:^5' %^
*^, l^.i
.fc; ^ ai.'* ^"-Si ts^-
B*-'^
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-.J^^Mt^l^g^:
( No
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
LAW LIBRARY
THE LAW
OF THE
FEDERAL AND STATE CONSTITUTIOiS^S OF THE UI^ITED STATES
DIAGRAM OF STATE AND FEDERAL POWER
AB Federal and Sbite Powers (i)
A Federal Powers (17)
AZ Federal Powers forbidtleii to States ( W)
B Powers expressly reserved to the States (simply) (3)
BX Powers expressly
I o (%) ^^^ reserved to the States
I |a(2lli2.(2!^V **"^ forbidden to
Z Powers forbidden to the States (simply) (11)
X Powers forbidden to
U.S. (simply) (37)
Y Rights or Powers reserved in the People (39) ZX Powers forbidden to both States and U.S. (12)
See Appendix
THE LAW
OF THE
FEDERAL AND STATE CONSTITUTIONS
OF THE
UNITED STATES
WITH AN HISTORICAL STUDY OF THEIR PRINCIPLES
A CHRONOLOGICAL TABLE OF ENGLISH
SOCIAL LEGISLATION
AND
A COMPARATIVE DIGEST OF THE CONSTITUTIONS OF THE FORTY-SIX STATES
BY
FREDERIC JESUP STIMSON
Professor of Comparative Legislation in Harvard University ; Late Advisory Counsel
to the United States Industrial Commission ; Massachusetts Commissioner on
Uniformity of Laws; Member of Massachusetts Committee
on Corporation Law
Author of " American Statute Laio," " The American Constitution "
" Handbook of Labor Law of the United States "
etc., etc.
BOSTON THE BOSTON BOOK COMPANY
1908
CorYRir.nr, 1908, By Fkkderic Jesup Stimson
THE UNIVERSITY PI'.ESS, CAMmUDGE, U. S A.
PREFACE
American constitutional law has had its broadest development in the last twenty years. Since the cardinal meaning of the Federal Constitution was settled by the early great decisions, and the relation of the States to the Federal Government once decided by the Civil War, there has, in a century, been comparatively little growth until the last decade or two. The enormous mass of litigation on the meaning of the "obligation of contract"' and of the words "com- merce among the States" related, after all, to but two short phrases in that great document ; and in the latter of these two instances the decisions of the last twenty years far exceed, both in number and importance, all that went before. Constitutional law, therefore, like the law of labor and free contract, is in the United States "a hve science." Both in the States and in the nation it has had its most active discussion recently; and the matter bids fair to increase still more at the hands of the next generation. The great social prin- ciples, of the right of the individual, both to property and even to personal liberty, as against the will of a majority or an organized minority having the ears of the executive and the legislative branches of government, have got to be resettled — the great political ques- tions of the social and jurisdictional (not political) relation of the States to the Federal Government, the right of the States to their own customary law and their own police power, have, it seems, once more to be fought over. No apology, therefore, is offered for pre- senting this work at this time. It is prepared primarily for the author's use in his classes at Harvard University; not, therefore, in the first instance, for a practising lawyer ; rather for the citizen and the student of politics. Moreover, considerations of space and otherw^ise have made it advisable to duplicate no work that has been done before. No effort, therefore, has been made to supersede such classics as, in America, Cooley's "Constitutional Law"; and for
G69716
LAW
vi PREFACE
English history I have largely relied upon Dicey's "Law of the Con- stitution " ; Taswell-Langmcad, " On English Constitutional His- tory," Hannis Taylor, and Stubbs' Charters; while for most of the sources of information I have gone directly to the "Statutes of the Realm," the usual edition of which is Ruffhead's "Statutes at Large," London, 17G9, but the original folio "Statutes of the Realm," when procurable, is to be preferred, as the "Statutes at Large," like most digests or selections, has a curious faculty for omittinjj what is historicallv most interesting. Mention in the United States should also be made of " Miller's Lectures," Patter- son's "The United States and the States under the Constitution," and McClain's "Constitutional Law." The book is not, however, intended for a case lawyer. I have cited cases only when the propo- sition is in some doubt or my authority not easily discoverable. In like manner, at least in the prefatory essays (Book I), I have sought to lay down the general principles and the broad antitheses, not too much delaying the line of discussion to consider exceptions or quali- fications. These are usually to be found in the footnotes to Book IIL What has been principally sought is to give the history, origin, and present tendency of American Constitutions, both Federal and State; and for this purpose the bulk of the work is made up of a careful comparative presentation of the forty-six State Constitu- tions annotated with the corresponding provisions of the Federal Constitution, and voluminous footnotes. In Book II is pre- sented a chronological digest of the more important statutes re- ferring to English constitutional principles, or even common law principles which became in the lapse of centuries so universal as to be almost part of the "unwritten Constitution"; and also a table of excerpts from all the great constitutional documents, arranged chronologically, thus showing their growth from the simple phrasing of ^lagna Carta to the verbose essays of the Massachusetts Bill of Rights. Books II and III, therefore, represent an attempt at com- parative study never, I believe, hitherto made ; ^ while the first Book is intended for a broad historical essay, not too technical, on those parts of constitutional law which now most concern us, and have, indeed, been most neglected by other writers ; for it is very recently
^ That is, before 1886, when the sity, has recently pubUshed a vahxable
first edition of the present Book I ap- essay on salient features of the State
peared, without footnotes, in the au- Constitutions, but without citations,
thor's "American Statute Law," Vol. (Am. Acad. Pol. & Soc. Science, Supp.,
I. Dr. J. Q. Dealey, of Brown Univer- November, 1907.)
PREFACE VU
that students of constitutional law have begun to turn their atten- tion from the political provisions, which were most important in English history, to the broader principles of individual rights which most concern us to-day.
The reason of this is obvious. Personal freedom was established in England, substantially as we know it now, in the 12th century. It was taken almost as a matter of course by our ancestors, both in England and here, until within a very few years. It was the as- sertion of political power, and notably of the right to tax and impose military rule or law, that remained in question. But when our Con- stitution was adopted, these principles also were so engrained in the popular mind as to need hardly more than expression. Since then more than a century has gone by. Our population has grown from four millions to eighty millions, a majority with no inherited training in English institutions, and even the American minority, in their very security, forgetful of them. Two potent forces are now at work ; first that of philanthropy, general benevolence, ethical amelioration, seeking results rather than liberty, traceable in theory directly back to Austin, Bentham, and Hobbes; the other the class-conscious multitude of organized labor, seeking (and for the same reason) to reimpose regulations and control upon the actions of others either through or beside the State, which was tried but only partially tried in the thirteenth or fourteenth centuries in England. For the Eng- lish agitations, when not mere risings of the peasants, resulted rapidly in an exclusive, almost aristocratic, trade-guild. To show how striking is the present activity of these two forces I need but to refer to the decisions of the Supreme Court of the United States. In all the ninety years from 1796 to 1886 they found only one thousand constitutional cases to consider, and in these declared some two hun- dred statutes of States or Acts of Congress to be unconstitutional. In the twenty years from 1886 to 1906 they considered more than thirteen hundred cases of this sort, more than half of which, and these much the most important, were set in motion by the two forces I have named, and probably a larger proportion than before were held unconstitutional.^ For State Constitutional law it is only neces- sary to refer to the valuable annual bulletins of the New York State Library. One hundred and four laws of the States or of the United
* The admirable digest of Mr. Ban- present Reporter; it will then show- croft Davis, at the end of 131 U. S., precisely the figures which the author has, I believe, been ordered by the Pres- can only estimate, ident to be brought up to date by the
VIU PREFACE
States were declared unconstitutional in the one year 190G. It is a fact not possibly unconnected with this that during the same year forty-six new constitutional amendments were adopted and thirty rejected, making the attempted output seventy-six, just about two thirds of the one hundred and six nullifications; but only about one third of these amendments found the favor of the p^'ople. If these amendments embodied in all cases the same provisions which had been declared void by the courts, one might draw the inference that in about two thirds of the cases the people sustained the courts. The true number, however, is far greater than this. Nothing is more interesting than the unanimity with which the people, as a rule, welcome the decision of their highest court declaring a law unconstitutional ; that is, in conflict with their own will as perma- nently expressed. Of late years only do we see an ominous ten- dency in the other direction, due to the unfortunate fact already adverted to, that so many unconstitutional statutes embody the rash attempts of philanthropic and labor interests to impose their will upon others by law, rather than by persuasion or the legiti- mate powers of the trades union.
In closing, a word should perhaps be said as to the form of this work. A table of the Constitutions referred to will be found before the preface ; the citations are always made by numbers of chapters, sections, etc., without any other abbreviations; thus, 1, 2, 3, will mean Chapter 1, Section 2, Clause 3, or whatever other maybe the division in the Constitution referred to. To have done otherwise would have been to add inconceivably to the bulk of the work. The index cites Book III by sections and not by pages in order to avoid the necessity of star pages in any future edition. Article 99, Consti- tutional Amendments, has been reserved for later constitutional amendments which shall be adopted after April 1, 1908 (that being the final date of publication of this work). Fortunately most of the States do not adopt Constitutions very frequently, and the amend- ments they adopt, though numerous, frequently relate to such mat- ters of petty detail, the appointment of local officers, etc., as fall outside the scope of this work. Thus, Connecticut, Iowa, Oregon, Maine, Massachusetts, and several other States, have never had but one Constitution; while the amendments proposed in all are more often than not rejected. In 1903, for instance, the forty-five States then existing adopted twelve amendments and rejected twenty-six, and this is about the usual proportion. This would cease to be the
PREFACE ix
case, however, if the Western States continue their present unscien- tific tendency of embodying all that the present majority wish to be law into the framework of the Constitution. This, however, I have discussed more fully in Book I, Chapter XL
F. J. S.
Cambuidge, M\rch 31, 1908.
TABLE OF CONTENTS
Page Table of Citations xxi
BOOK I
ORIGIN AND GROWTH OF THE AMERICAN CONSTITUTIONS Chapter
I. Introductory 3
II. The Right to Law 11
III. The Right of Liberty 18
IV. Chancery and the Injunction Order 24
V. The Right to Labor and Trade 30
VI. The Right to Property 36
VII. Other Constitutional Rights 41
VIII. Rights of Government 47
IX. Government Organization 52
X. Federal and State Powers 60
XI. The State Constitutions 68
BOOK II
CONSTITUTIONAL PRINCIPLES AS EXPRESSED IN THE ENGLISH STATUTES OF THE REALM AND AMERICAN CONSTITUTIONS
CHAPTER I
Constitutional Principles Protecting Personal Liberties AND Private Rights as Expressed in Constitutional Documents from Magna Carta to the United States Constitutions
I. Liberty
(a) General Right to; Jury Trial 75
(b) Habeas Corpus and Indictment 77
(c) Extent of Bail and Punishment 78
xil TABLE OF CONTENTS
Page
(d) Trial and Eviilence 78
(c) Bills of Attainder 79
(f) Suspending Laws 79
(g) Treason 79
II. Law
(a) Common Law, Judges 79
(b) Local Courts 81
(c) INIartial Law, Right to Arms, etc 82
III. Property and Trade
(a) Property 83
(b) Trade and Monopoly 84
(c) Taxation 85
(d) INIiscellaneous Rights 86
Freedom of Speech 86
Right to Petition 86
Religion 86
Search Warrants 86
IV. Political Rights
(a) Elections 87
(b) Legislatures 87
(c) Theory of Government 87
(d) The Separation of the Powers 89
CHAPTER II
Historical Digest of English Social Legislation ... 90
CHAPTER III
Division of National and State Power
AZ Federal Powers which are Forbidden to the States .... 108
A Powers Granted to the United States Simply Ill
AB Powers Common to the Nation and the States Ill
B Powers Reserved in the States (Simply) 112
BX State Powers Forbidden to the United States 112
X Powers Forbidden to the United States Simply 113
Z Powers Forbidden to the States Simply 115
ZX Powers Expressly Forbidden to Both the Nation and the States 115
Y Rights Reserved or Expressly Retained in the People. ... 116
TABLE OF CONTENTS
Xlll
BOOK III
THE STATE CONSTITUTIONS DIGESTED, ANNOTATED, AND COMPARED WITH THE FEDERAL CONSTITUTION
Page
§ 1. Explanatory Preface 121
2. Interpretation of the State Constitutions 123
PART I
Bill of Rights
§ 3. Note 124
4. Bill of Rights Irrepealable 124
5. Construction of Bill of Rights 125
6. Individual Rights 126
CHAPTER I
Bill of Rights: Civil
Note
Page
127
Art. 1. — Natural Rights.
§ 10. 11. 12. 13. 14. 15. 16.
17.
18.
Freedom 127
Equality 128
Life and Liberty 128
Property 128
Rights to Labor and Trade 129
Reputation 129
Special or Exclusive Privi- leges 129
Hereditary Privileges . . 130
Pensions 130
Art. 2. — Civil Rights.
131 131 132 133 134
20. General Provisions . . .
21. Color Distinctions ....
22. Exceptions to § 21 ...
23. Sex Distinctions : Voting .
24. Sex Distinctions : Schools
25. Sex Distinctions: Occupa-
tion
26. Sex Distinctions : Property
27. Sex Distinctions: Custody
ofCliildren 135
134 135
Art. 3. — Slavery and Appren- ticeship.
§ 30. Slavery Prohibited ... 136
31. Compensation for Slaves . 136
32. Apprenticeships 133
33. Tenns of Service .... 133
Art. 4. — Religious Rights.
40. General Rights of Con-
science
41. Limitations on § 40 . . .
42. Compulsory Support of
Churches
43. Established Church . . .
44. State Support
45. Religious Test
46. Limitations on § 45 . . .
47. Oaths and affirmations . .
48. Sundays and Sabbaths . .
Art. 5. — Education.
50. General Right
51. Free Schools
52. Time of Holding ....
53. Age of Scholars
54. Unsectarian Schools . . .
55. Compulsory Attendance
56. Universities, etc
57. The Language
58. Libraries
59. Legislative Restrictions. .
Art. 6. — MiscelLu\neous Rights.
60. Freedom of Speech . . .
61. Libel
62. Arms
63. Pinkerton Men
64. Assemblies
65. Emigration
66. Immigration
Page
137 137
138 138 138 139 139 140 140
140 141 141 142 142 142 143 143 143 143
144 145 146 147 147 148 148
XIV
TABLE OF CONTENTS
AuT. 7. — Rights at Law.
r.v(jK
70. General RiKlits 1 IS
71. Arnsst and Search .... II',)
72. Trial by Jury loO
73. Exceptions to § 72 ... ir>0
74. Waiver 151
75. Suits against tlie State . . 151
76. The Cotninon Law . . . 152
77. Laws Previously in Force 153
78. Miscellaneous Riglits at
Law L'):5
79. Venue 153
Art. 8. — Debtoes.
80. Imprisonment for Debt . 153
81. Debtor Mxemption Laws . 154
82. Homestead 155
83. E.vceptions 156
84. Alienation 157
85. Recording 157
Pagr
§ 86. Duration 157
87. Stay Laws 158
88. (jarnisliment 158
Art. 9. — E.minent Do.main.
§ 90. General Princij)les .... 158
91. Taking for Public ITse . . 158
92. Taking by Private Parties 159
93. Compensation 160
94. Jury Trial 160
95. Tlie Amount of Compensa-
tion 161
96. Appeal 161
97. The Exercise of the Right
against Franchises . . 161
Art. 10. — Citizens and Aliens. Language, etc.
§ 100. Who are Citizens .... 161
102. Aliens' Rights 161
103. Language 162
CHAPTER II Bill of Rights: Criminal
Art. 12. — Rights before Trial.
§120. To Hear Accusation. . . 164
121. Bailable Offences .... 164
122. Excessive Bail 165
123. Imprisonment of Parties
Accused 165
124. Witnesses 165
125. Habeas Corpus .... 166
126. Suspension of Habeas
Corpus 166
127. Indictment 167
128. Grand Juries 169
Art. 13. — Rights at Trial.
§ 130. Rights to Law 169
131. Jury Trial 172
132. Juries 174
133. Venue 175
134. Counsel 175
135. Witnesses 176
138. Criminating Evidence . . 177
137. Twice in Jeopardy ... 178
138. Attainder 179
139. Miscellaneous 179
Art. 14. — Rights after Trial.
§ 140. Fines and Costs .... 180 141. Ex Post Facto Laws . . 182
§142. Corruption of Blood . . 182
143. Suicides 182
144. Deodands 182
145. Appeals 183
146. Fees and Costs 183
Art. 15. — Special Provisions concerning CrixMinal Offences.
§ 150. Treason 183
151. DuelUng 183
152. Bribery 184
153. Lobbying 184
154. Corrupt Legislation . . . 184
155. Special Crimes 186
156. Embezzlement 185
157. War Exemption .... 187
158. Felony 187
Art. 16.
Pardons.
§ 160. 161. 162. 163. 164. 165.
