Professional Documents
Culture Documents
ON THE
TREATISE
ON THE
CONSTITUTIONAL LIMITATIONS
WHICH REST UPON
BY
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 years 1871, 1874, 1878, 1883, 1890, by
Copyright, 1896,
Br THOMAS M. COOLKT.
Copyright, 1903,
/>>
116683
PREFACE TO THE SECOND EDITION.
than to present his own views. At the same time, he did not
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
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-.
;
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.
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.
Rights are protected by, but do not come from them ... 69
CHAPTER IV.
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.
CHAPTER VI.
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.
CHAPTER VIII.
CHAPTER IX.
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.
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.
Page
CHAPTER XII.
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 on
justifiable ends," burden of showing is
defendant 656-658
What is not sufficient to show 657 n.
CHAPTER XIII.
RELIGIOUS LIBERTY.
CHAPTER XIV.
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
tax proceedings
in . . 748
What errors and defects render tax sales void 748-750
Remedies for collection of taxes . 748-751
CHAPTER XV.
THE EMINENT DOMAIN.
CHAPTER XVI.
CHAPTER XVII.
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
'
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
;
INDEX 945
TABLE OF CASES.
Page
Addyston Pipe & S. Co. v. United
Abbett v. Com'rs Johnson Co. 305, 355 States 687
Abbott v. Commonwealth 516 Ad Hine, The, p. Trevor 45
v. Kansas City, &c. Co. 757 Adirondack Ry. Co. v. New York
'
386
v. Lindenbower 526, 527, 645 v. State 386
v. Nat'l Bk. of Commerce 21, 28 Adkins v. Richmond 690, 694, 853
Abell v. Douglass 62 Adler p. Whitbeck 709, 749
Abels v. Supervisors of Ingham 896 Adsit v. Sec'y of State 909
Abendroth v. Greenwich 266 Agee v. Smith 877
p. Manhattan Ry. Co. 799, 801, 815, Ah Fook, Matter of 607
828 Ah Foy, Ex parte 287
Abercrombie c. Baxter 412 Ah Jow, In re 493
Aberdeen v. Saunderson 343 Ah Kow v. Nunan 557
v. Sykes 274, 322 Ah You, Re 290
Aberdeen Academy v. Aberdeen 347 Ahl v. Gleim 331, 533
Abington v. North Bridgewater 904 A'Hern p. Iowa S. A. Society 305
Ableman v. Booth 4, 493 Aikman v. Edwards 64
Abraham v. Casey 32 Aitken v. Wells River 300, 754, 878
Ackerman v. Jones 639 Akron v. Chamberlain 296
Ackley School Diet. v. Hall 206 Alabama, &c. Ins. Co. v. Boykin 539
A Coal Float v. Jeffersonville 282 Alabama, &c. R. R. Co. v. Kenney 398
Adams, Ex parte 453 Alabama G. S. Ry. Co. v. Hill 424
v. Adams 42, 497 Alabama R. R. Co. v. Kidd 316
v. Beale 626 Albany p. Sikes S04
v. Beloit 182 Albany Co. Suprs. v. Stanley 232
v. Beman 743 Albany Street, Matter of 232, 251, 508,
v. Brenan 274 764, 778, 780, 815, 823
p. Chicago, &c. R. R. Co. 299, 791, Albertson P. Landon 149, 528
802, 828 Albrecht p. State 204, 205, 709, 713
v. Coulliard 850 Albrittin p. Huntsville 356
v. Cowles 586 Albuquerque Nat'l Bk. p. Pera749712,
v. Field 86 Alcock v. Cooke 609
v. Hachett 400Alcorn v. Hamer 166, 736
p. Howe 128, 185, 237, 254Alderman v. School Directors 262
v. Palmer 156, 402, 403Alderson v. Com'rs 936
v. People 177 Aldrieh p. Aldrich 193
v. Rankin 607 p. Cheshire R. R. Co. 783, 819, 826
t'. Rivers 808 p. Kinney 41, 42, 583
v. Shelbyville 731 p. Printing Co. 622
v. SomerviMe 725 p. Sharp 689
v. State 262, 468 Aldridge v. Railroad Co. 629, 777
v. Tonnella 718 p. Williams 101
v. Vose 496 Alexander v. Alexander 614, 605
v. Wiscasset Bank 348, 352, 356 p. Baltimore 728
Adams Co. v. Burlington, &c. R. R. p. Bennett 129
Co. 30, 81, 86 v. McKenzie 388
v. Quincy 695, 718, 731, 741 p. Milwaukee 296, 781, 786
Adams Exp. Co. v. Kentucky 692 p. Mt. Sterling 358
v. Ohio State Aud. (165 U. S.) 691 p. People 253
p. Ohio State Aud.
(166 U. S.) 692 p. State 687
Adamson v. Davis 624 p. Taylor 82
Addle v. Davenport 900 v. Worthington 89, 100
Addoms v. Marx 6'28 Alexandria & F. Ry. Co. P. Alexan-
Addy v. Janesville 304 dria, &c. R. R. Co. 807
XX11 TABLE OF CASES.
Page Page
629 American Ref. Tr. Co. v. Hall 691
Allbyer v. State 97,
American River Water Co. v. Am*-
Alleghany City v. McClurkan 863
den
Allegheny Co. v. Gibson Louisiana
American Sugar R. Co. v. 16,
Allegheny County Home's Case 663
2\2t
484 American S. S. Union v. Taylor 741
Allen v. Aldrich
v. Archer 631 American Telph. & Telne. v. Pearce 804
v. Smith 787
v. Armstrong 626, 627, 545
v. Baltimore & O. R. R. Co. Americus v. Mitchell
v. B'd of State Aud. 130 v. Perry 65, 24
606 Ames v. Boland 576
v. Cape Fear, &c. Ry. Co.
Falls v. Lake Superior R. R. Co. 394, 817,
v. Chippewa 836
v. Crofoot 629
v. Dist. of Col. v. Port Huron Log Driving and
v. Drew 730, 734 Booming Co. 619, 594
Amey v. Mayor, &c. 167
v. Georgia
v. Glynn 900 Amis v. Smith
v. Jay 311, 316, 697, 700, 705, 772 Amory Keokuk >;.
Page
Anthony v. State 452 Atkins v.
Phillips 288
Antisdel v. Chicago, &c. R. R. Co. 841 v. Plimpton 685
Antoni v. Greenliow 24, 406 v. Randolph 336, 360
Wright
v. 232, 403 Atkinson v. Bemis 278
Antonio v. Gould 209, 211 v. Detroit Free Press 646
Arayo v. Currell 178 v. Doherty 510
Arbegust v. Louisville 720 v. Dunlap 137, 521, 529
Arbenz r. Wheeling & H. Ry. Co. 828 v. Goodrich Transp. Co. 284
Arctander, Matter of 481 v. Marietta & Cincinnati R. R. Co. 762
Argentine v. Atchison, T. & S. F. Atlanta v. Central R. R. Co. 825
298 v. First Pres. Ch. 741
Ry. Co. 718,
Arimond v. Green Bay Co. 757, 783, 787 v. Green 811, 812
Arkadelphia v. Windham 356 v. Stein 274, 291
Arkansas V. L., &c. Co. v. Mann 590 v. Warnock 303
Armington v. Barnet 395, 679, 757, 777 v. Word 812
Arms Ayer v. 164, 558 Atlantic Ex. Co. v. Wilmington & W.
Armstrong v. Harshaw 42, 583 Ry. Co. 873
v. Jackson 246, 553 Atlantic & Ohio R. R. Co. v. Sulli-
Page Page
Augusta Burum
r. 296 Bailey v. Philadelphia, &c. R. R. Co. 79,
228, 838, 867
17. Mackey 800
v. Murphy v. Sweeney
v. Wright 425
v. Sweeney
Augusta, &c. R. R. Co. v. Renz Bailey's Case
Augusta Bank v. Augusta 407, 738 Bain, Ex parte
691
Augusta Evening News v. Radford 628 Baird v. Mayor
200
740 v. State
Augusta Factory c. Augusta
Baity v. Cranfill
Augustin t7. Eggleston
Auld v. Butcher 406, 623 Baker v. Boston 884
v. Walton t7. Braman 232, 250, 251
Aurora v. Heed t7. Cincinnati 717
Aurora City v. West 80, 167 r. Ducker 661
Austen v. Miller 35 v. Gordon 497
Austin el a/., In re 481 v. Johnson 809, 814
810, 811 623
v. Augusta T. Ry. Co. r. Kelly
310 v. Kerr 688
.
Coggeshall
Gas Co.
t7. 740 r. Lewis 863
281,285,291,292 17. Mattocks 62
v.Murray
v. Tennessee 687, 848 t7. Panola Co. 710
Austine 17. State 445 7.
People 680
Avent-Beattyville Coal Co. v. Com. 877 v. Portland 888
Avery v. Tyringham 17.. Rand 81
Avis Vineland
v. 291 17. State 468, 470
Axtell v. Gerlach 748 v. Stonebraker's Adm'rs 522
414 r. Windham 307
Aycock r. Martin
Ayers, In re 24, 495 Balch v. Commissioners 770
r. Chicago Title T. Co. 709 Baldwin v. Bank of Newberry 417
v. Grider 606 17.
Chicago 285
r. Moan 925 v. Douglas Co. 737
Aylesworth v. St. John 631 v. Flagg 413
499 v. Franks 18
Aynette v. State
Ayres t7. Methodist Church 670, 673 f. Green 279
v. Hale 416, 417
17. Newark
406, 630
B. v. New York 341
v. North Branford 266, 327
Babcock t?. Buffalo 362, 884 v. State 222
t7.
Camp 80 Balfour v. Louisville, &c. R. R. Co. 823
Baccigalupo v. Commonwealth 437 Ball v. Chadwick 100
Bachelder v. Moore 454 17. Commonwealth 437
Backus i: Detroit 666 r. Gilbert 924
v. Fort St. U. D. Co. 22, 32, 814 v. Winchester 365
v. Lebanon 392, 395, 589 v. Woodbine 302
Bacon v. Arthur 867 Ballard v. State 437
Callender
.
616, 643, 553 Ballentine v. Mayor,
'
&c. 236
t7. Fisher 478 Ballot Act, Re 900
v. Mich. Cent. R. R. Co. 605, 612 Ballon v. State 304
t7. Texas 31, 36 Balm v. Nunn 689
i7.
Wayne County 477 Baltes v Farmers' Irr. Dist. 929
York County
. 986 Baltimore v. Baltimore, &c. R. R.
Bacot, Ex parte 764 Co. 665
Bagg t7. Wilmington C. & A. Ry. r. Keeley Inst. 696
Co. 845 v. B. Tr. & G. Co. 299
Baprp's Appeal 138, 521 r. Cemetery Co. 741
Baiznall v. London & N. W. R. Co. 819 r. Clunet
165, 400
Bahen, Ex parte 282 r. Eschbach 324
Bailey v. Boston & P. Ry. Co. 827 v. Hussey 694
v. Commonwealth 109 17. Johns
722
Hopkins Hosp.
w. Fisher 898 v. Pendleton 362
v. Fiske 664 P. Redecke 288
r.
Gentry 78 17. Scharf
505, 722
7. Milnef 36 p. State
100, 104, 169, 239, 253
t;.
Miltenberger 766 255, 257, 258, 657, 831
v. New York 347, 357, 358, 390 v. Stewart 731
v. People 673, 880 Baltimore & E. S. Ry. Co. v. Spring 696
TABLE OF CASES. XXV
Page Page
Baltimore & F. T. R. v. Baltimore, Jarber v. Trustees of Schools 262
&c. Ry. Co. 758 Jarber Asphalt Co. v. Hunt 195
Baltimore & O. Ry. Co. v. Baugh 32 Barbier v. Connolly 11, 19,282, 832
v. Maryland 872 iarbour v. Barbour 514
Baltimore, &c. R. R. Co. v. P. W. & v. Camden 331, 543
K. Ry. Co. 779 17. Erwin 522
v. Fifth Bapt. Ch. 297, 785 Barclay v. Barclay 487
v. Magruder 757 . HowelFs Lessee 810
v. Nesbit 761 3ardwell 7. Anderson 673
v. North 807 Barfield v. Gleason 731
.
Pittsburgh, &c. R. R. Co. 780, 818 3arker, Ex parte 40
Baltimore Tr. Co. v. B. B. Ry. Co. 32 17. Cleveland 80
Baltimore, &c. Turnpike Co. v. v. People 46, 99, 471, 894
Union R. R. Co. 398 v. Pittsburgh 389
Baltzer v. North Carolina 410 Barling v. West 282, 285
Bamberger & Co. v. Schoolfield 32, 180 Barlow v. Lambert 62
Banaz v. Smith 259, 731 Barnaby v. State 858
Bancroft v. Dumas 174, 845 Barnard v. Bartlett 434
v. Lynnfleld 308 v. Taggart 100
v. Thayer 262 Barnes v. Campbell 644
Bandel v. Isaac 101 i7. District of Columbia 266
Banger's Appeal 709 r. Dyer 729
Bangor v. Smith , 852, 858 i7. First Parish in Falmouth 105
Bangs v. Snow 745, 749 w. Lacon 340
Banholzer 17. N. Y. L. Ins. Co. 39 17. McCrate 629
Bank v. Hines 703 v. Pike Co. 929
v. Supervisors 683 v. Suddard 181
Bank of Augusta v. Earle 178 v. Supervisors 907
Bank of Chenango v. Brown, 166, 170, 173 Barnet v. Barnet 638, 641
Bank of Chillicothe v. Chillicothe 272 Barnett v. Dennison 319
Bank of Columbia v. Okely 505, 564 17.
People 470
Bank of Commerce r. New York 683 u. Railroad Co. 841
17. Tennessee 396, 738. 740 r. Ward 607
r. Wiltsie 182, 183 Barnitz v. Beverley 413
Bank of the Dominion v. McVeigh 392 Barnum v. Oilman 895, 932
Bank of Hamilton v. Dudley's Les- v. Okolona 81, 168, 319, 326
see 33, 247, 516 Barr v. Moore 629
Bank of Illinois v. Sloo 86 Barre R. R. Co. v. Montpelier 807
Bank of Mich. v. Williams 244, 503 Barre Water Co., Re 696, 762
Bank of Republic v. Hamilton Barrett v. Crane 685
Bank of Rome v. Village of Rome 167 17.
Failing 685
Bank of the State v. Bank of Cape 17. Holmes 623
Fear 392 17.
Kemp 777
v. Cooper 56( v. Taylor 908
r. Dalton 4c Barren v. Baltimore 46
Bank of United States 17. Daniel 33 v. Burnside 24
v. Halstead 103 t7. Dent 685
t7. Norton 2( v. Detroit 306
Bank of Utica v. Mersereau 47 Barronet, Matter of 438, 439
Bank Tax Case 68< Barrow v. Page 760
Bankers' Case Barrows v. Bell 637, 647
Bankhead v. Brown 764, 775, 778 Barry, Ex parte 498
Banks, Ex parte 439 v. Lauck 908, 910, 927
Banks, The v. The Mayor i
v. Mercein 33, 497
Banner Pub. Co. v. State 619, 656 Barry's Case 497
Banning v. Commonwealth 88-; Bartemeyer v. Iowa 38, 849
17.
Taylor 502 Barthelemy v. People 658
Bannon v. State 56( Bartholomew v. Harwinton 330, 331, 643
Banta v. Chicago 265 Bartlett v. Christhilf 630
Baptist Church v. Wetherell 660, 66 t7. Clarksburg 302
Bar Association, Ex parte 69' 17. Columbus 800
Barbemeyer v. Iowa 18 v. Crozier 803, 355
Barber v. Pittsburgh, Ft. W. & C. t7.
Kinsley 275
Ry. Co. v. Knight 42, 683
17. Root 615
679, 580 w. Lang
v. St. Louis, &c. Co. 637 v. Morris 91
XXVI TABLE OF CASES.
Page
Bartlett v. Wilson 631 Beardstown v. Virginia 89, 102, 914, 926,
Barto v. Himrod 163, 169, 170, 172
942
Barton n. Brown 251 Beasley v.Beckley 691
v. State 453 Beaty v. Knowler
v. Swepston 274 Beauchamp v. State 128, 237
v. Syracuse 356, 362 Beaudeau v. Cape Girardeau 220
t\ Thompson 81 Beaufort Co. Comm'rs v. Old Domin-
Bartruffc. Remey . 629 ion S. S. Co. 693
Bass v.
Fontleroy 176 Beauregard v. New Orleans
v. Nashville 120, 400 Beaver v. City of Harrisburg 763
v. Roanoke N. & W. P. Co. 512 Beck v. Stitzel 605
Bassett v. Porter 277 Becker v. La Crosse 312
Hasten r. Carew 687 Beckwith v. Racine 415
Batchelder v. Batchelder 679 v. Rucker 900
Bates v. Cullom 622 v. Winters 900
r. Delavan 683 Bedard v. Hall 195
v. Huston 661 Bedell, Ex parte 473
v. Kimball 78, 132, 137, 228 v: Bailey 692
v. McDowell 514 Bedford v. E. Building & L. Ass'n 179
r. Relyea 84 Bedle r. Beard 277
v. Spooner 80 Beebe v. State 132, 137, 236, 237, 245, 849
v. Taylor 162 Beecher v. Baldy 121, 251
Bates Co. v. Winters 319 Beeching's Case 490
Bathrick v. Detroit Post, &c. Co. 637 Beef & P. Co. v. Best 417
Baths, Ex purte 289 Beekman v. Saratoga, &c. R. R. Co. 754,
Batman v. Megowan 937 764, 767, 770, 776, 776
Batre v. State 464, 466 Beeler v. Jackson 612
Battle r. Howard 209 Beene v. State 481
Baugher v. Nelson 374, 672 Beer Co. v. Massachusetts 400, 831, 845,
Baughn v. State 670 846, 849, 854, 883
Biium v. Clause 606 Beers v. Beers 590, 591
v. Raphael 216 v. Botsford 352
Bauman v. Detroit 300 v. Haughton 406, 407
r. Ross 716, 826 Beets v. State 451
Bauserman v. Blunt 27, 32 Begeroro, Re 440
Baxter, Matter of 371 Behrens v. Allen 638, 640
v. Brooks 937 v. Evansville 290
Beiling
v. Winooski 355 Beirne v. Brown
Turnpike 370, 372
Bay v. Gage 629 Belcher Sugar Ref. Co. v. St. Louis
Bayard v. Klinge 892 Kiev. Co. 766, 770, 804
v. Singleton 56 Belden v. State 83
Bay City v. State Treasurer 104, 325, Belknap v. Ball 628
338 v. Louisville 893
Bay City, &c. Co. v. Austin 407 Bell v. Bell 44, 579
Bayerque v. Cohen 34 v. Clapp 428, 430
Baylis v. Lawrence 656 v. Morrison
33, 34, 521
Bayly v. Fourchy 632 v. Norfolk, &c. R. R. Co. 757
Bays t-. Hunt 628 t>. Plattville 272
v. State 262 v. Prouty 765
Beach v. Ranney 607 v. Rice 430
v. Viles 33 v. State
441, 451
v. Walker
629, 633 v. Sun
Printing Co. 629
Beal v. Nason 621 v. West Point 363
v. State 177 Belles v. Bun- 901
Beale v. City of Boston 828 Belleville R. R. Co. v. Gregory 92
Beall Beall 554 Bellinger v. New York Cent. R. R.
r.
612,
Beals v. Amador Co. 336 Co. 757, 783, 807, 826
Bean v. State 434 Beliingham Bay & B. C. Ry. Co. v.
Beard v. Beard 682, 585 New Whatcom 26
v. Hopkinsville 318, 320 Bellmeyer v. School District 261
Wilson
v. 200 Bellows v. Parsons 87
Bearden v. Madison 287 Bellport, Parish of v. Tooker 660
Bcardsley v. Bridgman 607, 644 Belo v. Commissioners 738
v. Erie
Ry. Co. 873, 875 Belvin v. Richmond 356
Smith 348, 354, 355 Bemis v. Becker 86
v. Tappan 611 Benden v. Nashua 733
TABLE OF CASES. XXV11
Page
Bender v. Crawford 414, 522 Bigelow v. Bigelow 46
v. State 219 v. Randolph 355, 356
Bendey v. Townsend v. W. Wisconsin R. R. 92, 256, 823
Benedict v. Goit 790 Big Grove r. Wells 320, 324
v. Smith Biggs, Ex parte 481
v. State 478 v. McBride 105, 158, 159
v. Vanderbilt 856 Bigham v. State 467
Benford v. Gibson Bigler's Executors v. Penna. Canal
Benjamin v. Manistee, &c. Co. 865 Co. 762
v. Webster 294 Bill v. Norwich 363
Bennett v. Am. Exp. Co. 879 Billings r. Detten 645
v. Bennett v. Fairbanks 611, 612
v. Boggs 237 v. Wing 605
v. Borough of Birmingham 272, 283 Billmeyer v. Evans 415
v. Brooks 859 Bills v. Goshen 284
v. Bull 236 Bimeler v. Dawson 42, 683, 586
v. Deacon 611 Binghamton Bridge Case 892, 398, 549
v. Fisher 631 Bird, Ex parte 859
v. Harms 38, 514 v. Benlisa 751
v. New Orleans 304 v. Daggett 324
v. Pulaski 285 v. Perkins 363
v. State 437, 677 v. Smith 862
Benoist v. St. Louis 726 v. State 448
Bensley v. Mountain Lake, &c. Co. 763 v. St. Mark's Ch. 661
Benson v. Albany 239, 241 v. Wasco County 216
v. New York 235, 344, 345, 347, 390, Birdsallv. Carrick 221
838, 843 Birdsong, In re 473
Bentinck v. Franklin 522 Birmingham v. McCary 362
Benton v. Town 826
of Brookline Birmingham, &c. St. Ry. Co. v. Bir-
v. Trustees, &c. 305 mingham Ry. Co. St. 299
Bents v. Graves 675 Birmingham M. Ry. Co. v. Parsons 164
Benz o. Weber 206 Birmingham T. Co. i: Birmingham
Bergeman v. Backer 22, 32 R. & E. Co. 803
v. Cleveland 285, 890 Bischoff v. N. Y. El. 827
Berger v. U. S. Steel Cor'p. 396, 510 Bishop v. Marks 7-56
Page
Blake v. Rich 808 Board of Health v. Van Hoesen 770
v. St. Louis 356, 362 Board of Improvement v. School
v. Winona, &c. R. R. Co. 839, 876 Dist. 718, 741
Blakely v. Devine 307 Board of Pol. Com'rs v. Wagner 431, 885
15 lake more v. Dolan 215 Board of Public Works v. Columbia
Blakesleev. Carroll 629 College 42
Blauchard v. Raines 590 Board of Street Openings, Re 759, 768
r.Stearns 927 Board of Supervisors v. Cowan 336
Blandford v. State 41 v. Heenan 204
Blandford School District v. Gibbs 932 Board of Trade Tel. Co. v. Barnett 787
Standing v. Burr 167, 336 Board Water Com. v. Dwight 210
Blatchley v. Moser 280 Boardman v. Beckwith 531
Bleakney v. Bank of Greencastle 633, 536 Bode v. State 845, 846
Bledsoe v. Commonwealth 435 Bodwell v. Osgood 619
Blessing v. Galveston 194, 200, 267 Boehm r. Hertz 696
Blewett v. Wyandotte, &c. R. R. Co. 841 Bogardus v. Trinity Church 62
Blin v. Campbell 575 Bogert v. Indianapolis 285
Bliss v. Commonwealth 237, 499 Boggess v. Scott 750
v. Hosmer 757 Boggs v. Merced, &c. Co. 753
t>. Kraus 265 Bohanan v. Nebraska 31
v. South Hadley 808 Bohannan v. Commonwealth 434
Bliss's Petition 37 Bohen, Re 881
Block v. Jacksonville 851 v. Waseca 363
v. Salt Lake R. T. R. Co. 298 Bohl v. State 675
Blocker v. Burness 677 Bolilinan v. Green Bay, &c. R. R.
Blodgett, In re 211 Co. 760, 761
Blood v. Mercelliott 207 Bohmey . State 279
Bloodgood v. Mohawk & Hudson Bohon's Assignee v. Brown 13
R. R. Co. 228, 761, 764, 766, 777, 813, Boice v. Boice 413
814 Boisdere v. Citizens' Bank 256
Bloom v. Richards 52, 662, 670, 675, 859 Boiling v. Lersner 30
Bloomer v. Stolley 175 Bollman and Swartout, Ex parte 495
v. Todd 901 Bolln v. Nebraska 30, 436, 456, 605
Bloomfleld v. Charter Oak Bank 275 Bolton v. Johns 515, 540
v. Trimble 280 v. Prentice 484
Bloomfield, &c. Co. v. Calkins 791 Bombaugh v. Bombaugh 613
Bloomington v. Bay 356 Bonaparte, Prince Pierre, Trial of 442
v. Brokaw 296, 304, 363 Bonaparte v. Tax Court 694
v. Latham 731, 813, 825 Bond v. Appleton 86
v. Pollock 828 v. Commonwealth 463
v. Wahl 285 v. Kenosha 717, 718, 749
Blossburg, &c. R. R. Co. v. Tioga v. State 437
R. R. Co. 34 Bonds of Madera Irrig. Dist., Re 674,
Blount v. Janesville 296, 639, 719 715, 731
Blue v. Beach 880 Bonham v. Needles 321
Blumb v. Kansas City 302, 362 Bon Homme Co. v. Berndt 183
Blydenburg v. Miles 472, 886 Bonnett v. Bonnett 497
Board of Commissioners v. Allman 305 Bonney v. Bowman 688
v. Bearss 331 Bousall v. Lebanon 860
v. Bradford 310 Boogher v. Knapp 606, 606
v. Bright 642 Booker v. Young 893
v. Church 337 Boon c. Bowers 84, 146
v. Lucas 307 Boonville v. Ormrod 817
v. Merchant 20 v. Trigg 216
v. Pidge 861 Boorman v. Santa Barbara 618, 722
Board of Dir. of A. Irr. Dist. v. Boorum v. Connelly 663
Collins 767 Booth v. Booth 633
Board of Education v. Blodgett 622 v. People 885
v. Brunswick 231 v. Woodbury
331, 699, 812
v. De Kay 319 Borden v. Fitch 42, 579
v.
McLandsborough 679 Boro v. Phillips Co. 736
v. Minor 670
67, 263, 665, Borough of Dunmore's Appeal 269, 336,
v. State 131
341, 391
v.
Thompson 262, 263 Borough of York v. Forscht 310
v. Tinnon 667 Boske v. Comingore 35
Board of H. Com. v. Excelsior R. Co. 165
Bosley v. Mattingley 89
TABLE OF CASES. XXIX
Page Page
Bossier v. Steele 209 Bradbury v. Davis 86
Bostick v. State 886 Braddee v. Brownfield 237
Boston v. Cummins 237, 376 Braddy v. Milledgeville 285
v. Schaffer 283,710 Braden v. Stumph 893
v. Shaw 288, 861 Bradfield v. Roberts 664
Boston, &c. Railroad Co. In re 806 Bradford v. Brooks 138, 521
Boston & A. Ry. Co. v. Cambridge 758 v. Gary 389
Boston, Concord, & M. R. li. Co. v. v. Shine 414, 522
State 844 v. Stevens 846
Boston & Lowell R. R. Co. v. Salem Bradley, Ex parte 454, 481
& Lowell R. R. Co. 398 v. Bander 738
Boston & M. R. R. Co. v. Cora'rs 839 v. Baxter 163
Boston & Roxbury Mill-dam Cor- v. Buffalo, &c. R. R. Co. 841, 844
poration v. Newman 772, 777 v. Clarke 442, 893
Boston Mining, &o. Co., Matter of 214 v. Fall Brook Irr. Dist. 768
Boston Water Power Co. v. Boston v. Fisher 481
& Worcester R. R. Co. 398, 757 v. Heath 611, 620, 633, 658
Bostwick v. Perkins 575, 576 v. Me Atee 265, 396, 399, 719, 728, 730
Boswell v. Commonwealth 437 v. New York & N. H. R. R. Co. 565,
v. State 437, 467 765, 777
Botts u. Williams 39 v. People 683
Boucher v. New Haven 363 v. Pharr 764
Bougliton v. 757
Carter v. State 130
Boulder v. Niles 356 Bradshaw v. Heath 42, 579, 583
Boulware i>. Davis 179 v. Lankford 164
Bounds v. Kirven 790 v. Omaha 258, 267, 721
Bourgeois, Ex parte 281 v. Rogers 812
Bourland v. Eidson 608 Bradstreet Co. v. Gill 611
v. Hildreth 183, 903, 929 Bradt v. Towsley 607
Bourn v. Hart 318 Brad well v. State 18, 38, 57, 568
Bourne v. The King 473 Brady v. Bronson 761
Bow v. Allenstown 263, 276, 277 v. King 546
Bowditch v. City of Boston 826 v. New York 323, 324
Bowdoinham v. Richmond 268, 411 v. Northwestern Insurance Co. 286,
Bowen v. Byrne 685 878
v. Hixon 937 v. Richardson 576
v. King 275 v. West 218
v. Preston 514 Bragg v. Meyer 36
v. State 24 v. People 547
Bowers v. Smith 900 Bragg's Case 681
Bowie v. Lott 120 Braggs v. Tuffts 35
Bowler v. Eisenhood 937 Brainard v. Colchester 395, 396
Bowles v. Landaff 333 Branahan v. Hotel Co. 291
Bowling Green v. Carson 284, 887 Branch r. Tomlinson 252
Bowman v. Chicago &N. W. Ry. Co. 847 Branch Bank of Mobile v. Murphy 223
v. Middleton 234, 244, 509 Brand v. Multnomah Co. 168
v. Smiley 252, 415 Brandon v. Gowing 478
Box well v. Affleck 660 v. People 449
Boyce v. Sinclair 632, 536, 542 v. State 209
Boyd, In re 160 Branham v. Lange 161, 193, 216
v. Alabama 831 Brann v. Chicago 710
v. Bryant 174, 888 Branson v. Gee 571, 814, 815
v. Ellis 46 v. Philadelphia 299, 840
v. Mills 900,911 Brashear v. Madison 318
v. Nebraska 12 Brass v. North Dakota 871
v. Roane 686 Brassard v. Langevin 922
v. Selma 720 Brasso v. Buffalo 362
. State 212, 400, 445 Braynard v. Marshall 26
Boye v.
Girardey 710 Breeding v. Davis 614
Boyer v. Grand Rapids F. I. Co. 212 Bregguglia v. Lord 290
Boyland v. New York 357 Breidenthal v. Edwards 900
Boyle, Matter of 182, 225 Breitenbach v. Bush 414
v. Arledge 34 Breitung v. Lindauer 407, 408
v. Zacharie 417 Brenham v. Brenham Water Co. 271
Braceville Coal v. People 574, 877 v. German Am. Bk. 319
Brackett v. Norcross 615, 553 v. Story 146
XXX TABLE OF CASES.
Page Page
Brennan v. Titusville 687, 689, 694 Broadnax P. Baker 667
Brent v. Chapman 621 Broadway Baptist Church v. Mc-
Brevoort v. Detroit 631 Atee 741
v. Grace 144, 146 Broadwell v. Kansas City 304, 788
Brewer v. Bowman 765 Brock P. Barnet 765
v. Davis 389 p. Hishen 814
v. Mayor, &c. 194 v. Milligan 677
v. McClelland 908 Brockway v. Kinney 81
v. New Gloucester 351 Brodhead v. Milwaukee 331, 700
v. Weakley 624, 913 Broderick's Will 43
Brewer Brick Co. v. Brewer 163, 740, Brodnax v. Groom 194
742, 743 Broil P. State 465
Brewster v. Davenport 302 Bromage v. Prosser 647
v. Hough 176, 395, 741 Bromley v. People
v. Syracuse 207, 642, 543, 702 v. Reynolds 711
Brick Presbyterian Church v. New Bronson v. Bruce 624, 644, 646
York 176, 295, 400, 881 v. Kinzie 406, 408, 409, 412
Bricker v. Potts 606 v. Newberry 406, 408
Brickey, Re 499 v. Oberlin 291, 888
Bridal Veil Lumbering Co. v. John- v. Wallace 34
son 765, 767, 775 p. Wallingford 304
Bridge v. Ford 685 Bronson's Estate 720
Bridge Co. v. Hoboken Co. 392 Brook P. Montague 632
Bridgeport v. Housatonic B. R. Co. 167, Brooke v. Philadelphia 321
612, 542 Brooker p. Coffin 605, 607
Bridges, Ex parte ] 492 Brooklyn, Re 383, 393, 758
v. Shallcross 158 Brooklyn p. Breslin 285
Bridge water v. Plymouth 648 v. Long Island 756
Brien v. Williamson 95, 120 Brooklyn & Newton R. R. Co. v.
Brieswick v. Mayor, &c. of Bruns- Coney Island R. R. Co. 796
wick 209 Brooklyn Central R. R. Co. P. Brook-
Brig Aurora v. United States 165 lyn City R. R. Co. 278, 794, 796
Briggs v. Garrett 624 Brooklyn Park Commissioners v.
v. Georgia 114 Armstrong 770, 809
v. Hubbard 512, 622, 629 Brooklyn Trust Co. v. Hebron 275
v. Johnson Co. 261 Brooks P. Cedar Brook 782
v. Lewiston, &c. Co. 795, 802 p. Harison 605
v. Russellville 720, 722 p. Hyde 183
v. Walker 28 v. Missouri 31
v. Whipple 308 p. Mobile School Commissioners 92
Brigham v. Miller 107, 156 Brophy Hyattv. 860
Bright v. Boyd 652 Brosnahan, In re 493
P. McCulloch 206, 712 Brotherton p. People 437
Brightman v. Bristol 884 Brow p. Hatheway 619
Brighton v. Wilkinson 266, 268 Brower p. O'Brien 935
Brim v. Jones 671 Brown, Ex parte 41, 433, 438
Brimmer v. Boston 400 In re 497
v. Rebman 855 p. 819
Beatty 754,
Brinkmeyer v. Evansville 356 p. Brown 196
Brinton v. Seevere 640 p. Calumet R. R. Co. 822
Brisbin v. Cleary 913 p. Cape Girardeau 258
Briscoe v. Anketell 410, 515 p. Cayuga, &c. R. R. Co. 819
757, 784,
v. Bank of 11, 35, 230 Chadbourne
Kentucky p.
861, 862
Bristol v. Johnson 308, 309 p. Chicago 816
v. New Chester 268, 344 p. Circuit 129
Judge
v. Supervisors, &c. 616 v. Com'rs Rush Co. 936
v. Washington County 21, 695 p. Commonwealth 451, 867
Britain v. Kinnard 686 P. Denver 722
British Plate Manuf. Co. v. Meredith 783 P. Duffus 496
133,
Brittle v. People 69 v. 799
Duplessis 681,
Britton v. Des Moines, &c. R. R. Co. 825 P. 691
Epps
v. Election Commissioners 899 Fi field
p. 95
p. Ferry 104 p. Fleischner 170
Broadhent v. State 664 p. Foster 686
Broadfoot's Case 424 p. Grover 902
99,
Broadfoot v. Fayetteville 669 p. 306
Guyandotte
TABLE OF CASES. XXXI
Page
Brown v. Hanson 605 Bryson v. Bryson
Page
495 Bush v. Seabury 284, 887
Burger, In re
773 v. Shipman 389, 391
Burgess v. Clark
v. Pue 104, 166, 173, 266 Bushel's Case 461
v. Seligman 35 Bushnell v. Beloit 167, 325
Burgett v. Burgett 202 Bushnell's Case 496
Burghardt v. Turner 513 Buskett, Re 442
Burke v. Elliott 898 Busk irk v. Strickland 784
v. Gaines Butcher's Slaughtering & Melting
v. Mechanics' Savings Bank 144 Ass'n v. Commonwealth 827
v. St. Paul, M., &c. Ry. Co. 129 Butcher's Union Co. v. Crescent City
v. Supervisors of Monroe Co. 207, Co. 399, 402
983, 936 Butler, Re 436
Burkett McCarty
v. 902 v. Board of Regents 895
v. McCurty 133 v. Chambers 882
Burks v.Bennett 692 r. Dunham 325
v. Hinton 87 v. Farnsworth 37
Burley v. State 452 v. Gage 30
Burlingame v. Burlingame 630, 631 v. Gorely 416
Burlington v. Bumgardner 283, 709 v. Palmer 406, 413, 543
v. Gilbert 296 v. Pennsylvania 388, 389
v. Kellar 279, 745 v. Porter 750
v. Leebrick 144, 165 v. Pultney 331
v. Putnam Ins. Co. 283 v. Rockwell 387
Burlington C. K. & N. Ry. Co. v. Dey 873 v. Shiver 252
Burlington & M. R. R. R. Co. v. . State 47, 161, 451
Reinhackle 797 v. Supervisors of Saginaw 137, 712
v. Webb 842 v. Toledo 530
Burmeister v. Howard 272 Butler's Appeal 237, 742
Burnes v. Atohison 717 Butte, A. & P. R. Co. v. Montana U.
Burnett, Ex parte 281, 282, 291 R. Co. 758, 765, 767, 777
v. Dean 184 Butte & B. Consol. Min. Co. v. Mont.
v. Kinney 44 re. P. Co. 610
v. Maloney 183 Butterworth v. Henrietta Tex. Civ.
Sacramento
v. 717, 728, 730 App. 301
Burnham v. Chelsea 331 Buttrick v. Lowell 305
v. Commonwealth 582 Butts v. Swartwood 677
v. Morrissey 191, 193 Buys v.Gillespie 607
v. Stevens 496 Byam v. Collins 611
Burns, Ex parte 144 Byers v. Commonwealth 690
v. Clarion County 269, 336 v. McAuley 27, 32
v. Crawford 414 Byler v. Asher 906, 927
Burnside v. Lincoln Co. Ct. 232, 849 Byram v.Marion Co. Com'ra 740
Burr v. Carbondale 337, 704 Byrd, Ex parte 285, 888
v. Ross 194 Missouri 36
' Byrne v.
Burrel v. Associated Reform Ch. 660
Burridge v. Detroit 297
Burrill v.
Augusta 305 C.
v. Boston 327
v. West 82 Cabanne v. Graf 682
Burritt v. Com'rs 218 Cabell v. Cabell 156
v. New Haven 272 Cadwallader v. Harris 95
Burroughs v. Eastman 425 Cady v. Walker 478
Burrows, In re 690 Cage v. Trager 815
v. Delta Trans. Co. 853 Cagwin v. Hancock 324
Burson v. Huntington 685 Gaboon v. Commonwealth 120
Burt v. Advertiser N. Co. 645 Cain Commissioners
644, v.
174, 717
v. Brigham 761 v. 302
Syracuse
v. Merchants' Ins. Co. 755 Cairo v. Bross 283
v. Williams 138, 414
v. Zane
319, 321
Burton v. Burton 605 Cairo, &c. R. R. Co. v. Sparta 319, 340
v.
Chattanooga 304 v. People 841
Burtt v. Pyle 454 v. Trout 120
Buser v. Shepard 407, 514 Calaveras Co. v. Brockway 937, 941
Bush v. Bd. Suprs. of Orange Co. 333, 697 Calcote v. Stanton 30
v.
Indianapolis 216 Calder v. Bull 11, 131, 237, 373
v. Kentucky 19 v. Kurby 400
TABLE OF CASES. XXX111
Page
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
Wilkesboro
v.
Callahan v. St. Lou
Callam v. Saginaw
Callan v. Wilson
Callen v. Columbus
Columbus M,
v.
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 Statev.
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
XXXIV TABLE OF CASES.
Page
305 Caulfield Bullock 927
Carrington v. St. Louis
v.
22
r. Smith
Cattell r. Lowry
58
^ '--Nash
920 Chaney v. Bryan
129,58!)
579
Caughran v. Oilman 42 Chapin v. Paper Works
666
XXXV
Page
Chapman, Re 467 Chicago v. Lamed 717, 722
v. Albany & Schnectady R. E. v. Manhattan Cement Co. 301, 346
Co. 796 v. McCarthy 358
v. Calder 619 v. McCoy 27-2
v. Gates 814, 815 . v. McGinn 286
v. Macon 363 v. McGiven 363
v. Morgan 675 v. Netcher 289, 658, 837
v.Smith 80 v. O'Brennan 362
Chappee v. Thomas 681 v. O'Brien 286, 730
Chappel v. United States 768 v. People 929
Chappell Chem. & F. Co. v. Sulphur 17, Robbins 33, 356
M. Co. 15, 28 v. Rumpff 562
Chariton v. Barber 292 v. Stratton 293
Charles River Bridge v. Warren v. Taylor 810
374, 649, 665, 817 v. Wheeler 819
Bridge
Charleston v. Benjamin 675 Chicago & E. I. R. R. Co. v. Wiltse 766
Charlestown Branch R. R. Co. v. Chicago & G. T. Ry. Co. v. Chappell 705
Middlesex 814, 815 v. Hough 781, 839
Chariton v. Alleghany City 783 v. Wellman 267, 873
v. Watton 638, 640 Chicago G. W. Ry. Co. v. First M. E.
Charlotte C. & A. Ry. Co. v. Gibbes 844 Church 297, 763
Charpentier v. Bresnahan 262 Chicago & N. W. Ry. Co. v. Chicago,
Chase v. Blodgett 43 &c. R. R. Co. 806, 807
v. Chase 578 v. Gait 763
v. Cheney 661 v, Langdale Co. 168
v. Fish 193 v. Milwaukee R. & K. El. Ry. 803
v. Merrimac Bank 351 v. Town of Cicero 762
v. Miller 903 Chicago, &c. R. R. Co. v. Ackley 875
v. Oshkosh 297 v. Adler 617
v. People 437 v. Barrie 841
t?.
Stephenson 657 v. Boone Co. 711
Chase's Case 654 v. Haggerty 840
Chattaroi Ry. Co. v. Kinner 406 v. Iowa 18, 840, 874
Chauvin v. Valiton 712, 583 v. Joliet 282, 789, 798, 883
Chavannes v. Priestly 672 v. Lake 398, 759, 775, 778
Cheadle v. State 643 v. Mallory 907, 930
Cheaney v. Hooser 166, 331, 699, 702 v. Oconto 349
Cheever v. Shedd 296 v. People 299, 840, 875
v. Wilson 43 v. Smith 237, 760
Chenango Bridge Co. v. Bingham- v. Starkweather 758
ton Bridge Co. 565, 667 v. Stein 787
Cheney v. Atlantic City Water Works 763 v. Triplett 843
v. Jones 253 Chicago, B. & K. C. Ry. Co. v. Guffey 396
Chenowith v. Commonwealth 474 Chicago, B. & N. P. R. Co. v. Bow-
Cherokee v. Fox 285 man 823, 824
Cherokee Nation v. Georgia 3, 96 Chicago, B. & N. Ry. Co. v. Porter 767
r.S. K. Ry. Co. 756,814 Chicago, B. & Q. R. Co. v. Chicago 828
Cherokee Tobacco, The 25 v. Jones 873
Chesapeake, &c. Co. v. Hoard 217 v. Nebraska 843
Chesapeake & Ohio Canal Co. v. v. West Chicago S. Ry. Co. 803
Baltimore & Ohio R. R. Co. 767 v. Wilson 780
Chesapeake & O. Ry. Co. t>. Kentucky 869 r. Wolf 222
Chesapeake, &c. Ry. Co. v. Miller 91 Chicago, K. & N. Ry. Co. v. Hazels 811
Chestnut v. Shane's Lessee 538 Chicago, K. & W. Ry. Co. v. Parsons 826
Chestnut St., In re 787 17. Pontius 16
Chestnutwood v. Hood 893 Chicago Life Ins. Co. v. Auditor 406
Chester v. Black 308 v. Needles 30, 392
Chetwynd v. Chetwynd 497 Chicago, M. & St. P. Ry. Co. v. Becker 876
Chevrier v. Robert 622 v. Milwaukee 715
Chicago v. Baptist Union 741 17. Minnesota
873, 874
v. Bar tree 287 v. Solan 852
v. Blair 714 v. Tompkins 872, 874
v. Brophy 362 Chicago Mun., &c. Co. v. Lake 391
v. Collins 289, 297 Chicago Packing, &c. Co. v. Chicago 280,
v. Hesing 363 293, 400
v. Langlass 363 Chicago P. & St. L. Ry. Co. v. Eaton 827
XXXVI TABLE OF CASES.
Page Page
Chicago, R. I. &c. Co. v. McGlinn 177 Cincinnati Gazette Co. v. Timber-lake 637,
Chicago, R. I. & P. Ry. Co. v. Ottumwa 715 638, 640
v. Sturm 20, 43, 695 Cincinnati Health Ass'n v. Rosenthal, 38
v. Zernecke 844 Cincinnati, H. & D. Ry. Co. v. Bowl-
Chicago, S. F. & C. Ry. Co. v. Ward 822 ing Green 287
Chicago, &c. Terminal Ry. Co. v. Cincinnati, H. & I. R. R. Co. v. Clifford 392
Whiting, H. & E. C. St. Ry. Co. 803 Cincinnati, L. & N. Ry. Co. v. Cincin-
Chicago U. T. Co. v. Chicago 387 nati 731
Chicago, W. I. R. R. Co. v. Ayres 811 Cincinnati, N. O. & T. Ry. Co. r.
v. Englewood, &c. Ry. Co. 785 Commonwealth 706
v. 111. Centr., &c. Co. 807 Cincinnati, W. & M. R. Co. v. Ander-
Chicago W. & V. Coal Co. v. People 888 son 758, 806
Chicot County v. Sherwood 27 Circleville v. Neuding 362
r. Davis 200 Cisco v. Roberts 856, 858
r. School Board
Chidsey r. Canton 303, 355 869
Child Bemus
?. 290 Citizens' El. Light &P. Co. v. Sands 508
Child r. Boston 303 Citizens' Gas, &c. Co. v. Elwood 299
Child's Case 494 Citizens' Ins. Co. v. Parsons 11
Childress v. Mayor 286 Citizens of Cincinnati, In re 130
Childs v. New Haven, &c. R. R. Co. 824 Citizens & Taxpayers D. S. P. v.
v. Shower 257, 553 Williams 893
Chiles v. Drake 209 Citizens' Savings Bk. v. Owensboro 396,
v. Monroe 209 547
Chilton v. St. Louis & I. M. Ry. Co. 869 Citizens' Savings & L. Assn. v. Perry
Chilvers v. People 283, 710, 867 Co. 322
Chincleclamouche L. & B. Co. v. Citizens' St. Ry. Co. v. Detroit 297
Commonwealth 392 Citizens' Water Co. v. Bridgeport,
Chinese Exclusion Case 25 &c. Co. 402
Chiniquy v. People 324 City Council v. Benjamin 859
Chisholm v. Georgia 3, 8, 52 v. Pepper 285
t>.
Montgomery 272 City National Bank v. Mahan 36
Chittenden v. Wurster 158, 159 City Ry. Co. v. Citizens' St. Ry. Co. 392
Choper v. Eureka 35H Civil Rights Cases 18, 869
Chouteau v. Gibson 83 Claflin v. Hopkinton 310, 327
Chow Goo Pooi, In re 493 Claiborne Co. v. Brooks 320
Chrisman v. Bruce 927, 928 Clapp v. Cedar County 323, 325
Christ Church v. Philadelphia, 396, 402, v. Ely 139
547 Clair v. State 436, 455
Christal v. Craig 605 Clare v. People 206
Christensen, Matter of 580 Clarion Turnpike & B. Co. v. Clarion
Christian, In re 854 Co. 827
v. Commonwealth 473 Clark, Ex parte 434, 492, 901
Christian Union v. Yount 180 Re, (65 Conn.) 425, 571
Christie v. Bayonne 215 Re, (195 Pa.) 65
Christmas Russell
.
43 Matter of 39, 40
Christy v. Commissioners 389 r. Baltimore 529
Chumasero v. Potts 162 v. Barnard 24
Chunn v. Gray 42 v. Bever 32
Church i'. Chapin 80 v. Binney 637
v. Kelsey 47 v. Board of Directors 557
t7. Rowell 903 v. Bridge 269
Proprietors
v. South Kingston
573, 589 v. Buchanan 935
Church of Jesus Christ of L. D. S. v. v. Clark 154, 156, 403, 517, 530, 578
United States 54 17. Commonwealth
898
Chute v. Winegnr 321 v.
County Court 588
Cicero Lumber Co. v. Cicero 289, 297, 783 .
County Examiners 918, 919, 920,
Cincinnati v. Batsche 731 935
Cincinnati i>. Bryson
v. Buckingham
283
285
v.
v.
Crane
Davenport 217, 745
m
v. Rice 676 t7. Des Moines 270, 274, 311, 320,' 323,
Cincinnati, &c. R. R. Co. v.
Carthage 391 324
v. Cook 840 T7. Dram Com'r 818
17. Commissioners of Clinton Co. 132 v. Ellis
Cincinnati College v. State 246
741 i7. Holmes
Cincinnati Gaslight Co. v. Avondale 299 535, 5H6
'
t7. Janes ville 167, 224, 225, 325
.State 284, 710, 717 v.
Jeffersonville, &c. R. R. Co. 85
TABLE OF CASES. XXXVll
Page
Clark v. Kansas City 232 Clinton v. Phillips
15, 231, 289
v. Lamb 692 v. St. Louis & I. M. Ry. Co. 869
v. Le Cren 281, 287 Clippinger v. Hepbaugh 197
v. Martin 406, 414 Clodfelter v. State 24
v. McCreary 615 Cloud v. Pierce City 686
v. McKenzie 936 Clough v. Unity 818
v. Miller 259, 818 Cloughessey v. Waterbury 363
v. Mobile 165 Cloyd v. Trotter 683
v. Mollyneaux 647 Coal Run Co. v. Finlen 706
v. People 101, 253, 255, 453 Coast Line Ry. Co. v. Savannah 387, 391
v. Kobinson 903, 906, 917, 932 Coates v. Campbell 700
v. Russell 841 v. Muse 34
v. Sammons 80 Coatesville Gas Co. v. Chester Co. 120
v. School Directors 262, 272 Coats v. Hill 518
v. South Bend 287 v. New York 176, 286, 295, 881
v. State 12 O.
( ) 376, 378, 437 Cobb v. Bord 184
v. State (142 N.Y.) 877 Cobbett v. Hudson 494
v. Washington 295, 356, 360 Cobbett's Case 494
v. White 764 Coburn v. Ellenwood 278
Clark's Adm'r v. Hannibal & St i7.
Harvey 52
Joseph R. R. Co. 843 Cochran v. Darcy 412
Clark's Case 423 v. Jones 895
Clarke r. Clarke 32, 43 .Miller 409
v. Irwin 109 v. Van Surlay 128, 144, 149, 237, 241
Page Page
Cole v. Medina 301, 367 Commissioners Calhoun Co. v. Wood-
v. Muscatine 296 stock Iron Co. 396
r. Tucker 900 Commissioners Dickinson Co. v.
v. Wilson 658 Hogan 825
Coleman, Matter of 478 Commissioners Harford Co. v. Hamil-
v. Bellandi 408 ton 485
v. Carr 146 Commissioners of Kensington v.
v. Roberts 455 Philadelphia 346
v. Yesler 256 Commissioners Ottawa Co. v. Nelson 711
Coles v. Madison Co. 266, 391, 617 Commissioners of Revenue v. State 338
Collamer v. Page 576 Commissioners Sinking Fund v. Green,
Collector v. Day 684, 685 &c. Nav. Co. 865
Colley r. Merrill 62 Commissioners of Stanley Co. v.
Collier v. Frierson 60 Snuggs 195
Collins v. Collins 412, 576 Commissioners State Park v. Henry 814
r. Henderson 104, 262 Commonwealth v. Alderman 467
v. Hills 846 v. Alger 830, 878
r. Howard 862 v. Amer. Bell Tel. Co. 694
v. Lean 428, 434 v. Andrews 177
v. New Hampshire 848, 882 r. Anthes 464
v. Philadelphia 302, 305 v. Archer 438
Colman v. Holmes 522 v. Austin 481
Coloma v. Eaves 274, 321 v. Aves 497
Colony v. Dublin 529 v. Bacon 388, 888
Colorado E. Ry. Co. v. Union Pac. v. Bailey 388
Ry. Co. 767, 778, 806 v. Bakeman 468
Colpetzer v. Trinity Church 508 v. Bean 286
Colt r. Eves 46, 114 v. Hearse 886
Coltin v. Ellis 162 v. Bennett 174
Colton v. Rossi 815 v. Billings 466
Columbia v. Guest 745 v. Binns 895
Columbia Co. 17. Davidson 324 v. Bird 396, 547
v. King 324 v.
Blanding 603, 639
Columbus v. Columbus 268 v. Blood 41
Columbus & W. Ry. Co. v. Witherow 786, v. Bonner 448, 449
802, 811 v. Boston, &c.
Ry. Co. 844
Columbus G. L. &c. Co. v. Columbus 298 v. Bowden 469
Columbus Ins. Co. v. Curtenius 866 v. Breed
772, 865
v. Peoria Bridge Co. 866 v. Brennan 400
Columbus S. Ry. Co. v. Wright 692 v. Brickett 487
Col well v. Chamberlin 216 r. Brooks 286
Comer v. Fulsom 331 v. Brown 718
Commercial Bank v. Tola 317, 700 v. Byrne 603
Commercial Bank of Natchez v. State 392 .Certain Liquors 430
Commercial Nat'l. Bk. v. Chambers 16 v. Chambers 644
Commissioners, &c. v. Aspinwall 167, 321 v.
Chapin 752, 861
v. Bearss 331 v. Charlestown 862
v. Beck with 760 v. Chase-Davidson Co. 879
v. Bowie 814 v.
Clap 608, 625, 628
v. Cox 324 Clapp 246, 846, 849
v. Duckett
304, 366, 361 Clark 184, 247, 561
v. Gas Co. 281 v.
Clary 177
v. Holyoke Water Power Co.
666, 836 v.
Cluley 932
.Little 694 v. Colton 859
v. Martin 355 v.
Commissioners, &e. 515
i'.
Mighels 348 v. Cook
467
v. Morrison 690 v. County Commissioners 930
v. Owen 707 v.
v. Pidge
Coyningham 265
866 v.
Crotty 430
v Seabrook 690 v. Cullen 392
v. Wallace 167 v. Cullins 177
r. Withers 861 v,
Commissioners Allegheny Co. v.
Cummings 462
v. Curtis
444, 445, 446, 450, 800
Union Min. Co. 749 v. Dailey 453
Commissioners Brown Co. v. Stan- v. Dana
437
dard Oil Co. 690 v. Davis
(140 Mass.) 287
TABLE OF CASES. XXXIX
Page
TABLE OF CASES.
Page Page
Commonwealth v. Randall 486 Congdon v. Norwich 363
v. Reed 694 Conkey v. Hart 406, 409, 410, 415
v. Reeder 931 Conk in v. N. Y., &c. Ry. Co.
I
783, 786
v. Richards 451 v. State 469
v. Richter 783 Conlin v. San Francisco 317, 336
v. Roberts 880 Conneau v. Geis 691
v.
Roby 470 Conn. Life Ins. Co. v. Spratley 180
r. Rock 464 Conn. M. L. Ins. Co. v. Cross 54
v. Roxbury 263 v. Cushman 413
v. Roy 284 Conn. Riv. R. R. Co. v. Commis-
v. Ryan 694 sioners 815
v. Savings Bank 748 Connell v. Connell 538
v. Scott 448 Connelly v. State 458
v. Semmes 438 Conner, Ex parte 209
v. Snelling 658 v. Elliott 37
v. Snyder 887 v. New York 205, 388
r. Starr 675 Conners v. Burlington, &c. Ry. Co. 691
v. Stodder 283, 285, 860, 888 Connolly v. Boston 859
v. Stowell 469 v. Union Sewer Pipe Co. 561, 562
v. Sturtivant 445 Connor v. Green Pond, &c. R. R. Co. 208
v. Taylor 446, 446, 879 Connors v. Carp River Iron Co. 217
v. Tewksbury 830 v. People 449
v. Towles 37 Conrad v. Ithaca 356
v. Tuck 467, 468 Conservators of River Tone v. Ash 278
v. Tuckerman 446 Consolidated Channel Co. v. Rail-
v. Uprichard 178 road Co. 771
v. Van Tuyl 464 Consolidated Coal Co. v. Illinois 661
.
Vaughn 467 v. People 888
v. Vrooman 886, 889 Constitutional Conv., In re 60
v. Waite 882 Constitutional Provision, Re 72
v. Waldman 860 Consumers' Gas Trust Co. v. Harless 814
v. Walter 895 Contested Election, Re 900
v. Ward well 626 Continental Imp. Co. v. Phelps 106
v. Wells 924 Contra Costa R. R. v. Moss 778
v. Westinghouse Air Brake Co. 680 Contzen v. United States 12
v. Westinghouse El. & Mfg. Co. 680 Converse, Ex parte 14,22
v. White 177 Conway v. Cable 526, 527, 529, 545, 546
r. Whitney 591 v. Taylor's Ex'r 867
v. Wilkins 285 v. Waverly 749
v. Wilkinson 790 Conwell v. Emrie 757
v. Williams 99, 525 v. O'Brien 279
v. Woelper 912 Cook v. Burlington 738
v. Wolf 676 v. Cook 579
v. Wood 466 v. Gray 412
v. Worcester 281, 860 v. Gregg
407, 520
v. Wright 232 v. Hart 39
v. Zelt 846 v. Hill
619, 620
Commonwealth's Appeal 740 v. Macon 305
Commonwealth Bank v. Griffith 31 v. Marshall Co. 661
Compagnie F. v. New Orleans 853 v. Moffat
25, 417
Comstock v. Clearfield 827 v. Pennsylvania
688, 694, 846
v. Gay 513 v. Portland 267
<?onabeer N. Y. C. & H. R. Ry. Co.
v. 800 v. Slocum 729
Concha Concha
v. 83 v. South Park Com'rs
816, 817
Concord v. Boscawen 312 v. State (26 Ind. 284
App.)
v. Portsmouth Savings Bank 320 v. State (90
Tenn.) 900
v. Robinson 320 v. United States 375
Concord R. R. Co. v. Greeley 764 v. Vimont 83
Condemnation of Land, Re 826 Cook Farm Co. v. Detroit 340
Condict v. Jersey City 305 Cookerly v. Duncan 531
Condon v. Galbraith 751 Cooley v. Board of Wardens 688, 856, 858
Cone v. Cotton 683 v. Fitzgerald 190
v. Hartford 728, 736, 861 v. Freeholders 355
Cone, Ex parte, & Com. Co. v. Poole 179 Coolidge v. Guthrie 764
Coney v. Owen 553 v. Williams 566
Confiscation Cases 617 Coombs v. Rose 619
TABLE OF CASES. xli
Page Page
Cooney v. Hartland 305 County Commissioners v. Jones 388
Coonradt v. Myers 578 County Court v. Griswold 770
Cooper, Re 454, 770 County Treasurer v. Dike 162
Ex parte 881 Court of Appeals, In re 129
v. Barber 645 Courvoisier, Trial of 478
v. Board of Works 681 Cousins v. State 709
v. Com. 467 Coutant v. People 101, 104, 263
v. Cooper 579, 580 Cover v. Baytown 327
v. Greeley 607, 645 Covington v. Bryant 356
v. McJunkin 486 v. Buffett 130
v. Newell 40 v. East St. Louis 217, 279
v. People 455, 628, 646 v. Kentucky 268, 391, 396
v. Stone 645 r. Souihgate 646, 703, 704, 720
v. Sunderland 585, 586 Covington & C. B. Co. v. Kentucky 857,
v. Telfair 131, 237, 253 866, 867, 875
v. Williams 759, 764 Covington & L. T. R. Co. v. Sanford 397,
Cooper's Case 613 872, 875
Cooper Mfg. Co.v. Ferguson 105, 180 Covington, &c. Ry. Co. v. Piel 761
Coosa River Steamboat Co. v. Bar- Covington St. R. Co. v. Covington,
clay 406, 843 &c. R. Co. 800, 802
Copas v. Anglo- Amer. Prov. Co. 582 Cowan v. McCutchen 625
Cope, Re 739 v. Milbourn 671
Copes v. Charleston 167 Coward v. Wellington 620
Copp v. Henniker 590, 591 Cowdery, In re 482
Copper 17. Major 322 Cowen v. West Troy 279
Corbett v. Bradley 112 Cowgill v. Long 643
v. McDaniel 937 Cowles v. Harts 82
Corbin v. Hill 527 Cowley v. Pulsifer 637
Corfield v. Coryell 37, 574, 693 Cox, Ex parte 133
Coriell v. Ham 406 v. Bunker 607
Corley v. State 445 v. Coleridge 443
Corliss, In re 895 17. Cox 580
Matter of 932 v. Lee 656
v. Corliss 113 v. Louisville, &c. R. R. Co. 316, 791
v. E. W. Walker Co. 510 v. Mason City, &c. R. Co. 823, 827
Cornell v. State 294, 473 r. State 183
Cornet v. Winton 25, 813 Coxe Martin
17. 414
Corning v. Greene 166 Coxhead v. Richards 611
v. McCullough 407 Coy, In re 496, 901
v. Saginaw 306 Coyner v. Lynde 676
Cornwall v. Commonwealth 403 Craemer v. Washington 22
Corrigan, et al., v. Chicago 759 Craft 87. State Bank 62
v. Gage 288 Crafts v. Ray 742
Corsicana v. White 305 Craig v. Andes 324
Corson v. Maryland 694 v. Brown 606
Corwin v. Comptroller 220 v. Burnett 281, 282
v. New York & Erie R. R. Co. 841, 842 v. Dimock 685
Cory v. Carter 657 v. First Presbyterian Church 881
Cosgrove v. Augusta 289 v. Kline 864
Costar v. Brush 398 v. Missouri 36
Coster v. New Jersey R. R. Co. 809 17.
Philadelphia 730
Gotten v. Ellis 99 v. Rochester City & Brighton
Cotting v. Kansas City 16, 872 R. R. Co. 791, 794
Cottman v. Grace 44 v. State 454
Cotton v. Commissioners of Leon 167, w. Werthmueller 850
237, 253 Craighead 17. Martin 689
v. Phillips 895 Cram v. United States 22
Cotton Exchange v. Ry. Co. 875 Crandall, Petition of 495
Cotulla v. Kerr 620 v. James 80
Couch v. McKee 522 17. Nevada 667, 690
Cougot v. New Orleans 888 t7. State 37, 574
Coughlin v. People 469 Crane v. Meginnis 166, 157, 585
Coulterville v. Gillen 279 t7. School District 262
Council Bluffs v. Kansas City, &c. v. Waters 646
R. R. Co. 875 Crane v. West Chicago P. Com'rs 714
Counselman v. Hitchcock 442 Cranson v. Smith 13
xlii TABLE OF CASES.
Page Page
Craven Winter
v. 614 Cubbison .
McCreary 676
Craw Tolono
v. 717 Cubreth, Ex parte 39
Crawford v. Delaware 296, 784, 785, 802 Cuddy, Ex parte 496
v. Dunbar 895, 932 Cullen v. Carthage 272
v. Topeka 290 Crystal Spring L. & W. Co. v. Los
v. Wilson 68 Angeles 31
Crawfordsville v. Bond 304 Cullen v. N. Y., N. H. & H. R. Ry.
v. Braden 696 Co. 781
w. Hays 262 Culver v. Streator 306
Crawfordsville, &c. Co. v. Fletcher 92 Cumberland v. Willison 305
Crawsliaw v. Roxbury 310 Cumberland, &c. R. R. Co. v. County
Creai v. Keokuk 296, 783 Court 231, 529
Crease w. Babcock 165 Cumberland & P. R. Co. v. State 692,
Creevy v. Carr 658 706
Creighton v. Piper 895 Cumberland Tel. & T. Co. v. United
v. San Francisco 336 El. Ry. Co. 803
Crenshaw v. Slate River Co. 237, 773 Cummerford v. McAvoy 644
Creole v. Chicago 722 Gumming Police Jury
v. 717
Cresap v. Gray 5)35 v. Board of Education 15
Crescent City, &c. Co. v. Butcher's Cummings Ash v. 755
Union, &c. Co. 31 v. Howard 537
Cressey v. Meyer 524 v. Missouri 62, 370, 372, 374, 376
Creston v. Nye 440, 454 v. National Bank 707,711
Creston Water Works Co. v. Mc- v. Peters 769
Grath 778 v. Win go 38
Crichfield v. Bermudez Asphalt P. Cunningham v. Brown 629
Co. 198 v. Macon, &c. R. R. Co. 24
Grim v. Crim 42, 45 r. Neagle 28
Crittenden r. White 13 v. State 437
Crocker v. State 590Cupp v. Seneca Co. 582, 815
Cromarty v. Boston 363Curran v. Arkansas 36
Cronan v. Cotting 86 v. Sliattuck
813, 817
Crone v. Angell 605Currie v. Waverly & N. Y. B. Ry. Co. 827
Cronin v. People 286, 287Currier v. Marietta & Cincinnati R.
Cronise v. Cronise 156, 403 R. Co. 762, 763
Crosby v. Hanover 757Curry v. Walter 638
v. Lyon 743, 744Curryer v. Merrill 262
v. Warren 286, 884Curtis, Ex parte 14, 456
Cross, Ex parte 177 v. Curtis 606
v. Allen 32 v. Gibbs
42, 583
v. Armstrong 42 v. Gill 591
v. Cross 680 v. Hubbard 425
v. Hopkins 265 v. Leavitt
416, 517, 537
Crossley v. California 26, 467 v. Mussey 622
Grossman v. United States 12 v. State 440
Croswell's Case 616 v. Whipple
243, 703, 705, 772
Crouch, Ex parte 495 v. Whitney
406, 409
v. Hall 62 Cushman v. Smith 813
Crow v. Bowlby 80 Cusic v. Douglas 408, 515
Crowder v. Sullivan 321 Cusick's Appeal 906
Crowell v. Hopkinton 327, 331, 333, 701, Cutlip v. Sheriff
209, 213
704 Cutts v. Hardee 414
v. Randell 30 Cuyler v. Rochester 575
Crow ley v. Burlington, &c. Ry. Co. 840 Cypress Pond Draining Co. v.
v. Cliristensen
Hooper 694,
885 699, 702
v. Copley
736, 868
v. State 253
v. West 283 D.
Crown Cork & Seal Co. v. State 684
Croy v. Epperson 689 Dabbs v. State 886
Crozier v. Cudney 434 Dada v. Piper 630
Cruikshanks v. Charleston 606 Daggett v. Colgan 696
Crumlisk's Admr. r. Central Imp. Co. 42 v. Hudson
906
Crump v. Morgan 65 Dahnke v. People
Crutcher v. Commonwealth 130, 455
694 Dailey v. Reynolds 607
v. 692
Kentucky v. State
895
TABLE OF CASES. xliii
Page Page
Dailey Superior Ct. San Francisco 456
v. Da vies, In re 482
v. Swope 736, 745 v. McKeeby 99, 509, 518
Daily Post Co. v. McArthur 650 v. Morgan 281
Dakin r. Hudson 585 Daviess Co. v. Dickinson 323
Dalby v. Wolf 265 Davis v. Auld 883
Dale v. Com. 161 v. Bank of Fulton 204
v. Irwin 903, 904, 907 v. Boget 663
v. Medcalf 639 v. Burke 22
r. State 464 v. Brown 605
v. The Governor 396, 547 v. Davis 83
Dallas Lumbering Co. v. Urquhart 769 v. Dubuque 721
Dalrymple v. Mead 861 v. Duncan 628
Dalton, Re 66, 891 v. Elmira Sav. Bk. 27
v. State .
189 v. Gaines 118, 182, 194, 701, 722
v Water Commissioners 760 v. Gray 386, 389
Daly v. State 555 v. Guilford 358
Damour v. Lyons City 304 v. Hambrick 900
Dana's Case 460, 591 v. Holbrook 924
Dancaster v. Hewson 631 v. Jackson 302
Dane County v. Dunning 690 v. Litchfield 732
Danforth v. Groton Water Co. 629 v. Lynchburg 722, 730
v. State 437 v. Massachusetts 293, 603
Daniel Ball, The 864 v. McNees 630
Daniells v. Watertown 531 v. Menasha 659
Daniels v. Clegg 86 v. Minor 521
v. Hathaway 306 v. Montgomery 300
Danks v. Quackenbush 406 v. New York 295, 299
Dantzer v. Indianapolis U. Ry. Co. 781 v. O'Ferrall 514
Danville v. Pace 86, 237, 241, 242, 515, v. Petrinovich 289
529, 537 v. Reed 294
v. Shelton 709, 740 v. Richardson 685
Darcy v. Allain 401, 562 v. Rupe 413
D'Arcy v. Ketcham 42 v. Shepstone 626
Dare Co. v. Currituck Co. 268 v. State 158, 205, 212, 217, 241, 247,
Dargan v. Mobile 357 451. 538, 655
Darling v. Boesch 220 v. State Bank 146, 532, 638
v. Gunn 712 v. St. Louis Co. Com'rs 571
v. Rogers 182 v. Texas 22, 46
Darlington v. New York 346 v. Wood 82
v. United States 756 v. Woolnough 210
v. Ward 287 Davis's Lesseev. Powell 553
Darrington v. State Bank of Alabama 35 Davison v. Duncan 651
Darrow v. People 183, 894 i: Johonnot 146, 558
Darst v. People 283 Davock v. Moore 335
Dart v. Houston 389, 393 Dawkins v. Paulet 630
Dartmouth College v. Woodward 175, v. Rokeby 631
268, 316, 343, 360, 388, 392, 403, 602, 836 Dawson v. Aurelius 305
Dash v. Van Kleek 97, 134, 137, 374, 617, v. Coffman 52
629 v. Duncan 644
Datz v. Cleveland 159 v. Holt 645
Daubman v. Smith 206 v. Lee 657
D'Auvilliers v. De Livaudais 579 v. Shaver 237
Davenport v. Barnett 80 v. State 379
v. Mayor 895 Day, Re 130, 890
v. Richmond 295, 881, 883 v. 30
Gallup
v. Stevenson 301 v. Green 860
v. Young 148 v. Jones 903
Davenport, &c. Co. v. Davenport 278 v. Kent 929
David v. Portland Water Com. 334 v. Munson 87
Davidson v. Boston & Maine R. R. v. Savadge 692
Co. 781, 782 v. Stetson 194
v. Briggs 86 Dayton v. Quigley 288
v. Jennings 67 Dayton Coal & I. Co. v. Barton
Lawrence
. 623 Dayton Mining Co. v. Seawell 771
v. New Orleans 20, 505, 506, 722, 735, Deal v. Mississippi Co. 697
868 Dean v. Ann Arbor St. Ry. Co. 803
xliv TABLE OF CASES.
Page Page
Dean Borchsenius
v. 627, 642 Dennis v. State 905
v. Gleason 645, 743 Dennis Long & Co. v. Louisville 763
p. Sullivan R. R. Co. 808, 819 Dennison School District v. Padden 262
v. Willamette Bridge Co. 456 Denny, Re 202
Dean of St. Asaph, Trial of 479 v. Ashley 583
Deansville Cemetery Association, v. Mattoon 161, 646
Matter of 770, 775 v. Reynolds 80
Dearborn v. Boston, C. & M. R. R. . State 127
Co. 312,825,826 White
v. 252
Deaton v. Polk Co. 822 Dent West Virginia
v. 19, 376, 509
De Ben v. Gerard 281 Denton v. Jackson 298, 312, 348
De Benneville v. Philadelphia 826 Dentzel v. Waldie 639
De Berry v. Nicholson 907 Denver v. Bach 289
Debevoise v. New York, L. E. & W. v. Bayer 811
R. R. Co. 181 v. Capelli 302
Deblois v. Barker 860 v. Coulehan 722
Debolt v. Ohio Life Ins.& Trust Co. 176 v. Hayes 168
De Camp v. Eveland 257 v. Knowles 731
v. Hibernia R. R. Co. 215, 766 . Rhodes 304, 362
Decatur v. Fisher 358 v. Vernia 296, 812
Decatur Co. v. Humphreys 760 Denver Circle R. Co. v. Nestor 216, 811
De Chaetellux v. Fairchild 78, 132, 137, Denver City Irrig. Co. v. Middaugh 826
152 Denver City Ry. Co. v. Denver 718
Decker v. Baltimore, &c. R. R. Co. 25 Denver & N O. R. R. Co. v. Lamborn 816
v. Gay lord 618 Denver & R. G. Ry. Co. v. Bourne 81 1
Page Page
De Varaigne v. Fox 809 Dixon v. People 68, 455
Dever v. Cornwall 632, 749, 751 v. Poe 886
Devin v. Scott 850 Dixon Co. v. Field 322
Devlin v. Brady 198 Doane t>. Lake Street El. Ry. Co. 803
Devon Witches, Case of 444 Dobbins v. Commissioners of Erie
De Voss v. Richmond 321 Co. 591, 682
Devoy v. New York 99, 257 v. State 469
Devries v. Conklin 95 Dobyns v. Weadon 930, 940
r. Phillips 449 Dodd v. Thomas 607
Dew v. Cunningham 200 Dodge v. Coffin 43
De Walt's Appeal 885 v. County Commissioners 826
De Walt v. Bartley 899, 900 v. Granger 305
Dewar v. People 55 v. Gridley 217
Dewe v. Waterbury 620 v. Mission
Township 185
Dewey v. Des Moines 21 v. Woolsey 25, 62, 176, 395
v. Detroit 358 Doe v. Beebe 755
Dewhurst v, Allegheny 251, 554 r. Braden 25, 237
De Wolf v. Rabaud 33 v. Douglass 54, 146, 237
Dexter v. Boston 714 v. McQuilkin 749
Dial v. Holter 619 Dogge v. State 454
Diamond Match Co. v. New Haven 757 Dole Lyon . 644
Dibdin v. Swan 646 v. Van Rensselaer 628
Dibrell v. Lanier 185 Doles v. State 469
Dick v. McLaurin 588 Dominick v. Bowdoin 160
Dickens's Case 481 Doriahoe v. Richards 263, 66-3
Dickenson v. Fitchburg 822, 823, 824 Donahue v. Will Co. 159
Dickerman v. Duluth 784 Done v. People 471
Dickerson v. Franklin 726 Donkle v. Kohn 677
Dickey v. Hurlburt 930 Donnaher's Case 789, 791
v. Reed 144 Donnell v. State 869
r. Tennison 765, 818 Donnelly v. Decker 868
Dickinson v. Hayes 80 v. State 452
Dicks v. Hatch 575 v. Tripp 305
Dickson v. Dickson 156, 181 Donnersberger v. Prendergast 206, 212
v. People 895 247
Dieffendorf v. Ref. Cal. Church 661 Donoghue v. Philadelphia 346
Dietriclis v. Lincoln, &c. R. R. Co. 754 Donohugh v. Roberts 215
Diggins v. Brown 732 Dooley v. Sullivan 356
Dike v. State 560 v. United States (182 TJ. S.) 12
Dikeman v. Dikeman 412, 413 v. United States (183 U. S.) 12
Dill, In re 496 Dooling v. Budget Pub. Co. 606
Dillard v. Collins 610 Doon Township v. Cummins 323, 324
Dillingham v. Hook 403 Doonan v. Glynn 82
v. Snow 277, 749 Doran v. De Long 190
v. State 458 Dore v. Milwaukee 296
Dimes v. Proprietors of Grand Junc- Dorgan v. Boston 717
tion Canal 692, 693, 595 Dorfan v. East Brandywine, &c. R.
Dingey v. Paxton 523, 627 R. Co. 825
Dingley ?;. Boston 770, 809 Dorlin v. Shearer 663
Directors, &c. v. Burton 262 Dorman v. Jacksonville 2915
Directors of the Poor v. School Direc- Dorr, Ex parte 491, 493
tors 695 Dorrance Street, Matter of 860
Dishon v. Smith 275, 909, 925, 929, 935, Dorsey, Matter of 99
937 v. Dorsey 138, 560, 579
District Attorney, Re 895 v. Gilbert 146
District of Columbia v. Washington Dorsey's Appeal 209, 212
Gas Light Co. 200 Dortic v. Lockwood 691
District Township v. Dubuque 89, 92, Doss v. Commonwealth 464
100, 110 Dothage v Stuart . 653
Ditson v. Ditson 579, 680, 584 Dotton v. Albion 358
Dively v. Cedar Falls 320, 692 Doud v. Mason City, &c. Ry. Co. 822
Divine v. Commissioners 183 Dougherty v. Austin 164
Division of Howard Co. 201, 210, 267 v. Commonwealth 453
Dixon v. Baker 304 Doughty v. Hope 114, 581
v. Orr 934, 940 v. Somerville & Eastern R. R. Co. 823,
t>. Parmelee 478 825
xlvi TABLE OF CASES.
Page Page
Douglas v. Byrnes 778Dullam v. Willson 55, 159
v. Freeholders, &c. 91 Duluth & I. R. Ry. Co. v. St. Louis
400, 885 Co. 739
Kentucky
r.
Douglas Co. v. Bolles 321 Duluth & W. Ry. Co. v. West 828
Douglass v. Pike Co. 36, 405 Dunbar v. Boston & P. Ry. Co.
v. Placerville 266, 272 v. San Francisco 757
790 Duncan v. Barnett 408
Turnpike Co.
v.
Dove v. School District r. Lynchburg 306
Dover v. Portsmouth Bridge 865 v. McCall 32
Dow v. Beidelman 18, 218, 874 r. Missouri 22, 374
v. Norris 237, 253, 256 v. Thwaites 638, 640, 657
Dow's Case 39 Duncombe v, Daniell 623
Dowdell r. State 217 v. Prindle 194, 208
Dower Kichards
v. Dunden v. Snodgrass 631
Dowling Lancashire Ins. Co.
v. 1(54 Dunham v. Anders 617
v. State 382 v. Chicago 743
Dowling's Case 458 v. Cox 707
Downes v. Bidwell 12 v. Hyde Park 296
Downing v. Porter 430 Powers
. 630
v. Wilson 607 v. Rochester 271, 281, 284, 285, 291
Downs v. Bowdoin Sq. Bapt. Soc. 661 Dunlap v. Glidden 629
Doyle v. Continental Ins. Co. 258 v. State 547
v. Hallam 80 v. Toledo, &c. Ry. Co. 617, 826
v. O'Doherty 630 Dunman v. Bigg 611
>:
Raleigh 895 Dunn v. Adams 62
Drady v. Des Moines, &c. Co. 404 v. Burleigh 668
Drainage of Lands, Matter of 770 v. City Council 780
Draining Co. Case 735, 737 v. Com. 286
Drake v. Drewry 908 v. Sargeant 616
v. Gilmore 629 v. State 452
v. Granger 42 v. Winters 619
v. Jordan 876, 381, 617 Dunne v. People 13
v. Phil., &c. R. R. Co. 842 Dunnovan v. Green 819, 893
Draper v. United States 26 Du Page Co. v. Jenks 98
Drath v. Burlington, &c. R. R. Co. 816 v. People 929
Drehman v. Stifle 870, 371, 411, 617 Dupy v. Wickwire 137
Drennan v. People 86 Durach's Appeal 266, 710, 742
Dressen v. Brameier 661 Durant t Essex Co.
1
. 85
Drew v. Davis 748, 749 v. Kauffman 704, 721
v. Hilliker 868 v. People 450
Dreyer v. Illinois 469 Durein v. Pontius 210
v. People 689 Durham v. Lewistown 137, 237, 659
Drinkall y. Spiegel 39 Durkee v. Janesville 208, 660
Driscoll v. Taunton 827 v. Kenoslia 30(5
Dritt v. Snodgrass 263 Durkin v. Kingston C. Co. 67
Dronberger v. Reed 816 Duson v. Thompson 941
Druliner v. State 91 1 Duverge's Heirs v. Salter 216
Drummond v. Leslie 607 Dwenger v. Chicago, &c. Ry. Co. 797
Dryden v. Swinburne 932 Dwyer v. Goran 80
Dry fuss v. Dridges 114 v. Gulf C. & S. F. Co. 853
Ry.
Duanesburgh v. Jenkins 340 Dyckman v. New York 686
Dubois v. McLean 147 Dye v. Cook 409
Dubuque Co. v. R. R. Co. 256, 324 Dyer v. Bayne 91
Ducat o. Chicago 37 v. Morris 607
Duche" v. Voisin 682 v. State 223
Duchess of Kingston's Case 80 t>. Tuscaloosa
Bridge Co. 168, 566
Dudley v. Mayhew 676 Dykes, Ex parte 439
Duffield v. School District 880
Duffy v. Dubuque 302, 362
v. Hobson 685 E.
Dugan v. Rollins 84
v. State 869 Eagle Ins. Co. v. Ohio 838
Duke v. Ashbee 924 Eakin v. Raub 101
v. Rome 804 Eames v. Savage 364, 506
Dulany's Lessee v. Tilghman 637, 638 w. Whittaker 619
Dull v. Blackman 40 Earle v. Board of Education 183
TABLE OF CASES. xlvii
Page Page
Earle v. Con way 26 Edwards v. Commonwealth 160
v. Grant 478 v. Davenport 35
v. Pennsylvania 26 v. Elliott 46
v. Picken 444 v. Jagers 392
Earley's Appeal 272 v. James 114
Easley v. Morse 611 v. Johnson 413
Eason v. State 253 v. Kearzey 407, 408, 409, 414
East & West India Dock, &c. Co. v. v. Pope 147, 149
Gattke 819 v. State 458
East Brandywine, &c. R. R. Co. v. v. Williamson 406
Ranck 822 Edwards's Lessee v. Darby 104
East End St. Ry. Co. v. Doyle 803 Eells v. People 247, 250
Eastern Building & L. Ass'n v. Well- Effinger v. Kenney 412
ing 30 Egerer v. N. Y. C. & H. R. Ry. Co. 801
Eastern R. R. Co. v. Boston, &c. R. Eggleston v. Doolittle 661
R. Co. 398, 399 Egyptian Levee Co. v. Hardin 717, 735,
Easthampton v. Hampshire Co. 868
Com'rs 760, 806 Ehlers v Stoeckle 607
East Hartford v. Hartford Bridge Co. 295, Eichels L: Evansville, &c. Co. 271, 795
347, 390 Eidemiller v. Wyandotte 761
East Kingston v. Towle 628 Eikenberry v. Edwards 690
East Lincoln v. Davenport 322 Eikhoff v. Gilbert 620
Eastman v. Dearborn 583 Eimer v. Richards 80
v. McAlpin 202 Eingartner v. Illinois Steel Co. 38
v. Meredith 303, 305, 348, 355 Eisenbach v. Hatfleld 781
v. State 237, 890 Eitel v. State 182, 225
East Norway Lake Ch. v. Froislie 661 Elam v. Badger 611
East Oakland v. Skinner 274, 320 Elbin v. Wilson 927
Easton Bank v. Commonwealth 396 Elder v. Barnes 861
East Portland v. Multnomah Co. 711 v. Reel 679, 580
East Saginaw Salt Manuf. Co. v. Eldredge v. Trezevant 26
East Saginaw 395, 396, 402, 547 Eldridge, Matter of 481
East St. Louis v. East St. Louis, &c. v. Kuehl 623, 751
Co. 311 v. Smith 757, 766
v. Maxwell 217 Election Law, Matter of 923
v. O'Flynn 812 Electric Improvement Co. v. San
v. Trustees 710 Francisco 288
v. Wehrung 294, 710 Elgin v. Eaton 296
v. Witts 339 v. Kimball 304
East St. Louis Com. Ry. Co. v. East Eliason v. Coleman 895
St. Louis, &c. Co. 806 Elijah v. State 469
East Tenn. V. & G. R. Co. Frazier 392 Eliot v. McCormick
. 683
Eaton, Matter of 495 Elizabethtown, & P. R. R. Co. v.
v. Boston, &c. R. R. Co. 757, 777, Thompson 791
783, 786, 788, 826 Elk v. Wilkins 901
v. Brown 900 Elk Point v. Vaugn 279
v. Walker 211 Ellerbee v. State 441
Echols v. State 937 Ellett v. Commonwealth 403
v. Staunton 764 Elliot v. Ailsbury 607
Eckhart v. State 249 Elliott v. Detroit 164
Eddings v. Seabrook 781, 785 v. Fairhaven & Westfield R. R.
Eddy v. Capron 198 Co. 794
Eden v. People 691, 837 v. People 473
Edgecombe v. Burlington 770 v. Philadelphia 305
Edgerly v. Swain 606 v. Wohlfrom 680
Edgerton v. Goldsboro Water Co. 272 Ellis v. Davis 43
v. Hart 687 v. Frazier 184, 708
Edgewood R. R. Co.'s Appeal 764, 771 v. Jones 407
Edison Gen. El. Co. v. Canadian P. v. May 900, 912
N. Co. 178 v. Pacific R. R. Co. 761
Edmonds v. Ban bury 906 v. State 446, 567
Edmunds v. Herbrandson 182 Ellison v. Barnes 1MO
Edmundson v. Pittsburgh, &c. R. R. Ellsworth v. Chicago & I. W. Ry. Co. 826
Co. 810, 812 Ellyson, Ex parte 937
Edson v. Edson 41 Elmendorf v. Carmichael 139
Edwards, In re 440 v. New York 114
xlviii TABLE OF CASES.
Page Page
Elmendorf v. Taylor 33 Eureka Springs Ry. Co. v. Timmons 62
Elmwood r. Marcy 47, 320 Eustis v. Parker 316
Else v. Smith 429 Evans v. Brown
Elston v. Piggott 23, 180 v. Montgomery 374, 406
Elwell v. Shaw 748, 749 v. Myers 105
Ely v. Holton 530 v. Osgood 275
v. Niagara Co. 346, 884 v. Phillipi 97, 182
v. Thompson 247, 257, 499 v. Populus 388
Embury v. Conner 232, 251, 764, 780 v. Sliarpe '209
Emerick v. Harris 591 Evansville v. Dennett 322
Emerson v. Atwater 84, 86 v. Miller 883
Emert v. Missouri 689, 693 v. Senhenn 300
Emery v. Gas Co. 717 v. State 158, 334, 894
v. Lowell 308 Evansville, &c. R. R. Co. v. Dick 786
v. Mariaville 320 Evansville & R. Ry. Co. v. Swift 827
v. Reed 86 Evening News v. Tryon 650
Emery's Case 193, 442 Everett v. Council Bluffs 883
Empire City Bank, Matter of 581, 582 v. Marquette 884
Emporia v. Soden 807, 808 Evergreen Cemetery v. New Haven 770
Encking v. Simmons 108 Everhart v. Holloway 583
Enfield v. Jordan 34 Evernham v. Hulit 202, 212, 216
Enfield Toll Bridge Co. v. Hartford Eviston v. Cramer 629
& N. H. R. R. Co. 398 Ewing v. Alabama & C. Ry. Co. 763
Engle w. Shurtz 517, 544 v. Filley 929, 938
English v. Chicot Co. 272 v. Hoblitzelle 183, 206
v. Dickey 937 v. Orville M. Co. 121
'
Page Page
Farley v. Dowe 408 Ferry v.
Campbell 506, 528, 644
Farm Ins. Co. v. Carpenter 134, 253, Fertich v. Michener 263
582 Fertilizing Co. v. Hyde Park 400, 836, 853,
Farmers' Loan & T. Co. v. Funk 122 883 884
v. Lake St. El. Ry. Co. 25 Fetter, Matter of 39
Farmers' & Mechanics' Bank r. Butch- Ficklen v. Shelby Tax Dist. 694
ers' & Drovers' Bank 321, 323 Fidelity & C. Co* 17. Allebone 886
17. Smith 104, 253, 416 Fidelity & D. Co. v. United States 453
Farneman 17. Mt. Pleasant Cem. Fidelity M. L. Ins. Ass'n v. Mettler 563,
Ass'n 768, 770 564
Farney v. Towle 30 Field v. Barling 784
Farnharu 17. Pierce 423 v. Clark 247
Farnsworth Lime Rock Ry. Co. 17. 767 u. Des Moines 272, 757
i7. Storrs 619 v. Gibbs 42
17. Vance 414 17.
People 98, 160
Farnsworth Co. v. Lisbon 163, 740 Fielden v. Illinois 16
Farnsworth Lumber Co. v. Fairley 747 Fields v. Highland Co. Com. 308, 744
Farnum v. Concord 355 v. Osborne 900
v. Johnson 166 Fifield i7. Close 684
Farr v. Rasco 644 i7. Phoenix 302
. Sherman 95 Figg i7. Thompson 289
Farrar v. Clark 523 Filber v. Dauhterman 605
v. St. Louis 717, 730 Finch i7. Riverside & A. Ry. Co. 803
Farrell v. West Chicago P. Co. 714, 731 Finlayson v. Peterson 532
Farrelly . Cole 74 Finney v. Boyd 80
Farrington v. Tennessee 395, 396, 738 Fire Department v. Helfenstein 37, 710
Turner
v. 930 t7. Noble 37
Farwell v. Des Moines B. M. Co. 721 v. Wright 37
Fausler Parsons
v. 907 Firemen's Association v. Lounsbury 208,
Fawcett Charles
v. 637 209
17. Clark 606 First Natl. Bk. v. Ayers 32, 682
17. Fowliss 686, 587 v. Chehalis Co. 32, 682
17. York & North Midland R. R. 17. McGwire 693
Co. 842 17. Merchants' National Bank 433
841,
Fayetteville 17. Carter 283 v. Price 181
Fearing v. Irwin 548, 781 First National Bk. Rock Springs v.
Fechheimer Washington 17. 52 Foster 458
Feck Bloomingdale
i7. 174 First Natl. Bk. Wellington v. Chap-
Fehr v. Schuylkill Nav. Co. 826 man 682
Feibleman v. State 99, 205 First Parish, &c. v. Middlesex 822, 825
Feige Mich. Cent. R. R. Co.
v. 139 . Stearns 893, 932, 933
Feineman v. Sachs 178 First Pres. Soc., Matter of 661
Feldman v. City Council 317, 700 First Ref. Pres. Ch. v. Bowden 660
Felix v. Schwarnweber 30 Fischli n. Cowan 80
17. Wallace Co. Com'rs 131 Fish v. Collens 932
Fell v. State 169, 174, 400 v. Kenosha 324
Fellows v. New Haven 296 Fishburn v. Chicago 290
Walker 700 i7. Chicago M. & St. P. 28
v. Ry. Co.
Felton's Case 442 Fisher v. Boston 301
Fenelon v. Butts 928 i7.
Deering 85
Fennell Bay City
v. 280 t7.
Dudley 900
Fenton Garlick
v. 42, 683 v. Haldeman 33
17. Scott 915, 941 v. Hildreth 924
w. Yule 205 17. Horricon Co. 772
Fenwick Gill i?. 553 v. McGirr 246, 431, 850, 881
Ferguson v. Landram 333, 554, 697, 705 t7. Wineman
673, 583
17. Selma 884 Fisher's Lessee v. Cockerell 30
17. Snohomish 721 Fisher's Negroes v. Dobbs 630
v. Williams 538 Fishkill r. Fishkill & Beekman Plank
Fernandez, Ex parte 495 Road Co. 207
Fernstler o. Siebert 661 Fisk, Ex parte 45
Ferraria v. Vasconcellos 660, 661 v. Jefferson Police Jury 62, 383, 38M
Ferrell 17. Commonwealth 177 v. Kenosha 542
In re
Ferrelle, 41 t7. Soniat
Page Page
Fiske v. People 274, 291, 661, 891 Ford v. Chicago & N. W. R. R. Co. 777,
Fitchburg R. R. Co. v. Grand Junc- 778, 791
tion R. R. Co. 836, 842 r. County Commissioners 807
Fitts v. McGhee 24 . Land
Delta Pine Co. 740 36,
Fitzgerald v. Robinson 661 Fordyce v. Godman 193, 194
Paul, &c. Ry. Co.
v. St. 841 Foreman v. Hardwick 924
Fitzgerald & M. C. Co. v. Fitzgerald 582 v. Marianna 594
Fitzpatrick v. United States 449 Forepaugh v. Del. L. & W. R. R.
Flagg v. Baldwin 62, 178 Co. 178
v. School Dist. No. 70 322 v. Delaware L. & W. Ry. Co. 48
v. Worcester 301 Forster v. Forster 137, 631
Flaherty, He 289 Forsyth v. Hammond 722
v. McCormick 690 Forsyth Boulevard v. Forsyth 826
Flanagan v.
Philadelphia 867 Fort Dodge v. District Township 927
v. Plainfield 709 Fort Leaven worth R. R. Co. v. Lowe 177
Flatbush, In re 209, 720 Fort Scott v. Pelton 694
Fleetwood v. Reed 368, 707 Fort Wayne v. Coombs 304
Fleischner v. Chad wick 216, 217 Fort Worth v. Crawford 302
Fleishman v. Walker 577 Fort Worth & N. O. Ry. Co. v.
Fleming, Ex parte 161 Garoin 828
Fletcher v. Auburn & Syracuse R. Fort Worth & R. G. Ry. Co. v.
R. Co. 814 Jennings 803
v. Baxter 192 Forward v. Hampshire, &c. Canal Co. 758
v. Ferrel 43 Fosdick v. Perrysburg 217
v. Fletcher 829 Foss, Re 41
v. Lord Somers 84 v. Foss 679
v. Oliver 98, 204, 711 v. Hildreth 656
v. Peck 128, 237, 253, 370, 374, Foster v. Byrne 408
385, 813 v. Essex Bank 263, 416, 516, 539
v. State 449 v. Kansas 848, 849
v. Tuttle 74 v. Kenosha 745
v.Wall 911 v. Morse 691
Flint v. Pike 637, 638, 640 v. Neilson 25
Flint, &c. Plank Road Co. v. Wood- v. Scarff 909, 926
hull 138, 149, 259 v. Scripps 629
Flint, &c. R. R. Co. v. Dewey 262 v. St. Louis 302
Flint River Steamboat Co. Foster 236, v. Foule v. Mann 507, 612
253, 591 Fourteen Diamond Rings v. United
Flood v. State 279 States 12
Florence, Ex parte 89 Fowler, Matter of 778
Florentine v. Barton 144, 146 v. Beebe 898, 928
Florer v. Sheridan 718 v. Chichester 644
Florida C. Ry. Co. v. Reynolds 708 v. Danvers 330
Florsheim, &c. Co. v. Lester 180 v. Halbert 653
Flournoy v. Jeffersonville 689 17. Pierce 219
Flower v. Flower 679, 584 v. State 930, 934
Floyd v. Mintsey 82 Fowles v. Bowen 610
Flukes, Re 573 Fox, Ex parte 424
Flynn v. Flynn 828 v. Cottage, &c. Ass. 688
Fobes v. Rome W. & O. Ry. Co. 799, 801, v. McDonald 159
802 i7. Mohawk & H. R. H. 183
Society
Fogg v. Holcomb 640 v. State of Ohio 46, 281
438 v. W. P. Railroad Co. 813
Foley v. People
v. State 209, 212, 213 v. Wood 192
Folkenson v. Easton 97 Foxcroft t7. Mallett 33
Folsom v. New Orleans 346 Foye v. Patch 83
v. Township Ninety-six 31, 696 Frain v. State 445
Foltz v. Kerlin 895 Francis v. Railroad Co. 707, 743
v. State 859 17. Wood 630
Fond du Lac Water Co. v. Fond Francois, Ex parte 557
du Lac 720 Frank, Ex parte 289, 709
Fong Yue Ting v. United States 14, 456 Frankfort v. Aughe 280, 851
Foote v. Fire Department 881 v. Winterport 198, 310
v. State 473 Frankfort, &c. R. Co. v. Philadelphia 285
Forbes v. Halsey 626 Frankland v. Cassaday '
81
v. Johnson 619, 630 Franklin c. Browne 606
TABLE OF CASES. li
Page
Franklin v. State 480 Fryer v. Kinnersley 611
Franklin Bridge Co. v. Wood 237, 253 Fuller i7.
Chicago, &c. R. R. Co. 875
Franklin Co. v. Railroad 706 v. Dame 197, 198
Franklin Co. Gram. Sch. v. Bailey 392 v. Edings 781
Franz v. Railroad Co. 797 v. Gould 711
Frary v. Frary 579 v. Groton 307, 308
Frasher v State 657 v. Hampton 353
Frazee, Matter of 289 v. Morrison Co. 336
n. Beattie 690 v. People 206
Frazer v. Lewiston 355 t7. State 425
Free v. Buckingham 677 Fullerton v. Bank of United States 33
Freeborn v. Pettibone 413 Fulmer v. Commonwealth 93
Freedman v. Steel 684, 685 Fulton v. Davenport 721
Free Fishers' Co. v. Gann 752 w. McAffee 31
Freeholders v. Sussex 303 Fuqua v. Pabst Brewing Co. 848, 876
Freeholders, &c. v. Barber 283 Furgeson v. Jones 685
Freel v. School City of Crawfords- Furman v. New York 89
ville 305 v. Nichol 403
Freeland v. Hastings 243, 311, 333, 698, Furman Street, Matter of 717, 783, 822
704 Furnell v. St. Paul 363
v. Williams 20,411 Furniss v. Hudson River R. R. Co. 819
Freeman v. Alderson 683
w. Gaither 223
v. Howe 25 G.
. Price 607
Freeport v. Isbell 301 Gabbert v. Railroad Co. 208
v* Marks- 306 Gabel v. Houston 285
Freeport W. Co. v. Freeport 396 Gableman v. Peoria, D. & E. R. Co. 28
Frees v. Ford 231 Gaff v. Greer 661
Freeze y. Tripp 86 Gage t7. Bain 751
Freiday v. Sioux City R. T. Co. 803 v. Caraher 526, 749
Freleigh v. State 400 v. Censors 890
Frellsen v. Mahan 737 v. Graham 339, 341
Fremont, E. & M. V. Ry. Co. v. v. Shelton 605
Bates 826 Gagnet v. Reese 496
French v. Barber Paving Co. 714, 731 Gaines v. Buford 550
v. Boston 302 v. Coates 562, 565, 888
v. Braintree Manuf. Co. 771 v. Gaines 156
v. Camp 728 Gainsville, H. & W. Ry. Co. v. Hall 811,
v. Commonwealth 388 826
v. Deane 375 Gale, Matter of 481
v. Edwards 113 r. Kalamazoo 562, 854, 887
v. Kirkland 735 v. Mead 114
v. Nolan 932 17. South Berwick 310
t7. State
(141 Ind.) 104 Galen v. Clyde & Rose Plank Road
v. State (Tex. Cr. App.) 689, 853, 858 Co. 355
v. State (85 Wis.) 451 Galena & Chicago Union R. R. Co.
Fretwell v. Troy 285 v. Appleby 836, 843
Friedman v. Mathes 121 v. Dill 843
Friend v. Hamill 927 v. Loomis 836, 843
Fries c. New York & H. R. Ry. Co. 800 Galesburg v. Hawkinson 144, 267
Frieszleben v. Shallcross 902 Gall v. Cincinnati 888
Frink v. Darst 84 Gallatin v. Bradford 281, 291
Frisbie v. Fowler 607 Galveston v. Posnainsky 356
Frith v. Dubuque 301 Galveston, H. & S. A. Ry. Co. v. State 384
Fritts v. Palmer 181 v. Texas 384
Frolickstein v. Mobile 676, 859 Galveston, & W. Ry. Co. v. Galveston 266,
Frommer v. Richmond 285 299
Frorer v. People 672, 877 Gatnmel v. Potter 773
Frost 17. Belmont 196, 266, 309 Gannett v. Leonard 146
v. Chicago 289 Gannon, In re (16 R. I.) 830
v. Thomas 162 Re (16 R. I.) 672
Fry v. Bennett 645 v. People 469
. Booth 114,929,930 Gano v. Minneapolis & St. L. Ry. Co. 656
t7. State 610,840,891 Gantly's Lessee v. Ewing 412
Fry's Election Case 903, 904, 905 Garbett, Ex parte 481
lii TABLE OF CASES.
Page Page
Garcia ?. Lee 26 George v. Gillespie 80
v. Territory 473 v. Oxford 223
Gardiner v. Johnston 296 Georgetown, &c. R. R. Co. v. Eagles 786
Gardner v. Burke 932 Georgia u. Stanton 3
v. Collins 81 Georgia, &c. R. R. Co. v. Harris 575, 577
v. Hope Ins. Co. 394 Georgia Packing Co. v. Macon 690
v. Michigan C. Ry. Co. 32 Georgia Pen. Cos. v. Nelms 386
.
Newburg 757, 769, 807, 808, 814 Georgia R. R., &c. v. Smith 165, 874
v. The Collector 194 Gerard v. People 468
v. Ward 927 Gerhard v. Seekonk, &c. Co. 788
Gargan v. Louisville, N. A. & C. Ky. German, &c. Cong. v. Pressler 660
Co. 298 German Reformed Church v. Seibert 661
Garland, Ex parte 370, 371, 374, 376 German Savings Bank v. Franklin Co. 34
v. Brown's Adm'r 406 Germania Ins. Co. v. Wisconsin 30
Garner v. Gordon 497 Germania Trust Co. v. San Francisco 738
Garnett v. Jacksonville 789 Gerrish v. Brown 861
Garr v. Selden 629, 634 Gerry v. Stoneham 529
Garrabad, Re 290 Gertum v. Board 389
Garrett v. Beaumont 529 Gettys v. Gettys 579
v. Cordell 411 Gianfortone v. New Orleans 347
v. Doe 529 Gibb v. Washington 898
v. Janes 293 Gibbons v. Dist. Columbia 739
v. Lake Roland Elevated R. Co. 784 v. Mobile, &c. R. R. Co. 167, 542
v: State 854 v. Ogden 10, 11, 92, 864
v. St. Louis 728 v. United States 24
Garrigas v. Board of Com'rs 202, 209 Gibbs v. Gale 525
Garrigus v. State 453 Giboney v. Cape Girardeau 721
Garrison v. Hollins 591 Gibson, Ex parte 496
v. New York 358 v. Armstrong 661
v. Tillinghast 687 v. Choteau 30, 524
Gartin v. Penick 661 v. Emerson 129
Garvey, In re 440 i'. Harrison 882
v. People 381 v. Hibbard 639
Garvey's Case 468 r.
Huntington 357
Garvin v. State 207 v. Lyon 36
Gas Co. v. Parkersburg 299 v. Mason 506, 892
v. San Francisco 860 v. Mississippi 19, 382
v. Wheeling 92 v. School District 262
Gascoigne v. Ambler 607 v. United States 769
Gaskill v. Dudley 354 v. Wood 904
Gass v. Wilhite 660 Gidding v. Blacker 74, 931
Gassett v. Gilbert 610 Giesy v. Cincinnati, W. & Z. R. R. Co. 780,
Gastineau v. Cora. 289 809, 825
Gaston v. Mace 862 Gifford v. People 449
v. Merriam 217 v. Railroad Co. 209
Gatch v. Des Moines 722 Gill v. Davis 198
Gates v. Neal 927 Gilbert v. Ackerman 624
Gathercole v. Miall 625, 644 v. People 631, 633, 647
Gatlin v. Tarboro 707 Gildersleeve v. People 681
Gatton v. Chicago, R. I. & P. Ry. Co. 48 Gilfillan v. Union Canal Co. 407
Gatzow v. Buening 324 Gilkeson v. Frederick Justices 265
Gaulden v. State 482 Gilkey v. Cook 97
Geary v. Simmons 80 Gill v. Parker 849
Gebhard v. Railroad Co. 517 Gillespie v. Lincoln 305
Gebhardt v. Reeves 796, 809 v. Palmer 893, 927, 928, 931
Geildes v. Cunningham 750 v. People 573, 887
Gee v. Williamson 80 v. State 209, 213
Geebrick v. State 163, 171, 173 Gillett v. McCarthy 210
Geer v. Connecticut 852 Gillette v. Hartford 726
Gehling v. School District 262 Gilliland v. Phillips 637
Gelpcke v. Dubuque 35, 167, 321, 324 v. Sellers's Adm'r 675
Genet v. Brooklyn 825 Gillinwater v. Mississippi & Atlantic
Genther v. Fuller 751 R. R. Co. 75, 760, 762
Gentile v. State 183, 868 Gillison v. Charleston 363
Gentry v. Griffith 192 Gilluly v. Madison 304
George v.
George 859 Gilman v. Cutts 512
TABLE OF CASES. liii
Page Page
Oilman v. Lockwood 417 Gordon v. Appeal Tax Court 176, 395
v. Lowell 605 v. Building Association 560. 564
v. Philadelphia 11, 688, 856, 869, 864 p. Caldcleugh . 31
p. Sheboygan 396 v. Cornes 337, 338, 703
v. Tucker 672 v. Farrar 927
v. Williams 252 v. Ingram 132
Gilmer v. Lime Point 755, 763, 777, 815, v. M cores 159
817 v. People 215
Gilmore v. Heutig 722 v. Preston 276
Gilson v.Dayton 323 Gore v. State 450, 453
v. Rush 711 Gorham v. Campbell 929
Ginn Rogers
v. 676 v. Cooperstown 363
Giozza v. Tierman 22, 885 v. Luckett 453
Girard v. Philadelphia 267 v. Springfield 166
Girard Will Case 670 Gorman v. Pacific R. R. Co. 394, 841
Girdner Stephens
.
62, 522 Gormley w. Taylor 253
Gladden v. State 452 Goshen v. Kern 285, 710
Gladson v. Minnesota 852 v. Richmond 648
Glasgow v. City of St. Louis 781 v. Stonington 235, 633, 536
Gleason v. Dodd 41, 42, 583 Goshorn v. Purcell 630. 538
v. Gleason 579 Goslin t;. Cannon 612, 630
v. Keteltas 691 v. Veley 281, 932
Glenn v. Garth 39 Gosnell v. State 890
Glide, The 26 Gosselink v. Campbell 286, 860
Glidewell v. Martin 195 Cosset v. Howard 191
Gloucester Ferry Co. v. Pennsylvania 689, Gossigi v. New Orleans 285, 888
856, 867 Goszler v. Georgetown 295, 783
Gloucester Ins. Co. v. Younger 35 Gott v. Pulsifer 648
Glover v. Powell 788, 863 Gottbehuet v. Hubachek 606, 628
v. Taylor 924 Gottschalk v. Chicago, &c. R. R. Co. 811
Godeharles v. Wigeman 234, 559, 877 Gougar v. Timberlake 901
Goddard, Petitioner 279, 281, 286, 860, Gough v. Dorsey 129, 589
861 v. Pratt 136
v. Jacksonville 845, 883 Gould, Ex parte 443
Goddin v. Crump 167, 257 v. Hudson River R. R. Co. 781, 786
Godshalk v. Metzgar 638 v. Sterling 274, 320, 323, 542
Goenen v. Schrceder 413 v. Sullivan 750
Goetcheus v. Mathewson 581, 927, 928 v. Topeka 302
Goetz v. United States 12 Goulding v. Clark 275
Goff v. Frederick 267 Govan v. Jackson 934
Goggans v. Turnispeed 404 Gove v. Blethen 628
Gohen v. Texas Pacific R. R. Co. 217 v. Epping 327, 704
Gold v. Fite 91 Governor Porter .
77, 132, 137
Goldey v. Morning News 180 Grace v. McElroy '
86
Goldthwaite v. Montgomery 265 v. Teague 898
Gold Water & Washing Co. v. Keyes 29 Graffty v. Rushville 693
Gonell v. Bier 896 Graham, Ex parte 629
Gooch, Re 848 v. Chicago 732
Good Zercher
v. 638 v. Com'rs Chautauqua Co. 707
Goodell, Matter of 655 v. Greenville 166
v. Jackson 84 Weeks
t;. 32
Goodenouph, In re 497 Grammar School Burt v. 392
Good hue, Re 237 Granby v. Thurston 266
Goodin v. Thoman 99, 389 Grand Gulf R. R. Co. v. Buck 396
Goodlett v. Kelly 525 Grand Island & N. W. Ry. Co. v.
Page Page
Grand Rapids Booming Co. v. Jarvis 787 Greensboro' v. Ehrenreich 287
Grand Trunk Ry. Co. v. Ives 134, 560 v. Mullins 280
Granger v. Pulaski Co. 348, 355 Greenstreet v. Thornton 681
Grannahan v. Hannibal, &c. R. R. Greenville v. Kemmis 280
Co. 836, 844 Greenville & Columbia R. R. Co. v.
Grant v. Brooklyn 362 Partlow 823, 824, 825
v. Buckner 26 Greenwood v. Cobbey 620
v. Courier 241 v. Curtis 178
v. Erie 301 v. Freight Co. 394
v. Leach 566 i>. Louisville 301
v. Spencer 114 v. State 280
v. State 461 Gregory, Exparte 283, 709
Grattan v. Mattison 689 o. Bridgeport 308
Graves v. Blanchet 607 v. Denver Bank 407
v. Nor. Pac. R. R. Co. 590 v. Gregory 679
v. Otis 296, 783 v. State 133
v. Saline 322 Grenada Co. Supervisors v. Brogden 256
Gray v. Connecticut 568, 845 Grey v. Newark Plank R. Co. 183
v. Danbury 363 ex rel Simmons v. Paterson 782
v. First Division, &c. 791 Gridley v. Bloomington 286, 861
v. Griffin 305 Grier v. Shackleford 937
v. Hook 924 Griffin v. Cunningham 560
v. Knoxville 304 v. Goldsboro 873
v. Navigation Co. 394 v. Martin 788
v. Pentland 618, 619 v. McKenzie 622
v. State 564 v. Mixon 518
Gray's Lessee v. Askew 86 . New York 300
Great Falls Manufacturing Co. v. v. Ranney 685
Fernald 773 v. Wilcox 410, 517
v. Garland 814 v. Williamstown 363
Great Western R. R. Co. v. Decatur 840 Griffin's Case 18
Great Western Telegraph Co. v. Griffin's Executor v. Cunningham 138,
Purdy 40 153, 546
Greeley v. Jacksonville 217 Griffing v. Gibb 34
Greeley S. L. Ry. Co. v. Yount 827 Griffiths, In re 130
Green, Re 28 Griggs v. Foote 296
v. Aker 121 Grills v. Jonesboro' 285
. Biddle 387 Grim v. Weissenburg School Dis-
v. City 803 trict 535, 701
v. Chapman 645 Grimes v. Coyle 612, 619, 630
v. Collins 575 v. Doe 537
z;. Creighton 576 v. Eddy 854, 881
v. Custard 583 Grimmett v. State 441
v. Holway 685 Grissell v. Housatonic Ry. Co.
841
v. Hotaling 695 Griswold v. Bragg 553
v. Mayor, &c. 209 v. School District 712
v. Neal's Lessee 33, 34 Grob t>. Cusliman 195
v. Portland 799 Groesbeck v. Seeley 623, 527
'
Page Page
Grumbine v. Washington 305, 362 [la gar v. Reclamation Dist. 722
Grundy v. Commonwealth 515 v. Supervisors of Yolo 735
Grunewalds v. Cedar Rapids 272 Hagerstown v. Dechert 247, 250
Guaranty T. & S. D. Co. v. Green v. Schuer 267
C. S. & M. Ry. Co. 42, 44 v. Whitmer 287, 297
Guard r. Rowan 629 Haggard v. Hawkins 208
Gubasko v. New York 363 Hagge v. State 935
Guenther v. People 470 Haggerty v. St. Louis I. M. & S. Co. 879
Guerin v. Moore 614 Hagood v. Southern 24
Guerrero, In re 283, 294, 694, 709 Hahn v. United States 106
Guetig v. State 437 Haigh v. Bell 860
Guild v. Kidd 553 Haight v. Grist 685
v. Rogers 406, 409 v. Lucia 454
Guile v. Brown 590 Haines v. Hall 862
Guilford v. Cornell 208 v. Levin 591
v. Supervisors of Chenango 309, 332, v. School District 275
335, 340, 543, 761 Haines's Appeal 591
Guillotte v. New Orleans 286, 888 Hair v. State 451
Guiterrez, Ex parte 383 Haislip /;. Wilmington, &c. R. R. Co. 824
Gulf, C. & S. F. Ry. Co. v. Ellis 16,671 Hakewell, Matter of 497
v. Fuller 811 v. Ingram 656
v. Helfley & Lewis 872 Halbert v. San Saba Springs, L. &
v. Rambolt 92 L. S. Ass'n 187
v. State 875 v. Sparks 262
Gulick v. New 932 Hale v. Everett 67, 93, 660, 664, 670
v. Ward 197 v. Kenosha 718, 741
Guiline v. Lowell 808 v. Lawrence 878
Gumm v. Hubbard 916 v. State 130
Gundling v. Chicago 15 v. Wilkinson 685
Gunn, Re 189 Haley v. Clarke 160
v. Barry 62, 63, 407, 408 v. Philadelphia 136, 530
White S. M. Co.
. 180 v. Taylor 486
Gunnarssohn v. Sterling 174 Hall, In re 218
Gunnison Co. Com'rs v. Rollins & v. Armstrong 456
Sons 322 v. Bray 182
Gunter v. Dale Co. 207 v. Bunte 207
Gurnee v. Chicago 719 v. De Cuir 668, 840, 881
v. Speer 403, 407 v. Gavitt 924
Gurney v. Minneapolis Union Elev. v. Marks 589
Co. 804 v. Marshall 167, 925
Gustafson v. State 66 v. Steele 195, 199
Gut v. Minnesota 375 v. Thayer 593, 594
v. State 382, 459 v. Washington Co. 474
Guthrie v. Oklahoma 336 v. Williams 41, 42, 583
Guthrie Nat'l Bk. v. Guthrie 336 v. Wisconsin 386, 389
Gutman v. Virginia Iron Co. 237 Hallinger v. Davis 464, 456, 505
Guy v. Baltimore 694 Hallock v. Franklin Co. 818
v. Miller 607
Halstead v. Buster 32
H. v. Nelson 620
v. New York 270, 309, 311, 323
Haas v. Chicago, &c. R. R. Co. 840, 843 Ham v. McClaws 234
Habersham v. State 464 v. Salem 769
Hackett, In re 606, 590, 749 v. Smith 924
v. Wilson 667 . State 40
Hackettstown Swackhamer r. 271 v. Wisconsin, &c. Ry. Co. 823
Hackney v. Vawter 661 Hamblin v. Western Land Co. 30
v. Welsh 41 Hamersley v. New York 814
Hadden v. Chora 661 Hamilton, Ex parte 496
v. The Collector 202 v. Brown 22
Hadduck's Case 276 v. Carthage 363
Hadley v. Mayor, &c. 937, 939 v. Eno 628
Hadsell v. Hancock 308 v. Hirsch 515
Hafford . New Bedford 301 v. Kneeland 62
658 464
Hagan v. Hendry v. People
218
Hagany v. Cohnen 690 v. State 177,
Ivi TABLE OF CASES.
Page Page
Hamilton u. St. Louis County Court 69, lardeman v. Downer
101 larden v. Cumstock 634
v. Vicksburg, &c. R. R. Co. 55, 784, iardenburg v. Lock wood 788
864, 866 3ardin v. Baptist Ch. 660
v. Wilson 708 iarding, Ex parte 496
Hamilton Co. v. Massachusetts 30 v. Alden 679, 580, 584, 585
v. Mighels 348 v. Funk 772, 823
Hamilton Co. Com'rs v. Rasche 530, 555 f. Goodlet 772, 775
Hamilton Gas Light & Coke Co. v. v. People 837
Hamilton 299, 383, 394 v. Rockford, &c.R. R. Co. 819
Hamlet v. Taylor 223 v. Stamford Water Co. 788
Hamlin v. Mack 606 rlardwick v. Pawlet 485
Meadville
v. 272, 319 Hardy v. Atchison, &c. R. R. Co. 875
Hammett v. Philadelphia 400, 704, 717, v. Brooklyn 304
719, 730 flare i: Hare 579
Hammond v. Anderson 84 v. Kennedy 745
Haines
v. 173 v. Mellor 619
v.
People 496 Harkrader v. Wadley 25, 26
v. Wilcher 891 Harley v. Montana O. P. Co. 582
Hampshire v. Franklin 268 Harlan v. People 46
Hampton v. Coffin 818 Harman v. Harwood 159
v. McConnel 43 v. Lynchburg 305
u. Wilson 644 Harmison v. Ballot Com'rs of Jeff. Co. 127
Hamrick v. Rouse 176 Harmon v. Auditor 83
Hancock, Matter of 592 v. Chicago 688, 690, 856, 859, 884
v. Louisville & N. Ry. Co. 32 v. Dreher 661
v. State 441 v. Omaha 296, 812
v. Yaden 572, 877 v. Wallace 412
Hancock Nat'l Bank v. Farnum 43 Harmony v. Mitchell 878
Hand v. Ballou 526 Harp v. Osgood 487
Hand Gold Mining Co. v. Packer 771 Harpending v. Haight 162, 220
Handle .
Chapin 852 r. Reformed Church 33
Handy v. Chatfield 410, 415 Harper Commissioners
?. 506
v. State 464 i?. Richardson 814, 815
v. St. Paul, &c. Pub. Co. 860 v. Rowe 546
Haney v. Marshall 37 Harper County Comr's v. Rose 322
Hanford v. Davis 36 Harrigan v. Lumber Co. 868
Hanger v. Des Moines 310 Harriman v. Baptist Church 661
Hang Kie, In re 286 v. Boston 363
Hankins v. Lawrence 772 Harrington v. County Com'rs 818
v. People 280 v. Miles 605
Hanley v. Donoghue 42 v. Providence 883
Hanlin v. Chicago, &c. Ry. Co. 791 v. State 466
Hanlon v. Doherty 478 Harris v. Austell 409
Hanna v. Young 9S v. Colquit
Hannel v. Smith 87 v. Dennie 30
Hannibal v. Richards 884 v. Harris 80
Hannon v. Grizzard 894, 90.- 17.
Huntington 619
v. St. Louis Co. Court 354 v. Inhabitants of Marblehead 553
Hanoff v. State 449 v. McClanahan 686
Hanover v. Turner 578, 58C v. Morris 484
Hans v. Louisiana 24, 417 v. People 209, 458
Hanscom v. Boston 36c v. Roof 197
Hansen v. Vernon 691 v. Rutledge 539
Hapgood v. Doherty 591 v. Schuylkill R. E. S. Ry. Co. 826,
v. Whitman 529 827
Happel v. Brethauer 19( 17. State 212
Happy Morton
v. 66( 17.
Terry 606
v. Mosher 58* Harrisburg, C. & C. T. R. Co. v. Har-
Happy Home Club v. Alpena Co. risburg & M. E. Ry. Co. 814
Harbaugh v. Cicott 905, 921, 932 Harris Co. v. Boyd 695
Harbeck v. New York 257 Harrison v. Baltimore 863
Harbison v. Knoxville Iron Co. 509 v. Bridgeton 267, 268, 345
Harbor Com'rs v. Pashley 69 r. Bush 610, 612, 647, 648
Hard v. Burton 68? t7. Harrison 679, 684
v. Nearing 504, 606 t7. Leach 95
TABLE OF CASES. Ivii
Page Page
Harrison Metz
v. 629 Hatheway v. Sackett 263, 267
v. Morton '28 Hatlion v. Lyon 613
v. New Orleans, &c. Ry. Co. 798 Hathorne v. Panama 456
v. Sager 86 Hatzfield v. Gulden 198
v. Stacy 622 Hauenstein v. Lynham 25
r. State 237 Haugen v. Albina Light & W. Co. 877
v. Supervisors 206, 209 Hausenfluck v. Commonwealth 436
v. Willis 617 Harvard v. Day 748
Harrison Justices v. Holland 266 Haverhill Bridge Props, v. County
Harrodsburg v. Renfro 291 Commissioners 814
Harrow v. Myers 87 Haverly I. M. Co. v. Howcutt 689
Hart v. Albany 292, 830, 878 Hawbecker v. Hawbecker 89
v. Bostwick 623 Hawes v. Chicago 290
v. Bridgeport 305 v. Miller 915, 925
v. Brooklyn 358, 860 Hawk v. Marion Co. 310
v. Evans 919 Hawker v. New York 890
v. Henderson 527 Hawkins v. Barney's Lessee 387
v. Holden 331 v. Carrol 91
v. Jewett 81 v. Commonwealth 266
v. State 382 v. Governor 132, 162, 228
v. Von Gumpach 629 v. Jones 80
Harteau v. Harteau 680 v. Lumsden 644
Hartford v. State 606 v. Mangrum 706
Hartford Bridge Co. v. Union Ferry v. Ragsdale 684
Co. 237, 263 Hawthorn v. People 886
Hartford F. Ins. Co. v. Chicago M. Hawthorne v. Calef 392, 407, 415
& St. P. Ry. Co. 32, 833 Hay v. Cohoes Company 773, 786
v. Reynolds 478 Hay den v. Foster 749
Hartland v. Church 719 v. Goodnow 265
Hartman, Ex parte 496 r. Noyes 281, 287, 291
v. Aveline 39 Hayes v. Appleton 285
v. Greenhow 85, 386, 403 Ex parte 890
Hartman Steel Co., Appeal of 703 r. Douglas County 731
Hartranft's Appeal 162 v. Holly Springs 322
Hartt v. Harvey 935 v. Missouri 19, 459
Hartung v. People 379, 473, 616, 544 v. Pratt 27
Harvey v. Com'rs Rush Co. 388 v. Press Co. 638
v. Farnie 580 v. Reese 80
v. Lackawanna R. R. Co. 781, 785, Haynes v. Burlington 757
823 v. Thomas 785
v. Tama Co. 924 Hays v. Brierly 666
v. Thomas 237, 608, 765 v. Risher 778
Harward v. St. Clair, &c. Drainage Hay wood v. Savannah 278
Co. 643 Hazen v. Essex Company 772
Harwood v. Astley 624 v. Lerche 262
v.Bloomington 826 Head v. Amoskeag Co. 773
Hasbrouck v. Milwaukee 313, 337, 338, v. Daniels 688
642 v. Providence, &c. R. R. Co. 323
v. Shipman 414 Head Money Cases 25, 686, 832, 858
Haskel v. Burlington 656 Health Dept. v. Rector of Trin.
Haskell, Re 288 Church 671, 880
v. New Bedford 232, 251, 780 Heard v. Brooklyn 796
Hastings v. Lane 629 v. Heard 223
v. Lusk 633 Hearn v. Brogan 217
Hastings & G. I. R. R. Co. v. Ingalls 803 Heath, Ex pnrte 114, 926, 929, 933, 935
Haswell's Case 613 Heather Children, Matter of 497
Hatch v. Lane 611, 612 Hechinger v. Maysville 286
v. Stoneman 162 Hector v. State 445, 469
v. Vermont Central R. R. Co. Hedderich v. State 845
783, 807, 826 Hedgecock v. Davis 104
Hatcher State
v. 655 Hedges v. Dixon County 320, 822
v.Toledo, &c. R. R. Co. 629 v. Madison Co. 865
Hatcheson w. Tilder 932 Hedley v. Com'rs of Franklin Co. 263
Hatchett v. Mount Pleasant Ch. 661 Hegarty's Appeal 144, 149
Hatfleld v. Commonwealth 177 Hegeman v. Western R. R. Co. 835, 838
Hathaway v. New Baltimore 209 Heilbron, Ex parte 287
Iviii TABLE OF CASES.
Page Page
Heilbron, Estate of 409 Hess v. Johnson 411
Hein v. Davidson 607 v. Pegg 86, 182, 266, 267
Heinlein v. Martin 81 v. Werts 636
Heiss v. Milwaukee, &c. Ry. Co. 791 v. White 460
Hekking v. Pfaff 40 Hessler v. Drainage Com'rs 643
Heldt v. State 446, 449 Heth v. Fond du Lac 304
Helena v. Dwyer 289 Hewison v. New Haven 304, 346, 360
v. Gray 284 Hewitt v. Normal School District 262
v. Thompson 362 v. Prince 478
Helena Cons. Water Co. Steele v. 335 Hewitt's Appeal 722
Heller v. Atchison, &c. R. R. Co. 648 Heydenfeldt v. Towns 695
v. Sedalia 301 Heyfron, Ex parte 683
Helverstine v. Yantes 691 Hey Sing Jeck v. Anderson 431
Ileman v. Allen 731 Heyward, Matter of 40
Hendershot v. State 818 v. Judd 406, 413
Hendershott v. Ottumwa 296 v. New York 232, 251, 754, 801, 809
Henderson v. Griffin 31 Hibbard v. People 431, 850
v. Hey ward 289 v. State 233
v. Lambert 726 Hibbard S. B. & Co. v. Chicago 299
v. McClain 784 Hibernia R. R. Co. v. Camp 776
v. Minneapolis 783, 786 Hickerson v. Benson 924
v. New York 688 Hit-key v. Hinsdale 114
. Oliver 751 Hickie v. Starke 30
Henderson Petitioner in State v. Hickman's Case 765
Evans 474 Hickman v. Kansas City 754, 815, 824
Henderson's Distilled Spirits 429, 748 Hickok v. Plattsburg 357
Henderson's Tobacco 217 Hickox v. Tallman 625, 526
Henderson Bridge Co. v. Henderson 691 Hicks v. Steigleman 621
v. Kentucky 692 Higert v. Green Castle 363
Hendrick's Case 46 Higginbotham v. State 460
Hendrickson v. Decow 661 Higgins v. Berg 900
v. Hendrickson 223, 224, 258 v. Chicago 818, 819
Henisler v Freedman 433 v. Farmer Ins. Co. 65, 590
Henke v. McCord 259 v. Lime 686
Henkel v. Cincinnati 30 High v. Coyne 708
v. Detroit 304 v. Shoemaker 606
Henley v. Lyme Regis 356, 361 High's Case 908
Henneberger, Re 183 Highland Ave. & B. R. Co. v. Mat-
Hennersdorf v. State 859 thews 828
Hennepin Co. v. Bartleson 860 High School Dist. No. 137 v. Lan-
Hennessy v. St. Paul 883 caster Co. 707
Hennington v. Georgia 852, 859 Hightower v. Bailey & K. 616
Henry v. Chester 743 Hightstown v. Glenn 183
v. Deitrich 661 Highway Com. v. Ely 302
v. Dubuque & Pacific R. R. Co. v. Martin 303, 356
808, 817, 822 Hilands v. Commonwealth 469
v. Henry 209, 409 Hilbish v. Catherman 333
v. Tilson 101 Hildreth v. Lowell 770, 861
Henshaw v. Foster 123, 911 v. Mclntyre 898
Hensley v. Force 42 Hill, Ex parte 494
Hensley Township v. People 704 v. Boston 302, 305, 355
Hensoldt v. Petersburg 194 v. Boyland 118
Henson v. Moore 614 v. Charlotte 301
Kenwood v. Harrison 628, 649 v. Commissioners 209
Hepburn v. Curts 615, 634 v. Higdon 717, 728, 730, 734, 742, 745
Page Page
Hill v. Wella 594 Hoisington 17.
Hough 252
Hill's Case 452 Hoke Henderson
v. 603
Hillebert v. Porter 414 Holbrook v. Finney 613
Billiard v. Connelly 138 v. Murray 42
v. Miller 540 Holden v. Hardy (14 Utah) 456,457,605,
v. Moore 412 570, 891
Hills v. Chicago 102, 121, 236 v. James 237, 621, 658, 659
Hiimnan v. Warren 64 v. Minn. 376
Himmelman v. Carpenter 625 Holder v. Aultmann M. & Co. 178
Hinchman t>. Paterson Horse R. R. v. State 463
Co. 800, 805, 806, 867 Holland v. Com'rs of Silver Bow
v. Town 577 Co. 720
Hinckley v. Somerset 358 v. Davis 921
Hind v. Rice 209 17. Dickerson 406
Hinde v. Vattier 33 v. Osgood 113
Hindman v. Piper 149 v. State 133
Hines v. Charlotte 301 Hollenbeck v. Winnebago Co. 305
v. Leaven worth 717, 730 Holley v. Burgess 606
v. Lockport 304, 363 Hollida v. Hunt 12
Hingham, &c. Turnpike Co. v. Nor- Holliday v. Ont. Farmers', &c. Co. 610
folk Co. 232 Hollingsworth v. Duane 454
Hing v. Crowley 258 Hollis v. Meux 630
Hingle v. State 203, 205 Hollister v. Hollister 579, 580
Hinkle, In re 898 i7. Union Co. 549
Hinman o. Chicago, &c. R. R. Co. 842 Holloway v. Sherman 406, 515
Hinsou v. Lott 690 Hoi man v. School Trustees 263
Hinton v. State 435 Holman's Heirs v. Bank of Norfolk 144,
Hintrager v. Mahoney 750 583, 584
Hintz v. Michigan C. Ry. Co. 454 Holmes, Ex parte 41
Hipp v. Charlevoix Co. Superv. 937 v. Holmes 403, 585
Him v. State 217, 399, 400 v. Jennison 30, 41
Hiss o. Bartlett 190 Holt i7. Downs 660
v. Railway Co. 802 v. State 379, 467
Hite i7. Hite 569 Holt's Appeal 275
Hoag v. Hatch 605 Holton v. Com'rs Mecklenburg Co. 707
v. Switzer 785 v. Milwaukee 728, 822, 823
Hoagland v. Creed 589 Holyoke Co. v. Lyman 394, 565
Hoar v. Wood 632, 633, 647 Home v. Bentinck 630
v. Silverlocke 637 Home Building, &c. Co. v. City of
Hobart v. Supervisors, &c. 166, 167, 237 Roanoke 784
Hobbs & Johnson, Ex rel. 551 Home Ins. Co. v. Augusta 283, 404
Hoboken v. Phinney 744 17.
Swigert 166, 707
Hocking Valley Coal Co. v. Rosser 556, 17.
Taxing District 216
571 Home Ins. & T. Co. v. Tennessee 397
Hodge v. Linn 913, 929 Home & C. v. Wilkinsburg 718, 741
Hodges v. Bait. Pass. Ry. Co. 794 Home of the Friendless v. Rouse 395
v. Buffalo 270, 310 Homer v. Commonwealth 217
v. Crowley 318 Homestead Cases 408
Hodgkins v. Rockport 263 Hong Wah, In re 286
Hodgson v. Milward 618, 519 Hood t7. Finch 818
v. New Orleans 710 i\ Lynn 310
v. Scarlett 632 f. State 42, 580
v. Vermont 22, 456, 505 Hook 17. Hackney 606, 628
Hoefling v. San Antonio 718 Hooker v. Hooker 138
Hoffman v. Circuit Judge 483 v. New Haven, &c. Co. 781 786, 787,
,
Page Page
Hopkins v. Baker Bros. 720 Howard v. Thompson 619
v. Duluth 166 v.Worcester 802
v. Hopkins 679 v. Zeyer 653
v. Lewis 848 Howard County, Division 201, 210, 267
of,
Hopple v. Brown 272, 323, 348 v. State 627
Hopps v. People 437 Howe, Re 708
Hopson, In re 494 v. Plainfleld 690
Hopt v. Utah 447, 452, 469 Howell v. Bristol 725, 729
Horbach v. Miller 522 v. Buffalo 338
Horn v. Atlantic, &c. R. R. Co. 841, 842 v. Fry 690
v. Chicago, &c. R. R. Co. 843 v. State 209, 555
Horn Silver Mining Co. v. New York 179, Howes v. Crush 610, 548
180 Howison v. Weeden 81, 82
Home v. State 410 Howland v. Maynard 610
Horstman v. Kaufman 442 v. School Dist. 769
Horton v. Baptist Church 661 Hoxie v. Wright 42, 683
v. Watson 895 Hoyt v. East Saginaw 728, 730
Hoskins v. Brantley 895 v. Hudson 363
Hosmer Loveland
v. 620, 630, 686 v. People 474
Hospes v. O'Brien 854 v. Shelden 30
Hotchkiss v. Oliphant 642, 644 v. Sprague 144
Hot Springs R. R. Co. v. Williamson 811 Hubbard v. Bell 862
Hottentot Venus Case 494 v. Brainerd 618, 629
Houdayer's Estate, lie 21, 720 v. Patterson 292
Houghton v. Huron Copper M. Co. 312 v. Taunton 310
v. Page 62 Hubbell v. Hubbell 679, 584
Houghton Co. Sup'rs v. Blacker 931 v. Viroqua 301
Houlton v. Nichol 196 Huber v. People 209
House, Re 696 v. Reily 372, 374, 502, 902
v. White 477 Huckle v. Money 434
House Bill, In re 706 Huddleston Admx. v. Eugene 804
No. 99, Re 73 Hudelson v. State 464
No. 1230, Re 886 Hudson v. Geary 285, 675, 859
No. 1291, Re 010 v. State 469
Householder v. Kansas City 121 v. Thorne 283, 288
Houseman v. Kent Circ. Judge 130, 531 Hudson Tel. Co. v. Jersey City 295
House of Refuge v. Ryan 423 Hudspeth v. Davis 414
Houston, Re 689 Huesing v. Rock Island 271
v. Moore 13, 46 Huff v. Bennett 688, 644
v. Stafe 606, 878 v. Cook 896
Houston, &c. R. R. Co. v. Odum 194, 791 Huffmire v. Brooklyn 784
Houston & E. T. Ry. Co. v. Adams 826 Hughes, Matter of 39
Houston & T. C. Ry. Co. v. State v. Auburn 302
(90 Tex.) 884 v. Baltimore 304
v. Texas (170 U. S.) 384 v. Cannon 639
v. Texas (177 U. S.) 35, 386 t;.
County of Monroe 305
v. Texas & P. Ry. Co. 392 v. Hughes 104
Houston D. Nav. Co. v. Ins. Co. of v. People 280
N. A. 848, 852 v. Recorder's Court 285
Houston E. & W. Ry. Co. v. Camp- Hughey's Lessee v. Horrell 546, 719
bell 848 Ruling v. Kaw Valley Ry. Co. 818
Hovelman v. Kansas City 387, 391 Hull v. Homer 277
Hover v. Barkhoof 259 v. Hull 679, 684
Hovey v. Elliot 455, 669 v. Marshall Co. 324
v. State 105, 158, 221 v. Miller 184
Howard, Ex'parte 161 Hulseman v. Reins 903, 939
v. Church 728 Humboldt v. Long 321
v De Cordova
. 40 Humboldt Co. v. Churchill Co.
v. McDiamid 266, 939 Com'rs 206, 258
v. Moot 409 Hume v. Commercial Bank 692
t>. San Francisco 801 v. New York 358
v. Schneider 212 Humes v. Mayor, &c. 296
v. Shields ,
929 v. Tabor 430
v. Shoemaker 895 Humphrey v. Pegues 395
v. Skinner 903 Humphries v. Brogden 831
v. State 99 Hunckel v, Voneiff 629
TABLE OF CASES. Ixi
Page
Hungerford's Appeal 80 Igoe v. State 209
Hung Hang, Ex parte 495 jams v. Duvall
1 100
Hunsaker v. Wright 176, 742, 743 Illinois, &c. Co. v. Peoria Bridge 865
Hunscom v. Hunscom 616 Illinois & Mich. Canal v. Chicago &
Hunt v. Bennett 620, 623, 624, 656 It. I. R. R. Co. 399
v. Boonville 305 Illinois Cent. R. R. Co. v. Arnold 842
v. Iowa Cent. Ry. Co. 826 v. Chicago (138 111.) 763
0. Lucas 518 v. Chicago (141 111.) 806
v. Murray 226 v. Chicago, &c. R. R. Co. 807
v. State 195, 218, 464 v. Decatur 741
Hunt's Lessee v. McMahan 553 v. Ihlenberg 121
Hunter, Ex parte 372 v. Illinois 851
v. Cobb 685 v. Irvin 396
v. Moore 667 v. McLean 742
v. Nolf 924 v. People 394, 840
Hunting v. Johnson 514 v. Willenborg 839
Huntington v. Attrill 43 v. Wren 195
v. Cheesbro 286 Illinois Conf. Fern. Col. v. Cooper 278
Huntsville v. Phelps 284 Illinois G. T. Ry. Co. v. Wade 320
Huntzinger v. Brock 406 Ilsley v. Nichols 425
Hurford v. Omaha 112, 114 Imlay v. Union Branch R. R. Co. 792, 795
Hurley v. Powell 751 Indiana Cent. R. R. Co. v. Potts 119, 205,
v. Van Wagner 924 206, 207, 213
Hum, Ex parte 424 Indianapolis v. C. Gas T. Co. 298
Huron, Re 455 v. Holt 731
v. Second Ward Natl. Bk. 322 Indianapolis, e. R. R. Co. v. Kerche-
Huron Water Works Co. v. Huron 342 val 399, 830, 836, 841, 842
Hurst v. Smith 496 v. Smith 786
v. State 467 v. Townsend 841, 842
v. Warner 272, 873 Indianapolis, B. & W. Ry. Co. v.
Hurtado v. California 436, 4o6, 505 Eberle 786, 791, 797
Huse v. Glover 65, 688, 691, 864, 865 Indianapolis Sun v. Horrell 606
v. Merriam 748 Indianapolis U. Ry. Co. v. Houlihan 889,
Huson v. Dale 608 891
Hussey v. Davis 431 Ingalls v. Cole 89
Hussman v. Durham 683 Inge v. Police Jury 769
Huston v. Wadsworth 46, 589 Ingersoll v. Nassau Elec. Ry. Co. 392
Hutcheson v. Peck 485 Inglee v. Coolidge 30
v. Storrie 731 Inglis v. Sailors' Snug Harbor 33
Hutchinson v. Brown 899 v. Shepherd 921
v. Concord 301 Ingraham v. Geyer 178
v. Lewis 629 v. Regan 85
v. Olympia 856 Ingrum v. Colgan 696
v. Parkersburg 812 Inman v. Foster 644
v. Wheeler 608 v. Tripp 304
Hutchinson & S. R. Co. v. Fox 322 Inman Steamship Co. v. Tinker 691
Hutson v. New York 356 Innis v. Bolton 902
Hutton v. Camden 883 Inst. for Ed. Mute, &c. v. Henderson 188
v. State 263 Insurance Co. v. Morse 567
v. Webb 697 v. Ritchie 544
Huus v. New York & R. R. S. Co. 12 v. Treasurer 30
?'. Yard
Hyatt v. Bates 80 743
v. Rondout 357 Intendant of Greensboro' v. Mullins 280
v. Taylor 89 International T. B. Co. v. Weissin-
Hyde v. Brush 906 ger 889
i>.
Cogan 346 Inter Ocean P. Co. v. Associated
r. Jamaica 303 Press 877
v. Melvin 925 Inter State Com. Conn. 23
v. White 219 Intoxicating Liquors, In re 849
Hydes v. Joyes 294 Invest. Com., In re 620
Hylton v. United States 680 Investment Co. v. Carpenter 127
Inwood v. State 456
I. Iowa C. Ry. Co. v. Iowa 20, 22
Iowa Life Ins. Co. v. Lewis 563
Idaho v. Rasmussen 854, 881 Iowa R. R. Land Co. v. Soper 521, 555
leek v. Anderson 518 Iowa Sav. & L. Ass'n v. Heidt 637
Ixii TABLE OF CASES.
Page Page
Ireland Mackintosh
v. 622 Jane v. Commonwealth 46
v. Turnpike Co.
231, 414 Janes v.
Reynolds 504
Iron Mountain Co. v. Haight 219 Janesville v. Carpenter 787, 837
Iron Mountain R. R. Co. v. Binghaiu 797 Janson v. Stuart 606
Iron R. R. Co. v. Ironton 777 January v. January 413
Irons v. Field 606 Janvrin, Re 131
Irrigation Resolution, In re 73 v. Exeter 310
Irwin v. Great Southern Tel. Co. 804 Jarnagan v. Fleming 608
Isenhour v. State 253 Jarvis v. Hatheway 619, 630
Isham v. Fullager 661 Jaynes v. Omaha S. Ry. Co. 803
v. Trustees 661 Jefferson Branch Bank v. Skelley 35, 62
Isom v. Mississippi, &c. R. R. Co. 247 176
Israel v. Arthur 151, 646 Jefferson City *-. Courtmire 281
Ivanhoe v. Enterprise 729 Jeffersonville, &c. R. R. Co. v. Dun-
Iverson v. State 217 lap 217
v. Hendricks 38
v. Nichols 842
J. v. Parkhurst 842
Jeffrey v. Brokaw 751
Jack v. Thompson 681 Jeffries v. Ankeny 664, 927
Jackson, Ex parte 432, 433 v. Harrington 896
In re 40 v. Lawrence 271
Matter of 490, 494 v. Williams 831
v. Butler 411 Jeliff v. Newark 719
v. Chew 33 Jenkins, Ex parte 492
v. Commonwealth 450, 452 v. Andover 313
v. Hathaway 810 v. Ballantyne 574
v. Jackson 679, 585 v. Charleston 694
v. Lyon 515 v. Ewin 94
v. Munson 371 v. Jenkins 614
v. Newman 283, 709 v. Thomasville 281
v. Nimmo 129 v. Waldron 927
v. Reeves 209 Jennings v. Brown 911
v. & B. R. R. Co.
Rutland 810, 842 v. Coal Ridge Imp. & Coal Co. 16
v. Shaw 183 v. Paine 629, 633, 634
i-. Vedder 82 v. Stafford 685
v. Walker 924 Jensen v. Union Pac. Ry. Co. 842
v. Winn's Heirs 814 Jentzsch, Ex parte 837
v. Young 114 Jernigan v. Madisonville 163
Jackson Iron Co. v. Auditor-General 687 Jerome v. Ross 766
Jackson, &c. R. Co. v. Interstate, &c. Jersey City v. Elmendorf 213
Co. 299 v. Kiernan 363
Jacksonville v. Drew 362 J. E. Rumbell, The 26
.Led with 885, 887, 888 Jesler v. Bd. Harbor Com'rs 30
Jacksonville El. Lt. Co. v. Jackson- Jessup v. Carnegie 180
ville 696 Jett v. Commonwealth 46
Jacksonville, T. & K. W. Ry. Co. v. Jewett v. New Haven 301
Adams 460 Joannes v. Bennett 611, 612
Jacob v. Louisville 824 Jockleck v. Shawner Co. Com'rs 756, 759
Jacobs, In re 886 John v. C. R. & F. W. R. R. Co. 167
v. Cone 452 John & Cherry Streets, Matter of 608, 764
v. Marks 43 John Hancock M. L. Ins. Co. v.
v. Small wood 414 Warren 886
Jacoway v. Denton 62, 405 Johns v. State 451, 676
Jacques v. Litle 389 Johnson v. Atlantic, &c. R. R. Co. 757
Jahn, Re 691 v. Beazley 80
James v. Commonwealth 46 v. Bentley 636
v. Pine Bluff 281, 860 v. Bond 410
v. Rowland 136 v. Bradstreet Co. 61 1
Page Page
Johnson v. Fletcher 408 Jones v. People 846, 849
v. Gebhaner 521 v. Perry 134, 141, 146, 148, 603
v. Goodyear Min. Co. 660 v. Richmond 265, 309, 878
v. Higgins 207, 268, 404, 414 v. Robbins 249, 591
v. Hudson R. R. Co. 89 v. Skinner 903
v. Joliet & Chicago R. R. Co. 107, 258 v. State 908
382, 478,
v. Jones 517, 618 v. Surprise 849
178, 846,
v. Loper 691 v. Thompson 213 212,
v. Martin 173 v. Townsend 624 603,
v. 121; 784 v. Weathersbee 80
Parkersburg
v. People 206, 904 v. Williamsburg 301
.
Philadelphia .2, 283, 710 Jonesboro v. Cairo, &c. R. R. Co. 206
v. Powers 44 Joplin Consol. Mining Co. v. Joplin 778
v. Railroad Co. 182 Jordan v. Bailey 99
v. Rich 171 v. Benwood 304, 782
v. Richardson 538, 544 v. Moore 692
v. San Diego 269 v. Woodward 772
v. School District 262 Jordan's Case 444
v. Spicer 207 Joseph v. Randolph 693
v. Stack 167 Joslyn v. Detroit 362
v. Stark Co. 325 Journeay v. Gibson 638, 641
v. State (59 N. J.) 159 Joy v. Grindstone-Neck Water Co. 828
v. State (1 Tex. App.) 451 v. St. Louis 396
v. State (10 Tex.) 437 v. Thompson 416
v. State (29 Ark.) 470 Joyce v. Woods 884
v.Taylor 538 Joyner v. School District 748
Wallace
v. 589 Judd v. Judd 544
Johnson Co. v. January 321 Judefind v. State 860
John Spry Lumber Co. v. Sault Sav- Judkins v. Hill 932
ings Bank 508 Judson v. Bridgeport 761
Johnston v. Commonwealth 236, 675 v. Reardon 283, 484
v. Dist. Columbia 302 Jugiro v. Brush 16
v. Louisville 272 Julia Bldg. Ass. v. Bell Tel. Co. 787
v. Old Colony R. Co. 809 Julieu v. Model B. & L. I. Co. 237
v. Riley 39, 40 v. Woodsmill 808
Johnstone v. Sutton 631 Justice v. Commonwealth 400
Joliet v. Harwood 302, 362 Justices v. Fennimore 694
v. Verley 304 v. Murray 46
Joliet, &c. R. R. Co. v. Jones 842
Jolly v. Hawesville 305
v. Terre Haute Drawbridge Co. 54, K.
866
Jones v.Black 232 Kahn Sutro
v. 99
v. Boston 728, 736 Kaine, Matter of 495
r. Brim 16, 22 v. Commonwealth 657
v. Carter 653 Kalloch v.Superior Court 436, 506
v. Cavins 224 Kaminitsky v. R. R. Co. 843
v. Columbus 209 Kane v. Baltimore 769
v. Darnall 497 v. Commonwealth 464
v. Davis 215 v. Cook 42
v. Driskell 682 v. N. Y. E. Ry. Co. 801
v. Duncan 669 v. People 474
v. Erie & W. V. Ry. Co. 803,811 Kansas v. Ziebold 690
v. Fletcher 430 Kansas City v. Baird 729
v. Galena, &c. R. R. Co. 841 v. Clark 232
v. Harris 677 v. Corrigan 278
v. Hutchinson 186, 193, 194, 221 v. Huling 618
v. Jones 18 Ala.)
( 622 v. Ry. Co. 231
r. Jones (104 N. Y.) 249 v. Whipple 706, 894
v. Jones (2 Overt.) 156, 376 Kansas City, &c. Ry. Co. Pettes
,
763
v. Jones (12 Pa. St.) 156, 259 Kansas City, St. J., &c. R. R. Co. v.
v. Keep's Estate 684 St.Joseph, &c. Co. 811
v. Leonard 39, 40 Kansas City, St. J. & C. B. Ry. Co.
v. Meehan 612 v. Terminal Ry. Co. 754
v. Nebraska 262 Kansas, N. & D. Ry. Co. v. Cuyken-
v. New Haven 366, 361, 363 dall 787
Ixiv TABLE OF CASES.
Page Page
Kansas Pacific R. R. Co. v. Mower 841 Kendall, Ex parte 439
Karney v. Paisley 625 In re 898
Katzenberger v. Aberdeen 320 v. Canton 388
v. Larvo 279 v. Dodge 617
Kauclier v. Blinn 606 v. Kingston 73, 253, 625
Kaufman v. Dostal 850 v. State 469
Kauffman v. Tacoma, O. & G. H. v. United States 48
Ry. Co. 803 Rendition v. Maltby 620
v. Wooters 16 Kendricks v. State 451
Kaukauna W. P. Co. v. Green Bay Kennard v. Louisiana 20
& M. Canal Co. 32, 769, 782 Kennebec Purchase v. Laboree 509
Kayser v. Bremen 363 Kennedy, Ex parte 174, 860
Kaysville City v. Ellison 721, 759 In re 408
Kean v. McLaughlin 631 v. Board of Health 883
v. Stetson 862 v. Insurance Co. 614
Kearney, Ex parte (55 Cal.) 495 v. McCarthy 83
Ex parte (7 Wheat.) 495 v. Phelps 854, 883
Kearns v. Howley 899 v. Sacramento 110
Keasy v. Louisville 296 Kennedy's Case 161
Keating v. Cincinnati 304 Kennett's Petition 781, 785
Keator L. Co. v. St. Croix B. Co. 865 Kennisen v. Beverly 304
Keddie v. Moore 590, 591 Kent v. Bongartz 618
Kedrolivansky v. Niebaum 607 v. Kentland 711
Keeler, Ex parte 456, 471, 474 t>. Worthington Local Board 356
Keen v. State 376, 382 Kentish Artillery v. Gardiner 592
Keen an v. Cook 906 Kentucky v. Dennison 39, 40, 41
Keene v. Clarke 30 Kentucky R. R. Tax Cases 19
Keese v. Denver 736 Kentworthy v. Ironton 363
Kehrer v. Richmond 304, 783 Kenyon v. Stewart 406
Keith v. Clark 386 Keokuk v. Packet Co. 65
v. Keith 534 Keokuk & H. Bridge Co. v. Illinois 691
v. Kellogg 589 Keokuk N. L. Packet Co v. Keokuk 247
v. State 848 Keokuk & W. Ry. Co. v. Missouri 397
v. Ware 517 Ker v. Illinois 81, 40, 41
Keller v. Corpus Christi 757 Kermott v. Ayer 62
v.State 209 Kerr, Matter of 398
Kelley v. Boston, &c. R. R. Co. 629 v. Dougherty 180
v. Corson 748, 750 v. Jones 895
v. Minneapolis 318 v. Kerr 679
v. Partington 607 v. Kitchen 146, 149
v. Pike 81 v. Union Bank 80
v. Rhodes 690 Kerrigan, Ex parte 454
v. Schuyler 425 Kershaw v. Bailey 619
v. Sherlock 627, 648 Kersten v. Milwaukee 731
Kellinger v. Railroad Co. 794 Kerwhacker r. Cleveland, &c. R. R.
Kellogg, Ex parte 496, 587 Co. 788
v. Hickman 903, 911, 934 Ketchara v. McNamara 416
v. Janesville 356 Ketchum v. Buffalo 270
v. Oshkosh 175 Kettering v. Jacksonville 363, 845
v. State Treasurer 254 Kettle Riv. Ry. Co. v. Eastern Ry.
v. Union Co. 865 Co. 763, 767
Kelly v. Bemis 259 Keymer, Re 158, 159
v. Flaherty 607 Keyser v. Stansifer 660, 661
v. Marshall 311, 333, 705 Kibbe v. Kibbe 41
v. McCarthy '
615 Kibby v. Chetwood's Adm'rs 146
v. Meeks 183, 253, 265 Kibele v. Philadelphia 362
v. Milan 320 Kidd v. Pierson 848, 849
v. Minneapolis 297 Kidder v. Parkhurst 629, 630
v. People 474 Kieffer, Ex parte 854
v. Pittsburgh 46, 606, 722 Kiehe v. South Bend 321
v. Tinling 627, 628, 648 Kies v. Lowery 65
v. United States 177 Kilbourn, Matter of 193
Kelseyv. King 800 v. Thompson 190, 193
Kemmter, Re 473 Kilburn v. Woodworth 41, 583
Kemp, In re 454 Kile v. Montgomery 574
Kemper v. McClelland 748, 749 Kiley v. Kansas City 302
TABLE OF CASES. Ixv
Page Page
Kilgore Commonwealth
v. 217 King, The, v. Newman 644
v. Magee 183 v. Paine 612
Kilham v. Ward 927 17.
Parry 932
Kilpatrick v. Smith 162 i;.
Partridge 445
Kimball v. Alcorn 864, 898, 928 v. Richards 447
v. Grantsville City 74, 721 v. River 443
v.Kimball 679 v. Rosewell 884
r.Rosendale 645, 751 v. Simpson 445
Kimble v. Whitewater Valley Canal 819 v. Smith 443
Kimbro v. Bank of Fulton 623 . St.Olaves 904
Kimmish v. Ball 38, 881 v. Sutton 139
Kincaid v. Hardin 305 v. Taylor 671
v. Indianapolis N. G. Co. 791, 804 i?. Thomas 445
Kincaid's Appeal 176, 295, 881 v. Tizzard 894
Kindel v. Beck & P. L. Co. 180 v. Tubbs 424
Kine v. Defenbaugh 121 v. Waddington 671, 673
v. Sewell 630 v. Walkley 445
King v. Belcher 623 v. Webb 443
v. Burdett 688 v. Withers 931
v. Cross 20, 43, 605 v. Woodfall 652
v. Davenport 285, 878, 884 v. Woolston 671, 673
v. Dedham Bank 132, 392 v. Younger 84
v. Hayes 506 Kingley v. Cousins 416
t7.
Hopkins 689 Kingman, Re 131, 267, 697, 713, 741
v. Hunter 99, 389 Brockton
v. 696
v. Moore 223 Kingman Co. Com'rs v. Leonard 21
v. Mullens 21, 749 Kingshury's Case 40
v. Patterson 611 Kingsland v. Mayor, &c. 566, 787, 822
v. Portland 732 Kinkead v. McKee 661
v. Reed 169 Kinmundy v. Mahan 294
v.Root 623, 628, 642, 644, 656 Kinne v. Hinman 689
v. Wilson 34 Kinneen v. Wells 908
King, The, v. Abington 650 Kinney, Ex parte 557
v. Almon 453 v. Beverley 503
v. Bailie 648 Kinney 's Case 657
v. Bedford Level 897 Kinsworthy v. Mitchell 748
v. Campbell 609 Kip y. Patterson 283, 285
w. Carlile 638, 671 Kipp v. Elwell 670
v. Chancellor of Cambridge 581 Kirby v. Boylston Market 286
v. Clement 643 v. Pennsylvania R. R. Co. 842
v. Clewes 445 v. Shaw 242, 337, 338, 679
v. Cooper 447 Kirk v. Nowill 292
v. Cox 84 v. Rhodes 911
v. Creevey 650 v. State 459
v. l)eMannville 497 Kirkman v. Bird 617
v. Dunn 445 Kirkpatrick v. Eagle Lodge 619
v. Ellis 443 Kirthind v. Hotchkiss 18, 20, 568, 679
v. Enoch 445 Kisler v. Cameron 936
v. Fisher 638, 640 Kistler v. State 466
v. Fletcher 473 Kistner v. Indianapolis 301
v. Foxcroft 893, 931, 932 Kittanning Coal Co. v. Common-
17. Gardner 361 wealth 707
v. Hagan 452 Klein v. New Orleans 270
v. Hawkins 932 v. Valerius 129
v. Howes 447 Kleinschmidt v. Dumphy 458
v. Inhal). of Hardwick 350 Kleizer v. Symmes 619
v. Inhab. of Hipswell 110 Klewin v. Bauman 607
v. Inhab. of St. Gregory 1 10 Klinck v. Colby 610, 619
v. Inhab. of Woburn 350 Kline v. Kline 684
v. Kingston 445 Kling v. Fries 850
v. Lee 638 Klingler v. Bickel 878
v. Lewis 443 Klumph v. Dunn 605
r. Locksdale 110 Knapp w. Grant 338, 542
.
Mayor of Stratford on Avon 276 v. Thomas 161
v. Miller 652 Knapp, Stout, &c. Co. v. McCaffrey 23
v. Monday 932 Kneass's Appeal 149
Ixvi TABLE OF CASES.
Page Page
Knee v.Baltimore City P. Ry. Co. 87 Kuhns v. Kramis 212
Kneedler v. Lane 18 Kulp v. Flemming 32
Kneedler v. Norristown 286, 292 Kundinger v. Saginaw 548
Kneeland v. Milwaukee 84, 87, 108, 742 Kunkle v. Franklin 542
v. Pittsburgh 769 Kuntz v. Sumption 712
Kneetle v. Newcomb 252 Kunz v. Troy 362
Knight v. Begole 629 Kurtz v. People 206, 207, 209, 859
v. Foster 608, 644 Kuykendall v. Barker 907, 929
v. Gibbs 608 Kyle v. Jenkins 372
Kniper v. Louisville 272 v. Malin 272
Knisely v. Cotterel 707, 887 v. Texas & N. O. Ry. Co. 763, 766
Knobloch v. Chicago, &c. Ry. Co. 285
Knoop v. Piqua Bank 395
Knopf v. People 184 L.
Knote v. United States 160
Knoulton v. Redenbaugh 529 Labrie v. Manchester 272
Knowles v. People 449, 564 Lacey, Ex parte 287
v. Yeates 930 v. Davis 526
Knowlton v. Moore 92, 684, 708 Lackawana Iron Co. v. Little Wolf 114
v. Williams 335, 340, 696 Lackey v. United States 901
Knox v. Bd. of Education 272 Lackland v. North Mo. R. R. Co. 266,
v. Chaloner 861 272, 788, 789
v. Cleveland 521 La Croix v. Co. Com'rs 400, 454, 548
v. Rossi 685 Lacy, Ex parte 213, 853
Knox Co. v. Aspinwall 323 v. Davis 749
v. Ninth Natl. Bk. 31, 322 v. Martin 162
Knoxville v. King 506 Ladd v. Rice 478
Knoxville Iron Co. v. Harbison 877 Laefon v. Dufoe 209
Knoxville, &c. R. R. Co. v. Hicks 128 Lafarier v. Grand Trunk Ry. Co. 870
Kobs v. Minneapolis 362 La Fayette v. Bush 296, 783
Kochersperger v. Drake 708 v. Cox 270, 271, 318, 319
Koehler v. Hill 60, 194, 195, 892 v. Fowler 296, 728, 730
v. Miller 515 v. Jenners 253
Koenig v. Chicago B. & Q. R. Co. 181, 763 v. Nagle 296
Koerper v. St. P. & N. P. Ry. Co. 828 v. Orphan Asylum 741
Koestenbader v. Pierce 825 c. Timberlake 301
Kohe v. Lehlback 22 La Fayette Plank Road Co. v. New
Kohl v. United States 755, 756 Albany, &c. R. R. Co. 785
Kohlheimer v. State 468 Lafayette, &c. R. R. Co. v. Geiger 104,
Koontz v. Franklin Co. 388
'
166
v. Nabb 85 v. Winslow 807
Kosciusco Co. v. Slomberg 290 Lafferty v. Huffman 195
Koser, Ex parte 676 v. Schuylkill Riv. E. S. Ry. Co. 788
Koshkonong v. Burton 523 Lahr v. Metr. El. Ry. Co. 799
Kountze v. Morris Aqueduct 767, 777 Lahr's Case 800
v. Omaha 259 Laing v. Ridney 44
Kraft v. Wickey 584 Lake, Matter of 527
Kramer v. Cleveland, &c. R. R. Co. 760, Lake Erie, &c. R, R. Co. v. Heath 46, 690
764 Lake Erie & Western Ry. Co. v.
v. Kister 478 Kokomo 806
Kranz v. Mayor, &c. of Baltimore 304 v. Com'rs of Seneca Co. 768
Krebs v. Oliver 606 v. Scott 785
Kreidler v. State 898 Lake Pleasanton W. Co. v. Contra
Kreiger v. Shelby R. R. Co. 30 Costa W. Co. 769
Kreitz v. Behrensmeyer 903, 904, 914, Lake Roland El. Ry. Co. v. Baltimore 297
916, 917, 919 L. S. & M. S. Ry. Co. v. Chicago 827
Kremer v. C. M. & St. P. Ry. Co. 827 v. Grand Rapids 741
Kring v. Missouri 375, 381 v. Ohio (165 U. S.) 865
Krone v. Krone 524 v. Ohio (173 U. S.) 852
Kroop v. Form an 760 v. Smith 875
Krueger v. Wisconsin Tel'ne Co. 804 Lake St. El. Ry. Co. v. Chicago 715
Kuback, Re 279 Lake Shore, &c. It. R. Co. v. Chicago,
Kuckler v. People 381 &c. R. R. Co. 754, 758, 785
Kuehner v. Freeport 715 Lake View v. Rose Hill Cemetery 268,
Knlm v. Board of Education 267 881
Common Council
. 558 v. Tate 289, 290
TABLE OF CASES. Ixvii
Page
Lake View School Trustees People 263
v. Latless v. Holmes 222
Lamar W. E. L. Co. v. Lamar 318 La uck's Appeal 415
Lamb v. Lane 120, 818 Laude v. Chicago, &c. R. R. Co. 97
v. Lynd 189 Lauer v. State 209
v. Sehotter 815 Laura, The 161
Lambert, Re 681 Laurens v. Elmore 694
Smith
v. 194 Laurence v. Ingersoll 202
Lambertson v. Hogan 137 Laval v. Meyers 924
Lamm v. Chicago M. & St. P. Ry. Co. 828 Lavalle v. Strobel 62
Lammert v. Lidwell 166, 173 Law, Ex parte 370, 372
Lancaster v. Barr 669 v.
People 120
Lance v. Dugan 42 Lawler v. Earle 612
Lancey v. Clifford 861 Lawrence, In re 612
v. King County 318, 756 v. Born 691
Lander v. Seaver 486 v. Great Nor. R. R. Co. 819
Landers v. Frank St. M. E. Ch. 661 v. Louisville 622
Landis v. Campbell 619 v. Miller 614
Landon v. Litchfield 396 v. Nelson 28
Lane v. Commonwealth 159 Lawrenceburg v. Wuest 280
v. Dorman 147, 253, 503 Lawson v. Hicks 633
. Nelson 161, 529, 531 v. Jeffries 62, 138, 660
v. Spokane Falls & N. R, Co. 424 Lawton v. Steele 22, 831, 879, 885
v. Vick 33 v. Waite 624
Lanfear v. Mayor 594 Lawyer v. Cipperly 660
Lang v. Lynch 846, 848, 849 Lay r. Sheppard 633, 653
Langan Atchison
i>, 362 Layton v. New Orleans 269, 336, 341
Langdon v. Applegate 85, 216 Lea v. Lea 80
Mayor
v. 787 v. White 630, 633
Lange, Ex parte 473 Leach, Re 130
Langenberg v. Decker 425 v. Money 434
Langford v. Fly 517 v. People 897, 898
v. Kamsey Co. 814 Leadville Coal Co. v. McCreery 27
v. United States 24 League v. Journeay 880
Langhammer Munter v. 903 Lea veil v. Western U. T. Co. 690
Langhorne v. Robinson 720 Leaven worth v. Duffy 296
Langworthy v. Dubuque 266, 721 v. Norton 272
Lanier v. Gallatas 137, 921, 930 Rankin
v. 324
Lankford v. Somerset Co. 195, 219 Leaven worth Co. v. Lang 712
Lanning v. Carpenter 364, 926 v. Miller 167, 325
v.
Christy 630 Leavitt v. Canadian P. Ry. Co. 570
Lansing v. Carpenter 629 v. Watson 751
v.Lansing 924 Lebanon v. Olcott 777
v. Smith 785 Lebanon Sch. Dist. v. Female Sem. 507
v. Stone 52 Le Barron v. Le Barren 66
v. Toolan 302 Le Claire v. Davenport 284, 887
v. Van Gorder 274 Le Due v. Hastings 739
Lantz v. Hightstown 400 Lee v. Flemingsburgh 310
Lanzetti, Succession of 208 v. McClelland 423, 485
Lapeyre v. United States 160 u. Minneapolis 296
La Plaisance Bay Harbor Co. v. ;. Murphy 161
Monroe 55 . Pembroke Iron Co. 786
La Porte v. Gamewell 318 v. Sandy Hill 356, 362
Laramie Co. v. Albany Co. 266 v. Springfield Water Power Co. 8^7
Larkin v. Noonan 618 v. State 69, 468
v. Saginaw 302 v. Rturges 738
Lamed v. Wheeler 927 v. Tillotson 251
Larrison v. Peoria, &c. R. R. Co. 194, 218 Leeds v. Camden & A. Ry. Co. 826
Larson v. Furlong 863 Leep v. St. Louis I. M. & S. Ry. Co. 672
v. Grand Forks 363 262
Leeper v. State
Lascelles v. Georgia 41 v. Texas 14, 22, 457
Lashee v. People 184, 555, 561 Leefe, Matter of 594
Lassiter v. Lee 518 Lefever v. Detroit 741
Lasure v. State 382 Lefferts v. Supervisors 711
Latah County v. Peterson 765, 767 Leffingwell v. Warren 34, 521, 523
Lathrop v. Mills 246 Legal Tender Case 14
v. Snyder 689 Leger v. Warren 425
Ixviii TABLE OF CASES.
Page Page
Legg v. Annapolis 186, 218 Lewis's Appeal 128, 237
Leggett v. Hunter 128, 146 Lexington v. Butler 321
Legislative Adjournment, Re 189 v. Long 822, 823, 824
Lehew v. Brummell 574 v. McQuillan's Heirs 717, 732
Leliigh Co. v. Hoflbrt 301 v. Thompson 65, 240, 244
Leliigh Iron Co. v. Lower Macungie 120 Lexington, &c. R. R. Co. v. Apple-
Leliigh Valley Ry. Co. v. Common- gate 791
wealth 404 Ley man v. Latimer 606
v. Dover, &c. R. R. Co. 785 Libby v. Burnham 749
v. Pennsylvania 680 License Cases 690, 831, 832, 845, 850, 881
Lehigh V. Water Co.'s Appeal 549 License Tax Cases 238. 832, 846, 851
Lehigh Water Co. v. Easton 30, 383 Lieberman v. State 454, 558
Lehman v. McBride 216, 903 Life Association v. Assessors 111
Lelm v. San Francisco 304 Ligat v. Commonwealth 817
L'Hote v. New Orleans 21, 884 Lightburne v. Taxing District. 713
Leicht v. Burlington 726 Liles v. Caster 629
Leigh v. State 936 Lillard v. State 474
Leisy v. Hardin 846, 847 Lima v. Cemetery Ass. 741
Leith v. Leith 579 Limestone Co. v. Fagley 569
Leland v. Wilkinson 134 v. Rather 114
Leloup i7. Port of Mobile 689 Lincoln v. Alexander 141, 145
848 17. Boston
Lemley v. State 302, 357
Lemmon v. Chicago, &c. R. R. Co. 841 v. Com. 804, 827
v. People 37 v. Davis 752
Lemmons v. People 118 17.
Hapgood 904, 927
v. Wells 605 v. Iron Co. 321
Lemont v. Jenks 16 v. Smith 46, 458, 591, 846, 849, 850
Lennon v. New York 516, 517, 531 ?;. Tower 42
Lent v. Tillson 22, 588 Lincoln Park, Re 815, 817
Lenz v. Charlton 506, 526 Lindenmuller v. People 859
Leominster v. Conant 736 Lindholm v. St. Paul 363
Leonard v. Commonwealth 895 Lindsay v. Commissioners 228
v. Wiseman 91 Lindsay & P. Co. v. Mullen 21, 862
Leprohon v. Ottawa 682 Lindsey v. Hill 181
Leroy & W. R. R. Co. v. Ross 825 v. Smith 606
Les Bois v. Bramel 540 Lindsley r. Coats 52
Leslie v. Bonte 82 Lindstrom v. Bd. of Canvassers 900
t>. State 470 Lindzey v. State 381
Lessley v. Phipps 408 Linehan, In re 881
Lester v. State 469 Liness v. Hesing 925
v. Thurmond 633 Linford v. Ellison 28
Levan v. Millholland 588 v. Fitzroy 439
Levee District No. 9 v. Farmer 781 Lining v. Bentham 454
Levi r. Louisville 718 Linn v. Chatnbersburg 696
Levins v. Sleator 156 i7. Minor 87
153,
Levy v. Hitsche 405 Linney v. Maton 607
t7. State 279, 280 Lin Sing v. Washburn 557,690, 725, 858
17. Superior Ct. of San Francisco 450 Linsley v. Hubbard 146
Lewis i Chapman
1
.
610,611 Linton v. Stanton 31
v. Clement 637 Lipes 17. Hand 590
v. Commissioners 936 Lippman v. People 425
p. Few 622, 624, 644 Lisbon v. Bath 745
v. Foster 537 Litchfield v. McComber 406
v Garrett's Adm'r 581 v. Vernon 698
v. Hawley 606 Litowich v. Litowich 680
v. Lervelling 100 Little, Re 41
v. Levy 637, 638, 647 v. Fitts 575
17. Lewis 415 y. Madison 305
t7. McElvain 615, 535 v. Merrill 275
v. Monson 750 t>. Smith
85, 86
17. N. Y. & H. R. Co. 800 Littlefield o. Brooks 903
v. State 19 r. State 283
V. Thornton 84 Littlejohn v. Greeley 628
v. Walter 637 Little Miami R. R. v. Collett 823
v. Webb 137, 152, 237, 521, 559 v. Dayton 758
Lewis Adm'r of Lewis v. Dunne 211, 216 Little Rock v. Katzenstein 729
TABLE OF CASES. Ixix
Page Page
Little Rock Willis
v. 304 Londener v. Lichtenheim 677
Little Kock, &c. K. R. Co. v. Payne 527, London, Mayor, Case of 490
841 Londonderry v. Andover 276
v. Brooks 861 Long r. Fuller 769, 814
v. Hanniford 566 17.
Long 927
v. McGehee 822 v. Peters 610
v. Woodruff 822 v. State 837, 885, 889
Littleton v. Richardson 581 v. Taxing District 287
v. Smith 586 Long's Case 445
Littlewort v. Davis 262 Long Island R. R. Co., Matter of 933
Live Stock, &c. Association v. Cres- Long Island W. S. Co. v.
Brooklyn, 393,
cent City, &c. Co. 863, 854 769
(See Slaughter House Cases.) Longworth v. Worthington 653
Liverman v. Roanoke & T. Ry. Co. 827 Lonthan v. Com. 603
Livermore Waite v. 96 Look v. Dean 829
Liverpool & London & Globe Ins. Co. Looker v. Maynard 394
Bd. of Assessors (44 La.
v. Loomis v. Colemau 262
Ann.) 720 v. Jackson 61, 929
t>. Bd. of Assessors (51 La.
Ann.) 719 v. Wadhams 588
Liverpool & L. L. & F. Ins. Co. v. Lord v. Chadbourne 615
Massachusetts 687 v. Litchfield 396, 547
Livingston v. Los Angeles Sup. Ct. 487 v. Steamship Co. 12
Mayor, &c. N. Y.
. 735 v. Thomas 404
v. New York 717, 728, 735 v. Wilcox 82
v. Paducah 709 Lorenzen, Ex parte 282,510
v. Rector, &c. 661 Lorillard v. Clyde 83
. Van In 49 v. Monroe 355
gen
Livingston Co. v. Darlington 337, 704 Loring v. Hildreth 609
v. Weider 337, 704 i\ Marsh 34
Livingston's Lessee v. Moore 46 Lorman v. Benson 52, 861
Lloyd v.Chambers 570 t7. Clarke 48
v. Matthews 39 Los Angeles v. Los Angeles Water
v. New York 357, 361, 362 Co. 386, 405
Loan Association v. Topeka 125, 317, 678, v. Water Co. 391
700, 705 Los Angeles Co. v. Reyes 765
Lobrano v. Nelligan 146 v. Spencer 882
Locke o. Bradstreet Co. 611 Los Ass'n, Re 439
v. Dane 374, 531 Lothrop v. Commercial Bank 180
v. Speed 130 v. Steadman 74, 139, 149, 165, 887
Locke's Appeal 173 Lott v. Morgan 691
Lockhart v. Horn 522 v. Ross 745
w. Locke 42 Loughbridge v. Harris 773, 775
v. Troy 209 Lougher v. Soto 183
Lock Haven Bridge Co. v. Clinton Loughlin v. McCauley 25
County 755 Louisiana v. Bd. of Assessors 740
Lock port v. Gaylord 212 v. Jumel 24
Lockwood, Ex parte 32, 568, 890 v. New Orleans 20,387,411
v. St. Louis 741 v. Pilsbury 405
v. Wabash R. Co. 298 v. Police Jury 387
Lodi Tp. v. State 183 17. Texas 23
Loeb v. Attica 281 Louisiana C. &. I. Co. v. I. C. Ry.
v. Columbia Tp. Trustees 32 Co. 266
v. Mathis 86 Louisiana State Lottery v. Richoux 194
Loeffner v. State 437 Louisville v. Bank of Louisville 396
Loesch v. Koehler 570 v Commonwealth 361
Logan v. Matthews 859 17.
Hyatt 304, 717
v. Onachita Parish 121 17.
Rolling Mill Co. 296
v. Pyne 272, 285 v. University 345
v. Stogdale 765 Louisville N. A. & C. Ry. Co. v.
u. United States 23, 568 Wallace 674
r. Walton 674 Louisville N. O. & T. Ry. Co. t;.
Logansport v. Dick 362 Blythe 147
Logue v Commonwealth 434 Louisville, &c. Co. v. Ballard 209
Lombard v. Antioch College 618 Louisville, &c. R. R. Co. v. Baldwin 19,
Lommen r.
Minneapolis 458 857
Lonas v. State 557 v. Burke 844
Ixx TABLE OF CASES.
Page Page
Louisville, &c. R. K. Co. v. 843 Luques v. Dresden
Caster 312
v. Davidson 167 Lusher v. Scites 257
v. Palmes 35, 396 Luther v. Borden 46, 58, 59, 892
v. State 707, 743, 840 Luxton v. North River Bridge Co. 756
Louisville & N. Ry. Co. v. Baldwin 844 Lycoming v. Union 539
v. Com. (99 Ky.) 1(54 Lyddy v. Long Island City 217
v. Com. (104 Ky.) 162 Lydecker v. Palisade Land Co. 748
v. County Court 926 Lyle v. Richards 62
v. Enbank 856 Lyman i?. Boston & Worcester R. R.
v. Ingram 82!) Co. 841
v. Kentucky (99 Ky.) 164, 875 v. Martin 902
v. Kentucky (161 U. S.) 838, 852 v. Mower 517
v. Kentucky (183 U. S.) 856 Lyme v. Turner 356, 361
v. Schmidt 20 Lynch, Ex parte 707
v. Thompson 825 v. Brudie 553
v. Whitely 758, 763, 806 v. Forbes
777, 779
Louisville City R. R. Co. v. Louis- v. Hoffman 372
ville 295, 299 v. New York 296, 302
Louisville Gas Co. v. Citizens' Gas v. State 465, 480
Co. 35, 402 Lynchburg v. Slaughter 322
Louisville Ry. Co. v. Foster 811 Lynde v. County 319
Louisville Safety U. & T. Co. v. v. Lynde 44
Louisville & N. R. Co. 574 Lyon v. Circuit Judge 85
Louisville Water Co. v. Clark 396 v. Jerome 294, 756, 778, 814
c. Kentucky 396 f. Lyon 580
Loumand v. New Orleans 415 r. Manhattan Ry. Co. 424
Love v. Moynahan 485 17.McDonald 804
v.
Raleigh 302 v. Morris 258, 517
Shartzer
r. 553 Lyon's Case 613
Loveland v. Detroit 310 Lyons v. Chamberlain 324
Lovell v. Leeback 425 Lythe v. Lansing 319, 320
Lovingston v. Trustees 710
v. Wider 339, 543, 703
Low, Ex parts 706 M.
v. Blanchard 86
v. Dunham 113 Mabry v. Baxter 407
v. Galena & C. U. R. R. Co. 780 MacDougall v. Knight 687
17. Towns 162 Machette w. Wanless 478
Low Rees Printing Co. 570 Machine Co. v. Gage 693
Lowe, Re 562 Machir v. Moore 924
U. Commonwealth 99, 389 Mackaboy v. Commonwealth 687
r. Harris 632 Mackay c. Ford 632
Kansas
v. 16, 22 Mackel v. Rochester 442
Lowell w. Boston 243, 317, 700 Mackin v. United States 436
r. Hadley 113, 860 Macon v. Hill 296
17. Oliver 330, 331 v. Jones 745
Lowenberg v. People 473 . Macon & Western R. R. Co. 272
Loweree v. Newark 814, 816 v. Patty 717, 860
Lowndes v. Town of Huntington 32 Macon & A. Ry. Co. v. Riggs 766
Lowndes Co. v. Hunter 247 Macon & Western R. R. Co. v. Davis 237,
Lowry v. Francis 386 253
Rainwater
v. 431 Macreiuly v. Wolcott 485
Lucas v. Case 619, 661 Macy v. Indianapolis 783
v. Sawyer 514 Mad'dox, Re 559
r. Tucker 632 v. Graham 80
Ludeling v. Chaffe 27, 30 Maddrey v. Cox 267
Ludlow v. Johnson 516 Madison v. Daley 762
Ludlow's Heirs v. Johnson 89 Madison Co. v. People 743
Ludwig v. Cramer 606, 637 Madison & Ind. R. R. Co. v. Norwich
v. Stewart 523 Savings Society 321, 324
Luehrman v. Taxing District 259, 267 v. Whiteneck 237,841
Lunian v. Hitchins Bros. Co. 569 Madisonville v. Bishop 306
Lumbard v. Aldrich 180 Magee v. Commonwealth 730
Lumsden 17. Cross 526, 700, 717, 730 17. Overshiner 804
Lund 17. New Bedford 760 , v. Supervisors 936
Lunt's Case 237 v. Young 614
TABLE OF CASES. Ixxi
Page
Magoun v. Illinois Tr. & Sav. Bank 663, Marks v. Baker 628
684, 708 v. Morris 52
Magruder, Ex parte 372 v. Purdue University 182, 337, 704
v. Governor 162 Marlatt v. Silk 33
Maguire, Matter of 890 Marler v. State 451
v. Maguire 403, 579, 580, 584, 585 Marlow v. Adams 553
Magurn v. Magurn 680, 584 Marmet v. State 555
Mahala v. State 469 Marquette Co. v. Ishpeming Treas. 355
Malian v. Cavender 690 Marron, In re 691
Maher v. People 434, 450, 466 Marsh v. Chesnut 112
Mahomet v. Quackenbush 208 v. Ellsworth 629, 634
Mahon v. Justice 39 v. Fulton Co. 320
v. New York Central R. R. Co. 791 r. New York & Erie R. R. Co. 842
Mahoney v. Comry 702 v. Nichols S. & Co. 26
Mahony v. Bank of the State 278 v. Putnam 417
Mahony's Estate, Re 16, 30 v. Supervisors 324, 706
Maiden v. Ingersoll 25 Marshall v. Baltimore & Ohio R. R.
Maier, Ex parte 880 Co. 198
Maine v. Grand Trunk Ry. of Canada 692 v. Donovon 232, 423
Maine Water Co. v. Waterville 742 v. Grimes 256 867
Mairs v. Manhattan, &c. Ass. 786 v. Gunter 630, 633
Maize v. State 163, 173, 237, 247 v. Harwood 193
Malcolmson v. Scott 39 v. Kerns 926, 935, 937, 940
Malison, In re 439 v. Silliman 339, 543
Mallett o. Nortli Carolina 375, 382 v. Vicksburg 691
Mallory ,: Hiles 223 Marshall Co. Court v. Galloway Co.
v. Pioneer Press Co. 644 Court 268
Malone v. Clark 588 Marshalltown v. Blum 693
v. Stewart 607 Marten v. Van Schaick 644
Maloy v. Marietta 75, 717, 728, 745, 746 Martens v. People 288
Maltus v. Shields 702 Martin, Ex parte 687
Manchester, Matter of 40 v. Barbour 751
W.Massachusetts 177,852,879 v. Bigelow 52
Maney, Re 40 v. Broach 209
Mankato v. Arnold 454 v. Brooklyn 357
v. Fowler 283, 709 v. Dix 237, 267, 721
Man ley v. Manley 679, 584 v. Elliot 424, 568
Manly v. Raleigh 265 v. Hughes 408
v. State 92, 93, 102, 459 v. Hunter's Lessee 26, 30, 45, 103
Manning v. Van Buren 262 v. Ingham 131, 162
v. Weeks 22 v. Mott 74
Mannix v. Purcell 660 v. State 851
Mansfield v. Mclntyre 679, 584 v. Stovall 44
v. Moore 356 v. Tyler 318
Mansfield, &c. R. R. Co. v. Clark 777 v. Waddell 33
Mansion v. Mclntosh 900 v. Wade 924
Manufacturer's G. & O. Co. v. Indi- Martin's Appeal 149
ana N. G. & O. Co. 788, 858 Marx, Ex parte 456
Mapel v. John 880 v. Hanthorn 111, 526, 750
v. Weeks 644 Mary Smith's Case 444
Mapes
Marbury v. Madison 78 Mason, Matter of 496
March v. Commonwealth 279 v. Bridge Co. 664
r. Portsmouth, &c. R. R. Co. 757 v. Cumberland 297
Marchant v. Langworthy 113 v. Haile 407, 410
.Pa. Ry. Co. 16, 22 v. Harper's Ferry B. Co. 812, 822
Marcum v. Ballot Com'rs 899 v. Kennebec, &c. R. R. Co. 819, 826
Marcy v. Oswego 321 v. Lancaster 711
Marietta v. Fearing 291, 389 v. Mason 644
Mariner v. Dyer 453 v. McLeod 13
Marion v. Epler 717, 728 v. Messenger 582
v. State 177, 381, 382 i>. Missouri 16, 32
Marion, &c. Ry. Co. v. Champlin 707 v. Spencer 786
Mark v. State 224 258 v. State 893
305 v. Wait 128, 148
Markey v. Queen's County
Market v. St. Louis 363 Massachusetts v. West U. Tel. Co. 691
Marks, Ex parte 161 Massuere v. Dickens 606
Ixxii TABLE OF CASES.
Page Page
Masten v. Olcutt 82 Mayor of Baltimore v. Hussey 694
Masteron v. Mt. Vernon 362 v. State 234
Mather v. Chapman 633, 643 Mayor of Cartersville v. Lanhara 860
v. Hodd 687 Mayor of City of New York, Re 806
v. Ottawa 317, 700 Mayor of Florence, Ex parte 89
Mathews, Ex parte 86 Mayor of Hudson v. Thorne 283, 288
v. Beach 638 Mayor of Hull v. Horner 276, 277
v. Zane 223 Mayor of Huntsville v. Phelps 284
Mato, Ex parte 144 Mayor of London's Case 490
Matre v. Sankey 45 Mayor of Lyme v. Turner 356, 361
Matter of Election Law 923 Mayor of Macon v. Macon & W. R.
Matthews v. Board of Education 180 R. Co. 272
v. Densmore 688 Mayor of Memphis v. Winfield 281, 288
v. Murphy 245, 284 Mayor of Mobile v. Allaire 279, 280
v. St. Louis & S. F. Ry. Co. 150, 836, v. Dargan 49, 703, 717
841 v. Kimball 688, 856, 858
Mattox v. U. S. 451 v. Rouse 280
Mauch Chunk v. McGee 207 Mayor of New York v. Furze 356
Maul v. State 376 v. Hyatt 280
Mauldin v. Greenville (33 S. C.) 696 v. Lord 878
t7. Greenville (42 S.
C.) 717 v. Nichols 279, 281, 291
17. Greenville
(53 S. C.) 717 v. Second Ave. R. R. Co. 283
Maull v. Vaughn 408 Mayor of Savannah v. Hartridge 271
Maulsby v. Reifsnider 633 v. Spears 304
Mauran v. Smith 162 v. State 204, 247
Maurer v. People 452 Mayor of Wetumpka v. Winter 167
Maurice v. Worden 631 Mayrant v. Richardson 628
Maxey v. Loyal 408 Mays v. Cincinnati266, 279, 283, 745
v. Williamson Co. 322 v. Commonwealth 458
17. Wise 537 Maysville & B. S. Ry. Co. v. Ingraham 815
Maxmilian v. New York 357 Maysville v. Wood 664
Maxwell v. Com'rs Fulton Co. 591 McAdoo v. Benbow 91
t7. Dow 14, 38, 47, 454, 505 McAfee v. Covington 408
v. Goetchius 149, 153, 545 McAfee's Heirs v. Kennedy 773
v. Jonesboro 285 McAlister v. Clark 286
v. Newbold 30 McAllister v. Detroit Free Press Co. 644
7. Reed 252 v. Hoffman 924
v. Stewart 43 McAndrews v. Hamilton County 300
'
Page
McCauley v. Hargroves 42, 80 McFarland v.State 467
McClain, Ex parte 827 McGahey v. Virginia 31, 403
v. People 817 McGatrick r. Wason 675
McClary v. Lowell 859 McGear v. Woodruff 454
McClatchy v. Superior Court of Sac- McGee v. Mathis 395
ramento Co. 569 v. San Jose 387
McClaughry v. Wetmore 631 McGeehan v. State Treasurer 530
McClellan v. Chipman 27 McGehee v. Mathis 717, 736, 868
McClinch v. Sturgis 118, 194 v. McKenzie 640
McCloskey v. Kreling 878 McGhee v. State 215
McCloud v. Shelby 353 McGhee Irr. Ditch Co. v. Hudson 766
McClure v. Oxford 223, 319, 320 McGraw v. Dist. of Columbia 302
v. Redwing 302 v. Marion 693, 887
McOluskey v. Cromwell 89 McGregor v. Cove 848
McCollum, Ex parte 253 McGiffert v. McGiffert 578, 579, 580
McComas v. Krug 99 McGinity v. New York 358
McComb v. Akron 296, 784 McGinnis v. State 95
v. Bell 725 v. Watson 661, 672
v. Gilkey 146, 147 McGinty v. Carter 691
McConkle v. Binns 656 McGlinchy v. Barrows 430
McCool v. Smith 217 McGoon v. Scales 683
McCormick v. Fitch 707 McGowan v. State 468
v. Rusch 414, 515 McGruder v. State 162, 217
MeCormick's Est. v. Harrisburg 730 McGuffee v. State 461, 463
McCoull v. Manchester 362 McGuire v. Parker 693
McCoy v. Grandy 653 v. State 375
v. Huffman 485 McHaney v. Trustees of Schools 529
v. Michew 531 McHenry v. Alford 706
McCracken v. Hay ward 404, 406, 409, 412 v. Downer 682
McCracken Co. v. Merc. Trust Co. 522 Mclnturf v. State 381
McCready r. Sexton 527, 751 Mclntyre v. McBean 610
v. Virginia 37 McKane v. Durston 22, 38
McCrowell v. Bristol 293 McKay v. Gordon 42
McCuen v. Ludlum 605 McKean, Ex parte 40, 492
McCulley v. State McKee v. Cheney 198
McCulloch v. Maryland 25, 43, 98, 679, v. McKee 265, 860
681, 682 v. People 470
v. State 116, 193, 195, 200, 246, 258 v. Wilcox 95
McCullough v. Brown 848 McKeen v. Delancy 33
v. Virginia 31, 36, 324, 403 McKenna v. Edmundstone 217
McCully v. Tracey 269 v. St. Louis 301
McCutchen v. Windsor 262 McKenzie v. Moore 218
McDade v. Chester 301 v. State 437
McDaniel v. Correll 137, 151, 546 McKibbin v. Fort Smith 286
McDermott v. Evg. Journal Co. 631 McKim v. Odom 266
McDermott's Appeal 579 McKinney v. Carroll 30
McDevitt v. Peoples N. G. Co. 804 v. O'Connor 921, 929
v. St. Paul 301 v. Salem 400
McDonald v. Hinton 900 v. Springer 621
v. Massachusetts 375 McKinnon v. Cotner 195
v. Mayor, &c. 311 v. People 914
v. People 375 McKinsev v. Squires 690
v. Redwing 757, 878 McKune'r. Weller 114, 908
v. Schell 691 McLane v. Bonn 376, 644
v. State 473, 844 McLaughlin, Ex parte 469
v. Woodruff 644 v. Corry 363
McDonogh v. Millaudon 31 v. Cowley 630, 632
McDuffee v. Sinnott 622 v. South Bend 689
McEldowney v. Wyatt 622 v. State 382
McElmoyle v. Cohen 42 McLaurine v. Monroe 42
McElrath v. United States 47 M'Lean v. Hugarin 81
McElroy v. Albany 305 v. State 898
McElvain v. Mudd 685 McLean Co. v. Humphrey 423
McElvaine v. Brush 46, 473 McLeod's Case 493
McFadden v. Commonwealth 408 McLimans v. Lancaster 644
McFarland v. Butler 411, 518 McLure v. Melton 405
Ixxiv TABLE OF CASES.
