conduct or employment, the merchant of yesterday becomes the criminal of to-day, and the very building in which he lives and conducts the business which to that moment was lawful becomes the subject of legal proceed- ings, if the statute shall so declare, and liable to be proceeded against for a forfeiture. 3 A statute which can do this must be of the State to evade the State law, was N. W. 606. A statute providing for the ap- sustained and applied notwithstanding pointment of guardians for drunkards is the contract was valid where made. The competent under the police power, and general rule is, however, that if the con- its operation would npt be an unlawful tract is valid where made, it is valid deprivation of property. Pevin v. Scott, ever}' where. See Sortwell v. Hughes, 1 34 Ind. 67. ^Possession of opium with- Curtis, 244 ; Adams v. Coulliard, 102 out having license therefor may be made Mass. 167 ; Hill v. Spear, 50 N. H. 253 ; a crime. Mon Luck v. Sears, 29* Oreg. 421, Kling v. Fries, 33 Mich. 275; Roethke v. 44 Pac. 693, 32 L. R. A. 738.] Philip Best Brewing Co., 33 Mich. 340; 2 Hibbard v. People, 4 Mich. 125; Webber v. Donnelly, 33 Mich. 469; Fisher v. McGirr, 1 Gray, 1; State v. ^Miller v. Ammon, 145 U. S. 421, 12 O'Neil, 58 Vt. 140, 2 Atl. 586; ante, 431, Sup. Ct. Rep. 884.] note. Compare Meshmeier v. State, 11 1 American Fur Co. v. United States, Ind. 484 ; Wynehamer v. People, 13 N. Y. 2 Pet. 358 ; Our House v. State, 4 Greene 378. (Iowa), 172; Lincoln v. Smith, 27 Vt. 3 See Mugler v. Kansas, 123 U. S. 623, 328; State v. Wheeler, 25 Conn. 290; 8 Sup. Ct. Rep. 273 ; Kaufman v. Dostal, Oviatt v. Pond, 29 Conn. 479; State v. 73 Iowa, 691, 36 N. W. 643 ; Whitney v. Robinson, 33 Maine, 668; License Cases, Township Board, 71 Mich. 234, 39 N. W. 6 How. 504 ; State v. Barrels of Liquor, 40 ; Tanner v. Alliance, 29 Fed. Rep. 196 ; 47 N. H. 369; Commonwealth v. Intoxi- Menken v. Atlanta, 78 Ga. 658, 2 S. E. eating Liquors, 107 Mass. 396 ; Pearson 559. In a number of the States, statutes v. Distill. Co., 72 Iowa, 348, 34 N. W. 1 ; have recently been passed to make the Craig v. Werthmueller, 78 Iowa, 698, 43 owners of premises on which traffic in in- CII. XVI.] THE POLICE POWER OF THE STATES. 851 justified upon the highest reasons of public benefit; but, whether satisfactory or not, the reasons address themselves exclusively to the legislative wisdom. Taxing Forbidden Occupations. Questions have arisen in re- gard to these laws, and other State regulations, arising out of the imposition of burdens on various occupations by Congress, with a view to raising revenue for the national government. These bur-- dens are imposed in the form of what are called license fees ; and it has been claimed that, when the party paid the fee, he was thereby licensed to carry on the business, despite the regulations which the State government might make upon the subject. This view, however, has not been taken by the courts, who have re- garded the congressional legislation imposing a license fee as only a species of taxation, without the payment of whicli the busi- ness could not lawfully be carried on, but which, nevertheless, did not propose to make any business lawful which was not lawful before, or to relieve it from any burdens or restrictions imposed by the regulations of the State. The licenses give no authority, and are mere receipts for taxes. 1 Other Regulations affecting Commerce. Numerous other illus- trations might be given of the power in the States to make regu- lations affecting commerce, which are sustainable as regulations of police. 2 Among these, quarantine regulations and health laws toxicating liquors is carried on respon- 53 Mich. 367, 19 N. W. 38; Frankfort v. sible for all damages occasioned by such Aughe, 114 Ind. 77, 15 N. E. 802. traffic. It is believed to be entirely com- See remarks of Grier, J., in License petent for the legislature to pass such Cases, 5 How. 504, 632 ; Meeker v. Van statutes. Bertholf v. O'Reilly, 74 N. Y. Rennselaer, 15 Wend. 397. A liquor law 509. But whether they can apply in may annul a previous license, and not be cases where leases have previously been invalid on that grpurid. See ante, p. 400, made must be a serious question. note. Under the police power, the deal- 1 License Tax Cases, 5 Wall. 462; Pur- ing in liquors even for lawful purposes vear v. Commonwealth, 5 Wall. 475; Com- may be restricted to persons approved for monwealth v. Holbrook, 10 Allen, 200; moral character. In re Ruth, 32 Iowa, Block v. Jacksonville, 36 111. 301 ; Terr. 250. Compare People v. Haug, 68 Mich. v. O'Connor, 5 Dak. 397, 41 N. W. 746; 649, 37 N. W. 21. They are not contracts. Martin v. State, 2 As to the right to fix rates for rail- 23 Neb. 371, 36 N. W. 554. Nor does their road transportation, see cast-s, pp. b73- payment preclude enforcement of penal- 875, post. rjBut it is not open to a State ties for selling in the Indian country, to compel " through trains " carrying in- United States v. Forty-three Gallons of terstate commerce to stop at every Whiskey, 108 U. S. 491, 2 Sup. Ct. Rep. county-seat through which they pass, 906. A StatC may tax a business not- provided "local trains" furnish ample withstanding the State constitution for- accommodation for the traffic of such bids its being licensed. Youngblood v. places. C. C. C. & St. L. Ry. Co. v. Illi- Sexton, 32 Mich. 406, 20 Am. Rep. 654. nois, 177 U. S. 514, 20 Sup. Ct. Rep. 7'22, As to when license fees are taxes, see rev. 175 111.359, 51 N. E. 842; Illinois ante, p. 283, and note. State taxation Cent. R. Co. v. Illinois, 163 U. S. 142, 16 does not forbid further municipal tax- Sup. Ct. Rep. 1096, rev. 143 111. 434, 33 ation for regulation. Wolf v. Lansing, N. E. 173, 19 L. R. A. 119. See, in this 852 CONSTITUTIONAL LIMITATIONS. [cir. xvi. of every description will readily suggest themselves, and these are or may be sometimes carried to the extent of ordering the connection, State v. Gladson, 57 Minn. 385, 59 N. W. 487, 24 L. R. A. 602 ; aff. 166 U. S. 427, 17 Sup. Ct. Rep. 627. Upon regulations of commerce by State laws, see notes to 39 L. ed. U. S. 311, 38 L. ed. U. S. 1041, 37 L. ed. U. S. 216, 32 L. ed. U. S. 229, 24 C. C. A. 13, and 13 L. R. A. 107. A State may compel a railroad operating within its limits and engaged in interstate commerce to stop at least three trains each way (if so many run) each day at each town of three thousand or more inhabitants on its line long enough to take on and let off passengers. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. Rep. 465. And it may compel every passenger train whose route lies entirely within the State to stop at every county-seat, even though the train carries mail and its road is a land grant road. Gladson v. Minnesota, 166 U. S. 427, 17 Sup. Ct. Rep. 627, aff. 57 Minn. 385, 59 N. W. 487, 24 L. R. A. 602. A State may make a common carrier contracting to carry property between any two points, whether within or without the State, liable for any injury to such property that may arise through its negligence or that of any connecting carrier to whom it may deliver such property in order to complete the performance of the contract. Missouri, K. & T. R. Co. v. McCann & Smizer, 174 U. S 580, 19 Sup. Ct. Rep. 755, aff. 133 Mo. 59, 33 S. W. 71, 35 L. R. A. 110. And when the loss or injury occurs beyond the carrier's own line, he may still be made liable " unless within a reasonable time after demand made, he shall give satis- factory proof to the consignor that the loss or injury did not occur while the thing was in his charge." Richmond & A. R. Co. v. Patterson Tobacco Co.. 169 U. S. 311, 18 Sup. Ct. Rep. 335. Upon State taxes and penalties as affecting commerce, see Bangor v. Smith, 83 Me. 422, 22 All. 379, 13 L. R. A. 688, and note. A State may regulate the extent to which a common carrier may by con- tract relieve himself from his common- law liabilities. Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 18 Sup. Ct. Rep. 289. Upon such contracts, see note to 42 L. ed. U. S. 688, in which the cases are collected. Upon interstate and foreign transportation, see Mo. P. R. Co. v. Sher- wood, 84 Tex. 125, 19 S. W. 455, 17 L. R. A. 643, and note ; and as to whether shipments between two points within the same State can ever be interstate com- merce, see Houston D. Nav. Co. v. Ins. Co. of N. A., 89 Tex. 1, 32 S. W. 889, 30 L. R. A. 713. In the absence of Congres- sional regulation, a S'tate may prohibit the running of all freight-trains (includ- ing interstate) on Sunday. Hennington v. Georgia, 163 U. S.299, 16 Sup.Ct. Rep. 1086, aff. 90 Ga. 396, 17 S. E. 1009. State may prohibit the consolidation of parallel and competing lines. Pearsall v. Grt. N. R. Co., 161 U. S. 646, 16 Sup. Ct. Rep. 705, and Louisville & N. R. Co. v. Ken- tucky, 161 U. S. 677, 16 Sup. Ct. Rep. 714, aff. 97 Ky. 675, 31 S. W. 476. May by penalty in the absence of Congres- sional regulation enforce the delivery of telegrams to addresses within its bor- ders. W. U. Tel. Co. >. James, 162 U. S. 650, 16 Sup. Ct. Rep. 934, aff. 90 Ga. 254, 17 S. E. 83; but not beyond its borders. W. U. Tel. Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. Rep. 1126, 1 Inters. Com. R. 306. State may make it an offence to have in one's possession game intended to be shipped beyond the borders of the State, such game having been killed within the State, even though within the open season. Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. Rep. 600, aff 61 Ct. 144, 22 Atl. 1012, 13 L. R. A. 804, 3 Inters. Com. R. 732. Upon relation between State police power and Federal commerce power, see note to 38 L. ed. U. S. 1041. State may regulate the fish- eries within a marine league of its shores. Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. Rep. 559. In the absence of Congressional regulation, a State may make it an offence to solicit a seaman to desert from any vessel within its juris- diction. Re Young, 36 Greg. 247, 59 Pac. 707, 48 L. R. A. 153 ; Handel v. Chaplin, 111 Ga. 800, 36 S. E. 979, 61 L. R. A. 720. State may absolutely prohibit sale within its borders of specified kinds of game and fish during specified seasons of year. People v. O'Neil, 110 Mich. 324, 68 N. W. 227, 33 L. R. A. 696. May make it a criminal offence to send money outside CH. XVI.] THE POLICE POWER OF THE STATES. 853 destruction of private property when infected with disease or otherwise dangerous. 1 These regulations have generally passed the State to be wagered upon a horse- race. Ex parte Lacy, 93 Va. 159, 24 S. E. 930, 31 L. R. A. 822. May make inter- state telegraph company responsible for negligence within the State in transmis- sion of interstate message. W. U. Tel. Co. v. Howell, 95 Ga. 194, 22 S. E. 286, 30 L. R. A. 158. Where corporation de- rives its franchise from the State it is subject to State law in regard to exempt- ing itself by contract from liabilities of common carrier, even though the contract relates to interstate commerce. St. Jos. & G. Id. R. Co. v. Palmer, 38 Neb. 463, 56 N. W. 957, 22 L. R. A. 335. State may regulate pressure of natural gas trans- ported through pipes to other States. Jamieson v. Indiana N. Gas & Oil Co., 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652. But cannot forbid its exportation. State v. Indiana & O. Oil G. & M. Co., 120 Ind. 575, 22 N. E. 778, 6 L. R. A. 579, and note. For other cases upon State laws and in- terstate commerce, see Burrows v. Delta Transportation Co., 106 Mich. 682, 64 N. W. 501, 29 L. R. A. 468 ; State v. W. U. Tel. Co., 113 N. C. 213, 18 S. E. 389, 22 L. R. A. 570 ; State v. Indiana & I. S. R. Co., 133 Ind. 69, 32 N. E. 817, 18 L. R. A. 502; Re Sanders, 52 Fed. Rep. 802, 18 L. R. A. 549; Mo. Pac. R. Co. v. Sher- wood, 84 Tex. 125, 19 S. W. 455, 17 L. R. A. 643, and note ; Dwyer v. Gulf, C. & S F. R. Co., 75 Tex. 572, 12 S. W. 1001, 7 L. R. A. 478, and cases cited note 1, post, 864. Agent of non-resident organ company who travels with an organ, sell- ing it when he can or taking orders for others and delivering them when re- ceived, is engaged in interstate commerce and not liable to State peddler's tax. French v. State, Tex. Crim. App. , 58 S. W. 1016, 52 L. R. A. 160. Goods manufactured in another State to fill orders taken by travelling salesman, and shipped into the State, consigned to the maKer, and delivered by the agent to the person ordering, are the subject of inter- state commerce, and the agent cannot be subjected to a State license tax in the State where delivered. Wyoming v. Wil- lingharn, 9 Wyo. 290, 62 Pac. 797, 52 L. R. A. 198. See also Adkins v. Richmond, 98 Va. 91, 34 S. E. 967, 81 Am. St. 705, 47 L. R. A. 583.] 1 It is usual, either by general law or by municipal charters, to confer very extensive powers upon local boards of health, under which, when acting in good faith, they may justify themselves in tak- ing possession of, purifying, or even de- stroying the buildings or other property of the citizen, when the public health or comfort demands such strong measures. See Harrison v. Baltimore, 1 Gill, 204; Van Wormer v. Albany, 15 Wend. 262; Coe v. Shultz, 47 Barb. 64 ; Raymond v. Fish, 61 Conn. 80. QHurst v. Warner, 102 Mich. 238, 60 N. W. 440, 26 L. K. A. 484, and see also note in L. R. A. upon quarantine regulations by health author- ities. See also Rasmussen v. Idaho, 181 U. S. 198, 21 Sup. Ct. Rep. 694, aff. Idaho, , 59 Pac. 933, 62 L. R. A. 78. State may regulate the heating apparatus used in passenger cars, and may exempt from such regulations railroad lines less than fifty mile* long. N. Y., N. H. & H. R. Co. v. New York, 165 U. S. 628, 17 Sup. Ct. Rep. 418. But a State cannot compel a railroad company to furnish double-decked cars for sheep shipped in. interstate commerce, nor can it regu- late the transportation charges on such shipments. Stanley v. Wabash, St. L. & P. R. Co., 100 Mo. 435, 13 S. W. 709, 8 L. R. A. 649. A statute of Louisiana empowered the State Board of Health to exclude healthy persons from entering localities where disease was prevalent, whether com- ing from within or without the State. The question was raised by the Board re- fusing emigrants from France a landing. The authority was upheld. Compagnie Fran9aise v. Louisiana St. Bd. of Health, 186 U. S. 380, 22 Sup. Ct. Rep. 81 1. See 34 Am. L. Rev. 722.] Thej' may forbid offensive trades be- ing carried on in populous districts. Ex parte Shrader, 33 Cal. 279; Metropolitan Board v. Heister, 37 N. Y. 661; Live Stock, &c. Association v. Crescent City, &c. Co., 16 Wall. 36 ; Wynehamer v. Peo- ple, 13 N. Y. 378 ; Coe v. Shultz, 47 Barb. 64 ; Ashbrook v. Commonwealth, 1 Bush, 139; Taunton v. Taylor, 116 Mass. 254; Fertilizing Co. v. Hyde Park, 97 U. S. 659 ; Dillon, Mun. Corp. 95 ; Potter's Dwarris on Stat. 458. See State v. Board of Health, 16 Mo. App. 8. The disinfec- 854 CONSTITUTIONAL LIMITATIONS. [CM. xvi. unchallenged. The right to pass inspection laws, and to levy duties so far as may be necessary to render them effectual, is also undoubted, and is expressly recognized by the Constitution. 1 tion of all imported rags at the expense of the shipper may be required. Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N. E. 929. QState may prohibit the bringing in of cattle affected with contagious disease (Texas fever), and may make shipper and carrier liable for all loss arising from importation of such cattle. Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 18 Sup. Ct. Rep. 488, 878, aff. 56 Kan. 694, 44 Pac. 632. See, upon Texas cattle acts, Grimes v. Eddy, 126 Mo. 168, 28 S. W. 756, 26 L. R. A. 638, and note. See also Idaho v. Rasmussen, Idaho, , 59 Pac. 933, 52 L. R. A. 78, aff. 181 U. S. 198, 21 Sup. Ct. Rep. 594, and Smith v. St. Louis & S. W. Ry. Co., 181 U. S. 248, 21 Sup. Ct. Rep. 603, aff. 20 Tex. Civ. App. 451, 49 S. W. 627. This last case is authority for the general doctrine that reasonable quarantine regu- lations of the State do not conflict with the power of the federal government to regulate commerce.] That the business is lawful in itself, and proper to be carried on somewhere, is no objection to the regulation. Watertown r. Mayo, 109 Mass. 315 ; Beer Co. v. Massachusetts, 97 U. S. 25. If they forbid the keeping of swine in certain parts of a city, their regulations will be presumed reasonable and needful. Commonwealth v. Patch, 97 Mass. 221, citing with approval Pierce v. Bartrum, Cowp. 269. And though they cannot be vested with authority to decide finally upon one's right to property when they proceed to interfere with it as constitut- ing a danger to health, yet they are vested with quasi judicial power in decid- ing upon what constitutes a nuisance, and all presumptions favor their actions. See Van Wormer v. Albany, 15 Wend. 262; Kennedy v. Phelps, 10 La. Ann. 227; Metropolitan Board v. Heister, 37 N. Y. 661 ; Raymond v. Fish, 51 Conn. 80. And they may unquestionably be vested with very large power to establish pest- houses, and make very stringent regula- tions to prevent the spread of contagious diseases. As to the power of the public authorities to establish a public slaughter- house, or to require all slaughtering of beasts to be done at one establishment, see Milwaukee v. Gross, 21 Wis 241 ; Live Stock, &c. Association v. Crescent City, &c. Co., 16 Wall. 36. Compare, as to right to establish monopolies, Gale r. Kalamazoo, 23 Mich. 344. A Stare cannot require all sheep to be dipped before being brought within its borders, without regard to whether they are dis- eased or not. State v. Duckworth, Idaho, , 51 Pac. 456, 39 L. R. A. 365.] The license of a board of health is not a defence to an indictment for a nuisance. Garrett v. State, 49 N. J. L. 94, 7 All. 29. A regulation forbidding the growing of rice within a city, on the ground of in- jurious effect upon health, was held valid in Green v Savannah, 6 Ga. 1. (^Blow- ers may be required to be furnished upon dry emery wheels. People v. Smith, 108 Mich. 527, 66 N. W. 382, 32 L. R. A. 853, and upon power to protect health of employees, see note hereto in L. R. A. Orders of boards of health must .be reasonable, and an order prohibiting all persons until further order from getting off any train or boat within the State is void, though made as a quarantine regu- lation against yellow fever prevalent in some places, because applicable as well to persons from non-infected as from in- fected districts. Wilson v. Alabama G. S. Ry. Co., 77 Miss. 714, 28 So. 567, 52 L. R. A. 357. See on compulsory vacci- nation, 4 Law Notes, 224, 54 Cent. L. Jour. 361.] 1 Art. 1, 10, clause 2. See Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. Rep. 44 ; Hospes v. O'Brien, 24 Fed. Rep. 145. A prohibition of the sale of meat unless inspected by State officers twenty-four hours before the slaughter of the animal is void as excluding dressed beef brought from other States. Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. Rep. 862 ; Swift v. Sutphin, 39 Fed. Rep. 630; In re Christian, Jd. 636 ; Ex parte Kieffer, 40 Fed. Rep. 399. A State may prohibit the sale within its borders of fertilizers and fertilizing materials that have not been officially inspected, and may collect a reasonable charge for inspection by its official inspector. A charge of 25 cents :H. XVI.] THE POLICE POWER OF THE STATES. 855 But certain powers which still more directly affect commerce may sometimes be exercised where the purpose is not to interfere with congressional legislation, but merely to regulate the times and manner of transacting business with a view to facilitate trade, ! secure order, and prevent confusion. An act of the State of New York declared that the harbor- masters appointed under the State laws should have authority to regulate and station all ships and vessels in the stream of the East and North rivers, within the limits of the city of New York, and the wharves thereof, and to remove from time to time such vessels as were not employed in receiving and discharging their cargoes to make room for such others as required to be more immediately accommodated, for the purpose of receiving and dis- charging theirs ; and that the harbor-masters or either of them should have authority to determine how far and in what instances it was the duty of the masters and others, having charge of ships or vessels, to accommodate each other in their respective situa- tions ; and it imposed a penalty for refusing or neglecting to obey the directions of the harbor-masters or either of them. In a suit brought against the master of a steam vessel, who had refused to move his vessel a certain distance as directed by one of the harbor-masters, in order to accommodate a new arrival, it was insisted on the defence that the act was an unconstitutional invasion of the power of Congress over commerce, but it was sustained as being merely a regulation prescribing the manner of exercising individual rights over property employed in commerce. 1 a ton for such inspection is not unreason- regulations, in such cases, are sustain- able. Patapsco Guano Co. v. Board of able : " It seems to me the power exer- Agr. of N. C., 171 U. S. 345, 18 Sup. Ct. cised in this case is essentially necessary Rep. 862. Upon State inspection laws, for the purpose of protecting the rights of see note to 11 L. R. A. 179. But power all concerned. It is not, in the legitimate of inspection cannot be made a pretext sense of the term, a violation of any right, for discrimination against products of but the exercise of a power indispensably other States. Voightu. Wright, 141 U. S. necessary, where an extensive commerce 62, 11 Sup. Ct. Rep. 855; Brimmer v. is carried on. If the harbor is crowded Rebman, 138 U. S. 78, 11 Sup. Ct. Rep. with vessels arriving daily from foreign 213. Nor can it embarrass interstate parts, the power is incident to such a commerce by its police regulations and state of things. Disorder and confusion inspection laws, even though such are would be the consequence, if there was expressly applicable to its domestic com- no control. . . . The right assumed un- merce also. Minnesota v. Barber, 136 der the law would not be upheld, if ex- U. S. 313, 10 Sup. Ct. Rep. 862. A erted beyond what may be considered State cannot require convict-made goods a necessary police regulation. The line brought from other States to be so between what would be a clear invasion marked. People v. Hawkins, 157 N. Y. of right on the one hand, and regulations 1, 61 N. E. 257, 42 L. R. A. 490.] not lessening the value of the right, and 1 Vanderbilt v. Adams, 7 Cow. 349, calculated for the benefit of all, must 351. Woodworth, J., in this case, states be distinctly marked. . . . Police regula- very clearly the principle on which police tions are legal and binding, because for or THE r> IT" w ! 856 CONSTITUTIONAL LIMITATIONS. [CH. XVI. The line of distinction between that which constitutes an inter- ference with commerce, and that which is a mere police regula- tion, is sometimes exceedingly dim and shadowy, and it is not to be wondered at that learned jurists differ when endeavoring to classify the cases which arise. It is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute directions, if it shall be deemed advisable ; 1 and that to whatever extent ground shall be covered by those directions, the exercise of State power is excluded. Congress may establish police regulations, as well as the States ; confining their opera- tion to the subject over which it is given control by the Constitu- tion. 2 But as the general police power can better be exercised the general benefit, and do not proceed to the length of impairing any right, in the proper sense of that term. The sover- eign power in a community, therefore, may and ought to prescribe the manner of exercising individual rights over prop- erty. It is for the better protection and enjoyment of that absolute dominion which the individual claims. The power rests on the implied right and duty of the supreme power to protect all by statutory regulations ; so that, on the whole, the benefit of all is promoted. Every public regulation in a city may, and does in some sense, limit and restrict the absolute right that existed previously. But this is not considered as an injury. So far from it, the individual, as well as others, is supposed to be benefited. It may, then, be said that such a. power is inci- dent to every well-regulated society, and without which it could not well exist." See Cooley v. Board of Wardens, 12 How. 299 ; Owners of the James Gray v. Owners of the John Frazer, 21 How. 184 ; Ben- edict v. Vanderbilt, 1 Robertson, 194 ; Steamship Co. v. Jolifle,2 Wall. 450; Wil- son v. McNamee, 102 U. S. 572; Port Wardens v. The Ward, 14 La. Ann. 289 ; Oilman v. Philadelphia, 3 Wall. 713, 731 ; Cisco v. Roberts, 36 N. Y. 292. QState may require all coal-boats and barges to be gauged, and may appoint official gaugers and prescribe their fees. Pitts- burg & S. Coal Co. v. Louisiana, 156 U. S. 590, 15 Sup. Ct. Rep. 460.] 1 Gloucester Ferry Co. v. Pennsyl- vania, 114 U. S. 215, 5 Sup. Ct. Rep. 826. 2 See, for the distinction between the general regulation of commerce, which is under the exclusive control of Congress, and the local regulations which are mere aids to commerce, and are generally left to the States, Mobile v. Kimball, 102 U. S. 691, per Field, J., and cases, pp. 688- 691, ante. And see Harmon v. Chicago, 147 U. S. 396, 13 Sup. Ct. Rep. o06, and note thereto in 37 L. ed. U. S. 216. State may require intersecting railroads to es- tablish facilities for interchange of traffic at junction points, and to establish joint rates via such points, even though inter- state commerce be thereby affected. Wisconsin M. & P. R. Co. v. Jacobson, 179 U. S. 287, 21 Sup. Ct. Rep. 115, aff. 71 Minn. 519, 74 N. W. 893, 40 L. R. A. 389. A statute of the State of Kentucky with a long and short haul provision was held to apply to commerce within the State and not to contravene the com- merce clause of the Federal Constitution, though the enforcement of the statute might in some measure affect commerce generally. But this effect is incidental, not direct. " Interference with the com- mercial power of the general government to be unlawful must be direct and not merely the incidental effect of the en- forcement of the police power of the State." Louisville & N. Ry. Co. v. Ken- tucky, 183 U. S. 503, 22 Sup. Ct. Rep. 95, and cases cited in the opinion. The statute construed in Louisville & N. Ry. Co. v. Kentucky, just cited, was before the Federal Supreme Court again in Lou- isville & N. Ry. Co. v. Eubank, 184 U. S. 27, 22 Sup. Ct. Rep. 277, in which it is held that as applied to inter-state com- merce the statute is invalid.]] A State CH. XVI.] THE POLICE POWER OF THE STATES. 857 under the supervision of the local authority, and mischiefs are not likely to spring therefrom so long as the power to arrest collision resides in the national courts, the regulations which are made by Congress do not often exclude the establishment of others by the State covering very many particulars. Moreover, the regulations of commerce are usually, and in some cases must be, general and uniform for the whole country ; while in some localities, State and local policy will demand peculiar regulations with reference to special and peculiar circumstances. The State of Maryland passed an act requiring all importers of foreign goods, by the bale or package, &c., to take out a license, for which they should pay fifty dollars, and, in case of neglect or refusal to take out such license, subjected them to certain forfeit- ures and penalties. License laws are of two kinds : those which require the payment of a license fee by way of raising a revenue, and are therefore the exercise of the power of taxation ; and those which are mere police regulations, and require the payment only of such license fee as will cover the expense of the license and of enforcing the regulation. 1 The Maryland act seems to fall prop- erly within the former of these classes, and it was held void as in conflict with that provision of the Constitution which prohibits a State from laying any impost, &c., and also with the clause which declares that Congress shall have the power to regulate com- merce. The reasoning of the court was this : Sale is the object of all importation of goods, and the power to allow importation must therefore imply the power to authorize the sale of the thing imported ; that consequently a penalty inflicted for selling an ar- ticle in the character of importer was in opposition to the act of Congress, which authorized importation ; that a power to tax an article in the hands of the importer the instant it was landed was the same in effect as a power to tax it whilst entering the port ; that consequently the law of Maryland was obnoxious to the law may require all locomotive engi- Baldwin, 85 Ala. 619, 6 So. 311. Sunday neers to be examined and licensed, even trains may be forbidden by a State, those engaged in inter-state transporta- State v. Railroad Co, 24 W. Va. 783. tion. Such a law imposes no burden See also W. U. Tel. Co. v. Mayor, 38 upon inter-state commerce, and is valid Fed. Rep. 652. A bridge spanning the in the absence of Congressional regula- Ohio river at Cincinnati and Covington tion. Smith v. Alabama, 124 U. S. 465, is an instrument of inter-state commerce, 8 Sup. Ct. Rep. 564. The same principle and neither Ohio nor Kentucky lias power applies to an act requiring an exam- to fix the tolls to be demanded for passage ination of railroad employees for color over it. Covington & C. Bridge Co. v. blindness, to be paid for by the railroad Kentucky, 154 U. S. 204, 14 Sup. Ct. company. Nashville, C. & St. L. Ry. Co. Rep. 1087. v. Alabama, 128 U. S. 96, 9 Sup. Ct. l Ash v. People, 11 Mich. 347. See Rep. 28. Contra, as to payment by the ante, p. 283. Also Dillon, Mun. Corp. company. Louisville & N. R. R. Co. v. 291-2U4, and notes. 858 CONSTITUTIONAL LIMITATIONS. [CH. XVI. charge of unconstitutional ty, on the ground of its violating the two provisions referred to. 1 And a State law which required the master of every vessel engaged in foreign commerce to pay a cer- tain sum to a State officer, on account of every passenger brought from a foreign country into the State, or before landing any alien passenger, was held void for similar reasons. 2 Nor can a State forbid the conduction from it of natural gas in pipes. 3 On the other hand, a law of the State of New York was sus- tained which required, under a penalty, that the master of every vessel arriving from a foreign port should report to the mayor or recorder of the city of New York an account of his passengers ; the object being to prevent New York from being burdened by an influx of persons brought thither in ships from foreign countries and the other States, and to that end to require a report of the names, places of birth, . Detroit, 8 Mich. 274, 309, per Christiancy, J. ; Matter of Dor- ranee St., 4 R. I. 230 ; Deblois v. Barker, 4 R. I. 445 ; Hart v. Brooklyn, 36 Barb. 226 ; Sands v. Richmond, 31 Gratt. 571, 31 Am. Rep. 742 ; Palmer v. Way, 6 Col. 106. And see Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451 ; Smith v. Kingston, 120 Pa. St. 357, 14 Atl. 170. In Minne- sota this right is exercised under the tax- ing power. Hennepin Co. v, Bartleson, 37 Minn. 343, 34 N. W. 222. In Arkan- sas the duty may be enforced by a fine. James v. Pine Bluff, 49 Ark. 199, 4 S. W. 760. Compare Port Huron v. Jenkinson, 77 Mich. 414, 43 N. W. 923. In Penn- sylvania it has been held competent to require the owners of city lots, in front of which sewers are constructed, to pay the expense thereof in proportion to the street front. Philadelphia v. Tryon, 35 CH. XVI.] THE POLICE POWER OF THE STATES. 861 taxation, on the ground of the peculiar interest which those upon whom the duty is imposed have in its performance, and their pecu- liar power and ability to perform it with the promptness which the good of the community requires. 1 Navigable Waters. Navigable waters are also a species of public highway, and as such come under the control of the States. The term " navigable," at the common law, was only applied to those waters where the tide ebbed and flowed, but all streams which were of sufficient capacity for useful navigation, though not called navigable, were public, and subject to the same general rights which the public exercised in highways by land. 2 In this country there has been a very general disposition to consider all streams public which are useful as channels for commerce wherever they are found of sufficient capacity to float to market the products of the mines, of the forests, or of the tillage of the country through which they flow. 3 And if a stream is of sufficient capacity for the floating of rafts and logs in the condition in which it generally ap- pears by nature, it will be regarded as public, notwithstanding there may be times when it becomes too dry and shallow for the purpose. " The capacity of a stream, which generally appears by the nature, amount, importance, and necessity of the business Pa. St. 401 ; Stroud v. Philadelphia, 61 Pa. St. 255. And see Boston v. Shaw, 1 Met. 130; Hildreth v. Lowell, 11 Gray, 345; Cone v. Hartford, 28 Conn. 363; States. Jersey City, 5 Dutch. 441. [And a street-railway company may be re- quired to pave the street for a reasonable width along its tracks, even though the power to make such requirement was not reserved when the company was author- ized to occupy the streets with its tracks. Sioux City St. R. Co. v. Sioux City, 138 U. S. 98, 11 Sup. Ct. Rep. 226; Storrie v. Houston City St. R. Co., 92 Tex. 129, 46 S. W. 796, 44 L. R. A. 716. Upon liability of street-railways for paving as- sessments, see note to 46 L. R. A. 193.] 1 See especially the case of Godard, Petitioner, 16 Pick. 504, for a clear and strong statement of the grounds on which such legislation can be supported. Also Dillon, Mun. Corp. 637; Cooley on Taxation, 398. In Illinois it seems not to be competent to compel the building of sidewalks or the keeping of them free of snow by the owners of abutting lots under the police power. Ottawa v. Spen- cer, 40 111. 211 ; Gridley v. Bloomington, 88 111. 554, 30 Am. Rep. 566. [Likewise in New Hampshire. State v. Jackman, 69 N. H. 318, 41 All. 347, 42 L. R. A, 438.] 2 Lorman v. Benson, 8 Mich. 18 ; Mor- gan v. King, 18 Barb. 277. 8 Brown v. Cliadbourne, 31 Me. 9; Knnx i-'. Clialoner, 42 Me. 150; Lancey v. Clifford, 54 Me. 487 ; Gerrish v. Brown, 51 Me. 256 ; Scott v. Willson, 3 N. H. 321 ; Shaw r. Crawford, 10 Johns. 236 ; Mun- son v. Hungerford, 6 Barb. 265; Browne v. Scofield, 8 Barb. 239 ; Morgan v. King, 18 Barb. 284, 30 Barb. 9, and 35 N. Y. 454; Cates r. Wadlington, 1 McCord, 580; Commonwealth v. Cliapin, 5 Pick. 199 ; Moore v. Sanborne, 2 Mich. 519; Lorman v. Benson, 8 Mich. 18 ; Depew v. Board of Commissioners, &c., 5 Ind. 8 ; Board of Commissioners v. Pidge, 5 Ind. 13 ; Stuart r. Clark, 2 Swan, 9; Elder v. Barnes, 6 Humph. 3">8; Dalrymple v. Mead, 1 Grant's Cases, 197 ; Commissioners of Homochitto River v. Withers, 29 Miss. 21 ; Rhodes v. Otis, 33 Ala. 578 ; Walker v. Allen, 72 Ala. 456; Little Rock, M. &c. Ry. Co. v. Brooks, 39 Ark. 403 ; Mc- Manus v. Carmichael, 3 Iowa, 1 ; Weise v. Smith, 3 Oreg. 445, 8 Am. Rep. 621. 862 CONSTITUTIONAL LIMITATIONS. [CH. XVI. done upon it, must be the criterion. A brook, although it might carry down saw-logs for a few days, during a freshet, is not there- fore a public highway. But a stream upon which and its tribu- taries saw-logs to an unlimited amount can be floated every spring, and for the period of from four to eight weeks, and for the distance of one hundred and fifty miles, and upon which unquestionably many thousands will be annually transported for many years to come, if it be legal so to do, has the character of a public stream for that purpose. So far the purpose is useful for trade and com- merce, and to the interests of the community. The floating of logs is not mentioned by Lord Hale [in De Jure Maris], and prob- ably no river in Great Britain was, in his day, or ever will be, put to that use. But here it is common, necessary, and profitable, especially while the country is new ; and if it be considered a law- ful mode of using the river, it is easy to adapt well-settled prin- ciples of law to the case. And they are not the less applicable because this particular business may not always continue ; though if it can of necessity last but a short time, and the river can be used for no other purpose, that circumstance would have weight in the consideration of the question. " 1 But if the stream was not thus useful in its natural condition, but has been rendered susceptible of use by the labors of the owner of the soil, the right of passage will be in the nature of a private way, and the public do not acquire a right to the benefit of the owner's labor, unless he sees fit to dedicate it to their use. 2 All navigable waters are for the use of all the citizens ; and there cannot lawfully be any exclusive private appropriation of any portion of them. 3 The question what is a navigable stream 1 Morgan v. King, 18 Barb. 288 ; Moore to the requirements of a State statute v. Sanborne, 2 Mich. 519 ; Brown v. Chad- authorizing log booms, and is thus exempt bourne, 31 Me. 9; Treat v. Lord, 42 Me. from the general prohibition of obstruc- 652; Weise v. Smith, 3 Oreg. 445, 8 Am. tions "not affirmatively authorized by Rep. 621 ; Bucki v. Cone, 25 Fla. 1, 6 So. law," as contained in the river and harbor 160; Gaston v. Mace, 33 W. Va. 14, 10 act of 1890. is a Federal question. United S. E. 60. Compare Hubbard v. Bell, 54 States >. Bellingham Bay Boom Co., 176 HI. 110; Haines v. Hall, 17 Oreg. 165, 20 U. S. 211, 20 Sup. Ct. Rep. 343. Upon Pac. 831. QThat a State may create obstruction of navigable streams by log boom companies, authorize them to im- booms, see note attached to this case in prove waterways and to take tolls for 44 L. ed. U. S. 437.] floating logs through them in booms, 2 Wads worth's Adm'rv. Smith, 11 Me. even though such regulations indirectly 278 ; Ward v. Warner, 8 Mich. 508. affect inter-state commerce (there being 8 Commonwealth v. Charlestown, 1 no Congressional regulations hereon), and Pick. 180; Kean v. Stetson, 5 Pick. 492 ; compel such companies to submit to offi- Arnold v. Mundy, 6 N. J. 1 ; Bird v. Smith, cial inspection of their booms and to pay 8 Watts, 434. One cannot acquire a pre- for such inspection, see Lindsay & P. Co. scriptive right to impede floatage. Col- v. Mullen, 176 U. S. 126, 20 Sup. Ct. Rep. lins v. Howard, 65 N. H. 190, 18 Atl. 794. 325. Whether a log boom corresponds They are equally for the use of the pub- CH. XVI.] THE POLICE POWER OF THE STATES. 863 would seem to be a mixed question of law and fact; 1 and though it is said that the legislature of the State may determine whether a stream shall be considered a public highway or not, 2 yet if in fact it is not one, the legislature cannot make it so by simple declara- tion, since, if it is private property, the legislature cannot appro- priate it to a public use without providing for compensation. 3 The general right to control and regulate the public use of navigable waters is unquestionably in the State; but there are certain restrictions upon this right growing out of the power of Congress over commerce. Congress is empowered to regulate commerce with foreign nations and among the several States ; and wherever a river forms a highway upon which commerce is conducted with foreign nations or between States, it must fall under the control of Congress, under this power over commerce. (a) The circumstance, however, that a stream is navigable, and capable of being used for foreign or inter-state commerce, does not exclude regulation by the State, if in fact Congress has not exercised its power in regard to it ; 4 or having exercised it, the State law does lie in the winter when covered with ice; 2 Glover v. Powell, 10 N. J. Eq 211 ; and one who cuts a hole in the ice in an American River Water Co. v. Amsden, accustomed way, by means of which one 6 Cal. 443; Baker v. Lewis, 83 Pa. St. passing upon the ice is injured, has been 801. held liable to an action for the injury. 8 Morgan v. King, 18 Barb. 284, 35 French v. Camp, 18 Me. 433. But this N. Y. 454. rule is now modified, at least as to the * Willson v. Black Bird Creek Marsh Penobscot at Bangor, upon the ground Co., 2 Pet. 245. In this case it was held that the right of ice harvesting is at such that a State law permitting a creek navi- a place superior to that of travel. Wood- gable from the sea to be dammed so as to man v. Pitman, 79 Me. 456, 10 Atl. 321. exclude vessels altogether, was not op- An obstruction to a navigable stream is posed to the Constitution of the United a nuisance which any one having occa- States, there being no legislation by Con- sion to use it may abate. Inhabitants of gross with which it would come in con- Arundel v. McCulloch, 10 Mass. 70 ; State flict. And see Wheeling Bridge Case, 13 v. Moffett, 1 Greene (Iowa), 247; Selman How. 518, and 18 How. 421. By the or- v. Wolfe, 27 Tex. 68; Larson v. Furlong, dinance of 1787 and the enabling acts 63 Wis. 323, 23 N. W. 584. passed at the admission of several States, 1 See Treat v. Lord, 42 Me. 552 ; Weise it was provided that navigable waters v. Smith, 3 Oreg. 445, 8 Am. Rep. 621; within them should be "common high- Olive v. State, 86 Ala. 88, 6 So. 653. ways and forever free." This has been (a) [^Permission granted by Congress to use waters for irrigation of arid lands and in aid of mining industry, does not include right to use waters above point of navi- gability to such an extent as seriously to interfere with navigability below that point. United States v. Rio Grande Dam & I. Co., 174 U. S. 690, 19 Sup. Ct. Rep. 770, rev. 9 N. M. 292, 51 Pac. 674. But subject to such qualification, the rights of riparian owners are determined by the State law. St. Anthony Falls Water Power Co. v. Bd. of Water Comm'rs, 168 U. S. 349, 18 Sup. Ct. Rep" 157. Where the waters are capable of navigation only between points within the State, the State control is com- plete. Com. v. King, 150 Mass. 221, 22 N. E. 905, 5 L. R. A. 536. State may compel construction of fishways in dams. State v. Meek, 112 Iowa, 338, 84 N. W. 3, 51 L. R. A. 414.] 864 CONSTITUTIONAL LIMITATIONS. [cir. xvi. not come in conflict with the congressional regulations, or inter- fere with the rights which are permitted by them. The decisions of the federal judiciary in regard to navigable waters seem to have settled the following points : 1. That no State can grant an exclusive monopoly for the navi- gation of any portion of the waters within its limits upon which commerce is carried on under coasting licenses granted under the authority of Congress, 1 since such a grant would come directly in conflict with the power which Congress has exercised. But a State law granting to an individual an exclusive right to navigate the upper waters of a river, lying wholly within the limits of the State, separated from tide water by falls impassable for purposes of navigation, and not forming a part of any continuous track of commerce between two or more States, or with a foreign country, does not come within the reason of this decision, and cannot be declared void as opposed to the Constitution of the United States. 2 repeatedly held to refer not to physical obstructions but to the imposition of du- ties for the right to navigate them, that is, to political regulations hampering the freedom of commerce. Cardwell v. Ainer. Bridge Co., 113 U. S. 205, 5 Sup. Ct. Rep. 423 ; Hamilton v. Vicksburg, &c. R. R. Co., 119 U. S. 280, 7 Sup. Ct. Rep. 206; Huse v. Glover, 119 U. S. 543, 7 Sup. Ct. Rep. 313 ; Sands v. Manistee R. Imp. Co., 123 U. S. 288, 8 Sup. Ct. Rep. 113; Willamette Iron B. Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. Rep. 811. In the last case, Bradley, J., says : " The clause in question cannot be regarded as establish- ing the police power of the United States over the rivers of Oregon, or as giving to the federal courts the right to hear and determine, according to federal law, every complaint that may be made of an impediment in, or an encroachment upon, the navigation of those rivers. We do not doubt that Congress, if it saw fit, could thus assume the care of said streams, in the interest of foreign and inter-state commerce; we only say that, in our opinion, it has not done so by the clause in question. And although, until Congress acts, the States have the plen- ary power supposed, yet when Congress chooses to act, it is not concluded by any- thing that the States have done from as- suming 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 regulations as it may impose." [[States may improve the navigability of waters accessible to inter-state commerce in the absence of repugnant Congres- sional legislation. Stockton v. Powell, 29 Fla. 1, 10 So. 688, 16 L. R. A. 42.] 1 Gibbons v. Ogden, 9 Wheat. 1. The case was the well-known historical one, involving the validity of the grant by the State of New York to Robert Fulton and his associates of the exclusive right to navigate the waters of that State with vessels propelled by steam. This subject is further considered in Gilman v. Phila- delphia, 3 Wall. 713; and in The Daniel Ball, 10 Wall. 657, in which the meaning of the term "navigable waters of the United States " is defined. And see Craig v. Kline, 65 Pa. St. 399, 3 Am. Rep. 636. 2 Veazie v. Moor, 14 How. 568. The exclusive right granted in this case was to the navigation of the Penobscot River above Old Town, which was to continue for twenty years, in consideration of im- provements in the navigation to be made by the grantees. Below Old Town there were a fall and several dams on the river, rendering navigation from the sea impos- sible. And see McReynolds v. Small- house, 8 Bush, 447. It is no infraction of the public right for a city to permit individuals to put up sheds upon its piers, thereby excluding the general public, in CH. XVI.] THE POLICE POWER OF THE STATES. 865 2. The States have the same power to improve navigable waters which they possess over other highways; 1 and where money has been expended in making such improvement, it is competent for the State to impose tolls on the commerce which passes through and has the benefit of the improvement, even where the stream is one over which the regulations of commerce extend. 2 3. The States may authorize the construction of bridges over navigable waters, for railroads as well as for every other species of highway, notwithstanding they may to some extent interfere with the right of navigation. 3 If the stream is not one which is subject to the control of Congress, the State law permitting the erection cannot be questioned on any ground of public inconven- ience. The legislature must always have power to determine what public ways are needed, and to what extent the accommoda- tion of travel over one way must yield to the greater necessity for another. But if the stream is one over which the regulations of Congress extend, the question is somewhat complicated, and it becomes necessary to consider whether such bridge will inter- fere with the regulations or not. But the bridge is not neces- sarily unlawful, because of constituting, to some degree, an obstruction to commerce, if it is properly built, and upon a proper plan, and if the general traffic of the country will be aided rather furtherance of commerce. People v. Canal, 5 Ind. 8 ; Dover v. Portsmouth Baltimore, &c. R. R. Co., 117 N. Y. 150, Bridge, 17 N. H. 200; Illinois, &c. Co. v. 22 N. E. 1026. Peoria Bridge, 38 111. 467. Under the 1 The improvement of a stream by Wisconsin Constitution a stream wholly State authority will give no right of ac- within the State may not be completely tion to an individual incidentally injured obstructed: Sweeney v. Chicago, &c. Ry. by the improvement. Zimmerman v. Co., 60 Wis. HO, 18 N. W. 756 ; but one Union Canal Co., 1 W. & S. 346. See between it and Minnesota may be tempo- Thunder Bay, &c. Co. v. Speechley, 31 rarily, by authority of the latter State. Mich. 336. Keator L. Co. v. St. Croix B. Corp., 72 2 Huse v. Glover, 119U. S. 543, 7 Sup. Wis. 62, 38 N. W. 529. [And a State Ct. Rep. 313; Sands v. Manistee River may declare a bridge which obstructs Imp. Co., 123 U. S. 288, 8 Sup. Ct. Rep. navigation upon a river wholly within the 113; Palmer v. Cuyahoga Co., 3 McLean, State a nuisance, and order its removal 226 ; Kellogg v. Union Co., 12 Conn. 7 ; or modification, although the approval of Thames Bank v. Lovell, 18 Conn. 500; the Secretary of War may have been McReynolds v. Smallhouse, 8 Bush, 447 ; given, under authority of act of Congress, Illinois, &c. Co. v. Peoria Bridge, 38 111. for the erection of the bridge. Lake 467 ; Benjamin v. Manistee, &c. Co., 42 Shore & M. S. R. Co. v. Ohio, 165 U. 8. Mich. 628, 4 N. W. 483 ; Nelson v. Che- 365, 17 Sup. Ct. Rep. 357. But a State boygan Nav. Co., 44 Mich. 7, 5 N. W. has no power to regulate tolls upon a 998, 38 Am. Rep. 222; Morris v. State, bridge used solely for inter-state com- 62 Tex. 728; Com'rs Sinking Fund v. merce. Covington & C. Bridge Co. v. Green, &c. Nav. Co., 79 Ky. 73. Kentucky, 154 U. S. 204, 14 Sup. Ct 8 See Commonwealth v. Breed, 4 Pick. Rep. 1087.] 460; Depew v. Trustees of W. and E. 55 866 CONSTITUTIONAL LIMITATIONS. [CH. XVI. than impeded by its construction. There are many cases where a bridge over a river may be vastly more important than the navigation ; and there are other cases where, although the traffic upon the river is important, yet an inconvenience caused by a bridge with draws would bo much less seriously felt by the public, and be a much lighter burden upon trade and travel, than a break in a line of railroad communications necessitating the employment of a ferry. In general terms it may be said that the State may authorize such constructions, provided they do not constitute material obstructions to navigation ; but whether they are to be regarded as material obstructions or not is to be determined in each case upon its own circumstances. The character of the structure, the facility afforded for vessels to pass it, the relative amount of traffic likely to be done upon the stream and over the bridge, and whether the traffic by rail would be likely to be more incommoded by the want of the bridge than the traffic by water with it, are all circumstances to be taken into account in deter- mining this question. It is quite evident that a structure might constitute a material obstruction on the Ohio or the Mississippi, where vessels are constantly passing, which would be unobjection- able on a stream which a boat only enters at intervals of weeks or months. The decision of the State legislature that the erec- tion is not an obstruction is not conclusive; but the final deter- mination will rest with the federal courts, who have jurisdiction to cause the structure to be abated, if it be found to obstruct unnecessarily the traffic upon the water. Parties constructing the bridge must be prepared to show, not only the State authority and that the plan and construction are proper, but also that it accommodates more than it impedes the general commerce. 1 1 See this subject fully considered in inter-state commerce and such use is the Wheeling Bridge Case, 13 How. 518. thereby materially obstructed. Cardwell See al. Swift, 47 Cal. 536; Green v. State, 73 Cal. 29, 11 Pac. 002, 14 Pac. 610. 1 Laws of 1875, c. 114. 2 In 1883 the act was held unconstitu- tional. The Fourteenth Amendment, says Bradley, J., does not " invest Con- gress with power to legislate upon sub- jects which are within the domain of State legislation, but to provide modes of relief against State legislation or State action of the kinds referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights ; but to provide modes of redress against the operation of State laws and the action of State officers, ex- ecutive and judicial, when these are subversive of the fundamental rights specified in the amendment." Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. Rep, 18. 3 Donnell v. State, 48 Miss. 661. FJA State may require railroads operating wholly within its borders to furnish separate passenger cars or separate com- partments in a single passenger car for white persons and for negroes, and may make it a criminal offence for a per- son of one race to occupy the car or compartment set apart for the use of the other. Plessy v. Ferguson, 163 U. S. 637, 16 Sup. Ct" Rep. 1138, aff. 45 La. Ann. 80, 11 So. 948, 18 L. R. A. 639. And it seems that a railroad engaged in inter-state commerce may be com- pelled to comply with such regulations so far as its domestic traffic is concerned. Chesapeake & 0. R. Co. v. Kentucky, 179 U. S. 388, 21 Sup. Ct. Rep. 101. That carriers of passengers may of their own motion make similar regulations, see Chilton v. St. Louis & I. M. R. Co., 114 Mo. 88, 21 S. W. 457, 19 L. R. A. 269. See also Anderson v. Louisville & N. Ry. Co., 91 Tenn. 44, 17 S. W. 803. In Younger v. Judah, 111 Mo. 303, 19 S. W. 1109, 33 Am. St. 527, 16 L. R A. 558, it was held that the proprietor of a theatre might, in the absence of a State statute forbidding, prohibit colored persons from attending his theatre, except they took seats in the balcony. The principle ap- plied was that under the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. Rep. 18; the Fourteenth Amendment did not con- trol the conduct of private persons, but the action of the State, and was not ap- plicable to a regulation established by a private person for the conduct of his busi- ness though of a quasi public character. In Cisco v. School Board, 161 N. Y. 598, 870 CONSTITUTIONAL LIMITATIONS. [CH. XVI. Regulation of Business Charges. In the early days of the com- mon law it was sometimes thought necessary, in order to prevent extortion, to interfere, by royal proclamation or otherwise, and establish the charges that might be exacted for certain com- modities or services. The price of wages was oftener regulated than that of anything else, the local magistrates being generally allowed to exercise authority over the subject. The practice was followed in this country, and prevailed to some extent up to the time of independence. Since then it has been commonly supposed that a general power in the State to regulate prices was incon- sistent with constitutional liberty. It has nevertheless been con- ceded that in some cases this might be done, and the question of the bounds to legislative power has been made prominent in what are known as the Chicago Warehouse Cases. The legisla- ture of Illinois, on the supposition that warehouse charges at Chicago were excessive and unfair, undertook to limit them to a maximum. They also required warehousemen to take out licenses and observe various regulations, which, are not important here, and imposed certain penalties for a refusal to observe the stat- ute. The validity of the legislation was affirmed by the State court, which overruled various objections made on constitutional grounds, among which was, that in effect it deprived warehouse- men of their property without due process of law. The ware- housemen denied wholly the right of the legislature to prescribe charges for private services, or for the use of private property, and it was urged by them that, if admitted at all, no bounds could be set to it. The court, in sustaining the power, placed it upon, the same ground with the right to regulate the charges of hack- men, draymen, public ferrymen, and public millers. 