Pardon Power 187
What may be Pardoned . 188
The Effect of a Pardon . 189
Reprieves 189
Fines and Forfeitures . . 189
Lynch Law 189
TABLE OF CONTENTS
XV
PART ir Political Provisions
§ ISO. Note
Page 191
Art. 18. — Rights of Govern- ment.
§ 181. Authority derived from the People ....
182. Form of Government .
183. Object of Government
184. Officers
185. Fundamental Principles
186. Representation . . .
187. Gerrymandering . . .
188. Initiative and Referen-
dum
Art. 19. — State Sovereignty.
§ 190. United States Constitu- tion 193
191. Allegiance 194
192. Secession 194
193. State Rights 194
191 192 192 192 193 193 193
193
Art. 20. — Constitution op THE State Governments.
200. 201. 202. 203. 204.
205.
206.
The Three Functions . . 195 Political Constitution . . 196
Executive 198
Terms of office 200
Special Qualifications for Senators and Repre- sentatives 201
Special Qualifications for
Governor 204
Pay of the State Legis- lature 205
Art. 21. — Of Offices in General.
210. Appointment 206
211. Vacancies 206
212. Tenure 207
213. Pay 207
214. Extra Pay 208
215. Farming offices .... 208
216. Gerrymandering .... 208
217. Election of United States
Officers 208
218. Corruption 209
Art. 22. — Qualifications for Office.
220. 221. 222. 223. 224. 225.
230. 231. 232. 233. 234. 235. 236. 237. 238.
Plurality of Offices . Age and Citizenship Disqualifications Oath of office . Official Bonds . Political Tests .
Art. 23. — Elections.
General Provisions Votes by Ballot . Majority Vote . . Australian Ballot Election Day. . . Conduct of Elections Registration .... Freedom from Arrest Contested Elections
Page 209 210 210 212 213 213
213 214 214 215 215 216 217 217 218
Art. 24. — The Right of
Suffrage.
Citizens
Residence Qualifications Losing a Residence, etc. . Army and Navy . . . . Property Qualification . . Educational Qualifica- tions
Southern State Provi-
§240. 241. 242. 243. 244. 245.
246.
sions
247. Challenges
248. Primaries
249. Municipal Elections, Spe-
cial Provision ....
Art. 25. — Disfranchisement.
§ 250. General Provisions ... 227
251. Insanity 227
252. Crime 227
254. Bribery 229
255. Betting on Elections . . 229
256. Duelling 229
218 220 221
222 222
223
224 226 226
226
Art. 26. — Removal of Officers.
230
260. By Impeachment . .
261. The Causes of Impeach-
ment 230
262. Process of Impeachment 230
263. Effect of Impeachment . 232
XVI
TABLE OF CONTENTS
Page
§ 2G5. Removal by Address . . 232
2()(). lloinovul by tlu; (lovernor 2;}.'J
2()7. Removal by the Courts . 234
2G8. Other Removals from
Office 234
Art. 27. — The Legislature.
§ 270. General Provisions . . . 23.)
271. Quorum 23.3
272. Speech in tlie Legislature 236
273. Freedom from Arrest . . 236
274. Open Sessions 237
275. Journals 238
276. Expulsion of Members,
etc 2.38
277. Time of Session .... 240
278. Adjournment 241
279. Place of Session .... 242
Art. 28. — The Executive.
Page 2S0. Duties of the Governor . 242
281. Powers of the Governor . 243
282. The Lieutenant-Governor 243
Art. 29. — The Militia.
290. General Provisions
291. The Militia consists
292. Civil Power . . .
293. Martial Law . . .
294. Standing .\rmies .
295. Billeting Soldiers .
296. Privileges of Militia
297. The Governor is Com
mander-in-Chief . .
298. Purposes of the Militia
299. Miscellaneous Provisions
244
245 245 246 246 246 247
247 247 248
PART III
Legislation
Art. 30. — Process of Legis- lation.
I 300. Bills 249
301. Form of Bills 249
302. Passage of Bills .... 250
303. Voting 251
304. Veto Power 252
305. Pocketed Bills 253
306. General Restrictions . . 254
307. Amendments, Repeals,
and Revisions .... 254
308. When Acts take Effect . 255
309. Referendum and Initia-
tive 256
Art. 31. — Form of Revenue
Bills.
J 310. Origin 260
311. The General Appropria-
tion Bill 261
312. Other Appropriation Bills 261
313. Voting 262
314. Tax Bills 262
315. State Debt Bills .... 263
316. State Aid Bills 263
Art. 32. — Appropriations.
§ 320. Warrants, etc 263
321. State Accounts .... 264
322. Private Appropriations,
Claims, and Debts . . 264
§323.
324. 325.
326. 327.
328.
§ 330. 331. 332. 333. 334.
335. 336. 337. 338. 339.
Art.
§ 340. 341. 342. 343. 344.
Charitable and Sectarian
Appropriations . . . 266 Internal Improvements . 266 Miscellaneous Restric- tions 267
Loans of Credit, etc. . . 267
Money 267
Embezzlement, etc. . . 268
Art. 33. — Taxation.
General Principles . . . 268
Taxable Property ... 269
Exemptions 271
Taxes Equal 274
Valuation and Assess- ment 274
Purposes of Taxation . . 275
Amount of State Tax . . 276
Special State Taxes . . 276
Poll Tax 276
Income and License taxes 277
34. — Municipal Finance AND Taxation.
General Principles . . . 279
Amount of Municipal Tax 279
Prescribed Purposes. . . 281
Special Taxes 281
Power to Contract Loans 282
TABLE OF CONTENTS
XVll
Page
§ 345. Loans of Credit, etc. . . 282 346. Limitations on Section
345 283
Art. 35. — Collection op Taxes.
§ 350. Sworn List 283
351. Sale for Taxes 283
352. Redemption 284
353. Tax Titles 284
354. State Boards of Equaliza-
tion 284
Art. 36. — State Debts.
5 360. Temporary Loans. ... 284
36 L Other Debts 285
362. Payment of Debts ... 288
363. Ratification by the People 286
364. Limitations on the State's
Power to contract
Debts 287
365. Repudiation 287
Art, 37. — Municipal Debts.
\ 370. Purposes 287
37L Amount 288
372. Voting 289
373. Payment 290
374. Collection of Municipal
Debts 290
375. Form of Bonds .... 290
Art. 39. — Matter of Legis- lative Power.
\ 390. State Legislatures ... 290
39L In General 290
392. Suspending Laws ... 291
393. Laws Impairing Contracts 292
394. Laws to be General . . . 292
395. Local or Special Laws . 293
396. Laws to be Uniform . . 298
Art. 40. — Land Laws.
\ 400. Tenure 298
401. Feudal Tenure 299
402. Entails, Primogeniture,
and Perpetuities . . . 299
403. Mortmain 299
404. Monopolies 300
405. Long Leases 300
406. Record of Conveyances . 300
407. Landsof the United States 300
408. Public Lands 301
409. Forest Preserve .... 302
Art.
§410. 411. 412. 413. 414. 415. 416. 417. 418. 419.
41. — Navigable Waters and Easements.
Page
Navigable Waters . . . 302
Special Streams .... 302
Jurisdiction 302
Water Front 303
Wharves 303
Drains 303
Franchises 303
Hunting and Fishing . . 304
Use of Water 304
Riparian Rights .... 300
Art. 42. — Personal Property.
§ 420. Record 306
421. Seal 306
422. Interest 307
423. Money 307
424. Trust Funds 307
425. Stockjobbing 307
426. Lotteries 307
Art. 43. — Law of Persons.
Marriage 308
Registration 308
Names 308
Warehouses 308
Warehouse Receipts . . 308
435. Drawbacks and Rebates . 309
436. Carriers 309
437. Cattle and Stock .... 309 Physicians 309
§430. 431. 432. 433. 434.
438.
Art. 44. — Health and Mor.\lity.
§ 440. 441. 442. 443. 444. 445. 446. 447. 448. 449.
Live Stock . . . Board of Health . Inspection Laws . Dealing in Futures Fire Protection Liquor Traffic . . Prohibition . . . Local Option . . Dispensary System Vagrant Laws . .
309 309 310 310 310 310 310 310 311 311
Art. 45. — Labor.
§ 450. 451. 452. 453. 454. 455. 456. 457. 458.
General Principles ... 311
Days' Work 311
Wages 312
Public Work 312
Special Employments . . 312
Women and Children . . 312
Wage-payments .... 312
Liens 312
Blackhsts 313
xvm
TABLE OF CONTENTS
Page
§ 459. Strikes and Boycotts . . .'513
4(50. Factories, Minos, etc. . . 3i:{
461. State Inspectors .... 31.'i
462. Employers' Liability . . 313
463. Prison I^abor 314
464. Alien Labor 314
465. Arbitration 314
Art. 50. — Private Corporations.
§ 500. Definition 315
501. General Principles . . . 315
502. Creation 315
503. Repeal 317
504. Existing Corporations . 317
505. Foreign Corporations . . 318
506. Business, Ultra Vires, etc. 319
507. Office in the State, Re-
ports, etc 319
508. Suits 320
509. Liabilities of Stockholders 320
510. Voting 320
511. Liabilities of Directors . 321
512. Issue of Stock 321
513. Increases of Stock ... 321
514. Preferred Stock .... 322
515. Time 322
516. Real Estate 322
517. Assignment of Franchise 322
518. Consolidation, Combina-
tion, etc 322
519. Taxation 323
Art. 52. — Railroads.
§ 520. Highways 324
521. Carriers 324
522. Legislative Control . . . 325
523. Short-Haul Clause ... 325
524. Discrimination 326
525. Passes, Commutations,
etc 327
526. Connections 327
527. Consolidations and Com-
binations 328
528. The Rolling Stock ... 329
529. Location 329
§ 530.
531. 532. 534. 535. 536. 537. 538. 539. 540. 541.
§ 550. 551. 552. 553. 554. 555. 556. 557. 558. 559.
Page Office and Officers, Re- ports, etc 329
Ultra Vires 330
Railroad Commissioners . 330
Liabilities 332
Damages for Death . . . 333
Street Railways .... 334
Telegrapli Companies . . 334
Foreign Railroads . . . 335
Local Aid 335
Taxation 335
Switches, etc 337
Art. 55. — Banks.
State Banks Forbidden Money and Banknotes Specie Payments . . Security of Notes Insolvency of Banks Stockholders . . .
Interest
Limitation of Charter Trust Companies . . Reports
337 337 337 338 338 338 338 338 338 338
Art. 56. — Insurance Companies. § 560. Deposit 339
Art. 57. — Miscellaneous Cor- porations.
§ 570. Religious 339
571. Co-operative 339
Art. 58. — Trusts. § 580. General Principles . . . 339 581. Monopolies and Perpetu- ities 340
Art. 60. — Municipal Corpora- tions.
§ 600. Local Government ... 341
601. MunicipaUties 342
602. Officers 343
603. Citizens' Rights .... 343
604. Specified Systems, etc. . 343
605. Franchises 343
606. Police Power 345
Art. 65.
PART IV
Judicial System
650. General Principles . . . 346
651. Courts 346
652. Jurisdictions 347
§ 653. Opinions 348
653. Appeal 348
654. Judges 348
TABLE OF CONTENTS
XIX
Art. 66. — Remedial Laws.
Page
660. Laws General 350
66 L Arbitration 350
662. Contempts 350
663. Attorneys 351
664. Codes 351
665. Speedy Decisions .... 351
666. Opinions 351
Art. 67. — Procedure.
670. Forms of Action .... 352
671. Equity 352
§ 672. Feigned Issues . . .
673. Juries: Qualifications
674. Disqualifications . .
675. Charging the Jury .
676. Amendments . . .
677. Witnesses: Parties .
678. Parties Deceased . .
679. Depositions ....
680. Limitations ....
681. Payment into Court
682. Abatement ....
Page 352 352 352 353 353 353 353 353 354 354 354
PART V
Constitutional Amendments
Art. 99. — Process of Amend- ments.
§ 990. How Proposed 355
991. Ratification by the People 356
992. Ratification by the Legis-
lature 356
993. Restrictions 356
994. General Revision .... 356
995. Ratification 357
996. Amendments to the
United States Constitu- tion 357
Index
359
TABLE OF CITATIONS
The Constitutions, State and Federal, are cited by section number only if, as in many States, it is continuous; otherwnse by number of Chapter, Article, or other subdivision, separated by commas. The Statutes, State or National, are cited in like manner from the latest revision or the volumes of Annual Laws, but are always distinguished by an asterisk.
For the amendments I am indebted to the industry and courtesy of the New York State Library in its "Yearbooks of Legislation," founded by Robert H. Whitten and continued by Edwin H. Anderson, Director. My thanks are also due to the Secretaries of State of the several States who have nearly all obliged me with editions of the several State Con- stitutions in pamphlet form ; in Georgia, however, it is " not procurable." The inaccessibility of State Constitutions is greatly to be deplored. Some States, like New Hampshire and Ohio do not print them at all with their general law^s. Oregon and other States entirely omit constitutional amendments, while hardly any State follows the example of Massachusetts in printing the Constitution in its correct form every year. Texas, West Virginia, and many another State do not date their Constitution or the amendments ; while the usual compilations of the laws of New York and the official compilation of Georgia and several other States commit the last inanity of printing the State Constitution alphabetically under C, as if it were an ordinary law. The following table, however, is believed to be accurate so far as is possible under the circumstances.
Alabama (Ala.), (Constitutions of 1819, 1868, 1867, 1875) Constitution of 1901
Arkansas (Ark.), (1836, 1864, 1868) Constitution of 1874
California (Cal), (1849) Constitution of 1879
Colorado (Col.) Constitution of 1876
Connecticut (Conn.), (1776) Constitution of 1818
Delaware (Del.), (1776, 1792, 1831) Constitution of 1897
Florida (Fla.), (1838, 1865, 1868) Constitution of 1885
Georgia (Ga.), (1777, 1789, 1798, 1865, 1868) Constitution of 1877
Idaho (Ida.) Constitution of 1889
Illinois (III.), (1818, 1848) Constitution of 1870
Indiana (Ind.), (1816, 1851) Constitution of 1851
Iowa (lo.), (1846) Constitution of 1857
Kansas (Kan.), (1855, 1857, 1858) Constitution of 1859
Kentucky (Ky.), (1792, 1799, 1850) Constitution of 1891
XXll TABLE OF CITATIONS
Louisiana (La.), {1S12, IS.'tS, 1S52, 1S64, ISGS, 1S79) . Constitution of 1S98
Maine (Mc.) Constitution of 1820
Maryland (Md.), (1776, 1651, 1SG4) Constitution of l.SO?
Massachusetts (Mass.) Constitution of 1780
Michigan (Mich.) Constitution of 1850
Minnesota {Minn.) Constitution of 1857
Mississippi (Miss.), (1817, 1SS2, 1868) Constitution of 1890
Missouri (Mo.), (1820, 1863, 1865) Constitution of 1875
Montana (Mon.) Constitution of 1889
Nebraska {Xeb.), (1867) Constitution of 1875
Nevada (Nev.) Constitution of 1864
New Hampshire (.V. //.), (1784, 1792) Constitution of 1903
New Jersey (N. J.), (1776) Constitution of 1844
New York (N.Y.), (1777, 1821, 1846) Constitution of 1894
North Carolina (N. C.) Constitution of 1868 as amended 1876
North Dakota (N. D.) Constitution of 1889
Ohio (O.), (1802) Constitution of 1851
Oklahoma (Okla.) Constitution of 1907
Oregon (Ore.) Constitution of 1857
Pennsylvania (Pa.), 1776, 1790, 1838) Constitution of 1873
Rhode Island (R. I.) Constitution of 1842
South Carolina (S. C), (1776, 1778, 1790, 1865, 1868) . Constitution of 1895
South Dakota (S. D.) Constitution of 1889
Tennessee (Tenn.), (1796, 1834) Constitution of 1870
Texas (Tex.), (1845, 1866, 1868) Constitution of 1876
Utah (Uta.) Constitution of 1895
Virginia (Fa.), (1776, 1830, 1850, 1864, 1870) .... Constitution of 1902
Vermont (Vt.), (1777, 1786) Constitution of 1793
Washington (Wash.) Constitution of 1889
West Virginia (W. Va.), (1863) Constitution of 1872
Wisconsin (Wis.) Constitution of 1848
Wyoming (Wy.) Constitution of 1889
BOOK I
ORIGIN AND GROWTH OF THE AMERICAN CONSTITUTIONS
CHAPTER I
INTRODUCTORY
The English Constitution is expressed in writing in the Magna Carta of King John (1215); with certain omissions and a few additions in the Magna Carta of Henry HI (1216), and the Confirma- tion of the Charter granted by Edward I in 1297; in' the Petition of Rights extorted from Charles 1 in 1G28, and finally enacted in the Bill or Declaration of Rights subscribed to by William of Orange in 1689; in the Habeas Corpus Act of Charles H (1679); and in the Act of Settlement of Queen Anne (1700). Besides this there are certain fundamental statutes which by long observance or by frequent re-enactment have grown to be such essential parts of the English notion of liberty or government as to be in effect constitutional documents; such, notably, is the Statute of Monopolies of 1623 and the principle against restraint of trade and monopoly of commerce or of industry embodied in the long series of statutes against fore- stalling, engrossing, regrating, and against by-laws in restraint of trade or depriving one of his legal rights, which all begin as early as 1285,^ and only end under George HI, when such principles were immutably established in the popular mind as well as in the law- making of Parliament and the law-giving of judges.