Page
McMahon v. Savannah 906 Meister v. People 483
v. St. Louis, &c. Ry. Co. 811 Vlelick v.Washington 284
McManus v. Carmichael 861 Melizet'sAppeal 156, 514
v. McDonough 590 Mellen v. Western R. R. Corp. 784
v. O'Sullivan 30 Melvin v. Weiant 605
v. State 883 Memphis v. Bolton 825
Me Masters v. Commonwealth 728 v. Fisher 660
McMatli v. State 464 v. Water Co. 562
McMerty v. Morrison 522 v. Winfield 281, 288
McMillan v. Birch 619, 632 Memphis, &c. R. R. Co. v. Payne 817
v. Boyles 542 Memphis & C. Ry. Co. v. Birming-
v. Lee County 270 ham S. & T. Ry. Co. 807
v. McNeill 45, 417 Memphis & L. R. R. R. Co. v. R. R,
McMillen v. Anderson 20, 505 Com'rs 397
McMinn v. Whelan 750 Memphis City Bank v. Tennessee 397
McMullen v. Hodge 109 Memphis Freight Co v. Memphis 764
McNaughton Co. v. McGirl 687 Memphis Gas Light Co. v. Shelby
McNealy, Ex parte 459 Co. 396
McNeer v. McNeer 512 Menard Co. r. Kincaid 516
McNeill, In re 189 Menasha v. Hazard 321
v. Somers 895 Mendel v. Wheeling 301
McNichol i7. U. S., &c. Agency 136 Mendota v. Thompson 363
McNiel, Ex parte 688 Menges v. Wertman 631, 533, 536
v. Commonwealth 220 Menken v. Atlanta 281, 850
McNulty v. California 22, 31, 456, 505 Menserdorff v. Dwyer 676
McPherson v. Blacker 17, 932 Mercantile Bank v. Tennessee 397
v. Chebanse 279, 883 Mercer Me Williams
. 813
v. Foster 271, 320, 324 Merchants' Bank v. Bergen Co. 323
v. Leonard 118 v. Cook 351
McQuigan v. Delaware L. & W. Ry. Merchants' Bank of Danville v. Bal-
Co. 424 lon 416, 516
McQuillen Hatton v. 766, 775 Merchants' & M. Nat'l Bank v. Penn-
McRae v. Americus 280 sylvania 34, 682, 712
v. Grand Rapids L. & D. Ry. Merchant, Union Barb-wire Co. v.
Co. 454 C. R. I. & P. Ry. Co. 816
McReynolds v. Smallhouse 207, 864, 865 Meredith v. Christy 895
McSorley's Liquors 591 v. Ladd 198
McSpedon v. New York 311 Merivale v. Carson 645
McTwiggan v. Hunter 712, 722, 748 Meriwether v. Garrett 267, 268, 345
McVeigh v. United States 681, 582 Merrick v. Amherst 313, 337, 704
Meacham v. Dow 924 v. Giddings 192
v. Fitchburg R. R. Co. 824 v. Van Santvoord 178
Mead v.Acton 310, 333 Merrifield v. Worcester 303, 304, 362
v. County Treasurer 897 Merrill v. Eastern R. R. 844
v. Derby 363 v. Humphrey 711
v. Larkin 581 v. Monticello 319, 322
v. McGraw 87 v. Plainfield 309, 311
v. Walker 590 v. Sherburne 134, 137, 611
Meade v. Beale 34 Merritt v. Cameron 105
Deputy Marshal
v. 681 v. Farris 743
Meadowcraft v. People 526 Mershon v State 449
Meagher v. Storey Co. 259 Merwin v. Ballard 629
Mears v. Commissioners of Wilming- Merz v. Missouri Pac. Ry. Co. 840
ton 356 Meshmeier v. State 163, 173, 248, 257,
Mechanics' & Farmers' Bank v. 849, 850
Smith 291 Messenger r. Mason 30
Mechanics' & Traders' Bank v. De- Mestayer v. Corrige 283
bolt 176, 385 Metcalf v. Gilmore 83
v. Thomas 395 Methodist Church v. Ellis 740
Mechanics', &c. Bank Appeal 406 w. Wood 661
Mechanics' Bank v. Smith 104 Meth. Ep. Ch. Wyandotte
v. 304, 783
Meddock v. Williams 538 Metropolitan Board v. Barrie 400, 845,
Medford v. Learned 628, 529 846
Meeker ?. Van Rensselaer 851, 878 v. Heister 286, 853, 854, 883
Meguire v. Corwin 198, 924 Metropolitan Gas Light Co., Matter
Meighen v. Strong 640 of 209, 212
TABLE OF CASES. Ixxv
Page Page
Metropolitan Nat'l Bk. v. Claggett 29 Miller v.Parish 607
Metropolitan Police Board v. Wayne v. People 444
Co. Auditors 334 v. Rucker 927
Metropolitan Tel., &c. Co. v. Colwell v. State (3 Ohio) 116, 193, 195, 200,
L. Co. 787 214, 231
Metropolitan W. S. El. Ry. v. John- v. State (8 Ind.) 469
son 827 v. State (149 Ind.) 454, 472, 473, 589
Metzger, Matter of 495, 496 v. State (15 Wall.) 394
Mewherter v. Price '209, 213 v. St. Paul 301
Meyer v. Berlandi 133, 249, 508 Texas
v. 46, 879
v. Muscatine 319 Troost
o. 772
v. Richmond 21 Miller's Case 652
v. San Diego 592 Miller's Executor v. Miller 583
Meyers v. Baker 886 Miller's Exec'rs v. Swann 32, 834
v. Chicago, R. I. & P. Co. 285 Millett v. People 659
Miami Coal Co. o. Wigton 762 Millholland v. Bryant 911
Michales v. Hine 589 Milligan, Ex parte 436, 454
Michigan State Bank v. Hastings 392 Milligan's Appeal 922
Michigan Sugar Co. v. Aud. Gen'l 697 Milliken v. City Council
'
286
Michigan Telephone Co. v. St. v. Pratt 834
Joseph 130, 132, 392 Mills, Matter of 481
Middlebrook v. State 453 r. Brooklyn 302, 356, 361
Middlebrooks v. Ins. Co. 41 v. Charleton 209, 210, 265, 338, 542,
Middleport v. Ins. Co. 212 700
Middleton v. Lowe 162 v. Duryea 43
v. Middleton 240 v. Gleason 271, 272, 750
v. St. Augustine 319, 696 v. Jefferson 225
Middletown, Matter of 202 v. Missouri 291
Re 250 v. St. Clair Co. 567
Mifflin v. Railroad Co. 792 v. United States 782
Mikesell v. Durkee 799 v. Williams 266, 389, 392, 393
Milam Co. v. Batcman 344 Milne v. Davidson 883
Milan & R. P. R. Co. v. Husted 395 Milner v. Pensacola 267
Milan M. & M. Co. v. Gorton 180 Milward v. Thatcher 894
Milburn, Ex parte 495 Milwaukee v. Gross 286, 854
v. Cedar Rapids, &e. R. R. Co. 797 Milwaukee County v. Isenring 194
Miles v. Albany 307 Milwaukee Gaslight Co. v. Schooner
v. Caldwell 33 Gamecock 54
. State 381 Milwaukee Ind. School v. Super-
v. Worcester 304 visors 423, 589
Milhau v. Sharp 272, 291, 299, 306, 789 Milwaukee Town v. Milwaukee City 268
Millard v. Board of Education 664 Miner v. Detroit Post & Tribune 629, 650
v. Webster City 296 v. Markham 192
Millaudon v. Gallagher 750 Miners' Bank v. Iowa 54
Milledgeville v. Cooley 363 v. United States 149, 392
Miller, In re 41, 375, 498 Minneapolis v. Tanney 697
v. Ammon 850 v. Wilkin 648, 594
v. Birch 884 Minneapolis & N. EL Co. v. Traill
v. Clark 900 Co. 508
v. Commonwealth 456, 487 Minneapolis & St. L. Ry. Co. v.
v. Craig 880, 883 Beckwith 18, 832
v. Dunn 88 v. Emmons 841
v. English 661 v. Herrick 18
v. Gable 660 . Minn. W. R. Co. 758, 806, 807
v. Graham 543, 546 Minneapolis Gas Light Co. v. Minne-
v. Grandy 333, 701 apolis 294
v. G. B. W. & St. P. Ry. Co. 803 Minnesota v. Barber 854, 855
v. Hixson 529 v. Young 144
r. Hurford 220 Minnetonka Lake Improvement, Re 782
v. Johnson 61 Minor v. Board of Education 665
v. Jones 213 v. Happersett 18, 66, 57, 104, 568,
v. Max 121 901
v. Miller 513 Minot v. West Roxbury 198
v. New York & Erie R. R. Co. 838, o. Winthrop 708
839 Misch v. Russell 926
v. Nicholls 30 Miskimins, Ex parte 442
Ixxvi TABLE OF CASES.
Page Page
Miss., &c. Boom Co. v. Prince 212 Monongabela Navigation Co. r.
Miss. & R. R. Boom Co. v. Patterson 827 United States 756, 778, 817, 827
Mississippi Mills v. Cook 120, 706 Monopolies, Case of 401, 662
Mississippi R. R. Co. v. McDonald 392 Monroe v. Collins 99, 249, 564, 906, 908
Mississippi Society v. Musgrove 392 927
Missouri v. Andriano 30 v. Hoffman 286, 878
v. Lewis 14, 19, 555 Mon Suck Sears
v. 850
v. Murphy 207 Montana Catholic Mission v. L. & C.
Missouri K. & T. Ry. Co. v. Haber 854 County 740
v. McCann & Swizer 34, 852 Montana Centr. Ry. Co. v. Helena,
v. Simonson 21 &c. Co. 807
Missouri K. & T. Trust Co. v. Krum- Montana Co. v. St. Louis Mining &
seig 833, 836 M. Co. 424, 568
Missouri Pac. Ry. Co. v. Finley 881 Montclair v. New York, &c. Ry. Co. 839
v. Fitzgerald 27 v. Ramsdell 206
v. Houseman 818 Montee v. Commonwealth 464
v. Humes 18, 528, 841 Montery Co. v. Gushing 765
v. Mackey 18, 20, 556 Montgomery v. Deeley 605
v. Nebraska Bd. of T. 22, 125, 774, v. Hobson 638
804, 876 v. Kasson 386, 402
v. Porter 827 o. Meredith 631
v. Richmond 620 v. Montgomery Water Works 311
v. Sherwood 852, 853 v. Santa Ana & W. Ry. Co. 803
Mitchell v. Burlington 319 v. State 464, 655
v. Clark 23, 383 v. Townsend 296, 811, 812
v. Deeds 631, 635 v. Waseni 749
v. Harmony 764 Montgomery B. B. Wks. v. Gaston 194
v. Illinois, &c. Coal Co. 121, 760 Montgomery Co. v. Elston 683
v. Negaunee 696 Montgomery Co. Fiscal Ct. v. Trimble 202
v. Rome 296 Monticello v. Banks 730
v. State 470 Monticello Bank v. Coffin's Grove 262
v. St. John 589 Monticello D. Co. v. Mayor of Balti-
v. Tibbetts 177 more 231
v. Williams 881 Montjoy v. Pillow 649, 567
Mitchell's Case 478 Montpelier v.East Montpelier 267, 268,
Mithoffv. Carrollton 769 345, 391
Moberly v. Preston 607 Montpelier Academy '
v. George 267, 268
Mobile v. Allaire 279, 280 Montross v. State 129, 166, 468
v. Dargan 49, 703, 717 Mooar v. Harvey 905
v. Kimball 688, 856, 858 Moodalay v. East India Co. 360
v. Rouse 280 Moody v. State 186, 193, 194, 218
v. Watson 268, 415 v. Trimble 900
Mobile & Ohio R. R. Co. v. Dis- Moog v. Randolph 194
mukes 876 Moon v. Atlanta 812
v. Postal T. C. Co. 828 v. Durden 97
v. State 218, 231, 246, 251 v. Stevens 692
v. Tennessee 31, 396 Moor v. Luce 621
Mobile Trans. Co. v. Mobile 517 Moore, Ex parte 212
Moers v. City of Reading 104, 167 Matter of 481
Moffatt v. Hardin 478 v. Atlanta 296
Mohan v. Jackson 895 v. Cass 647
Mohawk & Hudson R. R. Co., Matter v. Detroit Locomotive Works 676
of 114 v. Greenhow 406
Mohawk Bridge Co. v. Utica & Sche- w. Holland 407
nectady R. R. Co. 667 r. Houston 237
Mohr, In re 40 r. Indiana 363, 400
Mok v. Detroit, &c. Association 216 v. Irby 611
Moletor v. Sinnen 425 17. Kent 614
Monday v. Hah way 130 t7. Kessler 935
Monette v. Guilbert 508 v. Maxwell 146
Money v. Leach 428 v. Meagher 608
Monford v. Barney 691 v. Missouri 472
Monk v. Corbin 623 t7. Monroe 666
Monmouth v. Leeds 111 17. Moore 685
Monongahela Navigation Co. v. Coons 781, r. Napier 251
786 v. Nat'l Com. K. & L. of S. 507
TABLE OF CASES. Ixxvii
Page Page
Moore v. New Orleans 250 Morrison v. State 449
v. People 46, 281 Morrissey v. People 177
v. Quirk 684, 685 Morrow v. Wood 263, 486
.
Railway Co. 760, 761 Morrow Co. v. Hendryx 268
v. Sanborne 861, 862 Morse
?;. Boston 363
v. Sanford 775, 777 Goold
v. 85, 406, 408
v. Smaw 763 Morton, Matter of 431
v. State 374, 406, 438, 467 v. Macon 282, 290
v. Stephenson 657 v. New York 574
v. Strickling 389 v. Sharkey 521, 523
Moores v. Nat. Bank 34 v. Sims 829
Moose v. Carson 298 v. Skinner 39
Moran v. Commissioners of Miami The Controller
v. 207, 210
Co. 321 Mortun r. Valentine 409
v. New Orleans 691 Mose v. State 452
v. Pullman Pal. Car Co. 305 Moseley v. State 469
v. Ross 777 Moser v. White 138
v. Sturges 25, 27 Moses v. Pittsburg, Fort Wayne, &
Moreau v. Detchamendy 36 C. R. R. Co. 797
Morehead v. State 445 v. Sanford 822
Morehouse Parish Brigham i;. 710 v. State 180
Morey v. Brown 881 Moses Taylor, The, v. Hammons 45
v. New fane 355, 357 Mosier v. "Hilton 210
Morford v. Unger 166, 206, 209, 222, 546 Moss v. St. Louis, &c. Ry. Co. 757
697, 704, 720 Motes v. U. S. 450
Morgan, Re 66, 570, 891 Mott v. Comstock 606
v. Beloit 345 v. Dawson 610, 628, 649
v. Bufflngton 161 v. Pennsylvania R. R. Co. 176, 395
v. Cree 176 Motz v. Detroit 251, 654
v. Des Moines, &c. Ry. Co. 797 Moulton v. Newburyport Water Co. 822
v. Elizabeth 711 v. Raymond 700
v. Gloucester 908 v. Scarborough 306
.
King 52, 808, 861, 862, 863 Mount v. Commonwealth 468
v. Livingston 606 v. Richey 185
v. Orange 283 Mount Carmel v. Shaw 298
v. Plumb 81 v. Wabash Co. 268
v. Potter 44 Mount Pleasant v. Beckwith 268, 345
v. Quackenbush 935, 939, 940 v. Breeze 272
v. Smith 176 Mount Veruon v. People 740
v. State 452 Mount Vernon First N. Bank v.
Morgan's S. S. Co. v. Louisiana 688 Sarlls 290
Morley v. L. S. & M. S. Ry. Co. Mount Washington Road Co.'s Peti-
(95 N. Y.) 387 tion 777, 817, 824, 825
v. L. S. & M. S. Ry. Co. (146 U. S.) 32, Mounts v. State 467, 468
387 Mower v. Leicester 351, 355
Morrell v. Dickey 584 v. Watson 631, 633
v. Fickle 256 Moxley v. Ragan 252
Morril v. Haines 930 Moyer v. Van De Vanter 900, 906
Morrill v. State 709, 888 v. Slate Co. 95
Morris v. Bark ley 607 Moynier, Ex parte 286
v. Bd. of Canvassers 900 Mugler v. Kansas 11, 18, 849, 850, 883
v. Carter 463 Muhlenbrinck v. Commissioners 283,285
v. Claimants, The 184 Muhlker v. N. Y. & H. R. Co. 800
v. Columbus 880 Mulcairns v. Janesville 306
v. Council Bluffs 304 Mulhearn v. Press Pub. Co. 483
v. People 237, 253 Mulholland v. Des Moines, &c. Co. 404
v. Powell 99, 908 Mulinx v. Mut. Ben. L. Ins. Co. (23
v. Royal Arch Masons 740 Col. 71) 228
v. State 267, 391, 470, 542, 865 v. Mut. Ben. L. Ins. Co. (23 Col.
v. Stout 183 85) 119
v. Vanlaningham 929 Mullan v. State 196
Morris & Essex R. R. Co. v. Newark 791 Muller v. So. Pac. B. Ry. Co. 826
Morris Canal Banking Co. v. Fisher 323 Mulligan v. City of Perth- Amboy 814
Morrison v. M'Donald 453 Mull in v. People 455
v. Rice 514 Mullinex v. People 464
v. Springer 237, 903 Mumford v. Sewall 694
Ixxviii TABLE OF CASES.
Page Page
Muncie Nat. Bank Miller
v. 631 Nash n. Lowry 299
Mundt v. Sheboygan, &c. R. R. Co. 89, Nashville v. Althorp 289
202 v. Nichol 296
Mundy v. Monroe 250, 412 v. Ray 271, 272
Munger v. Tonawanda R. R. Co. 809 Nashville, &c. R. R. Co. v. Hodges 740
Municipal Full Plants, Re 696 Nashville, C. & St. L. Ry. Co. v.
Municipal Suffrage to Woman 164 Alabama 19, 688, 844, 857
Municipality v.Blanc 860 Nashville M. & S. Turnpike Co. v.
v. Cutting 888 Davidson Co. 392
v. Dunn 719 Natchez, J. & C. R. R. Co. v. Currie 824
v. Wheeler 374 National Bank v. Commonwealth 682
r. White 717, 733 v. Stevens 26
Munn v. Illinois 18, 46, 287, 510, 831, 871, v. United States 681
874 v. Yankton 64
v. People 870 National Docks & N. J. J. C. Ry.
v. Pittsburg 363 Co. v. State 806
Munson v. Hungerford 861 National Land & Loan Co. v. Mead 221
Munster v. Lamb 633 National Life Ins. Co. v Mead 323, 324
Murdock v. Ward 684 National Trust Co. v. Murphy 180
Murphey v. Menard 208 Nations v. Johnson 581, 582
Murphy, Ex parte 497, 932 Navasota v. Pearce 356
In re 89, 376 Naylor v. Field 217
v. Chicago 296, 783 N. C. Coal Co. v. G. C. Coal & Iron
v. Commonwealth 376 Co. 97
v. Commonwealth 468 Neaderhouser v. State 867
v. Curry 900, 926 Neasrle, In re 492
v. Directors 263 Neal v. Delaware 18, 19, 49, 901
v. Jacksonville 272, 310 v. Green 34
v. Lowell 302, 362 v. Shinn 925
v. Massachusetts 469 Neass Mercer
v. 409
v. People 647, 717 Nebraska v. Campbell 356
r. Ramsey 64, 902, 907, 927 v. Iowa 36
v. San Luis Obisho 324, 911 Nebraska Tel. Co. v. State 844, 873
State
v. 480 Neeb v. Hope
468, 470, 628, 646
Murray v. Bd. of Co. Com'rs 666 Needham v. Thayer 683
v. Charleston 415 Neel v. State 453
v. Commissioners of Berkshire 790, Neeley v. Henkle 41
795 r. Henry 252
r. Hoboken Land Co. 681 Neff v. Beauchamp 679
v. Lehman 707 Nefzger v. Davenport 907
v. McCarty 37 Negley v. Farrow 628, 644, 646
v. Menifee 781, 787 Nehasane Park Ass'n v. Lloyd 749
v. Ramsey Co. Com'rs 184 Neifing v. Pontiac 210
v. Sharp Neil v. State 689
Murray's Lessee v. Hoboken Land Co. 602 Neill Keese . 676
Murtaugh v. St. Louis 356 Neilson v. Chicago, &c. Ry. Co. 826
Musgrove v. Vicksburg, &c. R. R. Co. 516 Nels v. State 464
Musselman v. Logansport 531 Nelson v. Allen 84, 653
Mutual Assurance Co. v. Watts 33 v. Borchenius 606
Mut. Ben. Life Ins. Co. v. Elizabeth 631 v. Canisteo 366
Mutual R. F. Life Ass'n v. Boyer 180 v. Cheboygan Nav. Co. 865
Myers v. Baltimore Co. Com'rs 719 v. Gorree 85
v. Chalmers 937 r. Milford 307, 308
v. English 120, 237 v. Rountree 546
v. Manhattan Bank 56 i\ State 465, 869
v. Park 606 v. St. Martin's Parish 415
v. People 177, 246 Nesbitt v. Ind. Dist. of Riverside 820
Mygatt v. Washburn 719 v. Trumbo 766
My rick v. Hasey 86 Nesmith v. Sheldon 34
v. La Crosse 749 Neumeyer v. Krakel 99, 168, 159
Nevins v. Peoria 296
New v. Walker 13
N. New Albany & Salem R. R. Co. v.
Maiden 841
Narregang v. Brown County 194 v. McNamara 841
Narron v. Wilmington & W. Ry. Co. 669 v. O'Daily 786, 797
TABLE OF CASES. Ixxix
Page
New Albany & Salem R. R. Co. v. New Orleans v. Warner (175 U. S.) 386
Tilton 830, 841, 844 r. Warner
(167 U. S.) 386, 695
Newark v. Watson 881 New Orleans, &c. R. R. Co. v. Gay 775,
Newark & S. O. Co. v. Hunt 606 809
Newark Savings Bank v. Forman 406 17. New
Orleans 346, 789
Newbern v. McCann 289 New Orleans C. & L. R. Co. v. New
Newberry v. Carpenter 424 Orleans 396
v. Trowbridge 80, 81 v. Southern, &c. Tel. Co. 759, 770
New Boston, Petition of 592 New Orleans Gas Co. v. Louisiana
v. Dunbarton 277 Light Co. 62, 383, 402
New Brighton v. Peirsol 812 New Orleans Water Works v. Lou-
New Brunswick v. Fitzgerald 183 isiana Sugar Co. 30
v. Williamson 217 v. Rivers 402
Newby v. Platte County 823, 824 Newport v. Com. 739
Newby's Adm'rs v.
Blakey 621 v. Horton 244, 334
Newcastle, &c. R. R. Co. v. Peru & v. Newport 290
Indiana R. R. Co. 758 New Providence v. Halsey 274, 322
Newcomb v. Indianapolis 158, 159 Newsom v. Cocke 253
v. Light 595 v. Earnheart 907
v. Peck 42 17. Greenwood 516
Newcome v. Smith 772 Newson v. Galveston 887
New Counties, In re 199 Newton v. Atchison 709
Newcum v. Kirtley 933, 937 17.
Belger 283
Newell v. How 606 v. Commissioners 388, 610, 548
v. Minn., &c. Ry. Co. 802 v. Newell 914, 916
v. Newton 683 New York, Matter of Mayor, &c. of 717,
v. People 89, 91 741
v. Smith 773 New York v. Barker 16
17. Wheeler 750 t7. Furze 356
New England Screw Co. v. Bliven 34 v. Hyatt 280
New England Tr. & S. Club v. v. Lord 878
Mather 671 7. Miln 690, 858
New Era Life Ass. v. Musser 409, 838 17. Nichols
279, 281, 291
New Hampshire v. Louisiana 24 v. Ryan 265
New Haven v. New H. & D. Ry. Co. 298 v. Second Av. R. R. Co. 283, 295, 710
New Jersey v. Wilson 176, 395 v. Squire 860
v. Yard 395 v. Williams 286
New Jersey ex rel. Kennelly v. Jersey New York & A. R. R. Co. v. N. Y.,
City 803 &c. R. R. Co. 807
New Jersey Zinc Co. v. Morris N. Y. & Harlaem R. R. Co. v. Kip 764, 766
Canal, &c. Co. 775 v. New York 789
Newland v. Marsh 132, 237, 253, 256 New York & L. B. R. R. Co. v.
New London v. Brainard 270, 310 Drummond 807
Newman, Ex parte 237, 258 N. Y., L. E. & W. Ry. Co. v. Estill 32, 180
v. Ashe 312 v. Pennsylvania (153 U. S.) 384
New Orleans v. Abagnatto 347 17. Pennsylvania (158 U.
S.) 692
v. Cannon 506 N. Y. Life Ins. Co. v. Cravens 32, 34, 179,
v. Cazelaer 721 687
N Clark
. ^309, 332, 336 i'.
English 664
v. De Annas 30 N. Y. & N. E. Ry. Co. v. Town of
17. Dubarry 707 Bristol 843
v. Faber 887, 888 N. Y., N. H. & H. R, Co. New .
Page Page
Niccolls v. Rugg 661 Norris v. Norris 579
Nichol v. Nashville 167 v. Vt. Central R. R. Co. 757, 784
Nicholl v. New York & N. J. Tel. Co. 804 v. Waco 722
Nicholls v. Barriek 900 v. Wrenshall 407
Nichols, Matter of 408, 560 Norristown v. Fitzpatrick 305
v. A. A. & T. Ry. Co. 803 Norristown, &c. Co. v. Burket 591
v. Bertram 392 North & S. Ala. R. R. Co. v. Morris 664
v. Bridgeport 717, 728, 761, 823, 825 North & W. B. Ry. Co. v. Swank 826
v. Duluth 296 North Bloomfield G. M. Co. v. Keyser 592
v. Griffin 156 North Carolina v. Temple 24
v. Guy 606 North Carolina, &c. R. R. Co. v. Car.
v. Mudgett 924 Cent., &c. R. R. Co. 758
v. School Directors 663 North Carolina Coal Co. v. Coal &
v. Somerset, &c. R. R. Co. 813 Iron Co. 97
Nicholson v. N. Y. & N. H. R. R. Co. 794, North Chicago C. R. Co. v. Lake View 884
823 North Milwaukee, Application of, Re 164
Nickerson v. Boston 868 Northeastern Neb. Ry. Co. v. Frazier 823
v. Howard 486 Northern Bank v. Porter Township 322
Nicks v. Chicago, St. P. & K. C. Ry. Northern C. I. Trust v. Sears 68
Co. 828 Northern Indiana R. R. Co. v. Con-
Nicolay v. St. Clair 322 nelly 716, 717, 729, 746
Nicolls v. Ingersoll 487 Northern Liberties v. Gas Co. 286, 288
Nielson, Petitioner 496 v. St. John's Church 717
Nightingale, Petitioner 285 Northern Pac. & M. Ry. Co. v. Forbis 826,
v. Bridges 609 827
Nightingale's Case 887 Northern Pac. Ry. Co. v. Colburn 28
Niles Water Works v. Mayor 311 v. Myers 683
Nims v. Troy 363 Northern R. R. v. Concord R. R. 86
Nishimura Ekin v. United States 129, North Hempstead v. Hempstead 278, 312
131 North Missouri R. R. Co. v. Gott 778
Nix v. Caldwell 619 v. Lackland 778
Nixon v. Reid 66, 867 v. Maguire 46, 396
Noble v. Mitchell 179 Northwestern Fertilizing Co. v. Hyde
v. Richmond 356 Park 98, 836
Noble & W. v. Mitchell 886 Northwestern Lumber Co. v. Che-
Noble v. Union Riv. Log Ry. Co. 22 halis County 691
Nobles v. Georgia 32 Northwestern Mfg. Co. v. Judge 882
Noel v. Ewing 156, 514 v. Wayne Cir. Judge 213
v. People 248, 509, 837, 849, 886 Northwestern & P. H. Bk. v. State 24
Nolan v. State 468 Northwestern Tel. & E. Co. v. Min-
Nolin v. Franklin 886 neapolis 837
Nomaque People
v. 452 North Yarmouth v. Skillings 345
Nomination of Public Officers, Re 895 Norton v. Dougherty 80
Noonan v. Albany 363 v. Ladd 677
v. Orton 611 v. Pettibone 633
v. State 52 v. Shelby Co. 33, 897, 898
Norfolk v. Ellis 717 Norwalk St. Ry. Co.'s App. 130
v. Young 712 Norwich v. County Commissioners
Norfolk & W. Ry. Co. v. Com. 859 237, 253
v. Pendleton 397 Norwich Gas Co. v. Norwich City
v. Pennsylvania 179, 690 Gas Co. 662
Norman v. Curry 210 Norwood v. Baker 714, 731
v. Heist 504, 512, 540 v. Cobb 42
v. Kentucky Bd. of Managers 176, Nougues r. Douglass 119
696 Noyes v. Butler 42
Norris, Ex parte 898 Nugent i>. State 469
v. Abingdon Academy 237, 392 Nunn v. State 499
v. Atkinson 417 Nutting v. Massachusetts 834
v. Beyea 515, 529
v. Boston 247
v. Clymer 104, 144, 146 o.
v. Crocker 644
v. Doniphan 617, 518 Oakland v. Carpentier
v. Hall 751 Oakley v. Aspinwall
v. Harris 52 Oates v. National Bank
v. Newton 494 Oatnian v. Bond
TABLE OF CASES. Ixxxi
Page Page
O'Bannon v. Louisville, &c. R. R. Co. Oliver v. Union, &c. R. R. Co. 817
624, 842 v. Washington Mills 674, 6U3,
O'Brian t\ Commonwealth 468 694, 706
O'Brien v. Baltimore 801 v. Worcester 3o'U
v. Commonwealth 451 Oliver Lee & Co.'s Bank, Matter of (52,
v. Krenz 412, 413 69, 97
v. Philadelphia 784 Olmstead v. Camp 772, 775, 777
17. State 443 v. Prop'rs Norris
Aq. 769, 778
r. St. Paul 784 Olmsted v. Miller 608
v. Wheelock 252 Olney v. Harvey 267
v. Young 387 v. Wharf 811
Ocean Beach Ass. v. Brinley 87 Olson v. Phillips 751
O'Connell v. People 437 Olympia v. Mann 290
O'Conner v. Warner 137 Omaha y. Olmstead 363
O'Connor v. Fond du Lac 159, 244, 334 v. Shaller 824
t>.
Memphis 415 Omaha Bell Ry. Co. v. McDermott 827
v. Pittsburg 296, 783, 826 Omaha & R. V. R. R. Co. v. Standin 811,
i7. Sill 620 812
O'Dea v. O'Dea 42, 580, 584 Omaha Horse Ry. Co. v. Cable, &c.
Odiorne v. Rand 113 Co. 812
Odljn v. Woodruff 750 Omaha So. Ry. v. Todd 827
O'Donaghue v. McGovern 619 Omaha V. R.R. Co. v. Rogers 797
O'Donnell v. Bailey 396 O'Maley v. Freeport 286
O'Ferrall v. Simplot 514 O'Nail v. Craig 252
O'Ferrell v. Colby 935 O'Neil v. Am. F. Ins. Co. 1(54
Officer v. Young 530, 560 y. Vermont 46, 471, 474, 848
Ogden v. Blackledge 134, 137 Onslow v. Home 624
v. City of Madison 280, 454 Opel v. Shoup 24
v. Riley 606 Opinions of Justices (30 Conn.) 903
t7. Saunders 104, 254, 374, 404, 405, 72
(23 Fla.)
406, 409, 416, 417, 525 (79 Ky.) 73
r. Strong 89, 92 (7 Mass.) 908
Ogden City v. Armstrong 745, 747, 750 (15 Mass.) 908
O'Grady v. Barnhisel 748 (150 Mass.) 696
O'Hara v. Carpenter 331 (155 Mass.) 696
v. Stack 660 (165 Mass.) 896
O'Hare v. Chicago M. & N. Ry. Co. 777 (166 Mass.) 158, 159
Ohio v. Thomas 849 (175 Mass.) 696
Ohio & Lexington R. R. Co. v. Ap- (18 Pick.) 58
plegate 800 (1 Met.) 177, 905
Ohio & M. R. R. Co. v. Lackey 150, (6 Cush.) 60
528, 842 (99 Mass.) 219
v. McClelland 399, 830, 843, 844 (115 Mass.) 896
v. Taber 848 (117 Mass.) ( 99,388,937
Ohio 0. Co. v. Indiana 21, 880 (124 Mass.) 902
Ohio, &c. R. R. Co. r. Ridge 316 (138 Mass.) 158
Ohio Life Ins. & Trust Co. v. Debolt (148 Mass.) 72
176, 395 (16 Me.) 156
O'Kane v. Treat 183, 725, 743, 748 (18 Me.) 115, 119
O'Kelly v. Athens Mauuf. Co. 517 (38 Me.) 917, 918, 932
v. Williams 514 (45 Me.) 911
Olcott v. Supervisors 35 (52 Me.) 330
Old Colony Ry. Co. v. Framingham (58 Me.) 243, 700, 701
Water Co. 814 (62 Me.) 901
Oldham, In re 453 (64 Me.) 917, 935
Oldknow i7. Wainwright 893, 931 (49 Mo.) 73, 76
P'Leary, Ex parte 883 (55 Mo.) 167
v. Cook Co. 210 (4 N. H.) 144
. Mankato 363 (41 N. H.) 458, 690
Oleson 17. Green Bay, &c. R. R. Co. (44 N. H.) 903
175, 217, 253 (45 N. H.) 219, 903
Olive v. Ingram 895 (52 N. H.) 194
v. State 863 (53 N. H.) 935
Oliver, In re 171 (56 N. H.) 189
i7. McClure 138, 406 (58 N. H.) 936
v. Steiglitz 178 (63 N. H.) 184
Ixxxii TABLE OF CASES.
Page Page
Opinions of Justices (3 R. I.) Our House v. State
137, 138 849, 850
(19 R. I.) 910 Over 17. Hildebrand 619
(37 Vt.) 903 v. Schiffling 611
Orange, &c. R. R. Co. v. Alexandria 741 Overby v. Gordon 44
Ordineal Barryv. 198 Overstreet v. Brown 675
Oregon v. Jennings 274, 322 Oviatt v. Pond 849, 850
Oregon & C. R. Co. v. Jackson Owen v. Jordan 585
County 693 17. State 499
v. Portland 572 Owens v. Henry 22
Oregon Ry. & Nav. Co. v. Oregon, v. State 462, 911, 941
&c. Co. 761 Owensboro v. Com. 740
Oregon Ry. Co. v. Portland 807 v. Hickman 90t't
Page
Palmer v. Lawrence 84 Paschal v. Perez 406
v. McCormick 582 Paschall v. Whitsett 615
v. Napoleon 749 Passavant v. United States 22
v. Smith 658 Passenger Cases 832, 858
v. State 459 Patapsco Guano Co. v. Bd. of Ag. of
v. Stumph 717, 730, 741 N. C. 855
v. Way 860 Patch v. Covington 301
Palmer Co. v. Ferrill 824 Paterson v. Society, &c. 166, 266, 741
Palmore v. State 591 Patten v. Florence 935
Pana v. Bowler 274, 322, 583 v. People 435
Pangborn v. Westlake 86 Patten Paper Co., Ltd. v. Eaukauna
v. Young 194 Water Power Co. 782
Paris Mason
v. 761 Patterson, Ex parte 272, 291
?;.
Norway Water Co. 720 v. Barlow 74, 906
Parish v. Eager 521 v. Collier 592
Parish of Bellport v. Tooker 660 v. Commonwealth 832
Park v. Detroit Free Press Co. 560, 650 v. Kentucky 13
Park Com'rs v. Common Council of v. Mississippi, &c. Boom Co. 770
Detroit 65 v. Nutter 486
Detroit
v. 340 v. Philbrook 516, 631, 543
Parke v. City of Seattle 784 v. State 450
Parkens' Case 475 v. Wilkinson 607
Parker v. Bidwell 487 v. Winn 62
v. Commonwealth 163, 171, 173 v. Wollman 66
v. Cutler Mill-dam Co. 867 Pattison v. Jones 611
v. Hett 897 v. Yuba 89, 167
v. Hubbard 217 Patton v. Coates 922
v. Kane 33 v. Stephens 310
v. McQueen 644 Patty v. Colgan 318
v. Metropolitan R. R. Co. 839, 867, Paul, In re 213
875 o. Davis 87
v. Mill-dam Co. 752 v. Detroit 591, 780
v. Ormsby 27 v. Hazelton 37
v. Orr 911 v. Virginia 38, 687
v. Phetteplace 34 Paulsen v. Portland 22, 86, 712, 722, 729
v. Redfleld 395 Pawlet v. Clark 343', 386, 391
v. Savage 92, 408, 517 Pawling v. Bird's Executors 42, 579
v. School District 262 v. Willson 583
v. Sexton 748 Paxson v. Sweet 860
v. Shannohouse 516 Paxton & H. Irr. C. & L. Co. v.
v. State 676, 898, 931 Farmers' & M. Irr. & L. Co. 768, 777
v. Sunbury & Erie R. R. Co. 565 Payne v. Kansas, &c. Ry. Co. 763
Parkersburg v. Brown 317, 322, 700 v. Treadwell 346, 537
Parkinson v. Brandenberg 223 Pay son v. Payson 579
v. State 92, 209, 223, 225 Peabody v. School Committee 190
Parkland v. Gains 726 Peak v. Swindle 63
Parks, Ex parte 495 Pearce v. Atwood 52, 592
v. Boston 822 v. Olney 42
v. Goodwin 114 v. Patten 522
v. State (Ga.) 205 Pearsall v. Eaton County Supervisors 781
v. State (Ind.) 564 v. Great N. Ry. Co. 837, 852
Parmelee v. Lawrence 30, 617, 533, 537 v. Kenan 522
v. Thompson 139 Pearse v, Morrice 111
Parmiter Coupland
. 656 Pearson v. Int. Distill. Co. 207, 850
Parrish v. Commonwealth 435 v. Portland 556
Parroti's Chinese Case 25 v. Yewdall 20, 505
Parsons v. Bangor 903 Peart v. Meeker 754
v. Casey 407 Pease v. Chicago 333
v. Clark 752 v. Peck 33
v. District of Columbia 711, 731 Peavey v. Robbins 927
v. Goshen 311, 312 Peay v. Duncan 80
v. Howe 762 v. Little Rock 730
v. Russell 502 Peck v. Batavia 357
Parsons Oil Co. v. Boy 178 v. Freeholders of Essex 592
Parvin v. Wimberg 900 r. Holcombe 898
Pasadena r. Stimson 775, 777 v. Jenness 26
Ixxxiv TABLE OF CASES.
Page Page
Peck v. Lock wood 291 People v. Arensberg 882
r. Louisville, &c. Ry. Co. 754 v. Armstrong 289
v. Weddell 165, 920 v. Assessors 6'.)5
Pecot v. Police Jury 97 v. Auditor-General 402, 647
Peddicord v. Baltimore, &c. R. R. Co. 791 v. Austin 695
Pedigo v. Grimes 905 v. Baker 584
42, 580,
Pedrick v. Bailey 281, 286 v. Baltimore, &c. R. R. Co. 865
Peebles v. County Commissioner 935 v. Bangs 898
Peel v. City of Atlanta 780 v. Banvard 389
Peel Splint Coal Co. v. State 570, 572 v. Barker 389, 446, 468, 478
Peerce v. Carskadon 370, 372 v. Barrett 468
'
v. Kitzmiller 411 v. Batcliellor 243, 338, 340, 346, 360,
Peers v. Board of Education 262 703
Peete v. Morgan 691 v. Bates 914, 921, 929
Peik v. Chicago, &c. R. R. Co. 874, 875 v. Bellet 860
Pekin v. Brereton 363, 786 v. Bennett 589
v. McMahon 302 v. Berkeley 893
v. Reynolds 319 v. Berrien Cir. Judge 569
v. Winkel 363, 786 v. Biesecker 882
Pembina Mining Co. v. Pennsylvania 38 v. Bircham 160
Pemble v. Clifford 52 v. Bissell 162
Pendleton v. Russell 28 v. Blake 99
Pendleton Co. v. Amy 320, 321 v. Blakely 478
Penhallow v. Doane's Administrator 9 v. Blanding 222
Peninsula R. R. Co. v. Howard 595 v. Blodgett 89, 101, 255, 903
Peninsular Lead & C. Wks. v. Union v. Board of Assessors 684
Oil & P. Co. 408 v. Board of Canvassers 937
Penn v. Tollison 62 v. Board of Commissioners 454
Penn Mutual Life Ins. Co. v. Austin 384 v. Board of County Canvassers 900
Penn's Case 461 v. Board of Education (55 Cal.) 262
Pennie v. lleis 402 v. Board of Education (101 III.) 557
Penniman's Case 408 v. Board of Education (18 Mich.) 557
Pennoyer v. McConnaughy 24 v. Board of Education (13 Barb.) 2H2
v. Neff 20, 505, 506 v. Board of Managers, etc. 472
Pennsylvania Co. v. Commonwealth 738 v. Board of Registration 936
v. James 285 v. Board of Supervisors 268, 344, 738
v. McCann 525 v. Board, &c. of Nankin 936
v. Platt 815 v. Boston, &c. R. R. Co. 875
Pennsylvania Hall, In re 341 v. Bowen 220
Pennsylvania R. R. Co. v. Baltimore, v. Bradley 121
&c. R. R. Co. 392 v. Brady 40, 564
v. Canal Commissioners 565 v. Bragle 452
v. Commonwealth 690 v. Bray 568
v. Duncan 392 v. Brenahm 275, 909
v. Heister 823, 825 v. Bridges 879
v. Jersey City 282, 285 v. Briggs 206, 212, 247
v. Lewis 840 v. Brighton 761
v. Lippincott 812 v. Brislin 209
v. Marcliant 810, 812 .
Brooklyn 338, 340, 679, 716, 717,
v. Montgomery Co., &c. 808 729, 734, 812, 813
v. Miller 392, 874 v. Brooklyn Board of Assessors 680
v. New York, &c. R. R. Co. 787 v. Brooklyn Common Council 895
v. Riblet 237, 841, 844 v. Broom 931
Pennsylvania S. V. R. R. Co. v. v. Brown 161, 893
Cleary 827 v. Budd 871, 893
w.Walsh 810,811,812 v. Buffalo Fish Co. 879
Pennsylvania Tel. Co., Re 690 v. Bull 99, 248, 388, 389
Penny wit v. Foote 42 v. Bunker 251
Penrice v. Wallace 824 v. Burns 92, 927
Penrose v. Erie Canal Co. 406, 410 v. Burt 194
People v. Alameda 336 v. Butler 383
v. Albany, &c. R. R. Co. 938 v. Butler St. F. & I. 5t>3
v. Albertson 65, 99, 237, 242, 364, 389 v. Butte 166
v. Allen 106, 113, 209, 262, 468, 584 v. Campbell 116, 200
v. Amer. Bell Tel. Co. 694 ""
v. Canaday !
v. Angle 92
.. v. Canal Appraisers bu/
TABLE OF CASES. Ixxxv
Page Page
People v. Cannon 451 People v. Eaton 804
v. Canty 339 v. Eddy 744
v. Carrigue 894 v. Elk River, &c. Ry. Co. 757
v. Cassels 496 v. Ewer 890
v. Chase 134 v. Fairman 496
v. Chicago 243, 326,339, 340, 346, 643, v. Fancher 123
695 v. Father Mathew Society 207
v. Chicago Gas Trust Co. 562, 877 v. Felker 474
v. Chicago W. D. Ry. Co. 278 v. Ferguson 916
v. Chung ah Chue 452 v. Finley 437
v. Cicott 85, 591, 912, 913, 914, 916, v. Finnigan 464
918, 920, 930, 931, 932, 938, v. Fire Ass. 707
941, 943, 944 v. Fisher 240
v. Cipperly 882 v. Flagg 258, 336, 703, 705
v. Clapp 712 v. Flanagan 389, 435
v. Clark 223, 468 v. Fleming 166, 257
v. Clute 932 v. Ford 481
v. Coleman 37, 86 v. Freeman 158
v. Coler 274, 673, 877 v. Freer 643
v. Collins 163, 172 v. Frisbie 138, 559
v. Colman 742 v. Ft. Wayne & E. R. Ry. Co. 298
v. Commissioners (59 N. Y.) 400 v. Gad way 213
v. Commissioners (4 Wall.) 683 v. Gallagher 241, 242, 657, 849
v. Commissioners of Highways 186, v. Garbutt 437, 466
194, 195, 201 v. Gardner 177, 450
v. Commissioners of Taxes 396,683 v. Gastro 461
v. Common Council of Detroit 33i, v. Gates 686
340, 343, 361, 364, 699, 703 v. Gay 38
v. Compagnie 686, 832, 858 v. Gerke 25
v. Comstock 462 v. German, &c. Church 661
r. Conley 661 v. Gies 101, 593
v. Coolidge 656, 561, 837, 887 v. Gilbert 524
v. Cook (14 Barb, and 8 N. Y.) 110, v. Gillson 888
914, 915, 916, 918, 921, 929, v. Goddard 895
935, 937, 941 v. Goodwin 468, 469, 937
v. Cook (10 Mich.) 467, 468 v. Gordon 928
v. Cook 397 v. Governor 162, 228
v. Corning 462 v. Gray 320
v. County Board of Cass 319 v. Green 62, 388, 814, 816, 895
v. Courtney 447 r. Hall 189, 247, 403
v. Cover 940 v. Hanifan 894
v. Cowles 123, 276, 909 v. Hanrahan 203, 279, 281, 884
v. Croswell 465 v. Harding 102, 469
v. Cullom 162 v. Hardisson 469
v. Cummings 160, 472, 589 r. Hart well 114, 275, 909, 931
v. Curry 222 v. Haskell 389
v. Curtis 41, 469 v. Hatch 188, 220
v. Daniell 129 v. Hauck 213
v. Davenport 396, 740 v. Haug 206, 473, 558, 851, 885
v. Dawell 42, 43, 579, 580 v. Ha v nor 837
v. Dayton 104 t7. Hawes 340
v Dean
. 564 v. Hawley 849
v. Denahy 209, 213 v. Hawker 376
v. D. G. H. & M. Ry. Co. 781 v. Hawkins 855
v. Dettenthaler 203 v. Hayden 814,815
v. Devine 451 375
v. Hayes
v. Devlin 219 v. Henderson 706
v. Dill 462 v. Hennessy 445
v. Doe 114, 695 . Henshaw 183
v. Donohue 39 v. 917, 929, 930. 934,
Higgins
v. Draper 78, 128, 239, 258, 265, 266, 937, 941
831 v. Kill 246, 570
v. Dubois 389 v. Milliard 035
v. Dudley 209 v. Hobson 644
v. Dunn 165, 195, 454 v. Hoffman 130, 894, 906
v. Durston 473 v. Hoge 121
Ixxxvi TABLE OF CASES.
Page
People v. Holden 905, 915, 941 People v. McCann 209, 211, 437
v. Holley 114 v. McCreery 336, 744
v. Holly 310 v. McDonald (Cal.) 468
v. Howard 180, 205, 451 v. McDonald (5 Wyo.) 375
v. Howland 389 v. McDonnell 437
v. Hubbard 425 v. McKlroy 92, 194, 199, 200
v. Hurlbut 69, 194, 207, 209, 243, v. McFadden 173
263, 265, 334, 346, 360 v. McGowan 467, 470
v. Hutchinson 115 v. McKay 452
r. Imlav 37 v. McKinney 99, 389
v. Ingersoll 391, 404 v. McMahon 443, 445, 446
v. Institution, &c. 205 v. McManus 914, 920, 929
r. Jackson & Michigan Plank R. v. McNealy 468
Co. 392, 414, 838, 839 v. McNulty R75
v. Jenkins 860, 868 v. McRoberts 121, 761
v. Jenness 677 v. Medical Society of Erie 292
v. Jones 450, 935, 937 v. Mellen 207
v. Kane 898 v. Mercein 497
v. Keeler 193 v. Merrill 177
v. Keenan 480 r. Mills 61
v. Kelly 496 v. Miner 468
v. Kelsey 265 v. Mitchell 527, 543
v. Kennedy 919 v. Molliter 932
v. Kenney 231, 247 v. Mondon 446
v. Kent County Canvassers 922 v. Monroe Co. Ct. 160, 468
v. Kerr 781, 794, 796, 801 v. Moore 436
v. Kerrigan 441 v. Morrell 89, 128
v. Kier 285 v. Morris 244, 268, 344, 360, 389
v. Kilduff 911, 935 v . Mortimer 382
v. Kipley 158, 159 v. Morton 162
v. Kniskern 817 v. Mosher 158, 159
v. Koeber 685 v. Most 603
v. Kopplekom 906, 907 . Mulholland 287
v. Lake Co. 120 v. Murphy 451, 482
v. Lake Shore, &c. Ey. Co. 781, 839 v. Murray 251, 441
r. Lamb 466 v. Nally 167
v. Lambert 445, 450 v. Nearing 770
v. Lambier 566 v. Newton 299
v. Lawrence 115, 119, 202, 247 v. New York 399, 754, 756, 838, 867
257,309, 311 v. New York Catholic Protectory 423
v. Leonard 895 v. Nichols 748
v. Le Roy 447 v. Noelke 383, 449
v. Levee Dist. No. 6 182 v. Nostrand 894
v. Lippincott 388 v. N. Y. Central R. R. Co. 93, 101,
v. Liscomb 471, 474, 495 241, 242, 257
v. Livingston 941 v. O'Brien 212, 449, 507
v. Londoner 911, 937 v. Olmstead 382
v. Loomis 915 . O'Neil 852, 879
v. Lothrop 364 v. Ormsby 453
v. Lott 581 v. Osborne 128, 158
v. Lowrey 453 v. Otis 403
v. Lynch 531, 545 v. Parker 74
v. Lyng 693, 846 v. Pease 912, 914, 917, 920, 928, 935,
v. Mahaney 189, 193, 194, 204, 206, 941, 943
216,239, 346, 746 r. Peck 114
v. Majors 467 v. Phelps 382
v. Mallett 375 v. Phillips 445, 933
v. Manhattan Co. 392 v. Phippin 37, 560, 890
v. Martin 162, 908 v. Phyfe 891
v. Marx 882 r. Pine 464
v. Matteson 914, 920, 937, 940 v. Pinkerton 40
v. Maynard 108, 276, 364, 926 v. Pinkney 267
v. Mayor, &c. of Brooklyn 735 v. Plank Road 531
v. May worm 916 v. Platt 218, 386
v. McAdams 663 v. Porter 445, 674, 908
v. McCallum 207, 209, 216 v. Potrero, &c. R. R. Co. 55
TABLE OF CASES. Ixxxvii
Page
Ixxxviii TABLE OF CASES.
Page Page
People v. Yonkers 574 Phelps v. Schroder 935, 936
v. Young 129, 365 Phelps' Appeal 516
Peoria Callioun
v. 281, 292 Phenix Ins. Co. v. Burdett 38
v. Kiclder 717, 728, 741 v. Hart 671
Peoria, &c. R. K. Co. v. Duggan 528, 556, v. Pollard 644
841 Philadelphia v. Commonwealth 681
v. Peoria, &c. Co. 398 v. Dickson 818
Peoria County v. Harvey 818 v. Dyer 818
Percy, In re 481 v. Fox 266, 267, 360
Perdue v. Burnett 605 v. Gray's Ferry Co.'s Appeal 398
Pereless v. Watertown 524 v. Miller 712
Perkins, Ex parts, 454 i;. Rule 730
v. Burlington 726 v. Scott 831, 868, 878
v. Carraway 915 v. Smith 356
v. Corbin 388 v. Tryon 736, 860
v. Grey 478 v. Ward 778
v. Heert 66 Philadelphia Assoc., &c. v. Wood 725
v. Lawrence 306 Philadelphia Fire Ass'n v. New York 20,
v. Lewis 325 31, 687
v. Milford , 333 Philadelphia M. & S. S. R. Co.,
v. Mitchell 629 Petition of 764
v. Perkins 529 Philadelphia & Reading R. R. Co. v.
v. I. M. & S. R. Co.
St. Louis, 571 Yeiser 826
Perley i\ Mason 417 Philadelphia & Trenton R. R. Co.,
Perret v. New Orleans Times 650 Case of 791
Perrin v. New London 318 Philadelphia, &c. R. R. Co. v. Bowers 874
Perrine v. Chesapeake & Delaware v. Quigley 620
Canal Co. 565 Philadelphia, &c. Ry. Co.'s Appeal 759
v. Farr 585 Philadelphia S. S." Co. v. Pennsyl-
v. Serrell 80 vania 688
Perry v.Keene 238 Philips v. Bury 360
v. Lewis 80 Philleo v. Hiles 706
v. Man 606 Phillips v. Allen 292
v. Reynolds 904, 927 v. Berick 81
v. State 495 v. Bridge Co. 902, 212
v. Washburn 678 v. Council Bluffs 296
v. Wheeler 661 v. Covington, &c. Co. 209
v. Whittaker 936 v. Dunkirk, &c. R. R. Co. 760
Perry County v. Con way Co. 269 v. Gallagher 899
Perry's Case 374, 677 v. People 281
Persons v. Jones 82 v. South Park Com'rs 816
Peru French
v. 356 v. Stevens Point 712
Pesterfield v. Vickers 279 v. Watson 766
Peterman v. Huling 226 v. Wickham 735
Peters v. Fergus Falls 304 v. Wiley 607
v. Iron Mt. R. R. Co. 836, 844 Phillips Academy v. Andover 736
v. State 879 Phillpotts v. Blasdel 80
Petersburg v. Cocke 719 Phinizy v. Augusta 362
v. Metzker 279 Phinney v. Phinney 413
Petersilea v. Stone 898 Phipps c. State 868
Peterson v. Kittredge 749 v. West Md. R. R. Co. 791
v. Lothrop 82 Phoenix Ins. Co. v. Allen 480
Petit v. Minnesota 21, 860 v. Commonwealth 37
Pettengill v. Chelsea 305 v. Welch 165, 707
Pettibone v. La Crosse & Milwaukee Phoenix Fire Ass'n Co. v. Mont-
R. R. Co. 819 gomery Fire Dept. 215, 696
Pettigrew v. Evansville 757 Phoenix F. & M. Ins. Co. v. State
v.Washington Co. 595 v. Tennessee 397
Petty v. Tooker 661 Piatt v. People 929
Pfeiffer v. Board of Education 667 Pickard r. Pullman, &c. Co. 689
Pharis v. Dice 412 Pickett v. Boyd 516, 630
Phelps v. Goldthwaite 920 v. Russell 908, 930, 933
v. Meade 751 v. School District 262
v. Phelps 252 Picquet, Appellant 138
v. Piper 900 Piek v. Chicago, &c. R, R. Co. 830
v. Racey 879 Pierce v. Bartrum 854
TABLE OF CASES. Ixxxix
Page
Pierce v. Beck 262 Platteville v. Bell 285
v. Boston, &c. R. R. Corp. 804 Pleasant v. Kost 737
F. Drew 770, 787 v. State 464
v. Getchell 927 Pleasant Tp. v. Aetna Life Ins. Co. 32
v. Hubbard 589 Pleasants v. Rohrer 521
v. Kimball 517, 890 Pledger v. Hathcock 607
v. Maryland 882 Plessv v. Ferguson 16, 19, 869
v. New Bedford 301 Pleufer v. State 400, 709, 710
v. New Orleans Building Co. 275 Plimpton v. Somerset 341, 454
v. Pierce 259 Plitt v. Cox 801, 809
v. Somerset Ry. 36 Plumb v. Christie 845
v. State 464 v. Sawyer 615, 529
Union Dist.
v. 557 Plumley Massachusetts
v. 849, 858
Pierpont v. Crouch 214 Plummer v. Coler 683
Pierson v. State 52 v. Yost 99
Pike v. Megoun 104, 927 v. Plummer 104
v. Middleton 308 Plunkard v. State 19
v. State 707 Plurality Elections, In re 931
Pike Co. v. Barnes 167 Plymouth v. Painter 897 898
v. Rowland 275 Pocantico Water Wks. Co. Bird 767 v.
Page Page
Purdy v. Erie Ry. Co. 875 Railroad Co. v. Hambleton 802
Purvear v. Commonwealth 46, 851 v. Hicks 237
Puryear v. State 451 v. Husen 881
Putnam v. Johnson 903, 904 v. Jackson 694
v. Lake 760
v. Lawrence 802
Q. v. Maine 394
v. McClure 62
Quackenbush v. Banks 408, 529 v. Mississippi 23, 29
v. District of Columbia 816 v. National Bank 35
v. Wisconsin, &c. B. R. Co. 842 v. Peniston 684
Quarles, Re 568 v. Philadelphia 896, 740
v. State 860 v. Pounds 630
Quarrier, Ex parte 372 i;. Prescott 683
Queen, The, v. Badger 439 v. Renwick 787
v. Coaks 932 v. Richmond 510, 781
v. Collins 612-614 v. Rock 30
v. Hennessy 177 v. Shurmeir 801
v. Justices of Hertfordshire 695 v. Tennessee 24, 410
v. Justices of London 595 v. Trimble 42
v. Justices of Suffolk 595 v. Warren Co. 114
v. Lefroy 643 v. Whiteneck 209
v. Newman 658 Railroad Com. Cases 18, 874
v. Pikesley 443 Railroad Commissioners v. Port-
Quick v. Whitewater Township 92 land, &c. R. R. Co. 394, 843
Quigley v. Pa. S. V. R. R. Co. 811 Railway Gross Receipts Tax 689
Quill v. Indianapolis 321 Raleigh v. Peace 730, 731
Quimby v. Vermont Central R. R. v. Sorrell 888
Co. 808 Raleigh, &c. R. R. Co. v. Davis 777
Quincy v. Jackson 319, 745 Reid
v. 395
v. Jones 296 Ralstonv. Lothain 515
Quinn v. Markoe 911, 929 Ramsey v. People 570, 877
ff. State 99, 902, 929 Ramsey County v. Lewis Company
Quong Woo, Matter of, 294, 890, 891 (72 Minn.) 729, 731
v. Lewis Company (82 Minn.) 731
v. MacAlester College 740
R. Rand v. Commonwealth 382, 383
Randall v. Eastern R. R. Corp. 304
Rabb v. Supervisors 524 v. Jacksonville, &c. Co. 795
Racine I. Co. v. McCommons 689 v. Kehlor 591
Radcliffe v. Eden 346 v. Railroad Co. 301
Radcliffe's Executors v. Brooklyn 296, Randolph, Ex parte 231
781, 783 v. Board of Freeholders 824
Rader v. Road 267
District v. Good 99, 370
v. Union 212 Randolph Co. v. Rails 588
Rae v. Flint 272 Randolph's Executor v. Quidnick 32
Rafferty v. Central Traction Co. 803 Rangely v. Webster 421
Ragatz v. Dubuque 815 Ranger v. Goodrich 607
Ragis v. State 213 v. Great Western R. R. 593
Rahrer, Re (43 Fed.) 259 Rankin v. McCallum 267
Re (140 U. S.) 847 v. West 95
Railway v. Munday 415 Rape v. Heaton 42, 583, 586
Rail v. Potts 927 Rash v. Farley 689
Railroad Co. v. Alabama 24, 410 Rasmussen v. Baker 944
v. Bearss 915 v. Idaho 853
v. Blake 779 Ratcliffe v. Anderson 138
v. Brown 20 Rathbone v. Bradford 223
v. Commissioners 694 v. Wirth 158, 244
v. Com'rs of Clinton Co. 163, 167 Rathbun v. Wheeler 616
v. Dayton 806 Hatterman v. W. U. Tel. Co. 689
v. Ellis 886 Ratzky v. People
Ferris
. 813 Rauch v. Chapman 321
v. Foreman 824 Rauenstein v. N. Y. L. & W. Ry. Co. 784
v. Fuller 836, 840, 874 Raw ley v. Hooker 412
v. Georgia 34, 47 Rawson v. Spencer 261, 268, 269, 345
v. Gregory 209 Ray v. Manchester 301
XC11 TABLE OF CASES.
Page Page
Kay v. St. Paul 362 Reinken v. Fuehring 714
v.Sweeney 62 Reiser v. Tell Association 136, 137
Ray Co. v. Bentley 348 Reitan v. Goebel 607
Raymond v. Fish 858, 854 Reitenbaugh v. Chester Valley R. R.
Rea v. Harrington 606 Co. 761
Read v. Case 487 Reithmiller v. People 237
v. Plattsmouth 183, 210, 336, 539 Remington, In re 454
Reading v. Keppleman 296 r. Congdon 619
r. Savage 183 Remington Paper Co. v. Watson 31
Reading & P. R. R. Co. v. Balthasar 822 Remsen v. People 466
Reagan v. Farmers' L. & T. Co. 24, 872 Renner v. Bennett 933
v. Mercantile T. Co. 873, 874 Kennselaer v. Leopold 759
Ream v. Kearns 694, 595 Reno Smelting Works v. Stevenson 52
Reardon v. San Francisco 296, 811 Rentz v. Detroit 729
v. St. Louis 355 Requa v. Rochester 368
Rearick v. Wilcox 623, 624 Re-reading of Bills 200
Reaume v. Chambers 52 Response to House Resolution 166, 167
Recalling Bills, Re 219 Respublica v. Dennie 603, 616
Recht v. Kelly 252 v. Duquet 286, 878
Reciprocity Bank, Matter of the 62 v. Gibbs 922, 923
Reckner v. Warner 691 v. Oswald 453, 643
Re-creation of New Counties 199 v. Passmore 643
Rector v. Smith 612, 630, 631 Reusch v. Chicago, &c. R. R. Co. 757
Red River Bridge Co. v. Clarksville 757, Revis v. Smith 629
786 Rex. (See King, The.)
Red River Val. Nat'l Bk. v. Craig 407 Rexford v. Knight 809, 814, 815
Red Rock v. Henry 217 Reymann Brewing Co. v. Brister 694
Reddall u. Bryan 31, 755, 769 Reynolds, Ex parte 104
Redell r. Moores 248 v. Adden 44
Redfield v. Florence 923 v. Baker 66, 522, 817, 818
Redgate v. Roush 612 v. Baldwin 267, 268
Redmond v. Tarboro 739 v. Geary 849
Redwood Co. v. Winona, &c. Co. 631, 712 v. New Salem 275
Reed v. Beall 404 v. Shreveport 296
v. Belfast 303 v. State 937
v. Ohio, &c. Ry. Co. 761 v. Stockton 41, 42, 43, 44
v. Reed 42, 579 v. United States 662, 668
v. Rice 46 Rhine t'. McKinney 817
v. State 209 Rhinehart v. Lance 454
v. Toledo 271 Rhines v. Clark 691
v. Tyler 627 Rhodes v. Cincinnati 296
.
Wright 603 v. Cleveland 304
Reelfoot Lake Levee Dist. v. Dawson 718 v. Iowa 847
Rees's App. 770 v. Otis 861
Reetz t;. Michigan 890 v. Weldy 96
Reeves v. Treasurer of Wood Co. 717, Rice v. Austin 162
728, 735, 754, 765, 770, 868 v. Des Moines 363
Reformed Church v. Schoolcraft 522, v. Evansville 302
661 v. Foster 163, 171, 173
Reformed P. D. Church v. Mott 146, 149 v. Parkman 141, 149
Regents of University v. Williams 149 v. Ruddiman 224
176, 232, 250 v. State 183, 228
Reggel, Ex parts. 39, 40 v. Turnpike Co. 824
Regina. (See Queen.) Rice's Case 481
Regnier v. Cabot 607 Rich v. Braxton 750
Rehoboth v. Hunt 386 v. Chamberlain 160
Reich v. State 281 v. Chicago 817
Reichert v. St. Louis 791, 828 v. Flanders 253, 409, 611, 525, 630,
Reid v. Delorme 618,619 544
v. Ham 41 Richard Oliver, In re 171
v. Norfolk City Ry. Co. 804 Richards v. Raymond 261
v. Smoulter 99 r. Rote 151, 646
607 v. Wolf 764
Reilly v. Stephenson
Reimsdyke v. Kane 36 Richardson v. Boston 695
v. M on son
Reining v. N. Y., L. E. & W. R. 146
Co. 799, 811 v. Morgan 717, 730
TABLE OF CASES. XC111
Page Page
Richardson v. Roberts 607 Roberts, In re 195, 201
v. Scott's Bluff Co. 198 v. Caldwell 42
v. State 628 v. Calvert 922, 929, 933, 937
v. Union Cong. Soc. 661 v. Chicago 296, 783
v. Vermont Central R. R. Co. 781, v. Lewis 27
785 v. Louisville 130
v. Webster City 296 v. Ogle 286. 860, 884
v. Welcome 595 v. People 445
Riche v. Bar Harbor W. Co. 769 v. Reilly 39,40
Richland Co. v. Lawrence Co. 266, 268, v. State 453
339, 345 391 Robertson v. Baldwin 14, 23
v.Richland Center 346 v. Bullions 660
Richman v. Muscatine Co. 182 v. Land Commissioner 387
v. Supervisors 182 v. Omaha 713
Richmond v. Daniel 745 v.Rockford 167, 266, 325
v. Dudley 288 290 Robeson v. Brown 412
v. Long 306, 356, 357 360 Robie v. Sedgwick 276
v. McGirr 320 Robinson, Ex parte 13, 453, 492, 707
v. Richmond, &c. R. R. Co. 390, 407, Re 425
565 v. Bank of Darien 212, 247
v. Supervisors 630 v. Bidwell 171, 247
Richmond & A. R. R. Co. v. Lynch- v. Cheboygan Superv. 189
burg 717 v. Commonwealth Insurance Co. 35
v. Patterson 852 Estate of 272
Richmond & D. R. R. Co. v. Reids- v. Evansville 301
ville 709 v. Greenville 302
Richmond, &c. Co. v. Rogers 781, 785, v. Hamilton 890
822 v. Howe 413
Richmond, &c. R. R. Co. v. Louisa, t7. Kalbfleish 924
&c. R. R. Co. 565, 757 v. N. Y. & Erie R. R. Co. 786
Richmond Co. Acad. v. Augusta 21 v. Oceanic S. N. Co. 37
Richmond & My. Ry. Co. v. Hum- v. Pa. Ry. Co. 778
phreys 827 v. Richardson 434
Richmond N. G. Co. v. Clawson 877 v. Robinson 822
Ricketts v. Spraker 251, 587, 743 v. Schenck 253, 265
Riddle v. Proprietors of Locks, &c. 348, v. Skipworth 208
351, 356 v. State 209
Ridge Street, In re 783 v. Swope 765
Rigg v. Wilton 85 v. Ward's Ex'rs 41, 583
Riggin's Ex'rs v. Brown 82 West . 588
Rigney v. Chicago 296, 810, 811 v. White 388
Riley v. Rochester 312 Roby v. Colehour 30
Riley's Case 383, 496 v. Smith 38
Rima v. Cowan 751 i>. West 636
Rinard v. Burlington, &c. Ry. Co. 797 Roche v. Waters 632, 546
Ring, Matter of 496 Rochester 17. Collins 271
7. Wheeler 633 v. Rush 312, 695
Rio Grande, The 80 v. Upman 710
Rippe i'. Becker 327 Rochester H. & L. R. R. Co., Matter
Rison v. Farr 99, 406, 411. 518, 519 of 807
Risser v. Hoyt 86, 129, 590 N. Y., &c. Co.
. 807
Ritchie v. People 570 Rochester Water Com'rs. Re 758
River Rendering Co. v. Behr 286, 291 Rochester White Lead Co. v. Roches-
Rivers v. Augusta 301 ter 356, 362
Rixner's Succession 708 Rockford, &c. R. R. Co. v. Coppin-
Roach v. Board, &c. 261 ger 825
Roanoke, &c. R. R. Co. v. Davis 316 v. Hilmer 843
Roanoke City v. Berkowitz 809 Rockland Water Co. v. Camden, &c.
Robards v. Brown 412 Co. 549
Ro Bards v. Lamb 20 Rockport v. Walden 522
Robb v. Connolly 494 Rockwell v. Hubbell's Adm'rs 406, 408,
Robbins v. Fletcher 607 515
v. Shelby Taxing Dist. 688 ,694 v. Nearing 520, 582
v. State 464 Rode v. Siebe 718
Robbins v. Treadway 606, 628 629 Ro'demacher v. Milwaukee, &c. R. R.
Roberson i\ Rochester, &c. Co. 510 Co. 394, 841
XC1V TABLE OF CASES.
Page Page
Roderigas v. 80
Savings Institution Rounds v. Way mart 217
Rodman v. Harcourt 895 Roundtree v. Galveston 717
Roe v. Deming 263 Rouse H. & Co. i>. Donovan 671
Roethke v. Philip Best Brewing Co. 850 Roush v. Walter 867
Rogers v. Bradshaw 813 Roushlange v. Chicago, &c. Ry. Co. 826
v. Buffalo 158, 159, 894 Rousseau v. New Orleans 406
v. Burlington 167, 319 Routsong v. Wolf 538
v. Coleman 42 Rowan v. Runnels 33, 121
v. Goodwin 106 v. State 459, 503
v. Greenbush 529 Rowe v. Addison 757
v. Jacob 910 v. Granite Bridge Corporation 786
v. Jones 279 v. Portsmouth 304, 363
v. Manuf. Imp. Co. 213 Rowland v. Kalamazoo Supts. 306
v. State 216 v. State 400
v. Stephens 631 Royal v. Thomas 592
v. Vass 224 Royal British Bank v. Turquand 323
Rohan-Chabot's Estate, Re 709 Royall, Ex parte 493, 496
Rohrbacker v. Jackson 901 Rozier v. Fagan 148
Rolfs, In re 454 Ruch v. New Orleans 475
Roll o. Augusta 296 Rude v. St. Louis 810, 812
Roller v. Holly 20 Rue High's Case 903
Rollins, Ex parte 496 Ruggles v. Collier 294
Rolpli v. Fargo 731 v. Nantucket 757
Rolston v. Missouri Fund Com'rs 24 v. People 875
Romaine, Re 708 Rugh v. Ottenheimer 515
Rome v. Omberg 296 Ruhl, Re 161
Rood v. McCargar 246 Ruhstrat v. People 668
Roosevelt v. Meyer 31 Rulison v. Post 263
Roosevelt, Estate of, Re 709 Ruloff v. People 447
Root v. Right 478 v. State 445
Root's Case 822 Rumney v. Keyes 484
Roper v. Laurinburg 272 Rumsey N. Y., &c. Ry. Co.
v. 782
Ropes v. Clinch 25 People
t-. 108, 364
Rosdeitscher, In re 177 Rundle v. Foster 478
Rose v. Hardie 860 Runge v. Franklin 630
v. Rose 513 Runnels v. State 444
v. Truax 198 Runyon v. Coster's Lessee 178
Roseberry v. Huff 749 Ruohs v. Backer 630, 633
Rosenbaum v. Newbern 288 Rupert v. Martz 406, 548
Rosenblat, Ex parte 39 Rusch v. Davenport 356, 357
Rosenblatt, Ex parte 259, 496, 694 Rush v. Cavenaugh 482
Rosenbloom v. State 887 Rushing v. Sebree 213
Rosenburg v. Des Moines 358 Rushville v. Rushville N. G. Co. 876
Rosenheim v. Hartsock 588 Rushville Gas Co. v. Rushville 202, 272
Rosenthal v. State Board of Can- Russell v. Anthony 628
vassers 935 v. Ayer 120
Rosier v. Hale 515 v. Belcher 592
Ross v. Clinton 307 v. Burlington 296
v. Crockett 275 v. Burton 196
v. Davis 766, 825 v. Chittenden 751
v. Duval 33 v. Cooley 130
v. Irving 552 v. Croy 573, 708
v. Lister 252 v. Men of Devon 278,350,355
?'.
Mclntyre 47, 456 v. New York 767, 878
v. McLung 33 v. Perry 42
v. State 446 v. Pyland 924
v. Ward 620 v. Rumsey 614, 539
v. Whitman 131 v. State 262
Ross's Case 383, 496 v. Whiting 495
Rosser, Re 442 Russellville v. White 284
Rossmiller v. State 673 Rust v. Gott 924
Roth v. Ehman 31 Lowe
v. 810
v. House of Refuge 423 Rutgers v. Mayor of Brunswick 563
Rothermel v. Meyerle 691, 693 Ruth, In re 851
Rothschild o. Grix 86 Rutherford v. Hamilton 736
Rounds v. Mumford 296 Rutland v. Mendon 85
TABLE OF CASES. XCV
Page
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.
Metcalf
v.
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
XCV1 TABLE OF CASES.
Page
Schattner v. Kansas City 296 Scott r. Sandford 89
Schee v. La Grange 687 v. School District 262
Schenley v. Alleghany City 717 v. Smart's Ex'rs 237
v. Commonwealth 515, 529, 535 v. Willson 861
Sehideler v. State 470 Scoville v. Canfield 181
Schipper v. Aurora 274 v.Cleveland 716, 728, 730
Schliet v. State 859 Scranton v. Penn. Coal Co. 730
Schlitz v. Roentz 574 v. Wheeler 782, 787
Schmalz v.Woolley 66 Scranton School Dist., App. of 183
Schmidt, Ex parte 217, 454 Scribner v. Rapp 660
v. Failey 719 Scripps v. Reilly 637, 650
Schneider v. Detroit 785 Scudder v. Coler 30
Schnier v. People 435 v. Trenton, &c. Co. 775
Schoen Bros. v. Atlanta 290 Scuffletown Fence Co. v. McAllister 594
Schoenheit v. Nelson 616 699, 868
Seholle v. State 163 Seaman's Friend Society v. Boston 741
Schollenberger v. Pennsylvania 848 Seamster v. Blackstock 588
School Board v. Patten 120 Searcy v. Grow 932
School Directors v. Hart 262 Searle v. Clark 941
School District v. Atherton 275 v. Lead 754, 784
v. Board of Education 269, 275 Sears v. Board of Aldermen 717
v. Col v in 262 v. Com'rs of Warren Co. 37
v. Fogelman 262 v. Cottrell 128, 242, 253, 506
v. Fuess 362 v. Terry 586
v. Gage 262 Seattle v. Smyth 891
v. Insurance Co. 182, 348 Seattle & M. Ry. Co. v. Murphine 826
v. Merrills 748 .State 756, 758, 778, 807
v. Stone 322 Secombe v. Kittelson 59, 63
v. Wood 348, 349, 350 v. Railroad Co. 760
Schoolfield Exec. v. Lynchburg 707 Second Ward Sav. Bk. v. Schrank 404
School Law Manual, In re 182 Secord v. Foutch 910
Schooner Paulina's Cargo v. United Sedgwick v. Stanton 197
States 89 Sedgwick Co. v. Bunker 268, 515
Schooner Rachel v. United States 516, Seeley v. Bridgeport 590
544 Seely v. Pittsburg 730
Schopp v. St. Louis 298 Seery v. Viall 605
Schroers v. Fisk 80 Sego v. Stoddard 900, 911
Schuchardt v. People 896 Seibert v. Lewis 406, 415
Schular v. State 453 v. Linton 137
Schulherr v. Bordeaux 118, 120, 174 Seifert v. Brooklyn 304
Schultz v. Milwaukee 301 Selby v. Bard on s 84
Schurman v. Marley 62 Selden t;. Jacksonville 781, 783
Schurmeier v. St. Paul, &c. R, R. Co. 791 Selin v. Snyder 586
Schussler v. Hennepin County Com'rs 306 Selkirk v. Stevens 879
Schuster v. Weiss 386 Seller v. Jenkins 605
Schuyler v. Curtis 510 Selraa, &c. R. R. Co., Ex parte 167
Schwab v. Berggren 22 Selman v. Wolfe 863
Schweiss v. First Jud. Dist. Ct 183 Selsby v. Redlon 533
Scituate v. Weymouth 269 Semayne's Case 428
Scofield v. Walk ins 743 Semler, Petition of 495
Scotland Co. v. Thomas 321 Semple v. Vicksburg 306
Scotland Co. Court v. United States 319 Senate Bill, Re 73
Scott, Re 442 Senate File, In re 60
Ex parte 161 Senate of Happy Home Club v. Al-
v. Clark 225, 226 pena Co. 164
v. Coleman 43 Senate Resolution, In re 73, 219
v. Detroit Young Men's Soci- Seneca Min. Co. Sec'y of State 259
ety's Lessee 56, 63 Senior, Ex parte 455
v. Donald 24, 847 Sentell v. N. O. & C. Ry. Co. 881
i;. Fishblate 306 Sequestration Cases 414
v. Hooper 677 Sergeant v. Kuhn 146
v. Jones 30 Sen-ill v. Philadelphia 726
v. Manchester 356 Servatius v. Pichel 619
. Mather 553 Servis v. Beatty 101
v. McKinnish 608 Sessions v. Crunkilton 728, 735, 868
v. McNeal 80, 575 Sessums v. Bolts 259
TABLE OF CASES. XCV11
Page Page
Settle v. Van Evrea 92 Shelly's Appeal 52
Setzler v. Va. &c. R. R. Co. 825 Shonandoah V. R. R. Co. v. Griffith 83
Seven Hickory v. Ellery 220 v. Shepherd
822, 825
Severn v. Regina 832, 858 Sliepard v. Dowling 240, 848
Sewall v. Sewall 580 Shepard's Case 15
v. St. Paul 363 Sliepardson v. Milwaukee, &c. R. R.
Sewell v. Board of Education 263 Co. 267, 815, 816, 817
v. State 60 Shephard v. Wheeling 132
Sewickley v. Sholes 213 Shepherd v. Chelsea 301
Sexton v. Todd 607 v. Commissioners 891
Seymour v. Cummins 302 v. People 381
v. Hartford 741 Shepherd's Fold v. Mayor, &c. N. Y. 698
v. Turnpike Co. 316 Sheppard's Election Case 929
Shackford v. Newington 331, 701 Sherbourne v. Yuba Co. 355, 357
Shackleford v. Coffey 773 Sheridan v. Salem 216
Shadden v. McElwee 629 Sherman v. Buick 765
Shafer v. Mumma 280, 286 v. Carr 308
Shaffer v. Union Mining Co. 888 v. Langham 387
Shanahan v. City of Waterbury 826 v. Milwaukee, &c. R. R. Co. 761
Shannon v. Frost 660, 661 v. Story 194
Shapleigh v. San Angelo 267 Sherman Co. v. Simons 322, 348
Sharon Ry. Co.'s App. 807 Sherrard v. Lafayette Co. 320
Sharp v. Contra Costa Co. 336 Sherwood v. Dist. Columbia 363
v. New York 210 v.
Fleming 540
v. Spier 717 Shideler v. State 470
v. State 159 Shields v. Bennett 209, 216
v. Thompson 898 v. Clifton H. Land Co. 535
Sharpe v. United States 828 v. Coleman 27
Sharp's Ex'rs v. Dunavan 702 v. Durham 305
Sharpless v. Mayor, &c. 167, 331, 679, 701 v. Jacob 900
Shartle v. Minneapolis 363 v. McGregor
911, 932
Shattuck v. Allen 656 Shifflet v. Commonwealth 444
v. Chandler 52 Shiner v. Jacobs 402
Shaver v. Penn. Ry. Co. 556 Shipley v. Todhunter 612
Shaw, Ex parte 495 Shipp v. McGraw 605
v. Charlestown 818 v. Miller 83
v. Crawford 861 v. State 453
v. Dennis 702, 738 Shipper v. Pennsylvania R. R. Co. 38
v. Macon 176 Shires v. Commonwealth 13
v. Moore 677 Shissler v. People 577
v. Nachwes 497 Shobert v. May 454
v. Norfolk R. R. Corp. 541 Shock v. McChesney 629
v. Thompson 484 Shoemaker v. United States 756, 768,
Shawnee County v. Carter 111 775, 778, 824, 826
Shawneetown v. Mason 296 Sholl v. German Coal Co. 765, 777
Sheahan v. Collins 644 Shonk v. Brown 151, 529, 540
Shealy v. Chicago, &c. Ry. Co. 786 Shore State
v. 438
Shear v. Box 68 Short Bullion B.
v. & C. Mining Co. 891
Shearlock v. Beardsworth 609 Shorter, Matter of 371
Sheckell v. Jackson 642 v. People 434
Sheehan v. Sturges 486 v. Smith 398
Sheehy v. Kansas City, &c. Co. 812 Shotridge, Re 455, 638
Sheely v. Biggs 605 Shotwell v. Moore 683
Shehan's Heirs v. Barnett's Heirs 146 Shoultz v. McPheeters 129
Shelby v. Guy Shover v. State
33, 522 676, 859
Shelby County v. Tennessee C. Exp. Shrader, Ex parte 133,853
Co. 696 Shreveport v. Levy 658, 663
v. Union and Planters' Bk. 31, 738, v. Prescott 279
740 Shrunk v. Schuylkill Nav. Co. 781, 782
Shelbyville Water Co. v. People 720 Shuman v. Fort Wayne 425
Sheldon, Ex parte 40 Shumate v. Heman 714
v. Fox 288 Shumway v. Bennett 133, 143, 263
v. Kalamazoo 362 v. Stillman 42
v. Wright 685, 586, 587 Shurbun v. Hooper 895
Sheley v. Detroit 719, 728 Shurtleff v. Parker 619
Shelter v. Gooding 613 v. Stevens 619, 637, 647, 648
XCVU1 TABLE OF CASES.
Page Page
ShurtleffV Wiscasset 322 Sioux City, &c. R. R. Co. v. Washing-
Sibley v. Williams 62 ton Co. 712
Sic, In re 281 Sioux City T. & W. Co. v. Trust of
Sidgreaves v. Myatt 607 N. A. 32
Sidwell v. Evans 861 Sioux Falls v. Kirby 290
Siebold, Ex parte 281, 492, 901 Sipe, Re 290
Siegfried v. Kaymond 687 Skaggs v. State 450
Sifers v. Johnson 879 Skaneateles Water Works Co. v. Skan-
Sigourney v. Sibley 592, 595 eateles 383, 393, 565
Sikes, Ex parte 283 Skelding v. Whitney 80, 81
Silberman v. Hay 182 Skellenger v. Smith 539
Silkman v. Bd. Water Com'rs 287 Skillman v. Chicago, &c. Ry. Co. 404, 809
Sill v. Corning 237, 242 Skinner, Ex parte 497
Silliman v. Cummins 538 i;. Hartford
Bridge Co. 296, 783
Sills v. Brown 452 v. Henderson 697
Silsbee v. Stockle 546, 751 v. Santa Rosa 819
Silver Bow Co. v. Strombaugh 618 Slack v. Jacob 89, 253, 254, 258
Silver Lake Bank v. North 180 v. Maysville, &c. R. R. Co. 99, 167,
Silvey v. Lindsay 905 325, 699
Silvus v. State 466 Slade v. Slade 80
Simmer v. St. Paul 304 Slater, Ex parte 436
Simmonds v. Simmonds. 139 Slatten v. Des Moines Valley R. R.
Simmons, Ex parte 495 Co. 785, 826
v. Camden 296 Slaughter v. Commonwealth 37
v. Commonwealth 177 v. Louisville 706
v. Holster 605 v. O' Berry 289
v. Saul 42, 43 v. People 281
v. United States 469 Slaughter-House Cases 18, 38, 401, 402,
. West. U. T. Co. 656 418, 457, 567, 668, 832
v. Wilson 745 Slauson v. Racine 248, 249
Simmons Hardware Co. v. McGuire 694 Slave Grace, The 422
Simms v. Railroad Co. 814 Slaven v. Wheeler 595
Simon r. Craft (182 U. S.) 572, 581 Slay maker v. Phillips 911
v. Craft (118 Ala.) 672 Slayton r. Hulings 110, 114
v. Durham 936 Sleght v. Kane ,
370
v. Northrup 337 Slemmer v. Wright 482
Simonds v. Simonds 154, 558 Slinger v. Henneman 167, 174
Simonds's Ex'rs v. Gratz 676 Sloan v. Biemiller 752
Simons v. People 930 v. Cooper 80
Simpson v. Bailey 210 v. Pacific R. R. Co. 392, 838, 839
v. Savings Bank 406, 530 v. State 2G6
v. State 62, 177 Smails v. White 209
Simrall v. Covington 290 Small v. Danville 360
Sims, Re (118 Fed. Rep.) 695 Smalley v. Anderson 607
Re (54 Kan.) 425 Smead v. Indianapolis, &c. R. R. Co. 321
v. Daniels 900 Smeaton v. Martin 778, 814
v. Gay 587 Smiley v. McDonald 562
v. Irvine 33 Smith, Ex parte 39, 40, 278, 934
v. Jackson 707 Matter of 46
v. Sims 43 Petition of 496
v. State 470 v. Adrian 173
Sinclair v. Jackson 232 v. Alabama 688, 844, 857
Singer v. Bender 606 v. Appleton 415
v. State 886 v. Ballantyne 82
Singer Mfg. Co. v. Fleming 180 r. Bohler 208
v. McCollock 256 v. Brown 422
v. Wright 688, 690, 876 v. Bryan 615
Single v. Supervisors of Marathon 209, v. Burrus 645
642 v. Callanan 761
Sing Lee, Ex parte 291 v. Cheshire 320
Singleton v. State 160 v. Clark Co. 324
Sinking Fund Cases 394 v. Cleveland 627, 545
Sinks v. Roese 177, 905 v. Commonwealth 210, 212, 444
Sinton v. Ashbury 267, 336 v. Connelly 773
Sioux City v. School District 742 v. Eastern R. R. Co. 841
Sioux City B. Co. v. Dakota Co. 719 . Frisbie 689
TABLE OF CASES. XC1X
Page Page
Smith v. Good 63 Snowhill v. Snowhill 146
v. Gould 422 Snyder v. Andrews 656
v. Hard 631 v. Bull 640
v. Howard 629 v. Ft. Madison St. Ry. Co. 803
v. Hoyt 225, 218 .v. Fulton 658
v. Hunter 30 v. Pennsylvania R. R. Co. 791
v. Inge v. Rockport 296
v. Jackson 687 Society, &c. v. Wheeler 34, 523, 530,
v. Janesville 169, 171 553
v. Judge 131, 242 Society for Savings v. Coite 683
v. Kingston 730, 860 Society of Scriveners v. Brooking 282
v. Knoxville 285 Sohier v. Massachusetts Hospital 146
v. Leavenworth 363 v. Trinity Church 660
v. Levinus 265 Solomon v. Cartersville 219
478 v. Commissioners 220
v. Long
v. Louisville 710 v. Oscoda 749
v. Macon 238 Somers v. Met. El. Ry. Co. 801
v. Maryland 46 Somerset & Stoystown Road 217
v. McCarthy 166, 232 Somerville v, Hawkins 610
v. McDowell 572 Somerville & Eastou R. R. Co. ads.
v. Merchand's Ex'rs 533 Doughty 821, 823, 825
v. Milwaukee B. & T. E. 288 Sommers v. Johnson 408
w. Moore 895 Sommersett's Case 422
v. Morrison 224, 524 Soon Hing v. Crowley 258
v. Morse 272, 294 Soper v. Harvard College 888
>. Myers 162 Sorchan v. Brooklyn 114
v. Nelson 660 Sorocco v. Geary 757, 878
v. Norment 162 Sortwell v. Hughes 850
v. Packard 406, 413 South & North Alabama R. R. Co. v.
v. People 100, 452 Morris 246, 556
v. Reeves 24 Southard v. Central R. R. Co. 540
v. Rice 585 South Bend v. Martin 690
v, Scott 639 v. Reynolds 318, 321
v. Sedalia 782 South Branch L. Co. v. Ott 32
v. Sellinsgrove 301 South Carolina R. R. Co. v. Steiner 791,
v. Sherry 348, 523, 546, 722 794
t>. Short 684 South Chicago Ry. Co. v. Dix 766
v. St. Louis & S. W. Ry. Co. 854 South Covington & C. S. Ry. Co. v.
v. Shriver 34 Berry 288
v. Silence 607 Southern B. & L. Ass'n v. Norman 180
v. Smith 42, 44, 222, 679, 580, 606 Southern Express Co. v. Com. 472
v. Speed 231, 453 Southern Pac. Ry. Co. v. Denton 27, 179
v. State 16, 40, 160, 473, 87!) South Ottawa v. Perkins 194, 320
v. Stewart 606 Southport v. Ogden 279
v. Strother 132 Southwark Bank v. Commonwealth 89,
v. Swormstedt 661 193, 194
v. Thomas 611 South-western R. R. Co. v. Paulk 844
v. Thursby 89 v. Telegraph Co. 814, 817
v. Township Board 262 Southwest Mo. L. Co. v. Toplin 383
v. Trimble 589 South wick v. South wick 525
v. Van Gilder 406 Southworth v. Edmonds 749
v. Washington 296, 783 v. Palmyra & Jacksonburg R. R.
v. Worcester 714 Co. 201
Smith, Mary, Case of 444 Soutter v. Madison 415
Smith M. P. Co. v. McGroosty 38 Sovereign v. State 215
Smither v. Campbell 194 Sowders v. Edmunds 585
Smoot v. Wetumpka 356 Spaids v. Barrett 634
Smyth v. Ames (169 U. S.) 20, 24 Spain, Re 689
v. Ames (171 U.S.) 874,875 Spangler v. Jacoby 116, 193, 201
v. McMasters 924 Spangler's Case 26, 494
v. Titcomb 166 Sparhawk v.Sparhawk 138, 156
Sneider v. Heidelberger 408 Sparrow v. Kingman 86
Snell, In re 496 Spaulding v. Lowell 888
Snider v. St. Paul 805 Speakership, Re 190
Snohomish Co. v. Hay wood 815 Spealman r. Railroad Co. 841
Snow v. Fitchburg 736 Spears v. State 445
TABLE OF CASES.
Page
Specht v. Commonwealth 675, 859 Stamp v. Cass Co. 310
Speer v. Athens 194, 732 Stanchfield v. Newton 304
v. Plank Road Co. 218 Stand if ord 389
-.-.
Wingate
v. School Directors 330. 699 Stanfield v. Boyer 607
Speidel v. Schlosser .121 Court of Co. Kev.
Stanfill v. 265
Speight v. People 183 Stanford, Matter of 317
Spencer v. Board of Registration 901 17. Worn 760
v. Dearth 80, 83 Staniford v. Barry 136
v. McMasters 607 Stanley, Ex parte 440
v. Merchant 698, 699, 711, 714, 722, v. Colt 146
729 v. Davenport 797, 806
v. Met. St. Ry. Co. 827 v. Schwalby 27, 28, 524
v. State 89,90,216,217 v. Stanley 844
Spengler v. Trowbridge 271 t7. State 178
Sperry v. Flygare 713 v. Wabash St. L. &
853 P. Ry. Co.
v. Willard 192 17. Webb
637, 638, 640
Spickler, Re 259 Stannard's Corners R. C. A. v. Brandes
Spier v. Baker 900 767, 770
Spiering v. Andrae 628 Stanton v. Metropolitan R. C. Co. 859
Spies v. Illinois 46, 457 459 St. Anthony Falls W. P. Co. v.
Page
Cll TABLE OF CASES.
Page
TABLE OF CASES. cm
CIV TABLE OF CASES.
Page
TABLE OF CASES. CV
CV1 TABLE OF CASES.
Page
TABLE OF CASES. CV11
Page
cvm TABLE OF CASES.
Page
State v. Vanderpool 41 State v. Workman 879
v. Vandersluis 887, 890 v. Wright 188, 216, 547
v. Van Home 167 v. Wrightson 894
v. Vansant 452 v. Wurts 61
v. Virginia &
T. Ry. Co. 693 v. Yard ley 408
v. Wabash, &c. Ry. Co. 843 v. Young 144, 207, 212, 213, 909
v. Wagener (69 Minn.) 887 v. Young (31 Fla.) 592
v. Wagener (74 Minn.) 456 v. Zeno 886
v. Wagener (77 Minn.) 661, 569, 886, v. Zophy 690
887 State Auditor v. Jackson Co. 113
v. Walker 205, 469 State Bank v. Curran 895
v. Wall 593 v. Knoop 85
v. Walsh (62 Conn.) 923 State Board v. Central R. R. Co. 706
v. Walsh (136 Mo.) 182 State Board of Tax Com'rs v. Holli-
v. Wapello Co. 318, 325 day 739
v. Ward 449, 468, 469 State Census, In re 74
v. Warford 215 State Center v. Barenstein 284
v. Warmoth 162 State Freight Tax Case 688
v. Warren 540, 574, 937 Staten Island Trans. Co., Matter of 764,
v. Washington 469 780
v. Watson 911 State Prison v. Day 389
v. Webber 261 State Railroad Tax Cases 706
v. Webster 890 State Tax on Foreign-Held Bonds 693,
v. Weir 163, 171, 173 694, 695, 720
v. Welch 281, 285 State Tonnage Tax Cases 691
v. Wendler 194, 218 State Treasurer v. Auditor General 706,
v. Wentworth 449 720
v. West 436 Stay ton v. Rulings 114
v. Western U. Tel. Co. 853 St. Charles v. Nolle 720
v. Weston 121, 895 St. Clair v. Cox 42, 856
v. Wheeler 247, 846, 849, 850 Steamship Co. v. Jolliffe 858
v. Wheelock 848 v. Port Wardens 691
v. Whisner 221 Stearns v. Barre 164, 753, 778, 815
v. Whitaker (48 La. Ann.) 471, 474 v. Gittings 521, 522, 524
v. Whitaker (160 Mo.) 845,880 v. Minnesota 396, 739
v. Whitcomb 162 Stebbins v. Com'rs Pueblo Co. 136
v. White 184, 453, 658, 665 v. Jennings 278
v. Whitworth 86 Steck v. Colorado F. & I. Co. 590
v. Wiggin 693 Steckert v. East Saginaw 201
v. Wilburn 499 Steele v. Boston 301
v. Wilcox 163, 166, 167, 170, 174, 265 v. Calhoun 911, 930
v. Wilkesville 330 v. County Com'rs 765
v. Wilkinson 464 v. Gellatly 614
v. Williams 99, 286, 878, 382, 431, v. Smith 43
917 v. Southwick 606, 607
r. Williams (68 Conn.) 244, 269, 340 v. Spruance 653
v. Williams (18 Wash) 437 Steenerson v. Great N. Ry. Co. 873
v. Willingham 858 Stein v. Bienville Water S. Co. 565
v. Wilmington City Council 895 v. Burden 757
v. Wilson 183, 382, 895, 935 v. Mobile 167, 404
v. Wilson (61 Kan.) 887 Steinecke i?. Marx 629
v. Wiltz 389, 451 Steiner v. Ray 882
v. Winkelmeier 893 Steines v. Franklin Co. 324
v. Winters 687 Steinman, Ex parte 482, 509
v. Winton 482 Steketee v. Kimm 606
v. Wiseman 469 Stemper v. Higgins 930, 940
r. Witham 449 Stensoff v. State 894
v. Wolfer 674 Stephens v. People
(
,*08
v. Wollem 930 Stephenson v. Bd. of El. Com'rs 899
v. Woodfin 453 Sterling v. Jackson 808
v. Woodmansie 672 v. Jugenheimer 605
v. Woodruff 68 Sterling's Appeal 791
v. Woodruff, &c. Co. 689 Sternberger r. Railroad Co. 875
v. Woodson 129 Stetson v. Kempton 266, 327, 749
v. Woodward 120, 400 Stettinus v. United States 464
v. Worden 458 Steuart v. Baltimore 691
TABLE OF CASES. C1X
Page
Stevens v. Andrews 414 St. Louis v. Russell (116 Mo.) 293
v. Middlesex Canal 777 t?.
Sclmuckelberg 883
v. Muskegon 300 v. Schoenbusch 280
v. Paterson, &c. R. R. Co. 786 v. Shields 182
v. Rutland, &c. R. R. Co. 394 v. Spiepel 287
r. Sampson 637 v. St. Louis R. R. Co. 287
v. State 437, 509 v. Tiefel 204, 207
Stevenson v. Colgan 255 v. Weber 279, 281, 282, 284
v. Lexington 301 17. Western U. Tel. Co. 297, 689
v. School Directors 262 St. Louis, A. & T. Ry. Co. v. Fire Ass'n 180
Steward Jefferson t;. 166 Henderson
v. 827
Stewart v. Blaine 191 St. Louis, H. & K. C. Ry. Co. v.
v. Clinton 304, 783 Hannibal U. 1). Co. 758
v. Father Mathew Society 212 St. Louis Iron M. & S. Ry. Co. v. Paul 1 5
Page
Storti v. Com. 375 Stuart v. Clark 8til
Story v. Furnam 406, 407 v. Commonwealth 470
v. New York Elevated Railway v. Hamilton 93
Co. 799 v. Kinsella 209, 213
Story's Case 799, 800 v. Laird 103, lUo
Stoughton v. State 867 v. Mechanics', &c. Bank 693
Stout v. Hyatt 54 v. Palmer 722
v. Keyes 521 v. School District 261
v. Martin 751 v. Warren 642
Stoutenburg v. Frazier 425, 478 Stubbs v. Lea 895
Stover v. People 449 Stump c. Hornback 653
Stow v. Wise 275, 449 Stupp, Re 495
Stowell v. Lord Zouch 91 Sturdevant v. Norm 614
Stowers v. Postal Telph. Co. 801, 804 Sturgeon v. Kitchens 209
St. Paul v. Coulter 292 v. Korte 908
v. Gilfillan 883 Sturges i7. Carter 631, 738
v. Seitz 362 i;. Crowinshield
45, 89, 407, 409, 416,
v. Smith 285 449
v. Traeger 281, 285, 291 Sturgis v. Hull 629
v. Umstetter 129 v. Spofford 645
?>. Chicago M. & St. P. 298 Sturm v. Fleming 622
Ry. Co.
St. Paul Gas Light Co. v. St. Paul 405 Sturoc's Case 643
St. Paul M. & M. Ry. Co. v. Pbelps 105 Sturtevant v. State 497
p. Minneapolis 807 Stutsman Co. v. Wallace 32
v. Todd Co. 396 Stuyvesant v. New York 278, 843
St. Paul & N. P. Ry. Co., In re 756, 775, Sublett v. Bedwell 895, 932
778 Suburban R. T. Co. v. New York
St. Paul, &c. R. R. Co. i>. Gardner 689 (128N. Y.) 806
v. Parcher 396 v. New York (135 N. Y.) 758
St. Paul Un. Depot Co. v. St. Paul 807 Succession of Lanzetti 208
Strader v. Graham 64 Succession of Tanner 129
Strafford v. Sharon 617 Succession of Townsend 681
Strahl, Ex parte 495 Sue, The 840
Strang, Ex parte 897, 928 Suesenbach v. Wagner 40
Strait v. Strait 680 Suffolk Witches, Case of 444
Stratton v. Collins 711, 739, 750 Sullings 17. Shakespeare 658
Strauch v. Shoemaker 630 Sullivan v. Adams 257
Strauder v. West Virginia 19, 655, 559 v. Blackwell 585
Strauss v. Heiss 218 17. Haug 672
v. Meyer 630, 647 v. Oneida 282, 382, 431, 437
v. Pontiac 291 Sully v. Am. Natl. Bk. 30, 38
Street v. New Orleans 346 Sultan, Re 41
Street Railroad Co. v. Morrow 531, 694, Summer v. Mitchell
738 Summers v. Com'rs Daviess Co. 305
Street Railway v. Cumminsville 785, 797, Summerville v. Pressley 837
802 Summons v. State 451
Streety v. Wood 619, 620 Sumner v. Beeler 259
Streight v. Durham 712 17. Buel 608
Streitwolf v. Streitwolf 44, 679 v. Hicks 33
Streubel v. Milwaukee, &c. R. R. Co. 617 v. Miller 616
Striker v. Kelley 114 Sunberg 17. Babcock 607
Stringfellow v. State 446 Sunbury & Erie R. R. Co. v. Cooper 258
Strode v. Washer 626 v. Hummel 786
Stroebel v. Whitney 606 Sunderlin v. Bradstreet 611
Strong v. Clem 614 Sun Mutual Ins. Co. v. Board of
v. Daniel 259 Liquidation 262
v. State 376, 378 t7. New York 204, 255
Strosser v. Fort Wayne 642 Sun P. & P. Ass'n v. New York 318, &M
Stroud v. Philadelphia 736, 861 Supervisors v. Davis 940
Strout v. Proctor 482 t7.
People 195, 208
Struthers v. Phila. & D. C. Ry. Co. 827 v. United States 33
v. R. R. Co. 791 17. Wisconsin Cent. R. R. Co. 631
Stryker v. Goodnow 33 Supervisors, &c. v. Keenan 194
St. Tammany Water Works v. New u. People 208
Orleans Water Works 383, 402 Supervisors of Doddridge v. Stout 120,
Stuart 17. Blair 896 760
TABLE OF CASES. CXI
Page Page
Supervisors of Du Page v. People 9'29 Tafoya v. Garcia 217
Supervisors of Election 130, 133 Taft v. Adams 389
Supervisors of Iroquois v. Keady 224 Taggart v. Claypole 671
Supervisors of Jackson v. Brush 294, 324 Tainter v. Worcester 274, 301
Supervisors of Knox Co. v. Davis 246 Tait's Exec. v. Central Lunatic Asy-
Supervisors of Sadsbury v. Dennis 336 lum 398, 777
Supervisors of Schuyler Co. v. Peo- Talbot v. Dent 167, 313
ple 200, 201 v. Fidelity & C. Co. 179
Surgett v. Lapice 104 v. Hudson 253, 697, 770, 815
Susquelianna Canal Co. v. Wright 786 v. Talbot 614
Susquehanna Depot v. Barry 332 v. Taunton 363
v. Simmons 362 Talcott v. Philbrick 923
Sutherland v. De Leon 615 Talkington v. Turner 917
Sutliff v. Board of Com'rs 320, 322, 323 Tallman v. Janesville 540, 545
Sutton v.Asken 514 Tampa, St. R. & P. Co. v. Tampa S.
v. Board 355 Ry. Co. 595
v. State 478 Tanner v. Albion 265, 883
v. State (96 Tenn.) 556 v. Alliance 860
v. Tiller 764 Tappan v. School District 262
Sutton Hospital, Case of 278 Tarble's Case 26, 494
Sutton's Heirs v. Louisville 823, 824 Tarbox v. Sughrue 922, 932, 933
Suydam v. Moore 836, 842 Tarleton v. Baker 924
v. Williamson 33, 34, 144 Tarlton v. Fisher 192
Suydham v. Broadnax 417 v. Peggs 221
Swain v. McRae 937 Tarpley v. Hamer 406
v.Mizner 435 Tash v. Adams 310
Swan Williams
v. 54, 755, 777 Tate v. Bell 254
Swann, Ex parte 473 v. Greensboro 298
v. Buck 118, 194, 217 v. Railroad Co. 304
Swan Point Cera. v. Tripp 741 v. Stooltzfoos 638
Swanson v. Ottumwa 272 Tate's Executors v. Bell 237, 254
Swart v. Kimball 458, 459 Taunton v. Taylor 853
Swartwout v. Railroad Co. 216 Tayloe, Ex parte 438
Swayze v. Hull 198 Taylor v. Beckham (Ky.) 64, 74
Swearingen, Ex parte 40 v. Beckham (178 U. S.) 509
Sweeney r. Baker 624, 628 v. Bleakeley 900
v. Chicago, &c. Ry. Co. 865 v. Boyd 716, 730
v. Hunter 408 v. Chambers 80
v. McLeod 198 w. Church 611
Sweet v. Rechel 754, 770, 814 v. Commissioners of Ross Co. 242,
Swepston v. Barton 929, 932 249
Swift v. Calnan 841 v. Commonwealth 159
v. Fletcher 406 v. Cumberland 801
v. Newport 720 v. French 87
v. People 671 t7. Hall 606
v. Sutphin 854 v. Hawkins 647, 649
v. Tousey 62 v. Marcy 814, 816
v. Tyson 35, 130 v. McCracken 83
v. United States 106 v. Miles 627
v. Williamsburg 273, 324 v. Nashville, &c. R. R. Co. 764
Swift's Estate, Re 709 r. Newberne 167
Swindle v. Brooks 647 17. Peckham 303
Swindell v. State 187 t7. Penn. Co. 181
Sydnor v. Palmer 138 17. Place
132, 137, 162
Symonds Carter
v. 607 v. Plymouth 767
o. Clay Co. 355 v. Porter 128, 134,. 503, 508, 754, 765
Synod of Dakota v. State 664 v. Sample 614
Syracuse Bank v. Davis 531, 636 17. Skrine 898
Syracuse W. Co. v. Syracuse 297, 383, v. State 469, 886
393 v. Stearns 414
t7. St. Louis 29(3
T. t7.
Taylor 101, 892, 929, 930, 935, 037
v. Thompson 331
Tabor v. Cook 590 v. Wilson 218
Tacoma v.Kreech 292 v. Ypsilanti 33
v. State 762 Tebbe v. Smith 911, 929
CX11 TABLE OF CASES.
Page
Tecumseh v. Phillips 212 Third Nat. Bk. v. Divine Grocery
Teel v. Yancey 138 Co. 880
Teft v. Teft 154, 558 Third Nat. Bank of Louisville v.
Telefson v. Fee 23 Stone 682
Telegram M. Co. v. Com. 455 Thistle v. Frostbury Coal Co. 407
Telegraph Co. v. Texas 689 Thomas's Appeal 252
Templar v. Examining Bd. of Bar- Thomas, Ex parte 093
bers 889 v. Board of Commissioners 182
Temple v. Mead 123, 911, 912 v. Collins 218, 529
Templeton v. Linn Co. 68 v. Croswell 629
Ten Eyck .D. & R. Canal 316, 764 v. Dakin 278
Tennessee v. Davis 20, 24, 26, 29 v. Dunnaway 608
v. Sneed 406 v. Gain 736
712, 729,
Whitworth
. 397 v. Hubbell 82
Tennessee, &c. R. R. Co. v. Adams 789 v. Leland 338, 340, 543, 679, 735
v. Moore 162 v. Mason 696
Tenney v. Lenz 284 v. Owens 99
Tenney's Case 643 v. People 455
Terre Haute v. Evansville & T. H. v. Railroad Co. 52
Ry. Co. 159, 758 v. Richmond 320
274,
v. Hudnut 302 v. Scott 225, 530
Terre Haute, &c. R. R. Co. v. Bissell 786, v. State 685
791, 797 v. Stickle 751
r. McKinley 826 v. Wabash, St. Louis & P. Ry.
Terrett v. Taylor 234, 244, 343, 386, 391 Co. 211
Terrill v. Rankin 517 Thorn ason v. Ruggles 60
Territorial Ins. Asylum v. Wolfley 162 Thomasson v. State 845
Territory v. Ah Lim 572 Thompson, Ex parte 495, 547
v. Connell 845 v. Alexander 629
v. Daniels 726 v. Bunton 14
v. Evans 879 v. Caldwell 622
v. Guyot 849 v. Carr 370
v. Ketehum 473 v. Circuit Judge 935
P. O'Connor 174, 194, 849, 851 v. Commonwealth 410, 447
v. Pyle 389 v. Luverne 213
v. Richardson 160 v. Missouri 382
v. Romine 459 v. Morgan 637, 640
v. School District 183 . Pacific R. R. Co. 682
v. Scott 165 v. Pittston 311, 333
v. Stewart 165 v. Read 522
Terry, Ex parte 455 v. Reed 522
v. Anderson 623 v. Schermerhorn 294
v. Bright 607 v. State 447, 679, 684
v. Fellows 627, 629, 637, 639, 647 r. Steamboat Morton 676
Teutonia Ins. Co. v. O'Connor 288 v. Taylor 43
Texas v. White 8, 8, 11, 45, 63 v. United States 469
Texas & P. Ry. Co. v. Rosedale, &c. v. Utah 374, 453, 458
Co. 794 v. Waters 178, 180
v. So. Pac. Ry. Co. 30, 44 v. Whitman 42, 43
Texas & St. L. Ry. Co. v. Cella Thomson v. Booneville
825 294
Texas B. & I. Co. v. State 710 v. Lee Co. 167, 320, 542
Texas, Mex. Ry. Co. v. Locke 409 v. Grand Gulf R. R. Co. 246
Texas W. Ry. Co. v. Cave Thomson-Houston El. Co. v. Simon 762
826
Thacker v. Hawk 564
Thorington v.
Montgomery 4(5
Thames Bank v. Lovell 865 v. Smith 412
Thames Manuf. Co. v. Lathrop 114, 545, Thorn v. Blanchard 618
Thorndike v. Camden
712 308
Tharp v. Fleming Thorndyke v. Boston
149 904
Thatcher v. Powell Thome v. Cramer
33 163
Theobold v. Louisville, &c. Ry. Co. 791, Thornton v. McGrath 629
802 v. Territory 174
Theresa Drainage Dist., Re 762, 770 v. Turner 517, 523
The Slave Grace "422 Thorpe v. Rutland & Burlington R. R.
Tliien v. Voegtlander 772 Co. 128, 176, 316, 396, 399, 831, 834,
Thieson v. McDavid 280 841, 843
Third Cong. Soc. v. Springfield 740 Thrap v. Fleming 149
TABLE OF CASES. CXU1
Page
Threadgill v. Railroad Co. 898 Tomlinson v. Branch 394
Thrift v. Elizabeth City 279 v.
Indianapolis 297
Throop v. Langdon 895 v. Jessup 394
Thunder Bay, &c. Co. v. Speedily 807, 865 Tonawanda v. Lyon 714
Thurber v. Blackbourne 42 Tonawanda R. R. Co. v. Hunger 788, 842
Tliursfield v. Jones 361 Tong v. Marvin 95, 513
Thurston v. Little 749 Toogood v. Spyring 647, 648
v. St. Joseph 304 Tool Company v. Norris 198
v. Thurston 80, 146 Topeka v. Boutwell 288
Thweatt v. Bank 544 Torbush v. Norwich 301
v. Howard 751 Toronto, &c. R. Co. v. Crookshank
237
Tide-water Canal Co. v. Archer 822, 823 Torrey v. Corliss 529
Tide Water Co. v. Costar 704, 706 .Field 631, 637, 647
Tiernan v. Rinker 250, 687, 688, 846, 858 v. Milbury 112, 749
Tierney v. Tierney 156 Touchard v. Touchard 360
Tiffany v. Stewart 82 Tourne v. Lee 884
v. U. S. 111. Co. 787 Towanda Bridge Co., Re 758, 759
Tift v. Griffin 626, 585 Tower v. Lamb 688
Tildon v. Blair 834 Towle v. Brown 269
Tillinghast v. Can- 193 v. Eastern Railroad 516, 528
Tillman v. Arlles 458 v. Forney 146
v. Cocke 132, 249 r. Marrett 217
v. Shackleton 95 Towler v. Chatterton 525
Tillson v. Robbins 629 Town of Pawlet v. Clark 343, 386, 391
Tilton v. Swift 531 Townsend v. Des Moines 363
Timm v. Harrison 208 v. Griffin 156, 585
Tims v. State 257, 454 v. Kendall 684
Tindal v. Wesley 24 v. State 880
Tindley v. Salem 305 v. Todd 47
Tingue v. Port Chester 205 v. Townsend 114
Tinicum Fishing Co. v. Carter 781 Trabue v. Mays 606
Tinkler v. Cox 52 Tracy v. Elizabethtown, &c. R. R. Co. 778
Tinsley v. Anderson 15, 21, 453, 493 Trade-mark Cases 11
Tinsman v. Belvidere & Del. R. R. Tragesser v. Gray 848, 885, 889
Co. 316, 786 Train v. Boston Disinfecting Co. 688, 854
Tioga R. R. Co. v. Blossburg, &c. Trainor v. Wayne Co. Aud. 159
R. R. Co. 80 Trammell v. Russellville 306
Tipton, Re 194 Transportation Co. v. Chicago 510, 781,
v. Locomotive Works 564 782
v. Tipton 579 v. Parkersburg 691
Title Guaranty Co. v. Wrenn 556 v. Wheeling 691
Titus v. Boston 808 Travellers' Ins. Co. v. Brouse 413
Titusville Iron Works v. Keystone r. Connecticut 706
Oil Co. 136, 200 v. Frick 179
Tod, Ex parte 39 v. Johnson City 323
v. Wick 13 Traver v. Merrick Co. 700
Todd v. Birdsall 348 Tray hern v. Colburn 83
v. Election Com'rs 900 Traylor v. Lide 682
v. Hawkins 611 Tread way o. Schnauber 64
v. Kankakee, &c. R. R. Co. 825 Treat v. Lord 862, 863
v. Kerr 679, 580 Treat Mfg. Co. v. Standard Steel &
v. Munson 478 I. Co. 590
v. Rough 605 Tredway v. Railway Co. 841
v. Troy 362 Tremain v. Cohoes Co. 786
Toffey v. Atcheson 413 Trenton Water P. Co. v. Roff 786
Toledo v. Cone 306 Trestor v. Missouri P. R. Co. 763
Toledo, &c. R. R. Co. v. Deacon 836 Trevett v. Weeden 55, 229
v. East Saginaw, &c. Co. 766 Trevino v. Trevino 579
v. Jacksonville 285, 400, 843 Trice v. Hannibal, &c. R. R. Co.
Toledo, &c. Ry. Co. v. Detroit 806 Trigally v. Memphis 265
v. Munson 825 Trim v. Macpherson
Toledo Bank v. Bond 395 Trimble v. Anderson 606
Tolen v. Tolen 679 v. Foster 606
Toll v. Wright 621 Trinitarian Cong. Soc. v. Union Cong.
Tomlin v. Dubuque, &c. R. R. Co. 394, Soc. 660
786 Trinity & S. Ry. Co. v. Meadows 809, 812
CX1V TABLE OF CASES.
Page
Tripp v. Goff 202 Turner, Ex parte 18
v. Overocker 817 Matter of 423
v. Santa Rosa St. Ry. Co. 27 v. Com'rs 247
Trist P. Child 198 p. Com'rs of Wilkes Co. 31, 36
Troia, Matter of 439 v. Malone 586
Trombley v. Auditor-General 765, 756 p. Maryland 687, 854
Troppman, Trial of 442 v. Newburgh 362
Trott v. Warren 277 v. New York 524
Troup v. Haight 104 p. Richardson 30
Trowbridge v. Spinning 44 v. State 376, 687, 889
Troy v. Winters 286 p.Thompson 680
Troy & Boston R. R. Co. v. Lee 823 Turnpike v. Champney 927
v. Northern Turnpike Co. 785 Turnpike Co. v. News Co. 770
Truchelut v. Charleston 642 v. Davidson Co. 392
True v. Davis 267 v. People 85
v. Plumley 606 v. State 549
Truehart v. Addicks 929 p. Union R. R. Co. 399
Truman v. Taylor 607 p. Wallace 316
Trussell v. Scarlett 611 Tuscaloosa Bridge Co. v. Olmsted 209,
Trustees v. Bailey 132, 138, 560 213, 216
v. Davenport 722 Tuthill, Re 735, 768
v. McCaughy 615, 531, 536 Tuttle v. Cary 275
v. McConnell 743 v. Justice of Knox Co. 814
v. Schroeder 305 v. Strout 207
Trustees of Atlanta University v. Twambly v. Henley 82
Atlanta 758, 762 Twenty -second Street, In re 398, 758
Trustees of Cass v. Dillon 330 Twitchell v. Commonwealth 46
Trustees of Erie Academy v. Erie 267 Tyler, Ex parte 24, 27
Trustees First M. E. Ch. v. Atlanta 669, Tyler . Beacher 705, 765, 773, 775
741 v. Board of Registration 134, 508, 582
Trustees of Griswold College v. State 741 v. Judges of Registration 608
Trustees of Kentucky F. O. S. v. v. People 177, 237, 253
Louisville 741 P. Tyler 85
Trustees of M. E. Church v. Ellis 740 Tyrone Sch. Disk, Appeal of 807
Trustees of Paris v. Cherry 167 Tyson, In re 381
Trustees of Richmond Co. Academy Tyson, Re (13 Col.) 375
v. Augusta 720 v. School Directors 243, 311 332,
Trustees of Schools v. Tatman 266, 268, 333, 630, 697, 701
339, 345, 389 Tyzee P. Commonwealth 458
Trustees of University v. Mclver 60
Trustees of Vincennes University
v. Indiana 392 u.
Trustees of W. & E. Canal v. Spears 786
Trustees, &c. v. Auburn & Rochester Uhrig v. St. Louis 728
R. R. Co. 316, 806 Uffert v. Vogt 182
v. Bailey 132 Ulman v. Baltimore 730
v. Champaign Co. 695 Uline P. N. Y., &c. R. R. Co. 783, 786
v. Shoemaker 167 Ullery v. Commonwealth 438
Tuckahoe Canal Co. v. Railroad Co. 662, Umlauf v. Umlauf 83
665, 757 Underbill v. Manchester 346
Tucker v. Aiken 898, 928 v. Welton 606, 607
v. Harris 374 Underwood, Matter of 495
v. Magee 486 v. Lily 633, 638, 541
v. Virginia
City 272, 312 p. McDuffee 589
Tucker et /., Trials of 476 p. McVeigh 581
Tuaman Chicago .
265, 282, 288 p. Wood 696
Toiler, In re 86, 529 Ungericht p. State 859
Tullis v. Fleming 39 Union p. Durkes 304
v. Lake Erie & W. Ry. Co. 15, 34 Union Bank v. Com'rs of Oxford Co. 196
Tally, Ex parte 619 Hill
. 684
Tuolumne Redemption Co. v. Sedg- P. State 62
wick 411 Union C. Life Ins. Co. v. Chowning 671
Turin-vine v. Stampe 831 Union El. Co. v. Kansas City S. B.
Turley v. Logan Co. 193 Ry. Co. 828
Turlock Irrig. Dist. v. Williams 736 Union Ferry Co., Matter of, 564, 757,
Turnbull v. Giddings 191 775, 777
TABLE OF CASES. CXV
Page Page
Union Imp. Co. v. Commonwealth 394 United States v. Lyon 613
Union Ins. Co. v. Hoge 104 t. Mann 34
Union Iron Co. v. Pierce 136, 407, 544 v. Marble 73
Union Pac. Ry. Co. v. Botsford 424 v. Marigold 46
Union Pac. R. R. Co. v. United States 105 r. McComb 451
Union Railway Co. v. Cambridge 285 v. McKee 160
Union Hef. Trail. Co. v. Lynch 691 t7. Minn., &c. R. R. Co. 813
Union R. R. Co. v. Traube 80 v. More 462
Union Savings Bank v. Taber 522 v. Morris 464
Union Trust Co. v. Durfee 709 r. Morrison 33
Union Water P. Co. v. Auburn 719 v. Nashville, &c. Ry. Co. 524
United Cos. v. Weldon 406 v. New Bedford Bridge 48, 54, 453, 866
United N. J. Ry. & C. Co. v. Natl. i'. Northern Securities Co. 687
Docks, &c. 806 v. Ortega 450
United States, Matter of Petition of 756 v. Owens 684
. Ala. G. S. Ry. Co. 104 v. Palmer 202
r. Alexander 783 v. Parker 80
v. Ames 177 v. Parkhurst D. M. Co. 26
v. Aredondo 25 v. Passmore 616
v. Barney 48 v. Percheman 25
v. Barr 217 v. Perez 468, 469
v. Battiste 464 v. Perkins 680
v. Bellingham Bay, &c. 862 v. Ragsdale 89
v. Benner 450 v. Railroad Bridge Co. 755
v. Brown 237 v. Railroad Co. 685
v. Callendar 480, 613 v. Rauscher 41
v. Cashiel 468 v. Rector 494
v. Cathcart 11 v. Reed 760, 761
v. Claflin 217 v. Reese 19, 120, 668, 832
v. Conway 410 v. Reynolds 54
v. Coolidge 48 v. Riley 464, 467
v. Cooper 613, 768 v. Rio Grande D. & I. Co. 863
v. Cornell 177 v. Sacramento 441
v. Cox 444 v. Samperyac 515
v. Cruikshank 14, 19, 38, 418, 423, v. Snyder 682
498, 568, 832, 922 v. State 468, 470
v. Dallas M. R. Co. 524 v. Taylor 464
v. Davenport 470 v. Texas 23
v. DeWalt 436 v. Tierney 177
v. DeWitt 11, 831 . Tobacco Factory 25
v. Fisher 89, 98 v. Tract of Land, &c. 778
v. Forty-three Gallons of Whisky 851 v. Tynen 618, 544
v. Fox 181, 440 v. Union Pacific R. R. Co. 202, 560
v. French 493 a. Waddell 14
v. Gale 251 v. Wilson 48, 465
v. Gettysburg E. Ry. 756, 758, 778, United States Bank v. Daniel 33
780 v. Halstead 103
v. Gilmore 104 v. Norton 26
v. Goldman 901 v. Planters' Bank 360
v. Greathouse 464 United States Dist. Co. v. Chicago 283, 709
v. Guiteau 177 Unity v. Burrage 631, 555
.Hamilton 438 Universalist Society v. Providence 741
v. Harris 18..777 University v. Illinois 395
v. Hartwell 388 v. Skidmore 739
v. Has well 613 University of N. C. v. Foy 386
v. Hoar 524 Updegraph v. Commonwealth 671, 673
v. Hudson 48, 453, 613 Upjohn . Board of .Health 881
v. Hunter 433 Upshaw, Ex parte 207, 209, 212
v. Jailer of Fayette 492 Upton v. Hume 629, 644
v. .Joint-Traffic Ass'n 687 v. South Reading Br. R. R. 823, 824
v. Jones 438, 754, 756, 817 Urquhart v. Ogdenburg 302
v. Kagama 177 Usher v. Colchester 333
p. Lancaster 48 v. McBratney 1S>8
v. Lee 24 v. Severance 638, 639, 640
r. Little 450 Utley v. Campbell 606
v. Lynch 30 Utter v. Franklin 535
CXV1 TABLE OF CASES.
V. Page
Vaughn v. Harp 130
Vale Mills v. Nashau 303 Vausse v. Lee 630
Valin v. Langlois 128 Veazie v. China 110
Valparaiso v. Chicago & G. T. Ry. Co. 806 v. Mayo 836, 843
v. Hagen 782 v. Moore 864
Van Allen v. Assessors 683 Veazie Bank v. Fenno 680, 681, 685
Van Alstyne v. Railroad Co. 82 Veeder v. Lima 274, 323
Van Ankin v. Westfall 606 Vega Steamship Co. v. Con. El. Co. 527
Van Antwerp, Matter of 212 Venard r. Cross 772
Van Arsdale v. Laverty 618 Veneman v. Jones 285
Van Baalen v. People 283 Venice v. Murdoch 321
Van Baumbach v. Bade 404, 406 Veon v, Creaton 848
Van Bokelen v. Brooklyn City R. R. Co. 34 Verges v. Milwaukee Co. 561
Van Bokkelin v. Ingersoll 82 Verner v. Carson 80
Van Broeklin v. Tennessee 683 v. Simmons 896
Van Camp v. Board of Education 564 v. Verner 629
Vance, Ex parte 291 Vesta Mills v. Charleston 164
v. Little Rock 272 Vestal v. Little Rock 721, 722
v. Vance 407 Vickers v. Stoneman 619
v. Vandercook Co. 847 Vicksburg v. Tobin 691
Vanderberg, Matter of 195 Vicksburg & M. R. R. Co. v. Lowry 162
Vanderbilt v. Adams 400, 855 Vicksburg S. & P. R. R. Co. v. Den-
Vanderhurst v. Bacon 252 nis 396
Vanderlip v. Grand Rapids 788 Vicksburg W. W. Co. v. Vicksburg 393
Vanderpoel v. O'Hanlon 904, 905 Victory, The 30
Vanderslice v. Philadelphia 358 Vidal v. Girard's Executors 670
Vanderzee v. McGregor 620 Vigo County v. Stout 130
Van Deusen v. Newcomer 830 Vilas v. Milwaukee, &c. R. R. Co. 819
Vandine, Petitioner 286 Vinas v. Merch, &c. Co. 630
Van Fossen v. State 42 Vincennes v. Citizens Gas L. & C.
Van Giesen v. Bloomfield 183 Co. ,
288, 297
Van Hagan, Ex parte 495 v. Richards 302, 783
Van Horn v. Des Moines 301 Vincennes University v. Indiana 54
v. People 678, 881 Vincent v. Nantucket 309, 311
Van Home v. Dorrance 237 Violett v. Violett 550
Van Inwagen v. Chicago 517 Violette v. Alexandria 712, 731
Van Kleek v. Eggleston 80 Virginia, Ex parte 18, 19, 492, 555
Van Ness v. Hamilton 606 v. Rives 19, 556
v. Pacard 48, 51 v. Tennessee 36
Van Norman v. Gordon 45 Vischer v. Vischer 578, 580
Van Orsdal v. Van Orsdal 579 Vise v. Hamilton Co. 477
Van Pelt v. Davenport 304, 363 Vogel v. Gruaz 478
Van Reipen v. Jersey City '
768 v. State 895
Van Rensselaer v. Ball 406, 515 Vogle v. Pekoe 556
v. Hays 406, 515 Voglesong v. State 676, 859
v.
Kearney 33 Voight v. Wright 655
Read
v. 516 Von Hoffman v. Quincy 415
v. Snyder 406,409,410 Voorhees, Matter of 39
Van Riper v. North Plainfield 212 Vose v. Morton 677
v. Parsons 183, 215, 563
Vansant v. Harlem Stage Co. 283
Van Sly ke v. Ins. Co. 129,139 W.
Vanvactor State v. 486
Van Valkenburg v. Brown 568, 901 Wabash, &c. Co. v. Beers 386
Van Witsen v. Gutman 764, 775, 777 Wabash, &c. Ry. Co. Illinois i;. 874
Van Wormer v. Albany 853, 854 Wabash Ry. Co. v. Defiance 297
Van Wyck v. Aspinwall 620, 629 v. Tourville 42
Vanzant v. Waddell 502, 504, 506, 559 Wabash, St. L. & P. Ry. Co. v.
Varden v. Mount 506 McDougall 783
Varick v. Smith 237, 777, 788 Waco v. Powell 286
Varner v. Martin 765 Wade v. La Moille 320
Varney v. Justice 115, 930 v. Richmond 267
Vason v. Augusta 281 v. State 452
Vasser v. George 717 v. Travis Co. 32
Vaughan v. Seade 458 v.Walnut 33
Vaughn v. Ashland 745 Wadleigh v. Gilman 286, 878
TABLE OF CASES. CXV11
Page Page
Wadsworth's Adm'r v. Smith 86i Walter v. People 382
Wadsworth v. Union Pac. Ry. Co. 67<5 Walters v. Duke 710
Wagaman v. Byers Waltham v. Kemper 335, 356
Wager v. Troy Union R. R. Co. 791, 794 Walther v. Warner 813, 817
Wagner v. Bissell 5! Walton v. Develing 910
v. Gage Co. 824 v. Greenwood 163
v. Railway Co. 817, 818 Walton's Lessee v. Bailey 638
Wahoo v. Dickinson 144, 165 Waltz v. Waltz 579
Wait v. Ray 26: Wamesit Power Co. v. Allen 760
Waite v. Merrill 660 Warn mack v. Holloway 937
Walcott v. People 690 Wanek v. Winona 424
Walcott W. M. Co. v. Upham 657 Wanser v. Atkinson 251, 511
Waldo v. Portland 330 Wantlan v. White 627
Waldo
v. 679 Wanzer v. Howland 587
Waldron v. Haverhill 306 Warbiglee v. Los Angeles 303
v. Rensselaer, &c. R. R. Co. 836, 84i Warburton White
v. 32
Wales v. Lyon 80 Ward v.Barnard 517
v. Stetson 392, 56. v. Boyce 42
v. Wales 406 v. Farwell 407, 589, 887
Walker o. Allen 861 v. Flood 263, 657
v. Caldwell 204, 216 v. Greencastle 292
v. Chapman 712 v. Greenville 285
v. Cincinnati 109, 128, 167, 184 v.Maryland 37, 667, 684, 685, 693
236, 240 v. Morris 693
r. Deaver 614 v. New England, &c. Co. 146
v. Dunham 207 v. Peck 788
v. Harbor Commissioners v. Race Horse 291
v. Jameson 562 v. State 446
v. New Mexico, &c. Ry. Co. 32 v. Warner 862
v. Oswald 893 Ward law v. Buzzard 522
v. Peelle 389 Ware v. Hylton 9, 25
v. Sanford 929, 930 v. Little 751
v. Sauvinet 18, 46 v. Miller 408
v. Southern Pac. Ry. Co. 690 v. Owens 514
v. Springfield 710 Warickshall's Case 446
v. State 209, 212, 481 Waring v. Jackson 33
v. Taylor 31 v. Savannah 707
v. Towle 881 Warner v. Bowdoin Sq. Bap. Ch. 660
v. Villavaso 30 v. Curran 656
v. Whitehead 411 v. Grand Haven 736
Wall, Ex parte 121, 163, 170, 173, 482 v. Paine 629, 634
v. State 176 v. People 388, 389
v. Trumbull 585, 587 v. Scott 80
Walla Walla v. W. W. Water Co. 383 v. Trow 80
Wallace, In re 481 Warren v. Board Registration 903
v. Georgia C. & N. Ry. Co. 604 v. Charlestown 246, 248
v. Menaslia 305 v. Chicago 722
i'.
Meyers 708 v. Commonwealth 382
v. Richmond 310, 878 v. Glynn 588
r. Sharon Trustees 267 v. Henley 732, 734, 737
v. Shelton 717, 736 v. Lyons City 344
Waller v. Loch 610 v. McCarthy 42
Walling v. Michigan 688, 693 v. Paul 684
Wallis v. Bazet 651 v. Shuman 92
Walls, Ex parte 481 v. Sohn 20
Wally's Heirs v. Kennedy 502, 659 v. State 465
Walnut v. Wade 186, 218, 274, 546 r. St. Paul, &c. R. R. Co. 765, 778
Walpole r. Elliott 242 Warren Manuf. Co. v. ./Etna Ins. Co. 38
Walschlager v. Liberty 327 Warshung v. Hunt 630
Walsh, Re 442 Wartman v. Philadelphia 888
v. Barron 714 Warwick v. Underwood 80
. v. Columbus, H. V. & A. Ry. Co. 26 Wasliburn v. Franklin 517, 537
r. State 187 v. Milwaukee, &c. R. R. Co. 824
Walston v. Commonwealth 382 v. Oshkosh 722
v. Nevin 20 Washburne v. Cooke 611, 619
Walter v. Bacon 631 Washington v. Hammond 281
cxvm TABLE OF CASES.
Page
Washington v. Meigs 881 Webb v. Beavan 605
v. Nashville 860 v. Den 625, 526
v. Page 104,118,214 v. Dunn 691
Washington Avenue 698,716,717, v. State 437
730, 734 Webber v. Donnelly 850
Washington Bridge Co. v. State 838, 840 Weber v. Harbor Commissioners 755
Washington Co. v. Berwick 330 v. Morris, &c. 80
v. Franklin R. R. Co. 206 v. Reinhard 237, 707, 728
Washington Gas Light Co. v. Dis- v. State 468
trict of Columbia 357 Webster v. Fargo 729
Washington Home v. Chicago 121 v. French 114
Washington Ins. Co. r. Price 592, 693, 595 v. Harwinton 263, 266, 327
Washington St., Re 184 v. Reid 583, 586
Washington University v. Rouse 395 v. Rose 414
Wason v. Walter 600, 627, 628, 639, 647 Webster, Professor, Trial of 467
882 Wecherley v. Guyer 927
Wasson v. Wayne Co. Com. 718 Weckler v. Chicago 813
Waterbury v. Newton 846, 858 Weed v. Black 198
Waterhouse v. Public Schools 170 r. Boston 731
Waterloo W. Mfg. Co. v. Shanahan 697, v. Donovan 532
775 v. Foster 647
Waters v. Leech 281 Weeks v. Gilmanton 268
Waters-Pierce Oil Co. v. Texas 179, 386 v. Milwaukee 266, 545, 703, 717, 722,
Watertown v. Mayo 854, 883, 886 725, 732, 735, 742, 746, 883, 884
Watertown Bank, &c. v. Mix 691 Weet v. Brockport 356, 357
Waterville v. County Commissioners 336, Wehn Commissioners
v. 302
338 Weidenfield v. Sugar Run Ry. Co. 767
v. Kennebeck Co. 269 Weidenger v. Spruance 407, 511
Water Works Co. v. Burkhart 217, 754 Weightman v. Washington 304, 356
775, 777, 796, 809 Weil v. Ricord 884
Watkins, Ex parte 495, 496 Weill v. Kenfield 200, 214
v. County Court 354 Weimer v. Bunbury 237, 506, 748
v. De Armond 484 Weir v. Cram 248
v. Haight 629 v. Day 262
v. Holman's Lessee 146 v. St. Paul, &c. R. R. Co. 754
v. Inge 897 Weis v. Ashley 203
v. Walker Co. 757 Weise v. Smith 861, 862, 863
Watson v. Avery 660 Weismer v. Douglas 317, 698, 700
v. Blackstone 129 Weiss -r. Guerineau 58S
v. Jones 660, 661 v. Whittemore 606
v. Kent 218 Weister v. Hade 11, 242, 253, 331, 332
v. McCarthy 606 633, 543, 679
v. Mercer 374, 537, 638, 543 Welborn v. Akin 411
v. Needham 302 Welch v. Hotchkiss 283, 286, 710
v. New York Cent. R. R. Co. 407, 409 v. Post 212
v. State 177 v. State 38
r. Thurber 95 v. Stowell 286, 884
v. Town of Thorn 278 v. Sykes 42
Watson's Case 177 v. Wadsworth 416, 517, 633, 537
Watt v. People 449 Weldon v. Winslow 544
Watts v. Greenlee 607 Welker v. Potter 183
v. Norfolk & Western Ry. Co. 827 Weller v. Burlington 301
v. State 440 Wellington, Petitioner 232, 246, 253
Waxahachie v. Brown 272 v. Boston & M. Ry. Co. 827
Way v. Lewis 80 Wellman, In re 194, 223
v. Way 91, 92 v. Wickerman 764
Wayland v. County Commissioners 695 Wells, Ex parte 210
Way man v. Southard 132 v. Bain 69, 61
v. Burbank 748
Wayne Co. v. Waller 477
Wayrick t. People 459 v. Hyattsville Com'rs 739
Weare v. Dearing 81 v. McClenning 80
Weaver v. Cherry 312 v. Missouri Pac. Ry. Co 222
v. Davidson County 66, 184 v. People 262
v. Lapsley 119, 138, 209, 212, 213 v. Salina
v. Mississippi, &c. Co. 787 v. Savannah 740
Webb v. Baird 477, 563 v. Scott 688
TABLE OF CASES. CX1X
Page
Williams v. Bryant 607 Wilson w. Fitch 628
r. Clayton 897 v. Franklin 764
v. Commonwealth 444, 467, 470 t7.
Hardesty 637
v. Conger 33 v. Jackson 42
v. Courtney 514 v. Johns Island Church 661
v. Davidson 271, 272 v. King 895, 898
17. Detroit 120, 237, 716, 729, 735 t7. McKenna 618, 527
i7. Eggleston 269, 340, 711 t7. McNamee 688, 858
17. Fears 16, 687, 693 v. New York 742, 783, 856
v. Haines 407 17. Noonan 628, 658
17. Heard 29 17. North Carolina 20
v. Hill 607 v. Ohio, &c. R. R. Co. 374, 375
v. Johnson 529 v. People 473
17. Kirkland 83 i?. Rockford, &c. R. R. Co. 825
v. Mississippi 16 v. Runyan 607
v. Natural Bridge Plank R. Co. 790 17. Salamanca 321
v. Newport 388, 389 v. School District 262
17. N. Y. Central R. R. Co. 791, 806 v. Simon 516
17. Norris 30 v. Simonton 591
17. Oliver 30 v. State 60, 425, 447, 466, 482, 499
v. Payson 209, 212, 247 v. Sullivan 630
77.
People 209 17.
Supervisors of Sutter 740
v. Potter 930 v. Troy 358
v. Roberts 275 v. Wheeling 362
17. School District 113, 700, 743, 769 v. Wood 527
v. Smith 606 Wilson's Case 490
v. State 209,434,458,911 Wilson's Exec. v. Deen 80
i?. State Board 706 Wimmer Eaton
v. 917
v. Stein 912 Winbigler v. Los Angeles 363
v. Wing 398 Winchell v. State 452
Williamson v. Carlton 232 Winchester v. Ayres 677, 589
v. Lane 591, 938 17.
Capron 804
17. Louisville Ind. Sch. 305 Winchester & L. T. R. Co. v. Crox-
v. New Jersey
' 390 ton 873, 875
17.
Suydam 144 Wind v. Her & Co. 690
v.Williamson 146 Windham v. Portland 268
Williamsport v. Beck 719, 730 Wingate v. Sluder 679
Williar v. Baltimore, &c. Ass. 617 Winkley v. Newton 719
Willis v. Baylis 495 Winklemans v. Des Moines 783
v. Mabon 122 Winnsboro v. Smart 284
v. Owen 87, 163 Winona, &c. R. R. Co. v. Dcnman 825
459 17. Waldron
v. State 823, 841
17. St. Paul Sanitation Co. 122 Wiuona & St. Peter L. Co. v. Minne-
v. Winona 784 sota 22, 740
Williston 17. Colkett 531 v. Plainview 322
Willoughby v. George 530 Winslow, Ex parte 495
Wills 17. State 441 v. Grindall 80
Wilmarth v. Burt 193 "
r. State 445
356 17. Winslow 868
Wilmington v. Ewing
v. Macks 713 Winsor v. The Queen 469
r. Vandegrift 301 Winter v. City Council 295
Wilmington R. R. Co. v. Reid 395 17. Jones 403
Wilmington & W. Ry. Co. v. Alsbrook 397 v. Thistlewood 937
Wilmot v. Horton 346 Winterton v. State 217
Wilson, Ex parte 436 Wires v. Farr 522
Re Mackey)
(8 687, 846 Wirth w. Wilmington 279
fie (ION. M.) 687 Wisconsin v. Pelican Ins. Co. 43, 181
v. Ala. G. S. Ry. Co. 272, 291, 854 Wisconsin Centr. R. R. Co. v. Corn-
v. Blackbird Creek Marsh Co. 688, stock 683
767, 776, 863, 867 v. Taylor Co. 101, 707, 739
17. Brown 408, 909 Wisconsin Keeley Inst. v. Milwaukee
v. Chilcott 717 Co. 696
v. Collins 630 Wisconsin M. & P. Ry. Co. v. Jacob-
v. Cottman 607 son 856
v. Crockett 764 Wisconsin River Imp. Co. v. Lyons 54
v. Eureka City 21, 293 Wisconsin Tel. Co. v. Oshkosh 283
cxxn TABLE OF CASES.
Page Page
Wisconsin Water Co. v. Winans 765, 768, Wool, Matter of 482
777 Woollen v. Banker 13
Wise v. Bigger 194 Woolsey, Matter of 344
Wisners v. Monroe 209, 212 t\ Commercial Bank 259
Witliam v. Osborn 765 Wooten, Ex parte 456
Withers v. Buckley 755 v. State 240
v. State Worcester v. Norwich, &c. R. R. Co.
481 394
Withington v. Corey 653 v. Worcester St. Ry. Co. 393
Witmer v. Schlatter 80 Worcester Co. v. Worcester 695
Witt v. State 452 Worden v. New Bedford 306
v. St. Paul, &c. R. R. Co. 815 Work v. Corrington 40, 41
Wixon v. Newport 305, 355 v. State 458, 577
Woart v. Winnick 374, 376, 522, 530 Worley v. Columbia 305
Wolcott v. Holcomb 903, 906, 928 v. Harris 364
v. Rickey 485 Worman v. Hagan 132, 163
v. Wigton 92, 115 Wormley v. Uist. Col. 714
Wolcott Manuf. Co. v. Uphara 771 Worsham v. Stevens 407
Wolf v. Lansing 283, 851 Worth v. Butler 607
Wolfe v. Covington, &c. R. R. Co. 791 v. Norton 192
v. McCaull 187, 219, 220 v.
Wilmington, &c. R. R. Co. 706
Wolff v. New Orleans 415 Worthen v. Badget 194
Wonderly v. La Fayette 28 v. Prescott 487
Wong v. Astoria 280, 454 Worthley v, Steen 183
Wong Kim Ark's Case 14 Worthy r. Commissioners 30
Wood v. Brady 32, 36 Wortman, In re 894
v. Brooklyn 279 Wray, Ex parte 438
v. Brush 16 v. Pittsburg 717
v. Fitzgerald 18 Wreford v. The People 286, 292, 730, 883
v. Fort 223 Wren, Ex parte 194
v. Kennedy 416, 637 Wright, Re 382
v. McCann 197, 198 v. Augusta 301
v. Randall 688 v. Boon 689
v. Stephen 82 r. Boston 728, 736
v. Watkinson 41 v. Carter 790, 806
Wood's Estate, Re 580 v. Chicago 717
Woodard v. Brien 655 v. Cradlebaugh, 527
Woodbridge v. Detroit 716, 732, 812, 860 v. De Frees 258, 259
Woodburn v. Kilbourn Manuf. Co. 55, 867 v. Dressel 430
Woodbury v. Grimes 407 v. Dunham 626
v. Thompson 607 v. Graham 544
Woodcock Bennett
v. 603 v. Hawkins 517, 540
Woodfall's Case 652 v. Le Glair 80
Woodfolk v. Nashville R. R. Co. 825 v. Lindsay 606
Woodhull v. Wagner 417 v. Lothrop 620, 629
Woodlawn Cemetery v. Everett 881 v. Nagle -
662
Woodman v. Pitman 863 v. Oakley 621
Woodmere Cem. v. Ruolo 755 v. People 437
Woodruff w. Bradstreet Co. 611 . State 467, 469
v. Fisher 735 v. Straub 409
v. Mississippi 32 v. Woodgate 610
v. Neal 788 v. Wright 156
v. Parham 687, 694 Wroth v. Johnson 924
v. Scruggs 618, 637 Wurts v. Hoagland 868
v. Trapnall 35, 403 Wyandotte v. Drennan 388
Woods v. Miller 433 Wyatt v. Buell 630
v. State 845 v Smith 514
Woods's Appeal 61 Wynehamer v. People 128, 237, 239, 241,
Woodside v. Wagg 898 604, 606, 520, 831, 849, 850, 853
Woodson v. Murdock 123, 206 Wynne, In re 223
Woodward v. Commonwealth 38
v. Lander 620
v. Worcester 362 Y.
Woodward Iron Co. v. Cabaniss 121
Wood worth v. Bowles 122 Yancy v. Yancy 237, 522
v. Spring 684 Yarbrough, Ex parte 14, 18, 496
v. Tremere 41 Yates v. Lansing 453
TABLE OF CASES. CXX111
Page
CONSTITUTIONAL LIMITATIONS.
CONSTITUTIONAL LIMITATIONS.
CHAPTER I.
DEFINITIONS.
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 State A
is called a sovereign State when this supreme power resides within
itself, whether resting in a single individual, or in a number of
4
individuals, or in the whole body of the people. In the view of
international law, all sovereign States are and must be equal
1
Story on Const. Story on Const. 207 Black.
rt
Vattel, b. 1, c. 1, 1 ; ;
1
207Wheat. 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,
;
superior.
The sovereignty commonly extends to all the sub-
of a State
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
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 License Cases, 5 How. between the federal and State govern-
McLean, J., in
"
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. 9
Inst. ; 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
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.
2 Mr.
Const. Law, 795 Fischel, English Con-
; 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 United States was [prior to the Revo- that the unappropriated lands which be-
lution] a part of the dominions appertain- longed to the Crown passed, not to the
ing to the Crown of Great Britain. Every people of the colony or State within
acre of land in this country was then whose limits they were situated, but to
held, mediately or immediately, by grants the whole people. On whatever princi-
from that Crown. All the people of this ples this opinion rested, it did not give
country were then subjects of the King way to the other, and thirteen sov-
of Great Britain, and owed allegiance to ereignties were considered as emerged
him and all the civil authority then ex-
;
from the principles of the Revolution,
isting or exercised here flowed from the combined with local convenience and
head of the British empire. They were considerations the people, nevertheless,
;
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.
tion, it may be said of them generally that they have at all times
1
maining few who do not become parties with the consent of particular States to
toit. The first question is answered at a dissolution of the federal pact, will not
once by recurring to the absolute neces- the complaining parties find it a difficult
sity of the case;
to the great principle of task to answer the multiplied and impor-
self-preservation ; to the transcendent law tant infractions with which they may be
of nature and of nature's God, which de- confronted 1 The time has been when it
clares that the safety and happiness of was incumbent on us all to veil the ideas
society are the objects at which all politi- which this paragraph exhibits. The
cal institutions aim, and to which all such scene is now changed, andwith it the
must be sacrificed. Perhaps,
institutions part which the same motives dictate.
also,an answer may be found without The second question is not less delicate,
searching beyond the principles of the and the flattering prospect of its being
compact itself. It has been heretofore merely hypothetical forbids an over-
noted, among the defects of the confed- curious discussion of it. It is one of
eration, that in many of the States it had those cases which must be left to pro-
received no higher sanction than a mere vide for itself. In general it may be ob-
legislative ratification. The principle of served, that although no political relation
reciprocality seems to require that its can subsist between the assenting and
obligation on the other States should be dissenting States, yet the moral relations
reduced to the same standard. com-A will remain uncancelled. The claims of
pact between independent sovereigns, justice, both on one side and on the other,
founded on acts of legislative authority, will be in force, and must be fulfilled the
;
can pretend to no higher validity than rights of humanity must in all cases be
a league or treaty between the parties. duly and mutually respected whilst con-
;
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
Hunter's Lessee,
v. 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. 8 Sup. Ct. Rep. 273. [But it
S. 623,
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 the Constitution provides that
to As to the general division of
powers
" the between the Dominion of Canada and
powers not delegated to the United
States by the Constitution, nor prohibited the provinces, see Citizens' Ins. Co. .
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 United States.
of the
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
3
right to their respective writings and discoveries.
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.]
[Naturalization may be by treaty, and also by organic act creating a State.
(l>)
Boyd Nebraska, 143 U. S. 135, 12 Sup Ct. Rep. 375, and cases there cited. But
v.
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
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
120 Pa. St. 368, 14 Atl. 251 New v. ; L. R. A. 786 and upon power of State
;
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.
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
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-
'
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.
; ;
(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
(a) Adiscrimination 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 Kansas City, 176 U. S. 114, 20 Sup. Ct. Rep. 284, aff.
i;.
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 ErbMorasch, 177 U. S. 584, 20 Sup. Ct. Rep. 819, aff. 60 Kan. 251, 56
v.
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.
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.
AState 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. State may classify cities for regulation of registration of
363, 64 N. E. 362.
voters. Mason Missouri, 179 U. S. 328, 21 Sup. Ct. Rep. 125. In Cotting v.
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
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 standing the abolition of slavery and in-
proposed for the purpose of fully pro- voluntary servitude, the freedmen were
tecting the newly-made citizens of the in some portions of the country subjected
African race in the enjoyment of their to disabilities from which others were ex-
freedom, and to prevent discriminating empt. There were also complaints of the
State legislation against them. The gen- existence in certain sections of the South-
erality of the language used necessarily ern States of a feeling of enmity, growing
extends its provisions to all persons, of out of the collisions of the war, towards
every race and color. Previously to its citizens of the North. Whether these
adoption, the Civil Rights Act had been complaints had any just foundation is im-
passed, which declared that citizens of material they were believed by many
;
the United States of every race and to be well founded, and to prevent any
color, without regard to any previous possible legislation hostile to any class
condition of slavery or involuntary servi- from the causes mentioned, and to obvi-
tude, except as a punishment for crime, ate objections to legislation similar to
should have the same rights in every that embodied in the Civil Rights Act,
State and Territory to make and enforce the fourteenth amendment was adopted.
contracts, to sue, be parties, and give This manifest from the discussions in
is
evidence, to inherit, purchase, lease, sell, Congress with reference to it. There was
own, and convey real and personal prop- no diversity of opinion as to its object
erty, and to full and equal benefit of all between those who favored and those who
laws and proceedings for the security of opposed its adoption." Mr. Justice Field
person and property as is enjoyed by in San Mateo County v. Sou. Pac. R. R.
white citizens, and should be subject to Co., 13 Fed. Rep. 722.
like punishments, pains, and pena'ties, "A State acts by its legislative, its
and tonone other. The validity of this executive, or its judicial authorities. It
act was questioned in many quarters, can act in no othe/ way. The constitu-
and complaints were made that, notwith- 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.
that no agency of the State, or of the Portland Bangor, 65 Me. 120, 20 Am.
v.
officers or agents by whom its powers are Rep. 681. See Griffin's Case, Chase Dec.
executed, sliall deny to any person within 368. The new amendments do not en-
itsjurisdiction the equal protection of the large the privilege of suffrage so as to
laws. Whoever by virtue of public posi- entitle women to vote. Bradwell v. State,
tion under a State government deprives 16 Wall. 130; Minor ;. Happersett, 21
another of property, life, or liberty with- Wall. 162. They do not prevent a State
out due process of law, or denies or takes forbidding a body to parade without
away the equal protection of the laws, license from the Governor. The privi-
violates the constitutional inhibition and ; lege of citizens of the United States is not
as he acts in the name and for the State, thereby infringed. Presser v. Illinois, 116
and is clothed with the State's authority, U. S. 252, 6 Sup. Ct. Rep. 580. The four-
his act is that of the State. This must teenth amendment does not entitle per-
be so, or the constitutional prohibition has sons as of right to sell intoxicating drinks
no meaning." Strong, 3., in Ex parte Vir- against the prohibitions of State laws;
ginia, 100 U. S. 339. Approved, Neal v. Bargprneyer v. Iowa, 13 Wall. 129 ; nor is
Delaware, 103 U. S. 370, 397. An act property taken without due process of
of Congress declaring that certain acts law by such a law, although without com-
committed by individuals shall be deemed pensation an existing brewery is rendered
offences and punished in the United States valueless thereby: Mugler v. Kansas, 123
courtsis invalid. The fourteenth amend- U. S. 623, 8 Sup. Ct. Rep. 273; it is
ment does not " invest Congress with not violated by the grant by a State,
power to legislate upon subjects which under its police power, of an exclusive
are within the domain of State legisla- right for a term of years to have and
tion but to provide modes of relief
;
maintain slaughter-houses, landings for
against State legislation or State action cattle,and yards for inclosing cattle in-
of the kinds referred to. It does not tended for slaughter, within certain speci-
authorize Congress to create a code of fied parishes Slaughter House Cases, 16
:
dress against the operation of State laws Sauvinet, 92 U. S. 90 ; it does not pre-
and the action of State officers, executive clude a State from taxing its citizens for
and judicial, when these are subversive debts owing to them from foreign debtors :
of the fundamental rights specified in Kirtland v. Hotchkiss, 100 U. S. 491;
the amendment." Bradley, J., in Civil nor from regulating warehouse charges ;
Baldwin v. Franks, 120 U. S. 678, 7 Sup. &c. R. R. Co. v. Iowa, 94 U. S. 155 Rail- ;
Ct. Rep. 656. But Congress may pun- road Com. Cases, 116 U. S. 307, 6 Sup.
ish the intimidation by individuals of Ct. Rep. 388 Dow v. Beidleman, 125 U. S.
;
voters at federal elections. Ex parte 680, 8 Sup. Ct. Rep. 1028; nor from mak-
Yarbrough, 110 U. S. 651, 4 Sup. Ct. ing railroads, and not other masters,
Rep. 152. liable to servants for the negligence of
1 fellow-servants Missouri Pac. Ry. Co.
See, as to these amendments, Story :
on Const. (4th ed.)and App.c. 46, 47, 48, v. Mackey, 127 U. S. 206, 8 Sup. Ct. Rep.
to Vol. II. The adoption of an amend- 1161; Minneapolis & St. L. Ry. Co. v.
ment to the Federal Constitution has the Herrick, id. 210 ; nor from giving double
effect nullify all provisions of State
to damages for killing stock through failure
constitutions and State laws which con- to fence Missouri Pac. Ry. Co. v. Humes,
:
flict therewith. Ex parte Turner, Chase 116 U. 6 Sup. Ct. Rep. 110; Min-
S. 612,
Dec. 157; Neal v. Delaware, 103 U. S. neapolis & St. L. Ry. Co. v. Beck with,
370; Wood v. Fitzgerald, 3 Oreg. 568; 129 U. S. 26, 9 Sup. Ct. Rep. 3; nor from
CH. II.]
THE CONSTITUTION OF THE UNITED STATES. 19
requiring a railroad to pay for examina- v. Mississippi, 162 U. S. 665, 16 Sup. Ct.
tion of its servants for color-blindness :
Rep. 904; Carter v. Texas, 177 U. S. 442,
Nashville, C. & St. L. Ry. Co. v. Alabama, 20 Sup. Ct. Rep. 687. On negroes as grand
128 U. S. 96, 9 Sup. Ct. Kep. 28 contra, ; jurors see note to 44 L. ed. U. S. 839. State
Louisville & N. R. R. Co. v. Baldwin, 85 may require negroes and whites to occupy
Ala. 619, 6 So. 311. separate compartments in passenger cars
The fourteenth amendment does not on roads operating wholly within the
profess to secure to all persons in the State. Plessy v. Ferguson, 163 U. S. 537,
United States the benefit of the same 16 Sup. Ct. Rep. 1138, aff. 45 La. Ann. 80,
laws and the same remedies. Great di- 11 So. 948,18 L. R. A. 639.] A
trial jury
versities may and do exist in these re- may be made up entirely of whites, if ne-
spects in different States. One may have groes are not excluded from jury lists, but
the common law and trial by jury; an- an indictment is bad,.if found by a grand
other the civil law and trial by the court. jury on which whites only are allowed by
But like diversities may also exist in dif- law. Bush v. Kentucky, 107 U. S. 110,
ferent parts of the same State. The States 1 Sup. Ct. Rep. 625. See, further, United
frame their laws and organize their courts States v. Reese, 92 U. S. 214
QLewis v.
;
with some regard to local peculiarities State, 29 Tex. Ct. Ap. 201, 59 S. W. 1116,
and special needs, and this violates no 25 Am. St. 720. Negroes called for jury-
constitutional requirement. All that one service may be peremptorily challenged
can demand under the last clause of 1 if peremptory challenges are not yet ex-
of the fourteenth amendment is, that he hausted. Whitney v. State, Tex. Cr.
shall not be denied the same protection Ap. 63 S. W. 879.]
, A
law prohib-
of the laws which is enjoyed by other iting adultery between a white and a
persons or other classes in the same place negro under heavier penalty than be-
and under like circumstances. Missouri tween two whites or two blacks, is valid.
v. Lewis, 101 U. S. 22 Hayes v. Missouri,
; Pace v. Alabama, 106 U. S. 683, 1 Sup.
120 U. S. 68, 7 Sup. Ct. Rep. 350. So Ct. Rep. 637. See Plunkard v. State, 67
railroads, as a class, may be taxed differ- Md. 364. Since these amendments, as
ently from other property, and if the law before, sovereignty for the protection of
provides for a hearing and judicial con- life and personal liberty within the re-
test, it is due process of law. Kentucky spective States rests alone with the
R. R. Tax Cases, 115 U. S. 321, 6 Sup. States and the United States cannot
;
and are steps towards reducing them to ginia, 129 U. S. 114, 9 Sup. Ct. Rep. 231 ;
the condition of a subject race. The de- rjState v. Knowles, 90 Md. 646, 45 Atl.
nial by State authority of the right and 877, 49 L. R. A. 695 ;] but the adminis-
privilege in colored persons to participate tration of such police ordinances so as to
as jurors in the administration of justice deny Chinese rights accorded to whites
to
is a violation of this amendment. Strau- in circumstances is prohibited.
similar
der v. West Virginia, 100 U. S. 303 Vir- ;
Tick Wo v. Hopkins, 118 U. S. 356, 6
ginia Rives, 100 U. S. 313 Ex pirte
v. ; Sup. Ct. Rep. 1064.
" "
Virginia, 100 U. S. 339 Neal v. Dela-
; Corporations are persons within the
ware, 103 U. S. 370 FJBush v. Kentucky,
; meaning of the amendment. Santa Clara
107 U. S. 110, 1 Sup. Ct. Rep. 625 ;
Gibson 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. cientwhen, with the utmost diligence and
Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. without any accident or delay whatever,
Ct. Rep. 1161 [[Smyth v. Ames, 169 U. S.
;
the party notified could not reach the
466, 18 Sup. Ct. Rep. 418 Hawley v.
; court with less than four days of constant
Kurd et al., 72 Vt. 122, 47 Atl. 401. But travelling, and the fact that by the local
"
are not " citizens within the meaning practice there would be several days
of that term as used in the fourteenth after return day before the case could be
amendment. Orient Ins. Co. v. Daggs, called for trial or default taken, or that
172 U. S. 557, 19 Sup. Ct. Rep. 281; the court would probably, in view of the
Hawley v. Hurd et al., supra ;] but a for- circumstances, set aside any default that
eign corporation is not deprived of equal might have been entered, will not nega-
protection of the laws because it is taxed tive this conclusion of insufficiency, since
by the State at as high a rate as are cor- non-residents are not presumed to know
porations of that State in its home State. the law and practice of the State. Roller
Phila. Fire Ass.r. New York, 119 U. S. v. Holly, 176 U. S. 398, 20 Sup. Ct.
Rep.
110, 7 Sup. Ct. Rep. 108. 410, rev. 13 Tex. Civ. Ap. 636, 35 S. W.
"
The repeal of a limitation statute after 1074. It is no longer open to contention
a personal debt is barred by it, does not that the due process clause of the four-
deprive the debtor of property without teenth amendment . . does not control
.
due process of law. Campbell v. Holt, mere forms of procedure in State courts or
115 U. S. 620, 6 Sup. Ct. Rep. 209. See, regulate practice therein. All its require-
further, Railroad Co. v. Brown, 17 Wall. ments are complied with, provided, in the
446 Kennard v. Louisiana, 92 U. S. 480;
; proceedings which are claimed not to
Pennoyer v. Neff, 95 U. S. 714 Pearson ;
have been due process of law, the person
v. Yewdall, 95 U. S. 294; McMillen v. condemned has had sufficient notice, and
Anderson, 95 U. S. 37; Davidson v. New adequate opportunity has been afforded
Orleans, 96 U. S. 97 Kirkland v. Hotch-
;
him to defend. Iowa C. R. Co. v. Iowa,
kiss, 100 U. S. 491 Tennessee v. Davis,
; 160 U. S. 389, 16 Sup. Ct. Rep. 344 ; Wil-
100 U. S. 257 ; Louisiana v. New Orleans, son v. North Carolina, 169 U. S. 686, 18
109 U. S. 285, 3 Sup. Ct Rep. 211 Prov- ; Sup. Ct. Rep. 435," per Mr Justice White
ident Inst. Jersey City, 113 U. S. 506,
. in Louisville & N. R. Co. v. Schmidt,
5 Sup. Ct. Rep. 612; RoBards v. Lamb, 177 U. S. 230, 236, 20 Sup. Ct. Rep. 620,
127 U. S. 58, 8 Sup. Ct. Rep. 1031 Wal- ; aff. 99 Ky. 148, 35 S. W. 135, 36 S. W.
ston v. Nevin, 128 U. S. 578, 9 Sup. Ct. 168. In this case the L. & N. R. Co. had
Rep. 192; Freeland v. Williams, 131 U. S. been an actual defendant, although never
405, 9 Sup. Ct. Rep. 794; Board of served with notice and not a party to the
Com'rs v. Merchant, 103 N. Y. 143 State ;
record. After judgment it was brought
v. Ryan, 70 Wis. 676, 36 N. W. 823; in by rule to show cause and upon appear-
Warren v. Sohn, 112 Ind. 213, 13 N. E. ing and claiming a set-off it was con-
863 State v. Dent, 25 W. Va. 1
; Allen ;
demned to pay the judgment. The
v. Wyckoff, 48 N. J. L. 90, 2 Atl. 659. garnishment of a resident debtor of a
Upon what constitutes "due process of non-resident defendant to reach a debt
law," see cases collected in valuable due from the latter who has no other
notes upon this topic appended to 42 L. property within the jurisdiction of the
ed. U. S. 865, and 24 L. ed. U. S. 436 ; court does not deprive him of his property
see also latter part of note 1, page 605, without due process of law, the situs of
and note 1, page 568, post. Personal ser- debt being, for purposes of attachment,
vice on non-residents outside the jurisdic- with the debtor. King v. Cross, 175 U. S.
tion of the court may, if reasonable time 396, 20 Sup. Ct. Rep. 131 ;Chicago,
isgiven in which to appear and answer, be R. I. & P. R. Co. i>. Sturm, 174 U. S. 710,
due process of law in a suit for the foreclos- 19 Sup. Ct. Rep. 797. Upon right to cor-
ure of a lien upon land within the jurisdic- rect gross undervaluations of property
tion of the court ; but five days' notice, one assessed for taxation in prior years, even
of those days being a Sunday, is insuffi- when ownership has since changed, see
CH. II.]
THE CONSTITUTION OF THE UNITED STATES. 21
Weyerhauser v. Minnesota, 176 U. S. 550, certain localities, even though such re-
20 Sup. Ct. Rep. 485, aft. 72 Minn. 519, striction depreciates the property in those
75 N. W. 718, in which right of State so localities, see L'Hote v. New Orleans, 177
to do is sustained. Assessment and col- U. S. 587, 20 Sup. Ct. Rep. 788. Valid
lection of taxes upon money loaned commitment for contempt does not de-
within the State is not a taking without prive of liberty without due process, and
due process merely because creditor re- jury trial is unnecessary. Tinsley v.
sides without the State, and such taxes if Anderson, 171 U. S. 101, 18 Sup. Ct. Rep.
unpaid may be made a lien enforceable 805. In the distribution of the assets of
against estate of decedent creditor except an insolvent, postponing a foreign corpo-
as limited by Statute of Limitations. ration's claims until after those of resi-
Bristol v. Washington County, 177 U. S. dents of the State are satisfied, is not a
133, 20 Sup. Ct. Rep. 585. denial of due process. Blake v. McClung,
A State may tax the interest of the 172 U. S. 239, 19 Sup. Ct. Rep. 165. Nor
non-resident mortgagee of lands within is making the face of the policy conclu-
its boundaries, even though he holds the sive as to the value of the property
mortgage at his residence. Savings & L. insured in case of total loss. Orient In-
Society v. Multonomah County, 169 U. S. surance Co. v. Daggs, 172 U. S. 557, 19
421, 18 Sup. Ct. Rep. 392. As to taxes Sup. Ct. Rep. 281, aff. 136 Mo. 382, 38
on judgments, see Kingman Co. Com'rs S. W. 85, 35 L. R. A. 227, 58 Am. St.
v. Leonard, 57 Kan. 631, 46 Pac. 960, 34 638. But see Missouri, K. & T. Ry. Co.
L. R. A. 810; moneys of non-residents v. Simonson, Kan. , 68 Pac. 653, where
deposited in State, Re Houdayer, 150 it is held that statute making state-
N. Y. 37, 44 N. E. 718, 34 L. R. A. 235, ment of weight in a bill of lading conclu-
65 Am. St. 642; place of taxation of sive evidence between the carrier and
trust property, Richmond County Acad. shipper was void. Nor is requirement of
v. Augusta, 90 Ga. 634, 17 S. E. 61, 20 bond attachment against a resident
in
L. R. A. 151, and note. Subjecting the while none is required against a non-resi-
logs of an individual who voluntarily dent. Central Loan & T. Co. v. Campbell
runs them into a boom to a lien in favor Commn. Co., 173 U. S. 84, 19 Sup. Ct.
of the surveyor-general for services of Rep. 346. State may forfeit lands for
inspection compelled by law and ren- non-payment of taxes if reasonable op-
dered indiscriminately upon all logs in portunity is given the owner to redeem
the boom is not a taking without due by payment of taxes and charges. King
process. Lindsay & Phelps Co. v. Mul- v Mullins, 171 U. S. 404, 18 Sup. Ct. Rep.
.
len, 176 U. S. 120, 20 Sup. Ct. Rep. 925. Consequential damage arising from
325. Legislation restricting a land- allowing an obstruction of a street is not
owner's right to permit natural gas to a taking without due process. Meyer i>.
escape from his oil wells and go to waste Richmond, 172 U. S. 82, 19 Sup. Ct. Rep.
does not deprive him of property without 106. may be vested in a single
Discretion
due process. Ohio Oil Co. v. Indiana, 177 officer topermit or refuse to permit a
U. S. 190, 20 Sup. Ct. Rep. 576. Denying building to be moved through the streets.
a right of action for defamatory words Wilson v. Eureka City, 173 U. S. 32, 19
used in a pleading is not a taking of Sup. Ct. Rep. 317. State cannot impose
property without due process, even if upon a non-resident lot owner a liability
reputation could be considered property. inpersonam in respect of the lot. Dewey
Abbott v. National Bank of Commerce, v.Des Moines, 173 U. S. 193, 19 Sup. Ct.
175 U. S. 409, 20 Sup. Ct. Rep. 153, aff. Rep. 379. For note on what constitutes
20 Wash. 552, 56 Pac. 376. On power of due process of law, see 2 L. R. A. 258.
State to declare keeping of barber-shops In appropriation under eminent domain,
open on Sunday not a work of charity or the State may provide that the appropri-
necessity, see Petit v. Minnesota, 177 ator may go into possession upon giving
U. S. 164, 20 Sup. Ct. Rep. 666. On adequate security that the duly assessed
power of city to restrict prostitutes to compensation will be paid, and may also
22 CONSTITUTIONAL LIMITATIONS. [CH. II.
provide different tribunals for passing matter within the jurisdiction of the
upon the necessity of the appropriation court is not a denial of due process.
and upon the amount of compensation. Ex parte Converse, 137 U. S. 624, 11 Sup.
Backus v. Fort St. Union Depot Co., 169 Ct. Rep. 191. Execution of a criminal
U. S. 557, 18 Sup. Ct. Rep. 445. If dur- by one officer or another, the executioner
ing the pendency of an appeal, the day being duly appointed under the statute, is
set for the execution of a death sentence no part of due process. Davis v. Burke,
passes, it is no denial of due process to 179 U. S. 399, 21 Sup. Ct. Rep. 210. For
set another day, particularly when such other important cases on due process, see
is inconformity to the statute of the Missouri Pac. Ry. v. Nebraska, 164 U. S.
State. Craemer o. Washington, 168 U. S. 403, 17 Sup. Ct. Rep. 130; Allen v. Geor-
124, 18 Sup. Ct. Rep. 1. An information gia, 166 U. S. 138, 17 Snp. Ct. Rep. 525;
which charges a crime in the general Lowe v. Kansas, 163 U. S. 81, 16 Sup. Ct.
words of a statute without specifying Rep. 1031 Jones v. Brim, 165 U. S. 180,
;
kind, quantity, price, etc., but sets out 17 Sup. Ct. Rep. 282 Kohl v. Lehlback,
;
these and other particulars in a specifi- 160 U. S. 293, 16 Sup. Ct. Rep. 304;
cation attached to the information, which Winona & St. Peter Land Co. v. Minne-
specification the accused might lawfully sota, 159 U. S. 526, 16 Sup. Ct. Rep. 83;
require but has not in fact required, is not Hamilton v. Brown, 161 U. S. 256, 16
too defective to be due process. Hodgson Sup. Ct. Rep. 685; Iowa C. Ry. Co. v.
v. Vermont, 168 U. S. 262, 18 Sup. Ct. Iowa, 160 U. S. 389, 16 Sup. Ct. Rep. 344;
Rep. 80, aff. 66 Vt. 134, 28 Atl. 1089. Cram v. United States, 162 U. S. 625, 16
State may confiscate, without judicial Sup. Ct. Rep. 952 Owens v. Henry, 161
;
process, nets and seines used in violation U. S. 642, 16 Sup. Ct. Rep. 693; Andrews
of its fish and game laws. Lawton o. v. Swartz, 156 U. S. 272, 15 Sup. Ct.
Rep.
Steele, 152 U. S. 133, 14
Sup. Ct. Rep. 389; Bergeman v. Backer, 157 U. S. 655,
499, aff. 119 N. Y. 226, 23 N. E. 878, 7 15 Sup. Ct. Rep. 727; Duncan v. Mis-
L. R. A. 134. Indictment by grand jury souri, 152 U. S. 377, 14 Sup. Ct. Rep. 570;
not necessary. McNulty v. California, McKane v. Durston, 153 U. S. 684, 14
149 U. S. 645, 13 Sup. Ct. Rep. 959, aff. 93 Sup. Ct. Rep. 913 Marchant v. Penn. Ry.
;
Cal. 427, 26 Pac. 597, 29 Pac. 61. State Co., 153 U. S. 380, 14 Sup. Ct. Rep. 894;
can impeach title to lands granted by it Giozza v. Tiernan, 148 U. S. 657, 13 Sup.
only by suing in equity. A second patent Ct. Rep. 721 ;
Passavant v. United States,
to the lands issued before such impeach- 148 U. S. 214, 13 Sup. Ct. Rep. 572;
ment of the former is void. Chandler v. Paulsen v. City of Portland, 149 U. S. 30,
Calumet & H. M. Co., 149 U. S. 79, 13 13 Sup. Ct. Rep. 750 Schwab v. Berg-
;
Sup. Ct. Rep. 798; Noble v. Union Riv. gren, 143 U. S. 442, 12 Sup. Ct. Rep. 525;
Logging R. Co., 147 U. S. 165, 13 Sup. Davis v. Texas, 139 U. S. 651, 11 Sup.
Ct. Rep. 271. Ct. Rep. 675 ; Leeper v. Texas, 139 U. S.
The State provide that the acts of
may 462, 11 Sup. Ct. Rep. 577; Lent v. Till-
its de facto officers shall be valid. Man- son, 140 U. S. 316, 11 Sup. Ct. Rep. 825.
ning r. Weeks, 139 U. S. 504, 11 Sup. Ct. See also cases in note 1, page 568, postJ]
Rep. 624. An erroneous decision upon a
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
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 limitsthat the corporation shall agree Rep. 617. Amere 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 Texas, 176 U. S. 1, 20 Sup.
v.
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.]
2 U. S. Const, llth
by a customs collector, the United States 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.
U. S. 135. That States are not suable Ames, 169 U. S. 466, 18 Sup. Ct. Rep.
except with their own consent, see Rail- 418 ; Donald, 165 U. S. 58, 107,
Scott v.
road Co. v. Tennessee, 101 U. S. 337; 17 Sup. Ct. Rep. 265, 262 Reagan v. ;
Railroad Co. r. Alabama, 101 U. S. 832. Farmers' L. & J. Co., 154 U. S. 362, 14
A State by appearing in a suit against it Sup. Ct. Rep. 1047 Ex pane Tyler, 149
;
may waive its immunity. Clark v. Bar- U. S. 164, 13 Sup. Ct. Rep. 785 Pen- ;
nard, 108 U. S. 436, 2 Sup. Ct. Rep. 878. noyer v. McConnaughy, 140 U. S. 1, 11
It may attach any conditions it pleases Sup. Ct. Rep. 699. Where individuals
to its consent. DeSaussure v.
Gaillard, claiming to be in possession as officers of
127 U. S. 216, 8 Sup. Ct. Rep. 1053. But a State, holding for the State, are sued in
apart from such conditions its liability an action of ejectment and the State does
must be determined like that of an in- not intervene and become a party to the
dividual. Green v. State, 73 Cal. 29, 11 record, the suit is not one against the
Pac. 602, 14 Pac. 610; Bowen v. State, State. Tindal v. Wesley, 167 U. S. 204,
108 N. Y. 166, 15 N. E. 56. [Statutes per- 17 Sup. Ct. Rep. 770.] See Antoni v.
mitting suits against the State are to be Greenhow, 107 U. S. 769, 2 Sup. Ct. Rep.
strictly construed. Interest is not allow- 91. Allen v. Baltimore & O. R. R. Co.,
able on the claim unless the statute ex- 114 U. S. 311, 6 Sup. Ct. Hep. 425, 962.
pressly so provides. Western & A. R. Co. An action lies to compel an officer to do
v. State, Ga. 14 L. 11. A. 438. And
,
what the statute requires. Rolston o.
upon suits against a State, see in general, Missouri Fund Cora'rs, 120 U. S. 390,
Carr v. State, 127 Ind. 204, 26 N. E. 778, 7 Sup. Ct. Rep. 599. No claim arises
11 L. R. A. 370 and note 22 Am. St.
; against any government in favor of an
624 Hans v. Louisiana, 134 U. S. 1, 10
; individual, by reason of the misfeasance,
Sup. Ct. Rep. 504 North Carolina c.
; laches, or unauthorized exercise of power
Temple, 134 U. S. 22, 10 Sup. Ct. Rep. by its officers or agents. Gibbons v.
509. A suit by one State against another United States, 8 Wall. 269 Clodfelter v. ;
will not lie, if in legal effect prosecuted State, 86 N. C. f>l, 53; Langford v. United
in the name of the State by citizens States, 101 U. S. 341. [Upon what claims
thereof as the real parties in interest. constitute valid demands against a State,
New Hampshire v. Louisiana, 108 U. S. see Northwestern & P. H. Bank v. State,
76. A suit nominally against an officer, 18 Wash. 73, 50 Pac. 586, 42 L. R. A. 33,
but really against a State, to enforce per- and note. See, on suits against a State,
formance of its obligation in its political 34 Am. L. Rev. 670.]
1 "The United States is a
capacity, will not lie. Louisiana v. Jumel, government
107 U. S. 711, 2 Sup. Ct. Rep. 128; Ha- with authority extending over the whole
good v. Southern, 117 U. S. 52, 6 Sup. Ct. territory of the Union, acting upon the
Rep. 608 In re Ayers, 123 U. S. 443, 8
; States and the people of the States.
Sup. Ct. Rep. 104 [Smith v. Reeves, 178
;
While it is limited in the number of its
U. S. 436, 20 Sup. Ct. Rep. 919. And as powers, so far as its sovereignty extends
to suits against States, see notes to 33 L. it is supreme. No State government can
ed. U. S. 842; 11 L. R. A. 370; 8 L. R. exclude it from the exercise of any au-
A. 399. See also Fitts v. McGhee, 172 thority conferred upon it by the Consti-
U. S. 516, 19 Sup. Ct. Rep. 269.] Other- tution, obstruct its authorized officers
wise if officers, claiming to act as such, against its will, or withhold from it for
invade private right under color of un- a moment the cognizance of any subject
constitutional laws. United States v. which that instrument has committed to
Lee, 106 U. S. 196, 1 Sup. Ct. Rep. 240 ;
it." Strong, J., in Tennessee v. Davis,
Cunningham v. Macon, &c. R. R. Co., 100 U. S. 257, 263. [Iowa statute exclud-
109 U. S. 446, 3 Sup. Ct. Rep. 292; ing aliens from holding lands is overridden
Poindexter v. Greenhow, 114 U. S. 270, by treaty with Bavaria. Opel v. Shoup,
5 Sup. Ct. Rep. 903, 962; [Smyth v. 100 Iowa, 407, 69 N. W. 560, 37 L. R. A.
CH. II.]
THE CONSTITUTION OF THE UNITED STATES. 25
wood's Lessee, 5 Cranch,344; McCulloch Met. (Ky.) 33 People v. Gerke, 5 Cal. 381.
;
hihit federal judges from charging juries 7 Pet. 61 ; Garcia v. Lee, 12 Pet. 511 ;
as to matters of fact. St. Louis, &c. Ry. Hauenstein v. Lynham, 100 U. S. 483 ;
Co. v. Vickers, 122 U. S. 360, 7 Sup. Ct. Ropes v. Clinch, 8 Blatch. 304 ;
United
Rep. 1216. Congress may empower a States Tobacco Factory, 1 Dill. 264;
v.
corporation to take soil under navigable The Cherokee Tobacco, 11 Wall. 616.
water between two States for the build- In this last case it is decided, as before it
ing of a bridge for use in interstate com- had been at the Circuit, that a law of
merce, although the legislature of one of Congress repugnant to a treaty, to that
the States protests against it. Decker extent abrogates it. To the same effect
v. Baltimore, &c. R. R. Co 30 Fed. Kep. , are Head Money Cases, 112 U. S. 580,
723. When
a treaty has been ratified 6 Sup. Ct. Rep. 247 Whitney v. Robert-
;
by the proper formalities, it is, by the son, 124 U. S. 190, 8 Sup. Ct. Rep. 456 ;
Constitution, the supreme law of the Chinese Exclusion Case, 130 U. S. 581,
land, and the courts have no power to 9 Sup. Ct. Rep. 623. FJA provision of a
inquiie into the authority of the persons State constitution against limitation of
by whom it was entered into on behalf liability for injuries resulting in death is
of the foreign nation. Doe v. Braden, overridden by an act of Congress permit-
16 How. 635, 657 or the powers or rights
; ting such limitation in maritime affairs.
recognized by it in the nation with which Loughin v. McCaulley, 186 Pa. 517, 40
it was made. Maiden v. Ingersoll, 6 Atl. 1020, 48 L. R. A. 33, 65 Am. St. 872.]
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 Virginia, 6 Wheat,
v. 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
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 propertysuch as shall be conveyed to it
in satisfaction of debts previously contracted in the course of its dealings" is not
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.
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
" "
It is settled law, as established by That except
in the cases of which
well-considered decisions of this court, this court given by the Constitution
is
pronounced upon full argument, and original jurisdiction, the judicial power
after mature deliberation, notably in of the United States is to be exercised in
Cohens v. Virginia, 6 Wheat. 264; Os- its original or appellate form, or both, as
arise under the Constitution, or a law of when property arisingunder act of Con-
the United States, whenever its correct gress begins. Williams v. Heard, 140
decision depends upon a construction of U. S. 529, 11 Sup. Ct. Rep. 885. For
either ; other cases upon power of review by the
" That cases
arising under the laws of Supreme Court of the United States, see
the United States are such as grow out of Metropolitan Nat'l Bk. v. Claggett, 141
the legislation of Congress, whether they U. S. 520, 12 Sup. Ct.Rep.60; Ktheridge
constitute the right, or privilege, or claim, v. Sperry, N. & G., 139 U. S. 266, 11 Sup.
(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.
T
1
Owings v. Norwood's Lessee, 5 v. Wisconsin, 119 L . S. 473, 7 Sup. Ct.
Cranch, 344 Martin v. Hunter's Lessee,
; Rep. 360 ; Lehigh Water Co.
v. Easton,
1 Wheat. 304; Inglee v. Coolidge, 2 121 U. S. 388, 7 Sup. Ct. Rep. 916; New
Wheat. 363; Miller t;. Nicholls, 4 Wheat. Orleans Water Works v. Louisiana Sugar
311; Williams v. Norris, 12 Wheat. 117; Co., 125 U. S. 18, 8 Sup. Ct. Rep. 741 ;
Hickie v. Starke, 1 Pet. 94; Harris v. fJScudder v. Coler, 175 U. S. 32, 20 Sup.
Dennie, 3 Pet. 292 Fisher's Lessee v.;
Ct. Rep. 26 Roby v. Colehour, 146 U. S.
;
Cockerell, 6 Pet. 248 New Orleans ; 153, 13 Sup. Ct. Rep. 47 Brown v. Massa-;
v. De Armas, 9 Pet. 223, 234 Keene r. ; chusetts, 144 U. S. 573, 12 Sup. Ct. Rep.
Clarke, 10 Pt t. 291 Crowell v. Randell.
; 757 Jesler v. Bd. of Harbor Com'rs, 146
;
66; Holmes r. Jennison, 14 Pet. 540; States v. Lynch, 137 U. Sup. S. 280, 11
Scott v. Jones, 6 How. 343 Smith v. ;
Ct. Rep. 114.J It is not sufficient that
Hunter, 7 How. 738; Williams v. Oliver, the presiding judge of the State court
12 How. Ill Calcote v. Stanton, 18 How.
;
certifies that a right claimed under the
243; Maxwell v. Newbold, 18 How. 511; national authority was brought in ques-
Hoyt v. Shelden, 1 Black, 518 Farney ;
tion. Railroad Co. v. Rock, 4 Wall. 177 ;
Co. v. Mass., 6 Wall. 632; Gibson v. U. S. 170, 20 Sup. Ct. Rep. 573.J If the
Chouteau, 8 Wall. 314; Worthy v. Com- record does not show a federal question
missioners, 9 Wall. 611 Messenger v. ;
raised or necessarily involved, the opin-
Mason, 10 Wall. 507 Insurance Co. v. ;
ion of the court will not be examined to
Treasurer, 11 Wall. 204 McManus v. ;
see if one was in fact decided. Otis v.
681; Detroit Ry. Co. v. Guthard, 114 Sup. Ct. Rep. 741; Kreiger v. Shelby R. R.
U. S. 133, 5 Sup. Ct. Rep. 811 Arrow- ; Co., 125 U. S. 39, 8 Sup. Ct. Rep. 752;
smith v. Harmoning, 118 U. S. 194, 6 Gross v. U. S. Mortgage Co., 108 U. S. 477,
Sup. Ct. Rep. 1023; Germania Ins. Co. 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
Ass. i>.New York, 119 U. S. 110, 7 Sup. Ct. Moines, 174 U. S. 168, 19 Sup. Ct. Rep.
Rep. 108. The record should show that 644 Remington Paper Co. v. Watson,
;
the right was claimed in the trial court. 173 U. S. 443, 19 Sup. Ct. Rep. 456;
Brooks v. Missouri, 124 U. S. 394, 8 Sup. Capital Nat'l Bk. v. First Nat'l Bk., 172
Ct. Rep. 443. It is a federal question U. S. 426, 19 Sup. Ct. Rep. 202.]
1
whether a State court has given effect Gordon v. Caldcleugh, 3 Cranch, 268 ;
to the unreversed decision of a United McDonogh v. Millaudon, 3 How. 693 ;
States Circuit Court acting within its Fulton v. McAffee, 16 Pet. 149 Linton v. ;
jurisdiction. Crescent City, &c. Co. v. Stanton, 12 How. 423 ; Burke v. Gaines,
Butcher's Union, &c. Co., 120 U. S. 141, 19 How. 388; Reddall v. Bryan, 24 How.
7 Sup. Ct. Rep. 472. So, whether a 420; Roosevelt v. Meyer, 1 Wall. 512;
prisoner has been twice in jeopardy ; Ryan v. Thomas, 4 Wall. 603; p3ower
Bohanan v. Nebraska, 118 U. S. 231, 6 r. Richards, 151 U. S. 658, 14 Sup. Ct. Rep.
Sup. Ct. Rep. 1049 ; and whether one 452.]
in a country with which we have an ex- Commonwealth Bank v. Griffith, 14
2
tradition treaty can be brought back for Pet. 56;Walker v. Taylor, 5 How. 64;
trial except under the treaty provisions. QMcNulty v. California, 149 U. S. 645, 13
Ker 119
v. Illinois, U. S. 436, 7 Sup. Ct. Sup. Ct. Rep. 959.] We
take no notice
Rep. 225. That a State court has held here of the statutes for the removal of
valid a divorce in a foreign country raises causes from the State to the Federal
no such question. Roth v. Ehman, 107 courts for the purposes of original trial,
U. S. 319, 2 Sup. Ct. Rep. 312. [For as they are not important to any discus-
other examples of cases held to involve sion we shall have occasion to enter upon
no federal question, see Crystal Springs in this work. See Rev. Stat. of U: S.
Land & W. Co. v. Los Angeles, 177 U. S. 1878, title 13, ch. 7 Cooley, Constitutional
;
169, 20 Sup. Ct. Rep. 573; De Lamar's Principles, 122-128. Judge Dillon has
Gold Mining Co. v. Nesbitt, 177 U. S. published a convenient manual on this
523, 20 Sup. Ct. Rep. 715; McCain v. Des 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.
v. White, 176 U. S. 484, 20 Sup. Ct. Rep. 404 Hartford F. Ins. Co. v. Chicago M. &
;
St. P. Ry. Co., 175 U. S. 91, 20 Sup. Ct. Rep. 33; Sioux City Tr. & W. Co. v. Trust
Co. of N. A., 173 U. S. 99, 19 Sup. Ct. Rep. 381 First Nat'l Bank i;. Chehalis Co.,
;
166 U. S. 440, 17 Sup. Ct. Rep. 629; Walker v. New Mexico & S. P. Ry. Co., 165 U.
S. 593, 17 Sup. Ct. Rep. 421 Bamberger & Co. v. Schoolfield, 160 U. S. 149, 16 Sup.
;
Ct. Rep. 225 First Nat'l Bk. v. Ayers, 160 U. S. 660, 16 Sup. Ct. Rep. 412 Bergeman
; ;
v. Backer, 157 U. S. 655, 15 Sup. Ct. Rep. 727 Baltimore Tr. Co. v. Baltimore B. R.
;
Co., 151 U. S. 137, 14 Sup. Ct. Rep. 294; Ex parte Lockwood, 164 U. S. 116, 14 Sup.