1 The case being removed to the federal Supreme Court, the decision of the State court was affirmed, and the principle fully approved. The / ground of the decision appears to be that the employment of these warehousemen is a public or quasi public employment; that their ) property in the business is " affected with a public interest," and thereby brought under that general power of control which the /State possesses in the case of other public employments. Says Mr. Chief Justice Waite : " Under these powers 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. In their ex- ercise it has been customary in England from time immemorial, 66 N. E. 81, it was held that the State 1 Munn v. People, 69 111. 80. In this may provide separate schools for white case, Justices McAllister and Scott dis- and black pupils 3 sented. CH. XVI.] THE POLICE POWER OF THE STATES. 871. and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, r the maintenance of a privy vault on premises adjoining a pub- lic sewer: Harrington v. Providence, 20 R. I. 233, 38 Atl. 1, 38 L. R. A. 305:] or a private hospital : Milne v. Davidson, 5 2 See Beer Company v. Massachusetts, 97 U. S. 25 ; Fertilizing Co. v. Hyde Park, 97 U. S. 659 ; ante, p. 400, and note ; Mug- ler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273; Davenport v. Richmond, 81 Va. 636. 884 CONSTITUTIONAL LIMITATIONS. [CH. XVI. The State has also a right to determine what employments shall be permitted, and to forbid those which are deemed prejudicial to the public good. Under this right it forbids the keeping of gam- bling houses, and other places where games of chance or skill are played for money, the keeping for sale of indecent books and pic- tures, the keeping of houses of prostitution, (a) and the resort thereto, and in some States the sale of intoxicating drinks as a Mart. N. s. 409, 16 Am. Dee. 189 ; or the erection of wooden buildings : King v. Davenport, 98 III. 305; or tlie running at large of swine: Roberts v. Ogle, 30 III. 459; Wiiitfield v. Longest, 6 Ired. 208; Crosby <>. Warren, 1 Rich. 385; or the un- reasonable occupation of public waters : Tourne v. Lee, 8 Mart. N. s. 548, 20 Am. Dec. 260 ; or the use of steam as motive power for cars in the streets : North Chi- cago C. R. Co. v. Lake View, 105 111. 207 ; or the emitting of dense smoke in the city : Harmon v. Chicago, 110 111. 400. And if in any of these cases there was doubt whether what was forbidden was a nuisance at the common law, the munici- pal declaration would, as to the future, resolve the doubt, but could not operate retrospectively. If a municipal corpora- tion proceeds to abate a nuisance, it pos- sesses for that purpose only the rights of any private person, and if injury results to an individual, it must justify its action by showing that a nuisance existed in fact. Wood on Nuisances, 738, 739; Welch r. Stowell, 2 Doug. (Mich.) 332; Brightmnn v. Bristol, 65 Me. 426, 20 Am. Rep. 711; Mayor of Americus v. Mitch- ell, 79 Ga. 807, 5 S. E. 201. [Except as to such things as are nuisances per se, or in their very nature, a person charged with maintaining them is entitled to he heard upon the question of whether it be a nuisance. Western & A. Ry. Co. r. City of Atlanta, 113 Ga. 537, 38 S. E. 996, 54 L. R. A. 294.] But a municipal corporation may order the removal of a nuisnnce at the expense of the person creating or responsible for it. Salem r. Eastern R. R. Co., 98 Mass. 431. And this is frequently done in the case of city lots which are a nuisance in their (a) [Prostitutes may be restricted to a limited area of a town. L'Hote r. New Orleans, 177 U. S. 587, 20 Sup. Ct. Rep. 788, aff. 51 La. Ann. 93, 44 L. R. A. 90, 24 So. 608. As to power of a city over houses of prostitution, see State r. Karsiandiek, 49 La. Ann. 1621, 22 So. 845, 39 L. R. A. 520, and People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124, 4 L. R. A. 751.] natural condition, or have become so by the act or neglect of the owner. The municipal order for removal is conclusive : Baker v. Boston, 12 Pick. 421, 22 Am. Dec. 421 ; though when it is to be done at the cost of the owner he is not concluded as to the cost by the action of the corpora- tion, but has a right to be heard as to the items : Salem v. Eastern R. R. Co., 98 Mass. 431 ; and in Kentucky on the ques- tion of nuisance. Joyce v. Woods, 78 Ky. 386. If the corporation is itself chargeable with creating the nuisance, the cost of abating it cannot be imposed upon the owner. Weeks v. Milwaukee, 10 Wis. 242; Hannibal v. Richards, 82, Mo. 380. See Banning v. Commonwealth, 2 Duv. 95. If it has expressly permitted it, it can abate only after a judicial de- cision. Everett v. Marqtiette, 53 Mich. 450, 19 N. W. 140. The abatement must be made by the removal of that in which the nuisance consists. King r. Rosewell, 2 Salk. 459; Ely r. Supervisors of Niag- ara, 36 N. Y. 297; State v. Keenan, 5 R. I. 497 ; Miller v. Birch, 32 Tex. 208. And it must be done without inflicting unnecessary injury. Babcockr. Buffalo, 56 N. Y. 268 ; Weil v. Ricord, 24 N. J. Eq. 169. See Ferguson v. Selma, 43 Ala. 398 ; and on the subject in general, Fer- tilizing Co. v. Hyde Park, 97 U. S. 659. [Upon municipal power over nuisances affecting safety, health, and personal comfort, see note to 38 L. R. A. 305 ; over buildings and other structures as nuisances, note to 38 L. R. A. 161. To the effect that private persons may not abate a common nuisance, so declared by statute, see State v. Stark, 63 Kan. 629, 66 Pac. 243, 54 L. R. A. 910.] CH. XVI.] THE POLICE POWER OF THE STATES. 885 beverage. 1 These several kinds of business have a tendency which is injurious and demoralizing ; and this tendency is recog- nized even in States where they are not forbidden, and they are subjected to regulations with a view to reducing their evils to a minimum. The regulation is likely to take the form of a license, for which a fee is exacted to cover the expense of supervision, and the days and hours when the business shall be suffered will per- haps also be prescribed, (a) Where an occupation like gaming or the sale of demoralizing articles is altogether prohibited, it is not uncommon to provide that whatever is kept for use or sale in violation of the law shall be forfeited by the owner, and, after judicial hearing, condemned and destroyed. 2 And taxes are some- 1 The sale of opium may be forbidden. State v. Ah Chew, 16 Nev. 50. Where sale of liquors is allowed, it is common to require closing of places of sale on Sun- day ; and it is held competent to enact that the lighting up of such a place on that day shall be prima facie evidence of guilt. Piqua v. Zimmerlin, 35 Ohio St. 507. Where a municipal ordinance per- mits sales, the license may be forfeited for violation of the ordinance. Ottumwa v. Schwab, 52 Iowa, 515, 3 N. W. 529. Municipal authorities empowered to close drinking places "temporarily" cannot order them closed " till further order," but must define the time. State v. Strauss, 49 Md. 288. The keeping open after hours cannot be made a breach of the peace allowing arrest without a warrant. People v. Haug, 68 Mich. 549, 37 N. W. 21. FJA State has no power to bind itself to permit lotteries to be carried on. Douglas v. Kentucky, 168 U. S. 488, 18 Sup. Ct. Rep. 199, follow- ing Stone ?.'. Mississippi, 101 U. S. 814. But it cannot prohibit a gift enterprise in connection with merchandising where there is no element of chance involved. Long v. State, 73 Md. 527, 21 All. 683, 12 L. R. A. 89, 74 Md. 565, 22 Atl. 4, 12 L. R. A. 425. For trading stamp legisla- tion held constitutional, see State v. Dai- ton, 22 R. I. 77, 46 Atl. 234, 84 Am. St. 818, 48 L. R. A. 775. Upon power to regulate liquor-selling, see Giozza r. Tier- nan, 148 U. S. 657, 13 Sup. Ct. Rep. 1047 ; Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. Rep. 13. State may forbid the making of options for the sale of com- modities, even though the parties actually contemplate a transfer of the commodi- ties. Booth c. People, 186 111. 43, 57 N. E. 798, 50 L. R. A. 762, 78 Am. St. 229, aff. 184 U. S. 425, 22 Sup. Ct. Rep. 425. Regulate sale of intoxicating liquors, and grant or refuse licenses therefor. De Walt's Appeal, 190 Pa. 577, 42 Atl. 1117, 45 L. R. A. 399. Prohibit keep- ing of a place where money is received to be bet on horse-races, even though place is kept by agent of inter-state tele- graph company and money is transmitted by telegraph to another State. State . Harbourne, 70 Conn. 484, 40 Atl. 179, 40 L. R. A. 607. Regulate horse-racing and the use of race-tracks therefor. State v. Roby, 142 Ind. 108, 41 N. E. 145, 33 L. R. A. 213. Liquor-selling may be re- stricted to citizens of the United States, and applicants for license may be re- quired to required to secure approval of specified commissioners. Tragesser v. Gray, 73 Md. 250, 20 Atl. 905, 9 L. R. A. 780, and note. See further on control of liquor-traffic, Altenburgh v. Com., 126 Pa. 602, 17 Atl. 799, 4 L. R A. 543.J 2 Ante, p. 849, note. QSuch machines may be summarily seized and destroyed. Bd. of Police Comm'rs v. Wagner, 93 Md 182, 48 Atl. 455; and see Lawton v. Steele and other cases, in note 2, page 878.] (a) FJWhere there is no regulation, the fee imposed is not a license-fee but a tax, and if it does not conform to the constitutional requirements for a tax the imposi- tion is void. State v. Moore, 113 N. C. 697, 18 S. E. 342, 22 L. R. A. 472. See also Jacksonville v. Ledwith, 26 Fla. 163, 7 So. 885, 9 L. R. A. 69J 886 CONSTITUTIONAL LIMITATIONS. [CH. XVI. times imposed with a view to discourage occupations which are injurious in their tendency, but which the State does not venture to prohibit. 1 So the most proper business may be regulated to prevent its be- coming offensive to the public sense of decency, 2 or for any other reason injurious or dangerous; 3 and rules for the conduct of the 1 Youngblood v. Sexton, 32 Mich. 406. 2 Like the keeping and exhibition of stallions and bulls in public places. Nolin v. Franklin, 4 Yerg. 163. 8 Watertown v. Mayo, 109 Mass. 315 ; Blydenburg v. Miles, 39 Conn. 484; Tay- lor v. State, 35 Wis. 298. The sale of any pistol except the navy pistol may be for- bidden. Dabbs v. State, 39 Ark. 353. One operating a co-operative cheese fac- tory may be required to give bonds. Hawthorn v. People, 109 111. 302. The sale of goods, except at one's regular place of business, near camp meeting grounds may be forbidden. Meyers v. Baker, 120 111. 567, 12 N. E. 79; Com. v. Bearse, 133 Mass. 542. An inn-keeper may be required to take out a license. Bostick v. State, 47 Ark. 126, 14 S. W. 476. But the manufacture of tobacco on any floor of a tenement house, if such floor is used as a residence, may not be forbidden. In re Jacobs, 98 N. Y. 98. QState may regulate the occupation or business of barbers, and may require barbers to pass an examination and pay a reasonable license-fee therefor, in order to insure proper degree of competency and to protect the health of their patrons. State v. Zeno, 79 Minn. 80, 81 N. W. 748, 48 L. R. A. 88. But such regulations as limit the right of a citizen to contract with reference to his own property must have some recognizable tendency to pro- mote the public welfare. They cannot be purely arbitrary. Dennis v. Moses, 18 Wash. 537, 52 Pac. 333, 40 L. R. A. 302; State v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134, 46 L. R. A. 442. Manufacturers may be compelled to pay their employees their wages weekly in Massachusetts. Re House Bill No. 1230, 163 Mass. 589, 40 N. E. 713, 28 L. R. A. 344 ; and upon power to regulate time of payment of wages, see note to this case in L. R. A., also upon requirement that wages be paid in lawful money, note to 28 L. R. A. 273, and Dixon v. Poe, Ind. , 65 N. E. 518. In Pennsylvania it is held that insurance business may be confined to corporations. Common- wealth v. Vrooman, 164 Pa. 306, 30 Atl. 217, 25 L. R. A. 250. State may provide that answer by applicant for insurance shall not bar recovery unless wilfully false, material, and made without agent's knowledge of falsity, and unless it in- duced the company to issue the policy. J. Hancock M. L. Ins. Co. v. Warren, 59 Ohio St. 45, 51 N. E. 546, aff. in 181 U. S. 73, 21 Sup. Ct. Rep. 535. Statute pro- viding that if insurance company shall fail to pay loss when due it shall be liable for 12 per cent additional is held valid in Fidelity and Casualty Co. v. Allibone, 90 Tex. 660, 39 S. W. 632. But see Railway Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. Rep. 255, where similar statute as to contracts between railway companies and their employees is held void. Upon power to regulate insurance, see State v. Stone, 118 Mo. 388,24 S. W. 164, 25 L. R. A. 243, and Noble & W. v. Mitchell, 100 Ala. 519, 14 So. 581, 25 L. R. A. 238, and note. Ticket brokerage may be prohibited. Burdick v. People, 149 111. 600, 36 N. E. 948, 24 L. R. A. 152, and note; State v. Corbett, 57 Minn. 345, 59 N. W. 317, 24 L. R. A. 498; Com. v. Keary, 198 Pa. 500, 48 Atl. 472. But all regulations of business that is not in itself deleterious to the general good must be reasonable. They cannot be arbitrary, and if they are so the courts will set them aside. Ex parte Whitwell, 98 Cal. 73, 32 Pac. 870, 19 L. R. A. 727. An act forbidding one not a registered pharmacist to sell patent medicines is void as unreasonable. Noel v. People, 187 111. 587, 58 N. E. 616, 62 L. R. A. 287. Plumbers may be required to procure a certificate of competency from a State board of examiners, and to be registered. Singer v. State, 72 Md. 464, 19 Atl. 1044, 8 L. R. A. 651 ; People v. Warden, 144 N. Y. 529, 39 N. E. 686, 27 L. R. A. 718.3 CH. XVI.] THE POLICE POWER OF THE STATES. 887 most necessary and common occupations are prescribed when from their nature they afford peculiar opportunities for imposition and fraud. 1 Cities commonly provide markets where provisions may be exposed for sale; and these are subjected to careful regu- lations, and furnished with official inspectors to whom every dealev may be required to exhibit his stock, (a) Dealers may also be compelled to take out a license, and the license may be refused to a person of bad reputation, or taken away from a party detected in dishonest practices. 2 For dealings in the markets, weights 1 E. g , the business of insuring lives or property. Ward z;. Farwell, 97 111. 693 ; Lothrop v. Steadman, 42 Conn. 583. FJThat of itinerant vendors. State v. Foster, 21 R. I. 251, 43 All. 66, 50 L. R. A. 339. State may require that coal mined shall be weighed before being screened, and that miners shall be paid accord- ing to weights thus determined, where the parties are left free to determine by con- tract the rate to be paid. State v. Wilson, 61 Kan. 32, 58 Pac. 981, 47 L. R. A. 71. See further on statutes requiring weighing of coal before screening, lie Preston, 63 Ohio, 428, 59 N. K. 101, 52 L. R. A. 523, 81 Am. St. 642, and cases cited in the opinion. Statute forbidding discharge of an employee because of membership in a labor organization is invalid. State v. Kreutzberg, 114 Wis. 530, 90 N. W. 1098 ; State v. Julow, 129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 60 Am. St. 443 ; Gillespie v. People, 188 111. 176, 58 N. E. 1007, 80 Am. St. 176. That commission merchants dealing in farm produce shall take out licenses, have their business inspected, give bonds for due performance of their duties to consignors, &c. ; State v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134, 46 L. R. A. 442 ; contra, People v. Coolidge, 124 Mich. 664, 83 N. W. 594, 50 L. R. A. 493. State may regulate the practice of dentistry. State v. Vandersluis, 42 Minn. 129, 43 N. W. 789, 6 L. R. A. 119. But regulations of the practice of the professions cannot make arbitrary dis- criminations. State v. Pennoyer, 65 N. H. 113, 18 Atl. 878, 5 L. R. A. 709. General buyers of wheat at elevators situated on or alongside any railway may be required to take out licenses. Cargill Co. v. Minnesota, 180 U. S. 452,21 Sup. Ct. Rep. 423, aff. 77 Minn. 223, 79 N. W. 962. Sale of railway tickets may be restricted to authorized agents of railway compa- nies. Com. v. Keary, 198 Pa. 500, 48 Atl. 472 ; Burdick v. People, 149 111. 600, 36 N. E. 948, 24 L. R. A. 152, and note ; State v. Corbett, 57 Minn. 345, 59 N. W. 317, 24 L. R. A. 498J 2 See, in general, Nightingale's Case, 11 Pick. 168; Buffalo v. Webster, 10 Wend. 99 ; Bush v. Seabury, 8 Johns. 418; Ash v. People, 11 Mich. 347; State v. Leiber, 11 Iowa, 407 ; Le Claire v. Dav- enport, 13 Iowa, 210; White v. Kent, 11 Ohio St. 550 ; Bowling Green v. Carson, 10 Bush, 64 ; New Orleans v. Stafford, 27 La. Ann. 417. QAn act requiring ped- dlers in a certain county to take out a license and exempting from its operation merchants, persons selling to merchants, and persons selling property raised or manufactured by them, is held invalid in Com. v. Snyder, 182 Pa. St. 630, 38 Atl. 356 ; State v. Wagener, 69 Minn. 206, 72 N. W. 67, 38 L. R. A. 677. But see Ros- enbloom v. State, Neb. , 89 N. W. 1053, 67 L. R. A. 922, and note, in which case it is held that a regulation requiring license from dealers in merchandise which exempted those selling their own produc- tions is valid. A regulation limiting re- quirement for license to transients only is void ; McGraw v. Marion, 98 Ky. 673, 34 S. W. 18, 47 L. R. A. 593. See also Kniscly v. Cotterel, 196 Pa. 614, 46 Atl. 861, 60 (a) QUpon police powers over markets, see Jacksonville v. Ledwith, 26 Fla. 163, 7 So. 885, 9 L. 11. A. 69 ; State v. Sarradat, 46 La. Ann. 700, 15 So. 87, 24 L. R. A. 684, and note ; City of New Orleans v. Faber, 105 La. 208, 29 So. 607, 63 L. R. A. 165. Fresh meats may be required to be sold only in public markets. Newson . Galveston, 76 Tex. 669, 13 S. W. 368, 7 L. R. A. 797-3 888 CONSTITUTIONAL LIMITATIONS. [CH. XVI. and measures are established, and parties must conform to the fixed standards under penalty. 1 It is also common to require draymen, hackmen, pawnbrokers, and auctioneers to take out licenses, and to conform to such rules and regulations as seem important to the public convenience and protection. 2 So for the protection of youth in institutions of learning, and for the- good discipline of schools, the sale of liquors in their vicinity may be prohibited when allowed generally, 3 and credit for livery to pupils, without the consent of the college authorities, may be subjected to penalty. 4 So, for the protection of laborers against the oppres- sion of employers, it is hold competent to forbid their being paid in anything else than legal-tender funds. 5 And under its general L. R. A. 86, and note ; Carrollton v. Ba- zette, 159 III. 284,42 N. E. 837, 31 L. R. A. 622 ; State v. Harrington, 68 Vt. 622, 35 Atl. 515, 34 L. li. A. 100; Brownback v. North Wales, 191 Pa. 60'), 45 Atl. 6(50, 49 L. R. A. 446 ; State v. Foster, 22 R. I. 1C3, 46 Atl. 833, 50 L. R. A 339-3 The power is continuing, and markets once established may be changed at the option of the authorities, and they cannot even by contract deprive themselves of this power. Gale v. Kalamazoo, 23 Mich. 344; Gall v. Cincinnati, 18 Ohio St. 563; Cougot v. New Orleans, 16 La. Ann. 21. Sales outside of public markets may be prohibited. Gossigi v. New Orleans, 41 La. Ann. 522, 6 So. 534 ; Ex parte Byrd, 84 Ala. 17, 4 So. 397. 1 Guillotte v. New Orleans, 12 La. Ann. 432; Page v. Fazackerly, 36 Barb. 392 ; Raleigh v. Sqrrell, 1 Jones (N. 0.), 49; Gaines v. Coats, 51 Miss. 335; Dil- lon, Mun. Corp. 323, 324, and cases cited. Sales of food may not be forbid- den merely because prizes or gifts are part of the inducement. People v. Gillson, 109 N. Y. 389, 17 N. E. 343. As to market regulations in general, see Wartman v. Philadelphia, 33 Pa. St. 202; Spaulding v. Lowell, 23 Pick. 71 ; Gall U.Cincinnati, 18 Ohio St. 563; Municipality v. Cutting, 4 La. Ann. 336; State v. Fisher, 62 Mo. 174. Upon powers of municipalities over markets, see State v. Sarradat, 46 La. Ann. 700, 15 So. 87, 24 L. R. A. 584, and note; Jacksonville v. Ledwith, 26 Fla. 163, 7 So. 885, 9 L. R. 69. Ingredi- ents of compound or adulterated lard may be required to be disclosed upon the wrapper of the package. State v. Snow, 81 Iowa, 642, 47 N. W. 777, 11 L. R. A. 355. Sale of certain classes of provisions may be restricted to public markets. New Orleans v. Faber, 105 La. 208, 29 So. 507, 53 L. R. A. 165.] 2 Commonwealth v. Stodder, 2 Cush. 662; Morrell v. State, 38 Wis. 428; 20 Am. Rep. 12 ; Dillon, Mun. Corp. 291- 296. One who lets his horse and wagon for the hirer to use himself is not a dray- man. State v. Robinson, 42 Minn. 107, 43 N. \V. 833, 6 L. R. A. 339. As to license fees, and when they are taxes, see ante, pp. 283, 706 ; Mayor, &c. of Mobile v. Yuille, 3 Ala. 137. 8 State r. Ranscher, 1 Lea, 96 ; Boyd v. Bryant, 35 Ark. 69, 37 Am. Rep. A See Bronson v. Oberlin, 41 Ohio St. 476. * Soper v. Harvard College, 1 Pick. 177, 11 Am. Dec. 159. In Common- wealth v. Bacon, 13 Bush, 210, 26 Am. Rep. 189, it was held not competent to forbid any one carrying on stabling within a specified distance of a named agricultural society during its fairs. 6 Shaffer v. Union Mining Co., 55 Md. 74. ("And for the protection of the health of miners and the avoidance of unneces- sary danger to their lives and limbs, the State may compel the ventilation of mines and the erection of structures to facilitate their escape in case of accident. The cost of the necessary inspections may be levied upon the owners of the mines. Chicago, W. &V. Coal Co. v. Peo- ple, 181 III. 270, 54 N. E. 961 ; 48 L. R. A. 554 ; Consolidated Coal Co. v. People, 186 111. 134, 57 N. E. 880. And the State may require railway companies to com- . pensate all employees for injuries caused by negligence of any of their servants in charge of particular branches of their CH. XVI.] THE POLICE POWEK OF THE STATES. 889 right to require merchandise to be submitted to public inspection and regulation, the State may prescribe the size of packages and place of inspection for the shipment of tobacco to foreign countries, and impose penalties for failure to conform to the regulations. 1 The general rule undoubtedly is, that any person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching upon the rights of others. This general right can- not be taken away. It is not competent, therefore, to forbid any person or class of persons, whether citizens or resident aliens, offering their services in lawful business, or to subject others to penalties for employing them. 2 But here, as elsewhere, it is proper to recognize distinctions that exist in the nature of things, and under some circumstances to inhibit employments to some one class while leaving them open to others. Some employments, for example, may be admissible for males and improper for females, and regulations recognizing the impropriety and forbid- ding women engaging in them would be open to no reasonable objection. 3 The same is true of young children, whose employ- service. Such legislation being justified upon the ground that it is for the pro- tection of persons engaged in an extra- hazardous occupation. Indianapolis U. Ry. Co. v. Houlihan, 157 Ind. 494, 60 N. E. 943, 54 L. R. A. 787. See construc- tion of statute forbidding the assignment of wages not due and declaring invalid agreements relieving an employer from paying wages weekly in International T. B Co. v. Weissinger, Ind. , 65 N. E. 521. ] 1 Turner v. State, 55 Md. 240, aff. 107 U. S. 38, 2 Sup. Ct. Rep. 44. 2 Baker v. Portland, 5 Sawyer, 566. FJIt is unlawful to require an applicant for a license to follow the occupation of a barber to be a citizen of the United States : Templar v. Examining Bd. of Barbers, Mich. , 90 N. W. 1058. See Tragresser v. Gray, 73 Md. 250, 20 Atl. 905, 9 L. R. A .780, holding that liquor-sell- ing mny be restricted to citizens of the United States. Police regulations cannot be purely cirbitrary nor purely for the promotion of private interests. It must appear that the general welfare is to be in some degree promoted. A statute re- quiring railroads and transportation com- panies to turn over to a storage company or public warehouseman all property which the consignee fails to call for or receive within twenty days after notice of its arrival, is unconstitutional. State r. Chicago, M. & St. P. R. Co., 68 Minn. 381, 71 N. W. 400, 38 L. R. A. 672. But in Pennsylvania it is held that the business of insurance may be confined to corpora- tions. Com. v. Vrooman, 164 Pa. 306, 30 Atl. 217, 25 L. R. A. 250. A gift enter- prise carried on by a merchant in connec- tion with his business and involving no element of chance cannot be prohibited. Long v. State, 73 Md. 527, 21 Atl. 683, 12 L. R. A. 527, 74 Md. 565, 22 Atl. 4, 12 L. R A. 425. And see State t>. Dalton, 22 R. I. 77, 46 Atl. 234, 84 Am. St. 818, 48 L. R. A. 775.] 8 It has been held that a constitutional provision forbidding the General Assem- bly granting " to any citizen, or class of citizens, privileges or immunities which upon the same terms shall not equally belong to all citizens," does not preclude restricting the licensing of the sale of intoxicating drinks to males. Blair n. Kil- patrick, 40 Ind. 312. The people of Cali- fornia deemed it wise to provide by their constitution that "no person shall on ac- count of sex be disqualified from entering upon or pursuing any lawful business, vocation, or profession ; " and it has been held that the legislature is now deprived of the power to prohibit the employment 890 CONSTITUTIONAL LIMITATIONS. [CH. XVI. ment in mines and manufactories is commonly, and ought always, to be regulated. 1 And some employments in which integrity is of vital importance it may be proper to treat as privileges merely, and to refuse the license to follow them to any who are not reputable. 2 Whether the prohibited act or omission shall be made a crimi- nal offence, punishable under the general laws, or subject to pun- ishment under municipal by-laws, or, on the other hand, the party be deprived of all remedy for any right which, but for the regu- lation, he might have had against other persons, are questions which the legislature must decide. It is sufficient for us to have pointed out that, in addition to the power to punish misdemeanors and felonies, the State has also the authority to make extensive and varied regulations as to the time, mode, and circumstances in and under which parties shall assert, enjoy, or exercise their rights without coming in conflict with any of those constitutional principles which are established for the protection of private rights or private property. 3 of females in drinking-cellars and other places where liquors are kept for sale. Matter of Maguire, 57 Cal. 604. Sale of wines and liquors in dance-cellars and the like places frequented by women may be forbidden. Ex parte Hayes, 98 Cal. 655, 33 Pac. 337, 20 L. R. A. 701-3 That such employment might otherwise be prohibited on good reasons, few persons will doubt. See Matter of Quong Woo, 13 Fed. Rep. 229. And in Ohio this may be forbidden under power to regulate saloons. Bergman v. Cleveland, 39 Ohio St. 651. 1 See Commonwealth v. Hamilton Manufacturing Co., 120 Mass. 383. [[Em- ployment of girls less than fourteen years old in public theatrical exhibitions, &c., may be forbidden under penalty. People v. Ewer, 141 N. Y. 129, 36 N. E. 4, 25 L. R. A. 794, and note.] 2 The legislature may prescribe the qualifications for the practice of dentistry : Wilkins v. State, 113 Ind. 514, 16 N. E. 192 ; State v. Vandersluis, 42 Minn. 129, 43 N. W. 789, 6 L. R. A. 119 ; Gosnell v. State, 52 Ark. 228, 12 S. W. 392 ; or med- icine. State v. Dent, 25 W. Va. 1 ; aff. 129 U. S. 114, 9 Sup. Ct. Rep. 231 ; East- man v. State, 109 Ind. 278, 10 N. E. 97 ; People v. Phippin, 70 Mich. 6, 37 N. W. 888. QAnd after license granted the State may revoke it for a cause existing at time of grant and then known, and it may make new regulations and provide pen- alties for breach thereof, even though such regulations amount under the cir- cumstances to a deprival of the right to practise. Hawker v. New York, 170 U. S. 189, 18 Sup. Ct. Rep. 673. Upon validity of regulations of practice of medicine, see note to 14 L. R. A. 579. State may restrict practice of law to males. Ex parte Lockwood, 154 U. S. 116, 14 Sup. Ct. Rep. 1082. But it rests with the courts to determine what qualifications are necessary to admission to the bar. Re Day, 181 111. 73, 54 N. E. 646, 50 L. R. A. 619. State may compel all practising physicians to take out new licenses, and to pass examinations there- for. State v. Webster, 150 Ind. 607, 50 N. E. 750 ; 41 L. R. A. 212J The right to practise cannot be refused without giving the applicant an opportunity to be heard. State v. State Med. Ex. Board, 32 Minn. 324, 20 N. W. 238; Gage v. Censors, 63 N. H. 92. [See Reetz v. Michigan, U. S. , 23 Sup. Ct. Rep. 390.] Physicians may be re- quired to report births and deaths. Rob- inson v. Hamilton, 60 Iowa, 134, 14 N. W. 202. 8 Upon the general right of the State to regulate trades and occupations, see further, Pierce v. Kimball, 9 Me. 64, 23 CH. XVI.] THE POLICE POWER OF THE STATES. 891 Am. Dec. 537 ; Shepherd v. Commission- ers, f>9 Ga. 5o5 ; State e. Calliout, 1 Lea, 716 ; Fry v. State, 6:5 Ind. 652. [[Where the constitution directs that " the legisla- ture shall pass laws to provide for the health and safety of employees in fac- tories, smelters, and mines," the legisla- ture is competent to enact that " except in cases of emergency where life or prop- erty is in imminent danger " "the period of employment of workingmen in all un- derground mines or workings " and " in smelters and all other institutions for the reduction or refining of ores or metals shall be eight hours per day," and that the violation of any such provision by " any person, body corporate, agent, man- ager or employer," shall be a misde- meanor. Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. Rep. 383, aff. 14 Utah, 71, 96, 46 Pac. 756, 1105, 37 L. R. A. 103, 108. The case in the United States Su- preme Court cites many cases bearing upon the subject, and discusses very thoroughly the effect of the Fourteenth Amendment upon the police powers ot the States. See also Short v. Bullion, B. & C. Mining Co., 20 Utah, 20, 57 Pac. 720, 45 L. R. A. 603, where effect of this act upon contracts for pay for overtime is considered. That such regu- lation cannot be made under the ordi- nary constitution, see Re Morgan, 26 Colo. 415, 58 Pac. 1071, 47 L. R. A. 52, 77 Am. St. 269. In Fiske v. People, 188 111. 206, 58 N. E. 985, 52 L. R. A. 291, it is held that an ordinance providing for pro- visions in city contracts limiting hours of labor upon city works to eight hours was unconstitutional as infringing freedom to contract. For other cases upon the right to limit or regulate hours of labor, see People v. Phyfe, 136 N 7 . Y. 554, 32 N. E. 978, ly L. li. A. 141 ; Re Dalton, 61 Kan. 257, 59 Pac. 336, 47 L. R. A. 380 ; Seattle v. Smyth, 22 Wash. 327, 60 Pac. 1120, 79 Am. St. 939 ; of females upheld in Wen- ham v. State, Neb. , 91 N. W. 421, 68 L. R. A. 825; Cleveland v. Clement Bros. Const. Co., Ohio , 66 N. E. 885. 59 L. R. A. 775; State v. Buchanan, Wash. , 70 Pac. 52, 59 L. R. A. 342 (forl)idding employment of women more than ten hours a day). See further upon power of State to limit hours of labor, 63 Cent. L. Jour. 384. Upon protection of health of employees, see People v. Smith, 108 Mich. 527, 66 N. W. 382, 32 L. R. A. 853, and note; protection of health within State, State v. Schlemmer, 42 La. An. 1166, 8 So. 307; 10 L. R. A. 135, and note; relation of States to general gov- ernment in regard to police power, con- tracts, &c., note to Baldwin's View, 9 L. ed. U. S. 873. In Indianapolis U. Ry. Co. v. Houlihan, 157 Ind 494, 60 N. E. 943, 64 L. R. A. 787, a statute making railway companies liable to employees for in- juries caused by negligence of other em- ployees of specified grade, was upheld as valid exercise of police power.] Where a municipality is given power to license oc- cupations which are proper in themselves and not subject to special evils e.g. that of a laundry the license cannot be made conditional on obtaining consent of residents of the neighborhood, as this in effect would be a delegation of its power to license. Matter of Quong Woo, 13 Fed. Rep. 229. The functions of a fertilizer inspector must, except by statutory per- mission, be exercised within the State. Hammond v. Wilcher, 79 Ga. 421, 6 S. E. 113. 892 CONSTITUTIONAL LIMITATIONS. [CH. XVIL CHAPTER XVII. THE EXPRESSION OP THE POPULAR WILL. ALTHOUGH by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty. They retain in their own hands, so far as they have thought it needful to do so, a power to control the governments they create, and the three departments are responsible to and subject to be ordered, directed, changed, or abolished by them. But this control and direction must be exercised in the legitimate mode previously agreed upon. The voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the constitution, or which, consistently with the constitution, have been prescribed and pointed out for thcrn^ by statute ; and if by any portion of the people, however large, an attempt should be made to interfere with the regular working of the agencies of government at any other time or in any other I mode than as allowed by existing law, either constitutional or ,' statutory, it would be revolutionary in character, and must be j resisted and repressed by the officers who, for the time being, I/ represent legitimate government. 1 1 " The maxim which lies at the foun- There are a number of provisions in dation of our government is that all po- different State constitutions which re- litical power originates with the people, quire that certain specified propositions But since the organization of govern- such, for example, as the amendment ment it cannot be claimed that either the of the constitution or the removal of a legislative, executive, or judicial powers, county seat shall be carried only by either wholly or in part, can be exer- a majority vote of the electors, or per- cised by them. By the institution of haps by a two-thirds majority. Whether government the people surrender the by majority in these provisions is in- exercise of all these sovereign functions tended a majority of all who took part in of government to agents chosen by them- the election, by voting on any proposition selves, who at least theoretically represent then submitted, or by voting for any offi- the supreme will of their constituents, cer then to be chosen, or only a majority Thus all power possessed by the people of those . Carr, 129 Ind. 41, 28 N. E. 88, 13 L. R. A. 177, and note. Where the governor dejure is present CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 897 An officer de jure is one who, possessing the legal qualifica- tions, has been lawfully chosen to the office in question, and has fulfilled any conditions precedent to the performance of its duties. By being thus chosen and observing the precedent conditions, such a person becomes of right entitled to the possession and enjoyment of the office, and the public, in whose interest the office is created, is entitled of right to have him perform its duties. If he is ex- cluded from it, the exclusion is both a public offence and a private injury. An officer de jure may be excluded from his office by either an officer de facto or an intruder. An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. 1 His color of right may come from an elec- tion or appointment made by some officer or body having colorable but no actual right to make it; 2 or made in such disregard of legal requirements as to be ineffectual in law ; or made to fill the place of an officer illegally removed ; 3 or made in favor of a party not having the legal qualifications ; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after 1 One who has the reputation of being There can be no de facto incumbent of an the officer he assumes to be, and yet is office in the possession of an officer, not a good officer in point of law. Parker Cohn v. Beal, 61 Miss. 398 ; State v. v. Hett, Ld. Raym. 658 ; King v. Bedford Blossom, 19 Nev. 312, 10 Pac. 430. One Level, 6 East, 356, 368. One who conies who is in hiding cannot be a de facto offi- in by claim or color of right, or who ex- cer. Williams v. Clayton, 6 Utah, 86, 21 ercises the office with such circumstances Pac. 398. of acquiescence on the part of the public 2 As where the appointing body is as at least afford a strong presumption of acting under an unconstitutional law. right, but by reason of some defect in his Strang, Ex pane, 21 Ohio St. 610; Corn- title, or of some informality, omission, or monwealth v. McCombs, 66 Pa. St. 436 ; want of qualification, or by reason of the Cole v. Black River Falls, 57 Wis. 110, expiration of his term of service, is un- 14 N. W. 906 ; Yorty v. Paine, 62 Wis. able to maintain his possession when 154, 22 N. W. 137. See Leach v. People, called upon by the government to show 122 111. 420, 12 N. E. 726. Compare Nor- by what title he holds it. Blackwell on ton v. Shelby Co., 118 U. S. 425, 6 Sup. Tax Titles, 92, 93. One who exercises Ct. Rep. 1121. the duties of an office under color of 3 Watkins v. Inge, 24 Kan. 612. See election or appointment to that office. Meadev. County Treasurer, 36 Mich. 416. Plymouth v. Painter, 17 Conn. 685, 688. at the seat of government and attempting to exercise the powers of his office, he is also governor de facto, and no other person can be governor de facto at the same time. Powers v. Com., 22 Ky. L. 1807, 61 S. W. 735. An officer whose prescribed term has a stated duration and further until his successor is elected and qualified is de jure until such qualification, and where the time for election of his successor as prescribed in the Constitution has elapsed, the officer's term lasts until the recur- rence of the regular time for election of his successor. State v. Bulkeley, 61 Conn. 287, 23 Atl. 186, 14 L. R. A. 657-3 67 898 CONSTITUTIONAL LIMITATIONS. [CH. XVIL his legal right has been terminated ; l or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without in- quiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be. 2 An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence. No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. 8 But for the sake of order and regularity, and to prevent confusion in the conduct of public business and insecurity of private rights, the acts of officers de facto are not suffered to be questioned be- cause of the want of legal authority except by some direct pro- ceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emol- ument, by reason of being the officer which he claims to be. 4 In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. 5 This is an important principle, which finds concise 1 As when one continues to perform cess after his term has expired, must the duties of judge after having accepted show his capacity de jure. Grace v. a seat in the legislature. Woodside . Teague, 81 Me. 659. Wagg, 71 Me. 207. Or a constable con- 5 Tucker v. Aiken, 7 N. H. 113; Tay- tinues to act after removal from his town, lor v. Skrine, 3 Brev. 516; Fowler v. Case v. State, 69 Ind. 46; Wilson v. King, Beebe, 9 Mass. 231, 6 Am. Dec. 62 ; Hil- 3 Litt. 457, 14 Am. Dec. 84. dreth v. Mclntyre, 1 J. J. Marsh. 206, 19 2 State v. Carroll, 38 Conn. 449, 471, Am. Dec. 61; Wilcox v. Smith, 5 Wend. 9 Am. Rep. 409; Petersilea >. Stone, 119 231, 21 Am. Dec. 213; People v. Kane, 23 Mass. 465; People v. Terry, 108 N. Y. 1, Wend. 414; In re Kendall, 85 N. Y. 302; 14 N. E. 815. Brown v. Lunt, 37 Me. 423 ; State v. 8 Plymouth v. Painter, 17 Conn. 585; Carroll, 38 Conn. 449; Stater. Bloom, 17 Peck w. Holcombe, 3 Port. 329; Peter- Wis. 521; People v. Bangs, 24 111. 184; silea v. Stone, 119 Mass. 465. There can Sharp v. Thompson, 100 111. 447 ; Clark be no officer de facto when there is no v. Commonwealth, 29 Pa. St. 129; Kim- office. Carlton v. People, 10 Mich. 250; ball v. Alcorn, 45 Miss. 151; Burke v. In re Hinkle, 31 Kan. 712, 3 Pac. 531. If Elliott, 4 Ired. 855 ; Gibb v. Washington, there is by reason of the unconstitution- 1 McAll. 430; Bailey v. Fisher, 38 Iowa, ality of a law no office de jure, to fill, there 229; Ex parte Norris, 8 S. C. 408; can be no officer de facto. Norton v. Threadgill v. Railroad Co., 73 N. C. 178 ; Shelby Co., 118 U. S. 425, 6 Sup. Ct. McLean v. State, 8 Heisk. 22 ; Kreidlerr. Hep. 1121; [contra, Parker v. State, 133 State, 24 Ohio St. 22; Cocke v. Halsey, Ind. 178, 32 N. E. 186, 83 N. E. 119, 18 16 Pet. 71. A de facto constable stands L. R. A. 567.] Compare Leach v. People, upon the same ground as one de jure as 122 111. 420, 12 N. E. 726. regards his liability for killing a person * Thus a justice, sued for issuing pro- resisting arrest State v. Dierberger, 90 CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally. The Right to Participate in Elections, (a) In another place we have said that, though the sovereignty is in the people, as a practical fact it resides in those persons who Mo. 369, 2 S. W. 286. [When the Con- hold office until their successors are stitution prohibits lengthening the term elected and qualified operates to lengthen of a public officer, a statute deferring the time during which the incumbent the time of election of his successor is occupies the office. State v. Menaugh, not thereby made void, even though the 151 Ind. 260, 278, 51 N. E. 117, 357, 43 Constitutional provision that officers shall L. R. A. 408, 418.] (a) The importance of regulating primary elections and nominations to office has of recent years become somewhat widely recognized. The right of a party to hold a nominating convention cannot be denied it on account of its smallness, nor can it be compelled to admit every voter who desires to attend its primaries without regard to his political beliefs. Britton v. Election Comm'rs, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115. Nominations by petition are now generally provided for. In State r. Poston,59 Ohio St. 122, 52 N. E. 196, 43 L. R. A. 90, the requirement that such petition " shall contain a provision to the effect that eacli signer thereto pledges himself to support and vote for the candidate or candidates whose nominations are therein requested," was held valid as not interposing any unreasonable impediment to the exercise of the elective franchise. In Rtephenson v. Bd. of Election Comm'rs, 118 Mich. 396, 76 N. W. 914, 42 L. R. A. 214, it was held that a political convention might organize itself and determine the rights of contesting delegations to seats, and that in case of nominations by rival factions, both sets of nominees must be listed on the official ballot under the part}- name and emblem. See also Marcum v. Ballot Comm'rs, 42 W. Va. 263, 26 S. E. 281, 36 L. R. A. 296 ; State v. Arms, 24 Mont. 447, 63 Pac. 401. In Phillips i-. Gallagher, 73 Minn. 528, 76 N. W. 285, 42 L. R. A. 222, the power of a convention to control its own procedure was recognized, and the con- vention was permitted to reject a vote alleged to be erroneous, although the error was not sufficient to overcome the majority of a candidate, and thereafter to vote again upon the nomination for the particular office, which latter vote taken on a later d;iy resulted in the nomination of a person not named in the first vote. Fraud or oppression was declared unnecessary to cause the court to intervene. White z\ Sanderson, 74 Minn. 118, 76 N. W. 1021, 42 L. R. A. 231, recognizes the right of a con- vention to delegate to a committee power to name candidates and certify them to the proper public officer in order that their names may be printed upon the official ballot. Hutchinson v. Brown, 122 Cal. 189, 54 Pac. 738,42 L. R. A. 232, recognizes the con- verse right to delegate to a committee power to withdraw candidates for the pur- pose of effecting a fusion. In Kearns v. How ley, 188 Pa. 116, 41 Atl. 273, 42 L. R. A. 235, an injunction against adding to or striking from a political party committee was refused on the ground that no property interests were involved, and that any irregularities could be corrected by the party itself. In State v. Poston, 58 Ohio St. 620, 51 N. E. 150, 42 L. R. A. 237, the statutory requirement that nominees of parties polling in the last preceding election less than one per cent of the total vote could be nominated only by petition was sustained. See also De Walt v. Bartley, 146 Pa. 529, 24 Atl. 185, 15 L. R. A. 771, sustaining requirement of three per cent ; State >. Black, 54 N. J. L. 446, 24 Atl. 489, 1021, 16 L. R. A. 769, five per cent. Statute prohibiting name of candidate nominated by two or more parties for same office from being entered more than once on the official ballot is valid. State v. Anderson, 100 Wis. 523, 76 N. W. 482,42 L. R. A. 239. Where the Secretary of State is required to arrange the party lists of candidates in the order of the average numbers of votes received by the candidates of the various parties in the preceding election, and in 900 CONSTITUTIONAL LIMITATIONS. [CH. XVII. by the constitution of the State are permitted to exercise the elec- that election two parties " fused " upon the entire list, the Secretary will be allowed to exercise his best judgment in determining the order of the party lists, and in the absence of fraud, prejudice, and partiality, the courts will not interfere witli his dis- cretion. Higgins v. Berg, 74 Minn. 11, 76 N. W. 788, 42 L. R. A. 245. Where pri- mary elections are regulated by law and conducted at public expense they are public elections, and the qualifications of any voter thereat must be those prescribed in the Constitution. Spier v. Baker, 120 Cal. 370,52 Pac. 659, 41 L. R. A. 196. In requir- ing an official ballot, the voter cannot be restricted to the candidates whose names are thereon printed. He must be allowed to vote for whom he pleases. State v. Dillon, 32 Fla. 645, 14 So. 383, 22 L. R. A. 124. Contra, State v. McElroy, 44 La. Ann. 796, 11 So. 133, 16 L. R. A. 278. An unauthorized vignette appearing upon all the ballots and printed thereon in the operation of printing the ballots is not a distinguishing mark. Lindstrom v. Bd. of Canvassers, 94 Mich. 467, 54 N. W. 280, 19 L. R A. 171. The State may make reasonable regulations concerning what names of candidates shall be printed upon the official ballot, e.g., that each candidate whose name is to be printed shall be nominated by a certain number of petitioners, or by a party having at the last preceding election a specified strength. State v. Black, 54 N. J. L. 446, 2.4 All. 489, 1021, 16 L. R. A. 769 ; Murphy v. Curry, 137 Cal. 479, 70 Pac. 461 ; Todd v. Comm'rs, 104 Mich. 474, 62 N. W. 564, 64 N. W. 496, 29 L. R. A. 330; State v. Bode, 55 Ohio, 224, 45 N. E. 195, 60 Am. St. 696, 34 L. R. A. 498 ; State r. Anderson, 100 Wis. 523, 76 N. W. 482, 42 L. R. A. 239 ; State v. Moore, Minn. , 92 N. W. 4. Courts will not go back of returns of authorities of the party as to who are its nominees. Moody v. Trimble, 22 Ky. L. 492, 58 S. W. 504 ; see also Davis v. Hambrick, 22 Ky. L. 815, 58 S. W. 779 ; also State . Moran, 24 Mont. 433, 03 Pac. 390; Addle v. Davenport, Idaho, , 62 Pac. 681 ; State v. Hogan, 24 Mont. 397, 62 Pac. 683. For other cases arising under Australian Ballot Laws, see Sims v. Daniels, 57 Kan. 552, 46 Pac. 952, 35 L. R. A. 146, partially overruled in Miller v. Clark, 62 Kan. 278, 62 Pac. 6t54 ; McDonald v. Hinton, 114 Cal. 484, 46 Pac. 870, 35 L. R. A. 152; Breidenthal v. Edwards, 57 Kan. 332, 46 Pac. 469, 34 L. R. A. 146; State v. Johnson, 18 Mont. 548, 46 Pac. 533, 34 L. R. A. 313; State v. Tooker, 18 Mont. 540, 46 Pac. 530, 34 L. R. A. 315; State r. Burdick, 6 Wyo. 448, 46 Pac. 854, 34 L. R. A. 845 ; Phelps v. Piper, 48 Neb. 724, 67 N. W. 755, 33 L. R. A. 53; Cole v. Tucker, 164 Mass. 486, 41 N. E. 681, 29 L. R. A. 668; Moyer v. Van De Vanter, 12 Wash. 377, 41 Pac. 60, 29 L. R. A. 670 ; Mansion v. Mclntosh, 58 Minn. 525, 60 N. W. 672, 28 L. R. A. 605; Stackpole v. Hallahan, 16 Mont. 40, 40 Pac. 80, 28 L. R. A. 502 ; Taylor v. Bleakley, 55 Kan. 1, 39 Pac. 1045, 28 L. R. A. 683 ; Re Con- tested Election, 165 Pa. 233, 30 Atl. 955, 27 L. R. A. 234 ; Boyd v. Mills, 53 Kan. 594, 37 Pac. 16, 25 L. R. A. 486; Ellis r. May, 99 Mich. 538, 58 N. W. 483, 25 L. R. A. 325 ; State v. Dillon, 32 Fla. 545, 14 So. 383, 22 L. R. A. 124 ; Sego v. Stoddard, 136 Ind. 297, 36 N. E. 204, 22 L. R. A. 468 ; Eaton v. Brown, 96 Cal. 371, 31 Pac. 250, 17 L. R. A. 697 ; Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 16 L. R. A. 754, and note; People v. Shaw, 133 N. Y. 493, 31 N. E. 512, 16 L. R. A. 606; De Walt v. Bartley, 146 Pa. 525, 529, 23 Atl. 448, 24 Atl. 185, 15 L. R, A. 771; Allen v. Glynn, 17 Col. 338, 29 Pac. 670, 15 L. R. A. 743; State v. Russell, 34 Neb. 116, 51 N. W. 465, 15 L. R. A. 740; Parvin r. Wimberg, 130 Ind. 561, 30 N. E. 790, 15 L. R. A. 775; People r. Bd. of Co. Canvassers, 129 N. Y. 395, 29 N. E. 327, 14 L. R. A. 624 ; Cook v. State, 90 Tenn. 407, 16 S. W. 471, 13 L. R. A. 183; Shields . Jacob, 88 Mich. 164, 60 N. W. 105, 13 L. R. A. 760; Rutledge v. Crawford, 91 Cal. 526, 27 Pac. 779, 13 L. R. A. 761, and note; Fisher v. Dudley, 74 Md. 242, 22 Atl. 2, 12 L. R. A. 586; Fields c. Osborne. 60 Conn. 544, 21 Atl. 1070, 12 L. R. A. 551 ; Detroit v. Rush, 82 Mich. 532, 46 N. W. 951, 10 L. R. A. 171, note to 10 L. R. A. 150; Price v. Lush, 10 Mont. 61, 24 Pac. 749, 9 L. R. A. 467 ; Re Ballot Act, 16 R. I. 766, 19 Atl. 656, 6 L. R. A. 773 ; Morris v. Bd. of Canvassers, 49 W. Va. 251, 38 S. E. 500; Nicholls v. Barrick, 27 Col. 432, 62 Pac. 202 ; Beckwith v. Winters, 28 Col. 96, 62 Pac. 835 ; Beckwith v. Rucker, 28 Col. 31, 62 Pac. 836 ; and several cases following in same report; State v. Falley, 8 N. D. 90, 76 N. W. 9960 CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 901 tive franchise. 1 The whole subject of the regulation of elections, including the prescribing of qualifications for suffrage, is left by the national Constitution to the several States, except as it is provided by that instrument that the electors for representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State legislature, 2 and as the fifteenth amendment forbids denying to citizens the right to vote on account of race, color, or previous condition of servitude. 3 Participation in the, elective franchise is a privilege rather than a right, and it is granted or denied on grounds of general policy ; the prevailing view being that it should be as general as possible consistent with the public safety. Aliens are generally excluded, 4 though in some States they are allowed to vote after residence for a specified period, provided they have declared their intention to become citizens in the manner prescribed by law. The fifteenth amendment, it will be seen, does not forbid denying the franchise to citizens except upon certain specified grounds, and it is matter of public history that its purpose was to prevent discriminations in this regard as against persons of African descent. Minors, who equally with adult persons are citizens, are still excluded, as are also women, 5 and sometimes persons who have been convicted of infamous crimes. 6 In some States laws will be found in existence 1 Ante, p. 57. See article by Dr. Spear, abrogate all provisions in State laws and in 16 Albany Law Journal, 272, in which, constitutions restricting the suffrage to among other things, the force and scope white persons. Neal v. Delaware, 103 of the new amendments to the federal U. S. 370. Constitution in their relation to suffrage 4 An unnaturalized Indian, who has are considered. Until recently the reg- surrendered his tribal relations, is not a 'ulation and control of all elections, in- citizen nor entitled to vote, though born eluding elections for members of Congress, in the United States and a resident of a and the punishment of offences against State. Elk v. Wilkins, 112 U. S. 94, election laws, has been left to the States 5 Sup. Ct. Rep. 41. exclusively. Congress, however, has 6 See Opinions of Justices, 62 Me. 596 ; undoubted authority to make such reg- Rohrbacher v. Mayor of Jackson, 51 Miss. ulations as shall seem needful to ensure a 735 ; Spencer v. Board of Registration, full and fair expression of opinion in the 1 MacArthur, 169; Van Valkenburg v. election of members of Congress, and Brown, 43 Cal. 43; Minor v. Happersett, . also to guard and protect all rights con- 21 Wall. 162; Bloomer v. Todd, 3 Wash, ferred by the recent amendments to the Ty. 599, 19 Pac. 135 ; QGougar v. Tim- federal Constitution. Ex parte Siebold, berlake, 148 Ind. 38, 46 N. E. 339, 37 100 U. S. 371 ; Ex parte Clarke, 100 U. S. L. R. A. 644 ; Coffin v. Thompson, 97 399; In re Coy, 127 U. S. 731, 8 Sup. Ct. Mich. 188, 56 N. W. 567, 21 L. K. A. Rep. 1263; United States v. Goldman, 662, and note.] But in some States they 3 Woods, 187. [The power of Congress may vote upon school matters only, over State elections is in Lackey v. Brown v. Phillips, 71 Wis. 239, 36 N. W. United States, 107 Fed. 114, 46 C. C. A. 242; State . Cones, 15 Neb. 444, 19 189, 53 L. R. A. 660, held to be dependent N. W. 682; Belles v. Burr, 76 Mich. 1, upon the fifteenth amendment alone.] 43 N. W. 24. 2 Art. 1, 2. e Story on Const. (4th ed.) 1972. 8 This amendment had the effect to 902 CONSTITUTIONAL LIMITATIONS. [CH. XVII. which, either generally or in particular cases, deny the right to vote to those persons who lack a specified property qualification, or who do not pay taxes, (a) In some States idiots and lunatics are also expressly excluded ; and it has been supposed that these unfortunate classes, by the common political law of England and of this country, were excluded with women, minors, and aliens from exercising the right of suffrage, even though not prohibited therefrom by any express constitutional or statutory provision. 1 Wherever the constitution has prescribed the qualifications of electors, they cannot be changed or added to by the legislature, 2 or otherwise than by an amendment of the constitution. One of the most common requirements is, that the party offer- ing to vote shall reside within the district which is to be affected 1 See Cushing's Legislative Assem- blies, 24 ; also 27. and notes referring to legislative cases ; McCrary, Law of Elections, 50, 73; Clark v. Robinson, 88 111. 498. Drunkenness is regarded as temporary insanity. Ibid. Idiots and insane persons are excluded in Alabama, Arkansas, California, Delaware, Florida, Iowa, Kansas, Louisiana, Maryland (pro- vided they are under guardianship as such), Minnesota, Nebraska, Nevada, New Jersey, Ohio, Oregon, Rhode Island, South Carolina, Virginia, West Virginia, and Wisconsin. Convicted felons are ex- cluded in Alabama, Arkansas, California, Connecticut, Delaware, Florida, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Ne- braska, Nevada, New Jersey, North Caro- lina, Oregon,' Rhode Island, Texas, Virginia, West Virginia, and Wisconsin. Persons under guardianship are excluded in Florida, Kansas, Maine, Massachu- setts, Minnesota, Rhode Island, and Wis- consin. Paupers are excluded in Delaware, Maine, Massachusetts (see Justices' Opinions, 124 Mass. 696), New Jersey, Rhode Island, and West Virginia. Persons kept in any poorhouse or other asylum at public expense are excluded in California, Colorado, Missouri, and South Carolina. Persons confined in public prisons are excluded in California, Colo- rado, Missouri, and South Carolina. Per- sons under interdiction are excluded in Louisiana; and persons excused from paying taxes at their own request, in New Hampshire. Capacity to read is required in Connecticut; and capacity to read and write, in Massachusetts. 