But the English Constitution should hardly be regarded as em- bodied only in these documents; nor the American Constitution, outside the frame of government, be considered as first expressed in 1787. Magna Carta and the other constitutional documents are but
* See Book II, Historical Digest, the date uncertain, but before Ed. Ill;
James C. Carter (Law, its Origin, His- and the statute punishes forestalling of
tory, and Function, N. Y. 1907) seems "grain or any other Thing to be sold
to confuse these statutes with those fix- coming by Land or Water, oppressing
ing prices, and states that they began the Poor and deceiving the Rich. " For
in 1552. On the contrary, they were a discussion of their relation to the
made perpetual soon after (13 Eliz.) modern laws against Trusts, see
and began under Edward I (1285). Chapters V, VI. Statutes at Large (Vol. 1, p. 188) calls
4 THE AMKIUC.VN CONSTITUTIONS [bOOK I
the record of the victories of the people in the long fight which they waged for their liberties against the Crown ; they mark the definite establishment of Anglo Saxon notions of liberty and law over the feudal or Norman, European, Roman or Civil Law view, which the Norman kings after the Conquest, and, later, even the Tudors and the Stuarts, endeavored to impose on the English people. Indeed the notion of the sovereignty of the Crown, of personal government, only ended with George III of the House of Hanover. Magna Carta is in form a treaty between the Norman king and his English sub- jects, assembled for the first time in a representative assembly in which the Commons also took part, whereby he recognizes the general body of liberties of the English freemen as known to them at that time. The form of these early constitutional documents, con- firmations of charters, coronation oaths, etc., is always a recognition of prior laws, customs, or liberties, as already existing: "All the laws and customs of the men of Kent as they existed in the time of King Witliraed." For statute-making in the modern sense was yet un- known. Indeed, the very notion of a statute, that is, a law made by a sovereign and addressed to his people, with a sanction or threat of punishment if disobeyed, is a notion of Roman or Continental law ; foreign to the genius of the English folk, who made their laws them- selves or, more correctly, recognized all law as but the growth of the free customs of the people.^ English legislation before the Conquest does not consist in what we should now call making laws, but rather in decreeing the scale of punishment for their breach; when they do make a law, it is never regarded as a new law, but is merely recognized by the Great Council as part of the existing law of Eng- land. Their law-making was not statute-making, in the modern sense; but at most a recognition, or an expression, in writing for the first time, of the law already existing; the primal distinction being that, in England, the people made the law, and the king but recog- nized it. During four centuries after the Conquest the kings vainly endeavored to impose upon the English people the Continental view that law is the command of a sovereign to a subject, not the customs and usages of the people ; an effort which proved futile, and by the eighteenth century did not survive even in the royal veto, but only
* The admirable lectures of James C. to state broad principles, witlioiit re- Carter above referred to argue strongly gard to exceptions and qualifications, for this principle. There are doubt- for which the reader is referred to the less some Continental examples of such footnotes in Book III. custom-law; but this book is intended
CIIAr. l] INTRODUCTORY 5
in the formula Ic roij le vcut, by which the king expresses his assent to the legislation of Parliament, a perfunctory act. For since the days of Queen Anne, no monarch has ventured to use even the gentle formula which indicated the royal veto — le roij s'avLsera.
The history of the regaining by the people of their power to legis- late, almost forgotten in the middle centuries, is now, by the effort of German and English scholars, well known. We owe it, like our own Revolution, to unconstitutional taxation. No Englishman was bound to pay taxes but under a general law passed by his representa- tives in the Great Council and for the general good of the whole people; no arbitrary exaction, aid, impost, or levy by the Crown or its officers was tolerated. This fundamental principle, expressed with the greatest distinctness in John's Charter, was intentionally omitted by Henry III in his, sixteen months later (the usual one printed in the statutes), and only restored in 1297 by Edward I when the needs of the war in Flanders compelled this concession. But the principle was never lost sight of, and there never has been a period in the history of England when the people permitted any taxation for a considerable length of time in contravention thereof; and from the very beginning they used this principle to extort legislation restoring their own law; that is to say, decrees or statutes of the king recog- nizing the common law of England " as it was in the time of Edward the Confessor." For three or four centuries after the Conquest there was no new legislation, in the modern sense; only the old laws restored. The Commons, with that practical good sense which characterizes the English people, caring not for the form provided they got the substance, when asked for grants of money would put the matters they desired to be recognized as part of the law of England into a petition, which would be the foundation of a statute; then, in theory, made by the king, but practically dictated by the Parliament. Thus, gradually,, all the customs of England, with the common law of the Saxon kingdoms, was recognized as the law. Finally the form of petition and decree (which still exists in the machinery of legisla- tion in many of our State Legislatures) was dropped, the House of Commons finding that the law did not always emerge from the king's law officers as they had drawn it in their petition ; and the statutes were drawn in Parliament as well as enacted there, and only sent to the king when in the form of complete Acts for his signature. Thus the power of the purse, the taxation power, residing only in the House of Commons, drew back to it the power to legislate and the English
6 THE AMKRICAN CONSTITUTIONS [BOOK I
view of the law, — as customs, grown, not made, based on natural justice, common usage, and the liberties of the people; laws not newly ordered, but the result of evolution and experience. Hence their wisdom and their strength. It is hard to fix precisely the first date at which anything like constructive legislation, as to ordinary matters concerning the people, first appears in England. For two centuries the statutes of the realm are concerned with matters of taxation, with recognizing or re-establishing the common law, and with political matters, defining the powers of the Crown and exclud- ing the control of the Roman Church and of the Roman law over secular matters. The Statute of Merton, it is true, in 1235 has a word about usury and about the legitimacy of children ; but in both cases it is merely to enforce the Common Law of England instead of the Civil Law of the Church. For a century more they concern merely what we should now call procedure, or the penalties for the infraction of laws already existing, feudal tenures, and the effort to fix the prices of bread and other necessities which was extended in 1349 to the wages of labor. The first constructive legislation that we do find is concerned with those same questions that most concern us to-day, — the regulation of charges, and the prevention of the corner- ing of markets or the making of artificial prices by individuals or by combinations. The price of bread, and ale and tolls of mills were regulated by the Assize in 126G; and in 1275 the Statute of Westminster I forbids "excessive toll contrary to the common custom of the Realm in market towns." Notice that it is still "the common custom of the realm" that toll should be reasonable, it is not a new law; and in 1285, ten years later, appears the statute against forestalling or engrossing; that is to say, monopolizing the market, — a common complaint against the modern trust. In 1691 the rates of carriers are fixed.
When we come to the American Constitution, though now all ex- pressed for the first time in one document, its principles must, so far as they express the English Constitution, be regarded as a continua- tion, not as a new enactment, and must be taken with all the historical meaning and import with which they were viewed in the minds of our ancestors, far more familiar with historical law, with constitutional history, than we Americans have had to be since. It was at first believed by our greatest judges and jurists that the whole English Constitution was implied in the Federal Constitution ; that there is, as it were, an unwritten Constitution which we inherited in America
CHAP. l] INTRODUCTORY 7
and which consisted, not only of the English Constitution where not expressly altered by our own, but of all matters of natural right and justice. Doubtless this is the intended meaning of the Ninth Amend- ment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Such is not, perhaps, the modern view ; but the question has become, in fact, academic, for the reason that in 120 years of interpretation our Supreme Court has ever found some clause in the Federal Con- stitution into which to read any English constitutional principle not therein expressly altered.
But while w^e must insist that the American Constitution is not an instrument or a code of rules created for the first time by a bodv of gentlemen however wise, and therefore subject to the errors of an ordinary new-made document, we must hasten to accentuate the point that it is a different Constitution, the Constitution of another country; while it embodies all the liberty principles of the English Constitution, what we may call all its human or social side, yet also it creates an entirely new frame of government, and it invents two or three great new principles, — principles as profoundly im- portant as those of Magna Carta, principles now recognized through- out the world as America's great contributions to the science of government. First of all these we should put that invention, be it Franklin's or Felatiah Webster's, by which a centralized national government is given all the political power necessary for the pro- tection of the whole country and the conduct of foreign relations, while the States are carefully preserved to secure to the people their own laws and governments and courts at home, — the marvellous dual system whereby power, in so vast a country, is made compatible with liberty. Second, the great principle of the separation of the powers, suggested, indeed, to Montesquieu and others by the practi- cal working of things in England, but never formally embodied in the Constitution of any country, not even to-day, except our own; that principle that they who make the laws may not administer them, and he who administers them may not judge them, " to the end it be a government of Laws and not of Men." ^ Third, most novel, perhaps, and still but half understood, the first great attempt of democracy to found a nation without entrusting the sovereign power away from itself, or in the hands of any one branch of government. This, to me, is the most wonderful political occurrence in modern history; that » See Chapters VIII, X, below.
8 THE AMERICAN CONSTITUTIONS [BOOK I
the people, having (for eleven years from 177G to 1787) for the first time in the history of the world gained all the reins of power, should, voluntarily and of their own high intelligence and patriotism, have put certain things beyond the power of their own Congress, of their own Legislatures, of the very government they were about to create.* Theirs was the high experiment, to found a nation that should forever be without Imperial power ; wherein the Bill of Rights, the cardinal principles, should be kept from the hands of sovereignty itself, and all the powers of autocratic nations, of continental empires and kingdoms, should be given neither to Congress nor to Presi- dent, but sleep in the lap of the people until they woke to further need.
Lastly, with us the people are sovereign ; not, as in England, the Parliament; nor, as in continental countries, the king; and this led, logically and necessarily, to the invention and the function of our Supreme Court. In all other countries, either there is one sovereign, or there are branches of the government co-ordinate and of equal dignity; and it would be" presumptuous for the judicial branch to question the acts of either other. But in England we had the history of the judgments by the courts, of the king's own acts, or those of his officers under his orders. " What power the king hath, he hath but by law." This English heritage, joined with the logic of our Con- stitution, led to the creation of our great tribunal. When a people has granted to its government only certain powers, it may not trust to the wisdom of that government to judge of its own oversteps. When it has parcelled out those powers between Congress and Executive, between Federal government and State, neither branch, neither forum, may safely be entrusted to determine its own power or to limit its own realm. Therefore the people said. This Constitution we establish for the government of our country ; it shall stand until we, the people, by amendment alter it; and beside the Executive and the Congress we place our Supreme Court, which shall judge matters arising between States or citizens of different States, or which involve any principles of this our Constitution ; and the judges of that Court shall be bound by this Constitution and its provisions as against any
* "Though this Government pos- power of both, as delegated, embraces
sesses sovereign power, it does not the whole range of what might be
possess all sovereign power; and so called sovereign power." James B.
the State governments, though sover- Thayer, "Legal Essays," p. 203, quot-
eign in some respects, are not so in ing Daniel Webster, in Luther v. Borden,
all. Nor could it be shown that the 7 How. 1.
CHAP. l] INTRODUCTORY 9
State or power, civil, executive, or military, and as against the acts of their own representative assembly.
This is the great diflFerence, the great distinction of our Constitu- tion. It is a commonplace to say that there is nothing like it in England, nor indeed elsewhere in the world. No other country has dared as yet to grasp the idea that the people may have a guardian above the laws made by their representatives. INIany countries have WTitten Constitutions, but in none can a statute be declared void by the courts.
And there is another important practical difference between the English Constitution and our own. Theirs in the main is composed of limitations upon the Executive. Ours limits (what is to-day far more important) the legislative assemblies as well. In theory still, the English Constitution is a pact between the King and Parliament, which is sovereign and brooks no constitutional control. Ours is the wTitten will of the people, who are with us sovereign, addressed to their servants, the three branches of government, and defining and delimitating their powers among themselves. Both constitutions embody the frame of government; but in this the English is much simpler, for it provides but for the supremacy of Parliament, the power of the Commons in money matters, and the limitations im- posed upon the king. Even the Cabinet, that committee of the House of Commons which now rules the nation, is not mentioned in the English Constitution. But it was necessary for our Constitution, besides setting up the frame of government, and that more compli- cated and explicit, as befits a Republic, also to set forth, in words so exact as to be undoubted, both the powers and the prohibitions given to Congress and the division of power between the Federal government and the States.
Most important in our Constitution to-day is that portion which is not the frame of government, but the liberties of the people; the part most neglected by historians and in treatises upon constitutional law. In this great domain the English and American Constitutions are practically identical ; only that the American Constitutions, Federal and State, express in many words what the English Constitution puts in a very few, while of course the English restraint upon Parliament, though equally (some think more) effective, is a moral one. The growth of words in which these cardinal principles are swathed is curiously shown in Book II of this work. Besides we have, in our Federal Constitution, not only to secure these liberties to the indi-
10 THE AMERICAN CONSTITUTIONS [BOOK I
vitlual as against the Federal government, but in some cases against the State governments as well ; and our State Constitutions, which, after all, with us are the charters of the people's liberties in the ordinary relations of mankind, seek to protect the individual also against the State Legislatures. In this, indeed, they go much too far, as we shall later (Chapter XI) discuss.
This branch of constitutional law forms the main subject of this work. There are many political treatises in which matters relating to government, hitherto deemed most interesting and perhaps most important, have been exhaustively treated ; but in no work has attention been concentrated on those constitutional documents which embody the people's liberties; and in none is the Federal with all the State Constitutions compared and brought together. My last predecessor in this attempt (William Smith) wrote in Philadelphia what he calls "A View of the State and Federal Constitutions Com- pared" in 1797. It fills about twenty-eight pages, and his attention is entirely concentrated on the frame of government, the terms of governors and judges, and the methods of electing them and the members of the State Legislatures. Nothing whatever is said about the Bills of Rights, or other matters even such as the Interstate Commerce Clause, the clauses limiting State and Federal legislation, or the Fifth Amendment, which have proved to be of infinitely greater importance; nor of course of those modern restrictions, relating to labor, corporations, liquor laws, and the like, so volumi- nous in the newer State constitutions.
These cardinal rights may, for convenience at least, be divided into the four great realms of Rights to Liberty, to Property, to Law, and Rights of the people as against the Government. Logically and historically the first is the right to law, for there can be no property, no government and no real Hberty without law.
CHAP. IlJ THE RIGHT TO LAW 11
CHAPTER II
THE RIGHT TO LAW
The Right to Law, peculiar to the English people, is the right of any one, irrespective of rank or station, to appeal to the ordinary law courts for trial of any dispute between him and any other person, or body of persons, or even any officer of the government. This applies as well to criminal as to civil cases, and to any infringement, by any person or officer, acting under whatever authority, upon the indi- vidual rights to liberty and property, or other civic rights. In England, and with us, there is no Administrative Law; no peculiar corpus juris extending to the doings or relations of government or any officer thereof, such as exists in all continental countries. The notion that the doings of the government itself, or even of the king, in the person of any of his officers, can be questioned by any subject in the ordinary law courts — conjoined with the right of instant in- quiry into the reason or pretext of the detention of any man's person by the officers of government, civil and military as well as judicial — is the principal reason that England has been called free. The law required by this general right, furthermore, must be the Common Law of the English people. That is to say, in origin, the body of their free customs and usages, made by themselves, not by a king, and also, in earliest days, enforced by themselves ; and furthermore it must be the Common Law, not the Roman or Civil Law, nor the Canon or Church Law, nor any supposed Administrative Law, or orders or decrees of the king, or king in Council. Even chancery jurisdiction, which rests originally on the royal power as wielded by the king's chancellor (whence the wi'its of injunction, mandamus, prohibition, etc., are called Prerogative wi'its), is hardly an exception. For many centuries we find statutes restraining or limiting chancery jurisdiction. It arose comparatively recently (we can almost fix the time of the first use of equity process, in matters of trade and domes- tic affairs as now used, at the time of Jack Cade's Rebellion in 1452) and as we all know, the prejudice against the injunction, and the interference of Chancery courts with ordinary criminal jurisdiction
12 THE AMERICAN CONSTITUTIONS fBOOK I
and the prliK'ij)los of tlie Common Law, has not yet disappeared (see Chajiter \\). K(|uity therefore, may truly be said to be a modern growth iij)(»n the body of the Common Law. All its other compet- itors or intruders were early got rid of. Statutes a<;ainst the Roman law will be found in the fourteenth century, while the ouster of Canon Law, of the Church courts, from their jurisdiction in England, begins with the Constitutions of Clarendon. The three great heads of the growth of the English Constitution, from the Conquest until modern times, are indeed but the resumption by the whole Parlia- ment of its power to make laws, by the Commons of their power to regulate taxation, and by the people generally of their right to be tried in their local courts by their neighbors under the Common Law, and to have no royal officer or Civil Law or church tribunal hold himself above it. The procedure must always be the people's ; and, since the time of Henry II, by grand and petit jury; for the Saxon method of trial by ordeal was abolished by the Lateran Coun- cil in 1213, and about the same time the English got rid of the Norman method of trial by battle. The broad principle remained that an Englishman could only be put in peril by a grand jury of his neighbors, and definitely condemned or his property forfeited by twelve men of his peers. It is true that the machinery of the Norman Inquest was applied to the jury system; but the principle of the latter pre-existed, even as we go back to the earlier times when a man's neighbors helped him to enforce his law, or the earliest times when he enforced the law himself. For it results logically, and did result historically, from the Anglo-Saxon conception of law that it might be enforced by anybody; these were the times of the "un- written law," and the law, like the moral code, was supposed to be known of every one and justified a man's right hand. Earliest statutes, therefore, never declared the law, but merely defined the penalties for its enforcement; just as the modern statutes against trusts add nothing to the old common law except to define the pen- alties for its infringement. In early English trials, therefore, what was tried was rarely whether the man did the deed (it was usually admitted or known), but whether he was right in doing it: that is to say, was he i7i his law? Was he acting upon a state of facts whereon the unwritten law gave the right of reparation or vengeance into his own hands ? If not, he was out of law, outlaw ; that is, he had lost his right to law as against any one molesting him in person or property.