Ct. Rep. 1082; Morley v. L. S. & M. S. Ry. Co., 146 U. S. 162, 13 Sup. Ct. Rep. 54;
Hancock v. Louisville & N. Ry. Co., 145 U. S. 409, 12 Sup. Ct. Rep. 969; Kaukauna
W. P. Co. P. Green Bay & M. Canal Co., 142 U. S. 254, 12 Sup. Ct. Rep. 173 Duncan
;
v. McCall, 139 U. S. 449, 11 Sup. Ct. Rep. 573; Pullman Pal. Car Co. U.Pennsylvania,
141 U. S. 18, 11 Sup. Ct. Rep. 876 Cross v. Allen, 141 U. S. 528, 12 Sup. Ct. Rep. 67
; ;
Randolph's Executor v. Quidnick Co., 135 U. S. 457 10 Sup. Ct. Rep. 655; Abraham
;
v. Casey, 179 U. S. 210, 21 Sup Ct. Rep. 88; Mason v. Missouri, 179 U. S. 328, 21
Sup. Ct. Rep. 125; Loeb v. Columbia Tp. Trustees, 179 U. S. 472, 21 Sup. Ct. Rep.
174.
Rules of real property settled by course of State decisions are followed by Fed-
eral courts. Lowndes v. Town of Huntington, 153 U. S. 1, 14 Sup. Ct. Rep. 758;
Halstead v. Buster, 140 U. S. 273, 11 Sup. Ct. Rep. 782.
And so as to chattel mortgages. Etheridge v. Sperry W. & G., 139 U. S. 266, 11
Sup. Ct. Rep. 665. And assignments for benefit of creditors. South Branch L. Co.
v. Ott, 142 U. S. 622, 12 Sup. Ct. Rep. 318.
State decisions upon what is correct practice in criminal cases are followed unless
due process is denied. Graham v. Weeks, 138 U. S. 461, 11 Sup. Ct. Rep. 363.
The latest settled adjudications are usually followed. Wade v. Travis Co., 174
U. S. 499, 19 Sup. Ct. Rep. 715 Backus
;
Fort St. Union Depot Co., 169 U. S. 557, 18
.
Sup. Ct. Rep. 445; Nobles Georgia, 168 U. S. 398, 18 Sup. Ct. Rep. 87; Barber i>.
.
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 &
;
of Hamilton v. Dudley's Lessee, 2 Pet. 492, Lessee v. Wendal, 9 Cranch, 87; Preston
524, it was urged that the exclusive power v. Browder, 1 Wheat. 115; Mutual As-
of State courts to construe legislative acts surance Co. v. Watts, 1 Wheat. 279;
did not extend to the paramount law, so Shipp v. Miller, 2 Wheat. 316 Thatcher ;
cannot admit this distinction. The judi- Fullerton v. Bank of United States, 1 Pet.
cial department of every government is 604; Gardner v. Collins, 2 Pet. 58 Beach ;
the rightful expositor of its laws, and v.Viles, 2 Pet. 675 ; Inglis v. Sailor's Snug
emphatically of its supreme law." Again, Harbor, 3 Pet. 99 ;United States v. Mor-
in Elmendorf v. Tailor, 10 Wheat. 152, rison, 4 Pet. 124; Henderson v. Griffin,
"
159, the same eminent judge says The : 6 Pet. 151 Hinde v. Vattier, 5 Pet. 398;
;
where such department exists, is the ap- Silk> 11 Pet. 1 Bank of United States v.
;
propriate organ for construing the legis- Daniel, 12 Pet. 32 Clarke v. Smith, 13 ;
lative acts of that government. Tims no Pet. 195; Ross v. Duval, 13 Pet. 45; Wil-
court in the universe which proposed to cox v. Jackson, 13 Pet. 498; Harpending
be governed by principle would, we pre- v. Reformed Church, 16 Pet. 455 Martin ;
sume, undertake to say that the courts of v. Waddell, 16 Pet. 307 Amis v. Smith, ;
Great Britain or France, or of any other 16 Pet. 303 Porterfield v. Clark, 2 How.
;
nation, had misunderstood their own stat- 76 Lane v. Vick, 3 How. 464 Foxcroft
; ;
utes, and therefore erect itself into a v. Mallett, 4 How. 353 Barry v. Mercein, ;
tribunal which should correct such misun- 5 How. 103; Rowan v. Runnells, 5 How.
derstanding. We
receive the construction 134; Van Kearney, 11 How.
Rensselaer v.
given by the courts of the nation as the 297 Pease v. Peck, 18 How. 595 Fisher
; ;
true sense of the law, and feel ourselves v. Haldeman, 20 How. 186; Parker v.
words of the statute. On this princi- 532 Chicago v. Robbins, 2 Black, 418
; ;
ple, the construction given by this court Miles v. Caldwell, 2 Wall. 35; Williams
to the Constitution and laws of the United v. Kirkland, 13 Wall. 306; Walker v.
States is received by all as the true con- Harbor Com'rs, 17 Wall. 648; Supervi-
struction and on the same principle the
; sors v. United States, 18 Wall. 71; Fair-
construction given by the courts of the field v. Gallatin, 100 U. S. 47 Wade v. ;
those States is received as true, unless sors, id. 667; Taylor v. Ypsilanti, id. 60;
they come in conflict with the Consti- Equator Co. v. Hall, 106 U. S. 86, 1 Sup.
tution, laws, or treaties of the United Ct. Rep. 198 ; Bendey v. Townsend, 109
States." In Green v. Neal's Lessee, 6 Pet. U. S. 665, 3 Sup. Ct. Rep. 482 Norton v. ;
"
291, 298, it is said by McLean, J. The :
Shelby Co., 118 U. S. 425, 6 Sup. Ct. Rep.
decision of the highest judicial tribunal 1121 ; Stryker v. Goodnow, 123 U. S. 527,
of a State should be considered as final 8 Sup. Ct. Rep. 203 Williams w. Conger, ;
by this court, not because the State tri- 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
Coates v. Muse, Brock. 529; Meade v. Warren, 2 Black, 599; Blossburg, &c.
Beale, Taney, 339; Loring v. Marsh, 2 R. R. Co. v. Tioga R. R. Co., 5 Blatch.
Cliff.311; Parker v. Phetteplace, 2 Cliff. 387 Smith v. Shriver, 3 Wall. Jr. 219.
;
now was whether the Supreme Court v Jordan, 119 U. S. 680, 7 Sup. Ct. Rep.
would follow its own decision, or reverse 358. So, where after a ruling in the
that, in order to put itself in harmony United States Circuit Court the State
with the State decisions. The subject is Supreme Court for the first time decides
considered at length by McLean, J., who against such ruling, its decision will not
en. IL] THE CONSTITUTION OF THE UNITED STATES. 35
v. Commonwealth Ins. Co., 3 Sum. 220. ruff v. Trapnall, 10 How. 190. Treasury
And see Reimsdyke v. Kane, 1 Gall. warrants designed so to circulate are bills
376; Austen v. Miller, 5 McLean, 153; of credit. Braggs v. Tuff ts, 49 Ark. 554,
Gloucester Ins. Co. v.Younger, 2 Curt. 6 S. W. 158. [But if they are to be re-
C. C. 322 ; Bragg v. Meyer, McAll. 408. tired, as soon as presented for payment
Whether a lunatic's contract is void or at the State treasury, and paid, they are
voidable a question of general juris-
is not bills of credit, even though the credi-
prudence. Edwards v. Davenport, 20 tor to whom they are issued may demand
Fed. Rep. 756. And of course cases pre- at the time of receiving them that they
senting questions of conflict with the Con- be issued in denominations of one dollar
stitution of the United States cannot be each to the extent of the debt, the re-
within the doctrine. State Bank v. mainder being issued in denominations of
Knoop, 16 How. 369; Jefferson Branch not less than five dollars, and even though
Bank v. Skelley, 1 Black, 436. The Fed- they may pass from hand to hand and are
eral court must decide for itself whether receivable from any person in payment
there exists a contract within the consti- of taxes. Houston & T. C. R. Co. v.
tutional protection. Louisville & N. R. Texas, 177 U. S. 66, 20 Sup. Ct. Rep. 545,
R. Co. v. Palmes, 109 U. S. 244, 3 Sup. rev. 41 S. W. 157.] The facts that a
Ct. Rep. 193; Louisville Gas Co. v. Citi- State owns the entire capital stock of a
zens' Gas Co., 115 U. S. 683, 6 Sup. Ct. bank, elects the directors, makes its bills
Rep. 265. So in determining the validity receivable for the public dues, and pledges
of municipal ordinances. Yick v. Wo its for their redemption, do not
faith
" bills of
Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. make the bills of such bank
1064. And where a contract had been credit" in the constitutional sense. Dar-
made under a settled construction of the rington v. State Bank of Alabama, 13
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
tation in confining these expressions to case as it may come up. Conner v. Elliott,
those privileges and immunities which 18How. 591 Ward r. Maryland, 12 Wall.
;
belong of right to the citizens of all free The question in this last case was whether
governments, and which have at all times the State of Virginia could prohibit citi-
been enjoyed by the citizens of the sev- zens of other States from planting oysters
eral States which compose this Union, in Ware Hiver, a stream in that State
from the time of their becoming free., in- where the tide ebbs and flows, and the
'dependent, and sovereign. What those right be granted by the State to its own
-
fundamental principles are, it would per- citizens exclusively. \Vaite, Ch. J., in
haps be more tedious than difficult to answering the question in the affirmative,
"
'enumerate. They may, however, be all said The right thus granted is not a
:
the whole. The right of a citizen of one dispose of it as they saw fit. They owned
State to pass through or to reside in any it, not by virtue of citizenship merely,
other State, for purposes of trade, agri- but of citizenship and domicile united ;
culture, professional pursuits, or other- that is to say, by virtue of a citizenship
wise; to claim the benefit of the writ of confined to that particular locality." See
habeas corpus; to institute and maintain also Paul v. Hazelton, 37 N. J. 100;
actions of every kind in the courts of the [Com. v. Hilton, 174 Mass. 29, 54 N. E.
State to take, hold, and dispose of prop-
; 3b'2, 45 L. R. A. 475.] For other discus-
erty, either real or personal and an ex-
;
sions upon this subject, see Murray v.
emption from higher taxes or impositions McCarty, 2 Munf. 393 Lemmon v. Peo- ;
than are paid by the citizens of the other ple, 26 Barb. 270, and 20 N. Y. 562;
State, may be mentioned as some of Campbell v. Morris, 3 Har. & M'H. 554 ;
the particular privileges and immunities Amy Smith, 1 Lit. 326; Crandall v.
v.
'of citizens, which are clearly embraced State, 10 Conn. 340; Butler v. Farns-
by the general description of privileges worth, 4 Wash. C. C. 101 Common- ;
deemed to be fundamental ;
to which may wealth v. Towles, 5 Leigh, 743 Haney ;
be added the elective franchise as regu- v. Marshall, 9 Md. 194 Slaughter v. Com-;
lated and established by the laws or con- monwealth, 13 Gratt. 767 State v. Med- ;
eration) 'the better to secure and per- 63 N. H. 135 State v. Lancaster, id. 267
; ;
1
up, and that full faith and credit shall be given in each State
sioners of Warren Co., 36 Ind. 267; restricted to male inhabitants of State.
Jeffersonville, &c. R. R. Co. v. Hendricks, Welsh State, 126 Ind. 71, 25 N. E. 883,
v.
L. R. A. 503; Cofrode v. Gartner, 79 239, 19 Sup. Ct. Rep. 165; Sully v. Amer-
Mich. 332, 44 N. W. 623, 7 L. R. A. 511. ican Nat'l Bk., 178 U. S. 289, 20 Sup. Ct.
Insurance laws cannot place greater re- Rep. 935. A
conveyance, which the
strictions upon citizens of other States courts of the State wherein it was made,
than upon those of home State. State hold void as against the citizens of that
v.Board of Ins. Com'rs, 37 Fla. 564, 20 State, the Federal courts will hold void
So. 772, 33 L. R. A. 288. Agents of non- as against the citizens of other States.
resident insurers may be required to se- Smith M. P. Co. v. McGroarty, 136 U. S.
cure a certificate of authority from the 237, 10 Sup. Ct. Rep. 1017. The mere
insurance commissioner before insuring fact that a partnership was organized
property within the State. People v. under the laws of another State is not
The return by one State of fugitives from ter of Voorhees, 32 N. J. 141 Morton v.
;
justice which have fled to it from another Skinner, 48 Ind. 123; Matter of Hughes,
State only made a matter of rightful
is Pliill. (N. C.) 57; Kentucky v. Dennison,
demand by the provisions of the Federal 24 How. 66; Ex parte Reggel, 114 U. S.
Constitution. In the absence of such 642, 5 Sup. Ct. Rep. 748; In re Hooper,
provisions, it might be provided for by 52 Wis. 699, 58 N. W. 741. The offence
State law but the Constitution makes
;
must have been actually committed
that obligatory which otherwise would within the State making the demand,
rest in the imperfect and uncertain re- and the accused must have fled there-
quirements of interstate comity. The from. Ex parte Smith, 3 McLean, 121 ;
subject has received much attention from Jones v. Leonard, 50 Iowa, 106, 32 Am.
the courts when having occasion to con- Rep. 116; Hartman v. Aveline, 63 Ind.
sider the nature and extent of the consti- 344; Wilcox v. Nolze, 34 Ohio St. 520.
tutional obligation. It lias also been the To be a fugitive it is not necessary that
subject of many executive papers and ;
one should have left the State after in-
several controversies between the execu- dictment found, or to avoid prosecution ;
tives of New York and those of more but simply that, having committed a crime
southern States, are referred to in the re- within it, he is when sought found in
cent Life of William H. Seward, by his another State. Roberts v. Reilly, 116
son. QUpon extradition between States, U. S. 80, 6 Sup. Ct. Rep. 291 s'tate v.
;
(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 ifthey show no sufficient legal cause, to
question whether after such abduction in order the prisoner's discharge. Ex parte
another country a State court will try a Smith, 3 McLean, 121; Matter of Clark,
person, is not a federal question. Ker v. 9 Wend. 212; Matter of Manchester,
Illinois, 119 U. S. 436, 7 Sup. Ct. Rep. 5 Cal. 237 Matter of Hey ward, 1 Sandf
; .
225. The charge must be made before a 701 Ex parte White, 49 Cal. 434 State
;
;
magistrate of the State where the offence v Hufford, 28 Iowa, 391 People v. Brady,
;
be made by the executive of the State, by "23; Jones v. Leonard, 50 Iowa, 106, 32
which is meant the governor: Common- Am. Rep. 116; Ex parte Powell, 20 Fla.
wealth v. Hall, 9 Gray, 262 and it is the
; 806; State v. Richardson, 34 Minn. 115,
duty of the executive of the State to 24 N. W. 354 ; In re Mohr, 73 Ala. 503.
which the offender has fled to comply : As to the showing required, see State v.
Johnston v. Riley, 13 Ga. 97 Ex parte ; Swope, 72 Mo. 399; Ex parte Sheldon, 34
Swearingen, 13 S. C. 74 People v. Pink-
;
Ohio St. 319 Ham v. State, 4 Tex. App.
;
(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
tucky v. Dennison, 24 How. 66. The occupied by the United States was before
executive may revoke his warrant, if sat- the court and the act sustained as appli-
isfied it ought not to have issued. Work cable to Cuba before that island was
v. Corrington, 34 Ohio St. 64, 32 Am. turned over to the home government
Rep. 345. QWhen once within the cus- after the Spanish war.] In the absence
tody of the demanding State, he may be of a treaty there is no obligation to de-
tried for any crime there charged against liver a fugitive: U. S. v. llauscher, 119
him. Lascelles v. Georgia, 148 U. S. 537, U. S. 407, 7 Sup. Ct. Rep. 234 ; but by
13 Sup. Ct. Rep. 687 State v. McNaspy,
;
virtue of such a treaty an American
58 Kan. 691, 817, 38 L. R. A. 766, 50 Pac. criminal resident in a foreign country
895; Re Little, Mich. 89 N. W. 38,
, gets no right of asylum there so that he
57 L. R. A. 295. (Feb. 1902.) And may may not be removed therefrom by a
be sued in civil suit. Reid v. Ham, 54 State except under the provisions of the
Minn. 305, 56 N. W. 35, 21 L. R. A. treaty. Ker v. Illinois, 119 U. S. 436, 7
232, 40 Am. St. 333. Actual presence Sup. Ct. Rep. 225. Foreign governments
in demanding State is necessary to con- must make the application, not individ-
stitute flight. Constructive presence, as uals. In re Ferrelle, 28 Fed. Rep. 878.
by firing bullet into it from another State, That where a person is extradicted from
and international extradition, see note to Rep. 653. QBut when he is surrendered
41 L. ed. U. S. 1046. See also Whitten as a matter of comity and not under
v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. treaty stipulations, and the indictment is
Rep 297, and note to 40 L. ed. U. S. 406. set aside as being defective, he is liable
In Neeley v. Henkle, 180 U. S. 109, 126, to arrest upon a subsequent complaint
21 Sup. Ct. Rep. 308, the question of the for same offence. Re Foss, 102 Cal. 347,
validity of an act providing for extradi- 36 Pac. 669, 25 L. R. A. 593, and note.]
the subject of a good deal of discussion in record, it will be treated as void in any
the courts. [[See notes to 3 L. ed. U. S. other State, notwithstanding this consti-
411, 12 L. R. A. 574, 7 L. R. A. 578, 4 tutional provision. Kibbe v. Kibbe, Kirby,
L. R. A. 131, 1 L. R. A. 79. See also 119; Aldrich v. Kinney, 4 Conn. 380;
Reynolds v. Stockton, 140 U. S. 254, 11 Middlebrooks v. Ins. Co., 14 Conn. 301 ;
142 Mass. 47, 6 N. E. 782. See note on Bripgs, 9 Mass. 46'2 Hall v. Williams,
;
this case, 4 Har. L. Rev. 93.] It is well 6 Pick. 232; Woodworth v. Tremere,
settled that if the record of a judgment 6 Pick. 354; Gleason v. Dodd, 4 Met.
shows that it was rendered without ser- 333; Commonwealth v. Blood, 97 Mass.
vice of process or appearance of the 538; Edson v. Edson, 108 Mass. 590; 11
defendant, or if that fact can be shown Am. Rep. 393; Kilburn r. Woodworth,
without contradicting the recitals of the 6 Johns. 37 ; Robinson v. Ward's Execu-
42 CONSTITUTIONAL LIMITATIONS. [CH. II.
The last provisions that we shall here notice are that the
McLaurine v. Monroe, 30 Mo. 462 Bime- ; v. Locke, 42 Ark. 17; Caughran v. Gil-
ler v. Dawson, 5 111. 536 Warren v. ; man, 72 Iowa, 570, 34 N. W. 423. Other
McCarthy, 25 III. 95; Curtiss v. Gibbs, cases admit such evidence. Starbuck v.
1 Pa. 406 Rogers v. Coleman, Hard. 416
; ; Murray, 5 Wend. 148, 21 Am. Dec.
Armstrong r. Harshaw, 1 Dev. 187 Nor- ; 172; Holbrook v. Murray, 5 Wend 161;
wood v. Cobb, 24 Texas, 551 Rape v. ; Shumway v. Stillman, 6 Wend. 447 Bor- ;
groves, 48 Ga. 50; 15 Am. Rep. 660; Knight, 1 Mass. 401, 2 Am. Dec. 36;
People v. Dawell, 25 Mich. 247, 12 Am. Hall v. Williams, 6 Pick. 232; Aldrich
Rep. 260; Hood v. State, 56 Ind. 263; v. Kinney, 4 Conn. 380; Bradshaw v.
Lincoln v. Tower, 2 McLean, 473 West- ; Heath, 13 Wend. 407 Hoffman v. Hoff-
;
Imp. Co., 38 W. Va. 390, 18 S. E. 456, 23 ple Baker, 76 N. Y. 78, 32 Am. Rep.
v.
64 L. R. A. 502.] But whether it would not) re-examinable upon the merits, nor
be competent to show, in opposition to impeachable for fraud in obtaining them,
the recitals of the record, that a judgment if rendered by a court having jurisdiction
of another State was rendered without of the cause and of the parties." Per
jurisdiction having been obtained of the Mr. Justice Gray in Hanley v. Donoghue,
person of the defendant, the authorities 116 U. S. 1,6 Sup Ct. Rep. 242; Buck-
are not agreed. Many cases hold not. ner v. Finley, 2 Pet. 592; M'Elmoyle v.
Field v. Gibbs, 1 Pet. C. C. 155 Green ; Cohen, 13 Pet. 312; D'Arcy v. Ketchum,
CH. II.] THE CONSTITUTION OF THE UNITED STATES. 43
cases, post, p. 678 el seq. Mr. Freeman is not within the rule if the penalty is
discusses this general subject in his treat- mere liquidated damages for a private
ise on Judgments, c. 26. The same de- wrong, still less if it is damages ascer-
been made to it in the State where ren- 146 U. S. 657, 13 Sup. Ct. Rep. 224, rev.
dered Hampton v. McConnel, 3 Wheat.
: 70 Md. 191, 16 Atl. 651, 2 L. R. A. 779,
234; Mills v. Duryea, 7 Cranch, 481; 14 Am. St. 344. See also upon "full
Steele v. Smith, 7 W. & S. 447; Bank of faith and credit," note to this case in
the State v. Dalton, 9 How. 522 Scott v. ;
36 L. ed. U. S. 1123.
Coleman, 5 Litt. 349, 16 Am. Dec. 71 ;
Where a discontinuance of the suit is
but no others Green v. Van Buskirk,
: entered by consent of the parties, the en-
7 Wall. 139; Christmas v. Russell, 6 try reciting that it is upon a settlement
Wall. 290; Cheever v. Wilson, 9 Wall. of the suit, it may be shown in an action
108 ;Wernwag v. Pawling, 5 Gill & J. in another State upon the original cause
600, 25 Am. Dec. 317; Fletcher v. that the settlement was by an executory
Ferrel, 9 Dana, 372, 35 Am. Dec. 143; agreement which has not been fulfilled.
People v. Dawell, 25 Mich. 247, 12 Am. Jacobs v. Marks, 182 U. S. 583, 21 Sup.
Hep. 260; Dodge v. Coffin, 15 Kan. 277 ;
Ct. Rep. 865, aff. 183 111. 533, 56 N. E.
[^Hancock National Bank v. Farnum, 154. Execution cannot issue in one
176 U. S. 640, 20 Sup. Ct. Rep. 506, State upon a judgment rendered in an-
rev. 20 R. I. 466, 40 Atl. 341 Thomp- ;
other. The foreign judgment must first
son v. Taylor, 65 N. J. L. 107, 46 Atl. be reduced to a domestic judgment.
667, 54 L. R. A. 585. Courts of one Bennett v. Bennett, N. J. App. 49 ,
State will not enforce the judgments of Atl. 501 (June 25, 1901).
a sister State, so a bill will not lie to en- The situs of a debt is with the debtor,
force specific performance of a decree for so far at least as attachment and gar-
alimony rendered in a court of a sister nishment are concerned, and a judgment
State. Bullock v. Bullock, 61 N. J. Eq. against a garnishee is not invalidated by
444, 27 Atl. 435, 52 N. J. Eq. 561, 30 Atl. the fact that his creditor, the principal
676, 46 Am. St. 528.] A foreign decree defendant, resides outside the State and
not appropriate to any part of the issue has been served only constructively by
raised by the record is not conclusive col- If otherwise sufficient, the
publication.
laterally. Reynolds v. Stockton, 43 N. J. judgment must be given "full faith and
"
Eq. 211. credit in every State. Chicago, R. I. &
This provision of the Constitution of P. R. Co. v.Sturm, 174 U. S. 710, 19 Sup.
the United States does not require that Ct. Rep. 797, followed in King v. Cross,
disabilities imposed upon a person con- 175 U. S. 396, 20 Sup. Ct. Rep. 139,
victed of crime in one State should follow aff. 19 R. I. 220, 33 Atl. 147. The judg-
him and be enforced in other States. Sims ment of the court of one State that a
v. Sims, 75 N. Y. 466,
approving Common- certain will works an equitable conver-
wealth v. Green, 17 Mass. 515, and disap- sion into personalty of realty situated in
proving Chase v. Blodgett, 10 N. H. 22, another State is not binding upon the
and State i>. Chandler, 3 Hawks, 393. courts of that other State. Clarke v.
The courts of the United States cannot Clarke, 178 U. S. 186, 20 Sup. Ct. Rep.
enforce the penal laws of a State, and 873, aff. 70 Conn. 195, 483, 39 Atl. 155,
where an action was brought in such 40 Atl. 111. Upon effect of probate
court by a State upon a judgment recov- of will in another State, see Martin v.
44 CONSTITUTIONAL LIMITATIONS. [CH. II.
1
of government, and that no State shall grant any title of
outside the State. Overby v. Gordon, 177 254, 11 Sup. Ct. Rep. 773. And the
U. S. 214, 20 Sup. Ct. Rep. 603. A
guar- jurisdiction of the court is always open to
dian appointed in one State cannot exer- inquiry. Guaranty Tr. & S. Dep. Co. v.
cise any authority in another except so Green Cove Springs & M. R. Co., 139
far as permitted by the laws of that U. S. 137. 11 Sup. Ct. Rep. 512; Streit-
other. He cannot even sue in a Federal wolf v. Streitwolf, 181 U. S. 179, 21 Sup.
court held in that other. Morgan v. Ct. Rep. 553, aff. 58 N. J. Eq. 563, 41 All.
Potter, 157 U. S. 195, 15 Sup. Ct. Rep. 876, 43 Atl. 683, 78 Am. St. 630; Bell
690. A voluntary assignment of his v. Bell, 181 U. S. 175, 21 Sup. Ct. Rep.
1 Const, of U. S. art. 4.
4,
CH. II.]
THE CONSTITUTION OF THE UNITED STATES. 45
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
; ;
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 8
Sankey, 148 111. 536, 36 N. E.
v. Sturges Crowninshield, 4 Wheat.
t>.
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
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,
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 City Council of Montgom-
v.
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
worth, 5 Col. 213. See Butler v. State, the court : " The only question which
97 Ind. 378; People v. Williams, 35 Hun, this case presents is whether the circuit
516. AState may give a court of equity courts can exercise a common-law juris-
jurisdiction of a suit to establish an diction in criminal cases. . . The .
men. It does not include statutory juries power is to be exercised by courts organ-
before justices of the peace, and facts ex- ized for the purpose, and brought into ex-
amined before such statutory juries may istence by an effort of the legislative
be re-examined otherwise than according power of the Union. Of all the courts
to the course of the common law. Capi- which the United States may, under their
tal Traction Co. v. Hot, 174 U. S. 1, 19 general powers, constitute, one only, the
Sup. Ct. Rep. 580. The fifth amendment Supreme Court, possesses jurisdiction de-
does not apply to trials in tlie consular rived immediately from the Constitution,
courts of the U. S. held in non-Christian and of which the legislative power cannot
countries. Ross v. Mclntyre, 140 U. S. deprive it. All other courts created by
453, 11 Sup. Ct. Rep. 897.] the general government possess no juris-
1
Townsend v. Todd, 91 U. S. 452 ;
diction but what is given them by the
Elmwood v. Marcy, 92 U. S. 289 Rail-; power that created them, and can be
road Co. v. Georgia, 98 U. S. 359. vested with none but what the power
2 Demurrer to an indictment for a libel
ceded to the general government will
upon the President and Congress. By 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
;
jurisdiction in cases similar to the pres- Blatch. 435 United States v. Barney, 5
;
lative act, if it does not result to those Co., 95 Iowa, 112, 63 N. W.589, 28 L. R!
courts as a consequence of their crea- A. 556, that in the absence of congres-
tion." United States v. Hudson, 7 sional action, common carriers engaged
Cranch, 32. See United States v. Cool- in interstate commerce were not limited
"
idge, 1 Wheat. 415. It is clear there to reasonable charges. See also Fore-
can be no common law of the United paugh v. Delaware, L. & W. R. Co., 128
States. The Federal government is com- Pa. 217, 18 Atl. 503, 5 L. R. A. 508, and
posed of twenty-four sovereign and inde- note, 15 Am. St. 672. These cases how-
pendent States, each of which may have ever are overruled in W. U. Tel. Co. v.
its local usages, customs, and common Call Pub. Co., 181 U. S. 92, 21 Sup.
law. There is no principle which per- Ct. Rep. 561, aff. 58 Neb. 192, 78 N. W.
rades the Union, and has the authority 619, holding that in the absence of con-
of law, that is not embodied in the Con- gressional action, interstate telegraph
stitution or laws of the Union. The companies are subject to the common-
common law could be made a part of our law rule of reasonable charges, and no
federal system only by legislative adop- unreasonable discrimination between pa-
tion." Per McLean, J., Wheaton v. trons.] As to the adoption of the com-
Peters, 8 Pet. 691. See also Kendall mon law by the States, see Van Ness v.
United States, 12 Pet. 524 Lorman v.
t>. ; Pacard, 2 Pet. 137, 144, per Story, J. and ;
Clarke, 2 McLean, 568 ; United States post, p. 51, and cases cited in notes.
CH. III.]
FORMATION AND AMENDMENT OF CONSTITUTIONS. 49
CHAPTER III.
1
Livingston v. Van Ingen, 9 Johns. Dargan, 45 Ala. 310; Neal v. Delaware,
607 ;
State Cape Girarcleau, &c. R. R.
v. 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, gave birth to many of the maxims of the common law ;
1
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 ;
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. Such also
1
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
such visions seeming to have been re- it as their birthright; but they brought
served to complete the misfortunes and with them and adopted only that portion
ignominy of our age), but it was to assert which was applicable to their condition."
the native and original liberties of our Story, J., in Van Ness v. Pacard, 2 Pet.
"
nation by the confession of the king then 137. The settlers of colonies in Amer-
being, that neither he nor his successors ica did not carry with them the laws of
should any way encroach upon them." the land as being bound by them wher-
Sidney on Government, c. 3, sec. 27. ever they should settle. They left the
2 1 Charles I. c. 1. realm to avoid the inconveniences and
3 1 William and
Mary, sess. 2, c. 2. hardships they were under, where some
*
32 Henry VIII. c. 7, and 34 & 35 of these laws were in force particularly ;
tion." Bacon's Works, Vol. II. p. 231, right to be free from those they thought
Phil. ed. 1852. hurtful, and a right to make such othen
52 CONSTITUTIONAL LIMITATIONS. [CH. III.
as they should think necessary, not in- Nev. 10; People v. Green, 1 Utah, 11;
fringing the general rights of English- Thomas v. Railroad Co., 1 Utah, 232;
men ;
and such new laws they were to Reno Smelting Works v. Stevenson, 21
form as agreeable as might be to the laws Pac. Rep. 317 (Nev.). The courts of one
of England." Franklin, Works by Sparks, State will presume the common law of
Vol. IV. p. 271. See also Chisholm v. a sister State to be the same as their
Georgia, 2 Dall. 419; Patterson v. Winn, own, in the absence of evidence to the
5 Pet, 233; Wheaton v. Peters, 8 Pet. 591 ; contrary. Dunn v. Adams, 1 Ala. 527,
Pollard v. Hagan, 3 How. 212 Common- ;
s. c. 35 Am. Dec. 42 Abell v Douglass,
:
wealth v. Knowhon, 2 Mass. 530; Com- 181; Schurman v. Marley, 29 Ind. 458;
monwealth v. Hunt, 4 Met. Ill ; Pearce Buckles v. Ellers, 72 Ind. 220; Tinkler
v. Atwood, 13 Mass. 324 Sackett v. ;
v. Cox, 68 111. 119; Flagg v. Baldwin, 38
Sackett, 8 Pick. 309; Marks v. Morris, N. J. Eq. 219; Eureka Springs Ry. Co. v.
4 Hen. & M
463 Mayo t;. Wilson, 1 N. H.
; Timmons, 11 S. W. Rep.690 (Ark.). So of
53; Houghton v. Page, 2 N. H. 42; State the law of a foreign country. Carpenter
v. Rollins, 8 N. H. 550 State v. Buchanan,
; v. Grand Trunk Ry. Co., 72 Me. 388. So,
5 H. & J. 356; Sibley v. Williams, 3 G. & that statutory modifications of the com-
J. 62 State v. Cummings, 33 Conn. 260;
; mon law are the same. Shattuck v.
Martin v. Bigelow, 2 Aiken, 187; Linds- Chandler, 20 Pac. Rep. 225 (Kan.) Bu- ;
State, 5 Yerg. 356; Crouch v. Hall, 15 III. 2 McCord, 31. See Swift v. Tousey, 5
263; Brown v. Pratt, 3 Jones (N. C.) Eq. Ind. 196; Baker v. Mattocks, Quincy, 72;
202 Stout v. Keyes, 2 Doug. (Mich.) 184;
;
Fechheimer Washington, 77 Ind. 366
i;. ;
v. State, 12 Cal. 149; Norris v. Harris, 15 Strobel, 89 111. 370 Cathcart v. Robinson,
;
more v. Harden, 3 Utah, 121, 1 Pac. 465. turing Co., 5 Ohio, 410, it was held that
The legislation, of course, must not be in the provision of the ordinance that the
conflict with the law of Congress confer- navigable waters of the Territory and
ring the power to legislate, but a variance the carrying-places between should be
from it may be supposed approved by common highways, and forever free, was
that body, if suffered to remain without permanent in its obligation, and could not
disapproval for a series of years after be altered without the consent both of the
being duly reported to it. Clinton v. people of the State and of the United
Englebrect, 13 Wall. 434, 446. See Wil- States, given through their representa-
liams v. Bank of Michigan, 7 Wend. 539 ;
tives. "It is an article of compact; and
Swan v. Williams, 2 Mich. 427 Stout v. ; until we assumethe principle that the
Hyatt, 13 Kan. 232 Himman v. Warren,
; sovereign power of a State is not bound
6 Oreg. 408. As to the complete control by compact, this clause must be consid-
of Congress over the Territories, see ered obligatory." Justice McLean and
United States ;.
Reynolds, 98 U. S. 145 } Judge Leavitt, in Spooner v. McConnell,
National Bank v. Yankton, 101 U. S. 129. 1 McLean, 337, examine this subject at
It may exclude polygamists from the considerable length, and both arrive at
right to vote. FJIt may declare void the the same conclusion with the Ohio court.
charter of a church granted by the legis- The like opinion was subsequently ex-
lature of the Territory. Church of Jesus pressed in Palmer v. Commissioners of
Christ of Latter Day Saints v. United Cuyahoga Co., 3 McLean, 226, and in
States, 136 U. S. 1, 10 Sup. Ct. Rep. 792;] Jolly v. Terre Haute Drawbridge Co., 6
Murphy v. Ramsey, 114 U. S. 15, 5 Sup. McLean, 237. See also United States v.
Ct. Rep. 747. In Treadway v. Schnauber, New Bedford Bridge, 1 Wood. & M. 401 ;
1 Dak. 236, it was decided that without Strader v. Graham, 10 How. 82 ; Doe v.
express authority a territorial legislature Douglass, 8 Blackf. 12 ;
Connecticut Mu-
could not vote aid to a railroad company. tual Life Ins. Co. v. Cross, 18 Wis. 109 ;
2 A
few of the States, to get rid of Milwaukee Gaslight Co. v. Schooner
confusion in the law, deemed it desirable 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
400; Keokuk v. Packet Co., 45 Iowa, 196. Much of Mexican law, and especially as
Compare Woodburn v. Kilbourn Manuf. regards lands and land titles, is retained
Co., 1 Abb. U. S. 158 8. c. 1 Biss. 546.
;
in the systems of Texas and California.
But inEscanaba Co. v. Chicago, 107 U. S. In Michigan, when the acts of Parlia-
678, 2 Sup. Ct. Rep. 185, it was decided ment were repealed, it was also deemed
that limitations on legislative power im- important to repeal all laws derived from
posed by the ordinance ceased to have France, through the connection with the
effect within a State upon its admission Canadian provinces, includingtheCWume
to the Union, except as the State had de Paris, or ancient French common law.
voluntarily adopted them. See Sands v. In the mining States and Territories a
Manistee River Imp. Co., 123 U. S. 288, 8 peculiar species of common law, relating
Sup. Ct. Rep. 113; Higgins v. Farmers' tomining rights and titles, has sprung up,
Ins. Co., 60 Iowa, 50, 14 N. W. 118, and having its origin among the miners, but
also the early cases of La Plaisance Bay recognized and enforced by the courts.
Harbor Co. v. Monroe, Walk. Ch. 155, Regarding the canon and ecclesiastical
and Depew v. Trustees, 5 Ind. 8 and ; law, and their force in this country, see
with reference to the enabling acts of Crump c. Morgan, 3 Ired. Eq. 91 ; Le Bar-
Oregon, Louisiana, and California, in ron v. Le Barron, 35 Vt. 365. That con-
Willamette Iron Bridge Co. v. Hatch, 125 stitutions are supposed to be framed in
U. S. 1, 8 Sup. Ct. Rep. 811 Hamilton v.
;
reference to existing institutions, see Pope
Vicksburg, &c. R. R. Co., 119 U. S. 280, v. Phifer, 3 Heisk. 686. A
change in a
7 Sup. Ct. Rep. 206; Cardwell v. Ameri- constitution cannot retroact upon legis-
can Bridge Co., 113 U. S. 205, 5 Sup. Ct. lation so as to enlarge its scope. Dewar
Rep. 423; People Potrero,
v. &c. R. R. v. People, 40 Mich. 401. See Dullam v.
Co., 67 Cal. 166, 7 Pac. 445. And the Willson, 53 Mich. 392, 19 N. W. 112.
1 It is
provision that the rivers shall be forever worthy of note that the first
free refers not to phylical obstructions, well-authenticated case in which a legis-
but to the imposition of duties for the lative act was held void for incompati-
use of the navigation, and any discrimi- bility with the constitution of the State,
nation against citizens of other States. was decided under one of these charters.
Escanaba Co. v. Chicago, supra ; Huse v. :
It was that of Trevett v. Weeden, decided
Glover, 119 U. S. 543, and cases last cited. in Rhode Island in 1786. See Arnold's
But a State may charge tolls for the use History of Rhode Island, Vol. II. c. 24.
of improvements it has made in its navi- Mr. Brinton Coxe, in his book on Judicial
gable rivers. Huse v. Glover; Sands v. Power and Constitutional Legislation,
Manistee River Imp. Co., supra ; Palmer makes much use of this case, and refers
v. Com'rs, 3 McLean, 226; Spooner v. to others decided near the same time.
McConnell, 1 McLean, 337. See also, Mr. Gouveneur Morris, in an address to
post, 863, 864. the Pennsylvania Assembly in 1785,
In some of the States formed out of the speaks of a law passed in New Jersey
territory acquired by the United States having been declared unconstitutional
from foreign powers, traces will be found and void, and is supposed to have referred
of the laws existing before the change of to the unreported case of Holmes v.
56 CONSTITUTIONAL LIMITATIONS. [CH. III.
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 made on behalf
This was the claim Attorneys-General, Vol. II. p. 726.
2
of Michigan being insisted that the
;
it 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.
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
1
"The 2 Some reference is made to the rea-
people, for political purposes,
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.
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
must be continued until Congress shall be satis-
territorial status
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
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 Wells
j
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
1
itself.
the people. In Collier v. Frierson, 24 nor are the courts debarred from as-
Ala. 100, it appeared that the legislature certaining the truth by the fact that a
had proposed eight different amendments second general assembly passed the
to be submitted to the people at the same amendment as enrolled. But if the
time; the people had approved them, proposition is recorded in the Senate
and all the requisite proceedings to journal and amended in the House and
make them a part of the constitution had the amendment is then recorded in the
been had, except that in the subsequent Senate, it is not a valid objection that
legislature the resolution for their ratifi- the whole proposition is not recorded in
cation had, by mistake, omitted to recite one place in the Senate journal. In re
one of them. On the question whether Senate File, 25 Neb. 864, 41 N. W. Rep.
this one had been adopted, we quote from 981. It is enough if the journal entry is
"
the opinion of the court The constitu- :
by reference to the title. Thomason v.
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
mine the result of the popular vote upon it has delegated powers only, and must
the proposed amendment, the proceedings keep within them. Woods's Appeal, 75
of such commission may be reviewed by Penn. St. 59. Compare Loomis v. Jack-
certiorari, notwithstanding the Governor's son, 6 W. Va. 613, 708. The Supreme
proclamation that the amendment has Court of Missouri has expressed the
been duly adopted. State v. Wurts, 63 opinion that it was competent. for a con-
N. J. L. 289, 43 All. 744, 45 L. R. A. 251. vention to put a new constitution in
In voting on a constitutional amendment force without submitting it to the people.
voters exercise a legislative function and State v. Neal, 42 Mo. 119. But this was
courts cannot enjoin the Secretary of obiter. But if, after being accepted by
State from publishing notice of the elec- the people, the convention modifies it and
tion even though the amendment, if promulgates it as modified, and the con-
adopted, may be invalid. People v. stitution as promulgated is recognized as
Mills, Col. 70 Pac. 322 (June 30,
,
valid by the executive and legislative
1902 ).~] branches of the government, the modifi-
1
See, upon this subject, Jameson on cations must be deemed valid. Miller v.
the Constitutional Convention, 41 5-418, Johnson, 92 Ky. 589, 18 S. W. 522, 15 L.
and 479-520. This work is so complete R. A. 524.] Where proposed amendments
and satisfactory in its treatment of the are required to be submitted to the people,
general subject as to leave little to be and approved by a majority vote, it is a
said by one who shall afterwards attempt mooted question whether a majority of
to cover the same ground. Where a those voting thereon is sufficient, when it
convention to frame amendments to the appears that they do not constitute a
constitution is sitting under a legislative majority of all who voted at the same
act from which all its authority is de- election. See State v. Swift, 69 Ind. 505;
rived, the submission of its labors to a and cases cited, post, 892-894. [That pub-
62 CONSTITUTIONAL LIMITATIONS. [CH. III.
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 Skelly, 1 Black,
v. 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.
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
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
any and all existing institutions which White, 7 Wall. 700. And see Gunn v.
vention, or to submit to the people the a constitution is to have effect from the
question of calling one while the major
;
time of its adoption by the people, and
part allow the legislature to mature spe- not from the time of the admission of the
cific amendments to be submitted to the State into the Union by Congress. Scott
people separately, and these become a v.Young Men's Society's Lessee, 1 Doug.
part of the constitution if adopted by the (Mich.) 119; Campbell u. Fields, 35 Texas,
requisite vote. 751. The Texas reconstruction consti-
When the late rebellion had been put tution became operative before the State
down by the military forces of the United was admitted to representation in Con-
States, and the State governments which gress. Peak v. Swindle, 68 Texas, 242,
constituted a part of the disloyal system 4 S. W. 478. An amendment to the
had been displaced, serious questions Minnesota original constitution adopted
were raised as to the proper steps to be before formal admission of the State is
taken order to restore the States to
in valid. Any irregularity is healed by the
their harmonious relations to the Union. admission, and the subsequent recogni-
These questions, and the controversy tion of the validity of the amendment
over them, constituted an important part by the State. Secombe v. Kittelson, 29
of the history of our country during the M1nn. 555, 12 N. W. 519.
64 CONSTITUTIONAL LIMITATIONS. [Gil. III.
ally be clothed with a qualified veto power, and who may refuse
to execute laws deemed unconstitutional ; and, second, the
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 whenthere 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
(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.
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
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) justice shall be open to every person and that
fJTlie provision that courts of
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.
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
;
1
Hamilton v. St. Louis County Court, ancestors to summon the local community
15 Mo. 13, per Bates, arguendo. And see to redress local evils, instead of relying
Matter of Oliver Lee & Co.'s Bank, 21 upon king or legislature at a distance to
N. Y. 9; Lee v. State, 26 Ark. 265-6. do so, if a recognition of all these were
" Written constitutions be stricken from the body of our con-
sanctify and con- to
firm great principles, but the latter are stitutional law, a lifeless skeleton might
prior in existence to the former." 2 remain, but the living spirit; that which
Webster's Works, 392. See also 1 Bl. gives it force and attraction, which makes
Com. 124 2 Story, Life and Letters, 278 ;
;
it valuable and draws to it the affections
" If this
33. charter of State government it from the numberless constitutions, so
which we call a constitution were all called, which in Europe have been set up
there was of constitutional command if ;
and thrown down within the last hundred
the usages, the customs, the maxims that years, many of which, in their expres-
have sprung from the habits of life, sions, fair and to possess
seemed equally
modes of thought, methods of trying equal promise with ours, and have only
facts by the neighborhood, and mutual been wanting in the support and vitality
responsibility in neighborhood interests ;
which these alone can give, this living
the precepts that have come to us from and breathing spirit which supplies the
the revolutions which overturned tyran- interpretation of the words of the written
nies the sentiments of manly independ-
; charter would be utterly lost and gone."
ence and self-control which impelled oar People v. Hurlbut, 24 Mich. 44, 107.
70 CONSTITUTIONAL LIMITATIONS. [CH. IV.
CHAPTER IV.
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. Aduty 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
of 1875, the judges were required to give Re Senate Bill, No. 27, 28 Col. 359, 65
"
their opinions upon important questions Pac. 50.]
of constitutional law, and upon solemn In Vermont, by statute the governor
"
occasions and the Supreme Court held
; may require an opinion on questions con-
that while the governor determined for nected with the discharge of his duties;
himself, whether the occasion was such and in Kentucky an opinion has been
as to authorize him to call on the judges given without requirement of law on the
for their opinion, they must decide for power of the governor to fill a vacancy on
themselves whether the occasion was the Supreme Bench. Opinion of Judges,
such as to warrant the governor in mak- 79 Ky. 621.
"
ing the call. Opinions of Judges, 49 Mo.
1It is argued that the legislature
216. By a constitutional amendment of cannot give a construction to the consti-
1885, the Colorado Supreme Court is re- tution relative to private rights secured
quired to give its opinion upon impor- by it. It is true that the legislature, in
tant questions upon solemn occasions to consequence of their construction of the
the governor or either house of the legis- constitution, cannot make laws repugnant
lature. The intention, it is held, is not to it. But every department of govern-
"to authorize an ex parte adjudication ment, invested with certain constitutional
of individual or corporate rights," nor powers, must, in the first instance, but
" a wholesale not exclusively, be the judge of its pow-
to exact exposition of all
constitutional questions relating to a ers, or it could not act." Parsons, Ch. J.,
Bill, No. 99, 26 Col. 140, 56 Pac. 181; act effect. State v. Kelsey, 44 N. J. L. 1.
74 CONSTITUTIONAL LIMITATIONS. [CH. IV.
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
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,
;
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 ;
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 ;
1
Governor v. Porter, 5 Humph. 165. tutionality is virtually decided, and it is
The legislature cannot by statute define decided in a natural, easy, legitimate and
the words of the constitution for the safe manner, according to the principle of
courts. Westinghausen v. People, 44 the supremacy of the law and the depend-
Mich. 265; Powell v. State, 17 Tex. App. ence of justice. It is one of the most in-
845. Compare People v. Supervisors of teresting and important evolutions of the
La Salle, 100 111. 495. And see post, 136, government of law, and one of the great-
note. est protections of the citizen. It may well
2 " When laws conflict in actual be called a very jewel of Anglican liberty
cases,
they [the courts] must decide which is and one of the best fruits of our political
the superior law, and which must yield ;
civilization." Lieber, Civil Liberty and
and as we have seen that, according to Self-Government.
"
our principles, every officer remains an- Whenever a law which the judge
swerable for what he officiallydoes, a holds to be unconstitutional is argued in
citizen, believing that the law he enforces a tribunal of the United States, he may re-
is incompatible with the superior law, the fuse to admit it as a rule this power is
;
constitution, simply sues the officer before the only one which is peculiar to the
the proper court as having unlawfully American magistrate, but it gives rise to
aggrieved him in the particular case. immense political influence. Few laws
The court, bound to do justice to every can escape the searching analysis for ;
one, is bound also to decide this case as there are few which are not prejudicial
a simple case of conflicting laws. The to some private interest or other, and
court does not decide directly upon the none which may not be brought before a
doings of the legislature. It simply de- court of justice by the choice of parties,
cides for the case in hand, whether there or by the necessity of the case. But
actually are conflicting laws, and, if so, from the time that a judge has refused
which is the higher law that demands to apply any given law in a case, that law
obedience, when both may not be obeyed loses a portion of its moral sanction. The
at the same time. As, however, this de- persons to whose interest it is prejudicial
cision becomes the leading decision for all learn that means exist for evading its
future cases of the same import, until, in- authority and similar suits are multi-
;
deed, proper and legitimate authority plied until it becomes powerless. One
should reverse it, the question of consti- of two alternatives must then be resorted
78 CONSTITUTIONAL LIMITATIONS. [CH. IV.
"
Nor will this conclusion, to use the son, 1 Cranch, 137; see post, p. 227-229;
language of one of our most eminent Webster on the Independence of the
jurists and statesmen, by any means sup- Judiciary, Works, Vol. III. p. 29. In
pose a superiority of the judicial to the this speech, Mr. Webster lias forcibly
legislative power. It will only be sup- set forth the necessity of leaving with
posing that the power of the people is the courts the power to enforce consti-
superior to both and that where the will
; tutional restrictions. "It cannot be de-
" that one
of the legislature, declared in its statutes, nied," says he, great object
stands in opposition to that declared by of written constitutions is, to keep the
the people in the constitution, the judges departments of government as distinct
ought to be governed by the latter rather as possible and for this purpose to im-
;
than the former. They ought to regulate pose restraints designed to have that
CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 79
But a question which has arisen and been passed upon in one
case arise again in another, or it may present itself under
may
different circumstances for the decision of some other department
or officer of the government. It therefore becomes of the highest
ciary. The
judiciary is composed of few whether their acts be conformable to the
persons, and those not such as mix habit- constitution, then the constitution is ad-
ually in the pursuits and objects which monitory or advisory only, not legally
most engage public men. They are not, binding, because if the construction of it
or never should be, political men. They rests wholly with them, their discretion,
have often unpleasant duties to perform, in may be in favor of
particular cases,
and their conduct is often liable to be can- very erroneous and dangerous construc-
vassed and censured where their reasons tions. Hence the courts of law neces-
for it are not known or cannot be under- sarily, when the case arises, must decide
stood. The legislature holds the public on the validity of
particular acts."
"
purse. It fixes the compensation of all Without this check, no certain limita-
other departments it applies as well as
;
tions could exist on the exercise of legis-
raises all revenue. It is a numerous lative power." See also, as to the dangers
body, and necessarily carries along with of legislative encroachments, De Tocque-
it a great force of public opinion. Its ville, Democracy in America, c. 6 Story ;
members are public men, in constant con- on Const. (4th ed.) 632 and note. The
tact with one another and with their con- legislature though possessing a larger
stituents. It would seem to be plain share of power, no more represents the
enough that, without constitutional pro- sovereignty of the people than either of
visions which should be fixed and certain, the other departments ; it derives its
such a department, in case of excitement, authority from the same high source.
would be able to encroach on the judi- Bailey v. Philadelphia, &c. Railroad
ciary." ..." The constitution being the Co., 4 Harr. 389 Whittington v. Polk,
;
supreme law, it follows, of course, that 1 II. & J. 236 McCauley v. Brooks, 16
;
Trials, 2
Smith, Lead. Cas. 424;
261, Com'rs Marion Co., 110 Ind. 579, 10 N.
Young v. Black, 7 Cranch, 565 Chapman ;
E. 291 Warwick v. Underwood, 3 Head,
;
States, 116 U. S. 436; 6 Sup. Ct. Rep. v. Lewis, 49 Miss. 443 Harris v. Colquit,
;
89, 7 Sup. Ct. Rep. 454; Wilson's Exec. Ga. 50, 15 Am. Rep. 660; Castellaw v.
v. Deen, 121 U. S. 525, 7 Sup. Ct. Rep. Guilmartin, 54 Ga. 299; Sloan r. Cooper,
1004; Skelding v. Whitney, 3 Wend. 154; 54 Ga. 486; Doyle v. Hallam, 21 Minn.
Etheredge Osborn, 12 Wend. 399;
v. 515; Philpotts v. Blasdel, 10 Nev. 19;
Hayes v. Reese, 34 Barb. 151 Hyatt v. ;
Case v. New Orleans, &c. R. R., 2 Woods,
Bates, 35 Barb. 308; Harris v. Harris, 236; Geary v. Simmons, 39 Cal. 224; Gee
36 Barb. 88 Maddox v. Graham, 2 Met.
;
v. Williamson, 1 Port. (Ala.) 313, 27 Am.
(Ky.) 56; Porter v. Hill, 9 Mass. 34; Dec. 628; Cannon v. Brame, 45 Ala.
Norton Doherty, 3 Gray, 372; Thurs-
v. 262; Finney v. Boyd, 26 Wis. 366; War-
ton v. Thurston, 99 Mass. 39; Way v. ner v. Trow, 36 Wis. 195; Schroers v.
Lewis, 115 Mass. 26 Blackinton v. Black- ; Fisk, 10 Col. 599, 16 Pac. 285. Ram on
inton, 113 Mass. 231 Witmer v. Sehlat- ; Legal Judgment, c. 14. A judgment,
ter, 15 S. & R. 150 Warner v. Scott, 39 ; however, is conclusive as an estoppel,
Pa. St. 274; Verner v. Carson, 66 Pa. as to those facts only without the exis-
St. 440; Kerr v. Union Bank, 18 Md.396; tence and proof of which it could not
Whitehurst v. Rogers, 38 Md. 503 Wales ;
have b?en rendered; and if it might have
v. Lyon, 2 Mich. 276 Prentiss v. Holbrook, ;
been given on any one of several grounds,
2 Mich. 372; Van Kleek v. Eggleston, 7 it is conclusive between the parties as to
v. Slade, 58 Me. 157; Crandall v. James, Packet Co. v. Sickles, 5 Wall. 580 Spen- ;
Taylor v. Chambers, Iowa, 124 Wright 1 ; posed intestate proves to be living. Rod-
v. Leclair, 3 Iowa, 221 Clark r. Sammons, ; erigas v. Savings Institution, 63 N. Y.
12 Iowa, 368; Whittaker i\ Johnson Co., 460; s. c. 20 Am. Rep. 555; contra, John-
12 Iowa. 595 Dwyer v. Goran, 29 Iowa,
; son v. Beazley, 65 Mo. 260 s. c. 27 Am.
;
Perrine v. Serrell, 30 N. J. 454; Weber v. McNeal, 154 U. S. 34, 14 Sup. Ct. Rep.
Morris, &c., 36 N. J. 213 Fischli v. Cowan, ; 1108; rev. 5 Wash. 309, 31 Pac. 873, 34
1 Blackf. 350; Denny v. Reynolds, 24Ind. Am. St. 863. Many authorities are cited
248 Bates v. Spooner, 45 Ind. 489 Daven-
; ;
in 154 U. S. at page 48.]
CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 81
parties, as
personal representatives, heirs-at-law, donees, or
purchasers, and who are therefore considered in the law as
2
privies. 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.
;
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. 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.
2 Van Alstine v. Railroad
Ohio, 402; Cowles v. Harts, 3 Conn. 516 ; Co., 34 Barb.
CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 83
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-
;
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.
416; Selby v. Bardons, 3 B. & Ad. 17; Allen, Yerg. 360, 376, where the consti-
1
Lawrence, 5 N. Y. 389 Kneeland v. Mil-; tempt even by any case, during all this
a continuous society in a continuous law struction having been made, they give
is more truly philosophical than the theo- their assent thereto. Thus Lord Ellen-
'
retic and systematic, but lifeless, consti- borough, in 2 East, 302, remarks : I think
CH. IT.] .CONSTRUCTION OF STATE CONSTITUTIONS. 85
it is by that determina-
better to abide 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,
;
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,
;
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 ;
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.
;
Miss. 213 Adams v. Field, 21 Vt. 256 ; 1 " After an erroneous decision touch-
;
the construction and validity of their or more rules is adopted, the one which
own statutes. Sidwell v. Evans, 1 Pen. shall have been adopted by judicial sanc-
& W. 383; s. c. 21 Am. Dec. 387; Bank tion will be adhered to, though it may
of Illinois c. Sloo, 16 La. 539, 35 Am. not, at the moment, appear to be the
Dec. 223, except when it conflicts with preferable rule. But when a question
the constitution of the adopting State. involving important public or private
Risser v. Hoyt, 63 Mich. 185, 18 N. W. rights, extending through all coming
611. time, has been passed upon on a single
CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 87
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.
Construction to be Uniform.
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-
;
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,
;
States, 7 Cranch, 52 Ogden v. Strong, 2 ; Louis, &c. R. R. Co. v. Clark, 53 Mo. 214 ;
bers elected to each branch of the legis- their injunctions may be thus lightly over-
lature shall be requisite to every bill creat- looked and the experiment of setting a
;
ing, continuing, altering, or renewing any boundary to power will prove a failure.
body politic or corporate.' These words We are not at liberty to presume that
are as broad in their signification as any the framers of the Constitution, or the
which could have been selected for the people who adopted it, did not under-
occasion from our vocabulary, and there stand the force of language." See also
is not a syllable in the whole instrument same case, 4 Hill, 384, and State v. King,
tending in the slightest degree to limit or 44 Mo. 285. Another court has said :
" This
qualify the universality of the language. power of construction in courts is
If the clause can be so construed that it a mighty one, and, unrestrained by set-
shall not extend alike to all corporations, tled rules, would tend to throw a painful
whether public or private, it may then, I uncertainty over the effect that might be
think, be set down as an established fact given to the most plainly worded statutes,
that the English language is too poor for and render courts, in reality, the legisla-
the framing of fundamental laws which tive power of the State. Instances are
shall limit the powers of the legislative not wanting to confirm this. Judge-made
branch of the government. No one has, law has overrode the legislative depart-
I believe, pretended that the Constitution, ment. It was the boast of Chief Justice
looking at that alone, can be restricted to Pemberton, one of the judges of the despot
any particular class or description of cor- Charles II., and not the worst even of
porations. But it is said that we may those times, that he had entirely outdone
look beyond the instrument for the pur- the Parliament in making law. We think
pose of ascertaining the mischief against that system of jurisprudence best and
which the clause was directed, and thus safest which controls most by fixed rules,
restrict its operation.But who shall tell and leaves least to the discretion of the
us what that mischief was 1 Although judge a doctrine constituting one of the
;
most men in public life are old enough to points of superiority in the common law
remember the time when the Constitution over that system which has been admin-
was framed and adopted, they are not istered in France, where authorities had
agreed concerning the particular evils no force, and the law of each case was
against which this clause was directed. what the judge of the case saw fit to
Some suppose the clause was intended to make it. We admit that the exercise
guard against legislative corruption, and of an unlimited discretion may, in a par-
others that it was aimed at monopolies. ticular instance, be attended with a salu-
Some are of opinion that it only extends tary result; still history informs us that
to private without touching public cor- ithas often been the case that the arbi-
porations, while others suppose that it trary discretion of a judge was the law of
only restricts the power of the legislature a tyrant, and warns us that it may be so
when creating a single corporation, and again." Perkins, J., in Spencer v. State,
not when they are made by the hundred. 6 Ind. 41, 46. " Judge-made law," as the
In this way a solemn instrument for so phrase is here employed, is that made by
I think the Constitution should be con- judicial decisions which construe away
sidered is made to mean one thing the meaning of statutes, or find meanings
by one man and something else by an- in them the legislature never held. The
other, until, in the end, it is in danger of phrase is sometimes used as meaning,
being rendered a mere dead letter and ; simply, the law that becomes established
that, too, where the language is so plain by precedent. The uses and necessity of
and explicit that impossible to mean
it is
judicial legislation are considered and ex-
more than one thing, unless we first lose plained at length by Mr. Austin, in his
sight of the instrument itself, and allow Province of Jurisprudence.
ourselves to roam at large in the bound-
CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 91
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.),
;
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 ;
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
is referred to in order to help the con- be framed with much greater care and
struction of another, and the intent of consideration than the latter." Green v.
the legislature is not to be collected from Weller, 32 Miss. 650, 678. Words re-
any particular expression, but from a enacted after they have acquired a set-
general view of the whole act. Dwarris, tled meaning will be understood in that"
658, 698, 702, 703. And when it appears meaning. Fulmer v. Commonwealth, 97
that the framers have used a word in a Penn. St. 503. The argument ab incon-
particular sense generally in the act, it venienti cannot be suffered to influence
will be presumed that it was intended to the courts by construction to prevent
be used in the same sense throughout the evident intention. Chance v. Marion
the act, unless an intention to give it a County, 64 111. 66.
94 CONSTITUTIONAL LIMITATIONS. [CH. IV.
however, in applying
It is quite possible, 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
1
State v. Noble, 118 Ind. 350, 21 N. E. son that, as a remedial provision, in
Kep. 244. furtherance of natural right and justice,
2 Broom's
Maxims, 33; Sedg. on Stat. it should be liberally construed, to effect
& Const. Law, 313. See Harrison v. the beneficial purpose had in view. Thus
Leach, 4 W.Va. 383. arbitrary rules, of directly opposite ten-
3 Under a clause of the constitution dency and force, would be contending for
"
of Michigan which provided that the the mastery in the same case. The sub-
real and personal estate of every female sequent decisions under the same provi-
acquired before marriage, and all property sion do not appear to have followed this
to which she may afterwards become en- lead. See White v. Zane, 10 Mich. 333 ;
property of such female, and shall not be ber, 11 Mich. 457; Burdeno v. Amperse,
liable for the debts, obligations, or en- 14 Mich. 91 Tong v. Marvin, 15 Mich. 60;
;
property without the consent of her hus- interpretation of such a clause, since
band, inasmuch as the power to do so was otherwise we do not ascertain the evil
not expressly conferred, and the clause, designed to be remedied, and perhaps are
being in derogation of the common law, not able fully to understand and explain
was not to be extended by construction. the terms employed but it is to be
;
Brown v. Fifield, 4 Mich. 322. The dan- looked at with a view to the real intent,
ger of applying arbitrary rules in the rather than for the purpose of arbitrarily
construction of constitutional principles restraining it. See Bishop, Law of Mar-
might well, as it seems to us, be illus- ried Women, 18-20 and cases cited ;
trated by this case. For while on the McGinnis v. State, 9 Humph. 43; State
one hand it might be contended that, as a v. Lash, 16 N. J. 380, 32 Am. Dec, 397;
provision in derogation of the common Cadwallader Harris, 76 111. 370; Moyer
v.
law, the one quoted should receive a v. Slate Co., 71 Pa. St. 293.
on the other hand * Brien v.
strict construction, it Williamson, 8 Miss. 14. If
might be insisted with perhaps equal rea- in one place in a statute the meaning of a
96 CONSTITUTIONAL LIMITATIONS. [CH. IV.
(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
actsand discretion of certain officers, see Livermore v. Waite, 102 Cal. 113, 36 Pac.
424, 25 L. R. A. 312, inwhich 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
Operation to be Prospective.
> Laude v.
Chicago, &c. R. R. Co., 33 decision was made in State v. Barbee, 3
Wis. 640; Gilkey v. Cook, 60 Wis. 133, Ind. 258; Evans Phillipi, 117 Pa. St.
.
18 N. W. 639. Blackwood v. Van Vleit, 226, 11 All. 630; Pecot v. Police Jury,
30 Mich. 118. 41 La. Ann. 706, 6 So. 077. So as to
2 Moon v. the effect of a provision allowing com-
Durden, 2 Exch. 22. See
Dash v. Van Kleek, 7 Johns. 477 Brown
; pensation for property injured, but not
v. Wilt-ox, 22 Miss. 127; Price v. Mott, taken, in course of public improvements.
62 Pa. St. 315; Broom's Maxims, 28; Folkenson v. Easton, 116 Pa. St. 523, 8
post, p. 629 and note. Atl. 869. See also State v. Thompson,
8 In 2 Kan. 432; Slack v. Maysville, &c. R. R,
Allbyer v. State, 10 Ohio St. 588,
a question arose under the provision of Co., 13 B. Monr. 1 State v. Macon County
;
the constitution that "all laws of a gen- Court, 41 Mo. 453 N. C. Coal Co. v. G. C.
;
eral nature shall have a uniform operation Coal & Iron Co., 37 Md. 657. In Matter
throughout the State." Another clause of Oliver Lee & Co.'s Bank, 21 N. Y.
"
provided that all laws then in force, not 9, 12, Denio, J., says The rule laid
:
inconsistent with the constitution, should down in Dash v. Van Kleek, 7 Johns. 477,
continue in force until amended or re- and other cases of that class, by which
pealed. Allbyer was convicted and sen- the courts are admonished to avoid, if
tenced to imprisonment under a crimes possible, such an interpretation as would
act previously in force applicable to Ham- give a statute a retrospective operation,
ilton County only, and the question was, has but a limited application, if any, to
whether that act was not inconsistent with the construction of a constitution. When,
the provision above quoted, and therefore therefore, we read in the provision under
repealed by it. The court held that the consideration, that the stockholders of
provision quoted evidently had regard to every banking corporation shall be sub-
ject to a certain liability, we are
future and not to past legislation, and to attrib-
therefore was not repealed. Asimilar ute to the language its natural meaning,
98 CONSTITUTIONAL LIMITATIONS. [CH. IV.
Implications.
67 Me. 148; State v. Staten, 6 Cold. 233; these questions, post, p. 388, note ; nor
Davies v. McKeeby, 5 Nev. 369 McCaf- ; provide for the choice of officers a dif-
ferty Gayer, 59 Pa. St. 109; Quinn
v. ferent mode from that prescribed by
v. State, 35 Ind. 485 Clayton v. Harris, ;
the constitution People v. Raymond, 37
:
them :
Blake, 57 N. J. L. 6,
Allison v. 50; Opinions of Justices, 117 Mass. 603;
29 Atl. 417, 25 L. R. A. 480, and note ;
State v. Goldstucker, 40 Wis. 124; see
except in the case of school officers and post, p. 388, note. A legislative extension
other officers not provided for in the of an elective office is void as applied to
Constitution. Plummer v. Yost, 144 111. incumbents. People v. McKinney, 52
68, 33 N. E. 191, 19 L. R. A. 110;] nor N. Y. 374. fJBut where the constitution
of an officer: Feibleman v. State, 98 Ind. contains no prohibition, the legislature
616; nor shorten the constitutional term may prescribe the qualifications of voters
of an office Howard v. State, 10 Ind.
: at municipal elections. Hanna v. Young,
99; Cotten v. Ellis, 7 Jones, N. C. 545 ;
84 Md. 179, 35 Atl. 674, 34 L. R. A. 55.
State v. Askew, 48 Ark. 82, 2 S. W. And of officers :State v. McCallister, 38
349 nor practically abolish the office by
;
W. Va. 485, 18 E. 770, 24 L. R. A.
S.
repealing provision for salary: Reid v. 343. Where the constitution limits the
Smoulter, 128 Pa. 324, 6 L. R. A. 517, term, appointee under statute providing
18 Atl. Rep. 445; nor extend the consti- for holding during good behavior can-
tutional term :
People v. Bull, 46 N. Y. not hold beyond constitutional term.
57; Goodin v. Thoman, 10 Kan. 191; Neumeyer v. Krakel, Ky. , 62 S. W.
State ?>. Brewster, 44 Ohio St. 589, 6 618 (Apr. 25, 1901).]
N. E. 653 fJKahn v. Sutro, 1 14 Cal. 316,
;
It is not unconstitutional to allow the
46 Pac. 87, 33 L. R. A. 620; see also Hill governor to supply temporary vacancies
v. Slade, 41 Md. 640, 48 Atl. 64 (Nov. 15, in offices which under the constitution
1900);] but see Jordan v. Bailey, 37 are elective. Sprague v. Brown, 40 Wis.
100 CONSTITUTIONAL LIMITATIONS. [CH. IV.
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
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.
,
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
3
convey. 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-
;
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
;
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-
2
thing to be gathered from the proceedings of the convention.
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.
;
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
;
its obvious sense; it can never narrow down its true limitations;
" 1
it can never enlarge its natural boundaries. 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 :
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. Ferguson, 113 U. S. 727, 5
v. 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 2 1
is entitled to 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
8
1
Rogers v. Goodwin, 2 Mass. 476. 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.
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
further than any we have quoted, and misshapen volume, and important and
which sustain legislative action which valuable rights are claimed under them.
they hold to be usurpation, on the sole The clause has been wholly disregarded,
ground of long acquiescence. Tims in and it would now produce far-spread ruin
Brigham v. Miller, 17 Ohio, 446, the ques- to declare such acts unconstitutional and
tion was, Has the legislature power to void. It is now safer and more just to
" Our
grant divorces ? The court say : all parties to declare that it must be un-
legislature have assumed and exercised derstood that, in the opinion of the gen-
this power for a period of more than forty eral assembly at the time of passing the
years, although a clear and palpable as- special act, its object could not be attained
sumption of power, and an encroachment under the general law, and this without
upon the judicial department, in violation any recital by way of preamble, as in the
of the Constitution. To deny this long- act to incorporate the Central Railroad
exercised power, and declare all the con- Company. That preamble was placed
sequences resulting from it void, is preg- there by the writer of this opinion, and a
nant with fearful consequences. If it strictcompliance with this clause of the
affected only the rights of property, we Constitution would have rendered it neces-
should not hesitate; but second marriages sary in every subsequent act. But the
have been contracted and children born, wisdom, have thought
legislature, in their
and it would bastardize all these, although differently, and have acted differently,
born under the sanction of an apparent until now our special legislation and its
wedlock, authorized by an act of the legis- mischiefs are beyond recovery or rem-
lature before they were born, and in con- edy." These cases certainly presented
sequence of which the relation was formed very strong motives for declaring the law
which gave them birth. On account of to be what it was not; but it would have
these children, and for them only, we been interesting and useful if either of
hesitate. And in view of this, we are these learned courts had enumerated the
constrained to content ourselves with evils that must be placed in the opposite
simply declaring that the exercise of the scale when the question is whether a con-
power of granting divorces, on the part stitutional rule shall be disregarded; not
of the legislature, is unwarranted and un- the least of which is, the encouragement
constitutional, an encroachment upon the of a disposition on the part of legislative
duties of the judiciary, and a striking bodies to set aside constitutional restric-
down of the dearest rights of individuals, tions, in the belief that, if the unconstitu-
without authority of law. We
trust we tional law can once be put in force, and
have said enough to vindicate the Consti- large interests enlisted under it, the courts
tution, and feel confident that no depart- will not venture to declare it void, but
ment of State has any disposition to violate will submit to the usurpation, no matter
it, and that the evil will cease." So in how gross and daring. We agree with the
Johnson v. Joliet & Chicago Railroad Co., Supreme Court of Indiana, that, in con-
23 111. 202, 207, the question was whether struing constitutions, courts have nothing
railroad corporations could be created by to do with the argument ab inconvenienti,
special law, without a special declaration and should not "bend the Constitution to
"
by way of preamble that the object to be suit the law of the hour : Greencastle
accomplished could not be attained by Township v. Black, 6 Ind. 557, 565; and
" It is now with Bronson, Ch. J., in what he says in
general law. The court say :
too late to make this objection, since, by Oakley v. Aspinwall, 3 N. Y. 647, 568 :
" It is
the action of the general assembly under highly probable that inconveniences
this clause, special acts have been so long will result from following the Constitution
the order of the day and the ruling pas- as it is written. But that consideration
sion with every legislature which has con- can have no force with me. It is not for
vened under the Constitution, until their us, but for those who made the instru-
108 CONSTITUTIONAL LIMITATIONS. [CH. IV.
Unjust Provisions.
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 callthem." 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 ;
ing of the constitutionhave 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.
1 6
Slayton v. Hulings, 7 Ind. 144 King; People Schermerhorn, 19 Barb.
v.
v.Inhabitants of St. Gregory, 2 Ad. & El. 640, 658. imposes a duty and
If a statute
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. when
Locksdale, 1 Burr. 447. as to 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, because the person assessed would
as void,
2
lose the benefit of an appeal from the assessment, 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, "may" is mandatory, and parties
rights,
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.
a
been, construed to be directory but neg-; Crane, 5 Mich. 160, 154.
Clark v.
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.,
'
the provisions contain mere
when 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. inany 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.
606. In Low v. Dunham, 61 Me. 566, a 504 Pond v. Negus, 3 Mass. 230 Wil-
; ;
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.
6 Hill, 646 ;
Ex parte Heath, 3 Hill, 42 ; Ala. 620 ; Sorchan v. Brooklyn, 62 N. Y.
People Honey, 12 Wend. 481 Jackson
v. ; 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 Hope, 3 Denio, 249 Elmen-
v. ; Macomb, 76 111. 49 Hurford v. Omaha,
;
dorf v. Mayor, &c. of New York, 25 Wend. 4 Neb. 336 Lackawana Iron Co. v. Lit-
1
692; Thames Manufacturing Co. v. La- tie Wolf, 38 Wis. 152; R. R. Co. v. War-
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 ;
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. permissive, constitutional provisions are
770.]
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 8
; Black, 5 Ind.
>.
People v. Supervisors of Chenango,
666 ; Opinions of Judges, 18 Me. 458. See 8 N. Y. 317.
116 CONSTITUTIONAL LIMITATIONS. [CH. IV.
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
;
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
;
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. say, in gen- We
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.
*
presumed no such case will ever occur."
It is to be
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-
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
3
compulsory enforcement as are directory provisions in general.
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
;
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.
1
legislation is voluntarily enacted. 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
3
required. 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. A "
Detroit, 2 Mich. 560 ; 246.] 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, Supervisors of Dod-
J., in 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. them
Lane, 4 Ohio St. 167. See criminal. All negative or pro-
School Board v. Patten, 62 Mo. 444 ;
hibitive provisions in a constitution are
(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.
frage, there was some existing or antici- killeth, but the spirit maketh alive, is the
pated evil which it was their purpose to more forcible expression of Scripture."
avoid. If an enlarged sense of any par- Parker, Ch. J., in Henshaw v. Foster, 9
ticularform of expression should be neces- Pick. 312, 316. There are some very
sary to accomplish so great an object as pertinent and forcible remarks by Mr.
a convenient exercise of the fundamental Justice Miller on this general subject in
privilege or right, that of election, Woodson v. Murdock, 22 Wall. 351, 381-
124 CONSTITUTIONAL LIMITATIONS. [CH. V.
CHAPTER V.
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. Nebraska, Bd. of Transp.,
Co. v. 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
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.]
2 See
42 L. R. A. 591; Denney v. State, 144 post, p. 129, note.
Ind. 503, 42 N. E. 929, 31 L. B. A. 726.
128 CONSTITUTIONAL LIMITATIONS. [CH. V.
the power of giving the law may involve every other power, in
cases where the constitution is silent, never has been, and per-
'
3
haps never can be, definitely stated. That very eminent judge
1
People v Draper, 15 N. T. 532, 543. 140, per Branson, J. ; State v. Reid, 1 Ala.
2 v Rutland & Burlington Rail-
Thorpe 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
;
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.
8 Fletcher v.
Ill127 People v. Supervisors of Orange,
; Peck, 6 Cranch, 87, 136.
27 Barb. 575; Taylor v. Porter, 4 Hill,
CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 129
feltthe difficulty but the danger was less apparent then than it
;
1
Wynehamer v. People, 13 N. Y. 378, only, except in certain specified cases,
391. the legislature cannot enlarge the origi-
2 See and cases cited in nal jurisdiction of the court. Klein v.
post, p. 237,
notes. Valerius, 87 Wis. 54, 57 N. W. 1112, 22
3 The power to distribute the judicial L. "R. A. 609. Nor can the legislature
power, except so far as that has been done redistribute the judicial power. Brown
by the Constitution, rests with the legis- v.Circuit Judge, 75 Mich. 274, 42 N. W.
lature: Commonwealth v. Hippie, 69 Pa. 827, 6 L. R. A. 226, 13 Am. St. 438;
St. 9 State v. New Brunswick, 42 N. J.
;
Watson Blackstone, 98 Va. 618, 38 S. E.
v.
N. W. 190; St. Paul v. Umstetter, 37 Congress may provide that the determi-
Minn. 15, 33 N. W. 115; but when the nation by the treasury department of
Constitution has conferred it upon cer- whether an alien is entitled to land shall
tain specified courts, this must be un- be final. Nishimura Ekiu v. U. S., 142
derstood to embrace the whole judicial U. S. 651, 12 Sup. Ct. Rep. 336.] The
power, and the legislature cannot vest legislature cannot select persons to assist
any portion of it elsewhere. Greenough courts in the performance of their duties
v. Greenough, 11 Pa. St. 489; State v. and act as a commission of appeal. State
Maynard, 14 111. 420; Gibson v. Emer- .
Noble, 118 Ind. 350, 21 N. E. 244;
son, 7 Ark. 172; Chandler v. Nash, 5 In re Courts of Appeals, 9 Col. 623, 21
Mich. 409; Succession of Tanner, 22 La. Pac. 471. Courts established by the leg-
Ann. 90; Gough r. Dorsey, 27 Wis. 119; islature cannot exercise jurisdiction to
Van Slyke v. Ins. Co., 39 Wis. 390, 20 the exclusion of that conferred by the
Am. Rep. 50; Alexander v. Bennett, 60 Constitution on other courts. Montross
N. Y. 204; People v. Young, 72 111. 411 ;
v. State, 61 Miss. 429. See State v. Butt,
Jn re Cleveland, 51 N. J. L. 311, 17 Atl. 25 Fla. 258, 6 So. 597. But a general
pro-
772; Risser v. Hoyt, 53 Mich. 185, 18 vision in the Constitution for the distri-
N. W. 611 Shoultz v. McPheeters, 79
; bution of the judicial power, not referring
Ind. 373. QAnd when the Constitution to courts-martial, would not be held to
gives the court appellate jurisdiction forbid such courts by implication. People
130 CONSTITUTIONAL LIMITATIONS. [CH. V.
house, although it cannot order the erec- 701. The legislature cannot define what
tion of additions thereto or the rebuilding shall be considered a contempt of court.
thereof. White County v. Gwin, 136 Ind. Bradley v. State, 111 Ga. 168, 36 S. E.
662, 36 N. E. 237, 22 L. R. A. 402.] It is 630, 50 L. R. A. 691, 78 Am. St. 157 Hale ;
not competent to confer upon the courts v. State, 55 Ohio St. 210, 45 N. E. 199, 36
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 Judge, 17 Cal. 547; per Patter-
v.
a court to appoint certain commissioners son, J., inCooper 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.
2 Bates v
Kimball, 2 Chip. 77. A Greenough v. Greenough, 11 Pa. St. 489;
prospective determination by a court of Taylor v. Place, 4 R. I. 324. It is also a
the validity of school rules, compiled un- part of the function of the judiciary to
der legislative authority, is not an exer- determine whether a proposed constitu-
cise of judicial power. In re School Law tional amendment has been in fact adopted
Manual, 63 N. H. 574, 4 Atl. 878. Power under the forms prescribed for such case
to supersede an ordinance upon petition by the constitution, and the legislative
of taxpayers as contrary to law cannot declaration that it has been so adopted is
be conferred upon a court Shephard v. : null. State v. Powell, 77 Miss. 543, 27
Wheeling, 30 W.'Va. 479, 4 S. E. 635; So. 927, 48 L. R. A. 652. But see Worman
nor to fix the salary of a reporter in ad- v. Hagan, 78 Md. 152, 27 Atl. 616, 21 L.
judicial,'
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. the law is applied by the one, and made by
In fine,
the other. To do
first, therefore, to compare the claims
the
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.
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 Jones, 10 Bush, 725; Burkett
c. 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 Butan invasion of judicial power
it is
Declaratory Statutes.
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- Carpenter, 9 Wyo.
v. 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
1Union Iron Co. v. Pierce, 4 Bias. 327. dependent upon him, could not be re-
2In several different cases the courts garded the head of a family, though
of Pennsylvania had decided that a keeping house with servants. After-
testator's mark to his name, at the foot wards, the legislature passed an act, de-
of a testamentary paper, but without proof claring that any single person living
that the name was written by his express habitually housekeeper to himself
as
direction, was not the signature required should be regarded as the head of a fam-
by the statute, and the legislature, to use ily. Held void as an exercise of judicial
the language of Chief Justice Gibson, power. Calhoun v. McLendon, 42 Ga.
"declared, in order to overrule it, that 405. The fact that the courts had pre-
every last will and testament heretofore viously given a construction to the law
marie, or hereafter to be made, except may show more clearly a purpose in the
such as may have been fully adjudicated legislature to exercise judicial authority,
prior to the passage of this act, to which but it would not be essential to that end.
the testator's name is subscribed by his As is well said in Haley
v. Philadelphia,
direction, or to which the testator has 68 Pa. 47: "It would be mon-
St. 45,
made his mark or cross, shall be deemed strous to maintain that where the words
and taken to be valid. How this man- and intention of an act were so plain that
date to the courts to establish a particular no court had ever been appealed to for
interpretation of a particular statute can the purpose of declaring their meaning,
be taken for anything else than an exer- it was therefore in the power of the legis-
sequently to distort or pervert it, and to of the ninth article of the Constitution,
enact that white meant black, or that which declares that no man can be de-
black meant white, would in the same de- prived of his property unless
'
by the
gree be an exercise of arbitrary and un- judgment of his peers or the law of the
constitutional power." Greenough v. land.'" See 8 Am. Rep. 155, 156. And
Greenough, 11 Pa. St. 489, 494. The on the force and effect of declaratory
act in this casewas held void so far as its laws in general, see Salters v. Tobias, 3
operation was retrospective, but valid as Paige, 338 Postmaster-General v. Early,
;
to future cases. And see James v. Ro'w- 12 Wheat. 136 Union Iron Co. r. Pierce,
;
land, 42 Md. 462; Reiser v. Tell Associa- 4 Biss. 327 Planters' Bank v. Black, 19
;
tion, 39 Pa. St. 137. The constitution Miss. 43; Gough v. Pratt, 9 Md. 526;
of Georgia entitled the head of a family to McNichol v. U. S., &c. Agency. 74 Mo.
enter a homestead, and the courts decided 457; Titusville Iron Works v. Keystone
that a single person, having no others Oil Co., 122 Pa. St. 627, 15 Atl. 917 Steb- ;
CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 137
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
3
them to grant new trials, 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;
already been declared illegal by the 77 Staniford v. Barry, 1 Aik. 314 Mer-
; ;
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.
1
ers, 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; And it has been held that a statute allow-
Weaver v. Lapsley, 43 Ala. 224; San- ing an appeal in a particular case was
ders D. Cabaniss, 43 Ala. 173 Moser v. ; valid. Prout v. Berry, 2 Gill, 147 State
;
White, 29 Mich. 69; Sydnor v. Palmer, v. Northern Central R. R. Co., 18 Md. 193.
32 Wis. 406; People v. Frisbie, 26 Cal. A retroactive statute, giving the right of
135; Lawson v. Jeffries, 47 Miss. 686, appeal in cases in which it had previously
12 Am. Rep. 342; Ratcliffe v. Anderson, been lost by lapse of time, was sustained
31 Gratt. 105, 31 Am. Rep. 716. And see in Page v. Mathews's Adm'r, 40 Ala. 547.
post, pp. 557-561, and notes. It is not But in Carleton v. Goodwin's Ex'r, 41 Ala.
competent hy legislation to authorize the 153, an act the effect of which would have
court of final resort to reopen and re- been to revive discontinued appeals, was
hear cases previously decided. Dorsey held void as an exercise of judicial au-
;.
Dorsey, 37 Md. 64, 1 1 Am. Rep. 528. thority. See cases cited in next note.
The legislature may control remedies, 1
Opinions of Judges on the Dorr Case,
&c., but, when the matter has proceeded 3 R. I. 299; State v. Hopper, 71 Mo. 425.
to judgment, it has passed beyond legis- In the case of Picquet, Appellant, 5 Pick.
lative control. McClure, 28
Oliver v. 64, the judge of probate had ordered let-
Ark. 555; Griffin's Executory. Cunning- ters of administration to issue toan appli-
ham, 20 Gratt. 31; Teel v. Yancey, 23 cant therefor, on his giving bond in the
Gratt. 690; Hooker n. Hooker, 18 Miss. penal sum of $50,000, with sureties within
599. After an appeal bond was signed the Commonwealth, for the faithful per-
by the attorney, the court held bonds formance of his duties. He was unable
so signed bad. A
statute validating all to give the bond, and applied to the legis-
prior bonds so signed is void. Andrews lature for relief. Thereupon a resolve was
v. Bcnne, 15 R. I. 451, 8 Atl. 540. passed "empowering" the judge of pro-
1 In State v.
Fleming, 7 Humph. 152, bate to grant the letters of administration,
a legislative resolve that "no fine, forfeit- provided the petitioner should give bond
ure, or imprisonment should be imposed with his brother, a resident of Paris,
"
or recovered under the act of 1837 [then France, as surety, and that such bond
in force], and that all causes pending in should be in lieu of any and all bond or
any of the courts for such offence should bonds by any law or statute in this Com-
be dismissed," was held void as an in- monwealth now in force required," &c.
vasion of judicial authority. The legis- The judge of probate refused to grant the
lature cannot declare a forfeiture of a right letters on the terms specified in this re-
to act as curators of a college. State v. solve,and the Supreme Court, while hold-
Adams, 44 Mo. 570. Nor can it authorize ing that it was not compulsory upon him,
the governor or any other State officer also declared their opinion that, if it were
to pass upon the validity of State grants so, would be inoperative and void. In
it
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. Astatute authorizing an unofficial
no judgment of the Supreme Court should person to the place of a judge who
sit in
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.
2 Rex v.
unless the latter were a majority of the 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.;
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
itshould 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
1
in any degree affected by such an interposition."
1
In Shumway v. Bennett, 29 Mich, it is held that the question of incorporat-
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,
1
Cochran v. Van Surlay, 20 Wend. 365,
21 N. W. and by Chancellor Cooper,
750, 373. See the same case in the Supreme
in Ex parte Burns, 1 Tenn. Ch. R. 83, Court, sub nom. Clarke r. Van Surlay, 15
though it is said in that case that the Wend. 436.See also Suydam v. William-
organization of corporations which are son, 24 How. 427 Williamson v. Suydam,
;
referred to the courts. See, on the same Norfolk, 12 Ala. 369 Florentine v. Bar-
;
subject, State v. Armstrong, 3 Sneed, ton, 2 Wall. 210. In Hoyt v. Sprague, 103
634; Galesburg v. Hawkinson, 75 111. U. S. 613, it was held competent, by
152. Compare Burlington v. Leebrick, special statute, to provide for the invest-
43 Iowa, 252, and Wahoo v. Dickinson, ment of the estate of minors in a manu-
23 Neb. 426, 36 N. W. 813, where it facturing corporation, and that, after the
is held the question of extending, after investment was accordingly made, no ac-
hearing, the limits of a municipality may count could be demanded on their behalf,
be decided by a court. That the courts except of the stock and its dividends. But
cannot be clothed with legislative author- the legislature cannot empower the guar-
ity, see State v. Young, 29 Minn. 474, dian of infants to mortgage their lands to
9 N. W. 737. Compare Ex parte Mato, pay demands which are not obligations
19 Tex. App. 112. For the distinction against them or their estate. Burke v.
between political and judicial power, see Mechanics' Savings Bank, 12 R. I. 513.
further, Dickey v. Reed, 78 111. 261; In Brevoort r. Grace, 53 N. Y. 245, the
Commonwealth v. Jones, 10 Bush, 725. power of the legislature to authorize the
And see post, pp. 149, 150, and notes. In sale of lands of infants by special statute
Hegarty's Appeal, 75 Pa. St. 603, the was held to extend to the future contin-
power of a legislature to authorize a trus- gent interests of those not in being, but
tee to sell the lands of parties who were not to the interests of non-consenting
sui juris, and might act on their own be- adults, competent to act on their own be-
half, was denied, and the case was dis- half. In Opinions of the Judges, 4 N. H.
tinguished from Norris v. Clymer, 2 Pa. 665, 672, the validity of such a special
St. 277, and others which had followed it. statute,under the constitution of New
The foreclosure of a mortgage on private Hampshire, was denied. The judges say :
" The
property cannot be accomplished by legis- objection to the exercise of such a
lative enactment. Ashuelot R. R. Co. v. power by the legislature is, that it is in its
Elliott, 58 N. H. 451. nature both legislative and judicial. It
Power to try city officers by impeach- is the province of the legislature to pre-
ment may rest in a city council, the judg- scribe the rule of law, but to apply it to
ment extending only to removal arid dis- particular cases is the business of the
qualification to hold any corporate office. courts of law. And the thirty-eighth ar-
S'ate r. Judges, 35 La. Ann. 1075. ticle in the Bill of Rights declares that
CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 145
reach all proper cases, it may be a good prived of his inheritance without his con-
reason why that jurisdiction should be sent by an act of the legislature which is
extended, but can hardly be deemed a intended to apply to no other individual?
sufficient reason for the particular inter- The fifteenth article in the Bill of Rights
position of the legislature in an individual declares that no subject shall be deprived
case. If there be a defect in the laws, of his property but by the judgment of hia
they should be amended. Under our in- peers or the law of the land. Can an act
stitutions all men are viewed as equal, en- of the legislature, intended to authorize
titled to enjoy equal privileges, and to be one man to sell the land of another with-
*
governed by equal laws. If it be fit and out his consent be 'the law of the land
proper that license should be given to one within the meaning of the constitution ?
guardian, under particular circumstances, Can it be the law of the land in a free
to sell the estate of his ward, it is fit and country ? If the question proposed to us
proper that all other guardians should, can be resolved into these questions, as it
under similar circumstances, have the appears to us it may, we feel entirely
same license. This is the very genius confident that the representatives of the
and spirit of our institutions. And we people of this State will agree with us in
are of opinion that an act of the legisla- the opinion we feel ourselves bound to ex-
ture to authorize the sale of the land of a press on the question submitted to us, that
particular minor by his guardian cannot the legislature cannot authorize a guar-
be easily reconciled with the spirit of the dian of minors, by a special act or resolve,
article in the Bill of Rights which we have to make a valid conveyance of the real
just cited. It is true that the grant of estate of his wards." See also Jones r.
such a license by the legislature to the Perry, 10 Yerg. 59, 30 Am. Dec. 430;
guardian is intended as a privilege and a Lincoln v. Alexander, 52 Cal. 482, 28 Am.
benefit to the ward. But by the law of Rep. 69.
the land no minor is capable of assenting 1
Carroll v. Lessee of Olmsted, 16
to a sale of his real estate in such a man- Ohio, 251.
10
146 CONSTITUTIONAL LIMITATIONS. [CH. V.
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. ministrator of one who held the mere
Thurston, 6 R. I. 296,
302 Williamson v. Williamson, 11 Miss,
;
naked convey to the owner
legal title to
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
Forney, 14 N. Y. 423
;
v. ;
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
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
the income, after deducting taxes and & J. 365. In Miners' Bank
of Dubuque
charges, to the daughter during her life, v. United States, 1 Morris, 482, a clause
and after her decease to convey, assign, in a charter authorizing the legislature to
or pay over the same to the persons who repeal it for any abuse or misuser of cor-
would be entitled under the will. The porate privileges was held to refer the
court regarded this as an unauthorized question of abuse to the legislative judg-
interference with private property upon ment. In Erie & North East R. R. Co.
no necessity, and altogether void, as de- v. Casey, 26 Pa. St. 287, on the other
priving the owners of their property con- hand, it was held that the legislature
trary to the law of the land." At the
''
could not conclude the corporation by its
same time the authority of those cases, repealing act, but that the question of
where it has been held that the legisla- abuse of corporate authority would be
ture, acting as the guardian and protector one of fact to be passed upon, if denied,
of those who are disabled to act for by a jury, so that the act would be valid
themselves by reason of infancy, lunacy, or void as the jury should find. Com-
or other like cause, may constitutionally pare Flint & Fentonville P. R. Co. v.
pass either general or private laws, under Woodhull, 25 Mich. 99; 12 Am. Rep.
which an effectual disposition of their 233, in which it was held that the reser-
property might be made, was not ques- vation of a power to repeal a charter for
tioned. Tlie court cite, with apparent violation of its provisions necessarily
approval, the cases, among others, of presented a judicial question, and the re-
Rice >. Parkman, 16 Mass. 326 Cochran ; peal must be preceded by a proper judi-
v. VanSurlay, 20 Wend. 365; and Wil- cial finding. In Carey v. Giles, 9 Ga. 253,
kinson v. Leland, 2 Pet. 627. The case of the appointment by the legislature of a
Ervine's Appeal, 16 Pa. St. 256, was receiver for an insolvent bank was sus-
similar, in the principles involved, to tained and in Hindman v. Piper, 50 Mo.
;
Powers v. Bergen, and was decided in the 292, a legislative appointment of a trustee
same way. See also Kneass's Appeal, 31 was also sustained in a peculiar case. In
Pa. St. 87 Maxwell v. Goetschius, 40 N.
; Lothrop v. Steadman, 42 Conn. 583, the
J. 383, 29 Am. Rep. 242, and compare power of the legislature as an adminis-
with Ker v. Kitchen, 17 Pa. St. 433; trative measure to appoint a trustee to
Martin's Appeal, 23 Pa. St. 433; Heg- take charge of and manage the affairs of
arty's Appeal, 75 Pa. St. 503; Tharp v. a corporation whose charter had been
Fleming, 1 Houston, 580. There is no repealed, was affirmed. For a similar
constitutional objection to a statute which principle see Albertson v. Landon, 42
transfers the mere legal title of a trustee Conn. 209. And see post, p. 520. QAnd
to the beneficiary. Reformed P. I). Congress has power to declare the forfeit-
Church v. Mott, 7 Paige, 77, 32 Am. ure of a land grant for breach of condi-
Dec. 613. tion subsequent. All. & Pac. R. Co. v.
1
State v. Noyes, 47 Me. 189 Camp- ; Mingus, 165 U. S. 413, 17 Sup. Ct. Rep.
bell v. Union Bank, 6 How. (Miss.) 661; 348J
Canal Co. v. Railroad Co., 4 G. & J. 1, 22 ; 2
Edwards v. Pope, 4 111. 466.
150 CONSTITUTIONAL LTMITATTOXS. [CH. V.
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.
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
1
In McDaniel v. Correll, 19 111. 226, it result has been brought about by the leg-
appeared that a statute had been passed islative act alone. The effect of the act
to make valid certain legal proceedings upon them is precisely the same as if it
by which an alleged will was adjudged had declared in direct terms that the
void, and which were had against non- legacies bequeathed by this will to these
resident defendants, over whom the courts defendants should not go to them, but
had obtained no jurisdiction. The court should descend to the heirs-nt-law of the
" If
say : it was competent for the legis- testator, according to our law of descents.
lature to make a void proceeding valid, This it will not be pretended that they
then it has been done in this case. Upon could do directly, and they had no more
this question we cannot for a moment authority to do it indirectly, by making
doubt or hesitate. They can no more proceedings binding upon them which
impart a binding efficacy to a void pro- were void in law." See, tothe same
ceeding, than they can take one man's effect, Richards v. Rote, 68 Pa. St. 248;
property from him and give it to another. Pryor v. Downey, 60 Cal. 388, 19 Am.
Indeed, to do the one is to accomplish the Rep. 656; Lane v. Nelson, 79 Pa. St.
other. By the decree in this case the will 407; Shonk v. Brown, 61 Pa. St. 320;
in question was declared void, and, con- Spragg v. Shriver, 25 Pa. St. 282 Israel ;
the legacies given to those absent defend- 2In Denny v. Mattoon, 2 Allen, 361,
ants by the will are taken from them and a judge in insolvency had made certain
given to others, according to our statute orders in a case pending in another juris-
of descents. Until the passage of the act diction, and which the courts subsequently
in question, they were not bound by the declared to be void. The legislature then
verdict of the jury in this case, and it " are
passed an act declaring that they
could not form the basis of a valid de- hereby confirmed, and the same shall be
cree. Had the decree been rendered taken and deemed good and valid in law,
before the passage of the act, it would to all intents and purposes whatsoever."
have been as competent to make that On the question of the validity of this act
valid as it wns to validate the antecedent the court says " The precise question is,
:
proceedings vpon which alone the decree whether it can be held to operate so as to
could rest. The want of jurisdiction over confer a jurisdiction over parties and pro-
the defendants was as fatal to the one aa ceedings which it has been judicially de-
it could be to the other. If we assume termined did not exist, and give validity
the act to be valid, then the legacies to acts and processes which have been
which before belonged to the legatees adjudged void. The statement of this
have now ceased to be theirs, and this question seems to us to suggest the ob-
152 CONSTITUTIONAL LIMITATIONS. [CH. V.
Legislative Divorces.
vious and decisive objection to any con- which may serve to determine, in all
struction of the statute which would lead cases, whether the limits of constitutional
to such a conclusion. It would be a di- restraint are overstepped by the exercise
rect exercise by the legislature of a power by one branch of the government of pow-
in its nature clearly judicial, from the ers exclusively delegated to another, it
use of which it is expressly prohibited by certainly is practicable to apply to each
the thirtieth article of the Declaration of case as it arises some test by which to
Rights. The line which marks and sepa- ascertain whether this fundamental prin-
rates judicial from legislative duties and ciple is violated. If, for example, the
or public bodies, which lack legal valid- infringes on the peculiar and appropriate
ity, involve in a certain sense the exercise functions of the judiciary. It is the ex-
of a judicial power. They operate upon clusive province of courts of justice to
subjects which might properly come apply established principles to cases
within the cognizance of the courts and within their jurisdiction, and to enforce
form the basis of judicial consideration their decisions by rendering judgments
and judgment. But they may, neverthe- and executing them by suitable process.
less,be supported as being within the The legislature have no power to inter-
legitimate sphere of legislative action, on fere with this jurisdiction in such manner
the ground that they do not declare or as to change the decision of cases pend-
determine, but only confirm rights that ; ing before courts, or to impair or set aside
they give effect to the acts of parties ac- their judgments, or to take cases out of
cording to their intent that they furnish
;
the settled course of judicial proceeding.
new and more efficacious remedies, or It is on this principle that it has been
create a more beneficial interest or tenure, held that the legislature have no power to
or, by supplying defects and curing infor- grant a new trial or direct a rehearing of
malities in the proceedings of courts, or a cause which has been once judicially
of public officers acting within the scope settled. The right to a review, or to try
of their authority, they give effect to acts anew facts which have been determined
to which there was the express or implied by a verdict or decree, depends on fixed
assent of the parties interested. Statutes and well-settled principles, which it is the
which are intended to accomplish such duty of the court to apply in the exer-
purposes do not necessarily invade the cise of a sound judgment and discretion.
province, or directly interfere with the These cannot be regulated or governed
action of judicial tribunals. But if we by legislative action. Taylor v. Place,
adopt the broadest and most comprehen- 4 R. I. 324, 337 Lewis v. Webb, 3 Me.
;
sive view of the power of the legislature, 326; De Chastellux v. Fairchild, 15 Pa.
we must place some limit beyond which St. 18. A fortiori, an act of the legisla-
the authority of the legislature cannot go ture cannot set aside or amend final judg-
without trenching on the clear and well- ments or decrees." The court further
defined boundaries of judicial power." consider the general subject at length,
"
Although it may be difficult, if not im- and adjudge the particular enactment
possible, to lay down any general rule under consideration void, both as an
CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 153
Me. 504. In proceedings by tenants for divorces. Kansas: And power to grant
life, the estate in remainder was ordered divorces is vested in the District Courts
to be sold; there was at the time no au- subject to regulations by law. Kentucky :
thority for ordering such a sale. It was The General Assembly have no shall
held to be void, and incapable of confir- power to grant divorces, but by gen- . . .
mation. Maxwell v. Goetschius, 40 N. J. eral laws shall confer such powers on the
383,29 Am. Kep. 242. courts of justice. Louisiana: The Gen-
1 2
Kent, 106. See Levins v. Sleator, eral Assembly shall not pass any local
2 Greene (Iowa), 607. or special law on the following specified
2 The following are constitutional pro- objects: .
Granting divorces. Massa-
. .
visions : Alabama: Divorces from the chusetts: All cause of marriage, divorce,
bonds of matrimony shall not be granted and alimony shall be heard and de-
. . .
but in the cases by law provided for, and termined by the Governor and Council,
by suit in chancery but decrees in chan-
; until the legislature shall by law make
cery for divorce shall be final, unless ap- other provision. Mississippi: Divorces
pealed from in the manner prescribed by from the bonds of matrimony shall not
law, within three months from the date of be granted but in cases provided for by
the enrolment thereof. Arkansas: The law, and suit in chancery.
by Missouri:
General Assembly shall not have power The General Assembly shall not pass any
to pass any bill of divorce, but may pre- local or special law granting divorces. . . .
scribe by law the manner in which such In Colorado the provision is the same.
cases may be investigated in the courts of New Hampshire : All causes of marriage,
justice, and divorces granted. California: divorce, and alimony . . . shall be heard
No divorce shall be granted by the legis- and tried by the Superior Court, until the
lature. The provision is the same or sim- legislature shall by law make other pro-
ilar in Iowa, Indiana, Maryland, Michigan, vision. New York: . . . nor shall any
154 CONSTITUTIONAL LIMITATIONS. [CH. V.
divorce be granted otherwise than by due cause which was not a legal cause for
judicial proceedings. North Carolina: The divorce under the general laws. Teft v.
General Assembly shall have power to Teft, 3 Mich. 67. See also Clark v. Clark,
pass general laws regulating divorce and 10 N. H. 380; Simonds v. Simonds, 103
alimony, but shall not have power to grant Mass. 572, 4 Am. Rep. 576. The case of
a divorce or secure alimony in any par- White v. White, 105 Mass. 325, was pe-
ticular case. Ohio: The General Assem- culiar. Awoman procured a divorce from
bly shall grant no divorce nor exercise her husband, and by the law then in
any judicial power, not herein expressly force he was prohibited from marrying
conferred. Pennsylvania : The legislature again except upon leave procured from
shall not have power to enact laws annul- the court. He did marry again, however,
ling the contract of marriage in any case and the legislature passed a special act to
where by law the courts of this Common- affirm this marriage. In pursuance of a
wealth are, or hereafter may be, em- requirement of the constitution, jurisdic-
powered to decree a divorce. Tennessee : tion of all cases of marriage and divorce
The legislature shall have no power to had previously been vested by law in the
grant divorces, but may authorize the courts. Held, that this took from the
courts of justice to grant them for such legislature all power to act upon the sub-
causes as may be specified by law ; but ject in special cases, and the attempt to
such laws shall be general and uniform validate the marriage was consequently
in their operation throughout the State. ineffectual. That the legislature possesses
Virginia: The legislature shall confer on authority to validate marriages and to
the courts the power to grant divorces, give legitimacy to the children of invalid
. .but shall not by special legislation
.
marriages, where the constitution has not
grant relief in such cases. West Virginia : taken it away, see Andrews v. Page, 3
The Circuit Courts shall have power, Heisk. 653 post, pp. 533, 534. ^Constitu-
;
ing divorces, they could pass no special hereto in L. R. A. upon effect of senten'-e
act authorizing the courts to divorce for a upon marriage relation.]
OIL V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 155
1 The leading
case on this subject is in the same condition, except so far as
Starr Pease, 8 Conn. 541.
v. On the limitations were provided. There is now
question whether a divorce is necessarily and has been a law in force on the sub-
"
a judicial act, the court say A further :
ject of divorces. The law was passed one
objection is urged against this act ; viz., hundred and thirty years ago. It pro-
that by the new constitution of 1818, vides for divorces a vincufo matrimonii in
there is an entire separation of the legis- four cases; viz., adultery, fraudulent con-
lativeand judicial departments, and that tract, wilful desertion, and seven years'
the legislature can now pass no act or absence unheard of. The law has re-
resolution not clearly warranted by that mained in substance the same as it was
constitution that the constitution is a
;
when enacted in 1667. During all this
grant of power, and not a limitation of period the legislature has interfered like
powers already possessed and, in short, ;
the Parliament of Great Britain, and
that there is no reserved power in the passed spectal acts of divorce a vinculo
legislature since the adoption of this con- matrimonii; and at almost every session
stitution. Precisely the opposite of this since the Constitution of the United
is true.From the settlement of the State States went into operation, now forty-two
there have been certain fundamental rules years, and for the thirteen years of the
by' which power has been exercised. existence of the Constitution of Connec-
These rules were embodied in an instru- ticut, such acts have been, in multiplied
ment called by some a constitution, by cases, passed and sanctioned by the con-
others a charter. All agree that it was stituted authorities of our State. are We
the first constitution ever made in Con- not at liberty to inquire into the wisdom
necticut, and made, too, by the people of our existing law on this subject; nor
themselves. It gave very extensive pow- into the expediency of such frequent in-
ers to the legislature, and left too much terference by the legislature. We
can
(for it left everything almost) to their only inquire into the constitutionality of
will. The constitution of 1818 proposed the act under consideration. The power
to, and in fact did, limit that will. It is not prohibited either by the Constitu-
The second
class of cases to which we have alluded hold that
divorce a judicial act in those cases upon which the general
is
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
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-
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
Greene (Iowa),
v. Sleator, 2 116 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
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 Ohio 102.
St. [^Appointment of police
r. Shallcross, 6 W. Va. 662. The consti- cannot be intrusted to a bipartisan
officers
tution of that State provides that the board, elected half by one party in city
governor shall nominate, and by and with council and half by another. Rathbone
the advice and consent of the Senate v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34
appoint, all officers whose offices are es- L. R. A. 408. But a provision that not
tablished by the constitution or shall be more than two of the three members of a
created by law, and whose appointment civil service commission shall be of the
or election is not otherwise provided for, same political party is valid. Rogers v.
and that no such officer shall be appointed Buffalo, 123 N. Y. 173, 25 N. E. 274, 9
or elected by the legislature. The court L. R. A. 679.]
2
decided that this did not preclude the Attorney-General v. Brown, 1 Wis.
"
legislature from creating a board of 513. Whatever power or duty is ex-
public works of which the State officers pressly given to,or imposed upon, the
should be ex officio the members. The executive department, is altogether free
Krakel, - Ky. 62 S. W. 518 (April , Kennon, 7 Ohio St. 546. By the Indiana
25, 1901) People v. Mosher, 163 N. Y.
; Constitution all officers whose appoint-
32, 67 N. E. 88, 79 Am. St. 652 ; Peo- ment is not otherwise provided for, shall
must be limited to taking care that the Oreg. 640, 21 Pac. 878, 5 L. R. A. 115.]
law is executed by such agencies. See Contra, unless the right is expressly
Baltimore v. State, 15 Md. 376; [State v. secured to the officer. Donahue v. Will
Henderson, 4 Wyo. 535, 35 Pac. 517, 22 Co., 100 111. 94, and cases cited. [For
L. R. A. 751; Fox v. McDonald, 101 Ala. a case of removal for gross carelessness
61, 13 So. 416, 21 L. R. A. 529, 46 Am. in declaring the result of a vote upon a
St. 98 State v. George, 22 Oreg. 142, 29
;
constitutional amendment, see Attorney-
Pac. 356, 16 L. R. A. 737, 29 Am. St. 586. General v. Jochim, 99 Mich. 358, 58 N. W.
That power to appoint CityCommissioners 611, 23 L. R. A. 699, 41 Am. St. 606. Pro-
may be given to circuit judges. See Terre vision for impeachment or removal does
Haute v. Evansville and T. H. Ry. Co., not prevent virtual removal by legislature
149 Ind. 174, 46 N. E. 77, 37 L. R. A. 189 ; through statute abolishing the office and
and see note 16 L. R. A. 737, on the con- creating another with same duties and
stitutional power of courts or judges to powers. State v. Hyde, 129 Ind. 296, 28 N.
appoint officers. With regard to require- E. 186, 13 L. R. A. 79. Power of removal
ments of merit appointees and compet-
in cannot be conferred on court. Gordon r.
itive examinations for the ascertainment Moores, 61 Neb. 345, 85 N. W. 298.]
thereof, see People v. Kipley, 171 111. 44, If the governor has power to appoint
49 N. E. 229, 41 L. R. A. 775; Chittenden with the consent of Senate, and to re-
v. Wurster, 152 N. Y. 345, 46 N. E. 857, move, he may remove without such con-
37 L. R. A. 809 Re Keymer, 148 N. Y.
;
sent. Lane v. Com., 103 Pa. St. 481 ;
399; Newcomb w. Indianapolis, 141 Ind. power topardon for contempt of court.
451, 40 N. E. 919, 28 L. R. A. 732; Rogers State v. Sauvinet, 24 La. Ann. 119, 13 Am.
v. Buffalo, 123 N. Y. 173, 25 N. E. 274, Rep. 115; [Sharp v. State, 102 Tenn.
160 CONSTITUTIONAL LIMITATIONS. [CH. V.
v. State, 6 Lea, 637. [Upon invalidity Ala. 439, and People v. Bircham, 12 Cal.
of legislative pardon, see Singleton r. 60, are opposed to each other upon the
State, 38 Fla. 297, 21 So. 21, 34 L. R. A. point. If the fine is payable to the State,
251, 50 Am. St. 177, and note thereto in perhaps the legislature should be consid-
L. II. A. Where hoard of pardons has ered as having the same right to dis-
only advisory power, the governor's par- charge it that they would have to release
doning power is in nowise infringed. any other debtor to the State from his
Rich v. Chamberlain, 104 Mich. 436, 62 obligation. In Indiana the Supreme
N. W. 584, 27 L. R. A. 573. Statute 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 ;
grant reprieves. Butler v. State, 97 Ind. county officers as to the propriety of the
373. The Secretary of the Treasury remission, was sustained as an act within
may remit penalties for breach of reve- the power conferred by the constitution
nue laws. The Laura, 114 U. S. 411, upon the legislature to prescribe regula-
6 Sup. Ct. Rep. 881. In Michigan a judge tions in these cases. And see Branham
cannot by suspending sentence indefi- Lange, 16 Ind. 497. The power to re-
v.
agers and subject to recall, is valid. who have been convicted and fined the
State v. Peters, 43 Ohio St. 629. 4 N. E. benefit of the insolvent laws is not an
81. In Morgan v. Buffington, 21 Mo. 549, exercise of the pardoning power. Ex
it was held that the State auditor was parte Scott, 19 Ohio St. 581. And where
not obliged to accept as conclusive the the constitution provided that " In all
certificate from the Speaker of the House criminal and penal cases, except those
as to the sum due a member of the House of treason and impeachment, [the gover-
for attendance upon it, but that he might nor] shall have power to grant pardons
lawfully inquire whether the amount had after conviction, and remit fines and for-
been actually earned by attendance or feitures," &c., it was held that this did
not. The legislative rule, therefore, can- not preclude the legislature from passing
not go to the extent of compelling an ex- an act of pardon and amnesty for parties
ecutive officer to do something else than liable to prosecution, but not yet com-
his duty, under any pretence of regula- victed. State r. Nichols, 26 Ark. 74,
tion. The power to pardon offenders is 7 Am. Rep. 600. An act approved by
vested by the several State constitutions the governor vacating a conviction op T-
in the governor. It is not, however, a ates as a pardon. People v. Stewart,
power which necessarily inheres in the 1 Idaho, 546. Pardons may be made con-
executive. State v. Dunning, 9 Ind. 20. ditional, and forfeited if the condition is
And several of the State constitutions not observed. State v. Smith, 1 Bailey,
have provided that it shall be exercised 283; Lee v. Murphy, 22 Gratt. 789; Re
under such regulations as shall be pre- lluhl, 6 Sawyer, 186; Kennedy's Case,
scribed by law. There are provisions 135 Mass. 48 Ex parte Marks, 64 Cal.
;
more or less broad to this purport in those 29, 28 Pac. 109. But a pardon obtained
of Kansas, Florida, Alabama, Arkansas, by fraud is held conclusive, though after-
Texas, Mississippi, Oregon, Indiana,Iowa, ward declared null by the governor.
and Virginia. In State v. Dunning, 9 Ind. Knapp v. Thomas, 39 Ohio St. 377. A
20, an act of the legislature requiring the pardon does not relieve from forfeiture
applicant for the remission of a fine or for- of bail bond. Dale r. Commonwealth, 101
feiture to forward to the governor, with Ky. 612, 42 S. W. 93, 38 L. R. A. 808.]
his application, the opinion of certain
11
162 CONSTITUTIONAL LIMITATIONS. [CH. V.
v. Ellis,? Jones (N. C.), 545; Chamberlain 347. In Hartranft's Appeal, 85 Pa. St.
v. Sibley, 4 Minn. 309; Magruder v. Gov- 433, 27 Am. Rep. 667, it was decided that
ernor, 25 Md. 173 Groome v. Gwinn, 43
;
the governor was not subject to the sub-
Md. 572; Tennessee, c. R. R. Co. v. poena of the grand jury. In Minnesota
Moore, 36 Ala. 371; Middleton v. Lowe, it seems that officers of the executive
30 Cal. 596; Harpending v. Haight, 39 department are exempt from judicial
Cal. 189, 2 Am. Rep. 433; Chumasero process even in the case of ministerial
v. Potts, 2 Mont. 244 Martin r. Ingham,
;
duties. Rice r. Austin, 19 Minn. 103;
38 Kan. 641, 17 Pac. 162. See Hatch v. County Treasurer v. Dike, 20 Minn.
Stoneman, 66 Cal. 632, 6 Pac. 734. In 363 Western R. R, Co. v. De Graff, 27
;
the following cases the power has been Minn. 1, 6 N. W. 341 Stater. Whitcomb,
;
Ann. 1, 2 Am. Rep. 712 Same v. Same, ; & N. R. Co. v. Commonwealth, 104 Ky.
24 La. Ann. 351, 13 Am. Rep. 126; Peo- 226, 46 S. W. 707, 47 S. W. 698, 48 S. W.
ple v. Governor, 29 Mich. 320, 18 Am. Rep. 416, 43 L. R. A. 641, 649, 550. For effect
89 State v. Governor, 39 Mo. 388 Vicks-
; ; of clause denying governor power to re-
burg & M. R. R. Co. v. Lowry, 61 Miss. move officers for partisan reasons, see
102; [Territorial Ins. Asylum v. Walfley, People v. Martin, 19 Col 565, 36 Pac. 543,
Ariz., 22 Pac. 383 (8 July, 1889), 8 L. 24 L. R. A. 201. In Maryland, the procla-
R. A. 188; Bates v. Taylor, 3 Pick. (Tenn.) mation of the governor that a proposed
319, 11 S. W. 266; People v. Morton, 156 amendment to the Constitution has been
CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 163
duly adopted is not subject to review by Stout, 23 Barb. 349; Rice v. Foster, 4
any other officer or department. Worman Harr. 479; Santo v. State, 2 Iowa, 165;
v. Hagan, 78 Md. 152, 27 Atl. 616, 21 Geebrick v. State, 5 Iowa, 491 State ;
and the law of God and nature, have pany v. Commissioners of Clinton County,
set to the legislative power of every 1 Ohio St. 77 Parker v. Common-
;
one rule for rich and poor, for the fa- Copeland, 3 R. I. 33 State v. Wilcox, 45
;
be designed for no other end ultimately worth Co. v. Lisbon, 62 Me 451 Brewer ;
but the good of the people. Brick Co. v. Brewer, 62 Me. 62 State v. ;
"
Thirdly. They must not raise taxes Hudson Co. Com'rs, 37 N. J. 12; Auditor
on the property of the people without the v. Holland, 14 Bush, 147 State v. Simons,
;
Express Co., 66 Minn. 271, 68 N. W. 1085, lands through which railroad runs. Bir-
38 L. It. A. 225. Board of health cannot mingham M. R. Co. v. Parsons, 100 Ala.
be authorized to make general rules con- 662, 13 So. 602, 27 L. R. A. 263, 46 Am.
cerning compulsory vaccination. State St. 92. Elective franchise cannot be
v. Burdge, 95 Wis. 390, 70 N. W. 347, conferred upon women upon condition
37 L. R. A. 157, 60 Am. St. 123. The that the statute be approved at a subse-
legislature cannot delegate to an official quent election. Re Municipal Suffrage
the final authority to determine what to Women, 160 Mass. 586, 36 N. E. 488,
shall be done to make factories and 23 L. R. A. 113, and note hereto on power
workshops sanitary. Schaezlein v. Cab- to make a statute contingent on popular
nniss, 135 Cal. 466, 67 Pac. 755, 87 Am. approval. Law authorizing release from
St. 122 ;
or the extent of a taking for imprisonment for drunkenness upon entry
waterworks. Stearns v. Barre, 73 Vt. of recognizance that convict will take the
281, 50 Atl. 1086, 87 Am. St. 721. Stat- "Jag Cure," and final discharge upon
ute imposing a penalty upon any carrier exhibition of certificate of attendance and
charging more than a reasonable rate compliance with rules of the institution ia
without prescribing any means of deter- void. Senate of Happy Home Club c.
mining what is such rate is void. Louis- Alpena Co., 99 Mich. 117, 57 N. W. 1101,
ville & N. R. Co. v. Commonwealth, 99 23 L. R. A. 144. Where the legislature is
Ky. 132, 35 S. W. 129, 33 L. R. A. 209, directed to regulate the salaries of county
59 Am. St. 457.] clerks in proportion to duties performed,
QCourt cannot be empowered to pass and a statute fixes their salaries, the
upon propriety of incorporation of lands legislature cannot authorize county
into a village. Re Application of North* boards to allow the clerks deputies.
Milwaukee, 93 Wis. 616, 67 N. VV. 1033, Dougherty v. Austin, 94 Cal. 601, 28
33 L. R. A. 638. Insurance commissioner Pac. 834, 29 Pac. 1092, 16 L. R. A. 161,
cannot be empowered to determine the and note on delegation of legislative
form of standard insurance contract for powers. Municipality cannot be author-
the State. Dowling v. Lancashire Ins. ized to modify the jurisdiction of courts.
Co., 92 Wis. 63, 65 N. W. 738, 31 L. Vesta Mills v. Charleston, 60 S. C. 1, 38
R. A. 112; Anderson v. Manchester S. E. 226. Right of initiative and refer-
Fire As. Co., 59 Minn. 182, 63 N. W. endum cannot be conferred on people of
241, 28 L. R. A. 609; O'Neil v. Amer- a municipality in respect even of munic-
ican Fire Ins. Co., 166 Pa. 72, 30 Atl. ipal affairs. Elliott v. Detroit, 121 Mich.
945, 26 L. R. A. 715, 45 Am. St. 650. A 611, 84 N. W. 820.]
statute authorizing a particular officer to QFor other cases denying right to del-
pass upon the question of character, to egate legislative power, see Bradshaw
determine the granting of license is not a r. Lankford, 73 Md. 428, 21 Atl. 66, 11
tion of legislative power. State v. Thomp- 111. 601, 61 N. E. 851, 85 Am. St. 357,
son, 160 Mo. 333, 60 S. W. 1077, 83 Am. where it is said, quoting from Dowling v.
portion of voters of respective cities to terms and provisions when it leaves the
suspend certain penalties of a prohibitory legislative branch of the government, and
liquor law is not a delegation of legisla- nothing must be left to the judgment of
tive powers, nor is it an infringement of the electors or other appointee or delegate
the pardoning power of the executive. of the legislature, so that in form and
State v. Forkner, 94 Iowa, 1, 62 N. W. substance it is a law in all its details in
772, 28 L. R. A. 206. Statute may require prcesenti, but which may be left to take
railroad to construct cattle-guards when effect in futuro, if necessary, upon the
demand therefor is made by owners of ascertainment of any prescribed fact or
CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 165
event." The legislature cannot delegate tion upon petition of a majority of the
thepower 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-
Brig Aurora v. United States, 7
1 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.
Ohio St. 271 State v. Kirkley, 29
dell, 17 ;
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. commission A
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. 653 Phrenix Ins. Co.
III. ;
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
1
corporators on that subject.
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
2
questioned, and the reference is by no means unusual.
1
City of Paterson v. Society, &c., 24 monwealth v. Painter, 10 Pa. St. 214;
N. 385; Cheany v. Hooser, 9 B. Monr.
J. Call Chadbourne, 46 Me. 206 State v.
v. ;
of a levee tax may lawfully be referred 335; Burgess v. Pue, 2 Gill, 11; Lafay-
to the voters of the district of territory ette, &c. R. R. Co. v. Geiger, 34 Ind. 185 ;
over which it is proposed to spread the Clarke v. Rogers, 81 Ky. 43. As the
tax, regardless of municipal divisions. question need not be submitted at all,
Alcorn v. Hamer, 38 Miss. 652. Power the legislature may submit it to the free-
to grant an exclusive franchise in aid of holders alone. People v. Butte, 4 Mont.
navigation may be delegated to a vil- 174, 1 Pac. 414. The right to refer to
lage : Farnum v. Johnson, 62 Wis. 620, the people of several municipalities the
22 N. W. 751 power to determine the
; question of their consolidation was dis-
penalty to be imposed for infraction of a puted in Smith v. McCarthy, 56 Pa. St.
State law may not Montross v. State, 61 :
359, but sustained by the court. And see
Miss. 429 nor power to increase its rep-
; Smyth v. Titcomb, 31 Me. 272 Erlinger ;
constitution ordains that the legislature well, 62 Mo. 188 State v. Wileox, 45 Mo.
;
shall determine such representation. Peo- 458 Brunswick v. Finney, 54 Ga. 317 ;
;
1
State v. Reynolds, 10 111. 1. See Eq. 323 Louisville, &c. Railroad Co. v.
;
State v. McNiell, 24 Wis. 149. Response Davidson, 1 Sneed, 637 Nichol v. Mayor ;
other cases on the same general subject, Co. v. Commissioners of Clinton Co., 1
see People v. Nally, 49 Cal. 478; Pike Ohio St. 77 Trustees of Paris v. Cherry,
:
County v. Barnes, 51 Miss. 305; Bruns- 8 Ohio St. 564 Cass v. Dillon, 2 Ohio St.
;
wick v. Finney, 54 Ga. 317. The ques- 607 State v. Commissioners of Clinton
;
tion whether a general school law shall Co., 6 Ohio St. 280 ; State v. Van Home,
be accepted in a particular municipality 7 Ohio St. 327 State v. Trustees of Union,
;
may be referred to its voters. State v. 8 Ohio St. 394; Trustees, &c. v. Shoe-
Wilcox, 45 Mo. 458. The operation of maker, 12 Ohio St. 624; State v. Com-
an act creating a municipal court may be missioners of Hancock, 12 Ohio St. 596 ;
made dependent on the approval of the Powers v. Dougherty Co., 23 Ga 65; San
municipal voters. Rutter Sullivan, 25 . Antonio v. Jones, 28 Tex. 19; Common-
W. Va. 427. A city may be empowered wealth v. McWilliams, 11 Pa. St. 61 ;
to decide by vote whether it will take Sliarpless v. Mayor, &c., 21 Pa. St. 147;
control of the public schools in it. Wer- Moers v. Reading, 21 Pa. St. 188; Talhot
ner v. Galveston, 72 Tex. 22, 7 S. W. v. Dent, 9 B. Monr. 526; Slack v. Rail-
2
CommonwealthJudges, &e., 8 Pa. v. v. Alexander, 23 Mo. 483 City of Aurora ;
People v. Nally, 49 Cal. 478; Erlinger v. sioners of Leon, 6 Fla. 610; Copes v.
Boneau, 51 111. 94. Charleston, 10 Rich. 491 ;
Commissioners
8 Brunswick v. Knox
Finney, 54 Ga. 317. of Count}' v. Aspinwall, 21 How.
4 Commonwealth
Painter, 10 Pa. St. v. 639, and 24 How. 326; Same v. Wallace,
214; Clarke v. Jack, 60 Ala. 271. See 21 How. 547; Zabriskie v. Railroad Co.,
People v. Salomon, 51 111. 37 Slinger v. ;
23 How. 381; Amey v. Mayor, &c., 24
Henneman, 38 Wis. 504 ;
Hall v. Marshall, How. 364; Gelpcke v. Dubuque, 1 Wall.
80 Ky. 552 ; post, pp. 172-174. 175; Thomson v. Lee County, 3 Wall.
5 There are many cases in which mu- 327 Rogers v. Burlington. 3 Wall. 654
; ;
nicipal subscriptions to works of internal Gibbons v. Mobile & Great Northern Rail-
improvement, under statutes empower- road Co., 36 Ala. 410; St. Joseph, &c.,
ing them to be made, have been sus- Railroad Co. r. Buchanan Co. Court, 39
tained among others, Goddin v. Crump,
;
Mo. 485 State v. Linn Co. Court, 44 Mo.
;
Genoa, 29 Barb. 442, and 23 N. Y. 439 ; Co., 35 Ind. 539 Leavenworth County r.
;
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
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, taking the opinion of the
is
349; State v. Wilcox, 45 Mo. 458; Ex who would, after it had been passed with
parte Wall, 48 Cal. 279, 313; Brown v. that assurance, be willing to embarrass its
Fleiscliner, 4 Greg 132. The power to tax operation or rejoice at its defeat.
"
cannot be delegated except as by the Con- After a full examination of the ar-
stitution is permitted. Where the Con- guments by which attempted to be
it is
stitution provided that the General As- sustained that statutes made dependent
sembly shall have power to authorize the upon such contingencies are not valid
several counties and incorporated towns laws, and a good deal of study and reflec-
to impose taxes tor county and corpora- tion, I must declare that I am fully con-
tion purposes respectively, it was held vinced although at first, without much
not competent to delegate the power to examination, somewhat inclined to the
a school board. Waterhouse v. Public same opinion that the opinion is there-
Schools, 9 Bax. 398. But upon this point suit of false analogies, and so founded
there is great force in what is said by upon a latent fallacy. It seems to me
Redfield, Ch. J., in State v. Parker, 26 Vt. that the distinction attempted between
357 " If the operation of a law may
: the contingency of a popular vote and
fairlybe made to depend upon a future other future contingencies is without all
the statute as not to be a mere idle and for . one may find any number of
. .
arbitrary one. And to us the contingency, cases in the legislation of Congress, where
upon which the present statute was to be statutes have been made dependent upon
suspended until another legislature should the shifting character of the revenue laws,
meet and have opportunity of reconsider- or the navigation laws, or commercial
ing it, was not only proper and legal, and rules, edicts, or restrictions of otiier coun-
just and moral, but highly commendable tries. In some, perhaps, these laws are
and creditable to the legislature who made by representative bodies, or, it may
passed the statute for at the very thresh-
; be, by the people of these States, and in
old of inquiry into the expediency of others by the lords of the treasury, or the
CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 171
boards of trade, or by the proclamation several others are referred to in the case
of the sovereign and in all these cases
;
In re Richard Oliver, 17 Wis. 681. It
no question can be made of the perfect being conceded that the legislature pos-
legality of our acts of Congress being made sesses this general power, the only ques-
dependent upon such contingencies. It tion here would seem to be, whether a
is, in fact, the only possible mode of meet- vote of the people in favor of a law is to
ing them,' unless Congress is kept con- be excluded from the number of those
stantly in session. The same is true of acts future contingent events upon which it
of Congress by which power is vested in the may be provided that it shall take effect.
President to levy troops or draw money A similar question was before this court
from the public treasury, upon the con- in a late case (State ex rel. Attorney-Gen-
tingency of a declaration or an act of war eral v. O'Neill, Mayor, &c., 24 Wis. 149),
committed by some foreign state, empire, and was very elaborately discussed. We
kingdom, prince, or potentate. If these came unanimously to the conclusion in
illustrations are not sufficient to show the that case that a provision for a vote of
fallacy of the argument, more would not the electors of the city of Milwaukee in
avail." See also State v. Noyes, 10 Fost. favor of an act of the legislature, before
279; Bull v. Read, 13 Gratt. 78; Johnson itshould take effect, was a lawful contin-
v. Rich, 9 Barb. 680; State v. Reynolds, gency, and that the act was valid. That
10 111. 1 ; Robinson v. Bidwell, 22 Cal. was a law affecting the people of Mil-
379. In the case of Smith c. Janesville, waukee particularly, while this was one
26 Chief Justice Dixon discusses
VVis. 291, affecting the people of the whole State.
this subject in the following language: There the law was submitted to the
"But said that the act voters of that city, and here it was sub-
it is isvoid, or at
least so much of it as pertains to the tax- mitted to those of the State at large.
ation of shares in national banks, because What is the difference between the two
it was submitted to a vote of the people, cases ! It is manifest, on principle, that
or provided that it should take effect only there cannot be any. The whole reason-
after approval by a majority of the elec- ing of that case goes to show that this act
tors voting on the subject at the next must be valid, and so it has been held in
general election. This was no more than the best-considered cases, as will be seen
providing that the act should take ef- by reference to that opinion. are We
fect on the happening of a certain future constrained to hold, therefore, that this
contingency, that contingency being a act is and was from
in all respects valid
make such regulations and conditions as no want of authority for the levy and
it pleases with regard to the taking effect collection of the taxes in question." This
or operation of laws. They may be ab- decision, though opposed to many others,
solute, or conditional and contingent ;
and appears to us entirely sound and reason-
ifthe latter, they may take effect on the able.
happening of any event which is future 1
Geebrick v. State, 5 Iowa, 491 ; Rice
and uncertain. Instances of this kind of v.Foster, 4 Harr. 479; Parker v. Com-
legislation are not unfrequent. The law monwealth, 6 Pa. St. 507 The case in
of Congress suspending the writ of habeas 5 Iowa was followed in State v. Weir, 33
corpus during the late rebellion is one, and 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) in the
7
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
;
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 was
Hampshire an act 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
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 Copeland, 3 R.
v. 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.
7 Groesch v.
instead of street commissioners. State 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.
Irrepealable Laws.
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.
high seas beyond State lines, because there is the point of con-
1
Gordon v. Appeal Tax Court, 3 How. purpose, when such use becomes or is
133 ;
New Jersey v. Wilson, 7 Cranch, likely to become a nuisance. In Stone
164 ; Piqua Branch Bank v. Knoop, 16 v. Mississippi, 101 U. S. 814, 820, Chief
"
How. 369 Ohio Life Ins. and Trust Co.
;
Justice Waite says : The power of gov-
v. Debolt, 16 How. 416, 432; Dodge v. erning is a trust committed by the people
Woolsey, 18 How. 331 Mechanics' and ;
to the government, no part of which
Traders' Bank v. Debolt, 18 How. 381 ;
can be granted away. The people, in
Jefferson Branch Bank i>. Skelly, 1 Black, their sovereign capacity, have established
436 Erie R. R. Co. v. Pennsylvania, 21
;
their agencies for the preservation of
Wall. 492. See also Hunsaker v. Wright, tl'e public health and the public morals,
30 111. 140; Morgan v. Cree, 46 Vt. 773; and the protection of public and private
Spooner r. McConnell, 1 McLean, 347 ; rights. These several agencies can gov-
post, p. 395. The right of a State legisla- ern according to their discretion, if within
ture to grant away the right of taxation, the scope of their general authority,
which is one of the essential attributes of while in power ; but they cannot give
sovereignty, has been strenuously denied. away nor sell the discretion of those that
See Debolt v. Ohio Life Ins. and Trust are to come after them, in respect to mat-
Co., 1 563; Mechanics' and
Ohio St. ters the government of which, from the
Traders' Bank v. Debolt, 1 Ohio St. 591 ; very nature of things, must vary with
Brewster r. Hough, 10 N. H. 188; Mott varying circumstances." See also, on
v. Pennsylvania Railroad Co., 30 Pa. St. 9. the same subject, Morgan v. Smith, 4
And see Thorpe v. Rutland and B. Rail- Minn. 104 Kincaid's Appeal, 66 Pa. St.
;
road Co., 27 Vt. 140; post, p. 395 and 411 6 Am. Rep. 377; Hamrick v. Rousv,
;
note. In Brick Presbyterian Church v. 17 Ga. 66, where it was held that the
Mayor, &c. of New York, 6 Cow. 638, legislature could not bind its successors
it was held that a municipal corporation not to remove a county seat. Bass i:
had no power, as a party, to make a con- Fontleroy, 11 Tex. 698; Shaw v. Macon,
tract which should control or embarrass 21 Ga. 280 Regents of University v. Wil-
;
its discharge of legislative duties. And liams, 9 G. & J. 365; Mott v Pennsylva-
see post, p. 295. In Coats v. Mayor, &c. nia Railroad Co., 30 Pa. St. 9. In Bank
of New York, 7 Cow. 685. it was decided of Republic v. Hamilton, 21 111. 53, it was
that though a municipal corporation grant held that, in construing a statute, it will
lands for cemetery purposes, and cove- not be intended that the legislature de-
nant for their quiet enjoyment, it will not signed to abandon its right as to taxation.
thereby be estopped afterwards to forbid This subject is considered further, post,
by by-law the use of the land for that pp. 395-401.
CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 177
a State bordering upon the high seas ex- parte Cross, 20 Neb. 417, 30 N. W. 428 ;
tends one marine league from shore and Marion v. State, id. 233, 20 N. W. 911.
8
is subject over that space only to the Tyler v. People, 8 Mich. 320. Mur-
federal power over navigation. State der is committed in the District of Co-
has full control of the fisheries therein. lumbia if the fatal blow is struck there,
Manchester v. Massachusetts, 139 U. S. though the death occurs elsewhere.
240, 11 Sup. Ct. Rep. 559.] The Consti- United States v. Guiteau, 1 Mackey,
tution of the United States empowers 498. See Hatfield v. Com., 12 S. W. 309
Congress to exercise exclusive jurisdic- (Ky.). That where a larceny is committed
tion over places purchased by consent of in one State and the property carried by
the legislature of the State in which the the thief into another, this may be treated
same shall be, for the erection of forts, as a continuous larceny wherever the
magazines, arsenals, dockyards, and other property is taken, see Commonwealth v.
needful buildings. When the United Cullins, 1 Mass. 116; Commonwealth v.
States acquire lands without such con- Andrews, 2 Mass. 14, 3 Am. Dec. 17;
sent, the State jurisdiction is as complete Commonwealth v. Holder, 9 Gray, 7;
as if the lands were owned by private Commonwealth v. White, 123 Mass. 430;
citizens. But the State, in giving con- State v. Ellis, 3 Conn. 185, 8 Am. Dec.
sent, may reserve the right to serve State 175; State v. Cummings, 33 Conn. 260;
process within the territory State v. : State v. Bartlett, 11 Vt. 650; State v.
Dimick, 12 N. H. 194; Commonwealth Bennett, 14 Iowa, 479; People v. Wil-
v. Clary, 8 Mass. 72; United States v. liams, 24 Mich. 156; State v. Main, 16
Cornell, 2 Mass. 60; Opinion of Judges, Wis. 398; Hamilton v. State, 11 Ohio,
1 Met. 580 or to tax railroads in it Fort
;
:
435; State v. Seay, 3 Stew. 123, 20 Am.
Leavenworth R. R. Co. v. Lowe, 114 U. S. Dec. 66; State v. Johnson, 2 Oreg. 115;
525, 5 Sup. Ct. Rep. 995; and its railroad Myers v. People, 26 111. 173; Watson
fencing statutes remain in force. Chica- v. State, 36 Miss. 593 State v. Under- ;
go, R. I., &c. Co. v. McGlinn, 114 U. S. wood, 49 Me. 181 Ferrell v. Common-
;
542, 5 Sup. Ct. Rep. 1005. Offences wealth, 1 Duv. 153; Regina v. Hennessy,
within the purchased territory can only 35 Up. Can. R. 603. Contra, State v.
be punished by the United States United :
Brown, 1 Hayw. 100, 1 Am. Dec. 548;
States v. Ames, 1 Wood. & M. 76 Mitch- ; People v. Gardner, 2 Johns. 477; Sim-
ell v. Tibbetts, 17 Pick. 298 even though ;
mons v. Commonwealth, 5 Binn. 617;
death ensues out of the territory Kelly :
Simpson v. State, 4 Humph. 456; Beal v.
v. United States, 27 Fed.
Rep. 616 State ; State, 15 Ind. 378 ;
State v. LeBlanch, 31
12
178 CONSTITUTIONAL LIMITATIONS. [OIL V.
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
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
ciotisand 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
(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. Anda 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 topay 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.
v. New York, 143 U. S. 305, 12 Sup. Ct. 133; Kerr v. Dougherty, 79 N. Y. 327;
Hep. 403. But after the corporation has Thompson v. Waters, 25 Mich. 214.
exemption laws by garnishment proceedings in other States, see Singer M'fg Co. .
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-
2
tory of another, even though both belong to one political system.
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
deem necessary, for the cases enumerated laws regulating county or township busi-
in this section, and for all other cases ness, a special act allowing and ordering
where a general law can be made appli- payment of a particular claim is void,
cable." Art. 4, 27. We should
suppose even though the claim, being merely an
that so stringent a provision would, in equitable one, cannot be audited by any
some of these cases, lead to the passage existing board. Williams v. Bidleman, 7
of general laws of doubtful utility in or- Nev. 68. See Darling v. Rogers, 7 Kan.
der to remedy the hardships of particular 592; [[Dean v. Spartanburg County, 59
cases ;
but the constitution adopted in S. C. 110, 37 S. E. 226; Uffert r. Vogt,
1875 is still more restrictive. Aft. 4, 53. 65 N. J. App. 377, 621, 47 Atl. 225, 48
As to when a general law can be made Atl. 674; Black v. Gloucester City,
applicable, see Thomas v. Board of Com- N. J. 48 Atl. 1112 (April 29, 1901).
L. ,
t;. Tucker, 46 Ind. 355, overruling Thomas L. R. A. 700.] A statute is not special
v. Board of Commissioners, supra ; John- because it is not universal in operation
son v. Com'rs Wells Co., 107 Ind. 15 ; by reason of earlier special laws not af-
State v. County Court of Boone, 50 Mo. fected by the constitutional provision.
317, 11 Am.
Rep. 415; State v. Robbins, Evans v. Phillipi, 117 Pa. St. 226, 11 Atl.
51 Mo. 82; Hall v. Bray, 51 Mo. 288; 630. ("And a law which gives to any city
St. Louis v. Shields, 62 Mo. 247 Carpen- ; having a special charter the option to
ter v. People, 8 Col. 116, 5 Pac. 825; adopt the provisions of a general act is
Richman v. Supervisors, 77 Iowa, 513, not special. Adams v. Beloit, 105 Wis.
42 N. W. Rep. 422; Davis v. Gaines, 48 363, 81 N. W. 869, 47 L. R. A. 441.] An
Ark. 370. Compare Hess t;. Pegg, 7 Nev. act creating a criminal court for a partic-
23 Darling v. Rogers, 7 Kan. 592 Ex
; ; ular county is not in conflict with the
parte Pritz, 9 Iowa, 30 QBank of Com-
; constitutional prohibition of special legis-
merce v. Wiltsie, 153 Ind. 460, 53 N. E. lation. Eitel v. State, 33 Ind. 201. See
950, 55 N. E. 224, 47 L. R. A. 489 State ; Matter of Boyle, 9 Wis. 264. Nor one al-
v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 lowing recovery from railroad of $5,000
L. R. A. 56(5, and note Richman v. Mus-
; in case of death. Carroll v. Missouri P.
catine County, 77 Iowa, 513, 42 N. W. 422, Ry. Co., 88 Mo. 239. fjBut one provid-
4 L. R. A. 445, 14 Am. St. 308 People v. ; ing for interchange of judges in a single
Levee Dist. No. 6, 131 Cal. 30, 63 Pac. county is. Ashbrook j. Scliaub, 160 Mo.
342. But see Silberman v. Hay, 59 Ohio 87, 60 S. W. 1085 ] A
Sunday law mak-
St. 582, 53 N. E. 258, 44 L. R. A. 264, ing it a misdemeanor for a baker to en-
holding that right of trial by jury is gen- gage in the business of baking on Sunday
eral, and that a law relating thereto and isa special law, and unconstitutional in
expressly made applicable to a single California. Ex
parte Westerfield, 55 Cal.
county is void. Gambling cannot be 550, 36 Am. Rep. 47. Where special acts
made a crime everywhere except " within conferring corporate powers are prohib-
the limits or enclosure of a regular race- ited, the State cannot specially authorize
course." State v. Walsh, 136 Mo. 400, 37 a school district to issue bonds to erect
S. W. 1112, 35 L. R. A. 231 see also
;
a school-house. School District v. Insur-
State v. Elizabeth, 66 N. J. L. 71, 28 Atl. ance Co., 103 U. S. 707. CSee, for an-
CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 183
48 Atl. 557-3 The provision does not Cal. 866; McAunich v. Mississippi, &c.
forbid legalizing bonds of a city void R. R. Co., 20 Iowa, 338; Rice v. State, 3
v. Plattsmouth, 107 U. S. 568, 2 Sup. Ct. Gentile r. State, 29 Ind. 409; State v.
Rep. 208 nor in Tennessee does it cover
; Parkinson, 5 Nev. 15; Ensworth Albin, i>.
541 ;3 nor in Wisconsin a commission cre- monwealth Patton, 88 Pa. St. 258; Cox
v.
ated under the police power to establish v. State, 8 Tex. App. 254 ; State v. Mona-
drains. State v. Stewart, 74 Wis. 620, 43 han, 69 Mo. 556; State v. Clark, 23 Minn.
N. W. 947 Qipplies to counties in Ne-
;
422 ; Speight v. People, 87 111. 595;
QMor-
vada: Schweiss v. First Judicial Pistr. ris v. Stout, 110 Iowa, 659, 78 N. W. 843,
Ct., 23 Nev. 226, 45 Pac. 289, 34 L. R. A. 50 L. R. A. 97; Re Henneberger, 155
602.] A provision that
constitutional N. Y. 420, 50 N. E. 61, 42 L. R. A. 132;
requires all laws of a general nature to West Chicago Park Com'rs v. McMul-
have uniform operation throughout the len, 134 111. 170, 25 N. E. 676, 10 L. R, A.
State is complied with in a statute appli- 215; Lodi Twp. v. State, 51 N. J. L. 402,
cable to all cities of a certain class hav- 18 Atl. 749, 6 L. R. A. 56 State v. Som- ;
ing less than one hundred thousand in- ers' Point, 52 N. J. L. 32, 18 Atl. 694,
one city in the State of that class. Wel- Okla. 556, 64 Pac. 241 State v. Thomas, ;
486; State v. Hammer, 42 N. J. 435; 491, 64 N. E. 427. See also upon the
Worthley v. Steen, 43 N. J. L. 542; Bum- general question, Com. v. Moir, 199 Pa.
sted v. Govern, 47 N. J. L. 3(58, 1 Atl. 534, 49 Atl. 351, 85 Am. St. 801.]
835; Van Giesen v. Bloomfield, id. 442, 2 Qlnsane persons having no dependents
Atl. 249; Hightstown v. Glenn, id. 105; nor persons who could take from them
New Brunswick i: Fitzgerald, 48 N. J. L. under the law of succession may have
457, 8 Atl. 729; State v. Hoagland, 51 their expenses while in the asylum
N. J. L. 62, 16 Atl. 166; McCarthy v. charged upon their estates, while the
Com., 110 Pa. St. 243, 2 Atl. 423; App. expenses of other insane persons in
of Scranton Sch. Dist., 113 Pa. St. 176, the same asylum are paid out of the
6 Atl. 158 Wilkes-Barre v. Meyers, id.
; public funds. Bon Homme Co. v. Berndt,
395 Reading v. Savage, 124 Pa. St. 328,
;
13 S. D. 309, 83 N. W. 333, 50 L. R. A.
16 Atl. 788; Ex parte Falk, 42 Ohio St. 351. Where the Constitution provides
638; State v. Pugh, 43 Ohio St. 98, 1 that "corporations other than banking
N. E. 439; State v. Hawkins, 44 Ohio St. shall not be created by special act," the
98, 5 N. E. 225 State v. Anderson, id.
; extension of an old special charter of
247, 6 N. E. 671 ; Ewing Hoblitzelle,
. such other corporation is equally pro-
85 Mo. 64; Kelly v. Meeks, 87 Mo. 396; hibited. Bank of Commerce v. Wiltsie,
State v. Co. Court, 89 Mo. 237, 1 S. W. 153 Ind. 460, 53 N. E. 950, 55 N. E. 224,
307 State v. Pond, 93 Mo. 606, 6 S. W.
; 47 L. R. A. 489. And where the grant
469; State v. Donovan, 20 Nev. 75, 15 of any special privileges, immunities, or
Pac. 783 Darrow v. People, 8 Col. 417,
; franchises whatever is prohibited, certain
8 Pac. 661 People v. Henshaw, 76 Cal.
; named cannot be empowered to
societies
436, 18 Pac. 413. And on the general appoint designated State officers, e.g.
184 CONSTITUTIONAL LIMITATIONS. [CH. V.
members of a State board of inspectors can never have more, is void. Campbell
of the business of licensed commission v. Indianapolis, 155 Ind. 186, 57 N. E.
merchants. Lasher v. People, 183 III. 920. And see Knopf v. People, 185 111.
226, 55 N. E. 663, 47 L. R. A. 802, 75 Am. 20, 57 N. E. 22. An arbitrary exemption
St. 103. Nor can the number of deputies from a license tax of all dealers whose
for certain county officers be prescribed business is less than a thousand dollars a
for some counties and left to the dis- year, others having no equal exemption,
cretion of the county court in others. is void as class legislation. Com. v, Clark,
Weaver v. Davidson County, 104 Tenn. 195 Pa. 634, 46 Atl. 286, 86 Am. St. 694.
315, 59 S. W. 1105. Where classification See also Burnet ?;. Dean, N. J. App.
of cities is permitted, it must be for city ,
49 Atl. 503 (June 17, 1901).] Where
purposes only. Re Washington St., 132 the legislature, for urgent reasons, may
Pa. 257, 19 Atl. 219, 7 L. R. A. 193 and suspend the rules and allow a bill to be
note. Statute providing for cure of inebri- read twice on the same day, what con-
ates at public expense in counties having stitutes a case of urgency is a question
fifty thousand population or more is void for the legislative discretion. Hull v.
for arbitrariness. Murray v. Ramsey Miller, 4 Neb. 503. The legislature's
County Com'rs, 81 Minn. 359, 84 N. W. power over its own proceedings cannot
103, 51 L. R. A. 828. Bicycle tax levied in be controlled by a statute requiring notice
certain counties only is void, although in advance of the session, in case of peti-
proceeds form a special fund for con- tion affecting private interests. Opinion
struction of bicycle paths. Ellis v. Fra- of Court, 63 N. H. 625. [Where the
zier, 38 Oreg. 462, 63 Pac. 642.] As to Constitution provides that no county seat
what differences should underlie a classi- shall be changed except by approval of
fication, see Cobb v. Bord, 40 Minn. 479, two-thirds of voters voting thereon, the
42 N. W. 396. fJAll classification must be legislature may intensify the require-
reasonable. An
exemption of ex-soldiers ment, and require the approval of two-
and marines, honorably dismissed from thirds of all the voters in the county.
the service of the United States, from a State .
White, 162 Mo. 533, 63 S. W.
pedler's license tax is void. State v.
104.]
Garbroski, 111 Iowa, 496, 82 N. W. 959, i Walker v. Cincinnati, 21 Ohio St
82 Am. St. 524. If special legislation is 14, 41. [But see The Stratton Claim-
prohibited, a classification such that one ants v. The Morris Claimants, 89 Tenn.
class has but one member and, because 497, 15 S. W. 87, 12 L. R. A. 70.]
the classification is based upon a past fact,
CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 185
CHAPTER VI.
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
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
protest against the governor's authority of legal votes. See the same principle in
was entered upon the journal but for;
State v. Jarrett, 17 Md. 309. See also
eleven days in one house and twelve in tlie Lamb v. Lynd, 44 Pa. St. 336; Opinion of
other no entries were made upon their Justices, 56 N. H. 570. QThe persons who
journals, and
was unquestionable that
it are to constitute the prima facie house,
practically they had acquiesced in the and to organize and examine into the
action of the governor, and adjourned. qualifications of the members, to deter-
At the expiration of the twelve days, a mine contests, &c., are those who bring
portion of the members came together certificates of election from the proper
again, and it was claimed by them that officers. Re Gunn, 50 Kan. 155, 32 Pac.
the message of the governor was without 470, 948, 19 L. R. A. 519, a case where
authority, and the two houses must be two rival bodies each claimed to be the
considered as having been, in point of true house of representatives/] In Kan-
law, in session during the intervening sas a question having some resemblance
period, and that consequently any bills was disposed of differently. The legis-
which had before been passed by them lature gave seats to several persons as
and sent to the governor for his approval, representatives of districts not entitled to
and which he had not returned within ten representation at all. By the concurrent
days, Sundays excepted, had become laws vote of four of these a certain bill was
under the constitution. The Supreme passed. Held, that it was illegally passed,
Court held that, as the two houses had and did not become a law. State v. Fran-
practically acquiesced in the action of the cis, 26 Kan. 724. The legislature cannot
governor, the session had come to an end, transferits power to judge of the election
and that the members had no power to of members, to the courts. State v.
its
reconvene on their own motion, as had Gilman, 20 Kan. 551, 27 Am. Rep. 189.
been attempted. The case is a very full See Dalton v. State, 43 Ohio St. 652.
and valuable one on several points per- But courts may procure and present evi-
taining to legislative proceedings and dence to the legislature. In re McNeill,
authority. As to the governor's 'discretion 111 Pa. St. 235, 2 Atl. 341. The legisla-
in calling an extra session and revoking tive power to judge of the election of
the call, see ante, p. 160, note. [^Govern- members is not possessed by municipal
or's decision that disagreement exists bodies: People v. Hall, 80 N/Y. 117; nor
declared conclusive in lie Legislative by hoards of supervisors: Robinson v.
Adjournment, 18 R. I.824, 27 Atl. 324, Cheboygan Supervisors, 49 Mich. 321, 13
22 L. R. A. 716, and see note in N. W. 622; except when conferred by
190 CONSTITUTIONAL LIMITATIONS. [CH. VI.
"
Case, 1 Lev. 165 ;
1 Sid. 245, T. Raym. provides that the person of every mem-
120. ber of the General Assembly shall be
" Senators and
1
representatives shall, exempt from arrest, and his estate from
in cases except treason, felony, or
all attachment, in any civil action, during the
breach of the peace, be privileged from session of the General Assembly, and
arrest. They shall not be subject to any two days before the commencement and
civil process during the session of the leg- two days after the termination thereof,
islature, or for fifteen days next before and all process served contrary hereto
the commencement and after the termina- shall be void." Art. 4, 5.
v. Markham, 28 Fed. Rep. 387, a California will waive the privilege unless he applies
member tn route to Washington was held for discharge by motion or on habeas
exempt from service of summons in Wis- corpus. Tarlton v. Fisher, Doug. 671 ;
consin. Fletcher v. Baxter, 2 Aik. 224 Fox v. ;
1 Wend. 32 ;
Wilraarth v. Burt, 7 Met. must be in the courts, and not elsewhere.
257; Aldrich v. Aldrich, 8 Met. 102; If this correct, the necessities of legis-
is
Chase v. Fish, 16 Me. 132. But where lation will require a repeal of the statute ;
the privilege is given on public grounds, for if, in political cases, the question of
or for the benefit of others, discharge may punishment for failure to give informa-
be obtained on the motion of any party tion must be left to a jury, few convic-
concerned, or made by the court sua tions are to be expected, and no wholesome
punish for such contempt. But the priv- Dav. 330, is of the highest interest. See
ilege of a witness to be exempt from a May, Const. Hist. c. 7.
compulsory disclosure of his own criminal
4
Spangler v Jacoby, 14 111 297 ; Tur-
conduct is the same when examined by a ley v. Logan Co., 17 111. 151; Jones v.
legislative body or committee as when Hutchinson, 43 Ala, 721 State v. Mofflt,
;
sworn in court. Emery's Case, 107 Mass. 6 Ohio, 358 Miller v. State, 3 Ohio St.
;
172. In the Matter of Kilbourn (May, 475; Fordyce v. Godman, 20 Ohio St. 1 ;
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. Hill, 60 Iowa, 543, 15 N. W. 609. So, as to
Co. v. Odum, 53 Tex. 343; Gardner v. the entry of the number voting. Wise v.
The Collector, 6 Wall. 499 South Ottawa ; Bigger, 79 Va. 269. [And as to which
v. Perkins, 94 U. S. 260. The presump- bill was voted on. State v. Wendler, 94
tion always is, when the act, as signed Wis. 369, 68 N. W. 759.] The journal
and enrolled, does not show the contrary, cannot be contradicted by parol to show
that it has gone through all necessary that a mere title or skeleton was intro-
formalities :
McConnell, 3 Lea,
State v. duced as a bill. Attorney-General v.
341 Blessing v. Galveston, 42 Tex. 641
; ; Rice, 64 Mich. 385, 31 N. W. 203. If a
State v. Francis, 26 Kan. 724; and some journal shows an act passed, it cannot
cases hold that the enrolled statute is be attacked on the ground that some
conclusive evidence of its due passage members voting for it were improperly
and validity. See Sherman v. Story, 30 seated. State v. Smith, 44 Ohio St. 348,
Cal. 253; People v. Burt, 43 Cal. 660; 7 N. E. 447, 12 N. E. 829. And see
Louisiana Lottery Co. v. Richoux, 23 La. Opinions of Justices, 52 N. II. 622 Hen- ;
Ann. 743, 8 Am. Rep. 602; Green r. soldt v. Petersburg, 63 111. 157 Larrison ;
Pacific R. R. Co. v. Governor, 23 Mo. 353; 276; English v. Oliver, 28 Ark. 317 In re ;
State v. Swift, 10 Nev. 176; Pangborn i?. Wellman, 20 Vt. 653 Osburn v. Staley,
;
41 N. W. 746; [TZeTipton, 28 Tex. App. Badget, 32 Ark. 496; South wark Bank
438, 13 S. W. 610, 8 L. R. A. 326, and v. Commonwealth, 26 Pa. St. 446; For-
ty v. Colgan, 132 Cal. 265, 64 Pac. 403.] Mich. 481 Berry v. Doane Point R. R.
;
Others hold that the prima facie case may Co., 41 Md. 446. Compare Brodnax v.
be overthrown by the journals Spang- :
Groom, (54 N. C. 244 Annapolis v. Har-
;
ler v. Jacoby, 14 III. 297 Houston, &c. ; wood, 32 Md. 471. It has been held that
R. R. Co. v. Odum, 53 Tex. 343 Burr ; where the constitution requires previous
v. Ross, 19 Ark. 250; Smithee v. Camp- notice of an application for a private act,
bell, 41 Ark. 471 Jones v. Hutchinson,
; the courts cannot go behind the act to
43 Ala 721; Moog v. Randolph, 77 Ala. inquire whether the notice was given.
597 Berry v. Baltimore, &c. R. R. Co.,
;
Brodnax v. Groom, 64 N. C. 244. See
41 Md. 446, 20 Am. Rep. 69; Green v. People v.Hurlbut, 24 Mich. 44; Day v.
Weller, 32 Miss. 650 People v. McElroy,
; Stetson, 8 Me. 365 M'Clinch v. Sturgis,
;
a veto, differing from an ordinary en- L. R. A. 396, 85 Am. St. 42. As to use
rolled act. State v. Denny, 118 Ind. 449, to be made of the journals in determin-
12 N. E. 274. The journal entry, if in ing the true contents of a bill, see Mil-
compliance with a constitutional require- waukee County v. Isenring, 109 Wis. 9,
ment, is the best evidence of a resolution, 85 N. W. 131.3
and cannot be contradicted. Koehler c.
CH. VI.] OF THE ENACTMENT OF LAWS. 195
1
adjudge the statute void. 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
1See cases cited in preceding note ; Stanly Co. v. Snuggs, 121 N. C. 394, 28 S.
also Prescott v. Trustees, &c., 19 111. 324 ; E. 539, 39 L. R. A. 439. That journals
Koehler v. Hill, 60 Iowa, 543, 549, 14 must affirmatively show full compliance
N. W. 738, 15 N. W. 609. with constitutional requirements, seeCohn
2 Miller v. Mc- Idaho
State, 3 Ohio St. 475 ;
v. Kingsley, 49 Pac. 985, 38
,
882; People v. Dunn, 22 Pac. 140; State ner, 30 Oreg. 688, 49 Pac. 956. For
v. Brown, 20 Fla. 407 Matter of Van-
;
other cases holding constitutional require-
derberg, 28 Kan. 243; State v. Peterson, ments mandatory, see Union Bank v.
38 Minn. 143, 36 N. W. 443; State v. Comr's of Oxford", 119 N. C. 214, 25 S. E.
Alpood, 87 Tenn. 163, 10 S. W. 310; 966, 34 L. R. A. 487 Mullan v. State,
;
Hunt v. State, 22 Tex. App. 396, 3 S. W. 114 Cal. 578, 46 Pac. 670, 34 L. R. A. 262.
233. But where a statute can only be The court will not declare a statute void
enacted by a certain majority, e. y. two- because of fraud in procuring its enrol-
thirds, it must affirmatively appear by ment and the signatures of the proper
the printed statute or the act on file officers thereto. Such fraud must be cor-
that such a vote was had. People v. rected by the legislature. Carr v. Coke,
Commissioners of Highways, 54 N. Y. 116 N. C. 223, 22 S. E. 16, 28 L. R. A.
276. It seems that, in Illinois, if one 737, 47 Am. St. 801. Duly enrolled bill
claims that a supposed law was never properly filed is conclusive. State v.
passed, and relies upon the records to Jones, 6 Wash. 452, 34 Pac. 201, 23 L. R.
show he must prove them. Illinois
it, A. 340, and see note in L. R. A. giving
Cent. R. Co.11. Wren, 43 111. 77 Grob
.
;
cases pro and con ; contra, Norman v.
v. Cushman, 45 111. 119; Bedard v. Hall, Kentucky Bd. of Managers, 93 Ky. 537,
44 111. 91. The court will not act upon 20 S. W. 901, 18 L. R. A. 556. Parol
the admission of parties that an act was testimony is inadmissible to impeach
not passed in the constitutional manner. legislative records. White v. Hinton,
Happel v. Brethauer, 70 111. 166; Attor- 3 Wyo. 753, 30 Pac. 953, 17 L. R, A. 66.
ney-General v. Rice, 64 Mich. 385, 31 Upon conclusiveness of legislative rec-
N. W. 203. ords, see Detroit v. Rentz, 91 Mich. 78,
The Constitution of Alabama, art. 4, 51 N. W. 787, 16 L. R. A. 59. And upon
27, requires the presiding officer of each records of Secretary of State in regard to
house, in the presence of tlie house, to passage of bills and submission to gov-
" have been pub-
sign acts after the titles ernor, see Lankford v. Somerset Co., 73
licly read immediately before signing, and Md. 105, 20 All. 1017, 22 Atl. 412, 11 L. R.
the fact of signing shall be entered on the A 491. Matters of detail v ill be pre-
journal." This seems a very imperative sumed properly performed where journal
requirement. But in Colorado a like pro- records the doing of the main act and is
vision is held directory, and the presump- silent as to the subsidiary matters. Bar-
tion in case of silence of journal is in ber Asphalt Co. v. Hunt, 100 Mo. 22, 13
favor of the act. In re Roberts, 5 Col. S. W. 98, 8 L. R. A. 110, 18 Am. St.
525. QThat requirement to enter yeas 530.3
and nays is mandatory, see Com'rs of
196 CONSTITUTIONAL LIMITATIONS. [OH. VI.
Wildey v. Collier, 7 Md. 273; yet common fairness requires that neither
1 See
Bryan v. Reynolds, 5 Wis. 200; Brown v. party shall be permitted to have secret
Brown, 34 Barb. 533 Russell v. Burton,
; consultations, and exercise secret influ-
66 Barb. 539; QHoulton v. Nichol, 93 ences that are kept from the knowledge
Wis. 393 67 N. W. 715
; ;
33 L. R. A. of the other party. The business of lobby
'
'
pense with many of the rules which reg- policy, and to open, upright, and fair
ulate hearings before judicial tribunals, dealing, are illegal and void. The prin-
CH. VI.] OF THE ENACTMENT OF LAWS. 197
Dame, 18 Pick. 472. In several other ence with the members, or by any sinister
States it has been applied to cases quite means, was void, as being inconsistent
analogous to the present case. with public policy and the integrity of
" In our political institutions. And an agree-
Pingrey v. Washburn, 1 Aik. 264,
it was held in Vermont that an agree- ment for a contingent fee to be paid on
ment, on the part of a corporation, to the passage of a legislative act was held
grant to individuals certain privileges in to be illegal and void, because it would
consideration that they would withdraw be a strong incentive to the exercise of
their opposition to the passage of a legis- personal and sinister influences to effect
lative act touching the interests of the the object.
" The
corporation, is against sound policy, pre- subject has been twice adjudi-
judicial to correct and just legislation, cated upon in New York. In Harris v.
and void. In Gulick v. Ward, 5 Halst. 87, Roof, 10 Barb. 489, the Supreme Court
itwas decided in New Jersey that a con- held that one could not recover for ser-
tract which contravenes an act of Con- vices performed in going to see individ-
gress, and tends to defraud the United ual members of the house, to get them to
States, is void. A. had agreed to give B. aid in voting for a private claim, the ser-
$100, on condition that B. would forbear vices not being performed before the
to propose or offer himself to the Post- house as a body nor before its authorized
master-General to carry the mail on a committees. In Sedgwick v. Stanton, 4
certain mail route, and it was held that Kernan, 28!), the Court of Appeals held
the contract was against public policy the same doctrine, and stated its proper
and void. The general principle as to limits. Selden, J., makes
the following
contracts contravening public policy was comments on the case of Harris v. Roof:
discussed in that case at much length. Now, the court did not mean by this de-
'
In
Wood McCann, 6 Dana, 366, the de-
v. cision to hold that one who has a claim
fendant had employed the plaintiff to against the State may not employ com-
assist him in obtaining a legislative act in petent persons to aid him in properly
Kentucky, legalizing his divorce from a presenting such claim to the legislature,
former wife, and his marriage with his and in supporting it with the necessary
present wife. The court say A lawyer
:
'
proofs and arguments. Mr. Justice
may be entitled to compensation for writ- Hand, who delivered the opinion of the
ing a petition, or even for making a pub- court, very justly distinguishes between
lic argument before the legislature or a services of the nature of those rendered
committee thereof; but the law should in that case, and the procuring and pre-
not help him or any other person to a paring the necessary documents in sup-
recompense for exercising any personal port of a claim, or acting as counsel
influence, in any way, in any act of legis- before the legislature or some committee
lation. It is certainly important to just appointed by that body. Persons may,
and wise legislation, and therefore to the no doubt, be employed to conduct an ap-
most essential interests of the public, that plication to the legislature, as well as to
the legislature should be perfectly free conduct a suit at law and may contract
;
from any extraneous influence which may for and receive pay for their services in
either corrupt or deceive the members, or preparing documents, collecting evidence,
any of them.' making statements of facts, or preparing
" In and making
Clippinger v. Hepbaugh, 5 Watts oral or written arguments,
and S. 315, it was decided in Pennsyl- provided all these are used or designed to
vania that a contract to procure or en- be used before the legislature or some
deavor to procure the passage of an act committee thereof as a body but they ;
cannot, with propriety, be employed to paid if bill not passed, is against public
exert their personal influence with indi- policy and void.] A sale of a town
vidual members, or to labor in any form office, though by the town itself, can-
privately with such members out of the not be the consideration for a contract.
legislative halls. Whatever is laid before Meredith Ladd, 2 N. H. 517.
v. See
the legislature in writing, or spoken Carleton Whitcher,5 N. H. 196; Eddy
v.
into the private ear of individual mem- Me. 231 or to pay the expenses of a
;
Ch. J., recognizes the well-established Trist v. Child, 21 Wall. 441 McKee v. ;
right to contract and pay for professional Cheney, 52 How. (N. Y.) 144; Weed
services when the promisee is to act as at- v. Black, 2 MacArthur, 268 Sweeney v. ;
torney and counsel, but remarks that McLeod, 15 Oreg. 330, 15 Pac. 275; Cary
'
the fact appearing that persons do so act v. Western U. Tel. Co., 47 Hun, 610.
prevents any injurious effects from such Or for influence in procuring contracts.
proceeding. Such counsel is considered Tool Co. v. Norris, 2 Wall. 45. And any
as standing in the place of his principal, contract the purpose of which is to influ-
and his arguments and representations ence a public officer or body to favor per-
are weighed and considered accordingly.' sons in the performance of his public
He also admits the right of disinterested duty is void, on grounds of public policy.
persons to volunteer advice as when a
;
Ordineal v. Barry, 24 Miss. 9. The same
person is about to make a will, one may general principle will be found applied
represent to him the propriety and expe- in the following cases :
Swayze v Hull,
diency of making a bequest to a particu- 8 N. J. 54, Dec.- 399; Wood
14 Am.
lar person and so may one volunteer ad-
;
v. McCann, 6 Dana, 366; Hatzfield v.
vice to another to marry another person ; Gulden, 7 Watts, 152 ; Gill v. Davis, 12
but a promise to pay for such service is La. Ann. 219; Powers >-. Skinner, 34 Vt.
void. 274 ; Frankfort v. Winterport. 54 Me.
" v. Truax, 21 Barb. 361; Dev-
Applying the principles stated in 250; Rose
these cases to the bills which the town lin v.Brady, 32 Barb. 518; Oscanyan i>.
voted to pay, it is manifest that some of Arms Company, 103 U. S. 261 Meguire ;
the money was expended for objects that v. Corwin, 3 MacArthur, 81. See further,
are contrary to public policy, and of a post, 924, note. [^Contract of employment
most reprehensible character, and which in which employee is assured of only a
could not, therefore, form a legal consid- nominal salary and a large addition
eration for a contract." thereto is made
contingent upon the
See, further, a full discussion of the adoption by a city council of a certain
game subject, and reaching the same con- ordinance is void. Criehfield v. Ber-
clusion, by Mr. Justice Grier, in Marshall mudez Asphalt Paving Co., 174 III. 466,
v.Baltimore & Ohio R. R. Co., 16 How. 51 N. E. 552, 42 L. R. A. 347. But the
314 [Jin Richardson v. Scott's Bluff Co., fact that the manager of a corporation
69 Neb. 400, 81 N. W. 309, 80 Am. St. 682, was a member of the legislature which
A contract to render services in securing authorized the letting of a certain con-
the passage of an appropriation for a tract will not prevent the corporation's
specifiedcompensation in case the bill bidding for it if the manager is not a
should be passed, no compensation to be stockholder, and his pay is in no way
CH. VI.] OF THE ENACTMENT OF LAWS. 199
affected by the success or failure of the Forthwith, by amendment, the bill entitled
bid. StateRickards, 16 Mont. 145, 40
v. a bill to incorporate the city of Siam has
Pac. 210, 28 L. R. A. 298, 50 Am. St. 476. allafter the enacting clause stricken out,
An agreement upon a pecuniary con- and it is made to provide, as its sole
ningham, 63 Kan. 174, 65 Pac. 263, 54 the bill, and the law is passed, and the
L. R. A. 410.3' constitution at the same time saved !
ducing a new bill after the time has ex- amended after fifty days so as to make
pired when it may constitutionally be the same territory a county. Pack v.
done, as an amendment to some pending Barton, 47 Mich. 520, 11 N. W. 367. For
bill, the whole of which, except the enact- a bill to create a township from certain
ing clause, struck out to make way for
is territory may be substituted one to incor-
it. Thus, the member who thinks he porate a city in the same county. People
may possibly have occasion for the intro- v. McElroy, 72 Mich. 446, 40 N. W. 750.
duction of a new bill after the constitu- But a bill to create the County of L. out
tional period has expired, takes care to of the County of W. cannot be amended
introduce sham bills in due season which so as to make M
County out of X. Coun-
he can use as stocks to graft upon, and ty. Re Creation of New Counties, 9 Col.
which he uses irrespective of their char- 624, 21 Pac. 472. See, also, Hall v. Steele,
acter or contents. The sham bill is per- 82 Ala. 562, 2 So. 650. pf hill is amended
haps a bill to incorporate the city of Siam. in second house, it must be returned to
One of the member's constituents applies first to be acted upon. It must finally
to him for legislative permission to con- pass both houses in same form. State v.
struct a dam across the Wild Cat River. Laiche, 105 La. 84, 29 So. 700.]
200 CONSTITUTIONAL LIMITATIONS. [CH. VI.
1
Supervisors of Schuyler Co. v. Peo- tection to the public interestsand to the
ple, 25
111. 181;
Miller v. State, 3 Ohio St. citizens at large, is very clear and inde- ;
Galveston, 42 Tex. 641. The clause in Co. c. Davies. 40 Ark. 200; QStockton v.
the Constitution of Ohio is " Every bill
:
Powell, 29 Fla. 1, 10 So. 688, 15 L. R. A.
shall be fully and distinctly read on three 42.] Reading twice by title and once at
different days, unless, in case of urgency, length is sufficient. People v. McElroy,
three-fourths of the house in which it 72 Mich. 44(5, 49 N. W. 750. One read-
shall be pending shall dispense with this ing may be in committee of the whole.
"
rule ;and in Miller v. State, 3 Ohio St. Re Reading of Bills, 9 Col. 641, 21 Pac.
475, and Pirn v. Nicholson, 6 Ohio St. 477. FJ amended and passed
After bill is
176, this provision was held to be merely as amended second house, it need
in the
directory. The distinctness with which not be read three times in first house
any bill must be read cannot possibly be before amendments are concurred in by
defined by any law and it must always,
; that house. State v. Dillon, Fla. 28 ,
from the necessity of the case, rest with So. 781 (June 5, 1900) ~\
the house to determine finally whether in 2 DewCunningham, 28 Ala. 466.
v.
this particular the constitution has been Congress adopt a law by reference.
may
complied with or not; but the rule re- District of Columbia c. Washington Gas
specting three several readings on differ- Light Co., 3 Mackey, 343. See, further,
ent days is specific, and capable of being Baird v. State, 52 "Ark. 326, 12 S. W.
precisely complied with, and we do not 656; Beard v. Wilson, 567; Titusville
id.
see how, even under the rules applied to Iron Works v. Keystone Oil Co., 122 Pa.
statutes, it can be regarded as directory St. 627, 15 Atl. 917.
merely, provided it has a purpose beyond 8 Bibb
County Loan Association v.
the mere regular and orderly transaction Richards, 21 Ga. 592. And see Pulford v.
of business. That it has such a purpose, Fire Department, 31 Mich. 458. [[Where
that it is designed to prevent hasty and the laws of the State have been codified,
improvident legislation, and is therefore and certain new provisions introduced,
not a mere rule of order, but one of pro- the codemay be enacted as a whole by a
CH. VI.] OF THE ENACTMENT OF LAWS. 201
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
2
elected, is intended.
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.
Palmyra & Jackson-
2 Southworth v.
U. S. 667. For a peculiar case, see Divi-
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
" all "
lative action recognizing it as valid, of 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.
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 ;
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 Palmer, 3 Wheat,
v.
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 ;
more than one subject, which shall be ex- the title." The Constitution of Illinois
pressed in its title." Those of Michigan, is similar to that of Ohio, with the addi-
New Jersey, and Louisiana are similar, tion of the saving clause found in the Con-
substituting the word object for subject. stitution of Indiana. The provision in
The Constitutions of South Carolina, the Constitution of Colorado is similar to
Alabama, Tennessee, Arkansas, and Cali- that of Missouri. In Pennsylvania the
The " no bill
fornia contain similar provisions. provision is that except general
Constitution of New Jersey provides that, appropriation bills shall be passed contain-
"
avoid
to improper influences which may ing more than one subject, which shall be
result from intermixing in one and the clearly expressed in its title." Const, of
same act such things as have no proper 1853. Whether the word object is to have
relation to each other, every law shall any different construction from tlie word
embrace but one object, and that shall be subject, as used in these provisions, is a
expressed in the title." The Constitution question which may some time require
of Missouri contains the following pro- discussion ; but as it is evidently em-
"
vision : No bill (except general approria- ployed for precisely the same purpose, it
tion bills,which may embrace the various would seem that it ought not to have.
subjects and accounts for and on account Compare Hingle 'v. State, 24 Ind. 28, and
of which moneys are appropriated, and People v. Lawrence, 36 Barb. 177. The
except bills passed under the third sub- present Texas Constitution substitutes
division of section 44 of this article) shall which was in the earlier
subject for object,
contain more than one subject, which shall one, and it is held that the word is less
be clearly expressed in its title." The restrictive, and that an act whose subject
exception secondly referred to is to bills is the regulation of the liquor traffic is
for free public-school purposes. The Con- good though several distinct objects are
stitutions of Indiana, Oregon, and Iowa covered, for instance, regulation.of liquor
provide that "every act shall embrace but shops, collection of revenue, &c. Fahey
one subject, and matters properly con- v. State, 27 Tex. App. 146, 11 S. W. 108.
nected therewith, which subject shall be In Michigan this provision does not
expressed in the title. But if any subject apply to city ordinances. People v. Han-
shall be embraced in an act which shall rahan, 76 Mich. 611, 42 N. W. 1124.
not be expressed in the title, such act shall QThe Michigan Constitution requires an
be void only as to so much thereof as enacting clause when this is omitted
;
shall not be expressed in the title." The from the bill as it comes from the first
Constitution of Nevada provides that house, the clerk of the next cannot insert
it, but the bill must be sent back
"every law enacted by the legislature for the
shall embrace but one subject, and mat- first house, to correct it. People v. Det-
ters properly connected therewith, which tenthaler, 118 Mich. 595, 77 N. W. 450,
subject shall be briefly expressed in the 44 L. R. A. 164. Any material change
title." Tlie Constitutions of New York in title of an act after passing legislature
and Wisconsin provide that " no private and before presentation to the governor,
or local bill which may be passed by the renders the act void. Weis v. Ashley,
legislature shall embrace more than one 69 Neb. 494, 81 N. W. 318, 80 Am. St
subject, and that shall be expressed in 704.3
204 CONSTITUTIONAL LIMITATIONS. [CH. VI.
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 frontiersettlements.'" 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 many
traditionary his- politics for 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
" "
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 gave no intimation, and which might there-
titles
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.
The particularity required in stating the object. The general
2.
1
State v. County Judge of Davis Co , tion. Stewart v. Riopelle, 48 Mich. 177,
2 Iowa, 280. See State v. Silver, 9 Nev. 12 N. W. 36. [>nd see also Parks v.
227. State, 110 Ga. 760, 36 S. E. 73, that defect
Mayor, &c. of New
2
See Conner v. cured by later inclusion of the
in title is
York, 5 N. Y. 293 Davis v. State, 7 Md.
; regulation in the code.] It is enough
151. The Supreme Court of Indiana also if the title of the chapter in an author-
understand the provision in the Constitu- ized compilation is referred to in an
tion of that State to be designed, among amendatory act. People v. Howard, 73
other tilings, to assist in the codification Mich. 10, 40 N. W. 789 ; State v. Berka,
of the laws. Indiana Central Railroad 20 Neb. 375, 30 N. W. 267; but see
Co. v. Potts, 7 Ind. 681 Hingle v. State,
; Feibleman v. State, 98 Ind. 516. If the
24 Ind. 28. See People v. Institution, &c., title of an original act is good, whether
71 111. 229; State v. Ah Sam, 15 Nev. that of an amendatory act is in itself suffi-
27, 37 Am. Rep. 454 Harrison v. Super-
; cient is unimportant. State v. Ranson,
visors, 51 Wis. 645, 8 N. W. 731 Al- ; 73 Mo. 78; State v. Algood, 87 Tenn.
brecht v. State, 8 Tex. App. 216, 34 Am. 163, 10 S. W. 310. An amendment of
Rep. 737; Hope v. Mayor, &c., 72 Ga. an amended act may be upheld if the
246 State v. Ranson, 73 Mo. 78 Bum-
; ; intention is plain, though there is confu-
sted v. Govern, 47 N. J. L. 368, 1 All. 135. sion in the numbering of sections. Fen-
The form of the title during any stage ton v. Yule, 27 Neb. 758, 43 N. W. 1140.
of the legislation before it becomes a law Under an amendatory title nothing can
is immaterial. Attorney-General v. Rice, be enacted but what amends the old law.
64 Mich 385, 31 N. W. 203; State v. 111. Matter which might have come under the
Centr. R. R. Co., 33 Fed. Rep. 730. original title, but did not, cannot be intro.
These provisions do not apply to a duced. State v. Smith, 35 Minn. 257, 28
revision of the statutes required by the N. W. 241. See Tingue v. Port Chester,
constitution State v. McDaniel, 19 S. C.
: 101 N. Y. 294. n See also State v Walker,
-
114 ;
nor to an act antedating the consti- 105 La. 492; 29 So. 973 Armstrong v.
;
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.
* Woodson
r. McCulloch, 27 Ind. 223 Mayor, &c. of
;
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
section of an act entitled An act con-
'
30 State v. Silver, 9 Nev. 227 State v.
; ;
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
'
but so long as they are of the same 8 Bush, 477 Annapolis v. State, 30 Md.
;
nature, and come legitimately under one 112; Tuttle v. Strout, 7 Minn. 465; Gun-
general determination or object, we can- ter v. Dale Co., 44 Ala. 639 ; Ex parte
not say that the act is unconstitutional." Upshaw, 45 Ala. 234 State v. Price, 50 ;
Upon this subject see Indiana Central Ala. 568; Commonwealth v. Drewry, 15
Railroad Co. v. Potts, 7 Ind. 681, where Gratt. 1 People v. Hurlbut, 24 Mich. 44;
;
ster c. Syracuse, 19 N. Y. 116; Hall v. ver, 9 Nev. 227 Burke v. Monroe Co.,
;
Bunte, 20 Ind. 304 ; People v. McCallum, 77 111. 610 Blood v. Mercelliott, 63 Pa.
;
1 Neb. 182; Mauch Chunk v. McGee, St. 391 Commonwealth v. Green, 58 Pa.
;
81 Pa. St. 433. But a title and act cov- St. 226 Walker v. Dunham, 17 Ind. 483.
;
ham, 17 Ind. 483. In State r. Young, 47 purposes," but "and other games." Gar-
Ind. 450, the somewhat strict ruling was vin v. State, 13 Lea, 162. An act entitled
made, that provisions punishing intoxi- "An act to repeal certain acts therein
cation could not be embraced in an act named," is void. People v. Mellen, 32
"
entitled To
regulate the sale of intoxi- 111. 181. An act, having for its sole ob-
cating liquors." In Kurtz v. People, 33 ject to legalize certain proceedings of the
Mich. 279, the constitutional provision is Common Council of Janesville, but en-
said to be "a very wise and wholesome titled merely "An
act to legalize and
provision, intended to prevent legislators authorize the assessment of street im-
from being entrapped into the careless provements and assessments," was held
passage of bills ou matters foreign to the not to express the subject, because fail-
208 CONSTITUTIONAL LIMITATIONS. [CH. VI.
ing to specify the locality. Durkee v. tion and qualification of justices of the
Janesville, 26 Wis. 697. peace, and defining their jurisdiction,
powers, and duties in civil cases." Rob-
1
Gabbertw. Railroad Co., 11 Ind. 365;
Timm v. Harrison, 109 III. 693. The con- inson v. Skipworth, 23 Ind. 311.
8
stitution under which this decision was 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.
4 Succession of
which omits the words here italicized ; Lanzetti, 9 La. Ann.
and it may well be doubted whether the 329.
5
legal effect of the provision is varied by 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 and to define the duty of the mayor will
Supervisors, &c. v. People, 25 111.
181 ;
Mahomet
Quackenbush, 117 U. S.
v. 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 properly connected with the
is 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
Ind. 195, it was held that if the title to v. Squires, 26 Iowa, 340 Chiles v. Drake, ;
an original act is sufficient to embrace 2 Met. (Ky.) 146; Phillips v. Bridge Co.,
the matters covered by the provisions of 2 Met (Ky.) 219; Louisville, &c. Co. v.
sin act amendatory thereof, it is unneces- Ballard, 2 Met. (Ky.) 177; Phillips v.
sary to inquire whether the title of an Covington, &c. Co., 2 Met. (Ky.) 219;
amendatory act would, of itself, be suffi- Chiles v. Monroe, 4 Met. (Ky.) 72 ; Hind
cient. And see Morford v. Unger, 8 Iowa, v. Rice, 10 Bush, 528 Cannon v. Hemp-;
Ga. 639; Howell v. State, 71 Ga. 224; v. Monroe, 25 La. Ann. 598 Whited v. ;
v. People, 24 N. Y. 405 People v. Allen, ; County Court, 41 Mo. 221 State v. Mil- ;
9 Ind. 380; Mewherter v. Price, 11 Ind. 579; Walker v. State, 49 Ala. 329;
199; Reed v. State, 12 Ind. 641; Henry Simpson v. Bailey, JJ Oreg. 515; Pope v.
n. Henry, 13 Ind. 250; Igoe v. State, 14 Phifer, 3 Heisk. 682 Cannon v. Mathes,
;
ers, 39 Ind. 66; McCaslin v. State, 44 Utley, 16 Mich. 269; People v. Denahy,
Ind. 151 Williams v. State, 48 Ind. 306
; ;
20 Mich. 319; People v. Hurlbut, 24
Jackson r. Reeves, 53 Ind. 231 Railroad ;
Mich. 44 ;
Kurtz v. People, 33 Mich.
Co. v. Gregory, 15 111. 20; Firemen's 279; Hathaway v. New Baltimore, 48
Association v. Ixmnsbury, 21 111. 511 ;
Mich. 251, 12 N. W. 186; Attorney-Ger-
Ottawa r. People, 48 III. 233; Prescott eral v. Joy, 55 Mich. 94, 20 N. W. 806 ;
v. City of Chit-ago, 60 111. 121 ; People v. 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. cluding the franchise of the company, at
77 Morton v. Comptroller-General, 4
; public auction, to the highest bidder. It
S. C. 430; State v. Gurney, 4 S. C. 520; was then declared that the sale should be
Norman v. Curry, 27 Ark. 440 Division ; absolute, and that it should vest in the
ofHoward County, 15 Kan. 194 Simp- ; purchaser or purchasers of property, tlie
lusion, or was founded in fraud, he should made or incurred in the extension of the
take the proper and necessary means to road from Lockport to Rochester, &c.
open and reverse the same, &c. This The whole act was held to be constitu-
provision was held constitutional, as prop- tional. Hosier v. Hilton, 15 Barb. 657.
erly connected with the subject indicated An act for the relief of the village of
by the title, and necessary to confine the Clinton covers curative provisions rel-
payments of the tax to the objects for ative to the action of commissioners
which the moneys were intended to be for village water-supply. Board Water
raised. Sharp v. Mayor, &c. of New York, Commissioners v. Dwight, 101 N. Y. 9.
31 Barb. 572. In O'Leary v. Cook Co., An act to regulate foreclosure of real
28 111. 534, it was held that a clause in an estate covers provisions for sales on
act incorporating a college, prohibiting execution as well as mortgage. Gillitt
the sale of ardent spirits within a dis- v. McCarthy, 34 Minn. 318, 25 N. W. 637.
tance of four miles, was so germaine to One to prohibit sale of liquor covers civil
the primary object of the charter as damage provisions. Durein v. Pontious,
to be properly included within it. By 34 Kan. 353, 8 Pac. 428. And see Mills
" an act for the v. Charleton, 29 Wis. 400, a very lib-
the first section of relief
of the creditors of the Lockport and eral case Erlinger v. Boneau, 51 111. 94
; ;
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
of Civil Procedure of the State of Cali-
son, 104 La. 249, 28 So. 917, 81 Am. St.
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
;
1
People v. Briggs, 50 N. Y. 553. See N. W. 344; State v. Palmes, 23 Fla. 620,
Van Riper v. North Plainfield, 43 N. J. 3 So. 171; Jones v. Thompson, 12 Bush,
349; Central, &c. R. R. Co. i>. People, 5 394 QEquit. G. Trust Co. v. Donahoe,
;
?. Kramis, 20 Ind. 490 Grubbs v. State, ; ris i>. State, 110 Ga. 887, 36 S. E. 232;
24 Ind. 295; State v. Young, 47 Ind. 150; State v. McDonald, 25 Wash. 122, 64 Pac.
Robinson v. Bank of Darien, 18 Ga. 65 ;
912 Re Werner, 129 Cal. 567, 62 Pac. 97 ;
;
144; State v. Banker's, &c. Assn., 23 tion. State v. Burgdoerfer, 107 Mo. 1, 1 T
Kan. 499 Rader v. Union, 39 N. J. 509;
; S. W. 646, 14 L. R. A. 846 Dover /-.
;
Evernliam v. Hulit, 45 N. J. L. 53; Miss., Grand Rapids Fire Ins. Co., 124 Mic'.i.
&c. Boom Co. v. Prince, 34 Minn. 79, 24 455, 83 N. W. 124, 83 Am. St. 338.]
CH. VI.] OF THE ENACTMENT OF LAWS. 213
1
Mewherterv Price, 11 Ind. 199. See Miller v. Jones, 80 Ala. 80; People v.
only 01 e of which is specified in the title, v. Sholes, 118 Pa. St. 165, 12 Atl. 302;
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.
1
This is the provision as it is found in cedure established by other acts. Camp-
the Constitutions of Indiana, Nevada,Ore- bell v. Board, &c., 47 N. J. L. 347 Be
;
gon, Texas, and Virginia. In Kansas, Camp v. Hibernia R. R. Co., id. 43. But
New Jersey, Ohio, Michigan, Louisiana, the act must be complete in all essentials.
Wisconsin, [[Utah,] Missouri, and Mary- Christie v. Bayonne, 48 N. J. L. 407, 5 All.
land there are provisions of similar im- 805; Donohugh v. Roberts, 15 Phila. 144.
port. In Tennessee the provision is : In Texas it appears to beheld that the
"
All acts which revive, repeal, or amend legislature may repeal a definite portion
former laws, shall recite, in their caption of a section without the re-enactment of
or otherwise, the title or substance of the section with such portion omitted.
the law repealed, revived, or amended." Chambers v. State, 25 Tex. 307. But
Art. 1, 17. See State v. Gaines, 1 Lea, quaere of this. portion of a section
Any
734 McGhee v. State, 2 Lea, 622. The
;
amended which not contained in the
is
provision in Nebraska (Const, of 1875) is amendatory section as set forth and pub-
"
peculiar. No law shall be amended lished is repealed. State v. Ingersoll, 17
unless the new act contains the section Wis. 631. [[But where the provisions of
or sections so amended, and the section an act applying to a certain city are
or sections so amended shall be repealed." made to apply to another, this is not an
Art. 3, 11. Under a like provision that amendment of the original act. Phrenix
any section amended is thereby repealed, Fire Assurance Co. v. Montgomery Fire
it is held in Alabama that an amend- Dept., 117 Ala. 631, 23 So. 843, 42 L. R.
ment to an amended .statute is valid. A. 468.] Further on this subject see
State v. Warford, 84 Ala. 15, 3 So. 911. Blakemore v. Dolan, 50 Ind. 194 ; People
So where the amendment impliedly re- v.Wright, 70 111. 388 Jones v. Davis, 6
;
pealed the original act, an amendment to Neb. 33 Sovereign v. State, 7 Neb. 409
; ;
the amended act was held valid, as the Gordon v. People, 44 Mich. 485, 7 N. W.
mistake in referring to a repealed stat- 69; State v. Gerger, 65 Mo. 306; Van
ute should not defeat the intention of Riper v. Parsons, 40 N. J. 123, 29 Am.
the legislature. Com. r. Kenneson, 143 Rep. 210; Fleishnerr. Chad wick, 5 Oreg.