2 See Green v. Shumway, 39 N. Y. 418 ; Brown v. Grover, 6 Bush, 1 ; Quinn v. State, 35 Ind. 485; Huber v. Reiley, 53 Pa. St. 112, ante, p. 99, note; People v. Canaday, 73 N. C. 198 ; State v. Tuttle, 63 Wis. 45, 9 N. W. 791. Compare State v. Neal, 42 Mo. 119. Where a disqualifi- cation to vote is made to depend upon the commission of crime, the election officers cannot be made the triers of the offence. Huber v. Reiley, 63 Pa. St. 112; State . Symonds, 69 Me. 161; Burkett r McCarty, 10 Bush, 758. It is not competent for the legislature to dis- criminate between voters and require that one class of them shall be taxpayers, while not making the same requirement as to the others. Lyman v. Martin, 2 Utah, 136. But voters at municipal elections may be required to pay taxes before voting. Buckner v. Gordon, 81 Ky. 665. Estate v. Dillon, 32 Fla. 545, 14 So. 383, 22 L. R. A. 124.] In Nevada every male citizen, except convicts and paupers, having the franchise, Mormons cannot be excluded by registration laws. State v. Findley, 20 Nev. 198, 19 Pac. 241. It is otherwise in the Territories. Murphy i;. Ramsey, 114 U. S. 43, 5 Sup. Ct Rep. 747; Innis v. Bolton, 2 Idaho, 407, 17 Pac. 264. (a) fJSee Frieszleben v. Shallcross, 9 Houst. (Del.) 1, 19 Atl. 576, 8 L. R. A. 337, and note ] CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 903 by the exercise of the right. If a State officer is to be chosen, the voter should be a resident of the State : and if a county, city, or township officer, he should reside within such county, city, or township. This is the general rule ; and for the more convenient determination of the right to vote, and to prevent fraud, It is now generally required that the elector shall only exercise within the municipality where he has his residence his right to participate in either local or general elections, (a) Requiring him to vote among his neighbors, by whom lie will be likely to be generally known, the opportunities for illegal or fraudulent voting will be less than if the voting were allowed to take place at a distance and among strangers. And wherever this is the requirement of the constitu- tion, any statute permitting voters to deposit their ballots else- where must necessarily be void. 1 A person's residence is the place of his domicile, or the place where his habitation is fixed without any present intention of removing therefrom. 2 The words " inhabitant," " citizen," and 1 Opinions of Judges, 30 Conn. 691; actual service to cast their votes where Hulseman v. Rems, 41 Pa. St. 396; they may happen to be stationed at the Chase v. Miller, 41 Pa. St. 403; Opin- time of voting. It may also be allowed ions of Judges, 44 N. H. 633 ; Bourland in Ohio. Lehman v. McBride, 15 Ohio, v. Hildretli, 26 Cal. Ifil ; People v. Blodg- N. 8. 573. ett, 13 Mich. 127; Opinions of Judges, 2 Putnam v. Johnson, 10 Mass. 488; 37 Vt. 665; Day v. Jones, 31 Cal. 261. Rue Hitrh's Casf , 2 Doug. (Mich.) 515; The case of Morrison v. Springer, 15 Fry's Election Case, 71 Pa. St. 302, 10 Iowa, 304. is not in harmony with those Am. Hep. 698 ; Church v. Rowell, 49 Me. above cited. So far as tlie election of 367; Littlefield v. Brooks, 50 Me. 476; representatives in Congress and electors Parsons v. Bangor, 61 Me. 457; Arnold v. of president nnd vice-president is con- Davis, 8 R. 1.341; Hannon v. Grizzard, cerned, the State constitutions cannot 89 N. C. 115; Dale v. Irwin, 78 111. 170; preclude the legislature from prescribing Clark v. Robinson, 88 111. 498; Sturgeon the " times, places, and manner of hold- v. Korte, 34 Ohio St. 625; Story, Confl. ing " the same, as allowed by the national Laws, 43. As to what residence is Constitution, art. 1, 4, and art. 2, 1, sufficient, see Kellogg v. Hickman, 12 and a statute permitting such election Col. 256, 21 Pac. 325; Kreitz v. Behrens- to be held out of the State would conse- meyer, 125 111. 141, 17 N. E. 232.; QLang- quently not be invalid. Opinions of Jus- hammer v. Munter, 80 Md. 518, 31 Atl. tices, 45 N. H. 595; Opinions of Judges, 300, 27 L. R. A. 330] That one should 37 Vt. 665. There are now constitutional vote where he eats, not where he lodges, provisions in New York, Michigan, Mis- if at different places, see Warren v. souri, Connecticut, Maryland, Kansas, Board of Registration, 72 Mich. 398, 40 Mississippi, Nevada, Rhode Island, and N. W. 653. Pennsylvania, which permit soldiers in (a) The mere fact that one lives upon a steamer does not give him a voting resi- dence at her home port, even though he has no voting residence elsewhere, and is unmarried. Howard v. Skinner, 87 Md. 556, 40 Atl. 379, 40 L. R. A. 753; Jones v. Skinner, 87 Md. 660, 40 Atl. 381, 40 L. R. A. 752. Residence is not changed by presence in and support at and by a state " soldiers' home." Wolcott v. Holcomb, 97 Mich. 361, 56 N. W. 837, 23 L. R. A. 215, and note on residence and attendance or presence at public institutions ; see also to same effect Powell v. Spackman, Idaho, , 65 Pac. SOS.] 904 CONSTITUTIONAL LIMITATIONS. [CH. XVII. "resident," as employed indifferent constitutions to define the qualifications of electors, mean substantially the same thing ; and one is an inhabitant, resident, or citizen at the place where he has his domicile or home. 1 Every person at all times must be consid- ered as having a domicile somewhere, and that which he has acquired at one place is considered as continuing until another is acquired at a different place. 2 It has been held that a student in an institution of learning, who has residence there for purposes of instruction, may vote at such place, provided he is emancipated from his father's family, and for the time has no home elsewhere. 3 1 Cushing's Law and Practice of Leg- islative Assemblies, 36; State v. Aid- rich, 14 R. I. 171. Where territory in which a voter has continuously resided up to the time of annexation to a munici- pality is annexed to or incorporated with it, his period of such residence is to be counted in determining his residential qualification for eligibility to office. Gib- son v. Wood, 105 Ky. 740, 49 S. W. 768, 43 L. R. A. 699.] 2 That it is not a necessary conse- quence of this doctrine that one must al- ways be entitled to vote somewhere, see Kreitz v. Behrensmeyer, 125 111. 141, 17 N. E. 232. 8 Putnam . Johnson, 10 Mass. 488 ; Lincoln v. Hapgood, 11 Mass. 350; Wil- braham v. Ludluw, 99 Mass. 587 ; Perry v. Reynolds, 63 Conn. 527, 3 Atl. 555. Compare Dale v. Irwin, 78 111. 170. A different conclusion is arrived at in Penn- sylvania. Fry's Election Case, 71 Pa. St. 302, 10 Am. Rep. 698. And in Iowa, Vanderpoel v. O'Hanlon, 63 Iowa, 246, 6 N. W. 119, 36 Am. Rep. 216. " The questions of residence, inhabitancy, or domicile, for although not in all re- spects precisely the same, they are nearly so, and depend much upon the same evi- dence, are attended with more diffi- culty than almost any other which are presented for adjudication. No exact definition can be given of domicile ; it depends upon no one fact or combina- tion of circumstances ; but, from the whole taken together, it must be deter- mined in each particular case. It is a maxim that every man must have a domicile somewhere, and also that he can have but one. Of course it fol- lows that his existing domicile contin- ues until he acquires another ; and vice versa, by acquiring a new domicile he re- linquishes his former one. From this view it is manifest that very slight cir- cumstances must often decide the ques- tion. It depends upon the preponderance of the evidence in favor of two or more places ; and it may often occur that the evidence of facts tending to establish the domicile in one place would be entirely conclusive, were it not for the existence of facts and circumstances of a stilt more conclusive and decisive character, which fix it beyond question in another. So, on the contrary, very slight circumstances may fix one's domicile, if not controlled by more conclusive facts fixing it in an- other place. If a seaman, without family or property, sails from the place of his nativity, which may be considered his domicile of origin, although he may re- turn only at long intervals, or even be absent many years, yet if he does not by some actual residence or other means ac- quire a domicile elsewhere, he retains his domicile of origin." Shaw, Ch. J., Thorn- dike v. City of Boston, 1 Met. 242, 245. And see Alston >. Newcomer, 42 Miss. 186; Johnson v. People, 94 III. 505. In Inhabitants of Abington v. Inhabitants of North Bridgewater, 23 Pick. 170, it ap- peared that a town line ran through the house occupied by a party, leaving a por- tion on one side sufficient to form a habi- tation, and a portion on the other not sufficient for that purpose. Held, that the domicile must be deemed to be on the side first mentioned. It was intimated also that where a house was thus divided, and the party slept habitually on one side, that circumstance should be re- garded as a preponderating one to fix his residence there, in the absence of other proof. And see Rex v. St. Olave's, 1 Strange, 51. By the constitutions of several of the CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 905 Temporary absence from one's home, with continuous intention to return, will not deprive one of his residence, even though it extend through a series of years. 1 Conditions to the Exercise of the Elective Franchise. While .it is true that the legislature cannot add to the constitu- tional qualifications of electors, it must nevertheless devolve upon that body to establish such regulations as will enable all persons entitled to the privilege to exercise it freely and securely, and exclude all who are not entitled from improper participation therein. For this purpose the times of holding elections, the manner of conducting them and of ascertaining the result, are prescribed, and heavy penalties are imposed upon those who shall vote illegally, or instigate others to do so, or who shall attempt to preclude a fair election or to falsify the result. The propriety, and indeed the necessity, of sucli regulations are undisputed. In some of the States it has also been regarded as important that lists of voters should be prepared before the day of election, in which should be registered the name of every person qualified to vote. Under such a regulation, the officers whose duty it is to administer the election laws are enabled to proceed with more deliberation in the discharge of their duties, and to avoid the haste and confusion that must attend the determination upon States, it is provided, in substance, that no person shall be deemed to have gained or lost a residence by reason of his pres- ence or absence, while employed in the service of the United States ; nor while a student in any seminary of learning ; nor while kept at any almshouse or asylum at public expense ; nor while confined in any public prison. See Constitutions of New York, Illinois, Indiana, Califor- nia, Michigan, Rhode Island, Minnesota, Missouri, Nevada, Oregon, and Wiscon- sin. A pauper inmate of a soldiers' home comes within such provision. Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. 444. In several of the other States there are pro- visions covering some of these cases, but not all. A provision that no person shall be deemed to have gained or lost a res- idence by reason of his presence or ab- sence in the service of the United States, does not preclude one from acquiring a residence in the place where, and in the time while, he is present in such service. People v. Holden, 28 Cal. 123; Mooar v. Harvey, 128 Mass. 219. If a man takes up his permanent abode at the place of an institution of learning, the fact of his entering it as a student will iiot preclude his acquiring a legal residence there : Sanders v. Getchell, 76 Me. 158; Pedigo v. Grimes, 113 Ind. 148, 13 N. E. 700; but if he is domiciled at the place for the purposes of instruction only, it is deemed proper and right that he should neither lose his former residence nor gain a new one in consequence thereof. Vanderpoel v. O'Hanlon, 53 Iowa, 246, 5 N. W. 119, 36 Am. Rep. 216. That persons residing upon lands within a State, but set apart for some national purpose, and subjected to the ex- clusive jurisdiction of the United States, are not voters, see Opinions of Judges, 1 Met. 580; Sinks v. Reese, 19 Ohio St. 306 ; McCrary, Law of Elections, 29. 1 llarbaugh v. Cicott, 33 Mich. 241 ; Fry's Election Case, 71 Pa. St. 302, 10 Am. Rep. 698; Dennis v. State, 17 Fla. 389; Wheat v. Smith, 50 Ark. 266, 7 S. W. 161. 906 CONSTITUTIONAL LIMITATIONS. [CH. XVII. election day of the various and sometimes difficult questions con- cerning the right of individuals to exercise this important fran- chise. Electors, also, by means of this registry, are notified in advance what persons claim the right to vote, and are enabled to make the necessary examination to determine whether the claim is well founded, and to exercise the right of challenge if satisfied any person registered is unqualified. When the constitution has established no such rule, and is entirely silent on the subject, it has sometimes been claimed that the statute requiring voters to be registered before the day of election, and excluding from the right all whose names do not appear upon the list, was unconsti- tutional and void, as adding another test to the qualifications of electors which the constitution has prescribed, and as having the effect, where electors are not registered, to exclude from voting persons who have an absolute right to that franchise by the fun- damental law. 1 This position, however, has not been generally accepted as sound by the courts. The provision for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised. 2 Such regulations must 1 See Page v. Allen, 68 Pa. St. 338. And compare Clark v. Robinson, 88 111. 498; Dells v. Kennedy, 49 Wis. 555, 6 N. W. 246, 381, 35 Am. Rep. 786; White v. Multnomah Co., 13 Greg. 317, 10 Pac. 484. In State v. Corner, 22 Neb. 265, 34 N. W. 499, it is said the voter has the right to prove himself an elector, register, and vote at any time before the polls close. The Supreme Court of Pennsyl- vania laid down a rule in conflict with these cases, in Patterson v. Barlow, 60 Pa. St. 54, which case is in harmony with those cited in the next note. 2 Capen v. Foster, 12 Pick. 485, 23 Am. Dec. 632 ; People v. Kopplekom, 16 Mich. 342; State v. Bond, 38 Mo. 425; State v. Hilmantel, 21 Wis. 566 ; State v. Baker, 38 Wis. 71 ; Byler v. Asher, 47 111. 101 ; Monroe v. Collins, 17 Ohio St. 665; Edmonds -. Banbury, 28 Iowa, 267, 4 Am. Rep. 177; Ensworth v. Albin, 46 Mo. 450 ; Auld v. Walton, 12 La. Ann. 129; In re Polling Lists, 13 R. I. 729; State v. Butts, 31 Kan. 637, 2 Pac. 618. As to the conclusiveness of the registry, see Hyde v. Brush, 34 Conn. 454 ; Keenan v. Cook, 12 R. I. 52. A law closing registration three weeks before the elec- tion has been upheld. People v. Hoff- man, 116 111. 587, 5 N. E. 596, 8 N. K. 788. Otherwise as to one closing it five days before : Daggett v, Hudson, 43 Ohio St. 648, 3 N. E. 538 ; and ten days before. State v. Corner, 22 Neb. 265, 34 N. W. 499. Registration may be required at a city election when it is not by State law. McMahon v. Savannah, 66 Ga. 217. See Com. v . McClelland, 83 Ky. 686. QVoter m.-iy be required to exhibit his poll-tax receipt, or make affidavit that he has paid the tax and lost or misplaced the receipt. State v. Old, 95 Tenn. 723, 34 S. W. 690, 31 L. R. A. 837. But a law attempting to invalidate ballots upon which the in- spectors have neglected to mark their initials is void where the constitution pro- vides that all persons having certain qualifications " shall be entitled to vote at all elections." Moyer v. Van De Van- ter, 12 Wash. 377, 41 Pac. CO, 29 L. R. A. 670. Where statute provides that upon voter's taking a specified oath " his vote shall be received," such provision is man- datory. Wolcott v. Holcomb, 97 Mich. 361, 66 N. W. 837, 23 L. R. A. 215. An unregistered voter may be required to make affidavit as to his qualifications, stating them in full. Cusick's Appeal, 136 Pa. 459, 20 Atl. 574, 10 L. R. A. 228. Requirements in registration law must be reasonable. Owensboro v. Hickman, 90 Ky. 629, 14 S. W. 688, 10 L. R. A. 224, and note. CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 907 always have been within the power of the legislature, unless for- bidden. Many resting upon the same principle are always pre- scribed, and have never been supposed to be open to objection. Although the constitution provides that all male citizens twenty- one years of age and upwards shall be entitled to vote, it would not be seriously contended that a statute which should require all such citizens to go to the established place for holding the polls, and there deposit their ballots, and not elsewhere, was a violation of the constitution, because prescribing an additional qualification, namely, the presence of the elector at the polls. All such reason- able regulations of the constitutional right which seem to the legislature important to the preservation of order in elections, to guard against fraud, undue influence, and oppression, and to pre- serve the purity of the ballot-box, are not only within the consti- tutional power of the legislature, but are commendable, and at least some of them absolutely essential. And where the law requires such a registry, and forbids the reception of votes from any persons not registered, an election in a township where no sucli registry has ever been made will be void, and cannot be sustained by making proof that none in fact but duly qualified electors have voted. It is no answer that such a rule may enable the registry officers, by neglecting their duty, to disfranchise the electors altogether; the remedy of the electors is by proceedings to compel the performance of the duty ; and the statute, being imperative and mandatory, cannot be disregarded. 1 The danger, however, of any such misconduct on the part of officers is com- paratively small, when the duty is entrusted to those who are chosen in the locality where the registry is to be made, and who are consequently immediately responsible to those who are in- terested in being registered. All regulations of the elective franchise, however, must be rea- sonable, uniform, and impartial ; they must not have for their 1 People v. Kopplekom, 16 Mich. 342; malities in a registry will not vitiate it, Zeiler v. Chapman, 64 Mo. 502 ; Nefzger and canvassers cannot reject votes be- v. Davenport, &c. R. R. Co., 36 Iowa, 642 ; cause of them. State v. Baker, 38 Wis. Chicago, &c. R. R. Co. v. Mallory, 101 71. Compare Barnes v. Supervisors, 51 III. 583. It has nevertheless been held Miss. 305; Newson v. Earnheart, 86 N. C. that if the ballots of unregistered voters 391 ; De Berry v. Nicholson, 102 N. C. are received, they should not be rejected 465, 9 S. E. 545. That a board of regis- in a contest. Dale v. Irwin, 78 111. 170; tration has judicial functions, see Fausler Kuykendall v. Barker, 89 111. 126. The v. Parsons, 6 W. Va. 486, 20 Am. Rep. law does not become unconstitutional 431. Such board may be civilly liable because of the fact that, by the neglect for wrongful and malicious refusal to of the officers to attend to the registry, register a person. Murphy v. Ramsey, voters may be disfranchised. Ibid. Ens- 114 U. S. 15, 5 Sup. Ct. Rep. 747. worth v. Albin, 46 Mo. 450. But infer- 908 CONSTITUTIONAL LIMITATIONS. [CII. XVII. purpose directly or indirectly to deny or abridge the constitu- tional right of citizens to vote, or unnecessarily to impede its exercise ; if they do, they must be declared void. 1 In some other cases preliminary action by the public authori- ties may be requisite before any legal election can be held. If an election is one which a municipality may hold or not at its option, and the proper municipal authority decides against holding it, it is evident that individual citizens must acquiesce, and that any votes which may be cast by them on the assumption of right must be altogether nugatory. 2 The same would be true of an election to be held after proclamation for that purpose, and which , must fail if no such proclamation has been made. 3 Where, how- i Capen v. Foster, 12 Pick. 485, 23 Am. Dec. 632; Monroe v. Collins, 17 Ohio St. 665. All male citizens resident in the State a year and the town six months being electors, an act is void which for- bids to a naturalized person the right to be registered within thirty days of natu- ralization. Kinneen v. Wells, 144 Mass. 497, 11 N. E. 916. Under the Constitu- tion of Oliio, the right of suffrage is guar- anteed to " white male citizens," and by a long series of decisions it was settled that persons having a preponderance of white blood were "white" within its meaning. It was also settled that judges of election were liable to an action for refusing to receive the vote of a qualified elector. A legislature unfriendly to the construction of the constitution above -stated passed an act which, while prescribing penalties against judges of election who should re- fuse to receive or sanction the rejection of a ballot from any person, knowing him to have the qualifications of an elector, concluded with a proviso that the act and the penalties thereto " shall not apply to clerks or judges of election for refusing to receive the votes of persons having a distinct and visible admixture of African blood, nor shall they be liable to dam- ages by reason of such rejection." Other provisions of the act plainly discriminated against the class of voters mentioned, and it was held to be clearly unreasonable, partial, calculated to subvert or impede the exercise of the right of suffrage by this class, and therefore void. Monroe v. Collins, supra. FJWhere a minor becomes qualified between the completion of the preliminary registration and the final re- view, if he has offered his name at the preliminary for conditional registration, he can compel registration of his name at the review. Barret v. Taylor, 85 Md. 173, 36 Atl. 708, 36 L. R. A. 129 ; see also Drake v. Drewry, 112 Ga. 308, 37 S. E. 432. Requirement that every voter who has been six months absent from the State since last voting in it shall register with county clerk his claim to be a legal voter before he will be permitted to vote again is void for unreasonableness. Brewer v. McClelland, 144 Ind. 423, 32 N. E. 209, 17 L. R. A. 845; Morris v. Powell, 125 Ind. 281, 25 N. E. 221, 9 L. R. A. 326. A law requiring registration in person, allowing but five days for regis- tration, and making no provision for sick- ness and unavoidable absence on those days is void for unreasonableness. At- torney-General a. Detroit, 78 Mich. 545, 44 N. W. 388, 7 L. R. A. 99, and note. Registration for last preceding general election may be made sufficient for a special election. Pickett v. Russell, 42 Fla. 116, 634, 28 So. 764.] 2 Opinions of Judges, 7 Mass. 623 ; Opinions of Judges, 15 Mass. 537. 8 People v. Porter, 6 Cal. 26; McKune v. Weller, 11 Cal. 49; People v. Martin. 12 Cal. 409; Jones i>. State, 1 Kan. 273; Barry v. Lauck, 5 Cold. 588 ; Stephens v. People, 89 111. 337. So if notice is given but not as the law requires : State r. Echols, 41 Kan. 1, 20 Pac. 523 ; or if it fails to specify time and place. Morgan v. Gloucester, 44 N. J. L. 137. But such informalities will not vitiate, if as many vote as usual. Wheat v. Smith, 50 Ark. 266, 7 S. W. 161. [But where no notice was given and only ninety-four out of one thousand two hundred voters vote CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 909 ever, both the time and the place of an election are prescribed by law, every voter has a right to take notice of the law, and to deposit his ballot at the time and place appointed, notwithstanding the officer, whose duty it is to give notice of the election, has failed in that duty. The notice to be thus given is only additional to that which the statute itself gives, and is prescribed for the purpose of greater publicity ; but the right to hold the election comes from the statute, and not from the official notice. It has therefore been frequently held that when a vacancy exists in an office, which the law requires shall be filled at the next general election, the time and place of which are fixed, and that notice of the general election shall also specify the vacancy to be filled, an election at that time and place to fill the vacancy will be valid, notwithstanding the notice is not given ; and such election can- not be defeated by showing that a small portion only of the electors were actually aware of the vacancy, or cast their votes to fill it. 1 But this would not be the case if either the time or the place were not fixed by law, so that notice became essential for that purpose. 2 for candidates for the particular office, and then by means of pasters on the official ballots, the election is void. Wil- son v. Brown, 22 Ky. L. 708, 58 S. W. 595J i People v. Cowles, 13 N. Y. 850 ; Peo- ple v. Brenahm, 3 Cal. 477 ; State v. Jones, 19 Ind. 356; People v. Hartwell, 12 Mich. 508; Dishon v. Smith, 10 Iowa, 212; State v. Orvis, 20 Wis. 235; State v. Goetze, 22 Wis. 363 ; State v. Skirving, 19 Neb. 497, 27 N. W. 723; [Adsit r. Sec. of State, 84 Mich. 420, 48 N. W. 31, 11 L. R. A. 534.] The case of Foster v. Scarff, 15 Ohio St. 532, would seem to be contra. A general election was to be held, at which by law an existing va- cancy in the office of judge of probate was required to be filled. The sheriff, however, omitted all mention of this office in his notice of election, and the voters generally were not aware that a vacancy was to be filled. Nominations were made for the other offices, but none for this, but a candidate presented him- self for whom less than a fourth of the voters taking part in the election cast ballots. It was held that the election to fill the vacancy was void. QWhen gen- eral election law requires all elections to be held at places specified or described therein, places need not be specified in a notice of election to pass upon question of issuing county bonds. Packwood v. Kittitas County, 15 Wash. 88, 45 Pac. 640, 33 L. R. A. 673.] 2 State v. Young, 4 Iowa, 561. An act had been pnssed for the incorporation of the city of Washington, and by its terms it was to be submitted to the peo- ple on the 16th of the following Febru- ary, for their acceptance or rejection, at an election to be called and holden in the same manner as township elections under the general law. The time of notice for the regular township elections was, by law, to be determined by the trustees, but for the first township meeting fifteen days' notice was made requisite. An elec- tion was holden, assumed to be under the act in question ; but no notice was given of it, except by the circulation, on the morning of the election, of an extra news- paper containing a notice that an election would be held on that day at a specified place. It was held that the election was void. The act contemplated some notice before any legal vote could be taken, and that which was given could not be con- sidered any notice at all. This case dif- fers from all of those above cited, where vacancies were to be filled at a general election, and where the law itself would give to the electors all the information 910 CONSTITUTIONAL LIMITATIONS. [CH. XVII. The Manner of Exercising the Right. The mode of voting in this country, at all general elections, is almost universally by ballot. 1 " A ballot may be defined to be a piece of paper or other suitable material, with the name written or printed upon it of the person to be voted for ; and where the suffrages are given in this form, each of the electors in person deposits such a vote in the box, or other receptacle provided for the purpose, and kept by the proper officers.'' 2 The distinguish- ing feature of this mode of voting is, that every voter is thus enabled to secure and preserve the most complete and inviolable secrecy in regard to the persons for whom he votes, and thus escape the influences which, under the system of oral suffrages, may be brought to bear upon him with a view to overbear and intimidate, and thus prevent the real expression of public sentiment. 3 which was requisite. In this case, al- though the time was fixed, the place was not ; and, if a notice thus circulated on the morning of election could be held sufficient, it might well happen that the electors generally would fail to be in- formed, so that their right to vote might be exercised. See also Barry r. Lauck, 5 Cold. 588; Secord v. Foutch, 44 Mich. 89, 6 N. W. 110. That where the law provides for holding an election and one is duly called, equity has no authority to enjoin it, see Walton v. Develing, 61 111. 201. 1 The ballot was also adopted in Eng- land in 1872. In municipal elections voting by ballot is lawful, but not so, as to illiterates, a provision requiring the voter to indicate by a mark the candidates he wishes to vote for, as it is contrary to the guaranty that all elections shall be free and equal. Rogers v. Jacob, 88 Ky. 602, 11 S. W. 613. fJUse of voting machine sufficiently satisfies requirement of ballot. Opinion of Justices, 19 R. I. 729, 36 Atl. 716, 86 L. R. A. 547 ; Re House Bill No. 1291, 178 Mass. 605, 60 N. E. 129, 54 L. R. A. 430, but see dissenting opinions in both cases for forcible objections.] 2 Gush. Leg. Assemb. 103. 8 " In this country, and indeed in every country where officers are elective, differ- ent modes have been adopted for the elec- tors to signify their choice. The most common modes have been either by voting viva voce, that is, by the elector openly naming the person he designates for the office, or by ballot, which is depositing in a box provided for the purpose a paper on which is the name of the person he intends for the office. The principal object of this last mode is to enable the elector to express his opinion secretly, without being subject to be oveniwed, or to any ill-will or persecution ou account of his vote for either of the candidates who may be before the public. The method of voting by tablets in Rome was an example of this manner of voting. There certain officers appointed for that purpose, called Diribitores, delivered to each voter as many tablets as there were candidates, one of whose nnmes was written upon every tablet. The voter put into a chest prepared for that pur- pose which of these tablets he pleased, and they were afterwards taken out and counted. Cicero defines tablets to be little billets, in which the people brought their suffrages. The clause in the con- stitution directing the election of the several State officers was undoubtedly intended to provide that the election should be made by this mode of voting to the exclusion of any other. In this mode the freemen can individually ex- press their choice without being under the necessity of publicly declaring the object of tla-ir choice; their collective voice can be easily ascertained, and the evidence of it transmitted to the place CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 911 111 order to secure as perfectly as possible the benefits antici- pated from this system, statutes have been passed, in some of the States, which prohibit ballots being received or counted unless the same are written or printed upon white paper, without any marks or figures thereon intended to distinguish one ballot from another. 1 These statutes are simply declaratory of a constitutional where their votes are to be counted, and tiie result declared witli as little incon- venience as possible." Temple v. Mead, 4 Vt. 535, 541. In this case it was held that a printed ballot was within the mean- ing of the constitution which required all ballots for certain State officers to be " fairly written." To the same effect is Henshaw o. Foster, 9 Pick. 312. FJV court has no power to require ballots voted at an election to be later submitted to the inspection of the grand jury. Ex pnrte Arnold, 128 Mo. 256, 30 S. W. 768, 1036, 33 L. R. A. 386 ; but see note thereto in L. R. A. upon power of courts to com- pel submission of ballot boxes to examina- tion for other purposes than election contests, citing cases contra under sub- stantially similar constitutional provi- sions, notably People v. Londoner, 13 Col. 303, 22 Pac. 764, 6 L. R. A. 444. j l See People v. Kilduff, 15 111. 492. In this case it was held that the common lines on ruled paper did not render the ballots void. Otherwise as to dotted lines under the name of an office, for which no candidate is named. Steele v. Calhoun, 61 Miss. 556. See also Druliner v. State, 20 Ind. 308, in which it was de- cided that a caption to the ticket folded inside was unobjectionable. To the same effect is Millholland v. Bryant, 39 Ind. 363. A method different from the usual one of printing the names of offices will not avoid the ballot. Coffey v. Edmonds, 58 Cal. 521. See also Owens v. State, 04 Tex. 500. As to what headlines are de- signed to mislead within a prohibition of such, see Shields v. McGregor, 91 Mo. 634, 4 S. W. 266 ; Williams v. State, 69 Tex. 3^)8, 6 S. W. 845. A ballot ought not to be rejected because it differs from the regulations prescribed by the code as to size, paper, type, &c., or because the office of sheriff is designated " sheriff and collector ; " the sheriff being ex officlo collector by law. State v. Watson, 9 Mo. App. 5'J3 ; Kirk v. Rhoads, 46 Cal. 398. Making the ticket diamond shaped will not avoid it : State v. Phillips, 63 Tex. 390; nor will attaching slips to it. Quinn v. Markoe, 37 Minn. 439, 85 N. W. 263. ^Contra, under the Australian Ballot Law, Fletcher r. Wall, 172 III. 426, 50 N. E. 230, 40 L. R. A. 617.] The presid- ing officers of the election are the sole judges of what is a " distinguishing mark " on a ballot, where such a mark is forbid- den; and ballots which they have re- ceived and counted cannot be rejected afterwards by the Governor and Council. Opinions of Judges, 45 Me. 602. In Colorado it is held that, if voted in good faith, a ticket with such mark mint be counted. Kellogg v. Hickman, 12 Col. 256, 21 Pac. 325. A requirement that tliat there shall be a space of one-fifth of an inch between names of candidates is mandatory, and avoids the whole ticket if disobeyed. Perkins v. Carraway, 59 Miss. 222. [[That statutory requirements concerning ballots in elections held for purpose of passing upon proposed munic- ipal bond issues must be strictly ob- served, se Murphy v. San Luis Obispo, 119 Cal. 624, 51 Pac.. 1085, 39 L. R. A. 444. Omission on part of officer in charge of ballot-box to tear off the strips bearing the numbers of the ballots before depositing them in the box does not in- validate them. Buckncr v. Lynip, 22 Nev. 426, 41 Pac. 762, 30 L. R. A. 354. For a case involving a variety of marks upon ballots, some of which were held to invalidate the ballots and others not, see Parker v. Orr, 158 111. 609, 41 N. E. 1002, 30 L. R. A. 227 ; also Tebbe v. Smith, 108 Cal. 101, 41 Pac. 454, 29 L. R. A. 673 ; Dejmis v. Caughlin, 22 Nev. 447, 41 Pac. 768, 29 L. R. A. 731 ; Sego v. Stoddard, 136 Ind. 207, 36 N. E. 204, 22 L. R. A. 468. Where through mistake of officers of election the colored sample ballots are used instead of the white ones prescribed by law, the error is harmless, as nil voters used the colored ballots and secrecy is not violated. Boyd v. Mills, 53 Kan. 594, 37 Pac. 16, 25 L. R. A. 486.] 912 CONSTITUTIONAL LIMITATIONS. [CH. XVII. principle that inheres in the system of voting by ballot, and which ought to be inviolable whether declared or not. In the absence of such a statute, all devices by which party managers are en- abled to distinguish ballots in the hand of the voter, and thus determine whether he is voting for or against them, are opposed to the spirit of the Constitution, inasmuch as they tend to defeat the design for which voting by ballot is established, and, though they may not render an election void, they are exceedingly repre- hensible and ought to be discountenanced by all good citizens. The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases, and that no one is to have the right, or be in position, to question his independent action, either then or at any subsequent time. 1 The courts have held that a voter, even in case of a contested election, cannot be compelled to disclose for whom he voted ; and for the same reason we think others who may accidentally, or by trick or artifice, have acquired knowledge on the subject should not be allowed to testify to such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it ; 2 his ballot is absolutely privileged ; and to allow evidence 1 " The right to vote in this manner liams v. Stein, 38 Ind. 90, the Supreme has usually been considered an important Court of Indiana declared to be void the and valuable safeguard of the imlepen- following enactment: "It shall be the dence of the humble citizen against the duty of the inspector of any election held influence which wealth and station might in this State, on receiving the ballot of any be supposed to exercise. This object voter, to have the same numbered with would be accomplished but very imper- figures, on the outside or back thereof, to fectly if the privacy supposed to be se- correspond with the number placed op- cured was limited to the moment of posite the name of such voter on the poll depositing the ballot. The spirit of the lists kept by the clerks of said election." system requires that the elector should Pettit, J., delivering the opinion of the be secured then and at all times there- court, after quoting several authorities, after against reproach or animadversion, among others Commonwealth v. Woelper, or any other prejudice, on account of 3 S. & R. 29 ; People v. Pease, 27 N. Y. having voted according to his own un- 45; People v. Cicott, 16 Mich. 283; Tern- biassed judgment; and that security is pie v. Mead, 4 Vt. 535; and the text made to consist in shutting up within the above, says : " It is believed that these privacy of his own mind all knowledge authorities establish, beyond doubt, that of the manner in which he has bestowed the ballot implies absolute and inviolable his suffrage." Per Denio, Ch. J., in Peo- secrecy, and that the principle is founded pie v. Pease, 27 N. Y. 45, 81. in the highest considerations of public 2 " The ballot," says Cicero, " is dear policy. When our present constitution to the people, for it uncovers men's faces, was framed, voting by ballot was in vogue v and conceals their thoughts. It gives in nearly every State in the Union. That them the opportunity of doing what they mode of voting had been known and un- like, and of promising all that they are derstood for centuries. The term " ballot," asked." Speech in defence of Plaucius, as designating a mode of election, was Forsyth's Cicero, Vol. I. p. 839. In Wil- then well ascertained and clearly defined. CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 913 of its contents when he has not waived the privilege is to en- courage trickery and fraud, and would in effect establish this remarkable anomaly, that, while the law from motives of public policy establishes the secret ballot with a view to conceal the elector's action, it at the same time encourages a system of espionage, by means of which the veil of secrecy may be pene- trated and the voter's action disclosed to the public. 1 The eminent framers of the constitution certainly employed this term with a full knowledge of its meaning. Many of the most distinguished members of the con- stitutional convention of 1850 were mem- bers of the legislature of 1852, the first that met under the present constitution. That they regarded the ballot system as securing inviolable secrecy is clearly shown by the following law, which they then helped to enact : ' If any judge, in- spector, clerk, or other officer of an elec- tion, shall open or mark, by folding or otherwise, any ticket presented by sucli elector at such election, or attempt to find out the names thereon, or suffer the same to be done by any other person, before such ticket is deposited in the ballot-box, he shall be fined in any sum not exceed- ing one hundred dollars.' 2 G. & H. 473, sec. 60. If the constitution secures to the voter, in popular elections, the protection and immunity of secrecy, there can be no doubt that section 2 of the act of 1869, which authorized the inspector to number ballots, is clearly in conflict with it and is void. I am not unmindful of the rule that all doubts are to be solved in favor of the constitutionality of legislative en- actments. This rule is well established, and is founded in the highest wisdom. But my convictions are clear that our constitution was intended to, and does, secure the absolute secrecy of a ballot, and that the act in question, which directs the numbering of tickets, to correspond with the numbers opposite the names of the electors on the poll lists, is in palpable conflict not only with the spirit, but with the substance, of the constitutional pro- vision. This act was intended to, and does, clearly identify every man's ticket, and renders it easy to ascertain exactly how any particular person voted. That secrecy which is esteemed by all authority to be essential to the free exercise of suf- frage is as much violated by this law as if it had declared that the election should 58 be viva voce." A like ruling has been made in Minnesota. Brisbin v. Cleary, 26 Minn. 107, 1 N. W. 825. In several States, however, this numbering is re- quired. See Hodge v. Linn, 100 111. 397. QAnd in Slay maker v. Phillips, 5 Wyo. 453, 40 Pac. 971, 42 Pac. 1049, 47 L. R. A. 842, it was held that the requirement that every ballot be offi- cially stamped upon the back thereof and signed manually by one of the judges of election is not an undue restriction upon the right of suffrage, even though the failure of the judges of election to perform their duty in this regard makes the ballots void. Upon marking official ballot, see a valuable note to 47 L. R. A. 806, in which many cases arising under the " Australian " ballot laws of the several States are collected. Where the voter votes for a person whose name is not printed on the ballot, the addition of the party designation to the written name, after the manner of the printed names and designations, will not be con- sidered a distinguishing mark in the absence of proof. Jennings v. Brown, 114 Cal. 307, 46 Pa. 77, 34 L. R. A. 45.] 1 See this subject fully considered in People v. Cicott, 16 Mich. 283. And see also State v. Hilmantel, 23 Wis. 422; Brewer v. Weakley, 2 Overt. 99, 5 Am. Dec. 656. A very loose system pre- vails in the contests over legislative elec- tions, and it has been held that when a voter refuses to disclose for whom he voted, evidence is admissible of the gen- eral reputation of the political character of the voter, and as to the party to which he belonged at the time of the election. Cong. Globe, XVI. App. 456. This is assuming that the voter adheres strictly to party, and always votes the "straight ticket ; " an assumption which may not be a very violent one in the majority of cases, but which is scarcely creditable to the manly independence and self-reliance of any free people; and however strongly 914 CONSTITUTIONAL LIMITATIONS. [CH. XVII. Every ballot should be complete in itself, and ought not to require extrinsic evidence to enable the election officer to deter- mine the voter's intention. Perfect certainty, however, is not required in these cases. It is sufficient if an examination leaves no reasonable doubt upon the intention, and technical accuracy is never required in any case. The cardinal rule is to give effect to the intention of the voter, whenever it is not left in uncertainty j 1 but if an ambiguity appears upon its face, the elector cannot be received as a witness to make it good by testifying for whom or for what office he intended to vote. 2 disposed legislative bodies may be to act upon it, we are not prepared to see any such rule of evidence adopted by the courts. If a voter chooses voluntarily to exhibit his ballot publicly, perhaps there is no reason why those to whom it was shown should not testify to its contents ; but in other cases the knowledge of its contents is his own exclusive property, and he can neither be compelled to part with it, nor, as we think, is any one else who accidentally or surreptitiously be- comes possessed of it, or to whom the ballot has been shown with a view to in- formation, advice, or alteration, at liberty to make the disclosure. Such third per- son might be guilty of no legal offence if he should do so ; but he is certainly in- vading the constitutional privileges of his neighbor, and we are aware of no sound principle of law which will justify a court in compelling or even permitting liim to testify to what he has seen. And as the law does not compel a voter to testify, " surely it cannot be so inconsistent with itself as to authorize a judicial inquiry upon a particular subject, and at the same time industriously provide for the concealment of the only material facts upon which the results of such an inquiry must depend." Per Denio, Ch. J., in Peo- ple v. Pease, 27 N. Y. 45, 81. It was held iii People v. Cicott, 16 Mich. 283, that until it was distinctly shown that the elector waived his privilege of secrecy, any evidence as to the charcter or con- tents of his ballot was inadmissible. It was also held that where a voter's quali- fication was in question, but his want of right to vote was not conceded, the privi- lege was and must be the same ; as other- wise any person's ballot might be inquired into by simply asserting his want of quali- fication. In State v. Olin, 23 Wis. 319, it was decided that where persons who had voted at an election had declined to tes- tify concerning their qualifications, and how they had voted, it was competent to prove their declarations that they were unnaturalized foreigners, and had voted a particular way. Compare State v. Hilmantel, 23 Wis. 422. In People v. Thacher, 65 N. Y. 525, the evidence of voters as to how they voted was received, and as they did not object to giving it, it was held proper. See on this subject McCrary's Law of Elections, 194, 195. fjThe public are interested in preserving the secrecy of the ballot in order to make bribery ineffective, and a statutory re- quirement that before the voter can take any person into the booth with him to aid him in making out his ballot, he shall swear that he is unable to read English, is mandatory. Ellis v. May, 99 Mich. 638, 68 N. W. 483, 25 L. R. A. 325.] 1 People v. Matteson, 17 111. 167 ; Peo- ple v. Cook, 8 N. Y. 67 ; State v. Elwood, 12 Wis. 551 ; People v. Bates, 11 Mich. 362; Newton v. Newell, 26 Minn. 529, 6 N. W. 346. 2 People r. Seaman, 5 Denio, 409. The mental purpose of an elector is not provable : it must be determined by his acts. People v. Saxton, 22 N. Y. 309 ; Beardstown v. Virginia, 76 111. 34. But see McKinnon v. People, 110 111. 306; Kreitz v. Behrensmeyer, 125 111. 141, 17 N. E. 232, 24 L. R. A. 59. And where the intent is to be gathered from the ballot, it is a question of law, and can- not be submitted to the jury as one of fact. People i\ McManus, 34 Barb. 620. " In canvassing votes of electors their intentions must be ascertained from their ballots, which must be counted to accord with such intentions. If the ballots ex- press such intentions beyond reasonable CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 915 The ballot in no case should contain more names than are authorized to be voted for, for any particular office, at that elec- tion ; and, if it should, it must be rejected for the obvious impos- sibility of the canvassing officers choosing from among the names on the ballot, and applying the ballot to some to the exclusion of others. The choice must be made by the elector himself, and be expressed by the ballot. Accordingly, where only one supervisor was to be chosen, and a ballot was deposited having upon it the names of two persons for that office, it was held that it must be rejected for ambiguity. 1 It has been decided, however, that if a voter shall write a name upon a printed ballot, in connection with the title to an office, this is such a designation of the name written for that office as sufficiently to demonstrate his intention, even though he omit to strike off the printed name of the opposing candidate. The writing in such a case, it is held, ought to pre- vail as the highest evidence of the voter's intention, arid the failure to strike off the printed name will be regarded as an accidental oversight. 2 doubt, it is sufficient, without regard to technical inaccuracies, or the form adopted by the voter to express his in- tentions. Of course the language of a ballot is to be construed in the light of all facts connected with the election ; thus, the office to be filled, the names of the candidates voted for, or the subject contemplated in the proposition submitted to the electors, and the like, may be con- sidered to aid in discovering the inten- tions of the voter." Beck, J., in Hawes v. Miller, 66 Iowa, 395, 397, 9 N. W. 307.' See Railroad Co. v. Bearss, 39 Ind. 598. If a voter marks out the name of a can- didate for a certain office and writes opposite it the name of another person, the vote must be counted for the latter for that office ; though in fact he is a candidate, not for it, but for some other office. The intention of the voter must be ascertained from the face of the bal- lot. Fenton v. Scott, 17 Oreg. 189, 20 Pac. 95. 1 People v. Seaman, 5 Denio, 409. See also Attorney-General v. Ely, 4 VVis. 420 ; People v. Loomis, 8 Wend. 396 ; People v. Cook, 14 Barb. 259, and 8 N. Y. 67 ; State v. Griffey, 5 Neb. 161. Such a vote, however, could not be rejected as to candidates for other offices regularly named upon the ballot; it would be void only as to the particular office for which the duplicate ballot was cast. Attorney- General v. Ely, 4 Wis. 420 ; Perkins v. Carraway, 59 Miss. 222. If the name of a candidate for an office is given more than once, it is proper to count it as one ballot, instead of rejecting it as illegally thrown. People v. Holden, 28 Cal. 123 ; State v. Pierce, 35 Wis. 93. 2 People v. Saxton, 22 N. Y. 309; Brown v. McCollum, 76 Iowa, 479, 41 N. W. 197. This ruling suggests this query : Suppose at an election where printed slips containing the names of can- didates, with a designation of the office, are supplied to voters, to be pasted over the names of opposing candidates, as is very common, a ballot should be found in the box containing the names of a candidate for one office, say the county clerk, with a designation of the office pasted over the name of a candi- date for some other office, s;iy coroner ; so that the ballot would contain the names of two persons for county clerk, and of none for coroner. In such a case, is the slip the highest evidence of the inten- tion of the voter as to who should receive his suffrage for county clerk, and must it be counted for that office ? And if so, then does not the ballot also show the in- tention of the elector to cast his vote for the person for coroner whose name is thus accidentally pasted over, and 916 CONSTITUTIONAL LIMITATIONS. [CH. XVII. The name on the ballot should be clearly expressed, and ought to be given fully. Errors in spelling, however, will not defeat the ballot, if the sound is the same ; 1 nor abbreviations, 2 if such a.s are in common use and generally understood, so that there can be no reasonable doubt of the intent. And it would seem that where a ballot is cast which contains only the initials of the Christian name of the candidate, it ought to be sufficient, as it designates the person voted for with the same certainty which is commonly met with in contracts and other private writings, and the intention of the voter cannot reasonably be open to any doubt. 3 should it not be counted for that person ? The case of People v. Saxton would seem to be opposed to People v. Seaman, 5 Denio, 409, where the court refused to allow evidence to be given to explain the ambiguity occasioned by the one name being placed upon the ticket, without the other being erased. " The intention of the elector cannot be thus inquired into, when it is opposed or hostile to the paper ballot which he has deposited in the bal- lot-box. We might with the same pro- priety permit it to be proved that he intended to vote for one man, when his ballot was cast for another ; a species of proof not to be tolerated." Per Whittle- set/, J. See also Newton v. Newell, 26 Minn. 529, 6 N. W. 346. The case of People v. Cicott, 16 Mich. 283, is also op- posed to People v. Saxton. In the Michi- gan case, a slip for the office of sheriff was pasted over the name of the candi- date for another county office, so that the ballot contained the names of two candi- dates for sheriff. It was argued that the slip should be counted as the best evi- dence of the voter's intention ; but the court held that the ballot could be counted for neither candidate, because of its am- biguity. And a like rule is laid down as to a provision in the Illinois Constitution which requires that, if more persons are designated for any office than there are candidates to be elected, such part of the ticket shall not be counted for either. This provision is obligatory where only one name is printed on the ticket, and it remains unerased and another is written in. Kreitz v. Behrensmeyer, 125 111. 141, 17 N. E. 232, 24 L. R. A. "69. 1 People v. May worm, 5 Mich. 146 ; Attorney-General v. Ely, 4 Wis. 420; Gumm v. Hubbard, 97 Mo. 311, 11 S. W. 61 ; Kreitz v. Behrensmeyer, 125 111. 141, 17 N. E. 232, 24 L. R. A. 59. 2 People v. Ferguson, 8 Cow. 102. See also, upon this subject, People v. Cook, 14 Barb. 259, and 8 N. Y. 67 ; and People v. Tisdale, 1 Doug. (Mich.) 59. 3 In People v. Ferguson, 8 Cow. 102, it was held that, on the trial of a con- tested election case before a jury, ballots cast for H. F. Yates should be counted for Henry F. Yates, if, under the circum- stances, the jury were of the opinion they were intended for him ; and to arrive at that intention, it was competent to prove that he generally signed his name H. F. Yates ; that he had before held the same office for which these votes were cast, and was then a candidate again ; that the peo- ple generally would apply the abbrevia- tion to him, and that no other person was known in the county to whom it would apply. This ruling was followed in Peo- ple v. Seaman, 5 Denio, 409, and in People t-. Cook, 14 Barb. 259, and 8 N. Y. 67. The courts also held, in these cases, that the elector voting the defective ballot might give evidence to enable the jury to apply it, and might testify that he intended it for the candidate the initials of whose name he had given. In Attorney-General v. Ely, 4 Wis. 420, 429, a rule somewhat different was laid down. In that case, Matthew H. Carpenter was candidate for the office of prosecuting attorney ; and besides the perfect ballots there were others cast for " D. M. Carpenter," " M. D. Carpenter," " M. T. Carpenter," and " Carpenter." The jury found that there was no lawyer in the county by the name of D. M. Carpenter, M. D. Carpen- ter, M. T. Carpenter, or whose surname was Carpenter, except the relator, Mat- thew H. Carpenter ; that the relator was CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 917 As the law knows only one Christian name, the giving of an ini- tial to a middle name when the party has none, or the giving of u a practising attorney of the county, and eligible to the office, and that the votes above mentioned were all given and in- tended by the electors for the relator. The court say : " How was the intention of the voter to be ascertained 1 By reading the name on the ballot, and as- certaining who was meant and intended by that name ? Is no evidence admissible to show who was intended to be voted for under the various appellations, except such evidence as is contained in the bal- lot itself? Or may you gather the inten- tion of the voter from the ballot, explained by the surrounding circumstances, from facts of a general public nature connected with the election and the different can- didates, which may aid you in coming to the right conclusion 1 These facts and circumstances might, perhaps, be adduced .so clear and strong as to lead irresistibly to the inference that a vote given for Car- penter was intended to be cast for Mat- thew H. Carpenter. A contract may be read by the light of the surrounding cir- cumstances, not to contradict it, but in order more perfectly to understand the intent and meaning of the parties who made it. By analogous principles, we think that these facts, and others of like nature connected with the election, could be given in evidence, for the purpose of aiding the jury in determining who was intended to be voted for. In New York, courts have gone even farther than this, and held, that not only facts of public notoriety might be given in evidence to show the intention of the elector, but that the elector who cast the abbreviated bal- lot may be sworn as to who was intended by it. People v. Ferguson, 8 Cow. 102. But this is pushing the doctrine to a great extent; further, we think, than considera- tion of public policy and the well-being of society will warrant ; and to restrict the rule, and say that the jury must deter- mine from an inspection of the ballot it- self, from the letters upon it, aside from all extraneous facts, who was intended to be designated by the ballot, is establish- ing a principle unnecessarily cautious and limited. In the present case, the jury, from the evidence before them, found that the votes [above described] were, when given and cast, intended, by the electors who gave and cast the same re- spectively, to be given and cast for Mat- thew H. Carpenter, the relator. Such being the case, it clearly follows that they should be counted for him." See also State v. Elwood, 12 Wis. 651 ; Peo- ple v. Pease, 27 N. Y. 45, 84, per JUenio, Ch J. ; Talkington v. Turner, 71 111. 