CHAP. Il] THE RIGHT TO LAW 13
As Stubbs remarks, the early English statutes, before the Con- quest, are hardly statutes in the modern sense. When they have not to do with matters of procedure, or penalty, they are but vague statements of the moral law. The underlying law, like the Ten Commandments, is supposed to be known of every one. Written statutes busied themselves only with the amount of the were, or fine, or (for the first century after the Conquest) with the method of procedure.
Furthermore, the right to law involved the right to trial by a man at home by his local courts according to his local customs, originally by his neighbors. The jealousy of the King's judicial power, of the Court following the person of the king or even centralized in London to the exclusion of the jurisdiction of the county courts, is shown in every constitutional document, beginning with Magna Carta, in a long line of statutes, in the Declaration of Independence, and in the American Constitution.
"The great original principle of the English judicial system was that of trial in local courts properly constituted — trial 'per pais, in the presence of the county, as opposed to a distant and unknown tribunal." ^ And the law enforced was the law as it was in the time of Edward the Confessor, — the customary law of the people, not the statutes of the Norman sovereign. Thus, in 890, "I, then, Alfred, king, gathered these (laws) together, and commanded many of those to be written which our forefathers held, those which to me seemed good; and many of those which seemed to me not good I rejected them, by the counsel of my 'witan.' ... I, then, Alfred, king of the West Saxons shewed these to all my 'witan', and they then said that it seemed good to them all to be holden." ^ After the Conquest every Norman king was made on his coronation oath to promise this, the law of Edward the Confessor, until Magna Carta; after that they promised to respect Magna Carta instead, which was thus reissued or confirmed thirty-two times in the eighty-two years which intervened between Runnymede and the final Confirmation of charters under Edward I. Thus, W^illiam the Conqueror himself, in his charter to the City of London says, in Anglo Saxon : "And I do you to wit that I will that ye two be worthy of all the laws that ye were worthy of in King Edward's day." ^ So the Domesday Book records "the customs," that is to say, the laws, of various towns and counties; these bodies of customs invariably containing a mere hst
' Taswell-Langmead, 6th ed., p. 28. ^ Ibid., p. 83. - Stubbs' Charters, p. 62.
14 THE AMKRICAN CONSTITUTIONS [cOOK I
of penalties for the hreacli of tlie established law, while later charters usually give the inhabitants of a town all the customs and free privi- leges enjoyed by the citizens of Lonilon. In 1100 Henry 1 in his Charter of Liberties promises in the first section relief to the king- dom of England from all the evil customs whereby it had lately been oppressed, and finally i-eturns to the people the law of Edward the Confessor "with such emendations as my father made with the con- sent of his barons." ' In his charter to the citizens of London - he promises general freedom from feudal taxes and impositions, from dane-geld, and from the fine for the murder of a Norman ; and the Charter of Liberties issued by Henry H in 1154 confirms their "liberties and free customs to all men in the kingdom." ^ In Magna Carta the right to law is of course primarily guaranteed in Cap. 39, that no freeman is to be molested except "by the law of the land"; also by Cap. 24, prohibiting minor royal officers from trying criminal cases; and Cap. 13, which extends the ancient liberties and the free customs of the citizens of London as well by land as by sea to all other cities, burghs, towns, and ports in the realm as to their own law. In 1309 (see Historical Digest) we already find a statute re- straining chancery jurisdiction and forbidding arrest, conviction, or forfeiture without a jury, a principle only recently revived in the Constitution of Oklahoma;* in 1331 a statute against invasion of common law jurisdiction by the chancellor ; in 1383 a protest against Roman law and a definite prohibition of it to the courts of England; in 1391, no man is to be compelled to answer before a Lord (of mat- ters determinable at common law), and there is another statute limit- ing admiralty jurisdiction and again prohibiting the Roman law. In 1406 the House of Commons present their Petition of thirty-one articles, of which the tenth provides that the Council should de- termine nothing cognizable at common law unless by the advice of the judges ; and other clauses are that all officers shall personally per- form their duties ^ and be sworn to observe "the common law of the land"; but in 1452, after Jack Cade's Rebellion, the Act 31 Henry VI, C. 2, provides that in case of riots or disorder an offender may be commanded to appear in Chancery and, if he disobey, the chan- cellor may issue writs of proclamation to appear within one month or suffer forfeiture or outlawry ; and although this statute continued
1 Stubbs' Charters, p. 101 (clause * See Book III., §§ 650, 662.
13). * Forthis principle in modern Ameri-
^ Ibid., p. 108. can State Constitutions, see Book III,
« Ibid., p. 135. § 215.
CHAP. Il] THE RIGHT TO LAW 15
only seven years, its principle remained and is the historical orif^fin of the use of the injunction process to prevent disorder or crime (see Chapter IV). So, in 1487, a statute of Henry VII gives special au- thority to the Court of Star Chamber over riots and disorders. But the abuse of the royal prerogative continued under the Tudors and Stuarts, until the Petition of Right in 1627 complains (Article 3) that although it is declared (c|uoting Magna Carta) that no man be imprisoned nor put out of his freehold, nor franchises, nor free cus- toms unless it be by the law of the land, and established that from thenceforth none shall be taken by petition or suggestion made to the king or his Council unless it be by indictment or presentment of good and lawful people of the same neighborhood or by process by wi'it originally at the common law, and no one shall be forejudged but by the courts of the law, nevertheless of late times divers com- missions have issued giving authority to proceed under martial law whereby (§ 8) some have been put to death when and where if by the laws and statutes of the land they had deserved death, by the same laws and by no other they ought to have been judged. And finally, the long history of invasion of the common law is closed by the entire abolition at the hands of the Long Parliament of the Star Chamber and of all but common-law courts. After the Revolution, the Bill of Rights complains that James II endeavored to subvert the laws and liberties of the kingdom, among other things by issuing a commission for a court to be called "The Court of Com- missioners" (clause 3), and (Part II, clause 3) that both this com- mission and all other commissions and courts of like nature are illegal and pernicious. The right to the common law exclusively was too well established to need much expression in the Federal Constitution, but the Declaration of Independence complains (clause 17) that George III " has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws," and (clause 24) arraigns him for "abolishing the free system of English laws in a neighbouring province, establishing therein an arbitrary government." The Federal Constitution recognizes the principle in the seventh Amendment of the ten which are our national Bill of Rights, providing for suits at common law and trial by a jury, and that no fact so tried shall be otherwise re-examined in any court of the United States than according to the rules of the common law; while many State Constitutions declare the people entitled to the common law of England.^
» See Book III, § 76, and note 6,
16 THE AMERICAN CONSTITUTIONS [BOOK I
The equal right to law was cstabHshed as early as the Charter of Liberties of Henry II, and extended not only to the barons but to all persons except actual slaves; for even the villeins had full law rights. Magna Carta recognizes the principle of equality in Caps. 30, and in 40, — "To none will we sell, to none will we deny right or justice," and in the preamble conceding these liberties also "To all free men of our kingdom," and expressly in Cap. GO, extending all the foregoing customs and liberties not only to the king's tenants, but they are to be observed by all others, both clergy and laity, and in Cap. 65 (omitted by Henry III) granting the aforesaid liberties to all men. "By 1485," says Hallam, "the principle that all officers, administrators, or soldiers are liable at the common law for their acts, that is, the prohibition of the continental Administrative Law, had been fully established " ; while in 1566 Speaker Onslow tells Elizabeth herself that she is subject to the common law. So in the Massachusetts Body of Liberties, clause 2, the same justice and law is extended to every one, whether an inhabitant or a foreigner ; ^ and in the Declaration of Independence appears the famous state- ment that "All men are created equal," thus extending the prin- ciple established under Henry II, six hundred years before, that they are only equal before the law.
What is due process of law will be discussed later more particu- larly. It is particularly notable that the words of Magna Carta, "legal judgment of his peers or the law of the land," are, in the Statute of 28 Edward III replaced by the words "due process of the law," and the Petition of Right (Article 4) quotes the provision in the same words. It is probable that historically the words are synonymous; that is, "the law of the land" means by indictment and procedure at the common law, and "judgment of his peers" trial by jury, while "due process" includes both. There is still a feeling that the words "due process of law" will not justify prosecu- tion by information or in any other manner than a common law indictment or trial except by jury.^ The Supreme Court of the United States has, however, held that "due process of law" does not necessarily include trial by jury or, in certain cases, any court trial. The principle is embodied in the Fifth Amendment nearly in the words of the Statute of Westminster, "No person shall be
' See Book II, Constitutional Prin- * See the recent amendment to the ciples. Wisconsin Constitution, Book III,
§ 127, and § 130, note 10.
CHAP. Il] THE RIGHT TO LAW 17
deprived of life, liberty, or property without due process of law," and in the Fourteenth Amendment is required, in the same words, by the Federal Government of the States. It exists in this language in New York and in the newer States copying the Federal Constitution, but still stands in the words of Magna Carta in New England and the older States.^ Finally, the principle that this common law under due process must be afforded to every per- son in his home or in local courts is expressed in Magna Carta, Cap. 1 7 in the exact terms demanded by the barons (clause 8 of the barons' demands),^ that common pleas shall not follow the King's Court, but be assigned or held in some certain place; in Cap. 18, that recognitions shall only be held in the court of the county where the lands lie and that the king shall send two justices into each county four times a year to hold assizes where, if all matters cannot be tried on the day appointed, a sufficient number of knights and free- holders present at the assizes shall stay to decide them. It is fur- ther especially provided that the writ prcccipe (Cap. 34) shall not in effect be issued so as to cause a freeman to lose his court; and this is also the exact words of the barons (clause 24), the object being to protect the local jurisdiction against the royal courts ; and in Cap. 45, " justices . . . shall only be appointed of such as know the law and mean duly to observe it," — also taken literally from the barons' request ; the meaning being to require local common law courts held by common law judges and allow no other jurisdiction. So in 1391 the law above quoted preserving the common law as against a Lord's courts; while by 1485 Hallam mentions as one of the six liberties now established the right to be tried by a jury of the county. In the Declaration of Independence the twenty-third clause complains of the king's "transporting us beyond seas to be tried for pretended offences" and the Virginia Bill of Rights (clause 8) provides for trial in the vicinage. The principle is preserved in the Federal Con- sitution. Art. 3, § 2, requiring all trials to be held in the State where the crime is committed ; and so in most of the States.^ The same principles are true of civil cases. Cap. 40 of Magna Carta applies to civil as well as criminal matters, slightly expanding the demand of the Barons (clause 30) "that justice shall not be sold nor deferred nor forbidden" ; and the clause is adopted in almost the same words in all the State Constitutions.*
» See Chapter III, infra; Book III, « See Book III, § 133, § 130. * Ibid., §§ 70, 73, 79.
^ Printed in Stubbs' Charters.
13 THE AMERICAN CONSTITUTIONS [BOOK I
CHAPTER III
THE RIGHT OF LIBERTY
Civic liberty, as understood and enjoyed by the English people, has, like the right to law, important differences from the conception held in other countries. For the right to have one's person free of arrest, detention, or control applies as well to the government, the actions of officers of the courts of law, as to the trespass of any fellow- citizen; and the right of liberty in trade or industry involves the notion of protection from any monopoly or any privilege even if granted by the State, as well as from any combination of guilds or other workmen. Moreover, the right is guarded by the great insti- tutions of trial by jury and habeas corpus; the former of which indeed has lately been copied in continental countries, but the latter, so far as I am informed, not even yet. There is on the Con- tinent nothing corresponding to the constitutional right of any in- dividual when arrested by an officer of government to demand instant information of the cause of his arrest and to be set at large unless indicted by a grand jury for a crime not bailable or for wliich the person accused is unable to give satisfactory bail.
The right of personal liberty includes, therefore, the right to life, that is, the right not to be deprived of life except under a general law of the land previously made, the facts to be found by a jury (Magna Carta, Cap. 39); and the right to liberty of the person, that is, freedom of bodily restraint either by imprisonment, deten- tion, or the being refused locomotion to any place desired, even to the extent of leaving the kingdom. In this country this right has been found by the Supreme Court to involve the constitutional right to move from one State to another free of tax or hindrance,' and this is expressly decided not to rest upon the Interstate Commerce clause, but upon the right to personal liberty of the American citi- zen. On the other hand it involves the right not to be banished even
> Crandall v. Nevada, 6 Wall. 39.
CHAP. Ill] THE RIGHT OF LIBERTY 19
for crime, presumably, therefore, not to be banished even from a State of the Union.*
The right to personal liberty is guarded by the writ of habeas corpus, preceded by the writ de odio et atia referred to in Cap. 3G of Magna Carta: "Nothing shall be given or demanded of another for the wTit of inquisition of life or limb, but it shall be given gratis and never denied." The right to be informed at once upon arrest of the nature and cause of the accusation is a different and indepen- dent constitutional right from that to a grand jury or the process of indictment; although many State Constitutions confound the two. The right to be informed of the nature and cause of the accusation ^ is instantaneous upon arrest, or at least arises as soon as the accused is brought before a magistrate. The requirement that the person accused or arrested can only be tried on a finding of a body of twenty- tliree men, the grand jury, antedates the petit jury, going back to the time when the trial of facts was by ordeal. The English people per- sistently struggled for many years after the Conquest to have this the only method of accusation ; the practice of beginning a criminal suit by information to the king or to a Crown officer, obviously Norman in origin, was obnoxious to the people ; it cannot, however, be said that it was not finally established, though many of the Ameri- can State Constitutions evidently contemplate that procedure by information is not "due process of law." Some of the western States, however, have shown a tendency to do away with the grand jury and use the process of information exclusively.^
There were twenty-five thousand slaves in England at the Domes- day Book,* probably the result of earlier conquest or punishment, possibly of voluntary sale; but they soon disappeared, either by exercising a trade (see Chapter V) or by acquiring land, just as under the Dawes Act the allotment of land in severalty makes an Indian a United States citizen. Villeins were not regarded as slaves under the law; and they also disappeared, largely as a conse- quence of the rebellions of Jack Cade and Wat Tyler, which suc- cessfully established their right to land in severalty and to be paid money wages. Subject to this exception the right to liberty was
* The word "Banishment" is used however, granted by a State governor
in the sense of compulsory transpor- on condition that the offender leave
tation beyond the limits of the British the State might possibly be upheld. Empire. In early days it was defined ^ See Book III, § 120, notes, to mean not beyond the four seas, ^ See Book III, § 127. Tangier and the Islands. A pardon, * Taswell-Langmead, p. 18.
20 THE AMERICAN CONSTITUTIONS [BOOK I
general in England from the earliest times. Henry VIII even, in 1514, manumits two villeins, using the words of the Declaration of Independence, "Whereas God created all men free."
The Statute of Westminster I, 1275, again refers to the writ de odio et alia, and the Statute of Edward III, 1354, in quoting Cap. 39 of jNIagna Carta, also says that " no man of what estate or condition that he be shall be . . . imprisoned nor disinherited, nor put to death without being brought in answer by due process of law," expressing for the first time that there must not only be lawful trial, but that the person accused must be present; and chapter 9 of the same Statute forbids the sheriffs by virtue of commissions and general writs to take inquest to cause to indict the people at their will, — expressly, therefore, providing for indictments.