Mass. 418, 9 N. E. 761. Under provisions 152; State v. Cain, 8 W. Va. 720; State
forbidding enactments by reference a law v. Henderson, 32 La. Ann. 779; Colwell
ing out its purposes by reference to pro- 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
4
only tends to render the statute unnecessarily cumbrous. It
should be observed that statutes which amend others by impli-
cation are not within this provision and it is not essential that ;
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
Walker v. Caldwell, 4 La. Ann. 297
2
;
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 the legislature to enact a code or
Langdon Applegate, 5 Ind. 327
v. ;
of
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 5
Bridge Co. v. Olm- 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
;
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
1
See cases cited in last note also ;
to cover the whole subject to which it
Towle v. Marrett, 3 Me. 22, 14 Am. Dec. will
relates, by implication repeal all
it
206 ; Naylor v. Field, 29 N. J. 287 State ; prior stntutes on that subject. See United
v. Berry, 12 Iowa, 58; Attorney-General States v. Barr, 4 Sawyer, 254; United
v. Brown, 1 Wis. 613 ; Dodge v. Gridley, States v. Claflin, 97 U. S. 546 ;
Red Rock
10 Ohio, 173; Him v. State, 1 Ohio St. v. Henry, 106 U. S. 596, 1 Sup. Ct. Rep.
20 Saul v. Creditors, 5 Mart. N. s. 669, 16
;
434 Dowdell v. State, 58 Ind. 333 State
; ;
Am. Dec. 212; New Orleans v. Southern v. Rogers, 10 Nev. 319; Tafoya v. Garcia,
Bank, 15 La. Ann. 89; Blain v. Bailey, 25 1 New Mex. 480; Campbell's Case, 1 Dak.
Ind. 165; Water Works Co. v. Burkhart, 17, W. 504; Andrews v. People, 75
46 N.
41 Ind. 364 Swann v. Buck, 40 Miss. 268
; ;
111.605; Clay Co. v. Chickasaw Co., 64
Davis v. State, 7 Md. 151 State c. The
;
Miss. 534, 1 So. 753 Lyddy r. Long Island ;
Treasurer, 41 Mo. 16; Somerset & Stoys- City, 104 N. Y. 218; Stingle r. Nevel, 9
town Road, 74 Pa. St. 61 Kilgore v. ; Oreg. 62; State v. Studt, 31 Kan. 245, I
Commonwealth, 94 Pa. St. 495; McCool Pac. 635. But a local option law merely
i'. Smith, 1 Black, 459; State v. Cain, 8 suspends, does not repeal a former liquor
W. Va. 720; Fleischner v. Chad wick, 5 law, and after its adoption offences against
Oreg. 152; Covington v. East St. Louis, the latter while in force may be prose-
78 111. 518; East St. Louis i;. Maxwell, 99 cuted. Winterton v. State, 65 Miss. 238,
Greeley r. Jacksonville, 17 Fla. 174; Bay, &c. R. R. Co., 36 Wis. 383 Coving- ;
Tobacco, 11 Wall. 652; Cape Girardeau peake, &c. Co. v. Hoard, 16 W. Va. 270;
Co. Ct. v. Hill, 118 U. S. 68, 6 Sup. Ct. Rounds v. Waymart, 81 Pa. St. 395; E.c
Rep. 951. If the two are repugnant in parte Schmidt, 24 S. C. 363 New Bruns- ;
part, the earlier is pro tanto repealed. wick v. Williamson, 44 N. J. L. 165; Mc-
Hearn v. Brogan, 64 Miss. 334 Jefferson- ;
Gruder v. State, 83 Ga. 616, 10 S. E. 281.
8 Dwarris on
ville, &c. R. R. Co. v. Dunlap, 112 Ind. 93, Statutes, Vol. I. p. 269 ;
13 N. E. 403. A law which merely re- Sedgw on Stat. and Const. Law, 122;
enacts a former one does not repeal an Smith on Stat. and Const. Construction,
intermediate act qualifying such former 908.
act. The new is qualified like the old.
* Ibid. And see Spencer v. State, 5
Gaston Merriam, 33 Minn. 271, 22 N. W.
v. Ind. 41.
6
614. It is a familiar rule, however, that Spencer v. State, 5 Ind. 41; Attor-
when a new statute is evidently intended ney-General v. Brown, 1 Wis. C13; Smith
218 CONSTITUTIONAL LIMITATIONS. [CH. VI.
Signing of Bills.
Whena 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-
1
pensed with; 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; the same as it passed the two houses.
Mobile & Ohio Railroad Co. v. State, 29 People o. Platt, 2 S. C. N. s. 150; Legg
Ala. 573; Strauss r. Heiss, 48 Md. 292. v. Annapolis, 42 Md. 203 Brady c. West
;
The later of two acts passed at the same 50 Miss. 68. But a clerical error that
session controls when they
are incon- would not mislead is to be overlooked.
sistent. Thomas v. Collins, 58 Mich. 64, People v. Supervisor of Onondaga, 16
24 N. W. 553 Watson v. Kent, 78 Ala.
;
Mich. 254. Compare Smith v. Hoyt, 14
602. But the fact of later publication Wis. 252, where the error was in publi-
when action taken at the same time
is cation. And so should accidental and
will not work a repeal. In re Hall, 38 immaterial changes in the transmission
Kan. 670, 17 Pac. 649. Where acts of the bill from one house to the other.
passed on different days are approved on Larrison v. Railroad Co., 77 111. 11 Wal- ;
the same day, the presumption is that nut v. Wade, 103 U. S. 683. See Wen-
the one passed last was signed last. State ner v. Thornton, 98 111. 156. When a
v. Davis, 70 Md. 237, 16 All. 529. mistake in enrolment made an approval
1
Moody v. State, 48 Ala. 115, 17 Am. void, signatures and approval on a cor-
Rep. 28; State v. Mead, 71 Mo. 266; rect roll after the adjournment were held
Burritt v. Com'rs, 120 111. 322, 11 N. E. to make the act valid. Dow v. Beidel-
180; State v. Kiesewetter, 45 Ohio St. man, 49 Ark. 325, 6 S. W. 297. In Mary-
254, 12 N. E. 807 ;
Hunt v. State, 22 Tex. land the governor may refuse to consider
App. 396, 3 S. W. 233. Signature by any bill sent him not authenticated by
presiding officers and assistant secretary the Great Seal. Hamilton v. State, 61
is enough. State v. Glenn, 18 Nev. 34, Md. 14. Qln Nevada where the governor
1 Pac. 186. But if the journal shows vetoes an act after the adjournment of
the passage of an act and the governor the legislature, the next legislature may
signs it, absence of signature of the presi- pass it over his veto. Upon such pas-
dent of the Senate will not invalidate sage, the presiding officers of the two
it. Taylor v. Wilson, 17 Neb. 88, 22 houses must thereupon sign it. State v.
N. W. 119. After an act has been passed Howell, Nev. 64 Pac. 466 (April 8,
,
(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. 759.] W.
(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
presenting the bill to the governor should dence that the actual approval was not
be excluded. Opinions of Judges, 45 until the next day. In support of this
N. H. 607 ; Iron Mountain Co. v. Haight, ruling, People v. Purdy, 2 Hill, 31, was
39 Cal. 540; In re Senate Resolution, cited, where it was held that the court
9 Col. 632, 21 Pac. 475. And if the last might go behind the statute-book and
day falls on Sunday he may return the inquire whether an act to which a two-
bill on Monday, id. As to the power of thirds vote was essential had constitution-
the governor, derived from long usage, ally passed. That, however, would not
to approve and sign bills after the ad- be in direct contradiction of the record,
journment of the legislature, see Solomon but it would be inquiring into a fact con-
v. Cartersville, 41 Ga. 157. cerning which the statute was silent, and
Neither house can, without the con- other records supplied the needed infor-
sent of the other, recall a bill after its mation. In Indiana it is held that the
transmission to the governor. People v. courts cannot look beyond the enrolled
Devlin, S3 N. Y. 269. In Colorado the act to ascertain whether there has been
legislature may request the return of a compliance with the requirement of the
bill in the governor's hands, but he may constitution that no bill shall be pre-
respond or not as he likes. If he sends sented to the governor within two days
back the bill, it may be reconsidered and next previous to the final adjournment.
amended. Re Recalling Bills, 9 Col. 630, Bender r. State, 53 Ind. 254. [In Mary-
21 Pac. 474. But in Virginia no such land a bill may be signed within six days
recall is authorized. Wolfe v. McCaull, after it is submitted, although the legisla-
76 Va. 876. ture may have adjourned. The bill may
The delivery of a bill passed by the even be presented after the adjournment.
two houses to the secretary of the com- Lankford v. Somerset Co., 73 Md. 105, 20
monwealth according to custom, is not a Atl. 1017, 22 Atl. 412, 11 L. R. A. 491.
presentation to the governor for his ap- See upon this question, paper of E. D.
proval, within the meaning of the con- Renick and cases cited in it, 32 Am. Law
stitutional clause which limits him to a Rev. 208.]
certain number of days after the presen-
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
1 8 and
Stinson v. Smith, 8 Minn. 366. See People v. Bowen, 30 Barb. 24,
alsoCorwin v Comptroller, 6 Rich. 390. 21 N. Y. 517.See also State v. Fagnn,
In South Carolina a bill sent to the gov- 22 La. Ann. 645 Solomon K. Commis-
;
ernor on the last day of the first session sioners, 41 Ga. 157;Darling v. Boesch, 67
may be signed by him on the first day of Iowa, 702, 25 N. W. 887 Seven Hickory ;
the next regular session, notwithstanding v. Ellery, 103 U. S. 423. It seems that
an adjourned session has intervened. Ar- in Nebraska, in a similar provision, by
nold v. McKellur, 9 S. C. 335. In Miss- "adjournment" meant the final ad-
is
issippi if a bill is presented within ten journment and ; the same session is
if
days of the adjournment, it may be ap- adjourned for a time in this case two
proved at any time before the third day months the governor must act upon
of the next session. State v. Coahoma the bill within the specified number of
Co 64 Miss. 358, 11 So. 601. n The Con-
.
days. Miller v. Hurford, 11 Neb. 377,
stitution of Michigan contains a provi- 9 N. W. 477. Where on the tenth day
sion similar to that of Minnesota above the governor sent a bill with his objec-
quoted, except that it provides five days tions to the house with which it origin-
instead of three. Held, that such provi- ated, but messenger, finding the
the
sion makes a signature good that is at- house had adjourned for the day, re-
tached within the required ten days after turned it to the governor, who retained
passage of bill and not later than five it, it was held that to prevent the bill be-
days after adjournment. The question coming a law it should have been left
arose in regard to a bill passed less than with the proper officer of the house in-
ten days and more than five days before stead of being retained by the governor.
adjournment, and signed after adjourn- Harpending Haight, 39 Cal. 189.
v. In
ment, but within ten days after passage response to an unauthorized request, the
of bill. Detroit v. Chapin, 108 Mich. 136, governor returned a bill without objec-
66 N. W. 587, 37 L. R. A. 391 and upon ; tions. The constitution provided that a
right of executive to sign bills after ad- bill, if not returned in five days, became
journment of legislature, see note to this law without his signature. Held, that his
case in L. R. A. In Nevada, upon bills return was not covered by the provision,
sent to him during
last five days of ses- and that the bill became a law notwith-
sion, governor may act within ten days standing. Wolfe v. McCaull, 76 Va. 876.
after adjournment. State v. Howell, *
People P. Hatch, 19 III. 283. An
Nev. 64 Pac. 466 (April 8, 1901)."]
, act apportioning the representatives was
2
See McNeil v. Commonwealth, 12 passed by the legislature and transmitted
Bush, 727. In computing the ten days, to the governor, who signed his approval
the first day should be excluded. Beau- thereon by mistake, supposing at the
Heau v. Cape Girardeau, 71 Mo. 392. time that he was subscribing one of sev-
CH. VI.] OF THE ENACTMENT OF LAWS. 221
eral other bills tlien lying before him, and be returned by the governor within three
claiming his official attention ; his private days, Sundays excepted, after it shall
secretary thereupon reported the bill to have been presented to him, it shall be a
the legislature as approved, not by the law without his signature, unless the gen-
special direction of the governor, nor eral adjournment shall prevent its return ;
with his knowledge or special assent, but in which case it shall be a law unless the
merely in his usual routine of customary governor, within five days next after the
duty, the governor not being conscious adjournment, shall file such bill, with his
that he had placed his signature to the objections thereto, in the office of the
information was brought
bill until after secretary of state," &c. Under this pro-
to him of its having been reported ap- vision it was held that where the gover-
proved whereupon he sent a message to
; nor, on the day of the final adjournment
the speaker of the house to which it was of the legislature, and after the adjourn-
reported, stating that it had been inad- ment, filed a bill received that day, in the
vertently signed and not approved, and office of the secretary of state, without
on the same day completed a veto message approval or objections thereto, it thereby
of the bill, which was partially written became a law, and he could not file ob-
at the time of signing his approval, and jections afterwards. Tarlton v. Peggs, 18
transmitted it to the house where the bill Ind. 24. See State v. Whisner, 35 Kan.
originated, having first erased his signa- 271, 10 Pac. 852. If in approving a bill
ture and approval. was held that the
It the governor signs in the wrong place,
bill had not become a law. It had never he may
sign again after adjournment.
passed out of the governor's possession Nat. Land and Loan Co. v. Mead, 60 Vt.
afterit was received by him until after he 257, 14 Atl. 689.
had erased his signature and approval ;
Anact of the legislature takes effect
and the court was of opinion that it did when the governor signs it, unless the
not pass from his control until it had be- constitution contains some different pro-
come a law by the lapse of ten days under vision. v. State, 5 Lea, 725.
Hill
the constitution, or by his depositing it 1 A which, as approved and signed,
bill
with his approval in the office of the sec- differs in important particulars from the
retary of state. It had long been the one signed, is no law. Jones v. Hutchin-
practice of the governor to report, for- son, 43 Ala. 721.
merly througli the secretary of state, but If the governor sends back a bill which
recently through his private secretary, has been submitted to him, stating that he
to the house where bills originated, his cannot act upon it because of some sup-
approval of them but this was only a
; posed informality in its passage, this is in
matter of formal courtesy, and not a effect an objection to the bill, and it can
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 Assembly of the State, in which the full
of dissolving the Parliament and appeal- and exclusive legislative authority of the
ing to the people, it must follow that State is Where its business at
vested.
any bill which the two houses have passed such session not restricted by some
is
must be approved by the monarch. The constitutional provision, the General As-
approval has become a matter of course, sembly may enact any law at a special
and the governing power in Great Britain or extra session that it might at a reg-
is substantially in the House of Com- ular session. Its powers, not being de-
mons. 1 Bl. Com. 184-185, and notes. rived from the governor's proclamation,
Q After the bill has been vetoed it is dead are not confined to the special purpose
unless repassed by the constitutional for which it may have been convened by
majorities, even though received those
it him."
2
majorities on its first passage. State v. Provisions to this effect will be found
Crounse, 36 Neb. 835, 55 N. W. 246, 20 in the Constitutions of Illinois, Michigan,
L. R. A. 265.] Missouri, and Nevada
perhaps in some;
1 The
Constitution of Iowa, art. 4, others. As to what matters are held em-
"
provides that the governor may,
11, braced in such call, see State v. Shores, 31
on extraordinary occasions, convene the W. Va. 491, 7 S. E. 413 Baldwin v. State,;
shall state to both houses, when assem- Mo. Pac. R. Co., 110 Mo. 286, 19 S. W.
bled, the purpose for which they have 530, 15 L. R. A. 847 Chicago, B. & Q. R.
;
been convened." It was held in Morford Co. v. Wolfe, 61 Neb. 502, 86 N. W. 441 ;
v. Unger, 8 Iowa, 82, that the General People v. Curry, 130 Cal. 82, 62 Pac. 516.]
Assembly, when thus convened, were not Confirmation of appointment by the Sen-
confined in their legislation to the pur- ate may be made. The limitation is upon
"
poses specified in the message. When legislation. People v. Blanding, 63 Cal.
lawfully convened, whether in virtue of 333.
the provision in the constitution or the 8 1 Lev. 91 Latless v. Holmes, 4 T.
;
'
governor's proclamation, it is the General 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
Hamlet v. Taylor, 5 Jones L. 36. This 725. Others hold that it has effect from
ischanged by 33 Geo. III. c. 13, by which the moment of
approval by the gov-
its
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.
2 Art. See State v. Coahoma
unless otherwise ordered therein. 7, 6.
Matthews v. Zane, 7 Wheat. 164
J
; Co., 64 Miss. 358.
8
Rathbone v. Bradford, 1 Ala. 312; Branch Art. 3, 23. The intention that an
Bank of Mobile Murpliy, 8 Ala. 119;
v. 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
;
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
2
operation.
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-
;
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
1
public laws, as the statute of the State would require. 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. The 2
4
accordingly, though not published in the official gazette. 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 which does not change its sub-
statute,
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.
2
supra. See Eitel v. State, 33 Ind. 201. 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. 17 La. Ann. 390, 392.
Ellis,
Judge, 14 La. Ann. 486;
*
authorizing it to issue bonds in aid of a State v.
CHAPTER VII.
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 evidentto any one that the power to declare a
(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-
" Harvard
lished in the October, 1893, number of the 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.
1
There are at least two cases in Amer- April, 1808, and though nearly twenty-
ican judicial history where judges have seven years old, he was very youthful in
been impeached as criminals for refusing his appearance. He held the office until
to enforce unconstitutional enactments. March 4, 1810, when he sent his resigna-
One of these the case of Trevett v. tion to Governor Huntingdon. Dur- . . .
Weedon, decided by the Superior Court ing his term of service upon the bench
of Rhode Island in 1786 is particu- many interesting questions were presented
larly interesting as being the first well- for decision, and among them the consti-
authenticated case in which a legislative tutionality of some portion of theact of
enactment was held to be void because 1805, defining the duties of justices of the
of conflict with the State constitution. peace ; and he decided that so much of
Mr. Arnold, in his history of Rhode the fifth section as gave justices of the
Inland, Vol. II. c. 24, gives an account peace jurisdiction exceeding $20, and so
of this case; and the printed brief in much of the twenty -ninth section as pre-
opposition to the law, and in defence of vented plaintiffs from recovering costs in
the impeached judges, is in possession of actions commenced by original writs in
the present writer. The act in question the Court of Common Pleas, for sums be-
was one which imposed a heavy penalty tween $20 and $50, were repugnant to the
on any one who should refuse to receive Constitution of tiie United States and of
on the same terms as specie the bills of a the State of Ohio, and therefore null and
bank chartered by the State, or who void. . .The clamor and abuse to which
.
should in any way discourage the circu- this decision gave rise was not in the
lation of such bills. The penalty was least mitigated or diminished by the cir-
made on summary conviction,
collectible cumstance that was concurred in by
it
without jury trial; and the act was held a majority of the judges of the Supreme
void on the ground that jury trial was Court, Messrs. Huntingdon and Tod. . . .
expressly givn by the colonial charter, At the session of the legislature of 1807-8,
which then constituted the constitution of steps were taken to impeach him and the
the State. Although the judges were not judges of the Supreme Court who con-
removed on impeachment, the legislature curred with him but the resolutions in-
;
refused to re-elect them when their terms troduced into the House were not acted
expired at the end of the year, and sup- upon during the session. But the scheme
planted them by more pliant tools, by was not abandoned. At an early day of
whose assistance the paper money was the next session, and with almost inde-
forced into circulation, and public and cent haste, a committee was appointed
private debts extinguished by means of to inquire into the conduct of the offend-
it. Concerning the other case, we copy ing judges, and with leave to exhibit
from the Western Law Monthly, " Sketch articles of
impeachment, or report other-
of Hon. Calvin Pease," Vol. V. p. 3, wise, asthe facts might justify. The
June, 1863: "The first session of the committee without delay reported articles
Supreme Court [of Ohio] under the con- of impeachment against Messrs. I'ease
stitution was held at Warren, Trumbull and Tod, but not against Huntingdon,
County, on the first Tuesday of June, who in the mean time had been elected
1803. The State was divided into three governor of the State. The articles
. . .
were not only an assault upon the wis- to discover any principle of justice which
dom and dignity, but also upon the su- can require a magistrate to enter upon
premacy of the legislature, which passed the execution of a statute when he be-
the act in question. This could not be lieves it to be invalid, especially when he
endured and the popular fury against
; must'thereby subject himself to prosecu-
the judges rose to a very high pitch, and tion, without any indemnity in the law if
the senator from the county of Trumbull it proves to be invalid. Undoubtedly
in the legislature at time, Calvin
that when the highest courts in the land hesi-
Cone, Esq., took no
pains to soothe tate to declare a law unconstitutional, and
the offended dignity of the members of allow much weight to the legislative judg-
that body, or their sympathizing con- ment, the inferior courts should be still
CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 231
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
1
disquisition is entitled." 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 ofwithout considering it, and
when consequently a decision upon such question will be
unavoidable. 2
more reluctantto exercise this power, and decide which is to prevail and the con- ;
tered by any judicial decision properly in a plain case, is it less so when the con-
"
binding upon him, must follow his own structionbecomes more difficult ?
sense of duty upon constitutional as well 1 Hoover v. Wood, 9 Ind. 286, 287 Ire- ;
as upon any other questions. See Miller land v. Turnpike Co., 19 Ohio St. 369;
v. State, 3 Ohio St. 475; Pirn v. Nicholson, Smith v. Speed, 50 Ala. 276; Allor v.
6 Ohio St. 176 Mayberry v. Kelly, 1 Kan.
; Auditors, 43 Mich. 76, 4 N. W. 492;
116. In the case last cited it is said " It
: Board of Education v. Mayor of Bruns-
is claimed by counsel for the plaintiff in wick, 72 Ga. 353. See People v. Kenney,
error, that the point raised by the instruc- 96 N. Y. 294.
tion is, that inferior courts and ministerial 2 Ex parte Randolph, 2 Brock. 447 ;
officers have no right to judge of the con- Frees v.Ford, 6 N. Y. 176, 178 Cumber- ;
ions. The constitution is law, the fun- Co., 59 Kan. 427, 53 Pac. 408, 52 L. R. A.
damental law, and must as much be 321, aff. sub nom. Clark v. Kansas City in
taken into consideration by a justice of 176 U. S. 114, 20 Sup. Ct. Rep. 284. The
the peace as by any other tribunal. When constitutional question mny be first raised
two laws apparently conflict, it is the in the court of review. Monticello D. Co.
duty of all courts to construe them. If v. Mayor of Baltimore, 90 Md. 416, 45
the conflict is irreconcilable, they must 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 legislature, therefore, concurs with well-established
the
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
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 ;
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.
4
Albany County Supers, v. Stanley, 105 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.
;
(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.
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.
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
should pass a law
If the legislature 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 State, 6 Ind. 501, 528,
v.
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,
;
1
expediency with the law-making power. 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-
v. Reinhard, 73 Pa. St. 370; Chicago, man Virginia Iron Co., 5 W. Va. 22 ;
v.
Martin v. Dix, 52 Miss. 52, 64, per Chal- monwealth, 2 Litt. 90; State v. Ashley,
mers, J. Bennett v. Boggs, Baldw. 60, 74;
; 1 Ark. 513 Campbell v. Union Bank,
;
United States v. Brown, 1 Deady, 566; 7 Miss. 625 Tate's Ex'r v. Bell, 4 Yerg.
;
Commonwealth v. Moore, 25 Gratt. 951; 202, 26 Am. Dec. 221 Andrews v. State, ;
1
Perkins, J., Madison & Indian-
in State, 22 Md. 468; State v. Lyles, 1
apolis Railroad Co. v. Whiteneck, 8 Ind. McCord, 238; Myers v. English, 9 Cal.
217 ;
Bull v. Read, 13 Gratt. 78, per Lee, 341; Ex parte Newman, 9 Cal. 502; Ho-
J. A stittute cannot be declared void bart v. Supervisors, 17 Cal. 23 Crenshaw ;
because against public policy. Julien v. v. Slate River Co., 6 Rand. 245 ; Lewis v.
561.] So in Canada it is held that an act 4 Me. 140 ; Lunt's Case, 6 Me. 412 Scott ;
within the scope of legislative power can- v. Smart's Ex'rs, 1 Mich. 295 Williams ;
a
Village of Corning, 15 N. Y.
Sill v. son, 1 Kan. 17 Santo v. State, 2 Iowa,
;
297; Varick v. Smith, 5 Paige, 136 ; Coch- 165 Morrison v. Springer, 15 Iowa, 304;
;
ran v. Van Surlay, 20 Wend. 365; Morris Stoddart v. Smith, 5 Binn. 355 Moore v. ;
Pick. 60; Dawson Blackf. v. Shaver, 1 Home v. Dorrance, 2 Dall. 309 Calder ;
Doe v. Douglass, 8 Blackf. 10 Maize v. ; Dall. 14; Fletcher v. Peck, 6 Cranch, 87.
State, 4 Ind. 342; Stocking v. State, 7
238 CONSTITUTIONAL LIMITATIONS. [CH. VII.
VI. Nor are the courts at liberty to declare an act void, because
1
People v. Draper, 15 N. Y. 532. See representation go together which requires
post, pp. 261-266. that the body paying the tax shall alone
2
In People v. Mahaney, 13 Mich. 481, be consulted in its assessment; and if
500, where the Metropolitan Police Act there were, we should find it violated at
of Detroit was claimed to be unconstitu- every turn in our system. The State
tional on various grounds, the court say : legislature not only has a control in this
" Besides the
specific objections made to respect over inferior municipalities, which
the act as opposed to the provisions of the it exercises by general laws, but it some-
constitution, the counsel for respondent times finds it necessary to interpose its
attacks it on 'general principles,' and espe- power in special cases to prevent unjust
ciallybecause violating fundamental prin- or burdensome taxation, as well as to
ciples of our system, that governments compel the performance of a clear duty.
exist by the consent of the governed, The constitution itself, by one of the
and that taxation and representation go clauses referred to, requires the legis-
together. The taxation under the act, it lature to exercise its control over the
is said, is really in the hands of a police taxation of municipal corporations, by re-
board, a body in *the choice of which the stricting it to what that body may regard
people of Detroit have no voice. This as proper bounds. And municipal bodies
argument is one which might be pressed are frequently compelled most unwillingly
upon the legislative department with to levy taxes for the payment of claims,
great force, if it were true in point of by the judgments or mandates of courts
fact. But as the people of Detroit are in which their representation is quite as
really represented throughout, the diffi- remote as that of the people of Detroit in
culty suggested can hardly be regarded this police board. It cannot therefore be
as fundamental. They were represented said that the maxims referred to have
which passed the act,
in the legislature been entirely disregarded by the legis-
and had the same proportionate voice lature in the passage of this act. But as
there with the other municipalities in the counsel do not claim that, in so far as
State, all of winch receive from that body they have been departed from, the consti-
their powers of local government, and tution has been violated, we cannot, with
such only as its wisdom shall prescribe propriety, be asked to declare the act
within the constitutional limit. They void on any such general objection."
were represented body when the
in that And see Wynehamer v. People, 13 N. Y.
present police board were appointed by 378, per Selden, J. ;
Benson v. Mayor, &c.
it, and the governor, who is hereafter to of Albany, 24 Barb. 248 et seq. ; Baltimore
vacancies, will be chosen by the State
fill v. State, 15 Md. 376 ; People v. Draper, 15
53 L. R. A. 837, the text upon the ques- L. R. A. 776 (May 28, 1902).]
CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 241
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
:
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.
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. 18 Am. Hep. 663.
1, 9,
2
244 Sears v. Cottrell, 5 Mich. 250 Peo-
; ; Corning, 15 N. Y. 297, 303.
Sill v.
3 A remarkable case of evasion to
pie v. New York Central Railroad Co.,
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
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 6
Post, pp. 592-595, and cases cited. 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 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
;
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
;
" A
law that is unconstitutional is so be- R. I. 64 Armstrong v. Jackson, 1 Blackf.
;
Charlestown, 2 Gray, 84; Wellington, 29 Ala. 573 South & N. Ala. R. R. Co.
;
v. Hitchings, 6 Gray, 482; Common- 2 Iowa, 165; State i;. Cox, 3 Eng. 436;
CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 247
2
inseparably connected in substance. 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. invalid provisions, and will be upheld so
26 Exc-hange Bank v. Hines, 3 Ohio St.
;
far as itwithin the valid portions.
is
Kan. 314; In re Groffs, 21 Neb. 647, R. Co., 178 U. S. 321, 20 Sup. Ct. Rep.
33 N. W. 426 State v. Tuttle, 53 Wis.
; 949, aff. 70 Conn. 326, 39 Atl. 443J
45, 9 N. W. 791 People v. Hall, 8 Col.
; Although a proviso is ineffectual because
485, 9 Pac. 34. "To the extent of the unconstitutional, it cannot be disregarded
collision and repugnancy, the law of the when the intention of the legislature is in
State must yield and to that extent, and
; question. Commonwealth v. Potts, 79
no further, it is rendered by such repug- Pa. St. 164.
narcy inoperative and void." Common-
2
Commonwealth v. Hitchings, 5 Gray,
weilth v.Kimball, 24 Pick. 359, 361, per 482; Willard v. People, 5 111. 461 Eells ;
28i; Eckhart v. State, 6 W. Va. 515. 22 Cal. 379 State v. Easterbrook, 3 Nev.
;
Where the portions are separable, action 173; Hagerstown v. Dechert, 32 Md.
under the statute will be presumed to 369 People v. Kenney, 96 N. Y. 294.
;
1 Santo v.
State, 2 Iowa, 165. But posed they were without power to adopt
perhaps the doctrine of sustaining one the void part of the act, they would have
part of a statute when the other is void made an essentially different provision
was carried to an extreme in this case. by the other. See also People v. Bull, 46
A prohibitor\' liquor law had been passed N. Y. 57, where part of an act was sus-
which was not objectionable on constitu- tained which probably would not have
tional grounds, except that the last sec- been adopted by the legislature sepa-
tion provided that
" the It must be obvious, in any case
question of pro- rately.
hibiting the sale and manufacture of where part of an act is set aside as un-
intoxicating liquor" should be submitted constitutional, that it is unsafe to indulge
to the electors of the State, and if it in the same extreme presumptions in
should appear " that a majority of the support of the remainder that are allow-
votes cast as aforesaid, upon said ques- able in support of a complete act when
tion of prohibition, shall be for the pro- some cause of invalidity is suggested to
hibitory liquor law, then this act shall the whole of it. In the latter case, we
take effect on the first day of July, 1855." know the legislature designed the whole
The court held this to be an attempt by act to have effect, and we should sustain
the legislature to shift the exercise of it if possible ;
in the former, we do not
legislative power from themselves to the know that the legislature would have
people, and therefore void but they also
; been willing that a part of the act should
held that the remainder of the act was be sustained if the remainder were held
complete without this section, and must void, and there is generally a presump-
therefore be sustained on the rule above tion more or less strong to the contrary.
given. The reasoning of the court by While, therefore, in the one case the act
which they are brought to this conclusion should be sustained unless the invalidity
is ingenious; but one cannot avoid feel- is clear, in the other the whole should
ing, especially after reading the dissent- fall unless it is manifest the portion not
ing opinion of Chief Justice Wright, that opposed to the constitution can stand by
by the decision the court gave effect to and that in the legislative intent it
itself,
an act which the legislature did not de- was not to be controlled or modified in its
sign should take effect unless the result construction and effect by the part which
of the unconstitutional submission to the was void, ptfoel v. People, 187 111. 587,
people was in its favor. See also Weir v. 68 N. E. 616, 52 L. R. A. 287, 79 Am. St.
Cram, 37 Iowa, 649. For a similar rul- 238 ; Redell Moores, 62 Neb.
.
,
88 N.
ing, see Maize v. State, 4 Ind. 342 over-
;
W. 243, 55 L. R. A. 740.]
ruled in Meshmeier r.-State, 11 Ind. 482. a Warren v.
Mayor, &c. of Charles-
And see State v. Dombaugh, 20 Ohio St. town, 2 Gray, 84 Stater. CommissioniTS
;
167, where it was held competent to con- of Perry County, 5 Ohio St. 497 State
;
strue a part of an act held to be valid by v. Pugh, 43 Ohio St. 98 Slauson o. Ra-
;
another part adjudged unconstitutional, cine, 13 Wis. 398 Allen County Com-
;
"
though the court considered it quite missioners v. Silvers, 22 Ind. 491 State
;
probable" that if the legislature had sup- v. Denny, 118 Ind. 449, 21 N. E. 274;
CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 249
that, although the latter portion of the section was void within
438, 40 N. W. 613. Where a statute made sioners of Ross County, 23 Ohio St. 22,
the same provision for taxing telegraph 84.
2
messages sent to points within and to 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.
1
the decision in Prigg v. Pennsylvania, 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
2
invalidity of the rest.
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
valid as toall 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,
;
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.
8
Bunker, 70 Cal. 212, 11 Pac. 703. People v. Murray, 5 Hill, 468. See
1
BakerBraman, 6 Hill, 47. So, if
v. 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 Baldy, 7 Mich. 488 Mobile & Ohio
v. ;
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.
1
See Bartonv. 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 ;
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
per Shaw, Ch. J. Alexander v. People, 7 26 Wend. 559 Morris v. People, 3 Denio,
;
Oreg. 512, 6 Pac. 70. A law will be up- 57 N. Y. 473 ; Baltimore v. State, 15 Md.
held unless its unconstitutionality is so 376 Cotton v. Commissioners of Leon
;
clear "as to leave no doubt on the sub- Co., 6 Fla. 610 Cheney v. Jones, 14 Fla.
;
ject." Kelly v. Meeks, 87 Mo. 396 Rob- ; 687 Lane v. Dorman, 4 111. 238, 36 Am.
;
inson v. Schenck, 102 Ind. 307, 1 N. E. Dec. 543; Newland v. Marsh, 19 111. 376;
698. If an act may be valid or not ac- Farmers' and Mechanics' Bank v. Smith,
cording to the circumstances, a court 3 S. & R. 63 Weister v. Hade, 52 Pa.
;
would be bound to presume that such St. 474 Sears v. Cottrell, 5 Mich. 251
; ;
road Co. v. Davis, 13 Ga. 68; Franklin Co., 36 Wis. 383; Newsom v. Cocke, 44
Bridge Co. v. Wood, 14 Ga. 80; Kendall Miss. 352; Slack v. Jacob, 8 W. Va. 612;
r. Kingston, 5 Mass. 524 ; Foster v. Commonwealth v. Moore, 25 Gratt. 951.
2 See
upon this subject what is said
1
Ogden v. Saunders, 12 Wheat. 213.
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 ;
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
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.
ons destructive of vested rights they are void and such force ;
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, 1Wash. Ter. 591 Singer Mfg. ; brings it into harmony with the consti-
Co. McCollock, 24 Fed. Rep. 667.
v. 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.
* Clarke v.
Iowa, 56* __ Rochester, 24 Barb. 446.
^ , .
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 nothing can conflict with it, and
is invalid,
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 ;
(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 raisedin this case on an agreed statement of facts. Said Justice Brewer:
Whenever pursuance of an honest and actual antagonistic assertion of rights by
in
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.
1 Johnson v. Joliet & Chicago Railroad duties." Shankland, J., inthe same case,
23 The
Constitution of
202.
" The powers of the three depart-
Co., 111. p. 555.
"
Illinois provided that corporations not ments are not merely equal ; they are
possessing banking powers or privileges exclusive in respect to the duties assigned
may be formed under general laws, but to each. They are absolutely indepen-
shall not be created by special acts, except dent of each other. It is now proposed
for municipal purposes, and in cases where, that one of the three powers shall insti-
in the judgment of the General Assembly, tute an inquiry into the conduct of an-
the objects of the corporation cannot be other department, and form an issue to
attained under general laws." special A try by what motives the legislature were
charter being passed without any legis- governed in the enactment of a law. If
lative declaration that its object could not this may be done, we may also inquire
be attained under a general law, the Su- by what motives the executive is induced
preme Court sustained it, but placed their to approve a bill or withhpld his approval,
decision mainly on the ground that the and in case of withholdingit corruptly,
clause had been wholly disregarded, " and by our mandate compel approval. To
its
it would now produce far-spread ruin to institute the proposed inquiry would be
declare such acts unconstitutional and a direct attack upon the independence of
void." It is very clearly intimated in the the legislature, and a usurpation of power
opinion, that the legislative practice, and subversive of the constitution." Wright
this decision sustaining it, did violence to v. Defrees, 8 Ind. 298, 302, per Gookins, J.
be declared in the preamble, or in the 635. Courts cannot inquire into legis-
" "
body of the law thus ; clearly making lative motives except as they may be
the legislative declaration necessary. disclosed on the face of the acts or be
Carpenter v. Montgomery, 7 Blackf. 415 ;
inferable from their operation considered
Mark State, 15 Ind. 98;
v. Hendrickson with reference to the condition of the
v. Hendrickson, 7 Ind. 13. country and existing legislation." Soon
Sunbury & Erie Railroad
2
Co. v. King v. Crowley, 1 13 U. S. 703, 5 Sup. St.
Cooper, 33 Pa. St. 278; Ex parte New- Rep. 730. QSee also Com. ex rel. Elkin r.
man, 9 Cal. 602; Baltimore v. State, 15 Moir, 199 Pa. 534, 49 Atl. 351, 53 L. R. A.
Md. 376 Johnson v. Higgins, 3 Met.
;
837, 85 Am. St. 801 3 The rule applies to
.
(Ky.) 560. "The courts cannot impute the legislation of municipalities. Brown
to the legislature any other than public v. Cape Girardeau, 90 Mo. 377, 2 S. W.
motives for their acts." People v. Draper, 302. And see McCulloch v. State, 11
16 N. Y. 532, 545, per Denio, Ch. J. " We Ind. 424; Neb. 16;
Bradshaw v. Omaha, 1
are not made judges of the motives of the Lyon v. Morris, 15 Ga. 480; People v.
legislature, and the court will not usurp Flagg, 46 N. Y. 401 Slack v. Jacob, 8
;
the inquisitorial office of inquiring into the W. Va. 612, 635; State v. Cardozo, 5
bona Jides of that body in discharging its S. C. 297 Humboldt County v. Churchill
;
CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 259
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
was secured by fraud and corrupt in- force for the whole period. Pierce v.
fluences is a valid defence to an action Pierce, 46 Ind. 86. fjA statute void for
brought upon the resolution. Weston v, unconstitutionality is dead and cannot be
697, 31 S. E. 221, 44Am. 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.
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
: ;
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 common-school funds,
stitutions provide
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.
these are they must be observed. Peo- district. School District v. Fogelman, 76
ple v. Board of Education, 13 Barb. 400; 111. Johnson v. School District, 67
189 ;
son, 11 Bush, 74; State v. Graham, 25 District, 36 Mich. 404 ; Wells v. People,
La. Ann. 440; State v. Board of Liquida- 71 111. 532. The general control of a
tion, 29 La. Ann. 77; Sun Mut. Ins. Co. school building is in the board, which
v. Board of Liquidation, 31 La. Ann. 175; may maintain
all proper suits for posses-
kin, 5i> Miss. 758. Although it is custom- 91 111. 179. The board must not enter
ary to leave the control of schools in the into contracts with its own members, as
hands of the school authorities, it is held these would be void. Pickett v. School
competent for the State to contract with District, 25 Wis. 551 Hewitt v. Normal
;
a publisher to supply all the schools of School District, 94 111. 528 Flint, &c. R. R.
;
the State with text-books of a uniform Co. v. Dewey, 14 Mich. 477. The board
character and price. Curryer v. Merrill, is entrusted with the authority to
employ
25 Minn. 1, 33 Am Rep. 450; Bancroft teachers, and to remove them under the
v. Tliayer, 5 Sawy. 502 People v. Board;
rules prescribed by statute. Crawfords-
of Education, 55 Cal. 331. QLeeper v. ville v. Hays, 42 Ind. 200; School Dis-
State, 103 Tenn. 500, 53 S. W. 962, 48 trict v. Colvin, 10 Kan. 283 Directors,
;
Tiedemann, 69 Mo. 515 Smith v. Town- ; Wilson v. School District, 36 Conn. 280;
ship Board, 58 Mo. 297 Dennison School ; Wait v. Ray, 67 N. Y. 36 provided they;
District r. Padden, 89 Pa. St. 395; Hazen act in good faith and do not unreasonably
v. Lerche, 47 Mich. 626, 11 N. W. 413. forestall the action of their successors.
But see Crane v. School District, 61 Loomis v. Coleman, 51 Mo. 21 Steven- ;
Mich. 299, 28 N. W. 105; Russell v. son v. School District, 87 111. 255 Hewitt ;
State, 13 Neb. 68, 12 N. W. 829. Illegal v. School District, 94 111. 528; School
or unauthorized action by the board can- Directors v. Hart, 4 111. App. 224. See
not be ratified by it, and the fact that the Tappan v. School District, 44 Mich. 500,
district has the benefit of what is done 7 N. W. 73; Athearn v. Independent
will not amount to a ratification by the District, 33 Iowa, 105. The board has
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 263
3
preceded and created the central authority but in all, the final ;
row v. Wood, 35 Wis. 59, 17 Am. Rep. c. 7.It is remarked by this author that,
471 ;
Rulison v. Post, 79 111.567 ; Lake when the charter of Rhode Island was
View School Trustees v. People, 87 111. suspended to bring the colony under the
264 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
serving the individual liberty of the citi- schools which the law ordains. . . . Strict
zen when that of the State or Colony was as this obligation the government of
is,
acknowledge that the State has any right America, the town collector receives the
to interfere in their local interests. The taxes of the Thus the French
State.
towns of New England buy and sell, pros- government lends agents to the com-
its
ecute or are indicted, augment or diminish mune; in America, the township is the
their rates, without the slightest opposi- agent of the government. This fact alone
tion on the part of the administrative au- shows the extent of the differences which
thority of the State. They are bound, exist between the two nations." Democ-
however, to comply with the demands of racy in America, c. 6. See Frothing-
the community. If a State is in need of ham's Rise of the Republic, 14-28. (T)n
money, a town can neither give nor with- the Right to Local Self-Government, see
hold the supplies. If a State projects a articlesby Amasa M. Eaton in 13 Harv.
road, the township cannot refuse to let it L. Rev. 441, 570, 638, and 14 Harv. L.
cross its territory; if a police regulation Rev. 20, 116.3
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 265
that powers of local legislation may be 44, 9 Am. Rep. 103 Mills v. Charleton,
;
granted to cities, towns, and other munic- 29 Wis. 400; Commonwealth v. Coyning-
ipal corporations. And it would require ham, 65 Pa. St. 76; People v. Kelsey, 34
strong reasons to satisfy us that it could Cal. 470 Tugman v. Chicago, 78 111. 405
; ;
have been the design of the framers of Manly v. Raleigh, 4 Jones Eq. 370 Stone
;
our constitution to take from the legisla- v. Charlestown, 114 Mass. 214 Hayden.
;
ture a power which has been exercised in v. Goodnow, 39 Conn. 164 Goldthwaite v.
;
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- ;
Sexton, 32 Mich. 406, 20 Am. Hep. 655; Mo. 330 ; McKim v. Odom, 3 Bland, 407 ;
[^Louisiana Constr. & Imp. Co. v. Illinois Granby Thurston, 23 Conn. 416 Har-
v. ;
C. R. Co., 49 La. Ann. 527, 21 So. 891, 37 rison Justices v. Holland, 3 Gratt. 247;
getting consent of city council, that body liams, 11 Ired. 558; Langworthy v. Du-
cannot attach conditions to its consent buque, 16 Iowa, 271; Weeks v. Milwaukee,
unless the conditions are restricted en- 10 Wis. 242 State v. Branin, 23 N. J.
;
tirely to matters within the city limits. 484 ; Patterson v. Society, &c., 24 N. J.
Galveston & W. R. Co. v. Galveston, 90 385 Atchison v. Bartholow, 4 Kan. 124
; ;
upon delayed payments of sewer as- v. Commonwealth, 76 Pa. St. 15; People
Tuttle, 67 Conn. 162, 34 Atl. 1028, 32 Co. v. Albany Co., 92 U. S. 307 Aspin- ;
L. R. A. 822. Nor can the city regulate wall Commissioners, &c 22 How. 364;
v. ,
the charges of gas companies for gas Howard v. McDiamid, 26 Ark. 100 Phila- ;
CH. VIII.] THE GEADES OF MUNICIPAL GOVERNMENT. 267
Am. St. 675. Legislature has power to their rights and effects, so that their
divide counties and to modify their boun- property is not diverted from the uses and
daries, but such modifications do not mod- objects for which it was given or pur-
ify the boundaries of legislative districts. chased." And see State v. Miller, 65 Mo.
People Board of Supervisors, 147 N. Y.
o. 50. As to the effect of legislation abol-
1, 41 N. E. 563, 30 L. R. A. 74. j ishing a corporation upon its property
1 This
principle was recognized by the and debts, see Mount Pleasant v. Beck-
several judges in Dartmouth College v. with, 100 U. S. 514; Meriwether v. Gar-
Woodward, 4 Wheat. 518, and in Meri- rett,102 U. S. 472 Rawson v. Spencer,
;
wether v. Garrett, 102 U. S. 472. And 113 Mass. 40. Where a municipal cor-
see People v. Morris, 13 Wend. 325 St. ; poration is dissolved and a new one for
Louis v. Russell, 9 Mo. 507 Montpelier;
the same general purposes is created con-
v. East Montpelier, 29 Vt. 12; Trustees taining the same population and property
of Schools v. Tatman, 13 111. 27 Brighton ;
in substance, to which the corporate
v. Wilkinson, 2 Allen, 27 ;Reynolds v. property passes without consideration,
Baldwin, 1 La. Ann. 162; Police Jury v. the debts of the old fall upon the new
Shreveport, 5 La. Ann. 665 Mt. Carmel
; municipality, and with them the power
v. Wabash County, 50 111. 69; Lake to tax for their payment. Mobile v.
View v. Rose Hill Cemetery, 70 111. 19] ; Watson, 116 U. S. 289, 6 Sup. Ct. Rep.
Zitske v. Goldberg, 38 Wis. 216 Weeks ; 398; Amy v. Selma, 77 Ala. 103. Upon
.Gilmanton, 60 N. H. 500 Dillon, Mun.
;
the division of towns and counties, &c.
Corp. 24, 30, 37; FJCovington v. Ken- the legislature may apportion the debts
tucky, 173 U. S. 231, 19 Sup. Ct. Rep. as it sees fit. People v. Supervisors, 94
383; Essex Public Road Bd. v. Skinkle, N. Y. 263; Clay Co. v. Chickasaw Co.,
140 U. S. 334, 11 Sup. Ct. Rep. 790-3 64 Miss. 634, 1 So. 753 Dare Co. v. Cur-
;
within the meaning of the constitution. Whitney v. Stow, 111 Mass. 368 Stone ;
The trustees of such a corporation would v. Charlestown, 114 Mass. 214; Sedgwick
be the mere mandatories of the State, Co. v. Bunker, 14 Kan. 498; Port wood v.
having no personal interest involved, and Montgomery, 52 Miss. 523 Bristol v. ;
could not complain of any law that might New Chester, 3 N. H. 624; Milwaukee
abridge or destroy their agency." Mont- Town v. Milwaukee City, 12 Wis. 93;
pelier Academy v. George, 14 La. Ann. Marshall Co. Court v. Galloway Co.
406. In Trustees of Schools v. Tatman, Court, 3 Bush, 93. QColumbus v. Colum-
13 111. 27, 30, the court say: "Public bus, 82 Wis. 374; 62 N. W. 425, 16 L. R.
corporations are but parts of the machin- A. 695, and note.] But it seems that an
ery employed in carrying on the affairs apportionment of property can only be
of the State and they are subject to be
; made at the time of the division. Wind-
changed, modified, or destroyed, as the ham v. Portland, 4 Mass. 384 Hampshire ;
exigencies of the public may demand. v. Franklin, 16 Mass. 76. See Richland
The State may exercise a general super- v. Lawrence, 12 III. 1 ; Bowdoinham v.
intendence and control over them and Richmond, 6 Me. 112. In the latter case
CH. VIII.] THE GEADES OF MUNICIPAL GOVERNMENT. 269
Appeal, 52 Pa. St. 374, and School Dis- Scituate v. Weymouth, 108 Mass. 128,
trict v. Board of Education, 73 Mo. 627 ;
and cases cited. A
statute abolishing
QJohnson v. San Diego, 109 Cal. 468, 42 school districts not void on grounds
is
principle seem to accord with the Louisi- proportional and reasonable, or that con-
ana case. In the absence of such legisla- tracts will be affected. Rawson v. Spen-
tion each part entitled to the property
is cer, 113 Mass. 40. See Weymouth &c.
falling within it, and to any equitable Fire District v. County Commissioners,
share of the moneys of the township. 108 Mass. 142. FJThe legislature may
Towle v. Brown, 110 Ind. 65, 10 N. E. lay a penalty upon any county in which
626. [The old corporation retains all a lynching occurs, and may provide
the property within its borders and re- that such penalty shall be recovered by
mains subject to the then existing debts, the person injured. Champaign Co. v.
in the absence of any legislative appor- Church, 62 Ohio St. 318, 57 N. E. 50, 48
tionment. McCully v. Tracy, 66 N. J. L. R. A. 738-3
1 "
L. 489, 49 Atl. 436. j In Burns v. Clarion The correction of these abuses is as
County, 62 Pa. St. 422, it was held the readily attained at the ballot-box as it
legislature had the power to open a set- would be by subjecting it to judicial re-
tlement made by county auditors with vision. A citizen or a number of citizens
the county treasurer, and to compel them may be subtracted from a county free
to settle with him on principles of equity. from debt, having no taxation for county
See further, Cambridge v. Lexington, 17 purposes, and added to an adjacent one,
Pick. 222 Attorney-General
;
v. Cam- whose debts are heavy, and whose taxing
bridge, 16 Gray, 247 Clark
;
v. Cam- powers are exercised to the utmost extent
bridge, &c. Bridge Proprietors, 104 Mass. allowed by law, and this, too, without
236. The legislature has power to lay out consulting their wishes. It is done every
a road through several towns, and appor- day. Perhaps a majority of the people
tion theexpense between them. Water- thus annexed to an adjacent or thrown
vine v. Kennebeck County, 59 Me. 80; into a new county by the division of an
Commonwealth r.Newburyport,103 Mass. old one may have petitioned the legisla-
129. QAnd where a highway or bridge, ture for this change ; but this is no relief
although lying outside the territorial lim- to the outvoted minority, or the individ-
its of a municipality, is especially bene- ual who deems himself oppressed and
ficial to the people thereof, the legislature vexed by the change. Must we, then, to
may compel that municipality to sustain prevent such occasional hardships, deny
part of the burden of providing and main- the power entirely ?
" It
taining such highway, and may determine must be borne in mind that these
what portion of such expense shall be corporations, whether established over
contributed by such municipality. State cities, counties, or townships (where such
v. Williams, 68 Conn. 181, 36 Atl. 24, 421, incorporated subdivisions exist), are never
270 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
have a common seal; may purchase and hold lands and other
property for corporate purposes (a), and convey the same may ;
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.
(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
power does not belong to a municipal Milhau v. Sharp, 17 Barb. 435, 28 Barb.
corporation as an incident of its creation. 228, and 27 N. Y. 611 Douglass v. Placer-
;
Such governments are not created for any Hopple v. Brown, 13 Ohio St. 311 Lack- ;
such purpose. Their powers are pre- land v. Northern Missouri Railroad Co.,
scribed by their charters, and those char- 31 Mo. 180; Smith v. Morse, 2 Cal. 524;
ters provide the means for exercising the Bennett v. Borough of Birmingham, 31
powers and the creation of specific means
;
Pa. St. 15 Earley's App., 103 Pa. St. 273
; ;
separate schools for white and negro gomery, 2 Woods, 684 ; Burmeister v.
children. Knox v. Bd. of Education, 45 Howard, 1 Wash. Ter. 207; Bell v.
Rushville Gas Co. v. Rushville, 121 Ind. W. 1059. Where a state board of health
206, 23 N. E. 72, 6 L. R. A. 315, 16 Am. is empowered to quarantine and inspect
St. 388.] But power
to confine patients persons and disinfect baggage from
with infectious diseases covers renting a countries where contagious disease is for
pest-house Anderson v. O'Conner, 98
:
good reasons suspected, it cannot extend
Ind. 168 ; and paying nurses : Labrie . itspowers, and quarantine all immigrants
Manchester, 59 N. H. 120; Rae v. Flint, and incoming baggage. Hurst v. Warner,
61 Mich. 526, 16 N. W. 887. Such cor- 102 Mich. 238, 60 N. W. 440, 26 L. R. A.
poration has implied power to take as 484, 47 Am. St. 525. See also Wilson v.
trustee for indigent inhabitants: Estate Alabama G. S. R. Co., 77 Miss. 714, 28
of Robinson, 63 Cal. 620; and to defend So. 567, 78 Am. St. 543. Power to reg-
itsmarshal sued for false imprisonment. ulate ten-pin alleys does not authorize
Cullen v. Carthage, 103 Ind. 196, 2 N. E. their exclusion from all places within fire
671 Roper v. Laurinburg, 90 N. C. 427.
;
limits. Ex parte Patterson, Tex. Cr.
See also Nashville v. Ray, 19 Wall. 468; ,
58 S. W. 1011, 51 L. R. A. 654.]
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 273
designed to be of some service to the con- party with the use of the most ordinary
stituents of the common council. They care and diligence. The existence of
were intended to protect the owners of the proper petition, and the taking of the
lands and the taxpayers of the city, as necessary initiatory steps to -warrant the
well against the frauds and impositions of improvement, were doubtless referred to
the contractors who might be employed and recited in the contract made with the
to make these local improvements, as plaintiff. And he thus became again
against the illegal acts of the common directly chargeable with notice of the
council themselves in employing the con- contents of all these papers. It is ob-
tractors. But if the plaintiff can recover vious that the restrictions and 1'mita-
in this action, of what value or effect are tions imposed by the law cannot thus be
all these safeguards ? If the common evaded. The consent of the parties in-
council desire to make a local improve- terested in such improvements cannot be
ment, which the persons to be benefited dispensed with the responsibility, which
;
18
274 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
the conditions precedent created by the poration, and of those assuming to act on
statute impose, cannot be thrown off in its behalf. State v. Kirkley, 29 Md. 85;
this manner. For the effect of doing so Gould v. Sterling, 23 N. Y. 456 Clark v. ;
is to shift entirely the burden of making Des Moines, 19 Iowa, 199; Veeder v.
these local improvements, to relieve those Lima, 19 Wis. 280; Bryan v. Page, 61
on whom the law sought to impose the Tex. 532, 32 Arn. Rep. 637; Tainter v.
expense, and to throw it on others who Worcester, 123 Mass. 311,25 Am. Rep.
are not liable either in law or morals." 90; Barton v. Swepston, 44 Ark. 437;
So, where the charter of Detroit pro- Thomas v. Richmond, 12 Wall. 349 East ;
and that such work could only be paid Providence v. Halsey, 117 U. S. 336, 6 Sup.
for by funds actually in the hands of Ct. Rep. 764; Oregon v. Jennings, 119
the city treasurer, provided for the spe- U. S 74, 7 Sup Ct. Rep. 124 Aberdeen ;
cific purpose. Goodrich v. Detroit, 12 v. Sykes, 59 Miss. 236 and cases post,
;
Mich, 279. But if the city receives the pp. 319-325. ([Contract for erecting
fund and misappropriates it, it will be public buildings and providing that only
liable. Lansing v. Van Gorder, 24 Mich. union labor shall be employed thereon is
456. And that even if a contract is ultra void, as unduly restricting competition
vires a city is liable for value of work and thereby increasing the cost of the
done under it, provided it receives the wofk. Adams v. Brenan, 177 111. 194,
benefit of it, see Schipper v. Aurora, 121 52 N. E. 314, 42 L. R. A. 718, 69 Am. St.
Ind. 154, 22 N. E. 878, and cases cited. 222. And see in this connection Atlanta
Parties dealing with the agents or offi- v. Ga. 789, 36 S. E. 932, 51
Stein, 111
cers of municipal corporations must, at L. R. A. 335; Fiske v. People, 188 111.
their own peril, take notice of the limits 206, 68 N. E. 985; People v. Coler, 166
of the powers both of the municipal cor- N. Y. 1, 59 N. E. 716, 82 Am. St. 605.]
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 275
*
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 Hartwell, 12 Mich. 508; People
v,
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.
porate rights for a time whereof the memory of man runneth not
to the contrary is sufficient evidence that such rights were once
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
;
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.
burden. On
this subject it will be sufficient for our purpose to
refer to authorities named in the note. In these cases the rule
1
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-
Angell & Ames on Corporations,
2
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
;
v. West Troy, 43 Barb. 48; State v. banse, 114 111. 46, 28 N. E. 454; St.
Georgia Medical Society, 38 Ga. 608; Johnsbury v. Thompson, 59 Vt. 300, 9
Pesterfield v. Vickers, 3 Cold. 205 Mays ;
Atl. 671. Peculiar and exceptional regu-
v. Cincinnati, 1 Ohio St. 268; Wirth v. lations may even be made applicable to
Wilmington, 68 N. C. 24; Flood v. State, particular portions of a city only, and
19 Tex. App. 584 Bohmy v. State, 21
; yet not be invalid. Goddard, Petitioner,
Tex. App. 507, 2 S. W. 886; QShreve- 16 Pick. 504; Commonwealth v. Patch,
port v. Prescott, 51 La. Ann. 1895, 26 So. 97 Mass. 221, per Hoar, J. St. Louis v. ;
cannot authorize keeping within city lim- 94; Rogers v. Jones, 1 Wend. 261; Levy
its a greater quantity of explosives than t'. State, 6 Ind. 281 Mayor, &c. of Mo-
;
statute allows. Cameron v. Kenyon-Con- bile v. Allaire, 14 Ala. 400 ; Elk Point .
nell Comm'l
Co., 22 Mont. 312, 56 Pac. Vaugn, 1 Dak. 113 ; People v. Hanrahan,
358, 44 L. R. A. 508. Ordinance granting 75 Mich. 611, 42 N. W. 1124.
exclusive privilege for thirty years to con- * Such is
the clear weight of author-
struct and maintain waterworks to sup- ity, though the decisions are not uniform.
ply town with water is void as creating a We quote from Rogers v. Jones, 1 Wend.
"
monopoly. Thrift v. Elizabeth City, 122 261 : But it is said that the by-law of a
N. C. 31, 30 S. E. 349, 44 L. R. A. 427. town or corporation is void, if the legisla-
Ordinance cannot penalize the employ- ture have regulated the subject by law.
ment of a laborer by a contractor for If the legislature have passed a law reg-
more than eight hours a day upon city ulating as to certain things in a city, I
280 CONSTITUTIONAL LIMITATIONS. [OH. VIII.
apprehend the corporation are not thereby Mobile v. Rouse, 8 Ala. 515 Intendant, ;
restricted from making further regula- &c. of Greensboro' v. Mullins, 13 Ala. 341 ;
tions. Cases of this kind have occurred Mayor, &c. of New York v. Hyatt, 3 E. D.
and never been questioned on that Smith, 156 People v. Stevens, 13 Wend.
;
ground ;
it is only to notice a case or 341; Blatcliley v. Moser, 15 Wend. 215;
two out of many. The legislature have Amboy v. Sleeper, 31 111. 499; State v.
imposed a penalty of one dollar for Crummey, 17 Minn. 72; State v. Oleson,
servile labor on Sunday the corpora- ;
26 Minn. 507, 6 N. W. 959 Greenwood v.;
tion of New York have passed a by-law State, 6 Bax. 567, 32 Am. Rep. 539;
imposing the penalty of five dollars for Brownville v. Cook, 4 Neb. 101 Levy ;
der in New York, the legislature and 6 Ind. 351 Lawrenceburg v. Wuest, 16
;
corporation have each imposed the same Ind. 337 ;St. Louis v. Bentz, 11 Mo. 61 ;
conflict with the State law. One of these ville v Cook, 4 Neb. 101 State v. Lud-
;
cases is reported in 12 Johns. 122. The wig, 21 Minn. 202 Bloomfield v. Trim-
;
question was open for discussion, but not ble, 54 Iowa, 399, 37 Am. Rep. 212;
noticed." In Mayor, &c. of Mobile e. Chicago Packing, &c. Co. v. Chicago, 88
Allaire, 14 Ala. 400, the validity of a 111. 221, 30 Am. Rep. 545; Hankins v.
municipal by-law, imposing a fine of fifty People, 106 111. 628 Fennell v. Bay City,
;
dollars for an assault anil battery com- 36 Mich. 186 McRea v. Americus, 59 Ga.
;
mitted within the city, was brought in 168; Wong p. Astoria, 13 Oreg. 538, 11
question. Collier, Ch. J., says (p. 403) : Pac. 295 Hughes v. People, 8 Col. 536,
;
"
The object of the power conferred by 9 Pac. 50. [[Greenville v. Kemrnis, 58 S.
the charter, and the purpose of the ordi- C. 427, 36 S. E. 727, 50 L. R. A. 725 ;
nance itself, was not to punish for an Thiesen v. McDavid, 34 Fla. 440, 16 So.
offence against the criminal justice of 321, 26 L.R. A. 234; Ogden v. City of
the country, but to provide a mere police Madison, 111 Wis. 413, 87 N. W. 568, 55
regulation, for the enforcement of good L. R. A. 506. So, too, the same act may
order and quiet within the limits of the be a crime against a State and against
corporation. So far as an offence has the United States, punishable by each.
been committed against the public peace People v. Welch, 141 N. Y. 266, 36 N. E.
and morals, the corporate authorities have 328, 24 L. R. A. 117, 38 Am. St. 793.J
no power to inflict punishment, and we Under a statute forbidding cities to pun-
are not informed that they have attempted ish acts punishable by State law, a city
to arrogate it. It is altogether immaterial may punish selling liquor without a city
whether the State tribunal has interfered license, as this is not an offence against
and exercised its power in bringing the the State law. Frankfort v. Aughe, 114
defendant before it to answer for the Ind. 77, 15 N. E. 802. On the other hand,
assault and battery for whether he has
; it was held in State v. Cowan, 29 Mo. 330.
there been punished or acquitted is alike that where a municipal corporation was
unimportant. The offence against the authorized to take cognizance of and pun-
corporation and the State we have seen ish an act as an offence against its ordi-
are distinguishable and wholly discon- nances which was also an offence against
nected, and the prosecution at the suit of the general laws of the State, and this
each proceeds upon a different hypothesis; power was exercised and the party pun-
the one contemplates the observance of ished, he could not afterwards be pro-
the peace and good order of the city the ; ceeded against under the State law.
"
other has a more enlarged object in view, The constitution," say the court, " for-
the maintenance of the peace and dignity bids that a person shall be twice pun-
of the State." See also Mayor, &c. of ished for the same offence. To hold that
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 281
1
them void. To render them reasonable, they should tend in
a party can be prosecuted for an act un- (Mich.) 334 Jenkins v. Thomasville, 35
;
der the State laws, after he has been Ga. 145; Vason v. Augusta, 38 Ga. 542;
punished for the same act by the munic- Reich v. State, 53 Ga. 73; Washington v.
ipal corporation within whose limits the Hammond, 76 N. C. 33 New Orleans v. ;
act was done, would be to overthrow the Miller, 7 La. Ann. 651. fJAnd see also
power of the General Assembly to create State v. McNally, 48 La. Ann. 1450, 21
corporations to aid in the management of So. 27, 36 L. R. A. 533-3
the affairs of the State. For a power in Where an act is expressly or by impli-
the State to punish, after a punishment cation permitted by the State law, it
had been inflicted by the corporate au- cannot be forbidden by the corporation.
thorities, could only find a support in the Thus, the statutes of New York estab-
assumption that the proceedings on
all lished certain regulations for the putting
the part of the corporation were null and up and marking of pressed hay, and pro-
void. The circumstance that the munic- vided that such hay might be sold with-
ipal authorities have not exclusive juris- out deduction for tare, and by the weight
diction over the acts which constitute as marked, or any other standard weight
offences within their limits does not affect that should be agreed upon. It was held
the question. It is enough that their that the city of New York had no power
jurisdiction is not excluded. If it exists, to prohibit under a penalty the sale of
although it may be concurrent, if it such hay without inspection this being ;
Cal. 142, 14 Pac. 405 Menken v. Atlan- ; v. Rochester, 6 Cow. 462 Mayor, &c. of ;
name and by the authority of the State. 2 Swan, 364 Ex parte Burnett, 30 Ala.
;
Ex parte Fagg, 38 Tex. Cr. 573,44 S. W. 461 Craig v. Burnett, 32 Ala. 728 Aus-
; ;
663. See Loeb v. Attica, 82 Ind. 175. In v. Worcester, 3 Pick. 461 Commission- ;
Jefferson City r. Courtmire, 9 Mo. 692, ers v. Gas Co 12 Pa. St. 318,
State v. ;
offences. To the same effect is State v. Bailey, 12 Gray, 161 St. Louis v. Weber,
;
existing buildings, but prohibit the erection of others for it, would
33 Am. Rep. 462. But where the ques- v. McLauchlan, 39 Oreg. 429, 64 Pac.
tion of the reasonableness of a by-law 867, 64 L. R. A. 636, 87 Am. St. 673;
depends upon evidence, and it relates to State v. Robart, 83 Minn. 257, 86 N. W.
a subject within the jurisdiction of the 93, 333, 64 L. R. A. 947. In Ex parte
corporation, the court will presume it to Bahen, 115 Cal. 372, 47 Pac. 55, 36 L.
be reasonable shown.
until the contrary is R. A. 618, an ordinance prohibiting buri-
Commonwealth v. Patch, 97 Mass. 221. als on lots not purchased before its enact-
And see St. Louis v. Weber, 44 Mo. 647 ; ment for such purpose is void upon the
Clason v. Milwaukee, 30 Wis. 316; St. theory that it is unreasonable in that
Louis v. Knox, 6 Mo. App. 247. An the right to restrain burials rests upon
ordinance expressly, authorized by the the theory that all burials are injurious
legislature cannot be held unreasonable. to the public. See Barbier v. Connolly,
A Coal Float v. Jefferson ville, 112 Ind. 113 U. S. 27, 5 Sup. Ct. Rep. 357.]
15, 13 N. E. 115. To be reasonable, by- 1
Society of Scriveners v. Brooking, 3
laws should be equal in their operation. Q. B. 95. See, on this general subject,
Tutrman v. Chicago, 78 111. 405; Barling Dillon, Mun. Corp. 251-264. -
to obstructing streets with cars, unreason- v. Burnett, 32 Ala. 728. A by-law de-
able in its operation only in one locality, claring the keeping on hand of intoxicat-
will be enforced elsewhere. Pennsylvania ing liquors a nuisance was held unreason-
R. R. Co. Jersey City, 47 N. J. L. 286.
v. able and void in Sullivan v. Oneida, 61
[^Ordinance penalizing the sale or gift of 111. 242. That which is not a nuisance in
street railway transfer tickets contrary fact cannot be made such by municipal
to regulations of company issuing them is ordinance. Chicago, &c. R. R. Co. v.
not unreasonable. Ex parte Lorenzen, Joliet, 79111. 25; State v. Mott, 61 Md.
128 Cal. 431, 61 Pac. 68, 50 L. R. A. 65. 297; post, p. 883, note 1. fJAuthority to
To be invalid because unreasonable its levy a license tax does not authorize the
unreasonable character must be so clearly levy of one so heavy as to be prohibitory,
apparent as to indicate a mere arbitrary where the business upon which it is levied
exercise of the power vested in the isuseful and legitimate. Morton v. Ma-
council. State r. Barge, 82 Minn. 256, con, 111 Ga. 162, 36 S. E. 627, 50 L. R. A.
84 N. W. 911, 63 L. R. A. 428; Wygant 485.]
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 283
1
Mayor, &c. of Hudson v. Thome, 7 lenbrinck v. Commissioners, 42 N. J. 364 ;
Paige, 261. A power to prevent and reg- 36 Am. Rep. 518 Mestayer v. Corrige,
;
ulate the carrying on of manufactures 38 La. Ann. 708 Wisconsin Tel. Co. v.
;
part of the town, and then expressly 385; Ex parte Gregory, 20 Tex. App.
exempts from its operation the stables 210; Fayetteville v. Carter, 52 Ark. 301,
already established, is void. Crowley v. 12 S. W. 573. [Littlefield v. State, 42
West, 52 La. Ann. 526, 27 So. 63, 47 L. Neb. 223, 60 N. W. 724, 28 L. R. A.
R. A. 652, 78 Am. St. 355.] 588, 47 Am. St. 697. Liquor license fee
2 State v. Roberts, 11 Gill
J. 606; & of $2000 in a city of 4000 inhabitants
Mays v. Cincinnati, 1 Ohio
268; Cin- St. sustained in Ex parte Sikes, 102 Ala.
cinnati v. Bryson, 15 Ohio, 625 Free- ; 173, 15 So. 622, 24 L. R. A. 774.] In
holders v. Barber, 6 N. J. Eq. 64 Kip v. ;
Illinois the imposition of license fees for
Paterson, 26 N. J. 298 State v. Hoboken,
;
revenue has been sustained. U. S. Dist.
41 N. J. 71 Bennett v. Borough of Bir-
;
Co. r. Chicago, 112 111. 19, and cases
mingham, 31 Pa. St. 15; Commonwealth cited ;
and under the California Consti-
r. Stodder, 2 Cush. 662; Chilvers v. Peo- tution of 1879 licenses may be imposed
ple, 11 Mich. 43; Mayor, &c. of Mobile for regulation or revenue, or both. In re.
v. Yuille, 3 Ala. 137 Johnson v. Philadel-
; Guerrero, 69 Cal. 88, 10 Pac. 261. A
phia, 60 Pa. St. 445; State v. Herod, higher license imposed on a non-resident
29 Iowa, 123; Burlington v. Bumgardner, than on a resident for purposes of revenue
42 Iowa, 673; Mayor, &c. of New York is void. Morgan v. Orange, 60 N. J. L.
v. Second Avenue R. R. Co., 32 N. Y. 389, 13 Atl. 240. And in some cases it
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
2
officer is to impose it on conviction;
or court which 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
4
general principles of the common law. If it is in general re-
public safety, the city may not prohibit 418; Bowling Green v. Carson, 10 Bush,
driving at a speed which shall be found to 64; Le Claire v. Davenport, 13 Iowa,
be immoderate under the circumstances. 210; Winnsboro v. Smart, 11 Rich. L.
Com. v. Roy, 140 Mass. 432, 4 N. E. 814. 651; St. Louis v. Weber, 14 Mo. 647.
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 285
ers, 42 N. J. 364, 36 Am. Rep. 518; 1 Rich. L. 364; Frankfort, &c. R. Co. v.
Frommer v. Richmond, 31 Gratt. 646; Philadelphia, 58 Pa. St. 119; St. Louis
Barling v. West, 29 Wis. 307, 9 Am. v. Green, 70 Mo. 562. Unreasonable
Rep. 576. Prohibiting wagons standing To grant one person exclusive right to
in market. Unreasonable Common- run omnibuses in the city. Logan v.
wealth v. Brooks, 109 Mass. 355; Com- Pyne, 43 Iowa, 524, 22 Am. Rep. 261.
monwealth v. Wilkins, 121 Mass. 356. Railroads : Regulating speed of. Reason-
Auctions: Prohibiting sales at, on streets. able Pennsylvania Company v. James,
Reasonable White v. Kent, 11 Ohio St. 81 Pa. St. 194; Whitson v. Franklin,
550. After sunset. Unreasonable 34 Ind. 392. Unreasonable Outside of
Hayes v. Appleton, 24 Wis. 542. Im- inhabited portion of city. Meyers v. Chi-
posing heavy license on. Reasonable cago, R. I. & P. Co., 57 Iowa, 555, 10
Decorah v. Dunstan, 38 Iowa, 96 Wig- ;
N. W. 896. But see Knobloch v. Chicago,
gins v. Chicago, 68 111. 372 Fretwell v.
; &c. Ry. Co., 31 Minn. 402, 18 N. W. 106.
Closing for the night. Reasonable 16 Am. Rep. 611. Prohibiting removal
Staats v. Washington, 45 N. J. L. 318; of snow by street railway companies
Platteville u. Bell, 43 Wis. 488 Smith v.
;
without consent of street superintendent.
Knoxville, 3 Head, 245 State v. Welch,
;
Reasonable Union Railway Company
36 Conn. 216; State v. Freeman, 38 v.Cambridge, 11 Allen, 287. Obstruct-
N. H. 426; Maxwell Jonesboro, 11
.
ing streets with cars. Reasonable
Heisk. 257; Baldwin v. Chicago, 68 111. Penna. R. R. Co. v. Jersey City, 47 N. J.
418. Unreasonable Ward v. Green- L. 286. Burials: Prohibiting in town.
ville, 8 Baxt. 228, 35 Am. Rep. 700. Unreasonable Austin v. Murray, 16
Closing on certain days. Unreasonable Pick. 121. Prohibiting within certain
Grills v. Jonesboro, 8 Baxt. 247. On certain limits. Reasonable Coates v.
the art of painter in the city of London, not being free of the com-
& C. (N. Y.) 256; McKibbin v. Fort 107, 26 N. W. 33. Prohibiting swine
Smith, 35 Ark. 352. Requiring a build- running at large. Waco v. Powell, 32
ing license fee. Reasonable Welch v. Tex. 258; Crosby v. Warren, 1 Rich.
Hotchkiss, 39 Conn. 140, 12 Am. Rep. 385; Whitfield v. Longest, 6 Ired. L.
383. Forbidding frame buildings in 268 ;
Roberts v. Ogle, 30 111. 459 ;
Gosse-
small towns. Unreasonable Kneedler link Campbell, 4 Iowa, 296. Prohibiting
v.
v. Norristown, 100 Pa. St. 368. Houses cattle running at large. Commonwealth
of III Fame: Reasonable Prohibiting v. Bean, 14 Gray, 52. Impounding such
keeping of. State v. Williams, 11 S. C. and selling after such notice. Carters-
288; Childress v. Mayor, 3 Sneed, 356; ville r. Lanham, 67 Ga. 753; but only the
State v. Mack, 41 La. Ann. 1079, 6 So. expense of impounding can be retained,
808. Imposing penalty on owner of. not a tine upon the owner. Wilcox v.
McAlister v. Clark, 33 Conn. 91. Licens- Hemming, 58 Wis. 144, 15 N. W. 435.
ing. State v. Clarke, 54 Mo. 17, 14 Granting exclusive rights to remove car-
Am. Rep. 471. Arresting and fining lewd casses of animals, dirt, or offal from city.
women. Shafer v. Mumma, 17 Md. 331 ; Vandine, Petitioner, 6 Pick. 187, 17 Am.
Braddy v. Milledgeville, 74 Ga. 516. Dec. 351 contra, River Rendering Co.
;
Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. Fazackerly, 36 Barb. 392; Guillotte v.
1064. Limited to a certain part of a city. New Orleans, 12 La. Ann. 432. Pro-
In re Hang Kie, 69 Cal. 149, 10 Pac. 327; hibiting peddling without a license.
and to certain hours Ex parte Moynier t Huntington v. Cheesbro, 57 Ind. 74.
65 Cal. 33, 2 Pac. 728. [Ordinance pro- Prohibiting sale of adulterated milk.
hibiting within certain district, and de- Polinsky v. People, 73 N. Y. 65. Pro-
claring such as are within the district hibiting sale of milk without license.
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 287
1 Clark v. Le Cren, 9 B. & C. 52; another they may sell from wagons also.
Chamberlain of London v. Compton, 7 St. Louis i?. Spiegel, 90 Mo. 587, 2 S. W.
D. & R. 597. Compare Hayden v. Noyes, 839. Without special legislative author-
6 Conn. 391; Willard v. Killingworth, 8 itya merchant who has paid his license
Conn. 247. But a by-law is not void, as tax cannot be obliged to keep a sales-book
in restraint of trade, which requires loaves open to inspection. Long r. Taxing Dis-
of bread baked for sale to be of specified 7 Lea, 134. An ordinance is bad
trict,
weight and properly stamped, or which which forbids importing and dealing in
requires bakers to be licensed. Mayor, cast-off garments, but does not apply to
&c. of Mobile v Yuille, 3 Ala. 137. See such goods not imported. Greensboro v.
Buffalo v. Webster, 10 Wend. 99. A Ehrenreich, 80 Ala. 579. [TTpon powers
by-law forbidding the maintenance of of cities to regulate markets, see State v.
slaughter-houses within a city is not void Sarradat. 46 La. Ann. 700, 15 So. 87, 24
as in restraint of trade. Cronin v. People, L. R. A. 584, and note, and further upon
82 N. Y. 318, 37 Am. Rep. 564; Ex parte validity of statutes and ordinances upon
Heilbron, 65 Cal. 609, 4 Pac. 648. Meat the ground of reasonableness or unrea-
sellers in one part of a city may not be sonableness. See, ante, p. 284, n. 4J
allowed to sell from shops only, while in
288 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
Orr, 68 Conn. 101, 35 Atl. 770, 34 L. B. A. council. Viiu-ennes v. Citizens' Gas L. &
279. Requiring milk-venders to take out C. Co., 132 Ind. 114, 31 N. E. 673, 16
licenses and have tlieir herds subjected to L. B. A. 485; contra, Shelden v. Fox, 48
" tuberculin test." State v. Kan. 356, 29 Pac. 759, 16 L. B. A. 257,
the Nelson,
66 Minn. 166, 68 N. W. 1066, 34 L. B. A. and note. Bequiring both driver and con-
318, 61 Am. St. 399. Requiring that only ductor on every street car in use on streets.
police officers may prosecute for violation South Covington & C. St. B. Co. v. Berry,
of a specified ordinance. State v. Robit- 93 Ky. 43, 18 S. W. 1026, 15 L. B. A. 604,
sliek, 60 Minn. 123, 61 N. W. 1023, 33 and note, 40 Am. St. 161. Regulating
L. R. A. 33. Where a sewer-assessment weight of loaves of bread offered for sale
has been successfully contested, the city and punishing sale of short weight loaves.
may require that the amount of the assess- People v. Wagner, 86 Mich. 594, 49 N. W. '
ment be paid as a condition precedent to 609, 13 L. R. A. 286, and note, 24 Am.
permitting the contestant to connect with St. 141. Prohibiting suspension of elec-
the sewer. Herrmann v. State, 64 Ohio tricwires over or upon roofs of buildings.
St. 506, 43 N. E. 990, 32 L. R. A. 734. Re- El. Impr. Co. v. San Francisco, 45 Fed.
quiring license fee of $25 per annum from Rep. 593, 13 L. R. A. 131, and note on
junk-dealers, $50 per annum from pawn- police power. Levying license fee of $5
brokers, bonds of $2,000 and $5,000 re- per month upon venders of fresh meats
spectively, indorsements of twelve free- outside the public markets. Atkins v.
holders upon each application for license, Phillips, 26 Fla. 281, 8 So. 429, 10 L. R. A.
and prohibiting purchases from boys and 158. Prohibiting keeping or storing of
from drunkards and intoxicated persons, large quantities of inflammable or ex-
reserving power to revoke license at any plosive oils within city limits. Richmond
time. Grand Rapids v. Brandy, 105 Mich. v. Dudley, 129 Ind. 112, 28 N. E. 312, 13
670, 64 N. W. 29, 32 L. R. A. 116, 55 Am. L. R. A. 587, and note, 28 Am. St. 180.
St. 472 ;
and upon power to control such Requiring petition of two-thirds of land-
dealers, see note hereto in L. R. A. ; see owners of a block before permitting a
also Rosenbaum v. Newbern, 118 N. C. saloon to be opened in it, if none has ever
83, 24 S. E. 1, 32 L. R. A. 123. Requir- been in the block before. Martens v. Peo-
ing itinerant traders to pay a license fee ple,186 111. 314, 57 N. E. 871J
of $50 per quarter, traders having a fixed The following have been held unreason-
place of business being exempt. Re Has- able, Prohibiting putting up of steam-
kell, 112 Cal. 412, 44 Pac. 725, 32 L. R. A. engine in city. v. Redecke, 49
Baltimore
527. Prohibiting use of salt upon street- Md. 217, 33 Am.
Rep. 239. Prohibiting
railway tracks, except at street corner one person carrying on a certain business
curves. State v. Elizabeth, 58 N. J. L. and allowing another to carry on the same
619, 34 Atl. 146, 32 L. B. A. 170. Re- business. Hudson v. Thome, 7 Paige,
quiring roofed passageway over sidewalks 261; Tugman v. Chicago, 78 111. 405.
where buildings are being constructed Prohibiting laying of gas-pipes across the
above first story. Smith v. Milwaukee streets. Northern Liberties v. Gas Co.,
B. &
T. Exchange, 91 Wis. 360, 64 N. W. 12 Pa. St. 318. Levying tax for building
1041, 30 L. R. A. 504, 51 Am. St. 912. a sidewalk in uninhabited portion of the
Requiring boarding-house keepers, &c., to city. Corriganu. Gage, 68 Mo. 541. Pro-
furnish street commissioner with list of hibiting use of Babcock's fire extinguish-
boarders liable to poll-tax, and to pay ers and imprisoning those who used them.
a fine for failure so to do. Topeka v. Teutonia Ins. Co. v. O'Connor, 27 La.
Boutwell, 53 Kan. 20, 35 Pac. 819, 27 Ann. 371. Requiring every person en-
L. R. A. 593. Forbidding any unmarried tering his drain in a sewer to pay his
minor to enter bar-room unless as agent share of the expense of making such
or servant. State v. Austin, 114 N. C. sewer. Boston v. Shaw, 1 Mete. 130.
855, 19 S. E. 919, 25 L. R. A. 283, 41 Refusing to supply water to certain
Am. St. 817. Contracting for a supply premises. Dayton v. Quigley, 29 N. J.
of gas and water for a reasonable period, Eq. 77.Arresting free negroes found on
although such period extends beyond the street after 10 p. M. Mayor v. Winfield,
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 289
St. 516; upon municipal control over height of board. Crawford v, Topeka,
smoke as nuisance, see note to this case 61 Kan. 756, 33 Pac. 476, 20 L. R. A. 692,
in L. II. A. Requiring street contrac- 37 Am. St. 323. Requiring permission
tors to use asphaltutn controlled by a from a city officer for street parades, but
inonoplv. Fisliburn v. Chicago, 171 111.
- exempting from such requirement fu-
338, 49 N, E. 532, 39 L. R. A. 482, 63 Am. nerals, fire companies, State militia, and
St. 236. Placing harassing and arbitrary political partieshaving a State organi-
restrictions on dealers in second-hand zation. Re Garrabad, 84 Wis. 585, 54
goods. State v. Itzcovitch, 49 La. Ann. N. W. 1104, 19 L. R. A. 858, and note on
360, 21 So. 544, 37 L. R. A. 673, 62 Am. ordinances relating to street parades See
St. 648. See also Morton v. Macon, 111 also that ordinances vesting arbitrary
Ga. 162, 36 S. E. 627. Prohibiting traffic in powers are void. Richmond v. Dudley,
second-hand clothing, &c. State v. Taft, 129 Ind. 112, 28 N. E. 312, 13 L. R. A.
118 N. C. 1190, 23 S. E. 970, 32 L. R. A. 587, 28 Am. St. 180 but see Olympia r.
;
122, 54 Am. St. 768. Prohibiting a rail- Mann, 1 Wash. 389, 25 Pac. 330," 337, 12
road company from fencing its grounds L. R. A. 150, and note; Child v. Bemus,
inside the city limits. Grossman i: Oak- 71 R. I. 230, 21 Atl. 539, 12 L. R. A. 67.
land, 30 Oreg. 478, 41 Pac 5, 36 L. R. A. Requiring license fee of $25 per day from
593, 60 Am. St. 8.S2. Proliibiiing driving auctioneers of imported goods. lie Sipe,
faster than six miles per hour when ap- 49 Ohio St. 636, 31 N. E. 884, 17 L. R. A.
plied to fire engine. State v. Sheppard, 184. Requiring license fee of non-resi-
64 Minn. 287, 67 N. W. 62, 36 L. R. A. dent peddlers. Sayre v. Phillips, 148 Pa.
305. Ordinance is not unreasonable when 482, 24 Atl. 76, 16 L. R. A. 49, and note,
expressly authorized by legislature. 33 Am. St. 842. Prohibiting absolutely
Beiling ?>. Evansville, 144 Ind. 644, 42 the making repairs to the amount of $300
N. E. 621, 35 L. R. A. 272. Unreasonable or more upon any wooden building within
to restrict owner of dead animal to a par- specified limits. Mt. Vernon F. Nat. Bank
ticular spot outside of city in which to de- v. Sarlls, 129 Ind. 201, 28 N. E. 434, 13
posit same. Schoen Brothers v. Atlanta, L. R. A. 481, and note. On fire limits,
97 Ga. 697, 25 S. E. 380, 33 L. R. A. 804. see Olympia v. Mann, 1 Wash. 389, 25
Levying license fee of $10 per day on Pac. 330, 337, 12 L. R. A. 150, and note.
itinerant merchants. Carrollton v. Baz- Prohibiting importation or sale of second-
zette, 159 111. N
E. 837, 31 L. R. A.
284, 42 hand clothing unless owner first proves
522. Requiring the laying of a cement that it did not come from an infected
sidewalk where, less than six months be- region. Kosciusko v. Slomberg, 68 Miss.
fore, a duly authorized sidewalk of plank 469, 9 So. 297, 12 L. R. A. 528, 24 Am.
had been constructed and was yet sound St. 281. Permitting fine of $1,000 for
and in good condition. Hawes v. Chicago, visiting a disorderly house. Re Ah You,
158 111. 653, 42 N. E. 373, 30 L. R. A. 225. 88 Cal. 99, 25 Pac. 974, 11 L. R. A. 408,
Prohibiting erection of any building or 22 Am. St. 280. Penalizing a mere pri-
addition to building within city limits, ex- vate trespass. Bregguglia v. Lord, 63
cept by permission of building inspector. N. J. L. 20 Atl. 1082, 11 L. It. A.
168,
Sioux Falls v. Kirby, 6 S 1). 62, 60 N. W. 407. Levying license tax upon agents of
156, 25 L. R A. 621. Prohibiting use of non-resident insurance companies, but not
screens, blinds, &c., to obstruct view from upon those of local companies. Simrall
street into saloons. Champer v. Green- v. Covington, 90 Ky. 444, 14 S. W. 369, 9
castle, 138 Ind. 339, 35 N. E. 14, 24 L. R. A. L. R. A. 656, 29 Am. St. 398. Penalizing
768, and note, 46 Am. St. 390. General breach of contract with city. Newport
welfare clause does not warrant an ordin- v. Newport & C. Bridge Co., 90 Ky. 193,
13 So. 164. 20 L. R. A. 691, 40 Am. St. Tate, 130 III. 247, 22 N. E. 791, 6 L. R. A.
272. Requiring distance of billboard from 268. Requiring letting of public printing
street line to be five feet greater than only to members of Allied Printing Trades
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 291
31 Am. St. 218, 24 L. R. A. 195; Avis v. Nichols, 4 Hill, 209 St. Paul v. Traeger,
;
Vim-land, 55 N. J. L. 285, 26 Atl. 149, 23 25 Minn. 248, 33 Am. Rep. 462. See
L. R. A. 685; State v. Tenant, 110 N. C. Strauss v. Pontiac, 40 111. 301 Mayor ;
333. Unless by express authority, a straint upon many of the citizens of Bos-
wooden building put up contrary to an ton, who
are desirous of burying their
ordinance cannot be forfeited. Kneedler dead without the city, and for that reason
v. Norristown, 100 Pa. St. 368. [[Ordi- is void." Austin
v. Murray, 16 Pick. 121,
any dead body brought into town on any altogether prohibiting the slaughtering
part of their own premises or elsewhere of animals within certain limits in the
within the town. By the court, Wilde, J. ; city and it was held void. See further,
;
"A
by-law, to be valid, must be reason- State v. Jersey City, 29 N. J. 170. [>nd
able it must be legi fidei rationi consona.
; upon power of municipal corporations to
Now if this regulation or prohibition had define, prevent, and abate nuisances, see
been limited to the populous part of the note 36 L. R A. 593. See also Orlando
town, and were made in good faith for o. Pragg, 31 Fla. Ill, 12 So. 368, 19 L. R.
the purpose of preserving the health of A. 196, and note, 34 Am. St. 17.] Power
the inhabitants, which may be in some to control the erection of dwellings with
degree exposed to danger by the allow- reference to health does not allow regu-
ance of interments in the midst of a dense lation of the thickness of outer walls.
population, it would have been a very Hubbard Paterson, 45 N. J. L. 310.
v.
reasonable regulation. But it cannot be Upon the whole subject of municipal by-
pretended that this by-law was made for laws, see Angell & Ames on Corp. c. 10 ;
the preservation of the health of the in- Grant on Corp. 76 et seq. See also Red-
habitants. Its restraints extend many field on Railways (3d ed.), Vol. I. p. 88;
miles into the country, to the utmost lim- Dillon, Mun. Corp.
c. 12. The subject
its of the town. Now such an unneces- of the reasonableness of by-laws was
sary restraint upon the right of interring considered at some length in People v.
the dead we think essentially unreason- Medical Society of Erie, 24 Barb. 570,
able. If Charlestown may lawfully make and Same v. Same, 32 N. Y. 187. See
such a by-law as this, all the towns ad- note to Ward v. Greencastle, 35 Am. Rep.
joining Boston may impose similar re- 702. Municipal by-laws may impose pen-
straints, and consequently all those who alties on parties guilty of a violation
die in Boston must of necessity be in- thereof, but they cannot impose forfeiture
terred within the precincts of the city. of property or rights, without express
That this would be prejudicial to the legislative authority. State v. Ferguson,
health of the inhabitants, especially in 33 N. H. 424; Phillips t;. Allen, 41 Pa.
the hot season of the year, and when St. 481. Nor can municipal corporations,
epidemic diseases prevail, seems to be by their by-laws, take into their own
a well-established opinion. Interments, hands the punishment of offences against
therefore, in cities and large populous the general laws of the State. See Chari-
towns, ought to be discountenanced, and ton v. Barber, 64 Iowa, 360, 6 N. W. 528,
no obstacles should be permitted to the 37 Am. Rep. 209 Kirk v. Nowill, 1 T. R.
;
places in the vicinity. The by-law in v. Albany, 9 Wend. 571 Peoria v. Cal-
;
question is therefore an unreasonable re- houn, 29 111. 317; St. Paul v. Coulter, 12
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 293
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.
Compare In re Guerrero, 69 CaL 88, 10 nary funds or revenue thereof will not
Pac. 261. accomplish and is subjected to the judg-
;
2
The
charter of Washington gave the ment of the President of the United
" to
corporation authority authorize the States. The power thus cautiously
drawing of lotteries, for effecting any im- granted is deposited with the corpora-
portant improvement in the city, which tion itself, without an indication that it
the ordinary funds or revenue thereof is assignable. It is to be exercised, like
will not accomplish ; provided that the other corporate powers, by the agents of
amount raised in each year shall not the corporation under its control. While
exceed ten thousand dollars. And pro- it remains where Congress has placed it,
vided also that the object for which the character of the corporation affords
the money is intended to be raised some security against its abuse, some
shall be first submitted to the President security that no other mischief will result
of the United States, and shall be ap- from it than is inseparable from the thing
proved by him." Marshall, Ch. J., speak- itself.But if the management, control,
"
ing of this authority, says There is : and responsibility may be transferred to
great weight in the argument that it any adventurer who will purchase, all the
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 295
Irrepealable Legislation,
1
Callendar v. Marsh, 1 Pick. 417; Cheever v. Shedcl, 13 Blatch. 258. The law
Griggs v. Foote, 4 Allen, 195; Graves v. would seem to be otherwise declared in
Otis, 2 Hill, 466; Green v. Reading, 9 Ohio. See Rhodes v. Cincinnati, 10 Ohio,
Watts, 382, 36 Am. Dec. 127 O'Connor ; 160; McCombs v. Akron, 15 Ohio, 474;
v.Pittsburg, 18 Pa. St. 187 ; Reading v. s. c. 18 Ohio, 229 Crawford v. Delaware,
;
Keppleman, 61 Pa. St. 233; Skinner v. 7 Ohio St. 459; Akron v. Chamberlain
Hartford Bridge Co., 29 Conn. 523; Fel- Co., 34 Ohio St. 328 ; 32 Am. Rep. 367 ;
lows v. New Haven, 44 Conn. 240, 26 Cohen v. Cleveland, 43 Ohio St. 190.
Am. Rep. 447 La Fayette v. Bush, 19
; See also Nashville v. Nichol, 59 Tenn.
Ind. 326; La Fayette v. Fowler, 34 Ind. 338. It is also otherwise in Illinois
140; Creal v. Keokuk, 4 Greene (Iowa), under present Constitution. Elgin v.
its
658; Murphy v. Chicago, 29 111. 279; 102 111. 64. Under like constitutional
Quincy v. Jones, 76 111. 231 Rounds v. ; provisions a like rule has been laid down.
Mumford, 2 R. I. 154; Rome r. Oinberg, Reardon San Francisco, 66 Cal. 492,
v.
28 Ga. 46; Roll v. Augusta, 34 Ga. 326; 6 Pac. 317 Moore v. Atlanta, 70 Ga. 611
; ;
399, 8 Pac. 656. No legal damage is 111 Iowa, 427, 82 N. W. 920.] Compare
done by establishing a grade where none Alexander v. Milwaukee, 16 Wis. 247.
had existed. Gardiner v. Johnston, 16 [City liable in Kansas. Leaven worth v.
R. I. 12 Atl. 888.
94, city having A Duffy, 63 Kan. 884, 62 Pac. 433.] Courts
power to grade and level streets is not will not undertake to control municipal
liable for consequent damages to persons discretion in the matter of improving
whose lands are not taken. Radcliffe's streets. Dunham v. Hyde Park, 75 LI.
Ex'rs Brooklyn, 4 N. Y. 195; Smith v.
v. 371 Brush v. Carbondale, 78 111. 74. The
;
Delphi v. Evans, 36 Ind. 90; Simmons 231, 20 Am. Rep. 243. Contra, Nichols
v. Camden, 26 Ark. 276; 7 Am. Rep. r. Duluth, 40 Minn. 389, 42 N. W. 84.
620; Dorman v. Jacksonville, 13 Fla. But the failure to use due care and pru-
638,7 Am. Rep. 253; Dore v. Milwaukee, dence in grading may render the city
42 Wis. 108 Lee v. Minneapolis, 22 Minn.
;
liable. Bloomington v. Brokaw, 77 I1L
13; Lynch v. New York, 76 N. Y. 60; 194.
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 297
(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.
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.
;
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
1
joint-stock associations, and secured to them beyond control."
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 ;
1 Milhau v. Sharp, 17 Barb. 435; s. c. censee may have spent a large sum in
28 Barb. 228, and 27 N. Y. 611 Bir- ;
the erection of the awning. Hibbard, S.,
mingham, &c. St. Ry. Co. v. Birming- B. & Co. v. Chicago, 173 111. 91, 50 N. E.
ham St. Ry. Co., 79 Ala. 465; Nash v. 256, 40 L. R. A. 621. j Compare Chicago,
Lowry, 37 Minn. 261 Jackson, &c. R. Co.
;
&c. R. R. Co. v. People, 73 III. 541. Nor
v.Intersta'e, &c. Co., 24 Fed. Rep. 306. can an exclusive privilege be granted to a
See also Davis v. Mayor, &c. of New York, gas company to use the streets. Gas Co.
14 N. Y. 506 State Mayor, &c., 3 Duer,
;
;--. v. Parkersburg, 30 W. Va. 435, 4 S. E.
Chicago, B. & N. R. Co., 39 Minn. 286, own gasworks. Hamilton Gaslight & C.
39 N. W. 629, 1 L. R. A. 493, and note, Co. Hamilton, 146 U. S. 258, 13 Sup. Ct.
v.
12 Am. St. 644; upon general relations Rep. 90.] The consent of the legislature
between street railways and municipali- in any such case would relieve it of all
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.] execution of those laws.
fallible 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
" It is
such a case would oblige its treasury to that the action will not lie, say :
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
l
porarily suspends useful legislation ; or orders and constructs
laws." Western College v. Cleveland, ing" in its streets, to the injury of in-
12 Ohio St. 375, 377. QBut liability for dividuals :
Shepherd v. Chelsea, 4 Allen,
such losses may be cast by statute on 113; Pierce v. New Bedford, 129 Mass.
municipalities. Chicago v. Manhattan 534; Ray o. Manchester, 46 N. H. 69;
Cement Co., 178 111. 372, 53 N. E. 68, 45 Altvaterv. Baltimore, 31 Md. 462; Huteh-
L. K. A. 848, 69 Am. St. 321.] city is A inson v. Concord, 41 Vt. 271; Calwell v.
not liable for the destruction of a house Bbone, 51 Iowa, 687, 2 N. W. 614, 33 Am.
by fire set by sparks from an engine Rep. 154; Schultz r. Milwaukee, 49 Wis.
which was by its ordinances a nuisance 254, 5 N. W. 342, 35 Am. Rep. 779; Bur-
" In the exercise ford v. Grand Rapids, 53 Mich. 98, 18 N.
subject to abatement.
of such powers a city is not bound to act W. 571 Weller v. Burlington. 60 Vt. 28,
;
ordinance whereby adjoining property A. 538, 65 Am. St. 256 ;] but see Taylor
is burned. Hines v. Charlotte, 72 Mich. v. Cumberland, 64 Md. 68, 20 Atl. 1027;
278, 40 N. W. 333. Nor for failure to pro- nor for fitting a path for " coasting " in
hibit manufacture of fireworks. McDade public grounds, where a collision occurs
v. Chester, 117 Pa. St. 414, 12 Atl. 421. with a person passing it : Steele v. Bos-
Nor is it liable for neglect to construct ton, 128 Mass. 583; [jior for not prevent-
a proper system of drainage, in conse- ing the running at large of dogs when
quence of which plaintiff's store was over- hydrophobia is epidemic: Smith v. Selins-
flowed in an extraordinary rain. Carr v. grove, 199 Pa. 615, 49 Atl. 213 ;J nor for
Northern Liberties, 35 Pa St. 324 Flagg ; failure to light the streets sufficiently:
v. Worcester, 13 Gray, 601. Freeport v. Isbell, 83 111. 440, 25 Am.
A city is not liable for the failure to Rep. 407; Miller v. St. Paul, 38 Minn.
provide a proper water supply for the 134, 36 N. W. 271 see Randall v. Rail-
;
extinguishment of fires: Grant v. Erie, road Co., 106 Mass. 276, 8 Am. Rep. 327 ;
69 Pa. St. 420, 8 Am.- Rep. 272'; Tainter nor for granting to a railroad a right of
v. Worcester, 123 Mass. 311, 25 Am. Rep. way along one of its streets Davenport :
90; Wright v. Augusta, 78 Ga. 241, Black v. Stevenson, 34 Iowa, 225 Frith v. Du- ;
Des Moines, 63 Iowa, 447, 19 N. W. 293; ington, 69 Mo. 157 nor for failure to
;
Am. Rep. 368; Patch r. Covington, 17 B. Cole v. Medina, 27 Barb. 218 [contra, Mc- ;
Boston, 104 Mass. 87, 6 Am. Rep. 196; Jones v. Williamsburg, 97 Va. 722, 34
Jewett v. New Haven, 38 Conn. 368 Tor- ;
S. E. 883, 47 L. R. A. 294 ;] nor for failure
hush v. Norwich, 38 Conn. 225, 9 Am. to build footwalks adjoining a b r idge :
Rep. 395; Howard v.San Francisco, 51 Lehigh Co. v. Hoffort, 116 Pa. St. 119, 9
Cal. 52 Heller v.
; Sedalia, 53 Mo. 159, 14 Atl. 177; nor for allowing a shooting-
Am. Rep. 444; McKenna v. St. Louis, 6 gallery to be maintained Hubbell v. :
Mo. App. 320; Robinson v. Evansville, 87 Viroqua, 67 Wis. 343, 30 N. W. 847 ; nor
Ind. 334; nor for not preventing "coast- for permitting cannon firing: Wheeler v.
1 Such as an ordinance
forbidding fire- not liable for a loss by fire which might
works within a city Hill r. Charlotte, 72
: have been prevented if the city had not
N. C. 55, 21 Am. Rep. 451 or forbidding
;
been cut off the water from one of its
cattle running at large: Rivers v. Augusta, hydrants. Tainter v. Worcester, 123
65 Ga. 376, 38 Am. Rep. 787. A city is Mass. 311.
302 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
Plymouth, 116 Ind. 158, 18 N. E. 532; 202. There can be no recovery for an
Lincoln Boston, 148 Mass. 578, 20 N. E.
v. injury caused by blasting in the course
329; Robinson v. Greenville, 42 Ohio St. of a public work, in the absence of neg-
625; rjO'Rourk v. Sioux Falls, 4 S. I). 47, ligence in the city's agent. Blumb v.
54 N.W. 1044, 19 L. R. A. 789 46 Am. St. ;
Kansas City, 84 Mo. 112; Murphy v.
700 ;3 nor the discharge of fireworks Ball :
Lowell, 128 Mass. 396. Contra, Joliet v.
Ind. 126, 19 N. E. 726; Cain v. Syracuse, 324; Fair v. Philadelphia, 88 Pa. St.
95 N. Y. 83; otherwise for injury there- 309; Collins v. Philadelphia, 93 Pa. St.
from to a person on the street. Duffy v. 272; v. New York, 76 N. Y. 60;
Lynch
Dubuque, 63 Iowa, 171, 18 N. W. 900. Larkin Saginaw, 11 Mich. 88; Detroit
v.
QBut the city as owner of vacant lots is v. Beckman, 34 Mich. 125 Lansing v. ;
subject to same duties in regard thereto Toolan, 37 Mich. 152 Davis v. Jackson,;
permits cattle to roam the streets to such v. Chippewa Falls, 52 Wis. 430, 9 N. W.
an extent that they amount to a nuisance, 284; McClure v. Redwing, 28 Minn. 186, 9
it may be liable for an injury to a person N. W. 767 ; French v. Boston, 129 Mass.
on the street, caused by a cow running at 692, 37 Am. Rep. 393; Johnston v. Dist.
large. Cochrane v. Frostburg, 81 Md. 54, Columbia, 118 U. S. 19, 6 Sup. Ct. Rep.
31 Atl. 703, 27 L. R. A. 728, 48 Am. St. p. 923 QHughes v. Auburn, 161 N. Y. 96,
;
a bathing beach, the duty to maintain abutter follows the original plan. Urqu-
which is thrust upon it by law. McGraw hart v. Ogdensburg, 91 N. Y. 67. But if
v. Dist. of Columbia, 3 App. D. C. 405, he deviates from it, the fact that the city
25 L. R. A. 691. Where it lawfully acts suffers the walk to remain does not con-
as private contractor in furnishing water stitute an adoption of it. Ibid. 97 N. Y.
to steam-heating plant, it is liable for 238. In Kansas a city may be liable if
breach. Watson v. Needham, 161 Mass. the plan is manifestly unsafe. Gould a.
404, 37 N. E. 204, 24 L. R. A. 287.] Topeka, 32 Kan. 485, 4 Pac. 822. In
1 Brewstery. Indiana it is liable for negligence in plan,
Davenport, 51 Iowa, 427,
1 N. W. 737 Wehn v. Commissioners, 5
; but not for mere errors of judgment.
Neb. 491, 25 Am. Rep. 497 (case of a jail, Seymour v. Cummins, 119 Ind. 148, 21
complained of as offensive in the neigh- N. E. 549, 6 L. R. A. 126, and note Rice v. ;
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-
" able to the plan of sewerage adopted by
general doctrine that a private action
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 Canton, 17 Conn. 475 Taylor
v. ;
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.
Mil. 468; Randall v. Eastern R. Corp., his injury, this is a trespass for which
106 Mass. 276 Hughes v. Baltimore,
;
the city is liable. Ashley v. Port Huron,
Taney, 213; Weightman v. Washington, 35 Mich. 296, citing many cases. See
1 Black, 39. A not liable to an
city is also Bloomington v. Brokaw, 77 III. 194 ;
abutter for allowing a street to be used Elgin v. Kimball, 90 111. 356; Dixon v.
for market purposes. Henkel v. Detroit, Baker, 65 111. 518, 16 Am. Rep. 591;
49 Mich. 249, 13 N. W. 611. But this Rowe v. Portsmouth, 66 N. H. 291, 22
doctrine does not deprive an individual Am. Rep. 464 Burton v. Chattanooga,
;
ner that would render a private individ- v. St. Louis, 98 Mo. 497, 11 S. W. 1001;
ual liable. See Van Pelt v. Davenport, Blakely v. Devine, 36 Minn. 53, 25 N. W.
40 Iowa, 308, 20 Am. Rep. 622, and note, 342 Seifert v. Brooklyn, 101 N. Y. 136,
;
39; Simmer v. St. Paul, 23 Minn. 408; cil Bluffs, 67 Iowa, 343, 25 N. W. 274;
Ross v. Clinton, 46 Iowa, 606 Inman 0. ; Kennison v. Beverly, 146 Mass. 467, 16
Tripp, 11 R. I. 620; Damour v. Lyons N. E. 278 ; Heth v. Fond du Lac, 63 Wis.
City, 44 Iowa, 276 ;
Thurston v. St. 228, 23 N. W. 495 [Jordan v. Benwood,
;
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 ;
v. Columbia, 88 Mo. 106; or for their
Hill Boston, 122 Mass. 344, 23 AID.
v. neuligence Pollock's Adm'r t Louis-
:
1
.
Rep. 332. QMarkey v. Queens County, ville, 13 Bush, 221, 26 Am. Rep. 260, and
154 N. Y. 675, 49 N. E. 71, 39 L. R. A. note; Little v. Madison, 49 Wis. 605, 6
46; Moran v. Pullman Palace Car Co., N. W. 249, 35 Am. Rep. 793; Jolly v.
134 Mo. 641, 36 S. W. 659, 33 L. R. A. Hawesville, 89 Ky. 279, 12 S. W. Rep.
755, 56 Am. St. 543 Snider v. St. Paul, ; 313; but see contra, Carrington v. St.
51 Minn. 466, 53 N. W. 763, 18 L. R. A. Louis, 89 Mo. 208, 1 S. W. 240; or for
151.3 Nor does it change the rule that the negligence of its firemen Burrill v. :
the duty is not specially imposed, but Augusta, 78 Me. 118, 3 All. 177; Welsh
is assumed under a general law. Wixon v. Rutland, 56 Vt. 228; Wilcox v. Chi-
r. Newport, 13 It. I. 454. A city is cago, 107 III. 334; Grube v. St. Paul, 34
not liable for the negligent management Minn. 402, 26 N. W. 228; [JGillespie v.
of its hospitals Richmond v. Long, 17:
Lincoln, 35 Neb. 34, 52 N. W. 811, 16
Gratt. 375 Benton v. Trustees, &c.,
;
L. R. A. 349; Dodge v. Granger, 17 R. I.
140 Mass. 13, 1 N. E. 836 [>r for the ; 664, 24 All. 100, 15 L. R. A. 781, and
administration of impure vaccine virus note, 83 Am. St. 901 or bridge-tender
; :
407, 39 L. R. A. 33. See also Frcel v. signal system Pettingell v. Chelsea, 161
:
county is not liable for personal injuries land, 95 111. 516 Corsicana v. White, 67
;
sustained by reason of the imperfect con- Tex. 382; [Gray Griflin, 111 Ga. 361,
.
Ilarman v. Lynchbnrg, 33 Gratt. 37 But- ; Com'rs Jasper Co. v. Allman, 142 Ind.
trick v. Lowell, 1 Allen, 172; Elliott v. 573, 42 N. E. 206, 39 L. It. A. 58; A'llern
Philadelphia, 75 Pa. St. 347 Norristown ;
v. Iowa St. Agr'l Socie'y, 91 Iowa, 97, 58
held by the corporation for its own profit 269, 57 L. R. A. 130. See also Aron v.
or advantage, it is held to the same re- Wausau, 98 Wis. 592, 74 N. W. 354, 40
sponsibility with private citizens. Moul- L. R. A. 733; Scanlon v. Wedger, 156
ton v. Scarborough, 71 Me. 267, 36 Am. Mass. 462, 31 N. E. 642, 16 L. R. A.
Rep. 308, and cases cited ; Rowland v. 395.]
Kalamazoo Supts., 49 Mich. 553, 14 N. 1 Milhau
v. Sharp, 15 Barb. 193 New ;
W. 494. QBut not where the acquisition York, &c. R. R. Co. v. New York, 1 Hil-
and holding of such property is ultra ton, 662 Buell v. Ball, 20 Iowa, 282 ;
;
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
;
1
perhaps the latter mode is best, at least it is equally good."
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.
one authorized by law, and the matter highways within its bounds, at the ex-
one in which the corporation had an in- pense of the inhabitants, so that the same
terest. Gregory r. Bridgeport, 41 Conn. may be safe and convenient for travellers;
76, 19 Am. Rep. 485. In Bristol r. John- and we think it has the power, as incident
son, 34 Mich. 123, it appeared that a to this duty, to indemnify the surveyor,
township treasurer had been robbed of or other agent, against any charge or lia-
town moneys, but had accounted to the bility he may incur in the bona fide dis-
township therefor. An act of the legis- charge of this duty, although it may turn
lature was then obtained for refunding out on investigation that he mistook his
this sum to him by
Held, not jus-
tax. legal rights and authority. The act by
tified by the constitution of the State, which the surveyor incurred a liability
which forbids the allowance of demands was the digging a ditch, as a drain for
against the public by the legislature. See the security of the highway ; and if it
People v. Supervisor of Onondaga, 16 was done for the purpose of raising a
Mich. 254. fJNo indemnity can be given legal question as to the bounds of the
an officer for a loss arising through his highway, as the defendants offered to
negligence. Thorndike v. Camden, 82 prove at the trial, the town had, never-
Me. 39, 19 Atl. 95, 7 L. R. A. 463. Where theless, a right to adopt the act, for
local improvements within the power of they were interested in the subject, being
the legislature to authorize are made bound to keep the highway in repair.
under an act later adjudged unconstitu- They had, therefore, a right to deter-
tional, and the assessment made there- mine whether they would defend the
under the legislature may authorize
fails, surveyor or not and having determined
;
a reassessment of the cost of the im- the question, and appointed the plaintiffs
provement. Chester v. Black, 132 Pa. 568, a committee to carry on the defence, they
19 Atl. 276, 6 L. R. A. 802, and note.] cannot now be allowed to deny their lia-
A municipal corporation, it is said, bility, after the committee have paid the
may offer rewards for the detection of charges incurred under the authority of
offenders within its limits but its prom-
;
the town. The town had a right to act
ise to reward aii officer for that which on the subject-matter which was within
without such reward, it was his duty to their jurisdiction and their votes are
;
do, is void. Dillon, Mun. Corp. 91, and binding and create a legal obligation, al-
cases cited. And
see note, p. 310 post. though they were under no previous obli-
gation to indemnify the surveyor. That
1 Fuller
Groton, 11 Gray, 340. See
v.
an action brought against the surveyor And see Briggs v. Whipple, 6 Vt. 95 ;
therefor, and voted to defray the expenses Sherman v. Carr, 8 R. I. 431. collector A
incurred by the committee. By the court: may he indemnified for public money
" It is the
duty of a town to repah all 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
Commissioners, 36 Ohio St. 476. Com- within the city, and pledged the faith of
pare Bristol v. Johnson, 34 Mich. 123. the city to the payment of the value.
1
Guilford v. Supervisors of Chenango, The Court of Appeals of Virginia after-
13 N. Y. 143. See this case commented wards decided that the city might be held
upon by Lyon, J., in State v. Tappan, 29 liable on the pledge in an action of as-
"
Wis. 664, 680. On the page last men- sumpsit. Rives, 3., says: By its charter
"
tioned it is said We have seen no case,
: the council is specially empowered to
except in the courts of New York, which
'
pass by-laws, rules, and regulations
all
holds that such moral obligation gives the which they shall deem necessary for the
legislature power to compel payment." peace, comfort, convenience, good order,
The case in New York is referred to as good morals, health, or safety of said city,
authority in New Orleans v. Clark, 95 or of the people or property therein.' It
U. S. 644. Where officers make them- is hard to conceive of larger terms for the
selves liable to penalties for refusal to grant of sovereign legislative powers to
perform duty, the corporation has no au- the specified end than those thus em-
thority to indemnify them. Halstead v. ployed in the charter; and they must be
Mayor, &c. of New* York, 3 N. Y. 430; taken by necessary and unavoidable in-
Merrill v. Plainfield, 45 N. H. 126 See tendment to comprise the powers of emi-
Frost Belmont, 6 Allen, 152 People v.
v. ;
nent domain within these limits of pre-
Lawrence, 6 Hill, 244 Vincent v. Nan-
;
scribed jurisdiction. There were two
tucket, 12 Cush. 103. modes open to the council: first, to direct
A somewhat peculiar question was
2
the destruction of these stores, leaving
involved in the case of Jones v. Rich- the question of the city's liability therefor
mond, 18 Gratt. 517. In anticipation of to be afterwards litigated and determined ;
liquors, the common council ordered the damages but they thought proper to
;
seizure and destruction of all such liquors adopt the latter mode, make it a matter of
310 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
contract, and approach their citizens, not of a person supposed to have committed
as trespassers, but with the amicable prof- murder Gale v. South Berwick,
therein.
fer of a formal receipt and the plighted 51 Me. See also Hawk v. Marion
174.
faith of the city for the payment. In this County, 48 Iowa, 472 Hanger v. Des ;
they seem to me
be well justified."
to Moines, 52 Iowa, 193, 2 N. W. 1105; 35
Judge Dillon doubts the soundness of this Am. Rep. 266 Board of Commissioners .
;
decision. Dillon, Mun. Corp. 871, note. Bradford, 72 Ind. 455, 37 Am. Rep.
The case seems to us analogous in princi- 174; Patton v. Stephens, 14 Bush, 324.
ple to that of the destruction of buildings Contra, Borough of York v. Forscht, 23
to stop the progress of a fire. In each Pa. St. 391 ;
and see, People v. Holly,
case private property is destroyed to an- supra. As to the power of a municipality
ticipate and prevent an impending public to bind itself by the offer of a reward,
calamity. [Jones v. Richmond is over- see, further, Crawshaw v. Roxbury, 7
ruled in Wallace v. Richmond, 94 Va. Gray, 374 Lee v. Flemingsburgh, 7
;
post, pp. 757, 867, 868. [Village may of- 367, 1 N. W. 952 Janvrin v. Exeter, 48
;
fer reward for arrest and conviction of N. H. 83; Murphy v. Jacksonville, 18 Fla.
incendiaries. People v. Holly, 119 Mich. 318. An officer cannot claim an offered
637, 78 N. W. 665, 44 L. R. A. 677, 75 Am. reward for merely doing his duty. Pool v.
St. 435-3 Boston, 5 Cush, 219. See Stamp v. Cass
Hodges v. Buffalo, 2 Denio, 110. See County, 47 Mich. 330, 11 N. W. 183. Nor,
1
also the case of New London v. Brainard, under its general authority to raise
22 Conn. 552, which follows and approves money for " necessary town charges," is
this case. The cases differ in this only : a town authorized to raise and expend
that in the first, suit was brought to en- moneys to send lobbyists to the legisla-
force the illegal contract, while in the ture. Frankfort v. Winterport, 54 Me.
second the city was enjoined from paying 250; Mead v. Acton, 139 Mass. 341, 1 N.
over moneys which it had appropriated E. 413. Nor, under like authority, to
for the purposes of the celebration. The furnish a uniform for a volunteer mili-
cases of Tash v. Adams, 10 Cush. 252 ; tary company. Claflin v. Hopkinton, 4
Hood v. Lynn, 1 Allen, 103, and Austin v. Gray, 502. Under power to raise money
Coggeshall, 12 R. I. 329, 34 Am. Rep. 648, for celebration of holidays and "other
are to the same effect. A town, it has public purposes," it may raise it for pub-
been held, cannot lawfully be assessed to lic concerts. Hubbard v. Taunton, 140
pay a reward offered by a vote of the Mass. 467, 5 N. E. 167. Where a munic-
town for the apprehension and conviction ipal corporation enters into a contract
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 311
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.
3 " In
ery Water Works, 79 Ala. 233. ^County 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.
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
1
corporate limits for that purpose. 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
3
only.
But the question is a very different one how far the legislature
2
such cases the question still will recur, 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 Stamford, 37 Conn. 578.
v. 67 Am. St. 874.]
1 v. Rochester, 9 N. Y. 64. 3 In Parsons v.
Riley It is 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
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
have We
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
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. Ifwe 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 to consider with care the limitations to
Ante, pp. 166-168.
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.
speculation was not as yet rife. When the rectly place upon their shoulders by the
construction of railways and canals was aid of municipal action.
first entered upon by an expenditure of The legislation adopted under this
public funds to any considerable extent, construction some of the courts felt
the States themselves took them in compelled to sustain, upon the accepted
charge, and for a time appropriated large principle of constitutional law that no
sums and incurred immense debts in legislative authority is forbidden to the
enterprises, some of which were of high legislature unless forbidden in terms;
importance and others of little value, the and the voting of municipal aid to rail-
cost and management of which threatened roads became almost a matter of course
them at length with financial disaster, wherever a plausible scheme could be
bankruptcy, and possible repudiation. presented by interested parties to invite
No long experience was required to dem- it. In some localities, it is true, vigorous
onstrate that railways and canals could protest was made ; but as the handling
not be profitably, prudently, or safely of a large -amount of public money was
managed by the shifting administrations usually expected to make the fortune
of State government ; and many of the of the projectors, whether the enterprise
States not only made provision for dis- proved successful or not, means either
posing of their interest in works of public fair or unfair were generally found to
phraseology very closely, not that they and the cases might almost be said to be
might arrive at the actual purpose, exceptional in which municipalities, when
which indeed was obvious enough, but afterwards they were called upon to meet
to discover whether that purpose might their obligations, could do so with a feel-
not be defeated without a violation of the ing of having received the expected con-
express terms. The purpose clearly was sideration. Some State and territorial
to remand all such undertakings to pri- governors did noble work in endeavoring
vate enterprise, and to protect the citi- to stay this reckless legislative and mu-
zens of the State from being taxed to aid nicipal action, and some of the States at
them; but while the State was forbidden length rendered such action impossible
to engage in such works, it was unfor- by constitutional provisions so plain and
tunately not expressly declared that positive that the most ingenious mind
the several members of the State, in was unable to misunderstand or pervert
their corporate capacity, were also for- them.
bidden to do so. The conclusion sought When the United States entered upon
and reached was that the agencies of the a scheme of internal improvement, the
State were at liberty to do what was for- Cumberland road was the first important
bidden to the State itself, and the burden project for which its revenues were de-
of debt which the State might not directly manded. The promises of this enterprise
impose upon its citizens, it might indi- were of continental magnificence and
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 315
importance, but they ended, after heavy by settlers who would have lessened his
national expenditures, in a road no more taxes by contributing their share to the
national than a thousand others which the public burdens. The grants, therefore,
road-masters in the several States have in such cases, instead of being at once
constructed with the local taxes and it
;
devoted to improvements for the benefit
was finally abandoned to the States as a of settlers, were in fact kept in a state of
common highway. When next a great nature by the speculators who had se-
nationalscheme was broached, the aid of cured them, until the improvements of
the general government was demanded settlers in their vicinity couldmake the
by way of subsidies to private corpora- grantees wealthy by the increase in value
tions, who presented schemes of works which such improvements gave to the
of great public convenience and utility, land near them. In saying this the ad-
which were to open up the new Territories mission is freely made that in many cases
to improvement and settlement sooner the grants were promptly and honestly
than the business of the country would appropriated in accordance with their
be likely to induce unaided private capi- nominal purpose but the general verdict
;
tal to do it, and which consequently ap- now is that the system was necessarily
pealed to the imagination rather than to corruptive and tended to invite fraud,
facts to demonstrate their importance, and that some persons of influence man-
and afforded abundant opportunity for aged to accumulate great wealth by
sharp operators to call to their assistance grants indirectly secured to themselves
the national sentiment, then peculiarly under the unfounded pretence of a desire
strong and active by reason of the at- to aid and encourage the pioneers in the
tempt recently made to overthrow the wilderness.
government, in favor of projects whose Some States also have recently in
national importance in many cases the their corporate capacity again engaged
imagination alone could discover. The in issuing bonds to subsidize private
general result was the giving away of corporations, with the natural result of
immense bodies of land, and in some serious State scandals, State insolvency,
cases the granting of pecuniary aid, with public discontent, and in some cases, it
a recklessness and often with an appear- would seem, almost inevitable repudia-
ance of corruption that at length startled tion. Their governments, amid the dis-
the people, and aroused a public spirit orders of the times, have fallen into the
before which the active spirits in Con- bands of strangers and novices,and the
gress who had promoted these grants, hobby improvement has been
of public
and sometimes even demanded them in ridden furiously under the spur of indi-
the name of the poor settler in the wilder- vidual greed.
ness who was unable to get his crops to It has often been well remarked that
market, were compelled to give way. the abuse of a power furnishes no argu-
The scandalous frauds connected with ment against its existence ; but a system
the Pacific Railway, which disgraced the so open to abuses may well challenge at-
nation in the face of the world, and the tention to its foundations. And when
great and disastrous financial panic of those foundations are examined, it is not
1873, were legitimate results of such easy to find for them any sound support
subsidies ; but the pioneer in the wilder- in the municipal constitutional law of
ness had long before discovered that land this country. The same reasons which
grants were not always sought or taken justify subsidies to the business of com-
with a view to an immediate appropria- mon carriers by railway will support
tion to the roads for the construction of taxation in aid of any private business
which they were nominally made, but that whatsoever.
the result in many cases was that large It is sometimes loosely said that rail-
tracts were thereby kept out of the mar- way companies are public corporations,
ket and from taxation, which otherwise but the law does not so regard them. It
would have been purchased and occupied is the settled doctrine of the law that,
316 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
like banks, mining companies, and man- the public burden ; the latter compels
ufacturing companies, they are mere him to part with nothing for which he is
private corporations, supposed to be or- not to receive pecuniary compensation.
ganized for the benefit of the individual The tax in the one case is an exaction,
corporators, and subject to no other pub- the appropriation in the other is only a
licsupervision or control than any other forced sale. To take money for private
private association for business purposes purposes under pretence of taxation is,
to which corporate powers have been as has been often said, but robbery and
granted. Darmouth College v. Wood- plunder; to appropriate under the right
ward, 4 Wheat. 518; Bonaparte v. Cam- of eminent domain for a private corpora-
den & Amboy R. R. Co., Baldw. 216; tion robs no one, because the corporation
Eustis v. Parker, 1 N. H. 273 ; Ohio, c. pays for what is taken, and in some
R. R. Co. v.. Ridge, 5 Blackf. 78; Cox v. cases, important to the welfare and pros-
Louisville, &c. R
R. Co., 48 Ind. 178, 189 ; perity of the community, and where a
Roanoke, &c. R. R. Co. v. Davis, 2 Dev. public convenience is to be provided, as
& Bat. 451 Dearborn v. Boston, C. & M.
;
in the case of a grist mill, it has long
welfare; but in law the purpose of any order to loan the moneys out to the per-
such burden is deemed private, and the sons who had suffered by the fire. Like
incidental benefit to the public is not decisions are found in State r. Osawkee,
recognized as an admissible basis of 14 Kan. 418, and Feldman i'. City Coun-
taxation. cil, 23 S. C. 57. These decisions of emi-
In Allen v. Inhabitants of Jay, 60 Me. nent tribunals indicate a limit to legisla-
124, 11 Am. Rep. 185, it became uec- tive power in the matter of taxation, and
essary to reaffirm a doctrine, often de- hold, what has been decided very many
clared by the courts, that however great times before, that it is not necessary the
was the power to tax, it was exceeded, constitution should forbid expressly the
and the legislature was attempting the taxing for private purposes, since it is
exercise of apower not legislative in its implied in the very idea of taxation that
character, when it undertook to impose a the purpose must be public, and a taking
burden on the public for a private pur- for any other purpose is unlawful confis-
pose. And it was also held that the rais- cation. Cooley on Taxation, 67 et seq.
ing of money by tax in order to loan the One difference there undoubtedly is
same to private parties to enable them between the case of a railroad corporation
to erect mills and manufactories in such and a manufacturing corporation; that
town, was raising it for a private purpose, there are precedents in favor of taxing
and therefore illegal. Appleton, Ch. J., for the one and not for the other. But if
most truly remarks in that case, that " all the precedents are a departure from
security of private rights, all protection sound principle, then, as in every other
of private property, is at an end, when case where principle is departed from,
one is compelled to raise money to loan evils were to have been expected. A
at the will of others for their own use and catalogue of these would include the
benefit, when the power is given to a squandering of the public domain the ;
majority to lend or give away the prop- enrichment of schemers whose policy it
erty of an unwilling minority." And yet has been, first, to obtain all they can by
how plain it is that the benefit of the fair promises, and then avoid as far and
local public might possibly have been as long as possible the fulfilment of the
promoted by the proposed erections. See, promises the corruption of legislation ;
;
to the same effect, Loan Association v. the loss of State credit great public ;
Topeka, 20 Wall. 655, where the whole debts recklessly contracted for moneys
subject is carefully considered and pre- often recklessly expended public dis- ;
sented with clearness and force, in an content because the enterprises fostered
opinion by Mr. Justice Miller ; also Com- from the public treasury and on the pre-
mercial Bank v. lola, 2 Dill. C. C. 355 ; tence of public benefit are not believed
9 Kan. 689; Weismer
Douglas, 64 v. to be managed in the public interest;
N. Y. 91, 21 Am. Rep. 586; Parkers- and, finally, great financial panic, col-
burg v. Brown, 106 U. S. 487, 1 Sup. Ct. lapse, and disaster. At such a cost has
Rep. 442; Cole v. La Grange, 113 U. S. the strong expression of dissent which all
1, 5 Sup. Ct. Rep. 416, and cases cited ;
the while has accompanied these prece-
Mather v. Ottawa, 114 111. 659, 3 N. E. dents been disregarded and set aside.
216. Where legislature is prohibited from
These cases are not singular they are :
making a gift to any private person or
representative cases and they are cited
; corporation, it cannot release a debt due
only because they are among he most to State from such person or corporation :
recent expressions of judicial opinion on Matter of Stanford, 126 Cal. 112, 54 Pac.
the subject. With them may be placed 259, 58 Pac. 462, 45 L. R. A. 788, an ap-
" relief " of a street con-
Lowell v. Boston, 111 Mass 454, 15 Am. propriation for
Rep. 39, in which the Supreme Court of tractor is void. Conlin v. San Francisco,
Massachusetts, after the great fire of 99 Cal. 17, 33 Pac. 753, 21 L. R. A. 474,
1872 in Boston, denied the power of the 37 Am. St. 17 so one for benefit of suf-
;
318 CONSTITUTIONAL LIMITATIONS. [CH. VIIL
Wall. 384, the court seem to have con- Oxford, 16 Kan. 72 Hamlin v. Meadville,
;
p. 312, notes. A municipal corporation Barb. 105. But power to issue interest-
having power to borrow money, it is bearing bonds carries with it power to
held, may make its obligations payable issue negotiable coupons for the interest.
wherever it shall agree. Meyer v. Mus- Board of Ed. v. De Kay, 148 U. S. 591, 13
catine, 1 Wall. 384; Lynde v. County, 16 Sup. Ct. Rep. 706. Where the statute
Wall. 6. But some cases hold that such requires that the bonds shall recite the
obligations can only be made payable at purposes for which they are issued, it is
the corporation treasury, unless there is not sufficient to recite that they are
express legislative authority to make issued by virtue of a specified ordinance
them payable elsewhere. People v. Taze- in which is contained a statement of the
well County, 22 111. 147 Pekin v. Rey- ; purpose for which the bonds are to be
nolds, 31 III. 529. If the power to issue issued. Bonds containing no further or
bonds is given, power to tax to meet more specific recital of purpose are void
them is impliedly given, unless a clear in the hands of every holder. Barnett v.
intent to the contrary is shown. Quincy Denison, 145 U. S. 135, 12 Sup. Ct. Rep.
v. Jackson, 113 U. S. 332, 5 Sup. Ct. 819. Where question submitted to pop-
Rep. 544 ^Scotland Co. Courts. United
;
ular vote was on bonds bearing interest
States, 140 U. S. 41, 11 Sup. Ct. Rep. payable annually, making interest pay-
697. But power to borrow money on the able semiannually invalidates the bonds.
credit of the city does not of itself in- Skinner v. Santa Rosa, 107 Cal. 469, 40
clude power to issue negotiable bonds Pac. 742, 29 L. R. A. 512. Where stat-
therefor. Brenham v. German Ameri- ute prescribes that they shall be payable
"
can Bank, 144 U. S. 173, 540, 12 Sup. Ct. in gold coin or lawful money of the
44 Am. St. 222, 23 L. R. A. 402, and note ; 457, this doctrine is approved and a dis-
;
Crowder v. Sullivan, 128 Ind. 486, 28 N. tinction made, in the earlier case of Smead
E. 94, 13 L. R. A. 647 Quill v. Indian-
;
v. Indianapolis, &c. Railroad Co., 11 Ind.
apolis, 124 Ind. 292, 23 N. E. 788, 7 L. It. A. 104, between paper executed ultra vires
681.] and that executed within the power of
In Stoney American Life Insurance
v. the corporation, but, by an abuse of the
Co., 11 Paige, 686,it was held that a ne- power in that particular instance, was re-
hands of sucli holder than any other com- 355 Colorna v. Eaves, 92 U. S.484; Venice
;
Ohio St. 626. In Farmers' & Mechanics' v. Needles, 103 U. S. 648 [Cairo v. Zane,
:
Bank v. Butchers' & Drovers' Bank, 16 149 U. S. 122, 13 Sup. Ct. Rep. 803.]
N. Y. 125, 129, it is said ": A
citizen who That neither irregularities in issuing
deals directly with a corporation, or who bonds nor fraud in obtaining them will
21
322 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
be a defence in the hands of bona fide though some of the purported obligations
holders, see foregoing cases, and also retired by their issue were in fact invalid.
Maxcy v. Williamson Co., 72 III. 207; Graves v. Saline Co., 161 U. S. 359, 16
Nicolay v. St. Clair, 3 Dillon, 163 East
; Sup. Ct. Rep. 526. See, to like effect,
Lincoln v. Davenport, 94 U. S. 801 Cop-;
Evansville v. Dennett, 161 U. S. 434, 16
per v. Mayor, &c., 44 N. J. L. 634 Aber-
; Sup. Ct. Rep. 613; Andes v. Ely, 158
deen v. Sykes, 59 Miss. 236 Lynchburg
;
U. S. 312, 15 Sup. Ct. Rep. 954. But
v. Slaughter, 75 Va. 57. [But when one where the recitals in the bonds neither
in whose hands the bonds are invalid expressly nor by necessary implication
puts them in course of trade so that import a compliance with conditions prec-
they get into the hands of a bona fide edent, it is open to the municipality to
holder and are enforced against the ob- show that the conditions had not been
ligor, he is liable to such obligor for the performed when the bonds were issued,
tort. Winona & St. P. R. Co. v. Plain- and have never since been performed.
view, 143 U. S. 371, 12 Sup. Ct. Rep. 630.] Citizens' Sav. & Loan Assn. v. Perry
See, further, that there may be an estop- County, 156 U. S. 692, 15 Sup. Ct. Rep.
pel by the recitals in favor of a bona fide 547. Upon power to issue municipal
holder: Ottawa v. Nat. Bank, 105 U. S. bonds, &c., see note to 39 L. ed. U. S. 585.
342; Pana v. Bowler, 107 U. S. 529, See an interesting case upon municipal
2 Sup. Ct. Rep. 704; Sherman Co. v. bonds in Knox County v. Ninth Nat. Bk.,
Simons, 109 U. S. 735, 3 Sup. Ct. Rep. 147 U. S. 91, 13 Sup. Ct. Rep. 267, where
602 New Providence v. Halsey, 117 U. S.
;
it became necessary to determine under
336, 6 Sup. Ct. Rep. 764; Oregon v. Jen- which of two legislative authorizations
nings, 119 U. S. 74, 7 Sup. Ct. Hep. 124; the bonds were actually issued.] Such
State r. Montgomery, 74 Ala. 226 Shurt-
; estoppel only applies to matters of pro-
leff v. Wiscasset, 74 Me. 130; QGunnison cedure which the corporate officers had
Co. Com'rs r. Rollins & Sons, 173 U. S. authority to determine and certify. It
255, 19 Sup. Ct. Rep. 390; Harper Co. cannot supply the lack of statutory au-
Com'rs v. Rose, 140 U. S. 71, 11 Sup. thority : Northern Bank v. Porter Town-
Ct. Rep. 710; Chaffee Co. Com'rs v. ship, 110 U. S. 608, 4 Sup. Ct. Rep. 254;
Potter, 142 U. S. 355, 12 Sup. Ct. Rep. Dixon Co. v. Field, 111 U. S. 83, 4 Sup.
216; Huron v. 2d Ward Sav. Bk., 57 Ct. Rep. 315; School District v. Stone,
U. S. App. 593, 86 Fed. Rep. 272, 30 106 U. S. 183, 1 Sup. Ct. Rep. 84 Parkers- ;
& S. R. Co. v. Fox, 48 Kan. 70, 28 Pac. v. Dixon County, 150 U. S. 182, 14 Sup.
1078, 15 L. R. A. 401. Where a munici- Ct. Rep. 71; Sutliff v. Bd. of Co. Com.,
pality is authorized by statute to issue 147 U. S. 230, 13 Sup. Ct. Rep. 318 Cass ;
against the town to recover the money power of the agent. Where the agent is
paid for the bonds. Travellers' Ins. Co. appointed and the power conferred, but
v. Johnson City, 99 Fed. Rep. 663, 49 the right to exercise the power has been
L. R. A. 123-3 A
holder cannot recover made depend upon the existence of
to
if the bonds show on their face their issue facts of which the agent may naturally be
under a void act: Cole v. La Grange, supposed to be in an especial manner cog-
113 U. S. 1, 5 Sup. Ct. Rep. 416; or show nizant, the bona fide holder is protected ;
was also held that any negotiable secu- 13 Ohio St. 311 Veeder v. Lima, 19 Wis.
;
rities not issued by the defendants in 280. The subject is reviewed in Clark v.
their proper and legitimate business, were Des Moines, 19 Iowa, 199. The action
void in the hands of the plaintiff, although was brought upon city warrants, nego-
received by him without actual notice of tiable in form, and of which the plaintiff
their consideration. This decision was claimed to be bona fide assignee, without
affirmed in 3 N. Y. 430. In Gould v. notice of any defects. The city offered
Town of Stirling, 23 N. Y. 456, it was to show that the warrants were issued
held that where a town had issued nego- without any authority from the city
tiable bonds, which could only be issued council and without any vote of the
when the written assent of two-thirds of council authorizing the same. It was
the resident persons taxed in the town held that the evidence should have been
had been obtained and filed in the county admitted, and that it would constitute
clerk's office, the bonds issued without a complete defence. See further, Head
such assent were invalid, and that the v. Providence, &c. Co., 2 Cranch, 127 ;
purchaser of them could not rely upon Royal British Bank v. Turquand, 6 El.
the recital in the bonds that such assent & Bl. 327; Knox County v. Aspinwall,
had been obtained, but must ascertain for 21 How. 539; Bissell v. Jeffersonville, 24
himself at his peril. Say the court: "One How. 287 Sanborn v. Deerfield, 2 N. H.
;
tiable paper, as such bonds are always v. Franklin County, 48 Mo. 167 ; Osage,
issued under special statutory authority, &c. R. R. Co. v. Morgan County, 53 Mo.
and are only valid when the statute is 156 Smith v. Clark Co., 54 Mo. 58 State
; ;
complied with. To the same effect are v. Sutterfield, 54 Mo. 391 Columbia Co.
;
Iowa, 142; Clark v. Des Moines, 19 Iowa, Cummins, 142 U. S. 366, 12 Sup. Ct. Rep.
199; McPherson v. Foster, 43 Iowa, 48; 220, in case issue is not in exchange for
Marsh v. Supervisors of Fulton Co., 10 outstanding evidence of indebtedness.
Wall. 676. If they are not valid, no Irregularities in the conduct of the
subsequent ratification by the corporation election held to secure a popular author-
can make them so. Leavenworth v. Ran- ization of a proposed bond issue are a
kin, 2 Kan. 357. If bonds are voted upon sufficientground for enjoining the issue.
a condition, and issued before the condi- Murphy San Luis Obispo, 119 Cal. 624,
v.
1 Slack v. Railroad Co., 13 B. Monr. 1. tion the legislature, inhibited from in-
if
2 v. Railroad Co., 4 a debt beyond fifty thousand
Dubuque County curring
Greene (Iowa), 1 Clapp c. Cedar County,
;
dollars on behalf of the State, may force
6 Iowa, 15; Clark r. Janesville, 10 Wia. a debt tenfold or one hundred-fold greater
136; Bushnell v. Beloit, 10 Wis. 195; is no limit to the power
for there
value of this provision of the constitu- itself upon the minds of our people, that
326 CONSTITUTIONAL LIMITATIONS. [CII. VIII.
works of internal improvement should be States were found which were supposed
private enterprises ; that it was not with- to sanction the doctrine that, under such
in the proper province of government to circumstances, the State might do indi-
connect itself with their construction or rectly through its subdivisions what di-
significant title of
'
Finance and Taxa- townships, cities, and villages to do so.
tion,' several provisions expressly pro- The State could not load down its people
hibiting the State from being a party to, with taxes for the construction of a pub-
or interested in, any work of internal im- lic improvement, but it might compel the
to incur the like burdensome taxation in constitution do preclude the State from
order to accomplish public improvements loaning the public credit to private cor-
in cases where they were not content to porations, and from imposing taxation
wait the result of private enterprise. The upon its citizens or any portion thereof
people meant to erect such effectual bar- in aid of the construction of railroads. So
riers that if the temptation should return, the people supposed when the constitu-
the means of inflicting the like injury tion was adopted. Constitutions do not
upon the credit, reputation, and pros- change with the varying tides of public
perity of the State should not be within opinion and desire; the will of the people
the reach of the authorities. They be- therein recorded is the same inflexible
lieved these clauses of the constitution law until changed by their own delibera-
accomplished this purpose perfectly, and tive action and it cannot be permissible
;
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
,
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.
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
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.
furnish support to his family,if he can- lieveit 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.
and good conduct, is a common loss,
erty, 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
; ;
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 not a private trans-
is 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
vania case, cited in the preceding note, missioners v. Bearss, 25 Ind. 110 Co- ;
saw decided, authorized the borough to mer Fulsom, 13 Minn. 219 State v.
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 ;
HartHolden, 55 Me. 572 Burn-
v. ;
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 " To make a tax law
128, per Butler,,!.
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.
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. Association for moneys advanced to free
Hade, 52 Pa. St. 474.
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
" We are
Pa. St. 317. borrowed. The court say :
bers, or expressly to aid the township in Allen, 570, it was held that the legisla-
saving its people from a draft, with the ture could not empower towns to raise
understanding that it was advanced in the money by taxation for the purpose of re-
character of a loan if the legislature chose funding what had been paid by individ-
to direct itsrepayment, and the school uals for substitutes in military service.
directors chose to act upon the author- In Mead v. Acton, 139 Mass. 341, 1 N. E.
ity conferred. This we cannot agree to. 413, it was held that an act passed in
Such an enactment would not be legisla- 1882 was void, which permitted taxation
tion at all. It would be in the nature of to pay bounties to those who re-enlisted
judicial action, it is true but, wanting
;
in 1864, as being for a private purpose.
the justice of notice to parties to be af- In Cass v. Dillon, 16 Ohio St. 38, it was
fected by the hearing, trial, and all that held that taxes to refund bounties pre-
gives sanction and force to regular judi- viously and voluntarily paid might be
cial proceedings, it would much more re- authorized. See also State v. Harris, 17
semble an imperial rescript than consti- Ohio St. 608. The Supreme Court of
tutional legislation first, in declaring an
:
Wisconsin, in the well-reasoned case of
obligation where none was created or State v. Tappan, 29 Wis. 664, deny the
previously existed and next, in decree-
; power of the State to compel a municipal
ing payment by directing the money or corporation to pay bounties where it has
property of the people to be sequestered not voted to do so. fjAct authorizing
to make the payment. The legislature county to raise by taxation money to pay
can exercise no such despotic functions ; to men drafted and serving in Union
and as it is not apparent in the act that armies in Civil War, or to their heirs,
they attempted to do so, we are not specified sums of money is void, as
to presume they did. They
evidently authorizing a devotion of public moneys
intended the advancements to be reim- to private purposes. Busli v. Bd. of Su-
bursed to be only such as were made on pervisors of Orange Co., 159 N. Y. 212,
the faith that they were to be returned." 63 N. E. 1121, 45 L. R. A. 556, 70 Am.
See also Crowell v. Hopkinton, 45 N. H. St. 638.;]
1
9; Miller Grandy, 13 Mich. 540; Pease
v. Freeland v. Hastings, 10 Allen, 670,
v. Chicago, 21 111. 500; Ferguson v. Land- 686. And see Hilbish v. Catherman, 64
ram, 6 Bush, 230; Esty v. Westminster, Pa. St. 154, and compare Tyson v. School
97 Mass. 324; Cole Bedford, 97 Mass.
?-.
Directors, 61 Pa. St. 9. [JTlie question
326 Usher v. Colchester, 33 Conn. 667
; ;
of the right to pension school teachers
Perkins v. Milford, 69 Me. 315; Thomp- was before the court in Hibhard v. State,
son v. Pittston, 59 Me. 315; Kelly v. Mar- 65 Ohio, 674, 61 N. E. 109, and the right
shall, 69 Pa. St. 319. The legislature denied as involving the taking of private
cannot ratify the action of a town in property without due process of law and
agreeing to repay those who paid money because the particular act was not uni-
to avoid the draft. Bowles v. Landaff, 59 form in its operatiou.]
N. H. 164. In Freeland v. Hastings, 10
CONSTITUTIONAL LIMITATIONS. [CH. VIII.
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 fully be chosen by the central authority.
what is said by Campbell, Ch. J., in People Dillon, Mun. Corp. 33. See People v.
. Hurlbut, 24 Mich. 44, 87, et seq. also ;
Com. Council of Detroit, 28 Mich. 228.
p. 97. See s. c. 9 Am. Rep. 103. Much The legislature cannot appoint a board to
has been said concerning the necessity have charge of the public works, streets,
of legislative interference in some cases and fire department of a city. State v.
where bad men were coming into power Denny, 118 Ind. 382, 21 N. E. 252, 274, 4 L.
through universal suffrage in cities, but R. A. 79 Evansville r. State, 118 Ind. 426,
;
the recent experience of the country 21 N. E. 267, 4 L. R. A. 93. Nor may a city
shows that this has oftener been said board control the police of neighboring
to pave the way for bad men to obtain townships which are not represented on
office or grants of unusual powers from it. Metr. Police Board v. Wayne County
the legislature than with any purpose to Auditors, 68 Mich. 576, 36 N. W. 743.
effect local reforms. And the great mu- But the State may provide for the ap-
nicipal scandals and frauds that have pointment of police officials in a city.
prevailed, like those which were so no- Com. v. Plaisted, 148 Mass. 374, 19 N. E.
torious in New York have been
City, 224, 12 Am. St. 666,2 L. R. A. 142; State
made possible and then nursed and fos- v. Seavey, 22 Neb. 454, 36 N. W. 228;
tered by illegitimate interference at the [JNewport v. Horton, 22 R. I. 196, 47 Atl.
seat of State government. Some officers, 312, 50 L. R. A. 330. Not so in Wiscon-
usually of local appointment, are un- sin. O'Connor v. Fond du Lac, 109 Wis.
doubtedly to be regarded as State officers 253, 85 N. W. 327.] See State v. Hunter,
whose choice may be confided to a State 38 Kan. 578, 17 Pac. 177. And it may
authority without any invasion of local empower a board of water commission-
rights such as militia officers, officers of
; ers, created by itself, to bond a city.
police, and those who have charge of the David v. Portland Water Com., 14 Oreg.
raise the necessary taxes for the purpose they cannot repudiate ;
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.
2 In
laidupon a municipality, the proper dis- 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.
corporation for municipal purposes, pro- 824. See State v. Foley, 30 Minn. 350,
vided it does not impair the obligation of 15 N. W. 375; Caldwell Co. v. Harbert,
a contract, and by appropriate legislation 68 Tex. 321, 4 S. W. 607. [Where the
may so controlits affairs as ultimately to Constitution provides that no county
compel out of the funds in its treasury,
it, shall give any money or property in aid
or by taxation to be imposed for that of any individual, association, or corpora-
purpose, to pay a demand when properly tion, the legislature cannot authorize the
established, which in good conscience it retrial of a demand against a county
ought to pay, even though there be no where judgment upon the first trial was
legal liability to pay it" (citing Blanding for the county. Re Greene, 166 N. Y.
v. Burr, 13 Cal. 343; Beals v. Amador 485, 60 N. E. 183.] In Creighton v. San
Co., 35 Cal. 624; People v.
Supervisors Francisco, 42 Cal. 446, it is said that
of San Francisco, 11 Cal. 206; Sharp v. the power of the legislature to appropri-
Contra Costa Co., 34 Cal. 284 People v. ;
ate the money of municipal corporations
McCreery, 34 Cal. 432; People v. Ala- in payment of equitable claims to indi-
meda, 26 Cal. 641, and holding that a viduals, not enforceable in the courts,
city might be compelled to pay the claim depends on the legislative conscience,
of persons who had acted as commis- and the judiciary will not interfere un-
sioners in the extension of certain of its less in exceptional cases. [But the Con-
streets) ;
also to Borough of Dunmore's stitution of California now prohibits such
Appeal, 62 Pa. St. 374, in which the legis- action on the part of the legislature. Con-
lature assumed the right of apportioning lin v. San Francisco Bd. of Supervisors,
the indebtedness of a town among the 99 Cal. 17, 33 Pac. 753, 21 L. R. A. 474,
boroughs carved out of it supported by
; 37 Am. St. 17. See also other cases to
Layton v. New Orleans, 12 La. Ann. 615; same effect, note 3, p. 316, and latter part
People v. Alameda, 26 Cal. 641; and of note on p. 318, ante.~^ Unquestion-
Burns v. Clarion County, 62 Pa. St. 422; ably the legislature may decide what
also to People v. Flagg, 46 N. Y. 401, in taxes shall be levied for proper purposes
which the legislative power to direct the of local government. Youngblood v. Sex-
construction of a public road, and to ton, 32 Mich. 406. [And a territorial
compel the creation of a town debt for legislature may compel the payment of
the purpose, was fully sustained to ;
debts incurred for public purposes by tlie
People v. Power, 25 111. 187 Waterville ;
inhabitants of a town before the organi-
v. County Commissioners, 69 Me. 80; zation of territorial and municipal gov-
and to numerous other cases cited, ante, ernments. Guthrie National Bank v.
p. 268, note, and which we will not occupy Guthrie, 173 U. S. 528, 19 Sup. Ct. Rep.
space by repeating here. The legislature 613; Guthrie v. Oklahoma, 1 Okla. 188,
may validate an unauthorized issue of 31 Pac. 190, 21 L. R. A. 841. See also
bonds, thereby taking away an inequi- State v. Springer, N. J. 48 Atl. ,
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 337
605 (March 4, 1901). That penalties re- an act of April 3, 1848, the commissioners
coverable at suit of party injured may of Bradford County were required to add
be laid upon counties in which lynch- $500 annually, until 1857, to the usual
ings occur, see Bd. of Com'rs of Cham- county rales and levies of the borough of
paign Co. v. Church, 62 Ohio St. 318, 67 Towanda in said county, for the purpose
N. E. 50, 48 L. R. A. 738. Legislature of defraying the expenses of the court-
may compel a city to acquire or con- house and jail, then in process of erection
struct and to pay for bridges and ferries in that borough.The act was held con-
within their limits or contiguous to them, stitutionalon the principle of assessment
but it cannot compel a county to pay of benefits. In Gordon v. Cornes, 47
the debts of a city within it. Simon v. If. Y. 608, a law was sustained which
" "
Northup, 27 Oreg. 487, 40 Pac. 560, 30 authorized and required the village of
L. R. A. 171.] Brockport to levy a tax for the erection
1 The of a State normal school building at that
subject of military bounties has
been sufficiently referred to already. As place. It is to be said of this case, how-
to the right to permit a municipal corpo- ever, that there was to be in the building
ration to burden itself with a local tax for a grammar-school free to all the children
a State object, we refer to Merrick v. Am- of proper acquirements in the village ; so
herst, 12 Allen, 600; Marks v. Trustees that the village was to receive a peculiar
of Purdue University, 37 Ind. 155; Has- and direct benefit from it, besides those
brouck v. Milwaukee, 13 Wis. 37. The which would be merely incidental to the
first was a case in which, in consideration location of the normal school in the place.
of the local benefits expected from the But for this circumstance it would be
location of the State agricultural college distinctly in conflict with State v. Haben,
in a certain town, the town was permitted 22 Wis. 660, where it was held incompe-
to levy a large local tax in addition to its tent for the legislature to appropriate the
proportion of the State burden, for the school moneys of a city to the purchase
erection of the necessary buildings. The of a site for a State normal school; and
second case was of a similar nature. The also with other cases cited in the next
third was the case of permission to levy a note. It must be conceded, however,
city tax to improve the city harbor, a that there are other cases which support
work usually done by the general govern- it And see, as supporting the last case,
ment. There are cases which go further Livingston County v. Weider, 64 111. 427 ;
than these, and hold that the legislature Burr v. Carbondale, 76 111. 455; Liv-
may compel a municipal corporation to do ingston County v. Darlington, 101 U. S.
what it may thus permit. Thus, in Kirby 407.
v. Shaw, 19 Pa. St. 258, it appeared that by
22
338 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
1 A be compelled to erect
city cannot in the preceding note, it will be "per-
buildings for a county ; but itmay be ceived, were also treated as cases merely
permitted to do it if it so elects.
Callam of apportionment. How that can be called
v. Saginaw, 50 Mich. 7, 14 N. W. 677. a case of apportionment, however, which
There are undoubtedly some cases which singles out a particular town, and taxes it
go to the extent of holding that municipal for benefits to be expected from a high-
corporations and organizations are so way running across the State, without
completely under the legislative control, doing the same by any other town in the
that whatever the legislature may permit State, it is not easy to perceive. In Com-
them to do, it may compel them to do, missioners of Revenue v. The State, 45
whether the corporators are willing or Ala. appeared that the legislature
31*9, it
not. A
leading case is Thomas v. Leland, had created a local board consisting of
24 Wend. 65. In that case it appeared the president of the county commissioners
that certain citizens of Utica had given of revenue of Mobile County, the mayor
their bond to the people of the State of of Mobile, the president of the Bank of
New York, conditioned for the payment Mobile, the president of the Mobile Cham-
into the canal fund of the sum of $38,615, ber of Commerce, and one citizen of Mo-
the estimated difference between the cost bile, appointed by the governor, as a.
of connecting the Chenango Canal with board for the improvement of the river,
the Erie at Utica, instead of at Whites- harbor, and bay of Mobile, and required
borough, as the canal commissioners had the commissioners of revenue of Mobile
contemplated and it was held within the
; County to issue to them for that purpose
constitutional powers of the legislature to county bonds to the amount of $1,000,000,
require this sum to be assessed upon the and to levy a tax to pay them. Here
taxable property of the city of Utica, was an appointment by the State of local
supposed to be benefited by the canal officers to make at the expense of the
connection. The court treat the case as locality an improvement which it has been
" the
ordinary one of local taxation to customary for the general government to
make or improve a public highway," and take in charge as one of national concern ;
dismiss it with few words. If it could be but the Supreme Court of the State sus-
considered as merely a case of the appor- tained the act, going farther, as we think,
tionment between a number of munici- in doing so, than lias been gone in any
urer, 23 Mich. 499, where it is admitted harbor was distinctly denied, though it
that over the matter of the construction was conceded that permission might be
of such a highway, as well as the appor- given, which the city could lawfully act
tionment of expense, the State authority upon. Compare also Knapp v. Grant, 27
must necessarily be complete. It has been Wis. 147; State v. Tappan, 29 Wis. 664,
considered in subsequent New York cases 9 Am. Rep. 622 ;
Atkins v. Randolph,
as a case of apportionment merely. See 31 Vt. 226. In People v. Batchellor, 53
People v. Brooklyn, 4 N. Y. 419 ; Howell N. Y. 128, the Court of Appeals, through
v.Buffalo, 37 N. Y. 267: The cases of an able and lucid opinion by Graver, J.,
Kirby v. Shaw, 19 Pa. St. 258, and Gor- denied the validity of a mandatory statute
don v. Cornes, 47 N. Y. 608, referred to compelling a town to take stock in a rail-
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 339
road corporation, and to issueits bonds in them. What would be the universal judg-
exchange therefor. The authority to per- ment, should the legislature, sua sponte,
mit the town to do this was not discussed, project magnificent and costly structures
but, taking that as admitted, it is declared within one of our cities, triumphal
that municipal corporations, in the mak- arches, splendid columns, and perpetual
ing or refusing to make arrangements of fountains, and require in the act creat-
the nature of that attempted to be forced ing them that every owner of property
upon the town in question, were entitled within the city limits should give his
to the same freedom of action precisely individual obligation for his proportion of
which individual citizens might claim. the cost, and impose such costs as a lien
This opinion reviews the prior decisions upon his property forever? What would
in the same State, and finds nothing con- be the public judgment of such an act,
flicting with the views expressed. In and wherein would it differ from the
People v. Mayor, &c. of Chicago, 51 111. act under consideration ? " And again :
"
17, 2 Am. Rep. 278, it was denied, in Here, then, is a case where taxes may
an opinion of great force and ability, de- be assessed, not by any corporate author-
liveredby Chief Justice Breese, that the ity of the city, but by commissioners, to
State could empower a board of park whom is intrusted the erection, embellish-
commissioners of State appointment to ment, and control of this park, and this
contract a debt for the city of Chicago, without consent of the property owners.
"
for the purposes of a public park for that We do not think it is within the con-
city, and without the consent of its citi- stitutional competency of the legislature
zens. The learned judge says (p. 31) : to delegate this power to these commis-
" While it is conceded that municipal sioners. If the principle be admitted
corporations, which exist only for public that the legislature can, uninvited, of
purposes, are subject at all times to the their mere will, impose such a burden as
control of the legislature creating them, this upon the city of Chicago, then one
and have in their franchises no vested mucli heavier and more onerous can be
rights, and whose powers and privileges imposed; in short, no limit can be as-
the creating power may alter, modify, or signed to legislative power in this regard.
abolish at pleasure, as they are but parts If this powerpossessed, then it must
is
v. Tatman, 13 111. 30), we are not of the of the citizen ? Would there be any suffi-
opinion that that power, such as it is, can cient security for property if such a
be so used as to compel any one of our power was conceded ? No well-regu-
many bonds against its
cities to issue its lated mind can entertain the idea that it
a park, or for any other im-
will, to erect is within the constitutional competency
provement to force it to create a debt of of the legislature to subject the earnings
millions in effect, to compel every prop-
;
of any portion of our people to the haz-
erty owner in the city to give his bond to ards of any such legislation."
pay a debt thus forced upon the city. It This case should be read in connec-
will hardly be contended that the legisla- tion with the following in the same State,
ture can compel a holder of property in and all in the same direction. People v.
Chicago to execute his individual bond as Common Council of Chicago, 51 111. 58;
security for the payment of a debt so or- Lovingston v. Wider, 63 111. 302; Peo-
dered to be contracted. A city is made up ple v. Canty, 55 111. 33 Wider v. East St.
;
of individuals owning the property within Louis, 55 111. 133; Gage v. Graham, 57
its limits, the lots and blocks which com- 111. 144 East St. Louis v. Witts, 59 111.
;
pose it, and the structures which adorn 155; Marshall v. Silliman, 61 111. 218;
340 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
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 ; ough examination of the authorities, that
Barnes v. Lacon, 84 111. 461. See also counsel had " failed to find a case wherein
People v. Common Council of Detroit, 28 it had been held that the legislature can
Mich. 228. That the legislature may compel a city against its will to incur a
compel a municipality to levy a tax for debt by the issue of its bonds for a local
a local road, see Wilcox v. Deer Lodge improvement." People v. Mayor, &c., 51
Co., 2 Mont. 574. And where a highway 111. 17, 31. See also cases pp. 699-702,
or bridge is beneficial to several munici- infra. QAnd see Cook Farm Co. v. De-
palities, the legislature may compel them troit, 124 Mich. 426, 83 N. W. 130, that
to contribute to the expense of providing citizens must be permitted to pass upon
and maintaining it, even though no por- the proposition to allow a board the
tion of it within the boundaries of
lies power of local taxation, decided on au-
some of the contributories ; and the leg- thority of Park Commissioners r. Detroit,
islature may apportion the expense. 28 Mich. 228.]
1 It was held in
State v. Williams, 68 Conn. 131, 35 Atl. People v. Hawes, 37
24, 421, 48 L. R. A. 465, aff. in Wil- Barb. 440, that the legislature had no
liams v. Eggleston, 170 U. S. 304, 18 Sup. right to direct a municipal corporation to
Ct. Rep. 617. Upon power of legislature satisfy a claim made against it for dam-
to impose burdens of this character on ages for breach of contract, out of the
municipalities, see cases collected in note funds or property of such corporation.
to 48 L. R. A. 465. That city may be In citing the cases of Guilford v. Super-
compelled to purchase and maintain a visors of Chenango, 13 N. Y. 143, and
park, see Knowlton v. Williams, 174 People v. Supervisors of New York, 11
Mass. 476, 55 N. E. 77, 47 L. R. A. 314.] Abb. 14, a distinction is drawn by which
The case of People i>. Batchellor, 53 the cases are supposed to be reconciled
N. Y. 128, seems to us clearly inconsist- with the one then under decision. " Those
ent with Thomas v. Lelaiid, supra. But, cases and many others," say the court,
"
on the other hand, the case of Duanes- p. 455, related not to the right or power
burgh v. Jenkins, 57 N. Y. 177, goes to the of the legislature to compel an individual
full extent of holding that a subscription or corporation to pay a debt or claim, but
of a town to a railroad, made on condition to the power of the legislature to raise
of subsequent assent of the town thereto, money by tax, and apply such money,
may be relieved of the condition by the when so raised, to the payment thereof.
legislature and enforced against the town, We could not, under the decisions of the
though the original subscription was by courts on this point, made in these and
a commission which the town did not other cases, now hold that the legislature
choose. It is a little difficult, therefore, had not authority to impose a tax to pay
to determine what the law of New York any claim, or to pay it out of the State
now is on this subject, especially as in treasury and for this purpose to impose
;
New York, &c. R. R. Co. v. Van Horn, 57 a tax upon the property of the whole
N. Y. 473, the power of the legislature to State, or any portion of the State. This
make valid an ineffectual individual con- was fully settled in People v. Mayor, &c.
tract is denied. But leaving out of view of Brooklyn, 4 N. Y. 419; but neither
the New York cases, and a few others that case nor the case in 13 N. Y. 143, in
which were decided on the ground of an any manner gave a warrant for the opin-
apportionment of local benefits, we think ion that the legislature had a right to
the case in Alabama will stflnd substan- direct a municipal corporation to pay a
tially alone. Before that decision the Su- claim for damages for breach of a con-
preme Court of Illinois were able to say, tract out of the funds or property of such
in a case calling for a careful and thor- corporation, without a submission of such
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 341
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-
claim to a judicial tribunal." If by this suited, objectionable and less likely
is less
"1 "
judicial inquiry, construction, and abrogation. 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., inDartmouth College v. 4
Terrett Taylor, 9 Cranch, 43 ;
v.
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.
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
mere local object
to contract a debt for a ; 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. NewChester, 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
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.
under the right of eminent domain, the of the State and they are subject to be
;
v. Garrett, 102 U. S. 472. And ?ee North objects for which it was given or pur-
Yarmouth v. Skillings, 45 Me. 133. "That chased." Trustees of Schools v. Tatman,
the State may make a contract with, or a 13 111. 27, 30, per Treat, Ch. J. And see
grant a public municipal corporation,
to, Harrison v. Bridgeton, 16 Mass. 16; Raw-
which could not subsequently impair
it son v. Spencer, 113 Mass. 40; Mont-
or resume, is not denied but in such case
; pelier East Montpelier, 27 Vt. 704
v. ;
vate company. A grant may be made to Mayor, &c. of New York, 10 Barb. 223.
a public corporation for purposes of pri- See also City of Louisville v. University,
vate advantage; and although the public 15 B. Monr. 642; Weymouth & Brain-
may also derive a common benefit there- tree Fire District v. County Commission-
from, yet the corporation stands on the ers, 108 Mass. 142 Morgan v. Beloit, 7
;
same footing, as respects such grant, as Wall. 613. In State v. St. Louis County
would any body of persons upon whom Court, 34 Mo. 546, the following remarks
like privilegeswere conferred. Public or are made by the court, in considering the
municipal corporations, however, which cause shown by the county in answer to
exist only for public purposes, and pos- an application to compel it to meet a re-
sess no powers except such as are be- quisition for the police board of St. Louis :
"
stowed upon them for public political As to the second cause shown in the
purposes, are subject at all times to the return, it is understood to mean, not that
control of the legislature, which may there is in fact no money in the treasury
alter, modify, or abolish them at pleas- to pay this requisition, but that as a mat-
ure." Trumbutl, Richland County
J., in ter oflaw all the money which is in the
"
v. Lawrence County, 12 111. 18. Public treasury was collected for specific pur-
corporations are but parts of the machin- poses from which it cannot be diverted.
ery employed in carrying on the affairs The specific purposes for which the money
346 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
was collected were those heretofore di- tween the public or governmental char-
rected the legislature and this act,
by ;
acter of municipal corporations, and their
being a later expression of the will of the private character as respects the owner-
legislature, controls the subject, and so ship and management of their own prop-
far as it conflicts with previous acts re- erty. One
of the strongest illustrations
peals them. The county is not a private of the power of legislation over municipal
corporation, but an agency of the State corporations is to be found in the statutes
government; and though as a public which have been passed in some States
corporation it holds property, such hold- to compel these corporations to make
ing is subject to a large extent to the will compensation for losses occasioned by
of the legislature. Whilst the legislature mobs and riots. The old English law
cannot take away from a county its prop- made the hundred responsible for rob-
erty, it has full power to direct the mode beries, and this was extended by the Riot
in which the property shall be used for Act of 1 Geo. I. to cover damages sus-
the benefitthe county." For like
of tained at the hands of persons unlawfully,
views, see Palmer v. Fitts, 51 Ala. 489, riotously, and tumultuously assembled.
492. Compare People v. Mahaney, 13 See Radcliffe v. Eden, Cowp. 485; Wil-
Mich. 481; Richland Co. v. Richland Cen- inot v. Horton, Doug. 701, note Hyde ;
ter, 69 Wis. 591, 18 N. W. 497. It will be v. Cogan, Doug. 699, an action growing
observed that the strong expression of out of the riot in which Lord Mansfield's
legislative power is generally to be found house was sacked and his library de-
in cases where the thing actually done stroyed. Similar statutes it has been
was clearly and unquestionably compe- deemed necessary to enact in some of the
tent. In Payne Treadwell, 16 Cal. 220,
v. States, and they have received elaborate
"
233, this language is used The agents, :
judicial examination and been sustained
of the corporation can sell or dispose of as important and beneficial police regula-
the property of the corporation only in tions, based upon the theory that, with
the way and according to the order of the proper vigilance on the part of the local
legislature and therefore the legislature
; authorities, the disorder and injury might
may by law operating immediately upon and ought to have been prevented. Don-
the subject dispose of this property, or oghue v. Philadelphia, 2 Pa. St. 230;
give effect to any previous disposition Commissioners of Kensington v. Phila-
or attempted disposition. The property delphia, 13 Pa. St. 76; Allegheny County
itself is a trust, and the legislature is the r. Gibson, 90 Pa. St. 397, 35 Am. Rep.
San Francisco v. Canavan, 42 Cal. 541, Street v. New Orleans, 32 La. Ann. 677 ;
Dillon, Mun. Corp. 39 et seq., and cnses liability for destruction by mobs, see note
referred to in notes. And see Hewison to 24 L. R. A 592.] There is no such
v. New Haven, 87 Conn. 475 ; New Or- liability in the absence of statute. West-
leans, &c. R. R. Co. v. New Orleans, 26 ern College v. Cleveland, 12 Ohio St. 375.
La. Ann. 517, as to the distinction be- L~Nor for loss of life at hands of rioters,
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 347
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.
the people of the political divisions are not allowed the privilege
of choice the legislature assumes this division of the State to
;
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 Sherman Co.
Granger v. Pulaski County, 26 Ark. v. Simons, 109 U. S. 735.
"
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
1
corporations.
'"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
3
City of Exeter, 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
;
a century past the practical construction of the bar has been that,
in an action by or against a corporation, a member of the corpora-
'
tion is a party to the suit. In several other cases in that State
the same principle is repeated. In the case of Riddle v. The
3
Proprietors of the Locks and Canals on Merrimack River, Par-
sons, Ch. J., in an allusion to this private responsibility of cor-
porators, remarks:
*
And the sound reason is, that having no
corporate fund, and no legal means of obtaining one, each cor-
porator is liable to satisfy any judgment obtained against the
corporation.' So in Brewer v. Inhabitants of New Gloucester, 4
the court say: 'As the law provides that, when judgments is re-
covered against the inhabitants of a town, execution may be
levied upon the property of any inhabitant, each inhabitant must
be considered as a party.' In the case before referred to of the
Merchants' Bank v. Cook, Parker, Ch. J., expresses the opinion
'
of the court upon this point thus :
Towns, parishes, precincts,
&c., are but a collection of individuals, with certain corporate
powers for political and civil purposes, without any corporate
funds from which a judgment can be satisfied but each member
;
setts, retained most of its laws and usages, as they had been
indemnity ;
we are considering.
"The law on this subject was more distinctly brought out and
considered by this court in the late case of McCloud v. Selby, 3 in
which this well-known practice, as it had been applied to towns
and ecclesiastical societies, was extended and sanctioned as to
else it would be breaking in upon the analogies
'
school districts;
They are communities for different purposes, but
' '
of the law.
(a) FJOn right of action given to injured party to sue for damages where sheriff
fails to prevent lynching, see Champaign Co. v. Church, 62 Ohio St. 318, 57 N. E. 50
48 L. R. A. 738 ]
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 355
1
Mower v. Leicester, 9 Mass. 247 ; failure of its treasurer to pay to city
Bartlett v. Crozier, 17 Johns. 439; Far- money belonging to the latter. Mar-
nnm s. Concord, 2 N. H. 392 Adams v. ; quette Co. v. Ishpeming Treas., 49 Mich.
Wiscasset Bank, 1 Me. 361 Baxter v. ; 244, 13 N. W. 609. In the very carefully
Winooski Turnpike, 22 Vt. 114 Beards- ;
considered case of Eastman v. Meredith,
ley v. Smith, 16 Conn. 368; Chidsey v. 36 N. H. 284, it was decided, on the prin-
Canton, 17 Conn. 475; Young v. Commis- ciple above stated, that if a building
sioners, &c., 2 N. & McC. 637 Commis- ;
erected by a town for a town-house is so
sioners of Highways v. Martin, 4 Mich. imperfectly constructed that the flooring
657 Morey v. Newfane, 8 Barb. 645
; ; gives way at the annual town-meeting,
Lorillard v. Monroe, 11 N. Y. 392; Galen and an inhabitant and legal voter, in at-
v. Clyde and Rose Plank Road Co., 27 tendance on the meeting, receives thereby
Barb. 543 Reardon v. St. Louis, 36 Mo.
;
a bodily injury, he cannot maintain an
655; Sherbourne v. Yuba Co., 21 Cal. action against the town to recover dam-
113; State v. County of Hudson, 30 N. J. ages for this injury. The case is carefully
137 Hedges v. Madison Co., 6 111. 567
; ; distinguished from those where corpora-
Granger v. Pulaski Co., 26 Ark. 37; tions have been held liable for the negli-
Weightman v. Washington, 1 Black, 39; gent use of their own property by means
Ball Winchester, 32 N. H. 435; East-
v. ofwhich others are injured. The familiar
man v. Meredith, 36 N. H. 284 Waltham ;
maxim that one shall so use his own as
>.
Kemper, 55 111. 316 Sutton v. Board,
; not to injure that which belongs to an-
41 Miss. 236 Cooley v. Freeholders, 27
; other is of general application. A
similar
N. J. 415 Bigelow v. Randolph, 14 Gray,
; ruling was made after careful considera-
541; Symonds v. Clay Co., 71 111. 355; tion in a case where a child was injured
People v. Young, 72 111. 411 Frazer v. ; by the unsafe condition of a school build-
Lewiston, 76 Me. 531 Altnow v. Sibley,
; ing which a city was obliged to maintain.
30 Minn. 186, 14 N. W. 877 Yeager v. ; The duty being one to the public imposed
Tippecanoe, 81 Ind. 46 Abbettr. Com'rs ; by law, there is no liability in the ab-
Johnson Co., 114 Ind. 61, 16 N E. 127. sence of statute. Hill v. Boston, 122
These cases follow the leading English Mass. 344. So if the duty is assumed
v. Men of Devon, 2 T. R.
case of Russell under a general law but not expressly
667. A
county is not liable for obstruct- imposed. Wixon v. Newport, 13 R. 1. 454.
ing a river: White Star Co. v. Gordon See Wild v. Paterson, 47 N. J. L. 406, 1 Atl.
Co., 81 Ga. 47, 7 S. E. Rep. 231 ; nor for 490, and cases supra, p. 306.
356 CONSTITUTIONAL LIMITATIONS. [CH. VIIL
1
Selden, J., in Weet v. Brockport, 16 415, 12 Pac. 632. A
city is liable for a
N. Y. 161, note. See also Mayor of Lyme defect in a sidewalk maintained by it
v. Turner, Cowp. 86 Henley v. Lyme
; though in fact outside the highway line :
&c. of New York v. Furze, 3 Hill, 612 ; his own purposes renders a sidewalk un-
Rochester White Lead Co. v. Rochester, saff, if it has notice. Philadelphia v.
3 N. Y. 463 Hutson v. Mayor, &c. of New
; Smith, Pa. 16 Atl. Rep. 493. See
,
Gray, 541 ; Mears v. Commissioners of and the court (one judge dissenting) deny
Wilmington, 9 Ired. 73; Browning v. the soundness of the principle stated in
Springfield, 17 143; Bloomington v.
111. the text, and hold that municipal corpo-
Bay, 42 111. 503 Springfield v. LeClaire,
;
rations existing under special charters
49 111. 476 Peru v. French, 55 111. 317
; ;
are not liable to individuals for injuries
Pittsburg v. Grier, 22 Pa. St. 54 Jones ;
caused by neglect to perform corporate
v. New Haven, 34 Conn. 1 ; Stackhouse v. duties, unless expressly made so by stat-
Detroit v. Corey, 9 Mich. 165; Rusch v. court, a city is not liable for an injury
Davenport, 6 Iowa, 443; Commissioners caused thereby. Belvin v. Richmond,
v. Duckett, 20 Md. 468 Covington v. ;
85 Va. 574, 8 S. E. Rep. 378. In Mur-
Bryant, 7 Bush, 248; Weightman v. taugh v. St. Louis, 44 Mo. 479, 480,
"
Washington, 1 Black, 39; Chicago v. Rob- Currier, J., says The general result of
:
tive authority, see ante, pp. 301-303, and ordinances or by-laws, was it liable for
notes. As to who are to be regarded as damages arising from a neglect to enforce
municipal officers, see Maxmilian v. New them. The doctrine that a power thus
York, 62 N. Y. 160, 20 Am. Rep. 468, and conferred is discretionary does not seem
cases there cited. [JUpon remedy over consistent with the ruling in some of the
by municipality against wrongdoer after other cases cited, and is criticised in Hyatt
payment of damages for injury done by v. Rondout, 44 Barb. 385. But see ante,
him or through his negligence, see Wash- pp. 301-303, and notes. Calling public
ington Gas Light Co. v. District of Co- meetings for political or philanthropic pur-
lumbia, 161 U. S. 316, 16 Sup. Ct. Rep. poses is no part of the business of a muni-
664, and note to s. c. in 40 L. ed. U. S. cipal corporation, and it is not liable to
712.] one who, in lawfully passing by where
1
Weet v. Brockport, 16 N. Y. 161, the meeting is held, is injured by the dis-
note; Hickok v. Plattsburg, 16 N. Y. charge of a cannon fired by persons con-
161; Nelson v. Canisteo, 100 N. Y. 89; cerned in the meeting. Boyland v. Mayor,
Morey v. Newfane, 8 Barb. 645 Brown- ; &c. of New York, 1 Sandf. 27. The noise
ing v. Springfield, 17 111. 143; Hyatt v. of a cannon fired outside a highway is
Rondout, 44 Barb. 385; Lloyd v. Mayor, not a defect in the way for which a city
&c. of New York, 5 N. Y. 3~69 Rusch v. ;
is liable. Lincoln >. Boston, 148 Mass.
Davenport, 6 Iowa, 443. And see Dillon, 517, 20 N. E. 329.
358 CONSTITUTIONAL LIMITATIONS. [CH. VIII.
1 Hart v. Brooklyn, 36 Barb. 226 ; defect notice of the facts, whether the
is
' '
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
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.
2 1 Brown's Ch. R. 469.
Gas Co. v. San Francisco, 9 Cal. 453;
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 361
v. McCary, 84 Ala. 469, 4 So. 630 Logans- ; For nuisance highway, sewer, &c.
in :
v. Drew, 19 Fla. 106; Joslyn v. Detroit, 245; Chicago v. Brophy, 79 111. 277;
74 Mich. 458, 42 N. W. 50; McCoull Chicago i'. O'Brennan, 65 111. 160; Wil-
v. Manchester, 85 Va. 579, 8 S. E. kins o. Rutland, 61 Vt. 336, 17 Atl. Rep.
379 ; also numerous cases collected and 735 Kibele v. Philadelphia, 105 Pa. St.
;
If the injury arises from something not St. Paul, 40 Minn. 458, 42 N. W. 297.
collateral to the work, the city is not For invasion of private right or prop-
liable, as where horses are frightened by erty Sheldon v. Kahunazoo, 24 Mich.
:
jured by the blasting. Blumb v. Kansas son, 29 Ark. 569 Kobs v. Minneapolis,
;
City, 84 Mo. 112; Murphy v. Lowell, 128 22 Minn. 159. For negligent construction
CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 363
Hesing, 83 111. 204, 25 Am. Rep. 378 Post ; Waterhury, 51 Conn. 405. For injury by
v. Boston, 141 Mass. 189, 4 N. E. 815. For limb falling from tree overhanging street :
140 Mass. 552, 5 N. E. 616; Gray v. Dan- Scott, 59 111. 129 Winbigler v. Los An-
;
bury, 54 Conn. 674, 10 Atl. 198. For de- geles, 45 Cal. 36 Market v. St. Louis, 56
;
111. 202; Champaign c. Pattison, 50 111. Bill v. Norwich, 39 Conn. 222 Lindholm ;
riman v. Boston, 114 Mass. 241 Morse ; liamstown, 6 W. Va. 312. For failure to
v. Boston, 109 Mass. 446 Hanscom v.; keep sewers in repair.: Munn v. Pitts-
Boston, 141 Mass. 242, 5 N. E. 249; burg, 40 Pa. St. 364; Jersey City .
ing a county, passed several years before, and private bearings. There have been
was suggested on constitutional grounds, direct legislative recognitions of the new
" The exer-
Campbell, J., says If this question had
: division on several occasions.
been raised immediately, we are not pre- cise of jurisdiction being notorious and
pared to say that it would have been alto- open in all such cases, the State as well
gether free from difficulty. But inasmuch as county and town taxes being all levied
as the arrangement there indicated had under it, there is no principle which could
been acted upon for ten years before the justify any court, at this late day, in
recent legislation, and had been recog- going back to inquire into the regularity
nized as valid by all parties interested, it of the law of 1857." A similar doctrine
cannot now be disturbed. Even in pri- has been applied in support of the official
vate associations the acts of parties inter- character of persons who, without au-
estedmay often estop them from relying thority of law, have been named for mu-
on legal objections, which might have nicipal officers by State legislation, and
availed them if not waived. But in pub- whose action in such offices has been
lic affairs, where the people have organ- acquiesced in by the citizens or authori-
ized themselves under color of law into ties of the municipality. See People v.
the ordinary municipal bodies, and have Salomon, 54 111. 51 People v. Lothrop,
;
gone on year after year raising taxes, 24 Mich. 235. Compare Kimball v. Al-
making improvements, and exercising corn, 45 Miss. 151. But such acquies-
their usual franchises, their rights are cence could not make them local officers
properly regarded as depending quite as and representatives of the people for new
much on the acquiescence as on the regu- and enlarged powers subsequently at-
larity of their origin, and no ex post facto tempted to be given by the legislature.
inquiry can be permitted to undo their People v. Common Council of Detroit, 28
corporate existence. Whatever may be Mich. 228. Nor in respect to powers not
the rights of individuals before such gen- purely local. People v. Springwells, 25
eral acquiescence, the corporate stand- Mich. 153. And see People v. Albertson,
ing of the community can no longer be 65 N. Y. 50.
open to question. See Rumsey v. People,
CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 365
CHAPTER IX.
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
i
rights."
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.
there are also certain fences which experience has proved pecu-
liarly efficacious againstwrong, 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
England, covering the whole of the seventeenth century,
liberty in
importance was justly attached to a distinct declaration and
enumeration of individual rights on the part of the government,
2
3
Federalist, No. 84, by Hamilton. Jefferson's Works, Vol. HI. p. 201.
CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 367
1 Mr. Jefferson sums up the objections tion before stated. The jealousy, of the
to a of rights in the Constitution of
bill subordinate governments is a precious re-
the United States, and answers them as liance. But observe that those govern-
" 1. ments are only agents. They must have
follows That the rights in question
:
are reserved by the manner in which the principles furnished them whereon to
federal powers are granted. Answer A : found their opposition. The declaration
constitutive act may certainly be so of rights will be the text whereby they
formed as to need no declaration of will try all the acts of the federal gov-
rights. The act itself has the force of a ernment. In this view it is necessary
declaration, as far as it goes; and if it to the federal government also as by ;
goes to all material points, nothing more the same text they may try the oppo-
is wanting. In the draft of a constitution sition of the subordinate governments.
which I had once a thought of proposing 4. Experience proves the inefficacy of a
in Virginia, and printed afterwards, I en- bill of rights. True. But though it is not
deavored to reach all the great objects of absolutely efficacious, under all circum-
public liberty, and did not mean to add a stances, it is of great potency always, and
declaration of rights. Probably the ob- rarely inefficacious. A
brace the more
ject was imperfectly executed; but the will often keep up the building which
deficiencies would have been supplied by would have fallen with that brace the
others in the course of discussion. But less. There is a remarkable difference
in a constitutive act which leaves some between the characters of the inconve-
precious articles unnoticed, and raises niences which attend a declaration of
implications against others, a declaration rights, and those which attend the want
of rights becomes necessary by way of of it. The inconveniences of the declara-
supplement. This is the case of our new tion are, that it may cramp government
federal Constitution. This instrument in its useful exertions. But the evil of
forms us into one State, as to certain this is short-lived, moderate, and repara-
objects, and gives us a legislative and ble. The inconveniences of the want of a
executive body for these objects. It declaration are permanent, afflictive, and
should therefore guard us against their irreparable. They are in constant pro-
abuses of power, within the field sub- gression from bad to worse. The execu-
mitted to them. 2. A
positive declara- tive, in our governments, is not the sole,
tion of some essential rights could not it is scarcely the principal,
object of my
be obtained in the requisite latitude. jealousy. The tyranny of the legislatures
Answer Half a loaf is better than no
: is the most formidable dread at present,
bread. If we cannot secure all our rights, and will be for many years. That of the
let us secure what we can. 3. The limited executive will come in its turn but it ;
Debates, 322-334.
CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 369
a milder form, which were only less obnoxious in that the conse-
quences were less terrible. Those legislative convictions which
24
370 CONSTITUTIONAL LIMITATIONS. [CH. IX.
"
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
;
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. ;
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 ;
1
Jackson
v. Munson, 3 Caines, 137. the duties of the office on which I am
2 Onthe 2d of July, 1862, Congress, about to enter, so help me God." On the
"
by an act to prescribe an oath of office, 24th of January, 1865, Congress passed a
and for other purposes," enacted that supplementary act as follows: "No per-
"
hereafter every person elected or ap- son after the date of this act shall be ad-
pointed to any office of honor or profit mitted to the bar of the Supreme Court
under the government of the United of the United States, or at any time after
States, either in the civil, military, or the 4th of March next shall be admitted
naval departments of the public service, to the bar of any Circuit or District Court
excepting the President of the United of the United States, or of the Court of
States, shall, before entering upon the Claims, as an attorney or counsellor of
duties of such office, take and subscribe such court, or shall be allowed to appear
the following oath or affirmation I, A B, : and to be heard in any such court, by
do solemnly swear or affirm that I have virtue of any previous admission, or any
never voluntarily borne arms against the special power of attorney, unless he shall
United States since I have been a citizen have first taken and subscribed the oath"
thereof; that I have voluntarily given no aforesaid. False swearing, under each of
aid, countenance, counsel, or encourage- the acts, was made perjury. See 12 Stat-
ment to persons engaged in armed hostility utes at Large, 502 13 Statutes at Large,
;
thereto ; that I have neither sought nor 424. In Ex parte Garland, 4 Wall. 333, a
accepted, nor attempted to exercise, the majority of the court held the second of
functions of any office whatever, under these acts void, as partaking of the nature
any authority or pretended authority in of a bill of pains and penalties, and also
hostility to the United States that I have
;
as being an ex post facto law. The act was
not yielded a voluntary support to any looked upon as inflicting a punishment
pretended government, authority, power, for past conduct ;
the exaction of the oath
or constitution within the United States, being the mode provided for ascertaining
hostile or inimical thereto. And I do fur- the parties upon whom the act was in-
ther swear or affirm that, to the best of tended to operate. See Drehman v. Stifle,
my knowledge and ability, I will support 8 Wall. 595. The conclusion declared by
and defend the Constitution of the United the Supreme Court of the United States
States against all enemies, foreign and in Ex parte Garland had been previously
domestic; that I will bear true faith and reached by Judge Trigg, of the United
allegiance to the same that I take this
;
States Circuit Court, in Matter of Bax-
obligation freely, without any mental ter ; by Judge Busteed, of the District
reservation or purpose of evasion and ;
Court of Alabama, in Matter of Shorter
that I will well and faithfully discharge et al. and by Judge Erskine, of the Dis-
;
372 CONSTITUTIONAL LIMITATIONS. [CH. IX.
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
trict Court of Georgia, in Ex parte Law. men of any denomination. The Supreme
An elector cannot be excluded from the Court of Missouri had held this provision
right to vote on the ground of being a valid in the following cases State v. Ga-
:
deserter who has never been tried and resche, 36 Mo. 256, case of an attorney;
convicted as such. Huber c. Reily, 53 State v. Cummings, 36 Mo. 263, case of a
Pa. St. 112; McCafferty v. Guyer, 59 Pa. minister, reversed as above stated; State
St. 109 State o. Symonds, 57 Me. 148.
,
v. Bernoudy, 36 Mo. 279, case of the re-
1
See the cases Ex parte Magruder, Mo. 452, where it is held that a certificate
American Law Register, Vol. VI. N. s. of election issued to one who failed to
p. 292; and Ex parte Hunter, American take the oath as required by the consti-
Law Register, Vol. VI. N. 8. 410; 2 W. tution was void. In Beirne v. Brown, 4
Va. 122 Ex parte Quarrier, 4 W. Va. 210.
;
W. Va. 72, and Peerce v. Carskadon, 4
See also Cohen v. Wright, 22 Cal. 293. W. Va. 234, an act excluding persons from
2
Cummings v. Missouri, 4 Wall. 277. the privilege of sustaining suits in the
See also the case of State v. Adams, 44 courts of the State, or from proceedings
Mo. 570, in which it was held that a legis- for a rehearing, except upon their taking
lative act declaring that the board of an oath that they had never been engaged
curators of St. Charles College had for- in hostile measures against the govern-
feited their office, was of the nature of a ment, was sustained. And see State v.
bill of attainder and void. The Missouri Neal, 42 Mo. 119. Contra, Kyle v. Jenkins,
oath of loyalty was a very stringent one, 6 W. Va. 371 Lynch r. Hoffman, 7 W.
;
and applied to electors, State, county, Va. 553. The case of Peerce v. Carskadon
city and town officers, officers in any cor- was reversed in 16 Wall. 234, being held
poration, public or private, professors and covered by the case of Cummings v. Mis-
teachers in educational institutions, attor- souri.
and counsellors, bishops, 3 Constitution of United States, art. 1,
neys priests,
deacons, ministers, elders, or other clergy- 9 and 10.
CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 373
i
Calder .
Bull, 3 Dall. 386, 390.
374 CONSTITUTIONAL LIMITATIONS. [CH. IX.
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 alsoof 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 There is a great and apparent difference between
be.
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
trialof an alleged offence after its com- 13 Col. 482, 22 Pac. 810, 6 L. R. A. 472.
mission." Gut v. Minnesota, 9 Wall. 35, But providing that State may appeal
quoted and affirmed in Cook v. United from an order granting a new trial is not.