234 ; Clark v. Robinson, 88 111. 498; Kreitz v. Belirensmeyer, 125 III. 141, 17 N. E. 232, 24 L. R. A. 59 ; State v. Williams, 95 Mo. 159, 8 S. W. 415; State v. Gates, 43 Conn. 533. In Wimmer v. Eaton, 7'2 Iowa, 374, 34 N. W. 170; ballots for F. W. were counted for E. W., who was a regular candidate, there being no one eligible or running named F. W. In Opinions of Judges, 38 Me. 559, it was held that votes could not be counted by the canvassers for a person of a dif- ferent name from that expressed by the ballot, even though the only difference consisted in the initial to the middle name. See also Opinions of Justices, 64 Me. 588. And in People v. Tisdale, 1 Doug. (Mich.) 59, followed in People v. Higgins, 3 Mich. 233, it was held that no extrinsic evidence was admissible on a trial in court in explanation or support of the ballot ; and that, unless it showed upon its face for whom it was designed, it must be rejected. And it was also held, that a ballot for " J. A. Dyer" did not show, upon its face, that it was in- tended for the candidate James A. Dyer, and therefore could not be counted with the ballots cast for him by his full name. This rule is convenient of application, but it probably defeats the intention of the electors in every case to which it is applied, where the rejected votes could influence the result, an intention, too, which we think is so apparent on the bal- lot itself, that no person would be in real doubt concerning it. In People t?. Pease, 27 N. Y. 45, 64, in which Moses M. Smith was a candidate for country treasurer, Sel- den, J., says : "According to well-settled rules, the board of canvassers erred in re- fusing to allow to the relator the nineteen votes given for Moses Smitli and M. M. Smith; " and although we think this doc- trine correct, the cases he cites in support 918 CONSTITUTIONAL LIMITATIONS. [OH. XVII. wrong initial, will not render the ballot nugatory ; l nor will a failure to give the addition to a name such as " Junior " render it void, as that is a mere matter of description, not con- stituting a part of the name, and if given erroneously may be treated as surplusage. 2 But where the name upon the ballot is of it (8 Cow. 102, and 5Denio,409) would only warrant a jury, not the canvassers, in allowing them ; or, at least, those cast for M. M. Smith. The case of People v. Tisdale was again followed in People v. Cicott, 16 Mich. 283 ; the majority of the court, however, expressing the opinion that it was erroneous in principle, but that it had been too long, (twenty-five years), the settled law of the State to be disturbed, unless by the legislature. In Massachusetts, it is held that votes cast for " L. Clark " cannot be counted by the canvassers for Leonard Clark, though it is intimated that on a trial in court it might be shown that he was entitled to them. Clark v. County Examiners, 126 Mass. 282. 1 People v. Cook, 14 Barb. 259, 8 N. Y. 67; State v. Gates, 43 Conn. 633. But see Opinions of Judges, 38 Me. 597. 2 People v. Cook, 14 Barb. 259 and 8 N. Y. 67. In this case, the jury found, as matter of fac*, that ballots given for Benjamin Welch were intended for Ben- jamin Welch, Jr. ; and the court held that, as a matter of law, they should have been counted for him. It was not de- cided, however, that the canvassers were at liberty to allow the votes to Benjamin Welch, Jr. ; and the judge delivering the prevailing opinion in the Court of Ap- peals says (p. 81), that the State can- vassers cannot be charged with error in refusing to add to the votes for Benjamin Welch, Jr., those which were given for Benjamin Welch, without the junior. " They had not the means which the court possessed, on the trial of this issue, of obtaining, by evidence aliunde, the several county returns, the intention of the voters, and the identity of the candi- date with the name on the defective bal- lots. Their judicial power extends no further than to take notice of such facts of public notoriety as that certain well- known abbreviations are generally used to designate particular names, and the like." So far as this case holds that the canvassers are not chargeable with error in not counting the ballots with the name Benjamin Welch for Benjamin Welch, Jr., it is, doubtless, correct. But sup- pose the canvassers had seen fit to do so, could the court hold they were guilty of usurpation in thus counting and allowing them ? Could not the canvassers take notice of such facts of general public notoriety as everybody else would take notice of ? Or must they shut their eyes to facts which all other persons must see ? The facts are these : Benjamin Welch, Jr., and James M. Cook are the candi- dates, and the only candidates, for State Treasurer. These facts are notorious, and the two political parties make deter- mined efforts to elect one or the other. Certain votes are cast for Benjamin Welch, with the descriptive word "jun- ior " omitted. The name is correct, but, as thus given, it may apply to some one else ; but it would be to a person noto- riously not a candidate. Under these circumstances, when the facts of which it would be necessary to take notice have occurred under their own supervi- sion, and are universally known, so that the result of a contest in the courts could not be doubtful, is there any reason why the canvassers should not take notice of these facts, count the votes which a jury would subsequently be compelled to count, and thus save the delay, expense, vexation, and confusion of a contest ? If their judicial power extends to a deter- mination of what are common and well- known abbreviations, and what names spelled differently are idem sonans, why may it not also extend to the facts, of which there will commonly be quite as little doubt, as to who are the candidates at the election over which they preside ? It seems to us that in every case where the name given on the ballot, though in some particulars imperfect, is not differ- ent from that of the candidate, and facts of general notoriety leave no doubt in the minds of canvassers that it was intended for him, the canvassers should be at lib- erty to do what a jury would afterwards CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 919 altogether different from that of a candidate, not the same in sound and not a mere abbreviation, the evidence of the voter cannot be received to show for whom it was intended. 1 Upon the question how far extrinsic evidence is admissible by way of helping out any inperfections in the ballot, no rule can be laid down which can be said to have a preponderating weight of authority in its support. We think evidence of such facts as may be called the circumstances surrounding the election such as who were the candidates brought forward by the nominating con- ventions ; whether other persons of the same names resided in the district from which the officer was to be chosen, and if so whether they were eligible or had been named for the office ; if a ballot was printed imperfectly, how it came to be so printed, and the like is admissible for the purpose of showing that an im- perfect ballot was intended for a particular candidate, unless the name is so different that to thus apply it would be to contradict the ballot itself; or unless the ballot is so defective that it fails to show any intention whatever: in which cases it is not admis- sible. 2 And we also think that in any case to allow a voter to testify by way of explanation of a ballot otherwise fatally defec- tive, that he voted the particular ballot, and intended it for a particular candidate, is exceedingly dangerous, invites corruption and fraud, and ought not to be suffered. Nothing is more easy than for reckless parties thus to testify to their intentions, with- out the possibility of their testimony being disproved if untrue ; and if one falsely swears to having deposited a particular ballot, unless the party really depositing it sees fit to disclose his knowl- edge, the evidence must pass unchallenged, and the temptation to subornation of perjury, when public offices are at stake, and when it may be committed with impunity, is too great to allow such evidence to be sanctioned. While the law should seek to be compelled to do, count it for such McCrary, in his Law of Elections, devotes candidate. See People v. Kennedy, 37 his seventh chapter to a careful dis- Mich. 67. Compare Clarke v. County cussion of the general subject of imper- Examiners, 126 Mass. 282. feet ballots. 1 A vote for " Pence" cannot be shown 2 The^text is quoted with approval in to have been intended for "Spence." Kreitz v. Behrensmeyer, 125111. 141, 17 Hart v. Evans, 8 Pa. St. 13. Where, N. E. 232, 24 L. R. A. 59, but in that case however, wrong initials were given to the after a recount had been made and his Christian name, the ballots were allowed ballot identified by its number, a voter to the candidate ; the facts of public no- was allowed to testify that a certain slip toriety being such as to show that they upon it was not there when it left his were intended for him. Attorney-Gen- hands ; and that in writing in a candi- eral v. Ely, 4 Wis. 420. This case goes date's name, the name of the office was farther, in permitting mistakes in bal- partly obliterated by accident, though, if lots to be corrected on parol evidence, the latter was wholly obliterated, the vote than any other in the books. Mr. could not be counted. 920 CONSTITUTIONAL LIMITATIONS. [CH. XVII. give effect to the intention of the voter, whenever it can be fairly ascertained, yet this intention must be that which is ex- pressed in due form of law, not that which remains hidden in the elector's breast ; and where the ballot, in connection with such facts surrounding the election as would be provable if it were a case of contract, does not enable the proper officers to apply it to one of the candidates, policy, coinciding in this particular with the general rule of law as applicable to other transactions, requires that the ballot shall not be counted for such candidate. 1 The ballot should also sufficiently show on its face for what office the person named, upon it is designated: but here again technical accuracy is not essential, and the office is sufficiently named if it be so designated that no reasonable doubt can exist as to what is meant. A great constitutional privilege the highest under the government is not to be taken away on a mere technicality, but the most liberal intendment should be made in support of the elector's action wherever the application of the common-sense rules which are applied in other cases will enable us to understand and render it effectual. 2 1 This is substantially the New York rule as settled by the later decisions, if we may accept the opinion of Denio, Ch. J., in People v. Pease, 27 N. Y. 45, 84, as taking the correct view of those decisions. See People v. Cicott, 16 Mich. 283, for a discussion of this point. Also State v. Griffey, 6 Neb. 161 ; Clark v. County Ex- aminers, 126 Mass. 282. 2 In People v. Matteson, 17 111. 167, it was held that where "police magistrates" were to be chosen, votes cast for " police justices " should be counted, as they sufficiently showed upon their face the intention of the voters. So where the question was submitted to the people, whether a part of one county should be annexed to another, and the act of sub- mission provided that the electors might express their choice by voting " for de- taching R ," or "against detaching R ," it was held that votes cast for " R attached," and for " R de- tached, "and "for division," and "agairst division," were properly counted by the canvassers, as the intention of the voters was clearly ascertainable from the ballots themselves with the aid of the extrinsic facts of a public nature connected with the election. State v. Elwood, 12 Wis. 551. So where trustees of common schools were to be voted for, it was held that votes for trustees of public schools should be counted ; there being no trustees to be voted for at that elec- tion except trustees of common schools. People v. McManus, 34 Barb. 620. In Phelps v. Goldthwaite, 16 Wis. 146, where a city and also a county superintendent of schools were to be chosen at the same election, and ballots were cast for "su- perintendent of schools," without further designation, parol evidence of surround- ing circumstances was admitted to enable the proper application to be made of the ballots to the respective candidates. In Peck v. Weddell, 17 Ohio St. 271, an act providing for an election on the question of the removal of a county seat to the " town " of Bowling Green, was held not invalid by reason of Bowling Green being in law not a " town," but an incorporated village. In voting for a county seat it was held proper to count votes cast for a town by its popular, which differed from its legal, name. State v. Cavers, 22 Iowa, 343. Ballots in all such cases should receive such a construction as will make them valid if they are capable of it. Cattell v. Lowry, 45 Iowa, 478; State CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 921 Where more than one office is to be filled at an election, the law may either require all the persons voted for, for the several offices, to be so voted for by each elector on the same ballot, or it may provide a different receptacle for the ballots for some one office or set of offices from that which is to receive the others. In such a case each elector will place upon the ballot to be depos- ited in each box the names of such persons as he desires to vote for, for the different offices to be filled at the election for which that box is provided. If, for instance, State and township officers are to be chosen at the same election, and the ballots are to be kept separate, the elector must have different ballots for each ; and if he should designate persons for a township office on the State ballot, such ballot would, to that extent, be void, though the improper addition would not defeat the ballot altogether, but would be treated as surplusage, and the ballot be held good as a vote for the State officers designated upon it. 1 But an accidental error in depositing the ballot should not defeat it. If an elector should deliver the State and township ballots to the inspector of election, who by mistake should deposit them in the wrong boxes respectively, this mistake is capable of being corrected without confusion when the boxes are opened, and should not prevent the ballots being counted as intended. And it would seem that, in any case, the honest mistake, either of the officer or the elector, should not defeat the intention of the latter, where it was not left in doubt by his action. 2 The elector is not under obligation to vote for every office to be filled at that election ; nor where several persons are to be chosen to the same office is he required to vote for as many as are to be elected. He may vote for one or any greater number, not to ex- ceed the whole number to be chosen. In most of the States a plurality of the votes cast determines the election ; in others, as to some elections, a majority ; but in determining upon a majority v. Metzger, 26 Kan. 395. And the elec- x See People v. Cook, 14 Barb. 259 and tion should not be set aside when the 8 N. Y. 67. will of the people is fairly ascertain- 2 People v. Bates, 11 Mich. 362. See able from it. Holland v. Davis, 86 Ark. Lanier v. Gallatas, 13 La. Ann. 175; Mc- 416, 450. An obvious misprint of '"2" Kinney v. O'Connor, 26 Tex. 5. But in- for "1" before "district" will not avoid spectors of election have no authority, on counting the votes cast in the first dis- the assertion of a voter that he has voted trict. Inglis v. Shepherd, 67 Cal. 469, by mistake in the wrong precinct, to with- 8 Pac. 5. [Where two or more offices draw from the ballot-box and destroy a are to be filled, the ballots must show ballot which he professes to identify as for which offices the candidates named the one cast by him. Harbaugh v. Cicott, on the ballot are intended. Page v. Kuy- 33 Mich. 241. kendall, 161 111. 319, 43 N. E. 1114, 32 L. R. A. 656.] 922 CONSTITUTIONAL LIMITATIONS. [CH. XVII. or plurality, the blank votes, if any, are not to be counted ; and a candidate may therefore be chosen without receiving a plurality or majority of voices of those who actually participated in the election. Where, however, two offices of the same name were to be filled at the same election, but the notice of election specified one only, and the political parties each nominated one candidate, and, assuming that but one was to be chosen, no elector voted for more than one, it was held that the one having a majority was alone chosen ; that the opposing candidate could not claim to be also elected, as having received the second highest number of votes, but as to the other office there had been a failure to hold an election. 1 The Freedom of Elections. To keep every election free of all the influences and surround- ings which might bear improperly upon it, or might impel the electors to cast their suffrages otherwise than as their judgments would dictate, has always been a prominent object in American legislation. 2 We have referred to fundamental principles which protect the secrecy of the ballot, but in addition to these there are express constitutional and statutory provisions looking to the accomplishment of the same general purpose. It is provided by the constitutions of several of the States that bribery of an elector shall constitute a disqualification of the right to vote or to hold 1 People t>. Kent County Canvassers, to such method of voting, and the consti- 11 Mich. 111. Where officers, e. g. alder- tution must clearly disclose such author- men, one for a long term and, one for a ity before such innovation in the exercise short term, are to be chosen, if there is of the elective franchise is justified.] no designation of the terms upon the 2 For decisions bearing upon the free- ballot, it must be rejected. Milligan's dom of elections and disorder or intimi- App., 96 Pa. St. 222. [A statute provid- dation to control it, see Commonwealth ing for " cumulative " voting, giving the v. Hoxey, 16 Mass. 384 ; Commonwealth right to an elector of a district in which . McHale, 97 Pa. St. 397; Respublica v. more than one representative to the State Gibbs, 3 Yeates, 429, 4 Dall. 253 ; State legislature is to be elected, to cast one v Franks, 38 Tex. 640 ; State v. Mason, vote for each, or to cast as many votes 14 La. Ann. 505; United States v. Cruik- as there are representatives to be elected shank, 92 U. S. 542 ; Roberts v. Calvert, from the district, and distribute them as 98 N. C. 580, 4 S. E. 127; Patton v. lie chooses, was held void in Maynard ;;. Coates, 41 Ark. Ill ; Tarbox v. Sughrue, Board of Canvassers, 84 Mich. 228, 47 36 Kan. 225, 12 Pac. 935; Brassard v. N. W. 756, 11 L. R. A. 332. The opinion Langevin, 1 Can. Sup. Ct. 145. [In In- in this case proceeds upon the theory that diana the very remarkable device of giv- without express constitutional authority ing the bribed elector the right to sue the legislature cannot authorize an elector the briber for a penalty of three hundred to cast more than one ballot for the same dollars and attorney's fees was recently person for a single office : that the history adopted, and was sustained in State v. and traditions of the elective franchise Schoonover, 135 Ind. 526, 85 N. E. 119, as interpreted by the courts is opposed 21 L. R. A. 767-3 CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 923 office ; 1 the treating of an elector, with a view to influence his vote, is in some States made an indictable offence; 2 courts are not allowed to be held, for the two reasons, that the electors ought to be left free to devote their attention to the exercise of this high trust, and that suits, if allowed on that day, might be used as a means of intimidation; 8 legal process in some States, and for the same reasons, is not permitted to be served on that day ; intimidation of voters by threats or otherwise is made pun- ishable ; 4 and generally all such precautions as the people in framing their organic law, or the legislature afterwards, have thought might be made available for the purpose, have been pro- vided with a view to secure the most completely free and un- biassed expression of opinion that shall be possible. 1 See the Constitutions of Maryland, Missouri, New Jersey, West Virginia, Oregon, California, Kansas, Texas, Ar- kansas, Rhode Island, Alabama, Florida, New York, Massachusetts, New Hamp- shire, Vermont, Nevada, Tennessee, Con- necticut, Louisiana, Mississippi, Ohio, Wisconsin. And it has been held on general principles that if an elector is in- duced to vote in a particular way by the payment or promise of any money or other valuable consideration for such vote, his vote should be rejected as ille- gal. State v. Olin, 23 Wis. 309. The power to reject for such a reason, how- ever, is not in the inspectors, but in the court in which the right to try the title to the office is vested. State v. Purdy, 36 Wis. 213, 17 Am. Rep. 485. In this case it was held to be a sufficient reason for the court to reject votes, that they were obtained by means of the candi- date's promise to perform the duties of the office for less than the official salary. lt is frequently provided, in order to make bribery ineffective, that ballots bearing distinguishing marks are void. That imprints appearing upon all ballots and imprinted thereon at time of print- ing, even though unlawful, are not distin- guishing marks, see State v. Saxon, 30 Fla. 668, 12 So. 218, 18 L. R. A. 721 ; see other cases in note on Australian Ballot Laws, ante, p. 899, n. a. Inscription " O. K." on back of a ballot is a distinguish- ing mark. State v. Ellis, 111 N. C. 124, 15 S. E. 938, 17 L. R. A. 382. For cases discussing a variety of distinguishing marks, see State v. Walsh, 62 Conn. 260, 25 All. 1, 17 L. R. A. 364; Rutledge v. Crawford, 91 Cal. 526, 27 Pac. 779, 13 L. R. A. 761, and note ; State v. Barden, 77 Wis. 601, 46 N. W. 899, 10 L. R. A. 155; Talcott v. Philbrick, 59 Conn. 472, 20 Atl. 436, 10 L. R. A. loO/] 2 State v. Rutledge, 8 Humph. 32. And see the provision in the Constitution of Vermont on this subject. A resort to this species of influence would generally, at the present time, prejudice the can- didate's interests instead of advancing them, but such has not always been the case. Mr. Madison, after performing val- uable service for the State in its legisla- ture, was defeated when offering himself for re-election, in the very crisis of the Revolution, by the treating of his oppo- nent. See his Life by Rives, Vol. I. p. 179. The Constitution of Louisiana [1879] requires the General Assembly to forbid by law the giving away or selling of intoxicating drinks on the d ty of elec- tion within one mile of any election pre- cinct. Art. 190. 8 But it was held in New York that the statute of that State forbidding the holding of courts on election days did not apply to the local elections. Matter of Election Law, 7 Hill, 194; Redfield v. Florence, 2 E. D. Smith, 339. 4 As to what shall constitute intimida- tion, see Respublica r. Gibbs, 3 Yeates, 429, 4 Dall. 264, and cases, p. 922, note 2. fjAnd a statute prohibiting electioneering within one hundred feet of any polling place on election day is valid. State v, Black, 54 N. J. L. 446, 24 Atl. 489, 1029, 16 L. R. A. 769.;] 924 CONSTITUTIONAL LIMITATIONS. [CH. XVII. Betting upon elections is illegal at the common law, on grounds of public policy ; l and all contracts entered into with a view im- properly to influence an election would be void for the same reason. 2 And with a just sense of the danger of military iiiter- 1 Bunn r. Hiker, 4 Johns. 426 ; Lan- sing v. Lansing, 8 Johns. 454; Ball v. Gil- bert, 12 Met. 397 ; Laval v. Myers, 1 Bailey, 486; Smyth v. McMasters, 2 Browne, 182; McAllister v. Hoffman, 16 S. & R. 147 ; Stoddard v. Martin, 1 R. I. 1 ; Wroth v. Johnson, 4 H. & M. 284 ; Tarleton v. Baker, 18 Vt. 9; Davis r. Holbrook, 1 La. Ann. 176 ; Foreman v. Hardwick, 10 Ala. 316; Wheeler v. Spen- cer, 15 Conn. 28; Russell v. Pyland, 2 Humph. 131 ; Porter v. Sawyer, 1 Harr. 617; Hickerson v. Benson, 8 Mo. 8; Ma- chir v. Moore, 2 Gratt. 257; Rust v. Gott, 9 Cow. 169, 18 Am. Dec. 497 ; Brush r. Keeler, 5 Wend. 250; Fisher v. Hildreth, 117 Mass. 558; McCrary, Law of Elec- tions, 149. A statute punishing betting on elections does not cover nominating conventions. Com. v. Wells, 110 Pa. St. 463, 1 All. 310. 2 In Jackson v. Walker, 5 Hill, 27, it was held that an agreement by the de- fendant to pay the plaintiff $1,000, in con- sideration that the latter, who had built a log-cabin, would keep it open for political meetings to further the success of certain persons nominated for members of Con- gress, &c., by one of the political parties, was illegal within the statute of New York, which prohibited contributions of money " for any other purpose intended to promote the election of any particular person or ticket, except for defraying the expenses of printing and the circulation of votes, hand-bills, and other papers." This case is criticised in Hurley v. Van Wag- ner, 28 Barb. 109, and it is possible that it went further than either the statute or public policy would require. In Nichols v. Mudgett, 32 Vt. 546, the defendant be- ing indebted to the plaintiff, who was a candidate for town representative, the parties agreed that the former should use his influence for the plaintiffs election, and do what he could for that purpose, and that if the plaintiff was elected, that should be a satisfaction of his claim. Nothing was specifically said about the defendant's voting for the plaintiff, but he did vote for him, and would not have done so, nor favored his election, but for this agreement. The plaintiff was elected. Held, that the agreement was void, and constituted no bar to a recovery upon the demand. Where two are candidates, and one withdraws in consideration of an agreement that the other, if chosen, will divide the fees, the agreement is void. Gray v. Hook, 4 N. Y. 449. An agree- ment that one for a fixed sum may per- form all the duties of an office and receive all the emoluments is illegal. Hall i: Gavitt, 18 Ind. 390. So is an agreement between two candidates to divide emolu- ments and that the defeated one shall be deputy. Glover v. Taylor, 38 La. Aun. 634. A note executed in consideration of the payee's agreement to resign public office in favor of the maker, and us>e in- fluence in favor of the latter's appoint- ment as his successor, is void. Meacliam v. Dow, 32 Vt. 721. See also Duke v. Ashbee, 11 Ired. 112; Hunter v. Nolf, 71 Pa. St. 182 ; Ham v. Smith, 87 Pa. St. 63 ; Robinson v. Kalbfleish, 5 Thomp. & C. (N. Y.) 212 ; McCrary, Law of Elections, 192. A contract to assist by money and influence to secure the election of a candidate to a public office in considera- tion of a share of its emoluments, in the event of election, is void as opposed to public policy, and if voluntarily rescinded by the parties a recovery cannot be had of the moneys advanced under it. Mar- tin r. Wade. 37 Cal. 168. It has even been held that a public offer to the elec- tors by a candidate for a public office, whereby he pledged himself, if elected, to perform the duties of the office for less than the legal salary or fees, would invalidate his election. State v. Purdy, 36 Wis. 213, 17 Am. Rep. 485 ; Harvey r. Tama County, 63 Iowa, 228, 5 N. W. 130; Caruthers v. Russell, 63 Iowa, 346, 5 N. W. 499, 36 Am. Rep. 222; State v. Collier, 72 Mo. 13, 37 Am. Rep. 417. See Cardigan v. Page, 6 N. H. 182; Alvin v. Collin, 20 Pick. 418 ; State v. Church, 5 Oreg. 375, 20 Am. Rep. 746. A contract to resign an office that another may be appointed is void. Meguire v. Corwine, CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 925 ference, where a trust is to be exercised, the highest as well as the most delicate in the whole machinery of government, it has not been thought unwise to prohibit the militia being called out on election days, even though for no other purpose than for enrolling and organizing them. 1 The ordinary police is the peace force of the State, and its presence suggests order, individual safety, and public security ; but when the military appear upon the stage, even though composed of citizen militia, the circum- stances must be assumed to be extraordinary, and there is always an appearance of threatening and dangerous compulsion which might easily interfere seriously with that calm and unimpassioned discharge of the elector's duty which the law so justly favors. The soldier in organized ranks can know no law but sucli as is given him by his commanding officer ; and when he appears at the polls, there is necessarily a suggestion of the presence of an enemy against whom he may be compelled to exercise the most extreme and destructive force ; and that enemy must generally be the party out of power, while the authority that commands the force directed against them will be the executive authority of the State for the time being wielded by their opponents. It is con- sequently of the highest importance that the presence of a military force at the polls be not suffered except in serious emergencies, when disorders exist or are threatened for the suppression or prevention of which the ordinary peace force is insufficient ; and any statute which should provide for or permit such presence as a usual occurrence or except in the last resort, though it might not be void, would nevertheless be a serious invasion of constitu- tional right, and should not be submitted to in a free government without vigorous remonstrance. 2 3 Mac Arthur, 81. If one advances v. Supervisors of Portage, 24 Wis. 49; money to be used to further the election Wells v. Taylor, 5 Mont. 202, 3 Pac. 255 ; of a particular candidate irrespective of Neal v. Sliinn, 49 Ark. 227, 4 S. W. 771; qualifications, and it is not so used, he State v. Elting, 29 Kan. 397 ; Hall v. Mar- cannot maintain a suit to recover it back, shall, 80 Ky. 552; QState v. Orange, 54 Liness v. Hesing, 44 111, 113. In Pratt v. N. J. L. Ill, 22 Atl. 1004, 14 L R. A. 62, People, 29 111. 54, it was held that an and note ; contra, Ayres v. Moan, 34 Neb. agreement between two electors that 210, 51 N. W. 830, 15 L. R. A. 501. A they should "pair off," and both abstain promise by a citizen to pay part of the from voting, was illegal, and the inspec- expense of opening a street will not in- tors could not refuse to receive a vote of validate an ordinance providing for such one of the two, on the ground of his opening. State v. Orange, 54 N. J. L. agreement. An election upon the ques- 111,22 Atl. 1004, 14 L. R. A. 62, and note tion of the removal of a county seat is on bribery by gift to public.] See State not invalidated by inducements held out v. Purdy, 36 Wis. 213. by the several localities ; such as the offer 1 See Hyde v. Melvin, 11 Johns. 521. to erect the county buildings, &c. Di- 2 The danger, and, we may say also, slion v. Smith, 10 Iowa, 212; Hawes v. the folly, of military interference with the Miller, 56 Iowa, 395, 9 N. W. 307 ; State deliberations or action of electors, except 926 CONSTITUTIONAL LIMITATIONS. [oil. XVII. The Elector not to be deprived of his Vote. That one entitled to vote shall not be deprived of the privilege by the action of the authorities is a fundamental principle, (a) It has been held, on constitutional grounds, that a law creating a new county, but so framed as to leave a portion of its territory unorganized, so that the voters within such portion could not participate in the election of county officers, was inoperative and void. 1 So a law submitting to the voters of a county the ques- tion of removing the county seat is void if there is no mode under the law by which a city within the county can participate in the election. 2 And although the failure of one election pre- cinct to hold an election, or to make a return of the votes cast, might not render the whole election a nullity, where the electors of that precinct were at liberty to vote had they so chosen, or where, having voted but failed to make return, it is not made to appear that the votes not returned would have changed the re- sult, 3 yet if any action was required of the public authorities preliminary to the election, and that which was taken was not such as to give all the electors the opportunity to participate, and in the last necessity, was fearfully illus- ate action. No one had been conciliated ; trated in the case of the "Manchester no one had been reduced to more calm Massacre," which occurred in 1819. An and deliberate courses ; but, on the other immense meeting of radical parliamentary hand, even moderate men had been exas- reformers, whose objects and purposes perated and inclined to opposition by this appeared threatening to the government, violent, reckless, and destructive display was charged upon by the military, with of coercive power. See Hansard's De- some loss of life, and with injury to the bates, Vol. XLI. pp. 4, 51,230. persons of several hundred people. As 1 People v. Maynard, 15 Mich. 463. usual in such cases, the extremists of one For similar reasons the act for the organ- party applauded the act and compli- ization of Schuyler County was held in- mented the military, while the other valid in Lanning v. Carpenter, 20 N. Y. party was exasperated in the last degree, 447. by what seemed to them an unnecessary, 2 Attorney-General v. Supervisors of arbitrary, and unconstitutional exercise St. Clair, 11 Mich. 63. For a similar of force. The most bitter and dangerous principle, see Foster v. Scarff, 15 Ohio St. feeling was excited throughout the coun- 632. try by this occurrence, and it is not too 3 See Ex parte Heath, 3 Hill, 42 ; much to say that if disorders were threat- Louisville & Nashville R. R. Co. v. ening before, the government had done County Court of Davidson, 1 Sneed,637; nothing in this way to strengthen its au- Marshall v. Kerns, 2 Swan, 68 ; Beards- thority, or to insure quiet OE dispassion- town r. Virginia, 76 111. 34. (a) fJBut it is held that he may be restricted to candidates whose names are printed on the official ballot. State v. McElroy, 44 La. Ann. 796, 11 So. 133, 16 L. R. A. 278, and note. Voter may lawfully vote for the same man as candidate for two or more incompatible offices. Misch v. Russell, 136 111. 22, 26 N. E. 528, 12 L. R. A. 125, and note. A statute prohibiting the putting of the name of a candidate on a ballot as the candidate of more than party, was held void, in Murphy v. Curry, 137 Cal. 479, 70 Pac. 461, 59 L. R. A. 97/] Cfl. XVII.] THE EXPRESSION OF THE POPULAR WILL. 927 no mode was open to the electors by which the officers might be compelled to act, it would seem that such neglect, constituting as it would the disfranchisemeut of the excluded electors pro hac vice, must on general principles render the whole election nuga- tory ; for that cannot be called an election or the expression of the popular sentiment where a part only of the electors have been allowed to be heard, and the others, without being guilty of fraud or negligence, have been excluded. 1 If the inspectors of elections refuse to receive the vote of an elector duly qualified, they may be liable both civilly and crimi- nally for so doing : criminally, if they were actuated by improper and corrupt motives ; 2 and civilly, it is held in some of the States, even though there may have been no malicious design in so doing ; 3 but other cases hold that, where the inspectors are vested by the law with the power to pass upon the qualifications of electors, they exercise judicial functions in so doing, and are entitled to the same protection as other judicial officers in the discharge of their duty, and cannot be made liable except upon proof of express malice. 4 Where, however, by the law under which the election is held, the inspectors are to receive the voter's ballot, if he takes the oath 1 See Fort Dodge v. District Township, 17 Iowa, 85 ; Barry v. Lauck, 5 Cold. 688. In People v. Salomon, 46 111. 415, it was held that where an act of the legislature, before it shall become opera- tive, is required to be submitted to the vote of the legal electors of the district to be affected thereby, if the election which is attempted to be held is illegal within certain precincts containing a ma- jority of the voters of the district, then the act will not be deemed to have been submitted to the required vote, and the result will not be declared upon the votes legally cast, adverse to what it would have been had no illegality intervened. 2 As to common-law offences against election laws, see Commonwealth v. Mc- Hale, 97 Pa. St. 397. For an instance under a statute, see People v. Burns, 75 Cal. 627, 17 Pac. 646. 8 Kilham v. Ward, 2 Mass. 236; Gard- ner v. Ward, 2 Mass. 244, note ; Lincoln v. Hapgood, 11 Mass. 350; Capen v. Fos- ter, 12 Pick. 485, 23 Am. Dec. 632; Gates r. Neal, 23 Pick. 308 ; Blanchard v. Stearns, 5 Met. 298 ; Lamed v. Wheeler, 140 Mass. 390, 5 N. E. 290; Jeffries v. Ankeny, 11 Ohio, 372; Chrisman v. Bruce, 1 Duv. 63; Monroe v. Collins, 17 Ohio St. 665 ; Gillespie v. Palmer, 20 Wis. 644 ; Long o. Long, 57 Iowa, 497, 10 N. W. 875. 4 Jenkins v. Waldron, 11 Johns. 114; Wecherley v. Guyer, 11 S. & R. 35; Gor- don v. Farrar, 2 Doug. (Mich.) 411; Peavey v. Bobbins, 3 Jones (N. C.), 339; Caulfleld v. Bullock, 18 B. Mon. 494; Miller v. Rucker, 1 Bush, 135 ; Chrisman v. Bruce, 1 Duv 63; Wheeler v. Patterson, 1 N. H. 88 ; Turnpike v, Champney, 2 N. H. 199; Rail v. Potts, 8 Humph. 225; Bevard v. Hoffman, 18 Md. 479 ; Elbin v. Wilson, 33 Md. 135; Friend v. Hamill, 34 Md. 298; Pike v. Magoun, 44 Mo. 492; Perry v. Reynolds, 63 Conn. 527, 3 Atl. 555 ; see State v. Daniels, 44 N. H. 383, and Goetcheus v. Mathewson, 61 N. Y. 420. In the last case the whole subject is fully and carefully examined, and the authorities analyzed. Compare Byler v. Asher, 47 111. 101 ; Elbin v. Wil- son, 33 Md. 135; Murphy v. Ramsey, 114 U. S. 15, 5 Sup. Ct. Rep. 747. Under a statute rendering liable for unreason- able refusal, the refusal must be such as to seem unreasonable to reasonable, un- prejudiced men. Sanders v. Getchell, 76 Me. 158 ; Pierce v. Getchell, Id. 216. 928 CONSTITUTIONAL LIMITATIONS. [CH. XVII. that he possesses the constitutional qualifications, the oath is the conclusive evidence on which the inspectors are to act, and they are not at liberty to refuse to administer the oath, or to refuse the vote after the oath has been taken. They are only ministerial officers in such a case, and have no discretion but to obey the law and receive the vote. 1 The Conduct of the Election. The statutes of the different States point out specifically the mode in which elections shall be conducted ; but, although there are great diversities of detail, the same general principles govern them all. As the execution of these statutes must very often fall to the hands of men unacquainted with the law and unschooled in business, it is inevitable that mistakes shall sometimes occur, and that very often the law will fail of strict compliance. Where an election is thus rendered irregular, whether the irregularity' shall avoid it or not must depend generally upon the effect the failure to comply strictly with the law may have had in obstruct- ing the complete expression of the popular will, or the production of satisfactory evidence thereof. Election statutes are to be tested like other statutes, but with a leaning to liberality in view of the great public purposes which they accomplish ; and except where they specifically provide that a thing shall be done in the manner indicated and not otherwise, their provisions designed merely for the information and guidance of the officers must be regarded as directory only, and the election will not be defeated by a failure to comply with them, providing the irregularity has not hindered any who were entitled from exercising the right of suffrage, or rendered doubtful the evidences from which the result was to be declared. In a leading case the following irregularities were held not to vitiate the election : the accidental substitution of another book for the Holy Evangelists in the administration of an oath, both parties being ignorant of the error at the time ; the holding of the election by persons who were not officers de jure, but who had colorable authority, and acted de facto in good faith; 2 the 1 Spriggins v. Houghton, 3 111. 377 ; 9 Am. Rep. 409. Also to Fowler v. State v. Robb, 17 Ind. 536 ; People v. Beebe, 9 Mass. 231 ; Tucker v. Aiken, 7 Pease, 30 Barb. 688. And see People v. N. H. 113; Commonwealth v. McCombs, Gordon, 5 Cal. 235 ; Chrisman v. Bruce, 66 Pa. St. 436 ; Fenelon v. Butts, 49 1 Duv. 63; Gillespie v. Palmer, 20 Wis. Wis. 342; Ex parie Strang, 21 Ohio St. 544 ; Goetcheus v. Mathewson, 61 N. Y. 610 ; Kimball v. Alcorn, 45 Miss. 151, and 430 ; FJWolcott v. Holcomb, 97 Mich, authorities referred to in these cases 361, 56 N. W. 837, 23 L. R. A. 2157] severally ; and to cases, supra, pp. 896, 2 As to what constitutes an officer de 898, notes. Also Cooley on Taxation, facto, the reader is referred to the careful 184-186; McCrary's Law of Elections, opinion in State v. Carroll, 38 Conn. 449, 75-79. CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 929 failure of the board of inspectors to appoint clerks of the election ; the closing of the outer door of the room where the election was held at sundown, and then permitting the persons within the room to vote, it not appearing that legal voters were excluded by clos- ing the door, or illegal allowed to vote ; and the failure of the in- spectors or clerks to take the prescribed oath of office. And it was said, in the same case, that any irregularity in conducting an election which does riot deprive a legal elector of his vote, or admit a disqualified person to vote, or cast uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an office depending on such election. 1 The rule is an eminently proper one, and it furnishes 1 People v. Cook, 14 Barb. 259, and 8 N. Y. 67. To the same effect, see Clifton v. Cook, 7 Ala. 114 ; Truehart v. Addicks, 2 Tex. 217 ; Dishon v. Smith, 10 Iowa, 212 ; Attorney-General v. Ely, 4 Wis. 420 ; State v. Jones, 19 Ind. 356 ; People v. Higgins, 3 Mich. 233 ; Gorham v. Camp- bell, 2 Cal. 135 ; People v. Bates, 11 Mich. 362 ; Taylor v. Taylor, 10 Minn. 112 ; Peo- ple v. McManus, 34 Barb. 620 ; Whipley v. McCune, 12 Cal. 352 ; Bourland v. Hil- dreth, 26 Cal. 161; Day v. Kent, 1 Oreg. 123 ; Piatt v. People, 29 111. 54 ; Du Page Co. v. People, 65 111. 360 ; Hodge v. Linn, 100 111. 397; Ewing v. Filley, 43 Pa. St. 384; Howard v. Shields, 16 Ohio St. 184; Fry v. Booth, 19 Ohio St. 25; State v. Stumpf, 21 Wis. 579; McKinney t;. O'Connor, 26 Tex. 5 ; Sprague v. Norway, 31 Cal. 173 ; Sheppard's Election Case, 77 Pa. St. 295; Wheelock's Election Case, 82 Pa. St. 297 ; Barnes v. Pike Co., 51 Miss. 305 ; State v. O'Day, 69 Iowa, 368, 28 N. W. 642. In Ex parte Heath, 3 Hill, 42, it was held that where the statute required the inspectors to certify the result of the election on the next day thereafter, or sooner, the certificate made the second day thereafter was suffi- cient, the statute as to time being directory merely. In People v. McManus, 34 Barb. 620, it was held that an election was not made void by the fact that one of the three inspectors was by the statute dis- qualified from acting, by being a candi- date at the election, the other two being qualified. In Sprague v. Norway, 31 Cal. 173, it was decided that where the judges of an election could not read, and for that reason a person who was not a member of the board took the ballots from the box, and read them to the tellers, at the request of the judges, the election was not affected by the irregularity. In sev- eral cases, and among others the follow- ing, the general principle is asserted that any irregularities or misconduct, not amounting to fraud, is not to be suffered to defeat an election unless it is made to appear that the result was thereby changed. Loomis v. Jackson, 6 W. Va. 613, 692; Morris v. Vanlaningham, 11 Kan. 269 ; Supervisors of Du Page v. People, 65 111. 360 ; Chicago v. People, 80 111. 496 ; People v. Wilson, 62 N. Y. 186; State v, Burbridge, 24 Fla. 112, 3 So. 869. rjBaltes v. Farmers' Irr. District, 60 Neb. 310, 83 N. W. 83. But where the election officers took the ballot-box with them when they left the polling-place and went to dinner, this of itself invali- dates the vote in that precinct. Tebbe v. Smith, 108 Cal. 101, 29 L. R. A. 673, 41 Pac. 454.] If the election is fair and the count honest, it is not fatal that the election officers were not properly qualified : Quinn v. Markoe, 37 Minn. 439, 35 N. W. .263; Swepston v. Barton, 39 Ark. 549 ; Wells v. Taylor, 5 Mont. 202, 3 Pac. 255 ; contra, Walker v. Sanford, 78 Ga. 165, 1 S. E. 42 1 ; nor that unauthor- ized persons helped in the counting. Roberts v. Cal vert, 98 N. C. 580, 4 S. E. 127. The failure to hold the poll open _ as long as the law requires may not be fatal if no one lost his vote in con- sequence. Cleland v. Porter, 74 111. 76 ; Swepston v. Barton, 39 Ark. 549. See Kuykendall v. Harker, 89 111. 126. And a candidate who participates in the 59 930 CONSTITUTIONAL LIMITATIONS. [OH. XVIL a very satisfactory test as to what is essential and what not in election laws. 1 And where a party contests an election on. the ground of these or any similar irregularities, he ought to aver and be able to show that the result was affected by them. 2 Time and place, however, are of the substance of every election, 3 and a failure to comply with the law in these particulars is not generally to be treated as a mere irregularity. 4 election actually held will not be allowed to question* its validity on that ground. People v. Waite, 70 111. 25. But where the law gave three hours for an election and the polls were closed in forty minutes, the proceedings were held invalid. State v. Wollem, 37 Iowa, 131. All votes received after the polls should be closed are illegal. Varney r. Justice, 86 Ky. 590, 6 S. W. 457. And where the law required three judges and two clerks of an election, and only one of each was provided, it was held that this was not a mere irregularity and the election was void. Chicago, &c. R. R. Co. v. Mallory, 101 111. 583. 1 This rule has certainly been applied with great liberality, in some cases. In People v. Higgins, 3 Mich. 233, it was held that the statute requiring ballots to be sealed up in a package, and then locked up in the ballot-box, with the ori- fice at the top sealed, was directory merely ; and that ballots which had been kept in a locked box, but without the ori- fice closed or the ballots sealed up, were admissible in evidence in a contest for an office depending upon this election. This case was followed in People v. Cicott, 16 Mich. 283, and it was held that whether the ballots were more satisfactory evi- dence than the inspector's certificates, where a discrepancy appeared between them, was a question for the jury. See also Fowler v. State, 68 Tex. 30, 3 S. W. 255. In Morril v. Raines, 2 N. II. 246, the statute required State officers to be chosen by a check-list, and by delivery of the ballots to the moderator in person ; and it was held that the requirement of a check-list was mandatory, and the election in the town was void if none was kept. The decision was put upon the ground that the check-list was provided as an important guard against indiscriminate and illegal voting, and the votes given by ballot without this protection were there- fore as much void as if given vica voce. 2 Lanier v. Gallatas, 13 La. Ann. 175 ; People v. Cicott, 16 Mich. 283 ; Taylor v. Taylor, 10 Minn. 107 ; Dobyns v. Weadon, 50 Ind. 298. 3 Dickey v. Hurlburt, 5 Cal. 343; Knowles c. Yeates, 31 Cal. 82 ; Walker v. Sanford, 78 Ga. 165, 1 S. E. 424 ; Wil- liams v. Potter, 114 111. 628, 3 N. E. 729. An election adjourned without warrant to another place, as well as an election held without the officers required by law, is void. Commonwealth v. County Com- missioners, 5 Rawle, 75. An unautho- rized adjournment of the election lor dinner it appearing to have been in good faith, :md no one having been de- prived of his vote thereby will not defeat the election. Fry v. Booth, 19 Ohio St. 25. Adjourning an election in good faith to another polling place will not necessarily avoid it Farrington v. Turner, 63 Mich. 27, 18 N. W. 544. Where voting had been done at a church, and the building was moved three-quar- ters of a mile, an election held at the new place is valid, no one being pre- vented from voting by the change. Steele v. Calhoun, 61 Miss. 556. So of a change of two hundred feet. Simons v. People, 119 111. 617, 9 N. E. 220. See also Stemper v. Higgins, 38 Minn. 222, 37 N. W. 95, where a separate voting place from the township poll was, without au- thority of law but in good faith, kept in a village, and the vote was held legal. FJDelay of an hour in opening polls, when not brought about through fraud, and in the absence of a showing that the number (one), of voters thereby prevented from voting could have changed the result, will not invalidate the election. Pick- ett v. Russell, 42 Fla. 116, 634, 28 So. 764.] 4 The statute of Michigan requires the clerks of election to keep lists of the per- sons voting, and that at the close of the polls the first duty of the inspectors shall be to compare the lists with the number CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 931 What is a Sufficient Election. Unless the law under which the election is held expressly re- quires more, a plurality of the votes cast will be sufficient to elect, notwithstanding these may constitute but a small portion of those who are entitled to vote, 1 and notwithstanding the voters generally may have failed to take notice of the law requiring the election to be held. 2 If several persons are to be chosen to the same office, the requi- site number who shall stand highest on the list will be elected. But without such a plurality no one can be chosen to a public office ; and it is held in many cases that if the person receiving the highest number of votes was ineligible, the votes cast for him will still be effectual so far as to prevent the opposing candidate of votes in the box, and if the count of the latter exceeds the former, then to draw out unopened and destroy a suffi- cient number to make them correspond. In People v. Cicott, 16 Mich. 283, it ap- peared that the inspectors in two wards of Detroit, where a surplus of votes had been found, had neglected this duty, and had counted all the votes without draw- ing out and destroying any. The surplus in the two wards was sixteen. The ac- tual majority of one of the candidates over the other on the count as it stood (if certain other disputed votes were re- jected) vvould be four. It was held that this neglect of the inspectors did not in- validate the election ; that had the votes been drawn out, the probability was that each candidate would lose a number pro- portioned to the whole number which he had in the box ; and this being a proba- bility which the statute providing for the drawing proceeded upon, the court should apply it afterwards, apportioning the ex- cess of votes between the candidates in that proportion. pThe requirements of law must be substantially complied with. An election held by a mere usurper is void, even though fairly and honestly con- ducted. State v. Taylor, 108 N. C. 196, 12 S. E. 1005, 12 L. R. A. 202.] 1 Augustin v. Eggleston, 12 La. Ann. 366; Gillespie v. Palmer, 20 Wis. 544. See also State v. Mayor, &c. of St. Joseph, 37 Mo. 270 ; State v. Binder, 38 Mo. 450 ; In re Plurality Elections, 15 R. I. 617, 8 Atl. 881. 2 People v. Hartwell, 12 Mich. 508. In a case a little different, where the peo- ple were in doubt if there were any va- cancy to be filled, and only twenty-nine persons out of a poll of eight hundred cast their votes to fill the vacancy, it was held that these twenty-nine votes did not make an election. State v. Good, 41 N. J. 26. Even if the majority expressly dissent, yet if they do not vote, the election by the minority will be valid. Oldknow v. Wainwright, 1 W. Bl. 229; Hex v. Fox- croft, 2 Burr. 1017 ; Rex v. Withers, re- ferred to in same case. Minority repre- sentation in certain cases has been intro- duced in New York, Pennsylvania, and Illinois, and the principle is likely to find favor elsewhere. But such representa- tion has been held inconsistent with a constitutional provision that each elector shall be entitled to vote at all elections. State P. Constantine, 42 Ohio St. 437. ^Contra, Commonwealth v. Reeder, 171 Pa. 505, 33 Atl. 67, 33 L. R. A. 141. Re- quirement that " members of assembly shall be appointed among the several counties of the State by the legislature as nearly as may be according to the num- ber of their respective inhabitants" is mandatory, and any substantial non- compliance will be set aside. People v. Broom, 138 N. Y. 95, 33 N. E. 827, 20 L. R. A. 81. For other cases in which gerrymanders have been set aside for gross unfairness and inequality, see Parker v. State, 133 Ind. 178, 32 N. E. 836. 33 N. E. 119, 18 L. R. A. 567 ; State t>. Cunningham, 83 Wis. 90, 53 N. W. 35, 17 L. R. A. 145; Giddings r. Blacker, 93 Mich. 1, 62 N. W. 944, 16 L. R. A. 402; Houghton Co. Supervisors v. Blacker, 92 932 CONSTITUTIONAL LIMITATIONS. [CH. XVII. being chosen, and the election must be considered as having failed. 1 The admission of illegal votes at an election will not necessa- rily defeat it ; but, to warrant its being set aside on that ground, it should appear that the result would have been different had they been excluded. 