"By 1485," says Hallam, "the right not to be imprisoned without warrant" was established; and in 1G17 we find the last legislation concerning villeinage. During these centuries, however, there had been a persistent effort by all the kings to avoid the writ of habeas corpus, to arrest people without warrant or indictment, detain them without cause or trial, try them without a jury, or punish them by martial law. Finally, in the petition of Right (clause 5) the Parlia- ment complains of this and that when they were brought up on habeas corpus they were still detained, without cause certified, by the king's special command; and in clause 10 they pray that no free man in such any manner be imprisoned or detained. Fourteen years later the Massachusetts Body of Liberties (Preamble) defines the denial of liberty to be the ruin of the Commonwealth, and first definitely adds to the principles above stated, that no person can be deprived of liberty or property or reputation unless by some ex- press law of the country, i. e., a general law warranting the same, established by a legislature, and sufficiently published ; and (clause 18) "No man's person shall be restrained or imprisoned by any authority whatsoever, before the law hath sentenced him thereto, if he can put in sufficient security, bail, or mainprise for his appearance, and good behavior in the mean time, unless it be in crimes capital, and contempts in open court, and in such cases where some express act of court doth allow it." This was enacted nearly forty years before the Habeas Corpus Act, in 1679, first cured the defect in the writ by providing against delay and for bail, and extending the number of judges who are required to grant the writ; and still
CHAP. Ill] THE RIGHT OF LIBERTY 21
later the English Bill of Rights, prohibiting excessive bail, and a statute providing that it should apply as well to commitment upon civil as criminal cases; which is followed generally in American constitutions/
The Massachusetts Body of Liberties (clause 17) provides for liberty to remove from the Commonwealth, and (clause 91 ) that there shall never be any bond slavery, villeinage, or captivitv, unless lawful captives or such strangers as willingly sell themselves. Massachusetts, however, departed from this principle later, and a few slaves existed as late as the Revolution, when the Massachusetts; Constitution in its Bill of Rights, Article 1, put an end to it by de- claring that all men are born free and have inalienable right toi liberty; so, the Declaration of Independence, clause 2, and the Virginia Bill of Rights (§1), but this was believed not to apply to negroes.
The objection to information or proceedings other than indictment is also foreshadowed in Magna Carta, Cap. 38, that no one shall be put to his law, that is, trial, by ordeal or otherwise, upon the bare saying of a bailiff (prosecuting officer), without credible witnesses to prove it, and by 1354 indictments are expressly required. The modern law of the English Constitution on this point is first fully expressed in the Virginia Bill of Rights, clause 8, that "in all . . . criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor ' and to a speedy trial by an impartial jury of his vicinage without whose unanimous consent he cannot be found guilty," anticipating exactly the words of Hallam above quoted as early established in England.
Whatever may be the meaning of due process of law, there is no doubt that the words "judgment by his peers," in the great clause in Magna Carta, means trial by jury, or w4iat then corresponded to it ; and the reading of the clause developed with the growth of the insti- tution to make our modern understanding that it must be a unani- mous verdict of twelve who are not witnesses of the crime accused.^ The Statute of Wales (1284) already provides a complete code of procedure with jury trial ; but the system of punishing juries for a wrong verdict by attaint existed until 1670, and only at that time
» Va. B. Rts. 9; U. S. C. Amt. VIII. English Constitution. See Book III, See Book III, § 122. § 135. note 6.
' This right is not expressed in the * See § 131, note 4.
22 THE AMERICAN CONSTITUTIONS [BOOK I
was finally established their right to be judge of all the facts, a right extended in many of our State Constitutions to the law as well as to the facts, conjoined with a prohibition to judges to charge the jury on the facts or even to state them.'
The Virginia Bill of Rights requires a jury in criminal cases, and holds it preferable to any other mode of trial in civil suits; the Declaration of Independence complains of the deprivation of trial by jury. There has been no further development of the principle except in the direction of allowing verdicts by a smaller number than twelve, or, in civil cases, not unanimous."
The provision against excessive bail, as has been said, dates only from the Bill of Rights. That against cruel or unusual punishments as well as excessive fines goes even back to Magna Carta, Cap. 20, providing that a free man shall only be fined for a small offence after the manner of the offence, for a great crime, according to the heinous- ness of it, saving to him his contenement; that is to say, his necessary tools of trade. The former provision is found in all our State Constitutions as well as the Federal ; ^ and the latter in many, * and probably always by statute if not at the common law. Banishment was early held an unusual punishment, and there was probably never any legal torture in England, though once or twice the rack was introduced. The Massachusetts Body of Liberties, however (clause 43), says that no man shall be beaten with above forty stripes nor shall any true gentleman nor any man equal to a gen- tleman be punished with whipping, etc.; and clause 45, "no man shall be forced by torture to confess any crime . . . unless in some capital cases where he is first fully convicted, after which if the cause be of that nature that it is very apparent there be other con- spirators or confederates with him, then he may be tortured, yet not with such tortures as be barbarous or inhuman " ; and in clause 46, the usual constitutional provision is anticipated for bodily punish- ments, — "we allow amongst us none that are inhuman, barbarous or cruel," thus anticipating the provision of the Bill of Rights, clause 10, that excessive bail ought not to be required nor excessive fines imposed, nor cruel and unusual punishments inflicted, copied in the Virginia Bill of Rights, § 9; in the Federal Constitution, both as to the States and the nation ; and in all the State Constitutions.^
1 See § 675. * Ibid., §§ 81, 331.
' See Book III, §§ 72, 132. « Ibid., §§ 122, 140.
» Ibid., § 140.
CHAP. Ill] THE rJGHT OF LIBERTY 23
The only exception to this common-law right to personal liberty and court trial (except that exercised under chancery jurisdiction discussed in Chapter IV) is the practice of finding a man guilty of a criminal offence, usually, but not necessarily, treason, by a bill of attainder; that is, a legislative act of the Houses of Parliament de- claring the person guilty without trial and even in his absence. This practice was freely employed by the Tudors and Stuarts especially under Henry VHL* It has never been declared unconstitutional in England, though the abuse was so well known to our ancestors that they expressly put it in the Federal Constitution as applied to the nation and to the States as well." This has been followed in nearly all the State Constitutions.^
Some of the State Constitutions forbid imprisonment for debt in civil cases, a principle first embodied in the INIassachusetts Bcdy of Liberties, clause 33, providing that no man should be imprisoned for debt if the law could find competent means of satisfaction other- wise from his estate. The Body of Liberties also anticipates the modern right to counsel (clause 26), which, as a constitutional right, does not yet exist in England,^ and (clause 47) requires two witnesses in capital cases.
Finally, the right not to be placed twice in jeopardy goes back also for its first clear expression to the Massachusetts Body of Lib- erties, which gave many principles both to later English constitu- tional documents and to the Federal and State Bills of Rights. Clause 42 reads: "No man shall be twice sentenced by civil justice for one and the same crime, offence, or trespass." The Habeas Corpus Act forty years later provided that no person once delivered by habeas corpus should be recommitted for the same offence. And while the Fifth Amendment to the Federal Constitution only pro\ades that no person shall be subject for the same offence to be twice in jeopardy of life or limb, thereby limiting the principle to capital cases, many of the State Constitutions extend it to any criminal prosecution for which the punishment may be imprisonment.^
' See § 138, note 10. ■• See § 134, note 17.
2 Art. I, § 9, (3); Art. I, § 10 (1). « See Book III, § 137, notes.
» See Book III, § 138.
24 THE AMERICAN CONSTITUTIONS [BOOK I
CHAPTER IV
CHANCERY AND THE INJUNCTION ORDER
The common law sounds in damages. In early times it was en- forced, civil and criminal, only by a money penalty; or by personal redress or vengeance. Thus, the earliest codes or statutes merely fix a scale of penalties. The notion of compelling a freeman to do something or to abstain from doing something was foreign to Anglo- Saxon ideas of liberty. Like the doctrine of free will carried to its extreme, a freeman was lord of his own acts; only liable for the consequences of the same, to the person injured; later only to the Crown if a criminal act, and to the individual injured if a private wrong. Even when the judgment of the court went against him, the defendant was never compelled to do a thing, or even, in ordinary cases, to make restitution, as in the Oriental system of rendering justice. This principle must never be lost sight of, for it explains many things both in local history and in popular prejudice. Prob- ably the power of the chancellor to issue injunction writs went as far towards prejudicing our ancestors against the courts of chancery and Star Chamber (which was merely its criminal side) as the absence of the jury and the local county court. Repeated attempts to limit or do away with this jurisdiction are found in the Statutes of the Realm, and the general prejudice against Chancery courts came to our ancestors by direct inheritance. As is known, some States, notably Massachusetts, for some time withheld chancery jurisdiction entirely, and when adopted it was in a limited and tentative way. On the other hand Congress, for the Federal courts, adopted the full English practice in the first judiciary act;^ Art. Ill, § 2 of the Constitution expressly provides that the Federal judicial power shall extend to all cases, in law and equity.
1 Act of Sept. 20, 1789 c. 20 § 11. of Chancery in England ; and so to-day,
By Rule XXXIII of the first (1822) where applicable, by its "present"
Rules of Practice, equity practice is practice, regulated by that of the High Court
CHAP. IV] CHANCERY AND THE INJUNCTION ORDER 25
The use of the injunction to quell disorder or control the action of large bodies of men, with the vigorous use of contempt process, to an even greater extent, stirs public opinion to-day, though it also has very early precedents going back, like chancery jurisdiction itself, to the first century after the Conquest. It was used in early times to quell disorder ; but its use to control the action of bodies of men in labor disputes may be said to date from the case of Spring Head Spinning Co. v. Riley, decided in 1SG8 (L. R. 6 Eq. 551). The principle of this case has had vast extension in the United States, due not only to the prevalence of labor disputes and the activitv of orranized labor, but still more to the inefficiencv in many parts of the country of the local courts and of the State police ; and most of all to our State and Federal system and the fact that the Constitution gives the Federal courts jurisdiction for suits between citizens of different States, as railroad, mining and manufacturing industry is with us almost entirely carried on by corporations. Fre- quently chartered in other States than where the trouble occurred, it was a convenient thing for the corporation which feared prejudice in the local courts, or distrusted their strength or the strength of the local police to enforce their orders, to go into the Federal courts and obtain injunctions for the enforcement of which they could, in last resort, depend upon the entire military force of the United States.
English notions of liberty, it is true, resisted the chancellor's power in its most dangerous path ; that is to say, in applying the doctrine of specific performance to the contract of labor; though we see an effort to arrive at the same result in the so-called "peonage laws" in the south, as well as in recent injunctive orders or mandatory injunctions of Federal and other courts ordering a man or bodies of men not to quit work. Specific performance of a contract to render services, like a contract for indefinite or long term service, too much resembled slavery to be tolerated at the common law. And indeed contracts to do work "in gross," piece-work, not paid by the day, had to be expressly authorized by a statute of Edward III (1360). Nevertheless, statutes requiring a man to labor at some work con- tinued for several centuries.
Bearing in mind firmly the principle that the English law sounds only in damages, and that the notion of ordering or even forbidding any act (except under a criminal statute) is utterly foreign to its system ; and the cardinal principle that no fact can be found without the intervention of the petit jury; we shall be able to understand
26 THE AMERICAN CONSTITUTIONS [bOOK I
both tlie historical reason and tlie present meaning of the objection of the American people to the injunctive powers of chancery and the ex parte sentences for contempt made by the judge who issued the injunction and upon the facts as found by him showing the in- fringement of the same. It must also continuously be borne in mind that this chancery power to sentence for contempt of an in- junction writ is wholly different, both in historical origin and in logic, from the necessary inherent power of any common law court to punish for contempts committed in the presence of the court itself; for this is a power inherent in the Court, and the Massachusetts Body of Liberties in 1641 only anticipates the Oklahoma Constitu- tion of 1907 in recognizing it only as to "contempts in open court." * We have already cited many statutes indicating the dislike of our ancestors to courts of Chancery and the Star Chamber ; Coke him- self speaks of the latter complainingly as " a court of criminal equity." In 1327 King Edward III found it necessary to adopt some more effectual measures of police than those which already existed. For this purpose justices of the peace were first instituted throughout the country, with power to take security for the peace and bind over parties who threatened offence ; ^ and only four years after this we find the first statute against invasion of common law jurisdiction by the chancellor, forbidding the arrest or conviction of a man or the forfeiture of his property without a jury trial in a common law court. In 1382 the Commons themselves complained to the king of grievous oppression by the great barons which rendered the remedies of com- mon law courts of no avail. Accordingly the judges of these courts themselves were placed under the special supervision of the chan- cellor, who began to exercise his authority in repressing disorderly obstructions to the courts of law and in affording civil remedy in cases of outrage which could not be effectually redressed through the ordinary tribunals (precisely the reason advanced for the great use made of the injunction writ to-day) ; but thereupon the Commons took great umbrage at the exercise of such authority by the chan- cellor, claiming that this jurisdiction was an interference with the common law, but the king persevered, stating that he would pre- serve his prerogative.^ Later the Court of Star Chamber had the
* Mass. Body Liberties § 18; Book Injunctions," printed as Senate Doeu-
III, § 662. ment, Report 827, 54th Congress, 1st
^ Spence, Equity Jurisdiction, pp. Session; Political Science Quarterly,
342-344. Vol. 10, No. 2.
^ F. J. Stimson, "Modern Use of
CHAR IV] CHANCERY AND THE INJUNCTION ORDER 27
same jurisdiction and Coke particularly mentions as part of it "the suppression ... of great and horrible riots, routs, and unlawful assemblies, leaving ordinary offences to the courts of law," ' In 1348, according to Herbert Spencer, the court of Chancery became the Court of Equity with power to relieve in certain cases and a fixed abode ; and it is a curious coincidence that the very next year was passed the first Statute of Laborers, the first law requiring com- pulsory labor save of slaves or villeins in England ; confirmed in 1360 by a statute which also contains the first prohibition against com- binations by trade alliances in restraint of trade or to fix wages, and in 13SS villeinage was abolished or commuted to a fixed money pay- ment. That is to say, the freedom of labor and the pi'inciple for- bidding combinations to control labor grew up together. Then, in 1452, after Jack Cade's Rebellion, we have the definite invention of chancery process to control riotous laborers already (Chapter II) referred to; and in 14S7 the Court of Star Chamber is given special authority over riots and disorders. Finally, in the 5th of Elizabeth, the gi-eat Statute of Laborers was enacted, consolidating all previous laws and still maintaining the principle of compulsory labor and fixed wages, but it was only enacted to be forgotten, save for the prin- ciple that it bequeathed to English law that strikes and trade unions were unlawful combinations.
Many further authorities can be cited to sustain this position ; but these are sufficient to establish the general principle that the injunction process and contempt in chancery procedure, as well as chancery jurisdiction itself, is looked on with a logical jealousy in Anglo-Saxon countries as being in derogation of the common law; and that, while an injunction to prevent irre- parable injury to property or private rights will not be refused be- cause the injury be also a crime or misdemeanor, yet the naked principle is undoubtedly true, as indeed is the history and the logic of the thing, that under the English legal system the power of the king's chancellor may not be invoked to forbid or punish a crime as such, thus taking away the jurisdiction of the com- mon law courts and depriving the person accused of his trial by jury.^ The objection, therefore, to the abuse of the injunction is
' F. J. Stimson, "Handbook to the right of property, and who makes out
Labor Law of the United States," 1st that an action at law will not be a suffi-
Edition, pp. 315-316. cient remedy and protection against in-
^ "A court of equity has no criminal truding upon his possession." (Macauley
jurisdiction, but it lends its assistance v. Shackell, 1 Bhgh, N. S., 96, 127.) to a man who has, in view of the law, a "... 'If an act be illegal,' said Vice-
28 THE AMERICAN CONSTITUTIONS [BOOK I
sound, and this in our country not only for the historical reason we have explained, but because it tends to make the courts no longer judicial but in eflect part of the Executive branch of government. This is the sense of the popular phrase — and most popular phrases have some sense — "government by injunction." '
There has, of course, been no constitutional limitation of the powers of equity in England, nor is there in the Federal Constitution, which clearly contemplated giving all judicial power which then existed in p]ngland to the Federal judiciary in cases where they had jurisdiction ; but the State Constitutions are beginning to deal with the subject and several States have attempted statutes. The matter is likely to be of large importance in thie future, for bills to limit or prohibit punishment by contempt for disobedience to injunctions granted by courts of equity, at least in labor or trade disputes, are pending before Congress and in nearly every State of the Union. The constitutional provisions will be found in Book III, § GC2. They have so far been adopted in the Constitutions of seven States. Whether, in the absence of a constitutional provision, a statute to that effect would be valid, is a matter so untouched as yet by any decision of a high court that the author can only hazard his own opinion. While a legislature cannot take away the power of a com- mon law court, at least, to sentence for actual contempt committed in its presence, necessary to preserve the dignity of the court, there would seem no reason why, in the absence of a constitutional pro- vision recognizing chancery jurisdiction, a State legislature should not do away with contempt process in equity or even with chancery jurisdiction entirely, though perhaps it may not legislate especially and only for labor disputes, under the Fourteenth Amendment. In some States, as has been pointed out, chancery jurisdiction did not originally exist; there are, however, several States which recognize it in their Constitutions,^ while other States declare that common law and chancery shall be "fused" or that all the courts shall exer- cise chancery jurisdiction. In these States, as the doctrine of specific performance and the contempt power is the very right arm of chan-
Chancellor Kindersley, in Solteau v. J. Stimson, "Handbook to the Labor De Held, 2 Sim. & Stu. 153, 'I am not Law of the United States," p. 318. to grant an injunction to restrain an ' U. S. Senate Report 827, 54th illegal act merely because it is illegal. Congress, 1st Session, p. IIG. Charles I cannot grant an injunction to re- Claflin Allen, "Injunction and Organ- strain a man from smuggling, which ized Labor," 17 American Bar Associa- is an illegal act,' nor could he for any tion Reports, p. 299. merely criminal or penal offence." F. ' See Book III, § 651.