States, 138 U. S. 157, 11 Sup. Ct. Rep. Mallett v. North Carolina, 181 U. S. 589,
268. Nor of the time when sentence 21 Sup. Ct. Rep. 730, aff. 125 N. C. 718,
shall be executed. Holden v. Minnesota, 34 S. E. 651. A
statute providing that
137 U. S. 483, 11 Sup. Ct. Rep. 143. Priv- persons convicted of murder and await-
ilege existing at time of commission of ing execution shall be confined in the
offence (e. g. privilege of earning a short- State's prison and executed within its
ening of sentence by good behavior) can- walls invalid as applied to one con-
is
not be taken away by subsequent stat- victed prior to its enactment. People
ute. Murphy v. Commonwealth, 172 v. McNulty, 93 Cal. 427, 29 Pac. 61. A
Mass. 264, 52 N. E. 505, 43 L R. A. 154, statute changing the punishment for mur-
70 Am. St. 266. Second offences may be der from death to imprisonment for life is
made punishable with greater severity, not ex post facto. McGuire v. State, 76
even though first offence was committed Miss. 504, 25 So. 495. See, in this con-
before law was passed. Re Miller, 110 nection, Storti v. Com., 180 Mass. 57, 61
Mich. 676, 68 N. W. 990, 34 L. R. A. N. E. 759, 52 L. R. A. 520.]
398, 64 Am. St. 376, and see note thereto
1
See Kring v. Missouri, 107 U. S. 221,
in L. R. A. upon enhanced penalty for 2 Sup. Ct. Rep. 443. A
constitutional
second and subsequent offences see also
;
amendment changed the judicial rule that
Commonwealth v. Graves, 155 Mass. 163, conviction of one grade of murder bars a
29 N. E. 579, 16 L. R. A. 256 ; McDonald subsequent conviction of a higher grade.
v. Massachusetts, 180 U. S. 811, 21 Sup. Before it took effect a crime had been
Ct. Rep. 389, aff. 173 Mass. 322, 53 N. E. committed. After it on a plea of guilty
874. Right to secure change of magis- the prisoner was convicted of murder in
trate or place of preliminary examination the second degree, but the conviction
upon affidavit of accused that he believes was reversed, and on new trial he was
magistrate is prejudiced against him may convicted in the first degree. A bare
be withdrawn. People v. McDonald, 5 majority of the court held the act ex post
Wyo. 526, 42 Pac. 15, 29 L. R. A. 834. facto as to him, as altering the rules of evi-
Statute allowing punitive damages where dence and the punishment. The minority
none had been theretofore allowed is ex considered the change one in procedure,
post facto with regard to past acts. and as the evidence in question, viz., his
French v. Deane, 19 Col. 504, 36 Pac. 609, conviction in the second degree, of the
24 L. R. A. 387. Statute diminishing the effect of which he was deprived, came
minimum period of imprisonment is not into existence after the amendment, held
ex post facto. People v, Hayes, 140 N. Y. the act good.
484, 35 N. E. 951, 23 L. R. A. 830, 37 Am.
2 Falconer v. Campbell, 2 McLean,
St. 572. Law
shortening time between 195; Wilson .
Ohio, &c. R. R. Co., 64
sentence and execution is ex post facto 111. 542.
with regard to past crimes. Re Tyson,
376 CONSTITUTIONAL LIMITATIONS. [CH. IX.
by law when committed, the law will be ex post facto in the con-
1
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.]
2 The
divorce act. Jnnes v. Jones, 2 Overt. 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 ;
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
1
In Strong v. State, 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
judgment to fine, whipping, and imprisonment, the new law
final
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.
2 Mr. Bishop says of this decision:
conviction for perjury in a previous oath
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 fora previous act, of all the usual Williams, 2 Rich. 418. In
State v.
opportunities of exhibiting the facts and Clark v. State, 23 Miss. 261, defendant
establishing his innocence? Undoubtedly, was convicted of a mayhem. Between the
ifthe 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
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, In re Tyson,
itentiary instead of a jail.
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.]
,
power to judge of the law is a matter of parte Bain, 121 U. S. 1, 7 Sup. Ct. Rep.
procedure. Marion v. State, 20 Neb. 233, 781. But a statute providing that the
29 N. W. 911. rule of law precluding a conviction on the
1 Walston v. Commonwealth, 16 B. uncorroborated testimony of an accom-
Monr. 15; Jones v. State, 1 Ga. 610; plice should not apply to cases of mis-
Warren Commonwealth, 37 Pa. St. 45;
v. demeanor, it was held could not have
Walter People, 32 N. Y. 147 State v.
v. ; retrospective operation. Hart v. State,
Ryan, 13 Minn. 370; State v. Wilson, 48 40 Ala. 32.
N. H. 398 Commonwealth v. Dorsey, 103
;
But the legislature can have no power
8
of variances which do not prejudice him. ex post facto laws, see notes to 1 L. ed.
Commonwealth v. Hall, 97 Mass. 570; La- U. S. 648, and 4 L. ed. U. S. 529. May
sure v. State, 19 Ohio St. 43. Nor one enact that jurors shall be selected from
"
which reduces the number of the prison- persons of good intelligence, sound
er's peremptory challenges. Dowling v. judgment, and fair character." Gibson
State, 13 Miss. 664. Nor one which, v. Mississippi, 162 U. S. 16 Sup.
565,
though passed after the commission of Ct. Rep. 904. May change mode of
the offence, authorizes a change of venue accusation from indictment to infor-
to another county of the judicial district. mation. Re Wright, 3 Wyo. 478, 27 Pac.
Gut v. State, 9 Wall. 35. Nor one which 565, 13 L. R. A. 748, 31 Am. St. 94. In
modifies the grounds of challenge. Stokes Mallett v. North Carolina, 181 U. S. 589,
t>.
People, 63 N. Y. 164. Nor one which 21 Sup. Ct. Rep. 730, it is held that a
merely modifies, simplifies, and reduces provision for an appeal by the State from
the essential allegations in a criminal in- an order granting a new trial is not ex
dictment, retaining the charge of a dis- post facto as applied to a criminal case
tinct offence. State v. Learned, 47 Me. tried before the statute was passed, the
426; State v. Corson, 59 Me. 137. And order for a new trial having been made
see People v. Mortimer, 46 Cal. 114. In after the enactment of the statute. The
the absence of statutory permission, if a opinion cites the principal cases on the
court allows an indictment to be amended constitutional prohibition of ex post facto
by striking out words as surplusage, it laws in the Federal Supreme Court/]
must be resubmitted to the jury. Ex
CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 383
1 Rand v. "
Commonwealth, 9 Gratt. 738; authorizing construction under such reg-
Ross's Case, 2 Pick. 165; People v. Butler, ulations and upon such terms and con-
3 Cow. 347 ; Ex parte Guiterrez, 45 Cal. ditions as the municipal authorities may
429. Extradition treaties may provide from time to time prescribe." The city
for the surrender of persons charged with in its agreement witli the company for
offences previously committed. In re De the construction authorized a particular
Giacomo, 12 Blatch. 391. rate of fare. It subsequently passed an
2 Rand r. Commonwealth, 9 Gratt. 738. ordinance for the reduction of the
8 The ordinance was held
Riley's Case, 2 Pick. 171. rate so fixed.
* Const, art.
1, 10. "A
State can no invalid as impairing the obligation of
more impair the obligation of a contract contract.]
by her organic law than by legislative The law which impairs must be one
enactment ;
for her constitution is a law passed after the formation of the con-
within the meaning of the contract clause tract. Lehigh Water Co. v. Easton, 121
of the National Constitution." New Or- U. S. 388, 7 Sup. Ct. Rep. 916. A New
leans Gas Co. v. Louisiana Light Co., 115 York law prohibiting the sale of lottery
U. S. 650, 672, 6 Sup. Ct. Rep. 252; Fisk tickets is not invalid because a lottery,
v. Jefferson Police Jury, 116 U. S. 131, the tickets in which are sold, is legal in
6 Sup. Ct. Rep. 329 St. Tammany Water
;
Louisiana. People v. Noelke, 94 N. Y. 137.
Works v. New Orleans Water Works, 120 That the prohibition does not apply to
U. S. 64, 7 Sup. Ct. Rep. 405, and see cases, Congress, see Mitchell v. Clark, 110 U. S.
ante, p. 62, note 2. fJSee, Southwest Mo. 633, 4 Sup. Ct. Rep. 170, 312. fJSee on
L. Co. v. Taplin, 113 Fed. 817, in which what laws are void as impairing the obli-
case the same conclusion was reached, gation of contracts, note to 3 L. ed. U. S.
though there was no specific agreement 162; on what contracts are within the
not to erect a municipal plant as in the rule, note to 10 L. R. A. 405. A city in
Walla Walla Case cited post, in this note. granting to a water company power to
See also Hamilton, &c. Co. r. Hamilton, lay pipe in the streets and to supply the
146 U. S. 258, 13 Sup. Ct. Rep. 90; citizens with water at reasonable rates,
Skaneateles W. W. Co. v. Skaneateles, &c., has power to bind itself for a limited
161 N. Y. 154, 55 N. E. 562 Syracuse ; period not to erect any competing water-
W. Co. v. Syracuse, 116 N. Y. 167, 22 works. Subsequent ordinance providing
N. E. 381, 5 L. R. A. 546 Re Brooklyn,
;
for tlie erection of a system of water-works
143 N. Y. 596, 38 N. E. 983, 26 L. R. A. by the city within the limited period is
270; Westerly W. W. v. Westerly, 75 invalid, and its execution may be enjoined.
Fed. Rep. 181. In Detroit r. Detroit Cit. Walla Walla v. W. W. Water Co., 172
St. Ry. Co., 184 U. S. 368, 22 Sup. Ct. U. S. 1, 19 Sup. Ct. Rep. 77. Ordinances
Rep. 410, the lines of the railway com- of a city are laws of the State within the
pany were constructed under a statute meaning of this provision of the Con-
384 CONSTITUTIONAL LIMITATIONS. [CH. IX.
I
The question that arises under this provision is, What is
first
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. 14 Sup. See
S. 628, Ct. Rep. 952.
tution for the State is adopted, that Bier
also, 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
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- under which a State grants permission to
ereignty, a practice which had been a foreign corporation to do business
common enough in English history, and within its borders provides that such
of which precedents were not wanting perm^sion may be revoked upon viola-
in the History of the American Colonies. tion of the statute by the corporation, a
The Supreme Court of the United States forfeiiure of the permission because of
held the grant not revocable, and that such violation does not impair the obliga-
the legislative act was therefore uncon- tion of any contract. Waters-Pierce Oil
stitutional and void. Terrett v. Taylor, 9 Co. v. Texas, 177. U. S. 28, 20 Sup. Ct.
Cranch, 43. See also Town of Pawlet v. Rep. 518, aff. 19 Tex. Civ. App. 1, 44
Clark, 9 Cranch, 292 Davis v. Gray, 16 ;
S. W. 93(5. A
contract authorized under
Wall. 203 ;
Hall v. Wisconsin, 103 U. S. 5; the interpretation and construction put
People v.Platt, 17 Johns. 195; Montgom- upon the State constitution by the high-
ery v. Kasson, 16 Cal. 189; Grogan v. San est court of the State at the time the
Francisco, 18 Cal. 590 Rehoboth v. H unt,
;
contract is entered into cannot be im-
1 Pick. 224 Lowry v. Francis, 2 Yerg.
; paired by any subsequent amendment of
534 University of North Carolina v. Foy,
;
the constitution or by any change in its
2 Hayw. 310; State i Barker, 4 Kan. 1
. construction by the courts of the State.
379 and 435. When a State descends from Los Angeles v. Los Angeles City Water
the plane of sovereignty and contracts
its Co.. 177 U. S. 658, 20 Sup. Ct. Rep. 736.
with private persons, it is regarded pro Upon impairment of obligation of con-
hoc vice as a private person itself, and is tract by State constitution, see note to 10
bound accordingly. Davis v. Gray, 16 L. R. A. 405; by change in interpretation
Wall. 203 Georgia Pen. Cos. v. Nelms,
;
of constitution, note to 16 L. R. A. 646,
71 Ga. 301. The lien of a bondholder, and one to 44 L. ed. U. S. 886. In this con-
who has loaned money to the State on a nection, see New
Orleans v. Warner, 175
pledge of property by legislative act, U. S. 20 Sup. Ct. Rep. 44; and
120,
cannot be divested or postponed by a sub- s. c. 167 U. S. 467, 17 Sup. Ct. Rep. 802.
sequent legislative act. Wabash, &c. Co. A railroad company was organized under
v. Beers, 2 Black, 448. An agreement to general statutes which provided for the
receive coupons of State bonds in pay- alteration, amendment, or repeal
of corpo-
ment binding. Hartman
for State taxes is rate charters. Filing a map of a pro-
v. Greenhow, 102 U. S. 672; Poindexter posed route does not vest in it any right
v. Greenhow, 114 U. S. 270, 5 Sup. Ct. to condemn lands upon the proposed
Rep. 903, 962. See Keith v. Clark, 97 route, such that the State is precluded
U. S. 454. QWheii State officers acting from taking these lands for other pur-
under authority of a statute have re- poses without impairing, to the damage
ceived in payment of obligations due to of the company, the obligation of a con-
the State warrants drawn on the State tract. Adirondack R. Co. v. N. Y., 176
treasury, there is an executed contract, U. S. 335, 20 Sup. Ct. Rep. 460, aff. 160
and the obligation is discharged, even N. Y. 225, 54 N. E. 689. An appeal bond is
though the warrants were illegal and a contract hereunder. Schuster v. Weiss,
void, as being issued with the intention 114 Mo. 158, 21 S. W. 438, 19 L. R. A.
that they circulate as money or as bills 182.]
of creditor in aid of rebellion. For the 1
On the separation cf Kentucky from
courts of State to place upon a
the Virginia, a compact was entered into be-
statute thereafter passed a construction tween the proposed new and the old State,
which will treat such payments as void by which it was agreed "that all private
and revive the obligation is to impair grants and interests of lands, within the
the obligation of the contract, and there- said district, derived from the laws of
fore to violate the Federal Constitu- Virginia, shall remain valid and secure
tion. Houston & T. C. R. Co. v. Texas, under the laws of the proposed State,
177 U. S. 06, 20 Sup. Ct Rep. 545, rev. and shall be determined by the laws now
41 S. W. 157. But whore the statute existing in this State." After the ad-
CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 387
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.
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.
;
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
1
institutions, adopted for internal government." 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
" Where an office
Dartmouth College v. Woodward,
1
478, 9 N. W. 500. is
4 Wheat. 518-629, per Marshall, Ch. J. created by statute, it is wholly within the
Pennsylvania, 10 How.
2 Butler v. control of the legislature. The term, the
402 United States v. Hartwell, 6 Wall.
;
mode of appointment, and the compensa-
385; Newton v. Commissioners, 100 U. S. tion may be altered at pleasure, and the
559; Warner v. People, 2 Denio, 272; latter may be even taken away without
Conner v. New York, 2 Sandf. 355, and abolishing the office. Such extreme leg-
5 N. Y. 285; People v. Green, 58 N. Y. islation is not to be deemed probable in
295; State v. Van Baumbaeh, 12 Wis. any case. But we are now discussing the
310 Coffin v. State, 7 Ind. 157 Benford
; ; legislative power, not its expediency or
v. Gibson, 15 Ala. 521 Perkins v. Corbin, ; propriety. Having the power, the legis-
45 Ala. 103; Evans v. Populus, 22 La. lature will exercise it for the public good,
Ann. 121 ;
Commonwealth v. Bacon, and it is the sole judge of the exigency
6 S. & R. 322; Commonwealth v. Mann, which demands its interference." Per
6 W. & S. 403, 418 Koontz v. ; Franklin Sandford, 2 Sandf. 355, 369. " The
J.,
Co., 76 Pa. St. 154 ; French v. Common- who are nothing more
selection of officers
wealth, 78 Pa. St. 339 ; Augusta v. Swee- than public agents for the effectuating of
ney, 44 Ga. 463; County Commissioners public purposes is matter of public con-
v. Jones, 18 Minn. 199 People v. Lippin- ; venience or necessity, and so, too, are the
cott, 67 111. 333; In re Bulger, 45 Cal. periods for the appointment of such
553; Opinions of Justices, 117 Mass. 603; agents but neither the one nor the other
;
Kendall v. Canton, 53 Miss. 526; Wil- of these arrangements can constitute any
liams V.Newport, 12 Bush, 438; States. obligation to continue such agents, or to
Douglass, 26 Wis. 4-28; State v. Kalb, 50 reappoint them, after the measures which
Wis. 178, 6 N. W. 557; Robinson v. brought them into being shall have been
White, 26 Ark. 139 Alexander v. Mc- ; found useless, shall have been fulfilled,
Kenzie, 2 S. C. 81 Harvey v. Com'rs; or shall have been abrogated as even
Rusli Co., 32 Kan. 159, 4 Pac. 153 Com. ; detrimental to the well-being of the pub-
v. Bailey, 81 Ky. 395. Compare Peo- lic. The promised compensation for ser-
ple v. Bull, 46 N. Y. 57, 7 Am. Rep. vices actually performed and accepted,
302 Wyandotte v. Drennan, 46 Mich.
; 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-
equity ; but to insist beyond this upon its own creation. State v. Brunst, 26
the perpetuation of a public policy either Wis. 413, 7 Am. Rep. 84, disapproving
useless or detrimental, and upon a reward State v. Dews, R. M. Charl. 397. QSee
for acts neither desired nor performed, also People v. Howland, 155 N. Y. 270,
resolution, or ordinance which fixes the der, 65 N. C. 603, 6 Am. Rep. 754. Nor,
rate of compensation, there arises an where the office is elective, can the legis-
implied contract to pay for those services lature either directly, or by extend-
fill it,
at that rate. This contract is a completed ing the term of the incumbent. People
contract. Its obligation is perfect, and v.Bull, 46 N. Y. 57 People v. McKinney,
;
rests on the remedies which the law gives 52 N. Y. 374. [[Where the constitution
for its enforcement," and cannot be im- prohibits the removal of an officer during
paired by a change in the State constitu- his term except for cause, it equally pro-
tion. Fisk v. Jefferson Police Jury, 116 hibits the transfer of the duties and
U. S. 131, 6 Sup. Ct. Rep. 329. See also emoluments of the office. State Prison
Barker v. Pittsburgh, 4 Pa. St. 49 Standi- ;
v. Day, 124 N. C. 362, 32 S. E. 748, 46
ford v. 'Wingate, 2 Duv. 443; Taft v. L. R. A. 295.] See also on these points
Adams, 3 Gray, 126 Walker v. Peelle,; cases, p. 99, supra. Compare People v.
18 Ind. 264; People v. Haskell, 5 Cal. Flanagan, 66 N. Y. 237. As to control
357; Dart v. Houston, 22 Ga. 506; Wil- of municipal corporations, see further
liams v. Newport, 12 Bush, 438 Terri- ;
Marietta v. Fearing, 4 Ohio, 427 Brad- ;
tory v. Pyle, 1 Oreg. 149; Bryan v. Cat- ford v. Cary, 5 Me. 339 Bush v. Ship- ;
tell, 15 Iowa, 538. If the term of an man, 5 III. 186 Trustees, &c. v. Tatman,
;
legislature cannot remove the officer, 325; Mills v. Williams, 11 Ired. 558;
except as that instrument may allow, People v. Banvard, 27 Cal. 470 ante, ch. ;
either directly, or indirectly by abolish- viii. But where the State contracts as
ing the office. People v. Dubois, 23 111. an individual, it is bound as an indi-
647; State Messmore, 14 Wis. 163;
v. vidual would be: Davis v. Gray, 16
Commonwealth v. Gamble, 62 Pa. St. Wall. 203 ; even though the contract
343, 1 Am. Rep. 422 Lowe i\ Common-
;
creates an official relation. Hall v. Wis-
wealth, 3 Met (Ky.) 240 State v. Wiltz, ; consin, 103 U. S. 5. QA public office is
11 La. Ann. 489; Goodin v. Thoman, 10 not property, and a provision that " no
Kan. 191 State r. Draper, 50 Mo. 353.
; person shall be deprived of ... property
Or by shortening the constitutional term. without . the judgment of his peers"
. .
Brewer v. Davis, 9 Humph. 212. Com- is not applicable to a lawful removal from
16 N. E. 328. Nor can the legislature take elected officer, see Jacques v. Litle, 51
from a constitutional officer a portion of Kan. 300, 33 Pac. 106, 20 L. R. A. 304.]
390 CONSTITUTIONAL LIMITATIONS. [CH. IX.
contemplated in the Constitution, and as hold private property for municipal uses ;
could not be modified by subsequent legis- and such property is invested with the
lation. The legislature was acting here security of other private rights. So cor-
on the one part, and public municipal and porate franchises attached to public cor-
political corporations on the other. They porations are legal estates, coupled witli
were acting, too, in relation to a public an interest, and are -protected as private
object, being virtually a highway across property." This is true in a general sense,
the river, over another highway up and and it is also true that, in respect to such
down the river. From this standing and property and franchises, the same rules of
relation of these parties, and from the responsibility are to be applied as in the
subject-matter of their action, we think case of individuals. Bailey v. Mayor, &c.
that the doings of the legislature as to of New York, 3 Hill, 53 But it does
1".
this ferry must be considered rather as not follow that the legislature, under its
public laws than as contracts. They re- power to administer the government, of
lated to public interests. They changed which these agencies are a part, and for
as those interests demanded. The gran- the purposes of which the grant has been
tees, likewise the towns, being mere made, may not at any time modify the
organizations for public purposes, were municipal powers and privileges, by trans-
liable to have their public powers,rights, ferring the grant to some other agency,
and duties, modified or abolished at any or revoking it when it seems to have be-
moment by the legislature. They are come unimportant. A power to tax is
incorporated for public, and not private, not private property or a vested right
objects. They are allowed to hold priv- which when once conferred upon a mu-
ileges or property only for public pur- nicipality by legislative act cannot be
poses. The members are not sharehold- subsequently modified or repealed. The
ers nor joint partners in any corporate grant of such power is not a contract.
estate which they can sell or devise to Williamson v. New Jersey, 130 U. S. 189,
others, or which can be attached and 9 Sup. Ct. Rep. 453 Richmond v. Rich-
;
levied on for their debts. Hence, gener- mond, &c. R. R. Co., 21 Gratt. 604, 611.
ally, the doings between them and the See post, p. 355, note 1. In People v.
legislature are in the nature of legislation Power, 25 111. 187, 191, Breese, J., in
rather than compact, and subject to all speaking of a law which provided that
the legislative conditions just named, and three-fourths of the taxes collected in the
therefore to be considered as not violated county of Sangamon, with certain de-
by subsequent legislative changes. It is ductions, should be paid over to the city
hardly possible to conceive the grounds of Springfield, which is situated therein,
on which a different result could be vin- says: "While private corporations are
dicated, without destroying all legislative regarded as contracts which the legisla-
sovereignty, and checking most legisla- ture cannot constitutionally impair, as
tive improvements and amendments, as the trustee of the public interests it has
well as supervision over its subordinate the exclusive and unrestrained control
public bodies." A
different doctrine was over public corporations and as it may
;
CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 391
create, soit may modify or destroy, as Pa. St. 374; Guilford v. Supervisors of
public exigency requires or the public Chenango, 18 Barb. 615, and 13 N. Y.
interests demand. Coles v. Madison 143; ante, pp. 342,347, and cases cited.
County, Breese, 115. Their whole ca- [Statute exempting city's waterworks
pacities, powers, and duties are derived from taxation is not irrepealable. Cov-
from the legislature, and subordinate .to ington v. Kentucky, 173 U. S. 231, 19
that power. If, then, the legislature can Sup. Ct. Rep. 383Q
destroy a county, they can destroy any of
*
See Town of Pawlet v. Clark, 9
its parts, and take from it any one of its Cranch, 292, and Terrett v. Taylor, 9
powers. The revenues of a county are Cranch, 43. The municipal corporation
not the property of the county, in the holding property or rights in trust might
sense in which revenue of a private per- even be abolished without affecting the
son or corporation is regarded. The grant ; but the Court of Chancery might
whole State has an interest in the reve- be empowered to appoint a new trustee
nue of a county; and for the public good to take charge of the property, and to
the legislature must have the power to execute the trust. Montpelier v. East
direct its application. The power con- Montpelier, 29 Vt. 12. Power to repeal
ferred upon a county to raise a revenue a charter cannot be exercised so as to
by taxation is a political power, and its injure creditors already entitled to pay-
application when collected must neces- ment, Morris v. State, 62 Tex. 728.
sarily be within the control of the legis- A municipal corporation, like the State,
lature for political purposes. This act may enter into contractsby legislative
of the legislature nowhere proposes to action. for example, a village
Where,
take from the county of Sangamon, and by ordinance grants to a railroad com-
give to the city of Springfield, any prop- pany permission to use the streets of the
erty belonging to the county, or revenues village for its road-bed, on condition of
collected for the use of the county. But grading and gravelling them at its own
if it did it would not be objectionable. But, expense, the ordinance when accepted
on the contrary, it proposes alone to ap- constitutes a contract from which neither
propriate the revenue which may be col- party can withdraw. Cincinnati, &c. R.
lected by the county, by taxes levied on R. Co. v. Carthage, 36 Ohio St. 631. See
property both in the city and county, in also Hovelman v. Kansas City Ry. Co., 79
certain proportions ratably to the city Mo. 632 Coast Line Ry. Co. v. Savannah,
;
and county." It is held in People v. 30 Fed. Rep. 646 Los Angeles v. Water
;
Ingersoll, 58 N. Y. 1, that the franchise to Co., 61 Cal. 65; Chicago, Mun., &c. Co.
levy taxes by a county for county pur- v. Lake, 130 111. 42, 22 N. E. 616. [Grant
poses was not exercised by the county as to a public corporation of all moneys
agt nt for the State, but as principal. And received by a certain county from fines
see Bush v. Shipman, 5 111. 186; Rich- and penalties may be revoked at pleasure
land County v. Lawrence County, 12 111. of legislature. Watson Seminary v. Co.
1; Sangamon Co. v. Springfield, 63 III. Ct. of Pike Co., 149 Mo. 57, 50 S. W. 880,
66; Borough of Dunmore's Appeal, 5'2 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
As grant unamendable and irrepealable
1
itself. the power to
1 Dartmouth
College v. Woodward, 4 & N. Turnp. Co., Tenn ,
61 S. W. 1096
Wheat. 518; Trustees of Vincennes Uni- (Nov. 27, 1900). 3 The mere passage of
versity v. Indiana, 14 How. 2ti8 ;
Planters' an act of incorporation, however, does
Bank Sharp, 6 How. 301 ; Piqua Bank
o. not make the contract and it may be re-
;
Brown v. Hummel, 6 Pa. St. 86; State Clifford, 113 Ind. 460, 15 N. E. 624. See,
v. Hey ward, 3 Rich. 389 People v. Man- ; further, Chincleclamouche L. & B. Co. v.
hattan Co., 9 Wend. 351 Commonwealth ; Com., 100 Pa. St. 438. After the adoption
v. Cullen, 13 Pa. St. 132; Commercial of a constitutional amendment allowing
Bank of Natchez v. State, 14 Miss. 599 ;
amendment and repeal of charters, a cor-
Backus v. Lebanon, 11 N. H. 19; Michi- poration, previously chartered, accepted
gan State Bank v. Hastings, 1 Doug. acts of the legislature. Held that its
(Mich.) 225; Bridge Co. v. Hoboken Co., charter thereby became subject to altera-
13 N. J. Eq. 81; Miners' Bank v. United tion under the amendment, and that it
States, 1 Greene (Iowa), 553; Edwards v. was affected by a constitutional amend-
Jagers, 19 Ind. 407 ; State v. Noyes, 47 ment passed thereafter. Penn. R. R. Co.
Me. 189 Bruffet v. G. W. R. R. Co., 25
; v. Duncan, 111 Pa.St. 352. In affirming
111. 353 ;
Jackson & Michigan
People v. this decision held that the corpora-
it is
Gray, 106; Bank of the Dominion v. as the legislature may prescribe short of
McVeigh, 20 Gratt. 457 ;
Sloan v. Pacific a material interference with its privileges.
R. R. Co., 61 Mo. 24 State v. Richmond, ; Chicago Life Ins. Co
Needles, 113 U. S.
v.
&c. R. R. Co., 73 N. C. 527; Turnpike 574, 5 Sup. Ct. Rep. 681. fjUntil the cor-
Co. v. Davidson Co., 3 Tenn. Ch. 397 ; poration has entered upon the execution
Detroit v. Plank Road Co., 43 Mich. 140, of a general power granted to it (e. g. to
5 N. W. 275 ; Penn. R. R. Co. v. Balti- mortgage its property) the legislature
more, &c. R. R. Co., 60 Md. 263 Com. v. ; may modify at will the conditions under
Erie & W. Tr. Co., 107 Pa. St. 112; which that power may be exercised (e. g.
Houston & T. C. Ry. Co. v. Texas & P. may enact that subsequent judgments
Ry. Co., 70 Tex. 649, 8 S. W. 498 fJCity ; against the corporation shall be prior
R. Co. v. Citizens' Street R. Co 166 LT S. , . liens upon its property). East Tenn., V.
557, 17 Sup. Ct. Rep. 653 Mich. Tel. Co. ; & G. R. Co. v. Frazier, 139 U. S. 288, 11
v. St. Joseph, 121 Mich. 502, 80 N. W. 383,
Sup. Ct. Rep. 517-3 The provision in a
47 L. R. A. 87 Ingersoll v. Nassau Elec-
; railroad charter prescribing the manner
tric R. Co., 157 N. Y. 453, 52 N. E. 645, 43 in which it may take lands for its pur-
L. R. A. 236 Franklin Co. Grammar
; poses, only gives a remedy which may be
School w. Bailey, 62 Vt. 467, 20 All. 820, altered. Mississippi R. R. Co. v. Mc-
10 L. R. A. 405, and note Nashville, M., ; Donald, 12 Heisk. 54. Giving the right
6 S. Tump. Co. v. Davidson County, 106 of cumulative voting to stockholders in a
Tenn. 258, 61 S. W. 68; Stale c. Lebanon corporation with an irrepealable charter,
(JH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 393
money, confers upon the party of the does not impair the obligation of con-
second part the privilege of being a cor- tract. Springfieldv. Springfield St. Ry.
poration, with certain powers and capaci- Co, Mass. 64 N. E. 577 (July 15,
,
questions are likely to .arise which have of Newark, 35 N. J. 157 West Wis. R. R.
;
only as yet been hinted at in the decided Co. v. Supervisors, 35 Wis. 257 Union ;
granted, no legislative act can take away. Co., 41 Iowa, 297, 20 Am. Rep. 5'J2; Gor-
Commonwealth v. Essex Co., 13 Gray, man v. Pacific R. R. Co., 20 Mo. 441;
239 Railroad Co. v. Maine, 96 U. S. 499;
;
Gardner v. Hope Ins. Co., 9 R. I. 194, 11
Sinking Fund Cases, 99 U. S. 700 Attor- ; Am. Rep. 238; Yeaton v. Bank of Old
ney-General v. Railroad Companies, 35 Dom., 21 Gratt. 593 Tomlinson c. Jes-
;
See post, pp. 837-839. But a legislature Holyoke Co. v. Lyman, 15 Wall. 500;
may grant to another corporation the Detroit v. Detroit & H. P. R. Co., 43
upon compensation made. Greenwood v. Gaslight & Coke Co. v. Hamilton, 146
Freight Co., 105 U. S. 13. new con- A U. S. 258, 13 Sup. Ct. Rep. 90. After
stitution may allow water rates to be subscribers to stock have paid for it in
fixed by a public board, although the full, the legislature cannot increase their
company had under the law of its organi- liabilities. Enterprise Ditch Co. v. Moffit,
zation the right of representation upon 58 Neb. 642, 79 N. W. 560. 45 L. R. A.
the board. Spring Valley Water Works 647.]
. Schottler, 110 U. S. 347, 4 Sup. Ct. Rep. Where no power to amend a charter
48. In many cases the property itself has reserved, amendments may
been
becomes valueless unless its employment nevertheless be made with the consent
in the manner contemplated in the cor- of the corporation, but the corporation
porate grant be continued as in the
may ; cannot bind its shareholders by the ac-
case, for instance, of railroad property ; ceptance of amendments which effect
and whatever individual owners of such fundamental changes in its character or
property might do without corporate purpose. See Gray v. Navigation Co.,
powers, it must be competent for the 2 W. & 37 Am. Dec. 600; Stevens
S. 156,
stockholders to do after their franchises v. Rutland, &c. R. R. Co., .29 Vt. 545.
are taken away. Without speculating [Where such power has been reserved,
on the difficulties likelyto arise, refer- the mode of electing directors may be so
ence is made to the following cases, in modified as to permit cumulative voting
which the reserved power to alter or in order to secure proportional represen-
repeal corporate grants has been consid- tation on the board of directors. Looker
ered or touched upon Worcester v. Nor-
: v. Maynard, 179 U. S. 46, 21 Sup. Ct.
wich, &c. R. R. Co., 109 Mass. 103; Rep. 21.]
2
Railroad Commissioners v. Portland, &c. Where corporations are thus formed,
R. R. Co., 63 Me. 269, 18 Am. Rep 208; the articles of association, taken in con-
State v. Maine Cent. R. R. Co., 66 Me. nection with the General Statute under
488; Ames r. Lake Superior R. R. Co., which they are entered into, constitute
21 Minn. 201 Sprigg v. Telegraph Co.,
;
the charter.
CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 395
1 Mechanics' & Traders' Bank v. De- 2 New Jersey v. Wilson, 7 Cranch, 164;
bolt, Ohio
1 691; Toledo Bank v.
St. 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 ;
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.
;
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.
745; O'Donnell v. Bailey, 24 Miss. 386; case, it must be the result of a deliberate
St. Paul, &c. R. R. Co. v. Parcher, 14 intention to relinquish this prerogative
Minn. 297; Grand Gulf R. R. Co. v, of sovereignty, distinctly manifested.
Buck, 63 Miss. 246 Central R. R. Co.
;
Easton Bank v. Commonwealth, 10 Pa.
v. State, 54 Ga. 401 St. Louis, &c. R. R.
;
St. 450 Providence Bank v. Billings,
;
sewer assessment. [And see also Mobile Memphis Gaslight Co. v. Shelby Co., 109
& 0. R. Co. v. Tennessee, 153 U. sV~486, U. S. 398, 3 Sup. Ct. Rep. 205; Chicago,
14 Sup. Ct. Rep. 968 Stearns v. Minne- ;
B. & K. C. Ry. Co. v. Guffey, 120 U. S.
sota, 179 U. S. 223, 21 Sup. Ct. Rep. 73; 569, 7 Sup. Ct. Rep. 693 State Hilbert,
;
.
Co. v. Clark, 143 U. S. 1, 12 Sup. Ct. field, 36 Conn. 116, 4 Am. Rep. 41 Erie ;
How. 300; Brainard v. Colchester, 31 McAtee, 7 Bush, 667, 3 Am. Rep. 309;
Conn. 407. See also Commonwealth v. North Missouri R. R. Co. v. Maguire, 49
Bird, 12 Mass. 442 Dale >. The Gover-
; Mo. 490, 8 Am. Rep. 141 Illinois Cent. ;
95 U. S. 679, and Bk. of Commerce v. ville, 174 U. S. 439, 19 Sup. Ct. Rep. 753.
Tennessee, 161 U. S. 134, 16 Sup. Ct. But taxes cannot, after revocation of an
Rep. 456, both of which seem to overlook exemption, be levied for any part of the
the necessity for a consideration.] If an time prior to such revocation. Louisville
exemption from taxation exists in any Water Co. v. Kentucky, 170 U. S. 127, 18
2 See Cooley on Taxation, 146, and will not be presumed. New Orleans C. &
cases cited. Hoge v. Railroad Co., 99 L. R, Co. v. New Orleans, 143 U. S. 192,
U. S. 348; Railway Co. v. Philadelphia, 12 Sup. Ct. 406. Strictly construed, St.
101 U. S. 528; Vicksburg, S. & P. R. R. Paul, M. & M. R. Co. v. Todd County,,
Co. v. Dennis, 116 U. S. 665, 6 Sup. Ct. 142 U. S. 282, 12 Sup. Ct. Rep. 281,
Rep. 625 Chicago, B. & K. C. Ry. Co. v.
;
aff. 38 Minn. 163, 36 N. W. 109. See
Guffey, 120 U. S. 569, 7 Sup. Ct. Rep. also Wheeling & B. Bridge Co. v.
693; Yazoo & M. R. R. Co. v Thomas, Wheeling Bridge Co., 138 U. S. 287, 11
132 U. S. 174, 10 Sup. Ct. Rep. 68. Bk. Sup. Ct. Rep. 301 Joy v. St. Louis, 138
;
of Commerce v. Tennessee, 163 U. S. 416, U. S. 1, 11 Sup. Ct. Rep. 243, and Free-
16 Sup. Ct. Rep. 1113, mod. s.C. 161 U. S. port W. Co. v. Freeport, 180 U. S. 587,
134, 16 Sup. Ct. Rep. 456. Exemption 21 Sup. Ct. Rep. 493.]
CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 397
Sup. Ct. Rep. 571, rev. 18 Ky. L. Rep. lowing Phoenix F. & M. Ins. Co. v. Ten-
620, 37 S. W. 576.] Upon the reorganiza- nessee, above ;People, &c. v. Cook, 148
tion of a corporation which had enjoyed U. S. 397, 13 Sup. Ct. Rep. 645, aff. 110
an exemption, it passes, if all the " privi- N. Y. 443, 18 N. E. 113, 47 Hun, 467.
"
leges of the old pass to the new ; not, See also Wilmington & W. R. Co. i\
"
if the rights and franchises" alone Alsbrook, 146 U. S. 279, 13 Sup. Ct.
pass. Memphis & L. R. R. R. Co. v. R. R. Rep. 72. Nor the power to fix tolls.
Com'rs, 112 U. S. 009, 5 Sup. Ct. Rep. St. Louis & S. F. R. Co. v. Gill, 156 U. S.
209 ; St. Louis Iron M. & S. Ry. Co. v. 649, 15 Sup. Ct. Rep. 484, 491, aff. 54
Berry, 113 U. S. 465, 5 Sup. Ct. Rep. 529; Ark. 101, 15 S. W. 18, 11 L. R. A. 452;
Tennessee v. Whitworth, 117 U. S. 139, Norfolk & W. R. Co. v. Pendleton, 156
6 Sup. Ct. Rep. 645. See Detroit St. Ry. U. S. 667, 15 Sup. Ct. Rep. 413. Where
Co. v. Guthard, 51 Mich. 180, 16 N. W. a corporation authorized to carry on an
328. FJGrant of "powers, rights, and insurance business takes advantage, after
"
capacities of old corporation to new the adoption of a constitutional provision
does not include exemptions enjoyed by prohibiting exemptions from taxation, of
old. Covington & L. Turnpike Road Co. a statute permitting it to do a banking
v. Sandford, 164 U. S. 578, 17 Sup. Ct. business, it so radically changes the char-
Rep. 198. Grant of "all the rights and acter of its business as to lose its exemp-
privileges," omitting "and immunities," tionfrom taxation. Memphis City Bank
impliedly excludes the grant of exemp- v.Tennessee, 161 U. S. 186, 16 Sup. Ct.
tion from taxation enjoyed by old coiji- Hep. 468, aff. 91 Tenn. 574, 19 S. W.
pany. Phoenix F. & M. Ins. Co. v. Ten- 1045. And when two corporations are
nessee, 161 U. S. 174, 16 Sup. Ct. Rep. consolidated, a new corporation
is formed,
471, aff. 91 Tenn. 566. And where a and if before the consolidation takes
corporation is exempt from taxation and place a constitutional prohibition of ex-
becomes insolvent and its charter is sold emptions from taxation has been made,
under judicial decree, but not the shares the legislative grant to the consolidated
"
of stock of the stockholders, the pur- corporation of all the rights, privileges,
chasers acquire only the right to reor- and immunities" of the old corporations
ganize as a corporation, subject to all is ineffective to exempt the new from
the laws then in force, including a con- taxation. Keokuk & W. R. Co. v. Mis-
stitutional amendment passed after the souri, 152 U. S. 301, 14 Sup. Ct. Rep.
organization of the original corporation 592, aff. 99 Mo. 30, 12 S. W. 290; Yazoo
and prior to the sale of the charter. & M. V. R.R. Co. v. Adams, 180 U. S.
Mercantile Bank v. Tennessee, 161 U. S. 1, 21 Sup. Ct. Rep. 240, aff. 77 Miss.
161, 16 Sup. Ct. Rep. 466, aff. 95 Tenn. 302, 305, 315, 24 So. 200, 317, 28 So.
212, 31 S. W. 989. Delay in accepting a 956. Where corporations are taxed upon
charter containing exemptions from tax- their capital stock, the consolidated cor-
ation until after a constitutional provision poration may be compelled by the State
prohibiting exemptions has been passed under whose laws it is incorporated to
is fatal. Planters' Ins. Co. v. Tennessee, pay the tax upon its entire capital stock,
161 U. S. 193, 16 Sup. Ct. Rep. 466, aff. and not merely upon that of the consoli-
95 Tenn. 203, 31 S. W. 992. An act dating corporation which was formerly
giving a new corporation "all the . . . a corporation of that State. Ashley r.
powers, rights, reservations, restrictions Ryan, 153 U. S. 436, 14 Sup. Ct. Rep.
" The new corporation is subject to
and liabilities given to and imposed upon 865.
the old, does not convey to the new an all the laws existing at the time of its
exemption from taxation enjoyed by the organization. People, &c. v. Cook, 148
old. Home Ins. & T. Co. v. Tennessee, U. S. 397, 13 Sup. Ct. Rep. 645, aff. 110
161 U. S. 198, 16 Sup. Ct. Rep. 476, fol- N. Y. 443, 18 N. E. 113, 47 Hun, 467.]
398 CONSTITUTIONAL LIMITATIONS. [CH. IX.
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
1
Mr. Greenleaf, in a note to his edi- the intention to relinquish the right of
tion of Cruise on Real Property, Vol. II. eminent domain is not to be presumed in
"
p. 67,says upon this subject In regard
:
any legislative grant, see People v. Mayor,
to the position that the grant of the fran- &c. of New York, 32 Barb. 102; Illinois
chise of a ferry, bridge, turnpike, or rail- & Michigan Canal v. Chicago & Hock
road is in its nature exclusive, so that Island Railroad Co., 14 111. 314; Eastern
the State cannot interfere with it by the R. R. Co. v. Boston, &c. R. R. Co., Ill
creation of another similar franchise tend- Mass. 125, 15 Am. Rep. 13; Turnpike Co.
ing materially to impair its value, it is v. Union R. R. Co., 35 Md. 224.
with great deference submitted that an 2 " We
think the power of the legisla-
important distinction should be observed ture to control existing railways in this
between those powers of government respect may be found in the general con-
which are essential attributes of sover- trol over the police of the country, which
take private property for public uses, and of a general principle applicable to all
the like, and those powers which are not free States
;
and which cannot therefore
thus essential, such as the power to alien- be violated so as to deprive the legis-
ate the lands and other property of the lature of the power, even by express
State, and to make contracts of service, grant to any mere public or private cor-
or of purchase and sale, or the like. poration. And when the regulation of the
Powers of the former class are essential policy of a city or town, by general ordi-
to the constitution of society, as without nances, is given to such towns and cities,
them no political community can well and the regulation of their own internal
exist; and necessity requires that they police is given to railroads, to be carried
should continue unimpaired. They are into effect by their by-laws and other
intrusted to the legislature to be exer- regulations, it is, of course, always, in all
within certain limits, or in a certain term Ind. 84; Ohio, &c. R. R. Co. v. McClelland,
of time such covenant being an alien-
;
25 111. 140. See State v. Noyes, 47 Me.
ation of sovereign powers, and a violation 189, on the same subject. In Bradley ?.
of public duty." See also Redfield on McAtee, 7 Bu*h, 607, 3 Am. Rep. 300, it
Railways (3d. ed.), Vol. I. p. 258. That was decided that a provision in a city
400 CONSTITUTIONAL LIMITATIONS. [CH. IX.
charter that, after the first improvement period covered by a former one. Row-
of a street, repairs should be made at the land v. State, 12 Tex. App. 418. A mer-
expense of the city, was not a contract; chant's license may be revoked by a police
and on its repeal a lot-owner, who had regulation inconsistent with it. State v.
paid for the improvement, might have Burgoyne, 7 Lea, 173. But a munici-
his lot assessed for the repairs. Compare pality cannot add to the statutory grounds
Hammett v. Philadelphia, 65 Pa. St. 146, for revocation. Lantz v. Highstown, 46
3 Am. Eep. 615. N. J. L. 102. Grants of the right to es-
1
See, upon this subject, Brick Pres- tablish lotteries are mere privileges, and
byterian Church v. Mayor, &c. of New as such are revocable. Bass v. Nash-
York, 6 Cow. 638 Vanderbilt v. Adams,
; ville,Meigs, 421, 83 Am. Dec. 154; State
7 Cow. 349 State v. Sterling, 8 Mo. 697
; ;
t7.Morris, 77 N. C. 612 Stone v. Missis-
;
Him v. State, 1 Ohio St. 15; Calder v. sippi, 101 U. S. 814 ; Justice v. Com., 81
Kurby, 5 Gray, 597 Brimmer v. Boston,
; Va. 209; State v. Woodward, 89 Ind. 110;
102 Mass. 19. The power of the State, [Douglas v. Kentucky, 168 U. S. 488, 18
after granting licenses for the sale of liq- Sup. Ct. Rep. 199.] But if they are au-
uors and receiving fees therefor, to revoke thorized by the constitution, they cannot
the licenses by a general law forbidding be abolished by the legislature. New
sales, has been denied in some cases. Orleans v. Houston, 119 U. S. 265, 7 Sup.
See State v. Phalen, 3 Harr. 441; Adams Ct. Rep. 198. In short, the State cannot
17.
Hachett, 27 N. H. 289 Boyd v. State,
; by any legislation irrevocably hamper
36 Ala. 329. But there is no doubt this itself in the exercise of its police power.
is entirely competent. Freleigh v. State, Toledo, &c. R. R. Co. v. Jacksonville, 67
8 Mo. 606; State v. Sterling, 8 Mo. 697 ; 111. 37; Chicago Packing Co. v. Chicago,
Calder v. Kurby, 5 Gray, 697 Met. Board
; 88 111. 221 Beer Company v. Massachu-
;
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-
;
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. East Saginaw, 19 Mich. 259, 2
v.
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.
;
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 ;
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.
8
789 Ellett v. Com., 85 Va. 517, 8 S. E.
; Holmes v. Holmes, 4 Barb. 295.
404 CONSTITUTIONAL LIMITATIONS. [CH. IX.
1 McCracken v. Hay ward, 2 How. 608, being exempt from taxation. New York,
" The L. E. & W. R. R. Co. v. Com., 129 Pa.
612. obligation of a contract . . .
is the law which binds the parties to per- St. 463, 18 Atl. 412. Alaw giving in-
form their agreement. The law, then, terest on debts, which bore none when
which has this binding obligation must contracted, was held void in Goggans v.
1 S. C. (N. s.) 40, 7 Am. Rep.
govern and control the contract, in every Turnispeed,
shape in which it is intended to bear upon 23. The
legislature cannot authorize the
it, whether it affects its validity,
con- compulsory extinction of ground rents,
struction, or discharge. It is, then, the on payment of a sum in gross. Palairet's
municipal law of the State whether that be Appeal, 67 Pa. St. 479, 5 Am. Rep. 450.
written or unwritten, which is emphatic- A State law, discontinuing a public work,
ally the law of the contract made within does not impair the obligation of con-
the State, and must govern it throughout, tracts, the contractor having his just
whenever its performance is sought to be claim for damages. Lord v. Thomas, 64
enforced." Washington, J., in Ogden ;. N. Y. 107. A law giving an abutter a
"
Saundere, 12 Wheat. 213, 257, 259. As right to damages when a railroad is laid
I understand it, the law of the contract in the street is valid as to changes there-
forms its obligation." Thompson, J., ibid. after made by a railroad, though a city
302. "The
obligation of the contract ordinance had given it the right to use
consists in the power and efficacy of the the street. Drady v. Des Moines, &c. Co ,
law which applies to, and enforces per- 57 Iowa, 393, 10 N. W. 754. See also
formance of, the contract, or the payment Mulholland v. Des Moines, &c. Co., 60
of an equivalent for non-performance. Iowa, 740, 13 N. W. 726. A statute pro-
The obligation does not inhere and sub- viding for reversion of land condemned
sist in the contract itself, proprio vigore, for railroad purposes if work on the road
but in the law applicable to the contract. has ceased for eight years is valid. The
This is the sense, I think, in which the property right does not attach to the land
Constitution uses the term 'obligation.'" independent of its use for public purposes.
Trimble, J., ibid. 318. And see Van Skillman v. Chicago, &c. Ry. Co., 78 Iowa,
Baumbach Bade, 9 Wis. 559 Johnson
v. ; 404, 43 N. W. 275. Where at the
v. Higgins, 3 Met. (Ky.) 566; People v. time a contract was made a judgment for
Ingersoll, 58 N. Y. 1. Requirement of damages for breach thereof was renew-
a license tax for permission to do what a able indefinitely, a later enacted statute
contract with the city gives authority limiting absolutely the life of the judg-
to do, without
"
let, molestation, or hin- ment is void with regard to this contract.
drance," is void. Stein v. Mobile, 49 Ala. Bettman v. Cowley, 19 Wash. 207, 53
362, 20 Am. Rep. 283. But licenses in Pac. 53, 40 L. R. A. 815, and see also
general are subject to the taxing power. Palmer v. Laberee, 23 Wash. 409, 63 Pac.
Home Ins. Co. v. Augusta, 93 U. S. 116; 216. Warrant of attorney to holder of
Reed v. Beall, 42 Miss. 472; Cooley on note to enter judgment against maker
Taxation, 386, and cases cited. law A upon default of payment, and issue exe-
taxing a debt to the debtor and making cution, etc., valid when note was made
him pay the tax and deduct the amount cannot be invalidated by subsequent
from the debt is valid. Lehigh V. R. R. statute. Second Ward Savings Bank v.
Co. v. Com., 129 Pa. St. 429, 18 Atl. Schranck, 97 Wis. 250, 73 N. W. 31, 39
410. So where the debtor, a foreign cor- L. R. A. 669J
poration, has paid for the privilege of
CH. IX.] FEDERAL PEOTECTION TO PERSON, ETC. 405
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
" There
the intention of the constitutional provision to preclude.
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-
2
tion, or duration, or discharge of contracts ?" 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
" settled "
void by their constitutions, or deny rem- 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
from his obligation on
to relieve a sheriff denies any contract obligation is not a
his official account for moneys
bond to 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.
1 Bronson v. Kinzie, 1 How. 311, 316, is valid, though adopted after the forma-
per Taney, Ch. J. ^Whether impairing tion of the contract. Antoni v. Green-
remedy impairs obligation of contract, see how, 107 U. S. 769, 2 Sup. Ct. Rep. 91 ;
Baumbach v. Bade, 9 Wis. 559 Bronson ; leans, 35 La. Ann. 557. A statute pro-
v. Kinzie, 1 How. 316 McCraoken v. ; viding for a review of judgments does not
Hay ward, 2 How. 608; Butler v. Palmer, enter into contracts so that it may not be
1 Hill, 324 Van Rensselaer v. Snycler, 9
; changed. Rupert v. Martz, 116 Ind. 72, 18
Barb. 302, and 13 N. Y. 299; Conkey v. N. E. 381. See United Cos. v. Weldon, 47
Hart, 14 N. Y. 22; Guild v. Rogers, 8 N. J. L. 59 State v. Slevin, 16 Mo. App,
;
Barb. 502; Story v. Furman, 25 N. Y. 541. But the collection of a special tax
214; Coriell v. Ham, 4 Greene (Iowa), cannot be hindered by requiring, after it
455; Hey ward v. Judd, 4 Minn. 483; is voted, a special collection bond with
art, 44 Pa. St. 179; Clark v. Martin, 49 Hamer, 17 Miss. 310; Danks v. Quack-
Pa. St. 299; Rison v. Farr, 24 Ark. 161 ; enbush. 1 Denio, 128^ 3 Denio, 594,
Oliver v. McClure, 28 Ark. 555; Holland and 1 N. Y. 129 Bronson v. Newberry,
;
243; Mechanics', &c. Bank Appeal, 31 ard, 12 Wis. 371 Porter v. Mariner, 60
;
fore a mandamus shall issue to compel River St. B. Co. v. Barclay, 30 Ala. 120 ;
pay the tax, and on proving the genuine- Bank v. Forman, 33 N. J. Eq. 436 Simp- ;
ness of the coupons shall have it refunded, 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
Crowninshield, 4 Wheat.
1 v. La. Ann. 186 aff. 108 U. S. 514, 2 Sup.
Sturges ;
sealed instrument previously given does Where the individual liability of offi-
cess and confess judgment may be taken shall, 34 Md. 494 Brown v. Hitchcock,
;
away. Worsham v. Stevens, 66 Tex. 89, 36 Ohio St. 667 Providence Savings In-
;
17 S. W. 404. A statutory judgment lien stitute r. Skating Rink, 52 Mo. 452 St. ;
may be taken away. Watson v. New Louis, &c. Co. v. Harbine, 2 Mo. App.
York Central R. R. Co., 47 N. Y. 157 ;
134. But where it is imposed as a pen-
Woodbury v. Grimes, 1 Col. 100. Contra, alty for failure to perform some corpo-
Gunn v. Barry, 15 Wall. 610. The law rate or statutory duty, it stands on the
may be so changed that a judgment lien footing of all other penalties, and may
shall not attach before a levy. Moore v. be revoked in the discretion of the legis-
Holland, 16 S. C. 15. It may be ex- lature. Union Iron Co. v. Pierce, 4 Biss.
tended before it has expired. Ellis v. 327; Bay City, &c. Co. v. Austin, 21
Jones, 61 Mo. 180. The mode of per- Mich. 390; Breitung v. Lindauer, 37
fecting a lien may be changed before it Mich. 217 Gregory v. Denver Bank,
;
has actually attached. Whitehead v. 3 Col. 332. See Coffin v. Rich, 45 Me.
Latham, 83 N. C. 232. The value of a 507 Weidenger v. Spruance, 101 111.
;
mechanic's lien may not be materially 278. Where formerly when building
affected by a statute making consum- subject to mechanic's lien stood upon
mate a previously inchoiite right of mortgaged premises, it had upon fore-
dower. Buser v. Shepard, 107 Ind. 417, closure of lien to be sold and removed
8 N. E. 280. The obligation of the from premises, provision may be made
contract is not impaired if a substantial by statute that the court when deeming
remedy remains. Richmond v. Rich- itto be for best interests of parties may
mond, &c. R. R. Co., 21 Gratt. 611. order land and building sold at the same
See Mabry v. Baxter, 11 Heisk. 682; time, giving mortgagee priority of claim
Edwards v. Kearzey, 96 U. S.595; Bald- upon proceeds of land and lienor priority
win v. Newark, 38 N. J. 158; Augusta upon those of buildings. Red Riv. V. Nat.
Bank v. Augusta, 49 Me. 507 Thistle v. ;
Bk. v. Craig, 181 U. S. 548, 21 Sup. Ct.
Frostbury Coal Co, 10 Md. 129. It is Rep. 703.]
2
competent to provide by law that all Sturges v. Crowninshield, 4 Wheat.
mortgages not recorded by a day speci- 122, per Marshall, Ch. J. ;
Mason v. Haile,
fied shall be void. Vance v. Vance, 32 12 Wheat. 370 ;
Beers v. Haughton, 9 Pet.
408 CONSTITUTIONAL LIMITATIONS. [CH. IX.
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
;
Straub, 64 Tex. 64; Cochran v. Miller, 637. Onthis 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 " An act declaring that no policy of life
Statutes pertaining to the remedy
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 N. Y. Central R. R. Co., 47 N. Y.
i?. 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 Mercer, 15 Barb. 318; Rich
v. a Van
Rensselaer v. Snyder, 9 Barb.
v. Flanders, 39 N. H. 304 Howard v. ; 302, and 13 N. Y. 299 Guild v. Rogers,
;
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
" If the
necessarily be void. 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 2
This
meaning of the Constitution."
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 Snyder, 13 N. Y. 299.
v. 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
;
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,
;
6
they remain valid notwithstanding the repeal.
1 RisonK. Farr, 24 Ark. 611 McFar- ;
tered into before the passage of the law.
land Butler, 8 Minn. 116; Jackson v.
v. Walker v. Whiteliead, 16 Wall. 314.
2 Oatman
Butler, 8 Minn. 117. But there is nothing r. Bond, 16 Wis. 20. As to
to preclude the people of a State, in an control of remedies, see post, p. 615.
amendment 8 Louisiana v. New
to their constitution, taking 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-
thoritiesduring 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.
6 Tuolumne
his duty to the State in respect to the 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.
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- 211; Greenfield v. Dorris, 1 Sneed, 550.
session after foreclosure sale. Travellers [Barnitz v. Beverly, 163 U. S. 118; 16
Ins. Co. v. Brouse, 83 Ind. 62. But the Sup. Ct. Rep. 1042, rev. 55 Kan. 466,
debtor's tenant in possession may be 42 Pac. 725, 31 L. R. A. 74.] But see
made primarily liable to the mortgagee Stone v. Basset, 4 Minn. 298 ; Hey ward
instead of to the debtor. Edwards v. v. Judd, 4 Minn. 483; Freeborn v. Petti-
Johnson, 105 Ind. 594, 5 N. E. 716. In bone, 5 Minn. 277; Davis v. Rupe, 114
Berthold v. Fox, 13 Minn. 501, it was de- Ind. 588, 17 N. E. 163. A
provision that
cided that in the case of a mortgage given the right to redeem from a pre-existing
while the law allowed the mortgagee mortgage shall not expire if a creditor of
possession during the period allowed for the mortgagor comes into equity and gets
redemption after foreclosure, sucli law a decree to enable him to fulfil the con-
might be so changed as to take away this ditions of the mortgage and hold the
right. But this seems doubtful. In property, is void as against the mort-
Baldwin v. Flagg, 43 N. J. 495, it was held gagee. Phinney v. Phinney, 81 Me. 450.
that where bond and mortgage had been So, on the other hand, a law is void which
given, it was not competent to provide by takes away an existing right of a creditor
subsequent legislation that the mortgage of the mortgagor to redeem from the sale.
should be first foreclosed, and resort to O'Brien v. Krenz, 36 Minn. 136, 30 N. W.
the. bond only had in case of deficiency. 458.
2
Nor that the foreclosure sale should be Cargill v. Power, 1 Mich. 369. The
opened if a judgment is had upon the contrary ruling was made in Butler v.
bond. Coddington v. Bispham, 36 N. J. Palmer, 1 Hill, 324, by analogy to the
Eq. 574. See Morris v. Carter, 46 N. J. L. Statute of Limitations. The statute, it
260 Toffey r. Atcheson, 42 N. J. Eq. 182,
;
was said, was no more in effect than
6 Atl. 885. A stipulation in a chattel saying: "Unless you redeem within the
mortgage that the mortgagee may take shorter time prescribed, you shall have
possession whenever he deems himself no action for a recovery of the land, nor
insecure, is not to be impaired by subse- shall your defence against an action be
quent legislation forbidding him to do so allowed, provided you get possession."
without just cause. Boice v. Boice, 27 And in Robinson v.Howe, 13 Wis. 341,
Minn. 371, 7 N. W. 687. Reducing the 346, the court, speaking of a similar right
"
rate of interest payable on redemption to in a party, say : So far as his right of
the foreclosure purchaser violates no con- redemption was concerned, it was not
tract with the mortgagee. Conn. Mut. derived from any contract, but was given
Ins. Co. v. Cushuian, 108 U. S. 51, 2 Sup. by the law only and the time within
;
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 Sequestration Cases, 30 Tex. 688. law A
increase of the rate of interest to be paid permitting a year's stay upon judgments
on redemption of a pre-existing mortgage where security is given was held valid in
is bad. Hillebert v. Porter, 28 Minn. 496, Farnsworth v. Vance, 2 Cold. 108; but
11 N. W. 84. this decision was overruled in Webster v.
1 State v. Commissioners of School Rose, 6 Heisk. 93, 19 Am. Rep. 583. A
and University Lands, 4 Wis. 414. A statute was held void which stayed all
right to reimbursement if a tax purchase proceedings against volunteers who had
"
is set aside cannot by subsequent legis- enlisted during the war," this period
lation be taken away from the purchaser being indefinite. Clark v. Martin, 3
of a tax title. State v. Foley, 30 Minn. Grant's Cas. 393. In Johnson v. Higgins,
350, 15 N. W. 375. 3 Met. (Ky.) 566, it was held that the act
2 v. Moore, 8 W. & S. 49 ;
Chadwick of the Kentucky legislature of May 24,
Bunn Gorgas, 41 Pa. St. 441; Town-
v. 1861, which forbade the rendition in all
send v. Townsend, Peck, 1, 14 Am. Dec. the courts of the State, of any judgment
722; Stevens v. Andrews, 31 Mo. 205. from date January 1st, 1862, was valid.
till
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.]
3
be escaped by turning a city into a mere 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 ;
less in writing.
1
It is also equally true that where a legal im-
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
4
upon the subject must give way.
1 3 Foster v. Essex
Joy v. Thompson, 1 Doug. (Mich.) Bank, 16 Mass. 245.
373; Kingley v.Cousin.*, 47 Me. 91. [[Upon -the protection of contracts by
2 As where a
the defence of usury to the constitution, see article in 3(3 Am.
contract taken away by statute. Welsh
is L. Rev. 70.]
v. Wadsworth, 30 Conn. 149 4
Curtis v. ; Crowninshield, 4 Wheat.
Sturges v,
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.]
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.
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 ;
CHAPTER X.
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
;
his use and that the second were often persons whose lives had
;
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 the Anglo-Sax-
among
pleasure they went with the land and
; ons, see Stubbs, Const. Hist, of England,
rendered services, uncertain in their na- ch. V.
4
For a view of the condition of the
ture, and therefore opposed to rent. They
were the originals of copyholders." Note Wright, Domestic Man-
servile classes, see
to Reeves, History of English Law, Pt. I. ners and Sentiments, 101, 102 Crabbe, ;
time note them the statesman did not observe them they were
; ;
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
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-
;
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
"
Crabbe, History of English Law (ed. Whereas God created all men free, but
1
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
natives, as being born within the manor
2
Harrington on Statutes (3d ed.), 276,
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,
" and chattels acquired, so as the said
among other things, that those are vil- lands,
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
Wright, Domestic Manners and Sen-
*
1514, Henry VIII. manumitted
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
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 ;
not acquire their freedom until 1799, nor without an act of Par-
1
Macaulay (History of England, c. 1) resident in England had been as public
says the chief instrument of emancipa- and London as in any of
as authorized in
tion was the Christian religion. Mack- our West India Islands. They were sold
intosh (History of England, c. 4), also, on the Exchange, and other places of
attributes to the priesthood great influ- public resort, by parties themselves resi-
ence in this reform, not only by their di- dent in London, and witli as little reserve
rect appeals to the conscience, but by the as they would have been in any of our
judges, who were ecclesiastics, multiply- West India possessions. Such a state of
ing presumptions and rules of evidence tilings continued without impeachment
consonant to the equal and humane spirit from a very early period up to nearly the
which breathes throughout the morality end of the last century." The Slave
of the Gospel. Hume (History of Eng- Grace, 2 Hagg. Adm. 105. In this case it
land, c. 23) seems to think emancipation was decided that if a slave, carried by his
was brought about by selfish considera- master into a free country, voluntarily
tions on the part of the barons, and from returned with him to a country where
a conviction that the returns from their slavery was allowed by the local law, the
lands would be increased by changing vil- status of slave would still attach to him,
leinage into socage tenures. and the master's right to his service be
2
Robertson, America, Book 9 ; Ban- resumed. Mr. Broom collects the author-
croft, United States, Vol. I. c. 5. itieson this subject in general, in the notes
3 20 Howell State Trials, 1;
Lofft, 18; to Sommersett's Case, Const. Law, 105.
Life of Granville Sharp, by Hoare, c. 4 ; 4 " As soon
as a slave comes into Eng-
Hurd, Law of Freedom and Bondage, land, he becomes free one may be a
;
Vol. I. p. 189. The judgment of Lord villein in England, but not a slave."
Mansfield is said to have been delivered Holt, Ch. J., in Smith v. Brown, 2 Salk.
with evident reluctance. 20 State Trials, 666. See also Smith v. Gould, Ld. Raym,
79 per Lord Stowell, 2 Hagg. Adm. 105,
; 1274 s. c. Salk. 666. There is a learned
;
liainent. 1 A
previous statute for their enfranchisement through
2
judicial proceedings had proved ineffectual.
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 ;
States v. Cruikshank, 94 U. S. 542. Con- 19 Ohio St. 184, 2 Am. Rep. 388 Farnham ;
tracts for personal services cannot, as a v. Pierce, 141 Mass. 203, 6 N. E. 830
Peo- ;
tion to be discharged from service under 195, 4 N. E, 177. That in cases of com-
them on habeas corpus is evidence that mitment of vicious and incorrigible youth
the service is involuntary. Cases of ap- to reform schools jury trial is unneces-
prenticeship and cases of military and sary, see State v. Brown, 60 Minn. 353,
52
naval service are exceptional. person A N. W. 935, 16 L. R. A. 691, and note;
over twenty-one years of age cannot bind also Lee v. McClelland, 157 Ind. 84, 60
himself as apprentice. Clark's Case, 1 N. E. 692. Court has no power in civil
Blackf. 122, 12 Am. Dec. 213. action for damages to person to compel
424 CONSTITUTIONAL LIMITATIONS. [CH. X.
2
was never recognized in the law of America. The citizen may
doubtless be compelled to serve his country in her wars but ;
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
;
prudence which had favored preroga- self. Among number was Dryden
the
tive at the expense of liberty was that of Leach, a printer, whom they took from
the arrest of persons under general war- his bed at night. They seized his papers,
rants, without previous evidence of their and even apprehended his journeymen
guilt or identification of their persons. and servants. He had printed one num-
This practice survived the Revolution, ber of the '
North Briton,' and was then
and was continued without question, on reprinting some other numbers but; as lie
the ground of usage, until the reign of happened not to have printed No. 45, he
George III., when it received its death- was released without being brought be-
blow from the boldness of Wilkes and fore Lord Halifax. They succeeded, how-
the wisdom
of Lord Camden. This ques- ever, in arresting Kearsley, the publisher,
tion was brought to an issue by No. 45 and Balfe, the printer, of the obnoxious
of the North Briton,' already so often number, witli all their workmen. From
'
mentioned. There was a libel, but who them it was discovered that Wilkes was
was the libeller ? Ministers knew not, the culprit of whom they were in search ;
nor waited to inquire, after the accus- but the evidence was not on oath; and
tomed forms of law; but forthwith Lord the messengers received verbal directions
Halifax, one of the secretaries of state, to apprehend Wilkes under the general
issued a warrant, directing four mes- warrant. Wilkes, far keener than the
sengers, taking with them a constable, to crown lawyers, not seeing his own name
search for the authors, printers, and pub- there, declared it a ridiculous warrant
'
lishers ;
and
apprehend and seize them,
to against the whole English nation,' and re-
together with their papers, and bring them fused to obey it. But after being in cus-
in safe custody before him. No one hav- tody of the messengers for some hours, in
ing been charged or even suspected, his own house, he was taken away in a
no evidence of crime having been of- chair, to appear before the secretaries of
fered, no one was named in this dread state. No sooner had he been removed
instrument. The offence only was pointed than the messengers, returning to his
at,not the offender. The magistrate who house, proceeded to ransack his drawers,
should have sought proofs of crime de- and carried off all his private papers, in-
puted this office to his messengers. Armed cluding even his will and his pocket-book.
with their roving commission, they set When brought into the presence of Lord
quest of unknown offenders and,
fortli in ; Halifax and Lord Egremont, questions
unable to take evidence, listened to ru- were put to Wilkes which he refused to
mors, idle tales, and curious guesses. answer whereupon he was committed
;
They held in their hands the liberty of close prisoner to the Tower, denied the
every man whom they were pleased to use of pen and paper, and interdicted
suspect. Nor were they triflers in their from receiving the visits of his friends,
work. In three days they arrested no or even of his professional advisers.
less than forty-nine persons on suspicion, From this imprisonment, however, he
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 427
was shortly released on a writ of habeas subject.' The jury found a verdict for
corpus,by reason of his privilege as a the plaintiff, with one thousand pounds
member of the House of Commons. damages.
" Wilkes and the
printers, supported "Four days after Wilkes had obtained
by Lord Temple's soon ques-
liberality, his verdict against Mr. Wood, Dryden
tioned the legality of the general war- Leach, the printer, gained another ver-
rant. First, several journeymen printers dict, with four hundred pounds damages,
brought action against the messengers. against the messengers. A bill of excep-
On the first trial Lord Chief Justice Pratt tions, however, was tendered and received
not allowing bad precedents to set in this as in other cases, and came on for
aside the sound principles of English law hearing before the Court of King's Bench
held that the general warrant was il- in 1765. After much argument and the
legal ;
that it was illegally executed ;
and citing of precedents showing the practice
that the messengers were not indemnified of the secretary of state's office ever
by statute. The journeymen recovered since the Revolution, Lord Mansfield pro-
three hundred pounds damages and the ;
nounced the warrant illegal, saying: 'It
other plaintiffs also obtained verdicts. In is not fit that the judging of the informa-
all these cases, however, bills of excep- tion should be left to the discretion of the
tions were tendered and allowed. Mr. officer. The magistrate should judge,
Wilkes himself brought an action against and give certain directions to the officer.'
Mr. Wood, under-secretary of state, who The other three judges agreed that the
had personally superintended the execu- warrant was illegal and bad, believing'
tion of the warrant. At this trial it was that no degree of antiquity can give sanc-
proved that Mr. Wood and the messen- tion to an usage bad in itself.' The
gers, after Wilkes's removal in custody, judgment was therefore affirmed.
"
had taken entire possession of his house, Wilkes had also brought actions for
refusing admission to his friends had ;
false imprisonment against both the sec-
sent for a blacksmith, who opened the retaries of state. Lord Egremont's death
drawers of his bureau; and having taken put an end to the action against him; and
out the papers, had carried them away in Lord Halifax, by pleading privilege, and
a sack, without taking any list or inven- interposing other delays unworthy of his
tory. All his private manuscripts were position and character, contrived to put
seized, and his pocket-book filled up the off his appearance until after Wilkes had
mouth of the sack. Lord Halifax WHS been outlawed, when he appeared and
examined, and admitted that the warrant pleaded the outlawry. But at length, in
had been made out three days before he 1769, no further postponement could be
had received evidence that Wilkes was contrived the action was tried, and
;
the author of the 'North Briton.' Lord Wilkes obtained no less than four thou-
Chief Justice Pratt thus spoke of the war- sand pounds damages. Not only in this
rant :
'
The defendant claimed
a right, action, but throughout the proceedings,
under precedents, to force persons' houses, in which persons aggrieved by the general
break open escritoires, and seize their pa- warrant had sought redress, the govern-
pers upon a general warrant, where no ment offered an obstinate and vexatious
inventory is made of the things thus resistance. The defendants were harassed
taken away, and where no offenders' by every obstacle which the law per-
names are specified in the warrant,and mitted, and subjected to ruinous costs.
therefore a discretionary power given to The expenses which government itself
messengers to search wherever their sus- incurred in these various actions were
picions may chance to fall. If such a said tohave amounted to one hundred
power truly invested in a secretary of
is thousand pounds.
"
state, and he can delegate this power, it The liberty of the subject was further
certainly may affect the person and prop- assured at this period by another remark-
erty of every man in this kingdom, and is able judgment of Lord Camden. In No-
totally subversive of the liberty of the vember, 1762, the Earl of Halifax, as
428 CONSTITUTIONAL LIMITATIONS. [CH. X.
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.
;
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
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.
- 2
claim of authority, of the revenue laws 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 officermay 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.
8
part so often submitted to without legal 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.
not say they are unlawful without such restriction, yet they are
very inconvenient without it for many times, under pretence of
;
7
complainant may be present for the purposes of identification,
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.
* A warrant for
12'J. 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.
6 2
designation of John Doe, without fur- 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.
1 2
scriptions held sufficient, see Wright v. 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
1 2
Hale, P. C. 150; Bella-. Clapp, 10 defendant. State v. Williams, 61 Iowa,
Johns. 263, 6 Am. Dec. 339; Hibhard v. 517, 16 N. W. 586.
People, 4 Mich. 126; Fisher v. McGirr,
8
We do not say that it would be in-
1 Gray, 1. If the statute ordains that competent to authorize, by statute, the
the warrant shall require the officer to issue of search-warrants for the preven-
to make an inventory, one omitting this tion of offences in some cases ; but it is
command is no protection, though in fact difficult to state any case in which it
an inventory is made by the officer. might be proper, except in such cases of
Hussey v. Davis, 58 N. H. 317. attempts, or of preparations to commit
2 The " Search and Seizure " clause
crime, as are in themselves criminal.
in some of the prohibitory liquor laws QSlot machine to be used as a gambling
was held void on this ground. Fisher v. device. Its seizure justified to prevent
McGirr, 1 Greene v. Briggs, 1
Gray, 1 ;
the offence. Board of Police Com'rs v.
Curtis, 311 Hibbard v. People, 4 Mich.
; Wagner, 93 Md. 182, 48 Atl. 465, 62
126. See also Matter of Morton, 10 Mich. L. R, A. 775.]
4 The fourth amendment to the Con-
208; Sullivan v. Oneida, 61 111. 242;
State v. Snow, 3 R. somewhat
I. 64, for a stitution of the United States, found also
similar principle. It is not competent by in many State constitutions, would clearly
law to empower a magistrate on mere preclude the seizure of one's papers in
infornvition, or on his own personal order to obtain evidence against him ;
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
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
Instances sometimes occur in which
2
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
which have hitherto been unknown to the law, and on that ac-
count to abstain from authorizing them, leaving parties and the
1
public to the accustomed remedies.
cause the party desires to put the oper- his private letters and journals, and bring
ator in possession of facts, but because them into court on subpoena duc.es tecum.
transmission without it is impossible. It Any such compulsory process to obtain it
is not voluntary in any other sense than seems a most arbitrary and unjustifiable
this, that the party makes it rather than seizure of private papers such an " un- ;
operator is not a public officer, that cir- the public; but no American officer or
cumstance appears to us immaterial. He body possesses such authority, and its
fulfils an important public function, and usurpation should not be tolerated. Let-
the propriety of his preserving inviolable ters and sealed packages subject to letter
secrecy in regard to communications is postage in the mail can be opened and
so obvious, that it is common to provide examined only under like warrant, issued
statutory penalties for disclosures. If on upon similar oath or affirmation, particu-
grounds of public policy the operator larly describing the thing to be seized, as
should not voluntarily disclose, why do is required when papers are subjected to
not the same considerations forbid the search in one's own household. Ex parte
courts compelling him to do so ? Or if Jackson, 96 U. S. 727. See this case for
it be proper to make him testify to the a construction of the law of Congress for
correspondence by telegraph, what good excluding improper matter from the mails.
reason can be given why the postmaster For an account of the former and present
should not be made subject to the process English practice on opening letters in the
of subpoena for a like purpose, and com- mail, see May, Constitutional History,
pelled to bring the correspondence which c. 11 ; Todd, Parliamentary Government,
Bank, 7 W. Va. 544; Ex parte Brown, 72 1153. "Search-warrants were never re-
Mo. 83, 37 Am. Rep. 426 Woods v. Mil-
; cognized by the common law as processes
ler, 55 Iowa, 168, 7 N. W. 484 U. S. v.
;
which might be availed of by individuals
Hunter, 15 Fed. Eep. 712. See Gray, in the course of civil proceedings or for
Communication by Telegraph, ch. v. the maintenance of any mere private
We should suppose, were it not for the right; but their use was confined to the
opinions to the contrary by tribunals so case of public prosecutions instituted and
eminent, that the public could not be en- pursued for the suppression of crime and
titled to a man's private correspondence, the detection and punishment of crimi-
whether obtainable by seizing it in the nals. Even in those cases, if we may rely
mails, or by compelling the operator of on the authority of Lord Coke, their le-
the telegraph to testify to it, or by requir- gality was formerly doubted ;
and Lord
ing his servants to take from his desks Camden said they crept into the law by
28
434 CONSTITUTIONAL LIMITATIONS. [CH. X.
Const. Law, 613. [That the evidence Bohannan v. Commonwealth, 8 Bush, 481,
was obtained by an unlawful search and 8 Am. Rep. 474; Bean v. State, 25 Tex.
seizure is not sufficient to make it inad- App. 346. But except where a forcible
missible. Williams v. State, 100 Ga. 511, felony is attempted against person or
28 S. E. 624, 39 L. R. A. 269. An order property, he should avoid such conse-
compelling one to deliver his private pa- quences, if possible, and cannot justify
pers to another who has no ownership in standing up and resisting to the death,
them is in violation of the constitutional when the assailant might have been
provision against unwarrantable seizures. avoided by retreat. People v. Sullivan,
Ex parte Clarke, 126 Cal. 235, 68 Pac. 7 N. Y. 396 Carter State, 82 Ala. 13,
;
.
546, 77 Am. St. 176.] 2 So. 766. But a man assaulted in his
1
Barnard v. Bartlett, 10 Cush. 501. dwelling is under no obligation to re-
After the goods seized are taken before treat ; his house is his castle, which he
the magistrate, the officer is not liable for may defend to any extremity. And this
them to the owner. Collins v. Lean, 68 means not simply the dwelling-house
Cal. 284, 9 Pac. 173.
proper, but includes whatever is within
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 435
land, and those of more recent and present date in certain coun-
2
tries, furnish sufficient justification for this specific guaranty."
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 ;
mon law. Pond v. People, 8 Mich. 150; People, 23 111. 17; Patten
People, 18 v.
State v. Middleham, 62 Iowa, 150, 17 Mich. 314; Hinton v. State, 24 Tex. 454 ;
Criminal Accusations.
as far as may be, for what he is put in De Walt, 128 U. S. 393, 9 Sup. Ct. Rep.
jeopardy. Whitney v. State, 10 Ind. 404 ;
111. See State v. West, 42 Minn. 147, 43
State v. O'Flaherty, 7 Nev. 153 State v. ;
N, W. 845. Compare State v. Nolan, 15
McKenna, 16 R. I. 398, 17 All. Rep. 51. R. I. 529, 10 Atl. 481. [Re Butler, 84 Me.
The legislature may allow simplification 25, 24 Atl. 456, 17 L. R. A:764, and note
of old forms of indictment. Coin. v. on infamous crimes that the judge in
;
Freelove, 150 Mass. 66, 22 N. E. Rep. charging the grand jury must be tem-
435. As to amendment of indictments, perate in his language, see Clair v. State,
see p. 327. A
law authorizing commit- 40 Neb. 534, 59 N. W. 118, 28 L. R. A.
ment without examination, upon sum- 367, and note. Upon number of jurors
mary arrest, of a pardoned convict for necessary or proper to act on grand jury,
violating the condition of his pardon, is see State v. Belvel, 89 Iowa, 405, 56 N. W.
invalid. People v. Moore, 62 Mich. 496, 545, 27 L. R. A. 846, and note ; organiza-
29 N. W. 80. The indictment for a State tion of grand jury, State v. Noyes, 87
offence can only be by the grand jury of Wis. 340, 58 N. W. 386, 27 L. R. A. 776,
the county of offence. Ex parte Slater, and note, 41 Am. St. 45. Concurrence
72 Mo. 102; Weyrich v. People, 89 111. of nine cannot be made sufficient by
90. The fourteenth amendment to the statute where constitution does not so
federal Constitution is not violated by provide. State v. Barker, 107 N. C. 913,
dispensing with a grand jury. Hurtado 12 S. E. 115, 10 L. R. A. 50, and note.}
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 437
cattleby a railroad train prima facie evi- the presumption of innocence that all the
dence of negligence, and such negligence while attends the prisoner entitles him to
a misdemeanor on the part of the super- an acquittal, if the jury are not reason-
intendent and president, is void as de- ably satisfied of his guilt. See State v.
priving of this presumption. State v. Marler, 2 Ala. 43; Commonwealth v.
Divine, 98 N. C. 778, 4 S. E. 477. It is Myers, 7 Met. 500; Polk v. State, 19
sometimes claimed that where insanity Ind. 170; Chase v. People, 40 111. 352:
is set up as a defence in a criminal case, People v. Schryver, 42 N. Y. 1 ;Stevens
v. State, 31 Ind. 485; State v. Pike, 49
the defendant takes upon himself the
burden of proof to establish it, and
tliat N. H. 399; State v. Jones, 50 N. H. 349 ;
42 Ga. 334; Bos well v. Commonwealth, State v. Hundley, 46 Mo. 414; State v.
20 Gratt. 800 Baccigalupo v Common-
;
.
Lowe, 93 Mo. 547, 6 S. W. 889; Ballard
wealth, 33 Gratt. 807, 36 Am. Rep. 795 ;
v. State, 19 Neb. 609, 28 N. W. 271 State
;
1
Matter of Barronet, & Bl. 1;
1 El. 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. 4
Summons, 19 Ohio, 139. 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.
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
;
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, required that the trial be speedy ; and here also the
it is
injunction addressed
is 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 ;
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 United States
to the terms of court. 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
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 general the right of the
in 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.]
own day, see Trials of Troppman and 12 Sup. Ct. Rep. 195, where the sub-
Prince Pierre Bonaparte, Am. Law Re- ject is fully discussed by Mr. Justice
view, Vol. V. p. 14. Judge Foster relates Blatchford. See review of Counselman
from Whitelocke, that the Bishop of Lon- v. Hitchcock, 5 Harv. L. Rev. 24 In re ;
don having said to Felton, who had as- Walsh, 104 Fed. Rep. 518; In re Scott,
sassinated the Duke of Buckingham, " If 95 Fed. Rep. 816, and In re Rosser, 96
you will not confess you must go to the Fed. Rep. 305, are decided on authority of
rack," the man replied, "If it must be so, Counselman v. Hitchcock, supra ; Mackel
I know not whom I may accuse in the v. Rochester, 102 Fed. Rep. 314, seems op-
extremity of my torture, Bishop Laud, posed to the doctrine of that case. And
perhaps, or any lord of this board." where he is made absolutely exempt from
"
Sound sense," adds Foster, " in the trial and punishment for any offence thus
mouth of an enthusiast and ruffian." disclosed,he is compellable to answer.
Laud having proposed the rack, the mat- Brown Walker, 161 U. S. 591, 16 Sup.
v.
ter was shortly debated at the board, and Ct. Rep. 644, 5 Inters. Com. Rep. 369;
it ended in a reference to the judges, wfio Ex parte Cohen, 104 Cal. 524, 38 Pac.
unanimously resolved that the rack could 364, 26 L. R. A. 423, 43 Am. St. 127;
not be legally used. De Lolme on Consti- Re Buskett, 106 Mo. 602, 17 S. W. 753,
tution of England (ed. of 1807), p. 181, 14 L. R. A. 407, and note, 27 Am. St.
note 4 Bl Com. 325; Broom, Const. Law,
;
378 Bradley v. Clarke, 133 Cal. 196, 65
;
8 It should not,
pelled to testify against himself in con- however, be taken on
tempt proceedings. Ex
pdrte Gould, 99 oath, and if it is, that will be sufficient
Cal. 360, 33 Pac. 1112, 21 L. R. A. 751, 37 reason for rejecting it. Rex v. Smith, 1
Am. St. 57. Officer of corporation can- Stark. 242 Rex v. Webb, 4 C. & P. 564
; ;
not be compelled to report under oath Rex v. Lewis, 6 C. & P. 161 Rex v. River, ;
whether corporation has violated Anti- 7 C. & P. 177 ; Reginav. Pikesley, 9 C. &
Trust Act. State v. Simmons Hardware P. 124 People v. McMahon, 15 N. Y. 384.
;
Co., 109 Mo. 118, 18 S. W. 1125, 15 L. R. "The view of the English judges, that
A. 676. Testimony as to marks and scars an oath, even where a party is informed
introduced to identify prisoner is not in- he need answer no questions unless he
admissible because obtained by forcible pleases, would, with most persons, over-
examination of prisoner's body. O'Brien come that caution, is, I think, founded
v. State, 125 Ind. 38, 25 N. E. 137, 9 L. on good reason and experience. I think
R. A. 323, and note. But see State v. there is no country certainly there is
Height, Iowa, ,
91 N. W. 935, in which none from which any of our legal no-
case physicians making a compulsory tions are borrowed where a prisoner
physical examination of the accused were is ever examined on oath." People v.
not permitted to testify. An action to Thomas, 9 Mich. 314, 318, per Camp-
exclude a foreign corporation from the bell, J. A person compelled to testify
State is a civil action, and the defendant before the grand jury cannot be indicted
corporation may be compelled to give upon evidence so secured. State v.
evidence against itself. State v. Standard Gardiner, Minn. 92 N. W. 529
,
Oil Co., 61 Neb. 28, 84 N. W. 413.] (Dec. 19, 1902). See upon the general
1
See Rev. Stat. of New York, Pt. 4, subject, Greenleaf on Evidence, ed. 16,
c. 2, tit. 2, 14-16. 333 a, and notes.
2
Rex v. Ellis, Ry. & Mood. 432. How- 4
In treason there can be no conviction
ever, there is no absolute right
to the pres- unless on the testimony of two witnesses
ence of counsel, or to publicity in these to the same ov^rt act, or on confession in
preliminary examinations, unless given open court. Const, of United States, art
by statute. Cox v. Coleridge, 1 B. & C. 37. 3, 3.
444 CONSTITUTIONAL LIMITATIONS. [CH. X.
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 ;
"A
People, 39 111. 457. 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
the party's hopes or fears are operated upon to
if
say whether inducements, in a particular 1 Gray, 461. Saying to the prisoner that
case, have influenced the mind or not; if .it will be the worse for him if he does
their nature were such that they were not confess, or that it will be the better for
calculated to have that effect, it is safer, him if he does, is sufficient to exclude the
and more in accordance with the humane confession, according to constant experi-
principles of our criminal law, to presume, ence.' 2 Hale, P. C. 659 1 Greenl. Ev.;
in favor of life and liberty, that the con- 219; 2 Bennett and Heard's Lead. Cr.
"
fessions were forced from the mind by Cas. 164 Ward v. State, 50 Ala. 120.
;
the flattery of hope, or by the torture of Each case depends largely on its own
fear" (per Eyre, C. B., Warickshall's special circumstances. But we have be-
Case, 1 Leach, C. C. 299), and exclude fore us an instance in which the officer
them altogether. In case of doubt as to actually held out to the defendant the
the fact that the confession was voluntary, hope and inducement of a lighter sen-
the jury should be left to exclude it, if tence if he pleaded guilty. And a deter-
they think it involuntary. Com. v. Preece, mination to plead guilty at the trial, thus
140 Mass. 276, 5 N. E. 494; People v. induced, would naturally lead to an im-
Barker, 60 Mich. 277, 27 N. W. 639. In mediate disclosure of guilt." And the
Ellis i'. State, 65 Miss. 44, 3 So. 188, it is court held it an unimportant circumstance
held the duty of the court to decide that the advice of the officer was given at
whether it was voluntary, and that the the request of the prisoner, instead of be-
jury may or may not believe it true, if ing volunteered. A
voluntary confession
admitted. This whole subject is very obtained by artifice is admissible. State
fully considered in note to 2 Leading v. Brooks, 92 Mo. 542, 5 S. W. 257, 330 ;
Criminal Cases, 182. And see Whart. Heldt v. State, 20 Neb. 492, 30 N. W. 626.
Cr. Law, 686 et seq. The cases of So, if made in response to a simple request
People v. McMahon, 15 N. Y. 385, and by the officer in charge of the person.
Commonwealth v. Curtis, 97 Mass. 574, Ross v. State, 67 Md. 286, 10 Atl. 218.
have carefully considered the general Statements made to the grand jury as in-
subject. In the second of these, the dividuals in the jury room are admissible.
prisoner had asked the officer who made State v. Coffee, 66 Conn. 399, 16 Atl. 151.
the arrest, whether ne had better plead But not those made to a coroner by an
guilty, and the officer had replied that ignorant foreigner, without counsel, or
" as a
general thing it was better for a knowledge of his rights. People v.
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 447
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
;
Mondon, 103 N. Y. 211, 8 N. E. 496. State, 19 Tex. A pp. 593 Coffee v. State,
;
to give a state-
point he chooses, and it must be left to the jury
ment, which he declines to make a full one, such weight as, under
ing upon an analogous principle, see Carne fence charged by affirmative evidence,
v. Litchfield, 2 Mich. 340. A different and the defendant is entitled to rest upon
view would seem to be taken in Maine. his plea of not guilty, an inference of
See State v. Bartlett, 55 Me. 200. The guilt could legally be drawn from his de-
views of the court are thus stated in the clining to go upon the stand as a witness,
recent case of State v. Cleaves, 59 Me. and again deny the charge against him in
298, 8 Am. Rep. 422. The judge below the form of testimony, he would practi-
had instructed the jury that the fact that cally if not theoretically, by his act de-
the defendant did not go upon the stand clining to exercise his privilege, furnish
to testify was a proper matter to be taken evidence of his guilt that might turn the
into consideration by them in determin- scale and convict him. In this mode lie
ing the question of her guilt or innocence. would indirectly and practically be de-
This instruction was sustained. Appleton, prived of the option which the law gives
Ch. J. "It has been urged that this him, and of the benefit of the provision
view of the law places the prisoner in an of the law and the Constitution, which
embarrassed condition. Not so. The em- say in substance that he shall not be com-
barrassment of the prisoner, if embar- pelled to criminate himself. If the infer-
rassed, the result of his own previous
is ence question could be legally drawn,
in
misconduct, not of the law. If innocent, the very act of exercising his option, as
he will regard the privilege of testifying to going upon the stand as a witness,
as a boon justly conceded. If guilty, it which he is necessarily compelled by the
is optional with the accused to testify or adoption of the statute to exercise one
not, and he cannot complain of the elec- way or the other, would be, at least to the
tion hemay make. If he does not avail extent of the weight given by the jury to
himself of the privilege of contradiction the inference arising from his declining
or explanation, it is his fault if by his to testify, a crimination of himself. What-
own misconduct or crime he has placed ever the ordinary rule of evidence, with
himself in such a situation that lie pre- reference to inferences to be drawn from
fersany inferences which may be drawn the failure of parties to produce evidence
from his refusal to testify, to those which that must be in their power to give, we
must be drawn from his testimony, if are satisfied that the defendant, with re-
truly delivered. The instruction given spect to exercising his privilege under the
was correct, and in entire accordance provisions of the act in question, is enti-
with the conclusions to which, after and security upon
tled to rest in silence
mature deliberation, we have arrived. and that no infer-
his plea of not guilty,
State v. Bartlett, 55 Me. 200; State v. ence of guilt can be properly drawn
Lawrence, 57 Me. 375." against him from his declining to avail
In People v. Tyler, 36 Cal. 522, 529, himself of the privilege conferred upon
Sawyer, Ch. J., expresses the contrary him to testify in his own behalf; that to
view as follows " At the trial, by his plea
:
permit such an inference would be to vio-
of not guilty, the party charged denies late the principles and the spirit of the
the charge against him. This is itself a Constitution and the statute, and defeat
positive act of denial, and puts upon the rather than promote the object designed
people the burden of affirmatively prov- to be accomplished by the innovation in
ing the offence alleged against him. question." See also Commonwealth v.
When he once raised this issue by
lias Bonner, 97 Mass. 587; Commonwealth v.
his plea of not guilty, the law says he Morgan, 107 Mass. 109; Commonwealth
shall thenceforth be deemed innocent till f. Nichols, 114 Mass. 285, 19 Am. Rep.
he is proved to be guilty and both the ; 346; Commonwealth v. Scott, 123 Mass.
common law and the statute give him the 239, 25 Am. Rep. 87 ; Bird v. State, 50 Ga.
benefit of any reasonable doubt arising 585. In New York and Ohio, by statute,
on the evidence. Now, if at the trial, unfavorable inferences are not allowed to
when for all the purposes of the trial the be drawn from the fact of the defendant
burden is on the people to prove the of- not offering himself as a witness. See
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 449
Morrison v. State, 76 Ind. 335; Common- rassments in such a case. Under the
wealth v. Bonner, 97 Mass. 687 ;
Com- Michigan practice, when the court had
monwealth v.Gallagher, 126 Mass. 54; decided the question to be a proper one
State v. Hardin, 46 Iowa, 623, 26 Am. it would have been left to the defendant
Eep. 174; Gifford v. People, 87 111. 211. to answer or not at his option, but if he
As extent to which a prisoner may
to the failed to answer what seemed to the jury
be cross-examined, see Hanoff v. State, a proper inquiry, it would be thought sur-
37 Ohio St. 178; People v. Noelke, 94 prising if they gave his imperfect state-
N. Y. 137; State v. Clinton, 67 Mo. 380; ment much credence. On this point see
State Saunders, 14 Oreg. 300, 12 Pac.
. further State v. Wentworth, 65 Me. 234,
441 People v. O'Brien, 60 Cal. 602. 6 Pac.
;
20 Am. Rep. 688; State v. Witham, 72
695. [[That cross-examination may be Me. 531.
full and searching, see Filzpatriek v. As to extent to which comment may
United States, 178 U. S. 304, 20 Sup. Ct. be made upon the defendant's testimony
Rep. 944.] On the whole subject of the or his failure to make it full, see Ileldt
accused as witness, see 4 Grim. Law Mag. v. State, 20 Neb. 492, 30 N. W. 626 ;
Watt
323 v.People, 126 III. 9, 18 N. E. 340 State v. ;
i In State v.
Ober, 52 N. H. 459, 13 Graves, 95 Mo. 510, 8 S. W. 739 State ;
Am. Rep. 88, the defendant was put on v. Ward, 61 Vt. 153, 17 Atl. Rep. 483.
trial for an illegal sale of liquors and 2 The statute of Michigan of 1861,
;
having offered himself as a witness, was p. 169, removed the common-law disa-
asked on cross-examination a question bilitiesof parties to testify and added,
"
directly relating to the sale. He declined Nothing in this act shall be construed
to answer, on the ground that it might as giving the right to compel a defendant
tend to criminate him. Being convicted, in criminal cases to testify ; but any such
29
450 CONSTITUTIONAL LIMITATIONS. [CH. X.
defendant shall be at liberty to make a 28 L. R. A. 699, 43 Am. St. 741, and note
statement to the court or jury, and may in L. R. A. Where accused offers him-
be cross-examined on any such state- self as witness he may be cross-examined.
ment." It has been held that this state- People v. Tice. 131 N. Y. 651, 30 N. E.
ment should not be under oath. People 494, 15 L. R. A. 669, and note. The con-
v. Thomas, 9 Mich. 314. That its pur- stitutional maxim which protects one
pose was to give every person on trial from testifying against himself is avail-
for crime an opportunity to make full ex- able to one though he is not on trial.
planation to the jury, in respect to the Counselman v. Hitchcock, 142 U. S. 547,
circumstances given in evidence which 12 Sup. Ct. Rep. 195.3
1 Good-
are supposed to have a bearing against State v. Thomas, 64 N. C. 74 ;
attention to any branch of the charge, both the prosecution and the court to
that he may make explanations concern- comment upon their testimony as of little
ing it if he desires. Annis v. People, 13 weight because unsworn. It was not
Mich. 511. The prisoner does not cease until Queen Anne's time that they were
to be a defendant by becoming a witness, put under oath.
nor forfeit rights by accepting a privilege. The rule that the prisoner shall be con-
In People v. Thomas, 9 Mich. 321, Camp- fronted with the witnesses against him
bell, J., in speaking of the right
which the does not preclude such documentary evi-
statute gives to cross-examine a defend- dence to establish collateral facts as would
ant who has made his statement, says :
be admissible under the rules of the com-
" And while his constitutional
right of mon law in o'her cases. United States
declining to answer questions cannot be ;;. Benner, Baldw. 234 United States v.;
removed, yet a refusal by a party to an- Little, 2 Wash. C. C. 159; United States
swer any fair question, not going outside v. Ortega, 4 Wash. C. C. 531 People v. ;
of what he has offered to explain, would Jones, 24 Mich. 215. But the corpus de-
have its proper weight with the jury." licti e g. the fact of marriage in an in-
.
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
v. State, 2 Tex. App. 216, 28
Bell prisoner the right to take depositions out
Am. Rep. 429. It has been held com- of the State upon condition that the State
petent, even in a criminal case, to make shall have the like right. Butler v. State,
the certificate of the proper official ac- 97 Ind. 378.
countant prima facie evidence of an 3 1 Greenl. Ev.163-166; Bishop,
official delinquency in the tax collector. Cr. Pro. 520-527; Whart. Cr. Law,
Johns v. State, 65 Md. 350. QSo a stat- 667 2 Phil. Ev. by Cowen, Hill, and
;
ute making evidence that a bank failed Edwards, 217, 229; Beets v. State, Meigs,
and that deposits were received by an 108; Kendricks v. State, 10 Humph. 479;
officer of the bank shortly before the fail- United States v. McComb, 5 McLean, 286;
ure, prima facie evidence of a taking with Summons v. State, 5 Ohio St. 325; Pope
knowledge of insolvency is valid. State v. State, 22 Ark. 371; Brown v. Com-
v. Buck, 120 Mo. 479, 25 S. W. 573. See monwealth, 73 Pa. St. 321 Johnson v. ;
also, People v. Cannon, 139 N. Y. 32, 34 State, 1 Tex. App. 333 O'Brien v. Com-:
It is not competent for the legislature v. Richards, 18 Pick. 434; People v. Mur-
to make reputation evidence against an phy, 45 Cal. 137; People v. Devine, 46
accused of a public offence, e. g. of Cal. 45; Davis v. State, 17 Ala. 354;
keeping a place for the sale of liquors, Marler v. State, 67 Ala. 56; State v.
which the jury are bound to follow. Johnson, 12 Nev. 121; State v. Hooker,
State v. Beswick, 13 R. L 211; contra, 17 Vt. 658; State v. Elliott, 90 Mo. 350,
State v. Thomas, 47 Conn. 546, 36 Am. 2 S. W. 411; Hair v. State, 16 Neb. 601,
Rep. 98. It may be made sufficient evi- 21 N. W. 464; State v. Fitzgerald, 63
dence, provided the jury, while free to Iowa, 268, 19 N. W. 202. fJMattox r.
convict upon it, are not bound to do so. United States, 156 U. S. 237, 15 Sup. Ct.
State v. Wilson, 15 R. I. 180, 1 Atl. 415. Rep. 337 s. c. 146 U. S. 140, 13 Sup. Ct.
;
QThe prisoner must be allowed to see wit- Rep. 50. Contra, Cline v. State, 36 Tex.
ness's face and to be near enough to hear Crim. 320, 36 S. W. 1099, 37 S. W. 722,
what witness says and to watch its effect 61 Am. St. 850. See, upon this right of
upon jury. State v. Mannion, 19 Utah, confrontation, note to Cline?'. State, supra,
505, 57 Pac. 542, 45 L. R. A. 638. Record 61 Am. St. 886, and dissenting opinion of
which does not show the prisoner present Henderson, J., in same case.J Compare
during the entire trial is fatally defective. Puryear v. State, 63 Ga. 692; State v.
French v. State, 85 Wis. 400, 55 N. W. Campbell, 1 Rich. 124. That the legis-
666, 21 L. R. A. 402, 39 Am. St. 855.] lature may make the notes of the official
2
People Howard, 60 Mich. 239, 15
t-.
stenographer evidence in a subsequent
N. W. 101. But a statute may give the trial, see State v. Frederic, 69 Me. 400,
452 CONSTITUTIONAL LIMITATIONS. [CH. X.
3 Am. Cr. R. 78. See People v. Sligh, Morgan v. State, 31 Ind. 193; State v.
Whart. Cr. Law, 669-682 Donnelly v. ; sey v. People, 47 111. 325 People v.;
Meigs, 265; Hill's Case, 2 Gratt. 594; 1 Neb. 385. The court cannot make an
State v. Freeman, 1 Speers, 57; State v. order changing the venue in a criminal
Brunetto, 13 La. Ann. 45; Dunn v. State, case in the absence of and without notice
2 Ark. 229 Mose v. State, 35 Ala. 421
; ; to the defendant. Ex parte Brynn, 44
Brown v. State, 32 Miss. 433; Whitley v. Ala. 404. Nor in the course of the trial
State, 38 Ga. 70; State v. Quick, 15 Rich. allow evidence to be given to the jury in
158 Jackson v. Commonwealth, 19 Gratt.
; his absence, even though it be that of a
656 State v. Oliver, 2 Houst 585 People
; ; witness which had been previously re-
v. Simpson, 48 Mich. 474, 12 N. W. 6G2; duced to writing. Jackson v. Common-
State v. Saunders, 11 Oreg. 300, 12 Pac. wealth, 19 Gratt. 656; Wade v. State, 12
441 State v. Vansant, 80 Mo. 67. This
; Ga. 25. See People v. Bragle, 88 N. Y.
whole subject was largely considered in 585. And in a capital case the record
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 453
must affirmatively show the presence of & Deposit Co. v. United States, U. S.
the accused at the trial, and when the 23 Sup. Ct. Rep. 120 (Dec. 1. 1902).]
,
2
verdict is received and sentence pro- Cases of contempt of court were
nounced. Dougherty v. Commonwealth, never triable by jury; and the object of
69 Pa. St. 286. As to right to be present, the power would be defeated in many
at a view of the locus in quo, see People casesif they were. The power to punish
v. Lowrey, 70 Cal. 193, 11 Pac. 605; contempts summarily is incident to courts
State v. Congdon, 14 R. I. 458 Schular
; of record. King v. Almon, 8 St. Trials,
v. State, 105 Lid. 289, 4 N. E. 870 People
; 63; Respublica Oswald, 1 Dall. 319,
r.
v. Thorn, 156 N. Y. 286, 50 N. E. 947, 4 1 Am. Dec. 246 Mariner v. Dyer, 2 Me.
;
653; Sahlinger v. People, 102 III. 241; brook v. State, 43 Conn. 259; Garrigus v.
State v. Smith, 90 Mo. 37, 1 S. W. 753; State, 93 Ind. 239; Chafee v. Quidnick
Gore v. State, 52 Ark. 285, 12 S. W. 564, Co., 13 R. I. 442. rJTinsley v. Anderson,
6 L. R. A. 832. Qlf the accused wilfully 171 U. S. 101, 18 Sup. Ct. Rep. 805. Upon
absents himself pending the trial, it may powers of court to punish for contempt,
proceed in his absence. Gore v. State, see note to 22 L. ed. U. S. 205; limits to
52 Ark. 285, 12 S. W. 664, 5 L. R. A. 832, rule of no review of contempt proceedings,
and note/] note to 22 L. ed. U. S. 354. Also, Smith
general Thompson and Mer-
1 See in
v. Speed, Okla. 55 L. R. A. 402. ,
riam on Juries. It is worthy of note that A court of review may cut down an
all that is extant of the legislation of the excessive verdict and give judgment for
Plymouth Colony for the first five years, the modified amount without violating
"
consists of the single regulation, that the right to a jury trial. Burdick v.
all criminal facts, and also all manner of Missouri Pacific Ry. Co. 123 Mo. 221,
trespasses and debts between man and 27 S. W. 453.] This is true of the federal
man, be tried by the verdict of
shall courts. United States v. Hudson, 7
twelve honest men, to be impanelled by Cranch, 32; United States v. New Bed-
authority, in form of a jury, upon their ford Bridge, 1 Wood. & M. 401. See
oath." 1 Palfrey's New England, 340. Ex parte Robinson, 19 Wall. 505; Ex
L~Upon right to trial by jury, see Thomp- parte Terry, 128 U. S. 289, 9 Sup. Ct.
son v. Utah, 170 U. S. 343, 18 Sup. Ct. Rep. 77. The legislature may designate
Rep. 620, and note to 42 L. ed. U. S. 1061. the cases in which a court may punish
The right to trial by jury may be con- summarily. In re Oldham, 89 N. C. 23;
ditioned upon furnishing an affidavit of State v. McClaugherty, 33 W. Va. 250,
merits in actions ex contractu. Fidelity 10 S. E. Rep. 407. Whether justices of
454 CONSTITUTIONAL LIMITATIONS. [CH. X.
the peace may punish contempts in the v. State, 21 Neb. 272, 31 N. W. 929. Nor
absence of any statute conferring the can the legislature confer it upon munici-
power, will perhaps depend on whether pal councils. Whitcomb's Case, 120
the justice's court is or is not deemed a Mass. 118. As the courts in punishing
court of record. See Lining v. Bentham, contempts are dealing with cases which
2 Bay, 1 Re Cooper, 32 Vt. 253 Ex parte
; ;
concern their own authority and dignity,
Kerrigan, 33 N. J. 345; Rhinehart v. and which are likely to suggest, if not to
Lance, 43 N. J. 311, 39 Am. Rep. 692. excite, personal feelings and animosities,
But court commissioners have no such the case should be plain before they
power. In re Remington, 7 Wis. 643; should assume the authority. Bachelder
Haight v. Lucia, 36 Wis. 355; Ex parte v. Moore, 42 Cal. 415. See Storey v.
Perkins, 29 Fed. Rep. 900 nor notaries
:
; People, 79 111. 45 Hollingsworth v. Du-
;
Burtt v. Pyle, 89 Ind. 398; but see Dogge ane, Wall. C. C. 77 Ex parte Bradley,
;
1
See note to p. 590, post. A citizen is the degree of the offence. This is true
not in the land or naval service, or in the even in capital cases. Hallinger v. Davis,
militia in actual service, cannot be tried 146 U. S. 314, 13 Sup. Ct. Rep. 105; and
by court-martial or military commission, see note to 36 L. ed. U. S. 986; State
on a charge of discouraging volunteer r. Almy, 67 N. H. 274, 28 All. 372, 22
(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 review by Alvey, J., in State v. Glenn,
(
full
was tried before a jury composed of but eight jurors, was convicted, sentenced to
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. Petty offences need not be so
J. 224. 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
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
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
i Workv. State, 2 Ohio St. 296 ; Can- right to jury trial is regarded as a per-
cemi People, 18 N. Y. 128; Brown v.
v. sonal privilege which may be waived.
State, 8 Blackf. 561; 2 Lead. Cr. Cas. State v. Poison, 29 Iowa, 133; State v.
337; Hill v. People, 16 Midi. 351. And Kaufman, 51 Iowa, 578, 2 N. W. 275,
see State v. Cox, 3 Eng. 436 Murphy v.
;
33 Am. Hep. 148. But not in case of
Commonwealth, 1 Met. (Ky.) 365; Tyzee homicide. State v. Carman, 63 Iowa, 130,
v. Commonwealth, 2 Met. (Ky.) 1; Suite 18 N. W. 691. And in Connecticut and
v. Mansfield, 41 Mo. 470; Brown v. State, Ohio, under statutes permitting a defend-
16 Ind. 496; Opinions of Judges, 41 N. H. ant in a criminal case to elect to be tried
550; Lincoln v. Smith, 27 Vt. 328; Dow- by the court, his election is held to bind
ling's Case, 13 Miss. 664; Tillmann v. him. State v. Worden, 46 Conn. 349,
Arlles, 13 Miss. 373; Vaughan v. Seade, 33 Am. Rep. 27; Dillingham v. State,
30 Mo. 600; Kleinschmidt v. Dumphy, 5 Ohio St. 280. Such a statute is valid:
1 Mont. 118; Allen v. State, 54 Ind. 461 ;
Edwards v. State, 45 N. J. L. 419 except ;
St. 622; Allen v. State, 54 Ind. 461; called was an alien, the defendant did
Swart v. Kimball, 43 Mich. 443, 5 N. W. not waive the objection by failing to
635; Mays v. Com., 82 Va. 550; Harris challenge him, if he was not aware of
v. People, 128 III. 585, 21 N. E. 563; State the disqualification ;
and if the court re-
v. Stewart, 89 N. C. 563. In Common- fused to set aside the verdict on affidavits
wealth v. Dailey, 12 Cush. 80, it was held showing these facts, the judgment upon
that, in a case of misdemeanor, the con- itwould be reversed on error. The case
sent of the defendant that a verdict might of Statev. Quarrel, 2 Bay, 150, is contra.
be received from eleven jurors was bind- The case of State v. Stone, 3 111. 326, in
ing up*on him, and the verdict was valid. which it was held competent for the
See also State v. Borowsky, 11 Nev. 119; court, even in a capital case, to strike off
Murphy v. Commonwealth, 1 Met. (Ky.) a juryman after he was sworn, because
365; Connelly v. State, 60 Ala. 89, 31 of alienage, affords some support for Hill
" "
Am. Rep. 34; State v. Sackett, 39 Minn. v. People. Struck juries are permis-
69, 38 N. W. 773. No distinction is made sible. Lommen ?'.
Minneapolis Gaslight
in the last case between felony and mis- Co 65 Minn.
, 196, 68 N. W. 53, 33 L. R. A.
demeanor in this regard. In Iowa the 437, 60 Am. St. 450Q
(a) QThat a jury composed, as at common law, of twelve jurors was intended by
the Sixth Amendmentto 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
1 '
challenges are allowed, not only for cause, but also peremptory
without assigning cause. The jury must also be summoned from
the vicinage where the crime is supposed to have been com-
2
mitted; and the accused will thus have the benefit on his trial
1
Inability to read and write may be venue on the application of the prosecu-
made good cause for challenge. Mc- tion. Kirk v. State, 1 Cold, 344. See
Campbell v. State, 9 Tex. App. 124, 35 also Wheeler v. State, 24 Wis. 52 Osborn ;
Am. Rep. 726. But not inability to un- v.State, 24 Ark. 629. [People v. Powell,
derstand English, in New Mexico, in the 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75.]
absence of statute. Terr. v. Komine, 2 And in another case in Tennessee it was
New Mexico, 114. See, on the subject decided that a statute which permitted
of challenges for opinion formed, Hayes offences committed near the boundary
o. Missouri, 120 U. S. 68, 7 Sup. Ct. Rep. line of two counties to be tried in either
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 not justified in expressing his conviction to the jury
is
Washington, by the sale of papers there. it may be mentioned Locke and Jeremy
The offended party chose to have his Bentham. See Forsyth, supra; Lieber,
complaint tried summarily by a police Civil Liberty and Self-Government, c. 20.
justice of the latter city, instead of sub- (^Unanimity necessary. American Pub-
mitting it to a jury required to be indiffer- lishing Co. v. Fisher, 166 U. S. 464, 17
ent between the parties. A
federal com- Sup. Ct. Rep. 618; Springville City v.
missioner issued a warrant for Mr. Dana's Thomas, 166 U. S. 707, 17 Sup. Ct. Rep.
arrest in New York for transportation to 717.]
Washington for trial ; but Judge Blatch- A judge who urges his opinion upon
2
ford treated the proceeding with little re- the facts to the jury decides the cause,
spect, and ordered Mr. Dana's discharge. while avoiding the responsibility. How
Matter of Dana, 7 Ben. 1. It would have often would a jury be found bold enough
been a singular result of a revolution to declare theiropinion in opposition to
where one of the grievances complained that of the judge upon the bench, whose
of was the assertion of a right to send words would fall upon their ears with all
parties abroad for trial, if it should have the weight which experience, learning,
been found that an editor might be seized and commanding position must always
anywhere in the Union and transported carry with them ? What lawyer would
by a federal officer to every territory into care to sum up his case, if he knew that
which his paper might find its way, to be the judge, whose words would be so much
tried in each in succession for offences more influential, was to declare in his
which consisted in a single act not actu- favor, or would be bold enough to argue
ally done in any of them. QJpon right the facts to the jury, if he knew the judge
of accused to object to local judge for was to declare against him ? Blackstone
prejudice, see State v. Kent, 4 N. D. 577, has justly remarked that "in settling and
62 N. W. 631, 27 L. R, A. 686.] adjusting a question of fact, when in-
1
For the origin of this principle, see trusted to any single magistrate, partial-
Forsyth, Trial by Jury, c. 11. The re- ity and injustice have an ample field to
quirement of unanimity does not prevail range in either by boldly asserting that
;
(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.
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 isdesigned 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 on the Empress of Russia,
libel 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'sCase, 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-
1
der ?' 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
3
be granted in such a case; 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
does not.
it if it
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,
;
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.
;
1
See Constitutions of Alabama, Con- circumstances, and of finding a general
necticut, California, Delaware, Georgia, verdict, if they think proper so to hazard a
Kentucky, Maine, Michigan, Missouri, breach of their oaths,' &c. 4 Bl. Com.
Nebraska, New York, Pennsylvania, South 361; Co. Lit. 228 a; 2 Hale, P. C. 313.
Carolina, Tennessee, and Texas. See Our legislature have left no doubt about
post, p. 696, note. That of Maryland this matter. The juries in Georgia can
makes the jury judges of the law in find no special verdict at law. They are
all criminal cases; and the same rule is declared to be judges of the law and the
established by constitution or statute in and are required in every case to
facts,
some other States. In Holder v. State, give a general verdict of guilty or not
5 Ga. 444, the following view was taken guilty so jealous, and rightfully jealous,
;
"
of such a statute Our penal code de-
: were our ancestors of the influence of the
clares, On every trial of a crime or of-
'
State upon the trial of a citizen charged
fence contained in this code, or for any with crime. We are not called upon in this
crime or offence, the jury shall be judges case to determine the relative strength of
of the law and the fact, and shall in the judgment of the court and the jury,
every case give a general verdict of upon the law in criminal cases, and shall
guilty or not guilty, and on the acquittal express no opinion thereon. We only
of any defendant or prisoner, no new trial say it is the right and duty of the court
shall on any account be granted by the to declare the law in criminal cases as
court.' Juries were, at common law, in well as civil, and that it is at the same
some sense judges of the law. Having time the right of the jury to judge of the
the right of rendering a general verdict, law as well as of the facts in criminal
that right involved a judgment on the law cases. I would not be understood as
as well as the facts, yet not such a judg- holding that it is not the province of the
ment as necessarily to control the court. court to give the law of the case distinctly
The early commentators on the common in charge to the jury; it is unquestion-
law, notwithstanding they concede this ably itsprivilege and its duty to instruct
right, yet hold that it is the duty of the them as to what the law is. and officially
jury to receive the law from the court. to direct their finding as to the law, yet
Thus Blackstone equivocally writes : at the same time in such way as not to
And such public or open verdict may be limit the range of their judgment." See
'
either general, guilty or not. guilty, or spe- also McGuffie v. State, 17 Ga. 497; Clem
cial, setting forth all the circumstances of v. State, 31 Ind. 480 and/>os(,p.652, et seq.
;
12.
syth's Trial
c.
court, though they have an unquestion- by Jury,
able right of determining upon all the
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 no more the judges of the law when they
clear that the jury are
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 ;
1
authority.
2
There are, however, opposing decisions, and it is evident that
* United States v. Battiste, 2 Sum. opinions upon questions of law can be
240; Stettinus v. United States, 6 Craneh, reviewed by this court or by any other
C. C. 673 United States v. Morris, 1 Curt.
;
tribunal. But this does not diminish the
63; United States v. Riley, 6 Blatch. obligation resting upon the court to ex-
204; United States v. Greathouse, 4 plain the law. The instructions of the
Sawyer, 459; Montgomery v. State, 11 court in matters of law may safely guide
Ohio, 427 Bobbins v. State, 8 Ohio St.
;
the consciences of the jury, unless they
131 ; Commonwealth v. Porter, 10 Met. know them to be wrong and when the ;
People, 76 111. 211; Batre v. State, 18 426. Even if there is no dispute, a court
Ala. 119; reviewing previous cases in the cannot direct a conviction. United States
same State. "As the jury have the v. Taylor, 3 McCrary, 500.
2
right, and if required by the prisoner are See especially State v. Croteau, 23
bound to return a general verdict of Vt. 14, where will be found a very full
guilty or not guilty, they must neces- and carefully considered opinion, holding
sarily, in the discharge of this duty, de- that at the common law the jury are the
cide such questions of law as well as of judges of the law in criminal cases. See
fact as are involved in the general ques- also State v. Wilkinson, 2 Vt. 280; Doss
tion, and there is no mode in which their v. Commonwealth, 1 Gratt. 657; State r.
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 465
C. R. 596 ; People v. Videto, 1 Park. C. mind that it is a very old, sound, and
R. 603. The subject was largely dis- valuable maxim in law, that the court
cussed in People v. Croswell, 3 Johns. answers to questions of law, and the jury
Cas. 337. In Virginia, it is said that to facts. Every day's experience evinces
unless instructions are asked, a court the wisdom of this rule." United States
should in general not instruct the jury f. Wilson, Baldw. 108. We quote also
"
upon the law Dejarnette v. Com., 75
;
from an Alabama case When the
:
Va. 867, and in Maryland it seems to power of juries to find a general verdict,
be optional witli the court to instruct and consequently their right to determine
them. Broil v. State, 45 Md. 356. without appeal both law and fact, is ad-
1 " In
repeating to you what was said mitted, the abstract question whether it
on a former occasion to another jury, is or is not their duty to receive the law
that you have the power to decide on the from the court becomes rather a question
law as well as the facts of this case, and of casuistry or conscience than one of
are not bound to find according to our law; nor can we think that anything is
opinion of the law, we feel ourselves con- gained in the administration of criminal
strained to make some explanations not justice by urging the jury to disregard
then deemed necessary, but now called the opinion of the court upon the law of
forfrom the course of the defence. You the case. It must, we think, be admitted,
may find a general verdict of guilty or that the judge is better qualified to ex-
not guilty, as you think proper, or you pound the law, from his previous train-
may find the facts specially, and leave ing, than the jury and in practice, unless
;
"But if a jury find a prisoner guilty terest in the conviction of the criminal;
against the opinion of the court on the but in this country,where the govern-
law of the case, a new trial will be granted. ment in all its
branches, executive, legis-
No court will pronounce a judgment on lative, and judicial, is created by the
a prisoner against what they believe to people, and is in fact their servant, we
30
466 CONSTITUTIONAL LIMITATIONS. [CH. X.
are unable to perceive why the jury inexorable justice which you have ex-
should be invited or urged to exercise changed for the banners of freedom."
this right contrary to their own convic- The province of the jury is sometimes
tions of their capacity to do so, without invaded by instructions requiring them
danger of mistake. It appears to us that to adopt, as absolute conclusions of law,
it is sufficient that it is admitted that it is those deductions which they are at liberty
their peculiar province to determine facts, to draw from a particular state of facts,
intents, and purposes; that it is their if they regard them as reasonable such :
right to find a general verdict, and conse- as that a homicide must be presumed
quently that they must determine the malicious, unless the defendant proves the
law; and whether in the exercise of this contrary which is a rule contradictory
;
right they will distrust the court as ex- of the results of common observation ;
pounders of the law, or whether they will or that evidence of a previous good char-
receive the law from the court, must be acter in the defendant ought to be dis-
left to their own discretion under the regarded, unless the other proof presents
sanction of the oath they have taken." a doubtful case which would deprive an
;
State v. Jones, 5 Ala. 672. But as to accused party of his chief protection in
this case, see Batre v. State, 18 Ala. 119. many cases of false accusations and con-
It cannot be denied that discredit is spiracies. See People v. Garbutt, 17
sometimes brought upon the administra- Mich. 9; People v. Lamb, 2 Keyes, 860;
tion of justice
by juries acquitting parties State v. Henry, 5 Jones (N. C.), 66 Har- ;
who are sufficiently shown to be guilty, rington v. State, 19 Ohio St. 269; Silvus
and where, had the trial been by the v. State, 22 Ohio St. 90 State v. Patter-
;
court, a conviction would have been sure son, 45 Vt. 308; Remsen v. People, 43
to follow. In such cases it must be sup- N. Y. 6 ; Kistler State, 64 Ind. 400-
v.
posed that the jury have been controlled Upon the presumption of malice in homi-
by their prejudices or their sympathies. cide, the reader is referred to the Review
However that may be, it by no means of the Trial of Professor Webster, by
follows that because the machinery of Hon. Joel Parker, in the North American
jury trial does not work satisfactorily in Review, No. 72, p. 178. See also, upon
every case, we must therefore condemn the functions of judge and jury respec-
and abolish the system, or, what is still tively, the cases of Commonwealth v.
worse, tolerate it, and 3 et denounce it Wood, 11 Gray, 86; Maher v. People, 10
-
and whether the courts are satisfied with the verdict or not. We
shallnot 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
v. Colgate, 31 Kan. 611, 3 Pac. 346 State ; Callendine, 8 Iowa, 288 [State v. Rook, ;
more jurisdictions, and each may punish jurisdiction, and pleads guilt}', and the
it. He Chapman, 166 U. S. 661, 17 Sup. prosecutor dismisses the case, he has been
Ct. Rep. 677 Crosslcy v. California, 168
;
in jeopardy. Boswell v. State, 111 Ind.
U. S. 640, 18 Sup. Ct. Rep. 242; s. c be- ,
47. It cannot be said, however, that a
low, People v. Worden, 113 Cal. 569, 45 party is in legal jeopardy in a prosecu-
Pac. 844. Where accused is acquitted of tion brought about by his own procure-
the offence charged, he cannot thereafter ment; and a former conviction or acquit-
be prosecuted for perjury in swearing that tal is consequently no bar to a second
he did not commit the offence charged. indictment, if the former trial was brought
Cooper v. Commonwealth, 106 Ky.909, 51 about by the procurement of the defend-
S. W. 789, 45 L. R. A. 216. That same ant, and the conviction or acquittal was
act may involve two offences against the the result of fraud or collusion on his
State, see Commonwealth v. Vaughn, 101 part. Commonwealth v. Alderman, 4
Ky. 603, 42 S. W. 117, 45 L. R. A. 858, Mass. 477 State v. Little, 1 N. H. 257
; ;
putative father is liable to fine, no appeal Green, 16 Iowa, 239. See also State v.
can be allowed against successful defend- Reed, 26 Conn. 202 Bigham v. State, 59
;
ant in a bastardy proceeding. State v. Miss. 529 State v. Simpson, 28 Minn. 66,
;
165, 4 L. R. A. 543, and 1 L. R. A. 451. order to try again upon another com-
Indefinite suspension of sentence and dis- plaint. Com. v. Hart, 149 Mass. 7, 20
charge without recognizance after plea N. E. 310. QProof that a juror is sick
of guilty amounts to a complete loss of must be given in open court in order to
power over prisoner, and he cannot sub- justify discharge of jury and retention of
sequently be taken and sentenced. Peo- prisoner. Telephone message is insuffi-'
ple v. Allen, 155 111. 61, 39 N. E. 568, 41 cient. State Nelson, 19 R. I. 467, 34
v.
L. R. A. 473; but the court may after Atl. 990, 33 L. R. A. 559, 61 Am. St. 780.
sentence suspend in whole or in part the See also Upchurch v. State, 36 Tex. Cr.
execution thereof, and may at any time 624, 38 S. W. 206, 44 L. R. A. 694. Where
thereafter within the term in which such one in his defence to a prosecution for an
sentence was rendered revoke the suspen- assault with intent to murder offers to
sion of execution. Weber v. State, 58 Ohio prove a former conviction of a battery
St. 616, 61 N. E. 116, 41 L. R. A 472. See for the same attack, held a good defence.
also People v. Monroe Co. Ct., 141 N. Y. People v. McDonald, Cal. 69 Pac.
,
288, 36 N. E. 386, 23 L. R. A. 856. Stat- 1006. But see Reg. v. Morris, 10 Cox
ute giving complainant in criminal case C. C. 480, where a prosecution for an
for illegal fishing a right of appeal in case assault, afterward resulting in death, is
of acquittal is void. People v. Miner, 144 held to be no bar of a prosecution for the
111. 308, 33 N. E. 40, 19 L. R. A. 342, and
felony.]
8 Commonwealth
note.] v. Goddard, 13 Mass.
1
McFadden v. Commonwealth, 23 Pa. 455; People Tyler, 7 Mich. 161 ; Mon-
r.
St. 12; Lee v. State, 26 Ark. 260, 7 Am. tross v. State, 61 Miss. 429; State v. Shelly,
Rep. 611; O'Brian v. Commonwealth, 9 98 N. C. 673, 4 S. E. 530 ; Brown r. State,
Bush, 333, 15 Am. Rep. 715. The jury 79 Ga. 324, 4 S. E. 861. Acquittal by
must be of competent men. If, after the court-martial is no bar to a prosecution
jury is sworn but before any evidence is in the criminal courts. State v. Rankin,
taken, an incompetent juror is set aside, 4 Cold. 146; United States v. Cashiel, 1
there has been no jeopardy. People v. Hughes, 552.
Barker, 60 Mich. 277, 27 N. W. 539; 4 Gerard v.
People, 4 111. 363; Pritch-
State v. Pritchard, 16 Nev. 101. Com- ett v. State, 2 Sneed, 285; People i\ Cook,
pare Adams v. State, 99 Ind. 244; Whit- 10 Mich. 164; Mount v. Commonwealth,
more v. State, 43 Ark. 271. 2 Duv. 93; People v. McXealy, 17 Cal.
2
People v. Barrett, 2 Caines, 304 ; 333; Kohlheimer v. State, 39 Miss. 548;
Commonwealth v. Tuck, 20 Pick. 305; State v. Kason, 20 La. Ann. 48; Black
Mounts v. State, 14 Ohio, 295; State v. v. State, 36 Ga. 447 ;
Commonwealth v.
Connor, 5 Cold. 311 State v. Callcndine,
;
Bakeman, 105 Mass. 53; State v. Ward,
8 Iowa, 288; Baker v. State, 12 Ohio St. 48 Ark. 36, 2 S. W. 191; People v. Clark,
214; Grogan v. State, 44 Ala. 9; State v. 67 Cal. 99, 7 Pac. 178; Garvey's Case, 7
Alman, 64 N. C. 364 ; Nolan v. State, 55 Col. 384, 4 Pac. 758.
Ga. 521 Pizano v. State, 20 Tex. App.
;
6 United States v.
Perez, 9 Wheat.
139. It is otherwise in Vermont. State 579 State v. Ephraim, 2 Dev. & Bat.
v. Champeau, 53 Vt. 313, 36 Am. 166 Commonwealth v. Fells, 9 Leigh,
Rep.
754. A
judge cannot order discharge in 620; People v. Goodwin, 18 Johns. 205;
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 469
ing with them in a way calculated to in- That jury may be discharged when un-
fluence them unfavorably towards the able to agree, and prisoner may then be
evidence of the prosecution, and it was retried, see State v. Hager, 61 Kan. 504,
held that this was such a case of neces- 59 Pac. 1080, 48 L. R. A. 254 Re Allison, ;
sity as authorized the judge to permit a 13 Col. 525, 22 Pac. 820, 10 L. R. A. 790,
juror to be withdrawn, and that it did not 16 Am. St. 224. See also United States
operate as an acquittal. See also State v. v. Perez, 9 Wheaton, 579. The opposite
Washington, 89 N. C. 635. If a nolle conclusion is reached by the Supreme
prosaqui to an indictment is entered after Court of Pennsylvania in Com. v. Fitz-
the jury is sworn, because it is found that patrick, 121 Pa. St. 109, 15 Atl. 466, 6
the person alleged to have been murdered Am. St. 757; Dreyer v. Illinois, U. S.
is misnamed, this is no bar to a new in- ,
23 Sup. Ct. Rep. 28.]
4 State v.
dictment which shall give the name cor- Brooks, 3 Humph. 70 State ;
rectly. Taylor v. State, 35 Tex. 97. r. Battle, 7 Ala. 259; Mahala v. State, 10
1
Nugent v. State, 4 Stew. & Port. 72. Yerg. 632; State v. Spier, 1 Dev. 491;
2 Hector v.
State, 2 Mo. 166 State v. ; Wright State, 5 Ind. 290. See Whitten
r.
Leigh, 613; Doles v. State, 97 Ind. 555; State, 1 Humph. 103 Commonwealth
; v.
State v. Emery, 59 Vt. 84, 7 Atl. 129. Stowell, 9 Met. 572 People v. Curtis, 76
;
Or from the fact just then brought to Cal. 67, 17 Pac. 941 ; People v. White, 68
ihe judge's notice that one of the jurors Mich. 648, 37 N. W. 34; State Parker, ;.-.
had sat upon the grand jury that returned 66 Iowa, 586, 24 N. W. 225. As to the
the indictment. Thompson v. United effect of jury's separation by defendant's
States, 155 U. S. 271, 15 Sup. Ct. Rep. consent, see State v. Ward, 48 Ark. 36,
73. Or was otherwise incompetent. 2 S. W. 191; Hilands v. Com., Ill Pa.
Simmons v. United States, 142 U. S. 148, St. 1, 2 Atl. 70.
6 Kendall
12 Sup. Ct. Rep. 171.] State, 65 Ala. 492
v. State ;
8
People v. Goodwin, 18 Johns. 187; v. 59 N. H. 328; Gannon v.
Blaisdell,
Commonwealth v. Olds, 5 Lit. 140; Dob- People, 127 111. 507, 21 N. E. 525; State
bins v. State, 14 Ohio St. 493; Miller v. r. Brecht, 41 Minn. 50, 42 N. W. 602;
State, 8 Ind. 325; State v. Walker, 26 People v. Hardisson, 61 Cal. 378. See
Ind. 346 ;
Commonwealth v. Fells, 9 Com. v. Downing, 150 Mass. 197, 22
Leigh, 613; Winsor v. The Queen, L. R. N. E. 912. And it seems, if the verdict
1 Q. B. 289; State v. Prince, 63 N. C. is so defective that no judgment can be
(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.
1
or the judgment thereon been arrested, 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
:
the verdict was held to be a bar. State upon former jeopardy by reason of dis-
v. Norvell, 2 Yerg. 24. See People v. charge of jury in prisoner's absence, see
Webb, 28 Cal. 467. So if the error was note to this case in L. R. A. Where in-
in the judgment and not in the prior pro- junction may issue to prevent a pro-
ceedings, if the judgment is reversed, the hibited act, punishment for contempt in
prisoner must be discharged. See post, disobey ing the injunction will not prevent
p. 473. But it is competent for the legis- a prosecution for the crime. State r.
lature to provide that on reversing the Roby, 142 Ind. 168, 41 N. E. 145, 33
erroneous judgment in such case, the L. R. A. 213, 51 Am. St. 174. The fact
court, if the proper proceedings are regu- that acquittal was secured by bribery of
lar, shall remand the case for the proper prosecuting attorney does not invalidate
sentence. McKee v. People, 32 N. Y. 239. plea of former jeopardy. Shideler v.
QUpon correction of sentence and re-sen- State, 129 Ind. 523, 28 N. E. 537, 29 N. E.
tence, see note to 36 L. ed. U. S. 969.] 36, 16 L. R. A. 225, 28 Am. St. 206.]
It is also competent, by statute, in the 3
Campbell v. State, 9 Yerg. 333 ; State
absence of express constitutional prohibi- v. Kettle, 2 Tyler, 475 Morris v. State,
;
414. See Mitchell v. State 42 Ohio St. ; Barnett v. People, 54 111. 331 contra, State
;
792. See Com. v. Dunster, 145 Mass. the vigorous dissenting opinion of Mr.
101, 13 N. E. 350. the subject of
[On Justice Field in this case, and also the
double jeopardy, see 50 Cent. L. Jour. dissenting opinion of Harlan and Brewer,
143.] JJ. And see also State v. Whitaker, 48
1
The
subject of cruel and unusual La. Ann. 527, 19 So. 457, 35 L. R. A.
punishments was somewhat considered 561, and note thereto in L. R. A., in
Barker r. People, 3 Cow. 686, where which cases upon "
in cruel and unusual
the opinion was expressed by Chancellor punishment" are collected. In Wliita-
Sanford that a forfeiture of fundamental ker's case it was held, that a total im-
right e.
g. the right to jury trial prisonment for 2160 days or fine of $720
could not be imposed as a punishment, for 72 violations imposed within one
but that a forfeiture of the right to hold hour ami forty minutes, though upon
office might be. But such a forfeiture separate complaints, was within the pro-
could not be imposed without giving a hibition of the constitution. Also Ex
right to trial in the usual mode. Com- parte Keeler, 45 S. C. 537, 23 S. E. 865,
monwealth r. Jones, 10 Bush, 725. In 31 L. R. A. 678, 55 Am. St. 785. See also
Done v. People, 5 Park. 364, the cruel People ex rel. Tweed v. Liscomb, 60 N. Y.
punishments of colonial times, such as 559, 19 Am. Rep. 211, upon cumulative
burning alive and breaking on the wheel, punishment, holding that punishment for
were enumerated by W. W. Campbell, J., several offences charged in separate
who was of opinion that they must be counts of same indictment is unlawful :
regarded as "cruel" if not "unusual," that punishment for one offence exhausts
and therefore as being now forbidden. the power of the court under that indict-
And where the criminal is convicted of ment. Life imprisonment for construc-
many offences, he cannot complain if the tive rape is not invalid, even though the
punishments therefor are cumulated, legal age of consent is as high as sixteen
provided the punishment for a single of- years, and the female lacked only a few
fence is not excessive, although the aggre- months of that age, and actually con-
gate punishments may amount to im- sented, and the male was a mere youth.
prisonment for a term much greater than Com. v. Murphy, 165 Mass. 66, 42 N. E.
his natural life. O'Neil v. Vermont, 144 504, 30 L. R. A. 734, 52 Am. St. 496.}
U. S. 323, 12 Sup. Ct. Rep. 693 but see
;
472 CONSTITUTIONAL LIMITATIONS. [OH. X.
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
;
fine tobe collected for a certain offence, 14 L. R. A. 285, and note. Astatute 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
136 U. S. 436, 10 Sup. Ct. Rep. 930, aff. Lowenberg People, 27 N. Y. 336 Har-
v. ;
L. R. A. 620. Permitting the warden to Rex v. Fletcher, Russ. & Ry. 68. It is
fix the particular day of execution does
competent, however, to provide by stat-
not render statute void upon the theory ute that on setting aside an erroneous
that such permission tends to aggravate sentence the court shall proceed to im-
the punishment. Id. A
sentence fixing pose the sentence which the law required.
a maximum and minimum term of im- Wilson v. People, 24 Mich. 410; McDon-
prisonment, the prison board to determine ald v. State, 45 Md. 90.
when the prisoner shall be discharged
474 CONSTITUTIONAL LIMITATIONS. [CH. X.
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
;
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 Whitaker, 48 La. Ann. 627, 19
v. 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,
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-
contrary to his knowledge, but shall plead analysis is given of this oath and he
;
for his client the best he can, according well says of it: "Here you have the
to his understanding." Mirror of Jus- creed of an upright and honorable lawyer.
tices, c. 2, 5. The oath in Pennsylvania, The clear, terse,and lofty language in
on the admission of an attorney to the bar, which expressed needs no argument
it is
" to behave himself in the office of an attor- to elucidate its principles, no eloquence to
ney, according to the best of his learning enforce its obligations. It has in it the
and ability, and with all good fidelity, as sacred savor of divine inspiration, and
well to the court as to the client; that sounds almost like a restored reading from
he will use no falsehood, nor delay any Sinai's original, but broken tablets."
man's cause, for lucre or malice," is said, 1
When an ignorant person, unaccus-
by Mr. Sharswood, to present a compre- tomed to public assemblies, and perhaps
hensive summary of his duties as a prac- feeble in body or in intellect, was. .put
titioner. Sharswood's Legal Ethics, p. 3. upon trial on a charge which, whether
The advocate's oath, in Geneva, was as true or false, might speedily consign him
"
follows I solemnly swear, before Al-
: to an ignominious death, with able coun-
mighty God, to be faithful to the Repub- sel arrayed against him, and all the ma-
lic, and canton of Geneva; never
to the chinery of the law ready to be employed
to depart from the respect due to the in bringing forward the evidence of cir-
tribunals and authorities; never to coun- cumstances indicating guilt, it is painful
sel or maintain a cause which does not to contemplate the barbarity which could
appear to be just or equitable, unless it be deny him professional aid. Especially
the defence of an accused person never
;
when in most cases he would be impris-
to employ, knowingly, for the purpose of oned immediately on being apprehended,
maintaining the causes confided to me, and would thereby be prevented from
any means contrary to truth, and never to making even the feeble preparations
seek to mislead the judges by any artifice which might otherwise have been within
or false statement of facts or law his power. A
" trial " under such
to; circum-
abstain from all offensive personality, and stances would be only a judicial murder
to advance no fact contrary to the honor in very many cases. The spirit in which
and reputation of the parties, if it be not the old law was administered may be
indispensable to the cause with which I judged of from the case of Sir William
may be charged not to encourage either
; Parkins, tried for high treason before Lord
the commencement or continuance of a Holt and his associates in 1695, after the
suit from any motives of passion or inter- statute 7 Wm. III. c. 3, allowing coun-
est nor to reject, for any consideration
;
sel to prisoners indicated for treason, had
personal to myself, the cause of the weak, been passed, but one day before it was to
the stranger, or the oppressed." In " The take effect. He prayed to be allowed
Lawyer's Oath, its Obligations, and some counsel, and quoted the preamble to the
of the Duties springing out of them," by statute that such allowance was just and
D. Bethune Duffield, Esq., a masterly reasonable. His prayer was denied ; Lord
476 CONSTITUTIONAL LIMITATIONS. [CH. X.
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 regular and proper, because quite in the spirit that
it as
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 be counsel for the prisoner, a pure fal-
the law as he found it, and could not an- lacy at the best, and, with some judges,
ticipate the operation of an act of Parlia- a frightful mockery. Baron Garroio, in a
ment, even by a single day. The accused charge to a grand jury, said : "It has been
was convicted and executed. See Lieber's truly said that, in criminal cases, judges
Hermeneutics, c. 4, 15; Sedgwick on were counsel for the prisoners. So, un-
Stat. and Const. Law,
81. In proceedings doubtedly, they were, as far as they could
by the Inquisition against suspected her- be, to prevent undue prejudice, to guard
etics the was expressly
aid of counsel against improper influence being excited
prohibited. Lea's Superstition and Force, against prisoners but it was impossible
;
Vol. IV. c. 21. It is surprising that the only saw the deposition so short a time
effort toextend the same right to all per- before the accused appeared at the bar of
sons accused of felony was so strenuously their country, that it was quite impossible
resisted afterwards, and that, too, not- for them to act fully in that capacity."
withstanding the best lawyers in the If one would see how easily, and yet
realm admitted its importance and jus- in what a shocking manner, a judge might
" I
tice. have myself," said Mr. Scarlett, pervert the law and the evidence, and act
"
often seen persons I thought innocent the part of both prosecutor and king's
convicted, and the guilty escape, for want counsel, while assuming to be counsel for
of some acute and intelligent counsel to the prisoner, he need not go further back
show the bearingsof the different circum- than the early trials in our own country,
stances on the conduct and situation of and he referred for a specimen to the
is
the prisoner." House of Commons De- trials of Robert Tucker and others for
" It has
bates, April 25, 1826. lately been piracy, before Chief Justice Trott at
my lot," said Mr. Denman, on the same
"
Charleston, S. C., in 1718, as reported in
occasion, to try two prisoners who were 6 State Trials (Ernlyn), 150 et seg. Es-
deaf and dumb, and who could only be pecially may he there see how the state-
made to understand what was passing ment of prisoners in one case, to which
by the signs of their friends. The cases no credit was given for their exculpation,
were clear and simple but if they had
;
was used as hearsay evidence to condemn
been circumstantial cases, in what a situ- a prisoner in another case. All these
ation would the judge and jury be placed, abuses would have been checked, perhaps
when the prisoner could have no counsel altogether prevented, had the prisoners
to plead for him." The cases looked clear had able and fearless counsel. But with-
and simple to Mr. Denman ; but how out counsel for the defence, and under
could he know they would not have looked such a judge, the witnesses were not free
otherwise, had the coloring of the prose- to testify, the prisoners could not safely
cution been relieved by a counter-pres- make even the most honest explanation,
entation for the defence? See Sydney and the jury, when they retired, could
Smith's article on Counsel for Prisoners, only feel that returning a verdict in ac-
45 Edinb. Rev. p. 74 Works, Vol. II.
; cordance with the opinion of the judge
p. 353. The plausible objection to extend- was merely matter of form. Sydney
ing the right was, that the judge would Smith's lecture on " The judge that smites
CH. X.] CONSTITUTIONAL PEOTECTIONS, ETC. 477
"
contrary to the law is worthy of being Wayne Co. v. Waller, 90 Pa. St. 99,
carefully pondered in this connection. 85 Am. Rep. 636; House v. White, 5
" If ever a nation was Bax. 690. It has been held that, in the
happy, if ever a
nation was visibly blessed by God, if ever absence of express statutory provisions,
a nation was honored abroad, and left at counties are not obliged to compensate
home under a government (which we can counsel assigned by the court to defend
now conscientiously call a liberal govern- poor prisoners. Bacon v. Wayne County,
ment) to the full career of talent, industry, 1 Mich. 461; Wayne Co. v. Waller, 90
and vigor, we are at this moment that Pa. St. 99, 35 Am. Rep. 636. But there
people, and this is our happy lot. First, are several cases to the contrary. Webb
the Gospel has done it, and then justice v. Baird, 6 Ind. 13; Hall v. Washington
lias done it and he who thinks it his
; County, 2 Greene (Iowa), 473; Carpen-
duty that this happy condition of exist- ter v. Dane County, 9 Wis.277. But we
ence may remain, must guard the piety think a court has a right to require the
of these times, and he must watch over service, whether compensation is to be
the spirit of justice which exists in these made or not and that counsel who
;
times. First, lie must take care that the should decline to perform it, for no other
altars ofGod are not polluted, that the reason than that the law does not provide
Christian faith is retained in purity and pecuniary compensation, is unworthy to
in perfection ;
and then, turning to human hold his responsible office in the adminis-
affairs, let him strive for spotless, incor- tration of justice. Said Chief Justice
ruptible justice praising, honoring, and
;
Hale in one case " Although Serjeants
:
loving the just judge, and abhorring as have a monopoly of practice in the Com-
the worst enemy of mankind him who is mon Pleas, they have a right to practice,
'
placed there to judge after the law, and and do practice, at this bar and if we
;
who smites contrary to the law.'" were to assign one of them as counsel,
1
By statute 6 & 7 Wm. IV. c. 114; and he was to refuse to act, we should
4 Cooley's Bl. Com. 355 ; May's Const. make bold to commit him to prison."
Hist. c. 18. Life of Chief Justice Hale, in Campbell's
2 Vice Hamilton County, 19
v. 111. 18 ;
Lives of the Chief Justices, Vol. II.
478 CONSTITUTIONAL LIMITATIONS. [CH. X.
. TS"
1
if the client were not present to take the objection.
330. And see 1 Phil. Ev., by Cowen, 782; Cady v. Walker, 62 Mich. 157, 28
Hill,and Edwards, 130 et seq.; Earle v. N. W. 805; Goodwin, &c. Co.'s Appeal,
Grant, 46 Vt. 113; Machette v. Wanless, 117 Pa. St. 514, 12 Atl. 736. Or to an
2 Col. 169. The privilege would not attorney if he acts as a mere scrivener.
cover communications made, not with a Smith v. Long, 106 111. 485; Todd v. Mun-
view to professional assistance, but in son, 53 Conn. 679, 4 Atl. 99. Or facts
order to induce the attorney to aid in a within the personal knowledge of counsel,
criminal act. People v. Blakely, 1 Park. such as the dating of a bond. Rundle v.
Cr. R. 176; Bank of Utica v. Mersereau, Foster, 3 Tenn. Ch. 658. The privilege
3 Barb. Ch. 398. And see the analogous extends to communications by other
case of Hewitt v. Prince, 21 Wend. 79. means than words State v. Dawson, 90
:
Nor communications before a crime with Mo. 149, 1 S. W. 827 and to communi-
;
a view to being guided as to it. Orman cations to a legal adviser, who is not a
v. State, 22 Tex. App. 604, 3 S. W. 468 ; licensed attorney. Benedict v. State, 44
People v. Van AUtine, 57 Mich. 69, 23 Ohio St. 679, 11 N. E. 125; Ladd v. Rice,
N. W. 594. But it is not confined to 57 N. H. 374. fJBut see 1 Greenleaf on
cases where litigation is begun or con- Evidence, ed. 16, 239, and cases cited.
templated Root v. Wright, 84 N. Y. 72;
: See also People v. Barker, 60 Mich. 277,
or to cases where a fee is received An- : 27 N. W. 539, 1 Am. St. 501. It is waived
drews v. Simms, 33 Ark. 771; Bacon v. by asking the attorney who drew a will
Fisher, 80 N. Y. 394, 36 Am. Rep. 627 ; to be a witness to it. Matter of Coleman,
[Bruley r. Garvin, 105 Wis. 625, 81 N. W. 111 N. Y. 220, 19 N. E. 71.]
1038, 48 L. R. A. 839 ;] and is not waived It has been intimated in New York
by the party becoming a witness for him- that the statute making parties wit-
self. Dettenhofer v. State, 34 Ohio St. nesses has done away with the rule which
91, 32 Am. Rep. 362; Button v. State, protects professional communications.
16 Tex. App. 490; but see Jones v. State, Mitchell's Case, 12 Abb. Pr. R. 249;
65 Miss. 179, 3 So. 379. Communica- note to 1 Phil. Ev., by Cowen, Hill, and
tions to a State's attorney with a view to Edwards, 159 (marg. ). Supposing this to
a prosecution are privileged. Vogel v. be so in civil cases, the protection would
Gruaz, 110 U. S. 311, 4 Sup. Ct. Rep. 12. still be the same in the case of persons
Communications extraneous or imperti- charged with crime, for such persons can-
nent to the subject-matter of the profes- not be compelled to give evidence against
sional consultation are not privileged. themselves, so that the reason for pro-
Dixon v. Parmelee, 2 Vt. 185. See Bran- tecting professional confidence is the
don v. Cowing, 7 Rich. 459. Or commu- same as formerly.
nications publicly made in the presence 2 If one would consider this
duty and
of others. Hartford F. Ins. Co. v. Rey- the limitations upon it fully, he should
nolds, 36 Mich. 502. See Perkins v. read the criticisms upon the conduct of
Grey, 55 Miss. 153; Moffatt v. Hardin, Mr. Charles Phillips on the trial of Cour-
22 S. C. 9; [Kramer v. Kister, 187 Pa. voisier for the murder of Lord William
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 479
Russell. See Sharswood, Legal Ethics, said, and I still think, that this great con-
46; Littell,Living Age, Vol. XXIV. stitutional triumph is mainly to be as-
pp. 179, 230; Vol. XXV. pp. 289, 306; cribed to Lord Camden, who had been
West. Rev. Vol. XXXV. p. 1. fighting in the cause for half a century,
1
There may be cases in which it will and uttered his last words in the House
become the duty of counsel to interpose of Lords in its support; but had he not
between the court and the accused, and received the invaluable assistance of
fearlessly to brave all consequences per- Erskine, as counsel for the Dean of St.
sonal to himself, where it appears to him Asaph, the Star Chamber might have been
that in no other mode can the law be vin- And Lord
re-established in this country."
"
dicated and justice done to his client; Brougham says of Erskine He was an :
but these cases are so rare, that doubtless undaunted man he was an undaunted
;
they will stand out in judicial history as advocate. To no court did he ever
notable exceptions to the ready obedience truckle, neither to the court of the King,
which the bar should yield to the author- neither to the court of the King's Judges.
ity of the court. The famous scene be- Their smiles and their frowns he disre-
tween Mr. Justice Bu/ler and Mr. Erskine, garded alike in the fearless discharge of
on the trial of the Dean of St. Asaph for his duty. He upheld the liberty of the
libel, 5 Campbell's Lives of the Chan- peers against the one he defended the
;
have entitled Erskine to the statue which sires wholesome changes in our Constitu-
the profession affectionately erected to tion be still recognized as a patriot, and
his memory in Lincoln's Inn Hall. We not doomed to die the death of a traitor,
are to admire the decency and propriety let us acknowledge with gratitude that
of his demeanor during the struggle, no to this great man, under Heaven, we owe
less than its spirit, and the felicitous pre- this felicity of the times." Sketches of
cision with which he meted out the re- Statesmen of the Time of George III. A
quisite and justifiable portion of defiance. similar instance of the independence of
His example has had a salutary effect in counsel is narrated of that eminent advo-
and establishing the relative
illustrating cate, Mr. Samuel Dexter, in the reminis-
duties of judge and advocate in Eng- censes of his life by "Sigma," published
land." And elsewhere, in speaking of Mr. at Boston, 1857, p. 61. See Stor on
Fox's Libel Act, he makes the following Const. (4th ed.) 1064, note.
somewhat extravagant remark " I have :
480 CONSTITUTIONAL LIMITATIONS. [CH. X.
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 ofJudge Chase in United States
verdict in a capital case was set aside on v. Callendar, Whart. State Trials, 688,
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
liberty, existing, where alone they can ex- Walker State, 4 W. Va. 749.
.
but public opinion and their consciences, titled to notice, and an opportunity to be
would be incompatible with free govern- heard in defence. Beene v. State, 22
ment. Individuals of the class may, and Ark. 149. See In re Wallace, L. R. 1 P.
sometimes do, forfeit their professional C. 283 Ex parts Bradley, 7 Wall. 364
; ;
exact the forfeiture must be lodged some- Moore et al., 63 N. C. 397; Ex parte
where. Such a power is indispensable to Biggs, 64 N. C 202 Bradley v. Fisher, 13 ;
No class of the community is more depend- convicted and punished for perjury, and
ent on its reputation for honor and integ- disbarred, was refused restoration, not-
rity. It is indispensable to the purposes withstanding his subsequent behavior had
of its creation to assign it a high and been unexceptionable. Ex parte Garbett,
honorable standing; but to put it above 18 C. B. 403. See Matter of McCarthy,
the judiciary, whose official tenure is good 42 Mich. 71, 51 N. W. 963; Ex parte
behavior and whose members are remov- Walls, 64 Ind. 461. An attorney dis-
able from office by the legislature, would barred for collusion to procure false testi-
render it intractable and it is therefore
; mony. Matter of Gale, 75 N. Y. 526.
necessary to assign it but an equal share See "Matter of Eldridge, 82 N. Y. 161, 37
of independence. In the absence of spe- Am. Rep. 658. For inducing a commis-
cific provision to the contrary, the power sioner to admit to bail without right a
of removal is, from its nature, commen- convicted prisoner. State v. Burr, 19
surate with the power of appointment, Neb. 693, 28 N. W. 261. For antedating
and it is consequently the business of the jurat and acknowledgment. Matter of
31
482 CONSTITUTIONAL LIMITATIONS. [CH. X.
Arctander, 26 Minn. 25, 1 N. W. 43. For sel, after a part of the evidence had been
embezzlement of client's papers, though put in, had consented that the charge
lie has settled with client. In re Davies, might be withdrawn. In considering
93 Pa. St. 116. For want of fidelity to whether this was sufficient reason for the
client. Matter of Wool, 36 Mich. 299; refusal, the learned judge said: "The
Strout r. Proctor, 71 Me. 288 Slemmer ; material question is, did the plaintiff vio-
v. Wright, 54 Iowa, 164, 6 N. W. 181 ;
late his professional duty to his client in
488. If he commits a crime in his pro- instead of lending himself to the prose-
fessional capacity he may be disbarred, cution of one whom he then and has since
though he has not been convicted of the believed to be an innocent man 1
"
crime. State v. Winton, 11 Greg. 456, It is a popular but gross mistake to
6 Pac. 337. Even if it is not committed suppose that a lawyer owes no fidelity to
as an attorney. The rule is not inflexi- any one except his client, and that the
ble that he must be convicted before dis- latter is the keeper of his professional
barment. Ex parte Wall, 107 U. S. 265, conscience. He
expressly bound by
is
2 Sup. Ct. Rep. 569; Delano's Case, 58 his official oath tobehave himself in his
N. H. 5. See Ex parte Steinman, 95 Pa. office of attorney with all due fidelity to
St. 220. One may be disbarred for pub- the court as well as to the client and he ;
lishing a libel on the court unless some violates it when he consciously presses
constitutional or statutory provision for- for an unjust judgment; much more so
bids. State v. McClaugherty, 33 W. Va. when he presses for the conviction of an
250, 10 S. E. 407. innocent man. But the prosecution was
1 In Gaulden v. State, 11 Ga. 47, the depending before an alderman, to whom,
late solicitor-general was not suffered to it may be said, the plaintiff was bound to
assist in the defence of a criminal case, no such fidelity. Still he was bound by
because he had, course of his offi-
in the those obligations which, without oaths,
cial duty, the prosecution,
instituted rest upon all men. The high and honor-
though he was no longer connected with able office of a counsel would be degraded
it. And see Wilson State, 16 Ind. 392.. to that of a mercenary, were he compel-
A late city attorney for accepting a re- lable to do the bidding of his client against
tainer not to appear for the city in cer- the dictates of his conscience. The ori-
tain cases against it, appealed by him gin of the name proves the client to be
while such attorney, was suspended for subordinate to his counsel as his patron.
six months from
practice. In re Cowdery, Besides, had the plaintiff succeeded in
69 Cal. 32, 10 Pac. 47. having Crean held to answer, it would
2
Upon this subject the remarks of have been his duty to abandon the prose-
Chief Justice Gibson in Rush v. Cava- cution at the return of the recognizance.
naugh, 2 Pa. St. 189, are worthy of As the office of attorney-general is a pub-
being repeated in this connection. The lic which involves, in the discharge
trust
prosecutor in a criminal case had refused of the exercise of an almost boundless
it,
to pay the charges of the counsel em- discretion by an officer who stands as im-
ployed by him to prosecute in the place it might be
partial as a judge, doubted
of the attorney -general, because the coun- whether counsel retained by a private
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 483
prosecutor can be allowed to perform any service of summons and other civil pro-
part of his duty certainly not unless
;
cess extends to parties and witnesses.
in subservience to his will and instruc- Mulhearn v. Press Publishing Co., 53
tions. With that restriction, usage has N. J. L. 153, 21 Atl. 186, 11 L. R. A. 101.]
sanctioned the practice of employing pro- 1 Bl. Com. 134.
1 Montesquieu says :
" In
fessional assistants, to whom the attorney- governments, that is, in societies
general or his regular substitute may, if directed by laws, liberty can consist only
he please, confide the direction of the in the power of doing what we ought to
particular prosecution and it has been
; will,and in not being constrained to do
beneficial to do so
where the prosecuting what we ought not to will. We must
officerhas been overmatched or over- have continually present to our minds
borne by numbers. In that predicament the difference between independence and
the ends of justice may require him to liberty. Liberty is a right of doing what-
accept assistance. But the professional ever the laws permit, and if a citizen
assistant, like the regular deputy, exer- could do what they forbid, he would no
cises not his own discretion, but that of longer be possessed of liberty, because all
the attorney-general, whose locum tenens his fellow-citizens would enjoy the same
at sufferance he is and he consequently
; power." Spirit of the Laws, Book 11,
does so under the obligation of the offi- c. 3.
31 Mich. 99. pn furtherance of the full the creature of law, essentially different
discharge of the duties which an attorney from that authorized licentiousness that
owes to his client and to the court, he is trespasses on right. It is a legal and a
granted certain privileges. One is to be refined idea, the offspring of high civil-
exempt from the service of process while ization, which the savage never under-
attending upon the court and in going to stood, and never can understand. Lib-
and returning from the same. Hoffman erty exists in proportion to wholesome
r. Judge of Circuit Court, 113 Mich. 109, restraint; the more restraint on others to
71 N. W. 480; 38 L. R. A. 663; 67 Am. keep offfrom us, the more liberty we
St. 458. Similar exemption in regard to have. It is an error to suppose that lib'
484 CONSTITUTIONAL LIMITATIONS. [CH. X.
duty citizens owe in defence of the State ; (5) those which may
1
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 it is not easy, from the nature of
wife's actions,
the case, to point out and definebut at most they can only be such
;
2 2
erty consists in a paucity of laws. If one 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
4
death, 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 Moynahan, 16 III. 277.
v. 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.
(a) the principle that an ounce of prevention is worth a pound of cure, the
Upon
State is more and more control over children allowed by their parents to
asserting
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.
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
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.
the just liberty of the subject, the illegality of the process would
generally appear in the proceedings. But there were two tribu-
nals unknown common law, but exercising a most fearful
to the
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
;
1
See Hallam, Constitutional History, set forth in Brodie's Constitutional His-
c and 8; Todd, Parliamentary Govern-
1
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
1 See also 2
Hallam, Const. Hist. c. 7. Hallam, Const. Hist. c. 8; Brodie,
BroJie, Const. Hist. Vol. II. c. 1. Const. Hist, Vol. I. c. 8.
490 CONSTITUTIONAL LIMITATIONS. [CH. X.
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.
2
Important as this act was, 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
;
1 2
Life of Mansfield by Lord Campbell, 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.
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
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 Ex parte Dorr, 3 How. 103 Barry
3
;
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.]
"
1
Ableman v. Booth, 21 How. 506. Harlan, J., says Subject, then, to the
:
An agent of a State to receive from for its not being made by him personally.
another State a person under extradition The Hottentot Venus Case, 13 East, 195;
proceedings is not an officer of the United Child's Case, 29 Eng. L. & Eq. 259. A
States, nor is his detention of the prisoner wife may have the writ to release her
so far under national authority that a husband from unlawful imprisonment,
State court may not compel him to bring and may herself be heard on the applica-
in the prisoner for an inquiry into the tion. Cobbett's Case, 15 Q. B. 181, note ;
the warrant and the delivery to the agent s. c.16 Q. B. 988. Lord Campbell in this
were in conformity to the federal stat- case cites the case of the wife of John
utes. In summing up the discussion Bunyan, who was heard on his behalf
CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 495
when in prison. See note to 43 L. ed. to review, even indirectly, the decisions
U. S. 92.] of the courts, and to discharge persons
1
See post, p. 675 et seq. committed under their judgments. Such
Exparte Clay, 98 Mo. 678, 11 S. W.
2 officers could exercise a special
only
998; State v. Hayden, 35 Minn. 283, 28 statutory authority. Yet its exercise in
N. W. 659; Bayles, 105 Ind.
Willis v. such cases is not only judicial, but it is
363, 5 N. E. 8; State v. Orton, 67 Iowa, in the nature of appellate judicial power.
654, 25 N. W. 775; People v. Liscomb, The jurisdiction of the Supreme Court of
60 N. Y. 559, 574; Petition of Crandall, the United States to issue the writ in cases
34 Wis. 177; Ex parte Van Hagan, 25 of confinement under the order of the
Ohio St. 42(3 ;
Ex parte Shaw, 7 Ohio St. District Courts, was sustained in Exparte
81 ;
Ex parte Parks, 93 U. S. 18, 23 ;
Bollman & Swartwout, 4 Cranch, 75, and
Perry v. Matter of
State, 41 Tex. 488 ;
Matter of Metzger, 6 How. 176, on the
Underwood, 30 Mich. 602; Matter of ground that it was appellate. It is
Eaton, 27 Mich. 1; In re Burger, 39 original only where a State is a party, or
Mich. 203; Ex parte Simmons, 62 Ala. an ambassador, minister, or consul. Ex
416; Re Stupp, 12 Blatch. 601; Exparte parte Hung Hang, 108 U. S. 652, 2 Sup.
Winslow, 9 Nev. 71 Ex parte Hartman,;
Ct. Rep. 863. See also Ex parte Kearney,
44 Cal. 32; In re Falvey, 7 Wis. 630; 7 Wheat. 38 Ex parte Watkins, 7 Pet.
;
Stokes, 5 Sup. Ct. (N. Y.) 71; Prohibi- of Kaine, 14 How. 103; Matter of Eaton,
Plante, 6 Lower Can. Rep. 106. The 1 Wins. (N. C.) 463. Otherwise if a mere
writ cannot be used to prevent the com- usurper issues process for the imprison-
mission upon a trial of anticipated errors. ment of a citizen. Ex parte Strahl, supra.
Ex parte Crouch, 112 U. S. 178, 5 Sup. shows that relator stands
If the record
Ct. Rep. 96. It is worthy of serious con- convicted of that which is no crime, he
sideration whether, in those States where is of course entitled to his discharge.
the whole judicial power is by the con- Ex parte Kearney, 65 Cal. 212. So if
stitution vested in certain specified courts, punished for contempt in disobeying a
it is competent by law to give to judicial void order of court. In re Ayers, 123
officers not holding such courts authority U. S. 443, 8 Sup. Ct. Rep. 104; Ex parte
496 CONSTITUTIONAL LIMITATIONS. [CH. X.
Fisk, 113 U. S. 713, 5 Sup. Ct. Rep. 724. and the respondent may be discharged on
So he is held under a sentence which
if habeas corpus. , State v. Towle, before
contravenes an express constitutional cited ;
Ex parte Kellogg, 6 Vt. 509. See
immunity, as when sentenced a second also State v. Richmond, 6 N. H. '232;
time for the same offence. Nielsen, Pe- Burnham Stevens, 33 N. H. 247 Hurst
v. ;
titioner, 1.31 U. S. 176, 9 Sup. Ct. Rep. v. Smith, Gray, 49." If the court has
1
672. See, also,Ex parte Royall, 117 jurisdiction of an offence, its judgment as
U. S. 241, 254, 6 Sup. Ct. Rep. 734, 742 ,
to what acts are necessary to constitute
In re Dill, 32 Kan. 648, 5 Pac. 39 ; Brown it cannot be reviewed. In re Coy, 127
v. Duff us, 66 Iowa, 193, 23 N. W. 396; U. S. 731, 8 Sup. Ct. Rep. 1263.
Ex parte Rollins, 80 Va. 314; Ex parte
2 It is
not a matter of course that the
Rosenblatt, 19 Nev. 439, 14 Pac. 298. party is to be discharged even where the
The question of jurisdiction of a court of authority under which he is held is ad-
limited jurisdiction is open upon this judged illegal. For it may appear that
writ. People v. The Warden, &c., 100 he should be lawfully confined in differ-
N. Y. 20, 2 N. E. 870. ent custody; in which case the proper
1
People v. Cassels, 5 Hill, 164 Bush-;
order may be made for the transfer.
nell's Case, 9 Ohio St. 183; Ex parte Matter of Mason, 8 Mich. 70 ; Matter of
Watkins, 7 Pet. 568 Matter of Metzger,
; Ring, 28 Cal. 247 ; Ex parte Gibson, 31
6 How. 176; Ex parte Yarbrough, 110 Cal. 619. See People v.Kelly, 97 N. Y.
U. S. 651, 4 Sup. Ct. Rep. 152 Ex parte
;
212. And where he is detained for trial
Harding, 120 U. S. 782, 7 Sup. Ct. Rep. on an imperfect charge of crime, the
780; Petition of Smith, 2 Nev. 338; Ex court, if possessing power to commit de
parte Gibson, 31 Cal. 619 Hammond v.
; novo, instead of discharging him, should
People, 32 III. 472, per Breese, 3. In proceed to inquire whether there is prob-
State v. Shattuck, 45 N. H. 211, Bellows, able cause for holding him for trial, and
J.,states the rule very correctly as fol- if so,should order accordingly. Hurd on
lows " If the court had jurisdiction of
: Habeas Corpus, 416. A discharge on
the matter embraced in these causes, this habeas corpus is, apart from statute, con-
court will not, on habeas corpus, revise the clusive upon the State. People v. Fair-
judgment. State v. Towle, 42 N. H. 541 ; man, 69 Mich. 568, 26 N. W. 669; State
Ross's Case, 2 Pick. 166; and Riley's v.Miller, 97 N. C. 451 ; Gagnet v. Reese,
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
2
extend, rather than restrict it.
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-
3
ceeding is had though without doubt a jury trial might be pro-
;
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 ; Exparte 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,;
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
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
;
1 See Wilson v. State, 33 Ark. 557. pocket pistol or revolver, was sustained,
2 In Bliss i\ Commonwealth, 2 Lit. 90. except as to the last-mentioned weapon ;
the statute to "prevent persons wearing and as to that it was held that, if the
"
concealed arms was held unconstitu- weapon was suitable for the equipment
tional, as infringing on the right of the of a soldier the right of carrying it could
people to bear arms in defence of them- not be taken away. As bearing also upon
selves and of the State. But see Nunn the right of self-defence, see Ely v. Thomp-
.
State, 1 Kelly, 243; State v. Mitchell, son, 3 A. K. Marsh. 73, where it was held
3 Blackf. 229; Aynette v. State, 2 Humph. that the statute subjecting free persons of
154 State v. Buzzard, 4 Ark. 18 ; Carroll
;
color to corporal punishment for "lifting
"
v. State, 28 Ark. 99, 18 Am. Rep. 538 ; their hands in opposition to a white
State v. Jumel, 13 La. Ann. 399 1 Green, ; person was unconstitutional. And see, in
Cr. Rep. 481 Owen v. State, 31 Ala. 387;
; general, Bishop on Stat. Crimes, c. 36,
Cockrum v. State, 24 Tex. 394; Andrews and cases cited. [^Unauthorized bodies of
v. State, 3 Heisk. 165, 8 Am. Rep. 8; State men may be prohibited the right to drill
v. Wilburn, 7 Bax. 51; State v. Reid, 1 or parade with arms, and to associate as
Ala. 612; State v. Shelby, 90 Mo. 302, a military organization. Com. v. Murphy,
2 S. W. 468. A
statute prohibiting the 166 Mass. 171, 44 N. E. 138, 32 L. R. A.
open wearing of arms upon the person 606. A
regulation forbidding the carrying
was held unconstitutional in Stockdale v. of weapons generally is invalid, though
State, 32 Ga. 225, and one forbidding such regulation as to concealed weapons is
carrying, either publicly or privately, a valid. Re Brickey, Idaho, , 70 Pac.
dirk, sword-cane, Spanish stiletto, belt or 609.3
500 CONSTITUTIONAL LIMITATIONS. [CH. XI.
CHAPTER XL
" THE LAW OF THE LAND."
OF THE PROTECTION TO PROPERTY BY
1 4
Bl. Com. 424. The chapter, as it gift, loan,benevolence, tax. or such like
stood in the original charter of John, charge, without common consent, by act
"
was: Ne corpus liberi hominis capiatur of Parliament ; that none be called upon
nee imprisonetur nee disseisietur nee ut- to make answer for refusal so to do that ;
lagetur nee exuletur, nee aliquo inodo freemen be imprisoned or detained only
destruatur, nee rex eat vel mittat super by the law of the land, or by due process
eum vi, nisi per judieium parium suorum, of law, and not by the king's special
vel per legem terrae." No freeman shall command, without any charge." The
be taken or imprisoned or disseised or Bill of Rights 1 Wm. and Mary, 2,
outlawed or banished, or any ways de- c. 2 was confined to an enumeration
stroyed, nor will the king pass upon him, and condemnation of the illegal acts of
or commit him to prison, unless by the the preceding reign but the Great
;
judgment of his peers, or the law of the Charter of Henry III. was then, and is
land. In the charter of Henry III. it was still, in force.
varied slightly, as follows: "Nullus liber 2 The
following are the constitutional
homo capiatur vel imprisonetur, aut dis- provisions in the several States :
seisietur de libero tenemento suo vel lib- Alabama: "That, in all criminal pros-
ertatibus vel liheris consuetudinibus suis, ecutions, the accused shall not be
. . .
aut utlagetur aut exuletur, aut aliquo compelled to give evidence against him-
modo destruatur, nee super eum ibimus, self, or be deprived of his life, liberty, or
nee super eum mittemus, nisi per legale property, but by due course of law." Art.
judieium parium suorum, vel per legem 1, 7. Arkansas: " That no person shall
teme." See Blackstone's Charters. The ... be deprived of his life, liberty, or
Petition of Right 1 Car. I. c. 1 property, without due process of law."
" that no
prayed, among other things, Art. 1, 9. California: Similar to that
man be compelled to make or yield any of Alabama. Art. 1, 8. Connecticut:
CH. XL] PROTECTION BY "THE LAW OF THE LAND." 501
peers, or the law of the land." Art. 1, Under each of the remaining constitu-
" That no man
6. Mart/land : ought tions, equivalent protection to that which
to be taken or imprisoned, or disseised of these provisions give is believed to be
his freehold, liberties, or privileges, or afforded by fundamental principles recog-
outlawed, or exiled, or in any manner nized and enforced by the courts. QA
" "
destroyed, or deprived of his life, liberty, corporation is within the term person
or property, but by the judgment of his and " man " as used in the various consti-
peers, or by the law of the land." Dec- tutional provisions as to " Law of the
laration of Rights, 23. Massachusetts: Land" and "Due Process." Knoxville
" No
subject shall be arrested, imprisoned, & Ohio Ry. Co. v. Harris, 99 Tenn. 684,
despoiled, or deprived of his property, 43 S. W. 115, 53 L. R. A. 921 Johnson v. ;
immunities, or privileges, put out of the Goodyear Mining Co., 127 Cal. 4, 59
protection of the law, exiled, or deprived Pac. 304, 47 L. R. A. 338. A corporation
" "
of his life, liberty, or estate, but by the is not, however, a citizen within the
judgment of his peers, or the law of the meaning of that term as used in section 2
land." Declaration of Rights, Art. 12. of article4, of the federal constitution,
Michigan: "No
person shall ... be de- nor within the meaning of that term as
prived of life, liberty, or property, without used in section 1 of article 14, of the
due process of law." Art. 6, 82. Min- amendments referring to privileges and
nesota : Like that of Michigan. Art. 1, 7. immunities of citizens of the several
Mississippi: The same. Art. 1, 2. States, and of the United States respect-
Missouri: Same as Delaware. Art. 1, 18. ively. Hawley v. Hurd, 72 Vt. 122, 47
Nevada: "Nor be deprived of life, lib- Atl. 401, 82 Am. St. 922; Orient Ins. Co.
due process of
erty, or property, without v. Daggs, 172 U. S. 557, 19 Sup. Ct. Rep.
law." Art. .1, 8. New Hampshire: 281. "Property" within the meaning of
Same as Massachusetts Bill of Rights, the term as used in the federal constitu-
Art. 15. New York: Same
as Nevada. tion involves the right to acquire and dis-
Art. 1, North Carolina: " That no
6. pose of the subject of the right. Harbison
person ought to be taken, imprisoned, or v. Knoxville Iron Co., 103 Tenn. 421, 53
" "
disseised of his freehold, liberties, or privi- S. W. 955, 76 Am. St. 682. Liberty
leges, or outlawed, or exiled, or in any in the constitutional sense involves the
manner destroyed, or deprived of his life, right to use one's faculties in all lawful
liberty, or property, but by the law of the ways, to live and work where he chooses,
land." Declaration of Rights, 17. to pursue any lawful calling, vocation,
Pennsylvania: Like Delaware. Art. 1, trade, or profession, and to enjoy the
502 CmSTITUTIONAL LIMITATIONS. [CH. XI.
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
And "
p. 487. he proceeds : If this were stroyed, and be deprived of his property,
so, acts of attainder, bills of pains and his liberty, and his life, without crime ?
penalties, acts of confiscation, acts revers- Yet all this he may suffer if an act of the
ing judgments, and acts directly trans- assembly simply denouncing those penal-
ferring one man's estate to another, ties upon particular persons, or a particu-
legislative judgments, decrees and forfeit- lar class of persons, be in itself a law of
ures in all possible forms, would be the the land within the sense of the Consti-
law of the land. Such a strange construc- tution for what is in that sense the law
;
tion would render constitutional provi- of the land must be duly observed by all,
sions of the highest importance com- and upheld and enforced by the courts.
pletely inoperative and void. It would In reference to the infliction of punish-
tend directly to establish the union of nil ment and divesting the rights of property,
powers in the legislature. There would it has been repeatedly held in this State,
be no general permanent law for courts and it is believed in every other of the
to administer or men to live under. The Union, that there are limitations upon the
administration of justice would be an legislative power, notwithstanding these
empty form, an idle ceremony. Judges words and that the clause itself means
;
would sit to execute legislative judgments that such legislative acts as profess in
and decrees, not to declare the law or themselves directly to punish persons, or
administer the justice of the country." to deprive the citizen of his property,
1
Per Branson, J., in Taylor v. Porter, without before the judicial tribunals,
trial
4 Hill, 140, 145. See also Jones v. Perry, and a decision upon the matter of right,
10 Yerg. 59, 30 Am. Dec. 430 Ervine's ;
as determined by the laws under which
Appeal, 16 Pa. St. 256 ; Arrowsmith v. itvested, according to the course, mode,
Burlingim, 4 McLean, 489; Lane v. Dor- and usages of the common law, as derived
man, 4 111. 238 Reed v. Wright, 2 Greene
; from our forefathers, are not effectually
'
once abrogated. For what more can the deed an essential principle of the law of
England, that the subject hath an un-
'
citizen suffer than to be taken, imprisoned,
disseised of his freehold, liberties, and doubted property in his goods and pos-
privileges ; be outlawed, exiled, and de- sessions ; otherwise there shall remain no
504 CONSTITUTIONAL LIMITATIONS. [CH. XI.
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 " The terms law of the land '
'
says : . . .
that which is not his own? The Bank- are now, in their most usual acceptation,
er'sCase, 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
Gibson, Ch. J., in Norman v. Heist, 5 Yerg. 260, per Peck, J. Hard v. Nearing,
1
;
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 ;
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:
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.
3 Hurtado v.
314, 13 Sup. Ct. Rep. 105 also extensive
; 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.
1 Vanzant v. Waddell, 2 Yerg. 260 ; tunity for hearing upon assessment, see
Lenz v. Cliarlton, 23 Wis. 478 ; Pennoyer Pittsburgh C- C. & St. L. R. Co. v. Board
v. Neff, 95 U. S. 714. of Public Works, 172 U. S. 32, 19 Sup.
2
See Wynehamer v. People, 13 N". Y. Ct. Rep. 90.3 See, also, Cruikshanks v.
378, 432, per Selden, J. ; Kalloch v. Su- Charleston, 1 McCord, 360; State v. May-
perior Court, 56 Cal. 229 Baltimore v. ; hew, 2 Gill, 487; Harper v. Commission-
Scharf, 54 Md. 499. In State v. Allen, 2 ers, 23 Ga. 566 Myers o. Park, 8 Heisk.
;
McCord, 56, the court, in speaking of 550. So is the seizure and sale under
process for the collection of taxes, say :
proceedings prescribed by law, of stray
"
We think that any legal process which beasts. Knoxville v. King, 7 Lea, 441 ;
was originally founded in necessity, has Hamlin r. Mack, 33 Mich. 103; Stewart
been consecrated by time, and approved v.Hunter, 16 Oreg. 62, 16'Pac. 876. That
and acquiesced in by universal consent, the owner should have notice of the sale,
must be considered an exception to the see Varden v. Mount, 78 Ky. 86. A col-
right of trial by jury, and is embraced in lateral-inheritance tax-law which makes
"
'
the alternative law of the land.' To no provision for notice to heirs, legatees,
the same effect are In re Hackett, 53 Vt. and devisees, and affords no opportunity
354 ;
Weimer v. Bunbury, 30 Mich. 201. for them to be heard in the matter of
And see Hard v. Nearing, 44 Barb. 472 ; appraisal, is void. Ferry v. Campbell, 110
New Cannon, 10 La. Ann. 764;
Orleans v. Iowa, 290, 81 N. W. 604, 50 L. R. A. 92.]
McCarrol v. Weeks, 5 Hayw. 246 Sears ; An act allowing an agent of a humane
v. Cottrell, 5 Mich. 250 Gibson v. Mason,; society to condemn and kill an animal
5 Nev. 283. The fourteenth amendment and fix its value conclusively without
has not enlarged the meaning of the words notice is not due process of law. King
" due
process of law." Whatever was v. Hayes, 80 Me. 206, 13 Atl. 882. But
such in a State before that amendment, is a health officer may be empowered to kill
so still. Hence, a statute is good which a diseased beast, if the owner may after-
allows execution on judgments against a wards contest the existence of conditions
town to be levied on the goods of individ- which made the beast a nuisance, and
ual inhabitants. Eames v. Savage, 77 Me. obtain redress, if such conditions are not
212. Taking property under the taxing shown to have existed. Newark & S. O.
power is due process of law. Davidson Co. v. Hunt, 50 N. J. L. 308, 12 Atl.
v. New Orleans, 96 U. S. 97; Kelly v. 697. fJWhere such officer seizes and
Pittsburgh, 104 U. S. 78 ; High v. Shoe- kills healthy animals, the owner does not
maker, 22 Cal. 863. QWeyerhauser v. thereby acquire any claim against the
Minnesota, 176 U. S. 550, 20 Sup. Ct. State. Houston v. State, 98 Wis. 481,
Eep. 485. Upon sufficiency of oppor- 74 N. W. Ill, 42 L. R. A. 39J It is
CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 507
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-
such laborer may not enforce a lien in Court Judges, 175 Mass. 71, 65 N. E. 812,
spite of any contract between the con- 61 L. R. A. 433; People ex rel. Deneen v.
ractor and owner, or of payment by the Simon, 176 111. 165, 52 N. E. 910, 68 Am.
latter. John Spry Lumber Co. v. Sault St. 175, 44 L. R. A. 801 State ex rel.
;
Sav. Bank, 77 Mich. 199, 43 N. W. 778. Douglas v. School District, 85 Minn. 230,
Nor can the owner's failure to enjoin the 88 N. W. 751, 57 L. R. A. 297. The val-
labor be made conclusive evidence of his idity of such act was denied in State ex
assent to it. Meyer v. Berlandi, 39 Minn. rel. Monnett v. Guilbert, 56 Ohio St. 575,
taxed therefor, even though the property v. Hart, 24 Wis. 89, 91, 1 Am. Rep. 161.
L. R. A. 411. Statutes inaugurating the the legislature might authorize the lay-
" "
so-called Torrens System for registra- ing out of private ways over the lands of
tion of land titles have been before the unwilling parties, to connect the coal-
courts and attacked for violation of the beds with the works of public improve-
rule of "due process," but have been ment, the constitution not in terms pro-
usually upheld. Tyler v. Registration 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 a right which rests upon equities, it has its reason-
it is
and the like are protected equally with without due process. Noel v. State, 187
his lands and chattels, or rights and fran- 111. 587, 58 N. E. 616, 79 Am. St. 238, 52
properly included in the category. State ville Iron Co., 103 Tenn. 421, 53 S. W.
r. Staten, 6 Cold. 233. See Davies v. Mc- 955, 76 Am. St. 682, to include every-
Keeby, 5 Nev. 369. thing having an exchangeable value and
8 The interest
acquired in the practice as well tlie right to acquire and dispose
of learned professions, that is, " the right of the thing which is the subject of
to continue their prosecution," is property property rights. The office of Governor
which cannot be arbitrarily taken away. of a State is not "property." Taylor v.
Field, J., in Dent r. West Virginia, 129 Beckhani, 178 U. S. 548, 20 Sup. Ct. Rep.
U. S. 114, 9 Sup. Ot. Rep. 213. The 890, 1009. It is held in Hoover v. Mc-
office of an attorney is property, and he Chesney, 81 Fed. Rep. 472, that the right
" "
cannot be deprived of it except for pro- to use the mails is property in the sense
fessional misconduct or proved unfituess. 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 them could not be disputed without
many of
questions cannot well arise concerning them, unless they are at-
tended by circumstances of irregularity which are supposed to
a chance to be heard and defend. The Tyroler v. Warden, etc., 157 N. Y. 116,
" "
so-called right to privacy has, in sev- 51 N. E. 1006, 43 L. R. A. 264, 68 Am.
eral cases, been asserted and protection St. 763.]
1 "
A person has no property, no vest-
asked for it through the judicial depart-
ment of the government, but in the cases ed interest, in any rule of the common
which have arisen the courts have de- law .
Rights of property which have
. .
clined to recognize such a property or per- been created by the common law, cannot
sonal right. Atkinson v. Doherty & Co., be taken away without due process; but
121 Mich. 372, 80 N. W. 285, 46 L. R. A. the law itself, as a rule of conduct, may
219, 80 Am. St. 507, and cases cited in be changed at the will, or even at the
the opinion Roberson v. Rochester, etc.
;
whim of the legislature, unless prevented
Co., 171 N. Y. 538, 64 N. E. 442, Articles by constitutional limitations." Waite,
in 4 Harv. Law Rev. 193 22 Canada Law
; Ch. J., in Munn v. Illinois, 94 U. S. 113,
Times, 281, by E. L. Adams, counsel in 134. See Railroad Co. v. Richmond,
Roberson case, supra; 175 No. Am. Re- 96 U. S. 521
Transportation Co. v. Chi-
;
parte Lorenzen, 128 Cal. 431, 61 Pac. 68, tirement of stock by conversion into
60 L. R. A. 55; Burdick v. People, 149 bonds. Berger i;. United States Steel
111. 600, 36 N. E. 948, 24 L. R. A. 152, Corporation, 63 N. J. Eq. 809, 53 Atl. 68,
41 Am. St. 329. Contra, People ex rel. rev. 63 N. J. Eq. 506, 53 Atl. 14]
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- ;
Interests in Expectancy,
public laws and if, before the rights become vested in particular
;
his minority through failure to pay taxes N. H. 30i. And cases, ante, p. 402, note 2.
512 CONSTITUTIONAL LIMITATIONS. [CH. XI.
isnot 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 ;
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
3
subject to legislative control and modification. 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 Lockwood, 3 Blatch. 66.
Mill v.
L. R. A. 256, and note on power to The may by special act con-
legislature
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
tenant in tail. Comstock v. Gay, 51 which, however, does not reach the gen-
Conn. 45. above stated
eral principle 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 incommon 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
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 death. Henson v. Moore, 104 111. 403. In
Hersliizer Florence, 39 Ohio St. 516.
v. North Carolina before 1867, the wife had
But see to the contrary, Breeding v. dower only in the lands of which the hus-
Davis, 77 Va. 639; Alexander v. Alex- band died seised the statute then restored
;
Ewing, 9 Ind. 37; May v. Fletcher, 40 held that when the law of dower is
Guerin r. Moore, 25 Minn. 462; Morrison rall Simplot, 4 Iowa, 381 ; Moore v.
v.
larged, will the wife obtain the enlarged 48 Ind. 367; Taylor v. Sample, 51 Ind.
dower at the expense of the purchaser? 423. See May v. Fletcher, 40 Ind. 675.
Or suppose it is diminished will the pur- ;
A provision that upon a judicial sale of
chaser thereby acquire an enlarged estate the husband's property the inchoate
which he never bought or paid for? dower right shall vest does not apply to
These are important questions, and the a mechanic's lien resting on the whole
authorities furnish very uncertain and property before the act passed. Buser
unsatisfactory answers to them. In Illi- v. Shepard, 107 Ind. 417, 8 N. E. 280. In
nois it is held that though the estate is Missouri it is held that the widow takes
contingent, the right to dower, when mar- dower according to the law in force at the
riage and seisin unite, is vested and abso- husband's death, except as against those
lute, and is as completely beyond legisla- who had previously acquired specific
tive control as is the principal estate. rights in the estate, and as to them her
Russell v.
Rumsey, 35 111. 362 ; Steele v. right must depend on the law in force at
Gellatly, 41 111. 39. See Lawrence . the time their rights originated. Kennedy
Miller, 2 N. Y. 245. But it is also held v. Insurance Co., 11 Mo. 204. In Williams
that after marriage a new right corre- v. Courtney, 77 Mo. 587, it is held that,
sponding to dower may be conferred upon marriage and seisin concurring, dower
the husband, and that his homestead right cannot be barred by a guardian's sale of
depends on the law in force at the wife's the husband's property. In Massachusetts
CH. XI.] PROTECTION BY "THE LAW OF THE LAND. 515
Change of Remedies.
This the
is general rule and the exceptions are of those peculiar
;
v. Sawyer, 21 Conn. 351; Clark v. Mc- Goddin, 12 Bush, 274; Grundy v. Com-
Creary, 12 S. & M. 247 Jackson v. Lyon,
; monwealth, 12 Bush, 350 Briscoe v. ;
garded as having an interest in the wife's ter v. Essex Bank, 16 Mass. 245, 9 Am.
choses in action, before he has reduced Dec. 168 Paschall v. Whitsett, 11 Ala.
;
Married Women, Vol. II. 45, 46. If &c., 6 Pick. 501; Whipple v. Farrar, 3
the wife has a right to personal property Mich. 436 ;
United States v. Samperyac,
subject to a contingency, the husband's 1 Hemp. 118; Sutherland v. De Leon, 1
contingent interest therein cannot be Tex. 250; Anonymous, 2 Stew. 228;
taken away by subsequent legislation. See also Lewis v. McElvain, 16 Ohio,
Dunn v. Sargent, 101 Mass. 336. It is 347 Trustees, &c. v. McCaughey, 2 Ohio
;
competent to provide by statute that St. 152; Hepburn v. Curts, 7 Watts, 300;.
married women shall hold their property Schenley v. Commonwealth, 36 Pa. St.
free from claims of husbands, and to 29 Bacon v. Callender, 6 Mass. 303 ;
;
make the law apply to those already Brackett v. Norcross, 1 Me. 92 Ralston ;
Citizens' Bank, 8 La. 130, 23 Am. Dec. selaer v. Hayes, 19 N. Y. 68 Van Rens- ;
132. But vested rights belonging to the selaer v. Ball, 19 N. Y. 100 Sedgwiok Co. ;
husband jure uxoris cannot thus be di- v. Bunker, 16 Kan. 498 ; Danville v. Pace,
violated' in doing so. In Towle v. East- But it is well said in Pennsylvania that
ern Railroad, 18 N. II. 546, the power of before a statute should be construed to
the legislature to give retrospectively a take away the remedy for a prior injury,
remedy for consequential damages caused it should clearly appear that it embraces
by the taking of property for a public use the very case. Chalker v. Ives, 55 Pa. St.
was denied. On the ground that the rem- 81. And see Newsom v. Greenwood, 4
edy only is affected, a judgment against Oreg. 119.
a principal on an existing bond, may be 8 See cases cited in last note. Also
made conclusive on the surety. Pickett Commonwealth v. Duane, 1 Binney, 601,
v. Boyd, 11 Lea, 498. So a resale on 2 Am. Dec. 497 ; United States v. Pass-
mortgage foreclosure, if the purchase more, 4 Dall. 372 Patterson v. Philbrook,
;
son, 16 Neb. 235, 20 N. W. 205. QA lien bun v. Wheeler, 29 lud. 601; State
for the whole value of labor or material y. Norwood, 12 Md. 195 ; Bristol v. Su-
furnished may be made to take prece- pervisors, &c., 20 Mich. 95; Summer
dence of any mortgage or other contract, r. Miller, 64 N. C. 688. [Pending the
lien, or conveyance arising subsequent to decision upon an appeal, the constitution
the beginning of the labor or of the sup- was so amended that whereas under the
ply of the material, but prior to the com- old rule the appeal had been upon ques-
pletion thereof, upon condition that notice tions of law alone, it was under the new
of such lien shall be filed prior to filing to be upon questions of fact also. The
of mortgage, &c. Hightower v. Bailey & case was thereupon remanded, in order
Koerner, 22 Ky. L. 88, 56 S. W. 147, 49 that the evidence might be incorporated
L. R. A. 255.] in the record upon a new trial, and the
valid as going to the remedy only. Kirk- the fundamental principles of justice. Geb-
man v. Bird, 22 Utah, 100, 61 Pac. 338, hard v. Railroad Co., 17 Blatch. 416. An
83 Ann. St. 774.] equitable title to lands, of which the legal
1
ante, pp. 406-416; Lennon v.