2 And the fact that unqualified persons are allowed to enter the room, and participate in an election, does not Mich. 638, 52 N. W. 951, 16 L. R. A. 432 ; State v. Cunningham, 81 Wis. 440, 51 N. W. 724, 15 L. R. A. 561, and note. See also, in this connection, People v. Rice, 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836. Law providing that presi- dential electors shall be elected, one from eacli congressional district and re- mainder at large, or from larger districts, is valid. McPherson v. Blacker, i)2 Mich. 377, 52 N. W. 469, 16 L. R. A. 475, aff. in 146 U. S. 1, 13 Sup. Ct. Rep. 3. Cumulative voting held unconstitutional in Maynard v. Bd. of Canvassers, 84 Mich. 228, 47 N. W. 756, 11 L. R. A. 332.] 1 State v. Giles, 1 Chand. 112 ; Opin- ions of Judges, 38 Me. 598; State v. Smith, 14 Wis. 497; Saunders v. Haynes, 13 Cal. 145 ; Fish v. Collens, 21 La. Ann. 289 ; Sublett v. Bedwell, 47 Miss. 266, 12 Am. Rep. 338; State v. Swearingen, 12 Ga. 24; Commonwealth v. Cluley, 56 Pa. St. 270; Matter of Corliss, 11 R. I. 638, 23 Am. Rep. 538; State v. Vail, 63 Mo. 97 ; Barnum r. Oilman, 27 Minn. 466, 8 N. W. 375, 38 Am. Rep. 304; Dryden v. Swinburne, 20 W. Va. 89 ; Swepston v. Barton, 39 Ark. 549. In People v. Molliter, 23 Mich. 341, a minor- ity candidate claimed the election on the ground .that the votes cast for his oppo- nent, though a majority, were ineffectual because the name was abbreviated. Held, that they were at least effectual to pre- clude the election of a candidate who received a less number. And see Craw- ford v. Dunbar, 52 Cal. 36; [State v. McGeary, 69 Vt. 461, 38 Atl. 165, 44 L. R. A. 446-3 But it has been held that, if ineligibility is notorious, so that the electors must be deemed to have voted with full knowledge of it, the votes for an ineligible candidate must be declared void, and the next highest candidate is chosen. This is the English doctrine : King v. Hawkins, 10 East, 211 ; 2 Dow. P. C. 124 ; King v. Parry, 14 East, 549; Gosling r. Veley, 7 Q. B. 406; Rex v. Monday, 2 Cowp. 530; Rex v. Foxcroft, Burr. 1017, 8. c. 1 Wm. Bl. 229 ; Reg. v. Coaka, 3 E. & B. 249; French v. Nolan, 2 Moak, 711. And see the following American cases : Price v. Baker, 41 Ind. 572 ; Hatclieson v. Tilder, 4 H. & Mcli. 279; Commonwealth v. Green, 4 Whart. 521 ; Gulick v. New, 14 Ind. 93; Carson v. McPhetridge, 15 Ind. 327 ; People v. Clute, 60 N. Y. 451, 10 Am. Rep. 508; State v. Johnson, 100 Ind. 489. Compare Barnum v. Gilman, 27 Minn. 466, 8 N. W. 375, 38 Am. Rep. 304 ; [Gardner v. Burke, 61 Neb. 534, 85 N. W. 541, is contra.] It would seem that, if the law which creates the disqualifica- tion expressly declares all votes cast for the disqualified person void, they must be treated as mere blank votes, and cannot be counted for any purpose. Where, under the law creating it, the disability concerns the holding of the office merely, and it is not a disability to be elected, it is sufficient if the disability is removed before the term begins. State v. Murray, 28 Wis. 96; State v. Trumpf, 50 Wis. 103, 5 N. W. 876, 6 N. W. 512 ; Privett v. Bickford, 26 Kan. 52. Compare Searcy v. Grow, 15 Cal. 117 ; State v. Clarke, 3 Nev. 566. [See discussion by Floyd R. Mechem of the question of " Eligibility to Office As of What Time Deter- mined," in 1 Mich. Law Rev. 17.] 2 Ex parte Murphy, 7 Cow. 153 ; First Parish in Sudbury v. Stearns, 21 Pick. 148; Blandford School District v. Gibbs, 2 Gush. 39; People v. Cicott, 16 Mich. 283; Judkins v. Hill, 60 N. H. 140; De- loach i;. Rogers, 86 N. C. 357 ; Tarbox v. Sughrue, 36 Kan. 225, 12 Pac. 935; Sweptson v. Barton, 39 Ark. 549. See Shields v. McGregor, 91 Mo. 534, 4 S. W. 266. Votes received illegally will be re- jected by the court in an action to try title to an office. State v. Hilmantel, 21 Wis. 566 ; Harbaugh v. Cicott, 33 Mich. 241 ; Clark v. Robinson, 88 111. 498. CII. XVII.] THE EXPRESSION OF THE POPULAE WILL. 933 justify legal voters in refusing to vote, and treating the election as void, but it will be held valid if the persons declared chosen had a plurality of the legal votes actually cast. 1 So it is held that an exclusion of legal votes not fraudulently, but through error in judgment will not defeat an election ; notwithstanding the error in such a case is one which there was no mode of cor- recting, even by the aid of the courts, since it cannot be known with certainty afterwards how the excluded electors would have voted, and it would obviously be dangerous to receive and rely upon their subsequent statements as to their intentions, after it is ascertained precisely what effect their votes would have upon the result. 2 If, however, the inspectors of election shall exclude legal voters, not because of honest error in judgment, but wilfully and corruptly, and to an extent that affects the result, or if by riots or otherwise legal voters are intimated and prevented from voting, or for any other reasons the electors have not had opportunity for the expression of their sentiments through the ballot-box, the elec- tion should be set aside altogether, as having failed in the purpose for which it was called. 8 Errors of judgment are inevitable, but fraud, intimidation, and violence the law can and should protect against. A mere casual affray, however, or accidental disturbance, without any intention of overawing or intimidating the electors, cannot be considered as affecting the freedom of the election; 4 nor in any case would electors be justified in abandoning the ground for any light causes, or for improper interference by others, where the officers continue in the discharge of their func- tions, and there is opportunity for the electors to vote. 6 And, as we have already seen, a failure of an election in one precinct, or disorder or violence which prevent a return from that precinct, will not defeat the whole election, unless it appears that the votes which could not be returned in consequence of the violence would have changed the result. 6 It is a little difficult at times to adopt 1 First Parish in Sudbury v. Stearns, Matter of Long Island R. R. Co., 19 21 Pick. 148. Wend. 37 ; People v. Phillips, 1 Denio, 2 Newcum v. Kirtley, 13 B. Monr. 515. 388; State v. McDaniel, 22 Ohio St. 354. See Burke v. Supervisors of Monroe, 4 4 Gush. Leg. Assemb. 184 ; Roberts W. Va. 371 ; QPickett v. Russell, 42 Fla. v. Calvert, 98 N. C. 580, 4 S. E. 127. 116, 28 So. 764.] 6 See First Parish in Sudbury v. 6 Where one receives a majority of Stearns, 21 Pick. 148. Enough voters to all the votes cast, the opposing candidate change the result must have been pre- cannot be declared elected on evidence vented from voting in order to vitiate the that legal voters sufficient to change the election. Tarbox v. Sughrue, 36 Kan. result offered to vote for him, but were 225, 12 Pac. 935. And see cases, p. 922, erroneously denied the right ; but the note 2, ante. election may be declared to have failed, 6 Exparte Heath, 3 Hill, 42. See ante, and a new election be ordered. Renner p. 927, and note. v. Bennett, 21 Ohio St. 431. See also 934 CONSTITUTIONAL LIMITATIONS. [CH. XVII. the true mean between those things which should and those which should not defeat an election ; for while on the one hand the law should seek to secure the due expression of his will by every legal voter, and guard against any irregularities or misconduct that may tend to prevent it, so, on the other hand, it is to be borne in mind that charges of irregularity and misconduct are easily made, and that the dangers from throwing elections open to be set aside or controlled by oral evidence, are perhaps as great as any in our system. An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election ; but as it is generally im- possible to arrive at any greater certainty of result by resort to oral evidence, public policy is best subserved by allowing the election to stand, and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future. The Canvass and the Return. If the election is purely a local one, the inspectors who have had charge of it will be expected to proceed immediately on the closing of the poll to canvass the votes and declare the result. It is commonly made their duty also, or the duty of their clerk, to issue to the person or persons appearing to be chosen a certificate or notification of his or their election, which will be presumptive evidence of the fact. It is not in the power of the inspectors by neglecting or refusing to give the proper certificate to defeat the will of the people, for the ballots determine the election and not the certificate, and the person chosen, from whom the certificate is withheld, may nevertheless proceed to qualify and take posses- sion of the office unless opposed by a de facto incumbent. 1 If the election district comprises several precincts, the inspectors of the polls in each will make return in writing of the canvass made by them to the proper board of canvassers for the whole district, and if the election is for State officers, this district board will transmit the result of the district canvass to the proper State board, who will declare the general result. 2 In all this, the several boards 1 Ex parte Smith, 8 S. C. 495 ; Govan t>. Hickman, 12 Col. 256, 21 Pac. 325 ; v. Jackson, 32 Ark. 553. Fowler v. State, 68 Tex. 30, 3 S. W. 255. 2 Errors in certifying boxes, &c., and See People v. Higgins, 3 Mich. 233 ; State making the returns will not, in the ab- v. Berg, 76 Mo. 136 ; Dixon v. Orr, 49 sence of fraud or changes in the ballots, Ark. 238, 4 S. W. 774. warrant throwing out the vote. Kellogg CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 935 act for the most part in a ministerial capacity, and are not vested with judicial powers to correct the errors and mistakes that may have occurred with any officer who preceded them in the perform- ance of any duty connected with the election, or to pass upon any disputed fact which may affect the result. 1 Each board is to re- ceive the returns transmitted to it, if in due form, as correct, and is to ascertain and declare the result as it appears by such re- turns ; 2 and if other matters are introduced into the return than those which the law provides, they are to that extent unofficial and unauthorized, and must be disregarded. 3 If a district or People v. Kilduff, 15 111. 492 ; O'Ferrell v. Colby, 2 Minn. -180 ; People v. Van Cleve, 1 Mich. 362; People v. Van Slyck, 4 Cow. 297; Morgan v. Quackenbush, 22 Barb. 72 ; Dishon v. Smith, 10 Iowa, 212 ; People v. Cook, 14 Barb. 259, and 8 N. Y. 67 ; Hartt v. Harvey, 32 Barb. 55 ; Attor- ney-General v. Barstow, 4 Wis. 567 ; At- torney-General v. Ely, 4 Wis. 420 ; State v. Governor, 25 N. J. 331 ; State v. Clerk of Passaic, 25 N. J. 354; Marshall v. Kerns, 2 Swan, 68; People v Pease, 27 N. Y. 45; Phelps v. Schroder, 26 Ohio St. 549; State v. State Canvassers, 36 Wis. 498 ; Opinion of Justices, 53 N. H. 640 ; State v. Cavers, 22 Iowa, 343 ; State v. Harrison, 38 Mo. 640 ; State v. Rod- man, 43 Mo. 256; State v. Steers, 44 Mo. 223; Bacon r. York Co., 26 Mo. 491; Taylor v. Taylor, 10 Minn. 107; Opinion of Justices, 64 Me. 588 ; Prince v. Skillin, 71 Me. 361, 36 Am. Rep. 325; Peebles v. County Com'rs, 82 N. C. 385 Clark v. County Examiners, 126 Mass. 282; State v. County Canvassers, 17 Fla. 29 ; Hagge v. State, 10 Neb. 61, 4 N. W. 375 ; State v. Wilson, 24 Neb. 139, 38 N. W. 31 ; Moore v. Kessler, 59 Ind. 152; State v. Hayne, 8 S. C. 67. They may not re- fuse to canvass because a poll book is not returned as it should be. Patten v. Florence, 38 Kan. 601, 17 Pac. 174. They may and should correct an arith- metical blunder. State v. Hill, 20 Neb. 119, 29 N. W. 258. Legal returns re- ceived after the proper time should be counted. Cresap v. Gray, 10 Oreg. 345. [JAfter the board lias acted upon returns that are fair on their face, and has ren- dered its return, it is functus offirio and cannot revise its work. Rosenthal r. State Bd. of Canvassers. 50 Kan. 129, 32 Pac. 129, 19 L. R. A. 157.] Ex parte Heath, 3 Hill, 42. Papers 1 State v. Charleston, 1 S. C. N. s. 30. And see cases cited in the next note. While canvassers act in a ministerial ca- pacity only, and must declare the result on the face of the returns, it does not fol- low that they are to insist upon technical accuracy in the returns, and reject those which do not comply with the very letter of the law, and that they are compelled to act upon returns which by mistake have been made inaccurate, without af- fording an opportunity for correction. If, for example, in a return transmitted to them, the name of one of the persons voted for is erroneously given, and the election judges are ready to correct it, a great wrong is done if this is not per- mitted. The purpose of the canvass is to determine, record, and declare the act- ual will of the electors ; not to defeat it; and when technicalities and mistakes are seized upon and taken advantage of for party or personal ends, and without other object or necessity, the public injury is very manifest. It is of the utmost im- portance that the public shall have con- fidence in the administration of the election laws ; and whatever undermines that confidence invites fraud and violence. It is true that errors which creep into the returns may be obviated on a judicial trial ; but that is a slow and expensive process, and ought not to be forced upon the parties except in cases where the re- sult upon the balloting is really in doubt. Errors which are immaterial should be overlooked, and those which are mate- rial ought to be corrected by the proper officers whenever it is practicable. 2 Ex parte Heath, 3 Hill. 42 ; Brower v. O'Brien. 2 Ind 423; People v. Hil- liard, 29 111. 413 ; People v. Jones. 19 Ind. 357; Mayo v. Freeland, 10 Mo. 629; Thompson v. Circuit Judge, 9 Ala. 338 ; 936 CONSTITUTIONAL LIMITATIONS. [CH. XVII. State board of canvassers assumes to reject returns transmitted to it, on other grounds than those appearing upon its face, or to declare persons elected who are not shown by the returns to have received the requisite plurality, it is usurping functions, and its conduct will be reprehensible, if not even criminal. 1 The action of such boards is to be carefully confined to an examination of the papers before them, and a determination of the result there- from, in the light of such facts of public notoriety connected with the election as every one takes notice of, and which may enable them to apply such ballots as are in any respect imperfect to the proper candidates or offices for which they are intended, provided the intent is sufficiently indicated by the ballot in connection with such facts, so that extraneous evidence is riot necessary for this purpose. 2 If canvassers refuse or neglect to perform their duty, they may be compelled by mandamus; 3 though as these boards are created for a single purpose only, and are dissolved by an adjournment without day, it has been held that, after such ad- journment mandamus would be inapplicable, inasmuch as there is no longer any board which can act. 4 But we should think the better doctrine to be, that if the board adjourn before a legal and complete performance of their duty, mandamus would lie to com- pel them to meet and perform it. 5 But when the board them- in the poll book but not a part of the People v. Supervisors, 12 Barb. 217 ; return cannot be considered. Simon v. State v. Rodman, 43 Mo. 256. Durham, 10 Oreg. 52. Returns void on 8 To this effect is State v. Gibbs, 13 their face may be rejected. State v. State Fla. 55; People v. Schiellein, 95 N. Y. 124. Canvassers, 36 Wis. 498. A certificate In the last case it is held that the board to be made by a justice and inspectors is continues as such, in spite of adjourn- void on its face if signed by the justice ment, till its whole duty is performed, alone. Perry v. Whitaker, 71 N. C. 475. And see People v. Board of Registration, 1 Prince v. Skillin,71 Me. 361, 36 Am. 17 Mich. 427; People v. Board, &c. of Rep. 325. But if not void on their face, Nankin, 15 Mich. 156; Lewis v. Com- the election board to whicli they are missioners, 16 Kan. 102; Pacheco v. returned have no jurisdiction to go be- Beck, 52 Cal. 3 ; State v. Hill, 20 Neb. hind them and inquire into questions of 119, 29 N. W. 258. And they may be fraud in the election. Phelps v. Schroder, compelled to make a legal and proper 26 Ohio St. 549; Leigh v. State, 69 Ala. canvass after they have made one which 261; Brown v. Com'rs Rush Co., 38 Kan. was illegal and unwarranted. State v. 436, 17 Pac. 304; Opinion of Justices, 58 County Com'rs, 23 Kan. 264; State . N. H. 621. So of judges of the Supreme Hill, 10 Neb. 58, 4 N. W. 514; Stewart Court sitting as canvassers. Osgood v. v. Peyton, 77 Ga. 668; Simon v. Durham, Jones, 60 N. H. 273, 282. 10 Oreg. 52. And if tiiey have finished 2 State v. Foster, 38 Ohio St. 599. their work before the time allowed has 8 Clark v. McKenzie, 7 Bush, 523 ; elapsed, and while they still have the re- Burke v. Supervisors of Monroe, 4 W. turns, they may be compelled to recon- Va. 371 ; State v . County Judge, 7 Iowa, sider their action. State v. Berg, 76 Mo. 186; Magee v. Supervisors, 10 Cal. 376; 136. fJUpon canvassing boards, their Kisler v. Cameron, 39 Ind. 488 ; Common- powers and duties, see People v. Rice, wealth . Emminger, 74 Pa. St. 479. 129 N. Y. 449, 29 N. E. 356, 14 L. R. A. * Clark v. Buchanan, 2 Minn. 346; 643.] CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 937 selves have once performed and fully completed their duty, they have- no power afterwards to reconsider their determination and come to a different conclusion. 1 Contesting Elections. As the election officers perform for the most part ministerial functions only, their returns, and the certificates of election which are issued upon them, are not conclusive in favor of the officers who would thereby appear to be chosen, but the final decision must rest with the courts. 2 This is the general rule, and the exceptions are of those cases where the law under which the can- vass is made declares the decision conclusive, or where a special statutory board is established with powers of final decision. 3 What- 1 Hadley v. Mayor, &c., 33 N. Y. 603 ; State f. Warren, 1 Houston, 39; State v. Harrison, 38 Mo. 540; Swain v. McRae, 80 N. C. Ill; State v. Lamberton, 37 Minn. 362, 34 N. W. 336; Myers v. Chalmers, 60 Miss. 772; People v. Rear- don, 3 N. Y. Supp. 560 ; People v. Board Canvassers, 46 Hun, 390. Compare Al- derson v. Com'rs, 32 W. Va. 454, 9 S. E. 863. If they recount and give the cer- tificate to another, such action is a mere nullity. Bowen v. Hixon, 45 Mo. 340; People v. Robertson, 27 Mich. 116; Opin- ions of Justices, 117 Mass. 599; State v. Donewirth, 21 Ohio St. 216. 2 State v. Justices of Middlesex, 1 N. J. 244; Hillu. Hill, 4 McCord, 277; Wam- mack v. Holloway, 2 Ala. 31 ; State v. Clerk of Passaic, 25 N. J. 354; Marshall v. Kerns, 2 Swan, 68 ; Attorney-General v. Barstow, 4 Wis. 567 ; Attorney-General v. Ely, 4 Wis. 420; People v. Van Cleve, 1 Mich. 362 ; People v. Higgins, 3 Mich. 233; Dishon v. Smith, 10 Iowa, 212; State v. Johnson, 17 Ark. 407; State v. Fetter, 12 Wis. 566 ; State v. Avery, 14 Wis. 122; People i;. Jones, 20 Cal. 50; Newcum v. Kirtley, 13 B. Monr. 515; Commonwealth v. Jones, 10 Bush, 725 ; People v. Seaman, 5 Denio, 409 ; People v. Cook, 8 N. Y. 67 ; People v. Matteson, 17 111. 167; Taylor v. Taylor, 10 Minn. 107; Calaveras County v. Brock way ; 30 Cal. 325; Prince v. Skillin, 71 Me. 361. 36 Am. Rep. 325; Echols v. State, 50 Ala. 131 ; Reynolds v. State, 61 Ind. 392 ; Winter v. Thistle wood, 101 111. 450; Rob- erts ?. Calvert, 98 N. C. 580, 4 S. E. 127. But see State v. Dortch, 41 La. 846, 6 So. 777. In Georgia the governor's decision upon the election of officers commissioned by him is conclusive. Corbett v. Mc- Daniel, 77 Ga. 544. A chief justice can- not be empowered to decide, pending a legal determination of a contest, which claimant shall hold the office ad interim. If the power is executive it cannot be conferred on a judicial officer; if judi- cial, it belongs to a court. In re Cleve- land, 51 N. J. L. 319, 18 Atl. 67. An illegal election may be contested and set aside, even though but one person was voted for. Ex parte Ellyson, 20 Gratt. 10. The customary remedy is by writ of quo warranto, issued either on the relation of some citizen who shows an interest of his own in the question involved, or on relation of the Attorney-General in the interest of the State. State v. Tuttle, 53 Wis. 45, 9 N. W. 791. Statutory provi- sion for contesting elections does not abrogate the remedy by quo warranto. People v. Londoner, 13 Col. 303, 22 Pac. 764, differing from State v. Francis, 88 Mo. 557. fJUpon election contests in Indiana, see English v. Dickery, 128 Ind. 174, 27 N. E. 495, 13 L. R. A. 40, and note. As to notice to contestee, see Bowler v. Eisenhood, 1 S. D. 577, 48 N. W, 136, 12 L. R. A. 705, and note.] 8 See Grier v. Shackleford, Const. Hep. 642 ; Batman v. Megowan, 1 Met. (Ky.) 533; State v. Marlow, 15 Ohio St. 114; People r. Goodwin, 22 Mich. 496 ; Baxter v. Brooks, 29 Ark. 173, 11 Am. Law Rev. 534; Hipp ?>. Charlevoix Co. Supervisors, 62 Mich. 456, 29 N. W. 707. For the pro- ceedings in the State of New York in the 938 CONSTITUTIONAL LIMITATIONS. [CH. XVII. ever may be the office, an election to it is only made by the can- didate receiving the requisite majority or plurality of the legal votes cast; 1 and whoever, without such election, intrudes into an office, whether with or without the formal evidences of title, may be ousted on the proper judicial inquiry. 2 The general doc- trine is here stated ; but in one important case it was denied that it could apply to the office of chief executive of the State. The case was one in which the incumbent was a candidate for re-election, and a majority of votes was cast for his opponent. Certain spurious returns were, however, transmitted to the State canvassers, which, together with the legal returns, showed a plu- rality for the incumbent, and he was accordingly declared chosen. Proceedings being taken against him by quo warranto in the Supreme Court, he objected to the jurisdiction, on the ground that the three departments of the State government, the legis- lative, the executive, and the judicial, were equal, co-ordinate, and independent of each other, and that each department must be and is the ultimate judge of the election and qualification of its own member or members, subject only to impeachment and ap- canvass of votes for Governor in 1792, where the election of John Jay to that office was defeated by the rejection of votes cast for him for certain irregu- larities, which, under the more recent judicial decisions, ought to have been overlooked, see Hammond's Political History of New York, ch. 3. The law then in force made the decision of the State canvassers final and conclusive. The Louisiana Returning Board cases will readily occur to the mind ; but those must be regarded as standing by them- selves, because the legislative provisions under which they were had were unlike any others known to our history, and assumed to confer extraordinary and irresponsible powers. fJFor the proced- ure in Nebraska where the legislature in joint session determines contests over election of officers of the executive de- partment, see State v. Elder, 31 Neb. 169, 47 N. W. 710, 10 L. R. A. 796, and re-election of executive officers, Re Re- Election of Executive Officers, 31 Neb. 262, 47 N. W. 923, 10 L. R. A. 803.] 1 In some cases it is provided by law, that, if there is a tie vote, the two per- sons receiving an equal and the highest Aumlier shall cast lots, and the election shall be thereby determined. The draw- ing of lots, however, would not preclude an inquiry, at the suit of the State, into previous irregularities. People v. Robert- son, 27 Mich. 116. fJAnd where the Con- stitution provides a mode of procedure to be followed in case of tie votes for cer- tain officers, but makes none for justices of the peace, and does not authorize the legislature to provide for such case, there is no election in case of tie vote for jus- tice of the peace, and the old incumbent holds over. State v. Kramer, 160 Mo. 89, 51 S. W. 716,47 L. R. A. 551. J 2 Whether jury trial in the case of contested elections is matter of right, seems to be made a question. That it is, see State v. Burnett, 2 Ala. 140; People v. Cicott, 16 Mich. 283; ilictiim, People i>. Albany, &c. R. R. Co., 57 N. Y. 161. That it is not, is held in Ewing v. Filley, 43 Pa. St. 384; Commonwealth v. Leech, 44 Pa. St. 332; State v. Johnson, 26 Ark. 281 ; Wheat v. Smith, 50 Ark. 266, 7 S. W. 161; Williamson v. Lane, 52 Tex. 335; State r. Lewis, 51 Conn. 113. [State v. Doherty, 16 Wash. 382, 47 Pac. 958, 58 Am. St. 39 ] It is, however, conceded in Pennsylvania that, in a proceeding to forfeit an office, jury trial is of right. See also cases, p. 590, note 2, ante. CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 939 peal to the people ; that the question, who is rightfully entitled to the office of governor, could in no case become a judicial ques- tion ; and that as the Constitution provides no means for ousting a successful usurper of either of the three departments of the government, that power rests exclusively with the people, to be exercised by them whenever they think the exigency requires it. 1 There is a basis of truth in this argument ; the executive of the State cannot be subordinated to the judiciary, and may, in general, refuse obedience to writs by which this may be attempted. 2 But when the question is, who is the executive of the State, the judges have functions to perform, which are at least as important as those of any other citizens, and the fact that they are judges can never be a reason why they should submit to a usurpation. A successful usurpation of the executive office can only be accom- plished with the acquiescence of the other departments ; and the judges, for the determination of their own course, must, in some form, inquire into or take notice of the facts. In a controversy of such momentous import, the most formal and deliberate in- quiry that the circumstances will admit of is alone excusable ; and, when made and declared, the circumstances must be extraor- dinary in which it will not be effectual. In the case referred to, the usurper, though the candidate of a party embracing hnlf the voters of the State, found himself utterly stripped of power by the decision of the court against him ; public support fell away from him, and success in his usurpation became an impossibility. The decision guided and determined the popular sentiment, and perhaps saved the State from disorder, violence, and anarchy. 3 Where, however, the question arises collaterally, and not in a direct proceeding to try the title to the office, the correctness of the decision of the canvassers cannot be called in question, but must be conclusively presumed to be correct ; 4 and where the 1 Attorney-General v. Barstow, 4 Wis. ter mined by popular acquiescence. The 567. difficulty was that the legislative author- a See ante, p. 162. ity was as much in dispute as the execu- 8 Some attention to conflicts between tive. The cases of South Carolina and the several departments of government Louisiana are here specially referred to. was given by the author in an essay on * Morgan v. Quackenbush, 22 Barb. Checks and Balances in Government, pub- 72; Hadley v. Mayor, &c., 33 N. Y. 603; lished in the " International Review " for Howard v. McDiarmid, 26 Ark. 100. And 1876. A question like that above men- see Hulseman v. Rens, 41 Pa. St. 396, tioned could not arise in respect to the where it was held that the court could not presidency, as Congress must canvass and interfere summarily to set aside a certifl- declare the result. In some recent cases, cate of election, where it did not appear in which the office of governor was in that the officers had acted corruptly, not- question, though the decision was placed withstanding it was shown to be based in by the constitution in the hands of the part upon forged returns, legislature, the final result was only de- 940 CONSTITUTIONAL LIMITATIONS. [CH. XVII. election was to a legislative office, the final decision, as well by parliamentary law as by constitutional provisions, rests with the legislative body itself, and the courts, as we have heretofore seen, 1 cannot interfere. 2 The most important question which remains to be mentioned relates to the evidence which the courts are at liberty to receive, and the facts which it is proper to spread before the jury for their consideration when an issue is made upon an election for trial at law. The questions involved in every case are, first, has there been an election ? and second, was the party who has taken possession of the office the successful candidate at such election, by having received a majority of the legal votes cast ? 3 These are ques- tions which involve mixed considerations of law and fact, and the proper proceeding in which to try them in the courts is by quo warrantOj when no special statutory tribunal is created for the purpose. 4 Upon the first question, we shall not add to what we have al- ready said. When the second is to be considered, it is to be con- stantly borne in mind that the point of inquiry is the will of the electors as manifested by their ballots ; and to this should all the evidence be directed, and none that does not bear upon it should be admissible. We have already seen that the certificates or determinations of the various canvassing boards, though conclusive in collateral in- quiries, do not preclude an investigation by the courts into the facts which they certify. They are prima facie evidence, how- ever, even in the courts ; 6 and this is so, notwithstanding altera- 1 See ante, p. 189, note 1. See also Draper, 50 Mo. 353. Where tlie officers Commonwealth v. Meeser, 44 Pa. St. 341. acted fraudulently in the conduct of an 2 In Maine, where there were two con- election, their returns may be rejected, flicting bodies, each claiming the right to and the result be arrived at from other exercise the legislative power, the judici- proofs exclusively. Supervisors v. Davis, ary asserted and enforced the right to de- 63 111. 405. Where returns are lost or cide between them. Prince v. Skillin, 71 defective, parol evidence of what the vote Me. 361, 36 Am. Rep. 325. It is to be was is admissible : Wheat v. Smith, 60 observed, however, that the governor had Ark. 266, 7 S. W. 161 ; Dixon v. Orr, 49 already recognized the same body in Ark. 238, 4 S. W. 774, if ballots cannot, whose favor the court decided, and had from possible tampering, be admitted, approved the act whose validity came in Stemper v. Higgins, 38 Minn. 222, 37 question in the court. N. W. 95. 8 See cases cited, p. 935, note. Also 4 People v. Matteson, 17 III. 167 ; Peo- State v. The Judge, 13 Ala. 805; People pie v. Cover, 50 111. 100. If the proceed- v. Kobertson, 27 Mich. 116 ; Common- ing is commenced before the term which wealth v. Emminger, 74 Pa. St. 479 ; is in contest has expired, it may be con- Dobyns v. Weadon, 50 Ind. 298. The tinued to a conclusion aitenvards. State right to the office comes from the ballots, v. Pierce, 35 Wis. 03. and not from the commission. State v. 5 Marshall v. Kerns, 2 Swan, 68; Mor- CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 941 tions appear ; the question of their fairness in such a case being for the jury. 1 But back of this prima facie case the courts may go, and the determinations of the State board may be corrected by those of the district boards, and the latter by the ballots them- selves when the ballots are still in existence, and have been kept as required by law. 2 If, however, the ballots have not been kept as required by law, and surrounded by such securities as the law has prescribed with a view to their safe preservation as the best evidence of the election, it would seem that they should not be received in evidence at all, 3 or, if received, that it should be left to the jury to determine, upon all the circumstances of the case, whether they constitute more reliable evidence than the inspec- tors' certificate, 4 which is usually prepared immediately on the close of the election, and upon actual count of the ballots as then made by the officers whose duty it is to do so. Something has already been said regarding the evidence which can be received where the elector's ballot is less complete and perfect in its expression of intention than it should have been. There can be no doubt under the authorities that, whenever a question may arise as to the proper application of a ballot, any evidence is admissible with a view to explain and apply it which would be admissible under the general rules of evidence for the purpose of explaining and applying other written instruments. But the rule, as it appears to us, ought not to go further. The evidence ought to be confined to proof of the concomitant cir- cumstances ; such circumstances as may be proved in support or explanation of a contract, where the parties themselves would not be allowed to give testimony as to their actual intention, when unfortunately the intention was ineffectually expressed. 5 gan v. Quackenbush, 22 Barb. 72; Gala- 8 People v. Sackett, 14 Mich. 320. But veras County v. Brock way, 30 Cal'. 325. see People v. Higgins, 3 Mich. 233. Bur- 1 State v. Adams, 2 Stew. 231. See den of showing that ballots offered are State v. Hilmantel, 23 Wis. 422. genuine is on the party offering them. 2 People v. Van Cleve, 1 Mich. 362 ; Powell v. Holman, 60 Ark. 85, 6 S. W. People v. Higgins, 3 Mich. 233 ; State v. 505 ; Fenton v. Scott, 17 Oreg. 189, 20 Clerk of Passaic, 25 N. J. 354 ; State v. Pac. 95 ; Coglan v. Beard, 67 Cal. 303, Judge. &c., 13 Ala. 805; People v. Cook, 7 Pac. 738, which see as to what is suffl- 14 Barb. 259, 8 N. Y. 67; People r. cient proof that they have not been tam- Cicott, 16 Mich. 283 ; Attorney-General v. pered with. Ely, 4 Wis. 420; Owens v. State, 64 Tex. * People v. Cicott, 16 Mich. 283; Du- 500. Ballots which sliould have been son v. Thompson, 32 La. Ann. 861 ; Peo- destroyed under the law cannot be used pie v. Livingston, 79 N. Y. 279; People v. on a recount. State t;. Bate, 70 Wis. 409, Robertson, 27 Mich. 116. 36 N. W. 17. The ballot is always the 5 People v. Pease, 27 N. Y. 45, 84, per best evidence of the voter's action. Denio, Ch. J., commenting upon previous Wheat v. Ragsdale, 27 Ind. 191 ; People New York cases. See also Attorney- v. Holden, 28 Cal. 123 ; Searle v. Clark, General v. Ely, 4 Wis. 420. 34 Kan. 49, 7 Pac. 630. 942 CONSTITUTIONAL LIMITATIONS. [CH. XVIL And we have seen that no evidence is admissible as to how par- ties intended to vote who were wrongfully prevented or excluded from so doing. Such a case is one of wrong without remedy, so far as candidates are concerned. 1 There is more difficulty, how- ever, when the question arises whether votes which have been cast by incompetent persons, and which have been allowed in the canvass, can afterwards be inquired into and rejected because of the want of qualification. If votes were taken viva voce, so that it could always be deter- mined with absolute certainty how every person had voted, the objections to this species of scrutiny after an election had been held would not be very formidable. But when secret balloting is the policy of the law, and no one is at liberty to inquire how any elector has voted, except as he may voluntarily have waived his privilege, and when consequently the avenues to correct in- formation concerning the votes cast are carefully guarded against judicial exploration, it seems exceedingly dangerous to permit any question to be raised upon this subject. For the evidence voluntarily given upon any such question will usually come from those least worthy of credit, who, if they have voted without legal right in order to elect particular candidates, will be equally ready to testify falsely, if their testimony can be made to help the same candidates ; especially when, if they give evidence that they voted the opposing ticket, there can usually be no means, as they will well know, of showing the evidence to be untrue. 2 Moreover, to allow such scrutiny is to hold out strong temptation to usurpation of office, without pretence or color of right ; since the nature of the case, and the forms and proceedings necessary to a trial, are such that, if an issue may be made on the right of every individual voter, it will be easy, in the case of important elections, to prolong a contest for the major part if not the whole of an official term, and to keep perpetually before the courts the same excitements, strifes, and animosities which characterize the hustings, and which ought, for the peace of the community, and the safety and stability of our institutions, to terminate with the close of the polls. 3 1 See ante, p. 933. ticket of his choice, and then, on a con- 2 It has been decided in Wisconsin test, he declares he voted the other way, that where an unqualified person is called and a deduction is made from the oppo- to prove that he voted at an election, and site vote accordingly. See Beardstown declines to testify, the fact of his having v. Virginia, 76 111. 34. voted may be proved, and then -his decla- 8 This is one reason, perhaps, why in rations may be put in evidence to show the ease of State officers a statutory tri- how he voted. State t>. Olin, 23 Wis. 309. bunal is sometimes provided with powers This may give the incompetent voter a of summary and final decision, double vote. First, he votes for the CH. XVII.J THE EXPKESSION OF THE POPULAR WILL. 943 Upon this subject there is very little judicial authority, though legislative bodies, deriving their precedents from England, where the system of open voting prevailed, have always been accustomed to receive such evidence, and have indeed allowed a latitude of inquiry which makes more to depend upon the conscience of the witnesses, and of legislative committees, in some cases, than upon the legitimate action of the voters. The question of the right to inquire into the qualifications of those who had voted at an elec- tion, on a proceeding in the nature of a quo warranto, was directly presented in one case to the Supreme Court of New York, and the court was equally divided upon it. 1 On error to the Court of Appeals, a decision in favor of the right was rendered with the concurrence of five judges, against three dissentients. 2 The same question afterwards came before the Supreme Court of Michigan, and was decided the same way, though it appears from the opinions that the court were equally divided in their views. 3 To these cases we must refer for the full discussion of the rea- sons influencing the several judges; but future decisions alone can give the question authoritative settlement. 4 1 People v. Pease, 30 Barb. 588. 2 People v. Pease, 29 N. Y. 45. 8 People v. Cicott, 16 Mich. 283. See further the case of State v. Hilmantel, 23 Wis. 422, where it was decided that those who had voted illegally might be com- pelled to testify for whom they voted. The question was discussed but briefly, and as one of privilege merely. 4 Considerable stress was laid by the majority of the New York Court of Ap- peals on the legislative practice, which, as it seems to us, is quite too loose in these cases to constitute a safe guide. Some other rulings in that case also seem more latitudinarian than is warranted by sound principle and a due regard to the secret ballot system which we justly esteem so important. Thus, Selden, J., says: " When a voter refuses to disclose or fails to remember for whom he voted, I think it is competent to resort to cir- cumstantial evidence to raise a presump- tion in regard to that fact. Such is the established rule in election cases before legislative committees, which assume to be governed by legal rules of evidence (Cush. Leg. Assem. 199 and 200) ; and within that rule it was proper, in connec- tion with the other circumstances stated by the witness Loftis, to ask him for whom he intended to vote ; not, however, on the ground that his intention, as an independent fact, could be material, but on the ground that it was a circumstance tending to raise a presumption for whom he did vote." Now as, in the absence of fraud or mistake, you have arrived at a knowledge of how the man voted, when you have ascertained how, at the time, lie intended to vote, it is difficult to dis- cover much value in the elector's privi- lege of secrecy under this ruling. And if " circumstances " may be shown to de- termine how he probably voted, in cases where he insists upon his constitutional right to secrecy, then, as it appears to us, it would be better to abolish altogether the secret ballot than to continue longer a system which falsely promises secrecy, at the same time that it gives to party spies and informers full license to invade the voter's privilege in secret and surrep- titious ways, and which leaves jurors, in the absence of any definite information, to act upon their guesses, surmises, and vague conjectures as to the contents of a ballot. Upon the right to inquire into the qualifications of those who have voted, in a proceeding by quo warranto to test the right to a public office, reference is made to the very full discussions by Justices Christiancy and Campbell, taking different 944 CONSTITUTIONAL LIMITATIONS. [CH. XVII. views, in People v. Cicott, 16 Mich. 283, 294, 311. fJThe question of the effect of votes cast by unqualified voters arose in Rasmussen v. Baker, 7 Wyo. 117, 60 Pac. 819, 38 L. R. A. 773. The Constitution of Wyoming provides that "no person shall have the right to vote who shall not be able to read the Constitution of this State." At an election held Nov. 3, 1896, to elect a county treasurer, fifty-four votes in one precinct and fifty in another were cast for the defendant B, by natu- ralized citizens of Finnish birth. These voters were incapable of reading the Constitution in English, but could read a Finnish translation of it. Held, that they were unqualified, and that their votes were void.] INDEX. THE FIGURES REFER TO THE TOP PAGING. ABBREVIATIONS, when ballots rendered ineffectual by, 916-919. AB INCONVENIENT!, doctrine of, in construction, 93, n. i, 102-106. ACCUSATIONS OF CRIME, are actionable per se, 605. self, not to be compelled, 442-449. how made with a view to investigation and trial, 436. See PERSONAL LIBEKTY. varying form of, cannot subject party to second trial, 470. ACCUSED PARTIES, testimony of, in their own behalf, 447-449. confessions of, 443-449. See PERSONAL LIBERTY. ACQUIESCENCE, in irregular organization of corporations, 363, 364. ACTION, against States, 23. against election officers for refusing to receive votes, 927. for negligent or improper construction of public works, 358-362, 825, 826. for property taken under right of eminent domain, 812-828. See EMINENT DOMAIN. for exercise of legislative power by municipal bodies, 298-306. for slander and libel, rules for, 605-612. modification of, by statute, 615. See LIBERTY OF SPEECH AND OF THE PRESS. rights in, cannot be created by mere legislative enactment, 526, 527. nor taken away by legislature, 517, 518. nor appropriated under right of eminent domain, 759. nor forfeited, except by judicial proceedings, 517, 518. statutory penalties may be taken away before recovery of judgment, 518, n. 60 946 INDEX. ACTION" continued. limitation to suits, 520-524. statutes for, are unobjectionable in principle, 520, 521. subsequent repeal of statute cannot revive rights, 416, 521. principle on which statutes are based, 522. cannot apply against a party not in default, 523. must give parties an opportunity for trial, 523, 524. for causing death by negligence, &c., 844. ACTS OF PARLIAMENT, how far in force in America, 51-53. ACTS OF THE LEGISLATURE. See STATUTES. ADJOURNMENT OF SUIT, from regard to religious scruples of party, 676, n. ADJOURNMENT OF THE LEGISLATURE, on its own motion, 188. by the governor, 188. ADMINISTRATION, conclusiveness of, though supposed intestate living, 80, n. 1. ADMINISTRATIVE POWERS, distinguished from judicial, 143, n. 1. ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS. ADMIRALTY JURISDICTION, exercise of, by the Revolutionary Congress, 8. conferred upon courts of United States, 23. ADMISSIONS, of accused parties as evidence, 443-449. See CONFESSIONS. ADVERTISEMENT, notice to foreign parties by, 582-585. not effectual to warrant a personal judgment, 583-585. AGENCIES OF GOVERNMENT, not to be taxed, 45, 682-686. strict construction of powers of, 270-274. States not liable for acts of, 23, n. 2. AGREEMENTS. See CONTRACTS. ALABAMA, divorces qot to be granted by legislature, 153, n. 2. exercise of the pardoning power restrained, 160, n. 2. revenue bills to originate in lower house, 188, n. 1. privilege of legislators from arrest, 192, n. 1. bills, how to be signed, 195, n. 2. legislative journals to be signed by presiding officer, 195, n. 2. no law to embrace more than one object, to be expressed in title, 202, n. 3. right of jury to determine the law in cases of libel, 463, n. 1. protection of person and property by law of the land, 500, n. liberty of speech and the press in, 596, n. 1. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. persons conscientiously opposed to bearing arms excused, 676, n. 2. private property not to be taken without compensation, 816, n. 3. INDEX. 947 ALIENS, exclusion of, from suffrage, 58, 901. ALIMONY, payment of, cannot be ordered by legislature, 157. X decree for, not valid unless process served, 584, 585. AMBASSADORS, PUBLIC MINISTERS, ETC., President to appoint, 21, 22. , jurisdiction of United States courts in respect to, 23. AMENDMENT, of State constitutions, 49, 96, 97. of money bills, may be made by Senate, 188, n. 1. of indictments, 382. statutes allowing may apply to pending suits, 543-544. ' of statutes, 214-217. republication of statute amended, 215-217. by implication, 216. at the same session of their passage, 217. of defective proceedings by legislation, 416, 529-546. AMENDMENTS TO THE FEDERAL CONSTITUTION, first, 596, 668, n. AMERICAN COLONIES. See COLONIES. APPEAL, giving right of, retrospectively, 138, n. 1. right of, may be taken away, 547, 548. effect of change in the law pending an appeal, 544. APPOINTMENT TO OFFICE. See OFFICE. APPORTIONMENT, of powers between the States and the nation, 4. between the departments of the State government, 62-65, 126-134 of taxes, 708, 709, 712, 713. of debts and property on division of municipal corporations, 268, n. 2. ?Bee TAXATION. APPRAISAL, ii of private property taken by the public, 812-826. APPRAISEMENT LAWS, how far invalid, 412. APPRENTICE, control of master over, 486. APPROPRIATION, of private property to public use, 752 et seq. See EMINENT DOMAIN. APPROVAL OF LAWS. See GOVERNOR. ARBITRARY ARRESTS, illegality of, 425. See PERSONAL LIBERTY. ARBITRARY EXACTIONS, distinguished from taxation, 697. ARBITRARY POWER, unknown among common-law principles, 50. cannot be exercised under pretence of taxation, 697, 726. 948 INDEX. ARBITRARY RULES, of construction, danger of, 93, 94, 123, n. 1. of presumption, 465, u. 1 . ARBITRATION, submission of controversies to, 576. ARGUMENTUM AB 1NCONVEN1ENT1, in constitutional construction, 93, n. 1, 102-106. ARKANSAS, special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by the legislature, 153, n. 2. exercise of the pardoning power restrained, 160, n. 2. revenue bills to originate in lower house, 188, n. 1. privilege of legislators from arrest, 192, n. 1. limited time for introduction of new bills, 199, n. 2. no law to embrace more than one object, to be expressed in title, 202, n. 3. protection of person and property by the law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. 1. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. religious belief not to be test of competency of witness, 676, n. 2. ARMS, right to bear, 498, 499. exemption from bearing, of persons conscientiously opposed, 676. ARMY, and navy, Congress may raise, and maintain, 13. and make rules for government of, 13. quartering in private houses, 435. jealousy of standing army, 498, 499. ARREST, privilege of legislators from, 192. on criminal process. See CRIMES. of judgment, new trial after, 649 and n. 6. ART, WORKS OF, criticism of, how far privileged, 645. ARTICLES OF CONFEDERATION, adoption of, 9. why superseded, 9. ASSESSMENTS, for local improvements, generally made in reference to benefits, 713, 716. special taxing districts for, 714, 733, 734. not necessarily made on property according to value, 713-717. are made under the power of taxation, 713-716. not covered by the general constitutional provisions respecting taxation, 716, 717. not unconstitutional to make benefits the basis for, 715, 716, 729-735. apportionment necessary in cases of, 718. may be made in reference to frontage, 729-731. but each lot cannot be compelled to make the improvement in front of it, 732. for drains, levees, &c., 734-736. in labor for repair of roads, 737. INDEX. 949 ATTAINDER, meaning of the term, 368. bills of, not to be passed by State legislatures, 36, 62, 368. cases of such bills, 368-370. bills of pains and penalties included in, 370. ATTORNEYS, exclusion of, from practice, regarded as a punishment, 371, 372. right to notice of proceedings therefor, 583, n. 1. laws requiring service from, without compensation, 477, 563. punishment of, for misconduct, 481, 482. See COUNSEL. AUSTRALIAN BALLOT, use of, 899, n. (a), 911, n., 913, n. AUTHORS, not to be assailed through their works, 645. criticism of works of, how far privileged, 645. B. BAIL, accused parties entitled to, 437-439. unreasonable, not to be demanded, 439. on habeas corpus, 496. control of bail over principal, 486, 487. BAILMENT. See COMMON CARRIERS. BALLOT, correction of abuses by, 269 and n. 1. system of voting by, generally prevails, 910. Australian, 899, n. (a), 911, n., 913, n. right of the elector to secrecy, 910-913 and notes. regulations as to form of, 899, n. (a). must be complete in itself, 914, 915. abbreviated names, 916, 917. how far open to explanation, 920, 941, 942. voting machines satisfy requirement of, 910, n. 1. See ELECTIONS. BANKRUPTCY, power of Congress over, 12. . . legislation by the States, 45, 416, 417. BEARING ARMS, persons conscientiously opposed to, are excused, 676. constitutional right of, 498, 499. BEASTS, police regulations regarding, 886, n. 2. regulations making railway companies liable for killing, 841, 842. BENEFITS, may be taken into account in assessments for local improvements, 714, 715, 727, 734. what may be deducted when private property is taken by the public, 823- 825. 950 INDEX. BETTERMENT LAWS, principle of, 550-553. are constitutional, 553. owner cannot be compelled to improve his lands, 550. BETTING ON ELECTIONS, illegality of, 924. BEVERAGES, police regulations to prevent the sale of intoxicating, 845-851. BIBLE, in the schools, 665, n. 2. BILL OF RIGHTS (English), a declaratory statute, 51, 366. BILL OF RIGHTS (National), not originally inserted in Constitution, 365. reasons for omission, 365, 366. objections to Constitution on that ground, 367. afterwards added by amendments, 367, 368. BILL OF RIGHTS (State), generally found in constitution, 65. classes of provisions in, 65, 66. what prohibitions not necessary, 245. BILLS, LEGISLATIVE, constitutional provisions for three readings, 116-1 J 9, 199, 200. title of, to express object, 117, 202-217. when they become laws, 186, n. 1. including in, matter by reference, 200. See LEGISLATURE OF THE STATE. BILLS OF ATTAINDER, not to be passed by State legislature, 36, 62, 368. meaning of attainder u 368. cases of such bills, 37(P372~"and notes. BILLS OF CREDIT, States not to emit, 35. BILLS OF PAINS AND PENALTIES, included in bills of attainder, 370. BLASPHEMY, punishment of, does not violate religious liberty, 671-673. nor the liberty of speech, 604. published in account of judicial proceedings is not privileged, 638. BOATS, ferry, licensing of, 867. speed of, on navigable waters, may be regulated by States, 867, 868. BONA FIDE PURCHASERS, not to be affected by retrospective legislation, 539, 540. BONDS, issue of, by municipalities in aid of internal improvements, 167, 168, 312- 325. BOOKS, criticism of, how far privileged, 644, 645. indecent, sale of, may be prohibited, 884. INDEX. 951 BOUNTIES, when earned, become vested rights, 547, n. 6. payment of, to soldiers by municipal corporations, 326-332, 341, 342. BOUNTY SUBSCRIPTIONS, by municipal corporations, how far valid, 326-332, 341, 342, 699-701. BRIDGES, erection of, by State authority over navigable waters, 865, 866. See NAVIGABLE WATERS. BUILDINGS, condemnation and forfeiture of, as nuisances, 849, 850. destruction of, to prevent spread of fires, 756, 757, 878. appropriation of, under right of eminent domain, 752. BURIAL, right of, subject to control, 284, n. 4. BURLESQUES, libels by means of, 608. BUSINESS CHARGES, regulation of, 870-877. BY-LAWS, of municipal corporations, 270, 278-292. must be reasonable, 280-292. illustrative cases on question of reasonableness of, 281, n. 1, 282, n. 2, 284, n. 4. must be certain, 284. must not conflict with constitution of State or nation, 278. nor with statutes of State, 278, 279. nor with general principles of the common law, 284. imposing license fees, 283. of school corporations, 261, n. 1. C. CALIFORNIA, Mexican law retained in the system of, 54, n. 2. divorces not to be granted by the legislature, 153, n. 2. local option statutes, validity of, 173. privilege of legislators from arrest, 192, n. 1. no law to embrace more than one object, to be expressed in title, 202, n. 3. right of jury to determine the law in cases of libel, 463, n. 1. protection of person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 598, n. religious belief not to be test of incompetency of witness, 677, n. CANADA, apportionment of governmental powers in, 6, n. CANALS, appropriation of private property for, 767. CANDIDATES FOR OFFICE, criticism of, how far privileged, 616-628, 644. ineligibility of, how to affect election, 931. 952 INDEX. CANVASSERS, act ministerially in counting and returning votes, 934-936. whether they may be compelled by mandamus to perform duty, 936. certificate of, conclusive character of, 937. See ELECTIONS. CARRIERS, regulation of charges of, 870-876. police regulations making them liable for beasts killed, 841, 842. change of common-law liability of, by police regulations, 836-844, 870- 877. may be made responsible for death caused by negligence, &c., 843, 844. but not for injuries for which they are not responsible, 841, n. CATTLE, police regulations making railway companies liable for killing, 841, 842. other police regulations, 886, n. 2. CEMETERIES, further use of, may be prohibited when they become nuisances, 880, 881. CENSORSHIP OF THE PRESS, in England and America, 599, 600. CENTRALIZATION, American system the opposite of, 261. CHALLENGES, prisoner's right to, 459. CHARACTER, bad, of attorney, sufficient reason to exclude him from practice, 481, 482. slander of, 605. good, of defendant in libel suit, no defence to false publication, 658, n. benefit of, in criminal cases, 465, n. 1. CHARTERS, of liberty, 51. colonial, swept away by Revolution, 58. exceptions of Connecticut and Rhode Island, 58. forfeiture of, is a judicial question, 149, n. 1. municipal, do not constitute contracts, 268. control of legislature over, 266-270. construction of, 271, 309-342. See MUNICIPAL CORPORATIONS. of private corporations are contracts, 175, 391, 401. police regulations affecting, 835-844. strict construction of, 565-567. amendment of, 391-394, 837-840. CHASTITY, accusation of want of, not actionable per se, 606, 607. statutory provisions on the subject, 607. CHECKS AND BALANCES, in constitutions, 64, 65. CHILDREN, imprisonment of, for lack of parental control, 423, n. 4. control of parent, &c., over, 485. obtaining possession of, by habeas corpus, 496, 497. decree for custody of, in divorce suits, 584. INDEX. 