CHAP. IV] CHANCERY AND THE INJUNCTION ORDER 29
eery, it may be questioned whether a State statute may forbid the writ of injunction, require a jury trial, or deny the power to enforce it by fine or imprisonment; and so Congress, under the Federal Constitution, may have no such power. But it may surely limit the extent of punishment to be inflicted, as is done by statute in Kentucky, to imprisonment for ten or thirty days, or at most six months, — the extreme sentence now usually imposed. A shorter limit would be adequate to any emergency and equally well pro- tect the dignity of the Court.
30 THE AMERICAN CONSTITUTIONS [BOOK I
CHAPTER V
THE RIGHT TO LABOR AND TRADE
Coming last to the liberty of labor or trade, it is the more import- ant to trace the appearance of the great principles falling under this head for the reason that they have largely been lost sight of in Ameri- can jurisprudence. The frequent enactment of acts against trusts, monopolies, or contracts in restraint of trade, both State and Federal, show that our Legislatures, if not our Bench and Bar, must have substantially forgotten the body of the common law, to say nothing of the course of English constitutional history upon these matters.
For the broader understanding of the liberty right involves as well as the liberty of life and person, the liberty to support life and family. That is, to exercise one's labor freely and without control, to acquire possessions, to earn wages and to exercise one's faculties in any lawful way, without competition by the State or any organism of the State and without restraint or hindrance by the government or by individuals. The extent of this right is the matter most dis- cussed to-day and therefore it is far the most important one to be considered. Closely connected with it is the right to private property, at least in so far as such property is the result of a man's labor,^ and the right to freedom of contract for such labor or in the exercise of such trade both as to reward or profits and conditions. There is probably no constitutional principle more often invaded by modern statutes than is this.
Both liberty of the person and liberty of trade are guaranteed by the great clause of Magna Carta, especially by the explanatory words added in the Charter of Henry HI: "No free man shall be taken or imprisoned or disseised of his freehold or his liberties or his free customs, unless by the lawful judgment of his peers or by the law of the land," which latter expression was, as we have found, changed in the recital of later statutes to "due process of law." ^ Sir
* This kind of property is expressly Book III, §§ 13, 14; also see Chapter declared to be the only one guaranteed VIII, infra. by the Constitution of Oklahoma; see ^ See §§ 127, 130, notes.
CHAP. V] THE RIGHT TO LABOR AND TRADE 31
Edward Coke's famous exposition of this clause points out that it protects, and was understood at the time to protect, a man's liberties or free customs, meaning both the laws of the realm, any franchises and privileges that may have been bestowed upon him, and the na- tional freedom possessed by the subjects of England ; and, as being opposed to these last, forbids monopolies ; * and we may add to these many other matters as we follow the development of this clause in the statutes. Moreover, the Preamble begins by saying "We have granted to all the freemen of our kingdom all the under written liberties"; and a very important result of the constitutional right to trade or labor lay in the fact that a villein, although escaping from the Lord of his manor, who worked at a trade in a town a year and a day, thereby became free. Another great development of this principle was the successful insistence of laborers that their wages should be paid in money and not in produce; for money is the badge of free labor; as we instinctively feel about peonage. Still another clause of Magna Carta (Cap. 13) provides that the City of London shall have all its ancient liberties and free customs, and so of all other cities, etc., which means not only the right to law, as described in the last chapter, but the freedom of trade and labor as well. Cap. 33 in Magna Carta providing for the destruction of all weirs or impediments to navigation, early suggests the general freedom of trade under the Enghsh Constitution; so Cap. 41, providing for the liberty of merchants, and prohibiting any evil tolls other than the ancient and allowed customs; and the Charter of Henry III (Cap. 30) amplifies this. EarHer local charters recogniz- ing freedom of trade were granted to London by Henry I ; Mo all men by Henry H in his Charter of Liberties,^ and so in his Charter to the Town of Winchester,* and later by Richard I to the same town.^ In 1200 the Charter of Nottingham ^ recognizes the trade gild with similar liberties. The usual phrase in all these char- ters is "the ancient and free customs which are enjoyed by the citizens of London oi' which were enjoyed by the town itself when they had them 'best or most free.'"'' So the Charter of York* recognizes especially its merchant gild. While, finally, the Charter of John to London^ grants them to have "well and in peace freely,
' Taswell-Langmead, p. 104. • Ibid., p. 309.
' Stubbs' Charters, p. 108. ' Charter of Winchester, A. D. 1190,
" Ibid., p. 135. Stubbs, p. 266.
* Ibid., p. 165. " A. D. 1200, Stubbs, p. 312.
* Ibid., p. 266. " A. D. 1215, Stubbs, p. 314.
32 THE AMKIUCAN CONSTITUTIONS [bOOK I
quietly and in full all its liberties vvhicli they were used to have up to that time as well in the town of London as outside, by sea or by land and in all other places." All these, it will be noted, preceded Magna Carta, and that instrument goes beyond trade, to recognize what we should call commerce ; as in Cap. 33, providing for freedom of naviga- tion of all rivers, and Cap. 42, granting liberty to all to leave the king- dom and return to it at will. So, a statute of 1335 allows free trading in England to foreign merchants, and in 1340 all merchants are allowed to come freely into the kingdom, and in 1344 all persons may buy or export wool and the seas shall be open to merchants. The Statutes of Staple are full of provisions requiring freedom of trade. In 1362, 36 Edward III, there is a statute requiring mer- chants to deal in only one kind of goods, and handicraftsmen to use but one mystery or trade, but it is notable that the former part of the statute was repealed the following year; the part concerning handi- craftsmen, only under Elizabeth. In 1383 Wat Tyler for the villeins demanded among other things freedom of commerce in market towns. In 1436 is the first statute against by-laws in restraint of trade "by persons in confederacy for their singular profit and the common damage of the people," using modern language, but recognizing such combinations as unlawful by existing law. It would be easy to mul- tiply examples of statutes recognizing the general right of the English freeman to labor or to trade without being coerced in any manner and without combination or privilege against him.^ In the Declaration of Independence the king is complained of "for cutting off our trade with all parts of the world," but the principle was so thoroughly established as to require no express mention in our Federal Con- stitution other than that contained in the ordinary due-process-of-law clause of the Fifth Amendment, and of the Fourteenth Amendment requiring for all persons the equal protection of the laws; the word "liberty" being well understood to include this most important liberty-right as well as the mere right to life and personal freedom. The broad principle is probably nowhere better defined than by the Supreme Court of the United States, speaking through Mr. Justice Field in the Slaughterhouse Cases ^ "Among these inalienable rights as proclaimed in that great document [the Declaration of Independ- ence] is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation in any manner not inconsistent with the equal rights of others, which may » See more particularly Chapter VI I. ' 111 U. S. 757.
CHAP. V] THE RIGHT TO LABOR AND TRADE 33
increase their property, or develop their faculties, so as to give them their highest enjoyment. . . . The common business and callings of life, the ordinary trades and pursuits, which are innocuous in them- selves, and have been followed in all communities from time im- memorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hin- drance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright." And by the same Court through Mr. Justice Peckham in Allgeyer v. Louisiana : * "The liberty mentioned in that amendment [the fourteenth] means not only the right of the citizen to be free from the mere physical restraints of his person, — as by incarceration, — but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties ; to be free to use them in all lawful ways ; to live and work where he will, to earn his livelihood by any lawful calling; to pursue any liveli- hood or avocation ; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned." Neverthe- less, a few of the newer State Constitutions express the right and express it very well.^
As we have said, both the right to labor and the right to property necessitate the right of free contract ; and while it may be admitted that a legislature in the exercise of the police power may enact a statute forbidding for the future a specific class of contracts when the court can see that the object of such statute bears an intelligible rela- tion to the health or safety of the community or to protect it against imposition or fraud, an arbitrary statute, especially when directed against certain races or certain classes of the community, should not be held constitutional.
The constitutional freedom of labor and trade involves, as has been said, matters commonly invaded by modern statutes; such as our laws fixing the hours of labor of adult men in special occupations, and of women of full age in all, in States which adopt the theory or express in their Constitution the civic equality of women in all particulars with men ; ^ Massachusetts, however, allows the labor of adult women to be limited by law, at least in ordinary mills and
» 165 U. S. 589. ^ See Book III, §§ 23, 24, and 25
=» See Book III, §§ 6, 13, 14, 16, 20. ^ith notes.
34 THE AMERICAN CONSTITUTIONS [bOOK I
factories; and a law of Oregon prescribing her hours of work in all mechanical employment has recently been declared by the Supreme Court not to violate the Fourteenth Amendment. In all States such regulation is permissible as to persons under age. And in all States, it would seem, the labor of women may be re- stricted or forbidden in occupations tending to immorality or to provoke immorality in others, such as serving in drinking saloons; and the labor of adult men may be regulated in such employments as are dangerous to the health or safety of the public. But the better law is that the hours of labor of adult men may not be limited for the benefit merely of the health of those employed. So, of the rate of the wages and the payment of wages. It will be seen in the Historical Digest that a long series of acts endeavoring to fix the rate of wages and, indeed, general prices, began in England as early as 1266, was abandoned, and tried again until finally definitely given up for the last time about the time of Elizabeth.' The result may be said to be that the fixing of wages is part of the freedom of contract with which the State cannot interfere, at least in ordinary cases (for the exception of seamen is perhaps as old as the principle itself). One State Con- stitution states this expressly ; ^ but the expression is probably unnecessary. New York alone, in a recent Constitutional Amend- ment, makes a step in the direction of allowing the State to fix wages in public employments. The question whether the time or kind of payment of wages may be regulated by statute is much more difficult. This interference with the freedom of contract has led to wide dif- ferences of opinion in the courts. In Massachusetts a weekly pay- ment law has been held not an infringement upon personal liberty; in most of the western and southern States, otherwise.^ Laws requir- ing wages to be paid in money or in cash orders, not in commodities or store credits, have been more usually held constitutional, as tending to protect the public, or a large class of the public, against fraud; and as has been said, the contracts of seamen have been regulated from time immemorial. The whole question comes down to this, whether there is such a constitutional principle as the right to freedom of contract ; that is to say, a constitutional right to make
' See "Historical Digest," Annis commodities were given up much 1266, 1349, 1350, 1353, 1362, 1388, sooner. 1389, 1427, 1444, 1514, 1562. The effort ' See Book III, § 14. to regulate the labor contract ended ' For a full statement of all these with Elizabeth; laws fixing prices for matters, see the author's "Handbook
to the Labor Law of the U. S."
CHAP. V] THE RIGHT TO LABOR AND TRADE 35
what contract the two parties clioose, so long as it be not criminal or immoral. It is still impossible to make a final and definite decision on this point. The courts, from the Supreme Court of the United States down, while they have shown a tendency to sustain a law prohibiting future contracts of a certain kind when they can see an element of fraud or protection to the people, have, at the same time, when their attention is not called primarily to the question of legisla- tive power, found, or still more, taken as a matter of course, in hundreds of decisions, that there is such a thing as a constitutional right to freedom of contract derived from either of two sources, — the right of freedom to labor or the right to acquire property ; neither right being of value unless one can make contracts concerning it.
The scene of battle to-day, for this principle, is the question of contracts agreeing or not agreeing to employ, or not to discharge, or not to employ, either Union or Non-Union labor (for the legal principle must be the same whether the contract concern Union labor or Non-Union labor, whether the promise be by the employer or by the employees, whether the illegal combination or compulsion complained of be exercised by one or the other side to the dispute). Many States have passed statutes forbidding discrimination against Union labor, that is, forbidding an employer to discharge, or not to employ, or to threaten to discharge a person for being a member of a Union. In most of the States where such statutes have been con- strued by the courts they have been held unconstitutional; and so recently by the U. S. Supreme Court.*
» Adair v. U. S., 28 Sup. Ct. Rep. 277.
36 THE AMERICAN CONSTITUTIONS [BOOK I
CHAPTER VI
THE RIGHT TO PROPERTY
All personal property is the result, in last analysis, of free labor, while ownership of land was a cause of freedom in itself. This species of property, indeed, preceded the right to labor discussed in the last chapter, and while it is probable that there was always prop- erty in a man's personal belongings, yet the written law was not much concerned with personal property until some time after the Norman Conquest when (1100) we find a statute giving a man the right to bequeath it at his death. The abstract word "property" is not mentioned in any constitutional document before the Virginia Bill of Rights; but the Massachusetts Body of Liberties protects a man's ''goods or estate," while the words "freehold" and "cattle" in Magna Carta itself substantially comprise all varieties of property then commonly enjoyed. It is noteworthy that the property right is guaranteed by the same words and in the same clause in all con- stitutional documents from Magna Carta to Oklahoma, although Oklahoma afterwards qualifies it by saying that a man has an inher- ent right only to such property as results from his own natural industry.^ On the other hand, Washington and Utah expressly say that the object of government is to protect and maintain indi- vidual rights. The Petition of Rights recites both ^Nlagna Carta and the Statute 28 Edward III requiring "due process of law"; while the Massachusetts Body of Liberties (Section 1) seems to think that a statute might deprive a man of his property, wife, children, or estate if it were only general and published beforehand ; while if there be no common law or statute for the case, it may be "by the Word of God." So, "Christianity is part of the common law." The right of the State to take property upon due compensation will be found expressed repeatedly in Magna Carta ^ and indeed in many other constitutional documents ; while the American Constitutions ^ only add that the compensation must be made before the taking, and the amount found by a jury.*
» See Book III, §§ 14, 130, 183. ^ See Book III, §§ 90, 91.
=" Caps. 28, 30, 31. * See Book 111, §§ 93, 94.
CHAP. Vl] THE RIGHT TO TROrEKTY 37
The usual infringements of the property right are by way of taxa- tion, regulation of rates or charges, and the police power.^ The earliest tax, in the modern sense, other than the feudal Aids, was the Saladin tithe on personal property (1188).' The right to regulate the charges of those exercising franchises or enjoying monopolies granted by the State does not properly fall under the head of either eminent domain or the police power, though often confounded with one or the other, and is equally ancient.
We have already pointed out how Clauses 12 and 14 of Magna Carta, requiring that no aid or tax should be taken except by the Common Council of the Realm and prescribing how the Common Council of the Realm should be held, — that is, by a summons to the bishops and greater barons by special writ and to other chief tenants by general writ, — were omitted one year later in the Reissue of Henry III and not restored until the Confirmation of Charters of Ed- ward III in 1297; when the important phrase is furthermore added that they must not only be by the common assent, but also for the common profit of the Realm; and by 1353 this was established to apply also to indirect taxation, and by 1407, that all money bills must originate in the lower house. These principles have neither been added to nor improved upon in the very latest State Constitu- tions, which, indeed, have rather shown a tendency to infringe upon them, as in the betterment tax, and in the extension of the right of eminent domain to private uses, recently, however, held unconstitu- tional in the State of Wyoming.^ The Massachusetts Body of Liber- ties (Clause 8) extends the principle of eminent domain only to cattle and goods. The Petition of Rights repeats Magna Carta as to taxa- tion by assent of Parliament; and the several State Constitutions merely repeat the general principle, though they sometimes forbid the right to tax to be given or granted away.* So, also, the Federal Constitution,^ that taxes must be for the general welfare of the United States and be uniform, and " that bills for raising revenue shall origi- nate in the lower house. The principle that money raised by taxation must be used for purposes to which it is expressly appropriated, established in England in 1666, is repeated.^ The Bill of Rights complains of the king's levying money without the grant of Parlia-
' See Mr. Justice Brewer's " Address ' Sterritt v. Young, 82 Pac. 946.
tothe Yale Law School," June 23, 1891. " See Book III, § 330.
* For other early tax laws, see His- ® Art. I, § 8, Clause 1.
torical Digest, Annis 1193, 1203, 1275, « Art. I, § 7, Clause 1.
1309, 1322. ' Art. I, § 9, Clause 7.
38 THE AMERICAN CONSTITUTIONS [BOOK I
ment, and the Declaration of Independence that he imposed taxes on the Colonies without their consent.