See title is in the State, is under the same
New York, 55 N. Y. 361. The right to a constitutional protection that the legal
particular mode of procedure is not a title would be. Wright v. Hawkins, 28
vested right. A
statute allowing attor- Tex. 452. Where an individual is al-
ney's fees may affect pending causes. lowed to recover a sum as a penalty, the
Drake v. Jordan, 73 Iowa, 707, 36 N. W. right may be taken away at any time be-
653. fore judgment. Pierce v. Kimball, 9 Me.
54, 23 Am. Dec. 537 Oriental Bank v.
2 It is not incompetent, however, to ;
compel the party instituting a suit to pay Freeze, 18 Me. 109 Engle v. Schurtz, 1
;
taxes on the legal process as a condition. Mich. 150; Confiscation Cases, 7 Wall.
Harrison v. Willis, 7 Heisk 35, 19 Am. 454; Washburn v. Franklin, 35 Barb.
Rep. 004. That right of action is prop- 599; Welch v. Wadsworth, 30 Conn. 149;
erty and cannot be made worthless by O'Kelly v. Athens Manuf. Co., 36 Ga.51 ;
legislative grant of property of one cor- United States v. Tynen, 11 Wall. 88;
poration to another, see Angle v. Chicago, Chicago & Alton R. R. Co. i?. Adler, 56
M. & St. P. R. Co., 151 U. S. 1, 14 Sup. III. 344; Van Inwagen
v. Chicago, 61 III.
3 Dash v. Van
Kleeck, 7 Johns. 477, p 547; but not after judgment. Dunham
5 Am. Dec. 291 Streubel v. Milwaukee
;
v. Anders, 128 N. C. 207, 38 S. E. 832.]
1 Aik 121 ; Keith v. Ware, 2 Vt. 174 ; pp. 536, 537. The legislature may re-
33 Mo. 287; Griffin v. Wilcox, 21 Ind. 399, 38 Am. Dec. 317. Whether claims
370 ; Norris v. Doniphan, 4 Met. (Ky.) arising in tort are protected against State
385; Terrill v. Rankin, 2 Bush, 453; Wil- legislation by the federal Constitution,
liar v. Baltimore, &c. Association, 45 Md. see State v. New Orleans, 32 La. Ann.
646 Dunlap v. Toledo, &c. Ry. Co., 50
; 709; Langford v. Fly, 7 Humph. 685;
Mich. 470, 15 N. W. 555. The legislature Parker v. Savage, 6 Lea, 406 Griffin v. ;
cannot interfere witli the enforcement of Wilcox, 21 Ind. 370 Johnson v. Jones,
;
" that
1
Thus, a person cannot be precluded 1863, which provided any order of
by test oaths from maintaining suits. the President or under his authority,
McFarland v. Butler, 8 Minn. 116; ante, made at any time during the existence of
p. 410,note. Before attacking a tax deed, the present rebellion, shall be a defence
payment of taxes and value of improve- in all courts, to any action or prosecution,
ments may be required. Coats v. Hill, civil or criminal, pending or to be com-
41 Ark. 149. See Coonradt v. Myers, 31 menced, for any search, seizure, arrest, or
Kan. 30,2 Pac. 858; Lombard v. Antioch imprisonment, made, done, or committed,
College, 60 Wis. 459, 19 N. W. 367. But or acts omitted to be done, under and by
free recourse to the courts denied, if a
is virtue of such order, or under color of any
deposit of double the amount of the pur- law of Congress," was held to be uncon-
chase-money and all taxes, &c., is required stitutional. The same decision was made
before suit. Lassiter v. Lee, 68 Ala. 287. in Johnson Jones, 44 111. 142. It was
v.
See post, pp. 526, 527, note. said in the first of these cases that " this
2 v. Mixon, 38 Miss. 424.
Griffin See act was passed to deprive the citizens of
next note. Also Rison v. Far'r, 24 Ark. all redress for illegal arrests and imprison-
161 Woodruff v. Scruggs, 27 Ark. 26
; ;
ment it was not needed as a protection
;
entered up against a defendant who has that Congress could not take away a
been served with process, unless within vested right to sue for and recover back
a certain number of days he files an affi- an illegal tax which had been paid under
davit of merits. Hunt v. Lucas, 97 Mass. protest to a collector of the national reve-
404. Nor by an ordinance allowing a city, nue. See also Bryan v. Walker, 64 N. C.
on default of the owner, to build a side- 141. Nor can
the right to have a void
walk and charge the property with the tax sale set aside be made conditional on
expense, if when sued on the tax bill, the payment of the illegal tax. Wilson
he has his day in court. Kansas City v. McKenna, 52 111. 43, and other cases
v. Huling, 87 Mo. 203. An act subjecting cited, post, p. 528, note. The case of Nor-
a prisoner's property from the time of his ris Doniphan, 4 Met. (Ky.) 385, may
v.
arrest to a lien for the fine and costs, is properly be cited in this connection. It
valid. Silver Bow Co. v. Strombaugh, 9 was there held that the act of Congress
Mont. 81, 22 Pac. 453. of July 17, 1862, " to suppress insurrec-
8 Griffin v.
Wilcox, 21 Ind. 370. In tion, to punish treason and rebellion, to
this case the act of Congress of March 3, seize and confiscate the property of
"
CH. XI.] PROTECTION BY THE LAW OF THE LAND." 519
rebels, and for other purposes," in so far held that the power which this law as-
as it undertook to authorize the confisca- sumed to confer was in the nature of a
tion of the property of citizens as a pun- public office ;
and Campbell, J., says " It
:
ishment for treason and oilier crimes, by is difficult to perceive by what process a
proceedings in rem in nny district in which public office can be obtained or exercised
the property might be, without present- without either election or appointment.
ment and indictment by a grand jury, The powers of government are parcelled
without arrest or summons of the owner, out by the Constitution, which certainly
and upon such evidence of his guilt only contemplates some official responsibility.
as would be proof of any fact in admi- Every officer not expressly exempted is
ralty or revenue cases, was unconsti- required to take an oath of office as
tutional and void, and therefore that a preliminary to discharging his duties.
Congress had no power to prohibit the It is absurd to suppose that any official
State courts from giving the owners of power can exist in any person by his own
property seized the relief they would be assumption, or by the employment ofsome
entitled to under the State laws. A other private person and still more so to
;
8 B. Monr. 648; State r. Prichard, 36 them, proceeds to sell the property seized
N. J. 101. The legislature cannot declare to pay them, with the added expense of
the forfeiture of an official salary for mis- such sale. These proceedings are all ex
conduct. Ex parte Tully, 4 Ark. 220, parte, and are all proceedings in invitnm.
38 Am. Dec. 33. Their validity must therefore be deter-
1 The
log-driving and booming cor- mined by the rules applicable to such
porations,which were authorized to be cases. Except in those cases where pro-
formed under a general law in Michigan, ceedings to collect the public revenue
were empowered, whenever logs or lum- may stand upon a peculiar footing of
ber were put into navigable streams with- their own, it is an inflexible principle of
out adequate force and means provided constitutional right that no person can
for preventing obstructions, to take charge legally be divested of his property with-
of the same, and cause it to be run, driven, out remuneration, or against his will,
boomed, &c., at the owner's expense and ; unless he is allowed a hearing before an
it gave them a lien on the same to satisfy impartial tribunal, where he may contest
all just and reasonable charges, with the claim set up against him, and be al-
power to the property for those
sell lowed to meet it on the law and the facts.
charges and for the expenses of sale, on When his property is wanted in specie,
notice, either served personally on the for public purposes, there are methods
owner, or posted as therein provided. In assured to him whereby its value can be
Ames v. Port Huron Log-Driving and ascertained. Where a debt or penalty or
Booming Co., 11 Mich. 139, 147, it was forfeiture may be set up against him, the
520 CONSTITUTIONAL LIMITATIONS. [CH. XI.
Limitation Laws.
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
presumed that the supposed wrong-doer has in such a length
it is
judicial question ;
and all judicial func- permitted to conceal the property on his
tions are required by the Constitution to own premises he is protected, though
;
be exercised by courts of justice, or judi- the trespass was due to his own conniv-
cial officers regularly chosen. He can ance or neglect he is permitted to take
;
only be reached through the forms of law what does not belong to him without
upon a regular hearing, unless he has by notice to owner, though that owner is
contract referred the matter to another near and known allowed to sell,
;
he is
tice of the seizure to a justice or commis- he may receive compensation for detain-
sioner of highways of the town, who ing it without the consent of the owner,
should proceed to sell the animal after and a fee of fifty cents for his services
posting notice. From the proceeds of the as an informer. He levies without pro-
sale, the officer was to retain his fees, pay cess,condemns without proof, and sells
the person taking up the animal fifty without execution." And he distinguishes
cents,and also compensation for keeping these proceedings from those in distrain-
it,and the balance to the owner, if lie ing cattle damage feasant, which are al-
should claim it within a year. In Rock- ways remedial, and under which the party
well Nearing, 35 N. Y. 307, 308, Porter,
v. isauthorized to detain the property in
J., says of this statute: "The legisla- pledge for the payment of his damages.
ture has no authority either to deprive See also opinion by Morgan, J., in the
the citizen of his property for other than same case, pp. 314-317, and the opinions
public purposes, or to authorize its seiz- of the several judges in Wynehamer v.
ure without process or warrant, by per- People, 13 N. Y. 395, 419, 434, and 468.
sons other than the owner, for the mere Compare Campbell v. Evans, 45 N. Y.
punishment of a private trespass. So far 356 Cook v. Gregg, 46 N. Y. 439 Grover
; ;
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. subsequent A
repeal of the limitation law could not be given a retroactive
effect, so as to disturb this title.* It is vested as completely and
and is as safe from legislative interference as it would
perfectly,
have been had it been perfected in the owner by grant, or by any
6
species of assurance.
able, and not favored ; but Mr. Justice Newby's Adm'rs v. Blakey, 3 H. & M. 67 ;
Story has well said, it has often been Parish v. Eager, 15 Wis. 532; Bagg's Ap-
matter of regret in modern times that the peal, 43 Pa. St. 512 Lefflugwell v. War-
;
decisions had not proceeded upon princi- ren, 2 Black, 599; Bicknell v. Comstock,
ples better adopted to carry into effect 113 U. S. 149, 5 Sup. Ct. Rep. 399. See
the real objects of the statute that in- ;
cases cited in next note. QA statute ex-
stead of being viewed in an unfavorable tending the time for filing a bill of excep-
light asan unjust and discreditable de- tions is held to be invalid as applied to
fence, had not received such support as
it cases in which judgment was rendered
would have made it what it was intended before its enactment. Johnson v. Geh-
but to afford security against stale de- James, 11 Mass. 396; Wright v. Oakley,
mands after the true state of the trans- 6 Met. 400; Lewis v. Webb, 3 Me. 326;
action may have been forgotten, or be Atkinson v. Dunlap, 50 Me. Ill Davis ;
incapable of explanation by reason of the v. Minor, 2 Miss. 183, 28 Am. Dec. 325;
Morrison, 1 Pet. 351, 360. See Leffing- v. Cleveland, 13 Wis. 245 Sprecker v.
;
well v. Warren, 2 Black, 599; Toll v. Wakeley, 11 Wis. 482; Pleasants v. Rohrer,
Wright, 37 Mich. 93. 17 Wis. 577 ; Moor v. Luce, 29 Pa. St. 260 ;
2 Call v.
Hagger, 8 Mass. 423. Morton v. Sharkey, McCahon (Kan.),
8 Beal v.
Nason, 14 Me. 344 ; Bell v. 113; McKinney v. Springer, 8 Blackf.
Morrison, 1 Pet. 351 Stearns v. Gittings,
; 506; Bradford v. Brooks, 2 Aik. 284, 16
23 111. 387; State v. Jones, 21 Md. 432. Am. Dec. 715 ; Stipp v. Brown, 2 Ind. 647 ;
522 CONSTITUTIONAL LIMITATIONS. [CH. XI.
Ex'rs, 13 Fla. 393, 7 Am. Rep. 239; Lock- McMerty v. Morrison, 62 Mo. 140; Good-
hart v.Horn, 1 Woods, 628; Horbach v. man v. Munks, 8 Port. (Ala.) 84 Harri- ;
Miller, 4 Neb. 31; Pitman v. Bump, 5Oreg. son v. Stacy, 6 Rob. (La.) 15; Baker v.
17; Thompson v. Read, 41 Iowa, 48 Re- ;
Stonebraker's Adm'r, 36 Mo. 338 Shelby ;
Holt, 115 U. S. 620, 6 Sup. Ct. Rep. 209, Mt-Kenzie, 7 Ga. 163 ;
Colman v. Holmes,
a similar ruling was made, though against 44 Ala. 124.
vigorous dissent. It was held that one
2 Stearns v
Gittings, 23 111. 387 ; Hill
has no property in the bar of the statute 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,
:
1
Groesbeck v. Seeley, 13 Mich. 329. and enjoys the property ? The old maxim
"
In Case v. Dean, 16 Mich. 12, it was held is, That which was originally void can-
that this statute could not be enforced as not by mere lapse of time be made
a limitation law in favor of tiie party in valid
" and if a void claim
; by force of
possession, inasmuch as it did not pro- an act of limitation can ripen into a con-
ceed on the idea of limiting the time for clusive title as against the owner in pos-
bringing suit, but by a conclusive rule of session, the policy underlying that species
evidence sought to pass over the property of legislation must be something beyond
to the claimant under the statutory sale what has been generally supposed.
in all cases, irrespective of possession. 2 So held of a statute which took ef-
See also Baker v. Kelly, 11 Minn. 480; fect some months after its passage, and
Eldridge v. Kuehl, 27 Iowa, 160, 173; which, in its operation upon certain
Monk v. Corbin, 58 Iowa, 503, 12 N. W. classes of cases, would have extinguished
671; Farrar v. Clark, 85 Ind. 449; Dingey adverse claims unless asserted by suit
v. Paxton, 60 Miss. 1038. The case of before the act took effect. Price v. Hop-
Leffingwell v. Warren, 2 Black, 599, is kin, 13 Mich. 318. See also Koshkonong
contra. That case follows Wisconsin de- v. Burton, 104 U. S. 668; King v. Bel-
Kricke, 11 Wis. 442, the holder of the Turner, 117 N. Y. 227, 22 N. E. 1022;
original title was not in possession and ;
Call Hagger, 8 Mass. 423; Proprietors,
v.
what was decided was that it was not &c. Laboree, 2 Me. 294 Society, &c.
v. ;
necessary for the holder of the tax title v. Wheeler, 2 Gall. 141; Blackford v.
the lands were unoccupied. See also 17 Wis. 573 Morton v. Sharkey, McCa-
;
stop the running of the statute it is not Met. (Ky.) 292; Ludwig v. Stewart, 32
necessary that the owner should be in Mich. 27 Hart v. Bostwick, 14 Fla. 162.
;
continuous possession. Smith v. Sherry, In the case last cited it was held that a
54 Wis. 114, 11 N. W. 465. This circum- statute which only allowed thirty days
stance of possession or want of posses- in which to bring action on an existing
sion in the person whose right is to be demand was unreasonable and void. And
extinguished seems to us of vital import- see what is said in Auld v Butcher, 2
ance. How can a man justly be held Kan. 135. Compare Davidson v. Law-
guilty of laches in not asserting claims rence, 49 Ga. 335; Kimbro i>. Bank of
to property, when he already possesses Fulton, 49 Ga. 419. In Terry v. Ander-
524 CONSTITUTIONAL LIMITATIONS. [CH. XL
supported was to one year where the Mich. 318 De Moss v. Newton, 31 Ind.
;
Watertown, 6 Biss. 79, Judge Hopkins, 245, 11 Sup. Ct. Rep. 76, and note in 34
U. S. District Judge, decided that a limi- L. ed. U. S. 659.3 But see Berry v.
tation of one year for bringing suits on mu- Ransdell, 4 Met. (Ky.) 292.
nicipal securities of a class generally sold It may be remarked here, that statutes
abroad was unreasonable and void. But of limitation do not apply to the State
a statute giving a new remedy against a unless they so provide expressly. Gibson
railroad company for an injury, may v. Choteau, 13 Wall. 92 State v. Piland,
;
limit to a short time, e. g. six months, the 81 Mo. 519 State v. School Dist., 34 Kan.
;
time for bringing suit. O'Bannon v. Louis- 237, 8 Pac. 208. [Nor is the defence of
ville, &c. R. R. Co., 8 Bush, 348. So the laches or stale claim good as against a
remedy by suit against stockholders for State or the United States. United States
corporate debts, it is held, may be lim- v. Dalles Military Road Co., 140 U. S.
ited to one year. Adamson v. Davis, 47 699, 11 Sup. Ct. Rep. 988. But a cred-
Mo. 268. QSix months is not an unrea- itor of the State cannot take advantage
sonably short time to which to limit the of the State's exemption where he seeks
assertion of all then existing claims to to subject debts due the State to the
lands hitherto sold for non-payment of satisfaction of his claim by means of
taxes. Turner v. New York, 168 U. S. garnishment proceedings. Cressey v.
90, 18 Sup. Ct. Rep. 38. Nine months Meyer, 138 U. S. 525, 11 Sup. Ct. Rep.
is not an unreasonably short time to al- 387.] And State limitation laws do not
low for bringing suit upon a judgment apply to the United States. United
rendered nearly twelve years before. States v. Hoar, 2 Mas. 311; People v.
Osborne v. Lindstrom, 9 N. D. 1, 81 Gilbert, 18 Johns. 227 ; Rabb v. Super-
N. W. 72, 46 L. R. A. 715. That statute visors, 62 Miss. 589 United States v.
;
must expressly provide a reasonable time Nashville, &c. Ry. Co., 118 U. S. 120,
to be open, after it goes into effect, and 6 Sup. Ct. Rep. 1006. [Although the
not merely after it is enacted, see Gilbert United States take advantage of
may
v. Ackerman, 159 N. Y. 118, 53 N.- E. them. Stanley Schwalhy, 147 U. S.
v.
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 Saunders, 12 Wheat. 213, 349
v. ;
Cowan v. McCutchen, 43 Miss. 207 Car- ;
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 subjectwhich 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- ;
ing his rights. Except in those cases which fall within the famil-
iar doctrine of estoppel at the common law, or other cases resting
1 Hand
Ballou, 12 N. Y. 541 Forbes
v. ; rule once established may be abolished,
v.Halsey, 26 N.Y. 63; Delaplainer. Cook, even as to existing Hickox v.
deeds.
1 Wis. 44 Allen v. Armstrong, 16 Iowa,
; Tallman, 38 Barb. 608 Strode v. Washer,
;
(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. statute, therefore, A
which should make a tax-deed conclusive evidence of a complete
title, and preclude the owner of the original title from showing its
Wis. 556; Allen v. Armstrong, 10 Iowa, requires that a party shall be properly
608. It may be conclusive as to matters brought into court, but that he shall
not essential and jurisdictional. Matter have the opportunity when in court to
of Lake, 40 La. Ann. 142, 3 So. 479; establish any fact which, according to
Ensign v. Barse, 107 N. Y. 329, 14 N. E. the usages of the common law or the pro-
400, 15 N. E. 401. Undoubtedly the leg- visions of the constitution, would be a
islature may dispense with mere matters protection to him or his property." See
of form in the proceedings as well after Taylor v. Miles, 6 Kan. 498, 7 Am. Rep.
competent for the legislature to compel 282, 22 N. E. 255. But a provision that
an owner of land to redeem it from a void six months after the passage of the act
tax sale as a condition on which he shall certain tax-deeds made on past sales
be allowed to assert his title against it. should be conclusive evidence, has been
Conway v. Cable, 37 111. 82; Hart v. Hen- upheld. People r. Turner, 117 N. Y. 227,
derson, 17 Mich. 218 Wilson t>. McKenna,
;
22 N. E. 1022. An act to authorize per-
62 111. 43 Reed v. Tyler, 66 III. 288 Dean
; ;
sons whose sheep are killed by dogs, to
t;. Borchsenius, 30 Wis. 236. But it seems present their claim to the selectmen of
that if the tax purchaser has paid taxes the town for allowance and payment by
and made improvements, the payment for the town, and giving the town after pay-
these may be made a condition precedent ment an action against the owner of the
to a suit in ejectment against him. Pope dog for the amount so paid, is void, aa
v. Macon, 23 Ark. 644. See cases ante. taking away trial by jury, and as author-
528 CONSTITUTIONAL LIMITATIONS. [CH. XI.
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 and cases cited. not be imposed on a railroad company for
Ante, p. 621, note,
8 Albertson Landon, 42 Conn. 209.
v. 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
Aldridge v. Railroad Co., 2 Stew. & Port. Ill; Rogers Greenbush, 58 Me. 395;
v.
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 99; Knight v. Begole,
111.
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 &c. R. R. Co., 62 111. 477 Harrison v.
Kleeck, 7 Johns. 477 ; ;
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.
;
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 {
effect may be given a statute, though the past transactions. Hamilton Co. Comm'rs
language does not render it necessary, v. Rasche, 60 Ohio
St. 103, 33 N. E. 408,
stitution of Missouri, in State v. Hernan, arose before passage, was held not a
its
70 Mo. 441 ; StaTe v. Greer, 78 Mo. 188. retrospective law within the meaning of
The provision covers only civil, not this clause. Fisher's Negroes r. Dobbs, 6
criminal cases. State Johnson, 81 Mo.
v. Yerg. 119. So of a law making a judg-
60. A statute, passed after a munici- ment against the principal conclusive
pality has levied a tax, may annul it be- upon the surety. Pickett v. Boyd, 11
fore it becomes due and put the right to Lea, 498. See further, Society v. Wheeler,
levy it in another body. State v. St. 2 Gall. 105 Officer v. Young, 5 Yerg. 320,
;
Louis, &c. Ry. Co., 79 Mo. 420. The 26 Am.Dec. 268. Under like provision
Constitution of Ohio provides that " the in the Colorado Constitution a statute is
General Assembly shall have no power to void which allows a writ of error on a (
ing omissions, defects, and errors in in- That the legislature cannot retrospec-
struments and proceedings, arising out tively construe statutes and bind parties
of their want of conformity with the thereby, see ante., p. 134 et seq.
l
organization or elections of corporations ; irregularities in the ,
Forster v. Forster, 129 Mass. 559. Acts U. S. 447. By the Constitution of Mis-
of officers void for jurisdictional defects souri, the legislatureis forbidden to legal-
ceived by a township on a sale of land Wisconsin Cent. R. R. Co., 121 Mass. 460;
for an illegal tax. Darnells v. Water- Cookerly v. Duncan, 87 Ind. 332; Muncie
town, 61 Mich. 514, 28 N. W. 673. The Nat. Bank v. Miller, 91 Ind. 441 ;
Johnson,
right to provide for a reassessment of v. Corn'rs Wells Co., 107 Ind. 15, 8 N. E.
taxes irregularly levied is undoubted. 1. See cases post, 546, note 2.
(a) QBut this rule must be applied with discretion; e.g , the legislature could not
provide, after a sale had been made under notice not sufficiently long to satisfy the
532 CONSTITUTIONAL LIMITATIONS. [CH. XL
statute then in existence, that the shorter notice should be sufficient, though it might
originally have made the shorter period sufficient. See Finlayson v. Peterson, 5
N. D. 587, 67 N. W. 953, 33 L. R. A. 532, 57 Am. St. 584 also Lowe v. Harris, 112 N. C.
;
472, 17 S. E. 539, 22 L. R. A. 379, and note. Nor can the legislature supersede the
necessity for allowing a party a hearing before decreeing a sale of his property.
Roclie v. Waters, 72 Md. 264, 19 Atl. 535, 7 L. R. A. 533. While the legislature
may validate a levy of taxes void for some irregularity, as insufficient notice, &c., it
cannot validate n sale and tax deed based upon such void levy. Dever v. Cornwell,
10 N. D. 123, 86 N. W. 227. Where an election was void for lack of authority to
hold it, the legislature cannot subsequently empower a board of education to borrow
money with the assent of two-thirds of the voters voting at an election, and declare
the preceding election sufficient, although that precise proposition was the one sub-
mitted. Berkley v. Bd. of Education, 22 Ky. 638, 58 S. W. 506.]
CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 533
for receiving more than his legal fees was at the same time left
unaffected. In the leading case the court say " The law, un- :
see State v. Adams, 65 N. C. 537, where ture may legitimize children, see Andrews
it was held that the act validating the v. Page, 3 Heisk. 653. The power to
previous marriages of slaves was effectual, validate void marriages held not to exist
and a subsequent marriage in disregard in the legislature where, by the constitu-
of it would be bigamy. The legislature tion, the whole subject was referred to
may remove after a marriage a disability the courts. White v. White, 105 Mass,
created by its former action. Baity v. 325.
l
Cranfll, 91 N. C. 293. That the legisla- 1 Watts, 300.
"
CH. XI.] PROTECTION BY THE LAW OF THE LAND." 535
therefore the said act authorized the said trustee to bring suits
on the said bonds, bills, notes, &c., and declared it should not be
lawful for the defendants in such suits " to plead, set up, or insist
upon, in defence, that the notes, bonds, bills, or other written
evidences of such indebtedness are void on account of being con-
tracts against or in violation of any statute law of this State, or
on account of their being contrary to public policy." This law
was sustained as a law "that contracts may be enforced," and as
in furtherance of equityand good morals. 2 The original invalid-
1
Schenley v. Commonwealth, 36 Pa. ratifyand confirm an illegally appointed
St. 29, 67. See also State v. Newark, '2.1 corporate body that it has to create a
N. J. 185 ; Den v. Downam, 13 N. J. 135; new one. Mitchell v. Deeds, 49 III. 416.
Grim 2 Lewis v.
Peoples Seymour, 16 Cal. 332; v. McElvain, 1G Ohio. 347.
Weissenburg School District, 67 Pa. But where an act is forbidden by statute
St. 433 ;
State v. Union, 33 N. J. 350. under penalty, and therefore illegal, the
The legislature has the same power to mere repeal of the statute will not legal-
fa) gutter v. Franklin, 172 U. S. 416, 19 Sup. Ct. Rep. 183. See also Erskine v.
Nelson Co., 4 N. D. 66, 68 N. \V. 348, 27 L. R. A. 696, and note Shields v. Cliftoa ;
itywas only because of the statute, and that statute was founded
upon reasons of public policy which had either ceased to be of
force, or which the legislature regarded as overborne by counter-
vailing reasons. Under these circumstances it was reasonable
and just that the makers of such paper should be precluded from
1
relying upon such invalidity.
By a statute of Connecticut, where loans of money were made,
and a bonus was paid by the borrower over and beyond the inter-
est and bonus permitted by law, the demand was subject to a de-
duction from the principal of all the interest and bonus paid. A
construction appears to have been put upon this statute by busi-
ness men which was different from that afterwards given by the
courts and a large number of contracts of loan were in conse-
;
wards repealed, and action was brought ants say there was no contract, when the
against bankers on notes previously is- plaintiffproduces their written engage-
eued. Objection being taken that the ment for the performanceof a duty,
legislature could not validate the void binding in conscience if not in law ? Al-
contracts, the judge says: "I will con- though the contract, for reasons of policy,
aider this case on the broad ground of was so far void that an action could not
the contract having been void when be sustained on yet a moral obligation
it,
made, and of no new contract having to perform it, whenever those reasons
arisen since the repealing act. But by ceased, remained ; and it would be going
rendering the contract void it was not an- very far to say that the legislature may
nihilated. The object of the [original] not add a legal sanction to that obliga-
act was not to vest any right in any un- tion, on account of some fancied consti-
lawful banking association, but directly tutional restriction." Hess v. Werts, 4
the reverse. The motive was not to S. & 11. 356, 361. See also Bleakney v.
149; Wood v. Kennedy, 19 Ind. 68; 108 U. S. 477, 2 Sup. Ct. Rep. 940; Lessee
Washburn v. Franklin, 85 Barb. 699; of Dulany v. Tilghman, 6 G. & J. 461;
Parmelee v. Lawrence, 48 111. 331; Dan- Payne v. Treadwell, 16 Cal. 220; Maxey
ville v. Pace, 25 Gratt. 1. The case of v. Wise, 26 Ind. 1.
Gilliland v. Phillips, 1 S. C. 152, is contra;
538 CONSTITUTIONAL LIMITATIONS. [CH. XL
1 Chestnut
v. Shane's Lessee, 16 Ohio, cannot be validated by retro-
effectual,
699, overruling Connell v. Connell, 6 spective statute, because to do so would
Ohio, 358 Good c Zercher, 12 Ohio, 364
; ; be to take from the woman a vested right.
Meddock v. Williams, 12 Ohio, 377 and ;
Russell v. Rumsey, 35 111. 362.
which the court approve in 16 Ohio, 609- Barnet r. Barnet, 15 S. & R. 72, 16 Am.
" That Dec. 516 Tate v. Stooltzfoos, 16 S. & R.
610, they say :
opinion stands ;
upon the ground that the act operates 35, 16 Am. Dec. 546 Watson v. Mercer,
;
enough had been done to show that a How. 456; Davis v. State Bank, 7 Inl.
court of chancery ought, in eacli case, to 816; Estate of Sticknoth, 7 Nev. 227;
render a decree for a conveyance, assum- Ferguson v. Williams, 68 Iowa, 717, 13
ing that the certificate was not such as N. W.. 49; Johnson v. Taylor, 60 Tex.
the law required. And where the title 860 Johnson v. Richardson, 44 Ark. 365
; ;
in equity was such that a court of chan- Goshorn v. Purcell, 11 Ohio St. 641. In
"
The act of
cery ought to interfere and decree a good the last case the court say :
legal title, it was within the power of the the married woman may, under the law,
legislature to confirm the deed, without have been void and inoperative but in ;
subjecting an indefinite number to the justice and equity it did not leave her
useless expense of unnec essary litigation." right to the property untouched. She
See also Lessee of Dulany v. Tilghman, had capacity to do the act in a form pre-
6 G. & J. 461; Journeay v. Gibson, 56 scribed by law for her protection. She
Pa. St. 67 ; Grove v. Todd, 41 Md. 633, intended to do the act in the prescribed
20 Am. Rep. 76 Montgomery v. Hobson,
;
form. She attempted to do it, and her
Meigs, 437. QMay validate a defective attempt was received and acted on in
acknowledgment. Summer v. Mitchell, good faith. A mistake subsequently dis-
29 Fla. 179, 10 So. 662, 14 L. R. A. 815, covered invalidates the act; justice and
30 Am. St. 106.] But the legislature, it equity require that she should not take
has been declared, has no power to legal- advantage of that mistake and she has
;
ize and make valid the deed of an insane therefore no just right to the property.
person. Routsong v. Wolf, 35 Mo. 174. She has no right to complain if the law
In Illinois it has been decided that a deed which prescribed forms for her protec-
of release of dower executed by a married tion shall interfere to prevent her reli-
woman, but not so acknowledged as to be ance upon them to resist the demands of
"
CH. XI.] PROTECTION BY THE LAW OF THE LAND." 539
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
4
equity of the case."
The operation of these cases, however, must be carefully re-
stricted to the parties to the original contract, and to such other
8 Foster v. Essex
justice." Similar language is employed 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 Smith, 1 Wash. Ter. 369.
v. 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.
35 362 Alabama, &c. Ins. Co. v. Boy- *
111. ;
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
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 inany case in which a defective con-
cannot validate an invalid trust in a will, tract made good but this is no more
is ;
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.
2
Snyder v. Bull, 17 Pa. St. 64; McCar- 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 principle on which retrospective laws are
property under a devise, with an express supported was stated long ago by Duncan,
restraint upon her power to alienate. J., in Underwood v. Lilly, 10 S. & K. 101 ;
so, though she failed at law. They can- in which statutes authorizing the reassess-
not complain, therefore, that the legisla- ment of irregular taxes were sustained.
ture intervenes to do justice. But the In this case, Paine, J., says " This rule :
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
37, it appeared that the city of Milwaukee to divest settled right of property, and
had been authorized to contract for the to take the property of one individual or
construction of a harbor, at an expense corporation and transfer it to another."
not to exceed $100,000. contract was A This reasoning is of course to be under-
entered into by the city providing for a stood in the light of the particular case
larger expenditure and a special legisla-
; before the court that is to say, a case in
;
tive act was afterwards obtained to ratify which the contract was to do something
it. The court held that the subsequent not within the ordinary functions of local
legislative ratification was not sufficient, government. See the case explained and
proprio viyore, and without evidence that defended by the same eminent judge in
such ratification was procured with the Mills v. Charlton, 29 Wis. 400. Compare
assent of the city, or had been subse- Fisk v. Kenosha, 26 Wis. 23, 33 Knapp ;
quently acted upon or confirmed by it, to v. Grant, 27 Wis. 147 and Single v.
;
make the contract obligatory upon the Supervisors of Marathon, 38 Wis. 363, in
city. The court say, per Dixon, Cli. J. : which the right to validate a contract
" The which might
question is, can the legislature, by originally have been author-
CH. XL] PROTECTION BY "THE LAW OF THE LAND." 543
stands, not when the suit was brought, but when the judgment
2
is rendered. It has been held that a statute allowing amend-
ized was fully affirmed. And see Mar- the sum mentioned being the increased
shall Silliman, 61 111. 218, 225, opinion
v. expense in consequence of the change.
by Chief Justice Lawrence, in which, after Afterwards the legislature, deeming the
referring to Harward v. St. Glair, &c. debt thus contracted by individuals un-
Drainage Co., 51 111. 130 ; People v. Mayor reasonably partial and onerous, passed
of Chicago, 51 111. 17 Hessler v. Drainage
;
an act, tha object of which was to levy
Com'rs, 53 111. 105 ;
and Lovingston v. the amount on the owners of real estate
"
Wider, 53 111. 302, it is said, These .
in Utica. This act seemed to the court
"
cases show it to be the settled doctrine of unobjectionable. The general purpose
this court, that,under the constitution of of raising the money by tax was to con-
1848, the legislature could not compel a struct a canal, a public highway, which
municipal corporation to incur a debt for the legislature believed would be a benefit
merely local purposes, against its own to the city of Utica as such ; and inde-
wishes, and this doctrine, as already re- pendently of the bond, the case is the
marked, has received the sanction of ordinary one of local taxation to make or
express enactment in our existing consti- improve a highway. If such an act be
tution. That was the effect of the cura- otherwise constitutional, we do not see
tive act under consideration, and it was how the circumstance that a bond had
therefore void." The cases of Guilford v. before been given securing the same
Supervisors of Chenango, 18 Barb. 615, money can detract from its validity.
and 13 N. Y. 143 Brewster v. Syracuse, ; Should an individual volunteer to secure
19 N. Y. 116; and Thomas v. Leland, 24 a sum of money, in itself properly levi-
Wend. 65, especially, go much further able, by way of tax on a town or county,
than necessary to sustain the text. See
is there would be nothing in the nature of
also Bartholomew v. Harwinton, 33 Conn. such an arrangement which would pre-
408 ;People v. Mitchell, 35 N. Y. 551 ; clude the legislature from resorting, by
Barbour v. Camden, 51 Me. 608 Weister ; way of tax, to those who are primarily
v. Hade, 52 Pa. St. 474 State v. Sulli- ;
and more justly liable. Even should he
van, 43 111. 412 Johnson v. Campbell, 49
; pay the money, what is there in the con-
111. 316. In Brewster v. Syracuse, parties stitution to preclude his being reimbursed
"
had constructed a sewer for the city at by a tax ? Here, it will be perceived,
a stipulated price which had been fully the corporation was compelled to assume
paid to them. The charter of the city an obligation which it had not even at-
forbade the payment of extra compen- tempted to incur, but which private per-
sation to contractors in any case. The sons, for considerations which seemed to
legislature afterwards passed an act em- them sufficient, had taken upon their own
powering the Common
Council of Syra- shoulders. We have expressed doubts
cuse to assess, collect, and pay over the of the correctness of this decision, ante,
further sum of $600 in addition to the p. 338, note, where a number of cases are
contract price and this act was held con-
; cited,bearing upon the point.
stitutional. In Thomas v. Leland, certain 1 Bacon
v. Callender, 6 Mass. 303;
partieshad given bond to the State, con- Butler v. Palmer, 1 Hill, 324; Cowgill v.
ditioned to pay into the treasury a cer- Long, 15 111. 202; Miller v. Graham, 17
tain sum of money as an inducement to Ohio St. 1 State v. Squires, 26 Iowa,
;
the State to connect the ChenaiiKO Canal 340 Patterson v. Philbrook, 9 Mass. 151.
;
2 Watson r.
with the Erie at Utica, instead of at Mercer, 8 Pet. 88 Mather
;
44 Ark. 365. See cases, p. 539, note 1, Duaue, 1 Binney, 601 United States v.;
recover in her own name for personal v.Marshall, 11 Pick. 350; Commonwealth
injury, may apply to a pending action. v Kimball, 21 Pick. 373; Hartung v.
McLimans v. Lancaster, 63 Wis. 596, 23 People, 22 N. Y. 95; Union Iron Co.
N. W. 689, following Weldon v. Winslow, v. Pierce, 4 Biss. 327 Norris v. Crocker,
;
tra, Wright t>. Graham, 42 Ark. 140. In incurred may still be collected. Sturgis
Yeaton v. United States, 5Cranch, 281, a v. Spofford, 45 N. Y. 446. And see Peo-
vessel had been condemned in admiralty, ple v. Hobson, 48 Mich. 27, 11 N. W. 771.
and pending an appeal the act under L~Refusal to pay alimony may be by
which the condemnation was declared was statute made a contempt of court, pun-
repealed. The court held that the cause ishable by imprisonment, and as this
must be considered as if no sentence had affects the remedy only it may operate
been pronounced and if no sentence had
; retrospectively. Judd v. Judd, 125 Mich.
been pronounced, then, after the expira- 228, 84 N. W. 134.J
tion or repeal of the law, no penalty could
"
CH. XI.] PROTECTION BY THE LAW OF THE LAND." 545
rately, opposite each parcel of land on the roll, the taxes charged
upon such parcel, as required by law a failure in the supervisor ;
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
;
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
;
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
; ;
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 them. 1
In like manner, exemptions from
to require
taxation always subject to recall, when they have been
are
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
4
period has elapsed. 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
;
1
Commonwealth v.
Bird, 12 Mass. 443; Owensboro, 173 U S. \3\U,<$up. Ct.
Swindle Brooks, 84 Ga. 67 Mayer, Ex
v. ; Rep. 530, 571.] WVAfcS
3 Bull v.
Conroe, 13
'v-'W*
parte, 27 Tex. 715; Bragg v. People, 78
* See
111. 828; Moore v. Cass, 10 Kan. 288; ante, pp. 399-4
Murphy v. People, 37 111. 447; State v.
5
Oriental Bank v. Freeze, 18 Me. 109.
Miller, 2 Blackf. 35; State Quimby, v. 51 The statute authorized the plaintiff, su-
Me. 395; State v. Wright, 53 Me. 328; ing for a breach of a prison bond, to re-
State v. Forshner, 43 N. H. 89 Dunlap ;
cover the amount of his judgment and
v. State, 76 Ala. 460; Ex parte Thomp- costs. This was regarded by the court
son, 20 Fla. 887. And see Dale v. The as in the nature of a penalty and it was
;
Consequential Injuries.
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
6
present no impediment. 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.
6
3 Pratt v.
Brown, 3 Wis. 603. But if 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
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.,
firstfranchise, 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 second 2
in granting the ; the 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 an early day an act was passed to compel the owners
at
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-
feita 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
;
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-
" The action
plained the principle of these statutes as follows :
from the civil law, where ample provision was made for reimburs-
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-
ple of natural justice and equity viz., that the occupant in good
;
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
Armstrong v. Jackson, 1 Blackf. 374 ; depend upon the time when the improve-
Fowler v. Halbert, 4 Bibb, 54 Withington ;
ments were made. See Davis's Lessee
.
Corey, 2 N". H. 115; Bacon v. Callen- v. Powell, 13 Ohio, 308. In Childs v.
note says the question was really not the transfer of the fee in the land to the
involved. Mr. Justice Story held in So- occupying claimant, without the consent
ciety, &c. v. Wheeler, 2 Gall. 105, that of the owner, is a palpable invasion of
such a law could not constitutionally be the right of private property, and clearly
made to apply to improvements made in conflict with the Constitution."
before its passage but this decision was
;
1
In Harris v. Inhabitants of Marble-
made under the New Hampshire Consti- head, 10 Gray, 40, it was held that the
tution, which forbade retrospective laws. betterment law did not apply to a town
554 CONSTITUTIONAL LIMITATIONS. [CH. XI.
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.
;
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
road companies. Missouri Pac. Ry. Co. v. Chicago, M. & St. P. Ry. Co., 60 Minn.
Mackeye, 33 Kan. 298, 6 Pac. 291. A 100, 61 N. W. 814, 31 L. R. A. 553 Title ;
police regulation, affecting all railroads, Guaranty Co. r. Wrenn, 35 Oreg. 62, 56
to enforce a quicker delivery of freight Pac. 271, 76 Am. St. 454.]
is valid. Little Rock, &c. Ry. Co. v. 1
The sixth section of the Metropoli-
Hanniford, 49 Ark. 291, 5 S. W. 294. [A tan Police Law of Baltimore (1859) pro-
statute rendering telegraph companies vided that " no Black Republican, or in-
liable for mental anguish caused by fail- dorser or supporter of the Helper book,
ure to promptly transmit and deliver "
shall be appointed to any office under
messages does not deprive them of prop- the Board of Police which it established.
erty without due process of law or deny This was claimed to he unconstitutional,
them the equal protection of the law. as introducing into legislation the princi-
parently conira.]
CH. XI.] PROTECTION BY "THE LAW OF TI1E LAND." 557
pie of proscription for the sake of politi- 58 Ala. 190, 29 Am. Rep. 739; Kinney's
cal opinion, which was directly opposed Case, 30 Gratt. 858 Frasher v. State, 3
;
to the cardinal principles on which the Tex. App. 263, 30 Am. Rep. 131 Lonas v. ;
Constitution was founded. The court State, 3 Heisk. 287, 1 Green, Cr. R. 452 ;
dismissed the objection in the following Ex rel. Hobbs & Johnson, 1 Woods, 537 ;
"
words That portion of the sixth sec-
: Ex parte Kinney, 3 Hughes, 9; Ex parte
tion which relates to Black Republicans, Francois, 3 Woods, 367. FjThe exclusion
&c., is obnoxious to the objection urged of colored persons from a jury on account
against it, if we are to consider that class of color violates the constitutional provi-
of persons as proscribed on account of sion for the protection of civil rights.
their political or religious opinions. But State v.Peoples, 131 N. C. 784, 42 S. E.
we cannot understand, officially, who are 814.] also said colored children
It is
meant to be affected by the proviso, and may be required to attend separate
therefore cannot express a judicial opinion schools, if impartial provision is made for
on the question." Baltimore c. State, 15 their instruction. State v. Duffy, 7 Nev.
Md. 376, 4(58, 484. This does not seem to 342, 8 Am. Rep. 713; Cory v. Carter, 48
be a very satisfactory disposition of so Ind. 327 Ward v. Flood, 48 Cal. 36 ;
;
cial notice of the fact that the electors of tonneau v. School Directors, 3 Woods,
the country are divided into parties with 177. But some States forbid this. People
well-known designations cannot be v. Board of Education, 18 Mich. 400;
doubted and when one of these is pro-
;
Clark v. Board of Directors, 24 Iowa,
scribed by a name
familiarly applied to 266; Dove v. School District, 41 Iowa,
it by opponents, the inference that it
its 689; Chase v. Stephenson, 71 111. 383;
is done because of political opinion seems People v. Board of Education of Quincy,
to be too conclusive to need further sup- 101 111. 308 Board of Education v. Tin-
;
port than that which is found in the act non, 26 Kan. 1 Pierce v. Union Dist., 46
;
itself. And we know no reason why N. J. L. 76 Kaine v. Com., 101 Pa. St. 490.
;
courts should decline to take notice of See Dawson v. Lee, 83 Ky. 49. And
these facts of general notoriety, which, when separate schools are not established
like the names of political parties, are a for colored children, they are entitled to
part of the public history of the times. admission to the other public schools.
A statute requiring causes in which the State v. Duffy, supra. Where separate
venue has been changed to be remanded schools are allowed, property of whites
on the affidavits of three unconditional cannot be taxed for white schools alone,
Union men, that justice can be had in and of negroes for negro schools. Puitt
the courts where it originated, held void, v.Com'rs, 94 N. C. 709; Clay brook v.
on the principles stated in the text, in Owensboro, 16 Fed. Rep. 297.
Brown v. Haywood, 4 Heisk. 357.
i Lin
Sing v. Washburn, 20 Cal. 534 ;
It has been decided that State laws Brown r. Haywood, 4 Heisk. 357. A San
forbidding the intermarriage of whites and Francisco ordinance required every male
blacks are such police regulations as are person imprisoned in the county jail to
entirely within the power of the States, have his hair cut to an uniform length of
notwithstanding the provisions of the one inch. This was held invalid, as be-
new amendments to the federal Constitu- ing directed specially against the Chinese.
tion. State v. Jackson, 80 Mo. 175 State ;
Ah Kow Nonan, 5 Sawyer, 652. See
v.
v. Gibson, 36 Ind. 389, 10 Am. Rep. 42; Tick Wo Hopkins, 118 U. S 356, 6
v.
State v. Hairston, 63 N. C. 451 ; State v. Sup. Ct. Rep. 1064. QA statute defining
"
Kenny, 76 N. C. 251, 22 Am. Rep. 683; a " tramp and prescribing a heavier
Ellis r. State, 42 Ala. 525 ;
Green v. State, punishment for certain criminal conduct
558 CONSTITUTIONAL LIMITATIONS. [CH. XI.
of such persons than is attached to simi- erty taxed to be protected by the meas-
lar conduct of others is not invalid for ures provided out of the proceeds of such
that reason. It is uniform in its applica- taxes. Atchison, T. & S. F. R. Co. v.
tion to within the class.
all State v. Clark, 60 Kan. 826, 58 Pac. 477, 47 L. R.
Hogan, 63 Ohio, 202, 58 N. E. 672, 62 A. 77. The recent "department store"
L. R. A. 863. See post, 837, a. Upon some form in several
legislation enacted in
question of special legislation see Arms of the StHtes has been before the courts
v. Ayer, 192 111. 601, 61 N. E. 851, 85 in several cases, and has generally been
Am. St. 357.] In Louisiana an ordi- overturned as an arbitrary and unreason-
nance forbidding the sale of goods on able restraint upon the freedom to con-
Sunday, but excepting from its opera- tract, as an attempt to use the police
tion those keeping their places of business power ofthe State where there is no
closed on Saturday, was held partial and occasion for its exercise, and as denying
therefore unconstitutional. Shreveport property rights to one class in the com-
v. Levy, 26 La. Ann. 671, 21 Am. Rep. munity, permitted to others. Chicago v.
653. A Sunday closing law is not une- Netcher, 183 III. 104, 65 N. E. 707, 75
qual because it excepts certain business Am. St. 93 State ex rcl. Wyatt v. Ash-
;
as necessary. Lieberman v State, 26 Neb. brook, 154 Mo. 375, 55 S. W. 627, 77 Am.
464, 42 N. W. 419. A liquor seller may St. 765, 48 L. R. A. 265.]
not be forbidden to sign the bond of an- 1 The statute of
limitations cannot be
other liquor seller. Kulm v. Common suspended in particular cases while al-
Council, 70 Mich. 534, 38 N. W. 470. lowed to remain in force generally. Hoi-
Nor may the right to sell liquor, where den v. James, 11 Mass. 396; Davison v.
a lawful business, be made dependent on Johonnot, 7 Met. 388. See ante, p. 521,
the caprice or private judgment of the note. The general exemption laws can-
board which approves the sellers' bond. not be varied for particular cases or local-
People v. Haug, 68 Mich. 549, 37 N. W. ities. Bull v. Conroe, 13 Wis. 233, 244.
21. Keeping open after legal hours can- The legislature, when forbidden to grant
not be declared a breach of the peace for divorces, cannot pass special acts author-
which an arrest may be made without a izing the courts to grant divorces in par-
warrant. Id. There is no reas.on, how- ticular cases for causes not recognized in
ever, why the law should not take notice the general law. Teft v. Teft, 3 Mich.
of peculiar views held by some classes of 67 Simonds v. Simonds, 103 Mass. 672.
;
people, which unfit them for certain pub- See, for the same principle, Alter's Ap-
lic duties, and excuse them from the The authority in
peal, 67 Pa. St. 341.
performance of such duties as Quakers
; emergencies to suspend the civil laws
are excused from military duty, and per- in a part of the State only, by a declara-
sons denying the right to inflict capital tion of martial law, we do not call in
punishment are excluded from juries in question by anything here stated. Nor
capital cases. These, however, are in in what we have here said do we have
the nature of exemptions, and they rest any reference to suspensions of the laws
upon considerations of obvious necessity. generally, or of any particular law, under
fjA fire tax upon property is void as to the extraordinary circumstances of re-
railroads unless their property accorded is bellion or war.
equality of opportunity with other prop-
CH. XT.] PROTECTION BY "THE LAW OF THE LAND.' 559
1
Locke on Civil Government, 142; Gordon, such a proviso would receive
State Duffy, 7 Nev. 349 Strauder v.
v. ; the sanction or even the countenance of
W. Virginia, 100 U. S. 303 Bernier v.
;
a court of law ? And how does the sup-
Kussell, 89 111. 60. [This principle is not posed case differ from the present ? A
to be carried so far as to put all persons resolve passed after the general law can
on an equality as to rights which are not produce only the same effect as such pro-
natural rights. So though there be a viso. In fact, neither can have any legal
statute providing that the masculine shall operation." See also Durham v. Lewis-
include all genders, a woman is not enti- ton, 4 Me. 140; Holden v. James, 11 Mass.
tled to admission to the bar under a stat- 396 Piquet, Appellant, 6 Pick. 65; Budd
;
ute providing thnt"any male citizen," v. State, 3 Humph. 483 Van Zant v. Wad-
;
admitted, and such statute is valid. Re Cal. 135; Davis v. Menasha, 21 Wis.491 ;
Maddox, 93 Md. 727, 50 All. 487, 55 Lancaster r. Barr, 25 Wis. 560; Brown
L. R. A. 298, and cases cited in note.] v. Haywood,4 Heisk. 357 Wally's Heirs
;
tion to enact a special law, or pass a re- and every partial or private law, which
solve dispensing with the general law in directly proposes to destroy or affect in-
a particular case, and granting a privilege dividual rights, or does the same thing
and indulgence to one man, by way of by affording remedies leading to similar
exemption from the operation and effect consequences, is unconstitutional and void.
of such general law, leaving all other per- Were it otherwise, odious individuals and
sons under its operation. Such a law is corporations would be governed by one
neither just nor reasonable in its conse- law ; the mass of the community and
quences. It is our boast that we live those who made the law, by another;
under a government of laws, and not of whereas the like general law affecting
men but this can hardly be deemed a
;
the whole community equally could not
blessing, unless those laws have for their have been passed." Special burdens can-
immovable basis the great principles of not be laid upon a particular class in the
constitutional equality. Can it be sup- community. Millett v. People, 117 111.
posed for a moment that, if the legisla- 294, 7 N. E. 631. Miners and manufac-
ture should pass a general law, and add turers alone cannot be forbidden to pay
a section by way of proviso, that it never in store State v. Goodwill, 38
orders.
should be construed to have any opera- W. Va. 179, 10 S. E. 285. See, also,
tion or effect
upon the persons, rights, or Godcharles v. Wigeman, 113 Pa. St. 431,
property of Archelaus Lewis or John 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
1
obligations of particular parties ; and those cases in which legis-
lative acts granting new trials or other special relief in judicial
any corporation that fails to pay its labor- [The legislature cannot restrict the power
"
ers monthly, a lien on all tlie property of the courts to determine whether the
of said corporation . . . which lien shall facts ina case coming before the court
take preference over all other liens ex- amount to negligence or not, nor can it
cept duly recorded mortgages or deeds make the failure of a railroad commis-
of trust," and in addition " a reasonable sioner to require a flagman to be sta-
" tioned at a railway crossing conclusive
attorney's fee upon suit brought there-
under, is void as involving an uncon- that the failure of the railway company
stitutional discrimination. Johnson v. to station one there is not negligence.
Goodyear Mining Co., 127 Cal. 4, 59 Pac. Grand Trunk R. Co. v. Ives, 144 U. S. 408,
304, 47 L. R. A. 338 ;
and see other cases 12 Sup. Ct. Rep. 679J And physicians
pro and con in notes on equal protection on who have not a diploma and have not
pp. 15 and 560, ante and post. A statute practised a certain time in the State may
making unlawful to prevent or attempt
it be required to take out a license. State
to prevent an employee from joining any v. Green, 112 Ind. 462, 14 N. E. 352;
lawful labor organization, or to discharge People Phippen, 70 Mich. 6, 37 N. W.
v.
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
Rep. 431 Brown & Allen v. Jacobs Pharmacy Co., 115 Ga. 429, 41 So. 553, 67 L.
;
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
;
trade and travel for their own benefit. Re Lowe, 54 Kan. 757, 39 Pac. 710, 27
The State, it is said, can no more tax the L. R. A. 545; upon such contracts, see
community to set one class of men up in note in 27 L. R. A. 540. The question
business than another can no more sub-
; of equality of protection and privilege
sidize one occupation than another; can under the Constitution was before the
no more make donations to the men who Supreme Court of the United States in
build and own railroads in consideration Connolly v. Union Sewer-Pipe Co., 184
of expected incidental benefits, than it U. S. 540, 22 Sup. Ct. Rep. 431, and in
can make them to the men who build speaking of an anti-trust statute of Illi-
stores or manufactories in consideration nois which exempted from its operation
of similar expected benefits. People v. producers of agricultural products and
Township Board of Salem, 20 Mich. 452. raisers of live that court said
stock, :
28 Mich. 344. In State v. Mayor, &c. of enacting laws, may, in its discretion, make -
a society had been exempted from " taxes ^/classification must always rest upon some
and assessments ;'' and it was held that difference which bears a reasonable and
only the ordinary public taxes were meant, just relation to the act in respect to which
and the property might be subjected to the classification is proposed and can
local assessments for municipal purposes. never be made arbitrarily and without
State grants are not exclusive unless any such basis. But arbitrary selec-
. . .
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- poses to which it is addressed. Classifi-
visions intended to secure that equality cation for such purposes is not invalid,
of rights which is the security of free because not depending on scientific or
government. ... It is apparent that marked differences in things or persons
the mere fact of classification not suffi- is or their relations. It suffices if it is prac- X
cient to relieve a statute from the reach tical, and is not reviewable unless palpa- \
of the equality clause of the Fourteenth bly arbitrary." In Boorum v. Connelly, /
Amendment, and that in all cases it must 66 N. 3. L. 197, 48 Atl. 955, 88 Am. St.
appear, not only that a classification has 469, it is held, upon the authority of Van
been made, but also that it is one based Riper v. Parsons, 40 N. J. L. 123, and
upon some reasonable ground some Rutgers Mayor of Brunswick, 42 N. J. L.
v.
difference which bears a just and proper 51, that "a law framed in general terms,
relation to the attempted classification, restricted to no locality, and operating
and not a mere arbitrary selection."
is equally upon all of a group of objects
The Connolly case is followed in People which, having regard to the purpose of
v. Butler St. F. & I. Co., 111. ,
66 N. E. the legislation, are distinguished by char-
349. The prior cases on the validity of acteristics sufficiently marked and im-
legislation affecting different classes dif- portant to make them a class by them-
ferently are cited in the opinion, and selves, not a special or local law,
is
the objection of class legislation. In the L. R. A. 763, 82 Am. St. 489. It may be
opinion, Fidelity Mut. L. Ins. Asso. v. noted that this case is not authority for
Mettler, 185 U. S. 308, 22 Sup. Ct. Rep. the doctrine that a State may not under
662, is relied upon and followed, the court any circumstances create a monopoly.
holding the act valid. In Magoun v. A statute requiring a longer course of
Illinois, etc., su/>ra, the court made the fol- study as a condition to the obtaining
lowing declaration of the principles appli- of a limited certificate for the practice of
" "
cable to the determination of questions of osteopathy than is required of those
classification of objects for purposes of contemplating the regular practice of
" The State
legislation :
may distinguish, medicine, is void for inequality. State v.
select,and classify objects of legislation, Gravett, 65 Ohio St. 289, 62 N. E. 325, 55
and necessarily the power must have a L. R. A. 791, 87 Am. St. 605 a statute
;
wide range of discretion, and this because for the regulation of the practice of
of the function of legislation and the pur- medicine excluded from its operation,
564 CONSTITUTIONAL LIMITATIONS. [CH. XL
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-
Collins, 17 Ohio St. 665. The decisions privilege granted to a particular corpora-
in Ohio were still more liberal, and ranked tion to take an interest on its loans
as white persons all who had a prepon- greater than the regular interest allowed
derance of white blood. Gray v. State, 4 by law is void it not being granted in
;
being dictated solely by a regard to the toll. In another case arising under the
benefit of the public generally, attract same charter, which authorized the com-
none of that prejudice or jealousy towards pany to build a bridge across the lake or
them which naturally would arise towards the outlet thereof, and to rebuild in case
those of the other description, from the it should be destroyed or carried away
consideration that the latter were obtained by the ice, and prohibited all other per-
with a view to the benefit of particular sons from erecting a bridge within three
individuals, and the apprehension that miles of the place where a bridge should
their interests might be promoted at the be erected by the company, it waa
sacrifice or to the injury of those of others held, after the company had erected a
whose interests should be equally re- bridge across the lake and it had been
garded. It is universally understood to carried away by the ice, that they had no
be one. of the implied and necessary con- authority afterwards to rebuild across the
ditions upon which men enter into society outlet of the lake, two miles from the
and form governments, that sacrifices place where the first bridge was built,
must sometimes be required of individuals and that the restricted limits were to be
for the general benefit of the community, measured from the place where the first
for which they have no rightful claim to bridge was erected. Cayuga Bridge Co.
specific compensation ; but, as between v. Magee, 2 Paige, 116, 6 Wend. 85. In
the several individuals composing the Chapin v. The Paper Works, 30 Conn.
community, it is the duty of the State to 461, it was held that statutes giving a
protect them in the enjoyment of just and preference to certain creditors over others
equal rights. A law, therefore, enacted should be construed with reasonable
for the common good, and which there strictness, as the law favored equality.
would ordinarily be no inducement to In People v. Lambier, 5 Denio, 9, it ap-
pervert from that purpose, is entitled to peared that an act of the legislature had
be viewed with less jealousy and distrust authorized a proprietor of lands lying in
than one enacted to promote the interests the East River, which is an arm of the
of particular persons, and which would sea, to construct wharves and bulkheads
constantly present a motive for encroach- in the river, in front of his land, and there
ing on the rights of others." was at the time a public highway through
1
Coolidge v. Williams, 4 Mass. 140. the land, terminating at the river. Held,
See also Dyer v. Tuscaloosa Bridge Co., that the proprietor could not, by filling
2 Port. (Ala.) 296, 27 Am. Dec. 655; up the land between the shore and the
Grant v. Leach, 20 La. Ann. 329. In bulkhead, obstruct the public right of
Sprague v. Birdsall, 2 Cow. 419, it was passage from the Land to the water, but
held that one embarking upon the Cayuga that the street was, by operation of law,
Lake six miles from the bridge of the extended from the former terminus over
Cayuga Bridge Co., and crossing the lake the newly made land to the water. Com-
in an oblique direction, so as to land pare Commissioners of Inland Fisheries
within sixty rods of the bridge, was not v. Holyoke Water Power Co., 104 Mass.
liable topay toll under a provision in the 446, 6 Am. Rep. 247 ;Kingsland v. Mayor,
charter of said company which made it &c., 35 Hun, 458; Backus v. Detroit, 49
unlawful for any person to cross within Mich. 110, 13 N. W. 380.
three miles of the bridge without paying
CH. XI.] PROTECTION BY "THE LAW OF THE LAND." 567
1
Mills v. St. Clair County, 8 How. the United States. So every citizen may
569; Mohawk Bridge Co. v. Utica & S. petition the federal authorities which are
R. 11. Co., 6 Paige, 554 Clienango Bridge
; set over him, in respect to any matter of
Co. v. Binghamton Bridge Co., 27 N. Y. public concern ; may examine the public
87, 3 Wall. 51; Montjoy o. Pillow, 64 records of the federal jurisdiction ; may
Miss. 705, 2 So. 108. See cases, ante, visit the seat of government without be-
p. 549, note 1. Compare Haoket v. Wil- ing subjected to the payment of a tax for
son, 12 Oreg. 25, 6 Pac. 652. A ferry the privilege Crandall v. Nevada, 6 Wall.
:
franchise may be limited to carrying one 35 ; may be purchaser of the public lands
way, and another granted for carrying on the same terms with others ; may par-
the other. Power v. Athens, 99 N. Y. ticipate in the he comes
government if
of the postal laws, to make use in com- 163; nor impose a tax upon travellers
mon with others of the navigable waters passing by public conveyances out of the
of the United States, and to pass from State: Crandall v. Nevada, 6 Wall. 35;
State to State, and into foreign countries, nor impose conditions to the right of
because over all these subjects the juris- citizens of other States to sue its citizens
diction of the United States extends, and in the federal courts. Insurance Co. v.
they are covered by its laws. Story on Morse, 20 Wall. 445. These instances
Const. 4th ed. 1937. These, therefore, sufficiently indicate the general rule.
are among the privileges of citizens of "Whatever one may claim as of right
568 CONSTITUTIONAL LIMITATIONS. [CH. XL
under the Constitution and laws of the burgh v. Brown, 43 Cal. 43; Bradwell v.
United States by virtue of his citizenship, State, 16 Wall. 130; Minor v. Happersett,
is a privilege of a citizen of the Lnited 21 Wall. 162. See ante, pp. 556, 557, notes.
States. Whatever the Constitution and Granting licenses for the sale of in-
laws of the United States entitle him to toxicating drinks to males only does not
exemption from, he may claim an immu- violate a constitutional provision which
nity in respect to. Slaughter House forbids the grant of special privileges or
Cases, 16 Wall. 36. And such a right or immunities. Blair v. Kilpatrick, 40 Ind.
privilege is abridged whenever the State 315. L~State may require a licensed
law interferes with any legitimate opera- pharmacist to procure from the county
tion of the federal authority which con- officers a druggist's license for the sale of
cern his interest, whether it be an spirituous liquors before he can use them
authority actively exerted, or resting in the preparation of pharmacists' com-
" "
though the precise meaning of privileges and immunities is
cattle, isvoid as denying the equal pro- foreign-born persons to pay a per-diem
tection of the laws. Atchison, T. & S. F. tax for each such employee, and deduct
R. Co. v. Campbell, 61 Kan. 439, 59 Pac. the same from his wages, is a denial of
1051, 48 L. R. A. 251. The defendant the equal protection of the laws. Juniata
cannot claim that he is denied the equal Limestone Co. v. Fagley, 187 Pa. 193, 40
protection of the laws simply because he Atl. 977, 42 L. R. A. 442. A creditor
is one of a class expressly excepted from whose debt is secured by mortgage can-
the shield of a statute of limitations. not be restricted in his remedy to the
Narron v. Wilmington & W. R. Co., 122 property mortgaged. Such a restriction
N. C. 856, 29 S. E. 356, 40 L. R. A. 415. imposed upon freedom of contract is an
Statute providing that where corporation arbitrary and unwarranted infringement
neglects to file list of officers upon whom of the liberty of the citizen. Dennis v.
process against it may be served, copies Moses, 18 Wash. 537, 52 Pac. 333, 40
of such process may be left with register L. R. A. 302. Nor can the right to
of deeds of county in which is the prin- contract for payment in gold coin be
cipal office of corporation, is invalid as taken away by State statute. 76. Tempo-
not providing due process. Pinney v. rary confinement of a person duly alleged
Providence L. & Inv. Co., 106 Wis. 396, to be insane, made during pendency of
82 N. W. 308, 50 L. R. A. 577, and note. determination of question of insanity, is
Where defendant in a divorce suit denies not an unwarranted deprival of liberty.
that plaintiff is his wife, no decree for Porter v. Ritch, 70 Conn. 235, 39 Atl. 169,
temporary alimony can issue against him 39 L. R. A. 353. Denial of right to make
until this question has been determined defence in contempt proceedings is a
adversely to him. Kite v. Hite, 124 Cal. denial of due process. McClatchy o.
389, 57 Pac. 227, 45 L. R. A. 793, 71 Am. Superior Court of Sacramento Co., 119
St. 82. Due process of law is satisfied Cal. 413, 51 Pac. 696, 39 L. R. A. 691 ;
where persons yet unborn are repre- and striking out defendant's answer in
sented by a guardian ad litem. Loring v. proceedings for contempt renders void
Hildreth, 170 Mass. 328, 49 N. E. 652, 40 any judgment thereafter entered against
L. R. A. 127, 64 Am. St. 301. Prohibition him, in the action. Hovey v. Elliott, 145
to sell trout, or to have them for purpose N. Y. 126, 39 N. E. 841, 39 L. R. A. 449,
of sale, does not deprive of property aff. in 167 U. S. 409, 17 Sup. Ct. Rep. 841.
business to inspection, and give bonds to L. R. A. 291, 64 Am. St. 198. Non-
secure the faithful performance of their residents may be partially or wholly
duties to their consignors. State r. exempted from penalties for allowing
Wagener, 77 Minn. 483, 80 N. W. 633, 778, stock to run at large within the limits of
1134,46 L. R. A. 442,76 Am. St. 681; the city. Broadfoot v. Fayetteville, 121
contra^ People t>. Berrien Circuit Judge, N. C. 418, 28 S. E. 515, 39 L. R. A. 245,
124 Mich. 664, 83 N. W. 594, 50 L. R. A. 61 Am. St. 668; Jones v. Duncan, 127
493, 83 Am. St. 352. See other cases, ante, N. C. 118, 37 S. E. 135. An act for the
561, note a. Statute prohibiting officers registration of land titles, making such
of railroad and mining corporations from registration conclusive evidence in certain
having any interest in mercantile business cases, was held void because it did not
in a certain county, but not prohibiting provide for actual notice to claimants
those of other corporations, is void. within the State, attempting to make a
Luman v. Hitchins Bros. Co., 90 Md. 14, constructive notice sufficient. State r.
44 All. 1051, 46 L. R. A. 393. An act Guilbert, 66 Ohio, 575, 47 N. E. 651, 38
requiring employers of unnaturalized L. R. A. 619, 60 Am. St. 756. Service
570 CONSTITUTIONAL LIMITATIONS. [GIL XI.
upon the highest officer or agent within 315, denying validity of an act providing
the jurisdiction, where the party is a non- that no woman should be employed in
resident joint-stock association, is suffi- any clothing manufactory more than
cient. State v. Adams Express Co., 66 eight hours per day. See also Low v.
Minn. 271, 68 N. W. 1085, 38 L. R. A. 225. Ilees Printing Co., 41 Neb. 127, 59 N. W.
Equal protection of the laws is denied by 362, 24 L. R. A. 702, 43 Am. St. 670.
a statute requiring citizens of all other Wages cannot be required to be computed
counties to secure licenses before fishing upon weight of coal as it comes from
in two specified counties, 'none being re- mine before it is sorted. Ramsey v.
quired of citizens of those counties. State People, 142 111. 380, 32 N. E. 364, 17 L. R.
v. Higgins, 51 S. C. 51, 28 S. E. 15, 38 L. A. 853 ;
Re Preston, 63 Ohio St. 428, 59 N.
R. A. 561. Warrant of arrest not sup- E. 101 ; Peel Splint Coal Co. v.
contra,
ported either by oath or affirmation is State, 36 W. Va. 802, 15 S. E. 1000, 17
void. Ib. A State may limit the liability L. R. A. 385. Statute forbidding pay-
of a railroad company for fires caused by ment of employees in anything but money
sparks from its locomotives, in the entire is void.State v. Haun, 61 Kan. 146, 59
absence of negligence, to the uninsured Pac. 340. In People v. Hill, 163 111. 186,
value of the property burned, and the 46 N. E. 796, 36 L. R. A. 634, a law com-
insurer whose contract subrogated him to pelling a person financially able, to sup-
the rights of the insured against the tort port his pauper sister was sustained. It is
feasor cannot complain that lie is denied not clear, however, upon what ground
the equal protection of the law or deprived such a law can be sustained. The sup-
of property without due process. Leavitt port of a pauper is either a public or a pri-
v. Canadian P. R. Co., 90 Me. 153, 37 Atl. vate purpose. If the former, it would
886, 38 L. R. A. 152. A
statute abolish- seem that moneys to be used therefor
ing the fellow-servant rule as to railway should be raised by taxation, and to sad-
employees, held constitutional in Callahan dle the support of such pauper upon a
v. Louis M. B. T. Co.,
St. Mo. ,71 person of whose family she is not a mem-
S. W.
208, following Tullis v. Railway Co., ber, and who is by no act or neglect of
175 U. S. 348, 20 Sup. Ct. Rep. 136. his own chargeable with her creation and
Statute authorizing administration of existence, is to violate the uniformity and
property of person who has disappeared equality necessary to legitimate taxation.
and not been heard of for seven years is If the purpose is private, the case against
void. Carr v. Brown, 20 R. I. 215, 38 Atl. the validity of the law is still stronger.
9, 38 L. R. A. 294. So is a statute pro- That service of process by publication
viding for an ante mortem probate of a may be made sufficient in case no officers
will. Lloyd v. Chambers, 56 Mich. 236, or agents of a domestic corporation can
23 N. W. 28. After verdict of guilty, due be found within the State, see Bernhardt
process will not prevent denial of request .
Brown, 118 N. C. 700, 119 N. C. 506, 24
for investigation of sanity of prisoner. S.E. 527, 715, 26 S. E. 162, 36 L. R. A.
Baughn v. State, 100 Ga. 554, 28 S. E. 68, 402. Statute permitting certain agents
38 L. R. A. 677 upon insanity after
; of humane societies to kill neglected,
commission of criminal act, see note to abandoned, or diseased animals without
this case in L. R. A. Law prescribing notice to owner, is void. Loesch v.
eight hour day for work in underground Koehler, 144 Ind. 278, 41 N. E. 326, 35
mines is valid. Holden v. Hardy, 14 Utah, L. R. A. 682. Where State's lien for taxes
71, 46 Pac. 756, 87 L. R. A. 103 see this;
had expired by limitation, the State can-
case in Supreme Court of the United not arbitrarily seize the property. Owner
States, 169 U. S. 366, 18 Sup. Ct. Rep. must have notice and opportunity to
383, where the judgment of the State defend. Kipp v. Elwell, 65 Minn. 525,
Court is affirmed. Contra, Re Morgan, 68 N. W. 105, 33 L. R. A. 435. Parties
26 Col. 415, 58 Pac. 1071, 47 L. R. A. 62, to be affected by location of section-
and see Ritchie v. People, 155 111. 98, 40 corners must have notice of the time at
N. E. 454, 462, 29 L. R. A. 79, 46 Am. St. 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
L. R. A. 470. Arbitrarily to single out a aff. in 165 U. S. 180, 17 Sup. Ct. Rep. 282.
certain class ofmen (e. g. barbers) and Refractory witness before grand jury may
deny them the right to pursue their
to be summarily imprisoned by justice of
ordinary vocation upon Sunday deprives peace upon complaint of the grand jury.
them of property without due process. Re Clark, 65 Conn. 17, 31 Atl. 522, 28
Eden v.People, 161 111. 296, 43 N. E. 1108, L. E. A. 242. Statute authorizing a
32 L. R. A. 659, 52 Am. St. 365. Grant- probate judge to declare a turnpike road
ing the right of appeal to resident land- abandoned and vacated, no provision
holders in annexation proceedings, and being made for jury trial or for right of
not to non-resident land-holders, is not a appeal, is void. Salt Creek V. T. Co. v.
denial of the equal protection of the laws. Parks, 50 Ohio St. 568, 35 N. E. 304,
Taggart v. Claypole, 145 Ind. 590, 44 28 L. R. A. 769. Statute authorizing
N. E. 18, 32 L. R. A. 586. Nor is a execution against members of limited
discrimination between different localities partnership to extent of unpaid subscrip-
and between different kinds of fish in tions in satisfaction of debts of partner-
game laws. Nor is a summary seizure ship is valid if amount unpaid
is subject
the usual remedies for the collection of debts and the enforcement
regular pay day has not yet arrived, but provided in the Constitution, the right to
cannot prevent deduction for damages appeal is subject to legislative regulation.
caused by employee's breach of contract Sullivan v. Hang, 82 Mich. 548, 46 N. W.
resulting in his discharge. Leep v. St. 795, 10 L. R. A. 263. State may abso-
Louis, I. M. & S. R. Co., 58 Ark. 407, 25 S. lutely prohibit the taking of opium into
W. 75, 41 Am. St. 109, 23 L. R. A. 264. the human Territory v. Ah Lim,
bo<ly.
Where property receives no benefit what- 1 Wash. 156, 24 Pac. 588, 9 L. R. A. 395.
ever from a local improvement, collection In Chavannes v. Priestly, 80 Iowa, 316,
deprive lot-owners of right to build out the health and safety of the alleged lun-
to street line, without providing com- atic to have him before the court, be
pensation for such deprivation, is void. adjudged void in the absence of allega-
St. Louis v. Hill, 116 Mo. 527, 22 S. W. tion and proof that he requested to be
861, 21 L. R. A. 226. Scrip and truck permitted to appear at the trial, and was
act sustained. Peel Splint Coal Co. ;. denied that right. Simon v. Craft, 182
State, 36 W. Va. 802, 15 S. E. 1000, 17 U. S. 427, 21 Sup. Ct. Rep. 836, aff.
L. R. A. 385 Hancock v. Yaden, 121 Ind.
; 118 Ala. 625, 24 So. 380. See also
366, 23 N. E. 253, 6 L. R. A. 576, 16 Bumpus v. French, 179 Mass. 131, 60
Am. St. 396 contra, Frorer v. People,
;
N. E. 414 Sfrite v. Billings, 55 Minn. 467,
;
141 111. 171,31 N. E. 395, 16 L. R. A. 492; 67 N. W. 206, 794, 43 Am. St. 525. Col-
State v. Goodwill, 33 W. Va. 179, 10 lins, J., speaking for the court, says :
"
S. E. 285, 6 L. R. A. 621, 25 Am.-St. 863 ; To the person charged with being in-
State i'. Fire Creek C. & C. Co., 33 W. Va. sane to a degree requiring the interposi-
188, 10 S. E. 288, 6 L. R. A. 359, 25 tion of the authorities and the restraint
Am. St. 891. Statute restricting right of provided for, there must be given notice
banking to corporations is bad. State v. of the proceeding, and also an opportunity
Scougal, 3 S. D. 55, 51 N. W. 858, 15 to be heard in the tribunal which is to
L. R. A. 477, and note, 44 Am. St. 756 ; pass judgment upon his right to his per-
contra, State v. Woodmanse, 1 N. D. 246, sonal liberty in the future. There must
46 N. W. 970, 11 L. R. A. 420. So is be a trial before judgment can be pro-
one forbidding employer to levy fine upon nounced, and there can be no proper trial
employee for defective work. Com. v. unless there is guaranteed the right to
Perry, 155 Mass. 117, 28 N. E. 1126, 14 produce witnesses and submit evidence.
L. R. A. 325, and note, 31 Am. St. 633. The question here is not whether the tri-
So in one requiring judgment debtor, at bunal may proceed in and with some
whose suit execution sale is set aside, to regard to the rights of the person before
repay to purchaser in such sale the money it, but rather, is the right to have it so
304, 26 Am. St. 464. Except as expressly the liberty of a person cannot be upheld
CIT. XI.] PROTECTION BY "THE LAW OF THE LAND." 573
unless tliis right is secured, for the object of insufficiency of a pauper's support can-
may be attained in defiance of the Consti- not be made by a commission which has
tution, and without due process of law." no power to administer oaths nor to ex-
See extended note to this case in 43 Am. amine witnesses. Church v. South Kings-
St. 531-541, on "due process of law," as town, 22 It.- 1. 381, 48 Atl. 3. Taxing
applied to lunatics. Service of summons holders of mortgages issued by individu-
upon resident defendants who can be als, and exempting those of mortgages
found within the State is insufficient, if issued by quasi-public corporations, is a
made by Bardwell v.
publication only. denial of" equal protection. Russell v.
Anderson, 44 Minn. 97, 46 N. W. 315, 9 Croy, 164 Mo. 69, 63 S. W. 849. A stat-
L. R. A. 152. Ordinance authorizing ute of Nebraska making combinations in
arrest and incarceration without warrant restraint of trade illegal, and exempting
or hearing, upon mere refusal to ''move labor unions, held valid in Cleland v.
is
in action out of the State for the purpose The sale, by the State, of ice accumulat-
of suing and issuing garnishment or like ing on navigable waters, violates the 14th
process thereon, against any resident of Amendment guaranty of equal protec-
the State, is void as depriving creditor of tion and Rossmiller v. State,
privileges.
property without due process of law. 114 Wis. 169, 89 N. W. 839, 58 L. R. A.
Re Flukes, 157 125, 57 S. W. 545,
Mo. 93. In Connolly v. Union Sewer-Pipe Co.,
51 L. R. A. 176. Statute restricting the 184 U. S. 540, 22 Sup. Ct. Rep. 431, the
number of persons a lodging-house keeper court says: "As the Constitution of the
may allow to sleep in a single room, but United States is the supreme law of
making no provision concerning inn- the 'land, anything in the Constitution or
keepers, void for arbitrary discrimina-
is statutes of the State to the contrary not-
tion. Bailey v. People, 190 111. 28, 60 withstanding, a statute of a State, even
N. E. 98. New lien cannot be made s''pe- when avowedly enacted in the exercise
rior to an older lien without opportunity of the police powers, must yield to that
to older lienor to be heard. Fisher v. law. . The nullity of any act incon-
. .
'
Wineman, 125 Mich. 642, 84 N. W. 1111, sistent with the Constitution is produced
52 L. R. A. 192. In Gillespie v. People, by the declaration that the Constitution
188 111. 176, 58 N. E. 1007, it was held is the supreme law of the land/ The
that a statute which made it a criminal State has undoubtedly the power by
offence to intimidate by discharge or appropriate legislation to protect the
threats of discharge any employee from public morals, the public health, and the
joining a labor union, was void as being public safety, but if by their necessary
a deprival of liberty without due process operation its regulations looking to either
of law. And in People v. Coler, 166 N. of those ends amount to a denial to
Y. 1, 59 N. E. 716, 82 Am. St. 605, it was persons within its jurisdiction of the
held that an act requiring that contracts equal protection of the laws, they must be
thereafter entered into for the construc- deemed unconstitutional and void." In
tion of public works should bind the con- Otis & Gassman v. Parker, U. S. ,
tractor to pay his laborers the prevailing 23 Sup. Ct. Rep. 168, a provision of the
rates of wages, was void as an undue Constitution of California was before the
deprival of his liberty. See also, in this court upon the objection that it violated
connection, People v. Coler, 166 N. Y. 1, the 14th Amendment. The provision
" All contracts for the sales of
58 N. E. 776. No distinction can be reads :
made between aliens and citizens in regard shares of the capital stock of any cor-
to occupations which may be carried on poration or association on margin or to
of common right. State v. Montgomery, be delivered at a future day shall be
94 Me. 192, 47 Atl. 165. Determination void," and further that any money paid
574 CONSTITUTIONAL LIMITATIONS. [CH. XI.
exemption laws, to take fish in the waters of the State, and the
like. And the constitutional provisions are not violated by a
statute which allows process by attachment against a debtor not
a resident of the State, notwithstanding such process is not ad-
missible against a resident. 2 The protection by due process of
law has already been considered. It was not within the power
law, and that it unduly discriminated 498, and note on establishment of dock
against this class of property while other lines, 28 Am. St. 276. Re Clayton, 59
familiar objects of speculation, such as Conn. 510, 21 All. 1005, 13 L. R. A. 66,
cotton or grain, were not touched. It 21 Am. St. 128; Lehew v. Brummell, 103
would seem that the prohibition, unless Mo. 546, 15 S. W. 765, 11 L. R. A. 828,
the contract provides for immediate de- 23 Am. St. 895 Louisville, N. A. & C. R.
;
livery, of sales of such property as the Co. v. Wallace, 136 111. 87, 26 N. E. 493,
law recognizes, is certainly carrying 11 L. R. A. 787 (short-cause calendar) ;
the police power to its boundary line. State v. Robbins, 124 Ind. 308, 24 N. E.
For other cases upon due process, equal 978, 8 L. R. A. 438; State v. Santee, 111
protection, &c., see Wadsworth v. Union Iowa, 1, 82 N. W. 445 State v. Warren, ;
699, 41 Am. St. 606; Braceville Coal Co. In which last case a hawker's and
t7. People, 147 111. 66, 35 N. E. 62, 22 peddler's act requiring those paying less
L. R. A. 340, 37 Am. St. 206 Morton v. ;
than $25.00 taxes on stock to pay a
in
New York, 140 N. Y. 207, 35 N. E. 490, license fee, and exempting those paying
22 L. R. A. 241; Schiltz v. Roenitz, 86 that amount or more of taxes on stock,
Wis. 31, 56 N. W. 194, 21 L. R. A. 483, was held invalid as violating the right of
39 Am. St. 873; State v. Loomis, 115 Mo. equal protection.]
307, 22 S. W. 350, 21 L. R. A. 789; State v. Coryell, 4 Wash. 380;
1
Corfield
v. Wolfer, 53 Minn. 135, 54 N. W. 1065, Campbell Morris, 3 H. & McH. 554;
v.
19 L. R. A. 783, 39 Am. St. 582; Jenkins Crandall v. State, 10 Conn. 339 Oliver v. ;
82 Wis. 279, 52 N. W
95, 15 L. R. A. 830
.
;
554 ;
State v. Medbury, 3 R. I. 138. And
Louisville Safety Vault & T. Co. v. Louis- see generally the cases cited, ante, p. 37,
ville & N. R. Co., 92 Ky. 233, 17 S. W. note. Exemption from garnishment does
567, 14 L. R. A. 579, and extensive note not apply to a non-resident debtor except
on constitutional equality of privileges, by express provision. Kile v. Montgom-
immunities, and protection Burdett v.
; ery, 73 Ga. 337.
Allen, 35 W. Va. 347, 13 S. E. 1012, 14
GIL XI.] PROTECTION BY "THE LAW OF THE LAND." 575
which one citizen may demand, all others are now entitled to.
Judicial Proceedings.
1
"Jurisdiction is a power constitu- Rochester, 12 Wend. 165; Dudley v.
tionally conferred upon a court, a single Mayhew, 3 N. Y. 9; Preston v. Boston,
judge, or a magistrate, to take cognizance 12 Pick. 7 Chapman v. Morgan, 2 Greene
;
and decide causes according to law, and' (Iowa), 374; Thompson v. Steamboat
to carry their sentence into execution. Morton, 2 Ohio St. 26 ;
Gilliland v. Admin-
The tract of land within which a court, Ohio St. 223; Dicks
istrator of Sellers, 2
() Any action taken by a court in the absence of the facts upon which its juris-
diction rightfully rests is void, and may be collaterally impeached. Scott v. McNeal,
154 U. S. 34, 14 Sup. Ct. Rep. 1108, rev. 5 Wash. 309,' 31 Pac. 873, 34 Am. St. 863.]
576 CONSTITUTIONAL LIMITATIONS. [CH. XL
Me. 223; Little w.Fitts, 33 Ala. 343; Ginn v. People, 16 Mich. 351; White v. Bu-
v. Rogers, 9 111. 131; Neill v. Keese, 5 chanan, 6 Cold. 32; Collins v. Collins, 37
Tex. 23; Ames v. Boland, 1 Minn. 365 ; Pa. St. 387; Green v. Creighton, 18 Miss.
Brady v. Richardson, 18 Ind. 1 White 159.
v. Buchanan, 6 Cold. 32; Andrews v. 2 Moore v. Detroit Locomotive Works,
Wheaton, 23 Conn. 112 ; Collamer v. 14 Mich. 266 ; Coyner v. Lynde, 10 Ind.
Page, 35 Vt. 387. 282.
1
Bostwick v. Perkins, 4 Ga. 47 Hill
;
"
CH. XI.] PROTECTION BY THE LAW OF THE LAND." 577
lation by parties that any other person than the judge shall exer-
cise his functions in their case would be nugatory, even though the
2
judge should vacate his seat for the purposes of the hearing.
Sometimes jurisdiction of the subject-matter will depend upon
considerations of locality, either of the thing in dispute or of the
parties. At law certain actions are local, and others are transi-
tory. The first can only be tried where the property which is
the subject of the controversy, or in respect to which the contro-
versy has arisen, is situated. The United States courts take
cognizance of certain causes by reason only of the fact that the
3
parties are residents of different States or countries. The ques-
tion of jurisdiction in these cases is sometimes determined by the
common law, and sometimes is matter of statutory regulation.
But there is a class of cases in respect to which the courts of the
several States of the Union are constantly being called upon to
exercise authority, and in which, while the jurisdiction is con-
ceded to rest on considerations of locality, there has not, unfor-
tunately, at all times been entire harmony of decision as to what
shall confer jurisdiction. We
refer now to suits for divorce from
the bonds of matrimony.
The courts of one State or country have no general authority
to grant divorce, unless for some reason they have control over
the particular marriage contract which is sought to be annulled.
But what circumstance gives such control ? Is it the fact that
the marriage was entered into in such country or State ? Or that
the alleged breach of the marriage bond was within that jurisdic-
tion ? Or that the parties resided within it either at the time of
the marriage or at the time of the offence ? Or that the parties
now reside in such State or country, though both marriage and
offence may have taken place elsewhere ? Or must marriage,
offence, and residence, all or any two of them, combine to confer
the authority ? These are questions which have frequently de-
manded the thoughtful attention of the courts, who have sought
to establish a rule at once sound in principle, and that shall pro-
tect as far as possible the rights of the parties, one or the other
of whom, unfortunately, under the operation of any rule which
can be established, it will frequently be found has been the victim
of gross injustice.
We conceive the true rule to be that the actual, bona fide resi-
dence of either husband or wife within a State will give to that
State authority to determine the status of such party, and to pass
upon any questions affecting his or her continuance in the mar-
riage relation, irrespective of the locality of the marriage, or of
any alleged offence ; and that any such court in that State as the
legislature may haveauthorized to take cognizance of the subject
may lawfully pass upon such questions, and annul the marriage
for any cause allowed by the local law. But if a party goes to a
jurisdiction other than that of his domicile for the purpose of
only, such residence is not bona fide, and does not confer upon
the courts of that State or country jurisdiction over the marriage
relation, and any decree they may assume to make would be void
as to the other party. 1
1 There are a number of cases in which 6 Gray, 157, the same ruling was had as
this subject has been considered. In to a foreign divorce, notwithstanding the
Inhabitants of Hanover v. Turner, 14 wife appeared in and defended the foreign
Mass. 227, instructions to a jury weresus- suit. In Clark v. Clark, 8 N. H. 21, the
tained, that if they were satisfied the court refused a divorce on the ground
husband, who had been a citizen of Mas- that the alleged cause of divorce (adul-
sachusetts, removed to Vermont merely tery), though committed within the State,
for the purpose of procuring a divorce, was so committed while the parties had
and that the pretended cause for divorce their domicile abroad. This decision was
arose, if it ever did arise, in Massachu- followed in Greenlaw v. Greenlaw, 12
" If
setts, and that the wife was never within N. H. 200. The court say : the de-
tliejurisdiction of the court of Vermont, fendant never had any domicile in this
then and in such case the decree of di- State, the libellant could not come here,
vorce which the husband had obtained in bringing with her a cause of divorce over
Vermont must be considered as fraudu- which this court had jurisdiction. If at
lently obtained, and that it could not the time of the [alleged offence] the
operate so as to dissolve the marriage domicile of the parties was in Maine,
between the parties. See also Vischer r. and the facts furnished no cause for a di-
Vischer, 12 Barb. 640; and McGiffert v. vorce there, she could not come here and
McGiffert, 31 Barb. 69. In Chase v. Chase, allege those matters which had already
CH. XI.1 PROTECTION BY "THE LAW OF THE LAND.' 579
occurred, as a ground for a divorce under tained in another State in bar of divorce
the laws of this State. Should she under proceedings. Streitwolf v. Streitwolf, 181
such circumstances obtain a decree of di- U. S. 179, 21 Sup. Ct. Rep. 563. J In a
vorce here, it must be regarded as a mere purely collateral civil action, jurisdic-
nullity elsewhere." In Frary v. Frary, tion is
conclusively presumed. Waldo
10 N. II. 61, importance was attached to v. Waldo, 62 Mich. 94, 17 N. W. 709.
the fact that the marriage took place in And see Van Orsdal v. Van Orsdal, 67
New Hampshire and it was held that
; Iowa, 35, 24 N. W. 679. The Pennsyl-
the court had jurisdiction of the wife's vania cases agree with those of New
application for a divorce, notwithstand- Hampshire, in holding that a divorce
ing the offence was committed in Ver- should not be granted unless the cause
mont, but during the time of the wife's alleged occurred while the complainant
residence in New Hampshire. See also had domicile within the State. Dorsey v.
Kimball v. Kimball, 13 N. H. 222 Batch-
; Dorsey, 7 Watts, 349 Hollister v. Hollis-
;
elder t\ Batchelder, 14 N. H. 380; Pay- ter, 6 Pa. St. 449 McDermott's Appeal,
;
son v. Payson, 34 N. H. 518; Hopkins v. 8 W. & S. 251. And they hold also that
Hopkins, 35 N. II. 474; Foss v. Foss, the injured party in the marriage rela-
58 N. H. 283; Norris v. Norris, 64 N, tion must seek redress in the forum of
H. 523, 16 Atl. 19. See Trevino v. the defendant, unless where such defend-
Trevino, 54 Tex. 261. In Wilcox v. ant has removed from what was before
Wilcox, 10 Ind. 436, it was held that the common domicile of both. Calvin
the residence of the libellant at the time v. Reed, 35 Pa. St. 375; Elder v. Reel,
of the application for a divorce was 62 Pa. St. 308, 1 Am. Rep. 414. If a
sufficient to confer jurisdiction, and a divorce is procured on publication in an-
decree dismissing the bill because the other State from that of the husband's
cause for divorce arose out of the State domicile, where the offence was com-
was reversed. And see Tolen v. Tolen, mitted, a nullity in the latter State.
it is
Lea, 589. A recital in proceedings for Smith, 4 Greene (Iowa), 266; Yates
divorce of the facts necessary to give v.Yates, 13 N. J. Eq. 280; Maguire v.
jurisdiction maybe contradicted in a suit Maguire, 7 Dana, 181 Waltz v. Waltz,;
in another State between the same par- 18 Ind. 449; Hull v. Hull, 2 Strob. Eq.
ties. Bell r. Bell, 181 U. S. 175, 21 Sup. 174; Manlcy v. Manley, 4 Chand. 97;
Ct. Rep. 551 Andrews v. Andrews,
;
Hubell v. Ilubell, 3 Wis. 662 Gleason v. ;
U. S. ,
23 Sup. Ct. Rep. 237. An in- Gleason, 4 Wis. 64; Hare v. Hare, 10
junction may issue against setting up Tex. 355; D'Auvilliers v. De Livaudais,
a pretended judgment fraudulently ob- 32 La. Ann. 605; Gettys v. Gettys, 3
580 CONSTITUTIONAL LIMITATIONS. [CH. XL
Lea, 260; Smith v. Smith, 19 Neb. 706, 15 N. E. 333; though there is actual
28 N. W. 296. And see Story, Confl. notice. O'Dea
O'Dea, 101 N. Y. 23,
v.
domicile separate from the husband, and teau, 14 Pick. 181 and Lyon v. Lyon, 2
;
may therefore be entitled to a divorce, Gray, 367. The divorce of one party
though the husband never resided in the divorces both. Cooper v. Cooper, 7 Ohio,
State. These cases proceed upon the 594. And will leave both at liberty to
theory that, although in general the domi- enter into new marriage relations, unless
cile of the husband is the domicile the local statute expressly forbids the
of the wife, yet that if he be guilty of guilty party from contracting a second
such act or dereliction of duty in the re- marriage. See Commonwealth v. Put-
lation as entitles her to have it partially nam, 1 Pick. 136; Baker?;. People, 2 Hill,
or wholly dissolved, she is at liberty to 325. [A divorce was decreed and pro-
establish a separate jurisdictional domi- hibited marriage within a limited period.
cile of her own. Ditson v. Ditson, 4 R. I. A marriage was consummated in another
87 Harding v. Alden, 9 Me. 140 Maguire
; ; State within the period of prohibition,
v. Maguire, 7 Dana, 181 Hollister v. Hoi- ;
and marriage upheld in In re Wood's
this
lister, 6 Pa. St. 449; Derby v. Derby, 14 Estate, Cal. 69 Pac. 960.] A party
,
1
Doughty v. Hope, 3 Denio, 594. See to a hospital for the insane without any
Matter of Empire City Bank, 18 N. Y. provision for notice to the person alleged
199 Nations v. Johnson, 24 How. 204,
;
to be insane, is unconstitutional. Re Lam-
205 Blackwell on Tax Titles, 213.
; bert, 134 Cal. 620, 66 Pac. 851, 55 L. R. A.
a Jack v.
Thompson, 41 Miss. 49. As to 856; see, a statute contemplating pro-
the right of an attorney to notice of pro- ceedings in lunacy in the absence of the
ceedings to disbar him, see notes to alleged lunatic, construed in Simon v.
pp. 481,482, and 583. "Notice of some Craft, 182 U. S. 427, 21 Sup. Ct. Rep.
kind is the vital breath that animates 836.] Where, however, a statute pro-
judicial jurisdiction over the person. It videsfor the taking of a certain security,
is the primary element of the application and authorizes judgment to be rendered
of the judicatory power. It is of the es- upon it on motion, without process, the
sence of a cause. Without it there can- party entering into the security must be
not be parties, and without parties there understood to assent to the condition, and
maybe the form of a sentence, but no to waive process and consent to judgment,
judgment obligating the person." See Lewis v. Garrett's Adm'r, 6 Miss. 434;
Bragg's Case, 11 Coke, 99 a; Rex v. People r. Van Eps, 4 Wend. 387 Chap- ;
194; Meade v. Deputy Marshal, 1 Brock. Barb. 130; Pratt v. Donovan, 10 Wis.
324; Goetcheus v. Mathewson, 61 N. Y. 378; Murray v. Hoboken Land Co., 18
420 ; Underwood v. McVeigh, 23 Gratt. How. 272 Philadelphia v. Common-
;
1 "It
may be admitted that a statute tained. But in the case of constructive
which should authorize any debt or dam- notice, if the party appears, he has a right
ages to be adjudged against a person upon to be heard, and this cannot be denied
prised of what is going on against him, There is no valid service upon a foreign
and an opportunity is afforded him to corporation where the service is merely
defend, I am of opinion that the courts upon the president, and he is in the State
have not the power to pronounce the purely upon private business, and the
proceeding illegal." Denio, J., in Matter corporation is not and has not been doing
of Empire City Bank, 18 N. Y. 199, 215. business within the State. Fjtzgerald &
See per Morgan, J., in Rockwell v.
also, M. Constr. Co. v. Fitzgerald, 137 U. S. 98,
Nearing, 35 N. Y. 302, 314 Nations v. ; 11 Sup. Ct. Rep. 36; but if thereafter the
Johnson, 24 How. 195 Beard v. Beard, ; corporation appears in court by its at-
21 Ind. 321 Mason v. Messenger, 17
;
torneys, and goes to the trial of the case
Iowa, 261 Cupp v. Commissioners of
; upon its merits, the invalidity of service
Seneca Co., 19 Ohio St. 173; Campbell is waived. 76. A
statute providing for
r. Evans, 45 N. Y. 356 Happy v. Mosher,
; service upon the agent of a non-resident
48 N. Y. 313; Jones v. Driskell, 94 Mo. doing business in the State, is void. Ca-
190, 7 S. W. Ill Palmer v. McCormick,
; banne v.
Graf, Minn. ,
92 N. W. 461.
28 Fed. Rep. 541 Traylor v. Lide, 7 S.
; Upon the sufficiency of notice by reg-
W. 58 (Tex.). If an absent defendant istered letter to last known address of
returns pending publication, he need not party, in proceedings to determine pri-
be personally served. Duche v. Voisin, ority of water rights, see Farm Ins. Co.
18 Abb. N. C. 358. Jurisdiction cannot v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50
be acquired by ordering goods of a non- L. R. A. 747 in determining title to lands
;
resident for the mere purpose of attaching under the Torrens Land Registration sys-
them. Copas v. Anglo-Am. Prov. Co., tem, Tyler v. Bd. of Registration, 175
73 Mich. 541, 41 N. W. 690. In Burnham Mass. 71, 55 N. E. 812, 51 L. R. A. 433.
v. Commonwealth, 1 Duv. 210, a personal A judgment creating a preference for a
judgment against the absconding officers labor debt over pre-existing lien without
of the provisional government was sus- notice and opportunity to be heard given
CH. XL] PKOTECT10N BY "THE LAW OF THE LAND. 583
made available for all purposes. It will enable the court to give
effect to the proceeding so far as it is one in rem, but when the
res is disposed of, the authority of the court ceases. The statute
may give it effect so far as the subject-matter of the proceeding is
within the limits, and therefore under the control, of the State ;
but the notice cannot be made to stand in the place of process, so
as to subject the defendant to a valid judgment against him per-
sonally. In attachment proceedings, the published notice may be
sufficient to enable the plaintiff to obtain a judgment which he
can enforce by sale of the property attached, but for any other
purpose such judgment would be ineffectual. The defendant
could not be followed into another State or country, and there
have recovery against him upon the judgment as an established
demand. The fact that process was not personally served is a
conclusive objection to the judgment as a personal claim, unless
the defendant caused his appearance to be entered in the attach-
ment proceedings. 1 Where a party has property in a State, and
resides elsewhere, his property is justly subject to all valid
claims that may exist against him there but beyond this, due ;
the lien holder, is void. Fisher v. Wein- basis for recovery. Needham v. Thayer,
man, 125 Mich. 642, 84 N. W. 1111, 62 147 Mass. 536, 18 N. E. 429 Eastman v. ;
v. Kinney, 4 Conn. 380, 10 Am. Dec. Rep. 704. In Ex fiarte Heyfron, 8 Miss.
151 Hoxie v. Wright, 2 Vt. 263 Pros-
; ; 127, it was held that an attorney could
ser Warner, 47 Vt. 657, 19 Am. Rep.
v. not be stricken from the rolls without
132; Newell v. Newton, 10 Pick. 470; notice of the proceeding, and opportunity
Starbuck o. Murray, 5 Wend. 148, 21 to be heard. And see ante, p. 481, note.
Am. Dec. 172 Armstrong v. Harshaw, 1
;
Leaving notice with one's family is not
Dev. 187; Bradshaw v. Heath, 13 Wend. equivalent to personal service. Rape v.
407; Bates v. Delavan, 5 Paige, 299; Heaton, 9 Wis. 329. At least after de-
Webster v. Reid, 11 How. 437 Gleason ;
fendant has himself left the State. Ams-
v. Dodd, 4 Met. 333; Green v.
Custard, baugh v. Exchange Bank, 33 Kan. 100,
23 How. 484; Eliot v. McCormick, 144 5 Pac. 384. And see Bimeler v. Dawson,
Mass. 10, 10 N. E. 705. A personal judg- 5 111. 536.
ment on such service when sued on is no
584 CONSTITUTIONAL LIMITATIONS. [CH. XI.
or personal service
process of law would require appearance
before the defendant could be personally bound by any judgment
rendered, (a)
The same rule applies in divorce cases. The courts of the
State where the complaining party resides have jurisdiction of
the subject-matter ; and if the other party is a non-resident, they
must be authorized to proceed without personal service of process.
The publication which is permitted by the statute is sufficient to
justify a decree in these cases changing the status of the com-
1
plaining party, and thereby terminating the marriage; and it
might be sufficient also to empower the court to pass upon the
question of the custody and control of the children of the mar-
(a) ^Statute providing for service by publication in actions in rem is due process.
See note, 87 Am. St. Rep. 360-3
"
CH. XI.] PROTECTION BY THE LAW OF THE LAND." 585
decree of the court, to the use of the complainant; but the legal
tribunals elsewhere would not recognize a decree for alimony or
for costs not based on personal service or appearance. The
remedy of the complainant must generally, in these cases, be
confined to a dissolution of the marriage, with the incidental
benefits springing therefrom, and to an order for the custody of
the children, if within the State. 1
When the question is raised whether the proceedings of a court
may not be void for want of jurisdiction, it will sometimes be
important to note the grade of the court, and the extent of its
authority. Some courts are of general jurisdiction, by which is
meant that their authority extends to a great variety of matters ;
Am. Dec. 549; Holmes v. Holmes, 4 Barb. 1 Doug. (Mich.) 390; Cooper v. Sunder-
295; Crane v. Meginnis, 1 Gill & J. 463; land, 3 Iowa, 114; Wall v. Trumbull, 16
Maguire v. Maguire, 7 Dana, 181, 19 Am. Mich. 228; Denning v. Corwin, 11 Wend.
Dec. 237 Townsend v. Griffin, 4 Harr.
;
647 Bridge v. Ford, 4 Mass. 641
;
Smith
;
440; Sowders v. Edmunds, 76 Ind. 123. v. Rice, 11 Mass. 507; Barrett v. Crane,
J., after a learned and somewhat elaborate Jennings v. Stafford, 1 Ired. 404; Per-
examination of the subject, expresses the rine v. Farr, 22 N. J. 356 State v. Metz-
;
opinion that the State may permit a per- ger, 26 Mo. 65; Owen v. Jordan, 27 Ala.
sonal judgment for alimony in the case 608; Hill v. Pride, 4 Call, 107; Sullivan
of a resident defendant, on service by v. Blackwell, 28 Miss. 737. If without
publication only, though he conceded the aid of parol evidence a justice's judg-
that there would be no such power in the ment is void, it cannot be aided by filing
case of non-residents. Upon a California a transcript of it in a court of general
divorce a wife is not entitled to dower jurisdiction. Barren v. Dent, 17 S. C.
in Oregon lands, which in such case is 75. If a court of general jurisdiction ex-
allowed in Oregon, although the Cali- ercises special powers in a proceeding
fornia court had jurisdiction. Barrett v. not after the course of the common law,
Failing, 111 U. S. 523, 4 Sup. Ct. Rep. 598. the essential jurisdictional facts must
2
See Dakin v. Hudson, 6 Cow. 221 ; appear of record. Furgeson v. Jones, 20
Cleveland v. Rogers, 6 Wend. 438; Peo- Pac. 842 (Oreg.).
586 CONSTITUTIONAL LIMITATIONS. [CH. XL
was conclusive. And see Selin v. Sny- what different from a vessel, still, it was
der, 7 S. & R. 172. a matter of fact to be made out before
8 v. Kinnaird, 1 B. & B. 432.
Britain the magistrate, and on which he was to
Conviction under the Bumboat Act. The draw his own conclusion. But it is said
record was fair on its face, but it was in- that a jurisdiction limited as to person,
sisted that the vessel in question was not place, and subject-matter is stinted in its
"
a " boat within the intent of the fact. nature, and cannot be lawfully exceeded.
" The
Dallas, Ch. J. general principle
: I agree but upon the inquiry before the
:
applicable to cases of this description is magistrate, does not the person form a
perfectly clear: it is established by all question to be decided by evidence?
the ancient, and recognized by all the Does not the place, does not the subject-
CH. XI.] PROTECTION BY "THE LAW OF THE LAND.' 587
matter, form such a question ? The pos- action of trespass, be called on to show
session of a boat, therefore, with gun- that the bird in question was really a
powder on board, is part of the offence partridge 1 and yet it might as well be
charged ; and how could the magistrate urged, in that case, that the magistrate
decide but by examining evidence in had no jurisdiction unless the bird were a
proof of what was alleged? The magis- partridge, as it may be urged in the pres-
trate, it is urged, could not give himself ent case that he has none unless the ma-
jurisdiction by finding that to be a fact chine be a boat. So in the case of a
which did not exist. But he is bound to conviction for keeping dogs for the de-
inquire as to the fact, and when he has struction of game without being duly
inquired, his conviction conclusive ofis qualified to do so ; after the conviction
it. The magistrates have
inquired in the had found that the offender kept a dog of
present instance, and they find the sub- that description, could he, in a civil ac-
ject of conviction to be a boat. Much tion, be allowed to dispute the truth of
has been said about the danger of magis- the conviction ? In a question like the
trates giving themselves jurisdiction; present we are not to look to the incon-
and extreme cases have been put, as of venience, but at the law ; but surely if
a magistrate seizing a ship of seventy- the magistrate acts bona fide, and comes
four guns, and calling it a boat. Sup- to his conclusion as to matters of fact
pose such a thing done, the conviction is according to the best of his judgment, it
still conclusive, and we cannot look out would be highly unjust if he were to have
of it. It is urged that the party is with- to defend himself in a civil action and ;
out remedy ;
and so he is, without civil the more so, as he might have been com-
remedy, in thisand many other cases ; pelled by a mandamus to proceed on the
his remedy is by proceeding criminally ; investigation. Upon the general prin-
and the decision were so gross as to
if ciple, therefore, that where the magis-
call a ship of seventy-four guns a boat, trate has jurisdiction his conviction is
it would be good ground for a criminal conclusive evidence of the facts stated in
proceeding. Formerly the rule was to it,I think this rule must be discharged."
intend everything against a stinted juris- See also Basten v. Carew, 3 B. & C. 648 ;
diction that is not the rule now and
:
;
Fawcett v. Fowlis, 7 B. & C. 394 Ash- ;
nothing is to be intended but what is fair croft v. Bourne, 3 B. & Ad. 684 Mather ;
intend that magistrates will do what monwealth, 2 Virg. Cas. 270 Ex parte ;
is right." Richardson, 'J., in the same Kellogg, 6 Vt. 509; State v. Scott, 1
case, states the real point very clearly :
Bailey, 294; Facey v. Fuller, 13 Mich.
" Whether the vessel in
question were a 527; Wall v. Trumbull, 16 Mich. 228;
boat or no was a fact on which the mag- Sheldon v. Wright, 5 N. Y. 497 Wanzer ;
the game laws of having partridges in ton v. Hart, 8 Vt. 208 ; Carter v. Walker,
possession could the magistrate, in an
; 2 Ohio St. 339; White Crow, 110 U. S.
.
588 CONSTITUTIONAL LIMITATIONS. [CH. XL
that is to say, in any other suit than that in which the irregular-
ity occurs, or on appeal or process in error therefrom. And even
in the same proceeding an irregularity may be waived, and will
commonly be held to be waived if the party entitled to complain
of it shall take any subsequent step in the case inconsistent with
an intent on his part to take advantage of it. 2
We have thus briefly indicated the cases in which judicial
action may be treated as void because not in accordance with the
law of the land. The design of the present work does not per-
mit an enlarged discussion of the topics which suggest themselves
in this connection, and which, however interesting and important,
do not specially pertain to the subject of constitutional law.
Fox v. Cottage, 1 "The
183, 4 Sup. Ct. Rep. 71 ; doing or not doing that in the
&c. Ass., 81 Va. 677 ; King v. Burdett, conduct of a suit at law, which, conform-
28 W. Va. 601 Levan v. Millholland, 114
; ably to the practice of the court, ought
Pa. St. 49, 7 Atl. 194 Weiss v. Guerineau,
;
or ought not to be done." Bouv. Law
109 Ind. 438, 9 N. E. 399 Rosenheim v.
;
Die. See Dick v. McLaurin, 63 N. C.
Hartsock, 90 Mo. 357, 2 S. W. 473 Head ;
185.
v. Daniels, 38 Kan. 1, 15 Pac. 911; Spill- 2 Robinson 1 Sandf. Ma-
v. West, 19;
man v. Williams, 91 N. C. 483 Freeman ;
lone v. Clark, 2 Hill, 657 ;
Wood v. Ran-
on Judgments, 135. See Matthews v. dall, 4 Hill, 264; Baker v. Kerr, 13 Iowa,
Densmore, 109 U. S. 216, 3 Sup. Ct. Rep. 384 ;
Loomis v. Wadhams, 8 Gray, 557 ;
in the administration of the law do not 347 Tower v. Lamb, 6 Mich. 362. If an
;
But a party in any case has a right to demand that the judg-
ment of the court be given upon and he cannot be bound
his suit,
a
by delegated exercise of judicial power, whether the delegation
be by the courts or by legislative act devolving judicial duties on
ministerial officers. 1 Proceedings in any such case would be
void but they must be carefully distinguished from those cases
;
in which the court has itself acted, though irregularly. All the
State constitutions preserve the right of trial by jury, (#) for civil
i Hall v. School i. Supervisors, 40 Wis. 328;
Marks, 34 111. 358; Chandler trial
v. Nash, 5 Mich. 409. It is not competent Allor v. County Auditors, 43 Mich. 76,
to provide by statute that the judge may 4 N. W. 492 Ward v. Farwell, 97 111. 593.
;
call a member of the bar to sit in his FJThe indeterminate sentence law giving
"
place in a special case. The legisla- authority to the prison board to determine
ture has no power to authorize a district the term of imprisonment within limits
judge to place his judicial robe upon the fixed by the judgment of the court is not
shoulders of any man." Winchester r. in violation of the rule against the dele-
Ay res, 4 Greene (Iowa), 104. See gation of judicial power. Miller v. State,
Wright v. Boon, 2 Greene (Iowa), 458; 149 Ind. 007, 49 N. E. 894, 40 L. R. A.
Michalcs v. Hine, 3 Greene (Iowa), 470; 109. Dreyer v. People, 188 III. 40, 58
Smith r. Frisbie, 7 Iowa, 486. To allow N. E. 620. Contra, in Michigan, People
it would be to provide a mode for v. Cummings, 88 Mich. 249, 50 N. W.
choosing judges different from that pre- 810. See also, 9 Yale Law Jour. 17.] A
scribed by the Constitution. State v. justice having power to issue writs as the
Phillips, 27 La. Ann. 663 ; State v. Fritz, commencement of suit, cannot issue them
27 La. Ann. 689. Even the consent of in blank to be up by parties or by
filled
parties would not give the judge this ministerial officers. Pierce v. Hubbard,
authority. Hoagland v. Creed, 81 111. 10 Johns. 405: Craighead v. Martin, 25
506; Andrews v. Beck, 23 Tex. 455; Minn. 41. But a writ will not necessa-
Haverly I. M. Co. v. Howcutt, 6 Col. rily be quashed because filled up by an
574. In Missouri there is statutory pro- unauthorized person. Kinne v. Hinman,
vision for a special judge. State v. Hos- 68 N. H. 363. The clerk of a court of
mer, 85 Mo. 553. Under the Tennessee record may be authorized to enter up
statute a special judge can act only in judgment in vacation against a defendant
civil cases. Neil v. State, 2 Lea, 674. whose indebtedness is admitted of record :
It is competent to send a case to referees Latlirop v. Snyder, 17 Wis. 110; but not
or to a master for investigation of ac- in other cases. See Grattan v. Matteson,
counts. Underwood r. McDuffee, 15 64 Iowa, 229, 6 N. W. 298 Keith v. Kel-
;
261; Smith v. Trimble, 27 111. 152. For nesses, or to pronounce judgment, vio-
the general principle that judicial power lates provision for due process of law.
cannot be delegated, see further, Gough v. Church v. South Kingstown, 22 R. I. 381,
Dorsey, 27 Wis. 119; Milwaukee Indus- 48 All. 3, 53 L. R. A. 739/]
i Backus v.
Lebanon, 11 N. H. 19; remits a part of the verdict. Arkansas
Opinions of Judges, 41 N. H. 550; Dane V. L. &c. Co. v. Mann, 130 U. S. 69, 9 Sup.
Co. v. Dunning, 20 Wis. 210; Stilwell v. Ct. Rep. 458. QNor directing a verdict,
Kellogg, 14 Wis. 461 Mead v. Walker, ;
Treat Mfg. Co. v. Standard Steel and Iron
17 Wis. 189; Commissioners v. Seabrook, Co., 167 U. S. 674, 15 Sup. Ct. Rep. 718.]
2 Strob. 560; Tabor r. Cook, 15 Mich. Nor summary distress for rent if a
jury
322 Lake Erie, &c. R. R. Co. v. Heath,
; may be had,
by replevying property
9 Ind. 568; Byers v. Commonwealth, 42 seized. Blanchard v. Raines, 20 Fla. 467.
Pa. St. 89; State v. Peterson, 41 Vt. They do prevent making the findings of
604 In re Hackett, 53 Vt. 354 Buffalo,
; ; appraisers conclusive evidence of value,
&c. R. R. Co. v. Ferris, 26 Tex. 688; ownership, and injury, where stock is
Sands v. Kimbark, 27 N. Y. 147 Howell ;
killedby a railroad. Graves v. Nor. Pac.
v. Fry, 19 Ohio St. 656 Guile v. Brown, ;
R. R. Co., 6 Mont. 556, 6 Pac. 16. That
38 Conn. 237; Howe v. Plainfield, 37 notwithstanding jury trial is preserved,
N. J. 145 Commissioners
; Morrison, 22 '-. the jurisdiction of justices to try petty
Minn. 178. These provisions do not cases without jury may be extended, see
apply to equitable causes or proceedings : Beers v. Beers, 4 Conn. 535, 10 Am. Dec.
Flaherty v. McCormick, 113 111. 638; 186; Keddie v. Moore, 2 Murph. 41, 6
1
Palmore v. State, 29 Ark. 249 ;
Paul Sorley, 15 R. I. 608, 10 Atl. 659. Compare
v. Detroit, 32 Mich. 108. In re Marron, 60 Vt. 199, 12 Atl. 523.
2 Watertown Bank, But that this could not be admissible
&c. v. Mix, 61
N. Y. 658. in criminal cases was held in Matter of
8 Greene
v. Briggs, 1 Curt. C. C. 311; Dana, 7 Benedict, 1, by Judge Blatchford,
Lincoln Smith, 27 Vt. 328; Norristown,
v. who very sensibly remarks, " In my judg-
&c. Co. v. Burket, 26 Ind. 63; State v. ment the accused is entitled, not to be
Gurney, 37 Me. 156 Copp v. Henniker,
;
first convicted by a court, and then to be
22 Ohio St. 275; Jones v. Robbins, 8 2 Lea, 684; Foster v. Morse, 132 Mass.
Gray, 329 Hapgood v. Doherty, 8 Gray,
;
354. That it is competent to provide that
373 ; Flint River, &c. Co. r. Foster, 6 Ga. the failure to file an affidavit of defence
194; State v. Beneke, 9 Iowa, 203; Lin- shall entitle the plaintiff to
judgment, see
coln v. Smith, 27 Vt. 328, 360 Steuart v. ;
Hoffman Locke, 19 Pa. St. 67; Law-
v.
Baltimore, 7 Md. 600; Commonwealth ranee v. Born, 86 Pa. St. 225 Dortic v. ;
41 Pac. 956. Contra, State v. Gerry, 68 State Johnson, 26 Ark. 281 ; William-
.
N. H. 495, 38 Atl. 272, 38 L. R. A. 228.] son v. Lane, 62 Tex. 335; State v. Vnil,
But the recognizance to the lower court 53 Mo. 07; State v. Lupton, 64 Mo. 415,
on appeal must not be burdened with un- 27 Am. Rep. 253; People v. Cicott, 16
reasonable conditions. Liquors of Me- Mich. 283; People v. Railroad Co., 67
592 CONSTITUTIONAL LIMITATIONS. [CH. XL
2
authority to determine the cause. Nor is it essential that the
judge be a party named in the record if the suit is brought or
;
130, 26 Am. Rep. 335; and cases, p. 938, 4 Gray, 427 Dively v. Cedar Falls, 21
;
1 Co. Lit. 212. See Day v. Savadge, Stockwell v. White Lake, 22 Mich. 341 ;
predict, however, that even in a case of If the property of a judge from its
this kind, if one could be imagined to ex- situation will be affected like complain-
ist, the courts would declare the act of ant's by his ruling he cannot sit. North
Parliament void; though they would Bloomfield G. M. Co. v. Keyser, 58 Cal.
never find such an intent in the statute, if 315. FJOwner of property subject to tax
any other could possibly be made consist- to pay bonded indebtedness of city can-
ent with the words. not sit as judge in a case in which validity
2 of such indebtedness is involved. Meyer
Washington Ins. Co. r. Price, Hopk.
Ch. 2; Sigourney v. Sibley, 21 Pick. 101 ;
v. San Diego, 121 Cal. 102, 1 13, 53 Pac.
Freeman on Judgments, 144. A judge 434, 1128, 41 L. R. A. 762, 66 Am. St. 22.
of probate cannot act upon an estate of Nor can one who has theretofore been an
which lie is executor: Bedell v. Bailey, attorney in the case, although the relation
68 N. H. 62; or creditor, Burks v. Ben- of attorney and client has ceased. State
nett, 62 Tex. 27 i. Compare Matter of v. Hocker, 34 Fla. 25, 15 So. 581, 25
Hancock, 91 N. Y. 284. A justice may L. R. A. 114, and note. Nor if he is a
sit, although he has received for collec- vestryman can he act in a case involving
tion the note in suit. Moon v. Stevens, the interests of his church. State v.
53 Mich. 144, 18 N. W. 600. Young, 31 Fla. 594, 12 So. 673, 19 L. R. A.
3
Washington Ins. Co. v. Price, Hopk. 636, 34 Am. St. 41.] As to disqualifi-
Ch. 1 Dimes v. Proprieters of Grand
; cation by relationship, see Russell v.
Junction Canal, 3 House of Lords Cases, Belcher, 76 Me. 501 Patterson v. Collier,
;
759; Pearce v. Atwood, 13 Mass. 324; 75 Ga. 419; Jordan v. Moore, 65 Tex.
Kentish Artillery v. Gardiner, 15 R. I. 296, 363; Hume v. Commercial Bank, 10
3 Atl. 662 Peck v. Freeholders of Essex,
; Lea, 1.
"
CH. XI.] PROTECTION BY THE LAW OF THE LAND." 593
Ithas been held that where the interest was that of corporator
in a municipal corporation, the legislature might provide that it
should constitute no disqualification where the corporation was
a party. But the ground of this ruling appears to be, that the
1
Dimes v. Proprietors of Grand June- pal creditor was held void. And see
tion Canal, 3 House of Lords Cases, 759, People v. Gies, 25 Mich. 83. In Florida
793. a judge is disqualified to sit in a cause in
2
Ranger v. Great Western R., 5 House which the husband of a niece of the
of Lords Cases, 72, 88; Stuart v. Median- judge is a party. State v. Wall, 41 Fla.
ics' & Farmers' Bank, 19 Johns. 496. 463, 26 So. 1020, 49 L. R. A. 548. A judge
8
Washington Insurance Co. v. Price, whose wife is a stockholder in a corpora-
Hopk. Ch. 1. This subject was consid- tion cannot sit in the trial of a cause to
ered in Hall v. Thayer, 105 Mass. 219, and which it is party. First Nat. Bank v.
an appointment by a judge of probate of McGuire, 12 S. 1). 22G, 80 N. W. 1074, 47
his wife's brother as administrator of an L. R. A. 413, 76 Am. St. 598-3
estate of which her father was a princi-
594 CONSTITUTIONAL LIMITATIONS. [CH. XL
party, unless the State, which passes the law, or the municipali-
ties, which are its component parts and subject to its control, can
be regarded as such.
But except in cases resting upon such reasons, we do not see
how the legislature can have any power to abolish a maxim which
is among the fundamentals of judicial authority. The people of
the State, when framing their constitution, may possibly establish
so great an anomaly, if they see fit ; 3 but if the legislature is en-
trusted with apportioning and providing for the exercise of the
judicial power, we cannot understand it to be authorized, in the
execution of this trust, to do that which has never been recog-
nized as being within the province of the judicial authority. To
empower one party to a controversy to decide it for himself is not
within the legislative authority, because not the establishment
it is
1
Commonwealth Reed, 1 Gray, 475;
i*.
8 Matter of Leefe, 2 Barb. Ch. 39.
Justices v. 1 N. J. 190; Com-
Fennimore, Even this must be deemed doubtful since
missioners v. Little, 3 Ohio, 289; Min- the adoption of the fourteenth article of
neapolis v. Wilkin, 30 Minn. 140, 14 the amendments to the Federal Constitu-
N. ,W. 681. See Foreman v. Marianna, tion, which denies to the State the right
43 Ark. 324, case of annexing territory ;
to deprive one of life, liberty, or property,
Sauls v. Freeman, 24 Fla. 209, 225, 4 So. without due process of law.
625, 577, case of changing county seat. * See Ames v. Port Huron Log-Driv-
fjAiid a judge who is member of a State ing and Booming Co., 11 Mich. 139 ;
Hall
bar association may pass upon disbar- v. Tlmyer, 105 Mass. 219; Stater. Crane,
ment proceedings brought by the associa- 36 N. J. 394: Cypress Pond Draining Co.
tion, although, if the proceedings fail, v.
Hooper, 2 Met. (Ky.) 350; Scuffletown
costs will go against the association. Ex Fence Co. v. McAllister, 12 Bush, 312;
parte Bar Association, 92 Ala. 113, 8 So. Reams v. Kearns, 5 Cold. 217. No power
768, 12 L. R. A. 134.] tomake a municipal corporation party
2
Commonwealth v. Ryan, 6 Mass. 90; and judge in the same controversy can
Hill Wells, 6 Pick. 104; Commonwealth
v.
constitutionally be given. Lanfear v.
v. Emery, 11 Cush. 406; State v.
Craig, Mayor, 4 La. 97, 23 Am. Dec. 477.
80 Me. 85, 13 Atl. 129 In re Guerrero,
;
Nor do we how
the objection of interest can be waived by
see
the other party. not taken before the decision is rendered, it
If
will avail in an appellate court and the suit may there be dis-
;
*
Richardson v. Welcome, 6 Cush. 332 ;
trates. See also the Queen v. Justices
Dimes Proprietors of Grand Junction
v. of Suffolk, 18 Q. B. 416; The Queen v.
Canal, 3 H. L. Cas. 759. And see Sigour- Justices of London, 18 Q. B. 421 Pe- ;
ney v. Sibley, 21 Pick. 101; Oakley v. ninsula R. R. Co. v. Howard, 20 Mich. 18.
8
Aspinwall, 3 N. Y. 547. But it is held in Richardson v. Boston, 1 Curtis, C. C.
Pettigrew Washington Co., 43 Ark. 33,
v. 250 Washington Insurance Co. i\ Price,
;
that after judgment it is too late to ob- Hopk. Cli. 1 Buckingham v. Davis, 9
;
ject that relationship to a party disquali- Md. 324; Heydenfeldt v. Towns, 27 Ala.
fied a judge. But see succeeding note. 423; State v. Judge, 37 La. Ann. 253.
2 In Queen v. Justices of Hertford- If the judge who renders judgment in a
shire, 6 Q. B. 753, it was decided that, if cause had previously been attorney in
any one of the magistrate hearing a case it, the judgment is a nullity. Reams v.
at sessions was interested, the court was Kearns, 5 Cold. 217 Slaven v. Wheeler,
;
improperly constituted, and an order made 68 Tex. 23. [[Or if he has advised one
in the case should be quashed. It was of the parties upon his rights in regard
also decided that it was no answer to the to any fact involved in the case. Tampa
objection that there was a majority in St. R. & P. Co. v. Tampa Suburban R.
favor of the decision without reckoning Co., 30 Fla. 695, 11 So. 562, 17 L. R. A.
the interested party, nor that the inter- 681.] So though the case in suit is not
ested party withdrew before the decision, precisely the one in which he has been
if he appeared to have joined in discuss- consulted. Newcome v. Light, 68 Tex.
ing the matter with the other magis- 141.
CONSTITUTIONAL LIMITATIONS. [CH. XIL
CHAPTER XII.
1
The following are the constitutional the security of freedom in a State it ;
or the qualifications of those who are both and criminal, the truth, unless
civil
candidates for the suffrages of the people, published from malicious motives, shall
or where the matter published is proper be sufficient defence to the person charged.
for public information, the truth thereof Art. 1, 20. Connecticut: No law shall
may be given in evidence ;
and in all in- ever be passed to curtail or restrain the
dictments for libel, the jury, after having liberty of speech or of the press. In all
received the direction of the court, shall prosecutions or indictments for libel, the
have a right to determine, at their dis- truth may be given in evidence, and the
cretion, the law and the fact. Declara- jury shall have the right to determine the
tion of Rights, 4. New Hampshire : The law and the facts, under the direction of
liberty of the press is essential to the the court. Art. 1, 6 and 7. New
security of freedom in a State it ought, ; York: Every person may freely speak,
therefore, to be inviolably preserved. Bill write, and publish his sentiments on all
of Rights, 22. Vermont: That the peo- subjects, being responsible for the abuse
ple have a right to freedom of speech, of that right and no law shall be passed
;
and of writing and publishing their sen- to restrain or abridge the liberty of speech
timents concerning the transactions of or the press. In all criminal prosecutions
government therefore the freedom of the
; or indictments for libels, the truth may
press ought not to be restrained. Decla- be given in evidence to the jury, and if it
ration of Rights, Art. 13. Massachusetts : shall appear to the jury that the matter
The liberty of the press is essential to charged as libellous is true, and was pub-
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 597
lished with good motives and for justifia- other cases. Art. 1, 6. Maryland:
ble ends, the party shall be acquitted, and That the liberty of the press ought to be
the jury shall have the right to determine inviolably preserved ;that every citizen
the law and the fact. Art. 1, 8. New of the State ought to be allowed to speak,
Jersey: Every person may freely speak, write, and publish his sentiments on all
write, and publish his sentiments on all subjects, being responsible for the abuse
subjects, being responsible for the abuse of that privilege. Declaration of Rights,
of that right. No law shall be passed to Art. 40. West Virginia : No law abridg-
restrain or abridge the liberty of speech ing the freedom of speech or of the press
or of the press. In all prosecutions or shall be passed but the legislature may
;
indictments for libel, the truth may be provide for the restraint and punishment
given in evidence to the jury; and if it of the publishing and vending of obscene
shall appear to the jury that the matter books, papers, and pictures, and of libel
charged as libellous is true, and was pub- and defamation of character, and for the
lished with good motives and for justifia- recovery in civil action by the aggrieved
ble ends, the party shall be acquitted ; party of suitable damages for such libel
and the jury shall have the right to de- or defamation. Attempts to justify and
termine the law and the fact. Art. 1, uphold an armed invasion of the State, or
5. Pennsylvania: That the printing- an organized insurrection therein during
press shall be free to every person who the continuance of such invasion or in-
may undertake to examine the proceed- surrection, by publicly speaking, writing,
ings of the legislature, or any branch of or printing, or by publishing, or circulat-
government, and no law shall ever be ing such writing or printing, may be bj
made to restrain the right thereof. The law declared a misdemeanor, and pun-
free communication of thoughts and opin- ished accordingly. In prosecutions and
ions is one of the invaluable rights of civil suits for libel, the truth may be
sponsible for the abuse of that liberty. libellous is true, and was published with
No conviction shall be had in any prose- good motives, and for justifiable ends, the
cution for the publication of papers, re- verdict shall be for the defendant. Art.
lating to the official conduct of
officers or 2, 4 and 5. Kentucky : That printing-
men in public capacity, or to any other presses shall be free to every person who
matter proper for public investigation or undertakes to examine the proceedings of
information, where the fact that such the General Assembly, or any branch of
was not maliciously or negli- the government, and no law shall ever
publication
gently shall be established to the
made be made to restrain the right thereof.
satisfaction of the jury and in all in-
;
The free communication of thoughts and
dictments for libels, the jury shall have opinions is one of the invaluable rights
the right to determine the law and the of man, and every citizen may freely
facts, under the direction of the court, as speak, write, and print on any subject,
in other cases. Art. 1, 7. Delaware : being responsible for the abuse of that
The press shall be free to every citizen liberty. In all prosecutions for the publi-
who undertakes to examine the official cation of pnpers investigating the official
conduct of men acting in public capacity, conduct of officers or men in a public
capacity, or where the
matter published
and any citizen print on any such
may
abuse is proper for public information, the truth
subject, being responsible for the
of that liberty. In prosecutions for pub- thereof nriy be given in evidence and in
;
lications investigating the proceedings of allindictments for libels, the jury shall
officers, or where the matter published
is have a right to determine the law and
truth the facts, under the direction of the
proper for public information, the 9
and court, as in other cases. Art. 13,
thereof may be given in evidence ;
in all indictments for libels, the jury may and 10. Tennessee: Nearly the same
as Pennsylvania. Art 1, 19. Ohio:
determine the facts and the law, as in
598 CONSTITUTIONAL LIMITATIONS. [CH. XII.
citizen may freely speak, write, ments on all subjects, being responsible
Every
and publish his sentiments on all subjects, for the abuse of such right and in all ;
for the abuse of the civil orcriminal actions for libel, the truth
being responsible
right ; and no law shall be passed
to re- may be given in evidence to the jury ;
strain or abridge liberty of speech or of and if it shall appear that the alleged li-
the press. In all criminal prosecutions bellous matter was published for justifia-
for libel, the truth may be given in evi- ble ends, the accused party shall be ac-
quitted. Bill of Rights, 11. Missouri :
dence to the jury and if it shall appear
;
to the jury that the matter charged as li- That no law shall be passed impairing the
bellous is true, and was published with freedom of speech that every person
;
Substantially same as Ohio. Illinois: and that in all prosecutions for libel, the
Every person may freely speak, write, truth thereof may be
given in evidence,
and publish on all subjects, being respon- and the jury, under the direction of the
sible for the abuse of that liberty and in ; court, shall determine the law and the
all trials for libel, both civil and criminal, fact. Art. 2, 14. Nebraska : Same as
the truth, when published with good mo- Illinois. Art. 1, 5. Arkansas: The
tives and for justifiable ends, shall be a liberty of the press shall forever remain
sufficient defence. Art. 2, 4. Indiana : inviolate. The free communication of
No law shall be passed restraining the thoughts and opinions is one of the inval-
free interchange of thought and opinion, uable rights of man, and all persons may
or restricting the right to speak, write, or freely speak, write, and publish their sen-
but timents on
print freely on any subject whatever ,
all subjects, being responsible
for the abuse of that right every person for the abuse of such right. In all crim-
shall be responsible. In all prosecutions inal prosecutions for libel, the truth may
for libel, the truth of the matters alleged be given in evidence to the jury ; and if
to be libellous may be given in justifica- it shall appear to the jury that the matter
tion. Art. 1, 9 and 10. Michtyan : In charged as libellous is true, and was pub-
all prosecutions for libels, the truth may lished with good motives and for justifia-
be given in evidence to the jury and if ;
ble ends, the party shall be acquitted.
it shall appear to the jury that the matter Art. 1, 2. Florida : Every person may
charged as libellous is true, and was pub- freely speak and write his sentiments on
lished with good motives and for justifia- all subjects, being responsible for the
ble ends, the party shall be acquitted. abuse of that right, and no law shall be
The jury shall have the right to deter- passed to restrain or abridge the liberty
mine the law and the fact. Art 6, 26. of speech or the press. In all criminal
Wisconsin: Same as New York. Art. 1, prosecutions and civil actions for libel,
8. Minnesota : The liberty of the press the truth may be given in evidence to the
shall forever remain inviolate, and all jury and if it appear that the matter
;
persons may freely speak, write, and pub- 'charged as libellous is true, and was pub-
lish their sentiments on all subjects, being lished with good motives, the party shall
responsible for the abuse of such right. be acquitted or exonerated. Declaration
Art. 1, 3.- Oregon: No law shall be of Rights, 10. Georgia : No law shall
passed restraining the free expression of ever be passed to curtail or restrain the
opinion, or restricting the right to speak, liberty of speech or of the press any ;
write, or print freely on any subject what- person may speak, write, and publish his
ever but every person shall be responsi-
;
sentiments on all subjects, being respon-
ble for the abuse of this right. Art. 1, 8. sible for the abuse of that liberty. Art.
California Same as New York. Art. 1,
: 1, 1, par. 15. Louisiana : No law shall
9. Kansas : The liberty of the press be passed .
abridging the freedom of
. .
shall be inviolate, and all persons may speech or of the press. Bill of Rights,
freely speak, write, or publish their senti- Art. 4. North Carolina : The freedom of
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 509
lina : All persons may freely speak, write, no law shall ever be passed curtailing the
and publish their sentiments on any sub- liberty of speech or of the press. In pros-
ject, being responsible for the abuse of ecutions for the publication of papers, in-
that right; and no laws shall be enacted vestigating the official conduct of officers
to restrain or abridge the liberty of speech or men in a public capacity, or when the
or of the press. In prosecutions for the matter published is proper for public in-
publication of papers investigating the formation, the truth thereof may be given
official conduct of officers or men in pub- in evidence and in all prosecutions for
;
lic capacit) or when the matter published the jury shall have the right to de-
1
, libels,
is proper for public information, the truth termine the law and the facts, under the
thereof may be given in evidence and in ;
direction of the court, as in other cases.
allindictments for libel the jury shall be Art. 1, 6 and 6. Virginia : That the
judges of the law and the facts. Art. 1, freedom of the press is one of the great
7 and 8. Alabama : That any citizen bulwarks of liberty, and can never be re-
may speak, write, and publish his senti- strained but by despotic governments, and
ments on all subjects, being responsible any citizen may speak, write, and publish
for the abuse of that liberty. That his sentiments on all subjects, being re-
in prosecutions for the publication of sponsible for the abuse of that liberty.
papers investigating the official conduct Art. 1, 14. Colorado: That no law
of officers or men in public capacity, shall be passed impairing the freedom of
or whenthe matter published is proper speech that every person shall be free
;
for public information, the truth there- to speak, write, or publish whatever he
of may be given in evidence and that ;
will on any subject, being responsible for
in all indictments for libels, the jury shall all abuse of that liberty and that [in]
;
have the right to determine the law and all suits and prosecutions
for libel, the
the facts, under the direction of the court. truth thereof be given in evidence,
may
Art. 1, 5 and 13. Mississippi: The and the jury, under the direction of the
freedom of speech and of the press shall court, shall determine the law and the
be held sacred and in all indictments for
;
fact. Art. 2, 10.
latter in the publication of all matters of 1668 the supervisors having allowed of
public interest, and in the discussion of the printing Thomas a Kempis de Imi-
'
public affairs. Freedom to report pro- tatione Christ!,' the court interposed, ' it
feedings and debates was due at last to being wrote by a popish minister, and
Wilkes, who, worthless as he was, proved containing some things less safe to be in-
a great public benefactor in his obstinate fused among the people,' and therefore
defence of liberty of the press and secu- they commended to the licensers a more
rity from arbitrary search and arrest. A full revisal, and ordered the press to stop
fair publication of a debate is now held in the mean time." 1 Hutchinson's Mass
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 601
257, 2d ed. See 1 Tyler, Hist, of Am. and an almanac printed until 1640. 1
Literature, 112, 113. A
license is given Thomas, Hist, of Printing, 149; Mass.
in Mass. Hist. Col. 3d Ser. vol. 7, p. 171. Hist. Col. 4th Ser. vol. 6, pp. 99, 370.
"
1 1 Hildreth, History of the United There is Narrative of Newspapers in
a
States, 561. New ;1
England in Mass. Hist. Col. 1st Ser.
2 Hutchinson's Mass. (2d ed.) 211
1 vol. 5, p. 208.
;
in 1638, hut not set up until the following 1 Tyler, Hist, of Am. Literature, 89 ;
year, and nothing but the Freeman's Oath Wise's Seven Decades of the Union, 310.
602 CONSTITUTIONAL LIMITATIONS. [CH. XII.
1 " This
broke the spell of delibera- in 1766, on the motion of Otis. Tudor's
and a few days
tions in secret conclave ; Life of Otis, 252.
afterwards, on the 20th of the same It is mentioned neither in the Eng-
month, a general resolution was adopted lish Petition of Rights nor in the Bill ot
by the Senate, that, after the end of the Rights of so little importance did it
;
to throw open its debates to the public et seq. ; Rawle on Const, c. 10.
was the General Court of Massachusetts,
OH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 603
,
gard to the other parts of that instrument, and to the wisdom of
.
those who founded
requires.
it, In the eleventh article it is de-
clared that ' every subject of the Commonwealth ought to find a
certain remedy, by having recourse to the laws, for all injuries or
wrongs which he may receive in his person, property, or charac-
'
ter and thus the general declaration in the sixteenth article is
;
speech or of the press. State v. McKee, to make public speeches, is void. Lonthan
73 Conn. 18, 46 Atl. 409, 49 L. R. A. 542, v. Com., 79 Va. 196.]
84 Am. St. 124. Nor does an ordinance
604 CONSTITUTIONAL LIMITATIONS. [CH. XII.
(a) [^Statute may make it a crime to send an offensive dun or a letter threaten-
"
ing to publish the debtor as a dead beat." State v. MeCabe, 135 Mo. 450, 37 S. W.
123, 34 L. R. A. 127, 08 Am. St. 589. Upon constitutional freedom of speech and of
press, see note in 32 L. R. A. 829. In Wallace v. Georgia C. & N. Ry. Co., 94 Ga.
732, 22 S. E. 579, it was held that this constitutional provision not only secured the
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 605
Harrington v. Miles, 11 Kan. 480, 15 Am. heimer, 69 Iowa, 210, 28 N. W. 559; Chris-
Rep. 355 Montgomery v. Deeley, 3 Wis.
; tal v. Craig, 80 Mo. 367, for other illustra-
709 Filber v. Dauhterman, 26 Wis. 518
; ; tions of charges not actionable per se. If,
Perdue Burnett, Minor, 138
v. M'Cuen ; however, the words, though seeming to
v. Ludlum, 17 N. J. 12 Gage v. Shelton, ; charge a crime, are equivocal, and may
3 Rich. 242 Pollard v. Lyon, 91 U. S.
; be understood in an innocent sense, they
225 Wagaman v. Byers, 17 Md. 183 ;
; will not be actionable without the proper
Castleberry v. Kelly, 26 Ga. 606 Burton ; averment to show the sense in which
v. Burton, 3 Greene (Iowa), 316; Sim- they were used; as, for instance, where
mons ?-. Holster, 13 Minn. 219; Seller v. one is charged with having sworn falsely;
Jenkins, 97 Ind. 430; Campbell v. Camp- which may or may not be a crime. Gil-
bell, 54 Wis. 90, UN. W.456; Lemons v. man v. Lowell, 8 Wend. 573; Sheely .
Wells, 78 Ky. 117; Brooks v. Harison, 91 Biggs, 2 Har. & J. 363, 3 Am. Dec. 552;
N. Y. 83 Bacon v. Mich. Centr. R. R.
;
Brown v. Hanson, 53 Ga. 632 ; Crone v.
liberty to speak, but by implication the liberty to refrain from speaking, and applied
the principle to a statute requiring employers to assign the reason for discharging
an employee, holding such statute invalid.^
606 CONSTITUTIONAL LIMITATIONS. [CH. XII.
2
believed, being to exclude him from the society of his fellows. An-
other was where the charge affected the party in his business,
office, or means of livelihood, as where it was said of a postmaster
that he would rob the mail 3
or of a trader, to
;
whom credit is im-
12 Pa. St. 200; Casselman v. Winship, Hubachek, 86 Wis. 515 Robbins v. Tread- ;
3 Dak. 292, 19 N. W. 412. It is not neces- way, 2 J. J. Marsh. 540 Hook v. Hack- ;
sary, however, that technical words be ney, 16 S. & R. 385 Harris v. Terry, 98 ;
employed if;
the necessaiy inference, N. C. 131, 3 S. E. 745 De Pew v. Robin- ;
taking the words together, is a charge of son, 95 Ind. 109 Pratt v. Pioneer Press;
ton, 58 Vt. 181, 2 All. 475. Compare N. W. 903 Dooling v. Budget Pub. Co.,
;
N. H. 478 ; Trabue v. Mays, 3 Dana, 138 ; How, 31 Minn. 235, 17 N. W. 383 Wil- ;
Hardw. 339; Smith v. Stewart, 5 Pa. St. listing as libel, see note to this case in
372 Holley v. Burgess, 9 Ala. 728 ; Van
;
L. R. A.]
Ankin v. Westfall, 14 Johns. 233; Krebs 6 Janson
v. Stuart, 1 T. R. 748 Van ;
397, 6 S. E. 105, and cases in Cooley on Ranger v. Goodrich, 17 Wis. 78; Adams
Gillespie, 2 Johns. 115,3 Am. Dec. 404; v. Bridgeman, 17 Iowa, 290; Patterson v.
Dec. 337; Bradt v. Towsley, 13 Wend. ter, 29 Wis. 646 Kelly v. Flaherty, 16
;
Carter, 4 Stew. & Port. 387, '24 Am. Dec. Niebaum, 70 Cal. 216, 11 Pac. 641. The
762; Elliot v. Ailsbury, 2 Bibb, 473, 5 injustice of the common-law rule is made
Am. Dec. 631 Linney v. Maton, 13 Tex.
; prominent in those cases where it has
449; Underbill v. Welton, 32 Vt. 40; been held that an allegation that, in con-
Castleberry v. Kelly, 26 Ga. 606. sequence of the charge, the plaintiff had
2 See the cases of Sexton v. fallen into disgrace, contempt, and in-
Todd,
Wright, 317 Wilson v. Runyan, Wright,
; famy, and lost her credit, reputation, and
651 Malone v. Stewart, 15 Ohio, 319 ;
; peace of mind (Woodbury v. Thompson,
Barnett v. Ward, 36 Ohio St. 107, 38 3 N. H. 194), and that she is shunned by
Am. Rep. 561 Klewin v. Bauman, 53 ;
her neighbors (Beach v. Ranney, 2 Hill,
Wis. 244; Moberly v. Preston, 8 Mo. 462; 310), was not a sufficient allegation of
Sid greaves v. Myatt, 22 Ala. 617 Terry ; special damage to support the action. In
v. Bright, 4 Md. 430 ; Spencer v. Me Mas- the following States, and perhaps some
ters, 16 111. 105. others, to impute unchastity to a female
8
See Frisbie v. Fowler, 2 Conn. 707 ; isactionable per se by statute Alabama, :
derson, 2 T. B. Monr. 56, 15 Am. Dec. 117 Steele v. South wick, 9 Johns. 214
; ;
Court of Errors, that the plaintiff could behalf of his whole regiment, for defama-
not maintain a civil suit, because the tion, in calling them a regiment of cow-
publication reflected upon a class of in- ards and blackguards.' In Eexv. Hector
dividuals, and not upon the plaintiff per- Campbell, King's Bench, Hil. Term, 1808
'
sonally, said, pp. 195-196 There are
:
(cited in Holt on Libel, 249, 250), an
many cases in the books where the writ- information was granted for a libel on
ers and publishers of defamatory charges, the College of Physicians and the re- ;
reflecting upon the conduct of particular spondent was convicted and sentenced.
classes or bodies of individuals, have been Cases may be supposed where publi-
proceeded against by indictment or infor- cations, though of a defamatory nature,
mation, although no particular one was have such a wide and general application
named or designated therein to whom the that, in all probability, a breach of the
charge had a personal application. AH peace would not be caused thereby but ;
those cases, however, whether the libel is itdoes not seem to us that the present
upon an organized body of men, as a publication belongs to that class.
"
legislature, a court of justice, a church, Our conclusion is that the jury
or a company of soldiers, or upon a par- should have been instructed that the first,
ticular class of individuals, proceed upon fourth, and fifth articles were prima facie
the ground that the charge is a misde- libellous and that the publication of
;
89
610 CONSTITUTIONAL LIMITATIONS. [CII. XII.
legal inference of malice, and to throw upon the plaintiff the bur-
den of offering some evidence of its existence beyond the mere
falsity of the charge.
1
The first class is absolutely privileged ;
it
embraces but few cases, which for the most part concern the ad-
ministration of the government in some of its branches (a) the ;
"
1 Lewis v. Chapman, 16 N. Y. 369, robbed and swindled " them, is privi-
373, per Selden, J. ;
Townsend on Libel leged. Klinck v. Colby, 46 N. Y. 427,
" It 7 Am. Rep. 360. The statement in a
and Slander, 20!). properly sig-
nifies this and nothing more that the :
report of an incorporated society cau-
excepted instances shall so far change tioning the public against trusting a per-
the ordinary rule with respect to slander- son who had formerly been employed in
ous or libellous matter as to remove the collecting subscriptions for them,
is privi-
regular and usual presumption of malice, leged. Gasset v. Gilbert, 6 Gray, 94.
and to make it incumbent on the party But see Holliday v. Ont. Farmers, &c.
complaining show malice." Daniel, J.,
to Co., 1 Ont. App. 483. And the com-
in White Nichols, 3 How. 266, 287.
v. munication by a merchant to a subsequent
And see Dillard v. Collins, 25 Gratt. 343 ; employer of a clerk whom he had recom-
Mclntyre v. McBean, 13 Q, B. (Ontario) mended, of facts which caused him to
634. change his opinion, is privileged. Fowles
2 Whena communication is made in v. Bowen, 30 N. Y. 20. And so is a com-
confidence, either by or to a person in- munication made in good faith by a per-
terested in the communication, supposing son employed in a confidential relation.
it to be true, or by way of admonition or Atwill v. Mackintosh, 120 Mass. 177. So is
advice, it seems to be a general rule that one charging a child with stealing, made in
malice {/. e. express malice) is essen- answer to inquiry of the mother. Long v.
tial to the maintenance of an action." 1 Peters, 47 Iowa, 239. So is a statement
Starkie on Slander, 321. See Harrison v. of an investigating officer as to the
Bush, 5 El. & Bl. 344; Somerville v. worthiness of a person, to one interested
Hawkins, 10 C. B. 583 Wright v. Wood-
;
in aiding him. Waller v. Loch, L. R. 7
gate, 2 Cr. M. & R. 576; Whiteley r. Q. B. D. 619. So is a statement by a
Adams, 45 C. B. N. s. 392. A paper vendor's servant to the vendee of cattle,
signed by a number of parties agreeing of the former's fraud. Mott o. Dawson,
to join in the expense of prosecuting 46 Iowa, 533.
others, who were stated therein to have
1
determining upon employing the same person; answers to in-
quiries by one tradesman of another as to the solvency of a person
whom the inquirer has been desired to trust 2 answers by a cred- ;
2 Smith
v. Thomas, 2 Bing. N. C. 372; v. Deacon, 2 M. G. & S. 628. A letter
Storey v. Challands, 8 C. & P. 234. A volunteering to an employer information
statement made in honest belief to an in- of his servant's untrustsvorthiness is not
quirer as to credit of a person who has privileged when sent to effect the writer's
referred him to the speaker, is privileged. purpose, and not in good faith to protect
Fahr v. Hayes, 5.0 N. J. L. 275, 13 Atl. the employer. Over v. Schiffling, 102
261. But the reports of a mercantile Ind. 191, 26 N. E. 91. Where a con-
agency, published and distributed to its fidential relation of any description exists
customers without regard to their special between the parties, the communication
interest in any particular case, are not is privileged ;
as where the tenant of a
privileged. Taylor v. Church, 8 N. Y. nobleman had written to inform him of
452; Sunderlin v. Bradstreet, 46 N. Y. his gamekeeper's neglect of duty. Coek-
188, 7 Am. Rep. 322; Beardsley v. Tap- agne v. Hodgkisson, 5 C. & P. 543. Where
pan. 5 Blatcli. 497 King v. Patterson, 49
;
a son-in-law wrote to warn his mother-in-
N. J. L. 417, 9 Atl. 705 Bradstreet Co. c.
;
law of the bad character of a man she
Gill, 72 Tex. 115, 9 S. W. 753. But re- was about to marry. Todd v. Hawkins,
ports in response to inquiries from those 8 C. & P. 88. Where a banker communi-
who have such special interest are privi- cated with his correspondent concerning
leged. Ormsby v. Douglass, 37 N. Y. a note sent to him for collection the ;
477; Trussell v. Scarlett, 18 Fed. Rep. court saying that "all that is necessary
214; Erber v. Dun, 12 Fed. Rep. 526. to entitle such communications to be
See also State v. Lonsdale, 48 Wis. 348, regarded as privileged is, that the relation
4 N. W. 390 Locke v. Bradstreet Co., 22
;
of the parties should be such as to afford
Fed. Rep. 771 Woodruff v. Bradstreet
; reasonable ground for supposing an inno-
Co., 116 N. Y. 217, 22 N. E. 354 Johnson ;
cent motive for giving the information,
v. Bradstreet Co., 77 Ga. 172. and to deprive the act of an appearance
8 Dunman v. of officious intermeddling with the affairs
Bigg, 1 Campb. 269, note ;
very well settled, and are not likely to be changed with a view to
1
greater stringency.
paper that his servant had left his employ, P. 680; Lawler v. Earle, 6 Allen, 22;
and taken upon himself to collect the Grimes v. Coyle, 6 B. Monr. 301 Rector
;
tradesman's bills. Hatch r. Lane, 105 v. Smith, 11 Iowa, 302; Goslin v. Can-
unworthy of his position, and is insub- v. Fairbanks, 136 Mass. 177; Bacon v.
Redgate v. Roush, 61 Kan. 480, 59 Pac. Littledale, J. See the proceedings against
1050, 48 L. R. A. 236.] Thomas Paine, 27 State Trials, 357.
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 613
spark of truth that flies up in the faces of them that seek to tread
" i
it out.'
1
May, Constitutional History, c. 10. State Trials, 688. And see 2 Randall,
2 United States v. Hudson, 7 Cranch, Life of Jefferson, 417-421 5 Hildreth,
;
32. See ante, p. 46, and cases cited in History of United States, 247, 365.
* The author of the Life and Times
note-.
8
For prosecutions under this law, see ofWarren very truly remarks that " the
Lyon's Case, Wharton's State Trials, 333 ;
common-law offence of libelling a govern-
Cooper's Case, Wharton's State Trials, ment is ignored in constitutional systems,
659 HaswelPs Case, Wharton's State
;
as inconsistent with the genius of free
Trials, 684; Callendar's Case, Wharton's institutions." P. 47.
614 CONSTITUTIONAL LIMITATIONS. [CH. XII.
cases where the common law made the party responsible for his
false accusations. The constitutional provisions do not prevent
the modification of the common-law rules of liability for libels
and slanders, but they would not permit bringing new cases
within those rules when they do not rest upon the same or similar
reasons. 1
1 and vicious is a mera-
In Respublica v. Dennie, 4 Yeates, cally contemptible
267, 2 Am. Dec. 402, the defendant was orable example of what the villany of
indicted in 1805 for publishing the follow- some men can devise, the folly of others
ing in a public newspaper: "A
democracy receive, and both establish in spite of
is scarcely tolerated at any period of reason, reflection, and sensation." Judge
national history. Its omens are always Yeates charged the jury, among other
sinister, and
its powers are unpropitious. things, as follows: "The seventh sec-
With the lights of experience blazing
all tion of the ninth article of the constitution
before our eyes, it is impossible not to of the State must be our guide upon this
discover the futility of this form of govern- occasion; it forms the solemn compact be-
merit. It was weak and wicked at Athens, tween the people and the three branches
it was bad in Sparta, and worse in Rome, of the government, the legislative, ex-
It has been tried in France, and termi- euutive, and judicial powers. Neither of
nated in despotism. It was tried in Eng- them can exceed the limits prescribed to
land, and rejected with the utmost loath- them respectively. To this exposition of
ing and abhorrence. It is on its trial here, the public will every branch of the com-
and its issue will be civil war, desolation, mon law and of our municipal acts of
and anarchy. No wise man but discerns assembly must conform and if incom-
;
its imperfections, no good man but shud- patible therewith, they must yield and
ders at its miseries, no honest man but pro- give way. Judicial decisions cannot
claims its fraud, and no brave man but weigh against it when repugnant thereto,
draws his sword against its force. The It runs thus: 'The printing-presses shall
institution of a scheme of polity so radi- be free to every person who under-
616 CONSTITUTIONAL LIMITATIONS. [CH. XII.
takes to examine the proceedings of the The same matter may be objected against
any branch of the govern-
legislature, or them when party spirit runs high, in other
ment and no law shall ever be made to
;
criminal prosecutions. But we have no
restrain the right thereof. The free other constitutional mode of decision
communication of thoughts and opinions pointed out to us, and we are bound to
is one of the invaluable rights of man ; use the method described.
"
and every citizen may freely speak, write, It is no infraction of the law to pub-
and print on any subject, being respon- lish temperate investigations of the na-
sible for the abuse of that liberty. In ture and forms of government. The day
is long past since Algernon Sidney's cele-
prosecutions for the publication of papers,
investigating the official conduct of offi- brated treatise on government, cited on
cers or men in a public capacity, or where this trial, was considered as a treasonable
the matter published is proper for public libel. The enlightened advocates of rep-
information, the truth thereof may be resentative republican government pride
given in evidence; and in all indictments themselves in the reflection that the more
for libels, the jury shall have a right to deeply their system is examined, the more
determine the law and the facts, under fully will the judgments of honest men
the direction of the court, as in other be satisfied that it is the most conducive
cases.' Thus it is evident that legislative to the safety and happiness of a free peo-
'
acts, or of any branch of the government, ple. Such matters are proper for public
are open to public discussion and every
;
information.' But there is a marked and
citizen may freely speak, write, or print evident distinction between such publica-
on any subject, but is accountable for the tions and those which are plainly accom-
abuse of that privilege. There shall be panied with a criminal intent, deliberately
no licensers of the press. Publish as you designed to unloosen the social band of
please in the first instance, without con- union, totally to unhinge the minds of the
trol; but you are answerable both to the citizens, and to produce popular discon-
community and the individual if you tent with the exercise of power by the
proceed to unwarrantable lengths. No known constituted authorities. These
alteration is hereby made in the law as latter writings are subversive of all gov-
to private men affected by injurious pub- ernment and good order. '
The liberty
lications, unless the discussion he proper of the press consists in publishing the
for public information. But if one uses
'
truth, from good motives and for justifi-
the weapon of truth wantonly for dis- able ends, though it reflects on govern-
turbing the peace of families, he is guilty ment or on magistrates.' Per General
of a libel.' Per General Hamilton, in Hamilton, in Croswell's Trial, pp. 63, 64.
CroswelPs Trial, p. 70. The matter pub- It disseminates political knowledge, and,
lished is not proper for public informa- by adding to the common stock of free-
tion. The common weal is not interested dom, gives a just confidence to every in-
in such a communication, except to sup- dividual. But the malicious publications
press it. wl.ich I have reprobated infect insidiously
" What is the meaning of the words the public mind with a subtle poison, and
'being responsible for the abuse of that produce the most mischievous and alarm-
liberty,' if the jury are interdicted from ing consequences by their tendency to
deciding on the case ? Who else can anarchy, sedition, and civil war. We
constitutionally decide on it? The ex- cannot, consistently with our official duty,
pressions relate to and pervade every declare such conduct dispunishable. We
part of the sentence. The objection that believe that it is not justified by the
the determinations of juries may vary at words or meaning of our constitution. It
different times, arising from their differ- is true it may not be easy in every in-
ent political opinions, proves too much. stance to draw the exact distinguishing
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 617
line. To the jury it peculiarly belongs sciences of the jury shall be clearly satis-
to decide on the intent and object of the fied that the publication was seditiously,
writing. It is their duty to judge can- maliciously, and wilfully aimed at the
didly and fairly, leaning to the favorable independence of the United States, the
side when the criminal intent is not Constitution thereof, or of this State,
clearly and evidently ascertained. they should convict the defendant. If,
" It
remains, therefore, under our most on the other hand, the production was
careful consideration of the ninth article honestly meant to inform the public mind,
of the Constitution, for the jury to divest and warn them against supposed dangers
themselves of all political prejudices (if in society, though the subject may have
any such they have), and dispassionately been treated erroneously, or that the cen-
to examine the publication which is the sures on democracy were bestowed on
ground of the present prosecution. They pure unmixed democracy, where the
must decide on their oaths, as they will people en masse execute the sovereign
answer to God and their country, whether power without the medium of their rep-
the defendant, as a factious and seditious resentatives (agreeably to our forms of
person, with the criminal intentions im- government), as have occurred at different
puted to him, in order to accomplish the times in Athens, Sparta, Rome, France,
object stated in the indictment, did make and England, then, however the judg-
and publish the writing in question. ments of the jury may incline them to
Should they find the charges laid against think individually, they should acquit
them in the indictment to be well founded, the defendant. In the first instance the
they are bound to find him guilty. They act would be criminal in the last it would
;
must judge for themselves on the plain be innocent. If the jury should doubt of
import of the words, without any forced the criminal intention, then also the law
or strained construction of the meaning pronounces that he should be acquitted.
1'
of the author or editor, and determine on 4 Burr. 2552, per Lord Mansfield. Ver-
the correctness of the innuendoes. To dict, not guilty. The fate of this prose-
every word they will assign its natural cution was the same that would attend
sense, but will collect the true intention any of a similar character in this country,
from the context, the whole piece. They admitting its law to be sound, except
will accurately weigh the probabilities of possibly in cases of violent excitement,
the charge against a literary man. Con- and when a jury could be made to be-
sequences they will wholly disregard, but lieve that the defendant contemplated
firmly discharge their duty. Represen- and was laboring to produce a change of
tative republican governments stand on government, not by constitutional means,
immovable bases, which cannot be shaken but by rebellion and civil war.
by theoretical systems. Yet if the con-
618 CONSTITUTIONAL LIMITATIONS. [CH. XII.
and in that action malice and want of probable cause are both
necessary ingredients.
1
And it has also been held that in such a
case the court will neither compel the officer to whom it was
addressed to produce the petition in evidence, nor suffer its con-
tents to be proved by parol. 2
The rule of protection which these cases lay down is generally
conceded to be sound, and it has been applied in many other
cases coming within the same reasons. 3 To make it applicable,
1
Howard v. Thompson, 21 Wend. 319. Am. Dec. 426. Making charges to a
See Harris v. Huntington, 2 Tyler, 129, church having authority to discipline is
4 Am. Dec. 728; Bodwell v. Osgood, not actionable unless there is express
3 Pick. 379, 15 Am. Dec. 228; State malice: Dial v. Hoher, 6 Ohio St. 228;
v. Burnliam, 9 N. H. 34, 31 Am. Dec. Over v. Hildebrand, 92 Ind. 19; and
217; Hill v. Miles, 9 N. H. 9 ; Cook words spoken between members of the
v. Hill, 3 Sandf. 341 Whitney v. Allen,
;
same church in the course of discipline
62 111. 472; Forbes r. Johnson, 11 B. are privileged. Jarvis v. Hatheway, 3
Monr. 48. But in Banner Pub. Co. v. Johns. 180 ; Landis v. Campbell, 79 Mo.
State, 16 Lea, 176, it is held that false 433. But an accusation by a church
charges against State officers are not member against one who is not a church
justified by probable cause and absence member cannot be considered privileged.
of malice. Coombs v. Rose, 8 Blackf. 155. Nor ac-
Gray v. Pentland, 2 S. & R. 23. See
2 cusations by a parishioner against a
Hare v. Mellor, 3 Lev. 138. clergyman not made to church authorities.
8 In Kershaw v.
Bailey, 1 Exch. 743, State Bienvenu, 36 La. Ann. 378. A
v.
the defendant was prosecuted for slander letter to amember of a minister's associa-
in a communication made by him to the tion about another member written by
vestry, imputing perjury to the plain- one not a member is not privileged.
tiffas a reason why the vestry should not Shurtleff v. Parker, 130 Mass. 293. The
return him on the list of persons qualified preferring of charges to a lodge of Odd
to serve as constables. The defendant Fellows by one member against another
was a parishioner, and his communica- is privileged Streety v. Wood, 15 Barb.
:
tion was held privileged. In O'Donaghue 105 and reports made to a lodge of Odd
;
v. McGovern, 23 Wend. 26, a communica- Fellows and published with the minutes
tion from a member of a church to his are privileged. Kirkpatrick v. Eagle
bishop, respecting the character, moral Lodge, 26 Kan. 384. An affidavit as to
conduct, and demeanor of a clergyman the credibility of a witness at a masonic
of the church, was placed upon the same trial is not privileged where neither the
footing of privilege. And see Reid v. witness nor affiant is a member of the
Delorme, 2 Brev. 76 Chapman v. Calder,
; lodge. Nix v. Caldwell, 81 Ky. 293. A
14 Pa. St. 365; Vickers v. Stoneman, 73 communication is privileged if made in
Mich. 419, 41 N. W. 495. The proceed- good faith with a view to recovering
ings of a church tribunal are quasi judicial, stolen goods. Grimes v. Coyle, 6 B.
and those who participate in its proceed- Monr. 301 Brow v. Hathaway, 13 Allen,
;
See also Kendillon v. Maltby, 1 Car. & 111. A petition is privileged while being
Marsh. 402 Woodward v. Lander, 6 C.
;
circulated. Vanderzee v. McGregor, 12
& P. 548. So does a statement by a mayor Wend. 545; Streety v. Wood, 15 Barb.
to a council as to the unfitness of a city 105. If, however, a petition is circulated
attorney for his post. Greenwood v. and exhibited, but never presented, the
Cobbey, 26 Neb. 449, 42 N. W. 413. A fact that the libellous charge has assumed
reportby officers to stockholders is privi- the form of a petition will not give it pro-
leged, but not,it seems, the publication of tection. State v. Burnham, 9 N. H. 34.
it. Philadelphia, &c. R. R. Co. v. Quigley, And see Hunt v. Bennett, 19 N. Y. 173 ;
21 How. 202. A
statement of causes of Van Wyck v. Aspinwall, 17 N. Y. 190.
discharge of an employee, given only to An address by citizens to an officer re-
officers of the employing company, and of questing his resignation on the ground of
other like companies for their protection, his corruption is not privileged. Cotulla
is conditionally privileged. Missouri Pac. v. Kerr, 74 Tex. 89, 11 S. W. 1058. [\Mere
Ry. Co. v. Richmond, 73 Tex. 568, US. conclusions stated unqualifiedly as facts,
W. 655. and without mention of the specific facts
1 This is recognized in all the cases upon which they are based, are not privi-
referred to. See also Fairman v. Ives, 5 leged. Eikhoff v. Gilbert, 124 Mich. 353,
B. & In that case a petition
Aid. 642. 83 N. W. 110, 51 L. R. A. 451. But in
addressed by a creditor of an officer in South Dakota an elector may call a can-
the army to the Secretary of War, bona didate for aldermanic honors a thief, if he
fide and with a view of obtaining through makes the allegation to other electors and
his interference the payment of a debt does it in good faith. Ross v. Ward, 14
due, and containing a statement of facts S. D. 240, 85 N. W. 182J
which, though derogatory to the officer's
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS.
its being the act of a public meeting, of which the defendant was
a member, and the publication being against a candidate for a
public office, have been strenuously urged as affording a complete
justification. The doctrine contended for by the defendant's
counsel results in the position that every publication ushered
forth under the sanction of a public political meeting, against a
candidate f&p an elective office, is beyond the reach of legal in-
quiry. To such a proposition I can never yield my assent. Al-
though it was urged by the defendant's counsel, I cannot discover
i 5 Burr. 2667 4 T. R. 127. 2
1 T. R. 110.
;
622 CONSTITUTIONAL LIMITATIONS. [CH. XII.
and conduct of candidates any more than the character and con-
duct of others. Whatever reasons he may give his neighbors for
voting against a candidate, he must be prepared to support by
evidence in the courts. In criminal prosecutions, if he can prove
the truth of his charges, he may be protected in some cases where
he would not be if the person assailed was not thus appealing to
public favor for when the State prosecutes, the accused must in
;
which differs from it in the particular that the office which the
plaintiff was seeking was not elective, but was to be filled by an
2
appointing board.
3
The King v. Root will certainly strike any one as re-
case of
markable when the evidence on which it was decided is con-
sidered. The Lieutenant-Governor was charged in the public
press with intoxication in the Senate Chamber, exhibited as he
was proceeding to take his seat as presiding officer of that body.
When prosecuted for libel, the publishers justified the charge as
true, and brought a number of witnesses who were present on the
occasion, and who testified to the correctness of the statement.
There was therefore abundant reason for supposing the charge to
1
King v. Root, 4 Wend. 113, 21 Am. 8 4 Wend. 113, 21 Am. Dec. 102. See
Dec. 102. the same case in the Supreme Court,
2 Hunt 1ms recently been fol-
v. Bennett, 4 E. D. Smith, 647 ;
7 Cow. 613. It
s. c. 19 N. Y. 173. See Duncombe v. lowed in Illinois, in the case of Rearick
Daniel], 8 C. & P. 213. v. Wilcox, 81 111. 77.
624 CONSTITUTIONAL LIMITATIONS. [CH. XII.
have been published in the full belief in its truth. If it was true,
there was abundant reason, on public grounds, for making the
publication. Nevertheless, the jury were of opinion that the pre-
ponderance of evidence was against the truth of the charge, and
being instructed that the only privilege the defendants had was
"simply to publish the truth and nothing more," and that the
unsuccessful attempt at justification which in fact was only
the forming of such an issue, and supporting it by such evidence
as showed the defendants had reason for making the charge
was in itself an aggravation of the offence, they returned a verdict
for the plaintiff, with large damages. Throughout the instruc-
tions to the jury the judge presiding at the trial conceded to the
defendant no privilege of discussion whatever as springing from
the relation.of elector and candidate, or of citizen and representa-
tive,but the case was considered and treated as one where the
accusation must be defended precisely as if no public considera-
tions were in any way involved. 1
The law of New York is not placed by these decisions on a
footing very satisfactory to those who claim the utmost freedom
of discussion in publi'c affairs. The courts of that State have
treated this subject as if there were no middle ground between
absolute immunity for falsehood and the application of the same
strict rules which prevail in other cases. Whether they have
duly considered the importance of publicity and discussion on all
matters of general concern in a representative government must
be left to the consideration of judicial tribunals, as these questions
shall come before them in the future. It is perhaps safe to say
that the general public sentiment and the prevailing customs
allow a greater freedom of discussion, and hold the elector less
1
See also Onslow v. Home, 8 Wils. 99, 6 Am. Dec. 656. Charges made
177 ;
Harwood v. Rep. 47.
Astley, 1 New through a newspaper against a candidate
It is libellous to charge a candidate with for an office filled by appointment do
dishonesty and corruption Rearick v. : not, it seems, stand on the same footing
Wilcox, 81 111. 77 Wheaton v. Beecher,
;
as if the office were elective. Hunt v.
66 Mich. 307, 33 N. W. 603; with being Bennett, 19 N. Y. 173. It is no justifica-
under indictment Jones v. Townsend, 21
: tion for a libel against a candidate that it
that bona fide and honest remarks upon such persons and their
all
conduct may be made with perfect freedom, and without being
2
questioned too nicely for either justice or truth." But these
remarks were somewhat aside from the case then before the
learned judge, and though supported by similar remarks from his
associates, yet one of those associates deemed it important to
draw such a distinction as to detract very much from the value
1 "
Freedom
of speech is a principal and an impartial posterity will not fail to
pillar of a free government; when this render him justice. Those abuses of the
support is taken away, the constitution freedom of speech are the excesses of
of a free society is dissolved, and tyranny liberty. They ought to be repressed;
is erected on its ruins. Republics and but to whom dare we commit the care of
limited monarchies derive their strength doing it? An evil magistrate, entrusted
and vigor from a popular examination with power to punish for words, would be
into the action of the magistrates ;
this armed with a weapon the most destructive
privilege in all ages has been and always and terrible. Under pretence of pruning
will be abused. The best of men could off the exuberant branches, he would be
not escape the censure and envy of the apt to destroy the tree." Franklin, Works
times they lived in. Yet this evil is not by Sparks, Vol. II. p. 28-3.
Miall, 15 M. & W. 319,
so great as it might appear at first sight. 2 Gathercole v.
A magistrate who sincerely aims at the 332. See Commonwealth r. Clap, 4 Mass,
good of society will always have the in- 163, 3 Am. Dec. 212, per Parsons, Ch. J. ;
clinations of a great majority on his side, Townshend on Libel and Slander, 260.
40
626 CONSTITUTIONAL LIMITATIONS. [CH. XII.
" It "
of this privilege. seems," he says, there is a distinction,
although I must say I really can hardly tell what the limits of it
are, between the comments on a man's public conduct and upon
his private conduct. I can understand that you have a right to
comment on the public acts of a minister, upon the public acts of
a general, upon the public judgments of a judge, upon the public
skill of an actor; I can understand that; but I do not know
where the limit can be drawn distinctly between where the
comment is to cease, as being applied solely to a man's public
public will still assume that a corrupt life will influence public
1
Alderson, B., same case, p. 338. The a privileged occasion. Cora. v. Ward-
publication of a false statement of spe- well, 136 Mass. 164. fJAnd publication
cific acts of misconduct in office of a of charges, when made outside the terri-
puhlic man* are not privileged. Davis tory over which the officer's power ex-
v. Shepstone, L. R. 11 App. Cas. 187. tends, is not privileged. State v. Haskins,
Charges against the private character of a 109 Iowa, 656, 80 N. W. 1063, 47 L. 11. A.
sheriff who has not announced himself as a 223.]
candidate for re-election are not made on
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 627
conduct, and that a man who deals dishonestly with his fellows
as individuals will not hesitate to defraud them in their aggregate
and corporate capacity, if the opportunity shall be given him.
They are therefore interested in knowing what is the character
of their public servants, and what sort of persons are offering
'
themselves for their suffrages. And if this be so, it would seem
that there should be some privilege of comment ; that that privi-
lege could only be limited by good faith and just intention; and
that of these it was tbe province of a jury to judge, in view of
the nature of the charges made and the reasons which existed
for making them.
The English cases allow considerable latitude of comment to
publishers of public journals,upon subjects in the discussion of
which the public may reasonably be supposed to have an interest,
and they hold the discussions to be privileged if conducted within
the bounds of moderation and reason. 1 A
more recent case, how-
ever, limits the range of privilege somewhat, and suggests a dis-
tinction which we are not aware has ever been judicially pointed
out in this country, and which we are forced to believe the Ameri-
can courts would be slow to adopt. The distinction is this That :
whose duties the general public, and not merely the local public,
has an interest, then a discussion of his conduct is privileged ;
otherwise it is not. Thus the public journals are privileged to com-
Kelley v. Sherlock, Law Rep. was prosecuted for comments in his paper
1 In
1 Q. B. 686, it was held that a sermon upon a debate in the House of Lords.
commenting upon public affairs e. g. The plaintiff had presented a petition to
the appointment of chaplains for prisons that body, charging Sir Fitzroy Kelly
and the election of a Jew for mayor with having, many years before, made a
was a proper subject for comment in the statement false to his own knowledge, in
papers. And in Kelly v. Tinling, Law order to deceive a committee of the House
Rep. 1 Q. B. 699, a church-warden, hav- of Commons and praying
; inquiry, and
ing written to the plaintiff, the incum- his removal from an office he held, if the
bent, accusing him of having desecrated charge was found true. A debate ensued,
the church by allowing books to be sold and the charge was wholly refuted. Held,
in it during service, and by turning the that this was a subject of great public
vestry-room into a cooking-apartment, the concern, on which a writer in a public
correspondence was published without newspaper had full right to comment ;
the plaintiff's permission in the defend- and the occa.-ion was therefore so far
ant's newspaper, with comments on the privileged that the comments would not
plaintiff's conduct. Held, that this was a be actionable so long as a jury should
matter of public interest, which might be think them honest, and made in a fair
made the subject of public discussion ; spirit, and such as were justified by the
and that the publication was therefore circumstances disclosed in the debate.
not libellous, unless the language used The opinion by Ciiief Justice Cockburn is
was stronger than, in the opinion of the very clear and pointed, and reviews all
jury, the occasion justified. the previous decisions. See further, Fair-
In Wason v. Walter, L. R. 4 Q. B. 73, child, v. Adams, 11 Cush. 549; Terry v.
the proprietor of the "London Times" Fellows, 21 La. Ann. 375.
628 CONSTITUTIONAL LIMITATIONS. [CH. XII.
ment freely within the limits of good faith, on the manner in which
a judge performs his duties, but they are not privileged in like man-
ner in the case of an official charged with purely local duties, such,
for instance, as the physician to a local public charity. can- We
not believe there is any sufficient reason for allowing free discus-
sion in the one case and not in the other but the opinion is of ;
781. The plaintiff was medical officer of S. D. 240, 85 N. W. 182 ;] to charge him
the Knutsford workhouse, and the alleged with being idle, uneducated, and igno-
libel consisted in a report of an inquiry rant Sweeney v. Baker, 13 W. Va. 158,
:
by the board in charge into his conduct 31 Am. Rep. 757. But see cases, ante,
and the treatment of the poor under him, p. 624, note 1. [And see Belknap v.
and comments thereon. The following Ball, 83 Mich. 583, 47 N. W. 674, 11
cases are commented upon and distin- L. R. A. 72, 21 Am. St. 622.] It is libel-
clear that a trustee of a mining corpora- Gove v. Blethen, 21 Minn. 80, 18 Am. Rep.
tion is not such an officer as to be sub- 380 ;
Russell v. Anthony, 21 Kan. 450, 30
jected to general criticism under the priv- Am. Rep. 436; Littlejohn v. Greeley, 13
ilege of the press. Wilson v. Fitch, 41 Abb. Pr. 41; Dole p. Van Rensselaer, 1
Cal. 363. (^Charges must have a better Johns. Cas. 330 Negley v. Farrow, 60 Md.
;
foundation than mere rumors in order to 158; Neeb v. Hope, 111 Pa. St. 145,2 All.
be privileged. State v. Ford, 82 Minn. 568 [Augusta Evening News v. Radford,
;
McCord, 348, 9 Am. Dec. 707. It is not while in discharge of his official duties:
libellous to publish in good faith any King v. Root, 4 Wend. 113, 21 Am. Dec.
charges against a candidate for office, af- 102; Gottbehuet v. Hubachek, 36 Wis.
fecting his qualifications and fitness for 515; to charge a judge with being desti-
the office : Commonwealth v. Morris, 1 tute of capacity or attainments necessary
Va. Cases, Am. Dec. 515; Com-
175, 5 for his station Robbins v. Treadway, 2
:
monwealth v. Odell, 3 Pittsb. (Pa.) 449 ; J. J. Marsh. 540, 19 Am. Dec 152 Spier- ;
Commonwealth Clap, 4
Mass. 163,
v. ing v. Andrae, 45 Wis. 330, 30 Am. Rep.
3 Am. Dec. 212; Mott v. Dawson, 46 744 to charge him with being disquali-
;
14 N. W. 785; State v. Balch, 31 Kan. son v. State, 66 Md. 205, 7 Atl. 43 see ;
v. Copeland, 64 Tex. 354; [Posnett v. done that which should remove him from
Marble, 62 Vt. 481, 20 All. 813, 11 L. R. A. his seat Hook v. Hackney, 16 S. & R.
:
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 629
treatment. Foster v. Scripps, 39 Mich. v. Verner, 64 Miss. 321, 1 So. 479. See
376, 33 Am. Rep. 403 see Hart r. Von;
White v. Carroll, 42 N. Y. 161, 1 Am. Rep.
Gumpach, L. R. 4 Priv. C 439; s. c. 4 603. So of an answer to a legislative
Moak, 138 to call a member of Congress
; committee, though not under oath.
"
a fawning sycophant, a misrepresenta- Wright v. Lothrop, 149 Mass. 885, 21
tive in Congress, and a grovelling office N. E. 963. [So with relevant testimony
seeker." Thomas v. Crosswell, 7 Johns. before a committee of a board of aldermen
264, 6 Am. Dec. 269. It is not libellous having power to compel the same.
to charge a judge with improprieties Blakeslee v. Carroll, 64 Conn. 223, 29 Atl.
which would be no cause of impeachment :
473, 25 L. R. A. 106.]
Robbins v. Treadway, 2 J J. Marsh. 540, 2 But he is not
protected if what is
19 Am. Dec 152 nor with ordering un-
;
testified is not pertinent or material to
reasonable bail Miner v. Detroit Post,
: the cause, and he has been actuated by
&c. Co., 49 Mich. 358, 13 N. W. 773 ; or malice in stating it. White v. Carroll,
an officer with giving his wife work in a 42 N. Y. 166, 1 Am. Rep. 503 Barnes ;
public office and paying her in her maiden v. McCrate, 32 Me. 442; Kidder v. Park-
name: Bell v. Sun Printing, &c., Co., 42 hurst, 3 Allen. 393 Shadden v. McElwee,
;
which the candidate was charged with Mitchell, 31 Barb. 461 Revis v. Smith, ;
nearly all the crimes in the calendar, see 18 C. B. 126 Grove v. Brandenburg, 7
;
Upton v. Hume, 24 Oreg. 420, 33 Pac. 810, Blackf. 234; Cunningham v. Brown, 18
21 L. R. A. 493, 41 Am. St. 863.] Vt. 123; Dunlap v. Glidden, 31 Me.
1
Allen v. Crofoot, 2 Wend. 515, 20 435 Steinecke v. Marx, 10 Mo. App. 580.
;
Am. Dec. 647; Marsh v. Ellsworth, 50 See Liles v. Gaster, 42 Ohio St. 631.
630 CONSTITUTIONAL LIMITATIONS. [CH. XII.
the parties to the suit who has been a witness therein, cannot be
the subject of an action for slander. 1 False accusations, however,
contained in the affidavits or other proceedings, by which a prose-
cution is commenced for supposed crime, or in any other papers
in the course of judicial proceedings, are not so absolutely pro-
Hill (S. C.), 197, 26 Am. Dec. 168 Bun- ; tinck, 2 Brod. & Bing. 130; Jarvis v.
ton v. Worley, 4 Bibb, 38, 7 Am. Dec. Hathaway, 3 Johns. 180. In Goslin v.
735; Sanders v. Rollinson, 2 Strobh. 447; Cannon, 1 Harr. 3, it was held that
Francis v. Wood, 75 Ga. 648 but not ;
where a crime had been committed, ex-
if spoken without bona fide intention of pressions of opinion founded upon facts
prosecuting Marshall v. Gunter, 6 Rich.
: within the knowledge of the party, or
419 or in a court which does not have
;
communicated to him, made prudently
jurisdiction of the case. Hosmer v. and in confidence to discreet persons,
Loveland, 19 Barb. 111. All allegations and made obviously in good faith with a
in pleadings, if pertinent, are absolutely view only to direct their watchfulness,
privileged. Strauss v. Meyer, 48 III 385; and enlist their aid in recovering the
Lea White, 4 Sneed, 111
v. Forbes v. ; money stolen, and detecting and bringing
Johnson, 11 B. Monr. 48 Vinas v. Merch. ;
to justkie the offender, were privileged.
&c. Co., 33 La. Ann. 1265 Prescott v. ;
The cause, occasion, object, and end, it
Tousey, 53 N. Y. S. C. 56; Wilson v. was said, was justifiable, proper, and
Sullivan, 81 Ga. 238, 7 S. E. 274 Runge ; legal, and such as should actuate every
v. Franklin, 72 Tex. 585, 10 S. W. 721. good citizen. If a party, in presenting
See Lanning v. Christy, 30 Ohio St. 115. his case to a court, wanders from what
So, though the complaint is dismissed. is material to libel another, the libel is
Dada v. Piper, 41 Hun, 25'4. petition A not privileged. Wyatt v. Buell, 47 Cal.
alleging misconduct in office filed by a 624.
*
receiver against his co-receiver in the Grimes v. Coyle, 6 B. Monr. 801.
action in which they were appointed The subject of communications privileged
is privileged. Bartlett v. Christhilf, 69 on grounds of public policy will be found
Md. 219, 14 Atl. 518. Charges made in considered, at some length and with
the interest of his client by an attorney ability, in the recent case of Dawkins v.
only conditionally privileged : Ruohs v. him ; and it was averred that the words
Backer, 6 Heisk. 395, 19 Am. Rep. 598; were published by the defendant of ac-
Davis v. McNees, 8 Humph. 40 ;
and when tual malice, and without any reasonable,
not pertinent and material are not privi- probable, or justifiable cause, and not
leged. McLaughlin v. Cowley, 127 Mass. bona Jide, or in the bona fide discharge of
316, 131 Mass. 70 ; Wyatt v. Buell, 47 defendant's duty as superior officer. On
Cal. 624. demurrer, a majority of the court (Mellor
3
Padmore v. Lawrence, 11 Ad. & El. and Lush, JJ.) held the action would not
380 ;
Kine v. Sewell, 3 M. & W. 297 ;
Bur- lie:
planting themselves, in part, on
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 631
bring the supposed offender to justice, or are designed for the pur-
pose of originating or forwarding such proceedings and commu- ;
Privilege of Counsel.
grounds of public policy, and in part, also, to a witness who was giving his testimony
on the fact that the military code pro- on a material point in a cause then on
vided a remedy for wrongs of the nature trial, to which defendant was a party,
" That 's a
complained of; and quoting with ap- lie," and for repeating the same
proval Johnstone v. Sutton, 1 T. R. 544, statement to counsel for the opposite party
and Dawkins v. Lord Rokeby, 4 N. & F. afterwards. The words were held not to
841. Cockburn, Ch. J., delivered an able be privileged. To the same effect are the
dissenting opinion. The decision is criti- cases ofMcClaughry E. Wetmore, 6 Johns,
cised in Maurice v. Worden, 54 Md. 233, 82, and Kean v. McLaughlin, 2 S. & R.
39 Am. Rep. 384, where an analogous 469. See also Torrey v. Field, 10 Vt.
communication was held privileged con- 353 ;
Gilbert v. People, 1 Denio, 41. A
ditionally, but not absolutely. report made by a grand jury upon a
Dancaster v. Hewson, 2 M. & Ry.
1
subject which they conceive to be within
176. Statements by a justice as to what their jurisdiction, but which is not, is
was said by a person applying for a war- nevertheless privileged. Rector v. Smith,
rant but not as part of a judicial hearing 11 Iowa, 302. Matter inserted as part of
are not privileged. McDermott v. Even- a justice's official return is privileged, if
ing Journal Co., 43 N. J. L. 488. believed by the justice to be material to
2
BurlingameBurlingame, 8 Cow.
v. the return. Aylesworth v. St. John, 25
141. In Mower
Watson, 11 Vt. 636, an
v. Hun, 156.
action was brought for slander in saying
632 CONSTITUTIONAL LIMITATIONS. [CH. XII.
to give in evidence that which his client informs him, being per-
tinent to the matter in question but matter not pertinent to the ;
Maulsby v. Reifsnider, 69 Md. 143, 14 ever false and malicious may be the
634 CONSTITUTIONAL LIMITATIONS. [CH. XII.
Privilege of Legislators.
charge made by him affecting the repu- x There are provisions to this effect in
tation of another, an action of slander every State Constitution except those of
will not lie, provided what is said be per- North Carolina, South Carolina, Missis-
tinent to the question under discussion, sippi, Texas, California, and Nevailn.
And see Harden r. Cumstock, 2 A. K. Mr. Gushing, in his work on the Law and
Marsh. 480, 12 Am. Dec. 168; Warner Practice of Legislative Assemblies, 602,
v.Paine, 2 Sandf. 195 Garr v. Selden, 4
; has expresst-d the opinion that these pro-
N. Y. 91 Marsh v. Ellsworth, 50 N. Y.
;
visions are unnecessary, and that the
309 Spaids r. Barrett, 57 111. 289 Jen-
; ; protection is equally complete without
nings v. Paine, 4 Wis. 358. them.
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 635
to the business then before the house, but might with equal perti-
nency have been uttered at any other time or place, and conse-
quently could not, even under the liberal rule of protection which
the court had laid down, be regarded as within the privilege. 1
iHoare
v. Silverlock, 9 C. B. 20;
*Saunders v. Mills, 6 Bing. 213 Flint
;
Mo. App. 377; Cowley v. Pulsifer, 137 v. Highley, 3 Bing. N. C. 950. And see
Mass. 392. Lewis v. Clement, 3 B. & Aid. 792; Pit-
Walter, 4 B. & Aid. 603. tock v. O'Neill, 63 Pa. St. 253,3 Am. Rep.