953 CHRISTIANITY, its influence in the overthrow of slavery, 421 and n. 1, 422. in what sense part of the law of the land, 669-673 and n. 1. See RELIGIOUS LIBERTY. CHURCH ENDOWMENTS, not to be taken away by legislature, n. 2, 385. CHURCH ESTABLISHMENTS, forbidden by State constitutions, 659-668. CHURCH ORGANIZATIONS, powers and control of, 659, n. 1. discipline of members, 619, n. 3. CITIES AND VILLAGES. See MUNICIPAL CORPORATIONS. CITIZENS, who are, 14 and n. (c). of the several States, privileges and immunities of, 14, 15, 36, 37, 556- 575, 869. discriminations in taxation of, 573, 574, 692, 693. jurisdiction of United States courts in respect to, 23, 418. CIVIL RIGHTS, protection of, by amendments to constitution, 417, 418, 869. discriminations not to be made in, on account of religious beliefs, 659- 668. See CITIZENS ; CLASS LEGISLATION. CLASS LEGISLATION, private legislation which grants privileges, 554. party petitioning for, estopped from disputing validity, 554. public laws may be local in application, 554. special rules for pai'ticular occupations, 555. proscription for opinion's sake unconstitutional, 556. suspensions of laws must be general, 558. each individual entitled to be governed by general rules, 559-561. discriminations should be based upon reason, 561. equality of rights, &c., the aim of the law, 562. strict construction of special burdens and privileges, 563, 564. discriminations not to be made on account of religious beliefs, 659-668. See CIVIL RIGHTS. CLERICAL ERRORS, in statutes, disregarding, 218, n. 1. COINING MONEY, power over, 12. COLLUSION, conviction by, no bar to new prosecution, 467, n. 1. COLONIES, union of, before Revolution, 7. authority of the Crown and Parliament in, 7, 8. Revolutionary Congress and its powers, 8, 9. controversy with the mother country, 51, 53. legislatures of, 53. of what laws of, consisted at time of declaration of independence, 53-55. substitution of constitutions for charters of, 56. censorship of the press in, 600-603. 954 INDEX. COLOR, not to be a disqualification for suffrage, 17, IS, 901. COLORADO, special statutes authorizing sale of lands forbidden, 141, n. 1. divorces not to be granted by the legislature, 153, n. 2. revenue bills to originate in lower house, 188, n. 1. privilege of legislators from arrest, 192, n. 1. title of acts to embrace the object, 202, n. 3. municipalities of, restrained from aiding in public improvements, 318, n. 1. protection of person and property by law of the land, 500, n. 1. liberty of speech and of the press in, 596, n. 1. privilege of legislators in debate, 634, n. religious liberty in, 662, n. 3. private property not to be taken without compensation, 816, n. 3. COLORED PERSONS, protection to rights of, 17, 18. rights in schools, 556, n. 1. COMITY, enforcement of contracts by, 178-181. COMMERCE, power of Congress to regulate, 12, 687, 688, 851-859. State regulations valid when they do not interfere with those of Con- gress, 851-868. See POLICE POWER. State taxation of subjects of, 686-691, 851-859. See TAXATION. in intoxicating drinks, how far State regulations may affect, 845-851. COMMITTEES OF THE LEGISLATURE, collection of information by, 193. contempts of witnesses, how punished, 193. employment of counsel before, 196 and n. 2. COMMON CARRIERS, police regulations regarding, 838-844, 869-879. See RAILWAY COMPANIES. COMMON LAW, Federal courts acquire no jurisdiction from, 47, 613. existing before the Constitution, 49. what it consists in, 49. its general features, 50. modification of, by statutes, 50, 51. colonists in America claimed benefits of, 51, 52. how far in force, 51, n. 8, 52. of different States, presumption as to similarity of, 52, n. evidences of, 53. decisions under, as precedents, 83-88. gradual modification of, 88, 89. to be kept in view in construing constitutions, 94, 95. statutes in derogation of, 95, n. not to control constitutions, 95, 96. municipal by-laws must harmonize with, 278, 279. rules of liability for injurious publications, 605-609. modification of, by statute, 607. INDEX. 955 COMMON LAW continued. modification by police regulations of common-law liability of carriers, 838-844, 869-879. COMMON RIGHT, statutes against, said to be void, 233-237. COMPACTS BETWEEN STATES, must have consent of Congress, 36. are inviolable under United States Constitution, 386. COMPENSATION, for private property appropriated by the public, 812-828. See EMINENT DOMAIN. for injuries by rioters, 345, n. 1. what the taxpayer receives as an equivalent for taxes, 707, 708. COMPLAINTS, for purposes of search-warrant, 429. of crime, how made, 436. COMPULSORY TAXATION, by municipal bodies, 331-342. CONCLUSIVENESS OF JUDGMENTS, full faith and credit to be given in each State to those of other States, 37-40. parties and privies estopped by, 79-81, 587. but not in controversy with new subject-matter, 82. strangers to suit not bound by, 82. irregularities do not defeat, 587, 588. See JURISDICTION. CONDITIONAL LEGISLATION, power of the States to adopt, 164-170. not valid when framed for State at large, 168. CONDITIONS, what may be imposed on right of suffrage, 899-909. See ELECTIONS. precedent to exercise of right of eminent domain, 759-763. CONFEDERACY OF 1643. brought about by tendency of colonies to union, 7. CONFEDERATE DEBT, not to be assumed or paid, 17. CONFEDERATION, ARTICLES OF, adoption of, 9. authority to supersede, 9, n. CONFESSIONS, dangerous character of, as evidenc must appear to have been made voluntarily, 444. excluded if solicitations or threats have been used, 444. will not prove the corpus delicti, 444. CONFIDENCE, communications in, when privileged, 609-612. between attorney and client, is client's privilege, 477, 478. CONFIRMING INVALID PROCEEDINGS, of a judicial nature, 150, 151. admissible when defects are mere irregularities, 529 et seq. See RETROSPECTIVE LAWS. 956 INDEX. CONFISCATIONS, require judicial proceedings, 518. during the Revolutionary War, 370. CONFLICT OF LAWS, in divorce cases, 577-582. See UNCONSTITUTIONAL LAWS. CONFRONTING WITH WITNESSES, in criminal cases, 450-452. CONGRESS OF 1690, brought together by tendency of colonies to union, 7. CONGRESS OF THE REVOLUTION, 1775-1776, powers assumed and exercised by, 7, 9. CONGRESS OF THE UNITED STATES, general powers of, 11-18. enabling acts by, for formation of State constitutions, 58, 59. cannot divest vested rights, 518. exercise of power of eminent domain by, 755, 756. regulations of commerce by, are supreme, 687, 688, 851-859, 863. See POLICE POWER. CONNECTICUT, charter government of, 55. municipalities of, restrained from aiding public improvements, 318, n. 1. right of jury to determine the law in cases of libel, 463, n. 1. protection of person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. 1. privilege of legislators in debate, 634, n. religious liberty in, 662, n. 3. CONSCIENCE, FREEDOM OF (see RELIGIOUS LIBERTY), 659-677. CONSENT, conviction by collusion no bar to new prosecution, 467, n. 1. cannot confer jurisdiction of subject-matter upon courts, 575, 576. cannot authorize jury trial by less than twelve jurors, 458. is a waiver of irregularities in legal proceedings, 587, 588. waiver of constitutional privileges by, 250, 251, 458, n. 1, 554. CONSEQUENTIAL INJURIES, caused by exercise of legal right give no ground of complaint, 548, 549. do not constitute a taking of property, 781-788. otherwise under some constitutions, 810-812. are covered by assessment of damages when property taken by the State, 825, 826. but not such as result from negligence or improper construction, 825, 826. CONSTITUTION, definition of, 4, 5, 68, n. 1, 69. object of, in the American system, 68, 69. does not measure rights of governed, 68. CONSTITUTION OF ENGLAND, theory of, 6. power of Parliament under, 6. developed by precedents, 84, n. 1. CONSTITUTION OF THE UNITED STATES, origin of, 7-9. ratification of, 9. INDEX. 957 CONSTITUTION OF THE UNITED STATES continued. government of enumerated powers, formed by, 11, 242. all power of federal government must be found in, 11. general purpose and powers of the government under, 11-23. judicial powers under, 22, 23, 47. See COURTS OF THE UNITED STATES. prohibition by, of powers to the States, 35, 36, 416-417, 899, 901. guaranty of republican government to the States, 42-45. implied prohibitions on the States, 45. and on municipal corporations, 277, 278. reservation of powers to States and people, 46. difference between, and State constitutions, 11, 241, 242. construction of, 9, 10, n., 46, 47. amendment of State constitutions, how limited by, 62. new amendments to, 14. protection of person and property by, as against State action, 365-418. bill of rights not at first inserted in, and why, 365. adoption of, afterwards, 366-368. of attainder prohibited by, 368-372. See BILLS OF ATTAINDER. ex post facto laws also forbidden, 372-383. See Ex POST FACTO LAWS. laws impairing obligation of contracts forbidden, 383-418. what is a contract, 384-393. what charters of incorporation are, 391-394. whether release of taxation is contract, 395, 396. whether States can relinquish right of eminent domain, 397-399, 755. or the police power, 399-402, 849, n. 2. general laws of the States not contracts, 402. what the obligation of the contract consists in, 403-406. power of the States to control remedies, 406-416. to pass insolvent laws, 416, 417. See OBLIGATION OF CONTRACTS. regulations by the State, when in conflict with, 832-851, 869. See POLICE POWER. regulation of the subjects of commerce by the States, 687, 688, 851-868. CONSTITUTIONS OF THE STATES, compared with that of the United States, 11, 241, 242. formation and amendment of, 49-69. conditions on, imposed by Congress, 59. construction of, 70-123. not the source of individual rights, 68. See STATE CONSTITUTIONS ; CONSTRUCTION OF STATE CONSTITUTIONS. CONSTITUTIONAL CONVENTIONS, of 1787, circumstances giving occasion for, 9. Madison's views on inter-state relations under, 9, n. 3. for formation and amendment of State constitutions, 58-63. proceedings of, as bearing on construction of constitution, 101, 102. of 1787 sat with closed doors, 601. CONSTITUTIONAL GOVERNMENTS, meaning of the term, 4. 958 INDEX. CONSTITUTIONAL PRIVILEGES, may be waived generally, 250-252. See WAIVER. CONSTRUCTION, meaning of and necessity for, 70. of United States Constitution and laws by United States courts, 22-31, 46. of State constitution and laws by State courts, 31-35, 418. of special privileges, 563. CONSTRUCTION OF STATE CONSTITUTIONS, meaning of the term "construction," 70. necessity for, 70. questions of, arise whenever powers to be exercised, 71. who first to decide upon, 72-75. in certain States judges may be called upon for opinions in advance, 72, n. in what cases construction by legislature or executive to be final, 73-75. in what cases not, 75-77. when questions of, are addressed to two or more departments, 75, 76. final decision upon, rests generally with judiciary, 76-78, 87, 88. reasons for this, 77, n. this does not imply pre-eminence of authority in the judiciary, 78, n. 1. the doctrine of res adjudicata, 79-88. decisions once made binding upon parties and privies, 79-81. force of judgment does not depend on reasons given, 81. strangers to suit not bound by, 82. nor the parties in a controversy about a new subject-matter, 82. the doctrine of stare decisis, 79-88. only applicable within jurisdiction of court making the decision, 85. importance of precedents, 84, n. 1. when precedents to be disregarded, 86. when other departments to follow decisions of the courts, and when not, 87, 88. uniformity of construction, importance of, 88. not to be affected by changes in public sentiment, 88, 89. words of the instrument to control, 89-91, 100, 123, n. 1, 186. intent of people in adopting it to govern, 89-91. intent to be found in words employed, 89 and n. 3, 91. whole instrument to be examined, 91-93 and n. 1. words not to be supposed employed without occasion, 91. effect to be given to whole instrument, 91, 92. irreconcilable provisions, 92, n. 3. general intent as opposed to particular intent, 92, n. 3. words to be understood in their ordinary sense, 92, 123, n. 1. words of art to be understood in technical sense, 93, 94. importance of the history of the law to, 94. common law to be kept in view, 94-97. but not to control constitution, 95. whether provisions in derogation of, should be strictly construed, 95, n. 3. arbitrary rules of, dangerous, 95, 123. and especially inapplicable to constitutions, 92. same word presumed employed in same sense throughout, 95. this not a conclusive rule, 96. operation to be prospective, 97. INDEX. 959 CONSTRUCTION OF STATE CONSTITUTIONS continued. implied powers to carry into effect express powers, 98, 99. power granted in general terras is coextensive with the terms, 98. when constitution prescribes conditions to a right, legislature cannot add others, 99. mischief to be remedied, consideration of, 100. prior state of the law to be examined, 100, 101. proceedings of constitutional convention may be consulted, 101. reasons why unsatisfactory, 101, 102. weight of contemporary and practical construction, 102. the argument ab inconvenienti, 102-107. deference to construction by executive officers, 103, 104. plain intent not to be defeated by, 105-107. injustice of provisions will not render them void, 108, 109. nor authorize courts to construe them away, 108. doubtful cases of, duty of officers acting in, 109. directory and mandatory statutes, doctrine of, 109-119. not applicable to constitutions, 114-119. has been sometimes applied, 115-119. authorities generally the other way, 118, 119. self-executing provisions, 119-123. CONSTRUCTION OF STATUTES, by judiciary, conclusiveness of, 136. to be such as to give them effect, if possible, 255. conflict with constitution not to be presumed, 255, 256. directory and mandatory, 109-119. contemporary and practical, weight to be given to, 102-106. to be prospective, 255, 529. granting special privileges, 270-273, 565. CONSTRUCTIVE NOTICE, 582. CONTEMPORANEOUS CONSTRUCTION, force and effect of, 102-106. CONTEMPTS, of the legislature, punishment of, 191, 192. of legislative committees, 193. no jury trial in cases of, 453, n. 2. CONTESTED ELECTIONS, right of the courts to determine upon, 937. ) See ELECTIONS. CONTESTED FACTS, cannot be settled by statute, 139, 147-150. CONTESTED SEATS, legislative bodies to decide upon, 190. CONTINENTAL CONGRESS, powers assumed and exercised by, 7, 8. CONTINGENT LEGISLATION, authority of the States to adopt, 163-174. CONTINUANCES, of suits, not fco be ordered by legislature, 138, n. 2. CONTRACTS, for lobby services, illegal, 196. to influence elections, are void, 924. 960 INDEX. CONTRACTS continued. caunot be made for individuals by legislative act, 527 and n. 1. charters of municipal corporations do not constitute, 268, 269. of private corporations are, 391-394. of municipal corporation ultra vires void, 270-273. invalid, may be validated by legislature, 530-546. obligation of, not. to be violated, 175, 176, 383-417. See OBLIGATION OF CONTRACTS. COPYRIGHT, Congress may secure to authors, 12. CORPORATE CHARTERS. See CHARTERS. CORPORATE FRANCHISES, may be appropriated under right of eminent domain, 756-759. CORPORATE POWERS, adjudging forfeiture of, 149, n. 1. CORPORATE PROPERTY, legislative control of, 342-347. CORPORATIONS, protected by fourteenth amendment, 19, n. organization of, not a judicial function, 143, n. 1. foreign, powers of, 178-181, and n. (a) 179. educational, 261, n. 1. private, may be authorized to take lands for public use, 776. irregular organization of, may be validated, 535, n. 1. See CHARTERS; MUNICIPAL CORPORATIONS. CORPUS DELICTI, not to be proved by confessions, 444. CORRESPONDENCE, private, inviolability of, 432 and n. 2. CORRUPTION, provisions against influencing legislation by, 196. ' COUNSEL, constitutional right to, 377, 474-482. oath of, 474. duty of, 475-482. denial of, in England, 475-477. court to assign, for poor persons, 477. whether those assigned may refuse to act, 477. privilege of, is the privilege of the client, 477, 478. independence of, 479-481. not at liberty to withdraw from cause, except by consent, 478. how far he may go in pressing for acquittal, 479. duty of, as between the court and the prisoner, 480. whether to address the jury on the law, 480, 481. summary punishment of, for misconduct, 481, 482, 509, n. 3, 583, n. 1. limitation of client's control over, 482. See ATTORNEYS. may be employed before legislative committees, 196. but not as lobbyists, 196 and n. 2. not liable to action for what he may say in judicial proceedings, 631-633. unless irrelevant to the case, 633. not privileged in afterwai-ds publishing his argument, if it contains in- jurious reflections, 636. INDEX. 961 COUNSEL continued. newspaper publisher not justified in publishing speech of a criminal re- flecting on, 644. COUNTERFEITING, Congress may provide for punishment of, 12. States also may punish, 46. COUNTIES AND TOWNS, difference from chartered incorporations, 347-349. are quasi corporations, 347-349. See MUNICIPAL CORPORATIONS. COUNTY SEAT, change of, 548. COURTS, duty of, to refuse to execute unconstitutional laws, 107, n., 118, 119, 227, et seq. contested elections to be determined by, 937. not to be directed by legislature in decisions, 134-139. action of, not to be set aside by legislature, 137, 138. may not control the executive, 162. must act by majorities, 139 and n. 1. not to be open on election days, 923. power to declare laws unconstitutional a delicate one, 227-229. will not be exercised by bare quorum, 230. nor unless necessary, 231. nor on complaint of one not interested, 232. nor of one who has assented, 232. will not declare laws void because solely of unjust provisions, 232-237. nor because in violation of "fundamental principles, 237-239. nor because conflicting with the spirit of the constitution, 239-241. nor unless a clear repugnancy between the laws and the constitution, 241. special, for trial of rights of particular individuals, 560. of star chamber, 488. of high commission, 488. martial, 454, n. 1. of the United States, to be created by Congress, 13. general powers of, 22, 23. removal of causes to, from State courts, 25-31. to follow State courts as to State law, 31, 33. to decide finally upon United States laws, &c., 25, 26. cannot enforce penal laws of the States, 43, n. require statutes to apportion jurisdiction, 47. have no common-law jurisdiction, 47. in what cases may issue writs of habeas corpus, 491-493. Congress may make their constitutional jurisdiction exclusive, 45. See JURISDICTION. CREDIT, bills of, 35. CREDITOR, control of debtor by, 487. CRIMES, act beyond boundary, effect within. 177 and n. 3. committed abroad, punishment of, 176, 177. 61 962 INDEX. CRIMES continued. legislative convictions of, prohibited, 36, 62, 368-371. ex post facto laws prohibited, 36, 62, 372-383. punishment of, by servitude, 423. search-warrants for evidence of. See SEARCHES AND SEIZURES. accusations of, how made, 436. presumption of innocence, 437-439. right of accused party to bail, 437-439. prisoner refusing to plead, 439, n. 2. trial to be speedy, 440, 441. and public, 441. what is, 441 and n. 2. and not inquisitorial, 442 and n. 1, also 424, n. (a), prisoner's right "to make statement, 443-449. confessions as evidence, 443-449. prisoner to be confronted with the witnesses, 450. exceptional cases, 451, 452. to be by jury, 453, 454. necessity for presence of the accused at his trial, 452. jury must consist of twelve, 454-459 and notes. State constitution may provide a jury of less than twelve, 454, n. (a), 458, n. (a). right to jury cannot be waived, 458. prisoner's right to challenges, 459. jury must be from vicinage, 459. must unanimously concur in verdict, 460. must be left free to act, 460. judge not to express opinion upon the facts, 460. nor to refuse to receive the verdict, 461. but is to give instruction in the law, 461. how far jury may judge of the law, 461-465. acquittal by jury is final, 462. accused not to be twice put in jeopardy, 466. what is legal jeopardy, 467, 468. when nolle prosequi equivalent to acquittal, 468. when jury may be discharged without verdict, 468-470. second trial after verdict set aside, 470. cruel and unusual punishments prohibited, 471-474. what are, 472, 473. counsel to be allowed, 377. 474-482. oath of, 474. duty of, 475-482. denial of, in England, 475-477. court to designate, for poor persons, 477. whether one may refuse to act, 477. privilege of, is the privilege of the client, 477, 478. not at liberty to withdraw from case, except by consent, 478, how far he may go in pressing for acquittal, 479. duty of, as between the court and the prisoner, 480. whether to address the jury on the law, 480, 481. summary punishment of, for misconduct, 481, 482, 509 and n. 3, and n. 1, 583. not to be made the instrument of injustice, 482. INDEX. 963 CRIMES continued. intoxication no excuse for, 673, n. 4. habeas corpus for imprisoned parties, 483-497. accusations of, are libellous per se, 605, 607. See HABEAS CORPUS. but privileged if made in course of judicial proceedings, 629-631. ; violations of police regulations of States, 890. CRITICISM, of works of art and literary productions is privileged, 644, 645. but not of the personal character of the author, 645. See LIBERTY OF SPEECH AND OF THE PRESS. CROWN OF GREAT BRITAIN, '. succession to, may be changed by Parliament, 125. union of the colonies under, 7. CRUEL AND UNUSUAL PUNISHMENTS, constitutional prohibition of, 471. what are, 471-474. CUMULATIVE PUNISHMENTS, for counterfeiting money, 46. under State and municipal laws, 279. CUMULATIVE VOTING, 922, n. 1. CURATIVE LAWS, 529-546. CURTESY, ESTATE BY THE, power of legislature to modify or abolish, 513. CUSTODY, of wards, apprentices, servants, and scholars, 485, 486. of wife by husband, 484, 485. of children by parents, 485. of principal by his bail, 486, 487. CUSTOMS. See COMMON LAW; DUTIES AND IMPOSTS. D. DAM, to obtain water power, condemnation of land for, 771-775. effect of repeal of act permitting, 548 and n. 3. erection of, across navigable waters by State authority, 867. destruction of, when it becomes a nuisance, 880. DAMAGES, in libel cases, increased by attempt at justification, 623, 624. when exemplary, not to be awarded, 647-650. for property taken by the public, must be paid, 812-828. See EMINENT DOMAIN. DAMAGING, property in course of public improvements, 810-812. DAMNUM ABSQUE INJURIA, what consequential injuries are, 548, 549, 781-787, 810-812. DEATH, action for, in State other than that in which caused, 181. common carriers may be made liable for causing, 843, 844. 964 INDEX. DEBATES, in Parliament formerly not suffered to be published, 600. in American legislative bodies, publication of, 600, 601, 650-652. privileges of members in, 634-636. See LIBERTY OF SPEECH AND OP THE PRESS. DEBT, general government may incur, 12. public, declared inviolable, 17. Confederate, not to be assumed or paid, 17. imprisonment for, may be abolished as to pre-existing obligations, 407. imprisonment for, now generally abolished, 487. DEBTOR, control of creditor over, 487. DEBTS BY THE STATE, prohibition of, whether it precludes indebtedness by municipalities, 321- 325. DECENTRALIZATION, the peculiar feature in American government, 261. DECISIONS, judicial, binding force of, 79-88. , See JUDICIAL PROCEEDINGS. DECLARATION OF INDEPENDENCE, effect of, 8. DECLARATION OF RIGHTS, was a declaratory statute, 51, 65, 365, 366. See' BILL OF RIGHTS. DECLARATORY STATUTES, in English constitutional law, 49-53. are not encroachments upon judicial power, 134-137. judgments not to be reversed by means of, 137-139. purposes and proper force of, 134-137. DEDICATION, of lands to public use, 820. DEEDS, invalid, may be confirmed by legislature, 537-540. but not to prejudice of bonafide purchasers, 540. DEFENCES, not based upon equity, may be taken away by legislature, 537, 540, 553. under statute of limitations are vested rights, 521. DEFINITIONS, of a State, 3. of a nation, 3. of a people, sovereignty, and sovereign State, 3. of a constitution, 4. of an unconstitutional law, 5. of construction and interpretation, 70, 71. of self-executing provisions, 121. of legislative power, 131, 132. of judicial power, 132-134. of declaratory statutes, 134, 135. of due process of law, 502. of law of the land, 502, 503. of personal liberty, 483. INDEX. 965 DEFINITIONS continued of civil liberty, 561, n. 1. of natural liberty, 561, n. 1. of liberty of the press, 602-605. of liberty of speech, 602-605. of religious liberty, 659-668. of taxation, 678. of the eminent domain, 752-754. of police power, 829. of domicile, 903, 904. of incompatibility in offices, 894, n. of officer de jure, 897. of officer de facto, 897. of ballot, 910. DELAWARE, local option laws, validity of, 173. revenue bills must originate in lower house, 188, n. 1. right of jury to determine the law in cases of libel, 463, n. 1. protection of person and property by law of the land, 500, n, 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. exclusion of religious teachers from office, 662, u. 2. religious tests forbidden, 662, n. 3. DELEGATION OF POWER, of judicial power, not admissible, 139, n. 1, 589. by the legislature not admissible, 163-174. except as to powers of local government, 166-168, 264. such delegated power may be recalled, 168, n. 1. by municipal corporations invalid, 293, 294. by officers in inflicting punishment, 473, n. 1. DEPARTMENTS OF THE GOVERNMENT, division of powers between, 64-69, 126-134. equality of, 78, n. 1, 79, n. DESCENT, LAW OF, 511, 513. DESECRATION OF THE SABBATH, constitutional right to punish, 674, 675, 859, 885, n. 1. DESTRUCTION OF PROPERTY, to prevent calamities, 309, n. 2, 757, n. 1, 878-883. DIRECTORY STATUTES, what are, and what are mandatory, 109-119. doctrine of, not admissible as to constitutional provisions, 114-119. DISABILITIES, personal, do not follow into another jurisdiction, 43, n. DISCRETIONARY POWERS, what are, 71-73. department to which they are confided decides finally upon, 73, 157-162. DISCRIMINATIONS, cannot be made in taxation between citizens of different States, 573, 574, 694. in legislation between different classes, 554-575. in the privileges and immunities of citizens, 14, 15, 36, 37, 556-575, 869. not to be made on account of religious belief, 666-677. 966 INDEX. DISCUSSION, right of, 497, 498. See LIBERTY OF SPEECH AND OF THE PRESS. DISFRANCHISEMENT, of voters, may render a statute void, 926. what classes excluded from suffrage, 57, 58, 108, 900, 902. DISTRICTS, for schools, powers of, 261, 263, 348, 349. exercise by, of power of eminent domain, 775, 776. for taxation, necessity for, 711, 718, 719, 722. not to tax property outside, 720, 726. taxation to be uniform within, 718-732. DIVISION OF POWERS, between sovereign States, 3, 4. between the States and the Union, 4. among departments of State government, 126-134. DIVISION OF TOWNSHIPS, &c., question of, may be submitted to people, 167. disposition of property and debts on, 268, n. 2, 344. DIVORCE, decrees for, within "full faith and credit " clause, 44, n. question of, is properly judicial, 138, n., 153. power of the legislature over, 152-157. general doctrine of the courts on the subject, 154-157. conflicting decisions, 154-157. legislative divorce cannot go beyond dissolution of the status, 157. constitutional provisions requiring judicial action, 153, n. 2. laws for, do not violate contracts, 403. and may be applied to pre-existing causes, 376, n. 1. what gives jurisdiction in cases of, 577, 578. actual residence of one party in the State sufficient, 578. conflict of decisions on this subject, 578, and n. 1. not sufficient if residence merely colorable, 578, n. 1. necessity for service of process, 579-585. cannot be served out of State, 582, 584. substituted service by publication, 582. restricted effect of such notice, 583. order as to custody of children, 584. alimony not to be awarded if defendant not served, 584, 585. DOGS, police regulation of, 881. DOMAIN, ordinary, of the State, distinguished from eminent domain, 753. DOMICILE, gives jurisdiction in divorce cases, 578 but must be bonaf.de, 578, n. 1. of wife may be different from that of husband, 578, n. 1. of one party, may give jurisdiction in divorce cases, 578. of voters, meaning of, 903, 904. DOUBLE PUNISHMENT, ,- for same act under State and municipal law, 279, and n. 4. for counterfeiting money, 46. INDEX. 967 DOUBLE TAXATION, sometimes unavoidable, 738. DOUBTFUL QUESTIONS, of constitutional law, duty in case of, 109, 252-257. DOWER, legislative control of estates in, 513-515 DRAINS, appropriating property for purposes of, 767, 769, 770. special assessments for, 713, 714, 734, 735. ordered under police power, 868. DRUNKENNESS, does not excuse crime, 673, n. 4. is a temporary insanity, 902, n. DUE PROCESS OF LAW, required for the taking of life, liberty or property, 15. meaning of the term, 502 et seq. See LAW OF THE LAND. DUPLICATE PUNISHMENTS, by States and United States, 45, 46. by States and municipal corporations, 279, and n. 4. DUTIES AND IMPOSTS, Congress may levy and collect, 679. to be uniform throughout the United States, 12, 679, 680. what the States may lay, 36. DWELLING-H OUSE, is the owner's castle, 50, 425, 426. homicide in defence of, 434. quartering soldiers in, prohibited, 435. DYING DECLARATIONS, admissible in evidence on trials for homicide, 452. inconclusive character of the evidence, 452. E. EASEMENTS, acquirement by the public under right of eminent domain, 753. for private use, cannot be acquired under this right, 763-766. See EMINENT DOMAIN. ECCLESIASTICAL CORPORATIONS, powers and control of, 659-662. ELECTIONS, provisions in Federal Constitution respecting, 16. on adoption of State constitutions, 57, 58. people exercise the sovereignty by means of, 892-895. who to participate in, 899-905. constitutional qualifications cannot be added to by legislature, 99, n. exclusion of married women, aliens, minors, idiots, &c., 901, 902. conditions necessary to participation, 902, 903, 905-909. residence of voter at place of domicile, 903, 904. 968 INDEX. ELECTIONS continued. what constitutes residence, 904, 905. registration may be made a condition, 905, 907. preliminary action by the authorities, notice, &c., 908, 909. mode of exercising the right, 910. the elector's privilege of secrecy, 910-913. a printed ballot is " written," 910, n. 3. ballot must be complete in itself, 914. technical accuracy not essential, 915-920. explanations by voter inadmissible, 914. must not contain too many names, 915. name should be given in full, 916. sufficient if idem sonans, 916. what abbreviations sufficient, 916-919. erroneous additions not to affect, 917, 918 and notes, extrinsic evidence to explain imperfections, 919-920. ballot must contain name of office, 920. but need not be strictly accurate, 920. different boxes for different ballots, 921. elector need not vote for every office, 921, 922. plurality of votes cast to elect, 921, 922, 931. effect if highest candidate is ineligible, 931. freedom of elections, 922-925. bribery or treating of voters, 922, 923. militia not to be called out on election day, 924, 925. courts not to be open on election day, 923. bets upon election are illegal, 924. contracts to influence election are void, 924. elector not to be deprived of his vote, 926-928. statutes which would disfranchise voters, 926. failure to hold election in one precinct, 926. liability of inspectors for refusing to receive vote, 927, 928. elector's oath, when conclusive on inspector, 927, 928. conduct of the election, 928. effect of irregularities upon, 928-930. what constitutes a sufficient election, 931-934. not necessary that a majority participate, 931. minority representation, 931, n. 2. admission of illegal votes not to defeat, 932. unless done fraudulently, 933. effect of casual affray, 933. canvass and return, 934-937. canvassers are ministerial officers, 934, 935. canvassers not to question returns made to them, 935, 936. whether they can be compelled by mandamus to perform duty, 936. contesting elections in the courts, 937-944. canvasser's certificate as evidence, 937, 938, 940. courts may go behind certificate, 940-944. what surrounding circumstances maybe given in evidence, 941, 944. whether qualification of voters may be inquired into, 943. to legislative body, house to decide upon, 189-190. ELECTIVE FRANCHISE, protected by fourteenth amendment, 16, 17. INDEX. 969 EMANCIPATION, of slaves in Great Britain and America, 14, 419, 424. of children by parents, 485. EMERGENCY, declaration of, 223. EMINENT DOMAIN, distinguished from ordinary domain of States, 752, 753. definition of 753, 754. right of, rests upon necessity, 753. cannot be bargained away, 398, 754, 755. general right is in the States, 755. for what purposes nation may exercise right, 755, 756. all property subject to right, 756-759. exception of money and rights in action, 759. legislative authority requisite to, 759-763. legislature may determine upon the necessity, 760. conditions precedent must be complied with, 760, 761. statutes for exercise of, not to be extended by intendment, 761-763. the purpose must be public, 763, 764. legislative judgment not conclusive as to what is public use, 774-775. private roads cannot be laid out under, 764-766. what constitutes public purpose, 766-775. whether erection of mills and factories is, 771-773. property need not be taken to the State, 775. individuals or corporations may be public agents for the purpose, 776. the taking to be limited to the necessity, 777-781. statute for taking more than is needed is ineffectual, unless owner assents, 779, 780. what constitutes a taking of property, 781-808. incidental injuries do not, 781-787. any deprivation of use of property does, 787, 788. water front and right to wharfage is property, 787, 788. right to pasturage in streets is property, 788. taking of common highway for higher grade of way, 788-806. if taken for turnpike, &c., owner not entitled to compensation, 789, 790. difference when taken for a railway, 790-803. for an elevated street railway, 799, n. 2. owner entitled to compensation in such case, 790-803. whether he is entitled in case of street railway, 790-803. decisions where the fee of the streets is in the public, 796-803. distinction between a street railway and a thoroughfare, 802, 803. right to compensation when course of a stream is diverted, 807, 808. whether the fee in the land can be taken, 808, 809. damage to property not taken to be compensated for in some States, 810- 812. compensation must be made for property, 812-828. must be pecuniary, 812, 813. preliminary surveys may be made without, 813. need not be first made when property taken by State, &c., 813-816. sufficient if party is given a remedy by means of which he may obtain it, 813-816. time for resorting to remedy may be limited, 815-816. 970 INDEX. EMINENT DOMAIN continued. waiver of right to compensation, 815-816. when property taken by individual or private corporation, compensa- tion must be first made, 816, 817. tribunal for assessment of, 817. time when right to payment is complete, 818-819. principle on which compensation to be assessed, 819-828. allowance of incidental injuries and benefits, 820-828. not those suffered or received in common with public at large, 823-828. . if benefits equal damages, owner entitled to nothing, 825. assessment of damages covers all consequential injuries, 825-826. for injuries arising from negligence, &c., party may have action, 826. EMPLOYMENTS, control of the State in respect to, 884-890. ENABLING ACT, to entitle Territory to form State constitution, 56, 58, 59. ENGLAND. See GREAT BRITAIN. ENROLLED ACT, effect of, as evidence of its own validity, 194, 195. ENUMERATED POWERS, United States, a government of, 11. EQUALITY, of protection guaranteed by the fourteenth amendment, 15, 36-41. of the several departments of the government, 78, n. 2, 227, 228. of rights and privileges, the aim of the law, 562, 563. distinctions must not be arbitrary, 561 and n. (a). grants of special privileges construed strictly, 562-564. religious, 660. See RELIGIOUS LIBERTY. EQUITABLE TITLES, may be changed by legislature into legal, 537-539. ERRONEOUS JUDGMENTS, may be overruled, 86. when they should not be, 86, 87. ERRORS, waiver of, in legal proceedings, 587, 588. judgments, &c., not void by reason of, 587. curing by retrospective legislation, 529-546. in conduct of elections, effect of, 928-930. ESSENTIAL POWERS OF GOVERNMENT, taxation, eminent domain, &c., cannot be bartered away, 395-401. ESTABLISHMENTS, religious, are forbidden by State constitutions, 663. ESTATES OF DECEASED PERSONS, special legislative authority to sell lands for payment of debts is consti- tutional, 140-147. such acts forbidden by some constitutions, 141, n. 1. legislature cannot adjudicate upon debts, 147-150. ESTATES IN LAND, subject to change by the legislature before they become vested, 511-515. but not afterwards, 136, n. 2. INDEX. 971 ESTOPPEL, by judgment only applies to parties and privies, 79-82. does not depend on reasons given by the court, 82. does not apply in controversy about new subject-matter, 82. of the State by its legislation, 107, n., 364. of individuals by legislation, 139. EVASION, of constitutional provisions, 199, n. 3. EVIDENCE. by recitals in statutes, 139. collecting by legislature, 193. complete control of legislature over rules of, 409, 410. conclusive rules of, not generally admissible, 526, 527. confessions of accused parties as, 443-449. dying declarations, when are, 452. search-warrants to obtain, not constitutional, 431, n. 2, 432. compulsory inspection of person or property to obtain, 424 n. (a) and 425 n. (a). correspondence not to be violated to obtain, 432, n. 2. accused party not compelled to give, against himself, 442. by accused parties in their own favor, 447-449. against accused parties, to be given publicly, and in their presence, 450-452. communications by client to counsel not to be disclosed, 477, 478. in State courts, State laws control, 684, n. 2. to explain imperfections in ballots, 915-920, 942. EVIL TO BE REMEDIED, weight of, in construing constitutions, 100, 123, n. 1. what in view in requiring title of act to state the object, 203-205. EXAMINATIONS, of accused parties, when to be evidence against them, 442-444. EXCESSIVE PUNISHMENTS, constitutional prohibition of, 471-474. EXCESSIVE TAXATION, renders tax proceeding and sales void, 747, 748. j EXCISE TAXES, Congress may lay, 12. EXCLUSIVE PRIVILEGES, grant of, 395, 402. not to be taken by implication, 565. strict construction of, 395, 402. are subject to right of eminent domain, 398. EXECUTION, exemptions from, may be increased without violating pre-existing con- tracts, 407-409. and may be recalled, 546. imprisonment upon, may be abolished, 407. EXECUTIVE, construction of constitution by, 72-75. weight of practical construction by, 102-106. power of, to pardon and reprieve, 160, 161. approval or veto of laws by, 218-221. 972 INDEX. EXECUTIVE POWER, what is, 131. not to be exercised by legislature, 126, 127, 157-162. may legislature prescribe rules for exercise of, 160-162. exercise of, not to be controlled by the judiciary, 162. of the United States, 19-22. EXECUTORS AND ADMINISTRATORS, special statute, authorizing sales by, 140-147. propriety of judicial action in these cases, 140, 141. legislature cannot adjudicate upon debts, 147, 148. EXEMPLARY DAMAGES, against publisher of newspaper, 647-650. EXEMPTIONS, provisions for, when self-executing, 122. waiver of right to, 251, 252. from taxation, when not repealable, 176, 595, 396, 547. power of the legislature to make, 739-744. do not apply to local assessments unless so expressed, 740, n. from public duties, &c., may be recalled, 329, 546. of property from right of eminent domain, 397-399. of property from police power of the State, 399. from execution may be increased without violating contracts, 407-409. of debtor from imprisonment, 407. privilege of, may be made to depend upon residence, 574. laws for, not to be suspended for individual cases, 558, 559. EX PARTE PROCEEDINGS, how far binding on parties interested, 587, n. 1. publication of, not privileged, 637-640. EXPECTANCY, interests in, are not vested rights, 509-515. EXPEDIENCY, questions of, are legislative, 237-241. EXPOSITORY ACTS. See DECLARATORY STATUTES. EX POST FACTO LAWS, States not to pass, 36, 372. meaning of the term, 373, 376. only applies to criminal laws, 373. distinction between and retrospective laws, 374. laws in mitigation of punishment are not, 376. what is in mitigation, and what not, 376-383. modes of procedure in criminal cases may be changed, 381, 382. punishment of second offences, 382, 383. EXPRESSION OF POPULAR WILL, must be under forms of law, 892. See ELECTIONS. EXPULSION, of legislative members for misconduct, 190. EXTRADITION, of criminals as between the States, 37, 38, n. 1. of persons accused of libel, 459, n. 2. between sovereignties, 41, n. treaties for, may be retroactive, 383, n. 1. INDEX. 973 F. FACT AND LAW, province of judge and jury respectively, 460-465. in libel cases, 652-655. FAITH AND CREDIT, in each State to public acts, records, and judicial proceedings of every other, 38-40, n. 1. FAST DAYS, appointment of, does not violate religious liberty, 669. FEDERAL COURTS. See COURTS OF THE UNITED STATES. FEDERAL QUESTION, Supreme Court may review judgments of State courts upon, 25-31, 36, n. (6). FEDERALIST, on the power to supersede the Articles of Confederation, 9, 10, n. reasons of, for dispensing with national bill of rights, 365. reference in, to laws violating obligation of contracts, 384. FEE, whether the public may appropriate, in taking lands, 808. FELONIES, Congress may define and punish, 13. FEMALES, accusation of want of chastity not actionable per se, 606, 607. statutes on the subject, 607. excluded from suffrage, 901, 902. See MARRIED WOMEN. FERRY FRANCHISES, granted to municipal corporations, may be resumed, 390, and n. 1. strict construction of, 564-567. grants of, by the State across navigable waters, 867. police regulations respecting, 867, 868. FEUDAL KINGDOM, definition of, 50, n. 1. FIFTEENTH AMENDMENT, provisions of, 17, 18, 901, 902. to what extent self-executing, 120. FINE, remission of, 160, n. 2. FIRE, destruction of buildings to prevent spread of, 756, 878. precautions against, by establishing fire limits, 284, n. 4, 878. FIRST AMENDMENT, 596. FISHERY, public rights of, in navigable waters, 752. restrictions upon, 291. FLORIDA, judges of, to give opinions to the governor, 72, n. 1. divorces not to be granted by legislature, 153 and n. 2. exercise of the pardoning power restrained, 160 and n. 2, 161, 162. 974 " INDEX. FLORIDA continued. protection to person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious liberty in, 662, n. 3. religious belief not to be a test of competency of witness, 677, n. private property not to be taken without compensation, 816, n. 3. FOREIGN CONTRACTS, enforcement of, 178-181. FOREIGN CORPORATIONS, rights of, 179, n. (a). as to real estate in the foreign State, 180, 181. powers of, 178-181, 763, n. (a). jurisdiction over, 5S2, n. FOREIGNERS. See ALIENS. FORFEITURES, under municipal by-laws, 292, n. 1. must be judicially declared, 149, 370-372, 518, 519. FORMS, prescribed by constitution are essential, 114-119, 245, 246. FORTS, magazines, arsenals, etc., lands purchased for, under exclusive control of Congress, 13. FOURTEENTH AMENDMENT, protections of, 14, 17, 418, 502, 567, 869. FOURTH OF JULY, celebration of. at public expense, 310. FOX'S LIBEL ACT, provisions of, 654. FRANCHISES, of incorporation, when they constitute contracts, 390. granted to municipal bodies may be resumed, 266-268, 347. repeal of, where right to repeal is reserved, 547, 839. strict construction of, 271, 272, 564, 567. police regulations respecting, 835-844. may be appropriated under right of eminent domain, 757. FRAUD, as affecting decrees of divorce, 578. in securing passage of statute cannot be shown to defeat it,' 258, 259. FREEDMEN, made citizens, 14, 418, 869. FREEDOM, maxims of, in the common law, 49, 50. \ : gradually acquired by servile classes in Great Britain, 419-424. See PERSONAL LIBERTY. FREEDOM OF ELECTIONS, provisions to secure, 922. .bribery and treating of electors, 922, 923. militia not to be called out on election day, 925. courts not to be open on election day, 923. betting on elections illegal, 924. contracts to influence elections void, 924. INDEX. 975 FREEDOM OF THE PRESS, Hamilton's reasons why protection of, by bill of rights, not important, 365. opposing reasons by Jefferson, 367, n. 1. See LIBERTY OF SPEECH AND OF THE PRESS. FREEDOM OF SPEECH, definition of, 602-604. See LIBERTY OF SPEECH AND OF THE PRESS. FRONTAGE, apportionment of assessment for local improvement according to, 729 and n. 1. FUGITIVES FROM JUSTICE, to be delivered up by the States, 37, 38, n. 1. surrender of, under treaties, 38, n. 1. FUNDAMENTAL LAW, constitutions are, 4. FUNDAMENTAL RIGHTS, bills of, in State constitutions, 65, 66. in the national Constitution, 365-372. in England, 49, 50, 366. are before constitutions, 68, 69. statutes in violation of, 233-242. under fourteenth amendment, 14-17, 417, 418, 567, 568, 869. G. GAMING IMPLEMENTS, keeping of, for unlawful games may be prohibited, 884. GENERAL INTENT, when to control particular intent, 91, 92, n. 3. GENERAL LAWS, exceptions from, in some cases, 139-151. required instead of special, by some constitutions, 181-185. in cases of divorce, 152-157. control municipal regulations, 278, 279. due process of law does not always require, 140, 504-505, 554-556. submission of, to vote of people invalid, 163-174. suspension of, 558, 559. changes in, give citizens no claim to remuneration, 402, 509-511. respecting remedies, power to change, 381, 382, 406-417, 515-528. GENERAL WARRANTS, illegality of, 419-430. GENERAL WELFARE, legislation to be determined by, 184. GEORGIA, divorce cases to be adjudged by the courts, 153, n. 2. revenue bills to originate in lower house, 188, n. 1. right of jury to determine the law in cases of libel, 463, n. 1. protection to person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. 976 INDEX. GEORGIA continued. religious tests for office forbidden in, 662, n. 3. private property not to be taken without compensation, 816, n. 3. GOOD MOTIVES AND JUSTIFIABLE ENDS, defence of, in libel cases, 656-658. burden of proof on defendant to show, 657. GOVERNMENT, constitutional, what is, 4, 5. republican, to be guaranteed to the States, 42-45. of the United States, origin of, 7-9. one of enumerated powers, 11. not liable for acts of ageuts, 23, n. 2. American, a decentralized system, 261-270. GOVERNOR, mandamus to, 162, n. 3. approval or veto of laws by, 218-221. messages to legislature, 222. power to prorogue or adjourn legislature, 188. power to convene legislature, 222. legislative encroachment on powers of, 157-162. power to pardon, 158, n. 1, 160, n. 2. to appoint officers and remove them, 158, n. 1. to reprieve, 160, n. 2. GRADE OF RAILROADS, legislature may establish, for crossings, 842. GRADE OF STREETS, change of, gives parties no right to compensation, 296. special assessments for grading, 713, 727-732. GRAND JURY, criminal accusations by, 436. presentments by, are privileged, 629, 630. GRANTS, are contracts, and inviolable, 384, 385. by States, cannot be resumed, 385-387. of franchises, strict construction of, 270-273, 564-567. when they constitute contracts, 387-401. to municipal bodies, may be recalled, 388-390. GREAT BRITAIN, how it became a constitutional government, 4, n., 84, n* 1. power of Parliament to change constitution, 6. meaning of unconstitutional law in, 5. control over American colonies, 7, 51-54. statutes of, how far in force in America, 52. bill of rights of, 51, 366. habeas corpus act of, 51, 489-491. local self-government in, 263. declaration of rights of, 367 et seq. bills of attainder in, 368-372. money bills to originate in the Commons, 188. emancipation of slaves in, 419-424. prosecutions for libel in, 612, 613, 650, 651, n. 1. See PARLIAMENT. INDEX. 977 GUARANTIES. See FUNDAMENTAL RIGHTS ; JURY TRIAL ; LAW OF THE LAND; LIBERTY. GUARDIANS, special statute authorizing sales by, 140-147. propriety of judicial action in such cases, 140, 141. control of ward by, 485, 486. appointment of, in divorce suits, 584. authority of, is local, 486. GUNPOWDER, police regulations concerning, 881. H. HABEAS CORPUS, writ of, a principal protection to personal liberty, 483, 489, 490. personal liberty, meaning of, 483, 484. restraints upon, to prevent or punish crime, &c., 484. growing out of relation of husband and wife, 484, 485. of parent and child, 485. of guardian and ward, 485, 486. of master and apprentice, 486. of master and servant, 486. of teacher and scholar, 486. of principal and bail, 486, 487. of creditor and debtor, 487. insecurity of, formerly, in England, 487-489. habeas corpus act, and its purpose, 51, 489-491. general provisions of, 490. adoption of, in America, 491. writ of, when to be issued by national courts, 491-493. generally to issue from State courts, 493, 494. return to, where prisoner held under national authority, 493-494. cases for, determined by common law, 494. not to be made a writ of error, 495. what to be inquired into under, 495, 496. right to jury trial in habeas corpus cases, 497 to obtain custody of children, 496, 497. HACKMEN, regulation of charges of, 870-876. HARBOR REGULATIONS, establishment of, by the States, 855-859. wharf lines may be prescribed, 878. HARDSHIP, of particular cases not to control the law. 107, n. 1. unjust provisions not necessarily unconstitutional, 108, 109, 737, 738. HEALTH, police regulations for protection of, 851-854 and notes, 880. draining swamps, &c., in reference to, 734, 882. HEARING, right to, in judicial proceedings, 523, 579-588. in cases of appropriation of lands, 817, 818. in tax proceedings, 711, n. 3. 62 978 INDEX. HEIRSHIP, right to modify, 511. HIGH SEAS, not subject to exclusive appropriation, 4. States no authority upon, 176, 177. Congress may 'punish offences committed upon, 13. HIGHWAYS, establishment of, under right of eminent domain, 753. compensation in such case, 812-828. appropriation of, to purposes of turnpike, railroad, &c., whether it entitles owner to compensation, 788-888. See EMINENT DOMAIN. regulations of, by States under police power, 860, 861, 867. HOMESTEADS, provisions for, when self-executing, 122. exemption of, from execution, 408. HUSBAND AND WIFE, power of legislature to divorce, 152, 153. jurisdiction in divorce cases, 577-585. See DIVORCE. control of husband over wife, 484, 485. obligation of husband to support wife, 484 and n. 2. right, as between, to custody of children, 496, 497. property rights, how far subject to legislative control, 515-518. validating invalid marriage by legislation, 533, 534. IDEM SONANS, ballot sufficient in cases of, 916. IDIOTS, exclusion of, from suffrage, 57, 902. special legislative authority for sale of lands of, 140-147, 554. ILLEGAL CONTRACTS, have no obligation, 404, 405. legalization of, 415, 416, 535-540. for lobby legislative services, 196 and n. 2. designed to affect elections, 924. ILLINOIS, special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by the legislature, 153, n. 2. title of acts to embrace the subject, 202, n. 3. special legislative sessions, 220, n. 4. time when acts take effect, 223. provision in relation to special laws, 258, n. 1. municipalities restrained from aiding public improvements, 318, n. 1. restriction upon power to contract debts, 325. protection to person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596 n. privilege of legislators in debate, 634 n. religious liberty in, 662, n. 3. INDEX. 979 ILLINOIS continued. damaging property in the course of public improvements, 810, n. 2. taking land for railroad tracks, 809 n. private property not to be taken without compensation, 816, n. 3. IMMUNITIES, of citizens of the several States, 36, 37, 567. citizens not to be deprived of, 14, 15. of municipal corporations, 300. IMPAIRING CONTRACTS. See OBLIGATION OF CONTRACTS. IMPEACHMENT, of judges for declaring law unconstitutional, 229, n. 1. IMPLICATION, amendments by, not favored, 216, 217. repeals by, 216, 217. grant of powers by, in State constitutions, 98, 99. corporations established by, 277, 278. IMPLIED POWERS, of municipal corporations, what are, 270-276. granted by State constitutions, 98, 99. IMPLIED PROHIBITIONS, to the States by the national Constitution, 45. upon legislative power, 233-245. IMPORTS, State taxation of, 688, 857-859. IMPOSTS, to be uniform throughout the Union, 12. what the States may lay, 36. taxation by, 708, 709. IMPRESSMENT OF SEAMEN, not admissible in America, 424. IMPRISONMENT, for legislative contempt must terminate with the session, 191. for debt may be abolished as to existing contracts, 407. of child for lack of parental control, 423, n. 4. unlimited, cannot be inflicted for common-law offence, 472. relief from. See HABEAS CORPUS. IMPROVEMENTS, owner of land cannot be compelled to make, 552, n. 2, 768. betterment laws, 552, 553. local, assessments for the making of, 713-738. See ASSESSMENTS. INCHOATE RIGHTS, power of the legislature in regard to, 511-515. INCIDENTAL INJURIES, by change in the law, give no claim to compensation, 548-550. See EMINENT DOMAIN. INCOMPETENT PERSONS, legislative authority for sale of lands of, 140-147, 532, 554. exclusion of, from suffrage, 901, 902. INCONTINENCE, accusation of, against female, not actionable per se, 606, 607. statutory provisions respecting, 607. 980 .INDEX. INCORPORATIONS, notice of acts for, 118, n., 193, n. 1. waiver of defects in, by State, 118, n. charters of private, are contracts, 391-394. charters of municipal, are not, 266-270, 390. control of, by police regulations, 835-844. See CHARTERS; MUNICIPAL CORPORATIONS. INDEBTEDNESS BY STATE, prohibition of, whether it precludes debts by towns, counties, &c., 322- 325. INDECENT PUBLICATIONS, sale of, may be prohibited, 884. parties not free to make, 606, 607, 638. INDEMNIFICATION, of officers of municipal corporation where liability is incurred in supposed discharge of duty, 306-309. power of legislature to compel, 308, 309. not to be made in case of refusal to perform duty, n. 1, 309. INDEMNITY, for property taken for public use. See EMINENT DOMAIN. for consequential injuries occasioned by exercise of legal rights, 548. INDEPENDENCE, declaration of, by Continental Congress, 8, 9. new national government established by, 8. celebration of, at public expense, 310. of the traverse jury, 460, 461. of the bar, 479-482. INDIAN, an unnaturalized, is not a citizen nor entitled to vote, 901, n. 4. INDIANA, special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by the legislature, 153, n. 2. exercise of the pardoning power restrained, 160, n. local option laws, validity of, 173. prohibition of special laws when general can be made applicable, n. 4, 181. revenue bills must originate in lower house, n. 1, 188. privilege of legislators from arrest, n. 1, 192. title of acts to embrace the subject, n. 3, 202. no act to be amended by mere reference to its title, n. 1, 215. approval of laws by governor of, n. 2, 219, and n. 4, 220. time when acts take effect, 224. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. religious belief not to be test of iucompetency of witness, 677, n, persons conscientiously opposed to bearing arms excused, 676, n. private property not to be taken without compensation, 816, n. 3. INDICTMENT, criminal accusations to be by, 436. trial on defective. 382, n. 2, 468-470. must apprise accused of the charge against hiaa, 382, n. 3, 436 and n. 3. See CRIMES. INDEX. 981 INDIVIDUAL RIGHTS, provisions for protection of, in State constitutions, 65, 66. in national Constitution, 365-367. do not owe their origin to constitutions, 68. English statutes declaratory of, 51, 366. See PERSONAL LIBERTY. INELIGIBILITY, of highest candidate, how to affect election, 931. INFANTS, excluded from suffrage, 57, 901. special statutes authorizing sale of lands of, 140, 532, 554. custody of, by parents, 485, 496, 497. emancipation of, 485. control of, by masters, guardians, and teachers, 485, 486. ! INFERIOR COURTS, duty of, to pass upon constitutional questions, n. 1, 230. distinguished from courts of general jurisdiction, 585, 586. disproving jurisdiction of, 586. INFORMALITIES, right to take advantage of, may be taken away by legislation, 528, 546. do not defeat jurisdiction of court, 587, 588. waiver of, in legal proceedings, 588. INHABITANT, meaning of, in election laws, 903, 904. INHERITANCE TAXES, validity of, n. (a), 708. INITIALS, to Christian name of candidate, whether sufficient in ballot, 916-919. INJUSTICE, of constitutional provisions cannot be remedied by the courts, 108, 109. , , of statutes does not render them unconstitutional, 232-237. in taxation, sometimes inevitable, 737, 738. INNOCENCE, of accused parties, presumption of, 437-439. only to be overcome by confession in open court, or verdict, 439. INQUISITORIAL TRIALS, not permitted where the common law prevails, 442. accused parties not compellable to give evidence against themselves, 443- 449. INSANE PERSONS, validating deeds of, n. 1, 438. INSANITY, defence of, in criminal cases, n. 1, 538. INSOLVENT LAWS, right of the States to pass, 416, 417. congressional regulations supersede, 416. what contracts cannot be reached by, 417. creditor making himself a party to proceedings is bound, 417. INSPECTION LAWS, I of the States, imposts or duties under, 36. constitutionality of, 686, 854-859, 888, 889. 982 INDEX. INSPECTORS OF ELECTIONS, judicial appointment of, n. 3, 129. powers arid duties of. See ELECTIONS. INSURRECTIONS, employment of militia for suppression of, 13. INTENT, to govern in construction of constitutions, 89-91. whole instrument to be examined in seeking, 91-92. in ineffectual contracts, may be given effect to by retrospective legislation, 530-546. question of, in libel cases, 651-655. in imperfect ballot, voter cannot testify to, 914. what evidence admissible on question of, 919, 920. INTEREST, in party, essential to entitle him to question the validity of a law, 232. in judge, precludes his acting, 243, 592-595. of money, illegal reservation of, may be legalized, 536. INTERNAL IMPROVEMENTS, giving municipal corporations power to subscribe to, is not delegating legislative power, 167. constitutionality of municipal subscriptions to, 312-325. special legislative authority requisite, 318-320. negotiable securities issued without authority are void, 318-320, and n. 2. prohibition to the State engaging in, whether it applies to municipalities, 321-325. retrospective legalization of securities, 535-543. INTERNATIONAL LAW, equality of States under, 3. Congress may punish offences against, 13. INTERNATIONAL QUESTIONS, States no jurisdiction over, 176, 177. INTERPRETATION, meaning of, 70, 71, n. 1. See CONSTRUCTION OF STATE CONSTITUTIONS. INTER-STATE COMMERCE, regulation of, 687-691, 845, 846, 872-875. what is, 687, n. (a), 688, n. 3. State cannot require license of persons engaged in, 693, n. 4, 857-859. taxation of, by the State, 686-691. INTIMIDATION, of voters, secrecy as a protection against, 910, 922. securities against, 922-925. INTOXICATING DRINKS, submitting question of sale of, to people, 173, 174. power of States to require licenses for sale of, 845-851. power of States to prohibit sales of, 18, n. 1, 845-851, 884, 885. furnishing to voters, 923, n. annulling licenses for, 399, 400. INTOXICATION, not an excuse for crime, 673, n. 4. is temporary insanity, 902, n. 1. INDEX. 983 INTRODUCTION OF BILLS, for revenue purposes, 188, 189, generally, 197-199. INVASIONS, employment of militia to repel, 13. INVENTIONS, securing right in, to inventors, 12. INVOLUNTARY SERVITUDE, gradual abolition of, in England, 419-423. as a punishment for crime, 423. See PERSONAL LIBERTY. IOWA, divorces not to be granted by legislature, 153, n. 2. exercise of the pardoning power restrained, 160, n. 2. title of acts to embrace the subject, 202, n. 3. power of legislature when convened by governor, 222. time when acts are to take effect, 225. restriction upon power to contract debts, 325. protection to person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 63 1, n. religious tests for office forbidden in, 662, n. 3. religious belief not to be test of incompeteiicy of witness, 677, n. private property not to be taken without compensation, 816, n. 3. IRREGULARITIES, in judicial proceedings, not inquirable into on habeas corpus, 495. do not render judicial proceedings void, 587, 588. waiver of, 587, 588. may be cured by retrospective legislation, 528-546 effect of, upon elections, 928-934. what, render sales for taxes void, 747, 748. IRREPEALABLE LAWS, legislature cannot pass, 174-176, 402. Parliament cannot bind its successors, 175. laws which constitute contracts are inviolable, 175, 176. whether essential powers of government can be bartered away, 392-402, 754, 755. municipal corporations cannot adopt, 295. IRRIGATION, assessments for, 715 n. (a). J. JEOPARDY, party not to be twice put in, for same cause, 466-470. what constitutes, 467, 468. when jury may be discharged without verdict, 468-470. when nolle prosequi is an acquittal, 468. second trial after verdict set aside, 470. acquittal on some counts is a bar pro tanto to new trial, 470. varying form of the charge, 470. 984 INDEX. JEOPARDY continued. duplicate punishments under federal and State law, 45, 46. under State and municipal laws, 279. JOURNAL OF THE LEGISLATURE, office of, 201. is a public record, 193. is evidence whether a law is properly adopted, 193-195. silence of, not evidence that authority has been exceeded, unless, &c., 195. presumption of correct action where it is silent, 195. JUDGE, disqualification of, by reason of interest, 243, 592-594. not to urge opinion upon the jury, 460. to instruct the jury on the law, 461. JUDGE-MADE LAW, objectionable nature of, 99, n. JUDGMENTS, conclusiveness of those of other States, 38-41. general rules as to force and effect, 79-88. for torts are not contracts, 411. must apply the law in force when rendered, 543. are void if jurisdiction is wanting, 546, 575-578, 585. irregularities do not defeat, 587, 588. See JUDICIAL PROCEEDINGS; JURISDICTION. JUDICIAL DECISIONS. conclusiveness of, 79-88. of federal courts conclusive on questions of federal jurisdiction, 25-29. of State courts followed in other cases, 31, 32. general rules as to force and effect of, 79-88. JUDICIAL POWER, of the United States, extent of, 22-35. See COURTS OF THE UNITED STATES. not to be exercised by State legislatures, 126-129, 184, 558, 559. what is, 131-134, 137, 495. distribution of, 129, n. 3. declaratory statutes not an exercise of, 134-140. such statutes not to be applied to judgments, 136-139. instances of exercise of, 138, n. is apportioned by legislature, 129, n. 3. legislature may exercise, in deciding contested seats, 190. cannot be delegated, 589. JUDICIAL PROCEEDINGS, of several States, full faith and credit to be given to, 38-40. confirmation of invalid, by legislature, 150, 530. are void if court has no jurisdiction of the case, 575. jurisdiction of subject-matter, what is, 575. consent will not confer, 575-577. if wanting, objection may be taken at any time, 576. law encourages voluntary settlements and arrangements, 576. arbitrations distinguished from, 576. transitory and local actions, 577. jurisdiction in divorce cases, 577, 578. necessity for service of process, or substitute therefor, 579-585. proceedings in rem and in personam, 580, 581. INDEX. 985 JUDICIAL PROCEEDINGS continued. bringing in parties by publication, 581-585. no personal judgment in such case, 583, 584. decree for custody of children, effect of, 584. contesting jurisdiction, 585. courts of general and special jurisdiction, 585. record of, how far conclusive, 585, 586. irregularities do not defeat, 495, 496, 587, 588. waiver of, 587, 588. judicial power cannot be delegated, 589. right to jury trial in civil cases, 589-592. judge not to sit when interested, 592-595. statements in course of, how far privileged, 629-631. publication of accounts of trials privileged, 636-640. but must be fair and full, 637. and not ex parte, 637-639. and not contain indecent or blasphemous matter, 638. JUDICIARY, to advise legislature in some States, 72, n. 1. construction of constitution by, 73-78. equality of, with legislative department, 78, n. 1. independence of, 78, n. 2. when its decisions to be final, 79-88. appointments by, 131, n. 1. See COURTS ; JUDICIAL POWER ; JUDICIAL PROCEEDINGS; JURISDICTION. JURISDICTION, of courts, disproving, 37-41 and notes, want of, cannot be cured by legislation, 151, n. 1 and 2. of subject-matter, what it consists in, 575. not to be conferred by consent, 575-577. if wanting, objection may be taken at any time, 576. in divorce cases, what gives, 577, 578. necessity for service of process, 579-585. irregularities do not affect, 495, 496, 587, 588. interest in judge, effect of, 592-595. general and special, distinguished, 585, 586. where it exists, proceedings not to be attacked collaterally, 588. in tax proceedings, 718-720. of federal courts, 22, 23, 613. in cases of habeas corpus, 491-494. of federal supreme court appellate over State courts, 25-31. JURY, independence of, 460-465. JURY TRIAL, how far required by United States constitution, 46. the mode for the trial of criminal accusations, 453, 454. what cases do not require, 453, n. 2. must be speedy, 440, 441. and public, 441. and not inquisitorial, 442 and n. 1, 424, n. (a). prisoner to be confronted with witnesses, 440. statement by prisoner, 443-449. See CONFESSIONS. 986 INDEX. JURY TRIAL continued. prisoner to be present during trial, 452. jury to consist of twelve, 454-459 and notes, challenges of, 459. must be from vicinage, 53, 459. must be left free to act, 460. how far to judge of the law, 461-465, 596-599. in libel cases, 652-655. acquittal by, is final, 462. judge to instruct jury on the law, 461. but not to express opinion on facts, 460, 465, n. 1. nor to refuse to receive verdict, 461. accused not to be twice put in jeopardy, 466-470. what is legal jeopardy, 467, 468. when jury may be discharged without verdict, 468-470. when nolle prosequi equivalent to verdict, 468. second trial after verdict set aside, 470. right to counsel, 377, 474. constitutional right to jury trial in civil cases, 46, 589, 778, n., 938, n. 2. in cases of contempt, 453, n. 2. in case of municipal corporations, 340, n. 1. in habeas corpus cases, 497. JUST COMPENSATION, what constitutes, when property taken by the public, 812-828. See EMINENT DOMAIN. JUSTIFICATION, in libel cases by showing truth of charge, 656. showing of good motives and justifiable occasion, 656, 657. unsuccessful attempt at, to increase damages, 623, 624. K. KANSAS, power to grant divorces vested in the courts, 153, n. 2. exercise of the pardoning power restrained, 160, n. 2. requirement of general laws when they can be made applicable, 181, n. 4. privilege of legislators from arrest, 192, n. 1. title of act to embrace the subject, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. restriction upon power to contract debts, 325. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. religious belief not to be test of incompetency of witness, 677, n. persons conscientiously opposed to bearing arms excused, 676, n. private property not to be taken without compensation, 816, n. 2. KENTUCKY, special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by legislature, 153, n. 2. revenue bills must originate in lower house, 188, n. 1. title of acts to embrace the subject, 202, n. 3. restriction upon power to contract debts, 324. INDEX. 987 KENTUCKY continued. right of jury to determine the law in cases of libel, 463, n. 1. protection to person and property by the law of the land, 500, n. 2. compact with Virginia, 386, n. 1. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. exclusion of religious teachers from office, 662, n. 2. religious liberty in, 662, n. 3. persons conscientiously opposed to bearing arms, excused, 676, n. private property not to be taken without compensation, 816, n. 3. L. LARCENY, abroad, punishment of, here, 177, n. 3. LAW, common, how far in force, 51-53. See COMMON LAW. and fact, respective province of court and jury as to, 460-465, 652-655. the jury as judges of, 460-465, 652-655. LAW-MAKING POWER. See LEGISLATURES OF THE STATES. LAW OF THE LAND, protection of, insured by Magna Charia, 500. American constitutional provisions, 24, 25, 49, and 429, n. 2. meaning of the term, 502-506, 526. vested rights protected by, 507, 508. meaning of vested rights, 508, 526, 537-549. subjection of, to general laws, 508-510. interests in expectancy are not, 509-515. rights acquired through the marriage relation, 513-515. legal remedies not the subject of vested rights, and may be changed, 515-520. statutory privileges and exemptions are not, 546. rights in action are, 517. forfeitures must be judicially declared, 518-520. limitation laws may be passed, 520-524. See LIMITATION LAWS. rules of evidence may be changed, 524-528. retrospective laws, when admissible, 528-546. forbidden by some State constitutions 529, 530, n. 1. cannot create rights in action, 528-546. nor revive debts barred by statute of limitations, 528. may cure informalities, 529-546. may perfect imperfect contracts, 415, 416, 535-546. may waive a statutory forfeiture, 461, n. may validate imperfect deeds, 537-539. but not as against bonafide purchasers, 539, 540. cannot validate proceedings the legislature could not have authorized. 541-546. cannot cure defects of jurisdiction in courts, 545, 546, n. 2. consequential injuries give no right to complain, 548, 549. is R it n \7" 988 INDEX. LAW OF THE LAND continued. sumptuary laws inadmissible, 549, 550. betterment laws, 550-553. unequal and partial laws, 554-575. invalid judicial proceedings, 575-595. what necessary to give courts jurisdiction, 575-585. consent cannot confer, 575-577. in divorce cases, 577, 578. process must be served or substitute had, 579-585. proceedings in rem and in personam, 580-585. bringing in parties by publication, 582. no personal judgment in such case, 583-584. process cannot be served in another State, 582. jurisdiction over guardianship of children in divorce cases, 584. courts of general and special jurisdiction, and the rules as to ques- tioning their jurisdiction, 585, 586. irregular proceedings do not defeat jurisdiction, 587, 588. waiver of irregularities, 588. judicial power cannot be delegated, 589. judge cannot sit in his own cause, 592-594. objection to his interest cannot be waived, 595. right to jury trial in civil cases, 46, 589-592, 778, n., 938, n. 2. See TAXATION; EMINENT DOMAIN; POLICE POWER; JURY TRIAL. LAWS, enactment of. See STATUTES. Congress may make, to carry into effect powers granted, 13, 14. LAWS IMPAIRING OBLIGATION OF CONTRACTS. See OBLIGA- TION OF CONTRACTS. LAWS, EX POST FACTO. See Ex POST FACTO LAWS; RETROSPEC- TIVE LAWS. LEGAL PROCEEDINGS, publication of accounts of, how far privileged, 636-640. statements in course of, when privileged, 629-633. See JUDICIAL PROCEEDINGS. LEGAL TENDER, United States Treasury notes may be made, 14, n. 1. only gold and silver to be made, by the States, 36. LEGISLATIVE AUTHORITY, rules for measuring extent of, 126, 127. territorial limitations upon, 176-181. general limitations upon, 181-185 and notes. LEGISLATIVE DEPARTMENT, division of, 187, 188. not to exercise executive or judicial powers, 124-162. equality of, with other departments, 78, n. discretion of, not to be controlled by the courts, 75, n., 157-162. See LEGISLATURES OP THE STATES. LEGISLATIVE DISCRETION, courts not to control, 75, n. and 237-239. LEGISLATIVE DIVORCES, whether they are an exercise of judicial power, 152. impropriety of, 153-157. INDEX. 989 LEGISLATIVE MOTIVES, not to be inquired into by courts, 257-260, 300. presumption of correctness of, 257-260, 300. LEGISLATIVE POWERS, what are, 131, 137. limitations of, 163, n. 1. enactments in excess of, are void, 5, 243. distinguished from judicial, 131-134. cannot be delegated, 163, 293, 294. exercise of, will not give right of action, 300-306. cannot extend beyond territorial limits, 176, 177. grant of, will not warrant exercise of executive or judicial powers, 126-162. LEGISLATIVE PROCEEDINGS, privilege of publication of, 650-652. members not to be questioned for words in course of, 634-636. LEGISLATORS, contested elections of, to be decided by house, 190. duty of, not to violate constitution, 253, 254. presumed correctness of motives, 257-259, 300. privilege of, in debate, 634-636. from arrest, 192 right of, to publish speeches, 650-652. LEGISLATURES, COLONIAL, statutes adopted by, in force at Revolution, 51, 52. LEGISLATURES OF THE STATES, time for meeting of, 188. adjournment of, 188. power to originate amendments to State constitution, 59. construction of constitution by, 70-76. deference due to judicial construction by, 85 n. powers of, compared with those of Parliament, 124-126, 241-242. not to exercise executive or judicial powers, 126-127, 147-150, 244, 245. complete legislative power vested in, 126, 236, 240, 242. specification of powers in constitution unnecessary, 127, 128. declaratory statutes not the exercise of judicial power, 135-139. cannot set aside judgments, grant new trials, &c., 137, 138, 560. how far may bind parties by recital of facts in statutes, 139. power of, to grant divorces, 152-157. delegation of legislative power inadmissible, 163-174. but conditional legislation is not, 164-174. nor making charters subject to acceptance, 166. nor conferring powers of local government, 165-167, 263-266. irrepealable legislation cannot be passed, 174-176, 402, n. but exemptions from taxation may be made, 176, 395, 396, 739-744. power of, limited to territory of the State, 176-181. discretionary powers of, how restricted, 181-185. courts no control over, 184. control public moneys, 184. enactment of laws by, 186-226. must be under the constitutional forms, 186. parliamentary common law of, 187, 189-193. division of, into two houses, 187, 188. when to meet, 188. 990 INDEX. LEGISLATURES OF THE STATES continued. prorogation by executive, 188. rules of order of, 189, 190. electiou and qualification of members, determination of, 190. contempts of, may be punished by, 190, 191. but not by committees, 193. members of, may be expelled, 190. their privilege from arrest, &c. , 192. committees of, for collection of information, &c., 193. power of, to terminate with session, 193. journals of, to be evidence, 193, 194. action of, to be presumed legal and correct, 195. motives of members not to be questioned, 257-259, 300. " lobby " services illegal, 196. bills, introduction and passage of, 197-201. three several readings of, 116-119, 199, 200. yeas and nays to be entered on journal, 201. vote on passage of, what sufficient, 201. title of, formerly no part of it, 202. constitutional provisions respecting, 117, 202. purpose of these, 202-205. evils to be remedied by, 203-205. they are mandatory, 213, 214. particularity required in stating object, 205, 206. what is embraced by title, 208, 209. effect if more than one object embraced, 210, 211. effect if act is broader than title, 211-214. amended statutes, publication of, at length, 215-217. repeal of statutes at session when passed, 217. . signing of bills by officers of the houses, 218. approval and veto of bills by governor, 218-221. governor's messages to, 222. special sessions of, 222. when acts to take effect, 222-226. limitations upon power to enact law, 181-185, 241. power of the courts to declare statutes unconstitutional, 227-260. full control of, over municipal corporations, 266-270, 333-340. legalization by, of irregular municipal action, 306-309, 330, 331. of invalid contracts, 415, 416, 528-546. of irregular sales, taxation, &c., 530-543. not to pass bills of attainder, 36, 62, 368-371. nor ex post facto laws, 36, 62, 376. nor laws violating obligation of contracts, 36, 62, 175, 176, 383-417. See OBLIGATION OF CONTRACTS. insolvent laws, what may be passed, 416, 417. right to petition, 497, 498. vested rights protected against, 500-575. See LAW OF THE LAND. control by, of remedies in criminal cases, 374-383. in civil cases, 406-416, 515-528. control of rules of evidence, 409, 524-528. may change estates in land, 510-513. and rights to property under the marriage relation, 513. INDEX. 991 LEGISLATURES OF THE STATES continued. \ limitation laws may be passed by, 520. retrospective legislation by, 528-546. See RETROSPECTIVE LEGISLATION. privileges granted by, may be recalled, 546-548. consequential injuries from action of, 548, 549. sumptuary laws, 549, 550. betterment laws, 550-553. unequal and partial legislation, 554. general laws not always essential, 554-556. special rules for particular occupations, 555, 556. proscriptions for opinion's sake, 556. suspension of laws in special cases, 558, 559. special remedial legislation. 560. special franchises, 563-575. restrictions upon suffrage, 564, 901, 902. power of, to determine for what purposes taxes may be levied, 698-708. cannot authorize property to be taxed out of its district, 720-726. must select the subjects of taxation, 739. may determine necessity of appropriating private property to public use, 759, 760, 777, 778. but the necessity for taking particular property is sometimes a judicial question, by constitutional requirement, 777, n. 2. authority of, requisite to the appropriation, 759, 760. cannot appropriate property to private use, 763-769. LETTERS, legal inviolability of, 426, n. 1, 432, n. 2. of marque and reprisal, Congress may grant, 13. States not to grant, 35. LEVEES, establishment of, under police power, 734-736, 868. special assessments for, 735, 736. LIBEL. See LIBERTY OF SPEECH AND OF THE PRESS. LIBERTY, personal. See PERSONAL LIBERTY. of the press. See LIBERTY OF SPEECH AND OF THE PRESS. religious. See RELIGIOUS LIBERTY. of discussion, 497, 498. of bearing arms, 498, 499. of petition, 497, 498. charters of, 51. LIBERTY OF SPEECH AND OF THE PRESS, Hamilton's reasons why protection of, by bill of rights, was not impor- tant, 365. opposing reasons by Jefferson, 367, n. 1. Congress to pass no law abridging, 596. State constitutional provisions respecting, 596, n. 1. these create no new rights, but protect those already existing, 597-599. liberty of the press neither well denned nor protected at the common law, 599. censorship of publications, 599, 600. debates in Parliament not suffered to be published, 600. censorship in the Colonies, 600, 601. 992 INDEX. LIBERTY OF SPEECH AND OF THE PRESS continued. secret session of Constitutional Convention, 601, 602. and of United States Senate, 602. what liberty of speech and of the press consists in, 602, 603. general purpose of the constitutional provisions, 603-605. rules of common-law liability for injurious publications, 605-609. modification of, by statute, 607. privileged cases, 609, 611. libels upon the government indictable at the common law, 612. prosecutions for, have ceased in England, 612. sedition law for punishment of, 613. whether now punishable in America, 613-615. criticism upon officers and candidates for office, 616-628. statements in the course of judicial proceedings, 629-631. privilege of counsel, 631-633. of legislators, 634-636. publication of privileged communications through the press, 636-640. publication of speeches of council, &c., not privileged, 636. fair and impartial account of judicial trial is, 637. whole case must be published, 637. must be confined to what took place in court, 637. must not include indecent or blasphemous matter, 638. but not of ex parle proceedings, 638-640. privilege of publishers of news, 640-650. publishers generally held to same responsibility as other persons, 644. not excused by giving source of information, 644. nor because the publication was without their personal knowledge, 644. nor by its being a criticism on a candidate for office, 624, n. 1, 626, n. 1, 628, n. 2, 644. nor by its constituting a fair account of a public meeting, 664. may discuss public conduct of officials, 626, 644, 645. criticisms by, on works of art and literary productions, 644, 645. exemplary damages against publishers, 647-650. publication of legislative proceedings how far privileged, 650-652. rule in England, 650. the case of Stockdale v. Hansard, 651, n. 1. publication of speeches by members, 651, 652. the jury as judges of the law in libel cases, 652-655. Woodfall's and Miller's cases, 652, 653. Mr. Fox's Libel Act, 653, 654. the early rulings on the subject in America, 654. provisions on the subject in State constitutions, 596, n. 1, 655, n. 2. the truth as a defence when good motives and justifiable ends in the publication can be shown, 656-658. burden of proof on the defendant to show them, 657. that publication was copied from another source is not sufficient, 658. motives or character of defendant no protection, if publication is false, 658. LICENSE, granting of, 283, and notes 1 and 2. annulling, 399, 400 and n. 1. of occupations in general, 884-890. State cannot require, of those engaged in inter-state commerce, 693, n. 4. INDEX. 993 LICENSE continued. for ferry across navigable waters, 867. revoking, where a fee was received therefor, 399, 400 and n. 1. LICENSE FEES, when are taxes, 283 and n. 1, 709, n. ], 713. . limited generally to necessary expenses, &c., 283. LICENSER, of intended publications, 599-604. See LIBERTY OF SPEECH AND OF THE PRESS. LICENTIOUSNESS, distinguished from liberty, 625, 666, n. 3. LIEN, statutory, may be taken away, 407, n. 1. LIFE, liberty and property, protected under constitution, 15. action for taking, through negligence, &c., 843, 844. not to be taken but by due process of law, 15, 36, 500. LIMITATION, of time to apply for compensation for property taken by public, 815, 816. territorial, to legislative authority, 176, 177. upon legislative authority generally, 181, n. 4. LIMITATION LAWS, may cut off vested rights, 520-524. opportunity to assert rights must first be given, 523, 524. cannot operate upon party in possession, 523. legislature to determine what is reasonable time, 523, 524. suspension of, 521, n. 5, 558. legislature cannot revive demands barred by, 521. legislature may describe form for new promise, 415. do not apply to State or nation, 524, n. 1. LIMITATIONS, of federal constitution, upon federal government, unless States expressly named, 46. LIMITATIONS TO LEGISLATIVE POWER, are only such as the people have imposed by their constitutions, 126, 127. See LEGISLATURES OF THE STATES. LITERARY PRODUCTIONS, copyright to, Congress may provide for, 12. privilege of criticism of, 644, 645. LOBBY SERVICES, contract for, unlawful, 196 and n. 2. LOCAL ASSESSMENTS. See ASSESSMENTS. LOCAL IMPROVEMENTS. See LOCAL ASSESSMENTS. LOCAL OPTION LAWS, constitutionality of, 173, 174. LOCAL SELF-GOVERNMENT, State constitutions framed in reference to, 65, 243. the peculiar feature of the American system, 261-270. See MUNICIPAL CORPORATIONS. LOCAL TAXATION. See TAXATION. LOCALITY OF PROPERTY, may give jurisdiction to courts, 580. taxation dependent upon, 719-721, 743. 63 994 INDEX. LOG-ROLLING LEGISLATION, constitutional provisions to prevent, 202-217. LORD'S DAY, laws for observance of, how justified, 675, 676, 859. LOTTERIES, prohibition of, 120, n. 5. LOUISIANA, code of, based upon the civil law, 54, n. 2. divorces not to be granted by special laws, 153, n. 2. revenue bills must originate in lower house, 188, n. 1. title of acts to embrace the object, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. time when acts are to take effect, 225. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. privileges not to be granted on religious grounds, 663, n. " damaging " property in the course of public improvements, 810, n. 2. exclusions from suffrage in, 902, n. 1. LUNATICS, excluded from suffrage, 57, 902. special statutes for sale of lands of, 140-147. M. MAGNA CHARTA, grant of, did not create constitutional government, 5, n. a declaratory statute, 51, 366. its maxims the interpreters of constitutional grants of power, 244 provision in, for trial by peers, &c., 500. MAILS, inviolability of, 432, n. 2. MAINE, judges to give opinions to governor and legislature, 72, n. 1. revenue bills must originate in lower house, 188, n. 1. right of jury to determine the law in cases of libel, 463, n. 1. protection to person and property by the law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. persons conscientiously opposed to bearing arms, excused, 676, n. 2. periodical valuations for taxation, 711, 712. exclusions from suffrage in, 902, n. 1. MAJORITY, what constitutes two thirds, 201. what sufficient in elections, 892, n., 894, n., 921, 922. MALICE, presumption of, from falsity of injurious publications, 609, 652. in refusing to receive legal votes, 927. presumption in cases of homicide, 465, n. 1. INDEX. 995 MANDAMUS, to the executive, 162, n. 3. to compel registration of voters, 907. to compel canvassers to perform duty, 936. MANDATORY STATUTES, doctrine of, 109-119. constitutional provisions always mandatory, 114-119, 201, 213, 214. but courts cannot always enforce, 184, 185. MANUFACTURING PURPOSES, whether dams for, can be established under right of eminent domain, 771-773. taxation in aid of, 700, n. 1, 701, n. 2. MARKETS, State power to regulate, 887-889. MARRIAGE, validating invalid, by retrospective legislation, 533, 534. legislative control of rights springing from, 513-515. between whites and blacks, 556, u. 1. power of the legislature to annul, 152-157. See DIVORCE ; MARRIED WOMEN. MARRIED WOMEN, exclusion of, from suffrage, 57, 58, 902. statutes enlarging rights of, 95, n. 3. waiver of rights by, 252, n. 1. testimony of, in favor of husband, 447, n. 4. invalid deeds of, may be validated by legislature, 537, 538. control of, by husband, 484, 485. See DIVORCE ; DOWER. MARSHES, draining of, and assessments therefor, 734, 769, 770. MARTIAL LAW, when may be declared, 436, n. 1. citizen not to be tried by, 454, n. 1. legality of action under, 518, n. 3. danger from, 924, 925. MARYLAND, special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by legislature, 153, n. 2. limited time for introduction of new bills, 199. title of acts to embrace the subject, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. right of jury to determine the law in all criminal cases, 463, n. 1. protection of person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. exclusion of religious teachers from office, 662, n. 1. religious tests for office in, 662, n. 3. private property not to be taken without compensation, 816, n. 3. exclusions from suffrage in, 902, n. 1. MASSACHUSETTS, judges of, to give opinions to governor and legislature, 72, n. 1. constitutional provision respecting divorces, 153, n. 2. 996 INDEX. MASSACHUSETTS continued. revenue bills must originate in lower house, 188, n. 1. protection of person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. periodical valuations for taxation, 711, 712. exclusions from suffrage in, 902, n. 1. MASTER, of apprentice, servant, and scholar, power of, 486. MAXIMS, of government, laws in violation of, 238, 239. of the common law, what they consist in, 49, 50. gradual growth and expansion of, 88. for construction of statutes, a statute is to be construed as prospective, and not retrospective iu its operation, 97. such an interpretation shall be put upon a law as to uphold it, and give effect to the intention of the law-makers, 91, 92. words in a statute are presumed to be employed in their natural and ordinary sense, 92, 93, 123, n. 1. contemporary construction is best and strongest in the law, 102-106. a statute is to be construed in the light of the mischief it was de- signed to remedy, 100. he who considers the letter merely, goes but skin deep into the meaning, 123, n. 1. statutes in derogation of the common law are to be construed strictly, 95. an argument drawn from inconvenience is forcible in the law, 102-106. taxation and representation go together, 238. local concerns shall be managed in local districts, 238. general principles, no man can be judge in his own cause, 592-595. consent excuses error, 232, 250-252, 588. the law does not concern itself about trifles, 748. that to which a party assents is not in law an injury, 250-252. no man shall be twice vexed for one and the same cause, 80. every man's house is his castle, 50, 425, 426. that which was originally void cannot by mere lapse of time become valid, 522, 523. necessity knows no law, 878. so enjoy your own as not to injure that of another, 831. MEANING OF WORDS. See DEFINITIONS. MEASURES AND WEIGHTS, regulation of, 887-889. MEMBERS OF THE LEGISLATURE, contested seats of, decided by the house, 190. punishment of, for contempts, &c., 190, 191. power of the houses to expel, 190. exemption of, from arrest, 192. publication of speeches by, 650-652. privilege of, in debate, &c., 634-636. INDEX. 997 MICHIGAN, right of, to admission to the Union under ordinance of 1787, 56, n. 1. repeal of acts of Parliament in, 54, n. 2. repeal of laws derived from France, 54, n. 2. right of married women to property in, 95, n. 3. special statutes authorizing sale. of lands forbidden, 141, n. 1. divorces not to be granted by the legislature, 153, n. 2. privilege of legislators from arrest, 192, n. 1. limited time for introduction of new bills, 198, 199. title of acts to embrace the object, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. special legislative sessions, 222, n. 2. time when acts are to take effect, 223. restriction upon power to contract debts, 325 and n. 5. right of jury to determine the law in cases of libel, 463, n. 1. protection of person and property by law of the laud, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office in, 662, n. 3. persons conscientiously opposed to bearing arms excused, 676, n. 2. religious belief not to be test of incompetency of witness, 677, n. 1. periodical valuations for taxation, 711, 712. MILITARY BOUNTIES, by municipal corporations, when legal, 326-333. MILITARY COMMISSIONS, when not admissible, 454, n. 1. See MARTIAL LAW. MILITIA, control of, 45, 46. not to be called out on election days, 924, 925. MILL-DAMS, construction of, across navigable waters, 867. abatement of, as nuisances, 880. MILL-DAM ACTS, do not confer vested rights, 548. constitutionality of, 771-773. MILLERS, regulation of charges of, 870-873. taxation in aid of, 700, n. 1. MINNESOTA, divorces not to be granted by the legislature, 153, n. 2. revenue bills must originate in lower house, 188, n. 1. title of acts to embrace the subject, 202, n. 3. approval of laws by the governor of, 219, 220. protection of person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. religious belief not to be test of incompetency of witness, 677, n. 1. private property not to be taken without compensation, 816, n. 3. exclusions from suffrage in, 902, n. 1. 998 INDEX. MINORS. See INFANTS. MISCHIEF TO BE REMEDIED, may throw light on constitutional clause, 100. MISSISSIPPI, constitutional provision respecting divorces, 153, n. 2. exercise of the pardoning power restrained, 158, n. 2, 160, n. 2. revenue bills must originate in lower house, 188, n. 1. privilege of legislators from arrest, 192, n. 2. time when acts are to take effect, 223. municipalities of, restrained from aiding public improvements, 318, n. 1. protection of person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. religious tests for office in, 662, n. 3. religious liberty in, 662, n. 3. private property not to be taken without compensation, 816, n. 3. exclusions from suffrage in, 902, n. 1. MISSOURI, special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by legislature, 153, n. 2. restrictions upon legislative power in constitution of, 181, n. 4. privilege of legislators from arrest, 192, n. 1. title of act to embrace the subject, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. special legislative sessions, 222, n. 2. municipalities restrained from aiding public improvements, 318, n. 1. right of jury to determine the law in cases of libel, 463, n. 1. protection of person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. religious liberty in, 662, n. 3. persons conscientiously opposed to bearing arms excused, 676, n. 2. religious belief not to be test of incompetency of witness, 677, n. 1. " damaging " property in the course of public improvements, 810, n. 3. private property not to be taken without compensation, 816, n. 3. exclusions from suffrage in, 902, n. 1. MONEY, coinage and regulation of, 12, 35, 36. States forbidden to coin, 35. legal tender, 14, n. 1. punishment of counterfeiting, 12, 46. bills for raising, to originate in lower house in some States, 188. cannot be appropriated under right of eminent domain, 759. MONOPOLIES, odious nature of, 562, n. 1. . grant of, not presumed, 562, n. 1. in navigable waters, 864-866. MORAL OBLIGATIONS, recognition of, by municipal bodies, 306-309. MORTGAGES, right to possession under, cannot be taken away by legislature, 412- INDEX. 999 MOTIVES, of legislative body not to be inquired into by courts, 257-259. nor those of municipal legisl?tive body, 305, 306. good, when a defence in libel cases, 656-658. MUNICIPAL BODIES, do not decide upon disputed elections, 189, n. 1. MUNICIPAL CORPORATIONS, question of formation or division of, may be submitted to people inter- ested, 166, 167. question of engaging in internal improvements may also be submitted, 166, 167. powers of local government may be conferred upon, 166, 261. general view of the system, 261-364. legislature prescribes extent of powers, 265, 266. charter of, the measure of their authority, 265, 266, 270, 271. complete control of, by legislature, 239, n. 2, 266-269, 333-340. limitations upon, 333-340 and notes, whether it may compel them to assume obligations aside from their ordinary functions, 335-342. charter of, not a contract, 268, 390. powers of, 270-276. in general, 270-276. express, what are, 270. implied, what are, 270. effect of changes in, 266-269. charter to be strictly construed, 271. contracts ultra vires, void, 272-275. negotiable paper issued by, when valid, 312-325. may exist by prescription, 276-278. powers thereof, 277. by implication, existence of, 277. authority of, how exercised, 274. what by-laws they may make, 270, 278-292. must not be opposed to constitution of State or nation, 278. nor to charter, 278, 279. nor to general laws of the State, 278, 279, 291. nor to general principles of the common law, 284. nor be unreasonable, 280-292. illustrative cases on question of reasonableness of, 281, n. 1, 282, n. 2, 284, n. 4. nor uncertain, 284. cannot delegate their powers, 293-299. cannot adopt irrepealable legislation, 295. nor preclude themselves from exercise of police power, 295-299. nor grant away use of streets, 295-299. but may change grade of, 296. incidental injuries in exercise of powers give no right of action, 295-303. nor injuries from failure to exercise powers, 300-303. liability of, for negligence of officers, 304, 305 and notes, 355-364. for false imprisonment, 300, n. (a), may indemnify officers, 306-309. but not for refusal to perform duty, 309, n. 1, 311. may contract to pay for liquors destroyed, 309, n. 2. 1000 INDEX. MUNICIPAL CORPORATIONS continued. may hold property in trust for schools, 261, n. 1. or for other charities, 266, n. 2. construction of powers of, 309-342. to be with reference to the purposes of their creation, 309-311. will not include furnishing entertainments, 310. or loaning credit, 311. or offering rewards, or paying for lobby services, 310, n. 1. or expenditures for private purposes, 311. must be confined to territorial limits, 312 and notes, constitutional prohibitions of private aid taxes, 167, n. 5, 318, n. 1. power of, to raise bounty moneys, &c., 326-333, 341, 342. to aid internal improvements, 312-325 and notes, in respect to nuisances, 882-886 and notes, legislative control of corporate property, 342-347, 390-392, 411. may be made liable for destruction of property in riots, 345, n. 1. towns, counties, &c., how differing from chartered corporations, 347-358. judgments against, may be collected of corporators, 349-354. but only in New England, 354. not liable for failure of officers to perform duty, 354, 355. chartered corporations undertake for performance of corporate duty, 355-357. liability to persons injured by failure, 355-362. corporate organization how questioned, 363, 364. imperfect acts of, may be validated, 534, 535, 541, 542. must tax all property within their limits alike, 718-726. cannot tax property not lying within their limits, 718, 719. bounds of, cannot be arbitrarily enlarged in order to bring in property for taxation, 720, 721. obtaining water for, under right of eminent domain, 769. taking of lands for parks for, 770, n. MUTE, wilfully standing, when arraigned, 439, n. 2. NATION, definition of, 3. distinguished from State, 3. See UNITED STATES. NATURALIZATION, power of Congress over, 12. NAVIGABLE WATERS, made free by ordinance of 1787, 54, n. 2. right of States to improve and charge toll, 54, n. 2, 866, n what are, and what not, 861, 862. are for use of all equally, 861. general control of, is in the States, 863. congressional regulations, when made, control, 863, 864. States cannot grant monopolies of, 864. States may authorize bridges over, 865. when bridges become nuisances, 866. INDEX. 1001 NAVIGABLE WATERS continued. States may establish ferries across, 867. States may authorize dams of, 867. . regulation of speed of vessels upon, 867. rights of fishery in, 752 n. frontage upon, is property, 787, 788. See WATERCOURSES. NAVIGATION, right of, pertains to the eminent domain, 753. See NAVIGABLK WATERS. NEBRASKA, divorces not to be granted by legislature, 153, n. 2. privilege of legislators from arrest, 192, n. 1. title of acts to embrace the subject, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. right of jury to determine the law in cases of libel, 463, n. 1. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. religious belief not to be test of incompetency of witness, 677, n. 1. " damaging " property in the course of public improvements, 810, n. 3. disqualifications for suffrage in, 902, n. 1. NECESSITY, Constitution of United States compelled by, 9, n. is the basis of the right of eminent domain, 753. extent of property to be taken is limited by, 777-781. destruction of buildings to prevent spread of fire, 878. NEGLIGENCE, liability of municipal corporations for, 304, 305 and notes, 355-362. liability of quasi municipal corporations for, 354. as a foundation for rights under betterment laws, 552. carriers of persons may be made responsible for deaths by, 843, 844. in the construction of public works, may give right of action, 826. NEGOTIABLE PAPER, when municipal corporations liable upon, 312-325. NEVADA, special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by legislature, 153, n. 2. title of act to embrace the subject, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. special legislative sessions, 222, n. 2. protection to person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. religious tests for office forbidden in, 662, n. 3. religious belief not to be test of incompetency of witness, 677, n. 1. private property not to be taken without compensation, 816, n. 3. disqualifications for suffrage in, 902, n. 1. NEW ENGLAND CONFEDERACY, of 1643, why formed, 7. NEW HAMPSHIRE, judges of, to give opinions to the governor and to the legislature, 72, n. 1. causes of divorce to be heard by the courts, 153, n. 2. 1002 INDEX. NEW HAMPSHIRE continued. revenue bills must originate in lower house, 188, n. 1. approval of laws, 219, n. 1. municipalities restrained from aiding public improvements, 318, n. 1. protection to person and property by law of the land, 500, n. 2. constitutional provision respecting retrospective laws, 530, n. 1. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious liberty in, 664, n. 1. disqualifications from suffrage in, 902, n. 1. NEW JERSEY, special statutes licensing sale of lands forbidden, 141, n. L divorces not to be granted by legislature, 153, n. 2. revenue bills must originate in lower house, 188, n. 1. title of act to embrace the object, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. disqualifications from suffrage in, 902, n. 1. NEW STATES, admission of, 58-69. NEW TRIALS. not to be granted by the legislature, 137, 560. not granted on application of State in criminal cases, 463. may be had after verdict set aside on application of defendant, 469, 470. but not on counts on which he was acquitted, 470. See JEOPAKDY. NEW YORK, amendment of constitution of, 60, n. 1. divorces to be granted only in judicial proceedings, 153, n. 2. title of act to express the subject, 202, n. 3. approval of laws by governor of, 220. right of jury to determine the law in cases of libel, 463, n. 1. protection to person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious liberty in, 664, n. 1. persons conscientiously opposed to bearing arms excused, 676, n. religious belief not to be test of incompetency of witness, 677, n. 1. NEWSPAPERS, publication of privileged communications in, 636. whether they have any privilege in publishing news, 640, 641. privilege not admitted by the courts, 641-643. when publisher not liable to vindictive damages, 647-650. See LIBERTY OF SPEECH AND OF THE PRESS. NOBILITY, titles of, forbidden to be granted, 44, 45. NOLLE PROSEQUI, when equivalent to acquittal, 468. NON COMPOTES MENTIS, legislative authority for sale of lands of, 140-147. excluded from suffrage, 902. INDEX. 1003 NON-RESIDENT PARTIES, subjecting to jurisdiction of court by publication,' 582-585. restricted effect of the notice, 583, 584. discrimination in taxation of, 693. NORTH CAROLINA, ratification of constitution by, 9. divorces not to be granted by legislature, 153, n. 2. protection to person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. religious tests for office in, 662, n. 3. persons conscientiously opposed to bearing arms excused, 676, n. disqualifications from suffrage in, 902, n. 1. NOTICE, to render municipalities liable for defects, 357, 358. necessity for, in legal proceedings, 579-585. right to, in tax cases, 711, n. 3. bringing in non-resident parties by publication of, 581-585. of elections, when essential to their validity, 908, 909. NUISANCE, liability of municipal corporations for, 295, 299-306, 362, 363. when bridges over navigable waters are, 865, 866. municipal control of, 292, n. 1. abatement at expense of land-owner, 882, n. 2. power of municipal corporations over, 882, n. 2. when dams are, and may be abated, 880. obstructions in navigable streams are, 865-867. forbidding use of cemeteries which have become, 880, 881. general power in the States to abate, 882. created by public, not to be abated at expense of individual, 883, n. 1. 0. OATH, of attorneys, 474, n. 3. test, may be punishment, 372, n. of voter, when conclusive of his right, 927, 928. blasphemy and profanity punishable by law, 670-673. OBJECT OF STATUTE, in some States required to be stated in title, 202-214. OBLIGATION OF CONTRACTS, States not to pass laws violating, 36, 175, 176, 383, 384. what is a contract, 383-401. agreements by States are, 384-386. executed contracts, 384. appointments to office are not, 388. municipal charters are not, 268, 388. franchises granted to municipal corporations are not, 390. but grants of property in trust are, 390, 391. and grants of property for municipal use, 342-347. private charters of incorporation are, 391, 392. 1004 INDEX. OBLIGATION OF CONTRACTS continued. whether an exemption from taxation is, 176, 395, 396. it is if granted for a consideration, 395. whether right of eminent domain can be relinquished, 397-399. or the right to exercise the police power, 399. change in general laws of the State does not violate, 4.02,403. nor divorce laws, 403. such laws not to devest rights in property, 403. what obligation consists in, 405. remedies for enforcement of contracts may be changed, 405417. imprisonment for debt may be abolished, 407. exemptions from execution may be increased, 407-409. rules of evidence may be changed, 409, 410. but all remedy cannot be taken away, 410, 411. a judgment for a tort is not a contract, 411. repeal of statute giving remedy cannot destroy contracts, 411. appraisement laws cannot be made applicable to existing debts, 412. right to possession under mortgages cannot be taken away, 412. nor time to redeem lands shortened or extended, 412, 413. laws staying execution, how far invalid, 413, 414. when power of municipal taxation may not be taken away, 414, 415. stockholders liable for corporate debts may not be released by law, 415. whether a party may release, by contract, a privilege granted for reasons of State policy, 251, 252, 415. when a contract requires new action to its enforcement, changes may be made as to such action, 415. new promise to revive a debt may be required to be in writing, 415, 416. laws validating invalid contracts do not violate Constitution, 416. nor laws extending corporate franchises, 416. State insolvent laws, how far valid, 416, 417- effect of police laws, 832-883. OBSCENITY, in legal proceedings, not to be published, 638. sale of obscene books and papers may be prohibited, 884, 885. OBSCURITIES. aids in interpretation of, 100-107. See CONSTRUCTION OF STATE CONSTITUTIONS. OBSTRUCTIONS TO NAVIGATION. when bridges and dams to be considered such, 865-867. when channels cut by private parties are private property, 862. OCEAN. See HIGH SEAS. OFFENCE, same act may be, against both State and municipality, 279 and n. 4. OFFICE, certain persons disqualified for federal, 17. constitutional provisions not changeable by law, 95, n. 2. temporary appointments to, 99, n. 2. adjudging the forfeiture of, 133, n. 1. appointments to, do not constitute contracts, 388. whether they pertain to the executive, 158, n. 1. right to not to be contested on habeas corpus, 495, n. 3. eligibility to, 894, n. INDEX. 1005 OFFICER, President has general authority to appoint, 21, 22. duties of, when cannot be taken away, 99, n. 3, 388, n. 2. protection of dwelling-house against, 50, 425. general warrants to, are illegal, 426-429. may break open house to serve criminal warrant, 429. service of search-warrant by. See SEARCHES AND SEIZURES. privilege of criticism of, 616, 646, n. removal of, 158, n. 2, 388, n. 2. constitutional qualifications cannot be added to, by the legislature, 99. duty of, when doubtful of constitutional construction, 109. of the legislature, election of, 189. de jure, who is, 897. de facto, who is, 897, 898. municipal, may be indemnified by corporation, 306-309. but not for refusal to perform duty, 309, n. 1, 311. election of. See ELECTIONS. appointments to, not necessarily an executive function, 158, n. 2. OHIO. general laws to be uniform, 97, n. 3. legislature not to grant divorces nor exercise judicial power, 153, n. 2. legislature forbidden to exercise the appointing power, 158, n. 2. title of act to embrace the subject, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. constitutional provision respecting retrospective laws, 530, n. 2. liberty of speech and of the press in, 596 n. privilege of legislators in debate, 634 n. religious tests for office forbidden in, 662, n. 3. religious belief not to be test of incompetency of witness, 677, n. 1. private property not to be taken without compensation, 816, n. 3. OMNIPOTENCE OF PARLIAMENT, meaning of the term, 6, 124, 125, 244, 245. OPINION, of courts, in some States, executive or legislature may require, 72. proscription for, is unconstitutional, 556. on religious subjects to be free, 659-661. religious tests forbidden in some States, 662 and notes. of witnesses on religious subjects not to constitute disqualification in some States, 677, n. 1. judicial, force of, as precedents, 79-88. ORDINANCE OF 1787, how far still in force, 54, n. 2. admission of States to the Union under, 56 and n. 1. ORDINANCES, MUNICIPAL. See BY-LAWS; MUNICIPAL CORPORATIONS. OREGON, special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by legislature, 153, n. 2. exercise of the pardoning power restrained, 160, n. 2. revenue bills to originate in lower house, 188, n. 1. privilege of legislators from arrest, 192, n. 1. title of act to embrace the subject, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. 1006 INDEX. OREGON continued. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. persons conscientiously opposed to bearing arms, excused, 677, n. 1. private property not to be taken without compensation, 816, n. 3. disqualifications from suffrage in, 902, n. 1. ORIGINAL PACKAGES, State cannot prohibit sales in, when, 845-851. OVERRULING DECISIONS, when should take place, 86. P. PAPERS, private, exempt from seizure, 425-434. protected the same as property, 509, n. 2. PARDON, power of, to be exercised by governor, 159, n., 160, n. 3. ' constitutional provisions as to rules for, 160, n., 161. power to, does not include reprieves, 160, n. 2. PARENT, right of, to custody of child, 485. respective rights of father and mother, 496, 497. PARLIAMENT, power of, to change the constitution, 6, 124, 125, 244. acts of, adopted in America, 51, 52. repeal of acts of, 54, n. comparison of powers with those of State legislatures, 124-126, 244, 245. may exercise judicial authority, 125. bills of attainder by, 368. publication of proceedings of, not formerly allowed, 600. publication of speeches by members, 650-652. publication of reports and papers of, 650-652. PARLIAMENTARY LAW, influence of, in construction of constitutions, 187. legislative power in regard to, 189, 190. power to preserve order, &c., under, 190. privilege by, of members from arrest, 192. PARTIAL LEGISLATION, legislature to govern by equal laws, 554-575. special laws for particular individuals not permissible, 556, 557. suspensions of laws not allowed in special cases, 558. regulations for special localities or classes, 560-562. equality of rights, &c., the aim of the law, 562. strict construction of special privileges and grants, 564-567. and of discriminations against individuals and classes, 563-565. and of statutes in derogation of the common law, 95 and notes. citizens of other States not to be discriminated against, 567-575. PARTICULAR INTENT, control of, by general intent, 392, n. INDEX. 