Neither police power nor the regulation of charges is mentioned in any constitutional document ; but the early statutes are full of instances independent of the attempted fixing of the price of bread and beer according to the price of wheat and barley respectively by the Assize of bread and beer ; ' nine years later the great Statute of Westminster I prohibits excessive toll contrary to the common custom of the Realm in all market towns; and many such statutes might be found applying to ferries, wharves, toll roads, or any other franchise or monopoly made by law. And finally, in the year 1G91, there is a general statute fixing the rates of common carriers. More- over the early reports are full of indictments against persons keeping a ferry, etc., for extortion.^ Logically, it would seem that the right of the State to regulate charges by those enjoying franchises it has granted would be absolute; it has no connection with the eminent domain principle requiring property not to be taken without com- pensation ; but American courts have held the right subordinate to the constitutional provisions securing property right.^
The principle against monopoly or restraint of trade, though not expressed in any constitutional document, is quite as old as many that are, and may fairly be considered as part of the law of the land. Indeed there is no principle in any of the modern statutes against trusts which cannot be traced to an historical prototype. It is only necessary to look at our Historical Digest to see how frequently these principles find expression in statutes from the very earliest times, when statutes were understood but to express the common law.* The common law against contracts in restraint of trade and engrossing of the market having been thus established, we begin to find the same evil reappearing under State grants of monopoly; much as to-day when the trusts were forbidden by the Sherman Act of 1S90 against trusts, they proceeded to form corporations, thereby securing a franchise under the shield of some State. Indeed it is hardly too much to say that the so-called anti-trust legislation, by preventing any reasonable agreement even when meant only to
» "Historical Digest," Anno 1266. * See Book II, "Historical Digest,"
^ I. e., discrimination. See Rex v. Annis 1285, 1335, 1350, 1362, 1425,
Burdett,lLd. Raymond, 143; Roberts' 1436, 1503, 1533, 1552. In this year
case, 4 Mod. 101; Rex v. Wadsworth, the statute against forestalling was
5 Mod. 13. made perpetual, and not repealed until
^ See Book III, § 13 and note; the latter part of the 18th century. U. S. C. Amts. 5 & 14.
CHAP. Vl] THE RIGHT TO PROPERTY 39
make rates equal and prevent discrimination, compelled in itself the formation of the thing it was designed to prevent.
Noticing as we pass an early appearance of the prejudice against middle-men, especially coal dealers (1553) and the statute of 1555, which seems to anticipate the notions of modern socialists that there is a monopoly in the instrumentalities for the production of wealth, we find in 1571 a definite complaint of monopoly. In 1601 the abuse increases so much that indignant speeches are made about it in the House of Commons.' Nevertheless, James I found it too easy a method of raising money to abandon, and he awarded patents for dealing in articles which were not even inventions or matters of special trade. About this time too arose the trading corporation, then really first invented, historically derived from the religious corporation or the gild, but now directed to private gain and having one of the essential modern attributes, perpetual succession, though the other, that of non-liability of members, was not, as far as I can learn, imagined until a statute of the State of Connecticut enacted in May, 1818. These early corporations, however, such as "The Turkey Company," "The India Company," "The Hudson Bay Company" often gave a monopoly of trade with the respective countries indicated ; but the objection would not be felt to be the same as that against a monopoly at home. Finally, in 1G23, the great Statute of Monopolies was passed, just after the famous case of monopolies was decided, holding that such were against the com- mon law of the Realm and prohibiting the king from dispensing with the common law by granting licenses. This statute, 21 James I, is extremely like a modern anti-trust statute in that it gives remedy in double or treble damages to anybody injured, and makes exception of copyrights and certain corporation charters.
It may fairly be stated, therefore, that the principles against what we now call "trusts," against monopoly and against combinations to fix prices, limit output, o/ secure a monopoly in restraint of trade, are derived from fundamental principles of the common law. The modern statutes against trusts, while possibly necessary as to a Federal statute, there being no Federal common law in civil matters, and therefore comprising but the enunciation of common-law prin- ciples as to interstate commerce, with the imposition of a penalty and the provision of remedies, were not really necessary as to State Legislation. Nearly one-half, indeed, of the State anti-trust laws have
* See F. J. Stimson, "American Constitution," page 114.
40 THE AMERICAN CONSTITUTIONS [BOOK I
been declared unconstitutional, either by the U. S. Supreme Court or by the courts of the State enacting them ; while the half that is valid hardly do more than enunciate the principles of the common law.* In England no more legislation was necessary. The Massa- chusetts Body of Liberties copies the Statute of Monopolies passed eighteen years before: "No monopolies shall be granted or allowed amongst us but of such new inventions that are profitable to the country and that for a short time." And finally the American principle against class legislation, of which in our next chapter.
* See Book III, Art. 58. The East thus anticipating the principle of stock India Co., chartered under Elizabeth, assessments; and tlie charter gave a is said to have been the first trading monopoly of trade " into those parts corporation in tlie modern sense; that limited by their incorporation." In the is, an association for making money same year is a charter to merchants and dividing the profit, although it trading in the Russian seas, and in allowed the members to trade sepa- 1650 a charter to the weavers of Nor- rately. In 1643 came the charter to wich giving power to adopt by-laws, the merchant adventurers of England to impose fines for impf-rfect w'eav- " for the better maintenance of trade " ing — lately forbidden by statute in closing with the words " said Fellow- Massachusetts, which statute was de- ship shall be a corporation and shall clared unconstitutional (Croth v. Perry, have power to levy moneys on the 155 Mass. 117). A few years later members of the corporation and other come the Hudson's Bay and Greenland goods for their necessary charge and Companies, maintenance of their government,"
CHAr. VIl] OTHER CONSTITUTIONAL RIG UTS 41
CHAPTER VII
OTHER CONSTITUTIONAL RIGHTS
There are several other cardinal rights of less importance than those to liberty, which may be considered as consequences either of it or of the right to law. All of these have been preserved, and many of them amplified, in our Constitutions; while hardly a new one is added, unless it be the right to reputation, which, indeed, Blackstone mentions as a cardinal right, and the recently felt notion of right to privacy (this is recognized in a very striking manner in the Constitution of Washington ^), and the provision against im- prisonment for debt which appears in the jNIassachusetts Body of Iviberties and in a few State Constitutions. But most important of all, the principle against class legislation found in the Virginia Bill of Rights (Clause 4), "That no man or set of men are en- titled to exclusive or separate emoluments or privileges from the community," the Fourteenth Amendment, § 1, that "no State . . . shall deny to any person within its jurisdiction the equal protection of the laws," and much more definitely expressed in the State Constitutions;^ an American principle, for the great clause of Magna Carta, extending the law of the land to all, is no guaranty against class legislation contained in an Act of Parliament. Closely allied to this is the provision against hereditary privi- leges, titles of nobility, etc., contained in both State and Federal Constitutions, and deemed of such importance that it is forbidden in the Federal Constitution to the States.^ It is difficult to see how the provision in the North Carolina and other Southern Constitutions against hereditary privileges is consistent in prin- ciple with that extending an hereditary right to vote.* Equal law is furthermore extended to all races ^ and sexes.^ American Constitutions, of course, prohibit slavery, but so, in modern times, does the English. A striking statement of the principle of equality
' See Book III, § 71. * Fourteenth Amendment; Book
' See Book III, §§ 16, 395. Ill, §§ 20-21.
« See Book III, § 17. " Book III, §§ 23-27.
* See Book III, § 246.
42 THE AMEKICAN CONSTITUTIONS [BOOK I
before the law will be found in the Massachusetts Body of Liberties, Clause 2.^
The principle of equality by birth declared in the Virginia Bill of Rights and the Declaration of Independence is not carried into the Federal Constitution, though it is found in nearly all State Constitutions.^
The right to bear arms was inherent in the English people; in fact, under early laws, was compelled. The barons were required to support their king in war but they early complained against be- ing led out of the kingdom, and King John's insistence upon this was the principal cause leading to Runnymede. This right is ex- pressed in every American constitutional document as well as all the State Constitutions. On the other hand, the objection to mer- cenaries or standing armies seems to have always existed. There were practically none in England until the time of the Stuarts, (though Italian and German — " Brabazon " — mercenaries were first employed in 1449, to suppress Jack Cade) a cause to which most students of constitutional history attribute the preservation of English freedom and parliamentary government.
The objection to the use of the army to establish military tribunals or to overawe the people is apparent in a long range of constitutional documents and statutes. Correlative to this, but having its source also in the right to the common law, are many statutes in early times protesting against the laws of the Forest ; also the general prohibition of martial law, — the English and American principle being that the military must never be independent of or superior to the civil power.^
The militia, the ancient defence of the realm, we find revived only seventeen years after the conquest; and the support of the militia, or even of the army and navy, is therefore entrusted to the legisla- tive branch both in our Federal and in the State governments, their command only entrusted to the Executive, but his use of the army is carefully limited to definite emergencies (invasion, insurrection, etc.) ; and, as between the State and the Federal power, the President cannot employ the State militia but in a national emergency, nor Federal troops in a State except when requested thereto by the legis- lative authority thereof — save, indeed, where necessary to main- tain the functions or officers of the Federal Government, or when
' See Book II., Constitutional Prin- ^ See Declaration of Independence, ciples. Clause 16.
* See Book III, § 11.
CHAP. VIl] OTHER CONSTITUTIONAL RIGHTS 43
the State Government ceases to be republican in form ; but of that it does not appear from the Constitution whether Congress or the President is to be the judge.
These three principles will be found recognized in every one of our constitutional documents^ both English and American, and in all the State Constitutions.^ Even military law, the necessary regula- tions for the government of the army and navy in actual service, is only made possible in England by an annual re-enactment of the Mutiny Act, and the same effect is secured in the Federal Constitu- tion by the provision that Congress may make no appropriation for the army for more than two years. The right to bear arms, how- ever, does not prevent laws for the punishment of carrying concealed weapons, nor does it authorize bands of men not belonging to the militia to drill or parade armed, while the recent provisions in some new State Constitutions against "Pinkerton" men, or the employ- ment of private armed guards, is curiously reminiscent of the earlier English statutes against "retainers." ^
Of the other rights which are common to the English and American Constitutions, freedom of speech may be first mentioned, which arose very early as to members of Parliament or debates in Parliament; but is perhaps not otherwise a right recognized in the English Con- stitution except so far as involved in the political right of assembly and petition, for which see later. It is recognized as a general right, however, in the First Amendment to the Federal Constitution and in all the State Constitutions. Freedom of speech, in political matters at least, is, however, established in England, and freedom of the press even more definitely, so that a man is able to write what he will on all subjects, being only responsible for libellous matter. There is generally no distinction between the two rights made in American Constitutions.^
The important political right of assembly and petition is rather the original than a derivation from freedom of speech, and is also related to the general political rights of the English subject. It is recognized first clearly in the Bill of Rights, and generally in Ameri- can Constitutions,* and forms an indispensable part of the political liberty enjoyed by the Anglo Saxons. Indeed this, with the right to bear arms, has always been the essential difference which has
» See Book III, §§ 62, 63, 290-295; ^ See Book III, §§ 60, 61. Book II, Constitutional Principles. * See Book III, § 64; U. S. C. Amt.
* See Book III, § 63, note 5. 1.
44 THE AMERICAN CONSTITUTIONS [BOOK I
attended revolutions or popular reforms in England from other European countries. The other political rights are mainly the great right of equal representation in the legislative assemblies, with cor- related provisions for free elections and for the judgment of dis- puted elections by the legislative body itself, not by the Executive, nor even, unless the Legislature so will, by the courts.' The re- quirement that elections shall be free appears in the Statutes of the Realm as early as 1571, but is finally embodied in the Bill of Rights as well as in the Virginia and Massachusetts Constitutions. There appears to be no English constitutional principle respecting the right of suffrage, which, from having been early shared in by all freemen, was in 1429 limited to the forty shillings freeholders; but it is carefully provided for, to a limited extent saving property rights, in the Virginia and INIassachusetts Bills of Rights ; and in the Federal Constitution, providing that all electors who vote for the lower house of the State Legislature shall vote for the President; and as to race distinctions, or even educational or property qualifications, in the Fifteenth and Fourteenth Amendments respectively. Hardly any property and few educational qualifications remained in the State Constitutions a few years ago; but there is a tendency to re-impose them."
Having thus established the right of the people to be represented in a legislative body and having established in effect the right of that body to participate in all law-making and to originate all laws imposing taxes, it only remained for our ancestors to prevent the suppression of the legislative body by the Executive, or "personal government" attempted without the Parliament or without calling the Legislature together. This principle first appears in the statutes in 1330 and is embodied in the English Constitution in the Bill of Rights, and in the Federal Constitution, Art. I, § 4, requiring annual sessions of Congress.
The important new American principles of government, the sepa- ration of the powers, and the effect of the written constitution on statutes, have been discussed in an earlier chapter. The former principle appears in the Federal and in all the State Constitutions with the striking exception, to which attention was called in a recent decision of the Court of Appeals of that State, of New York. The expression of it in the Virginia Bill of Rights is interesting; and they attempt to engraft upon it the possibly more debatable prin-
' See Book III, § 270. * See Book III, §§ 240, 245, 246.
CHAP. VIl] OTHER CONSTITUTIONAL RIGHTS 45
ciplc of rotation in office. The exclusion of the judicial branch from this last principle is equally striking and counter to prevailing ten- dencies to-day.' The more abstract provisions of American con- stitutional documents supposed at the time to embody new political principles - have so far hardly resulted in more than the sounding phrases in which they are couched, while generally principles em- bodying the idea that governments are formed for the people and by the people, that all officers are but the servants of the people, and that, when the government fails of its effect in protecting natural rights, the people may and should alter or abolish it, — have hardly more practical result in constitutional law than the possibly moral justification of a future revolution.^
The last important addition made by American Constitutions is perhaps that of religious rights * and in State Constitutions, educa- tion.^ The former is not completely yet a constitutional principle in England, — for there is still an established Church, — and its ex- pression originated with the Virginia Bill of Rights, though there are foreshadowings of religious freedom even in the Massachusetts Body of Liberties. The inclusion of education as a natural right by our State Constitutions may have interesting consequences,^ but the Federal Constitution does not recognize it. The former principle prevents any discrimination against any person on account of his religion as well as any sectarian appropriation or established church, but it does not justify, under the guise of religious belief, crime or practices inconsistent with the safety or well being of the State.
The last significant innovation, and not the least important, made by American Constitutions, is the prohibition of general warrants, the exercise by the government of the power to search places or seize persons with no specific charge and without a sworn warrant specifying an offence, the persons to be seized, and the objects of seizure. This principle, originating in Massachusetts ten years before the Revolution,^ became later (1765) indeed a constitutional principle in England, but is not of course expressed in any of the
' See Book II, Virginia Bill of Rights « See Book III, §§ 50, 190, note 9. § 5. ' See Book III, § 71, note 10. But
^ See Book III, §§5, 185. see Petition of Right, Clause 2, com-
^ See Book II, Constitutional Docu- plaining of commissions directed to
ments, Chapter III, Clause c, Theory commissioners to raise moneys for the
of Government; and Chapter VIII king, who administered an oath not
below. warrantable by the laws or statutes of
* See Book III, Art. 4. the realm.
« See Book III, Art. 5.
46 TIIK AMERICAN CONSTITUTIONS [cOOK I
so-called constitutional documents, which are usually considered as terminating with the Act of Settlement. It is most strongly ex- pressed, however, both in the Virginia and Massachusetts Bills of Rights and in the United States Constitution, Fourth Amendment. It is, of course, closely connected with the right of a person not to be compelled to give self-criminating evidence, but it has a far broader historical connection with the general objection of the Eng- lishman to inquisitions, visitatorial expeditions by king or Crown officer, going straight back, indeed, to the great clause of Magna Carta. A man's private affairs cannot be looked into nor his papers searched except in judicial proceedings or upon the charge of some definite offence; while even then he may refuse either to testify or furnish documentary evidence if it may reveal him guilty of a criminal offence, unless under a law guarantying him immunity not only for the offence charged, but for all offences that may be revealed by the process directly or indirectly, either in that court or in any other court of the same sovereign. The immunity does not, however, have to be extended to courts of another State or country, or even, in the Federal courts, to those of any State, and vice versa; nor, it appears, is the privilege one which may be claimed by corpora- tions. On the other hand, the privilege undoubtedly relates only to the danger of a criminal prosecution, and can hardly be extended to cover a general right to privacy, either of person or possessions, however much that is to be desired.
CHAP. VIIl] RIGHTS OF GOVERNMENT 47
CHAPTER YIII
RIGHTS OF GOVERNMENT
In England, if there be a sovereign, it was the king in Parlia- ment and is now practically the House of Commons. In either case, not the people, though they elect their representatives; for Parliament can change either law or form of government. In America, by definition of our Constitution, it is the people; though refiners in substance may trace it back to a majority of an assem- blage of three-fourths of the States, by which alone the Constitution can be amended.' This, however, seems rather like casuistry; while the people provided that their written Constitution could only be amended regularly in that way, it equally remains true that the people themselves might at any time amend it by a successful con- stituent assembly; it hardly needs the assurances of the Declara- tion of Independence and other constitutional documents ^ to assure that principle. We may therefore lay down the proposition that all political power is inherent in the people, that governments derive their just powers from the consent of the governed, except, indeed, when we exercise territorial jurisdiction, and that the people may alter the government when it fails of its design or ceases to be Re- publican in form.^ The Declaration of Independence is not part of the American Constitution, although printed at the beginning of the Revised Statutes of the United States, before the Constitution itself, and although certain of the Acts of Congress admitting territories provide that they shall adopt Constitutions in accordance with its principles. However, therefore, it may be questionable in abstract theory, at least for States of the Union, it is true that the people are sovereign.