2 Lewis v.
3 Flint v.Pike, 4 B. & C. 473. See 544 Clark v. Binney, 2 Pick. 112 Scripps
; ;
331. A
statement that one was arrested Bench sustained the claim of privilege ;
after testifying, on account of his crim- distinguishing the case from those where
inating evidence, is not privileged as a the party was held for trial, and where
report of a judicial proceeding. God- the publication of the charges and evi-
shalk v. Metzgar, Pa. St. 17 Atl. 215. dence might tend to his prejudice on the
1 Hex v. Carlile, 3 B. & Aid. 107 ;
Rex trial. The opinion of Lord Campbell in
v. Creevey, 1 M. & S. 273. [But a court the case, however, seems to go far tow-
has no inherent power to prohibit the ards questioning the correctness of the
publication of such testimony, nor to decisions above cited. See especially his
punish such publication as a contempt. quotation from the opinion of Lord Den-
Re Shortridge, 99 Cal. 526, 34 Pac. 227, man, delivered before a committee of the
21 L. 11. A. 765, 37 Am. St. 78.] House of Lords, in the year 1843, on the
2 Duncan v.
Thwaites, 3 B. & C. 556 ;
law of libel : "I have no doubt that [po-
Flint v. Pike, 4 B. & C. 473 Charlton v. ;
lice reports] are extremely useful for the
Watton, 6 C. & P. 385; Rex v. Lee, 5 detection of guilt by making facts notori-
Esp. 123; Rex v. Fisher, 2 Camp. 563; ous, and for bringing those facts more
Delegal v. Highley, 3 Bing. N. C. 950 ; correctly to the knowledge of all parties
Behrens v. Allen, 3 Fost. & F. 135 ; Cin- interested in unravelling the truth. The
cinnati Gazette Co. v. Timberlake, 10 public, I think, are perfectly aware that
Ohio, N. s. 548; Mathews v. Beach, 6 those proceedings are ex parte, and they
Sandf. 256; Huff v. Bennett, 4 Sandf. become more and more aware of it in
120 Stanley v. Webb, 4 Sandf. 21 Usher
; ; proportion to their growing intelligence;
v. Severance, 20 Me. 9, 37 Am. Dec. they know that such proceedings are only
33. It seems, however, that if the pro- in course of trial, and they do not form
ceeding lias resulted in the discharge of their opinion until the trial is had. Per-
the person accused, or in a decision that fect publicity in judicial proceedings is of
no cause exists for proceeding against the highest importance in other points of
him, a publication of an account of it is view, but in its effects on character I
privileged. In Curry v. Walter, 1 B. & P. think it desirable. The statement made
625, the Court of Common Pleas held in open court will probably find its way
that, in an action for libel, it was a good to the ears of all in whose good opinion
defence, under the plea of not guilty, the party assailed feels an interest, prob-
that the alleged libel was a true account ably in an exaggerated form, and the im-
of what had passed upon a motion in the putation may often rest upon the wrong
Court of King's Bench for an information person ;
both these evils are prevented by
against two magistrates for corruption in correct reports." In the case of Lewis v.
refusing to license an inn ; the motion Levy, it was insisted that the privilege of
having been refused for want of notice to publication only extended to the pro-
the magistrates. In Lewis v. Levy, El. ceedings of the superior courts of /aw, and
Bl. & El. 637, the publisher of a news- equity ; but the court gave no counte-
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 639
distinguishing these cases from those where the parties are heard
is thus stated by -Lord Ellenborough, in the early case of The
l "
King v. Fisher Jurors and judges are still but men ; they
:
nance to any such distinction. See also is clear that the report is not privileged,
Wason Walter, L. R. 4 Q. B. 73; Terry
v. if accompanied with injurious comments.
v. Fellows, 21 La. Ann. 375. Stiles v. Nokes, 7 East, 493 Common-
;
1 2
Camp. 563. Compare with this wealth v. Blanding, 3 Pick. 304, 15 Am.
and the cases cited in the preceding note, Dec. 214 Usher r. Severance, 20 Me. 9,
;
press seem to have passed unnoticed in the law, and, save only
where modifications have been made by constitution or statute,
the publisher of the daily paper occupies to-day the position in the
courts that the village gossip and retailer of scandal occupied
two hundred years ago, with no more privilege and no more
protection.
We quote from an opinion by the Supreme Court of New York,
in a case where a publisher of a newspaper was prosecuted for
libel, and where the position was taken by counsel, that the pub-
lication was privileged " It is made a
:
point in this case, and was
insisted upon argument, that the editor of a public newspaper
in
is at liberty to copy an item of news from another paper, giving
dal, without taking the trouble of inquiring into the truth of what
he publishes, there is no ground for complaint if the law, which is
as studious to protect the character as the property of the citizen,
holds him to this responsibility. The rule is not only just and
wise in itself, but if steadily and inflexibly adhered to and applied
by courts and juries, will greatly tend to the promotion of truth,
good morals, and common decency on the part of the press, by
inculcating caution and inquiry into the truth of charges against
private character before they are published and circulated through-
out the community." 1
1 Hotchkiss v. Olipliant, 2 Hill, 510- as are common to all. They have just
613, per Nelson, Ch. J. And see King v. the same rights that the rest of the corn-
Root, 4 Wend. 113-138, 21 Am. Dec. 102, munity have, and no more. They have
"
per Walworth, Chancellor. It has been the right to publish the truth, but no
urged upon you that conductors of the right to publish falsehood to the injury of
public press are entitled to peculiar others with impunity." Instructions ap-
indulgences and have special rights and proved in Sheckell Jackson, 10 Gush,
v.
privileges. The law recognizes no such 25. And see Palmer v. Concord, 48
peculiar rights, privileges, or claims to in- N. H. 211. In People v. Wilson, 64
dulgence. They have no rights but such 111. 195, 16 Am. Rep 528, a publication
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 643
290; Hawkins v. Lumsden, 10 Wis. 359; for office, without being answerable for
Knight v. Foster, 39 N. H. 576; Carpen- the truth of such publications. No hon-
ter v. Bailey, 53 N. H. 590 Farr v. Hasco,
; est man could afford to be an editor, and
9 Mich. 353; Sheahan n. Collins, 20 III. no man who had any character to lose
325; McDonald v. Woodruff, 2 Dill. 244; would be a candidate for office under such
Rex r. Newman, 1 El. & Bl. 268. a construction of the law of libel. The
Lyon, 10 Johns. 447, 6 Am.
4 Dole v.
only safe rule to adopt in such cases is to
Dec. 346; Mapes v. Weeks, 4 Wend. 659; permit editors to publish what they please
Inman v. Foster, 8 Wend. 602 Hotchkiss ;
in relation to the character and qualifica-
v. Oriphant, 2 Hill, 510; Gates c. Kellogg, tions of candidates for office, but holding
9 Ind. 506 Fowler v. Chiehester, 26 Ohio
; them responsible for the truth of what
St. 9; Cummerford r. McAvoy, 15 111. 311. they publish." Notwithstanding the de-
6 Andres v. Wells, 7 Johns. 260, 5 Am. plorable consequences here predicted from
Dec. 257 ;
Huff c. Bennett, 4 Sandf. 120, too great license to the press, it is matter
CH. XII. J LIBERTY OF SPEECH AND OF THE PRESS. 645
assumed that because he seeks the favor of the public for his
productions, he thereby makes his private character and conduct
1
public property. For further privilege it would seem that pub-
lishers of news must appeal to the protection of public opinion,
or they must call upon the legislature for such modification of the
law as may appear important to their just protection.
But there is a difference between the mere publication of items
of news in which the public may take an interest, as news merely,
and the discussion of matters which concern the public because
they are their own affairs. It is one thing to reproduce in the
newspaper injurious reports respecting individuals, however will-
ing the public may be to hear them, and a very different thing to
discuss the public conduct of a high official. A private individual
only challenges public criticism when his conduct becomes or
threatens to be injurious to others public characters and public
;
for office for publications amounting to Cooper v. Barber, 24 Wend. 105; Cooper
technical libels, but which were neverthe- v. Greeley, 1 Denio, 347. A newspaper
lesspublished without malice in fact; and criticism on a play is not privileged. If
the man whohas a "character to lose" it goes beyond fair criticism in the jury's
presents himself for the suffrages of his opinion it is libellous. Merivale v. Car-
fellow-citizens in the full reliance that de- son, L. R. 20 Q. B. D. 275. As to criti-
traction by the public press will be cor- cisms on public entertainments, see Fry
reeled through the same instrumentality, v. Bennett, 5 Sandf. 54, and 28 N. Y. 324;
and that unmerited abuse will react on Dibdin v. Swan, 1 Esp. 28; Green v.
the public opinion in his favor. Mean- Chapman, 4 Bing. N. C. 92. As to how
time the press is
gradually becoming far sermons, preached, but not otherwise
more just, and dignified in its
liberal, published, form a proper subject for coin-
dealings with political opponents, and ment and criticism by the public press,
vituperation much less common, reck-
is see Gathercole v. Miall, 15M. & W. 318.
less, and bitter now than it was at the be- Ifone sends a communication to a paper
ginning of the century, when repression which is altered before publication, he is
was more often resorted to as a remedy, liable for it as published only if he has
[[That fair criticism of public men is ratified it as changed. Dawson v. Holt,
allowable, see Burt v. Advertiser N. Co., 11 Lea, 583.
646 CONSTITUTIONAL LIMITATIONS. [CH. XII.
1
public concern, because this is the privilege of everyone. The
privilege extends to matters of government in all its grades and
all its branches to the
performance of official duty by all classes
;
of public officers and agents to the courts, the prisons, the re-
;
any proof of malice in fact. Wason v. law will not permit malice to be alleged
Walter, L. R. 4 Q. B. 73, 87. If one tra- or shown if the witness testify falsely
;
duce another, whether knowing him or with evil intent, he may be indicted and
not, and whether intending to do him an punished but in a civil suit which brings
;
injury or not, the law considers it as done it in question, his evidence must be con-
of malice because it is wrongful and in- clusively presumed to have been given
tentional. It equally, works an injury under the inspiration of proper motives.
whether injury was intended or not, and The same conclusive presumption will
if there was no excuse for the slander, attend the filing of the necessary plead-
there should be an appropriate remedy. ings and other papers in a cause, and the
Bromage v. Prosser, 4 B. & C. 247, 255. arguments of counsel, provided they do
But the presumption of law may be re- not wander from the case for the pur-
butted by the circumstances under which poses of vituperation or harmful imputa-
the defamatory words have been uttered tion upon character, conduct, or motives.
or published and whenever this is the
; Torrey v. Field, 10 Vt. 353; Gilbert v.
case no right of action can arise, even People, 1 Denio, 41 Hoar v. Wood, 3
;
though the character of the party con- Met. 193; Strauss v. Meyer, 48 III. 386;
cerned may have suffered, unless he is Johnson v. Brown, 13 W. Va. 71. But
able to show that there was malice in fact. there are other cases in which the privi-
Wason v. Walter, L. R. 4 Q. B. 73, 87 ; lege is only pri ma facie and conditional;
Toogood v.Spyring, 1 C. M. & R. 181 ; it exists so far as to rebut any legal pre-
Lewis Levy, El. Bl. & El. 537 Taylor
v. ; sumption of malice, and constitutes a
v. Hawkins, 16 Q. B. 308, 321; Clark v. protection until actual malice is shown.
Molyneaux, L. R. 3 Q..B. 1). 237; Bar- It is therefore a privilege conditioned on
rows v. Bell, 7 Gray, 301 Terry v. Fel- ;
the publication having been made with
lows, 21 La. Ann. 375; McBee v. Fulton, proper motives, but the proof of bad mo-
47 Md. 403. tives or, in other words, of malice in
" must be made by the party who
The privilege in a communication fact
duty is either imposed by law, or the cir- conduct of a candidate for public honors ;
suffer some penalty or loss unles she rec- made to appear that his privilege is used
ognizes and performs it. In such cases as a cloak for groundless and malicious
the protection should be as conclusive assaults, the protection ceases, because
as the duty is imperative. We have an the reason on which it rests ceases. The
illustration in the case of a witness in privilege is the handmaid of good faith.
"
court; the law compels him to state what In the cases of qualified privilege,
he knows that is relevant and competent the duty to speak or publish is not im-
in the controversy, and he will not be perative in the sense that a law is violated
suffered to refuse if he would. But the if it is not recognized it may be a moral ;
persons, we should encounter such evasion and if he speaks, it is because others de-
of process and such suppression of the sire and have a right to receive infor-
facts as would in many cases make the mation ou some subject which specially
648 CONSTITUTIONAL LIMITATIONS. [CH. XII.
Campbell has well shown in Harrison v. sal one, that the public convenience is to
Bush, 5 El. & Bl. 844, and especially by be preferred to private interests, and
his reference to the cases of Rex v. Bailie, that communications which the interests
21 State Trials, 1, and Fairman ?-. Ives, 5 of society require to be unfettered may
B. & Aid. 642, that the law cherishes this freely be made by persons acting hon-
right, and regards liberally its exercise estly without actual malice, notwithstand-
for the public good, so that an honest ing that they involve relevant comments
mistake in
seeking the proper remedy condemnatory of .individuals.' The same
through the publication will not be suf- principle is found in Toogood v. Spyring,
fered to constitute a ground for recovery. 1 C. M. & R. 181 ; Whitely v. Adams, 15
Chief Justice Parker thus states the true C. B. (N. 417; Gott v. Pulsifer, 122
s.),
rule in State v. Burnham, 9 N. H. 34, 41 : Mass. 235 ;
McBee
v. Fulton, 47 Md. 403 ;
tion of an unsuitable person to office, or, gestion that these matters \vere not of
generally, to give useful information to public concern. The Detroit Board of
the community or to those who have a Trade is a public institution, in the sense
right and ought to know, in order that that it challenges public confidence by
they may act upon such information, the giving assurances that it is composed of
occasion is lawful, and the party may individuals whose business integrity is
then justify or excuse the publication.' known and undoubted. The
public had
Still more comprehensive is the language reason to trust and confide in Clark, be-
of the trial judge in Kelly v. Sherlock, cause he had been accepted as a suitable
Every man has a and proper member
'
L. R. 1 Q. B. 686, G89 : for this body ;
and
right to discuss matters of public inter- reason is found in this record for the
est. Aclergyman with his flock, an ad- belief that his associates trusted him be-
miral with his fleet, a general with his cause he had won their confidence, and
army, and a judge with his jury, we not because of any actual responsibility.
are all of us the subjects for public dis- It is as important to the city of Detroit
cussion. So also is it matter of public in- that it should have an honorable and
terest, the dispute between the plaintiff trustworthy board of trade a board
[a clergyman] and his organist, and the that would reject and spurn association
way in which a church is used they are : with one knownor believed to be unre-
all public matters, and may be publicly liable and dishonest as it is that it
discussed. And provided a man, whether should have a trustworthy mayor or con-
CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 649
troller, or police authorities or other pub- quite as proper as the first notice. No
lic functionaries. The
business prosperity settlement could relieve the case of its
of a commercial city must depend quite worse aspects. If Clark had repented
as largely upon the honor and integrity of before he left Windsor, and had followed
its commercial classes as upon the char- his money in its remarkable journey, by
acter of its political rulers; and confidence hack and sail-boat, on foot and in car-
in these must cease unless fraud, when it riage, and recovered it for the use of his
appears, can be publicly rebuked. creditors, he ought still to have been
"
The defendant is publisher of a daily brought to the bar of public opinion to
journal, established to give the facts of be dealt with for his extraordinary con-
important current events, and to discuss, duct whereby a considerable percentage
for the information and instruction of its of his assets had already been wasted.
readers, public affairs. This case affords Mott Dawson, 46 Iowa, 533. The de-
.
neither occasion nor excuse for any gen- fendant's paper would have been unwor-
eral discussion of the liberty of the press thy of the confidence and support of
in giving news what was done here
;
commercial men if its conductors had
might have been done by any individual in shut their eyes to such a transaction. If
a pamphlet under the same privilege that the plaintiff was not in fault, then it was
protects a newspaper. Nor has the fact his misfortune that it was impossible to
that the liberty of the press is frequently deal with the case without bringing him
and most grossly abused any relevancy into the discussion.
in this case we are concerned only with
;
"The communication in this case be-
the question whether the liberty of pub- ing privileged, and there being in its
lic discussion was abused in the particular terms no manifest abuse of the privilege,
case. The conductors of the defendant's it was incumbent on the plaintiff to give
paper, in the regular course of their busi- some evidence of malice before he was
ness, had had brought to their attention entitled to ask a verdict in his favor.
the facts of a transaction which no one Taylor v. Hawkins, 16 Q. B. 308, 321 ;
'
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.
2 Rex v.
serious injury when the discussion inci- Lord Abington, 2 Esp. 226.
dentally affects it unjustly." And see Rex M. &
8 v. Creevey, 1 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
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
;
1
3 and 4 Victoria, c. 9. The
Stat. While Stockdale commenced a
in prison
case was of Stockdale v. Hansard,
tliat further The sheriffs, who had been
suit.
very fully reported in 9 Ad. & El. 1. See ordered by the House of Commons to
also 11 Ad. & El. 253. The Messrs. Han- restore the money which they had col-
sard were printers to the House of Com- lected, were, other hand, com-
on the
mons, and had printed by order of that pelled by attachments from the Queen's
house the report of the inspectors of Bench to pay it over to Stockdale. In
prisons, in which a book, published by this complicated state of affairs, the
Stockdale, and found among the pris- proper and dignified mode of relieving
oners in Newgate, was described as ob- the difficulty by the passage of a statute
scene and indecent. Stockdale brought making such publications privileged for
an action against the printers for libel, and the future was adopted. For an account
recovered judgment. Lord Denman, pre- of this controversy, in addition to what
" the fact of
siding on the trial, said that appears in the law reports, see May, Law
the House of Commons having directed and Practice of Parliament, 156-159, 2d
Messrs. Hansard to publish all their par- ed. May, Constitutional History, c. 7.
;
A
liamentary reports is no justification for case in some respects similar to that of
them, or for any bookseller who publishes Stockdale v. Hansard is that of Popham
any parliamentary report containing a v. Pickburn, 7 Hurl. & Nor. 891. The
libel against any man." The house re- defendant, the proprietor of a newspaper,
"
sented this opinion and resolved, that was sued for publishing a report made by
the power of publishing such of its re- a medical officer of health to a vestry
ports, votes, and proceedings as it shall board, in pursuance of the statute, and
deem necessary or conducive to the pub- which reflected severely upon the con-
lic interests is an essential incident to the duct of the plaintiff. The publication
constitutional functions of Parliament, was made without any comment, and as
more especially of this house as the rep- a part of the proceedings of the vestry
resentative portion of it." They also board. It was held not to be privileged,
resolved that for any person to institute a notwithstanding the statute provided for
suit in order to call its privileges in ques- the publication of the report by the ves-
tion, or for any court to decide upon try board, which, however, had not yet
matters of privilege inconsistent with been made. A substantially correct re-
the determination of either house, was a port of an open meeting of a town council
breach of privilege. Stockdale, however, is privileged. Wallis v. Bazet, 34 La.
brought other actions, and again recov- Ann. 131.
ered. When he sought to enforce these 2
Lives of Chief Justices, by Lord
judgments by executions, his solicitor and Campbell, Vol. III. p. 167; Davison v.
himself were proceeded against for con- Duncan, 7 El. & Bl. 229, 233.
tempt of the house, and imprisoned.
652 CONSTITUTIONAL LIMITATIONS. [CH. XII.
privileged.
The Jury as Judges of the Law.
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
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 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
" the
predicted from it confusion and destruction of the law of
" An act to remove doubts
England." It was entitled 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.
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 "the last clause of the sixth sec- There "
By Rep. 544, Sharswood, J., says :
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-
law and fact in criminal
fully judges of and if that verdict is for the
sition to it;
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.
tory of the law in all cases of libel upon ; incidentally confirmed in McConkle v.
what principle of construction, however, Binns, 6 Binn. 340 ; and Hays v. Brierly,
it is not very easy to understand. It is 4 Watts, 392. It was held in the case
there the approved practice for the judge last cited that where words of a dubious
in civil actions, after explaining to the import are used, the plaintiff has a right
jury the legal definition of a libel, to to aver their meaning by innuendo, and
leave to them the question whether the the truth of such innuendo is for the jury.
publication upon which the action is In New York, since the recent English
founded falls within that definition. Fol- cases, the question has been ably dis-
kard's Stark. 202 ; Baylis v. Lawrence, cussed and fully considered in Snyder v.
11 A. & E. 920; Parmiter v. Coupland, 6 Andrews, 6 Barb. 43; Green v. Telfair,
M. & W. 105; Campbell v. Spottiswoode, 20 Barb. 11; Hunt v. Bennett, 19 N. Y.
3 B. & S. 781 Cox v. Lee, L. R. 4 Exch.
; 173; and the law established on its old
284. These cases were followed in Shat- foundations." Under like provisions in
tuck v. Allen, 4 Gray, 540. Yet it is clearly Tennessee, it is held no error to charge
held that a verdict for the defendant upon that, if the jury finds certain things true,
that issue will be set aside, and a new the publication is prima fucte libellous.
trial granted. Hakewell v. Ingram, 28 Banner Pub. Co. v. State, 16 Lea, 176.
Eng. Law & Eq. 413.
'
may be considered as settled in this State scope of proofs and circumstances lead
by long practice, never questioned, but 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 ;
"
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 shallbe further made to appear, on
all the living, and which must ere the trial, that the matter charged to be
long
receive your recreant carcass ? We ask libellous was published with good rao-
42
658 CONSTITUTIONAL LIMITATIONS. [CH. XII.
tives and for justifiable ends.' Nothing v. White, 7 Ired. 180 State v. Burnham,
;
can be more explicit. The judge, there- 9 N. H. 34; Cole v. Wilson, 18 B. Monr.
fore, was right in directing the jury that, 212 Hagan v. Hendry, 18 Md. 177 ; Brad-
;
after the publication had been shown to ley v. Heath, 12 Pick. 163, 22 Am. Dec.
have been made by the defendant, and 418 Snyder v. Fulton, 34 Md. 128, 6 Am.
;
the facts published to be true, the jury Wilson v. Noonan, 27 Wis. 598. Where
ought to have found the occasion a proper the truth is relied upon as a defence, the
one for correcting such indecent conduct charge should appear to be true as made.
by public exposure. See further on this Whittemore v. Weiss, 33 Mich. 348;
subject, Regina v. Newman, 1 El. & Bl. Palmer v. Smith, 21 Minn. 419. [For an
268 and 558; s. c. 18 Eng. L. & Eq. 113; article on this general subject of Liberty
Barthelemy v. People, 2 Hill, 248 ; State of the Press, see 34 Am. L. Rev. 321.]
CH. XIII.] OF RELIGIOUS LIBERTY. 659
CHAPTER XIII.
OP RELIGIOUS LIBERTY.
nion place of worship, and to provide a government, faith, form of worship, dis-
proper teacher to instruct them in relig- and ecclesiastical relations at will,
cipline,
ious doctrines and duties, and to adminis- subject only to the restraint imposed by
ter the ordinances of baptism, &c. Al- their articles of association, and to the
greater rights than any other members Burrel v. Associated Reform Church, 44
of the society who statedly attend with Barb. 282; O'Hara v. Stack, 90 Pa. St.
them for the purposes of divine worship. 477; Warner v. Bowdoin Sq. Bapt. Soc. ;
Over the church, as such, the legal or 148 Mass. 400, 19 N. E. 403. In New
temporal tribunals of the State do not Hampshire the signers of the articles of
profess to have any jurisdiction what- association and not the pew-owners are the
ever, except so far as is necessary to corporators. Trinitarian Cong. Soc. .
protect the civil rights of others, and to Union Cong. Soc., 61 N. H. 384. See
preserve the public peace. All questions also Holt v. Downs, 8 N. H. 170. An
relating to the faith and practice of the action will not lie against an incorporated
church and its members belong to the ecclesiastical society for the wrongful
church judicatories, to which they have expulsion of a nit'inber by the church,
voluntarily subjected themselves. But, Hard in v. Baptist Church, 51 Mich. 137,
as a general principle, those ecclesiastical 16 N. W. 403 Sale v. First Baptist Cl>.,
;
judicatories cannot interfere with the 62 Iowa, 26, 17 N. W. 143. The courts
temporal concerns of the congregation or of the State have no general jurisdiction
society with which the church or the and control over the officers of such cor-
members thereof are connected." Wai- porations in respect to the performance
worth, Chancellor, in Baptist Church v. of their official duties but as in respect
;
Wetherell, 3 Paige, 296, 301, 24 Am. to the property which they hold for the
Dec. 223. See Ferraria v. Vasconcellos, corporation they stand in position of
31 111. 25 Lawyer v. Cipperly, 7 Paige,
; trustees, the courts may exercise the same
281 Shannon v. Frost, 3 B. Monr. 253;
; supervision as in other cases of trust.
German, &c. Cong. v. Pressler, 17 La. Ferraria v. Vasconcellos, 31 111. 25; Smith
Ann. 127 Sohier v. Trinity Church, 109
;
v. Nelson, 18 Vt. 511 ; Watson v. Avery, 2
corporation is not an ecclesiastical, but the diversion of the property to his credi-
merely a private civil corporation, the tors. Mannix v. Purcell, 46 Ohio St. 102,
members of the society being the corpo- 19 N. E. 572. But the courts will inter-
rators, and the trustees the managing fere where abuse of trust is alleged, only
officers, with such powers as the statute in clear cases, especially if the abuse
confers, and the ordinary discretionary alleged be a departure from the tenets of
powers of in civil corporations.
officers the founders of a charity. Happy v. Mor-
Robertson Bullions, 11 N. Y. 243;
v. ton, 33 111. 398. See Hale v. Everett, 53
Miller v. Gable, 2 Denio, 492. Compare N. H. It is competent to form such
9.
Watson v.13 Wall. 679. The
Jones, societieson the basis of a community of
church connected with the society, if any property. Scribner v. Rapp, 5 Watts, 311,
there be, is not recognized in the law as 30 Am. Dec. 327 Gass v. Wilhite, 2 Dana,
;
society are not necessarily members Me. 102, 16 Am. Dec. 238. The articles
thereof, and the society may change its 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- 111. 463; Gartin v. Penick, 5 Bush, 110;
scribe qualifications. State v. Crowell, Lucas v. Case, 9 Bush, 297 ; People ;;.
9 N. J. 391. Should there be a disruption German, &c. Church, 53 N. Y. 103 ; Gros-
of the society, the title to the property venor t>. United Society, 118 Mass. 78;
will remain witli that part of it which is State v. Hebrew Congregation, 30 La.
acting in harmony with its own law ; se- Ann. 33 Am. Rep. 217; State v.
205.
ceders will be entitled to no part of it. Bibb 84 Ala. 23,4 So. 40 Living-
St. Ch., ;
majority. Keyser i. Stansifer, 6 Ohio, Abb. N. C. 363; see Hatchett t;. Mt.
363. See Petty r. Tooker, 21 N. Y. 267 ; Pleasant Ch., 46 Ark. 291 from closing ;
Eggleston v. Doolittle, 33 Conn. 396 ; How. Pr. 465; and may be compelled to
Miller v.English, 21 N. J. 317 Nice-oils ; open it to a regularly assigned pastor.
v. Kugg, 47 111. 47 ; Kinkead r. McKee, People v. Conley, 42 Hun, 98; Whitecar
9 Bush, 535; Baker v. Ducker, 79 Cal. v. Michenor, 37 N. J. Eq. 6. In a congre-
365, 21 Pac. 764. Whichever body the gationally governed church a minority of
ecclesiastical authorities recognize as the officers may be enjoined from putting in
church, whether it contains a majority of an organ against the wish of the majority
members or not, is entitled to the prop- and members Hackney i>.
of the officers :
erty. Gaff v. Greer, 88 Ind. 122; White Vawter, 39 Kan. 615, 18 Pac. 699; and a
Lick Meeting v. White Lick Meeting, 89 minority of members from excluding the
Ind. 136. Peculiar rights sometimes majority from using the church. Bates
arise on a division of a society as to ;
v. Houston, 66 Ga. 198. But an excom-
which we can only refer to Reformed munication will not be allowed to affect
Church r. Schoolcraft, 65 N. Y. 134 Kin- ;
civil rights. Fitzgerald v. Robinson, 112
kead i'. McKee, 9 Bush, 535; Niccolls v. Mass. 371. As to the nature and effect
Rugg, 47 III. 47; Smith v. Swormstedt, of the contract between the society and
16 How. 288; Henry v. Deitrich, 84 Pa. the minister, see Avery v. Tyringham, 3
St. 286. The administration of church Mass. 160, 3 Am. Dec. 105, and note ;
rules or discipline the courts of the State Perry v. Wheeler, 12 Bush, 541 East ;
do not interfere with, unless civil rights Norway Lake Ch. v. Froislie, 37 Minn.
become involved, and then only for the 447, 35 N. W. 260; Downs r. Bowdoin
protection of such rights. Hendrickson Sq. Bapt. Soc., 149 Mass. 135, 21 N. E.
v. Decow,1 N. J. Eq. 577 ; Harmon v. 291 West v. First Pres. Ch., 41 Minn.
;
views, in his Life by Rives, Vol. l,p. 140. preach or write that there ought to be no
It was not easy, two centuries ago, to commanders or officers, because all are
make men educated in the ideas of those equal in Christ, therefore no masters nor
days understand how there could be com- officers.no lawsnororders.no corrections
plete religious liberty, and at the same nor punishments I say I never denied
;
time order and due subordination to au- but in such cases, whatever is pretended,
" the commander or commanders
thority in the State. Coleridge said may
that toleration was impossible until in- judge, resist, compel, and punish such
difference made it worthless." Lowell, transgressors according to their deserts
" and merits." Arnold's History of Rhode
Among my Books," 336. Roger Wil-
liams explained and defended his own Island, Vol. I. p. 254, citing Knowles,
views, and illustrated the subject thus :
279, 280. There is nothing in the first
"
There goes many a ship to sea, with amendment to the federal Constitution
many hundred souls in one ship, whose which can give protection to those who
weal and woe is common, and is a true practise what is forbidden by the statute
picture of a commonwealth, or human as criminal, e.g. bigamy, on the pre-
combination or society. It hath fallen tence that their religion requires or sanc-
out sometimes that both Papists and Pro- tions it. Reynolds v. United States, 98
testants, Jews and Turks, may be em- U. S. 145.
barked in one ship; upon which supposal 2 There are
provisions to this effect,
I affirm that all the liberty of conscience more or less broad, in the Constitutions
I ever pleaded for turns upon these two of Tennessee, Delaware, Maryland, and
hinges that none of the Papists, Protes-
:
Kentucky.
tants, Jews, or Turks be. forced to come 3 The Constitution of
Pennsylvania
"
to the ship's prayers or worship if they provides that no person who acknowl-
practise any. I further add that I never edges the being of God, and a future
denied that, notwithstanding this liberty, state ofrewards and punishments, shall,
the commander of this ship ought to com- on account of his religious sentiments, be
mand the ship's course, yea, and also disqualified to hold any office or place of
command that justice, peace, and sobriety trust or profit under this Commonwealth."
be kept and practised, both among the Art. 1, 4. The Constitution of North
seamen and all the passengers. "
If any of Carolina : The following classes of per-
the seamen refuse to perform their ser- sons shall be disqualified for office First: :
vice, or passengers to pay their freight ; All persons who shall deny the existence
if any refuse to help, in person or purse, of Almighty God," &c. Art. 6, 5
towards the common charges or defence ;
The Constitutions of Mississippi and
" No
if any refuse to obey the common laws South Carolina :
person who denies
CH. XIII.] OF RELIGIOUS LIBERTY. 663
the existence of the Supreme Being shall with oaths or affirmations, excuse acts
hold any office under this Constitution." of licentiousness, or justify practices in-
The Constitution of Tennessee " No : consistent with the peace or safety of the
person who denies the being of a God, State. No person shall be required to
or a future state of rewards and punish- attend or support any ministry or place
ments, shall hold any office in the civil of worship against his consent, nor shall
department of this State." On the other any preference be given by law to any
hand, the Constitutions of Georgia, Kan- religious denomination or mode of wor-
sas, Virginia,West Virginia, Maine, Del- ship." Art. 2, 3. The Constitutions
aware, Indiana, Iowa, Oregon, Ohio, New of California, Colorado, Connecticut, Flor-
Jersey, Nebraska, Minnesota, Arkansas, ida, Georgia, Illinois, Maryland, Minne-
Texas, Alabama, Missouri, Rhode Island, sota, Mississippi, Missouri, Nevada, New
Nevada, and Wisconsin expressly forbid York, and South Carolina contain pro-
religious tests as a qualification for office visions that liberty of conscience is not
or public trust. Very inconsistently the to justify licentiousness or practices incon-
Constitutions of Mississippi and Tennes- sistent with the peace and moral safety
see contain a similar prohibition. In of society.
the Constitutions of Alabama, Colorado, 1 A city ordinance is void which gives
Georgia, Illinois, Iowa, Kentucky, Michi- to one sect a privilege denied to others.
gan, New Jersey, Rhode Island, and West Shreveport v. Levy, 26 La. Ann. 671. It
Virginia, it is provided that no person is not unconstitutional to permit a school-
shall be denied any civil or political right, house to be made use of for religious
privilege, or capacity on account of his purposes when it is not wanted for
religious opinions. The Constitution of schools. Nichols v. School Directors, 93
"
Maryland provides that no religious test 111.61, 34 Am. Rep. 160; Davis v. Boget,
ought ever to be required as a qualifica- 60 Iowa, 11. But in Missouri it seems
tion for any office of trust or profit in the school directors have no authority to
this State, other than a declaration of permit such use. Dorlin v. Shearer, 67
belief in the existence of God nor shall ;
Mo. 301. Under the Illinois Constitution
the legislature prescribe any other oath of of 1848 the legislature had no authority
office than the oath prescribed by this con- to take a private school-house, erected
stitution." Declaration of Rights, Art. 37. under the provisions of a will as a school-
The Constitution of Illinois provides house and place of worship, and constitute
that "the free exercise and enjoyment of it a school district, and provide for the
religious profession and worship without election of trustees, and invest them with
discrimination shall forever be guaran- taxing power for the support of a school
teed ;
and no person shall be denied any therein. People v. McAdams, 82 111. 356.
civil or political right, privilege, or ca- But the basement of a church may be
pacity, on account of his religious opin- used for a school and teachers of one sect
ions but the liberty of conscience hereby
; employed. And if religious instruction
secured shall not be construed to dispense is given daily, though not required by
664 CONSTITUTIONAL LIMITATIONS. [CH. XIII.
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 [[But to appropriate
prohibited.
43 S. W. 403, 39 L. R. A. 93.] moneys a hospital in payment for
to
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.
lished by Robert Clarke & Co., Cincinnati, appeal, reversed it, holding that the pro-
under the title, " The Bible in the Public vision in the constitution requiring the
Schools," 1870. The point of the case passage of suitable laws to encourage
may be briefly stated. The constitution morality and religion was one addressed
of the State, after various provisions for solely to the judgment and discretion of
the protection of religious liberty, con- the legislative department and that, in
;
"
tained this clause :
Religion, morality, the absence of any legislation on the sub-
and knowledge, however, being essential ject, the Board of Education could not be
to good government, it shall be the duty compelled to permit the reading of the
of the General Assembly to pass suitable Bible in the schools. Board of Educa-
laws to protect every religious denomina- tion v. Minor, 23 Ohio St. 211. On the
tion in the peaceable enjoyment of its other hand, it has been decided that the
own mode of public worship, and to en- school authorities, in their discretion, may
courage schools and the means of instruc- compel the reading of the Bible in schools
tion." There being no legislation on the by even though it be against the
pupils,
subject, except such as conferred large objectionand protest of their parents.
discretionary power on the Board of Edu- Donahoe v Richards, 38 Me. 376 Spiller ;
intent of this rule to allow the children of compelled to attend any plnce of worship,
666 CONSTITUTIONAL LIMITATIONS. [CH. XIII.
"
within the prohibition of the constitution. Thelegislature shall pass no law . . .
This case in Iowa was followed, six to compel any person to attend, erect, or
years later, 1899, by State v. District support any place of religious worship,
Board, 76 Wis. 177, 44 N. W.967, 7 L. R. or to pay tithes, taxes, or other rates for
A. 330, 20 Am. St. 41. The Constitution the support of any minister of the gospel
of Wisconsin contained these provisions : or teacher of religion." Const. Art. 4,
"The man "
right of every
to worship Al- Sec. 39; and, No money shall be appro-
mighty God according to the dictates of priated or drawn from the treasury for
his own conscience shall never be in- the benefit of any religious sect or society,
fringed ;
nor shall any man be com- theological or religious seminary, nor
pelled to attend, erect, or support any shall property belonging to the State be
place of worship ;
nor shall
. . .
any appropriated for any such purposes."
control of or interference with the rights Const. Art. 4, Sec. 40 and, " The legisla-
;
of conscience be permitted, or any pref- ture shall not diminish or enlarge the
erence be given by law to any religious civil or political rights, privileges, and
establishments or modes of worship," capacities of any person on account of
Const. Art. 1, Sec. 18; and, "The legis- his opinion or belief concerning matters
lature shall provide by law for the estab- of religion." Const. Art. 4, Sec. 41. It
lishments of district schools, which shall was held, such use of such a book did
be as nearly uniform as practicable and : not violate any of the provisions referred
such schools shall be free and without 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 inculcating a belief in the Olympic divin-
was the teacher, a " teacher of religion "; ities, and the Koran may be read without
"
that did not violate any civil or polit-
it teaching the Moslem faith. Why may
nor did it involve the
" not the Bible also be read without indoc-
ical rights," ap-
propriation" of any money, or property trinating children in the creed or dogma
of the State "for the benefit of any of any sect 1 Its contents are largely
religious sect, society or theological, or historical and moral. Its language is un-
Education, 118 Mich. 560, 77 N. W. 250, style has never been surpassed. Among
42 L. R. A. 536. the classics of our literature it stands pre-
In 1902, in the case of State v. Scheve, eminent. It has been suggested that the
Neb. ,91 N. W. 846, the provisions English Bible is, in a special and limited
of the Constitution of Nebraska were sense, a sectarian book. To be sure,
construed. Sec. 4 of Art. 1 provides, there are, according to the Catholic
"
among other things, that, No person claim, vital points of difference with
shall be compelled to attend, erect, or respect to faith and morals between it
support any place of worship against his and the Douay version. In a Pennsyl-
consent, and no preference shall be given vania case cited by counsel for respon-
by law to any religious society, nor dents, the author of the opinion says that
shall any interference with the rights of he noteil over 50 points of difference be-
conscience be permitted." Sec. 11 of tween the two versions, some of them
Art. 8 provides that " no sectarian in- important, and others trivial. These dif-
struction shall be allowed in any school ferences constitute the basis of some of
or institution supported in whole or in the peculiarities of faith and practice
part by the public funds set apart for that distinguish Catholicism from Prot-
educational purposes." Held, that exer- estantism, and make the adherents of
cises by a teacher in a public school, in each a distinct Christian sect. But the
a school building, in school hours, and in fact that theKing James translation may
the presence of the pupils, consisting of be used to inculcate sectarian doctrines
the reading of passages from the Bible, affords no presumption that it will be so
and in the singing of songs and hymns, used. The law does not forbid the use
and offering prayer to the Diety in ac- of the Bible in either version in the
cordance with the doctrines, beliefs, cus- public schools. It is not proscribed either
toms, or usages of sectarian churches or by the constitution or the statutes, and
religious organizations is forbidden by the the courts have no right to declare its use
constitution. On rehearing, the court to be unlawful, because it is possible or
uses the following language " The deci-
:
probable that those who are privileged to
sion (referring to the one just noted) does use it will misuse the privilege by at-
not, however, go to the extent of entirely tempting to propagate their own peculiar
excluding the Bible from the
public theological or ecclesiastical views and
schools. It goes only to the extent of opinions. The point where the courts
denying the right to use it for the pur- may and where they
rightfully intervene,
pose of imparting sectarian instruction. should intervene without hesitation, is
The pith of the opinion is in the syllabus, where legitimate use has degenerated
which declares that 'exercises by a into abuse, where a teacher employed
teacher in a public school in a school to give secular instruction has violated
building, in school hours, and in the the constitution by becoming a sectarian
presence of the pupils, consisting of the propagandist. That sectarian instruction
reading of passages from the Bible, and in may be given by the frequent reading,
the singing of songs and hymns, and without note or comment, of judiciously
offering prayer to the Deity, in accord- selected passages, is, of course, obvious.
ance with the doctrines, beliefs, customs, A modern philosopher perhaps the
or usages of sectarian churches or relig- greatest has said that persistent iter-
ious organizations, are forbidden by the ation is the most effective means of
constitution of this State.' Certainly the forcing alien conceptions upon reluctant
Iliad may be read in the schools without minds. Whether it is prudent or politic
668 CONSTITUTIONAL LIMITATIONS. [CH. XIII.
to permit Bible reading in the public United States, from making any law re-
we feel assured that neither teachers nor a close numerical rivalry among contend-
school boards have been much inclined to ing sects. It was impossible that there
bring discord into the schools for the should not arise perpetual strife and per-
chance of securing by indirection a slight petual jealousy on the subject of ecclesi-
sectarian advantage. But if the fact astical ascendancy, if the national govern-
were otherwise, it could not in any way ment were left free to create a religious
affect our conclusion. The section of establishment. The only security was in
the constitution which provides that no extirpating the power. But this alone
'
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.
the laws of the State can regard the outward conduct only and ;
1 Andrews v. Bible Society, 4 Sandf. also by Dr. S. T. Spear in his book enti-
Methodist Church, 3 "
156, 182 ; Ayres v. tied Religion and the State."
2
Sandf. 351 ;
State Chandler, 2 Harr.
. 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
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."
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 that "Christianity was never
is, 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.
1
Updegraph v. Commonwealth, 11 S. ways been as guarded as it should have
& R. 394. In Ayres v. Metliodist Church, been on this subject. In The King v.
3 Sandf. 351, 377, Duer, J., in speaking of Waddington, 1 B. & C. 26, the defendant
" "
pious uses," says If the Presbyterian
: was on trial for blasphemous libel, in say-
and the Baptist, the Methodist and the ing that Jesus Christ was an impostor,
Protestant Episcopalian, must each be and a murderer in principle. One of the
allowed to devote the entire income of jurors asked the Lord Chief Justice (Ab-
his real and personal estate, forever, to bott) whether a work which denied the di-
the support of missions, or the spreading vinity of the Saviour was a libel. The
of the Bible, so must the Roman Catholic Lord Chief Justice replied that " a work
his to the endowment of a monastery, or speaking of Jesus Christ in the language
the founding of a perpetual mass for the used in the publication in question was a
safety of his soul the Jew his to the
; libel, Christianity being a part of the law
translation and publication of the Mishna of the land." This was doubtless true, as
or the Talmud, and the Mahometan (if the wrong motive was apparent; but it
in that colludes gentium to which this city did not answer the juror's question. On
[New York], like ancient Rome, seems to motion for a new trial, the remarks of
be doomed, such shall be among us), the Best, J., are open to a construction which
Mahometan his to the assistance or relief answers the question in the affirmative:
"
of the annual pilgrims to Mecca." My Lord Chief Justice reports to us
2 that he told the jury that it was an in-
People v. Ruggles, 8 Johns. 289, 293,
6 Am. Dec. 335, per Kent, Ch. J. dictable offence to speak of Jesus Christ
3 Rex Woolston, Stra. 834, Fitzg.
v. in the manner that he is spoken of in the
64; People v. Ruggles, 8 Johns. 289, 6 publication for which this defendant is
Am. Dec. 335, per Kent, Ch. J. indicted. It cannot admit of the least
4 Per
Shaw, Ch. J., in Commonwealth doubt that this direction was correct.
K. Kneeland, 20 Pick. 206, 234. The lan- The 53 Geo. III. c. 160,has made noalterr
guage of the courts has perhaps not al- ation in the common law relative to libel.
674 CONSTITUTIONAL LIMITATIONS. [CH. XIII.
If,previous to the passing of that statute, laws, and did not interfere with the com-
it would have been a libel to deny, in any mon law relative to blasphemous libels.
printed book, the divinity of the second It is not necessary for me to say whether
person in the Trinity, the same publica- it be libellous to argue from the Scrip-
tion would be a libel now. The 53 Geo. III. tures against the divinity of Christ; that
c. 160, as its title expresses, is an act to is not what the defendant professes to
relieve persons who impugn the doctrine do; he argues against the divinity of
of the Trinity from certain penalties. If Christ by denying the truth of the Scrip-
we look at the body of the act to see tures. A work containing such argu-
from what penalties such persons are re- ments, published maliciously (which the
lieved, we find that they are the penal- jury in this case have found), is by the
ties from which the 1 W. & M. Sess. 1, common law a libel, and the legislature has
c. 18, exempted all Protestant dissenters, never altered this law, nor can it ever do so
except such as denied the Trinity, and while the Christian religion is considered
the penalties or disabilities which the 9 & the basis of that law." It is a little diffi-
10 W. III. imposed on those who denied cult, perhaps, to determine precisely how
the Trinity. The 1 W. & M. Sess. 1, far this opinion was designed to go in
c. 18, is, as it has been usually called, an holding that the law forbids the public
act of toleration, or one which allows dis- denial of the truth of the Scriptures.
senters to worship God in the mode that That arguments against it, made in good
is agreeable to their religions opinions, faith by those who do not accept it, are
and exempts them from punishment for legitimate and rightful, we think there is
non-attendance at the Established Church no doubt; and the learned judge doubt-
and non-conformity to its rites. The leg- less meant to admit as much when he
islature, in passing that act, only thought required a malicious publication as an in-
of easing the consciences of dissenters, gredient in the offence. However, when
and not of allowing them to attempt to we are considering what is the common
weaken the faith of the members of the law of England and of this country as re-
church. The 9 & 10 W. III. was to give gards offences against God and religion,
security to the government by rendering the existence of a State Church in that
men incapable of office, who entertained country and the effect of its recognition
opinions hostile to the established reli- upon the law are circumstances to be
gion. The only penalty imposed by that kept constantly in view.
statute is exclusion from office, and that In People v. Porter, 2 Park. Cr. R. 14,
penalty is incurred by any manifesta- the defence of drunkenness was made to
tions of the dangerous opinion, without a prosecution for a blasphemous libel.
proof of intention in the person entertain- Walworth, Circuit Judge, presiding at
ing it, either to induce others to be of that the trial, declared the intoxication of de-
opinion, or in any manner to disturb per- fendant, at the time of uttering the
sons of a different persuasion. This stat- words, to be an aggravation of the offence
ute rested on the principle of the test rather than an excuse.
CH. XIII.] OF RELIGIOUS LIBERTY. 675
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. says not to Jew or Sabbatarian,
It 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. ;
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 ;
the present life. See especially Atwood New York have constitutional provisions
v. Welton, 7 Conn. 66. But this rule did expressly doing away with incompetency
not generally obtain belief in a Supreme
;
from want of religious belief. Perhaps
Being who would punish false swearing, the general provisions in some of the
whether in this world or in the world to other constitutions, declaring complete
come, being regarded sufficient. Cubbi- equality of civil rights, privileges, and
sou v. McCreary, 7 W. & S. 262 Blocker ; capacities are sufficiently broad to ac-
v. Burness, 2 Ala. 354; Jones v. Harris, complish the same purpose. Perry's
1 Strob. 160; Shaw v. Moore, 4 Jones Case, 3 Gratt. 632. In Michigan and
(N. C.), 25 Hunscom v. Hunscom, 15
; Oregon a witness is not to be questioned
Mass. 184; Brock v. Milligan, 10 Ohio, concerning his religious belief. See Peo-
121 Bennett v. State, 1 Swan, 411 ; Cen-
; ple v. Jenness, 5 Mich. 305. In Georgia,
tral R. R. Co. v. Rockafellow, 17 111. 541 ; the code provides that religious belief
Arnold v. Arnold, 13 Vt. 362; Butts v. shall only go to the credit of a witness,
Swartwood, 2 Cow. 431 Free v. Bucking- ;
and it has been held inadmissible to in-
ham, 50 N. H. 219. But one who lacked quire of a witness whether he believed in
this belief was not sworn, because there Christ as the Saviour. Donkle v. Kohn,
was no mode known to the law by which 44 Ga. 266. In Maryland, no one is in-
it was supposed an oath could be made "
competent as a witness or juror provided
binding upon his conscience. Arnold v. he believes in the existence of God, and
Arnold, 13 Vt. 362 Scott v. Hooper, 14
; that, under His dispensation, such per-
Vt. 535 Norton v. Ladd, 4 N. H. 444 ;
; son will be held morally accountable for
Cent. R. R. Co. v. Rockafellow, 17 111. his acts, and be rewarded or punished
641. therefor, either in this world or the world
The States of Iowa, Minnesota,
1
to come." Const. Dec. of Rights, 36.
Michigan, Oregon, Wisconsin, Arkansas, In Missouri, an atheist is competent.
Florida, Missouri, California, Indiana, Londoner v. Lichtenheim, 11 Mo. App.
Kansas, Nebraska, Nevada, Ohio, and 385.
678 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
CHAPTER XIV.
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 ;
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
2
Providence Bank v. Billings, 4 Pet. Wingate v. Sluder, 6 Jones (N. C.), 552;
514, 561. Herriek v. Randolph, 13 Vt. 525; Arm-
ington v. Barnet, 15 Vt. 745; Thomas v.
8 v. Maryland, 4 Wheat,
McCulloch
316, 430. See Kirtland v. Hotchkiss, 100 Leland 24 Wend. 65; People v. Mayor,
?
Landsborough, 36 Ohio St. 227; State v. Bank Apthorp, 12 Mass. 252; Western
r.
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.
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.]
<JH.
XIV.] THE POWER OF TAXATION. 681
to destroy may defeat and render useless the power to create that ;
Maryland, 4 Wheat,
1
McCulloch o. tax one instrument employed by the gov-
316, 431. The case involved the right of ernment in the execution of its powers,
the State of Maryland to impose taxes they may tax any and every other instru-
upon the operations, within its limits, of ment. They may tax the mail they ;
the Bank
of the United States, created may tax the mint they may tax patent
;
"
by authority of Congress. If," says rights they may tax the papers of the
;
" we custom-house
the Chief Justice, apply the prin- ; they may tax judicial
ciple for which the State of Maryland process ; they may tax all the means em-
contends to the Constitution generally, ployed by the government to an excess
we shall capable of changing
find it which would defeat all the ends of gov-
totally the character of that instrument, ernment. This was not intended by the
We shall find it capable of arresting all American people. They did not design
the measures of the government, and of tomake their government dependent on
prostrating it at the foot of the States, the States." In Veazie Bank v. Fenno,
The American people have declared their 8 Wall. 533, followed and approved in
Constitution, and the laws made in pur- National Bank v. United States, 101 U. S.
suance thereof, to be supreme; but this 1, it was held competent for Congress, in
principle would transfer the supremacy aid of the circulation of the national
in fact to the States. If the States may banks, to impose restraints upon the cir-
682 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
having the effect to reduce the compensation for the services pro-
vided by the act of Congress, would to that extent conflict with
such act, and tend to neutralize its purpose. 2 So the States may
not impose taxes upon the obligations or evidences of debt issued
by the general government upon the loans made to it, unless such
taxation is permitted by law of Congress, and then only in the
manner such law shall prescribe, any such tax being an imped-
iment to the operations of the government in negotiating loans,
and, in greater or less degree in proportion to its magnitude, tend-
3
ing to cripple and embarrass the national power. The tax upon
culation of the State banks in the form invested in interest-bearing loans and
of taxation. Perhaps no other case goes securities, and in stocks and bonds, is
so far as this, in holding that taxation not invalid as a discrimination against
may be imposed for other purposes than national banks whose shares are assessed,
the raising of revenue, though the levy of where the money invested in the non-
duties upon imports with a view to inci- assessed property does not compete with
dental protection to domestic manufac- the national banks. First Nat. Bk., &c.
tures is upon a similar principle. QThe v. Chehalis Co., 166 U. S.440, 17 Sup. Ct.
Federal tax system is not subject to State Rep. 629, aff. 6 Wash. 64, 32 Pac. 1051 ;
registration laws, nor to State statutes of First Nat. Bank v. Ayers, 160 U. S. 660,
limitation. United States v. Snyder, 149 16 Sup. Ct. Rep. 412, aff. 53 Kan. 440,
U. S. 210, 13 Sup. Ct. Rep. 846.J 463, 36 Pac. 724.] But the doctrine
1 McCulloch v. which exempts the instrumentalities of
Maryland, 4 Wheat.
316 Osborn v. United States Bank, 9
;
the general government from the influ-
Wheat. 738 Dobbins v. Commissioners
;
ence of State taxation, being founded on
of Erie Co., 16 Pet. 435. [The States the implied necessity for the use of such
are prohibited from taxing the franchises instruments by the government, such leg-
and intangible property of national banks. islation as does not impair the usefulness
Owensboro Nat'l Bk. v. Owensboro, 173 or capability of such instruments to serve
U. S. 664, 19 Sup. Ct. Rep. 537 ; Third the government is not within the rule of
Nat'l Bk. of Louisville v. Stone, 174 U. S. prohibition. National Bank v. Common-
432, 19 Sup. Ct. Rep. 759. Upon taxing wealth, 9 Wall. 353; Thompson v. Pacific
shares of national banks hands of
in R. R. Co., 9 Wall. 579.
2
stockholders, see First Nat'l Bk. of Wel- Dobbins v. Commissioners of Erie
lington v. Chapman, 173 U. S. 205, 19 Sup. Co., 16 Pet. 435. On similar grounds it is
Ct. Rep. 407 Merchants' & M. Nat. Bank
;
held in Canada that a provincial legisla-
v. Pennsylvania, 167 U. S. 461, 17 Sup. ture has no power to impose a tax on the
Ct. Rep. 829 note to 7 L. ed. U. S. 939
; ;
official income of an officer of the Domin-
also McHenry v. Downer, 116 Cal. 20, 47 ion government. Leprohon v. Ottawa,
for the sake of self-preservation, exempt dock Ward, 178 U. S. 139, 20 Sup. Ct.
v.
from taxation by the States, why are not Rep. 775 Orr v. Gilraan, 183 U. S. 278,
;
those of the States depending upon their 22 Sup. Ct. Rep. 213; Magoun v. Illinois
reserved powers, for like reasons, equally Trust Co., 170 U. S. 283, 18 Sup. Ct. Rep.
exempt from federal taxation? Their 594. See United States v. Owens, 100
unimpaired existence in the one case is as Fed. Rep. 70, upon right of Federal gov-
essential as in the other. It is admitted ernment to tax bonds of saloon-keepers.
that there is no express provision in the Held that act purporting to authorize
Constitution that prohibits the general such tax is void for violation of the prin-
government from taxing the means and ciple against taxation of the agencies of
instrumentalities of the States, nor is the State.
there any prohibiting the States from The taxation of the capital stock of a
taxing the means and instrumentalities of corporation owning patents is a taxation
that government. In both cases the ex- of such patents and invalid. So held in
emption rests upon necessary implication, People v. Board of Assessors, 156 N. Y.
and is upheld by the great law of self- 417, 51 N. E. 269. Not so as to tax levied
preservation ;
as any government, whose on the shares of stock as property of the
means employed in conducting its opera- individual. Crown Cork & Seal Co. v.
tions, if subject to the control of another State, 87 Md. 687, 40 All. 1074, 67 Am.
and distinct government, can only exist St. 371.]
government. Of
at the of that 2
Warren v. Paul, 22 Ind. 276; Jones
mercy
what avail are these means if another v. Estate of Keep, 19 Wis. 369; Fifield
"
power may tax them at discretion ? v. Close, 15 Mich. 505; Union Bank v.
Per Nelson, J., in Collector v. Day, 11 Hill, 3 Cold. 325 ; Smith v. Short, 40 Ala.
Wall. 113, 124. See also Ward v. Mary- 385 Moore ;
v. Quirk, 105 Mass. 49, 7 Am.
power in some
of the cases which have considered this subject,
certain papers not stamped should not be that Congress cannot preclude parties
received in evidence must be limited in from entering into contracts permitted by
its operation to the federal courts. Car- the State laws, and that to declare them
penter v. Snelling, 97 Mass. 452 Green ;
void was not a proper penalty for the
v. Hoi way, 101 Mass. 243, 3 Am. Rep. 339 ; enforcement of tax laws. Congress can-
Clemens v. Conrad, 19 Mich. 170; Haight not make void a tax deed issued by a
v. Grist, 64 N. C. 739 Griffin v. Ranney,
;
State. Sayles v. Davis, 22 Wis. 225.
35 Conn. 239 People v. Gates, 43 N. Y.
;
Nor require a stamp upon the official
40 Bowen v. Byrne, 65 111. 467 Hale v.
; ;
bonds of State officers. State Gar-
v.
Wilkinson, 21 Gratt. 75 Atkins v. Plymp- ; ton, 32 Ind. 1. Nor tax the salary of a
ton, 44 Vt. 21 Bumpass v. Taggart,
;
State officer. Collector v. Day, 11 Wall.
26 Ark. 398, 7 Am. Rep. 623; Sammons v. 113; Freedman Sigel, 10 Blatch. 327.
v.
Holloway, 21 Mich. 162, 4 Am. Rep. 465; Nor forbid the recording of an unstamped
Duffy v. Hobson, 40 Cal. 240; Sporrer v. instrument under the State laws. Moore
Eifler, 1 Heisk. 633 McElvain v. Mudd,
;
v. Quirk, 105 Mass. 49, 7 Am. Rep. 499.
"
44 Ala. 48, 4 Am. Rep. 106; Burson v. Power to tax for State
purposes is as
Huntington, 21 Mich. 415, 4 Am. Rep. much an exclusive power in the States,
497 Davis v. Richardson, 45 Miss. 499,
;
as the power to lay and collect taxes
7 Am. Rep. 732 Hunter v. Cobb, 1 Bush,
;
to pay the debts and provide for the com-
239 Craig v. Dimock, 47 111. 308 Moore
; ;
mon defence and general welfare of the
v. Moore, 47 N. Y. 467, 7 Am. Rep. 466. United States is an exclusive power in
FJKnox v. Rossi, 25 Nev. 96, 67 Pac. 179, Congress." Clifford, J., Ward v. Mary-
48 L. R. A. 305. Upon effect of omis- land, 12 Wall. 418, 427. In United States
sion to stamp an instrument or cancel the v. Railroad Co., 17 Wall. 322, it was de-
stamp thereon, see note to this case in cided that a municipal corporation of a
L. R. A. A check may be forged and the State, being a portion of the sovereign
forger punished criminally, even though power, was not subject to taxation by
the instrument was not stamped in com- Congress upon its shares of stock in a
pliance with the law of Congress relat- railroad company. p?or can the United
ing to checks, and was therefore invalid. States tax the income derived from bonds
Thomas v. State, 40 Tex. Grim. App. issued by the municipal corporations of
662, 51 S. W.242, 46 L. R. A. 464, the States. Pollock v. Farmers' L. & T.
and see note to this case in L. R. A. Co., 157 U. S. 429, 15 Sup. Ct. Rep. 673.]
1 The
upon omission of stamp as affecting constitutionality of this taxation
criminal prosecution.] Several of these was sustained by a divided court in Veazie
cases have gone still farther, and declared Bank v. Fenno, 8 Wall. 533.
086 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
622, 6 Sup. Ct. Rep. 1091. See State v. U. S. 60, But a like
2 Sup. Ct. Rep. 87.
Pittsburg, &c. Co., 41 La. Ann. 465, 6 impost under federal law is valid. Head
So. 220; L~Am. Fertilizing Co. v. Bd. of Money Cases, 112 U. S. 680, 6 Sup. Ct.
Agriculture, 43 Fed. Rep. 609, 11 L. R. A. Rep. 247.
'
2
179, and note; State v. Bixman, 162 Mo. Brown v. Maryland, 12 "Wheat. 419,
1, 62 S. W. 828.] But an inspection law 441, per Marshall, Ch. J. [May & Co. v.
applicable only to lime manufactured in New Orleans, 178 U. S. 496, 20 Sup. Ct.
CH. XIV.] THE POWER OF TAXATION. 687
Rep. 976, aff. 51 La. Ann. 1064, 25 So. 959. See what is said of this case in Woodruff
And as to original packages, see Postal v. Parham, 8 Wall. 123, 137. And com-
Tel. & Cable Co. v. Adams, 165 U. S. 688, pare Jackson Iron Co. v. Auditor-General,
15 Sup. Ct. Rep. 268, 360, and note 39 L. 32 Mich. 488. See also Brumagim v.
ed. U. S. 311; lie Wilson, 8 Mackey, 341 Tillinghast, 18 Cal. 265; Garrison v.
(D. C.), 12 L. R. A. 624, and note; and Tillinghast, 18 Cal. 404; Ex parte Mar-
State v. Winters, 44 Kan. 723, 25 Pac. 235, tin, 7 Nev. 140 Turner v. State, 55 Md.
;
see note to 11 L. R. A. 179. See also Aus- 2 Sup. Ct. Rep. 44. In the last two cases
tin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. a law requiring an inspection of tobacco
Rep. 132 ; Re Wilson, 10 N. M. 32, 60 Pac. going out of the State is sustained. The
73, 48 L. R. A. 417. State cannot tax im- States cannot discriminate in taxation
ported tea in original packages. Siegfried between the productions of different
v. Raymond, 190 111. 224, 60 N. E. 868.] States. Welton v. Missouri, 91 U. S.
i
Almy v. California, 24 How. 169. 275 Tiernan v. Rinker, 102 U. S. 123.
;
(a) FJThe business of life insurance is not inter-state commerce. N. Y. Life Ins. Co.
v.Cravens, 178 U. S. 389, 20 Sup. Ct. Hep. 962. Nor is marine insurance, Hooper v.
California, 155 U. S. 648, 15 Sup. Ct. Rep. 207, 5 Inters. Com. Rep. 610. Nor is fire
insurance. Phila. Fire Asso. r. New York, 119 U. S. 110, 7 Sup. Ct. Rep. 108;
Liverpool & L. L. & Ins. Co. v. Massachusetts, 10 Wall. 566; Paul v. Virginia, 8 Wall.
168; State v. Phipps, 50 Kan. 609, 31 Pac. 1097, 18 L. R. A. 657, 34 Am. St. 152.
Upon State taxation and Federal commerce power, see note to 39 L. ed. U. S. 538,
and another to 38 L. ed. U. S. 1041 also one to 37 L. ed. U. S. 216. Hiring laborers to
,
be employed outside the limits of the State where hired is not commerce. Williams
v. Fears, 179 U. S. 270, 21 Sup. Ct. Rep. 128, aff. 110 Ga. 584, 35 S. E. 699. Nor is
sending goods outside the State to have services performed upon them and the goods
thereafter returned. Smith r. Jackson, 103 Tenn. 673, 64 S. W. 981, 47 L. R. A. 416.
Nor is making contracts for buying and selling " futures " in another State. Alex-
ander v. State, 86 Ga. 246, 12 S. E. 408, 10 L. R. A. 859. A
State statute requiring
the payment of a license tax by a non-resident soliciting orders for merchandise is
invalid, Brennan v. City of Titusville, 153 U. S. 289, 14 Sup. Ct. Rep. 829. But an
agent of a foreign corporation engaged in the purchase of wool to be shipped to that
corporation in another State is engaged in inter-state commerce. MacNaughton Co.
v. McGirl, 20 Mont. 124, 49 Pac. 651, 38 L. R. A. 367, 63 Am. St. 610. Transporta-
tion of lottery tickets from one State to another by an express company is inter-state
commerce. Champion v. Ames, U. S. , 23 Sup. Ct. Rep. 321. For other cases
upon what constitutes "commerce," see Gibbons v. Ogden, 9 Wheat. 1, and cases cited
in the opinion in Champion v. Ames, supra. For cases sustaining the anti-trust act
of 1890 under the commerce clause, see United States v. Joint-Traffic Assn., 171 U. S.
505; Addyston Pipe & S. Co. r. United States, 175 U. S. 211; United States v. North-
ern Securities Co., 120 Fed. Rep. 721-3
688 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
1 Board of Wardens, 12
Cooley v. v.Shelby Taxing Dist., 120 U. S. 489, 7
How. 299; Wilson v. Blackbird Creek Sup. Ct. Rep. 592; Phil. S. S. Co. v.
Marsh Co., 2 Pet. 245; Oilman v. Phil- Pennsylvania, 122 U. S. 326, 7 Sup. Ct.
adelphia, 3 Wall. 713; Ex parte Mc- Rep. 1118.
236; Henderson v. New
8 In Brown v.
Niel, 13 Wall. Maryland, 12 Wheat.
York, 92 U. S. 259 Wilson v. McNamee,
; 419, 441, was held that a license fee of
it
acts, State quarantine regulations are property brought from another State has
valid, and an examination fee may be become part of the property in a State, it
charged graded by the kind of vessel. may be taxed like other property there :
Train v. Boston Disinfecting Co., 144 Bates, 15f> U. S. 577, 15 Sup. Ct. Rep.
Mass. 623, 11 N. E. 929. QBut a State 415; Singer Mfg. Co. v. Wright, 97
or municipal license tax levied upon Ga. 114, 25 S. E. 249, 35 L. R. A. 497 Q
tugs engaged in towing vessels engaged but not, if it is taxed by reason of its
in inter-state commerce in the river and being so brought. Welton v. Missouri,
harbor of Chicago is bad. Harmon v. 91 U. S. 275. See Phila. S. S. Co. v.
Chicago, 147 U. S. 396, 13 Sup. Ct. Rep. Pennsylvania, 122 U. S. 326, 7 Sup. Ct.
306 and see in this connection note to
; Rep. 1118. A
tax upon receipts from the
this case in 37 L. ed. U. S. 216, on State transportation of goods from one State to
and regulation of inter-state com-
statutes another by rail is bad. Case of State
merce also St. Louis v. Cons. Coal Co.,
; Freight Tax, 15 Wall. 232; Fargo v.
158 Mo. 342, 59 S. W. 103, 51 L. R. A. Michigan, 121 U. S. 230, 7 Sup. Ct. Rep.
850.] 857. So is one upon the gross receipts
2
Welton
v. Missouri, 91 U. S. 275; from transportation by sea between differ-
Brown Houston, 114 U. S. 622, 5 Sup.
v. ent States, or to and from foreign coun-
Ct. Rep. 1091; Walling Michigan, 116
. tries: Phila. S. S. Co. v. Pennsylvania,
U. S. 446, 6 Sup. Ct. Rep. 454 Robbins ;
122 U. S. 326, 7 Sup. Ct. Rep. 1118; im-
CH. XIV.] THE POWER OF TAXATION. 689
v. Woodruff, &c. Co., 114 Ind. 155, 15 ville, 158 U. S. 289, 14 Sup. Ct. Rep.
N. E. 814. See Central R. R. Co. v. 829, 4 Inters. Cum. R. 658 and see, in ;
ration engaged in such commerce, which 160 State v. Willingham, 9 Wyo. 290, 62
;
lands and receives passengers and freight Pac. 797, 52 L. R. A. 198. Stockard v.
within the State. Gloucester Ferry Co. Morgan, 105 Tenn. 412, 58 S. W. 1061,
v. Pennsylvania, 114 U. S. 196,5 Sup. Ct. holds that a merchandise broker repre-
Rep. 826. So is one on all telegraph senting only non-resident principals is
messages sent out of a State. Telegraph subject to a State tax on occupation
Co. v. Texas, 105 U. S. 460. See Ratter- and not engaged in inter-state com-
is
man v. W. U. Tel. Co., 127 U. S. 411, merce, but this case was afterward re-
8 Sup. Ct. Rep. 1127. A State may not versed in the Supreme Court of the
exact, as a condition of duing business, United States, see Stockard v. Morgan,
a license from a company, a large part 185 U. S. 27, 22 Sup. Ct. Rep. 576. But
of whose business is the transmission of where the agent carries the goods with
inter-state telegrams. Leloup v. Port of him and sells them, he is subject to
Mobile, 127 U. S. 640, 8 Sup. Ct. Rep. the State law. Emert v. Missouri, 156
1380. fJBut it may exact a license fee U. S. 296, 15 Sup. Ct. Rep. 367, aff. 103
from an express company engaged in Mo. 241, 15 S. Inters. Com. Rep.
W.81, 3
inter-state commerce before permitting it 627, 11 L. R. A. 219, 23 Am. St. 874 ;
another State, thus reversing the rule of 136 U. S. 114, 394, 10 Sup. Ct. Rep. 958.
18 Fed. Rep. 10, above. In L. V. R. Co. Sheep driven through a State for purpose
v. Pa., above, the tax was levied upon of grazing, as well as to reach another
receipts, and an apportionment upon a State, are taxable in first State, even
mileage basis of receipts from domestic though they remain but a short time.
commerce, a portion of whose route lay Kelley v. Rhodes, 7 Wyo. 237, 51 Pac.
without the State, was sustained/] For 593, 39 L. R. A. 594; s. c. 9 Wyo.
further discussion of this subject, see 352, 63 Pac. 935. License tax upon
New York v. Miln, 11 Pet. 102; License those engaged in packing oysters for sale
Cases, 5 How. 504
Lin Sing v. Wash-
;
or transportation is valid, even though
burn, 20 Cal. 534; Erie Railway Co. v. oysters are intended to be shipped out
New Jersey, 81 N. J. 531, rev. 30 N. J. of the State. State v. Applegarth, 81
473; Pennsylvania R. R. Co. v. Common- Md. 293, 31 Atl. 961, 28 L. R. A. 812.
wealth, 3 Grant, 128 Hinson v. Lott, 40
;
State may tax corporate franchise of a
Ala. 123 Commonwealth v. Erie R. R.,
;
domestic corporation, even though the
62 Pa. St. 286; Osborne v. Mobile, 44 corporation is organized to carry on in-
Ala. 493 s. c. in error, 16 Wall. 479
; ; ter-state commerce. State v. Bd. of
State v. Philadelphia, &c. R. R. Co., 45 Assessors, 55 N. J. L. 529, 26 Atl. 711,
Md. 361 Walcott v. People, 17 Mich. 68.
;
25 L. R. A. 134. One selling merchandise
In Crandall v. Nevada, 6 Wall. 35, it was that is in a foreign State is engaged in
held that a State law imposing a tax of inter-state commerce and cannot be com-
one dollar on each person leaving the pelled to pay a license. Adkins v. Rich-
State by public conveyance was not void mond, 98 Va. 91, 34 S. E. 967. In
as coming in conflict with the control of Western Union T. Co. v. New Hope,
Congress over commerce, though set U. S. ,
23 Sup. Ct. Rep. 204, an ordi-
aside on other grounds. Logs belonging nance requiring a license fee of $1.00 per
to a non-resident are liable to be taxed pole, and -^2.50 per mile of wire, was sus-
though intended for transportation to tained though imposed upon poles and
another State, and partially prepared for wires used in inter-state business. For
it by being deposited at the place of ship- oilier cases upon inter-state commerce and
ment. Coe v. Errol, 116 U. S. 617, Sup. State's power of taxation, see Singer Mfg.
Ct. Rep. 475. See Com'rs Brown Co. v. Co. v. Wright, 97 Ga. 114, 25 S. E. 249, 35
Standard Oil Co., 103 Ind. 302, 2 N. E. L. R. A. 497; Commonwealth v. Myers,
758. On the subject of inter-state com- 92 Va. 809, 23 S. E. 915, 31 L. R. A. 379;
merce, see further, pp. 846, 851-859, 873, Carrollton v. Bazzette, 159 111. 284, 42
post. Cooley on Taxation, 61-64. QUpon N. E. 837, 31 L. R. A. 522 San Bernar-
;
power of States over inter-state telegraph dino v. Southern Pac. Co., 107 Cal. 524,
and telephone companies, see Postal Tel. 40 Pac. 796, 29 L. R. A. 327 South Bond
;
Cable Co. v, Baltimore, 79 Md. 502, 29 v. Martin, 142 Ind. 31, 41 N. E. 315, 29
towing boats engaged in inter-state com- U. Tel. Co., 116 N. C. 211, 21 S. E. 391,
merce is void. Harmon v. Chicago, 147 27 L. R. A. 843 ; State v. Bd. of Asses-
U. S. 396, 13 Sup. Ct. Rep. 306, and see sors, 57 N. J. L. 516, 31 Atl. 220, 27
also note to this case in 37 L. ed. U. S. L. R. A. 684 State v. Gorham, 115 N. C.
;
216, upon State statutes and inter-state 721, 20 S. E. 179, 25 L. R. A. 810 Coit;
commerce to his principal, and the State Com. Rep. 50S, 22 L. R. A. 775; San
CH. XIV.] THE POWER OF TAXATION. 691
l
to capacity ;
but it is admitted they may be taxed like other
2
property.
Francisco v. Western U. Tel. Co., 96 Cal. 55 Pac. 639, 48 L. R. A. 790; Am. Refr.
140, 31 Pac. 10, 17 L. U. A. 301 Rother- ;
Transit Co. v. Hall, 174 U. S. 70, 19 Sup.
mel v. Meyerle, 136 Pa. 250, 20 Atl. 583, Ct. Rep. 599. Upon State taxes and com-
9 L. R. A. 366, and note State v. Zophy, ; merce, see notes to 39 L. ed. U. S. 538,
14 S. D. 119, 84 N. W. 391, State v. Omaha 24 C. C. A. 21, 8 C. C. A. 492, 13 L. R. A.
6 C. B. R. & B. Co., 113 Iowa, 30, 84 686, 11 L. R. A. 179, and 9 L. R. A. 366.
N. W. 983.3 State may tax capital employed within
1
Cannon r. New Orleans, 20 Wall. its limits, even though part of the business
Port Wardens, 6 Wall. 31 State Tonnage ; 58 aff. 91 Hun, 158, 149 N. Y. 608, 44
;
Ct. Rep. 257. But such tax upon running 36 S. W. 561. Upon relation between
towboats between New Orleans and the State power of taxation and Federal
Gulf is a regulation of commerce. Moran control of commerce, note to 37 L. ed.
v.New Orleans, 112 U. S. 69, 5 Sup. Ct. U. S. 216. In the taxation of companies
Rep. 38. Tolls based on tonnage may be engaged in inter-state commerce, such as
charged for the use of improved water- railway, telegraph, telephone, and express
ways. Huse v. Glover, 119 U. S. 543, companies, and the like, a State is not
7 Sup. Ct. Rep. 313. Port dues may not restricted to the tangible property of such
be laid unless services are rendered. companies within its borders, but may
Harbor Com'rs v. Pashley, 19 S. C. 315; tax in addition an equitable proportion of
Webb v. Dunn, 18 Fla. 721. the intangible property of such companies
2 Also Peete v. Mor-
See above cases. used in such business, even though the
gan, 19 Wall. 581; Transportation Co. v. companies are chartered by other States
Wheeling, 99 U. S. 273 N. W. Lumber ;
or countries, and have their principal
Co. v. Chehalis County, 24 Wash. 626, 64 officeoutside the taxing State. Exactly
Pac. 909.] Wharfage charges are not what rules shall be followed in the valua-
forbidden by the above clause of the tion of such intangible property, and its
Constitution Marshall v. Vicksburg, 15
:
apportionment among the various States
Wall. 146; Packet Co. v. Keokuk, 95 in which such companies operate, is not
U. S. 80; Packet Co. v. St. Louis, 100 very well settled. See the whole subject
U. S. 423 Vicksburg v. Tobin, 100 U. S.
; exhaustively discussed in Adams Express
430 and they may be measured by ton-
; Co. v. Ohio State Auditor, 165 U. S. 194,
nage. Packet Co. v. Catlettsburg, 105 17 Sup. Ct. Rep. 305 s. c. in 61 Fed. Rep.
;
tax the average number of refrigerator Cleveland, C., C. & St. L. R. Co. v. Backus,
cars used within its borders, even though 154 U. S 439, 14 Sup. Ct. Rep. 1122;
they are owned outside the State and are 4 Int St. Com. R. 671 Pittsburg, C., C.
;
engaged in inter-state commerce. Union & St. L. R. Co. v. Backus, 154 U. S. 421,
Ref. Transit Co v. Lynch, 177 U. S. 149, 14 Sup. Ct. Rep. 1114; Massachusetts v.
20 Sup. Ct. Rep. 631 aff. 18 Utah 378, ; W. U. Tel. Co., 141 U. S. 40, 11 Sup. Ct.
692 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
Rep. 889; Pullman's Palace Car Co. v. 38 L. ed. U. S. 1041. Two other very
" "
Pennsylvania, 141 U. S. 18, 11 Sup. Ct. important cases upon the unit rule in
Rep. 876, 3 Int. St. Com. R. 595 Western
;
taxation of properties lying in two or
U. Tel. Co. v. Massachusetts, 125 U. S. 530, more States, are Pittsburg, C., C. & St. L.
8 Sup. Ct. Rep. 961 Henderson Bridge
;
R. Co. v. Backus, 154 U. S. 421, 14 Sup.
Co. v. Kentucky, 166 U. S. 150, 17 Sup. Ct. Rep. 1114, and Cleveland, C., C. & St.
Ct. Rep.532 ;
Adams Express Co. v. L. R. Co. v. Backus, 154 U S. 439, 1041, 14
Kentucky, 166 U. S. 171, 17 Sup. Ct. Rep. Sup. Ct. Rep. 1T22. The intangible pro-
527; and in particular, see Adams Express perty taxable within the State may be
Co. v. Ohio State Auditor, 106 U. S. 185, apportioned by the State, for purposes of
17 Sup. Ct. Rep. 604, in which Mr. Justice county taxation, among the counties into
Brewer, in delivering the opinion of the or through which the railway extends.
court denying a petition for a rehearing Columbus S. R. Co. v. Wright, 151 U. S.
of 165 U. S. 194, lays down the very 470, 14 Sup. Ct. Rep. 396, aff. 89 Ga. 574,
" 15 S. E. 293. See also Pullman's P. C.
sensible proposition that it is a cardinal
rule which should never be forgotten, that Co. v. Hayward, 141 U. S. 36, 11 Sup. Ct.
whatever property is worth for the pur- Rep. 883. Where the tangible property
poses of income and sale, it is worth for in the State consists entirely of railway
the purposes of taxation." See also coaches running into or through the State,
State, Guilbert v. Halliday, 58 Ohio St. the property in the State may be valued
728, 51 N. E. 1102, 49 L. R, A. 427. The by taking such fraction of the total capital
principle regulating the relation between stock of the company as the miles of road
the taxing power of the States and the over which it runs its coaches in the State
commerce power of Congress, is stated are of the total number of miles of road
by Mr. Chief Justice Fuller in Postal over which it runs his coaches. Pullman's
Telegraph Co. v. Adams, 155 U. S. 688, P. C. Co. v. Pennsylvania, 141 U. S. 18,
15 Sup. Ct. Rep. 268, 360 aff. 71 Miss.
;
11 Sup. Ct. Rep. 876. And a State may
555, 14 So. 36, 4 Inter. Com. R. 416, 42 levy an excise tax upon a railroad opera-
Am. St. 476, as follows: "Property in a ting within its borders, and such excise
State belonging to a corporation, whether may be proportioned upon a graduated
foreign or domestic, engaged in foreign scale to the gross receipts of such road
or inter-state commerce, maybe taxed, or derived within the State, such gross
a tax imposed on the corporation on receipts being determined from the total
account of its property within a State, gross receipts for the entire system, with-
and may take the form of a tax for the in and without the State, from local,
privilege of exercising its franchises with- inter-state,and foreign commerce, by the
in the State, if the ascertainment of the application of a track mileage ratio.
amount is made dependent in fact on the Maine v. Grand Trunk R. Co. of Canada,
value of its property situated within 142 U. S. 217, 12 Sup. Ct. Rep. 121, 163;
the State (the exaction therefor not being Cumberland & P. R. Co. v. State, 92 Md.
susceptible of exceeding the sum which 668, 48 All. 503. And the State may en-
might be leviable directly thereon), and force the payment of all such taxes by
if payment be not made a condition pre- the imposition of whatever penalties it
cedent to the right to carry on the busi- may see fit to prescribe by general law.
ness, but its enforcement left to the A penalty of 50 % and attorneys' fees
ordinary means devised for the collection was sustained in Western U. Tel. Co. v.
of taxes." This is reaffirmed in New Indiana, 165 U. S. 304, 17 Sup. Ct. Rep.
York, L. E. & W. R. Co. v. Pennsylvania, 345, aff. 146 Ind. 54, 44 N. E. 793. State
158 U. S. 431, 15 Sup. Ct. Rep. 896, which cannot require a foreign corporation to
sustained a tax upon tolls received by a pay a license before engaging in inter-state
lessor of a railroad from a lessee engaged commerce within its Crutcher
borders.
in inter-state commerce. See note upon v. Kentucky, U. S. 47, 11 Sup.
141
State tax laws and inter-state commerce, Ct. Rep. 851. Nor can it make mandatory
in 39 L. ed. U. S. 311, and another to and conclusive any arithmetical rule for
CH. XIV.] THE POWER OF TAXATION. 693
merely directory and presumptive. Wells, cases cited, ante, p. 37, note. See also
F. & Co.'s Express r. Crawford County, Oliver v. Washington Mills, 11 Allen, 268,
63 Ark. 576, 40 S. W. 710, 37 L. R. A. * Ward v.
Maryland, 12 Wall. 419,
371. Business of a foreign railroad com- 430; Case of State Tax on Foreign Held
pany having only terminal facilities in Bonds, 15 Wall. 300. Compare Machine
the State cannot be taxed by the State. Co. v. Gage, 100 U. S. 676. A State can-
People v. Wemple, 138 N. Y. 1, 33 N. E. not impose, for the privilege of doing busi-
720, 19 L. R. A. 694. The intangible ness within its limits, a license tax upon
capital of steamship companies may be travelling agents from other States, offer-
distributed among the States in proportion ing for sale or selling merchandise, when
to their tangible propriety. Beaufort Co. none is imposed upon its own people.
Com'rs v. Old Dominion S. S. Co., 128 McGuire v. Parker, 32 La. Ann. 832. Or
N. C. 558, 39 S. E. 18. Cost of construc- a heavier license tax upon non-residents
tion, cost of replacement, connections than upon residents carrying on the same
with other roads, and other commercial business. Ward v. Maryland, 12 Wall.
advantages, rental value, net earnings, 418; State v. Wiggin, 64 N. II. 508, 15
and market value of stocks and bonds Atl. 128. Nor a license tax upon those
should all be considered in assessing dealing in goods, wares, and merchandise
railroad property. Oregon & C. R. Co. not the product of the State, while impos-
v. Jackson County, 38 Oreg. 589, 64 Pac. ing none on similar traders selling the
307, 65 Pac. 369. For other cases upon products of the State. Welton v. Mis-
assessment of railroad property, see State souri, 91 U. S. 275 ; Walling v. Michigan,
i'.
Virginia & T. R. Co., 23 Nev. 283, 46 116 U. S. 446, 6 Sup. Ct. Rep. 454 ; Ex
Pac. 723, 35 L. R. A. 759 Detroit City
; parte Thomas, 71 Cal. 204. See GrafTty v.
St. R. Co. v. Common Council, 125 Mich. Rushville, 107 Ind. 502, 8 N. E. 609 Mar- ;
on the same footing. Bobbins v. Shelby ton Mills, 11 Allen, 268. The stock of a
Taxing District, 120 U. S. 489, 7 Sup. Ct. foreign corporation is not taxable, though
Rep. 692 Corson v. Maryland, 120 U. S.
;
its property is used within the State by
502, 7 Sup. Ct. Rep. 655; Asher v. Texas, its licensees. Com. v. Amer. Bell Tel.
128 U. S. 129, 9 Sup. Ct. Rep. 1 ;
State v. Co., 129 Pa. St. 217, 18 Atl. 122; People v.
Agee, 83 Ala. 110, 3 So. 856; State v. Amer. Bell Tel. Co., 117 N. Y. 241, 22 N.
Bracco, 103 N. C. 349, 9 S. E. 404 Sim- ;
E. 1057. Compare Catlin v. Hull, 21 Vt.
mons Hardware Co. v. McGuire, 39 La. 152; Jenkins v. Charleston, 5 S. C. 393;
Ann. 848, 2 So. 592 Fort Scott v. Pelton,
;
Mumford v. Sewall, 11 Oreg. 67, 4 Pac.
39 Kan. 764, 18 Pac. 954 Ex parte Rosen-
;
585. A
State may tax its citizen upon
blatt, 19 Nev. 439, 14 Pac. 298. [Brennan the public debt of another State held by
v. Titusville, 153 U. S. 289, 14 Sup. Ct. him, though exempt from taxes in such
Rep. 829; Adkins v. Richmond, 98 Va. 91, State. Bonaparte v. Tax Court, 104 U. S.
34 S. E. 967, 47 L. R. A. 583 Laurens
; 592. A
foreign corporation having a rail-
v. Elmore, 65 S. C. 477, 33 S. E. 560, road and doing business in a State, may,
45 L. R. A. 249.] A
license tax can be as a condition of doing business, be re-
demanded only in respect of the business quired, like a domestic corporation, to
of an express company carried on entirely collect a tax upon its loans held by resi-
within the State. Crutcher v. Kentucky, dents of the State. Com. v. New York,
141 U. S. 47, 11 Sup. Ct. Rep. 851 rev. L. E. & W. R. R. Co., 129 Pa. St. 463,
Crutcher v. Com., 89 Ky. 6, 12 S. W. 141.] 8 Atl. 412. [The estate of a bankrupt in
See also State v. Richards, 32 W. Va. 348, the hands of hia assignee may be taxed
9 S. E. 245. [And a State may tax resi- by the State and county till distribution.
CH. XIV.] THE POWER OF TAXATION. 695
In the first place, taxation having for its only legitimate object
the raising of money for public purposes (a) and the proper needs
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 Braden, 130 Ind. 149, 28 N. K.
v.
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
,
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
stillother 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
1
stated, an unlimited power to plunder the citizen.
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.
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. gas to the corporation and to its
So is supplying natural
citizens. 1061, 11 L. R. A. 729. Erection
State v. Toledo, 48 Ohio St. 112, 26 N. E.
of a memorial hall is, but maintenance and supportof 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.
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.
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- * v. Vernon, 41 N. Y. 123.
Litchfield
lawful or unauthorized exaction shall be A law determine absolutely the
may
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
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. . . .
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. Acity 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.
'
2
20 Wall. 655 ; Opinions of Judges, 58 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
;
all the reasons which forbid the legislature to usurp any other
power not granted to them." And by the same court, in a still
l
later case, where the question was whether the legislature could
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- :
1 Per Black, Ch. J., in Sharpless v. fused to reimburse them these costs. Cor-
Mayor, &c., 147, 168.
'21 Pa. St. See nell and Clark sued the town, and, after
Opin'ons of Judges, 58 Me. 590. prosecuting the action to the court of last
2 had no legal
School Directors of Halifax,
Tyson v. resort, ascertained that they
61 Pa See also Grim v. Weisen-
St. 922. remedy. They then applied to the legis-
burg School District, 57 Pa. St. 433. lature, and procured an act authorizing
The decisions in Miller v. Grandy, 13 the question of payment or not by the
Mich. 540 Crowell v. Hopkinton, 45 N.
;
town to be submitted to the voters at the
H. 9 and Shackford v. Newington, 46
; succeeding town meeting. The voters
N. H. 415, so far as they hold that a decided that they would not tax them-
bounty law is not to be held to cover selves for any such purpose. Another
moneys before advanced by an individual application was then made to the legisla-
without any pledge of the public credit, ture, which resulted in a law authorizing
must be held referable, we think, to the the county judge of Chenango County to
same principle. And
see cases, ante, p. appoint three commissioners, whose duty
332, note 3. Compensation for money it should be to hear and determine the
voluntarily contributed for levee purposes amount of costs and expenses incurred by
by allowing such sums as a credit on fu- Cornell and Clark in the prosecution and
ture levee taxes is not allowable. Those defence of the suits mentioned. It au-
incidentally benefited cannot be com- thorized the commissioners to make an
pelled to refund money thus spent. Davis award, which was to be filed with the
v.Gaines, 48 Ark. 370, 3 S. W. 184. We county clerk, and the board of super-
are aware that there are some cases the visors were then required, at their next
doctrine of which seems opposed to those annual meeting, to apportion the amount
we have cited, but perhaps a careful ex- of the award upon the taxable property
amination will enable us to harmonize of the town of Guilford, and provide for
them all. One Guilford v.
of these is its collection in the same manner as other
Supervisors of Chenango, 18 Barb. 615, taxes are collected. The validity of this
and 13 N. Y. 143. The facts in that case act was affirmed. It was regarded as one
were as follows Cornell and Clark were
: of those of which Denio, J., says, "The
formerly commissioners of highways of statute book is full, perhaps too full, of
the town of Guilford, and as such, by di- laws awarding damages and compensa-
rection of the voters of the town, had sued tion of various kinds to be paid by the
the Butternut and Oxford Turnpike Road public to individuals who had failed to
Company. They were unsuccessful in the obtain what they considered equitably
action, and were, after a long litigation, due to them by the decision of adminis-
obliged to pay costs. The town then re- trative officers acting under the provi-
702 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
sions of former laws. The courts have municipality to assume a burden, on the
no power to supervise or review the doings ground of local benefit or local obligation,
of the legislature in such cases." It is ap- against the will of the citizens, is the ex-
parent that there was a strong equitable ercise of an arbitrary power little in har-
claim upon the township in this case for mony with the general features of our
the reimbursement of moneys expended republican system, and only to be justi-
by public officers under the direction of extreme cases. The gen-
fied, if at all, in
their constituents, and perhaps no prin- eral idea of our tax system is, that those
ciple of constitutional law was violated shall vote the burdens who are to pay
by the legislature thus changing it into a them; and it would be intolerable that
legal demand and compelling its satisfac- a central authority should have power,
tion. Mr. SeJgwick criticises this act, not only to tax localities, for local pur-
"
and says of it that it may be called poses of a public character which they did
taxation, but in truth it is the reversal not approve, but also, if it so pleased, to
of a judicial decision." Sedg. on Stat. compel them to assume and discharge
and Const. Law, 414. There are very private claims not equitably chargeable
many claims, however, resting in equity, upon them. See the New York cases
which the courts would be compelled to above referred to criticised in State v.
reject, but which it would be very proper Tappan, 29 Wis. 664, 680, 9 Am. Kep.
for the legislature to recognize, and pro- 622. The legislature may
require a county
vide for by taxation. Brewster v. City to pay Wilcox v. Deer Lodge
for a road :
of Syracuse, 19 N. Y. 116. Another case, Co., 2 Mont. 674 and may apportion
;
Utica, and the legislature afterwards Shields. 2 Met. (Ky.) 553, will throw some
passed an act requiring the amount to be light on this general subject. The case of
levied by a tax on the real property of Cypress Pond Draining Co. r. Hooper, 2
the city of Utica. The theory of this act Met. (Ky.) 350, is also instructive. The
may be stated thus :The canal was a pub- Cypress Pond Draining Company was in-
lic way.The expense of constructing all corporated to drain and keep drained the
public ways may be properly charged on lands within a specified boundary, at the
the community especially or peculiarly cost of the owners, and was authorized
benefited by it. The city of Utica was by the act to collect a tax on each acre,
specially and peculiarly benefited by hav- not exceeding twenty-five cents per acre,
ing the canal terminate there and as the ;
for that purpose, for ten years, to be col-
expense of construction was thereby in- lected by the sheriff. With the money
creased, it was proper and equitable that thus collected, the board of managers,
the property to be benefited should pay six in number, named in the act, was re-
this difference, instead of the State at quired to drain certain creeks and ponds
large The act was sustained by the within said boundary. The members of
courts, and it was well remarked that the board owned in the aggregate 3,840
the fact that a bond had been before given acres, the larger portion of which was low
securing the same money could not de- land, subject to inundation, and of little or
tract from its validity. Whether this case no value in its then condition, but which
can stand with some others, and especially would be rendered very valuable by the
with that of Hampshire v. Franklin, 16 contemplated draining. The corporate
Mass. 76, we have elsewhere expressed a boundary contained 14,621 acres, owned
doubt, and it must be conceded that, for by sixty-eight persons. Thirty-four of
the legislature in any case to compel a these, owning 5,975 acres, had no agency
CH. XIV.] THE POWER OF TAXATION. 703
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
" and "
Common Council of Detroit, 28 Mich. 228. 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.
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.
1 Morford
ment for such a purpose, if laid in any v. Unger, 8 Iowa, 82, 92.
other manner, could not in any just or See Durant v. Kauffman,34 Iowa, 194.
2
proper sense be regarded as 'proper- Though the legislature first decides
'
tional within the meaning of the Con- that the use ispublic, 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. ;
Me. 375; Allenv. Jay, 60 Me. 124, 11 Am. it isheld 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
Conn. 255, 47 All. 209, 57 L. R. A. 481, or equal ; (3) a citizen of another State
45
706 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
Rep. 673, upon the peculiar provisions of 8 Sup. Ct. Rep. 1073; Santa Clara Co.
the Connecticut tax laws.] The legis- v. South. Pac. R. R. Co., 118 U. S.
lature cannot itself make an assessment 394, 6 Sup. Ct, Rep. 1132. [Nor
directly or by placing a value on certain may telegraph and telephone lines be
property. In re House Bill, 9 Col. 635, taxed at a rate determined by taking
21 Pac. 476; Slaughter v. Louisville, 89 the average rate of taxes, general,
Ky. 112, 8 S. W. 917 ; Ex parte Low, municipal, and local, levied throughout
24" W. Va. 620. QNor can it classify the the State during the previous year, and
counties, and arbitrarily value the lands applying it to the entire property of the
in each class. Hawkins v. Mangum, 78 company in the State for the present
Miss. 97. 28 So. 872.] That it is not year, Pingree v. Dix, 120 Mich. 95, 78
essential to provide for the taxation of N. W. 1025, 44 L. R. A. 679.] That
all property, see Mississippi Mills v. property may be classified for taxation,
Cook, 56 Miss. 40; that it is competent Coal Run Co. v. Finlen, 124 111. 666, 17
to provide for taxing railroad corpora- N. E. 11; People v. Henderson, 12 Col.
tions in a different way from individu- 369, 21 Pac. 144 Fahey v. State, 27 Tex.
;
als : State Railroad Tax Cases, 92 U. S. App. 146, 11 S. W. 108. Corporate and
675 State Board v. Central R. R. Co.,
;
individual obligations may be put in
48 N\ J. L. 146, 4 Atl. 578 Cincinnati, ;
different classes. Com. v. Del. Div. Canal
N. 0. & T. Ry. Co. v. Com., 81 Ky. Co., 123 Pa. St. 594, 16 Atl. 584. That
492; Franklin Co. v. Railroad, 12 Lea, the rule of uniformity must be applied to
521 Central la. Ry. Co. v. Board, 67
;
all subjects of taxation within the district
Iowa, 199, 25 N. W. 128. [McHenry v. and class : Marsh v. Supervisors, 42 Wis.
Alford, 163 U. S. 651, 18 Sup. Ct. Rep. 502 ;
Philleo v. Hiles, 42 Wis. 527 ;
Bureau
1 2
Kent, 231; Sanborn v. Rice, 9 levied in such wise that those actually
Minn. 273; Ryerson v. Utley, 16 Mich. voting shall be exempt therefrom. Kansas
269; Oliver v. Washington Mills, 11 Al- City v. Whipple, 136 Mo. 475, 38 S. W.
len, 268; Tidewater Co. v. Costar, 18 295, 35 L. R. A. 747, 58 Am. St. 657.]
N. J. Eq. 518. [[A poll tax cannot be
CH. XIV.] THE POWER OF TAXATION. 707
Co. v.Railroad Co., 44 111. 229; Cum- Reinhard, 73 Pa. St. 370, 13 Am. Rep.
mings National Bank, 101 U. S. 153;
v. 747 Louisville, &c. R. R. Co. v. State,
;
to permit a deduction for debts from the brook, 3 Neb. 173; Murray r. Lehman,
assessment : Wetmore v. Multnomah Co., 61 Miss. 283; Graham v. Com'rs Chau-
6 Oreg. 463 contra, Exchange Bank v.
; tauqua Co., 31 Kan. 473, 2 Pac. 649 ;
competent to tax a corporation on its The following are special cases : A tax
property and also on its capital stock : on drays, &c., proportioned to the num-
State v. Cumberland, &c. R. R. Co., 40 ber of animals employed in drawing them,
Md. 22 that a statute making a portion
;
contravenes the constitutional require-
only of a certain kind of property tax- ment of uniformity in license taxes.
able isunconstitutional Pike v. State, : State v. Endom, 23 La. Ann. 663. See
6 Ark. 204 ; that occupation taxes are no New Orleans v. Home Ins. Co., 23 La.
violation of the rule of uniformity : Ann. 449. A railroad company cannot be
Youngblood Sexton, 32 Mich. 406;
v. taxed according to the length of its road.
Ex parte Robinson, 12 Nev. 263 Gatlin ;
State v. South Car. R. R. Co., 4 S. C. 376.
v. Tarboro, 78 N. C. 119; [FUetwood v. A tax on cotton cannot be proportioned
Read, 21 Wash. 547, 58 Pac. 665, 47 L. to the weight regardless of grades. Sims
R. A. 205 ;] that foreign insurance com- v. Jackson, 22 La. Ann. 440. Income is
panies may be required to pay different not property for the purposes of taxation.
taxes from others State v. Lathrop, 10 :
Waring c. Savannah, 60 Ga. 93. col- A
La. Ann. 398; Commonwealth v. Ger- lateral inheritance tax is not a property
mania L. I. Co., 11 Pliila. 553; Ex parte tax. Schoolfield's Exec. v. Lynchburg,
Cohn, 13 Nev. 424 ; see San Francisco v. 78 Va. 66. A tax on the franchises of
Liverpool, &c. Co., 74 Cal. 113, 15 Pac. a coal company may be proportioned to
380. They may be required to pay such the coal mined. Kittanning Coal Co. v.
taxes as companies of the taxing State Commonwealth, 79 Pa. St. 100. The
are made to pay in the home States of keepers of private markets may be
such companies. Home Ins. Co. v. charged a license tax though none is im-
Swigert, 104 111. 653; Phoenix Ins. Co. v. posed on those who sell in the public mar-
Welch, 29 Kan. 672; People v. Fire kets. New Orleans v. Uubarry, 33 La.
Ass., 92 N. Y. 311 ; State v. Ins. Co., Ann. 481, 39 Am. Rep. 273. QAnd taxes
115 Ind. 257, 17 N. E. 674. [But may be levied upon venders of merchan-
holders of contracts made with com- dise, proportional to their annual gross
panies not doing business within this receipts from sales, and such venders may
State cannot be subjected to higher taxa- be classified into retail and wholesale
tion thereupon. He Page, 60 Kan 842, and dealers at boards of trade, and the
58 Pac. 478, 47 L. R. A. 68.3 Taxation rates for the several classes may differ.
for roads upon the citizens only of a Knisely v. Cotterel, 196 Pa. 614, 46 Atl.
township is unequal. Marion, &c. Ry. 861, 50 L. R. A. 86. Where the Consti-
Co. v. Champlin, 37 Kan. 682, 16 Pac. tution requires uniformity of rate as well
222. So is the exemption from such as of valuation, the legislature cannot pro-
taxes of all property in incorporated vide that pupils outside of a high-school
villages. Com'rs v, Owen, 7 Col. 467, 4 district shall be admitted to attend the
Pac. 795. But uniformity provisions do high-school upon payment of specified
not apply to the distribution of a road rates. II. S. Disk No. 137 v. Lancaster
fund. Holton v. Com'rs Mecklenburg Co., 60 Neb. 147, 82 N. W. 380, 49 L. R.
Co., 93 N. C. 430. And see Weber v. 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
;
tory in favor of particular classes of tions are exempt. Russell v. Croy, 164
debtors is void. Hamilton v. Wilson, 61 Mo. 63 S. W. 849.]
69,
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
(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.
;
to impose a license upon the business of 118. Q Where the business licensed is not
a foreign insurance company, as well as a one of common right, but one which may
tax upon its net income St. Joseph v.
: be entirely prohibited, tl:ere is no limit to
Ernst, 95 Mo. 360, 8 S. W. 558; or an the license fee which may be imposed.
occupation tax upon saloons, in addition State v. Bixman, 162 Mo. 1,62 S. W. 828.]
to the license to sell. State v. Bennett, It is no valid objection to a tux on
19 Neb. 191, 26 N. W. 714. A
privilege business that its operation will not be
tax on private carriages in addition to an uniform. Youngblood v. Sexton, 32
ad valorem tax is invalid. Livingston v. Mich. 406; Adler v. Whitbeck, 44 Ohio
Paducah, 80 Ky. 656. An occupation tax St. 539, 9 N. E. 672. But see Pullman
must not be so unreasonable as to be pro- 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
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.
t;. Louisville, 9
Ky. L. 779, 6 S. W. 911 ; Gas Co. v. State, 18 Ohio St. 237. Of pro-
St. Louis v. Bowler, 94 Mo. 630, 7 S. W. prietors of theatres Boston v. Schaffer,
:
434; Braun v. Chicago, 110 111. 186. 9 Pick. 415. For building licenses : Welch
Further as to taxes on occupations, see v. Hotchkiss, 39 Conn. 140.
801 ;
New Orleans v. Kaufman, 29 La. franchise. Chilvers v. People, 11 Mich.
Ann. 283, 29 Am. Rep. 328; Texas B. & 43. See Wiggins Ferry Co. v. East St.
I. Co. v. State, 42 Tex. 636. Louis, 102 111. 560.
In the following cases license fees The exaction of license fees under the
were held not to be taxes, but merely police power is no violation of the consti-
police regulations :
Required of foreign tutional requirement of uniform taxation.
corporations doing business in the State : State v. Cassidy, 22 Minn. 312, 21 Am.
People v. Thurber, 13 111. 554; Walker v. Rep. 765; Walters v. Duke, 31 La. Ann.
Springfield, 94 111. 364. Of dealers in in- 668. An act sustained which imposed a
toxicating liquors :Burch v. Savannah, smaller license tax on proprietors of bars
42 Ga. 596; Durach's Appeal, 62 Pa. St. on steamboats than on those of bars on
491 East St. Louis v. Wehrung, 46 111.
;
land. State v. Rolle, 30 La. Ann. 991.
392; Lovingston v. Trustees, 99 111. 664; The exemption from taxation of the
Baker v. Panola Co., 30 Tex. 86; East Louisiana Saving Bank held not to ex-
St. Louis v. Trustees, 102 111. 489; clude a city license tax on the business.
Rochester v. Upman, 19 Minn. 108 State;
New Orleans v. Savings Bank, 31 La.
v. Cassidy, 22 Minn. 312,21 Am. Rep. 765; Ann. 637. An exemption of all property
State v. Klein, 22 Minn. 328; Pleuler v. in a town from parisli taxes does not pre-
State, 11 Neb. 647, 10 N. W. 481. Of vent the imposition of a license. More-
auctioneers Goshen v. Kern, 63 Ind. 468.
: house Parish v. Brigham, 41 La. Ann.
Of a street railway company Johnson v.
: 665, 6 So. 257. For instances of license
Philadelphia, 60 Pa. St. 445. But see fees held to be taxes and not warranted
New York v. Railway Co., 32 N. Y. 261. by statute, see ante, 283, note.
Of insurance companies: Fire Depart-
(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.,
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
2
through the city while in the case of local improvements, bene-
;
sess unequal taxes, the collection will be 349. AState 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.
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.
ismade 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.
heard in some stage of the proceedings the right is strongly affirmed. FJ" A no-
would seem to be clear and it has been ;
tice to allproperty holders of the time and
expressly affirmed in some cases. See place at wliich the assessment is to be made
' '
Philadelphia v. Miller, 49 Pa. St. 440 ; is all that due process requires in respect
Stewart v. Trevor, 56 Pa. St. 374; But- to the matter of notice in tax proceed-
ler i;. Supervisors of Saginaw, 26 Mich. ings." Per Mr. Justice Brewer in Mer-
22 Thomas v. Gain, 35 Mich. 155; Cleg-
; chants' & M. Nat. Bank v. Pennsylvania,
horn v. Postlewaite, 43 111. 428; Darling 167 U. S. 461, 17 Sup. Ct. Rep. 829. See
?. Gunn, 50 111. 424; Kuntz r. Sumption, also Paulson v. Portland, 149 U. S. 30,
117 Ind. 1, 19 N. E. 474; Redwood Co. v. 13 Sup. Ct. Rep. 750, aff. 16 Oreg. 450, 19
Winona, &c. Co., 40 Minn. 512, 41 N. W. Pac. 450, 1 L. R. A. 673. The action of
465, 42 N. W. 473 Chauvin v. Valiton,
;
the assessors after giving opportunity
8 Mont. 451, 20 Pac. 658; QViolett v. for a hearing is final in the absence of
Alexandria, 92 Va. 561, 23 S. E. 909, 31 fraud or mistake. Albuquerque Nat. Bk.
L. R. A. 382, 63 Am. St. 825 ;] post, 722, v. Perea, 147 U. S. 87, 13 Sup. Ct. Rep.
note. The statutes generally provide for 194. The assessment is void if the notice
a hearing before some board, either on of opportunity for hearing fails to desig-
some day and at some place fixed by the nate tribunal, place, and time, or any of
statute, or after notice publicly given. them. Norfolk v. Young, 97 Va. 728, 34
That such statutes are mandatory, and S. E. 886, 47 L. R. A. 574. Statute, if
an assessment made in disregard of them definite, is sufficient notice, Streight v.
void, see Thames Manuf. Co. v. Lathrop, Durham, lOOkla. 361, 61 Pac. 1096. That
7 Conn. 550; Philips v. Stevens Point, 25 assessed value of tangible replaceable
Wis. 594 Walker v. Chapman, 22 Ala.
; property cannot exceed the cost of repro-
116; Sioux City, &c. R. R. Co. v. Wash- duction or replacement, see People v,
ington Co 3 Neb. 30 Leavenworth Co.
, ; Clapp, 152 N. Y. 490, 46 N. E. 842, 39
v. Lang, 8 Kan. 284 Griswold v. School
;
L. R. A. 237 (railroad real estate).]
District, 24 Mich. 262. Where the tax- 1
Constitution of Maine, art. 9, 7 ;
payer is examined upon his return at Constitution of Mass., Part 2, c. 1, 1,
the time it is made, he cannot claim a art. 4.
2
later hearing. Hunter, 19
McTwiggan v. Constitution of Mich., art. 14, 13.
R. I. 265, 33 Atl. 5, 29 L. R. A. 526.] 8 Constitution of Rhode Island, art. 4,
On the general right to notice in tax 15.
*
cases, see the opinion of Mr. Justice Field See Bright v. McCullouch, 27 Ind.
in the case of San Mateo County v. So. 223; Quid v. Richmond, 23 Gratt. 464,
Pac. R. R. Co., 13 Fed. Rep. 722 ;
where 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
1
imposed for purposes of revenue, taxes the tolls upon persons
;
(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
;
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.
,
sewer A
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-
have reference to the benefit each parcel of property receives,
trict
rather than to The opening or paving of a
its relative value.
street may increase the value of
property upon or near it and
all ;
private property for the public use and as the persons taxed, as
;
(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
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
;
94 111. 604; Craw v. Tolono, 96 111. 255, George, 47 Miss. 713; Roundtree v. Gal-
36 Am.
Rep. 143. veston, 42 Tex. 612 Richmond & A. R. R.
;
2
People r. Mayor, &c. of Brooklyn, 4 Co. v. Lynchburg, 81 Va. 473. For a
N. Y. 419 Matter of Mayor, &c. of New
; special case, see Cincinnati Gas, &c. Co.
York, 11 Johns. 77; Sharp v. Spier, 4 v. State, 18 Ohio St. 237. In Alabama a
Hill, 76 Livingston v. Mayor, &c. of New
;
decision has been made the other way.
York, 8 Wend. 85; Matter of Furman St., Tlie constitution provides that "all taxes
17 Wend. 649; Louisville v. Hyatt, 2 levied on property in this State shall
B. Monr. 177, 36 Am. Dec. 594; Nichcls be assessed in exact proportion to the
v. Bridgeport, 23 Conn. 189; Schenley v. value of such property provided, how-
;
City of Alleghany, 25 Pa. St. 128; Wray ever, that the General Assembly may levy
v. Pittsburg, 46 Pa. St. 365 Hammett v. ;
a poll-tax not to exceed one dollar and
Philadelphia, 65 Pa. St. 146, 3 Am. Rep. fifty cents on each poll, which shall be
615; Washington Avenue, 69 Pa. St. 353, applied exclusively in aid of the public-
8 Am. Rep. 255; McBride v. Chicago, 22 school fund." This, it was decided, would
111.574; Chicago u. Larned, ,34 111. 203; preclude the levy of a local assessment
Murphy v. People, 120 111. 234, 11 N. E. for the improvement of a street by the
202; Springfield v. Green, 120 111. 269, 11 foot front. Mayor of Mobile v. Dargan,
N. E. 261 City of Lexington v. McQuil-
;
45 Ala. 310. In Colorado only improve-
lan's Dana, 513; Burnes v.
Heirs, 9 ments within the domain of the police
Atchison, 2 Kan. 454; Hines v. Leaven- power can be paid for by special assess-
worth. 3 Kan. 186; St. Joseph v, O'Don- ment. Expense of sewers may be, but
oghue, 31 Mo. 345 Egyptian Levee ;
not that of gutters and curbs. Pueblo v.
Co. v. Hardin, 27 Mo. 495 St. Joseph v. ; Robinson, 12 Col. 593, 21 Pac. 899 Wilson ;
Bond v. Kenosha, 17 Wis. 284 City of ; 10 Wis. 242, and Lumsden v. Cross, 10
Fairfield v. Ratcliff, 20 Iowa, 396; Muni- Wis. 282, recognize the fact that these
cipality No. 2 v. White, 9 La. Ann. 447 ;
local burdens are generally imposed
Gumming v. Police Jury, 9 La. Ana. 503; under the name of assessments instead of
718 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
taxes, and that therefore they are not Tax upon real estate is secured by lien,
covered by the general provisions in the and collection may safely be deferred
constitution of the State on the subject longer than case of personal prop-
in
of taxation. And see Bond Kenosha,
v. erty. Rode Siebe, 119 Cal. 518, 51 Pac.
v.
252, 12 L. R. A. 852, and note ; Home, &c. San Antonio, 85 Tex. 228, 20 S. W. 86,
r. Wilkinsburg, 131 Pa. 109, 18 Atl. 937, 16 L. R. A. 608. An arbitrary tax of 81
6 L. R. A. 631 Adams County v. Quincy,
; per mile upon railroads is bad. Pitts-
130 111. 666, 22 N. E. 624, 6 L. R. A. 155, burgh, C. & St. L. R. Co. v. State, 49
and note note to 4 L. R. A. 171.]
;
Ohio St. 189, 30 N. E. 435, 16 L. R. A.
1 In
the case of assessments which are 380. Where taxation is required to be
" ad
to be made on the basis of benefits, pro- valorem on all property subject to
vision is usually made
for a hearing. As be taxed," the rate must be uniform.
to the right to this, sec p. 617, note. Savannah v. Weed, 84 Ga. 683, 11 S. E.
(^Requirement that tax upon personal 235, 8 L. R. A. 270, and note. For other
property be paid at time of assessment cases on question of uniformity, see
with provision made for hearing con- Wasson v. Wayne Co. Comm'rs, 49 Ohio
cerning value, &c., and refund of excess, St. 622, 32 N. E. 472, 17 L. R. A. 795.]
does not violate uniformity requirement.
CH. XIV.] THE POWER OF TAXATION. 719
real estate lies partly in two districts, Hartland Church, 47 Me. 169 Lessee
v. ;
competent to provide for the repairing note a, p. 696. Moneys and securities
of a street by special assessment on held in the State for investment, rein-
adjoining land, as for the original paving. vestment, and sale are taxable against
See Willard v. Presbury, 14 Wall. 67(i; the owners where so held. Buck v.
Gurnee v. Chicago, 40 III. 165; Bradley Miller, 147 Ind. 586, 45 N. E. 647, 37
v.MeAtee, 7 Bush, 607; Sheley v. De- L. R. A. 384. And so are unpaid legacies
troit, 45 Midi. 431, 8N. W. 62; Blount and distributive shares taxable within
v. Janesville, 31 Wis. 648; Municipality the State, even though the beneficiaries
v. Dunn, 10 La. Ann. 67 ;
Jeliff v. New- are non-resident. Schmidt v. Failey, 148
ark, 49 N. J. L. 239, 12 Atl. 770; Estes v. Ind. 150, 47 N. E. 326, 37 L. It. A. 442.
Owen, 90 Mo. 113, 2 S. W. 133. Contra, A vessel engaged in commerce
is taxable
Orphan Asylum's Appeal, 111 Pa. St. registered there, even though she is used
135, 3 Atl. 217; Williamsport v. Beck, practically all of the time within the
128 Pa. St. 147, 18 Att. 329. The ex- limits of another State than that of her
pense of sewer repairs properly payable home port. Johnson v. De Bary-Baya
by a city cannot be imposed on adjoining M. Line, 37 19 So. 640, 37
Fla. 499,
owners by calling tlie work street im- L. R. A. 518; upon situs of ships for
provement. Clay v. Grand Rapids, 60 purpose of taxation, see note to this case
Mich. 451, 27 N. W. 696. [Tower to in L. It. A. Water-power is deemed for
impose licenses upon occupations author- purposes of taxation to have its situs
izes a license tax upon a non-resident where it is used. Union W. P. Co. v.
who carries on his occupation in the city. Auburn, 90 Me. 60, 37 Atl. 331, 37
Petersburg v. Cocke, 94 Va. 244, 26 S. E. L. R. A. 651; but see Amoskeag M'fg
676, 36 L. II. A. 432. Real estate mort- Co. v. Concord, 66 N. H. 662, 34 Atl. 241,
gages may be made taxable at the situs 32 L. R. A. 621, holding that water power
of the realty covered by them. Detroit is appurtenant to lands upon which it
Com. Council v. Rentz, 91 Mich. 78, 51 may be used. Ice may be taxed where
N. W. 787, 16 L. R. A. 69, and note stored, though it is to be used elsewhere.
upon taxation of mortgages. Assessment Winkley v. Newton, 67 N. H. 80, 36 Atl.
is wholly void if it covers property 610, 85 L. R. A. 756. Average amount
partly within and partly without the of livestock in the hands of cattle-dealers
the parts can be distin-
disirict, unless may be taxed, although brought from
guished. Sioux City B. Co. v. Dakota other States and usually retained by
County, 61 Neb. 75, 84 N. W. 607.] dealers for only one day. Myers v. Bal-
2 timore Co. Comm'rs, 85 Md. 885, 35 Atl.
People v. Supervisors of Chenango,
11 N. Y. 663; Mygatt v. Washburn, 16 144, 34 L. R. A. 30'J. So with bonds of
720 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
1
Iii Wells
v. City of "Weston, 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 and note; Fond du Lac Water Co. v.
deposit vault within the State. Re Whit- Fond du Lac, 82 Wis. 322, 52 N. W. 439,
ing's Estate, 150 N. Y. 27, 44 N. E. 715, 16 L. R. A. 681. On situs of trust prop-
34 L. R. A. 232. And with moneys of erty, see Trustees of Richmond Co. Acad-
non-resident. Re Houdayer's Estate, 150 emy v. Augusta, 90 Ga. 634, 17 S. E. 61,
resident cannot be taxed. Holland v. pool & L. & G. Ins. Co. <>. Bd. of Asses-
Comm'rs of Silver Bow Co., 15 Mont. 460, sors, 44 La. Ann. 760, 11 So. 91, 16
39 Pac. 675, 27 L. R. A. 797. Stock in L. R. A. 56.]
trade of a partnership is located for 1 22 Mo. 384. To the same effect is
purposes of taxation in the city where it In re Flatbush, 60 N. Y. 898. Compare
actually is for purpose of sale, without case of State Tax on Foreign Held
regard to residence of owners. Hopkins Bonds, 17 Wall. 300; St. Charles v. Nolle,
v. Baker Bros., 78 Md. 363, 28 All. 284, 61 Mo. 122, 11 Am. Rep. 440; People v.
22 L. R. A. 477, and note on partnership Townsend, 56 Cal. 633; State Treasurer
v. Auditor-General, 46 Mich. 224, 9 N. W.
property tax. In Maine, water pipes are
considered real-estate taxable in the dis- 258. The case of Langhorne v. Robinson,
trict in which they are actually situated. 20 Gratt. 661, is contra.
2
Paris v. Norway Water Co., 85 Me. 330, City of Covington v. Southgate, 15
27 Atl. 143, 21 L. R. A. 525; but in Illi- B. Monr. 491 Arbegust v. Louisville, 2
;
see note to 21 L. R. A. 525, and see also [JBut the mere fact that the land is not
Shelbyville Water Co. v. People, 140 III. yet plotted is not sufficient to exempt it.
545, 30 N. E. 678, 16 L. R. A. 605; Oska- Bripgs v. Russelville, 99 Ky. 515, 36 S. W.
loosa Water Co. v. Bd. of Equalization, 558, 34 L. R. A. 193.]
3
81 Iowa, 407, 51 N. W. 18, 15 L. R. A. 296, Morford v. Unger, 8 Iowa, 82.
CH. XIV.] THE POWER OF TAXATION. 721
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
" land
as practicable to the line where the ex- 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
;
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.
not contiguous for the purpose of increas- 149 U. S. 30, 13 Sup. Ct. Rep. 750.] See
ing its revenues, see Smith v. Sherry, 50 Waples, Proceedings in Rem, 64 ante, ;
Wis. 210, 6 N. W. 561. [The Federal 711, note. Contra, Baltimore v. Johns
courts will not intervene to correct any Hopkins Hosp., 56 Md. 1 Cleveland v. ;
Hammond, 166 U. S. 506, 17 Sup. Ct. Rep. volved. Amery v. Keokuk, 72 Iowa, 701,
665. Upon municipal taxation of rural 30 N. W. 780 Qand for the fixing of the
;
lands, see Briggs v. Russellville,99Ky.515, rate of charge per 1000 gallons of sewer-
36 S. W. 558, 34 L. R. A. 193, and note. age discharged into the city sewer, no
Legislature cannot annex non-contiguous hearing is necessary. Carson v. Sewerage
lands. Denver v. Coulehan, 20 Col. Comm'rs of Brockton, 175 Mass. 242, 56
471, 39 Pac. 425, 27 L. R. A. 751. Upon N. E. 1, 48 L. R. A. 277, aff. 182 U. S.
power of legislature to annex territory 398, 21 Sup. Ct. Rep. 860.] If an oppor-
to municipalities, see State v. Cincinnati, tunity for a hearing is given at some step
52 Ohio St. 419, 40 N. E. 508, 27 L. R. A. of the proceedings it is enough ;
as in
737, and notes ; also a valuable case, judicial proceedings to enforce the assess-
Vestal v. Little Rock, 54 Ark. 321, 329, ment. Hagar c. Reclamation Dist, 111
15 S. W. 891, 16 S. W. 291, 11 L. R. A. U. S. 701, 4 Sup. Ct. Rep. 663; [Taulsen
778, and note.] v. Portland, 149 U. S. 30, 13 Sup. Ct. Rep.
1 v. Gaines, 48 Ark. 370, 3
See Davis 750, aff. 16 Oreg. 450, 19 Pac. 450, 1
S. W.184 ; State v. Dist. Court, 33 Minn. L. R. A. 673. Unless expressly author-
235, 22 N. W. 625; Warren ?;. Chicago, ized, a municipality cannot make exemp*
118 111. 329, 11 N. E. 218. Where an tions from taxation. McTwiggan v.
government."
In the case of Knowlton Supervisors of Rock County, an
1
v.
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
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
growing wheat and those used for growing corn, or any other
crop meadow-lands and pasture-lands, cultivated and unculti-
;
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;
2 Minn. 295; Attorney-General v.
Bi-ll, 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.
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
itsopinion 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, butis agricultural lands, and should be assessed accordingly.
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
forty per cent. The duty on one foreign commodity is laid for
the purpose of revenue mainly, without reference to the ability of
itsconsumers 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
1 Scoville v. Cleveland, 1 Ohio St. 126 ; Wend. 85, 22 Am. Dec. 622 Wright v.
;
etta, 11 Ohio
636; City of Peoria v.
St. 189 Cone v. Hartford, 28 Conn. 3G3 Alex-
; ;
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 Charleston, 12 Rich. 702. The
v.
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, the owner's interest in the land, his rem-
or upon the lands in proportion to their edy would seem to be to procure, by a
assessed value. In a case where the timely appeal to the city authorities, a
former mode was resorted to, and an as- reduction of the special assessment, and
sessment made upon property owned by itsimposition, in whole or in part, upon
the Northern Indiana Railroad Company the public at large." Northern Indiana
for its corporate purposes, Peck, J., thus R. R. Co. v. Connelly, 10 Ohio St. 159,
states and answers an objection to the 165. And see Howell
v. Bristol, 8 Bush,
"
validity of the tax :But it is said that 493 ; [Webster Fargo, 181 U. S. 334,
v.
assessments, as distinguished from gen- 21 Sup. Ct. Rep. 623, aff. 9 N. D. 208, 82
eral taxation, rest solely upon the idea of N. W. 732; Ramsey County v. Robert
equivalents, a compensation proportioned P. Lewis Co., 72 Minn. 87, 75 N. W. 108,
to the special benefits derived from the 63 L. R. A. 421.] It is competent to
improvement, and that, in the case at bar, provide for assessing benefits upon the
the railroad company is not, and in the owner instead of the land. In re Centre
nature of things cannot be, in any degree St., 115 Pa. St. 247, 8 All. 56. [CWra,
benefited by the improvement. It is Ivanhoe v. Enterprise, 29 Oreg. 245, 45
quite true that the right to impose such Pac. 771, 35 L. R. A. 58, and see also
special taxes is based upon a presumed note to this case in L. R. A.] As to re-
equivalent; but it by no means follows paving, see ante, 719, note. The legisla-
that there must be in fact such full equiv- tive determination that certain land is
alent in every instance, or that its ab- benefited is conclusive. Only the ques-
sence will render the assessment invalid. tion of
apportionment reiihains open.
The rule of apportionment, whether by Spencer v. Merchant, 125 U. S. 345,
the front foot, or a percentage upon the 8 Sup. Ct. Rep. 921; Pacific Bridge Co.
assessed valuation, must be uniform, af- v. Kirkham, 64 Cal. 519, 2 Pac. 409,.
fecting all the owners and all the prop- The fir.ding of benefits by a common
erty abutting on the street alike. One council is conclusive unless palpably un-
could not be assessed ten per cent, an- v. Katzenstein, 52 Ark. 107, 12 S. W.
other five, another three, and another left 198 Pueblo v. Robinson, 12 Col. 693, 21
;
altogether unassessed because he was uot Pac. Rep. 899. In ordering a local assess-
in fact benefited.It is manifest that the ment the common council may determine
actual benefits resulting from the im- that the benefits to property within the
provement may be as various almost as district will equal the cost of the improve-
the number of the owners, and the uses ment. Cook v. Slocum, 27 Minn. 609, 8
to which the property may be applied. N. W. 755. If a council has made an
No general rule, therefore, could be laid assessment district, a jury in apportioning
down which would do equal and exact benefits must impose some on each parcel
justice to all. The legislature have not in it. Rentz v. Detroit, 48 Mich. 544, 12
attempted so vain a thing, but have pre- N. W. 694, 911. Contra, Kansas City v.
scribed two different modes in which the Baird, 98 Mo. 215, 11 S. W. 243, 562.
assessment may be made, and left the city But a wholly arbitrary apportionment
authorities free to adopt either. The that could not possibly be just would be
mode adopted by the council becomes void. Thomas v. Gain, 35 Mich. 155. A
the statutory equivalent for the benefits council cannot be impowered to impose
"
conferred, although in fact the burden expense as it may deem equitable and
imposed ma}' greatly preponderate. In just." Barnes v. Dyer, 66 Vt. 419.
such case, if no fraud intervene, and the i Williams v.
Detroit, 2 Mich. 560;
assessment does not substantially exhaust Northern Indiana R. R. Co. v. Connelly,
730 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
oghue, 31 Mo. 345; Burnett v. Sacra- Bradley v. McAtee, 7 Bush, 667, 3 Am.
mento, 12 Cal. 76; Scoville v. Cleveland, Rep. 309. In Washington Avenue, 69 Pa.
1 Ohio St. 126; Hill v. Higdon, 5 Ohio St. 352, 8 Am. Rep. 255, it is denied that
St. 243; Ernst v. Kunkle, 5 Ohio St. 520 ;
this principle can be applied to the country
Hines v. Leaven worth, 3 Kan. 186 ;
and to fanning lands. Agnew, J., says :
" To apply
Magee v. Commonwealth, 46 Pa. St. it to the country, or to farm
358 Wray v. Pittsburg, 46 Pa. St. 365
; ; lands, would lead to such inequality and
Palmer v. Stumph, 29 Ind. 329; White injustice as to deprive it of all soundness
v. People, 94 III. 604; Wilbur v. Spring- as a rule, or as a substitute for a fair and
field, 123 III. 395, 14 N. E. 871 Davis v. ; impartial valuation of benefits in pur-
Lynchburg, 84 Va. 861, 6 S. E. 230; suance of law so that at the very first
;
has not been made for a hearing in which r. Philadelphia, 89 Pa. St. 265; Philadel-
property owners may appear and show phia v. Rule, 93 Pa. St. 15, and Scranton
that such assessment is not proportional v. Penn Coal Co., 105 Pa. St. 445, are in
to benefits. Ulman v. Baltimore, 72 Md. principle similar. The rule of assess-
587, 597, 609, 20 Atl. 141, 21 Atl. 709, 21 ment by frontage not sanctioned in
is
Atl. 711, 11 L. R. A. 224, and note;] al- Arkansas Peay v. Little Rock, 32 Ark.
:
though the assessment exceeds the value 31; Monticello v. Banks, 48 Ark. 251,
of a long, shallow strip assessed. Mc- 2 S. W. 852 nor in Tennessee. McBean
;
Cormick's Est. v. Harrisburg, 129 Pa. St. v. Chandler, 9 Heisk. 349. [Nor will
213, 18 Atl. 126. In Hammett v. Phila- the frontage rule be sustained where
delphia, 65 Pa. St. 146, 3 Am. Rep. 615, it results an apportionment varying
in
while the cases here cited are approved, substantially from the value of bene-
it is denied that a street already laid out fits conferred and in excess thereof. In
and in good condition can be taken and Norwood v. Baker, a peculiar state of
improved for a public drive or carriage- facts showed the frontage rule in a most
way at the of the adjacent
expense unfavorable light. B. owned a parcel of
owners ; being an improvement
this not land on W. Ave. I. Ave. intersected
for local but for general purposes. See W. Ave. at right angles, but was inter-
Washington Avenue, 69 Pa. St. 352, 8 rupted for a space of 300 ft. by B.'s land,
Am. Rep. 255 Orphan Asylum's Appeal,
; through which the street had not yet
111 Pa. St. 135, 3 Atl. 217; Williamsport been opened. It had, however, been
v. Beck, 128 Pa. St. 147, 18 Atl. 329. But opened beyond B.'s land, so that by the
a borough may cause a sidewalk to be opening of the street for this distance of
relaid at the cost of an abutter. Smith v. 300 ft. across B.'s land, the street would
Kingston, 120 Pa. St. 357, 14 Atl. 170. be open throughout its length. The vil-
[An ordinance requiring abutting prop- lage council of N. by ordinance provided
erty-owners to remove snow and ice is for the appropriation of this strip through
unconstitutional. State v. Tuckman, 69 B.'s land, and the value thereof was duly
N. H. 318, 41 Atl. 347, 42 L. R. A. 438; assessed and paid to B. Thereupon the
Gridley v. Bloomington, 88 111. 554 Chi- ; council, following the frontage rule, as-
cago v. O'Brien, 111 111. 532.] Compare sessed upon B., whose land was the only
Allen r. Drew, 44 Vt. 174 (case of water- land fronting upon the new portion of
rents) ;
Willard v. Presbury, 14 Wall. 676; the street, the entire cost of the land ap-
Hoyt v. East Saginaw, 19 Mich. 39, 2 Am. propriated, and in addition all the ex-
CH. XIV.] THE POWER OF TAXATION. 731
penses connected with such appropriation. rule, see Raleigh v. Peace, 110 N. C. 32,
As a matter of fact the land of B. was 14 S. E. 521, 17 L. R. A. 330, and note;
probably not at all benefited by the open- upon necessity of special benefit, see Re
ing of the street through it, since all parts Bonds of Madera Irrig. Dist., 92 Cal. 296,
of it had had substantially equally good 341, 28 Pac. 272, 675, 14 L. R. A. 755,
street facilities before. The United States and note; upon distinction between taxes
Supreme Court sustained an injunction and special assessments, see Adams Co.
against the assessment on the ground v. Quincy, 130 111. 566, 22 N. E. 624,
that it amounted to a taking without due 6 L. R. A. 155, and note. Upon practi-
process. Norwood v. Baker, 172 U. S. cally unlimited power of Congress over
269, 19 Sup. Ct. Rep. 187. But under a special assessments in District of Colum-
statute authorizing the entire expense of bia, see Parsons v. District of Columbia,
a street pavement to be apportioned on 170 U. S. 45, 18 Sup. Ct. 621 Wight v. ;
abutting lots according to the frontage Davidson, 181 U. S. 371,21 Sup. Ct. Rep.
rule, and without any preliminary hearing 616. The frontage rule is no longer
as to benefits, the assessment cannot, in valid in Indiana, and no special assess-
the absence of allegation and proofs that ment can exceed the benefit. If the cost
the resulting assessment is substantially of the improvement exceeds the amount
in excess of benefits, be set aside where of the special benefits, the excess must
the lots are of equal depth, and are sub- be paid out of the general fund raised by
stantially similarly related to the im- taxation. Adams v. Shelbyville, 154
provement. The statute is good to the Ind. 467, 57 N. E. 114, 49 L. R. A. 797.
"
extent at least of furnishing a prima facie Compensation paid to a landowner for
rule of apportionment. French v. Barber lands taken by appropriation proceedings
A. Paving Co., 181 U. 8,324, 21 Sup. Ct. to open a street cannot be assessed back
Rep. 625, aff. 158 Mo. 534, 58 S. W. 934, upon the lands of the owner remaining
54 L. R. A. 492. To same effect see Farrell after such taking. Neither can costs and
v.W. Chicago Park Comm'rs, 182111.250, expenses incurred in such proceeding be
55 N. E. 325 Cass Farm Co.
;
v. Detroit, so assessed." Cincinnati, L. & N. R. Co.
124 Mich. 433, 7 Det. L. N. 283, 83 N. W. v. Cincinnati, 62 Ohio St. 465, 57 N. E.
U. S. 371, 21 Sup. Ct. Rep. 616. And such Violett v. Alexandria, 92 Va. 561, 23
notice may be by a minute in the publi- S. E. 909, 31 L. R. A. 382; Hayes v.
cation of the council's proceedings. State Douglas County, 92 Wis. 429, 65 N. W.
v. Pillsbury, 82 Minn. 359, 85 N. W. 482, 31 L. R. A. 213 Denver v. Knowles,
;
fore, that a law for making assessments on this basis could not
have in view such distribution of burdens in proportion to bene-
2
fits as ought to be a cardinal idea in every tax-law. It would be
(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
waukee, 10 Wis. 258, seems to be contra. take it, because the use of a street was a
We quote from the opinion of the court public use ; in order to justify a resort
by Paine, J. After stating the rule that to the power of taxation, it is said the
uniformity in taxation implies equality building of a street is a public purpose.
in the burden, he proceeds " The prin-
: But then, having got the land to built it
ciple upon which these assessments rest on, and the power to tax by holding it a
is clearly destructive of this equality. It public purpose, they immediately aban-
requires every lot-owner to build what- don that idea, and say that it is a private
ever improvements the public may re- benefit, and make the owner of the lot
quire on the street in front of his lot, build the whole of it. 1 think this is the
without reference to inequalities in the same in principle as it would be to say
value of the lots, in the expense of con- that the town in which the county seat
structing the improvements, or to the is located should build the county build-
question whether the lot is injured or ings, or that the county where the capital
benefited by their construction. Corner is should construct the public edifices of
lots are required to construct and keep in the State, upon the ground that, by being
repair three times as much as other lots ; located nearer, they derived a greater
and yet it is well known that the differ- benefit than others. If the question,
ence in value bears no proportion to this therefore,was, whether the system of
difference in burden. In front of one lot assessment could be sustained upon
the expense of building the street may principle, I should have no hesitation
exceed the value of the lot and its con-
;
in deciding it in the negative. I fully
struction may impose on the owner agree with the reasoning of the Supreme
additional expense, to render his lot ac- Court of Louisiana in the case of Muni-
cessible. In front of another lot of even cipality No. 2 v. White, 9 La. Ann. 447,
much greater value, the expense is com- upon this point.
"
paratively slight. These inequalities are But the question isnot whether this
obvious ; and 1 have always thought that system is established upon sound prin-
the principle of such assessments was ciples, but whether the legislature has
radically wrong. They have been very power, under the constitution, to estab-
extensively discussed, and sustained upon lish such a system. As already stated,
the ground that the lot should pay be- if the provision requiring the rule of
cause it receives the benefit. But if this taxation to be uniform was the only one
be true, that the improvements in front bearing upon the question, I should an-
of a lot are made for the benefit of the lot swer this also in the negative. But there
only, then the right of the public to tax is another provision which seems to me
the owner at all for that purpose fails; so important, that it has changed the re-
because the public has no right to tax the sult to which I should otherwise have ar-
citizen to make him build improvements rived. That provision is 3 of art. 11,
for his own benefit merely. It must be and as follows
is :
'
It shall be the duty of
for a public purpose and it being once
; the legislature, and they are hereby em-
established that the construction of streets powered, to provide for the organization
is a public purpose that will justify taxa- of cities and incorporated villages, and
tion, I think it follows, if the matter is to to restrict their power of taxation, assess-
be settled on principle, that the taxation ment,borrowing money, contracting debts,
should be equal and uniform, and that to and loaning their credit, so as to prevent
make it so the whole taxable property of abuses in assessments and taxation, and
the political division in which the im- in contracting debts by such municipal
provement is made should be taxed by corporations."
a uniform rule for the purpose of its " It cannot well be denied that if the
construction. word assessment,' as used in this section,
'
"
But in sustaining these assessments had reference to this established system
when private property was wanted for a of special taxation for municipal im-
street, it bas been said the State could provements, that then it is a clear recog-
-34 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
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 case of Hill v. Higdon, referred to, is dif-
power." And
the court, having reached ferent. There the expense of improving
the conclusion that the word did have the street was assessed upon the property
reference to such an established system, abutting on the street, in proportion to
"
sustained the assessment, adding The : the foot front. The decision there was,
same effect was given to the same clause that the constitutional provision that
in the Constitution of Ohio, by the Su- "laws shall be passed taxing by a uni-
preme Court of that State, in a recent form rule all moneys, &c., and also all
decision in the case of Hill v. Higdon, real and personal property, according to
6 Ohio, N. s. 243. And the reasoning of the true value in money," had no refer-
Chief Justice Hanney on the question I ence to these local assessments, which
think it impossible to answer." might still be made, as they were before
If the State of Wisconsin had any set- the constitution was adopted, with refer-
tled and known practice, designated as ence to the benefits conferred. The case,
assessments, under which each lot-owner therefore, showed a rule of apportionment
was compelled to construct the streets in which was made applicable throughout
front of his lot, then the constitution as the taxing district, to wit, along the street
quoted may well be held to recognize so far as the improvement extended. The
such practice. In this view, however, it case of State City of Portage, 12 Wis.
v.
is still difficult to discover any " restric- 562, holds that a law authorizing the ex-
"
tion in a law which perpetuates the ar- pense of an improvement to be assessed
bitrary and unjust custom, and which still upon the abutting lots, in proportion to
permits the whole expense of making the their front or size, would not justify and
street in front of each lot to be imposed sustain city action which required the
upon it. The
only restriction which the owner of each lot to bear the expense
law imposes is, that its terms exclude of the improvement in front of it.
uniformity, equality, and justice, which It has been often contended that taxa-
surely could not be the restriction the tion by frontage was in effect a taking of
constitution designed. Certainly the property for the public use, but the courts
learned judge shows very clearly that have held otherwise. People v. Mayor,
such a law is unwarranted as a legiti- &c. of Brooklyn, 4 N. Y. 419 ; Allen v.
mate exercise of the taxing power; and Drew, 44 Vt. 174; Warren v. Henley, 31
as it cannot be warranted under any other Iowa, 31 ;Washington Avenue, 69 Pa.
power known to constitutional govern- St. 352, 8 Am. Rep. 255; White v. Peo-
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.
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.]
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 This rate, on the contrary, is a requisition for so
poll.
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-
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-
boroughs, towns, and villages are also exempted by law, (a) be-
were to be governed by the last assess- the legislature may exempt lands received
ment of taxable property in the county. from the Federal government in trust to
It was insisted that this was an unjust aid in the building of railways without
criterion, for a man might have
disposed regard to the constitutional provisions
of all the taxable property assessed to concerning exemptions. See Stearns v.
him in the last assessment before this tax Minnesota, 179 U. S. 223, 21 Sup. Ct.
was actually declared by the commission- Rep. 73, and Duluth & I. R. R. Co. v. St.
ers. The court, however, regarded the Louis Co., 179 U. S. 302, 21 Sup. Ct. Rep.
objection as more refined than practical, 124. Held, that an exemption of $5,000
and one that, if allowed, would at once in each estate from the operation of the
annihilate the power of taxation. "In inheritance tax law is void, as being re-
the imposition of taxes, exact and criti- pugnant to the requirement of uniform-
cal justice and equality are absolutely ity. Re Cope, 191 Pa. 1, 43 Atl. 79, 45
unattainable. If we attempt it, we might L. R. A. 316. Where the Constitution
" shall
have to divide a single year's tax upon a requires that the legislature pro-
given article of property among a dozen vide by law for a uniform and equal rate
different individuals who owned it at dif- of assessment and taxation, and shall
ferent times during the year, and then be prescribe such regulations as shall secure
almost as far from the desired end as a just valuation," failure on the part of
when we started. The proposition is the legislature to prescribe such rules for
Utopian. The legislature must adopt any class of property (e. g. paid-up and
some practical system and there is no
; partly paid-up life insurance policies)
more danger of oppression or injustice in exempts that class. State Board of Tax
taking a former valuation than in relying Commissioners v. Holliday, 150 Ind. 216,
upon one to be made subsequently." 49 N. E. 14, 42 L. R. A. 826. In Mary-
And see People v. Worthington, 21 111. land the legislature cannot exempt per-
171. sonal property and improvements upon
1 Wisconsin Cent. R. R. Co. v.
Taylor lands, leaving the bare land values to be
County, 52 Wis. 37, 8 N. W. 833 Strat- ;
assessed. Wells v. Hyattsville Comm'rs,
ton v. Collins, 43 N. J. 563 New Orleans
;
77 Md. 125, 26 Atl. 357, 20 L. R. A. 89.
v. People's Bank, 32 La. Ann. 82 New ; Oregon legislature cannot exempt rail-
Orleans v. Fourchy, 30 La. Ann. pt. 1, road property upon condition that State
910; Gibbons v. Dist. Columbia, 110 U. S. troops and munitions of war be carried
401, 6 Sup. Ct. Rep. 427; University v. free. Hogg v. Mackay, 23 Oreg. 339, 31
Skidmore, 87 Tenn. 155, 9 S. W. 892. Pac. 779, 19 L. R. A. 77, and note upon
But if provision for certain exemptions power of exemption. No exemptions
is made by the constitution, no others allowed in North Carolina. Redmond v.
are valid. Le Due v. Hastings, 39 Minn. Tarboro, 106 N. C. 122, 10 S. E. 845, 7
110, 38 N. W. 803. fJBut it seems that L. R. A. 639.;]
(a) FjBut in Kentucky, a municipal corporation may be taxed upon franchise its
cause, if any portion of the public expenses was imposed upon them,
it must insome 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
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
exemptions and special assessments, see ciety v. Kelly, 28 Oreg. 173, 42 Pac. 3, 30
III. Cent. R. Co. v. Decatur, 126 111. 92, L. R. A. 167 American S. S. Union v.
;
18 N. E 315, 1 L. R. A. 613, and note, s. c. Taylor, 161 Pa. 307, 29 Atl. 26, 23 L. R.
147 U. S. 190, 13 Sup. Ct. Rep. 293, A. 695.]
1 But it is not
sustaining the rule that "exemption competent to grant ex-
"
from all taxation of every kind does emptions from taxation based on sex or
not exempt from special assessments for age, e. g., widows, maids, and female
street improvements. See also San Diego minors, and an act attempting to make
v. Linda Vista Irrigation Dist., 108 Cal. such exemptions is void. State t'. In-
189, 41 Pac. 291, 35 L. R. A. 33, and note. dianapolis, 69 Ind. 375, 35 Am. Rep. 22&
" I have
1 States
North, 27 Mo. 464; People court, says : no doubt this ex-
v.Colman, 3 Cal. 46; Duracli's Appeal, emption originated in motives of gener-
62 Pa. St. 491; Brewer Brick Co. v. osity and public spirit. And perhaps the
Brewer, 62 Me. 62, 16 Am. Rep. 395. same motives should induce the taxpay-
[Crafts v. Ray, R. I. 46 All. 1043,
,
ers of the city to submit to the slight in-
49 L. R. A. 004. See also Maine Water crease of the tax thereby imposed on
Co. v. Waterville, 93 Me. 686, 45 Atl. 830, each, without questioning its strict legal-
49 L. R. A. 294Q ity. But they cannot be compelled to.
Mayor, &c. of New York, No man
2 Wilson v. is obliged to be more generous
4 E. D. Smith, 675; Hill v. Higdon, 6 than the law requires, but each may
Ohio St. 243; State v. Parker, 33 N. J. stand strictly upon his legal rights. That
313; State v. County Court, 19 Ark. 360. this exemption was illegal, was scarcely
Classes of property as well as classes of contested. I shall therefore make no
persons may be exempted. Butler's Ap- effort to show that the Common Council
peal, 73 Pa. St. 448 Sioux City v. School
;
had no authority to suspend or repeal the
District, 55 Iowa, 150, 7 N. W. 488. Not- general law of the State, declaring what
" the
withstanding a requirement that property shall be taxable and what ex-
rule of taxation shall be uniform," the empt. But the important question pre-
legislature may levy specific State taxes sented is, whether, conceding it to have
on corporations, and exempt them from been entirely unauthorized, it vitiates
municipal taxation. So held on the the tax assessed upon other property.
ground of stare decisis. Kneeland v. And upon this question I think the follow-
Milwaukee, 16 Wis. 454. See 111. Cent. ing rule is established, both by reason and
R. R. Co. v. McLean Co., 17 111. 291 New; authority. Omissions of this character,
Orleans v. Savings Bank, 31 La. Ann. arising from mistakes of fact, erroneous
826; Hunsaker v. Wright, 30 111. 146; computations, or errors of judgment on
Portland v. Water Co., 67 Me. 135. the part of those to whom the execution of
8 In the case of Weeks v. the taxing laws is entrusted, do not neces-
Milwaukee,
10 Wis. 242, a somewhat peculiar exemp- sarily vitiate the whole tax. But inten-
tion was made. It appears that several tional disregard of those laws, in such
lots in the city upon which a new hotel manner as to impose illegal taxes on those
was being constructed, of the value of who are assessed, does. The first part
from -$150,000 to $200,000, were purposely of the rule is necessary to enable taxes to
omitted to be taxed, under the direction be collected at all. The execution of
" in view of the
of the Common Council, these laws is necessarily entrusted to men,
great public benefit which the construc- and men are fallible, liable to frequent
tion of the hotel would be to the city." mistakes of fact and errors of judgment.
Paine, J., in delivering the opinion of the If such errors, on the part of those who
CH. XIV.] THE POWER OF TAXATION. 743
their duties, should vitiate the whole tax, Hersey v. Supervisors of Milwaukee, 16
no tax could ever be collected. And Wis. 185 Crosby v. Lyon, 37 Cal. 242 ;
;
therefore, though they sometimes increase Primm v. Belleville, 69 111. 142 ; Adams
improperly the burdens of those paying v. Beman, 10 Kan. 37; Brewer Brick Co.
taxes, that part of the rule which holds v. Brewer, 62 Me. 62, 16 Am. Rep. 395.
the tax not thereby avoided is absolutely But it seems that an omission of property
essential to a continuance of government. from the tax-roll by the assessor, un-
But it seems to me clear that the other intentionally,through want of judgment
part is equally essential to the just pro- and lack of diligence and business habits,
tection of the citizen. If those executing will not invalidate the roll. Dean v.
them, and assess the whole tax upon a 77 Ind. 371. In Scofield v. Watkins, 22
part only of those who are liable to pay III. 66, and Merritt v. Karris, 22 111. 303,
it, and have it still a legal tax, then the it appears to be decided that even in the
laws afford no protection, and the citizen case of intentional omissions the tax-roll
is at the mercy of those officers, who, by would not be invalidated, but the parties
being appointed to execute the laws, would injured would be left to their remedy
seem to be thereby placed beyond legal against the assessor. See also Dunham
control. I know of no considerations of \ Chicago, 55 111. 359; State v. Maxwell,
public policy or necessity that can justify 27 La. Ann. 722 New Orleans v. Fourchy,
;
carrying the rule to that extent. And the 30 La. Ann. pt. 1. 910. Compare Francis
fact that in this instance the disregard of v. Railroad Co., 19 Kan. 303.
question. It is a rule of law that is saker v. Wright, 30 111. 146. See also
to be established and, if established
; Trustees v. McConnell, 12 111. 138 Madi- ;
here because the motives were good, it son County r. People, 58 111. 456 Dunham ;
would serve as a precedent where the v. Chicago, 55 III. 357; Louisville, &c. R.
motives were bad, and the power usurped R. Co. v. State, 8 Heisk. 663, 744. Peo-
r. Keith, 153 111.
ple's Loan & H. Assn.
for purposes of
oppression," pp. 812-315.
See also Henry v. Chester, 15 Vt. 460; 609, 39 N. E. 1077, 28 L. R. A. 65.]
State /. Collector of Jersey City, 24 N. J. 9 Wis. 410. See ante, p. 723.
108 ; Insurance Co. v. Yard, 17 Pa. St. 331 ;
744 CONSTITUTIONAL LIMITATIONS. [CH. XIV.
8
1 Art. 12, 2. People v. McCreery, 34 Cal. 432 ;
2 Auditor of Muskingum
Zanesville v. Crosby v. Lyon. 37 Cal. 242 People v.
;
County, 6 Ohio St. 589. See also Fields Eddy ,"43 Cal. 331, 13 Am. Rep. 143.
* Hoboken v.
v. Com'rs of Highland Co., 36 Ohio St. Phinney, 29 N. J. 65.
476.
CH. XIV.] THE POWER OF TAXATION. 745
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.
2 Foster o.
[And all conditions precedent which may 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 Armstrong, 168 U. S. 224,
v. 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.
is the case, it must be inferred that those were all the restrictions
1
Tlie Constitution of Ohio requires ineach year, an estimate in detail of the
the legislature to provide by general costand expense of maintaining the police
laws for the organization of cities and in- department.and the Common Council was
corporated villages, and to restrict their required to raise the same by general tax.
power of taxation, assessment, &c. The These provisions, was claimed, were in
it
general law authorizing the expense of conflict with the constitution, because no
grading and paving streets to be assessed limit was fixed by them to the estimate
on the grounds bounding and abutting that might be made. In People v. Ma-
on the street, in proportion to the street haney, 13 Mich. 481, 498, the court say :
duty, and therefore valid. The chief re- sense that would make all charters of
striction in the case was, that it did not municipal corporation and acts relating
authorize assessment in any other or dif- thereto which are wanting in this limita-
ferent mode from what had been custom- tion invalid, we do not feel called upon to
ary. Northern Indiana R. R. Co. v. decide in this case, since it is clear that a
Connelly, 10 Ohio St. 159. The statute limitation upon taxation is fixed by the
also provided that no improvement or act before us. The constitution has not
repair of a street or highway, the cost of prescribed the character of the restriction
which was to be assessed upon the own- which shall be imposed, and from the
ers, should be directed without the con- nature of the case it was impossible to do
currence of two-thirds of the members more than to make it the duty of the
elected to the municipal council, or un- legislature to set some bounds to a power
less two-thirds of the owners to be so liable to abuse. A
provision which,
charged should petition in writing there- like the one complained of, limits the
for. In Maloy v. Marietta, 11 Ohio St. power of taxation to the actual expenses
636, 639, Peck, J., says: "This may be as estimated by the governing board,
said to be a very imperfect protection ;
after first limiting the power of the board
and in some cases will doubtless prove to to incur expense within narrow limits, is
be so but it is calculated and designed,
;
as much a restriction as if it confined the
by the unanimity or the publicity it re- power to a certain percentage upon tax-
quires, to prevent any flagrant abuses of able property, or to a sum proportioned
the power. Such is plainly its object ;
number of inhabitants in the city.
to the
and we know of no rights conferred upon Whether the restriction fixed upon would
courts thus to interfere with the exercise as effectually guard the citizen against
of a legislative discretion which the con- abuse as any other which might have
stitution has delegated to the law-making been established was a question for the
power." And see Weeks v. Milwaukee, legislative department of the govern-
10 Wis. 242. The Constitution of Michi- ment, and does not concern us on this
gan requires the legislature, in providing inquiry." QWhere townships are mere
for the incorporation of cities and villages, adjuncts or branches of county govern-
"
to restrict their power of taxation," &c. ments, as in Missouri, the township tax
The Metropolitan Police Law
Detroit rate is a part of the rate to which the
made the duty of the Board of Police
it county is limited. State v. Mo. P. R. Co.,
to prepare and submit to the city con- 123 Mo. 72, 27 S. W. 367, 26 L. R. A. 36-3
troller, on or before the first day of May
CH. XIV.] THE POWER OF TAXATION. 747
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-
(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
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
3
requiring entire freedom from all errors.
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 to Suit at law ; arrest of the person
:
School District v. Merrills, 12 Conn. 437 ; imports, until payment is made sale or ;
El well v. Shaw, 1 Me. 339 Wells v. Bur- ; leasing of land taxed; imposition of pen-
bank, 17 N. H.393; Kinsworthy v. Mitch- alties for non-payment ; forfeiture of prop-
4 The following methods are resorted N. J. Eq. 415 Springer v. United States,
;
CH. XIV.] THE POWER OF TAXATION. 749
102 U. S. 686 ;
In re Hackett, 53 Vt, 354 ;
442 ; Roseberry v. Huff, 27 Ind. 12 Mont-
;
Braxton, 158 U. S. 375, 15 Sup. Ct. Rep. Collins, 43 N. J. 563; Cooley on Taxa-
1006. Assessment in name of a dead tion, c. 15. [JSee also Ogden City v.
man is void. Ty. v. Perea, 10 N. M. 362, Armstrong, 168 U. S. 224, 18 Sup. Ct.
62 Pac. 1094; Millaudon v. Gallagher, 104 Rep. 98, aff. 12 Utah, 476, 43 Pac. 119;
La. 713, 29 So. 307. But since 1890 as- also extensive note upon equitable relief
sessment may be in name of registered against illegal taxation, 42 L. ed. U. S.
owner, whether alive or dead. Owner 445. Thirty days' publication of notice
must see that proper change in registra- of sale of lands for taxes is not insufficient
tion is made when he comes into the title. to constitute due process of law. Castillo
Geddes v. Cunningham, 104 La. 306, 29 v. McConnico, 168 U. S. 674, 18 Sup.
So. 138. Where land is assessed to Ct. Rep. 229s. c. 47 La. Ann. 1473, 17
;
holder of legal title and also to holder So. 868. Necessity of strict compliance,
of equitable title, and latter pays tax both in assessment and in subsequent pro-
assessed, rale for non-payment of tax ceedings. Marx v. Hanthorn, 148 U. S.
assessed agiinst former is void. Boggess 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. N. W. 204; Norris v. Hall, 124 Mich. 170,
344, 12 Sup. Ct. Rep. 22 Stout v. Mastin,
;
82 N. W. 832.]
139 U. S. 151, 11 Sup. Ct. Rep. 519 ; Mar- It should be stated that in Iowa, under
tin v. Barbour, 140 U. S. 634, 11 Sup. Ct. legislation favorable to tax titles, the
Rep. 944 Bird v. Benlisa, 142 U. S. 664,
;
courts go further in sustaining them than
12 Sup. Ct. Rep. 323 Smith v. Callanan,
;
in perhaps any other State. Reference is
103 Iowa, 218, 72 N. W. 513, 42 L. R. A. made to the following cases Eldridge v.
:
105 Tenn. 245, 58 S. W. 259 Condon v. ; Iowa, 234 Jeffrey v. Brokaw, 35 Iowa,
;
Galbraith, 106 Tenn. 14, 58 S. W. 916; 505; Genther v. Fuller, 36 Iowa, 604;
Olson v. Phillips, 80 Minn. 339, 83 N. W. Leavitt v. Watson, 37 Iowa, 93; Phelps
"
189. Absence of " $ before number in- v. Meade, 41 Iowa, 470. It may be use-
tended to show amount of tax is fatal. ful to compare these cases with Kimball
Russell v. Chittenden, 123 Mich. 546, 82 v. Rosendale, 42 Wis. 407, and Silsbee v.
CHAPTER XV.
THE EMINENT DOMAIN.
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,
;
1 InThe 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 ;
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
;
(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.
J., in Pollard's Lessee v. Hagan, 3 How. v.Louisville, &c. Ry. Co., 101 Ind. 366 ;
212, 223. "Notwithstanding the grant Dietrichs v. Lincoln, &c. R. R. Co., 13
to individuals, the eminent domain, the Neb. 361, 13 N. W. 624. But when a
highest and most exact idea of property, bridge company has once located its line
remains in the government, or in the ag- of approach and begins work, it cannot
gregate body of the people in their sov- change it without legislative authority.
ereign capacity and they have a right
;
Matter of Poughkeepsie Bridge Co., 108
to resume the possession of the property, N. Y. 483, 15 N. E. 601. The constitu-
in the manner directed by the constitu- tional prohibitionagainst the taking of
tion and laws of the State, whenever the private property for public use without
public interest requires it. This right of compensation is self-enforcing, and
equity
resumption may be exercised, not only may enjoin the damaging of such prop-
where the safety, but also where the in- erty though the legislature has provided
terest, or even the expediency of the State no method of determining compensation.
is concerned: as where the land of the Kansas City, St. J. & C. B. Ry. Co. v.
individual is wanted for a road, canal, or Terminal Ry. Co., 97 Mo. 457, 10 S. W.
other public improvement." Walworth, 826, 3 L. R. A. 240; Hickman v. Kansas
Chancellor, in Beekman v. Saratoga & City, 120 Mo. 110, 25 S. W. 225, 22
Schenectady R. R. Co., 3 Paige, 45, 73, L. R. A. 658, 41 Am. St. 684 ; Searle v.
22 Am. Dec. 679. The right is inherent Lead, 10 S. D. 312, 73 N. W. 101, 39
in all governments, and requires no L. R. A. 345. A taking under the police
constitutional provision to give it force. power is not in exercise of the power
Brown v. Beatty, 34 Miss. 227 ; Taylor v. of eminent domain. State v. Schlemmer,
Porter, 4 Hill, 140 Lake Shore, &c. R. R.
;
42 La. Ann. 1166, 8 So. 307, 10 L. R. A.
Co. Chicago, &c., R. R. Co., 97 111.
v. 135. See Ruch v. City of New Orleans,
506, 2 Am. & Eng. R. R. Cas. 440; 43 La. Ann. 275, 9 So 473; Peart v.
United States v. Jones, 109 U. S. 513, 3 Meeker, 45 La. Ann. 421, 12 So. 490;
" Title to Sweet v. Rechel, 37 Fed. Rep. 323 Id. 159
Sup. Ct. Rep. 346. property is ;
always held upon the implied condition U. S. 380, 16 Sup. Ct. Rep. 43; State v.
that it must be surrendered to the govern- Griffin, 69 N. H. 1, 39 All. 260, 41 L. R. A.
ment, either in whole or in part, when the 177. So in case of destruction of mill and
public necessities, evidenced according to mill dam to avoid damage to highway
the established forms of law, demand." and other property. Aitken v. Wells
Hogeboom, J., in People v. Mayor, &c. of River, 70 Vt. 308, 40 Atl. 829, 67 Am. St.
New York, 32 Barb. 102, 112. And see 672, 41 L. R. A. 566-3
CH. XV.] THE EMINENT DOMAIN. 755
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, andimmunities 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
;
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
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.
gation Co. v. United States, 148 U. S. 312, Ditch Co. v. Hudson, 85 Tex. 587, 22 S. W.
13 Sup. Ct. Rep. 622 in the District of
; 398, 967 property of church
;
Macon and :
St. 382. The United States may delegate v. Ross, 7 Johns. Ch. 315, 11 Am. Dec.
CH. XV.] THE EMINENT DOMAIN. 757
484; Bliss v. Hosmer, 15 Ohio, 44; Wat- provement when not appropriated. See
kins v. Walker Co., 18 Tex. 685. In Johnson v. Atlantic, &c. R. R. Co., 36
Eldridge v. Smith, 34 Vt. 484, it was held N. H. 569; Baltimore, &c. R. R. Co. v.
competent for a railroad company to ap- Magruder, 34 Md. 79, 6 Am. Rep. 310;
propriate lands for piling the wood and Reusch v. Chicago, &c. R. R. Co., 57 Iowa,
lumber used on the road, and brought to 687, 11 N. W. 6 47. But in general, in
it to be transported thereon. constructing a public work, it is the duty
i Wells v.
Somerset, &c. R. R. Co., 47 of those concerned to avoid diverting
Me. 345. So of a pier. Matter of Union streams, and to construct the necessary
Ferry Co., 98 N. Y. 139. But the de- culverts, bridges, &c., for that purpose.
struction of a private house during a fire March v. Portsmouth &c., R. R. Co., 19
to prevent the spreading of a conflagra- N. H. 372 ;
v. Carter, 18 Johns.
Boughton
tion has been held not to be an appropri- 405; Rowe Addison, 34 N. H. 306;
v.
ation under the right of eminent domain, Proprietors, &c. v. Nashua & Lowell R. R.
but an exercise of the police power. Co., 10 Cush. 388 Haynes v. Burlington,
;
r.Lawrence, 21 N. J. 248 Same v. Same,; Co., 28 Vt. 99. Compare Eaton v. Boston
23 N. J. 9, 590 McDonald v. Redwing, 13
;
C. & M. R. R. Co., 51 N. H. 504, where
Minn. 38 Field v. Des Moines, 39 Iowa,
; it was decided that a corporation which
675. The municipal corporation whose flooded a man's land by removing a natu-
officers order the destruction is not liable ral protection in the construction of its
forthe damages unless expres<Iy made so road was liable for the injury, even
by statute. White v. Charleston, 2 Hill though its road was constructed with due
(S. C.), 571 Dunbar v. San Francisco, 1
; care, with Bellenger v. N. Y. Central R. R.
Cal. 355; Stone v. Mayor, &c., of New 'Co., 23 N. Y. 42 Abbott v. Kansas City,
;
Cush. 433; Keller v. Corpus Christi, 50 R. R. Co., 101 N. C. 21, 7 S. E. 467; and
Tex. 614, 32 Am. Rep. 613. fjln the other cases cited, post, pp. 782, 826.
Piscataqua Bridge v. New Hampshire
8
exercise of police, power the State cannot
authorize the taking of private property Bridge, 7 N. H. 35 Crosby v. Hanover, ;
Co., 107 Cal. 221, 40 Pac. 531, 48 Am. St. & Worcester R. R. Co., 23 Pick. 3GO ;
ply a town with water. The appropria- Chesapeake & Ohio Canal Co. v. Balti-
tion might, of course, be made for any more & Ohio R..R. Co., 4 Gill & J. 5;
other object of public utility and a stream
;
State v. Noyes, 47 Me. 189; Red River
may even be diverted from its course to Bridire Co. v. Clarksville, 1 Sneed, 176 ;
remove it out of the way of a public im- Armington v. Barnet, 15 Vt. 745; White
758 CONSTITUTIONAL LIMITATIONS. [CH. XV.
River Turnpike Co. v. Vermont Central 247, 31 All. 854. If the second use will
R. R. Co., 21 Vt. 590; Newcastle, &c. better serve the public, the first franchise
R. R. Co. v. Peru & Indiana R. R. Co., 3 may be condemned. Re City of Brooklyn,
Ind. 464; Springfield v. Connecticut 143 N. Y. 696, 38 N. E. 983, 26 L. R. A.
River R. R. Co., 4 Cush. 63 ; Forward v. 270; aff. 166 U. S. 685, 17 Sup. Ct. Rep.
Hampshire, &c. Canal Co., 22 Pick. 462 ; 718; Trustees of Atlanta University v.
Commonwealth v. Pittsburg, &c. R. R. City of Atlanta, 93 Ga. 468, 21 S E. 74;
Co., 58 Pa. St. 26 He Towanda Bridge
; United States v. Gettysburg E. R. Co.,
Co., 91 Pa. St. 216; In re Twenty-Second 160 U. S. 668, 16 Sup. Ct. Rep. 427. Land
"
St., 102 Pa, St. 108. The only true rule condemned for one use cannot be taken
of policy as well as of law is, that a grant for a similar use without specific author-
for one public purpose must yield to an- ity where the second use is inconsistent,
other more urgent and important, and or materially interferes with the first :
this can be effected without any infringe- Lake Erie & W. R. Co. v. Com'rs of Sen-
ment on the constitutional rights of the eca Co., 57 Fed. Rep. 945 St. Louis, H. &
;
lature for the compensation of those v. City of New York, 128 N. Y. 510, 28
whose property or franchise is injured or N. E. 525, rev. 60 Hun, 577 Re City of
;
taken away, there is no violation of pub- New York, 136 N. Y. 253, 31 N. E. 1*043.
lic faith or private right. The obligation Land of one railway company for another
of the contract created by the original line of railway :
Butte, A. & P. R. Co. v.
charter isthereby recognized." Per Montana U. R. Co., 16 Mont. 504, 41 Pac.
Bigelow, J., in Central Bridge Corporation 232, 31 L. R. A. 298, 50 Am. St. 508. So,
v. Lowell, 4 Gray, 474, 482. This subject though the second use is not a similar use,
receives a very full and satisfactory ex- if it is inconsistent with the first use.
amination by Judges Pearson and Shars- Boston & A. R. Co. v. Cambridge, 106
wood, in Commonwealth v. Pennsylvania Mass. 224,44 N. E. 140; Cincinnati, W. &
Canal Co., 06 Pa. 5
Rep. 329.
St. 41, Am. M. R. Co. v. Anderson, 139 Ind. 490, 38
In Central City Horse Railway Co. v. N. E. 167, 47 Am. St. 285 ; Louisville &
Fort Clark Horse Railway Co., 87 111. N. R. Co. v. Whitely, 95 Ky. 215, 24 S.
523, this subject is somewhat considered. W. 604, 44 Am. St. 220, and note ; Minn.
The question involved is thus stated by & St. L. R. Co. v. Minn. W. R. Co., 61
"
the court :Can a competing liore rail- Minn. 502, 63 N. W. 1035 Seattle & M.
;
the tracks so compulsorily taken a portion bridge for an electric street railway :
"
of its own line 1 This question is Pittsburg & W. E. P. R. Co. v. Point
answered in the negative, though at the Bridge Co., 165 Pa. St. 35, 30 Atl. 511, 26
same time it is intimated that " proceed- L. R. A. 323. The yards and tracks of
ings might be instituted, perhaps, to con- a railway company may be condemned
demn the entire road and franchise, and for a public street if properly authorized,
thus pass it over as an entirety to the Terra Haute v. Evansville & T. H. R. Co.,
competing road." But as to this, see 149 Ind. 174, 46 N. E. 77, 37 L. R. A. 189 ;
Re Towanda Bridge Co., 91 Pa. St. 216. but then in those cases only where pri-
So of the right of a railroad company vate property is wanted for public use, or
given under peculiar circumstances to demanded by the public welfare. We
take toll on a highway. Phila. &c. Ry. know of no instances in which it has or
Co.'s Appeal, 120 Pa. St. 90, 13 Atl. 708. can be taken, even by State authority,
The appurtenant right of an abutter
1 for the mere purpose of raising a revenue
to have a street open may be taken :
by sal or otherwise and the exercise of
;
Rennselaer v. Leopold, 106 Ind. 29, 6 N. E. such a power would be utterly destruc-
761 the right to pass over a private way
;
: tive of individual right, and break down
Buffalo, N. Y. & P. R. R. Co. v Overton, all the distinctions between meum and
35 Hun, 157 the right to have a farm-
; titum, and annihilate them forever at the
QPrivate cemetery for public park, Jn re To the same effect is Cooper v. Williams,
Board of Street Openings, &c., 133 N. Y. 6 Ohio, 392, 22 Am. Dec. 745.
329, 31 N. E. 102, 28 Am. St. 640 home- ; Taking money under the right of emi-
stead for court house Jockheck v.
: nent domain, when it must be compen-
Shawnee Co. Com'rs, 53 Kan. 780, 37 sated in money afterwards, could be
I'nc. 621 leasehold interest in lands
;
:
nothing more or less than a forced loan,
Corrigan et al. v. City of Chicago, 144 111, only to be justified as a last resort in a
587, 33 N. E. 746, 21 L. R. A. 212. In time of extreme peril, where neither the
such case the exercise of the right ter- credit of the government nor the power of
minates the obligation to pay rent. Id.~\ taxation could be made available. It is
impossible to lay down rules for such a
2
Property of individuals cannot be
appropriated by the State under this case, except such as the law of overruling
power for the mere purpose of adding to necessity, which for the time being sets
the revenues of the State. Thus it has aside all the rules and protections of pri-
been held in Ohio, that in appropriating vate right, shall then prescribe. Kays-
the water of streams for the purposes of ville v. Ellison, 18 Utah, 163, 55 Pac. 386,
a canal, more could not be taken than 72 Am. St. 772, 43 L. R. A. 81 JSee
was needed for that object, with a view post, p. 764, note.
to raising a revenue by selling or leas-
760 CONSTITUTIONAL LIMITATIONS. [CH. XV.
the occasions, the modes, conditions, and agencies for its appro-
priations.
1
Private property can only be taken pursuant to law ;
but a legislative act declaring the necessity, being the customary
mode in which that fact is determined, must be held to be for this
"
purpose the law of the land," and no further finding or adjudi-
cation can be essential, unless the constitution of the State has
2
expressly required it. When, however, action is had for this
purpose, there must be kept in view that general as well as reason-
able and just rule, that, whenever in pursuance of law the prop-
erty of an individual is to be divested by proceedings against his
will, a strict compliance must be had with all the provisions of
law which are made for his protection and benefit, or the pro-
8
ceeding will be ineffectual. Those provisions must be regarded
as in the nature of conditions precedent, which are not only to
be observed and complied with before the right of the property
owner is disturbed, but the party claiming authority under the
1 Barrow
v. Page, 6 Hay w. 97 ; Rail- the power to tax, it resides with the legis-
road Co. Lake, 71 111. 333; Allen v.
v. lative department to whom the delegation
Jones, 47 Ind. 4!58. QBut see Easthamp- is made. It may be exercised directly or
ton v. Hampshire County Com'rs, 154 indirectly by that body and it can only
;
tutes a condition upon which all property Co. o. Smith, 78 III. 96 Springfield, &c.
;
is holden. When the public necessity R. R. Co. v. Hall, 67 111. 99; Powers's
requires it, private rights to property Appeal, 29 Mich. 504; Kroop v. Forman,
must yield paramount right of the
to this 31 Mich. 144 Arnold v. Decatur, 29 Mich.
;
sovereign power. We have repeatedly 77 ; Lund v. New Bedford, 121 Mass. 286 ;
held that the character of the work for Wamesit Power Co. v. Allen, 120 Mass.
which the property is taken, and not the 352; Bohlman v. Green Bay, &c. R. R.
means or agencies employed for its con- Co., 40 Wis. 157 Moore v. Railway Co.,
;
Co., 21 Pa. St. 100; Ellis v. Pacific R. R. lows Baltimore & Susquehanna R. R.
Co., 51 Mo. 200; United States v. Reed, Co. v. Nesbit, 10 How. 395, and Blood-
56 Mo. 565; Burt v. Brighara, 117 Mass. good v. Mohawk & Hudson R. R. Co.,
307 Oregon Ry. & Nav. Co. v. Oregon,
;
18 Wend. where the statutory provi-
9,
&c. Co., 10 Greg. 444; Howland v. School sions were similar. In Kentucky, pay-
Hist., 16 R. I. 257, 15 Atl. 74; Reed v. ment in money must be made before
Ohio, &c. Ry. Co., 126 111. 48, 17 N. E. entry. Covington Ry. Co. v. Piel, 87
807 Grand Rapids & I. R. R. Co. v. Wei-
; Ky. 267, 8 S. W. 449. See further State
den, 70 Mich. 390, 38 N. W. 294 West ;
v. Seymour, 35 N. J. 47 ; Cameron v. Su-
Va. Transportation Co. v. Volcanic Oil & pervisors, 47 Miss. 264 ;
St. Joseph, &c.
Coal Co., 6 W. Va. 382, it was held that if R. R. Co. v. Callender, 13 Kan. 496 ;
the owner appears in proceedings taken Paris v. Mason, 37 Tex. 447 People v.
;
for the assessment of damages, and con- McRoberts, 62 111. 38 St. Louis, &c. R. R.
;
tests the amount without objecting the Co. v. Teters, 68 111. 144; Sherman v.
want of any such attempt, the court must Milwaukee, &c. R. R. Co., 40 Wis. 645 ;
under which the land was appropriated, v. Wyamlotte, 2 Dill. 376. In the case
" It can
it was provided that when land or other in Howard it is said :
hardly be
real estate was taken by the corporation, questioned that without acceptance by
for the use of their road, and the parties the acts and in the mode prescribed [/. e ,
were unable to agree upon the price of by payment of the damages assessed],
the land, the same should be ascertained the company were not bound that if
;
and determined by the commissioners, they had been dissatisfied with the esti-
together with the costs and charges ac- mate placed on the land, or could have
cruing thereon, and upon the payment of the procured a more eligible site for the
same, or by depositing the amount in a bank, location of their road, they would have
as should be ordered by the commissioners, the been at liberty, before such acceptance,
corporation should be deemed to be seized and wholly to renounce the inquisition. The
proprietors of the land
could have no
possessed of the lands. Held, that, until
the payment was made, the company had authority to coerce the company into its
adoption." Daniel, J., 10 How. 395,
no right 399.
to enter upon the land to con-
762 CONSTITUTIONAL LIMITATIONS. [Oil. XV.
1 Gillinwater v.
Mississippi, &c. R. R. 4 Wash. 64, 29 Pac. 847 ;
Brunswick &
" The statute W.
Co., 13 III. 1. says, that Ry. Co. City of Waycross, 94 Ga.
v.
after a certain other act shall have been 102, 21 S. E. 145 Chicago & N. W. Ry.
;
passed, the company may then proceed to Co. v. Town of Cicero, 164 111. 656, 39
take private property for the use of its N. E. 674. Authority to construct water-
road: that is equivalent to saying that works for fire protection and domestic use
that right shall not be exercised without is not authority to furnish water for
such subsequent act. The right to take motive power for light manufacturing,
private property for public use is one of though grant of power contained words
the highest prerogatives of the sovereign "and other purposes:" Re Barre Water
power and here the legislature has, in
; Co., 62 Vt. 27, 20 Atl. 109, 9 L. R. A. 195.
language not to be mistaken, expressed The words " any railway " in a statute
itsintention to reserve that power until authorizing condemnation proceedings,
itcould judge for itself whether the pro- held not to include street railways
posed road would be of sufficient public operated by horse power or electricity.
utility to justify the use of this high pre- Thomson-Houston Elec. Co. v. Simon,
rogative. It did uot intend to cast this 20 Oreg. 60, 25 Pac. 147, 10 L. R. A. 251.
power away, to be gathered up and used Authority to condemn for telegraph line,
by any who might chose to exercise it." held to authorize condemnation for tele-
Ibid. p. 4. phone line under New Jersey statute.
2
See further the cases of Atlantic & State v. Central New Jersey Telegraph
Ohio R. R. Co. i'. Sullivant, 6 Ohio St. Co., 53 N. J. L. 341, 21 Atl. 460, 11 L. R.
276; Parsons r. Howe, 41 Me. 218; At- A. 664 San Antonio & A. P. Ry. Co. v.
;
kinson v. Marietta & Cincinnati R. II. S. W. Telph. & Telne. Co., 93 Tex. 313, 55
The Purpose.
of Atlanta, 93 Ga. 468, 21 S. E. 74 ; Wilder Co. v. City of Chicago, 138 111. 453, 28 N.
v. Boston & A. Ry. Co., 161 Mass. 387, 37 E. 740 ;
Louisville & N. Ry. Co. v.
N. E. 380 Kansas City, &c. Ry. Co. r.
; Whitely County Court, 95 Ky. 215, 24
Petty, 57 Ark. 359, 21 S. W. 884; Provi- S. W. 604, 44 Am. St. 220; Beaver .-.
City
denee & W. Ry. Co., Petitioner, 17 R. I. of Harrisburg, 156 Pa St. 647, 27 Atl. 4;
324, 21 Atl. 965 ; Kyle v. Texas and Chicago & G. W. Ry. Co. v. First Method-
N. O. Ry. Co., 3 Willson, 436 Kettle
; ist Church, 42 C. C. A. 178, 102 Fed.
River Ry. Co. v. Eastern Ry. Co., 41 Rep. 85.]
Minn. 461, 43 N. W. 469, 6 L. R. A. Ill; 1
Currier v. Marietta & Cincinnati
Payne r. Kansas, &c. Ry. Co., 46 Fed. R. R. Co., 11 Ohio St. 228. And see Gil-
Rep. 546 Chicago & N. VV. Ry. Co. v. Gait,
; mer v. Lime Point, 19 Cal. 47 Bensley v.
;
133 III. 657, 23 ^N. E. 425, 24 N. E. 674; Mountain Lake, &c. Co., 13 Cal. 806;
Dennis, Long & Co. v. City of Louisville, 98 Bruning v. N. O. Canal & Banking Co.,
Ky. (57, 32 S. W. 271 Ewing v. Alabama,
;
12 La. Ann. 541 West Virginia Trans-
;
&c. Ry. Co., 68 Miss. 551, 9 So. 295; Cheney portation Co. v. Volcanic Oil & Coal Co.,
r. Atlantic City Water Works Co., 55 N. J. 5 W. Va. 382.
L. 235, 26 Atl. 95; Illinois Central Ry.
Louis & S. F. Ry. Co. v. Foltz, 52 Fed. Rep. 627 Koenig v. Chicago, B. &Q. R. Co.,
;
Appeal of Hartman Steel Co., 129 Pa. St. 551, 18 Atl. 653.]
764 CONSTITUTIONAL LIMITATIONS. [CH. XV.
1
[The constitutional
prohibition seq. See also Embury p. Conner, 3 N. Y.
against private property for
taking 611; Kramer v. Cleveland & Pittsburgh
public use, operates by implication to R. R. Co., 5 Ohio St. 140 Pratt P. Brown,
;
prohibit the taking of property for pri- 3 Wis. 603; Concord R. R. p. Greeley,
vate use. Richards v. Wolf, 82 Iowa, 358, 17 N. H. 47 N. Y. & Harlaem R. R. Co.
;
property of individuals in time of war, not a public benefit, but a benefit to the
through its military authorities. That is company, to whom the grant is made.
a right which depends on the existence Philadelphia, M. &
S. R. Co., Peti-
S.
of hostilities, and the suspension, par- tion of, Pa, St. 63 Atl. 191. j The
,
tially or wholly, of the civil laws. For power can only be exercised to supply
recent cases in which it has been consid- some existing public need or to gain
ered, see Mitchell v. Harmony, 13 How. some present public advantage not with ;
i
Taylor v. Porter, 4 Hill, 140, per And see Wisconsin Water Co. v. Winans,
Branson, J. ; Clark v. White, 2 Swan, 540 ;
85 Wis. 26, 54 N. W. 1003, 39 Am. St.
White v. White, 6 Barb. 474 Sadler v. ; 813, and note; Latah Co. v. Peterson,
Langham, 34 Ala. 311 Pittsburg v. Scott,
;
2 Idaho, 1118, 29 Pac. 1089, 16 L. R. A.
1 Pa. St. 309 Nesbitt v. Trumbo, 39 III.
; 81; Butte, Anaconda, & P. Ry. Co. v.
110; Osborn v. Hart, 24 Wis. 89, 1 Am. Montana U. Ry. Co., 16 Mont. 604, 41
Rep. 161 Tyler v. Beacher, 44 Vt. 648,
;
Pac. 232, 31 L. R. A. 298. See Bridal
8 Am. Rep. 398; Bankhead v. Brown, 25 Veil Lumbering Co. Johnson, 30 Oreg.
v.
496; Logan v. Stogdale, 123 Ind. 372, that the right might be exercised in
24 N. E. 135, 8 L. R. A. 58, and note. order to the establishment of private ways
Way laid out on application of single from coal fields to connect them with the
private person, to be paid for and kept in public improvements, there being nothing
repair by him, but to be used by all who in the constitution forbidding it. See
desire to use it, is a public way for which also the Pocopson Road, 16 Pa. St. 15;
lands may be condemned. Latah County Sherman v. Bnick, 32 Cal. 241 Brewer ;
may be given a public character by act Porter, 4 Hill, 140 Buffalo & N. Y.
;
R. R
of the legislature because of incidental Co. v. Brainard, 9 N. Y. 100 Bradley v. ;
be so far a matter of general concern as 'In the text we have stated what is
Co. v. Dix, 109 111. 237. Not if merely lic." Matter of Eureka Bason, &c. Co.,
to increase its business. Then the use 96 N. Y. 42. See Belcher Sugar Refining
is not public. Chicago & E. I. R. R. Co. v. St. Louis Elev. Co., 82 Mo. 121.
Co. v. Wiltse, 116 111. 449, 6 N. E. 49; The use must be by the general public of
Pittsburg, W. & K. Co. v. Benwood Iron a locality, and not by particular individ-
Works, 31 W. Va. 710, 2 L. R. A. 680, uals or estates. McQuillen v. Hatton, 42
8 S. E. 453. Ohio St. 202 ; Ross v. Davis, 97 Ind. 79.
CH. XV.] THE EMINENT DOMAIN. 767
for the culture of useful fishes, though the 128 N. Y. 408, 28 N. E. 606, aff. 58 Hun,
object of the owner is to secure his own 351. It is the right to use, rather than
pleasure and profit, is constitutional, extent of use, should determine its char-
Turner Nye, 154 Mass. 679, 28 N. E.
v. acter, Butte A. & P. Ry. Co. v. Montana
1048, 14 L. R. A. 487, an extreme case.] N. Ry. Co., 16 Mont. 604, 41 Pac. 232,
Walworth, Chancellor, in Beekman
2 31 L. R. A. 298. Incidental benefit to
v. Saratoga & Schnectady R. R. Co., 3 private enterprise not destroy public
Paige, 45, 73, 22 Am. Dec. 679. And see character (side track to coal mine). St.
Wilson v. Blackbird Creek Marsh Co., Louis, I. M. & S. Ry. Co. v. Petty, 57
2 Pet. 245. [As 'to what is a public use, Ark. 359, 21 S. W. 884, 20 L. R. A. 434,
see Latah County v. Peterson, 2 Idaho, and note Bridal Veil Lumbering Co. v.
;
1118, 29 Pac. 1089, 16 L. R. A. 81, and Johnson, 30 Oreg. 205, 46 Pac. 790, GO
note. Also note to Pittsburgh W. & Ky. Am. St. 818, 34 L. R. A. 868. For water
Ry. Co v. Benwood Iron Wks., 2 L. R. A. works to serve the public. State v. City of
680. For a railway is not for a public Newark, 64 N. J. L. 62, 23 Atl. 129;
use under all circumstances. Its use Eountze v. Morris Aq ueduct, 58 N. J. L.
will determine whether it is. Kettle 303, 33 Atl. 252. Not necessary that
River Ry. Co. v. Eastern Ry. Co., 41 works are to serve all inhabitants of the
Minn. 461, 43 N. W. 469, 6 L. R. A. municipality if they are to serve all in
111 Colorado E. Ry. Co. v. Union Pac.
; a particular district. Pocantico Water
Ry. Co., 41 Fed. Rep. 293 Weidenfield ; Wks. Co. v. Bird, 130 N. Y. 249, 29 N. E.
v. Sugar Run Ry. Co., 48 Fed. Rep. 246. So as to condemnation for purposes
615; Farnsworth v. Lime Rock Ry. Co., of irrigation. Board of Directors of Al-
83 Me. 440, 22 Atl. 373 Chicago B. & N.
;
falfa Irr. Dist. v. Collins, 46 Neb. 41, 64
768 CONSTITUTIONAL LIMITATIONS. [CH. XV.
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;
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. Urquhart, 16 Oreg. 57, ld.~^
v.
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 App., 12 Atl. 427. Or by a boom com-
Ind. 199 Reeves v. Treasurer of Wood
; pany for the purposes of a boom. Pat-
County, 8 Ohio St. 333. See a clear terson v. Mississippi, &c., Boom Co., 3
statement of the general principle and its Dill. 465. Or for the purposes of a tele-
necessity in the last mentioned case. The graph line. Turnpike Co. v. News Co.,
drains, however, which can be authorized 43 N. J. 381 New Orleans R. R. Co. v.
;
to be cut across the land of unwilling Southern Tel. Co., 53 Ala. 211 Pierce v. ;
parties, or for which individuals can be Drew, 136 Mass. 75. Or sewers in cities.
taxed, must not be mere private drains, Hildreth v. Lowell, 11 Gray, 345. Or
but must have reference to the public for a market. RK Cooper, 28 Hun, 515.
health, convenience, or welfare. Reeves A city may be authorized to appropriate
v. Treasurer, &c., supra. And see People lands in order to fill them up, and thereby
v. Nearing, 27 N. Y. 306. QMay con- abate a nuisance upon them. Dingley v.
demn for drainage to abate nuisance. Boston, 100 Mass. 544. But it may not
Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. appropriate a wharf to lease it to a pri-
Rep. 43. Term "sanitary" does not in- vate corporation. Belcher Sugar Refin-
dicate public purpose. In re Theresa ing Co. v. St. Louis Elev. Co., 82 Mo. 121.
Drainage District, 90 Wis. 301, 63 N. W. A private corporation may be empowered
2^8; and see Poundstone v. Baldwin, 145 to exercise the right of eminent domain
Ind. 139, 44 N. E. 191.J It is said in a to obtain a way along which to lay pipe
New Jersey case that an act for the drain- for the transportation of oil to a railroad
age of a large quantity of land, which in or navigable water. West Va. .Trans-
its present condition is not only worth- portation Co. v. Volcanic Oil & Coal Co.,
less for cultivation but unfit for residence, 6 W. Va. 382. It is held in Evergreen
and for an assessment of the cost by Cemetery v. New Haven, 43 Conn. 234 ;
benefits, is for a purpose sufficiently pub- Edgecombe Burlington, 46 Vt. 218, and
v.
lic to justify an exercise of the right of em- Balch v. Commissioners. 103 Mass. 106 ;
inent domain. Matter of Drainage of [JFarneman v. Mt. Pleasant Cem. Assn.,
Lands, 35 N. J. 497. It is competent under 135 Ind. 344, 35 N. E. 271 ; Westfield
the eminent domain to appropriate and re- Cem. Assn. v. Danielson, 62 Conn. 319,
move a dam owned by private parties, in 26 Atl. 345; Stannard's Corners Rural
order to reclaim a considerable body of Cem. Assn. v. Brandes, 14 Misc. (N. Y.)
lands flowed by means of it, paying the 270.] that lands may be appropriated
owner of the dam its value. Talbot v. under this power for a cemetery but in ;
Hudson, 10 Gray, 417. See the valuable Matter of Deansville Cemetery Associa-
note to Beekman v. Railroad Co., 22 Am. tion, 66 N. Y. 569, it is decided that this
Dec. 686, where the authorities as to cannot be done for the exclusive use of a
what is a public use are collated. private corporation. QBoard of Health
Such, for instance, as the construc- v. Van Hoesen, 87 Mich. 533, 49 N. W.
2
tion of a public park, which in large 894, and cases cited. These cases seem
cities is as much a matter of public util- to proceed upon the theory that the right
ity as a railway, or a supply of pure of burial is not common, but only at the
water. See Matter of Central Park Ex- will of the corporation owning.] Land
tension, 16 Abb. Pr. Rep. 56 Owners of may not be taken for a private warehouse
;
Armstrong, 45 N. Y. 234, 6 Am. Rep. 70; railroad along the bottom of the Niagara
County Court v. Griswold, 58 Mo. 175. Cliffs. Matter of Niagara Falls & W.
The legislature may authorize land to be Ry. Co., 108 N. Y. 375, 15 N. E. 429.
taken by an exposition company. Rees* The development of mines has been
CH. XV.] THE EMINENT DOMAIN. 771
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.
8 French v. Braintree
1
See Angell on Watercourses, c. 12, Manufacturing
for references to the statutes on this Co., 23 Pick. 216, 220.
subject.
772 CONSTITUTIONAL LIMITATIONS. [CH. XV.
1 Action on the case for raising a dam for the public use has been too frequently
across the Merrimae River, by which a decided and acted upon to require au-
mill stream emptying into that river, thorities. Anil so to create a wholly
above the site of said dam, was set back artificialnavigation by canals. The
and overflowed, and a mill of the plaintiff establishment of a great mill power for
situated thereon, and the mill privilege, manufacturing purposes, as an object of
were damaged and destroyed. Demurrer great public interest, especially since
to the declaration. The defendant com- manufacturing has come to he one of the
pany were chartered for the purpose of great public industrial pursuits of the
constructing a dam across the Merrimae Commonwealth, seems to have been re-
River, ami constructing one or more locks garded by the legislature, and sanctioned
and canals, in connection with said dam, by the jurisprudence of the Common-
to remove obstructions in said river by wealth, and in our judgment rightly so,
falls and rapids, and to create a water in determining what is a public use, jus-
power to be used for mechanical and tifying the exercise of right of eminent
manufacturing purposes. The defend- domain. See St. 1825, c. 148, incorporat-
ants claimed that they were justified in ing the Salem Mill Dam
Corporation ;
what they had done, by an act of the leg- Boston & Roxbury Mill Dam Corpora-
islature exercising the sovereign power tion v. Newman, 12 Pick. 467. The acts
of the State, in the right of eminent do- since passed, and the cases since decided
main that the plaintiffs property in the
;
on this ground, are very numerous. That
mill and mill privilege was taken and ap- the erection of this dam would have a
propriated under this right and that his ; strong and direct tendency to advance
remedy was by a claim of damages under both these public objects, there is no
the act, and not by action at common doubt. We
are therefore of opinion that
law as for a wrongful and unwarrantable the powers conferred on the corporation
encroachment upon his right of property. by this act were so done within the scope
" of the authority of the legislature, and
Shaw, Ch. J. It is then contended that
:
if this act was intended to authorize the were not in violation of the Constitution
defendant company to take the mill power of theCommonwealth." Hazen v. Essex
and mill of the plaintiff, it was void be- Company, 12 Cush. 475, 477. See also
cause it was not taken for public use, and Boston & Roxbury Mill Corporation v.
it was not within the power of the gov- Newman, 12 Pick. 467 Fiske v. Framing-
;
eminent domain. This is the main ques- Harding o. Goodlett, 3 Yerg. 41, 24 Am.
tion. In determining it we must look to Dec. 546. The courts of Wisconsin have
the declared purposes of the act and if ;
sustained such laws. Newcomer. Smith,
a public use is declared, it will be so held, 1 Chand. 71 ;
Thien v. Voegtlander, 3 Wis.
unless manifestly appears by the pro-
it 461 ;
Pratt v. Brown, 3 Wis. 603. But with
visions of the act that they can have no some hesitationin la ter cases. See Fisher
tendency to advance and promote such v. Horricon Co., 10 Wis. 351 Curtis v. ;
Burgess v. Clark, 13 Ired. 109 ; McAfee's case of Loughbridge v. Harris, 42 Ga. 500,
Heirs Kennedy, 1 Lit. 92; Smith v.
v. is contra. In Tyler v. Beacher, 44 Vt.