1007 PARTIES, defendants in criminal suits, evidence of, 447-449. not compellable to testify against themselves, 442-449. how subjected to jurisdiction of courts, 579-585. estopped by judgment, 81. PASSENGERS, power of States to require report of, from carriers, and to levy tax upon, 858. making carriers responsible for safety of, 843, 844. requirement of equal privileges to, 840, n. 4. PASTURAGE, right of, in public highway, is property, 788. PATENTS, power of granting, is in the United States, 12. States may regulate use of patented articles, 12, n. PAUPERS, exclusion of, from suffrage, 902. PAVING STREETS, assessments for, not within constitutional provisions respecting taxation, 713-715. special taxing districts for, 722-732. assessments may be made in proportion to benefits, 728. or in proportion to street front, 729. but each separate lot cannot be made a separate district, 732 PEACE AND WAR, power over, of the revolutionary Congress, 8. of Congress under the Constitution, 13. PENALTIES, for the same act under Federal and State laws, 45, 46. under State and municipal laws, 279 and n. 4. given by statute may be taken away, 517, n. 3, 547. for violation of police regulations, 890. PENNSYLVANIA, divorces not to be granted by legislature, 153, n. 2. local option statutes, validity of, 173. revenue bills must originate in lower house, 188, n. 1. title of act to embrace the subject, 202, n. 3. time when acts take effect, 225. right of jury to determine the law in cases of libel, 463, n. 1. protection to person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office in, 662, n. 3. injuring of property in course of public improvements, 810-812. private property not to be taken without compensation, 816, n. 3. experiment of, with single legislative body, 187, n. 1. PEOPLE, reservation of powers to, by national Constitution, 46. sovereignty vested in, 56-58, 892. formation and change of constitutions by, 58-63. who are the, 57, 58, 899-902. exercise of sovereign powers by, 899-909. 1008 INDEX. PERSON, right of inspection of the, 424, n. (a). PERSONAL LIBERTY, gradually acquired by servile classes in Great Britain, 419-423. constitutional prohibition of slavery in America, 423, 424. of bills of attainder, 36, 67, 368. See BILLS OF ATTAINDER. of ex post facto laws, 36, 67, 374. See Ex POST FACTO LAWS. of unreasonable searches and seizures, 424-434. See SEARCHES AND SEIZURES. of quartering soldiers in private houses, 435, 436. protection of, in one's dwelling-house, 50, 425, 426, 435. criminal accusations, how made, 436. bail for accused parties, 437, 438. unreasonable, not to be demanded, 439. trial for crimes, 440-482. See CRIMES. meaning of the terra, 483, 489, 490, 560, 561. legal restraints upon, 484-487. right to, in England, did not depend on any statute, 487. reason why it was not well protected, 487-489. evasions of the writ of habeas corpus, 487-489. the habeas corpus act, 51, 489-491. did not extend to American Colonies, 491. general adoption of, 491. writ of habeas corpus, 491. when national courts may issue, 491-493. State courts to issue generally, 493, 494. return to, when prisoner held under national authority, 493. not to be employed as a writ of error, 495. application for, need not be made in person, 494, n. 2. what the officer to inquire into, 495, 496. to enforce rights of relatives, 496, 497. PETIT JURY, trial by. See JURY TRIAL. PETITION, right of, 497, 498, 618. PETITION OF RIGHT, was a declaratory statute, 50, 51, 366. quartering soldiers upon subjects forbidden by, 435. PHILIPPINE ISLANDS, revenue clauses of the Constitution do not apply to, 12, n. (a). PICTURES, libels by, injury presumed from, 607, 608. indecent, sale of, may be prohibited, 884. PILOTAGE, State regulations of, 687, 688, 858, 859. PIRACY, Congress may define and punish, 13. PLURALITY, sufficient in elections, 892, 894, 931. INDEX. 1009 POISONS, regulation of sales of, 881, 882. POLICE POWER, of States not taken away by Federal Constitution nor amendments thereto, 11, n. exercise of, by municipal corporations, 283-292. pervading nature of, 832-851. definition of, 829-831. the maxim on which it rests, 831. States no power to relinquish it, 399, 400, 840. power of States to make regulations which affect contracts, 833-851. how charters of private incorporation may be affected by, 835-851. charters cannot be amended on pretence of, 837, 838. nor rights granted by charters taken away, 839. railroad corporations may be required to fence track, 840, 841. and made liable for beasts killed on track, 840, 841. grade of railways and crossings may be prescribed, 842. requirement that bell shall be rung or whistle sounded at crossings, &c., 843. whether carriers of persons may not be made insurers, 843. action may be given for death caused by negligence, 843, 844. authority of railway commissioners, 843, 844, n. sale of intoxicating drinks maybe regulated by States, 845-851 and notes. regulation of, to what extent interferes with power of Congress over commerce, 846-848. sale of intoxicating drinks as a beverage may be prohibited by States, 846-848. payment of United States license fee does not give rights as against State law, 851. quarantine and health regulations by States, 851-854. harbor regulations by the States, 855. line of distinction between police regulations and interference with com- merce, 856. police regulations may be established by Congress, 856, 857. State requirement of license fee from importers illegal, 687, 688, 857. State regulations to prevent immigrants becoming a public charge, 858. State regulations of pilots and pilotage, 858. Sunday laws as regulations of police, 859. regulation by States of use of highways, 860, 861. owners of urban property may be required to build sidewalks, 860, 861. construction of levees on river fronts, 868, what are navigable waters, 861. control of navigable waters by States, 861. restrictions on this control, 863-868. monopolies not to be granted, 862, 863. States may improve and charge tolls, 865. may authorize bridges, 865, 866. when these bridges to be abated, 866. may establish ferries, 867. may authorize dams, 867. when the dams may be abated, 867, 868. may regulate speed of vessels, 867, 868. regulations of civil rights and privileges, 869. 64 1010 INDEX. POLICE POWER continued. regulations of business charges, 870-876 and notes. other cases of police regulations, 877-891. destruction of property to prevent spread of fire, 877. for other reasons, notes to, 878, 879, 881. establishment of fire limits, wharf lines, &c., 878, 879. regulations respecting gunpowder, poisons, dogs, unwholesome provi- sions, &c., 880-883. regulations for protection of public morals, 884-886. market regulations, 886-888. regulation of employments, 869, 884-890. limiting hours of labor, 891. prohibited act or omission may be made criminal, 890. POLICE REGULATIONS, power to establish, may be conferred on municipal corporations, 172, n. See POLICE POWER. POLICE REPORTS, publication of, 636-638. POLITICAL DEPARTMENT, construction of constitution by, 72-76, 104, n. 3. POLITICAL OPINIONS, citizens not to be proscribed for, 556. POLITICAL POWER, distinguished from judicial, 143, n. 1. POLITICAL RIGHTS, equality of, 556-567, 659-668. POPULAR RIGHTS, not measured by constitutions, 69, n. 1. POPULAR VOTE, submission of laws to, not generally allowable, 163-165. See ELECTIONS. POPULAR WILL, expression of, as to amendment of constitutions, 59, 60. must be obtained under forms of law, 893, 894. See ELECTIONS. PORTO RICO, revenue clauses of the Constitution do not apply to, 12, n. (a). POSSESSION, importance of, in limitation laws, 522, 523. POST-OFFICES, and post-roads, Congress may establish, 12. inviolability of correspondence through, 432, n. 1. POWDER, police regulations concerning storage of, 881. POWERS, of government, apportionment of, by State constitutions, 64, 65. division of, in American constitutional law, 4. of Congress, 11-18. of State legislatures, 124-132. See JUDICIAL POWER ; LEGISLATIVE POWERS. PRACTICAL CONSTRUCTION, weight to be given to, 103-106. not to override the Constitution, 106. INDEX. 1011 PRECEDENTS, importance of, 83-85. judicial, how far binding, 8488. law made by, 89, n. only authoritative within country where decided, 85. when to be overruled, 87. of executive department, force of, 102. PRECIOUS METALS, in the soil belong to sovereign authority, 753. PRELIMINARY EXAMINATIONS, of persons accused of crimes, 443, 444. publication of proceedings on, not privileged, 638. PREROGATIVE REMEDIAL LEGISLATION, what is, 140-147. PRESCRIPTIVE CORPORATIONS, powers of, 276, 277. PRESENCE, of prisoner at his trial, 450-452. PRESIDENT, powers and duties of, 19-22. PRESS, LIBERTY OF. See LIBERTY OF SPEECH AND OF THE PRESS, PRESUMPTION, of constitutionality of statutes, 195, 236, 237, 255. of existence of corporation, 276, 277. of innocence of accused party, 437. of correctness of legislative motives, 260, 300, 305, 306 PRICES, regulation of, 870. PRINCIPAL AND BAIL, custody of principal by bail, 486. PRINTED BALLOTS, answer the requirement of written, 910, n. 3. PRIVACY, right of, 424, n. (a), 509, n. 3. PRIVATE BUSINESS, taxation to aid, 312-325. PRIVATE CORPORATIONS, distinguished from public, 387-394. charters of, are contracts, 391-394. PRIVATE PAPERS. See PAPERS. PRIVATE PROPERTY, right to, is before constitutions, 68, 69, 244, 507. of municipal corporations, how far under legislative control, 342-347. when affected with a public interest, 870-877. owners cannot be compelled to improve, 550, 768, 769. appropriating, under right of eminent domain, 753, 754. trial of right to, 526-528. protection of, against municipal action, 291, 292. See EMINENT DOMAIN ; VESTED RIGHTS. PRIVATE RIGHTS, not to be construed away by the legislature, 73, n. 1. under what circumstances may be disturbed, 507, 508. 1012 INDEX. PRIVATE ROADS, cannot be laid out under right of eminent domain, 764, 765. PRIVATE STATUTES, not evidence against third parties, 139. to authorize sales by guardians, &c., when constitutional, 140-147, 554. PRIVIES, estoppel of, by judgment, 81, 82. PRIVILEGED COMMUNICATIONS, meaning of the term, 609. when made in answer to inquiries, 610, 611. between principal and agent, 611. where parties sustain confidential relations, 611. discussing measures or principles of government, 612-615. criticising officers or candidates, 616-628. made in the course of judicial proceedings, 629-631. made by counsel, 631-633. by legislator to constituents, 634-636. by client to counsel, 477, 478. PRIVILEGES AND IMMUNITIES, of citizens of the several States, 36-41, 693. what are, 37, n. 1, 569-575 and notes. citizens not to be deprived of, 14, 15, 36, 417, 418. protection of, rests with the States, 418, n. 3, 869. of legislators, 192. special, strict construction of, 562-575. regulation of, 869. PROCEEDINGS, of constitutional convention may be looked to on questions of construc- tion, 101, 102. in rem and in personam, 580-585. of legislative bodies, publication of, 600-602, 636-640, 650-652. PROFANITY, in judicial proceedings, publication of, 638. punishment of, 671-674. PROFESSIONAL COMMUNICATIONS, not to be disclosed, 477, 478. PROFESSIONAL SERVICES, to influence legislation cannot be contracted for, 196. law requiring, without compensation, to be strictly construed, 563. See COUNSEL. PROHIBITIONS ON THE STATES, in the federal Constitution, 35-41. in forming or amending constitutions, 62. PROHIBITORY LIQUOR LAWS, constitutionality of, 845-851. PROPERTY, qualification for suffrage, 901, 902. protection of, by fourteenth amendment, 15. by constitutional provisions may be waived, 250, 251. of municipal corporations, control of, 342-347. See EMINENT DOMAIN; PRIVATE PROPERTY; VESTED RIGHTS. PROROGATION, of the legislature by governor, 188. INDEX. 1013 PROSCRIPTION, of persons for their opinions, 556, 659-668. PROSECUTING OFFICERS, duty of, to treat accused parties with judicial fairness, 440, n. 2, 480-482. PROTECTION, the equivalent for taxation, 812. of municipal corporations from liability for injuries incident to exercise of powers, 300. PROVISIONS, regulations to prevent sale of unwholesome, 881, 882, 886, 887. PUBLIC ACTS, records and judicial proceedings, full faith and credit to be given to, 38, 39. PUBLIC CORPORATIONS. See MUNICIPAL CORPORATIONS. PUBLIC DEBT, inviolability of, 17. PUBLIC GOOD, laws should have reference to, 184. PUBLIC GRANTS, strict construction of, 565. See CHARTER; FRANCHISE. PUBLIC GROUNDS, lands dedicated for, not to be put to other uses, 344, 345, 806, n. PUBLIC IMPROVEMENTS, power of municipalities to aid construction of, outside territorial limits, 312-325. PUBLIC INTEREST, when properly affected with, 870-877. PUBLIC MORALS, regulations for protection of, 884, 885. See RELIGIOUS LIBERTY. PUBLIC OFFICERS. See OFFICER. PUBLIC OPINION, not to affect construction of constitution, 88, 89. expression of, by elections, 893-895. PUBLIC PURPOSES, what are, 696, n. (n). taxation must be for, 184, 243, 678, 696-705. appropriation of property for, 752, 756. See EMINENT DOMAIN. PUBLIC STATUTES, what are, 554-556. PUBLIC TRIAL, accused parties entitled to, 441. not essential that everybody be allowed to attend, 441. PUBLIC USE, of property, what constitutes, 766, 768. See EMINENT DOMAIN. PUBLICATION, of statutes, 223-226. of debates in Parliament formerly not suffered, 600. of books, &c., censorship of, 601. of debates in American legislative bodies, 601, 602. 1014 INDEX. PUBLICATION continued. of legislative speeches, 650 T 652. of judicial proceedings, 636-640. of notice to non-resident parties, 581-585. See LIBERTY OF SPEECH AND OF THE PRESS. PUBLISHERS OF NEWS, not privileged in law, 640-650. PUNISHMENTS, for same act under Federal and State laws, 45, 46. under State and municipal laws, 279 and n. 4. what changes in, the legislature may make applicable to previous offences, 372-383. of crimes by servitude, 423. cruel and unusual, prohibited, 471-474. must not exceed measure the law has prescribed, 473, 474. See BILLS OF ATTAINDER; CRIMES; Ex POST FACTO LAWS. Q- QUALIFICATIONS, of officer or voter under constitution cannot be added to by legislature, 99. of members of legislature to be determined by the two houses, 189, 190. of voter, inquiring into, on contested election, 942-944. QUARANTINE, regulations by the States, 851-853. QUARTERING SOLDIERS, in private houses in time of peace forbidden, 435, 436. QUASI CORPORATIONS, 347-355. individual liability of members of in New England, 349, 354. not liable to private action for negligence of officers, 354. QUORUM, majority of, generally sufficient for passage of laws, 201. of courts, must act by majorities, 139. full court generally required on constitutional questions, 230. R RACE, color or previous condition of servitude, discrimination on account of, for- bidden, 36. not to be a disqualification for suffrage, 17, 18, 901. marriages between persons of different, 556, n. 1. RAILROADS, authorizing towns, &c., to subscribe to, is not delegating legislative power, 167, 168. whether such subscriptions may be made, 312-325. appropriations of lands for, 768 et seq. and of materials for constructing, 756. and of lands for depot buildings, &c., 780. See EMINENT DOMAIN. appropriation of highways for, 788-806. INDEX. 1015 RAILROADS continued. must be by legislative permission, 789. whether adjoining owner entitled to compensation, 789-803. whether one may condemn property of another, 757, n. 3, 804-806 and note. police regulations in respect to, 832-844. requiring corporations to fence track and pay for beasts killed, 840- 841. regulation of grade and crossings, 842. provisions regarding alarms, 843. regulation of charges, 871-876 and notes, responsibility for persons injured or killed, 843, bridges for, over navigable waters, 865. commissioners of, authority of, 843, 844, n. READING OF BILLS, constitutional provisions for, 116, 117, 200 and n. REAL ESTATE, rights of foreign corporations as to, 180, 181. not to be taxed out of taxing district, 719. within taxing district to be taxed uniformly, 718-731 taking for public use. See EMINENT DOMAIN. REASONABLENESS, of municipal by-laws, 280-292 and notes. of limitation laws, 522, 524. of police regulations. See POLICE POWER. REBELLION, employment of militia to suppress, 12. RECITALS, in statutes, not binding upon third parties, 139. when they may be evidence, 139. RECONSTRUCTION OF STATES, control over, 63, n. RECORDS, public, of the States, full faith and credit to be given to, 38-41. judicial, not generally to be contradicted, 40, n., 585. See JUDICIAL PROCEEDINGS. REDEMPTION, right of, cannot be shortened or extended by legislature, 412, 413. REFUSAL TO PLEAD, in criminal cases, consequence of, 439, n. 2. REGISTRATION, of voters, may be required, 905-907. REGULATION, of commerce by Congress, 12, 686-691, 845-859, 873, n. 1. by legislature, of exercise of executive power, 160, 161, n. 2. of navigable waters by Congress, 864. police, by the States. See POLICE POWER. of the right of suffrage, 899-905. right of, does it imply a right to prohibit, 284-292 and notes. REHEARING. See NEW TRIALS. RELIGIOUS LIBERTY, care taken by State constitutions to protect, 659-668. 1016 INDEX. RELIGIOUS LIBERTY continued. no law for the establishment of religion can be passed, 663, 664. compulsory taxation for support of religion forbidden, 664, 665 and u. 2. compulsory attendance on religious worship forbidden, 664. freedom of worship protected, 665. freedom of expression of religious belief guaranteed, 665. distinguished from religious toleration, 659, 632 and n. 1. does not preclude recognition of superintending Providence by public authorities, 668, 669. nor appointment of chaplains, thanksgiving and fast days, 669. nor recognition that the prevailing religion of the State is Christian, 669, 670. the maxim that Christianity is part of the law of the land, 670-673. punishment of blasphemy does not invade, 671-673. or of other forms of profanity, 674. Sunday laws, how justified, 674, 675, 859. respect for religious scruples, 676. religious belief, as affecting the competency or credibility of witnesses, 676, 677 and notes. REMEDIAL STATUTES, liberal construction of, 95, n. parties obtaining, are bound by, 139. may disturb private rights, 508. REMEDY, power of legislature over, in criminal cases, 374-383. in civil cases, 137-139, 405-417, 515-520. legislature cannot take away all remedy, 410, 411. a judgment for a tort is not a contract within this rule, 411 may give new remedies, and defences, 406-408. may limit resort to remedies, 515-520. for collection of taxes, 748-751. for compensation for property taken by public, 812-828. REMOVAL, of causes from State to national courts, 25-31. of officers, 158, n. 2. REPEAL, of old English statutes, 54, n. all laws subject to, 174-176. of statutes at same session of passage, 217. by implication, not favored, 216, 217. of corporate charters, 388, 394. of a law, terminates right to give judgment under it, 544. of laws conflicting with unconstitutional law, 256, 257. question of, not to be referred to the people, 171. REPORTS, of public meetings, 621. of legislative proceedings, publication of, 600-602, 650-652. of judicial proceedings, publication of, 636-640. See LIBERTY OF SPEECH AND OF THE PRESS. REPRESENTATION, constructive, 94, n. See LEGISLATIVE DEPARTMENT; LEGISLATORS. INDEX. 1017 REPRIEVE, power of, not included in power to pardon, 160, n. 2. REPUBLICAN GOVERNMENT, guarantee of, by United States to the States, 43, 44, 62. maxims of, do not constitute limitations on legislative power, 237-239. REPUBLICATION, of amended statutes under certain State constitutions, 214-217. RES ADJUD1CATA, definition, 79, 80. parties and privies estopped by judgments, 81. force of judgment does not depend on reasons assigned, 82. strangers not bound by, 81, 82. parties and privies not bound in new controversy, 82. RESERVED POWERS, under the United States Constitution in the States and people, 11, 46. RESIDENCE, gives jurisdiction in divorce suits, 578. but not unless bonajide, 578. as affecting right to impose personal taxes, 719. of voters, what constitutes, 903, 904. RESTRAINT OF TRADE, by-laws of municipal corporations when void because in, 284-287. RESTRICTIONS, on trade by municipal by-laws, 281-292. in United States Constitution on powers of the States, 35-41. on power of people to amend constitutions, 62. on powers of legislature. See LEGISLATURES OF THE STATES. RESUMPTION OF GRANTS, by the States is forbidden, 385. RETROSPECTIVE LEGISLATION, when admissible generally, 134-139, 528-546. sometimes construed as having prospective operation only, 255. cannot revive demands which are barred, 528. nor create a demand where none ever equitably existed, 528-546. may take away defences based on informalities, 528, 529. may cure irregularities in legal proceedings, 529-546. or in corporate action, &c., 531, 534, 535. what defects can and what cannot be cured by, 531, 539-546. may validate imperfect marriages, 533-535. or other imperfect contracts, 535-546. or invalid deeds, 537-540. may take away defence of usury, 536, 537. bona fide purchasers not to be affected by, 540. legalizing municipal action, 330, 331, 542. pendency of suit does not affect power to pass, 543, 544. cannot make good what the legislature could not originally have per- mitted, 544, 545. cannot cure defects of jurisdiction, 546. forbidden in some States, 529, 530. statutes generally construed to operate prospectively, 97, 529. prospective construction of constitution, 97. 1018 INDEX. REVENUE, in some States, bills for, to originate with lower house, 188, 189. cannot be raised under right of eminent domain, 758, 759. See TAXATION. REVISION, of State constitutions, 62. of statutes. See STATUTES. REVOLUTION, AMERICAN, powers of the Crown and Parliament over Colonies before, 7, 8. Congress of the, its powers, 7-9. division of powers of government at time of, 8, n. REWARDS, by towns for apprehension of offenders, 310, n. 1. RHODE ISLAND, ratification of Constitution by, 9. charter government of, 55. judges of, to give opinions to governor and legislature, 72, n. 1. privilege of legislators from arrest, 192, n. 2. impeachment of judges, 229, n. 1. protection to person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 696, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. periodical valuations for taxation, 712. exclusions from suffrage in, 902, n. 1. RIGHTS, of citizen not to be denied or abridged on account of race, color, or pre- vious servitude, 17, 18. distinguished from the remedy, 402-417. express constitutional prohibitions not necessary where they are declared in Constitution, 245. vested. See VESTED RIGHTS. in action. See ACTION. RIOTS, liability of municipality for property destroyed in, 300, n. 1, 345, n. 1. ROAD DISTRICTS, 348. ROADS, appropriation of private property for, 756, 767. appropriation of materials for constructing, 756. appropriation of, for railroads, &c., 788-798. See EMINENT DOMAIN. regulation of use of, by States, 860. action for exclusion from, 787, n. 2. RULES AND REGULATIONS. See BY-LAWS. RULES OF CONSTRUCTION. See CONSTRUCTION OF STATE CONSTI- TUTIONS. RULES OF EVIDENCE, power of the legislature to change, 405, 406, 524-528. See EVIDENCE. RULES OF LEGISLATIVE ORDER, are under the control of the legislature, 187-193. See LEGISLATURES OF THE STATES. INDEX. 1019 S. SABBATH, laws for observance of, 674, 675, 859. SALE OF LANDS, of incompetent persons, &c., special legislative authority for, 140-147. propriety of judicial action in such cases, 140. SCHOOL AUTHORITIES, control by, of school children, 261, n. 1. SCHOOL DISTRICTS, 348, 349. judgments against, in New England collectible against private owners, 349-354. SCHOOL-HOUSES, exercise of right of eminent domain for sites for, 769. SCHOOLS, general power of States to provide, 261-263 and notes, control of, 261, n. 1. impartial rights in, 261, n. 1, 556, n. Bible in, 665, n. 2. SCIENCE, Congress may promote, 12. SCOTLAND, servitude in, 422, 423. SEAMEN, impressment of, 424. SEARCH-WARRANTS. See SEARCHES AND SEIZURES. SEARCHES AND SEIZURES, the maxim that every man's house is his castle, 50, 425, 426. unreasonable searches and seizures prohibited, 425, 426. origin of the prohibition, 425, 426 and n. 1. history of general warrants in England, 426, n. 1. general warrants in America, 427, 428. search-warrants, their arbitrary character, 429. only granted after a showing of cause on oath, 429. must specify place to be searched and the object, 429, 430. particularity of description required, 430. should be served in daytime, 430. must be directed to proper officer, 430. must command accused party and property, &c., to be brought before officer, 430, 431. cannot give discretionary power to ministerial officer, 431. not allowed to obtain evidence of intended crime, 431. compulsory inspection of person or property, 424, n. (a), cases in which they are permissible, 431, 432. not to seize correspondence, 432, n. 2. for libels, illegal at common law, 433, n. 1. officer following command of, is protected, 434. and may break open doors, 434. SEAS. See HIGH SEAS. SEAT OF GOVERNMENT, Congress has exclusive control over, 13. 1020 INDEX. SECESSION, not admitted by the Constitution, 11. SECRECY, inviolability of, in correspondence, 432-434. elector's privilege of, 910-913. privilege of, as between counsel and client, 477, 478. SEDITION LAW, passage of, and prosecutions under, 613. SELF-ACCUSATION, not to be compelled, 442. SELF-DEFENCE, right to, 434, n. 4. SELF-EXECUTING PROVISIONS, what are and are not, 119-123. SELF-GOVERNMENT. See ELECTIONS ; MUNICIPAL CORPORATIONS. SENTENCE, indefinite suspension of, 160, n. 2. indeterminate, 158, n. SERMONS, privilege of criticism of, 625, 627, n. SERVANT, control of, by master, 486. SERVICES, laws requiring, without compensation, strictly construed, 563. to influence legislation cannot be contracted for, 196. of child, right of father to, 485. SERVITUDE. See SLAVERY. SEVENTH AMENDMENT, limitations of, apply to federal government only, 46. SHEEP, regulations for protection of, 527, n. 2, 881, u. 3. SIDEWALKS, owners of lots may be compelled to build under police power, 860. See ASSESSMENTS. SIGNING OF BILLS, by officers of legislature, 218. by the governor, 218-221. SIXTH AMENDMENT, limitations of, apply to federal government only, 46. SLANDER, general rules of liability for, 605, 606. See LIBERTY OF SPEECH AND OF THE PRESS. SLAVE CONTRACTS, enforcement of, 405, n. 1. SLAVERY, former state of, in England, 419. causes of its disappearance, 420-422. in Scotland, 422, 423. in America, 423, 424. now prohibited, 14. servitude in punishment of crime, 14, 423. INDEX. 1021 SLAVES, United States and States forbidden to pay claims for loss or emancipation of, 17. SOLDIERS, quartering of, in private houses prohibited, 435. municipal bounties to, 326-333. military suffrage laws, 903, n. jealousy of standing armies, 498, 499. SOUTH CAROLINA, revenue bills to originate in lower house, 188, n. 1. title of act to embrace the object, 169 and n. 3. right of jury to determine the law in cases of libel, n. 1, 463. protection of person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. religious tests for office in , 662, n. 3. persons conscientiously opposed to bearing arms excused, 676, n. 1. private property not to be taken without compensation, 816, n. 3. exclusions from suffrage in, 902, n. 1. SOVEREIGN POWERS, separation of, 62-66, 126-139. cannot be granted away, 174-176, 293, 395-402. SOVEREIGN STATE, what it is, 3. American States not strictly such, 8, 24-31. SOVEREIGNTY, definition of, 3. territorial and other limits of, 4. in America, rests in people, 56, 126, 892. limitation of the doctrine, 57. division of powers of, in American system, 4, 71. legislature not to bargain away, 174-176, 293, 395-402. exercise of, by the people, 892. See ELECTIONS. SPECIAL JURISDICTION, courts of, 585, 586. SPECIAL LAWS, forbidden in certain States where general can be made applicable, 153 and n. 2, 181 and n. 4. due process of law does not always forbid, 554-557. for sale of lands, &c., 140. SPECIAL PRIVILEGES, strict construction of, 561-567. restrictions in, based on sex, 889, n. 2. SPECIAL SESSIONS OF LEGISLATURE, calling of, by the governor, 188, 222. SPEECH, FREEDOM OF. See LIBERTY OF SPEECH AND OF THE PRESS. SPEECHES, of legislators, publication of, 650-652. of counsel, 636. SPEED, upon public highways, regulation of, 860, 861. on navigable waters, 867. 1022 INDEX. SPEEDY TRIAL, right of accused parties to, 440. SPIRIT OF THE CONSTITUTION, must be found in the words employed, 108, 239-241. laws in supposed violation of, 239-241. STALLIONS, prohibiting standing of, in public places, 886, n. 2. STAMP, defence to contract based on the want of, may be taken away, 539, n. 2. cannot be required on process of State courts, 684. upon contracts, 684, n. 2. STAMP ACT CONGRESS, what led to, 7. STANDING ARMIES, jealousy of, 498, 499. STANDING MUTE, of accused party, proceeding in case of, 439. STAR CHAMBER, court of, 488. STARE DECISIS, what is, and effect of the doctrine, 79-88. STATE, definition of, 3. , sovereign, what is, 3. distinguished from nation, 3. limits to jurisdiction of, 4. not suable without its own consent, 23 and n. 2. actions nominally against officers, really against State, will not lie, 23, n. 2. not liable for acts of agents, 23, n. 2. STATE BUILDINGS, local taxation for, 313, n. 1, 337, n. 1. STATE CONSTITUTIONS, in existence when United States Constitution was formed, 49. pre-existing laws, common and statutory, 49-54, 55, n. ordinance of 1787, 54, n. 2. colonial charters, 55. how modified when not containing provisions therefor, 56. theory that the people are sovereign, 56, 58. general rules for modification of, 58-68. right of people of Territories to form, 58, 59. right to amend, rests in people as an organized body politic, 59. will of the people must be expressed under forms of law, 59, 60. conventions to amend or revise, 61. limitations by Constitution of the United States on power to amend, 62. protection of personal rights by, 62, 64, 65. unjust provisions, &c., must be enforced, 62, 63. what is generally to be expected in, 64-68. are not the origin of individual rights, 68, 69. are presumed to have been drafted with care, 91, 92. are successors of English charters of liberty, 93, 94. construction of, 70-123. See CONSTRUCTION OF STATE CONSTITUTIONS. INDEX. 1023 STATE COURTS, removal of causes from, to United States courts, 25-31. to decide finally questions of State law, 31, 33. protection to personal liberty by, 417, 418, 491. See COURTS. STATE INDEBTEDNESS, prohibition of, will not prevent indebtedness by municipal corporations, 321-325. STATE INSTITUTIONS, local taxation for, 313, n. 1, 337, n. 1. STATEMENT, of defendant in criminal case, right to make, and effect of, 443-449. STATE'S ATTORNEY, fairness required of, 482, n. 1. STATES OF THE UNION, in what sense sovereign, 8. always subject to a common government, 10. restrictions upon, in the Constitution, 35-41. suits between, in Federal courts, 23. division of powers between, and the nation, 4. not suable without their consent by individuals, 23 and n. 2. actions, nominally against officers, really against State, will not lie, 23, n. 2. powers prohibited to, 35, 36, 44, 45. may legislate, in absence of congressional action, 45. faith to be given to public records of, 38-40. privileges and immunities of citizens of, 35, 692. cannot tax agencies of general government, 45. admission of new, 56. agreements of, are inviolable, 384-386. compacts between, are inviolable, 386, n. 1. STATUS, of marriage, control of, by legislature, 152-157. See DIVORCE. S1ATUTES, adopted from other States, construction of, 85 and note, directory and mandatory, 109-114. enactment of, 186-226. constitutional requirements must be observed, 186. common parliamentary law as affecting, 187. the two houses must act separately, 187. are of equal importance, dignity, and power, 187. to proceed in their own way in collecting information, 192. journals of houses as evidence, 193, 194. introduction of bills, 197-199. in some States bills involving raising of money must originate in lower house, 188. three several readings of bills, 116-118, 199, 200. yeas and nays, entry of, 11 o, 201. what sufficient vote on passage, 201. title of bill, formerly no part of it, 202. 1024 INDEX. STATUTES continued. constitutional provisions requiring object to be expressed, 117, 202. these provisions mandatory, 213, 214. evil to be remedied thereby, 203-205. particularity required in stating object, 205-207 "other purposes," ineffectual words in, 207. examples as to what can be held embraced in, 208, 209. repealing section, valid though not in title, 208. effect if more than one object embraced in title, 210, 211. effect where act broader than title, 211-214. amendatory, 214-217. requirement that act amended be set forth at length, 214-217. this not applicable to amendments by implication, 216. repeal of, at session of their passage, 217. by unconstitutional act, 256, 257. signing of, by presiding officers of two houses, 218. approval of, by the governor, 218-221. passage of, at special sessions, 222. when to take effect, 222-226. whether taking effect of, may be conditional, 164-170. publication of, 223-226. presumed validity of, 235-243, 252-254. power of courts to declare their unconstitutionality, 227-250. inferior courts may pass upon, 230, n. 1. not to be exercised by bare quorum, 230. a rule of propriety only, 230. nor unless decision on the very point necessary, 231. nor on complaint of party not interested, 232. nor solely because of unjust provisions, 233-237. nor because violating fundamental principles, 237-239. nor because opposed to spirit of constitution, 239-241. nor in any doubtful case, 252-257. may be void though no express constitutional provision violated, 242, 244. may be unconstitutional in part, 246-250. instances of, 249, 250. when valid portion may be enforced, 246-250. may be valid as to some cases and void as to others, 250. constitutional objection to, may be waived, 250. not in criminal cases, 252. motives in passage of, not to be inquired into, 257-259. consequence when invalid, 259-260. whether jury may pass upon, 480, n. 4. retrospective, 528-546. construction of, to be such as to give effect, 255. presumption against conflict with constitution, 255 257. to be prospective, 529. contemporary and practical, 102-107. ex post facto, 372-383. See Ex POST FACTO LAWS. violating obligation of contracts, 383-417. validating legal proceedings, 150, 151. See OBLIGATION OF CONTRACTS. unequal and partial, 554-575. INDEX. 1025 STATUTES continued. of limitation, 520, 524. of Parliament, how far in force in America, 51-53. STATUTORY LIENS, whether they may be taken away, 407, n. 1. STATUTORY PRIVILEGES, are not vested rights, 546. strict construction of, 563-575. STAY LAWS, law taking from mortgagees right to possession invalid as to existing mortgages, 412. law extending time of redemption of lands previously sold is void, 412, 413. law shortening redemption void, 412, 413. stay of execution on existing demands for unreasonable or indefinite time is void, 413, 414. STOCK IN CORPORATIONS, municipal subscriptions to, 167, 168, 312-325. when liable for debts, cannot be released by legislative act, 415. STREETS, power of cities, &c., to change grade of, 295-303. power to control, 295-303, and n. (a), 297. liability for injuries in, &c., 300-306, and n. 1, 300. special assessments for grading and paving, 713-717. assessment of labor upon, 737. exercise of right of eminent domain for, 756, 769 et seq. and for materials for constructing, 756. when owner of land to receive compensation, 812-828. appropriation of, for railways, 789-803. police regulations for use of, 860, 861. STRICT CONSTRUCTION, of laws in derogation of common law, 95. of charters, 271, 272, 564-567. of statutes granting special privileges, 563-567. of statutes requiring gratuitous services, 563. of statutes taking property for public use, 760-762. STUDENTS, law for protection of, 888. SUBJECT OF STATUTE, required in some States to be stated in title, 202. SUBMITTING LAWS TO POPULAR VOTE, whether it is a delegation of legislative power, 164-168. authorities generally do not allow, 168, 169. corporate charters, &c., may be submitted, 167, 264, 265. and questions of division of towns, &c., 167. and questions of local subscriptions to improvements, 167, n. 5, 169, 170. SUBSCRIPTIONS, to internal improvements by municipal corporations, 167, n. 5, 312-325 and notes, submitting questions of, to corporation is not delegating legislative power, 167, n. 5, 169, 170. power of taxation to provide for, cannot be taken away, 414, 415. 65 1026 INDEX. SUCCESSION TO THE CROWN, power of Parliament to change, 125 SUCCESSION TAXES, character and validity of, 708, n. (a). SUFFRAGE, right of, in forming new constitutions, 57. restrictions upon, to be construed strictly, 564. constitutional qualifications for, not to be added to by legislature, 99 and n. 3. who to exercise generally, 899-905. regulation of right of, 905-908. right of, not conferred on women by the new amendments, 18, n. See ELECTIONS. SUIT, notification of, by publication, 582-585. See ACTION. SUMPTUARY LAWS, odious character of, 549, 550. SUNDAY, laws to prevent desecration of, how defended, 675. police regulations regarding, 859. SUPPORT, of children, liability of father for, 485. lateral, of lands, right to, 785, n. 3. SUPREMACY OF PARLIAMENT, extent of, 6, 124-127, 244, 366. SUPREME COURT, Federal, appellate jurisdiction of, from State courts, 25-31. SUPREME LAW, Constitution, laws, and treaties of United States to be, 24. of a State, constitution to be, 4. SURRENDER, of fugitives from justice, 37, 38, n. 1. SUSPENSION OF LAWS, when authorized must be general, 558. for limitation of actions, 523 and n. 2. SWAMPS, drains for, 769, 770. special assessments for draining, 734. T. TAKING OF PROPERTY, of individuals for public use, 732, n. 3, 752 et seq. whether necessity for, is a judicial question, 777, 778 and notes. See EMINENT DOMAIN; TAXATION. TAX, what is, 678. direct, what is, 680. TAX DEED, may be made prima facie evidence of good title, 525, 526. but not conclusive evidence, 527. INDEX. 1027 TAX LAWS, directory and mandatory provisions in, 109-119. See TAXATION. TAX SALES, curing defective proceedings in, by retrospective legislation, 544-546. what defects should avoid, 747, 748. deeds given upon, may be made evidence of title, 525-528. conditions to redemption from, 527, n. 1. See TAXATION. TAXATION, general government may exercise power of, 12. and representation to go together, 52, 53, 94, n. 1, 163, n. 1, 238. construction of grant of, 318, 319. right of, compared with eminent domain, 812. exemptions from, by the States, when not repealable, 176, 395, 396. can only be for public purposes, 184, 243, 678, 696-705. whether purpose is public is judicial question, 185, n. 1. must be by consent of the people, 163, n. 1. license fees distinguished from, 283 and notes, 709, n. 1. by municipalities, power of legislature over, 165-167, 309, 334-338, 390 and n. 1. for internal improvements, 312-325. re-assessment of irregular, may be authorized, 306-308. irregular, may be confirmed by legislature, 544-546. necessary to the existence of government, 678. unlimited nature of power of, 678-686. for the support of religion forbidden, 664, 665, n. 2. of agencies of national government by the States impliedly forbidden, 45, 680-683. of agencies of the States by the national government also forbidden, 683, 684. of the subjects of commerce by the States, 686-691, 856-859. of corporations, 710, n. (n), 739, n. (). discriminations in, as between citizens of different States, 692, 693. legislature the proper authority to determine upon, 698-708. apportionment essential to, 705. taxing districts, necessity of, 711, 718, 719, 722. apportionment not always by values, 708, 709, 712, 713. periodical valuations for, 711, 712. inheritance taxes, 708, n. (a), license fees and other special taxes, 713. assessments for local improvements, 713-717. benefits from the improvement may be taken into the account, 714, 715, 727, 734. general provisions requiring taxation by value do not apply to these assessments, 713-715. taxation of persons or property out of the district is void, 720-726. must be uniform throughout the district, 692-694, 718-732. local assessments may be made in proportion to frontage, 729-731. necessity for apportionment in such case, 729, 730. special taxing districts for drains, levees, &c., 734-736. taxation in labor for repair of roads, &c., 737. difficulty in making taxation always equal, 737, 738. 1028 INDEX. TAXATION continued. hardships of individual cases do not make it void, 738. legislature must select the objects of taxation, 739. exemptions of property from, 739-744. constitutional provisions which preclude exemptions, 743, 744. special exemptions void, 741, n. 1. legislative authority must be shown for each particular tax, 744-747. excessive taxation, 747, 748. the maxim de minimis lex non curat not applicable in tax proceedings, 748. what defects and irregularities render tax sales void, 747, 748. legislature controls methods of collecting taxes, 748, 749. TEACHER AND SCHOLAR, control of former over latter, 261, n. 1, 486. TECHNICAL RULES OF CONSTRUCTION, danger of resorting to, 95 and n. 3, and 123, n. 1. TELEGRAPHIC CORRESPONDENCE, right to secrecy in, 432, n. 2. TEMPERANCE LAWS, right of the States to pass, 845-851. TENNESSEE, divorces not to be granted by legislature, 153, n. 2. title of act to express the object, 202, n. 3. constitutional provision relating to amendment of acts, 215, n. 1. when acts to take effect, 224, n. 4. right of jury to determine the law in libel cases, 463, n. 1. protection to person and property by law of the land, 500, n. 2. constitutional provision respecting retrospective laws, 530, n. 1. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office in, 662, n. 3. persons may be excused from bearing arms by money payment, 676, n. 1. exclusion of religious teachers from office, 662, n. 2. TENTH AMENDMENT, provisions of, 46. TERRITORIAL LIMITATION, to the powers of sovereignty, 4. to the exercise of power by the States, 176-181. to municipal authority, 312. to power of taxation, 718-721, 743. TERRITORIES, power of eminent domain in, 755, 756. legislation for, 54, n. 1. formation of constitutions by people of, 57. TESTS, test oaths, when may constitute a punishment, 371, 372 and notes. religious tests forbidden in some States, 622, notes, 677, n. political tests for office, 894, n. TEXAS, admission to Union, 10. Mexican law retained in the system of, 54, n. 2. special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by legislature, 153, n. 2. legislative rules regulating pardons, 160, n. 2. INDEX. 1029 TEXAS continued. no act to be amended by mere reference to its title, 215, n. 1. title of acts to express the object, 202, n. 3. right of jury to determine the law in libel cases, 463, n. 1. protection to person and property by law of the laud, 500, n. 2. constitutional provision respecting retrospective laws, 530, n. 1. liberty of speech and of the press in, 596, n. religious tests for office forbidden in, 662, n. 3. damaging of property in course of public improvements, 810, n. 2. exclusions from suffrage in, 902, n. 1. THIRTEENTH AMENDMENT, provisions of, 14, 417, 423. TIME, when statute shall take effect may be determined by popular vote, 171, 172. loss of remedy by lapse of, 520-524. and place are of the essence of election laws, 908, 909. TITLE TO LEGISLATIVE ACT, requirement that it shall state subject, &c., is mandatory, 117-119, 202-214. to be liberally construed, 209. what, sufficient, 206. generality of, not necessarily objectionable, 206. effect, if embraces more than one object, 210, 211. effect, where act broader than, 211, 214. amendment of statute by reference to, 214-216. TITLES OF NOBILITY, States not to grant, 44, 45. TOLERATION, as distinguished from religious liberty, 659-662. TORT, judgment for, is not a contract, 411. TOWN EXPENSES, cannot embrace pay for lobby services, 196 and n. 2. See MUNICIPAL CORPORATIONS. TOWNSHIPS, importance of, in the American system, 263-265 and notes. origin of, 263, 264. distinguished from chartered corporations, 347-349. are quasi corporations, 347, 349. collection from corporators of judgments against, 348-355. not liable for neglect of duty by officers, 354. apportionment of debts, &c., on division, 341, 411. indemnification of officers of, 306-309. See MUNICIPAL CORPORATIONS. TRADE, by-laws in general restraint of, 284-291. TRAVEL, obstructions to, on navigable waters, 862-867. regulating speed of, 860, 861, 867. TRAVERSE JURY, trial of accused parties by, 453-470. See JURY TRIAL. TREASON, evidence required to convict of, 443, n. 4. 1030 INDEX. TREATIES, President to make with concurrence of senate, 20, 21. of the United States, to be the supreme law, 24. States forbidden to enter into, 35. TREATING VOTERS, laws against, 923. TRIAL, of right to property, 526-528. new, not to be granted by legislature, 137, 560. of accused parties to be by jury, 453, 454. must be speedy, 440, 441. must be public, 441. must not be inquisitorial, 442 and n. 1, 424, n. (a). See CRIMES; HEARING; JURY TRIAL. TROOPS, and ships of war, restrictions upon States as to, 36. TRUST, the legislative, not to be delegated, 163, 293. grants of property in, inviolable, 390, 391. TRUSTEES, special statutes authorizing sales by, constitutional, 140. rights of cestuis que trust not to be determined by legislature, 147-151. municipal corporations as, 261, n. 1, and 266, n. 2. TRUTH, as a defence in libel cases, 607, 608, 623, 624, 656. necessity of showing good motives for publication of, 656. TURNPIKES, exercise of eminent domain for, 769. appropriation of highways for, 788, 789. change of, to common highways, 790, n. 1. TWICE IN JEOPARDY, punishment of same act under State and national law, 45, 46. under State law and municipal by-law, 279 and n. 4. See JEOPARDY. TWO THIRDS OF HOUSE, what constitutes, 201. U. ULTRA VIRES, contracts of municipal corporations which are, 272, 273, 309-311. UNANIMITY, required in jury trials, 460 and notes. UNCONSTITUTIONAL LAW, definition of the term, 5, 6. first declaration of, 55, n. 1, 229, n. 1. impeachment of judges for refusal to enforce, 229, n. 1. power of the courts to annul, 227-229. consent to taking of property under, defeats objection to, 232. strangers cannot urge the objection, 232. effect of, 259, 260. whether jury may pass upon, 480, n. 4. See COURTS ; STATUTES. INDEX. 1031 UNEQUAL AND PARTIAL LEGISLATION, special laws of a remedial nature, 554. local laws, or laws applying to particular classes, 554-556. proscription of parties for opinions, 556. suspensions of the laws must be general, 558, 559. distinctions must be based upon reason, 561. equality the aim of the law, 562. strict construction of special burdens and privileges, 563-567. discrimination against citizens of other States, 36, 567-575. UNIFORMITY, in construction of constitutions, 88, 89. in taxation, 705, 718-732. See TAXATION. UNION, of the colonies before the Revolution, 7. UNITED STATES, division of powers between the States and Union, 4. origin of its government, 7. Revolutionary Congress and its powers, 8, 9. Articles of Confederation and their failure, 9. formation of Constitution of, 9. government of, one of enumerated powers, 10, 242. general powers of, 11-18. to levy taxes, 679, 680. its laws and treaties the supreme law, 24. judicial powers of, 22, 23, 47. removal of causes from State courts to courts of, 25-31. prohibition upon exercise of powers by the States, 35-46. guaranty of republican government to the States, 42-44. implied prohibition of powers to the States, 45, 46. reservation of powers to States and people, 46. consent of, to formation of State constitutions, 56, 57. See CONGRESS ; CONSTITUTION OF UNITED STATES ; COURTS OF UNITED STATES ; PRESIDENT. UNJUST DEFENCES, no vested right in, 529 et seq. UNJUST PROVISIONS, in constitutions, must be enforced, 108, 109. in statutes, do not necessarily avoid them, 232-237. See PARTIAL LEGISLATION. UNLAWFUL CONTRACTS. See ILLEGAL CONTRACTS. UNLIMITED POWER, unknown in America, 125, n. 1. UNMUZZLED DOGS, restraining from running at large, 881 UNREASONABLE BAIL, not to be required, 439. UNREASONABLE BY-LAWS, are void, 280-292 and notes. UNREASONABLE SEARCHES AND SEIZURES. See SEARCHES AND SEIZURES. .1032 INDEX. UNWHOLESOME PROVISIONS, prohibiting sale of, 881, 882. USAGE AND CUSTOM. See COMMON LAW. USURPATION, by legislature should not be upheld, 105-110. of office, 898. USURY, right to defence of, may be taken away by legislature retrospectively, 536. V. VACANCIES, in office, filling, 99, n. 3. VACCINATION, compulsory, 880, n. (&). VAGRANCY, commitment of children for, 423, n. 4. charges of, not triable by jury, 453, n. 1. but must be tried judicially, 568, n. 1. VALIDATING IMPERFECT CONTRACTS, by reti'ospective legislation, 415, 531-546. See RETROSPECTIVE LEGISLATION. VALUATION, of property for taxation, 711, 712. requirements for, do not apply to local assessments, 713-715. See TAXATION. of land taken for public use. See EMINENT DOMAIN. VENUE, in criminal cases, 459. change of, 459, n. 2. VERDICT, jury not to be controlled by judge in giving, 460. judge cannot refuse to receive, 461. jury may return special, 461. but cannot be compelled to do so, 461. general, covers both the law and the facts, 461, 463. in favor of defendant in criminal case cannot be set aside, 462, 463. against accused, may be set aside, 464. in libel cases, to cover law and fact, 462, 652. to be a bar to new prosecution, 466. when defendant not to be deprived of, by nolle prosequi, 468. not a bar if court had no jurisdiction, 467, 468. or if indictment fatally defective, 467, 468. when jury may be discharged without, 468-470. set aside on defendant's motion, may be new trial, 470. on some of the counts, is bar to new trial thereon, 470. cannot be received from less than twelve jurors, 454-459 and notes. VERMONT. revenue bills to originate in lower house, 188, n. 1, betterment, law of, 551, 552. INDEX. 1033 VERMONT continued. liberty of speech and of press, 596, n. privilege of legislators in debate, 634, n. VESTED RIGHTS, not conferred by charters of municipal incorporation, 266-268. grants of property to corporations not revocable, 342-347, 390-394. under the marriage relation, cannot be taken away, 403. not to be disturbed except by due process of law, 14, 15, 245, 417, 508. meaning of the term, 509-549. subjection of, to general laws, 508-510. interests in expectancy are not, 509-515. rights under the marriage relation, when are, 513-515. in particular legal remedies, parties do not have, 515-520. but do have to some legal remedy, 410, 411, 517, 518. statutory privileges are not, 546. in rights of action, 517, 518. forfeitures of, must be judicially declared, 518-520. time for enforcing, may be limited, 520-524. do not exist in rules of evidence, 524-528. rights to take advantage of informalities are not, 528, 529. or of defence of usury, 536, 537. VILLAGES AND CITIES. See MUNICIPAL CORPORATIONS. VILLEINAGE, in England, 419-422. VINDICTIVE DAMAGES, when publisher of newspaper not liable to, 647, 648. VIOLATING OBLIGATION OF CONTRACTS. See OBLIGATION OF CONTRACTS. VIRGINIA, repeal of acts of Parliament in, 54, n. 2. special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by legistature, 153, n. 2. exercise of the pardoning power restrained, 160 and n. 2. revenue bills to originate in lower house, 188, n. 1. no act to be amended by mere reference to title, 215, n. 1. compact with Kentucky, 386, n. 1. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. exclusions from suffrage in, 902, n. 1. VOID CONTRACTS. See CONTRACTS. VOID JUDGMENTS. See JURISDICTION. VOID STATUTES. See STATUTES. VOLUNTEERS, in military service, municipal bounties to, 326-333. VOTERS, franchise of, cannot be made to depend on impossible condition, 518, n. 3. 1034 INDEX. VOTERS continued. constitutional qualifications of, cannot be added to by legislature, 99 and n. 2. who are, 568, n. 1, 899-902. privilege of secrecy of, 910-913. whether qualifications of, can be inquired into in contesting election, 941-944. See ELECTIONS. VOTING MACHINES use of, 910, n. 1. w. WAGERS, upon elections, are illegal, 924. WAIVER, of constitutional objection, 250-252, 415. of defects in incorporation, n. 1, 118. of irregularities in judicial proceedings, 588. of objection to interested judge, 594, 595. of right to full panel of jurors, 456-458. of right to compensation for property taken by public, 815, 816. in capital cases, 452 and n. 2. of elector's right to secrecy, 910-913. WAR AND PEACE, power of Revolutionary Congress over, 8. control of questions concerning, by Congress, 13. States not to engage in war except, &c., 36. WARD, control of guardian over, 485, 486. special statutes for sale of lands of, 140-147. WAREHOUSEMEN, regulation of charges of, 870-877. WARRANTS, general, their illegality, 425-429. service of, in criminal cases, 429. search-warrants, 429-434. See UNREASONABLE SEARCHES AND SEIZURES. WATERCOURSES, navigable, and rights therein, 861-868. dams across, for manufacturing purposes, 771-773, 867. bridges over, under State authority, 865. licensing ferries across, 867. construction of levees upon, 769, 868. flooding premises by, the liability for, 787, n. 2. incidental injury by improvement of, gives no right of action, 868. See NAVIGABLE WATERS; WATER-RIGHTS. WATER-RIGHTS, right to front on navigable water is property, 787, 788. right of the States to establish wharf lines, 878. INDEX. 1035 WATER-RIGHTS continued. right to use of, in running stream, 807, 808. appropriation of streams under right of eminent domain, 757, 769, 770. See NAVIGABLE WATERS; WATERCOURSES. WAYS. See HIGHWAYS ; PRIVATE ROADS ; ROADS ; STREETS. WEIGHTS AND MEASURES, Congress may fix standard of, 12. regulation of, by the States, 887-889. WEST VIRGINIA, special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by legislature, 153, n. 2. protection to person and property by law of the land, 500, n. 2. liberty of speech and of the press in, 596, n. privilege of legislators in debate, 634, n. religious liberty in, 662, n. 3. damaging property in the course of public improvements, 810, n. 2. exclusions from suffrage in, 902, n. 1. WHARFAGE, right to, is property, 787, 788. States may establish wharf lines, 878. WHIPPING, punishment by, 378. WIDOW. See DOWER. WIFE. See DIVORCE ; DOWER ; MARRIED WOMEN. WILL, imperfect, cannot be validated after title passed, 136, n. 2. WISCONSIN, special statutes licensing sale of lands forbidden, 141, n. 1. divorces not to be granted by legislature, 153, n. 2. privilege of legislators from arrest, 192, n. 1. title of act to embrace the subject, 202, n. 3. no act to be amended by mere reference to its title, 215, n. 1. time when acts take effect, 224, 225. restriction upon power to contract debts, 325. liberty of speech and of the press, 596, n. privilege of legislators in debate, 634, n. religious tests for office forbidden in, 662, n. 3. religious belief not to be test of incompetency of witness, 677, n. exclusions from suffrage in, 902, n. 1. WITCHCRAFT, confessions of, 444. WITNESSES, power to summon and examine before legislative committees, 193 accused parties to be confronted with, 450-452. not compellable to be against themselves, 442-452, 564. evidence by, in their own favor, 449, n. 2. not liable to civil action for false testimony, 629, 630. unless the testimony "was irrelevant, 629, n. 2. competency and credibility of, as depending on religious belief, 676, 677, n. testimony of wife on behalf of husband, 447, n. 4. 1036 INDEX. WOMEN, regulation of employments of, 889, n. 3. may hold office, 894, n. may not vote, 57, 568, n. 1, 902. See DIVORCK; DOWER; MARRIED WOMEN. WORKS OF ART, liberty of criticism of, 644, 645. WRITS OF ASSISTANCE, unconstitutional character of, 425-429. WRITS OF HABEAS CORPUS. See HABEAS CORPUS. WRITTEN CONSTITUTIONS, object of, 78, n. 2. Y. YEAS AND NAYS, in some States, on passage of laws to be entered on journals, 115, 201. UNIVERSITY 1 ,KL U3*N 4r^ 1.012. ^^N" RsSurRt JUH 'iO \9S3 a? 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