Connelly, 1 T. B. Monr. 58 Shackleford ; 648, 8 Am. Rep. 398, it was held not com-
v. Coffey, 4 J. J. Marsh. 40 Crenshaw v. ; petent, where the mills were subject to no
Slate River Co., 6 Rand. '245; Gammel such requirement. See the case, 8 Am.
r. Potter, 6 Iowa, 548. The whole subject Rep. 398. And see nole by Redjield, Am.
was very fully considered, and the valid- Law Reg., Aug., 1873, p. 493.
ity of such legislation affirmed, in Great 8 See this
subject in general discussed
Falls Manuf. Co. Fernald, 47 N. H.
. in a review of Angell on Watercourses, 2
444. And see Ash v. Cummings, 50 N. H. Am. Jurist, p. 25.
4
591. In Head v. Amoskeag Co., 113 U. S. InPeople v. Township Board of
9, 5 Sup. Ct. Rep. 441, such an act was Salem, 20 Mich. 452, the court consider
upheld as a regulation of the manner in the question whether a use which is re-
which the rights of proprietors adjacent garded as public for the purposes of an
to a stream may be enjoyed. In Lough- exercise of the right of eminent domain,
bridge v. Harris, 42 Ga. 500, an act for is necessarily so for the purposes of taxa-
"
the condemnation of land for a grist-mill tion. They say Reasoning by analogy
:
was held unconstitutional, though the from one of the sovereign powers of gov-
tolls were regulated, and discrimination ernment to another is exceedingly liable
forbidden. In Newell v. Smith, 15 Wis. to deceive and mislead. An object may
101, it was held not constitutional to au- be public in one sense and for one pur-
thorize the appropriation of the property, pose, when in a general sense and for
and leave the owner no remedy except other purposes it would be idle or mis-
to subsequently recover its value in an leading to apply the same term. All
action of trespass. governmental powers exist for public
purposes, but they are not necessarily to
1
Hay Cohoes Company, 3 Barb. 47.
v.
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 so injuriously affect the health and
may
regulated by it, to any extent found neces- comfort of the vicinity that it cannot be
sary for tlie preservation of the public tolerated in a densely settled neighbor-
order, and also for the protection of the hood, and therefore the owner of a lot in
private rights of one individual against that neighborhood will not be allowed to
encroachment by others. The sover- engage in that manufacture upon it, even
eign power of taxation is employed in a though it be his regular and legitimate
great many cases where the power of business. The butcher in the vicinity of
eminent domain might be made more im- whose premises a village has grown up
mediately efficient and available, if con- finds himself compelled to remove his
stitutional principles could suffer it to be business elsewhere, because his right to
resorted to ;
but each of these has its own make use of his lot as a place for the
peculiar and appropriate sphere, and the slaughter of cattle has become inconsistent
object which is public for the demands of with the superior right of the community
the one is not necessarily of a character to theenjoyment of pure air and the ac-
to permit the exercise of the other." companying blessings and comforts. The
" If we owner of a lot within the fire limits of a
examine the subject critically,
we shall find that the most important city may be compelled to part with the
consideration in the case of eminent do- property, because he is unable to erect a
main is the necessity of accomplishing brick or stone structure upon it, and the
some public good which is otherwise im- local regulations will notpermit one of
practicable and we shall also find that
;
wood. Eminent domain only recognizes
the law does not so much regard the and enforces the superior right of the
means as the need. The power is much community against the selfishness of in-
nearer akin to that of the public police dividuals in a similar way. Every branch
than to that of taxation it goes but a;
of needful industry has a right to exist,
step farther, and that step is in the same and the community has aright to demand
direction. Every man has an abstract that it be permitted to exist; and if for
right to the exclusive use of his own that purpose a peculiar locality already
property for his own enjoyment in such in possession of an individual is essential,
manner as he shall choose but if he ;
the owner's right to undisturbed occu-
should choose to create a nuisance upon pancy must yield to the superior interest
Although property can only be taken for a public use, and the
legislature must determine in what cases, it has been long settled
that not essential the taking should be to or by the State
it is
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 ;
Camp, 33 Conn. 532, in which it was very Wilkesboro, 115 N. C. 337, 20 S. E. 468 ;
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.
public the use is by the public and the benefit to accrue there-
; ;
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
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
ington v. Barnet, 15 Vt. 745; White of Santa Cruz v. Enright, 95 Cal. 105, 30
River Turnpike v. Central Railroad, 21 Pac. 197; Detroit & S. P. Ry. Co. v.
Vt. 590 Raleigh, &o. R R. Co. v. Davis,
; City of Detroit, 81 Mich. 562, 46 N. W.
2 Dev. Bat. 451 & Whiteman's Ex'r v.
;
12. Future as well as present needs to
Wilmington, &c. R. R. Co., 2 Harr. 514; be considered. St. Louis & S. F. Ry. Co.
Bradley v. N. Y. & N. H. R. R. Co., 21 v. Faltz, 52 Fed. Rep. 627; Kountze v.
Atl. 608, 24 L. R. A. 403; Moore v. lum, 84 Va. 271, 4 S. E 697. If the use
Sanford, 151 Mass. 285, 24 N. E. 323, is public, the legislative determination of
Co., 45 Neb. 884, 64 N. W. 343, 60 Am. 139 111. 151, 28 N. E. 923; Barrett v.
St. 585, and note.] Kemp, 91 Iowa, 296, 59 N. W. 76 Lynch ;
the States require the question of the 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
1
authority to decide upon the necessity for the taking.
Byrnes, 59 Fed. Rep. 29; Joplin Consol. 34 Minn. 227, 25 N. W. 345; Olmsted P.
Mining Co. v. City of Joplin, 124 Mo. 129, Prop'rs Morris Aqueduct, 46 N. J. L. 495 ;
Fed. Rep. 869. Courts will relieve against afford to the owners of the property an op-
abuse of power to determine necessity. portunity to be heard before those officers
Colorado E. Ry. Co. v. W. Pac. Ry. Co., when they sit for the purpose of making
41 Fed. Rep. 293; St. Louis, I. M. & S. the determination. I do not speak now
Ry. Co. v. Petty, 57 Ark. 359, 21 S. W. of the process for arriving at the amount
884, 20 L. R. A. 434; Creston Water of compensation to be paid to the owners,
Wks. Co. v. McGrath, 89 Iowa, 602, 56 but of the determination whether, under
N. W. 680; Robinson v. Pa. Ry. Co., 161 the circumstances of a particular case,
Pa. St. 561, 29 Atl. 268.] the property required for the purpose
1
People v. Smith, 21 N. Y. 595; Ford shall be taken or not and I am of opinion
;
v. Chicago & N. W. R. R. Co., 14 Wis. that the State is not under any obligation
617; Matter of Albany St., 11 Wend. 152, to make provisions for a judicial contest
25 Am. Dec. 619; Lyon v. Jerome, 26 upon that question. The only part of the
Wend. 484; Hays v. Risher, 32 Pa. St. Constitution which refers to the subject
169 North Missouri R. R. Co. v. Lack-
;
is that which forbids private property to
land, 25 Mo. 515: Same r. Gott, 25 Mo. be taken for public use without compen-
540; Bankhead v. Brown, 25 Iowa, 540; sation, and that which prescribes the
Contra Costa R. R. v. Moss, 23 Cal. 323 ;
manner in which the compensation shall
Matter of Fowler, 53 N. Y. 60; N. Y. be ascertained. It is not pretended that
Central, &c R. R. Co. v. Met. Gas Co., 63 the statute under consideration violates
N. Y. 326 Chicago, &c. R. R. Co. v. Lake,
;
either of these provisions. There is
71 111. 333 Warren v. St. Paul, &c. R. R.
;
therefore no constitutional injunction on
Co., 18 Minn. 384; Smeaton v. Martin, the point under consideration. The ne-\
67 Wis. 364, 15 N. W. 403 State v. Stew-
; cessity for appropriating private property |
art, 74 Wis. 620, 43 N. W. 947. But where for the use of the public or of the gor- /
a general power to condemn is given, for ernment is not a judicial question. The
example, to a railroad company, the ne- power resides in the legislature. It may
cessity for its exercise in the taking of be exercised by means of a statute which
particular property is a judicial question. shall at once designate the property to
be appropriated and the purpose of the these views that it is not necessary for
appropriation or it may be delegated to
;
the legislature, in the exercise of the right
public officers, or, as it has been repeat- of eminent domain, either directly, or in-
edly held, to private corporations estab- directly through public officers or agents,
lished to carry on enterprises in which to invest the proceedings witli the forms
the public are interested. There is no or substance of judicial process. It may
restraint upon the power, except that re- allow the owner to intervene and partici-
quiring compensation to be made. And pate in the discussion before the officer
where the power is committed to public or board to whom the power is given of
a subject of legislative dis-
officers, it is determining whether the appropriation
cretion to determine what prudential shall be made in a particular case, or it
regulations shall be established to secure may provide that the officers shall act
a discreet and judicious exercise of the upon their own views of propriety and
authority. The constitutional provision duty, without the aid of a forensic contest.
securing a trial by jury in certain cases, The appropriation of the property is an
and that which declares that no citizen act of public administration, and the form
shall be deprived of his property without and manner of its performance is such as
due process of law, have no application the legislature in its discretion pre-
"
to the case. The jury trial can only be scribes
claimed as a constitutional right where The fact that a road company has pur-
the subject is judicial in its character. chased a right of way across a man's land
The exercise of the right of eminent do- and bargained with him to build it, will
main stands on the same ground with the not preclude its appropriating a right of
power of taxation. Both are emanations way over the same land on another line.
of the law-making power. They are the Cape Girardeau, &c. Road v. Dennis, G7
attributes of political sovereignty, for the Mo. 438; [^Baltimore, &c. Ry. Co. v.
exercise of which the legislature is under P. W. & K. Ry. Co., 17 W. Va. 812, 843 ;
no necessity to address itself to the courts. Railroad Co. v. Blake, 9 Rich. 228. See
In imposing a tax, or in appropriating Lynch v. Forbes, 101 Mass. 302, 37 N. E.
the property of a citizen, or a class of 437, 42 Am. St. 402.]
citizens, for a public purpose, with a
1
By a statute of New York it was
proper provision for compensation, the enacted that whenever a part only of a
legislative act is itself due process of law ; lot or parcel of land should be required
though it would not be if it should under- for the purposes of a city street, if the
take to appropriate the property of one commissioners for assessing compensa-
citizen for the use of another, or to con- tion should deem it expedient to include
fiscate the property of one person or a the whole lot in the assessment, they
class of persons, or a particular descrip- should have power so to do and the part
;
tion of property, upon some view of pub- not wanted for the particular street or
lic policy, where it could not be said to be improvement should, upon the confirma-
taken for a public use. It follows from tion of the report, become vested in the
780 CONSTITUTIONAL LIMITATIONS. [CH. XV.
appropriation.
1
And where land is taken for a public work, there
is nothing in the principle we have stated which will preclude the
2
company, 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-
;
property under such circumstances with ceded to exist to take the whole lot,
the consent of the owner, and then to dis- whether the owner consented or not ?
pose of the same, there can be no objec- The quantity of the residue of any lot can-
tion to it but if it is to be taken literally,
;
not vary the principle. The owner may
that the commissioners may, against the be very unwilling to part with only a few
consent of the owner, take the whole lot, feet and I hold it equally incompetent
;
when only a part is required for public for the legislature thus to dispose of pri-
use, and the residue to be applied to pri- vate property, whether feet or acres are
vate use, it assumes a power which, with the subject of this assumed power." Mat-
all respect, the legislature did not possess. ter of Albany St., 11 Wend. 151, 25 Am.
The constitution, by authorizing the ap- Dec. 618, per Savage, Ch. J. To the
propriation of private property to public same effect is Dunn v. City Council, Har-
use, impliedly declares that for any other per, 129. And see Paul
v. Detroit, 32
use private property shall not be taken Mich. 108; Baltimore, &c. K. R. Co. v.
from one and applied to the private use Pittsburgh, &c. R. 11. Co., 17 W. Va. 812.
1
of another. It is in violation of natural Embury v. Conner, 3 N. Y. 511.
right ; and if it is not in violation of the There is clearly nothing in constitutional
letter of the constitution, it is of its spirit, principles which would preclude the legis-
and cannot be supported. This power lature from providing that a man's prop-
has been supposed to be convenient when erty might be taken with his assent,
the greater part of a lot is taken, and only whether the assent was evidenced by
a small part left, not required for public deed or not and if he accepts payment,
;
use, and that small part of but little value he must be deemed to assent. See Has-
in the hands of the owner. In such case kell v. New Bedford, 108 Mass. 208.
qualified to take and dispose of such par- son, 17 111. 123 Low v. Galena & C. U.
;
1 Zimmerman v. Union Canal Co., 1 pro and con cited in notes to Selden
W. & S. 846 ;
Shrunk v. Schuylkill Navi- v.Jacksonville, 14 L. R. A. 370, and 29
gation Co., 14 S. & R. 71 Monongahela
;
Am. St. 278. Many of which depend
Navigation Co. v. Coons, 6 W. & S. 101 ; upon particular statutes ;
and Buhl v.
Davidson v. Boston & Maine R. R. Co., 3 Fort Street Union Depot Co., 98 Mich.
Cush. 91 Gould v. Hudson River R. R.
; 696, 57 N. VV. 829, 23 L. R. A. 392 Dant- ;
that vacation of a street is a taking, see its lands under navigable waters without
Cullen v. N. Y., N. H. & H. R. Ry. Co., compensation to riparian owners for in-
66 Conn. 211, 33 All. 910; Pearsall v. juries resulting. Eisenbach v. Hatfield,
Eaton County Supervisors, 74 Mich. 558, 2 Wash. 236, 26 Pac. 639, 12 L. R. A.
42 N. W. 77, 4 L. R. A. 193. See cases 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. the injury of riparian owners. In re
Fed. Rep. 738, 12 L. R. A. 673; Farist bury, 72 Conn. 531, 45 Atl. 154, 48 L. R.
Steel Co. v. City of Bridgeport, 60 Conn. A. 691 ;Valparaiso v. Hagen, 153 Ind.
278, 22 Atl. 561, 13 L. R. A. 590; Rum- 337, 54 N. E. 1062, 48 L. R. A. 707.
sey v. N. Y. &c. Ry. Co., 133 N. Y. 79, 30 These last two cases are opposed to each
N. E. 654, 28 Am. St. 600. The construc- other on the question of whether a ripa-
tion by tlie United States of a pier in a rian owner is entitled to compensation
navigable river under authority of Con- for the casting of the sewage of a city
gress for theimprovement of navigation upon his lands to their injury. The Con-
gives an owner of lands bordering on the necticut case finds support in Smith v.
river no right to compensation though Sedalia, 152 Mo. 283, 53 S. W. 907, 48
his access to navigable water be cut off. L. R. A. 711, and in Grey ex rel. Simmons
Scranton v. Wheeler, 113 Mich. 565, 71 N. v.Paterson, N. J. ,
45 Atl. 995. The
W. 1091, aff. 179 U. S. 141, 21 Sup. Ct. retention of surface water on lot in
Rep. 48. Same doctrine, Sage v. New city, caused by change of grade in street,
York, 154 N. Y. 61, 47 N. E. 1096, 61 Am. is not a taking in violation of constitution.
,St. 592, 38 L. R. A. 606. A riparian owner Jordan v. Ben wood, 42 W. Va.
312, 26
on navigable water owns to high-water S. E. 266, 57 Am. 36 L. R. A.
St. 859,
mark, which is that line below which the 519. In Maine and Massachusetts where
"
lands are so frequently flowed that they the " great ponds belong to the State,
are not productive as agricultural lands, the taking of a reasonable quantity of
and the State cannot, even in aid of public water by authority of the State is not a
"
navigation, by artificial means maintain taking" as against a mill owner with a
such waters above high-water mark to water power on the outlet. Auburn v.
CH. XV.] THE EMINENT DOMAIN. 783
Union Water Power Co., 90 Me. 676, 38 to adduce very forcible reasons for his
All. 561, 38 L. R. A. 188. The diversion conclusions. QA change in the plan of
of water from its natural course in which construction of a railway after condem-
itserves as motive power for a mill is in nationmay entitle the owner of lands
Michigan unlawful, and will be enjoined condemned to additional compensation.
where such diversion is for drainage pur- Wabash, St. L. & P. R. Co. v. McDougall,
poses only. Stock v. Jefferson, 114 Mich. 126 Ill, 18 N. E. 291, 1 L. R. A. 207.
111.
der, 148 U. S. 186, 13 Sup. Ct. Rep. 529.] N. Y. Central R. R. Co., 23 N. Y. 42;
It is justly said by Mr. Justice Miller, in Hatch v. Vt. Central R. R. Co., 25 Vt.
Pumpelly v. The Green Bay,
&c. Co., 13 49 and cases, ante, p. 767.
;
extreme and limit of sound judicial con- Murphy Chicago, 29 111. 279 Roberta
v .
;
struction in favor of this principle, and in v. Chicago, 26 III. 249 ; Charlton v. Alle-
true that where real estate is actually Bush, 19 Ind. 326 Macy v. Indianapolis,
;
by having any artificial structure placed 382 O'Conner v. Pittsburg, 18 Pa. St.
;
on it, so as effectually to destroy or im- 187 In re Ridge Street, 29 Pa. St. 391
; ;
pair its usefulness, it is a taking within Callendar v. Marsh, 1 Pi<jk. 418 Creal ;
the meaning of the Constitution." See v. Keokuk, 4 Greene (Iowa), 47; Smith
also Arimond v. Green Bay, &c. Co., 81 v. Washington, 20 How. 13-3; Skinner v.
Wis. 316 ;
Aurora r. Reed, 67 III. 29, 1 1 Hartford Bridge Co., 29 Conn. 523 Ben- ;
Am. Rep. 1. This whole subject is most den r. Nashua, 17 N. H. 477; Pontiac v.
elaborately considered by Smith, J., in Carter, 32 Mich. 164 Goszler v. George-
;
for the flooding of his land in conse- New York, &c. R. R. Co., 101 N. Y. 98,
quence of the road being cut through a 4 N. E. 636; Henderson v. Minneapolis,
ridge on 'the land of another; and that 32 Minn. 319, 20 N. W. 322; Selden v.
this flooding was a taking of his property City of Jacksonville, 28 Fla. 658, 10 So.
within the meaning of the constitution. 457, 29 Am. St. 278 and note, 14 L. R. A.
The cases to the contrary are all consid- 370. It seems that where the constitu-
ered by the learned judge, who is able tion contains a provision requiring com-
784 CONSTITUTIONAL LIMITATIONS. [CH. XV.
in these and similar cases the law affords no redress for the
injury. So if in consequence of the construction of a public
work an injury occurs, but the work was constructed on proper
plan and without negligence, and the injury is caused by acci-
dental and extraordinary circumstances, the injured party cannot
demand compensation. 1
" "
pensation for property damaged for pare cases, post, p. 812, note. The cases
public use, that a change of grade, result- of McComb Akron, 16 Ohio, 474, 18
v.
ing in damage, gives an action. Rauen- Ohio, 229, and Crawford v. Delaware, 7
stein v. N. Y. L. & W. Ry. Co., 136 N. Y. Ohio St. 459, are contra. Those cases,
638, 32 N. E. 1074, 18 L. R. A. 768; however, admit that a party whose inter-
O'Brien v. Philadelphia, 150 Pa. 589, 24 ests are injured by the original establish-
All. 1047, 30 Am. St. 832, and note, pp. ment of a street grade can have no claim
835 et seq. ;
Henderson v. McClain, 102 to compensation but they hold that
;
Elevated R. Co., 79 Md. 277, 29 All. 830, the bridge, however, being in all respects
24 L. R. A. 396. Similar cases are Willis properly constructed. fJThe destruction
v. Winona, 59 Minn. 27, 60 N. W. 814, 26 of oysters by turning the sewage of a
L. R. A. 142 Home Building & C. Co. v.
; city upon their beds is a taking, requiring
City of Roanoke, 91 Va. 62, 20 S. E. 895, compensation. Huffmire v. Brooklyn,
27 L. R. A. 651. But see Field v. Bar- 162 N. Y. 584, 57 N. E. 176, 48 L. R. A.
ling, 149 111. 556, 37 N. E. 850, 24 L. R. A. 421.] In Hamilton v. Vicksburg, &c.
406, where it is held that an overhead R. R. Co., 119 U. S. 280, 7 Sup. Ct. Rep.
bridge across an alley which obstructs 206, the obstruction of a navigable stream
access of light and air to abutting pro- by unavoidable delay in rebuilding a law-
perty is such an injury as must be com- ful bridge was held not actionable. And
pensated for though the city owns the see Brown v. Cayuga, &c. R. R. Co., 12
alley and authorized the bridge. sim- A N. Y. 486, where bridge proprietors were
ilar conclusion was reached in Willam- held liable for similar injuries on the
ette Iron Works v. Oregon R. & N. Co., ground of negligence. And compare
26 Oreg. 224, 37 Pac. 1016, 29 L. R. A. Norris Vt. Central R. R. Co., 28 Vt. 99,
v.
88, which involved a railway bridge ap- with Mellen v. Western R. R. Corp.,
proach in a public street. It is a taking 4 Gray, 301. And see note on preceding
against the constitutional inhibition to page. The inconvenience from smoke
require abutting owners in New Ham- and jar caused by the careful construc-
shire to keep sidewalks free from snow tion and operation of a railroad near
and ice. State v. Jackman, 69 N. H. 318, property is not actionable. Carroll v.
41 Atl. 347, 42 L. R. A. 438/] Com- Wis. Cent. R. R. Co., 40 Minn. 168, 41
CH. XV.] THE EMINENT DOMAIN. 785
Slatten v. Des Moines Valley R. R. Co., injury sustained is remote and consequen-
29 Iowa, 148 Hoag v. Switzer, 61 111. 294.
; tial, it is damnum absque injuria, and is to
Qlf construction of railway along opposite be borne as a part of the price to be paid
side of highway causes depreciation of for the advantages of the social condition.
lands, the owner is entitled to compensa- This is founded upon the principle that
tion for such depreciation as is occasioned the general good is to prevail over par-
by causes not affecting the public gen- tial individual convenience." Lansing v.
erally. Lake Erie & Western Ry. Co. v. Smith, 8 Cow. 146, 149.
3 Richardson
Scott, 132 111. 429, 24 N. E. 78, 8 L. R. A. v. Vermont Central R. R.
330-3 Merely crossing a railroad by an- Co., 25 Vt. 465. But qucere if this could
other track is not a taking of property. be so, if the effect were to prevent access
Lehigh V. R. R. Co. v. Dover, &c. R. R. from the lot to the highway. In certain
Co., 43 N. J. 528. But this cannot be Indiana cases it is said that the right of
universally true. See Lake Shore, &c. the owner of adjoining land to the use of
R. R. Co. v. Chicago, &c. R. R. Co., 100 the highway is as much property as the
111. 21. Damage for the resulting incon- land itself; it is appurtenant to the
that
venience may be allowed as well as for land, and protected by the constitution.
is
& Salem R. R. Co., 13 Ind. 90; Rich- Cumminsville, 14 Ohio St. 523 Schneider ;
mond, &c. Co. v. Rogers, 1 Duvall, 135. v. Detroit; 72 Mich. 240, 40 N. W. 329;
50
786 CONSTITUTIONAL LIMITATIONS. [CH. XY.
tion of a canal. 1 And in New York it has been held that, as the
land where the tide ebbs and flows, between high and low water
mark, belongs to the public, the State may lawfully authorize a
railroad company to construct their road along the water front
below high-water mark, and the owner of the adjacent bank can
claim no compensation for the consequential injury to his inter-
2
ests. So the granting of a ferry right with a landing on private
Columbus & W. Ry. Co. v. Witherow, 82 one whose land is not taken, he may
Ala. 190, 3 So. 23; Shealy v. Chicago, have an action on the case for the injury,
&c. Ry. Co., 72 Wis. 471, 40 N. W. 145. notwithstanding the statute makes no
See also Indianapolis R. R. Co. v. Smith, provision for compensation. As where
52 Ind. 428 Terre Haute & L. R. R. Co.
;
the necessary, and not simply the acci-
v. Bissell, 108 Ind. 113, 9 N. E. 144; In- dental, consequence was to flood a man's
diana, B. & W. Ry. Co. v. Eberle, 110 premises with water, thereby greatly di-
Ind. 542, 11 N. E. 467; Pekin t;. Brereton, minishing their value. Hooker v. New
67 111. 477 ; Pekin v. Winkel, 77 111. 56 ;
Haven & Northampton Co., 14 Conn.
Grand Rapids, &c. R. R. Co. v. Heisel, 38 146, 15 Conn. 312; Evansville, &c. R. R.
Mich. 62, 31 Am. Rep. 306. In the Ver- Co. v. Dick, 9 Ind. 433 Robinson v. N. Y.
;
mont case above cited it was held that an & Erie R. R. Co., 27 Barb. 512 Trustees
;
excavation by the company on their own of Wabash & Erie Canal v. Spears, 16
land, so near the line of the plaintiff's Ind. 441 ;
Eaton v. Boston, C. & M. R. R.
that his land, without any artificial weight Co., 51 N. H. 504 Ashley v. Port Huron,
;
thereon, slid into the excavation, would 35 Mich. 296. So, where, by blasting
render the company liable for the injury ; rock in making an excavation, the frag-
the plaintiff being entitled to the lateral ments are thrown upon adjacent build-
support for his land. But if to bridge a ings so as render their occupation
to
cut made by a railroad in crossing a street unsafe. HayCohoes Co., 2 N. Y. 159
v. ;
held not a taking for a new use, though v. Steubenville & Indiana R. R. Co.,
access to the lot is cut off. Henderson v. 4 Ohio St. 399 Sunbury & Erie R. R.
;
Minneapolis, 32 Minn. 319, 20 N. W. 322; Co. v. Hummel, 27 Pa. St. 99; George-
Conklin v. New York, &c. Ry. Co., 102 town, &c. R. R. Co. v. Eagles, 9 Col. 544,
N. Y. 107, 6 N. E. 663. The same prin- 13 Pac. 696. See Mairs v. Manhattan,
ciple is followed in Uline v. New York, &c. Ass., 89 N. Y. 498. There has been
&c. R. R. Co., 101 N. Y. 98, 4 N. E. 536. some disposition to hold private cor-
1
Susquehanna Canal Co. v. Wright, porations liable for all incidental damages
9 W. & S. 9 Monongahela Navigation
;
caused by their exercise of the right of
Co. v. Coons, 6 W. & S. 101. But see eminent domain. See Tinsman v. Belvi-
Lee v. Pembroke Iron Co., 57 Me. 481, dere & Delaware R. R. Co., 26 N. J. 148;
2 Am. Rep. 59 Trenton Water Power
;
Alexander v. Milwaukee, 16 Wis. 247.
Co. v. Roff, 36 N. J. L. 343; Red [[Opening of street adjacent to one's
River Bridge Co. v. Clarksville, 1 Sneed, property, thus bounding it by streets on
176, 60 Am. Dec. 143.] In any case, if three sides and diminishing its value by
parties exercising the right of eminent rendering it unsightly to the public and
domain shall cause injury to others by " "
destroying its privacy, is not a taking
a negligent or improper construction of or "damaging" under the constitution.
their work, they may be liable in dam- Peel v. City of Atlanta, 85 Ga. 138, 11
ages. Rowe Granite Bridge Corpora-
v. S. E. 582, 8 L. R. A. 787.]
2 Gould v.
tion, 21 Pick. 348 Sprague v. Worcester,
;
Hudson River R. R. Co., 6
13 Gray, 193. And if a public work is of N. Y. 522. And see Stevens w. Paterson,
a character to necessarily disturb the oc- &c. R. R. Co., 34 N. J. 532; Tomlin v.
cupation and enjoyment of his estate by Dubuque, &c. R. R. Co., 32 Iowa, 100,
CH. XV.] THE EMINENT DOMAIN. 787
cut off a riparian proprietor from access sippi, &c. Co., 28 Minn. 534, 11 N. W.
to the navigable water, they seem to us to 114. And see cases, p. 786, note 1. The
justify an appropriation of his property legislature cannot authorize a telegraph
without compensation for even those
; company to erect its poles on the lands
courts which hold the fee in the soil under of a railroad company without compensa-
navigable waters to be in the State admit tion. Atlantic, &c. Telegraph Co. v.
valuable riparian rights in the adjacent Chicago, &c. R. R. Co., 6 BUs. 158. A
proprietor. See Yates v. Milwaukee, 10 railway company cannot give authority
Wall. 497 Chicago, &c. R.R. Co. v. Stein,
;
to a telegraph or telephone company to
75 111. 41. Compare Pennsylvania R. R. construct a line of telegraph or telephone
Co. v. New York, &c. R. R. Co., 23 along its right of way as against the
N. J. Eq. 157. In the case of Railway adjoining proprietor whose lands have
Co. v. Renwick, 102 U. S. 180, it is de- been condemned for railway purposes
cided expressly that the land under the only. American T. & T. Co. v. Smith,
water in front of a riparian proprietor and 71 Md. 535, 18 All. 910, 7 L. R. A. 200.
beyond the line of private ownership, Contra, if constructed in good faith for
cannot be taken and appropriated to a the use and benefit of the railway in the
public purpose without making compen- carrying on of its railway business. 7rf.]
sation to the riparian proprietor. This is The erection of telephone, telegraph, and
a very sensible and just decision. See, in electric wire poles on a highway is a new
the same line, Langdbn v. Mayor, 93 use of it. Board of Trade Tel. Co. v.
N. Y. 129; Kingsland v. Mayor, 110 N. Y. Barnett, 107 111. 507 Metr. Tel. &c., Co.
;
ampton Co., 14 Conn. 146; Pumpelly v. Julia B'ld'g Ass. v. Bell Tel. Co 88 Mo. ,
for public use without compensation. of St. Louis v. Hill, 116 Mo. 527, 22 S. \V.
788 CONSTITUTIONAL LIMITATIONS. [CII. XV.
the tide does not ebb and flow is property, and, if taken, must be
1
paid for as such. So with an exclusive right of wharfage upon
2
tide water. So with the right of the owner of land to use an
adjoining street, whether he is owner of the land over which the
3
street is laid out or not. So with the right of pasturage in
4
streets, which belongs to the owners of the soil. So a partial
destruction or diminution of value of property by an act of the
government which directly and not merely incidentally affects it,
is to that extent an appropriation. 5
It sometimes becomes important, where a highway has been
laid out and opened, to establish a different and higher grade of
way upon the same line, with a view to accommodate an increased
public demand. The State may be willing to surrender the con-
trol of the streets in these cases, and authorize turnpike, plank-
6 Atl. 805. So, if in grading a street an The contrary has been held in New
embankment is placed so as to take up "York as to all highways laid out while
part of an abutting lot, and injure a such a statute was in existence the ;
house on it. Vanderlip v. Grand Rapids, owner being held to be compensated for
73 Mich. 522, 16 Am. St. 597, and note, the pasturage, as well as for the use
3 L. R. A. 247, 41 N. W. 677 Broadwell
;
of the land for other purposes, at the
v. Kansas City, 75 Mo. 213. Use of time the highway was laid out. Griffin
means to increase the flow of
artificial v. Martin, 7 Barb. 297 ; Hardenburgh v.
natural gas to the injury of others sup- Lock wood, 25 Barb. 9. See also Ker-
plied from some common reservoir, is a whacker v. Cleveland, C. & C. R. R. Co.,
taking entitling to compensation. Manu- 3 Ohio St. 172, where it was held that by
facturer's G. & O. Co. v. Indiana N. G. & ancient custom in that State there was a
O. Co., 155 Ind. 461, 57 N. E. 912, 50 right of pasturage by the public in the
L. R. A. 768. highways.
1 Varick v. Smith, 9 Paige, 547. See 6 See
Glover v. Powell, 10 N. J. Eq.
Tales v. Milwaukee, 10 Wall. 497. 211 Eaton v. Boston, C. & M. R. R. Co.,
;
2
Murray Sharp, 1 Bosw. 539.
. 51 N. H. 504. Even a temporary right to
8 Lackland v. North Missouri R. R. the possession of lands cannot be given
Co.,
31 Mo. 180. See supra, p. 785, note 3. by the legislature without provision for
Abutters, as members of the public who compensation. San Mateo Water Works
have not bought by a plat, have no right v. Sharpstein, 50 Cal. 284. A
provision
of action for the obstruction of a street in the charter of a corporation that it shall
under State authority. Gerhard v. See- not be liable for diverting water is void.
konk, &c. Com., 15 R. I. 334, 5 Atl. 199. Harding v. Stamford Water Co. ,41 Conn.
4 Tonawanda R. R. Co. v.
Munger, 6 87. ^Destruction of crops planted after
Denio, 255 Woodruff v. Neal, 28 Conn.
;
the location of a railway, but before con-
165. In the first case it was held that a demnation or compensation, entitles the
by-law of a town giving liberty to the tenant planting them to compensation.
inhabitants to depasture their cows in Lafferty v. Schuylkill River E. S. Ry.
the public highways under certain regula- Co., 124 Pa. St. 297, 16 Atl. 869, 3 L. R. A,
tions, passed under the authority of a 124.3
general statute empowering towns to
CH. XV.] THE EMINENT DOMAIN. 789
to pay toll, they are supposed to be, and generally are, fully com-
occupy any part of the highway exclusively for any longer period
of time than was necessary for that purpose, and the stoppages
incident thereto. But a railroad company takes exclusive and
permanent possession of a portion of the street or highway. It
lays down its rails upon, or imbeds them in, the soil, and thus
appropriates a portion of the street to its exclusive use, and for
its own particular mode of conveyance. In the one case, all
persons may travel on the street or highway in their own common
modes of conveyance. In the other no one can travel on or over
the rails laid down, except the railroad company and with their
cars specially adapted to the tracks. In one case the use is
general and open alike to all. In the other it is peculiar and
exclusive.
" It is true that the actual use of the street by the railroad may
not be so absolute and constant as to exclude the public also from
its use. With a single track, and particularly if the cars used
upon it were propelled by horse- power, the interruption of the
public easement in the street might be very trifling and of no
practical consequence to the public at large. But this considera-
tion cannot affect the question of right of property, or of the
increase of the burden upon the soil. It would present simply a
N. J. 592; Donnaher's Case, 16 Miss. 649; Pa. St. 339 Snyder v. Pennsylvania R.
;
Theobold v. Louisville, &c. Ry. Co., 66 R. Co., 55 Pa. St. 340; Peddicord v. Bal-
Miss. 279, 6 So. 230 Adams v. Chicago,
; timore, &c. R. R. Co., 34 Md. 463 Hous- ;
&c. R. R. Co., 39 Minn. 286, 39 N. W. ton, &c. R. R. Co. v Odum, 63 Tex. H43,
629 Phipps v. West Md. R. R. Co., 66
;
2 Am. & Eng. R. R. Cas. 603 West Jer-
;
Md. 319; Cox v. Louisville, &c. R. R. Co., sey R. R. Co. v. Cape May, &c. Co., 34
48 Ind. 178. In Inhabitants of Spring- N. J. Eq. 164 Terre Haute & L. R. R.
;
field v. Connecticut River R. R. Co., 4 Co. v. Bissell, 108 Ind. 113, 9 N. E. 144;
Cush. 71, where, however, the precise Indianapolis, B. & W. Ry. Co. v. Eberle,
question here discussed was not involved, 110 Ind. 542, 11 N. E. 467; [Reichert v.
Chief Justice Shaw, in comparing rail- St. Louis & S. Ry. Co., 51 Ark. 491, 11
roads with common highways, says : S. W. 696, 5 L. R. A. 183.] A gas-light
"
The two uses are almost, if not wholly, company cannot be authorized to lay its
inconsistent with each other, so that tak- pipes in a country highway without con-
ing the highway for a railroad will nearly sent of or compensation to the owners of
supersede the former use to which it had the fee. Bloomfield, &c. Co. v. Calkins,
been legally appropriated." See also 62 N. Y. 386. Nor may a pipe line for
Presbyterian Society of Waterloo v. Au- natural gas be laid. Sterling's Appeal,
burn & Rochester R. R. Co., 3 Hill, 567 ; 111 Pa. St. 35, 2 Atl. 105; pDncaid v.
Craig v. Rochester, &c. R. R. Co., 39 Barb. Indianapolis N. G. Co., 124 Ind. 577, 24
494; Schurmeier v. St. Paul, &c. R. R. N. E. 1066, 8 L. R. A. 602.]
Co., 10 Minn. 82 Gray v. First Division,
;
2 Ford v. Chicago & Northwestern
&o., 13 Minn. 315; Central R, R. Co. v. R. R. Co., 14 Wis. 609, 616; followed in
Hetfleld, 29 N. J. 206; South Carolina Pomeroy v. Chicago & M. R. R. Co., 16
R. R. Co. v. Steiner, 44 Ga. 546. Under Wis. 640. The later cases allow compen-
the California Constitution the owner of sation only when the fee of the street is
the fee must be compensated. Weyl v. in the owner and there is an actual phys-
Sonoma R. R. Co., 69 Cal. 202, 10 Pac. ical interference with the property in
610. Compare cases, p. 810, note, post. the strict sense Heiss v. Milwaukee, &c.
:
v.Chicago, &c. K. R. Co., 66 Wis. 403, 14 the railway privileges are not an encroach-
N. W. 273, 60 Wis. 264, 19 N. W. 66, ment on the estate remaining in the owner
where part of the property was actually of the soil, and that the new mode of en-
taken. In many of the cases noted in joying the public easement will not en-
the preceding note the right to compen- ablehim rightfully to assert a claim to
sation is based upon the ownership of damages therefor. On the contrary, if
the fee. In Pennsylvania it is held com- the true intent and efficacy of the original
petent for the legislature, though not condemnation was not to subject the land
necessary, to provide compensation to to such a burden as will be imposed upon
land-owners when a highway is taken it when it is confiscated to the uses and
the property is not taken, but the use tween a highway and a railway, that
only, the right of the public is limited statutes conferring a right to establish
which the
to the use, the specific use, for the former include an authority to con-
proprietor has been divested of a com- struct the latter.
plete dominion over his own estate. These "The term 'public highway,' as em-
are propositions which are no longer open ployed in such of our statutes as convey
to discussion. But it is contended that the right of eminent domain, has cer-
land once taken and still held for high- tainly a limited import. Although, as
way purposes may be used for a railway suggested at the bar, a navigable river or
without exceeding the limits of the ease- a canal is, in some sense, a public high-
ment already acquired by the public. If way, yet an easement assumed under the
this is true, if the new use of the land is name of a highway would not enable the
within the scope of the original seques- public to convert a street into a canal.
tration or dedication, it would follow that The highway, in the true meaning of
CH. XV.] THE EMINENT DOMAIN. 793
It would appear from the cases cited that the weight of judicial
authority is against the power of the legislature to appropriate
"
the word, would be destroyed. But as There is an important practical rea-
no such destruction of the highway is son courts should be slow to recog-
why
necessarily involved in the location of a nize a legal identity between the two uses
railway track upon it, we are pressed to referred to. They are by no means the
establish the legal proposition that a high- same thing to the proprietor whose land
way, such as is referred to in these stat- is taken; on the contrary, they suggest
utes, means or at least comprehends a widely different standards of compensa-
railroad. Such a construction is possible tion. One can readily conceive of cases
only when it is made to appear that there where the value of real estate would be
is a substantial practical or technical iden- directly enhanced by the opening of a
tity between the uses of land for highway highway through it; while its confisca-
and for railway purposes. tion for a railway at the same or a subse-
" No one can fail to see that the terms quent time would be a gross injury to the
'
estate, and a total subversion of the mode
'
'
railway and highway are not conver-
'
tible,or that the two uses, practically con- of enjoyment expected by the owner
sidered, although analogous, are not iden- when he yielded his private rights to the
tical. Land as ordinarily appropriated public exigency.
"
by a railroad company is inconvenient, But essential distinctions also exist
and even impassable, to those who would between highway and railway powers, as
use it as a common highway. Such a conferred by statute, distinctions which
corporation does not hold itself bound to are founded in the very nature of the
make or to keep its embankments and powers themselves. In the case of the
bridges in a condition which will facili- highway, the statute provides that, after
tate the transitus of such vehicles as ply the observance of certain legal forms, the
over an ordinary road. A practical dis- locality in question shall be forever sub-
similarity obviously exists between a servient to the right of every individual
railway and a common highway, and is in the community to pass over the thor-
recognized as the basis of a legal distinc- oughfare so created at all times. This
tion between them. It is so recognized right involves the important implication
on a large scale when railway privileges that he shall so use the privilege as to
are sought from legislative bodies, and leave the privilege of all others as unob-
granted by them. If the terms 'high- structed as his own and that he is there-
;
way' and 'railway* are synonymous, or fore to use the road in the manner in
ifone of them includes the other by legal which such roads are ordinarily used, with
implication, no act could be more super- such vehicles as will not obstruct, or re-
fluous than to require or to grant author- quire the destruction of the ordinary
ity to construct railways over localities modes of travel thereon. He is not au-
already occupied as highways. thorized to lay down a railway track, and
" If a
legal identity does not subsist run his own locomotive and car upon it.
between a highway and a railway, it is No one ever thought of regarding high-
illogical to argue that, because a railway way acts as conferring railway privileges,
may be so constructed as not to interfere involving a right in every individual, not
with the ordinary uses of a highway, and only to break up ordinary travel, but also
so as to be consistent with the highway to exact tolls from the public for the priv-
right already existing, therefore such a ilege of using the peculiar conveyances
new use is included within the old use. adapted to a railroad. If a right of this
Itmight as well be urged, that if a com- description is not conferred when a high-
mon, or a canal, laid out over the route way authorized by law,
is it is idle to pre-
of a public road, could be so arranged as tend that any proprietor is divested of
to leave an ample roadway for vehicles such a right. It would seem that, under
and passengers on foot, the land should such circumstances, the true construction
be held to be originally condemned for of highway laws could hardly be debata-
a canal or a common, as properly incident ble, and that the absence of legal identity
to the highway use.
794 CONSTITUTIONAL LIMITATIONS. [oil. XV.
public use to which the land was originally subjected when taken
for a street. 3 The same distinction between horse railways and
those operated by steam is also taken in recent New York cases. 4
between the two uses of which we speak intimated by this court in a former case
was patent and entire. (see opinion of Hinman, J., in Nicholson
"Again, no argument or illustration v. N. Y. & N. H. R. R. Co., 22 Conn. 74,
can strengthen the self-evident proposi- 85), that to subject the owner of the soil
tion that, when a railway is authorized of a highway to a further appropriation
over a public highway, a right is created of his land to railway uses is the imposi-
against the proprietor of the fee, in favor tion of a new servitude upon his estate,
of a person, an artificial person, to whom and isan act demanding the compensa-
he before bore no legal relation whatever, tion which the law awards when land is
It is understood that when such an ease- taken for public purposes." And see
inent is sought or bestowed, a new and South Carolina R. R. Co. v. Steiner, 44
independent right will accrue to the rail- Ga. 546.
1
road corporation as against the owner of Wager v. Troy Union R. R. Co., 25
the soil, and that, without any reference N. Y. 526.
2
to the existence of the highway, his land Craig v. Rochester City & Brighton
will forever stand charged with the ac- R. R. Co., 39 Barb. 449.
cruing servitude. Accordingly, if such a
8
Elliott v. Fair Haven & Westville
still insistupon the express and indepen- People v. Kerr, 37 Barb. 357, 27 N. Y.
dent grant of an easement to itself, ena- 188. See Kellinger v. Railroad Co., 60
bling it to maintain its own road on the N. Y. 206. A horse railroad in a street
site of the abandoned highway. We are is not an additional servitude. Hodges
of opinion, therefore, as was distinctly v. Bait. Pass. Ry. Co., 58 Md. 603 ;Texas
CH. XV.] THE EMINENT DOMAIN. 795
But whether the mere difference in the motive power will make
different principles applicable is a question which the courts will
probably have occasion to consider further. Conceding that the
interests of individual owners will not generally suffer, or their
use of the highway be incommoded by the laying down and use
of the track of a horse railway upon it, there are nevertheless
cases where it might seriously impede, if not altogether exclude,
the general travel and use by the ordinary modes, and very greatly
reduce the value of all the property along the line. Suppose, for
instance, a narrow street in a city, occupied altogether by whole-
sale houses, which require constantly the use of the whole street
in connection with their business, and suppose this to be turned
over to a street-railway company, whose line is such as to make
the road a principal avenue of travel, and to require such constant
passage of cars as to drive all drayage from the street. The
corporation, under these circumstances, will substantially have a
monopoly in the use of the street; their vehicles will drive the
business from it, and the business property will become compara-
tively worthless. And if property owners are without remedy in
such case, certainly a very great hardship upon them, and a
it is
& P. Ry. Co. e. Rosedale St. Ry. Co., 64 Metrop. St. Ry. Co., 82 Ga. 320, 9 S. E.
Tex. 80 Randall v. Jacksonville, &c. Co.,
;
1078.
19 Fla. 409 Eichels v. Evansville St. Ry.
;
*
Murray v. County Commissioners, 12
Co., 78 Ind. 261 ;
and though the
this Met. 455, per Shaw, Ch. J.
Imlay v. Union Branch R. R. Co., 26
authorized to use steam as a 2
company is
and the land having been originally acquired under the right of
eminent domain, and the trust being publici juris, it was under
the unqualified control of the legislature, and any appropriation
of it to public use by legislative authority could not bo regarded
1
People v. Kerr, 37 Barb. 357, 27 N. People v. Kerr, the several judges seem
Y. 188. The same ruling as to the right generally to have agreed on the principle
of the city to compensation was had in as stated in the text, it is not very clear
Savannah, &c. R. 11. Co. v. Mayor, &c. how much importance was attached to the
of Savannah, 45 Ga. 602. And see Brook- fact that the fee to the street was in the
lyn Central, &c. R. 11. Co. v. Brooklyn city, nor that the decision would have
City R. R. Co., 33 Barh. 420 Brooklyn ; been different if that had not been the
& Newtown R. R. Co. v. Coney Island case. Where land has been dedicated to
R. R. Co., 05 Barb. 364 People v. Kerr,
; a city as a levee, the legislature may
37 Barb. 357 Chapman v. Albany &
;
authorize its use by a railroad without
Schenectady R. R. Co., 10 Barb. 360. compensation to the city, but the one
And as to the title reverting to the ori- who has dedicated it must be compen-
ginal owner, compare Water Works Co. sated for the injury to his ultimate fee.
v. Burkhart, 41 Ind. 364 Gebhardt v.
;
Portland & W. V. R. R. Co. v. Portland,
Reeves, 75 111. 301 Heard v. Brooklyn,
;
14 Oreg. 188, 12 Pac. 265.
60 N. Y. 242. Although, in the case of
CH. XV.] THE EMINENT DOMAIN. 797
if, in consequence of the railroad, they are cut off from the
1
ordinary use of the street. In Iowa it is held that where the
title to city streets is in the corporation in trust for the public,
cut off, he is not entitled to compensation. gan v. Des Moines, &c. Ry. Co., 64 Iowa,
Dwenger v. Chicago, &c. Ry. Co., 98 Ind. 589, 21 N. W. 96; a diagonal crossing is.
153; Terre Haute & L. R. R. Co. v. Bls- Enos v. Chicago, &c. Ry. Co., 78 Iowa,
sell, 108 Ind. 113, 9 N. E. 144 Indianapo-
; 28, 42 N. W. 575.
lis, B. & W. Ry. Co. v. Eberle, 110 Ind.
3 Clinton v. Cedar
Rapids, &c. R. R.
542, 11 N. E. 467. See also Street Rail- Co., 24 Iowa, 455.
4
way v. Cumminsville, 14 Ohio St. 523 ; Stanley v. Davenport, 54 Iowa, 463,
State v. Cincinnati Gas, &c. Co., 18 Ohio 2 N. W. 1064, 6 N. W. 706, 37 Am. Rep.
St. 262. In Nebraska although the fee is 216.
6
in the city, the right of access, which is Moses v. Pittsburgh, Fort Wayne,
property, may not be cut off without com- & Chicago R. R. Co., 21 111. 516, 522.
pensation. Burlington & M. R. R. R. Co. We quote from the opinion of Caton, Ch.
"
v. Reinhackle, 15 Neb. 279, 18 N. W. 69 ;
J. : the city charter, the common
By
Omaha V. R. R. Co. v. Rogers, 16 Neb. council vested with the exclusive con-
is
117, 19 N. W. 603. If egress and ingress trol and regulation of the streets of the
are not disturbed, no action lies in such city, the fee-simple title to which we have
case in Tennessee. Iron Mt. R. R. Co. already decided is vested in the municipal
v. Bingham, 87 Tenn. 522, 11 S. W. 705. corporation. The city charter also em-
The rule in Kansas is similar. Ottawa, powers the common council to direct and
&c. R. R. Co. v. Larson, 40 Kan. 301, 19 control the location of railroad tracks
Pac. 661; Kansas, N. & D. Ry. Co. v. within the city. In granting this permis-
Cuykendall, 42 Kan. 234, 21 Pac. 1051 ; sion to locate the track in Beach Street,
Central B. U. P. R. R. Co. v. Andrews, the common council acted under an ex-
30 Kan. 590, 2 Pac. 677. press power granted by the legislature.
798 CONSTITUTIONAL LIMITATIONS. [CH. XV.
been decided that an abutting lot-owner who does not own the
soil of a city street cannot recover for any injury to his freehold
So that the defendant has all the right ened by such uncouth objects. Or is the
which both the legislature and the com- objection not in the motive power used,
mon council could give it, to occupy the but because the carriages are larger than
street with its track.But the complain- were formerly used, and run upon iron, and
ant assumes higher ground, and claims are confined to a given track in the street.
that any use of the street, even under Then street railroads must not be ad-
the authority of the legislature and the mitted; they have large carriages which
common council, which tends to deterio- run on iron rails, and are confined to a
rate the value of his property on the given track. Their momentum is great,
street, is a violation of that fundamental and may do damage to ordinary vehicles
law which forbids private property to be or foot passengers. Indeed we may sup-
taken for public use without just com- pose or assume that streets occupied by
pensation. This is manifestly an erro- them are not so pleasant for other car-
neous view of the constitutional guaranty riages, or so desirable for residences or
thus invoked. It must necessarily hap- business stands, as if not thus occupied.
pen that streets will be used for various But for this reason the property owners
legitimate purposes, which will, to a great- along the street cannot expect to stop
er or less extent, discommode persons re- such improvements. The convenience
siding or doing business upon them, and of those who live at a greater distance
just to that extent damage their prop- from the centre of a city requires the
erty ;
and yet such damage is incident to use of such improvements, and for their
all city property, and for it a party can benefit the owners of property upon the
claim no remedy. The common council street must submit to the burden, when
may appoint certain localities where the common council determine that the
hacks and drays shall stand waiting for public good requires it. Cars upon street
employment, or where wagons loaded railroads are now generally, if not uni-
with hay or wood, or other commodities, versally, propelled by horses, but who
shall stand waiting for purchasers. This can say how long it will be before it will
may drive customers away from shops or be found safe and profitable to propel
stores in the vicinity, and yet there is no them with steam or some other power
remedy for the damage, A street is besides horses ? Should we say that this
made for the passage of persons and prop- road should be enjoined, we could ad-
erty ;
and the law cannot define what vance no reason for it which would not
exclusive means of transportation and apply with equal force to street railroads,
passage shall be used. Universal expe- so that consistency would require that
rience shows that this can best be left to we should stop all. Nor would the evil
the determination of the municipal au- which would result from the rule we must
thorities, who are supposed to be best lay downstop here. We
must prohibit
acquainted with the wants and necessities every use of a street which discommodes
of the citizens generally. To say that a those who reside or do business upon it,
new mode of passage shall be banished because their property will else be dam-
from the streets, no matter how much aged. This question has been presented
the general good may require it, simply in other States, and in some instances,
because streets were not so used in the where the public have only an easement
days of Blackstone, would hardly com- of the street, and the owner of the ad-
port with the advancement and enlight- joining property still holds the fee in the
enment of the present age. Steam has street, it has been sustained but the
;
but lately taken the place, to any extent, weight of authority, and certainly, 'in our
of animal power for land transportation, apprehension, all sound reasoning, is the
and for that reason alone shall it be ex- other way." See also Chicago, &c. R. R.
pelled the streets ? For the same reason Co. p. Joliet, 79 III. 25 and Harrison v.
;
camels must be kept out, although they New Orleans, &c. Ry. Co., 34 La. Ann.
might be profitably employed. Some 462, where a like ruling is made.
fancy horse or timid lady might be fright- All the cases from which we have
CH. XV.] THE EMINENT DOMAIN. 799
quoted assume that the use of the street an injury claimed to result from the erec-
by the railroad company is still a public tion of an elevated railway in the street.
use ;
and an appropriation of a street, or There was no claim that the abutter, or
of any part of it, by an individual or com- any predecessor in title, at the time of the
pany, for his or their own private use, injury complained of, or at any prior
unconnected with any accommodation of time, owned any
interest or right in the
the public, would not be consistent with street, except such as was appurtenant to
the purpose for which it was originally ownership of lands abutting, which were
acquired. Mikesell v. Durkee, 34 Kan. never, so far as was made to appear, a
609, 9 PJIC. 278. See Brown v. Duplessis, part of the lands in the street. It was
14 La. Ann. 842; Green v. Portland, 32 held in the case that an abutting owner
Me. 431. had such property rights in the street as
"
1
Grand Rapids, &c. R. R. Co. v. Hei- might be taken " against the prohibi-
sel, 38 Mich. 62, 31 Am. Rep. 306; Same tion of the constitution, and this though
v.Same, 47 Mich. 393, 11 N. W. 212. that which results in the injury is done
The rule seems to have been settled in under legislative sanction. Andrews, J.,
New York by the case of Fobes v. Rome, "
says : The judgments for damages
W. & O. R. Co., 121 N. Y. 505, 24 N. E. which have been recovered and sustained
919, 8 L. R. A. 453, that, as against abut- against the elevated roads do not, and
ting owners, having no title in the bed of cannot, rest upon the ground that the
the street, the legislature might author- roads are public nuisances, for they were
ize a steam surface railway therein with- constructed pursuant to statutes; and
out compensation to the abutting owner. besides a public nuisance does not create
This broad statement of the rule is sub- a private cause of action unless a private
ject to the limitation, however, that where right exists and is injured by it specially.
the construction rendered ingress and The only remaining ground upon which
egress seriously difficult or dangerous, the they may and do stand is that by the
owner is entitled to compensation. Rein- common law the plaintiffs had private
ing v. N. Y., L. E. & W. R. Co., 128 N. Y. rights in the streets before the railways
157, 28 N. E. 640, 14 L. R. A. 133. This were built or authorized to be built. It
case reviews prior cases.] is clear,we think, that these rights were
Story t>. New York Elevated Rail-
2
not created by the statutes under which
way Co., 90 N. Y. 122. In Lahr v. Metr. the corporations were organized, nor by
Elev. R. R. Co., 104 N. Y. 268, 10 N. E. the construction of the roads ; nor do
528, the doctrine was extended to a case they exist by virtue of the judgment in
where there was no such covenant and the Story's Case .(90 N. Y. 122); but they
plaintiff whose lot only went to the street existed anterior to the construction of the
line held under mesne conveyances, from roads, and have simply been defined and
one whose land had been condemned for protected by the decisions made in the
use as a public street forever. QAben- litigations against these corporations.
droth v. Manhattan R, Co., 122 N. Y. 1, 25 ... It then becomes material to inquire
N. E. 496, 19 Am. St. 461, 11 L. R. A. whether rights of action are cut off
"
634, one of the so-called Elevated Rail- because the road was constructed pursu-
" The consti-
way Cases presented the question of ant to legislative authority.
'
compensation of an abutting owner for tution of this State provides Nor shall
800 CONSTITUTIONAL LIMITATIONS. [CH. XV.
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
1
the original appropriation ; and if this is so, the owner must be
private property be taken for public use erty of an abutting owner is damaged, or
without just compensation.' Art. 1, sec. 6. even easements interfered with in con-
its
premises, his rights are taken for public Railway Cases are distinguished in this
"
use' within the meaning of the constitu- language :
They proceed upon the prin-
tion. follows that the authority con-
It ciple, that, as against abutting owners,
ferred by the legislature to construct the the railroad was unlawfully in the street,
road is not a defence to the action." It is as they had not consented to the construc-
to be noticed that this interpretation of tion or conveyed the right to interfere
the terms "taking of private property" with their easements. But in the case at
does not necessarily involve an actual bar, we have an express finding that the
physical invasion of lands of the claimant defendant had acquired the right as
in order to entitle him to compensation against the plaintiff to use the street for
under the constitution, and that it is not the operation of the railroad. Hence the
necessary that the constitution should principles upon which that mass of litiga-
provide that compensation shall be made tion proceeded have no application to
" or " "
for " injury damage in order that this case." Citing Conabeer v. N. Y. C.
compensation can be coerced by an abut- & H. R. R. Co., 156 N. Y. 474, 51 N. E.
ting owner, though he have no interest 402. See Lewis v. New York & H. R.
in the fee of the street, for injury to his Co., 162 N. Y. 202, 66 N. E. 540.]
right to ingress and egress, to access of
1
On this subject see, in addition to
light and air, or for depreciation in value the other cases cited, West v. Bancroft,
of the abutting property, by reason of 32 Vt. 367 ; Kelsey v. King, 32 Barb. 410 ;
the construction and operation of the Ohio & Lexington R. R. Co. v. Apple-
improvement in the public street. But gate, 8 Dana, 289 Hinchman v. Paterson
;
see these Elevated Railway Cases distin- Horse R. Co., 17 N. J. Eq. 75; Covington
guished from the cases growing -out of St. R. Co. v. Covington, &c. R. Co. (Ky.),
" Park Avenue Am. Law Reg.
the so-called Improve- 19 N. s. 765. When, how-
ment " Cases in the same court Fries v. : ever, land is taken or dedicated specifi-
New York & H. R. Co., 169 N. Y. 270, 62 cally fora street, it would seem, although
N. E. 358 Muhlker v. N. Y. & H. R. Co.,
;
the fee is taken, it is taken for the re-
173 N. Y. 549, 66 N. E. 558. O'Brien, J., stricted use only ; that isto say, for such
in the Fries Case, says : The law is well uses as streets in cities are commonly put
settled in this State that where the prop- to. See State v. Laverack, 34 N. J. 201 ;
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 the same At
time must be confessed that it is difficult to determine precisely
it
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
Kerr, 27 N. Y. 188, 211, per Wright, J. ; possession of the original owner is ex-
Plitt v. Cox, 43 Pa. St. 486. cluded and in the case of city streets,
;
into a canal ;
and the purpose of the orig- is not in the abutter. Railway Co. v.
inal dedication or appropriation would Lawrence, 38 Ohio St. 41. He has, inde-
thereby be entirely defeated. Is it not pendent of the ownership of the soil, an
more consistent with established rules to interest in the street appurtenant to his
hold that a dedication or appropriation to lot, for the admission of light and air.
one purpose confines the use to that pur- Adams v. Chicago, &c. R. R. Co., 3 J Minn. (
paratively oflittle value. This ease- place to place on the street, a change in
ment, appendant to the lots, unlike any the motive power from horses to steam is
right of one lot-owner in the lot of not a change in the use. Not the motor
another, is as much
property as the lot but the use of the street is the criterion.
itself." Delaware, 7 Ohio
Crawford v. Briggs v. Lewiston, &c. R. R. Co., 79 Me.
St. 450, 469. See some very pertinent 360, 10 Atl. 47. So where cars were run
and sensible remarks on the same subject in trains by steam motors, but the use
tant ;
and it cannot with any justice be regarded as within the
contemplation of the parties when the highway is first established.
1
(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.
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. ;
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.
;
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.
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 streetsby 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, itwas 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. Louis Elev. Co., 82 Mo.
v. St.
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 :
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. ;
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.
:
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 :
and it is precisely upon this ground that appropriation of it to the uses of a mar-
it has been held to be legal. The cases ket would, perhaps, as often be destruc-
rest upon this foundation. That a horse tive of one-half the value of such property.
purpose for which it was originally cre- 249; modified in Lake Erie & Western
ated, and which at the same time is inju- Ry. Co. v. City of Kokomo, 130 Ind. 224,
rious to the proprietor of the soil. Such 29 N. E. 780 ; Minneapolis Western Ry.
certainly has not been the course of judi- Co. i;. Minneapolis & St. Louis Ry. Co.,
cial decision in our own courts. Indeed 61 Minn. 502, 63 N. W. 1035. Part of
the cases appear to be all ranged on the school house site may be taken for a pub-
opposite side. I have shown that the lic way, though such
taking to some
legalization of the use of a street by a extent diminishes its usefulness East- :
horse railroad has been carefully placed hampton v. Hampshire County, 154 Mass.
on the ground that such an appropriation 424, 28 N. E. 298; 13 L. R. A. 157.]
1 In re
of the street was merely a new mode of Boston, &c. R. R. Co., 63 N. Y.
its legitimate and ordinary use. The 457 State v. Montclair R. Co., 35 N. J.
;
rationale adopted excludes by necessary 328 Railroad Co. r. Dayton, 23 Ohio St.
;
implication the hypothesis that the dedi- 610 ; Stanley v. Davenport, 54 Iowa, 463,
cation of a street to a new purpose, incon- 2 N. W. 1064, 6 N. W. 706, 37 Am. Rep.
sistent with its original nature, would be 216; [[Suburban Rap. Trans. Co. v. City
legal with respect to the uncompensated of N. Y., 128 N. Y. 510, 28 N. E. 525, rev. 60
land-owner. But beyond this it has been Hun, 577. Wharves of railway company,
expressly declared that such superadded for public wharves, authority for may be
use would be illegal. In the opinion of implied, if implication is clear. In re
Mr. Justice Haines, in Starr v. Camden Mayor of City of New York, 135 N. Y.
& Atlantic R. R. Co., 24 N. J. 692, it is 253, 31 N. E. 1043, 31 Am. St. 825. Rail-
very explicitly held that the constitution way lands for street crossing with viaduct
of this State would prevent the legislature rather than at grade, not under general
from granting to a railroad company a authority to cross. 111. Cent. Ry. Co. v.
right to use a public highway as a bed City of Chicago, 141 111. 686, 30 N. E.
for their road without first making com- 1044, 17 L. R. A. 530. Railway depot
pensation to the owner of the soil. And grounds for street Cin., Wab. & M. Ry.
:
in the case of Hinchman v. The Paterson Co. v. City of Anderson, 139 Ind. 490, 38
Horse Railroad Co., already cited, Chan- N. E. 167, 47 Am. St. 285, citing previ-
cellor Greene quotes these views, and gives ous Indiana cases and others. Colorado
the doctrine the high sanction of his own E. Ry. Co. v. Union Pac. Ry. Co., 41
approval. See also the Central R. R. Co. Fed. Rep. 293.3 ^ n a case where a
v. Hetfield, 29 N. J. 206." steamboat company's dock was suffered
The learned judge then distinguishes to be taken by a railroad, it was said
phis & C. Ry. Co. v. Birmingham S. & T. Park, &c. R. R. Co. v. Williamson, 91
R. Ry. Co., 96 Ala: 671, 11 So. 642, 18 N. Y. 552, or by purchase: St. Paul
L. R. A. 166.] When by agreement it Union Depot Co. v. St. Paul, 30 Minn.
already has a crossing, a f urtlier one may 359, 15 N. W. 684. Compare New York
be condemned. Chicago & W. I. R. R. 6 L. B. R. R. Co. v. Drummond, 46
Co. v. 111. Centr. R. R. Co., 113 111. 156. N. J. L. 644. Nor may a ditch be located
One railroad may not condemn a strip lengthwise of a railroad right of way.
lengthwise of another without express Baltimore & O. &c. R. R. Co. v. North,
legislative authority. Alexandria & F. 103 Ind. 486, 3 N. E. 144. Without such
Ry. Co. o. Alexandria, &c. R. R. Co., 75 authority a railroad may not condemn
Va. 780 Barre R. R. Co. v. Montpelier,
;
land dedicated as a levee :
Oregon Ry.
&c. R. R. Co., 61 Vt. 1, 17 Atl. 923, Co. v. Portland, 9 Oreg 231 nor a school;
4 L. R. A. 785; [Seattle & M. Ry. Co. district, a poor farm for school site. Ap-
v. State, 7 Wash. 150, 34 Pac. 651, 38 peal of Tyrone School Dist, 15 Atl. 667.
Am. St. 866, 22 L. R. A. 217 Minn. & ; The existing usemust be actual and in
St. Louis Ry. Co. v. Minn. West. Ry. Co., good faith. Rochester, H. & L. R. R. Co.
61 Minn. 502, 63 N. W. 1035 In re Provi-
;
v. NewYork, &c. Co., 110 N. Y. 128, 17
dence & W. Ry. Co., 17 R. I. 324, 21 Atl. N. E. 680 Matter of Rochester H. & L.
;
965] Nor may it take a considerable R. R. Co., Id. 119, 17 N. E. 678; New
portion of another's yard unless abso- York & A. R. R. Co. v. New York, &c.
lutely necessary. Appeal of Sharon Ry., R. R. Co., 11 Abb. N. C. 386. See also
122 Pa. St. 533, 17 Atl. 234,9 Am. St. 133, cases, p. 757, note 3, ante. When for a
and note, 137. But see Chicago & N. W. way land already used for that purpose is
Ry. Co. v. Chicago, &c. R. R. Co., 112 111. taken, everything upon it is also taken ;
589. As to the right of condemnation such as flagstones, bridges, culverts,
where a track is alreadjr laid in a narrow &c. and the assessment of damages
;
sonville, &c. R. R. Co., 82 Ala. 297, 2 So. Commissioners, 64 Me. 408 also any ;
Co. v. Norwich, &c. R. R. Co., 138 Mass. 856. And see Hatcli v. Vermont Central
277. Streets may be opened across R. R. Co., 25 Vt. 49; Bellinger f. New
tracks St. Paul, M. & M. Ry. Co. v.
: York Central R. R Co.. 23 N. Y. 42;
Minneapolis, 35 Minn. 141, 27 N. W. 500 ;
Gardner v. Newburg, 2 Johns. Ch. 162,
Pres't &c. D. & H. C. Co. v. Whitehall, 90 7 Am. Dec. 526; Thunder Bay, &c. Co.
N. Y. 21 hut not, without express au-
; r. Spepch'y, 31 Mich. 336; Emporia v.
thority, across necessary depot grounds Soden, 25 Kan. 588, 37 Am. Rep. 265.
acquired by condemnation. Prospect
808 CONSTITUTIONAL LIMITATIONS. [CH. XV.
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,
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 ;
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 ;
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.
ages from which they had been previously 161, 8 Sup. Ct. Rep. 820; Rude v. St.
exempt," when for doing the same act Louis, 93 Mo. 408, 6 S. W. 257. To the
an individual would have been liable. same effect is Trinity & S. Ry. Co. v.
Edmundson Pittsburgh, &c. R. R. Co.,
r. Meadows, 73 Tex. 32, 3 L. R. A. 565, 11
Ill Pa. St. 316, 2 Atl. 404. "Injured" S. W. 145; [Austin v. Augusta T. Ry.
means such legal wrong as would have Co., 108 Ga. 671, 34 S. E. 852,47 L. R. A.
been the subject of an action for damages 755. To " damage " property within the
at common law. Pennsylvania R. R. Co. meaning of that term as used in the
v.Marchant, 119 Pa. St. 541, 13 Atl. 690; Georgia constitution there must be some
Pa. S. V. R. R. Co. v. Walsh, 124 Pa. St. physical interference with property or
544, 17 Atl. 186. "In all cases, to war- with a right or use appurtenant to prop-
rant a recovery it must appear that there erty. A
railway company is not liable,
has been some direct physical disturbance therefore, to the owner of real property
of a right, either public or private, which for diminution in the market value re-
the plaintiff enjoys in connection with his sulting from the making of noise or
CH. XV.] THE EMINENT DOMAIN. 811
pensation. But if by reason of the near Gainesville, H. & W. Ry. Co. v. Hall, 78
location of a turn-table this depreciation Tex. 169, 14 S. W. 259, 9 L. R. A. 298.]
2 Hot
is unusual he is entitled to compensation. Springs R. R. Co. v. Williamson,
Louisville Ry. Co. v. Foster, 22 Ky. L. 45 Ark. 429 Columbus & W. Ry. Co. w.
;
change of grade is held to cover only R. G. Ry. Co. v. Bourne, 11 Col. 59, 16
such alterations as could not have been Pac. 839 McMahon v. St. Louis, &c. Hy.
;
anticipated at the time of the first tak- Co., 41 La. Ann. 827, 6 So. 640; Gulf C.
ing. City Council of Montgomery v. & S. F. Ry. Co. v. Fuller, 63 Tex. 467 ;
above. Caledonian Ry. Co. v. Walker's 151 Pa. St. 30, 25 Atl. 134, 31 Am. St. 722,
Trustees, L. R. 7 App. Cas. 259. 17 L. R. A. 758. So damages have been
"
1
The word " damaged embraces awarded under such circumstances though
more than physical invasions of prop- no such specific constitutional provision.
erty. It is not restricted to cases where Kansas N. & D. Ry. Co. v. Cuykendall, 42
the owner is entitled to recover as for a Kan. 234, 21 Pac. 1051, 16 Am. St. 479.}
tort at common law. Reardon v. San So of a street railroad. Campbell v.
Francisco, 66 Cal. 492, 6 Fac. 317. The Metrop. St. Ry. Co., 82 Ga. 320, 9 S. E.
"
language is intended to cover all cases 1078. In Illinois it is so held as to a track
in which even in the proper prosecution in a road Chicago & W. I. R. R. Co. v.
:
of a public work or purpose the right or Ayres, 106 III. 511 but not as to one laid
;
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.
674, 7 S. W. 579; New Brighton v. Peir- these cases are interpreted as holding that
sol, 107 Pa. St. 280; Hutchinson v. Par- the constitutional provision was not in-
kersburg, 25 W. Va. 226. So as to the tended to apply to injuries which are the
establishment of the grade. Harmon v. result of the operation of the railway, as
Omaha, 17 Neb. 548, 23 N. W. 503. But distinguished from such as result from its
if after a grade is established one buys construction. It is here held that where
and the walk is then cut down to grade, access to abutting property is cut off or
there is no damage. Denver v. Vernia, rendered dangerous, the provision is ap-
8 Col. 399, 8 Pac. 656. In Alabama there plicable.]
is none, if the change might have been 3 Rude v. St. Louis, 93 Mo. 408, 6 S. W.
anticipated. City Council of Montgom- 257 ;
East St. Louis v. O'Flynn, 119 III.
quire the appropriation, and, if they do, what the proper location
shall be and the party acting under this statutory authority
;
portion of lands not taken, the value of R. R. Co., 18 Wend. 9 ; Rogers v. Brad-
814 CONSTITUTIONAL LIMITATIONS. [CH. XV.
shaw, 20 Johns. 744; Calking r. Baldwin, is thus taken, it is, I apprehend, the set-
4 Wend. 667, 21 Am. Dec. 168; Case tled doctrine, even as respects the State
v. Thompson, 6 Wend. 634 Fletcher v. ; itself, that at least certain pro- and ample
Auburn & Syracuse R. K. Co., 25 Wend. vision must first be
(exceptmade by law
462; Rexford v. Knight, 11 N. Y. 308; in cases of public emergency), so that
Taylor v. Marcy, 25 111. 518; Callison v. the owner can coerce payment through
Hedrick, 15 Gratt. 244 Jackson v. Winn's
;
the judicial tribunals or otherwise, with-
Heirs, 4 Lit. 323; People v. Green, 3 out any unreasonable or unnecessary
Mich. 496 Lyon v. Jerome, 26 Wend.
; delay otherwise the law making the
;
485, 497, per Verplanck, Senator; Gard- appropriation is no better than blank
ner v. Newburg, 2 Johns. Ch. 162, 7 paper. Bloodgood v. Mohawk & Hudson
Am. Dec. 526; Charlestown Branch R. R. Co., 18 Wend. 9. The provisions
R. R. Co. v. Middlesex, 7 Met. 78 ; Har- of the statute prescribing the mode of
per v. Richardson, 22 Cal. 251 Baker v. ; compensation in cases like the present,
Johnson, 2 Hill, 342 People v. Hayden,
;
when properly understood and adminis-
6 Hill, 359 Orr v. Quimby, 54 N. H. 590;
;
come fully up to this great funda-
tered,
Ash v. Cummings, 50 N. H. 591; White mental principle and even if any doubt
;
v. Nashville, &c. R. R. Co., 7 Heisk. 518 ; could be entertained about their true
Simrns v. Railroad Co., 12 Heisk. 621 ; construction, it should be made to lean in
State v. Messenger, 27 Minn. 119, 6 N. W. favor of the one that is found to be most
457 Chapman v. Gates, 54 N. Y. 132
; ;
in conformity with the constitutional
v. Hishen, 40 Wis. 674 ; Long v. Fuller, 36 Pac. 527, 24 L. R. A. 355 Old Colony ;
68 Pa. St. 170 (case of a school district) ; Ry. Co. v. Framingham Water Co., 163
Smeaton v. Martin, 57 Wis. 364, 15 N. W. Mass. 601, 27 N. E. 662, 13 L. R. A. 332;
403 Com'rs of State Park v. Henry, 88
;
Sweet v. Rechel, 159 U. S. 380, 16 Sup.
"A
Minn. 266, 36 N. H. 874. [Provision re- Ct. Rep. 43.] provision for com-
quiring payment into court in case of an pensation is an indispensable attendant
appeal from assessment, of double the upon the due and constitutional exercise
amount of the assessment is adequate. of the power of depriving an individual
Cherokee Nation v. Southern Kansas Ry. of his property." Gardner v. Newburg,
Co., 135 U. S. 641, 10 Sup. Ct, Rep. 965 ;
2 Johns. Ch. 162, 168, 7 Am. Dec. 526 ;
Sweet v. Rechel, 159 U. S. 380, 40 L. ed. Buffalo, &c. R. R. Co. v. Ferris, 26 Tex.
U. S. 188, and note, 16 Sup. Ct. Rep. 43 ; 588; Ash v. Cummings, 50 N. H. 691,
Backus v. Fort St. Union Depot Co., 169 613; Haverhill
Bridge Proprietors v.
U. S. 657, 42 L. ed. U. S. 853, and note, County Com'rs, 103 Mass. 120, 4 Am.
18 Sup. Ct. Rep. 445 ; Consumer's Gas Rep. 518 Langford v. Com'rs of Ramsay
;
Trust Co. r. Harless, 131 Ind. 446, 29 Co., 16 Minn. 375; Southwestern R. R.
N. E. 1062, 15 L. R. A. 605. But pro- Co. v. Telegraph Co., 46 Ga. 43. [Statute
payment into court of only the
vision for making no provision for measuring com-
amount awarded is not sufficient. Harris- pensation is void. Mulligan v. City of
burg C. & C. T. R. Co. Harrisburg &
'. Perth- Amboy, 52 N. J. L. 132, 18 Atl.
M. E. Ry. Co., 177 Pa. St. 585, 35 Atl. 850, 670. See also Tuttle v. Justice of Knox
34 L. R. A. 439.] The same rule applies County, 89 Tenn. 157, 14 S. W. 486;
to the United States. Great Falls M'f'g Cherokee Nation v. Southern K. Ry. Co.,
"
Co. v. Garland, 25 Fed. Rep. 621 Al- : 135 U. S. 641, 10 Sup. Ct. Rep. 965;
though it not be necessary, within
may Sweet v. Rechel, 159 U. S. 380, 16 Sup.
the provision, that the
constitutional Ct. Rep. 48.]
amount of compensation should be actu- 1 In
Commissioners, &c. v. Bowie, 34
ally ascertained and paid before property Ala. 461, it was held that a provision by
CH. XV.] THE EMINENT DOMAIN. 815
county treasurer, sufficiently secured its &c. R. R. Co., 15 Neb. 367, 18 N. W. 717 ;
payment. And see Zimmerman v. Can- nor after verdict when an appeal has
field, 42 Ohio St. 463 Talbot v. Hudson,
;
been taken and entry made. Witt St. i;.
60, 34 Am. Dec 338. QAs to whether town Branch R. R. Co. v. Middlesex, 7
sufficientwhere provision is for payment Met. 78; Rexford v. Knight, 11 N. Y.
out of special fund of municipality, see 308; Taylor v. Marcy, 25 111. 518; Cam-
In re Lincoln Park, 44 Minn. 299, 46 N. W. son v. Hedrick, 15 Grat. 244 Gilmer v. ;
loit R. R. Co., 6 Wis. 605; Powers v. sioners of Seneca, 19 Ohio St. 173; Cage
Bears, 12 Wis. 213. See McCann v, r. Tracer, 60 Miss. 663. fjSee Snohomish
Sierra Co., 7 Cal. 121; Colton v. Rossi, County v. Hay wood, 11 Wash. 429, 39
9 Cal. 595; Ragatz v. Dubuque, 4 Iowa, Pac. 652, to the effect that compensation
343. An impartial tribunal for the ascer- must not be dependent upon application
tainment of the damage must exist when for it. Contra, Branson v. Gee, 25 Oreg.
the land is taken. State v. Perth Amboy, 462, 36 Pac. 627, 24 L. R. A. 855.]
8 Matter of
62 N. J. L. 132, 18 Atl. 670. But in Albany St., 11 Wend. 149,
People v. Hayden, 6 Hill, 359, where the 25 Am. Dec. 618; Brown v. Worcester,
statute provided for appraisers who were 13 Gray, 31 ante, p. 250.
; (^Uncondi-
to proceed to appraise the land as soon tional consent in writing to construction
as it was appropriated, the proper remedy is waiver of compensation. White v.
of the owner, if they failed to perform Manhattan Ry. Co., 139 N. Y. 19, 34 N. E.
this duty, was held to be to apply for a 887. Knowledge of construction without
mandamus. If land is taken without pro- objection is not a waiver. Maysville &
vision for compensation, the owner has a B. S. Ry. Co. v. Ingraham, 16 Ky. L. 853,
common-law remedy. Hooker v. New 30 S. W. 8. See further upon this ques-
Haven, &c. Conn. 146, 36 Am.
Co., 16 tion of waiver, Abendroth v. Manhattan
Dec. 477. The party making an appro- Ry. Co., 122 N. Y. 25 N. E. 496, 19 Am.
1,
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
1
Shepardson v. Milwaukee & Beloit 286 ; Ames v. Lake Superior, &c. R. R.
R. It. Wis. 605 ; Walther v. War-
Co., 6 Co., 21 Minn. 241 United States v. Jones,
;
& Pacific R. 11. Co., 10 Iowa, 540 Ash ; South Park Com'rs, 61 111. 115; Ames v.
v. Cummings, 60 N. H. 691 Carr v. ;
v. Lake Superior, &c. R. R. Co., 21 Minn.
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.
2
Clark v. Drain Com'r, 50 Mich. G18, 16 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
says the judge, delivering the opinion of versal experience that land would not
the court, " I cannot see that any legal always bring at a forced sale what it was
principle was violated, or any unsound reasonably worth, and the owner, not de-
doctrine advanced. The charter provides siring to sell, could not reasonably be re-
that the jury shall assess the value of the quired to take less. In Sater v. Burlington
land and materials taken by the company, & Mount Pleasant Plank Road Co., 1
and the damages. The damages here " The
Iowa, 386, 393, Isbell, J., says :
contemplated are not damages to the land terms used in the constitution, 'just com-
actually occupied or covered by the road, pensation,' are not ambiguous. They un-
but sucli damages as the owner may sus- doubtedly mean a fair equivalent; that
tain in his otherand adjacent lands not oc- the person whose property is taken shall
cupied by the company's road. His build- be made whole. But while the end to be
ings may be reduced in value by the con- attained is plain, the mode of arriving at
tiguity of the road and the use of engines it is not without its difficulty. On due
upon it. His lands and buildings, before consideration, we see no more practical
adapted and used for particular purposes, rule than to first ascertain the fair mar-
may, from the same cause, become utterly ketable value of the premises over which
unfitted for such purposes. The owner the proposed improvement is to pass, ir-
may be incommoded by high embank- respective of such improvement, and also
ments or deep excavations on the line a like value of the same, in the condition
822 CONSTITUTIONAL LIMITATIONS. [CH. XY.
in which they will be immediately after N. W. 986, 4 L. R. A. 813 but not future;
the land for the improvement has been and contingent expenses like assessments
taken, irrespective of tlie benefit which for improvements, nor for removing snow
will result from the improvement, and from sidewalks, for grading or paving.
the difference in value to constitute the tdl
measure of compensation. But in ascer- 1
Matter of Furman Street, 17 Wend.
taining the depreciated value of the prem- 649; Tidewater Canal Co. i?. Archer, 9
ises after that part which has been taken Gill & J. 479; Sater v. Burlington, &c.
for public use has been appropriated, re- R. R. Co., 1 Iowa, 386; Parks v. Boston,
gard must be had only to the immediate, 15 Pick. 206; First Parish, &c. v. Middle-
and not remote, consequence of the ap- sex, 7 Gray, 106; Dickenson v. Inhab-
propriation that is to say, the value of
; itants of Fitchburg, 13 Gray, 546; Lex-
the remaining premises is not to be de- ington v. Long, 31 Mo. 369 Moulton v. ;
preciated by heaping consequence on con- Newburyport Water Co., 137 Mass. 163.
sequence. While we see no more practical The compensation should be the fair cash
mode of ascertainment than this, yet it market value of the land taken: Brown
must be borne in mind that this is
still v. Calumet R. Ry. Co., 125 111. 600, 18 N.
by tlie
constitution, namely, just compen- F. & C. Ry. Co. v. Ward, 128 111. 349, 18 N.
sation for tlie property taken." See this E. 828, 21 N. E. 562 but not the value of
;
rule illustrated and applied in Henry v. an illegal use: Kingsland v. Mayor, 110
Dubuque & Pacific R. R. Co., 2 Iowa, N. Y. 569, 18 N. E. 435. While its
"
300, where it is said That the language
: value as mineral land may be considered :
of the constitution means that the person Doud v. Mason City, &c. Ry. Co., 76
whose property is taken for public use Iowa, 438, 41 N. W. 65; the estimated
shall have a fair equivalent in money for specific value of minerals in it may not.
the injury done him by such taking; in Reading &
P. R. R. Co. v. Balthaser, 119
other words, that he shall be made whole Pa. St. 472, 13 Atl. 294. Where railroad
so far as money is a measure of compen- land is taken, the reasonable expectation
sation, we are equally clear. This just of future use is to be considered. Port-
compensation should be precisely com- land & R. R. R. Co. v. Deering, 78 Me.
mensurate with the injury sustained by 61, 2 Atl. 670. The availability of land
having the property taken neither more ;
for a bridge site or ferry landing may be
nor less." And see Richmond, &c. Co. v. considered: Little Rock June. Ry. Co. v.
Rogers, 1 Duvall, 135; Robinson v. Rob- Woodruff, 49 Ark. 381, 5 S W. 792;
inson, 1 Duvall, 162; Holton v. Milwau- Little Rock & F. S. Ry. Co. v. McGehee,
kee, 31 Wis. 27 Root's Case, 77 Pa. St.
;
41 Ark. 202 but not the enhanced value
;
276; East Brandy wine, &c. R. R. Co. v. due to the proposed improvement. Shen-
Ranck, 78 Pa. St. 454. FJThe compensa- andoah V. R, R. Co. v. Shepherd, 26 W.
tion to which owner is entitled for land Va. 672. Nor can the damage to the
taken for a street includes in addition to ferry privilege by building a bridge be
the value of land taken such expenses as compensated for. Moses v. Sanford, 11
are naturally incident to the taking, like Lea, 731. Compare Mason v. Harper's
cost of moving fence and the like. City Ferry B. Co., 17 W. Va. 396.
2 Deaton Parks
of Detroit v. Beecher, 75 Mich. 454, 42 v. Polk, 9 Iowa, 594 ;
CH. XV.] THE EMINENT DOMAIN. 823
Newby v. Platte .County, 25 Mo. 258; the residue of his tract. When the com-
Pacific R. R. Co. v. Chrystal, 25 Mo. 544; pany has paid the defendant the excess
Somerville & Easton R. R. Co. ads. of his loss or damage over and above the
31 Wis. 27. If the whole tract is not nent and substantial, or transient and
taken, the value of the part taken as part illusory, is a subject about which the
of the whole should be allowed. Chicago, court is not competent to determine. It
B. & N. R. R. Co. i'. Bowman, 122 111. must be submitted to a jury, who will
695, 13 N. E. 814; Balfour o. Louisville, give credit to the company according to
&c. R. R. Co., 62 Miss. 608; Asher v. the circumstances. The argument is not
Louisville, &c. R. R. Co., 87 Ky. 391, 8 tenable, that an increased salable value is
S. W. 854. As to how far different lots no benefit to the owner of land unless he
or subdivisions used as one tract are to sells it. This is true if it be assumed that
be held one parcel within this rule, see the price will decline. The chance of this
Port Huron, &c. Ry. Co. v. Voorheis, 50 is estimated by the jury, in the amount
Frazier, 25 Neb. 42, 53, 40 N. W. 604, and his ability to pay his debts or pro-
609; Cameron v. Chicago, &c. Ry. Co., vide for his familj-, in the same manner
42 Minn. 75, 43 N. W. 785 Potts v. Penn. ;
and to the same extent as if his fortune
S. V. R. R. Co., 119 Pa. St. 278, 13 All. was increased by an acquisition of prop-
" Greenville & Columbia R. R.
291. Compensation is an equivalent for erty."
property taken, or for an injury. It must Co. v. Partlow, 6, Rich. 428. And see
be ascertained by estimating the actual Pennsylvania R. R. Co. v. Heister, 8 Pa.
damage the party has sustained. That St. 445; Matter of Albany Street, 11
damage is the sum of the actual value of Wend. 149, 25 Am. Dec. 618; Upton
the property taken, and of the injury v. South Reading Branch R. R., 8 Cush.
done to the residue of the property by 600 Proprietors, &c. v. Nashua & Lowell
;
the use of that part which is taken. The R. R. Co., 10 Cush. 385; Mayor, &c.
benefit is, in part, an equivalent to the of Lexington v. Long, 31 Mo. 369; St.
loss and damage. The loss and damage Louis, &c. R. R. Co. v. Richardson, 45
of the defendant is the value of the land Mo. 466; Little Miami R. R. Co. i'. Col-
the company hastaken, and the injury lett,6 Ohio St. 182; Bi-:elow v. West
which the location and use of the road Wisconsin R. R. Co., 27 Wis. 478. In
through his tract may cause to the re- Newby v. Platte County, 25 Mo. 258, the
mainder. The amount which may be right to assess benefits was referred to
assessed for these particulars the com- the taxing power; but this seems not
pany admits that it is bound to pay. necessary, and indeed somewhat difficult
Bur, as a set-off, it claims .credit for the on principle. See Button's Heirs v. Louis-
824 CONSTITUTIONAL LIMITATIONS. [CH. XV.
some peculiar increase in value com- pike Co., 7 Dana, 81 Jacob v. Louis-
;
pared with other lands generally in the ville, 9 Dana, 114. So in Mississippi.
vicinity, it would be the duty of the jury Natchez, J. & C. R. R. Co. v. Currie, 62
to allow for such benefit, or increase Miss. 506. And some other States have
of value, by way of set-off, in favor of established, by their constitutions, the
the railroad company but, on the other
;
rule that benefits shall not be deducted.
hand, the construction of the railroad,
if See cases, note 4, 825. That the dam-
by increasing the convenience of the age and benefits must be separately as-
people of the town generally as a place sessed and returned by the jury where
for residence, and by its anticipated and part only of the land is taken, see De-
probable effect increasing the popula-
in troit v. Daly, 68 Mich. 603, 37 N. W. 11.
tion, business, and general prosperity of But the cases generally adopt the doc-
the place, had been the occasion of an and if the owner
trine stated in the text ;
increase in the salable value of real is paid his actual damages, he has no
estate generally near the station, includ- occasion to complain because his neigh-
ing the petitioner's land, and thereby bors are fortunate enough to receive a
occasioning a benefit or advantage to him, benefit. Greenville & Columbia R. R.
in common with other owners of real Co. v. Partlow, 5 Rich. 428 Mayor, &c.;
estate in the vicinity, this benefit was too of Lexington v. Long, 31 Mo. 369. Bene-
contingent, indirect, and remote to be fits to the adjacent property owned in
brought into consideration in settling the severally may be deducted from damage
question of damages to the petitioner for to property owned jointly. Wilcox r.
taking his particular parcel of land. Up- Merfden, 57 Conn. 120, 17 Atl. 366.
ton v. South Reading Branch R. R. Co.,
CH. XV.] THE EMINENT DOMAIN. 825
1 R.
Somerville, &c. R. Co. ads. taken, but in the assessment district,
Doughty, 22 N. J. 495; Dorian v. East may exceed the damages. Genet v.
Brandywine, &c. R. R. Co., 46 Pa. St. Brooklyn, 99 N. Y. 296, 1 N. E. 777.
520; Proprietors, &c. v. Nashua & But it is not competent for the commis-
Lowell R. R. Co., 10 Gush. 385 Louis- ;
sioners who assess the compensation to
ville & Nashville R. R. Co. v. Thomp- require that which is to be made to be
son, 18 B. Mour. 735; Winona & St. wholly or in part in anything else than
Peter's R. R. Co. v. Denman, 10 Minn. money. An award of "one hundred and
267 Shenandoah V. R. R. Co. v. Shep-
; fifty dollars, with a wagon-way and stop
herd, 26 W. Va. 672; Stone v. Inh. of for cattle," is void, as undertaking to pay
Heath, 135 Mass. 561 ; Com'rs Dickinson the owner in part in conveniences to be
Co. v. Hogan, 39 Kan. 606, 18 Pac. 611. furnished him, and which he may not
So of increased danger from fire in case want, and certainly cannot be compelled
a railroad is laid out. Texas & St. L. to take instead of money. Central Ohio
Ry. Co. v. Cella, 42 Ark. 523 Setzler o. ;
R. R. Co. v. Holler, 7 Ohio St. 220. See
Pa. &c. R. R. Co., 112 Pa. St. 56, 4 Atl. Rockford, &c. R. R. Co. v. Coppinger, 66
370. 111. 510 Toledo, A. A. & N. Ry. Co. v.
;
2
Pennsylvania R. R. Co. v. Heister, 8 Munson, 57 Mich. 42, 23 N. W. 455.
Pa. St. 445; Greenville & Columbia [^Compensation cannot be made by charg-
R. R. Co. v. Partlow, 5 Rich. 428 Dear- ; ing the owner with the amount of it, as a
born v. Railroad Co., 24 N. H. 179; Car- special tax on that portion of his lands
penter v. Landaff 42 N. H. 218 Dorian
, ;
not taken Bloomington v. Latham, 142
:
by the use of the way by noisy and disso- R. Co., 59 Iowa, 540, 13 N. W. 710;
lute persons on the Sabbath, could form Pacific Coast Ry. Co. v. Porter, 74 Cal.
no basis for any assessment of damages. 261, 15 Pac. 774"; Leroy & W. R. R. Co.
First Parish in Woburn v. Middlesex v. Ross, 40 Kan. 598, 20 Pac. 197; Giesy
Norfolk, 2 Cush. 361; Whitman v. Bos- Swan, 422 Memphis v. Bolton, 9 Heisk.
;
ton & Maine R. R. Co., 3 Allen, 133; 508. In Illinois benefits may not be set
Nichols v. Bridgeport, 23 Conn. 189; off against the value of the land taken,
State v. Kansas City, 89 Mo. 34, 14 S. W. but may be against damage to land not
515; Ross v. Davis, 97 Ind. 79. The taken. Harwood v. Bloomington, 124
benefits upon the owner's property not 111. 48, 16 N. E. 91.
826 CONSTITUTIONAL LIMITATIONS. [CH. XV.
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 & ;
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 Philadelphia, 195 Pa. St. 101,45
v. Nav. Co., 69 Pa. St. 161 Eaton v. Eos-
;
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. 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 ;
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
:
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. 26 N. E. 575; Evansville & R. Ry. Co. v. Swift, 128 Ind. 34, 27 N. E. 420;
9,
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.
,
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
Though adjacent, not used together, they should not be considered. Koerper v.
if
St. P. & N. P. Ky. Co., 42Minn. 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.
.
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
;
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.
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-
;
" 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
And "
others." again :
[By this] general policepower of the
State, persons and property are subjected to all kinds of restraints
and burdens, in order to secure the general comfort, health, and
order the destruction of a house falling to See also Turbeville v. Stampe, 1 Ld.
decay, or otherwise endangering the lives Raym. 264; and 1 Salk. 13; Jeffries v.
were not the State would be found operating within the sphere
so,
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.
any accurate statement of the theory upon which the police
fBut
power rests will render it apparent that a proper exercise of it by
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.
'.
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.
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 :
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
operative, since otherwise its effect would roads the State to establish and main-
in
be to modify, and to that extent to tain the same kind of police which is now
violate, the obligation of the charter-con- observed upon some of the more impor-
"
tract. The case," says the court, " re- tant roads in the country for their own
solves itself into the narrow question of security, or even such a police as is found
the right of the legislature, by general upon the English railways, and those upon
statute, to require all railways, whether the continent of Europe. No one ever
now in operation or hereafter to be char- questioned the right of the Connecticut
tered or built, to fence their roads upon legislature to require trains upon all of
both sides, and provide sufficient cattle- their railroads to come to a stand before
guards at all farm and road crossings, passing draws in bridges ; or of the Massa-
under penalty of paying all damages chusetts legislature to require the same
caused by their neglect to comply with thing before passing another railroad.
such requirements. . We think the
. . And by parity of reasoning may all rail-
in the legislature to do which no question Co., 30 Mo. 546; Indianapolis & Cincin-
ever was or, upon acknowledged general nati R. R. Co. v. Kercheval, 16 Ind. 84 ;
principles, ever can be, made, so far as Galena & Chicago U. R. R. Co. v. Ap-
natural persons are concerned. And it is pleby, 28 111. 283 Blair v. Milwaukee, &c.
;
certainly calculated to excite surprise anil R. R. Co., 20 Wis. 254 ; State v. Mathews,
alarm that the right to do the same in 44 Mo. 523; Commissioners, &c. v. Hoi-
regard to railways should be made a seri- yoke Water Power Co., 104 Mass. 446 ;
ous question." And the court proceed Railroad Co. v. Fuller, 17 Wall. 560; To-
to consider the various cases in which ledo, &c. R. R. Co. v. Deacon, 63 111. 91 ;
the right of the legislature to regulate Ames v. Lake Superior, &c. R. R. Co., 21
matters of private concern with reference Minn. 241 N. W. Fertilizing Co. v. Hyde
;
to the general public good has been acted Park, 70 III. 634; State v. New Haven,
upon as unquestioned, or sustained by &c. Co., 43 Conn. 351. [[Missouri, K. &
judicial decisions and quote, as pertinent
;
T. Trust Co. v. Krumseig, 172 U. S. 351,
to the general question of what laws are 19 Sup. Ct. Rep. 179; Matthews v. St.
prohibited on the ground of impairing Louis & S. F. R. Co., 121 Mo. 298, 24
the obligation of contracts, the language S. W. 591, 25 L. R. A. 161, and note.
of Chief Justice Marshall in Dartmouth Upon the proposition that police regula-
College v. Woodward, 4 Wheat. 518, 629, tions are subject to change, from time to
"
that the framers of the Constitution did time, as the public welfare may demand,
not intend to restrain the States in the without impairing the obligation of con-
regulation of their civil institutions, tract, see Pingree v. Michigan Central
adopted for internal government, and that Ry. Co., 118 Mich. 814, 76 N. W. 635, 53
the instrument they have given us is not L. R. A. 274, where the charter gave to
to be so construed." See, to the same the company the right to fix rates for
effect, Suydam v. Moore, 8 Barb. 358; passenger carriage within the maximum
Waldron v. Rensselaer & Saratoga R. R. of three cents per mile, and it was held
Co., 8 Barb. 390 ;
Galena & Chicago U. thatany subsequent attempt to fix rates
R. R. Co. v. Loomis, 13 111. 548 Fitchburg
; was unconstitutional as impairing the
R. R. v. Grand Junction R. R. Co 1 Al-, obligation of contract. See, also, Detroit
len, 552; Veazie v. Mayo, 45 Me. 560; v. Detroit Cit. St. Ry. Co., 184 U. S. 368,
The limit to the exercise of the police power (a) in these cases
must be this : the regulations must have reference to the comfort,
(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,
;
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 atthe 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 welfare, and a power granted by charter
Conn. 53 Bailey ;
v.Philadelphia, &c. R. R. to one railroad " to connect with any rail-
Co., 4 Harr. 389 ;
State v. Noyes, 47 Me. road running in the same direction with
189; Pingry v. Washburn, 1 Aiken, 264; this road, and where there may be any
Miller v. N. Y. & Erie R. R. Co., 21 portion of another road which may be
Barb. 513; People i>. Jackson & Michi- used by this company " does not author-
gan Plank Road Co., 9 Mich. 285, 307 ;
ize the consolidation of two parallel and
Sloan v. Pacific R, R. Co., 61 Mo. 24 At- ; competing lines, and a subsequently en-
torney-General v. Chicago, &c. R. R. Co., acted constitutional prohibition of such
35 Wis. 425. In Benson v. Mayor, &c. of consolidation does not impair the obliga-
New York, 10 Barb. 223, 245, it is said, tion of a contract, even if it could be held
in considering a ferry right granted to a that the deprivation of a long granted but
"
city Franchises of this description are
:
yet unused power were such impairment.
partly of a public and partly of a private Pearsall v. Great N. R. Co., 161 U. S. 646,
nature. So accommodation of
far as the 16 Sup. Ct. Rep. 705, and Louisville & N.
passengers concerned, they are publici
is R. Co. v. Kentucky, 161 U. S. 677, 16
juris ; so far as they require capital and Sup. Ct. Rep. 714, aff. 97 Ky. 675, 31
produce revenue, they are privati juris. S. W. 476. State may compel insur-
Certain duties and burdens are imposed ance companies doing business within its
upon the grantees, who are compensated borders to make full reports concerning
therefor by the privilege of levying ferri- their business and their financial condi-
age, and security from spoliation arising tion. Eagle Ins. Co. v. Ohio, 153 U. S.
from the irrevocable nature of the grant. 446, 14 Sup. Ct. Rep. 868.] After the
The State may legislate touching them, organization of a company for electric
so far as they are publici juris. Thus, laws communication, it may be required to
may be passed to punish neglect or mis- obtain the approval of its plans by city
conduct in conducting the ferries, to se- commissioners before laying wires in the
cure the safety of passengers from danger streets. People v. Squire, 107 N. Y. 593,
and imposition, &c. But the State can- 14 N. E. 820. A provision that an insur-
not take the ferries themselves, nor
away ance policy referring to the application
deprive the city of their legitimaie rents shall not be received in evidence unless
and profits." And see People v. Mayor, such application is attached to it, is valid
&c. of New York, 32 Barb. 102, 116; Com- as to policies issued thereafter by an ex-
monwealth v. Pennsylvania Canal Co., 66 isting company. New Era Life Ins. Co.
Pa. St. 41 Hegeman v. Western R. R.,
;
v. Musser, 120 Pa. St. 384, 14 Atl. 155.
2
13 N. Y. 9. FJPowers granted to corpora- Pingry v. Washburn, 1 Aiken, 264.
tions are to be narrowly construed where Of course the charter reserved no right
their exercise is inimical to the public to make such an amendment.
CH. XVI.] THE POLICE POWER OF THE STATES. 839
Shore, &c. Ry. Co., 52 Mich. 277, 17 &c. R. R. Co., 6 Biss. 177. See a like
N. W. 841 Chicago & G. T. Ry. Co. t;.
;
rule applied to a ferry company in Par-
840 CONSTITUTIONAL LIMITATIONS. [CH. XVI.
of the State to fix rates, see post, pp. 871- delphia, 47 Pa. St. 329 Whitson v.
;
1 Am. & Eng. R. R. Cas. 188. That the Pa. St. 33 Haas v. Chicago, &c. R. R.
;
issuing and taking up of tickets and cou- Co., 41 Wis. 44. That the legislature
pons of tickets by common carriers may may compel railroad companies to carry
be regulated by statute, see Fry v. State, impartially for all, see Chicago, &c. R. R.
63 Ind. 552. Co. v. People, 67 111. 11 ; Cincinnati, &c.
1
Bailey v. Philadelphia, &c. R. R. Co., R. R. Co. v. Cook (Ohio), 6 Am. & Eng.
4 Harr. 389. Compare Commonwealth v. R. R. Cas. 317 Louisville, N. O. & T. Ry.
;
Pa. Canal Co., 66 Pa. St. 41, 5 Am. Rep. Co. v. State, 66 Miss. 662, 6 So. 203
but ;
beasts killed by going upon it, has been sustained on two grounds :
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
1
carriages. Having this double purpose in view, the owner of
1
Thorpe v. Rutland & Burlington 226, and cases cited therein. It is com-
R. R. Co., 27 Vt. 140; New Albany & petent to make the company liable for
. Saletu R. R. Co. v. Tilton, 12 Ind. 3; double the value of stock killed in con-
Same v. Maiden, 12 Ind. 10; Same v. sequence of the neglect to fence. Mis-
McNamara, 11 Ind. 543; Ohio & Mis- souri Pac. Ry. Co. v. Humes, 115 U. 8.
sissippi H. R. Co. v. McClelland, 25 III. 612, 6 Sup. Ct. Rep. 110; Barnettw. Rail-
140; Madison &
Indianapolis R. R. Co. road Co., 68 Mo. 56, 30 Am. Rep. 773;
v. Whiteneck, 8 Ind. 217; Indianapolis Spealman v. Railroad Co., 71 Mo. 434;
& Cincinnati R. R. Co. v. Townsend, 10 Tredway v. Railroad Co., 43 Iowa, 527 ;
Ind. 38 ;
Same v. Kercheval, 16 Ind. 84 ;
Little Rock, &c. R. R. Co. v. Payne, 33
Corwin r. N. Y. & Erie R. R. Co., 13 Ark. 816, 34 Am. Rep. 65; Cairo, &c.
N. Y. 42 Horn v. Atlantic & St. Law-
;
R. R. Co. People, 92 111. 97, 34 Am.
v.
479; Jones v. Galena, &c. R. R. Co., 16 stock killing. Wilder v. Chicago & W.
Iowa, 6 Winona, &c. R. R. Co. v. Wal-
;
M. Ry. Co., 70 Mich. 382, 38 N. W. 289.
dron, 11 Minn. 513; Bradley v. Buffalo, Compare Peoria, D. & E. Ry. Co. v. Dug-
&c. R. R. Co., 34 N. Y. 420 Sawyer v. ; gan, 109 111. 537. A
statute making rail-
Vermont, &c. R. R. Co., 105 Mass. 196; road companies liable for injuries
by fire
Pennsylvanfa R. R. Co. v. Riblet, 66 communicated by their locomotive en-
Pa. St. 164, 5 Am. Rep. 360; Kansas gines was sustained, as to companies pre-
Pacific R. R. Co. v. Mower, 16 Kan. 573 ; viously in existence, in Lyman v. Boston
Wilder v. Maine Central R. R. Co., 66 & Worcester R. R. Co., 4 Cush. 288;
Me. 332; Blewette v. Wyandotte, &c. Rodemacher v. Milwaukee, &c. R. R. Co.,
11.R. Co., 72 Mo. 583. [State may en- 41 Iowa, 297, 20 Am. Rep. 592; Gorman
force such regulations by making railroad v. Pacific Railroad, 20 Mo. 441, [regard-
companies liable for all damages that may less of the question of negligence. Mat-
be suffered by any individual through thews v. St. Louis & S. F. R. Co., 121
their non-compliance. Minneapolis & St. Mo. 298, 24 S. W. 691, 25 L. R. A. 161,
L. R. Co. v. Emmons, 149 U. S. 364, 13 and note; aff. 165 U. S. 1, 17 Sup. Ct.
Sup. Ct. Rep. 870.3 The Minnesota Rep. 243 Grissell v. Housatonic Ry. Co.,
;
statute imposes no duty toward children. 64 Conn. 447, 9 All. 137, 1 Am. St. 138.
Fitzgerald v. St. Paul, &c. Ry. Co., 29
A statute authorizing full recovery by a
Minn. 336, 13 N. W. 168. As to the de- passenger against a public carrier of
gree of care required of railroad
com- passengers for injuries resulting from the
panies in keeping up their fences, com- carriage is constitutional though negli-
pare Antisdel v. Chicago, &c. R. R. Co., gence of the carrier is not made an ele-
26 Wis. 145; Lemmmi v. Chicago, &c. ment of the course of action. Clark v.
R. R. Co., 32 Iowa, 151 Carey v. Chi- ; Russell, 97 Fed. Rep. 900 St. Louis, &c..
;
cago, &c. Ry. Co., 61 Wis. 71, 20 N. W. Ry. Co. v. Matthews, 165 U. S. 1, 17 Sup.
648 Chicago, &c. R. R, v. Barrie, 55 111.
;
Ct. Rep. 243-3 But a statute making a
A. 688.
t fenced as required. Poindexter v. May, 98 Va. 143, 34 S. E. 971, 47 L. R.
And a law permitting half of a party wall to be placed upon the land of an adjoining
Swift v. Calnan, 102 Iowa, 206, 71 N. W.
proprietor, even against
his will, is good.
233, 37 L. R. A. 462-3
842 CONSTITUTIONAL LIMITATIONS. [CH. X\
7
I.
railroad liable for cattle killed irrespec- may make a railroad company liable for
tive of negligence is bad. Jensen v. all property lost through fires arising
Union Pac. Ry. Co., 6 Utah, 253, 21 Pac. from its locomotives, whether through its
994, 4 L. R. A. 724; Bielenberg v. Mon- negligence or not. St. Louis & S. F. R.
tana, &c. Ry. Co., 8 Mont. 271, 20 Pac. Co. v. Matthews, 165 U. S. 1, 17 Sup. Ct.
314. And it is not competent to make Rep. 243, aff. 121 Mo. 298, 24 S. W. 591,
railroad companies liable for injuries for 25 L. R. A. 161.]
2
which they are in no way responsible. Jackson v. Rutland & Burlington
It is therefore held that an act imposing R. R. Co., 25 Vt. 150. And see Marsh v.
upon railroad companies the expense of N. Y. & Erie R. R. Co., 14 Barb. 364 ;
coroners' inquests, burial, &c., of persons Joliet & N. I. R. R. Co. v. Jones, 20 III.
who may die on its cars, or be killed by 221 Tonawanda R. R. Co. v. Munger, 5
;
collision, &c., is invalid as applied to Denio, 255, and 4 N. Y. 349 Price v. New ;
cases where the company is not in fault. Jersey R. R. Co., 31 N. J. 229; Drake v.
Ohio, &c. R. R. Co. c. Lackey, 78 111. 53. Philadelphia, &c. R. R. Co., 51 Pa. St. 240.
That it is as competent to lessen the In Indianapolis & Cincinnati R. R. Co.
common-law liabilities of railroad com- v. Kercheval, 16 Ind. 84, it was held that
panies as to increase them, see Kirby v. a clause in the charter of a railroad cor-
Pennsylvania R. R. Co., 76 Pa. St. 506. poration which declared that when the
And see Camden & Amboy R. R. Co. v. corporators should have procured a right
Briggs, 22 N. J. 623 Trice v. Hannibal, ;
of way as therein provided, they should
&c. R. R. Co., 49 Mo. 438. be seised in fee-simple of the right to the
i Corwin v. N. Y. & Erie R. R. land, and should have the sole use and oc-
Co.,
13 N. Y. 42 Indianapolis & Cincinnati
; cupation of the same, and no person, body
R. R. Co. v. Townsend, 10 Ind. 38 ;
Jef- corporate or politic, should in any way
fersonville, &c. R. R. Co. Nichols, 30
v. interfere therewith, molest, disturb, or
Ind. 321;Same v. Parkhurst, 34 Ind. injure any of the rights and privileges
601; Suydam v. Moore, 358; 8 Barb. thereby granted, &c., would not take
Fawcett v. York & North Midland R. from the State the power to establish a
Co., 15 Jur. 173; Waldron v. Rensselaer police regulation the corporation
making
& Schenectady R. R. Co., 8 Barb. 390; liable for cattle by their cars.
killed
Horn v. Atlantic & St. Lawrence R. R. [Jensen v. Union P. R. Co., 6 Utah, 253,
Co., 35 N. H. 169 O'Banhon v. Louis-
;
21 Pac. 994, 4 L. R. A. 724, holds that
ville, &c. R. R. Co., 8 Bush, 348; Illinois railroad cannot in the absence of negli-
Cent. R. R. Co. v. Arnold, 47 111. 173 ; gence on its part be made liable for stock
Hinman v. Chicago, &c. R. R. Co., 28 killed by it.]
8
Iowa, 491 Quackenbush v. Wisconsin,
; Fitchburg R. R. Co. v. Grand Junc-
&c. R. R. Co., 62 Wis. 411, 22 N. W. 519; tion R. R. Co., 1 Allen, 552, and 4 Allen,
highway and other crossings. Kockford, of New York, 10 Barb. 223 Bulkley v. ;
regulate the exercise of the franchise for 283; Ohio & Mississippi R. R" Co. v.
public security." Ryan, Ch. J., in Horn McClelland, 25 111. 140; Clark's Adm'r
v. Chicago, &c. R. R. Co., 38 Wis. 463. v. Hannibal & St. Jo. R. R. Co., 36 Mo.
The regulation is in favorem vitce. Haas 202; Chicago, &c. R. R. Co. v. Triplett,
v. Chicago, &c. R. R. Co., 41 Wis. 44. 38 111. 482; Commonwealth v. Eastern
But running at unlawful speed does not R. R. Co., 103 Mass. 254, 4 Am. Rep.
impose an absolute liability. Louisville, 555 Kaminitsky v. R. R. Co., 25 S. C.
;
the railway companies over whose tracks Young, 81 Ga. 397, 7 S. E. 912. In many
a viaduct extends to repair the same, and States now there are railroad commission-
may apportion among them the expense ers appointed by law, with certain powers
of such repair, although the viaduct was of supervision, more or less extensive. Re-
built at the joint expense of the railway it has been said in Maine
specting these :
"
companies and the city, acting under Our whole system of legislative super-
agreement. Chicago, B. & Q. R. Co. v. vision through the railroad commission-
Nebraska, 170 U. S. 57, 18 Sup. Ct. Rep. ers acting as a State police over railroads
613, aff. 47 Neb. 549, 66 N. W. 624. A is founded upon the theory that the public
railway company may be required to pay duties devolved upon railroad corpora-
the whole expense of change of grade at tions by their charter are ministerial, and
a crossing. New York & N. E. R. Co. . therefore liable to be thus enforced."
Town of Bristol, 161 U. S. 556, 14 Sup. Railroad Commissioners v. Portland, &c.
Ct. Rep. 437, aff. 62 Conn. 527, 26 Atl. R. R. Co., 63 Me. 269, 18 Am. Rep. 208.
122.3
8
Thorpe v. Rutland
Burlington &
1 " The legislature has the power, by R. R. Co., 27 Vt 140: Carriers, of goods
general laws, from time to time, as the are liable as insurers, notwithstanding
may have been of negli-
public exigencies may require, to regu- they guiltless
iate corporations in their franchises, so as gence, because such is their contract with
to provide for the public safety. The the shipper when they receive his goods
in question is a mere police for transportation ; but carriers of per-
provision
regulation, enacted for the protection and
sons assume no such obligations at the
844 CONSTITUTIONAL LIMITATIONS. [CH. XVI.
late the business of the carrier with a Donald v. State, 81 Ala. 279 Nashville,
;
view to the just protection of the rights C. & St. L. Ry. Co. v. State, 83 Ala. 71,
and interests of others, but which im- 3 So. 702, 128 U. S. 96, 9 Sup. Ct. Rep.
posed a new obligation, for the benefit of 28. fJThe entire expenses of the State
others, upon a party guilty of no neglect railroad commission, including salaries
of duty. But perhaps such a regulation of commissioners, may be assessed upon
would not go further than that in Stanley the railroad companies operating within
v. Stanley, 26 Me. 191, where it was held the State in proportion to their operated
competent for the legislature to pass an track mileage. Charlotte, C. & A. R. Co.
act making the stockholders of existing v. Gibbes, 142 U. S. 386, 12 Sup. Ct. Rep.
banks liable for all corporate debts there- 255, aff 27 S. C. 385, 4 S. E. 49; Louis-
after created ;
or in Peters v. Iron Moun- ville & N. R. Co. v. Baldwin, 85 Ala. 619,
tain R. R. Co., 23 Mo. 107, and Grannahan 5 So. 311, 7 L. R. A. 266, contra.^ On this
v. Hannibal, &c. R. R. Co., 80 Mo. 546, subject in general, see Redf. on Railw.
where an act was sustained which made c. 32, sec. 2 ;Louisville, &c. R. R. Co. v.
companies previously chartered liable for Burke, 6 Cold. 45 New Albany & Salem
;
statute creating such absolute liability is Ohio & Mississippi R. R. Co. v. McClel-
valid, is held in Chicago, R. I. & P. Ry. land, 25 III. 140 ; Bradley v. Buffalo, &c.
Co. Zernecke, 59 Neb. 689, 82 N. W. 26,
v. R. R. Co., 34 N. Y. 427 Boston, C. &
;
Ga. 356; Coosa River Steamboat Co. v. 164, 5 Am. Rep. 360. And see other
Barclay, 30 Ala. 120. In Boston, Con- cases cited, ante, pp. 839, 840, notes.
cord, and Montreal R. R. v. State, 32 [That telephone companies are common
N. H. 215, a statute making railroad cor- carriers and must render their services
porations liable to indictment and fine, in impartially to all who may apply for
case of the loss of life by the negligence them, see Nebraska Telephone Co. v.
or carelessness of the proprietors or their State, 55 Neb. 627, 76 N. W. 171, 46
CH. XVI.] THE POLICE POWER OF THE STATES. 845
L. R. A. 113. Upon power to regulate nell, Ariz. 16 Pac. 209. That such
,
may be compelled to forward within a 36 Ark. 36, 38Am. Rep. 22. [And a li-
certain time after receiving them. Bagg censed pharmacist may be required to
v. Wilmington, C. & A. R. Co., 109 N. C. take out a special liquor license before he
279, 14 S. E. 79, 14 L. R. A. 596. Street shall be permitted to use spirituous
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
2
property. It was also decided, in these cases, that the power of
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 Commonwealth
Daniel, J., held that the right to State, 2 Iowa, 165, 202 ;
regulate was not excluded, even while v. Clapp, 5 Gray, 97 Metropolitan Board
;
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 prohibit and punish its sale to
may 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 Stucker, 68 Iowa, 496, 12 N. W.
v.
1 Bowman v. Chicago & N. W. Ry. Co., board of control, a commissioner and cer-
125 U. 8 Sup. Ct. Rep. 689, 1062;
S. 465, tain county dispensers, and after an in-
Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. spection by a State chemist. Packages
Rep. 681. In the former case a majority of wines and liquors made in other States
of the court held that the statute could and imported by a resident of the State
not be upheld as an inspection law nor as for hisown use, and in the possession of
a sanitary law that it was a regulation
;
railroad companies which, as common
of commerce, although its purpose was to carriers,had brought the packages within
perfect the policy of the State as to intem- the State, were seized and confiscated as
perance and left undecided the question
;
contraband by constables of the State."
of the right of the State to forbid the sale The court held " that when a State recog-
of the liquor when imported. In the lat- nizes the manufacture, sale, and use of
ter case this point is distinctly ruled, so intoxicating liquors as lawful, it cannot
far as the case of the sale by a foreigner discriminate against the bringing of such
or non-resident in the original package articles in, and importing them from
is concerned, Qhe court holding that the other States that such legislation is void
;
though such liquids or liquors had been panying such certificate with the state-
produced in such State or territory, and ment that the proposed consignor has
shall not be exempt therefrom by being been requested to forward a sample of
introduced therein in original packages or such liquor to the said chemist. Upon . . .
otherwise." 26 Stat. at Large, 313, chap. the receipt of said sample, the said chem-
728. In re Rahrer, 140 U. S. 545, 11 Sup. ist shallimmediately proceed to test the
Ct. Rep 865, it was held that this enact- same, and [upon finding it pure, &c.]
. . .
ment permitted the law of Kansas, pro- shall issue a certificate to that effect,"
hibiting and penalizing the manufacture, which should be attached to the consign-
" ment. Any package imported without
sale, or barter of any spirituous, malt,
vinous, fermented, or other intoxicating such certificate was to be confiscated and
"
liquors to extend to all such liquors destroyed. This provision was consid-
imported into the State. In Scott r. ered in Vance
v. Vandercook Co., 170
Donald, 165 U. S. 58, 17 Sup. Ct. Rep. U. 18 Sup. Ct. Rep. 674, and held
S. 438,
265, was considered the validity of the invalid as an unlawful interference with
State Dispensary Law of South Carolina, interstate commerce. In Rhodes v. Iowa,
which, as it then stood, required that 170 U. S. 412, 18 Sup. Ct. Rep. 664, it
" no wines or was held that the importation was not
liquors, except domestic
wines, should be manufactured or sold, completed until the goods had been de-
except through the agency of a State livered to the consignee, or at any rate
848 CONSTITUTIONAL LIMITATIONS. [CH. XVI.
until the carrier ceased to hold them as in the same basket and poured out on con-
carrier. The Iowa law forbidding trans- signee's counter ; whether, if each small
portation from place to place within the package had been addressed to consignee,
State did not apply to the station agent the holding would have been otherwise,
who unloaded a box containing whiskey qucere see concurring opinion by Mr.
;
from a freight car and wheeled it into Justice White. For a similar holding
the railway company's freight warehouse, with regard to cigarette packages, see
there to await delivery to the consignee. McGregor Cone, 104 Iowa, 465, 73
v.
791, 85 Am. St. 68. Upon interstate sales Lang v. Lynch, 38 Fed. Rep. 489, 4 L. R.
of intoxicating liquors and State regula- A. 831.] After a railroad has stored such
tion thereof, see a valuable note to 42 L. liquor in its warehouse for several days,
ed. U. S. 1089. Upon liquor legislation it ceases to be a carrier and becomes
generally, see Foster v. Kansas, 112 U. S., amenable to the law. State v. Creeden,
205, 6 Sup. Ct. Rep. 8, 97 Re Caswell, ;
78 Iowa, 556, 43 N. W. 673. See also State
18 R. I. 835, 29 Atl. 259, 27 L. R. A. 82, v. O'Neil, 58 Vt. 140, 2 Atl. 686;
[aff.
85, and note; State v. Creeden, 78 Iowa, 144 U. S. 323, 12 Sup. Ct. Rep. 693. A
656, 43 N. W.
673, 7 L. R. A. 296 Lemly ;
State may not prohibit the sale within its
v. State, 70 Miss. 241, 12 So. 22, 20 L. R. A. borders of oleomargarine manufactured in
645, and note Tragesser v. Gray, 73 Md.
; another State, so long as such substance
260, 20 Atl. 905, 9 L. R. A. 780, and note ;
isrecognized by Congress as a legitimate
and Veon v. Creaton, 138 Pa. 48, 20 Atl. article ofcommerce. Schollenberger v.
865, 9 L. R. A. 814, and note. Upon what Pennsylvania, 171 U. S. 1, 18 Sup. Ct.
is an original package, see Austin v. Ten- Rep. 767. On oleomargarine in original
nessee, 179 U. S. 343, 21 Sup. Ct. Rep. packages, see Re Goocli, 44 Fed. Rep.
132, in was held that a cigarette
which it 276, 10 L. R. A. 830. Nor is it permitted
package three inches long, and an inch to indirectly accomplish such prohibition
and a half wide, containing ten cigarettes, by requiring all oleomargarine sold within
was not an original package where many its borders to be colored pink or other-
such were deposited by the shipper in a wise adulterated. Collins v. New Hamp-
basket owned by the express company shire, 171 U. S. 30, 18 Sup. Ct. Rep. 768.
and by that company carried to consignee Upon prohibition of sale of oleomargarine,
1
Kidd v. Pearson, 128 U. S. 1, 9 Sup. manufacturer intends, at his convenience,
"
Ct. Rep. 6. The manufacture of intoxi- to export such liquors to foreign coun-
cating liquors in a State is none the less tries or to other States." Lamar, J., p. 24.
a business within that State, because the
CH. XVI.] THE POLICE POWER OF THE STATES. 849
A. 839; see also State v. Capital Cy. Santo v. State, 2 Iowa, 202; Our House
Dairy Co., 62 Ohio, 350, 57 N. E. 62, v. State, 4 Greene
(Iowa), 172 Zumlioff ;
McCann u. Cora., 198 Pa. 609, 48 Atl. v. State, 4 Greene (Iowa), 526 State v. ;
470, State v. Rogers, 95 Me. 94, 49 Atl. Donehey, 8 Iowa, 396 State v. Wheeler,
;
diction of Congress is not subject to con- People v. Hawley, 3 Mich. 330 People ;
trol by the State. Ohio v. Thomas, 173 v. Gallagher, 4 Mich. 244 Jones v. Peo- ;
U. S. 276, 19 Sup. Ct. Rep. 453.] ple, 14 III. 196 State v. Prescott, 27 Vt.
;
forbid the manufacture, sale, and use of v. Parker, 31 Vt. 610. Compare Beebe v.
liquor as prejudicial to public health, State, 6 Ind. 501 Meshmeier u. State, 11
;
safety, and morals, even though thereby Ind. 484; Wynehamerv. People, 13 N. Y.
existing property is depreciated in value 378. See State v. Kennedy, 16 R. I. 409,
without compensation. Mugler v. Kan- 17 Atl. 51. So of local prohibitory laws.
sas, 123 U. S. 623, 8 Sup. Ct. Rep. 273 ; Whitney v. Township Board, 71 Mich.
Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 234, 39 N. W. 40 State w. Berlin, 21 S. C.
;
Rep. 6. See also Bartemeyer v. Iowa, 18 292 Burnside v. Lincoln Co. Ct., 86 Ky.
;
Nor is permission for sale by druggists, 9 Mont. 46, 22 Pac. 134. But the mere
and no others, class legislation. /(/. See keeping of liquor for another cannot be
Beer Co. v. Massachusetts, 97 U. S. 25. made a crime. State v. Oilman, 33 W.
pn Noel v. State, 187 111. 587, 68 N. E. Va. 146, 10 S. E. 283. In Reynolds v.
616, 52 L. R. A. 287, it is held that a law Geary, 26 Conn. 179 Jones v. Surprise,
;
restricting the sale of patent medicines 64 N. H. 243, 9 Atl. 384 Lang v. Lynch,
;
by others than registered pharmacists 38 Fed. Rep. 489, the State law forbid-
was void.] 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
destroys altogether
traffic, 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, the
if 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
it has been claimed that, when the party paid the fee, he was
payment preclude enforcement of penal- 875, post. rjBut it is not open to a State
"
"
ties Indian country,
for selling in the to compel through trains carrying in-
United States Forty-three Gallons of
v. 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. &
L. Ry. Co. v. Illi-
St.
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.
make a common carrier contracting to 650, 16 Sup. Ct. Rep. 934, aff. 90 Ga. 254,
carry property between any two points, 17 S. E. 83; but not beyond its borders.
whether within or without the State, liable W. U. Tel. Co. v. Pendleton, 122 U. S.
for any injury to such property that may 347, 7 Sup. Ct. Rep. 1126, 1 Inters. Com.
arise through its negligence or that of any R. 306. State may make it an offence to
connecting carrier to whom it may deliver have in one's possession game intended
such property in order to complete the to be shipped beyond the borders of the
performance of the contract. Missouri, State, such game having been killed
K. & T. R. Co. v. McCann & Smizer, 174 within the State, even though within the
U. S 580, 19 Sup. Ct. Rep. 755, aff. 133 open season. Geer v. Connecticut, 161
Mo. 59, 33 S. W. 71, 35 L. R. A. 110. And U. S. 519, 16 Sup. Ct. Rep. 600, aff 61
when the loss or injury occurs beyond the Ct. 144, 22 Atl. 1012, 13 L. R. A. 804,
carrier's own line, he may still be made 3 Inters. Com. R. 732. Upon relation
" unless within a between State police power and Federal
liable reasonable time
after demand made, he shall give satis- commerce power, see note to 38 L. ed.
factory proof to the consignor that the U. S. 1041. State may regulate the fish-
loss or injury did not occur while the eries within a marine league of its shores.
thing was in his charge." Richmond & Manchester v. Massachusetts, 139 U. S.
A. R. Co. v. Patterson Tobacco Co.. 169 240, 11 Sup. Ct. Rep. 559. In the absence
U. S. 311, 18 Sup. Ct. Rep. 335. Upon of Congressional regulation, a State may
State taxes and penalties as affecting make it an offence to solicit a seaman to
commerce, see Bangor v. Smith, 83 Me. desert from any vessel within its juris-
422, 22 All. 379, 13 L. R. A. 688, and diction. Re Young, 36 Greg. 247, 59 Pac.
note. A State may regulate the extent 707, 48 L. R. A. 153 Handel v. Chaplin,
;
to which a common carrier may by con- 111 Ga. 800, 36 S. E. 979, 61 L. R. A. 720.
tract relieve himself from his common- State may absolutely prohibit sale within
law liabilities. Chicago, M. & St. P. R. Co. its borders of specified kinds of game and
v. Solan, 169 U. S. 133, 18 Sup. Ct. Rep. fish during specified seasons of year.
289. Upon such contracts, see note to People v. O'Neil, 110 Mich. 324, 68 N. W.
42 L. ed. U. S. 688, in which the cases are 227, 33 L. R. A. 696. May make it a
collected. Upon interstate and foreign criminal offence to send money outside
CH. XVI.] THE POLICE POWER OF THE STATES. 853
relates to interstate commerce. St. Jos. Fish, 61 Conn. 80. QHurst v. Warner,
& G. Id. R. Co. v. Palmer, 38 Neb. 463, 102 Mich. 238, 60 N. W. 440, 26 L. K. A.
56 N. W. 957, 22 L. R. A. 335. State may 484, and see also note in L. R. A. upon
regulate pressure of natural gas trans- quarantine regulations by health author-
ported through pipes to other States. ities. See also Rasmussen v. Idaho, 181
Jamieson v. Indiana N. Gas & Oil Co., 128 U. S. 198, 21 Sup. Ct. Rep. 694, aff.
Ind. 555, 28 N. E. 76, 12 L. R. A. 652. Idaho, 59 Pac. 933, 62 L. R. A. 78.
,
state commerce, and the agent cannot be ple, 13 N. Y. 378 Coe v. Shultz, 47 Barb.
;
98 Va. 91, 34 S. E. 967, 81 Am. St. 705, Dwarris on Stat. 458. See State v. Board
47 L. R. A. 583.] of Health, 16 Mo. App. 8. The disinfec-
854 CONSTITUTIONAL LIMITATIONS. [CM. xvi.
tion of all imported rags at the expense beasts to be done at one establishment,
of the shipper may be required. Train see Milwaukee v. Gross, 21 Wis 241 ;
v. Boston Disinfecting Co., 144 Mass. Live Stock, &c. Association v. Crescent
523, 11 N. E. 929. QState may prohibit City, &c. Co., 16 Wall. 36. Compare, as
the bringing in of cattle affected with to right to establish monopolies, Gale r.
contagious disease (Texas fever), and Kalamazoo, 23 Mich. 344. A Stare
may make shipper and carrier liable for cannot require all sheep to be dipped
all loss arising from importation of such before being brought within its borders,
cattle. Missouri, K. & T. R. Co. v. Haber, without regard to whether they are dis-
169 U. S. 613, 18 Sup. Ct. Rep. 488, 878, eased or not. State v. Duckworth,
aff. 56 Kan. 694, 44 Pac. 632. See, upon Idaho, , 51 Pac. 456, 39 L. R. A. 365.]
Texas cattle acts, Grimes v. Eddy, 126 The license of a board of health is not a
Mo. 168, 28 S. W. 756, 26 L. R. A. 638, defence to an indictment for a nuisance.
and note. See also Idaho v. Rasmussen, Garrett v. State, 49 N. J. L. 94, 7 All. 29.
Idaho, 59 Pac. 933, 52 L. R. A. 78,
, Aregulation forbidding the growing
aff.181 U. S. 198, 21 Sup. Ct. Rep. 594, of rice within a city, on the ground of in-
and Smith v. St. Louis & S. W. Ry. Co., jurious effect upon health, was held valid
181 U. S. 248, 21 Sup. Ct. Rep. 603, aff. in Green v Savannah, 6 Ga. 1. (^Blow-
20 Tex. Civ. App. 451, 49 S. W. 627. ers may be required to be furnished upon
This last case is authority for the general dry emery wheels. People v. Smith, 108
doctrine that reasonable quarantine regu- Mich. 527, 66 N. W. 382, 32 L. R. A. 853,
lations of the State do not conflict with and upon power to protect health of
the power of the federal government to employees, see note hereto in L. R. A.
regulate commerce.] That the business Orders of boards of health must .be
is lawful in itself, and proper to be carried reasonable, and an order prohibiting all
on somewhere, is no objection to the persons until further order from getting
regulation. Watertown r. Mayo, 109 off any train or boat within the State is
Mass. 315 Beer Co.
;
v. Massachusetts, void, though made as a quarantine regu-
97 U. S. 25. lation against yellow fever prevalent in
If they forbid the keeping of swine in some places, because applicable as well
certain parts of a city, their regulations to persons from non-infected as from in-
will be presumed reasonable and needful. Wilson v. Alabama G. S.
fected districts.
Commonwealth Patch, 97 Mass. 221,
v. Ry. Co., 77 Miss. 714, 28 So. 567, 52
citing with approval Pierce v. Bartrum, L. R. A. 357. See on compulsory vacci-
Cowp. 269. And though they cannot be nation, 4 Law Notes, 224, 54 Cent. L.
vested with authority to decide finally Jour. 361.]
upon one's right to property when they 1 Art.
1, 10, clause 2. See Turner v.
proceed to interfere with it as constitut- Maryland, 107 U. S. 38, 2 Sup. Ct. Rep.
ing a danger to health, yet they are 44 Hospes v. O'Brien, 24 Fed. Rep. 145.
;
vested with quasi judicial power in decid- A prohibition of the sale of meat unless
ing upon what constitutes a nuisance, inspected by State officers twenty-four
and all presumptions favor their actions. hours before the slaughter of the animal
See Van Wormer v. Albany, 15 Wend. is void as excluding dressed beef brought
262; Kennedy v. Phelps, 10 La. Ann. from other States. Minnesota v. Barber,
227; Metropolitan Board v. Heister, 37 136 U. S. 313, 10 Sup. Ct. Rep. 862 ; Swift
N. Y. 661 Raymond v. Fish, 51 Conn. 80.
;
v. Sutphin, 39 Fed. Rep. 630; In re
And they may unquestionably be vested Christian, Jd. 636 Ex parte Kieffer, 40
;
with very large power to establish pest- Fed. Rep. 399. A State may prohibit
houses, and make very stringent regula- the sale within its borders of fertilizers
tions to prevent the spread of contagious and fertilizing materials that have not
diseases. As to the power of the public been officially inspected, and may collect
authorities to establish a public slaughter- a reasonable charge for inspection by its
house, or to require all slaughtering of 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, !
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 allconcerned. 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.
proper sense of that term. The sover- and the local regulations which are mere
eign power in a community, therefore, aids to commerce, and are generally left
may and ought to prescribe the manner to the States, Mobile v. Kimball, 102 U. S.
of exercising individual rights over prop- 691, per Field, J., and cases, pp. 688-
erty. It is for the better protection and 691, ante. And see Harmon v. Chicago,
enjoyment of that absolute dominion 147 U. S. 396, 13 Sup. Ct. Rep. o06, and
which the individual claims. The power note thereto in 37 L. ed. U. S. 216. State
rests on the implied right and duty of the may require intersecting railroads to es-
supreme power to protect all by statutory tablish facilities for interchange of traffic
regulations so that, on the whole, the
;
at junction points, and to establish joint
benefit of all is promoted. Every
public rates via such points, even though inter-
regulation in a city may, and does in state commerce be thereby affected.
some sense, limit and restrict the absolute Wisconsin M. & P. R. Co. v. Jacobson,
right that existed previously. But this 179 U. S. 287, 21 Sup. Ct. Rep. 115, aff.
is not considered as an injury. So far 71 Minn. 519, 74 N. W. 893, 40 L. R. A.
from it, the individual, as well as others, 389. Astatute of the State of Kentucky
is supposed to be benefited. It may, with a long and short haul provision was
then, be said that such a. power is inci- held to apply to commerce within the
dent to every well-regulated society, and State and not to contravene the com-
without which it could not well exist." merce clause of the Federal Constitution,
See Cooley v. Board of Wardens, 12 How. though the enforcement of the statute
299 ; Owners of the James Gray v. Owners might some measure affect commerce
in
of the John Frazer, 21 How. 184 Ben- ; generally. But this effect is incidental,
edict v. Vanderbilt, 1 Robertson, 194 not direct. " Interference with the com-
;
Steamship Co. v. Jolifle,2 Wall. 450; Wil- mercial power of the general government
son v. McNamee, 102 U. S. 572; Port to be unlawful must be direct and not
Wardens v. The Ward, 14 La. Ann. 289 ; merely the incidental effect of the en-
Oilman v. Philadelphia, 3 Wall. 713, 731 ;
forcement of the police power of the
Cisco v. Roberts, 36 N. Y. 292. QState State." Louisville & N. Ry. Co. v. Ken-
may require all coal-boats and barges to tucky, 183 U. S. 503, 22 Sup. Ct. Rep. 95,
be gauged, and may appoint official and cases cited in the opinion. The
gaugers and prescribe their fees. Pitts- statute construed in Louisville & N. Ry.
burg & S. Coal Co. v. Louisiana, 156 U. S. Co. v. Kentucky, just cited, was before
590, 15 Sup. Ct. Rep. 460.] the Federal Supreme Court again in Lou-
1
Gloucester Ferry Co. v. Pennsyl- isville & N. Ry. Co. v. Eubank, 184 U. S.
vania, 114 U. S. 215, 5 Sup. Ct. Rep. 27, 22 Sup. Ct. Rep. 277, in which it is
826. held that as applied to inter-state com-
2
See, for the distinction between the 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 madeby
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
;
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 :
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. Mayor, 38
U. Tel. Co. v.
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. Also Dillon, Mun.
283. Corp.
company. Louisville & N. R. R. Co. v. 291-2U4, and notes.
858 CONSTITUTIONAL LIMITATIONS. [CH. XVI.
1
Brown v. Maryland, 12 Wheat. 419. provincial legislation on commerce is
See Tiernan Rinker, 102 U. S. 123, and
v. void; the authority being with the Do-
cases pp. 688-691, 846, ante. StateA minion Parliament. Severn u. The Queen,
cannot enforce a penalty upon a telegraph 2 Sup. Ct. Rep. (Ont.) 70.
company for failure to deliver a message
8 State v. Indiana &
0. G. & M. Co.,
sent from it to another State. Western 120 Ind. 575, 22 N. E. 778; [[Manufac-
U. Tel. Co. v. Pendleton, 122 U. S. 347, 7 turer's Gas & Oil Co. v. Indiana- Natural
Sup. Ct. Rep. 1126. That a penalty may Gas & O. Co., 156 Ind. 679, 59 N. E. 169,
he imposed upon one selling from the 60 N. E. 1080, 53 L. R A. 134.]
original package oleomargarine colored
*
City of New York v. Miln, 11 Pet.
to deceive, though brought from another 192. See also State v. The Constitution,
State, such sale being prohibited by local 42 Cal. 678. QBut an act which requires
law, see Waterbury v. Newton, 60 N. J. L. a carrier who brings into the State a non-
634, 14 Atl. 604 QPlumley v, Massachu-
; resident, who within one year thereafter
setts,155 U. S. 461, 15 Sup. Ct. Rep. 154, becomes a pauper, to remove him if so
and see French v. State, Tex. Cr. App. requested by the State officers, or to pay
,
68 S. W. 1015, 52 L. R. A. 160 State ;
for his support, is void. Bangor v. Smith,
r. Willingham, 9 Wyo. 290, 62 Pac. 797, 83 Me. 422, 22 Atl. 379, 13 L. R. A. 686,
62 L. R. A. 198.] and note.]
Passenger Cases, 7 How. 283 Peo-
2 6
; Cooleyv. Board of Wardens, 12 How.
ple v. Compagnie Gen., 107 U. S. 69, 2 299. See Barnaby v. State, 21 Ind. 450;
Sup. Ct. Rep. 87 Head Money Cases,
; Steamship Co. v. Joliffe, 2 Wall. 460;
112 U. S. 680, 5 Sup. Ct. Rep. 247. See Cisco Roberts, 36 N. Y. 292 Wilson v.
v. ;
also Lin Sing r. Washburn, 20 Cal. 634, McNamee, 102 U. S. 572. As to State
where a State law imposing a special tax control of harbors, see Mobile v. Kimball,
on every Chinese person over eighteen 102 U. S. 691. [Until Congress acts in
years of age for each month of his resi- the matter, there is no Federal objection
dence in the State was held unconstitu- to a city's regulation of the speed of rail-
tional, as in conflict with the power of way trains (even when they are engaged
Congress over commerce. In Canada, iu inter-state commerce) within the city
CH. XVI.] THE POLICE POWER OF THE STATES. 850
on the first day of the week have been held not to encroach upon
the religious liberty of those citizens who do not observe that
day as sacred. Neither are they unconstitutional as a restraint
upon trade and commerce, or because they have the effect to destroy
the value of a lease of property to be used on that day, or to make
void a contract for Sunday services. 2 There can no longer be any
question, if any there ever was, that such laws may be supported
as regulations of police. 3
limits. Erb. v. Morasch, 177 U. S. 684, 18 Cal. 078; Ex parte Bird, 19 Cal. ISO;
20 Sup. Ct. Rep. 819. But a city caunot Hudson Geary, 4 R. I. 485 Frolick-
v. ;
levy a license tax upon tugs engaged in stein v Mobile, 40 Ala. 725; State v.
s
306, 13 Sup. Ct. 306; and see note to this v. Hyneman, 101 Mass. 30; Common-
case in 37 L. ed. U. S. 216, upon State wealth r. Has, 122 Mass. 40; Augusta,
control of inter-state commerce.] &c. R. R. Co. v. Renz, 55 Ga. 126 [State ;
Co. v. Com., 93 Va. 749, 24 S. E. 837, 34 Brooks, 9 Allen, 118; George v. George,
L. R. A. 105; Dugan v. State, 125 Ind. 47 N. H. 27. As to what are works of
130, 25 N. E. 171, 9 L. R. A. 321.] And necessity or charity, see Stanton v. Metro-
see Ex parte Andrews, 18 Cal. 678; Ex politan R. R. Co., 14 Allen, 485; McClary
parte Bird, 19 Cal. 130; ante, p. 688, and v.Lowell, 44 Vt. 116 ; Logan v. Matthew.*,
notes. 6 Pa. St. 417; Connolly v. Boston, 117
3
Specht v. Commonwealth, 8 Pa. Mass. 64, 19 Am. Rep. 396 Yonoski v. ;
St. 312; Commonwealth v. Jeandelle, State (Ind.), 6 Am. & Eng. R. R. Cas. 40,
2 Grant, 506 ;City Council v. Benjamin, and note, p. 42, where the authorities are
2 Strob. 508; State v. Ambs, 20 Mo. 214; collected ; Commonwealth v. Louisville,
St. Louis v. Cafferata, 24 Mo. 94 Kurtz ;
&c. R. R. Co., 80 Ky. 291 Stone v. ;
Handy v. St. Paul, &c. Pub. Co., 41 Minn. Col. 223, 15 Pac. 399 Haigh r BeU)
;
188, 42 N. W.
872; Splane v. Com., 41 W. Va.19, 23 S. E. 666, 31 L. R. A.
Pa. St. 12 Atl. 431
, [Tetit v. Minne-
; 131.] This applies to beasts of non-resi-
sota, 177 U. S. 164, 20 Sup. Ct. Rep. 666, dents. Mayor of Cartersville v. Lanham,
and note on " Constitutionality of statutes 67 Ga. 753; Rose v. Hardie, 98 N. C. 44,
making it unlawful for barbers to carry on 4 S. E. 41. The payment of a fine by the
their business on Sunday," in 44 L. ed. owner cannot be required as a condition
U. S. 716. See also People v. Bellet, 99 of their release, under general charter
Mich. 151, 67 N. W. 1094, 22 L. R. A. 696 ; power of this kind. Wilcox v. Hamming,
Judefind v. State, 78 Md. 610, 28 Atl. 68 Wis. 144, 15 N. W. 435.
4
405, 22 L. R. A. 721, and note Quarles; Godard, Petitioner, 16 Pick. 604;
r. State, 65 Ark. 10, 17 S. W. 269, 14 Bonsall v. Mayor of Lebanon, 19 Ohio,
L. R. A. 192, and note; Com. v. Wald- 418 Paxson v Sweet, 1 Green (N. J.), 196 ;
;
.
man, 140 Pa. 89, 21 Atl. 248, 11 L. R. A. Lowell f. Hadley, 8 Met. 180 Washing- ;
of a street from time to time without lia- 309, per Christiancy, J. Matter of Dor- ;
bility to parties incidentally injured, see ranee St., 4 R. I. 230 Deblois v. Barker,
;
2
Commonwealth v. Worcester, 3 Pick. 226 Sands v. Richmond, 31 Gratt. 571,
;
1 Hill, 470; Washington v. Nashville, 120 Pa. St. 357, 14 Atl. 170. In Minne-
1 Swan, 177; State v. Foley, 31 Iowa, sota this right is exercised under the tax-
5'J7 ; fJState may regulate the placing of ing power. Hennepin Co. v, Bartleson,
electric wires in streets and subways. 37 Minn. 343, 34 N. W. 222. In Arkan-
New York v. Squire, 145 U. S. 175, 12 sas the duty may be enforced by a fine.
Sup. Ct. Rep. 880, aff. 107 N. Y. 693, 14 James v. Pine Bluff, 49 Ark. 199, 4 S. W.
N. E. 820, 14 Daly, 154, 166J 760. Compare Port Huron v. Jenkinson,
8 McKee v.
McKee, 8 B. Monr. 433 ; 77 Mich. 414, 43 N. W. 923. In Penn-
Municipality r. Blanc, 1 La. Ann. 385; sylvania it has been held competent to
Whitfield v. Longest, 6 Tred. 268 Gosse- ; require the owners of city lots, in front
link v. Campbell, 4 Iowa, 296; Roberts v. of which sewers are constructed, to pay
Ogle, 30 111. 459; Commonwealth v. Cur- the expense thereof in proportion to the
tis, 9 Allen, 266; Brophy v. Hyatt, 10 street front. Philadelphia v. Tryon, 35
CH. XVI.] THE POLICE POWER OF THE STATES. 861
there may be times when it becomes too dry and shallow for the
" The
purpose. capacity of a stream, which generally appears by
the nature, amount, importance, and necessity of the business
States. Jersey City, 5 Dutch. 441. [And gan King, 18 Barb. 277.
v.
8 Brown v.
a street-railway company may be re- Cliadbourne, 31 Me. 9;
quired to pave the street for a reasonable Knnx Clialoner, 42 Me. 150; Lancey v.
i-'.
width along its tracks, even though the Clifford, 54 Me. 487 Gerrish v. Brown,
;
power to make such requirement was not 51 Me. 256 ; Scott v. Willson, 3 N. H. 321 ;
reserved when the company was author- Shaw r. Crawford, 10 Johns. 236 Mun- ;
ized to occupy the streets with its tracks. son v. Hungerford, 6 Barb. 265; Browne
Sioux City St. R. Co. v. Sioux City, 138 v. Scofield, 8 Barb. 239 Morgan v. King, ;
U. S. 98, 11 Sup. Ct. Rep. 226; Storrie 18 Barb. 284, 30 Barb. 9, and 35 N. Y.
v. Houston City St. R. Co., 92 Tex. 129, 454; Cates r. Wadlington, 1 McCord, 580;
46 S. W. 796, 44 L. R. A. 716. Upon Commonwealth v. Cliapin, 5 Pick. 199 ;
liability of street-railways for paving as- Moore v. Sanborne, 2 Mich. 519; Lorman
sessments, see note to 46 L. R. A. 193.] v. Benson, 8 Mich. 18 Depew v. Board
;
1
See especially the case of Godard, of Commissioners, &c., 5 Ind. 8 Board of ;
Petitioner, 16 Pick. 504, for a clear and Commissioners v. Pidge, 5 Ind. 13 Stuart ;
of sidewalks or the keeping of them free v. Allen, 72 Ala. 456; Little Rock, M.
of snow by the owners of abutting lots &c. Ry. Co. v. Brooks, 39 Ark. 403 Mc- ;
under the police power. Ottawa v.Spen- Manus v. Carmichael, 3 Iowa, 1 Weise ;
cer, 40 111. 211 ; Gridley v. Bloomington, v. Smith, 3 Oreg. 445, 8 Am. Rep. 621.
88 111. 554, 30 Am. Rep. 566. [Likewise
862 CONSTITUTIONAL LIMITATIONS. [CH. XVI.
ciples of law to the case. And they are not the less applicable
because this particular business may not always continue though ;
if itcan of necessity last but a short time, and the river can be
used for no other purpose, that circumstance would have weight
"1
in the consideration of the question. 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
2
he sees fit to dedicate it to their use.
All navigable waters are for the use of all the citizens and ;
HI. 110; Haines v. Hall, 17 Oreg. 165, 20 U. 20 Sup. Ct. Rep. 343. Upon
S. 211,
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.]
floatinglogs 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 ;
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
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.
8
held liable to an action for the injury. Morgan v. King, 18 Barb. 284, 35
French v. Camp, 18 Me. 433. But this N. Y. 454.
* Willson
rule is now modified, at least as to the Black Bird Creek Marsh
v.
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. and 18 How. 421. By the or-
518,
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 tosuch 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.
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, since such a grant would come directly in
1
repeatedly held to refer not to physical from being made except in conformity
obstructions but to the imposition of du- with such regulations as it may impose."
ties for the right to navigate them, that [[States may improve the navigability of
is,to political regulations hampering the waters accessible to inter-state commerce
freedom of commerce. Cardwell v. Ainer. in the absence of repugnant Congres-
Bridge Co., 113 U. S. 205, 5 Sup. Ct. sional legislation. Stockton v. Powell,
Rep. 423 Hamilton v. Vicksburg, &c.
;
29 Fla. 1, 10 So. 688, 16 L. R. A. 42.]
R. R. Co., 119 U. S. 280, 7 Sup. Ct. Rep. 1
Gibbons v. Ogden, 9 Wheat. 1. The
206; Huse v. Glover, 119 U. S. 543, 7 Sup. case was the well-known historical one,
Ct. Rep. 313 Sands v. Manistee R. Imp.
; involving the validity of the grant by the
Co., 123 U. S. 288, 8 Sup. Ct. Rep. 113; State of New York to Robert Fulton and
Willamette Iron B. Co. v. Hatch, 125 his associates of the exclusive right to
U. S. 1, 8 Sup. Ct. Rep. 811. In the last navigate the waters of that State with
"
case, Bradley, J., says : The clause in vessels propelled by steam. This subject
question cannot be regarded as establish- is further considered in Gilman v. Phila-
ing the police power of the United States delphia, 3 Wall. 713; and in The Daniel
over the rivers of Oregon, or as giving to Ball, 10 Wall. 657, in which the meaning
the federal courts the right to hear and of the term "navigable waters of the
"
determine, according to federal law, United States is defined. And see
every complaint that may be made of an Craig v. Kline, 65 Pa. St. 399, 3 Am. Rep.
impediment in, or an encroachment upon, 636.
the navigation of those rivers. We do 2 Veazie v.
Moor, 14 How. 568. The
not doubt that Congress, if it saw fit, exclusive right granted in this case was
could thus assume the care of said to the navigation of the Penobscot River
streams, in the interest of foreign and above Old Town, which was to continue
inter-state commerce; we only say that, for twenty years, in consideration of im-
in our opinion, it has not done so by the provements in the navigation to be made
clause in question. And although, until by the grantees. Below Old Town there
Congress acts, the States have the plen- were a fall and several dams on the river,
ary power supposed, yet when Congress rendering navigation from the sea impos-
chooses to act, it is not concluded by any- sible. And see McReynolds v. Small-
thing that the States have done from as- house, 8 Bush, 447. It is no infraction
suming entire control of the matter, and of the public right for a city to permit
abating any erections that may have individuals to put up sheds upon its piers,
been made, and preventing any others thereby excluding the general public, in
CH. XVI.] THE POLICE POWER OF THE STATES. 865
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
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 Wisconsin Constitution a stream wholly
improvement of a stream by
State authority will give no right of ac- within the State may not be completely
tion toan 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
Glover, 119U. S. 543, 7 Sup.
Huse v. 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.
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<D Columbus Insurance Co. v. v. Amer. Bridge Co., 113 U. S. 205, 5 Sup.
regulation, a bridge may be built under and the case at bar distinguished. In
State authority across a river wholly the Wheeling case, it is said the court
within it, though it be capable of use in applied principles of international law,
CH. XVI.] THE POLICE POWER OF THE STATES. 867
And passed on the force of a pre-constitu- merce. See Covington & C. Bridge Co.
tional compact of Virginia, and from the v.Kentucky, 154 U. S. 204, 14 Sup. Ct.
decision no inference is to be drawn that Rep. 1087. j Ferry rights may be so reg-
the courts of the United States claim ulated as to rates of ferriage, and ferry
authority to regulate all bridges below franchises and privileges so controlled in
ports of entry, and to treat all State the hands of grantees and lessees, that
legislation in such cases as void. they shall not be abused to the serious
1 detriment or inconvenience of the public.
Conway Taylor's Ex'r, 1 Black,
v.
603 ;
v. East St. Louis,
Wiggins Ferry Co. Where this power is given to a munici-
107 U. S. 365, 2 Sup. Ct. Rep. 257 Chil- ; pality, it may be recalled at any time.
vers v. People, 11 Mich. 43; Marshall v. People v. Mayor, &c. of New York, 32
Grimes, 41 Miss. 27 QNixon v. Reid,
;
Barb. 102.
8 S. D. 507, 67 N. W. 57, 32 L. R. A. a
Willson v. Black Bird Creek Marsh
315.] In these cases the State license Co., 2 Pet. 245 Brown v. Commonwealth,
;
law was sustained as against a vessel en- 3 S. & R. 273 Bacon v. Arthur, 4 Watts,
;
rolled and licensed under the laws of 437 Hogg o. Zanesville Co., 5 Ohio, 410
; ;
Congress. And see Fanning v.Gregorie, Neaderhouser v. State, 28 Ind. 257. And
16 How. 524. But the State may not tax see Flanagan v. Philadelphia, 42 Pa. St.
the capital stock of a ferry company of 219; Depew r. Trustees of W. & 3.
another State, whose only business Canal, 6 Ind. 8 ; Woodburn v. Kilbourne
within the former State is discharging Manuf. Co., 1 Bissell, 546, 1 Abb. U. S.
and receiving persons and property pass- 158; Hinchman Patterson, &c. R. R., 17
v.
tan, &<:. R. R. Co., 109 Mass. 506. [But Canal Co., 1 W. & S. 346; Depew v.
not the tolls chargeable on inter-state com- Trustees of W. & E. Canal, 6 Ind. 8.
868 CONSTITUTIONAL LIMITATIONS. [CH. XVI.
5
sometimes land is appropriated under the eminent domain.
1 469
People v. Jenkins, 1 Hill, ;
Peo- land, 114 U. S. 606, 5 Sup. Ct. Rep. 1086.
pie v. Roe, 1 Hill, 470. As to the right The taking of property for drainage pur-
of regulation in general, see Harrigan v. poses is in the exercise of this power.
Lumber Co., 129 Mass. 580, 37 Am. Rep. Winslow ?;. Winslow, 95 N. C. 24. Under
387. As to the right to regulate fisheries it the cost of such an improvement made
in navigable waters, see Gentile v. State, by the public authorities may be imposed
29 Ind. 409 Phipps v. State, 22 Md. 380
; ; upon the property benefited according to
People v. Reed, 47 Barb. 235; Drew v. benefits. Bryant v. Robbins, 70 Wis.
Hilliker, 56 Vt. 641 ;
Chambers v. Church, 258, 35 N. W. 545; Donnelly v. Decker,
14 R. I. 398. .
58 Wis. 461, 17 N. W. 389. It is com-
2 on
Cooley Taxation, 401, 402. See petent to require a lot-owner to fill up at
State Newark, 27 N. J. 185, 194, per
v. his own expense a lot which otherwise
Elmer, J. Crowley v. Copley, 2 La. Ann.
;
would become a nuisance. Nickerson v.
329. In Pennsylvania it has been held Boston, 131 Mass. 306.
that the State cannot, as a measure of *
Reeves v. Treasurer of Wood Co., 8
police, compel the owner of lands bounded Ohio St. 333; Sessions v. Crunkilton, 20
on inland tide-water to construct embank- Ohio St. 349; Egyptian Levee Co. v.
ments to exclude the natural flow of the Hardin, 27 Mo. 495; McGehee v. Matin's,
water, but that where the State constructs 21 Ark. 40 Yeatman
; Crandall, 11 La.
.
them at its own expense, and leaves them Ann. 220; ScufHetown Fence Co. v. Mc-
in possession of the owner, it may impose Allister, 12 Bush, 312 ;
Davidson v. New
on him the duty of repair. Philadelphia Orleans, 96 U. S. 97.
v. Scott, 81 Pa. St. 80. 5 Commissioners who are empowered
8 See to straighten a river to protect a country
State v. City Council of Charles-
ton, 12 Rich. 702, 733 Wurts v. Hoag-
; against inundation are not liable person-
CII. XVI.] THE POLICE POWER OF THE STATES. 869
ally for incidental injuries to individuals. compartment set apart for the use of
Neither there any claim against the
is the other. Plessy v. Ferguson, 163 U. S.
public. Green i>. Swift, 47 Cal. 536; 637, 16 Sup. Ct" Rep. 1138, aff. 45 La.
Green v. State, 73 Cal. 29, 11 Pac. 002, Ann. 80, 11 So. 948, 18 L. R. A. 639.
14 Pac. 610. And seems that a railroad engaged
it
1 Laws of 1875, c. 114. in inter-state commerce may be com-
2 In 1883 the act was held unconstitu- pelled to comply with such regulations
tional. The Fourteenth Amendment, so far as its domestic traffic is concerned.
" invest Con-
says Bradley, J., does not Chesapeake & 0. R. Co. v. Kentucky,
gress with power to legislate upon sub- 179 U. S.388, 21 Sup. Ct. Rep. 101.
jects which are within the domain of That carriers of passengers may of their
State legislation, but to provide modes of own motion make similar regulations, see
relief against State legislation or State Chilton v. St. Louis & I. M. R. Co., 114
action of the kinds referred to. It does Mo. 88, 21 S. W. 457, 19 L. R. A. 269.
not authorize Congress to create a code See also Anderson v. Louisville & N. Ry.
of municipal law for the regulation of Co., 91 Tenn. 44, 17 S. W. 803. In
private rights but to provide modes of
; Younger v. Judah, 111 Mo. 303, 19 S. W.
redress against the operation of State 1109, 33 Am. St. 527, 16 L. R A. 558, it
laws and the action of State officers, ex- was held that the proprietor of a theatre
ecutive and judicial, when these are might, in the absence of a State statute
subversive of the fundamental rights forbidding, prohibit colored persons from
specified in the amendment." Civil attending his theatre, except they took
Rights Cases, 109 U. S. 3, 3 Sup. Ct. seats in the balcony. The principle ap-
Rep, 18. plied was that under the Civil Rights
3
Donnell v. State, 48 Miss. 661. FJA Cases, 109 U. S. 3, 3 Sup. Ct. Rep. 18;
State may require railroads operating the Fourteenth Amendment did not con-
wholly within its borders to furnish trol the conduct of private persons, but
separate passenger cars or separate com- the action of the State, and was not ap-
partments in a single passenger car for plicable to a regulation established by a
private person for the conduct of his
white persons and for negroes, and may busi-
make it a criminal offence for a per- ness though of a quasi public character.
son of one race to occupy the car or In Cisco v. School Board, 161 N. Y. 598,
870 CONSTITUTIONAL LIMITATIONS. [CH. XVI.
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.
ing and collecting tolls ; and tolls can never be taken except by
permission of the State, which generally ought to and does pre-
scribe their limits. A hackman exercises a public employment
in the public street one which affords peculiar opportunities for
;
make their own bargains, and the legislative rate only controls
where the parties by implication have apparently acted in refer-
ence to it. In England, formerly, the lords of manors, as mill-
owners, had exclusive rights and where an exclusive right exists
;
in one's favor, to compel the public to deal with him, there can
be no doubt of the right in the State to compel him to deal
fairlywith the public. Such a right existed in the English ware-
house case of Alnutt v. Inglis,2 in which the Court of King's
Bench denied the right of the warehousemen to fix their own
charges at discretion, when the public, under exclusive privileges
which the warehousemen possessed, were compelled to deal with
them. 3
2
i Munn v. Illinois, 94 U. S. 113, 125. 12 East, 527.
In this case, Justices Field and Strong 8 In Munn v. People, 60 III. 89, 91,
dissented. This case is followed in New Chief Justice Breese, in speaking of the
" make all
York with reference to the grain eleva- power to needful rules and
tors at Buffalo. People v. Budd, 117 regulations respecting the use and enjoy-
N. Y. 1, 22 N. E. 670, 682, 5 L. R. A. 559, meut of property," speaks of familiar in-
and note, two judges dissenting. fJSus- stances in which the exercise of it in the
tained in Budd v. New York, 143 U. S. State has been unquestioned, and among
517, 12 Sup. Ct. Rep. 468. Principle re- them, "in delegating power to municipal
affirmed in Brass v. North Dakota, 153 bodies to regulate charges of hackmen
U. S. 391, 14 Sup. Ct. Rep. 857, aff. 2 and draymen, and the weight and price
N. D. 482, 52 N. W. 408.] of bread." Regulating the weight of
the regulation of rates as established by Sup. Ct. Rep. 802; upon State control
the decisions of the Supreme Court of the over railroads," see Baltimore & O. R. Co.
United States, distinguishing between the v. Maryland, 21 Wall. 456, 22 L. ed. U. S.
" "
business of a public character and that 678, and note. The reasonableness of
not strictly of a "public character" but rates is to be determined by considering
"
in which the public have an interest." their effect upon the traffic of the entire
He says, " The present scope of the decis- system, and not merely upon some par-
ions of this court in respect to the power ticular portion of it. St. Louis & S. F. R.
"
of the legislature in regulating rates is : Co. v. Gill, 156 U. S 649, 15 Sup. Ct.
" As to those individuals and
corporations Rep. 484. The State's power to regulate
who have devoted their property to a use rates which affect only internal commerce
in which the public Las an interest, is not affected by the fact that the carrier
CH. XVI.] THE POLICE POWER OF THE STATES. 873
and it seems to have been the view of both courts in this case,
that the circumstances were such as to give the warehousemen in
Chicago, who were the only persons affected by the legislation, a
" virtual "
monopoly of the business of receiving and forwarding
the grain of the country to and from that important point, and by
the very fact of monopoly to give their business a public character,
affect the property in it with a public interest, and render regula-
tion of charges indispensable. 1
Sup. Ct. Rep. 400. The determination of v. Gill, 54 Ark. 101, 15 S. W. 18, 11
the rates to be charged is a legislative and note, aff. 156 U. S. 649,
L. R. A. 452,
function and cannot be undertaken by 15 Sup. Ct. Rep. 484; Steenerson v.
the courts. Nebraska Telephone Co. v. Great Northern Ry. Co., 69 Minn. 353, 72
State, 55 Neb. 627, 76 N. W. 171, 45 N. W. 713. For other cases upon powers
L. R. A. 113. But as the courts will not of railroad commissions, see Atlantic Ex.
enforce a rate unreasonably low, neither Co. v. Wilmington & W. R. Co., Ill
will they enforce one that is unreasonably N. C. 463, 16 S. E. 393, 18 L. R. A.
high, nor will any person carrying on a 393; Burlington, C. R. & N. R. Co. v.
r. Goldsboro Water Co., 122 N. C. 206, 418, 10 Sup. Ct. Rep. 462, 702 Beardsley ;
"
The phrase "affected with a public interest has been brought
into recent discussions from the treatise De Portibus Maris of Lord
nent domain being always employed in of railroad rates are collected in a note to
their favor, and sometimes the power of 44 L. ed. U. S. 417. Courts should not
taxation. interfere except in a perfectly clear case.
The question of the power of the State San Diego Land & Town Co. v. National
legislature to regulate the charges of City, 174 U. S. 739, 19 Sup. Ct. Rep. 804.
common carriers for the transportation See also Smyth v. Ames, 169 U. S. 466,
of persons and property within the 18 Sup. Ct. Rep. 418, mod. in 171 U. S.
State, is fully determined in the affirm- 361, 18 Sup. Ct. Rep. 888 Reagan v.;
ative by the decisions of the federal Farmers' L. & T. Co., 154 U. S. 362, 14
Supreme Court. In Railroad Company Sup. Ct. Rep. 1047. State cannot require
v. Fuller, 17 Wall. 560, an act was railway company to carry shipper of live
sustained which provided, 1. That each stock free from transportation charges.
railroad company should annually, in a Atchison, T. & S. F. Ry. Co. v. Campbell,
month named, fix its rates for the trans- 61 Kan. 439, 59 Pac. 1051, 78 Am. St.
portation of passengers and freights :
328.] A
State cannot empower a com-
2. That it should on the first day of the mission to fix rates finally without oppor-
next month cause a printed copy of such tunity for a judicial hearing on the
rates to be put up in all its stations and question or their reasonableness. Chi-
depots, and to be kept up during the year ; cago, M. & St. Paul Ry. Co. v. Minnesota,
3. That the failure to comply with these 134 U. S. 418, 10 Sup. Ct. Rep. 402, 702.
requirements, or the charging of a higher But in Camden, &c. R. R. Co. v. Briggs,
rate than was posted, should subject the 22 N. J. 623, and Phila., &c. R. R. Co. v.
offending company to penalties. In the Bowers, 4 Houst. 500, it was held that
warehouse case of Munn v. Illinois, 94 there was no power to regulate rates
U. S. 113, the power to limit charges was where no such authority was reserved in
directly involved, and was affirmed, as it the charter, and see cases at end of note.
was in Chicago, &c. R. R. Co. v. Iowa, In these cases no question arose of the
94 U. S. 155. The State may limit the application of the power to contracts, for
amount charges for transportation,
of transportation through the State, or from
provided such regulation does not amount or to points within a State and other
to a taking of property by compelling car- points outside; but in Peik v. Chicago,
rying without reward, unless restrained &c. R. R. Co., 94 U. S. 164, it was decided
by contract in the charter. But the that the State had power to prescribe a
charter power to fix rates does not for- maximum of charges to be made by rail-
bid such regulation. Railroad Com. road companies, not only for transport-
Cases, 116 U. S. 307, 6 Sup. Ct. Rep. 334, ing persons or property within the State,
348, 349, 388, 391, 1191; Dow v. Beidel- but also persons or property taken up
man, 125 U. Sup. Ct. Rep. 1028
S. 680, 8 ;
outside the State and brought within it,
Georgia R. R. & B. Co. v. Smith, 128 or taken up inside and carried without.
U. S. 174, 9 Sup. Ct. Rep. 47 Pennsyl- ;
Note was made in the case that Congress
vania R. R. Co.v. Miller, 132 U. S. 75/10 had established no regulation with which,
Sup. Ct. Rep. 34. The charges for busi- the State statute would conflict. But this
ness done wholly within the State may case is substantially overruled as to this
thus be regulated although a road af- point by Wabash, St. L. & P. Rv. Co. v.
fected may run through several States. Illinois, 118 U. S. 557, 7 Sup. Ct". Rep. 4,
Railroad Com. Cases, supra. The reason- where the Illinois statute forbidding a
ableness of charges is a judicial question. greater charge for a shorter than for a
QAnd fordetermination the cost of
its longer haul in the same direction was
doing the business must be known as held inapplicable to the case of a con-
well as the gross earnings to be yielded tinuous voyage from a point within to a
under the rates in question. Chicago, M. point without the State, as an interference
& St. P. R. Co. v. Tompkins, 176 U. S. with inter-state commerce. Like rulings
167, 20 Sup. Ct. Rep. 336. The cases have been made in several cases. Carton
" A
Hale, where the important passage is as follows man for his :
32 Kan. 698, 5 Pac. 6. Nor may the Omaha & Council Bluffs Ry. & Bridge
State control rates between two points Co., 113 Iowa, 30, 84 N. W. 983, 52 L. R. A.
within it, if the transit is in part through 315. An act of the New York legislature
another State. State v. Chicago, &c. Ry. requiring railway companies to issue
Co., 40 Minn. 267,41 N. W. 1047; Stern- mileage tickets was held invalid, as
berger Railroad Co.,
. Ga. 7 S. E. , being neither the exercise of the power
836. See Cotton Exchange v.
Ry. Co., to fix rates, or of thepower of police re-
2 I. S. C. R. 375. Contra, Com. v. Lehigh gulation, in Beardsley v. N. Y., L. E. &
V. R. R. Co., Pa. St. 17 Atl. 179
, ; W. Ry. Co., 162 N. Y. 230, 56 N. E. 488.
[Campbell v. Chicago, M. & St. P. R. A statute requiring one railway company
Co., 86 Iowa, 587, 53 N. W. 351, 17 to accept mileage issued by another is
L. R. A. 443J See Gulf, C. & S. F. Ry. invalid for requiring one company to ac-
Co. v. State, 72 Tex. 404, 10 S. W. 81. cept passengers on the credit of another.
[State cannot regulate tolls upon inter- Attorney-General v. Boston & Albany
state commerce. Covington & C. Bridge Ry. Co., 160 Mass. 62, 35 N. E. 252.
Co. v. Kentucky, 154 U. S. 204, 14 Sup. Reasonableness of rates must be deter-
Ct. Rep. 1087.3 mined upon consideration of facts exist-
See further Providence Coal Co. v. ing at the time such rates are to be
Prov. & W. R. R. Co., 15 R.I. 303, 4 Atl. enforced. Smyth v. Ames, 171 U. S.
394; Chicago, M. & St. P. Ry. Co. v. 361, 18 Sup. Ct. Rep. 888, mod. decrees
Becker, 32 Fed Rep. 849; Parker v. in 169 U. S. 466, 18 Sup. Ct. Rep. 418.
Metropolitan R. R. Co, 109 Mass. 506; Upon regulation of rates by statute see
People v. Boston, &c. R. R. Co., 70 N. Y. Winchester & L. T. Road Co. v. Croxton,
569; Chicago, &c. R. R. Co. v. People, 67 93 Ky. 739, 34 S. W. 518, 33 L. R. A.
111. 1 ;Ruggles v. People, 91 111. 256 ; 177, and note, and Louisville & N. R. Co.
Fuller v. Chicago, &c. R. R. Co., 31 Iowa, v. Kentucky, 99 Ky. 132, 35 S. W. 129,
188; Council Bluffs v. Kansas City, &c. 33 L. R. A 209, and note also Cleve-
;
R. R. Co., 45 Iowa, 338; Attorney-Gen- land, C. C. & I. R. Co. v. Closser, 126 Ind.
eral v. Railroad Companies, 35 Wis. 425 ; 348, 26 N. E. 159, 9 L. R. A. 754, and note,
Peik v. Chicago, &c. R. R. Co., 6 Biss. and St. Louis & S. F. R. Co. v. Gill, 54
177; Blake v. Winona, &c. R. R. Co., 19 Ark. 101, 15 S. W. 18, 11 L. R. A. 452,
Minn. 418, 18 Am. Rep. 345, s. c. in error, and note; aff 156 U. S. 649, 16 Sup. Ct.
94 U. S. 180 Chicago, &c. R. R. Co. v.
; Rep. 484. The reasonable value of the
Ackley, 94 U. S. 179. [While a State property at the time is to be considered
may restrict a railroad to reasonable rather than its original cost. San Diego
rates, it cannot compel lower rates to one Land & Town Co. v. National City, 174
class of persons than another, nor can it U. S. 739, 19 Sup. Ct. Rep. 804. Toll
fix in advance a period during which the roads come under the same principles as
prescribed rates shall be observed. Lake railroads. Covington & L. Turnp. Road
Shore & M. S. R. Co. v. Smith, 173 U. S. Co. Sandford, 164 U. S. 678, 17 Sup. Ct.
v.
684, 19 Sup. Ct. Rep. 565, rev. 114 Mich. Rep. 198. A State cannot, under its general
460, 72 N. W. 328. But where the railroad power to prevent discrimination among
receives its franchises after the adoption shippers, compel a railroad to permit pri-
of a statute requiring such companies to vate persons to erect an elevator adjacent
issue 1000 mile tickets at specified re- to its sidings andupon its lands, where
duced rates, it is bound to obey. It can- sucli elevator would be used by these per-
not complain that it is thereby deprived sons and others for the storage of their
of property without due process. Nor own grain, even though the railroad has
does such a law, where the tickets are granted such privilege to other shippers.
good only within the State operate as a Such action would be a taking of private
876 CONSTITUTIONAL LIMITATIONS. [CH. XVI.
crane, and may take what rates he and his customers can agree
for cranage, wharfage, housellage, pesage for lie doth no more
;
than is lawful for any man to do, viz., makes the most of his own.
If the king or subject have a public wharf unto which all per-
sons that come to that port must come and unlade or lade their
goods as for the purpose, because they are the wharves only
licensed by the queen, or because there is no other wharf in that
port, as it may fall out where a port is newly erected in that ;
erate, though settled by the king's license or charter. For now the
wharf, crane, and other conveniences are affected with a public in-
terest, and they cease to be juris privati only as if a man set out
;
property, and he chances to be the only one with whom the pub-
lic can deal in respect to the use of that property, it seems entirely
stain from discrimination among patrons. L. R. A. 110; aff. 170 U. S. 580, 19 Sup.
Rushville v. Rushville Nat. Gas Co., 132 Ct. Hep. 755. Singer Mfg. Co. v. Wright,
Ind. 575, 28 N. E. 853, 15 L. R. A. 321, 97 Ga. 114, 25 S. E. 249, 35 L. R. A. 497 ;
and note. For various State cases pass- Lafarier v. Grand Trunk R. Co., 84 Me.
ing upon question of inter-state commerce, 286, 24 All. 848, 17 L. R. A. Ill; Mobile
see State v. Stripling, 113 Ala 120, 21 So. & 0. R. Co. v. Dismukes, 94 Ala. 131, 10
409, 36 L. R. A. 81 ;
W. Union Tel. Co. So. 289, 19 L. R. A. 113; State v. Hicks,
Eubank, 100 Ky. 591, 38 S. W. 1068, 36 44 La. Ann. 770, 11 So. 74J
CH. XVI.] THE POLICE POWER OF THE STATES. 877
v. Albina Light & W. Co., 21 Oreg. 411, 28 Pac. 214, 14 L. K. A. 424 Richmond N. ;
Gas Co. v. Clawson, 155 Ind. 659, 58 N. E. 1049, 51 L. R. A. 744. See also People
v. Chicago Gas Trust Co., 130 111. 268, 22 N. E. 798. 8 L. R. A. 497. Where no espe-
cial privilege or aid is received, the corporation must be left free to contract as it
pleases. State v. Associated Press, 159 Mo. 410, 60 S. W. 91. The legislature can-
not fix by statute the measure of compensation to be paid by a city for labor or other
services it may be compelled to employ. This principle applied in a case where the
statute provided that the same rate of wages must be paid on city contracts as labor-
ers in like occupation received in the same locality. People ex rel. Rodgers v. Coler,
16G N. Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. 605. For other cases involving
similar principles, see Com. v. Perry, 155 Mass. 117, 28 N. E. 1126, 14 L. R. A. 325,
81 Am. declaring invalid an act forbidding withholding of wages for imper-
St. 533,
fection in work
Ramsey People, 142 111. 380, 32 N. E. 364, 17 L. R. A. 853, holding
: .
tiiat an act relating to the payment of wages to miners upon basis of quantity of coal
mine 1 was invalid Godcharles v. Wigeman, 113 Pa. 431, 6 Atl. 354 State v. Good-
:
;
will, 33 W. Va. 179, 10 S. E. 285, 6 L. R. A. 621, 25 Am. St. 863, are cases in which
acts to secure coal miners, and others laboring in certain factories, the payment
of their wages at regular intervals and in lawful money only, were held void. Con-
tra, Hancock v. Yaden, 121 Ind. 366, 23 N. E. 253, 6 L. R. A. 576 Avent-Beattyville ;
7 Wash. 471, 35 Pac. 370, and see note to State v. Goodwill, supra, 25 Am. St. 870,
on the Fourteenth Amendment considered with relation to Special Privileges, Bur-
dens and Restrictions. Other cases on the subject are, State v. Fire Creek, C. & C.
Co., 33 W. Va. 188, 10 S. E. 288, 6 L. R. A. 359, 25 Am. St. 891 Frorer v. People, ;
141 III. 171, 31 N. E. 395, 16 L. R. A. 492 Braceville Coal Co. v. People, 147 III. 66,
;
35 N. E. 62, 22 L. R. A. 340, 37 Am. St. 206 State v. Lootnis, 115 Mo. 307, 22 S. W.
;
350, 21 L. R. A. 789; Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. v
Rep. 1, aff. 103 Tenn. 421, 53 S. W. 955, 76 Am. St 682. In this last case a statute
of Tennessee requiring the redemption in cash of store orders or other evidences of
indebtedness issued in payment of wages earned by employees is held
by employers
to be constitutional. Dayton Coal and Iron Co.
Followed in Barton, 183 U. S. 23,
t;.
22 Sup. Ct. Rep. 5. The case of People ex rel. Rodgers v. Coler, supra, is authority
for the doctrine that a municipal corporation, as to matters affecting its property and
private contracts, has the same status as private corporations and individuals.
Clark v. State, 142 N. Y. 101, 36 N. E. 817, is distinguished.]
878 CONSTITUTIONAL LIMITATIONS. [oil. XVI.
ber and in variety, (a) And there are other cases where it be-
comes necessary for the public authorities to interfere with the
control by individuals of their property, and even to destroy it,
where the owners themselves have fully observed all their duties
to their fellows and to the State, but where, nevertheless, some
controlling public necessity demands the interference or destruc-
tion. A
strong instance of this description is where it becomes
necessary to take, use, or destroy the private property of individ-
uals to prevent the spreading of a fire, the ravages of a pestilence,
the advance of a hostile army, or any other great public calamity. 1
Here the individual is in no degree in fault, but his interest must
"
yield to that
"
necessity which " knows no law." The establish-
ment of limits within the denser portions of cities and villages,
within which buildings constructed of inflammable materials shall
not be erected or repaired, may also, in some cases, be equivalent
to a destruction of private property ; but regulations for this pur-
2
pose have been sustained notwithstanding this result. Wharf
lines may also be established for the general good, even though
1
Saltpetre Case, 12 Coke, 13 Mayor,
; Wadleigh v. Oilman, 12 Me. 403, 28 Am.
&c. of New York v. Lord, 18 Wend. 126; Dec. 188; Brady v. Northwestern Ins. Co.,
Russell v. Mayor, &c. of New York, 2 11 Mich. 425; Monroe v. Hoffman, 29 La.
Denio, 461 Sorocco v. Geary, 3 Cal. 69
; ;
Ann. 651, 29 Am. Rep. 345; King v.
Hale Lawrence, 21 N. J. 714; American
i: Davenport, 98 111. 305, 38 Am. Rep. 89 ;
Print Works v. Lawrence, 21 N. J. 248 ; Klingler Bickel, 117 Pa. St. 326, 11 Atl.
v.
Philadelphia v. Scott, 81 Pa. St. 80 Dil-; [Milch cows infected with tuberculosis
Ion, Mun. Corp. 756-759 [Aitken v.
; may be destroyed without compensation
Wells River, 70 Vt. 308, 40 Atl. 829, 41 to owner. Error on part of inspector Miid
L. R. A. 666 ] And see Jones v. Rich- consequent destruction of healthy cows
mond, 18 Gratt. 517, for a case where the does not give owner any claim against
municipal authorities purchased and took the State-. Houston v. State, 98 Wis. 481,
that might be anticipated from free access Atl. 80, 36 L. R. A. 623. Milk of a quality
to intoxicating drinks under the circum- below a prescribed standard may be de-
stances. [But this case is overruled in stroyed. Deems v, Baltimore, 80 Md.
Wallace v.Richmond, 94 Va. 204, 26 164, 30 Atl. 648, 26 L. R. A. 641.J
S. E. 586, 36 L. R. A. 554.] And as to 8 Commonwealth v.
Alger, 7 Cush. 53.
appropriation by military authorities, see See Hart v. Mayor, &c. of Albany, 9
Harmony c. Mitchell, 1 Blatch. 549 s. c. ;
Wend. 571, 24 Am. Dec. 165. [Height
in error, 18 How. 115. of buildings fronting on Copley Square,
2
Respublica v. Duquet, 2 Yeates, 493 ; Boston, may be limited to ninety feet.
(a) [Compulsory education laws are upheld as within the police power of the
State. State
Jackson,
v. N. H. ,
63 Atl. 1021 ; State v. Bailey, 157 Ind. 324, 61
N. E. 730, 69 L. R. A. 435.]
CH. XVI.] THE POLICE POWER OF THE STATES. 879
Atty.-Genl. .
Williams, 178 Mass. 330, 59 116 Cal. 397, 48 Pac. 374, 39 L. R. A. 581,
N. E. 812, aff. 18 U. S. 23 Sup. Ct.
,
and note. State may absolutely prohibit
Rep. 363.] sale of specified game and fish within its
1 Commonwealth Tewksbury, 11
v. borders during specified seasons of year.
Met. 55. A statute which prohibited the People v. O'Neil, 110 Mich. 324, 68 N. W.
having in possession of game birds after 227, 33 L. R. A. 696. May control the
a certain time, though killed within the taking of game by a person upon his own
lawful time, was sustained in Phelps v. lands. Peters v. State, 96 Tenn. 682, 36
Racey, 60 N. Y. 10. But such statute is S. W. 399, 33 L. R. A. 114, People v. Van
held in Michigan not to cover a case Pelt, 129 Mich. ,
90 N. W. 424. For
where the birds were killed out of the other cases sustaining game laws, see
State. People, v. O'Neil, 71 Mich. 325, State v. Chapel, 64 Minn. 130, 66 N. W.
89 N. W. 1. That the State may prohibit 205, 32 L. R. A. 131 ; State v. Mrozinski,
the sale of arms to minors, see State v. 59 Minn. 465, 61 N. W. 560, 27 L. R. A.
Callicut, 1 Lea, 714. QAlso the carrying 76; Com. v. Gilbert, 160 Mass. 157, 35
of dangerous weapons, Miller v. Texas, N. E. 454, 22 L. R, A. 4'39 State v. Lewis,
;
fisheries in high seas extends one marine 611, 68 N. E. 1044, 51 L. R. A. 404; Com.
league from shore. Manchester v. Massa- v. Chase-Davidson Co 22 Ky. L. 727, 58
,
chusetts, 139 U. S. 240, 11 Sup. Ct. Rep. S. W. 609 State v. Dow, 70 N. H. 286,
;
559. State may require guides in its 47 Atl. 734, 53 L. R. A. 314. Game laws
woods and through its lakes to be licensed cannot authorize seizure of carcasses or
and to report upon condition of its game parts thereof in course of inter-state trans-
and forests. State v. Snowman, 94 Me. portation. Bennett v. Am. Exp. Co., 83
99, 46 Atl. 815, 50 L. R. A. 544, 80 Am. Me. 236, 22 Atl. 159, 13 L. R. A. 33. Nor
St. Fact that game was lawfully
380. can they prohibit the exportation of fish
killed on an Indian reservation and is to while permitting commerce in them at
be shipped to another State does not ex- home. Territory v. Evans, 2 Idaho, 627,
empt it from State police regulations after 23 Pac. 232, 7 L. R. A. 288. Nor can
it leaves the reservation and before it they affect the right to import and deal
in fish imported from foreign countries.
passes out of the State. Selkirk v. Ste-
vens, 72 Minn. 335, 75 N. W. 386, 40 L. R. People o Buffalo Fish Co., 164 N. Y. 93,
A. 759. Cold-storage of game lawfully 58 N. E. 34, 52 L. R. A. 803. Ordinance
killedand intended to be kept until next making mere possession of a lottery ticket
open season and then sold is a wrongful a misdemeanor is valid. Ex parte Mc-
having in possession, and law punishing Clain, 134 Cal. 110, 66 Pac. 69, 64 L. R.
same is constitutional. Haggerty v. St. A.. 779. A
statute making the herding
Louis Ice Mfg. & Storage Co., 143 Mo. of sheep within two miles of an inhabited
238, 44 S. W. 1114, 40 L. R. A. 151. Upon dwelling unlawful is a valid exercise of
the police power. Sifers v. Johnson,
governmental control over right of fish-
ery, see People v. Truckee Lumber Co., Idaho ,65 Pac. 709, 64 L. R. A. 785.
880 CONSTITUTIONAL LIMITATIONS. [CH. XVI.
A statute prohibiting sale of game out of hibited, and a riparian owner who has
season is valid as applied to game im- long been accustomed to deposit therein
ported into the State. Ex parte Maier, sawdust from his mill cannot claim that
103 Cal. 476, 37 Pac. 402, 42 Am. St. 129. by such regulation he is deprived of his
Miller v. Craig, 11 N. J. Eq. 175. property without compensation. States.
1
stopped. Coe v. Schultz, 47 Barb. 64. A. 177; Peoples. Truckee Lumber Co..
Public wells may be filled up. Ferren- 116 Cal. 397, 48 Pac. 374, 39 L. R. A. 581.]
bach r. Turner, 86 Mo. 416. [Deposit See League v. Journeay, 26 Tex. 172;
of sawdust in lake from which the water- ante, p. 850, and cases ciled in note,
() [The owners of lands may be prevented from allowing natural gns to waste or
escape from wells which he has sunk for oil. Ohio Oil Co. r. Indiana, 177 U. S. 190,
"
20 Sup. Ct. Rep. 576 aff. 150 Ind. 698, 50 N. E. 1125. See note on
, Property in
"
petroleum oil or gas in 44 L. ed. U. S. 729. See also State v. Ohio Oil Co., 150
Ind. 21, 49 N. E. 809, 47 L. R. A. 627 Townsend v. State, 147 Ind. 624, 47 N. E.
;
19, 37 L. R. A. 294. Fish commissioners may place fish in streams flowing over pri-
vate lands, and fishing therein may be prohibited for three years thereafter. State
v. Theriault, 70 Vt. 617, 41 Atl. 1030, 43 L. R. A. 290. But a solvent debtor cannot
be denied the right to transfer property to a preferred creditor. Third Nat. Bk. v.
Divine Grocery Co., 97 Tenn. 603, 37 S. W. 390, 34 L. R. A. 445. Mine operator may
be compelled to stop excavating five feet from boundary of his lands unless he secures
written consent of adjoining proprietor. Mapel v. John, 42 W. Va. 30, 24 S. E. 608,
32 L. R. A. 800.]
(ft) FJ
Administrative boards may be empowered to exclude unvaccinated pupils
from the public schools when there is reason to fear the outbreak of a small-pox
epidemic. Blue r. Beach, 155 Ind. 121, 56 N. E. 89, 50 L. R. A. 64. May be author-
ized to require all persons to be vaccinated unless some rule of the Constitution for-
bids. State v. Hay, 126 N. C. 999, 35 S. E. 459, 49 L. R. A. 588, 78 Am. St. 691 ;
Minn. So, 59 N. W. 545, 25 L. R. A. 759, and note State v. Whitaker, 160 Mo. 69,
;
60 S. VV. 1068. Statute forbidding lodging house keepers to permit more than a
specified number of persons from occupying the same room is void as discriminating
against them and in favor of the keepers of other places of public entertainment.
Bailey v. The People, 190 111. 28, 60 N. E. 98, 54 L. R. A. 838, 83 Am. St. 116-3
CH. XVI.] THE POLICE POWER OF THE STATES. 881
Williams v. Augusta, 4 Ga. 509; Daven- municate a dangerous and fatal disease
port L\ Richmond, 81 Va. 636. And see to other cattle, was sustained in Yeazel
License Cases, 5 How. 504, 589, per Alexander, 58 111. 254. It has since,
?,-.
licensed and collared according to the by them to other cattle. Kimmish v. Ball,
statutory regulation. Blair v. Forehand, 129 U. S. 217, 9 Sup. Ct. Rep. 277. See
100 Mass. 136; QWalker v. Towle, 156 Missouri Pac. Ry. Co. v. Finley, 3S Kan.
Ind. 639, 59 N. E. 20, 53 L. R. A. 749 550, 16 Pac. 951; [^Grimes v. Eddy, 126
;
N. II. 373 Ex parte Cooper, 3 Tex. A pp. 933, 52 L. R. A. 78, .iff. 181 U. S. 198, 21
;