Representative government was a mediaeval — in the forms it has most successfully developed, an English — invention. It did away
» See James B. Thayer, " Legal Es- ' See Book III, § 181. says," pp. 200-204. » See Book III, §§ 181, 182, 183.
48 THE AMERICAN CONSTITUTIONS [BOOK I
with the pure democracy to which "legislation by the people " — initiative and referendum ' — would seem to return. Therefore they found it necessary to provide particularly for the great Council of the Realm, later Parliament, later the representative House of Com- mons; and for its frequent meeting. As early as 1330 we find a statute requiring annual sessions of Parliament; in 13G2 the prin- ciple is repeated. Triennial Acts follow, in 1G41 and IGdi; and in 1716 the duration of Parliament is extended to seven years. With us the Virginia Bill of Rights expresses the doctrine that all magis- trates or officers of government are but the trustees or servants of the people, and the Federal Constitution as well as the Bill of Rights of Massachusetts requires that legislative bodies should meet annually.
It follows that elections must be free and that Parliament must sit without dictation of the executive branch,' the efforts of the kings to resist this having proved futile.^ The long attempt of the Executive to make laws by orders in Council or by proclamation, or indirectly by suspending laws already existing, may be traced through the history of the middle centuries until they ended in the Bill of Rights.* It is now an established constitutional principle that the Executive can neither suspend a law nor suspend a penalty nor even pardon an offence in anticipation of trial.
The history of suffrage may be summed up in the statement that originally all free men had the vote ; that is to say, when there was a vote. In early times of course only the peers of the realm, the barons or tenants in chief, came to Parliament. Beginning with the time of JNIagna Carta we may trace the practice of summoning rep- resentative commoners by general writ; then for two centuries we find indirect general suffrage through the County Courts; but in 1429 we find a disfranchizing act, restricting the voting qualifica- tions to forty shillings a year freeholders, which, in England, has never been entirely abolished since. In the United States we have, since the Fourteenth Amendment, and under State laws, manhood suffrage without distinction of race ; although property, educational, or other distinctions are allowed, subject only to the consequent
* See infra, Chapter IX; Book III, * See "Historical Digest," Annis
§ 309. The early system was of course 1275, 1407, 1485, 1707.
the primary assembly or folk-mote, * Ibid., Annis 1539, 1609.
etc. Early European prototypes dis- * Ibid., Annis 1407, 1414, 1485,
appeared; only the English Parliament 1539, 1609. Stimson "The American
endured. Constitution," p. 102.
CHAP. VIIl] RIGHTS OF GOVERNMENT 49
diminution of representation in the Federal Congress.* The effort to control elections and candidates was, indeed, made in England, especially by James I, but was early abandoned, and the principle exists there as here that only the legislative body itself can judge of the qualifications returns of its members unless, indeed, it choose to delegate that power to the courts." Legislative sessions must (except executive sessions of Senate), with us, be open; not neces- sarily so in England ; but in both countries the legislative body has power to protect itself against contempt; and of this it may not be deprived. It may expel a member and it may punish a person not a member, but probably in America only by fine or imprisonment, the latter not to last beyond the duration of the session. Speech in the Legislature is free in both countries, and the members them- selves are privileged from arrest except for felony or, in England, on civil process, which privilege early extended to their servants and members of the household ; not, however, to attachment for contempt of habeas corpus.^ The principle of freedom of elections was reiterated in the English Bill of Rights and is preserved in American constitutional documents,* and our State Constitutions usually require vote by ballot and secrecy of the ballot, though by recent amendments voting machines may be used.
Officers of the government are, as has been said, the trustees or servants of the people. They may not hold place in more than one of the three departments or, with us, usually, in both State and Federal preferment. They are sworn to support the Constitution of the United States and must give attention to the duties of their office and not farm it out to others. This principle, dating from the peti- tion of thirty-one articles to Henry IV in 1406, is copied in some modern State Constitutions.^ They may be impeached by the lower house for crime or mere maladministration, which impeachment is tried by the upper house; and no pardon is available but they are still liable to trial at the common law.®
The right of assembly has been already discussed.'' By an Act of 1549 unlawful assemblies of twelve to alter laws or abate prices were made unlawful, which apparently gave rise both to the modern riot acts and to the notion that strikes were criminal. This, liow-
' See Book III, §§23, 240, 245, 246. "See "Historical Digest," Annis
' See Book III, § 270. 1485, 1512, 1581; Act of Settlement,
' See Book III, § 273. Clause 8.
* See Book III, § 237. ' See Chapter VII.
« See Book III, § 215.
4
50 THE A.MKHICAN CONSTITUTIONS [bOOK I
ever, has iiotliin*^ to do with tlie poUtical right of assembly. In the Massachusetts Body of Liberties, Chiuse 12, every man shall have liberty to come to any public court, council, or town meeting, and tliere by speech or writing move any lawful, seasonable, and material (|uestion, so it be done in convenient time, due order, and respectful manner. Bowen says that this right was not established in England until the Bill of Riglits in IGSO, nearly fifty years later.'
The early English statutes protecting the subject against attainder or trial for treason - and requiring two witnesses to the same overt act are copied in American constitutional documents, Federal and State, and extended in the Massachusetts Body of Liberties (Clause 47) to capital ofl'ences.
Finally, the most important of all our governmental principles, that of the separation of the powers into three departments, is ex- presslv recognized in both Federal and all State Constitutions, except, possibly. New York, though by a recent decision of the Supreme Court of the United States, it is not guaranteed by the Federal gov- ernment to a citizen of a State in the State. We have already dis- cussed this principle as one of the two most important American constitutional innovations. Nevertheless, there are foreshadowings of it in English constitutional documents or statutes outside of the writings of theorists. Thus, in 1615, the attempt of the Executive to control the judicial branch led to the famous rebuke of Chief Justice Coke. He was indeed removed, and from that time until the Civil War judges held office at the king's pleasure, but in the Act of Settlement it was for the first time embodied in writing that their tenure must be for life, and their remuneration not dependent on the caprice of the king. This, also, has been copied in the Federal Constitution and originally in all the State Constitutions.^ The States have indeed largely departed from this principle since, in so far as their appointment is concerned, judges being now elective in almost all, but their compensation continues to be fixed, not to be changed by the legislature and they may not be removed by the Executive.* The Declaration of Independence stated the principle clearly when it complained of King George that he made judges dependent on his will alone for the tenure of their offices and the amount and pay-
* See Book II, Constitutional Docu- ' See Smith, "The American Con-
ments; Bill of Rights, Clause 5. stitutions," Philadelphia, 1797.
2 See "Historical Digest," Aymo * See Book III, §§ 206, 660. 1552.
CHAP. VIIl] RIGHTS OF GOVERNMENT 51
ment of their salaries. Furthermore, that he was guilty of usurpation in that he refused his assent to laws and forbade the passing of laws until his assent should be obtained, and refused to pass other laws unless the people would relinquish the right of representation, "a right inestimable to them and formidable to tyrants only," and in the Virginia Bill of Rights (Clause 5) we find the principle first ex- pressed that the legislative and executive powers of the State should be separate and distinct from the judiciary, and the two first should at fixed periods be reduced to a private station ; which principle of rotation in office, however, is expressly declared not to be applicable to the judicial branch.
Nothing remains but to remark of the American Constitution that it creates a government of limited powers and that those not therein expressed, however usual to sovereignty in other countries, are not given to the present government, but remain with the people ; that is to say, the people's will as expressed by the legislatures of three fourths of the States or by conventions of the people in three fourths thereof. The will of the people in these conventions is final, — higher than any other governmental authority, requiring not the consent of the Executive; although Abraham Lincoln, with pardonable satisfaction, appended his name to the Thirteenth Amendment abolishing slavery. And our government must be republican in form, and constitutional; that is to say, it must protect even minorities or individuals in certain cardinal rights. " Absolute, arbitrary power over the lives, liberty, and property of free men exists nowhere in a republic, not even in the largest majority." ^
1 See Book III, § 182.
52 THE AMERICAN CONSTITUTIONS [BOOK I
CHAPTER IX
GOVERNMENT ORGANIZATION
This, the matter usually treated of in constitutional history, we may dispose of briefly. The main distinction of the American Con- stitution, that of the separation of the powers, we have been com- pelled to anticipate. It is not complete; for instance, the Executive has, under the Federal Constitution, some legislative powers, such as the veto; and during his term of office a certain control over the judiciary, by his jx»wer to appoint and promote ; the Senate, in its power to confirm appointments and advise and consent to treaties, some executive powers ; the judicial branch alone has no part in the other two.^ But in England there is no clear division, nor even effort to secure it ; though the tendency of history has been in that direction and many of the evils complained of by the people have resulted from the confusion of the powers or their usurpation by the king or his officers. Broadly speaking, English history has gone through the fol- lowing stages : In the beginning the people, all freemen who chose to attend the Great Council, made the laws; later, after the attempt to usurp the law-making power failed under the Norman and Angevin kings, they were made by the king in Parliament ; later the king tried to secure legislative power to the king in Council. In the last stage, the power went back absolutely to Parliament and practically to the House of Commons: more practically still, to an inner committee of the Cabinet of the party in power, just as with us, short of a great popular movement, the real power of shaping ordinary legislation rests with the Speaker of the House. English constitutional history clearly establishes two or three other principles : That the king can neither make laws, nor suspend laws, nor grant pardons in advance for a crime or breach of the law, nor ever in cases of impeachment. The first and the last are expressed clearly in the Federal Constitu- tion, and it might be wished that the other two were also. The
^ It has been claimed by Mr. Hearst this is not the correct view. See and others that the power to declare a p. 8, supra; Stimson's "The American law unconstitutional is legislative, but Constitution," pp. 7-10.
CHAP. IX] GOVERNMENT ORGANIZATION 53
power of suspending laws or their application, or agreeing not to prosecute in certain cases or to pardon certain offenders, is a danger- ous one in the hands of the Executive, Moreover, there is an in- creasing tendency to-day in Congress to grant legislative power to the Executive or to boards or commissions of his appointment. Notably has this been done in recent years in the case of making treaties, fixing customs duties, the rates of railways, and in the con- trol of corporations, — all properly legislative matters. The excuse made is that Congress but declares the general principle, and that the act of the president, for instance, in finding a state of affairs to exist upon which he may ratify a treaty or proclaim a commercial arrangement, is merely ministerial. An example of the length to which this theory may be carried is found in the recent railway regulation act or Hepburn Bill, where Congress merely proclaims that the rates shall be reasonable and without discrimination, — • both mere expressions of the common law, — and leaves the deter- mination of what is reasonable between the Interstate Commerce Commission and the Supreme Court, neither of them legislative bodies. The common law may, indeed, be decided by a judicial body; but it is difficult to see why the alteration of the common law is not legislation. When, therefore, the Commission fix a "just and reasonable" rate,^ if they are applying the common law, their act is judicial ; if they are fixing other standards, it is legislative. Federal judges have consistently, from the beginning, refused to exercise other than judicial functions, though they have accepted functions which are in a sense judicial but were not conferred by the Consti- tution ; as, notably, in the Venezuela arbitration and in the Electoral Commission of 1884. Recent State Constitutions express this point particularly, independent of the usual section concerning separation of the powers.^ It may be urged in objection to the too frequent invocation of the courts in trade disputes that they tend to make the courts take part in the administration of affairs.^
In England for a time it was urged that the king might make laws punishing offences which were mala in se, or might increase penalties in such cases, or suspend laws generally directed at things not mala in se; but it may be doubted if much be left of that dis- tinction to-day. Somewhat analogous to it, however, is the growing practice of leaving to the president or the attorney-general or other
' U. S. Act of February 4, 18S7, as ^ See Book III, §§ 200 n., 650. amended June 29, 1906, § 15. ^ See above, Chapter IV.
54 THE AMERICAN CONSTITUTIONS [BOOK I
oflicers to determine what corporations or combinations arc unlawful untler Federal legislation, or otherwise, when in principle or in out- ward form they may all be the same.
Other examples of the confusion of the departments in England may be instanced in the usurpation by the Star Chamber, later the Privy Council, of executive and judicial functions; it is significant that the "Orders in Council" ' survived to be a principal cause of the War of 1812. It may be questioned whether Parliament to-day would not interfere, were such orders attempted.- The interference of the king with legislation bv dictating to Parliament or even bv his personal presence, notable under Henry VIII through Cardinal Wolsey, and by Charles I himself, is familiar to all readers of history ; and his attempt to secure the opinion of judges in advance of their decision, or even to dictate and compel them to decide in a certain way, as well as the practice of attainting juries, has been discussed elsewhere.^ James I also sat personally in court, but was told by the judges he could not deliver an opinion.*
The judicial power has been broadly discussed above.^ Usurpa- tion by the judicial branch has never existed in this country nor has it been complained of since the time of Thomas Jefferson ; nor ever, as to common-law judges, in England; except, indeed, by James I, who complained that " The courts of common law had grown so vast and transcendent as to meddle with the king's prerogative." ^
The executive power, while probably it was intended by Hamil- ton and others to be given to the president in much the shape that it was enjoyed by a constitutional English king, nevertheless reveals striking differences in the two Constitutions. Indeed, our Supreme Court has remarked more than once that the American president is not a king even for four years; that though in theory he exercise the rights of an English sovereign it is with the loss of many a flower of the English king's prerogative. On the other hand, he has more powers as to treaty making, more powers in fact (though not in theory) as to making war, and is expressly made commander-in- chief of the Army and Navy. He has the veto power which has
' See Declaration of Independence, ^ Ibid., p. 100; Book III, § 131. Clause 7, and IS: "He has combined * Ibid., pp. 100, 101. witli others to subject us to a juris- * See Chapters I, II, III, IV, and
diction foreign to our Constitution." more particularly throughout the foot-
These words refer to the Orders in notes follo\\"ing the text of Book III. Council. " Stimson, "The American Consti-
' Stimson, "The American Con- tution," p. 118. stitution," pp. 102, 130.
CIIAr. IX] GOVERNMENT ORGANIZATION 55
practically passed from the English king's prerogative, and most important of all, he appoints all Federal officers, even the judo-es. Practically all these powers are exercised in England by the lower legislative house through its committee, the Cabinet. Moreover, they, or the prevailing majority, in effect designate the prime min- ister and through him the rest of the Cabinet. With us the president appoints them, and in this instance at least, his appointments are nearly always confirmed. Both king and president make oath that they will support the National Constitution. Neither may dismiss the Legislature (under recent practice, at least in England) and both may call it together.
The American president is, indeed, liable to impeachment, but in England the Parliament or even the House of Commons have many times claimed the power of deposition which is very nearly expressly recognized in the Act of Settlement; indeed, the king has been called but the personification of a majority in the House of Commons. Finally, the American president has far more power, even under the text of the Constitution, in the execution of the laws than has the English king.^
Coming to the State Constitutions, we have discussed the political powers generally in Book HI, Part 2, and the legislative powder in full in Part 3. The principle of representative government is recog- nized in all Constitutions, except that of Oklahoma, and, by recent amendments, in States adopting the general initiative. Representa- tion must generally be apportioned according to population; the separation of the powers is most carefully provided for," and the constitution and functions of the Legislature are the same as in the Federal Constitution. The powers of the governor resemble those of the president, except where (as in war, treaties, etc.) restricted by the Federal power. The terms of office are usually shorter, and sessions of the liCgislature not so frequent as in the case of Congress.^ All IvCgislatures are paid, though very much less than members of Congress; and the provision in the Federal Constitution against plurality of office is much extended, even so far as to forbid in most States a member of Congress or person holding any lucrative office under the United States from sittino; in the State Legislature or beins: elected as governor.* Conversely in New York and Michigan, no
1 Stimson, "The American Consti- * See Book III, § 220; Stimson's
tution," pp. 164-166. "American Statute Law, Vol. I, § 220
- See Book III, §§ 200, 201. (B). 3 See Book III, §§ 203, 204.
56 THE AMERICAN CONSTITUTIONS [BOOK I
member of the State Legislature can, duriiifjj his term, be elected to the United States Senate; and in New ^ Oik and several other States a iiuMnber of the State Legishitiire takiii<^ any United States oliice or being elected to Congress vacates his seat. Thus, the Eng- Hsh principle that the holder of a Crown office may not sit in the House of Commons, is extended, with us, to the holding of a legis- lative function in both sovereignties. Practically all State officers may be impeached and the usual English constitutional powers are given to the State Legislatures.^ The machinery of legislation is much the same and the constitutional principle that all revenue measures must originate in the lower house and be for the general good of the people is fully recognized.^ The veto power is extended in all the States except North Carolina and Rhode Island ; usually in the same terms as in the Federal Constitution.^
But by far the most important innovation in the government or- ganization of the States is, of course, the initiative and referendum, now adopted generally under the Constitutions of seven States,* and, as to local referendum, on certain matters of debt and taxation, in many others.^ The wise modern tendency is to require a referendum as to all acts of State, county, city, or town government creating a municipal debt or granting a public franchise. This, however, though similar in principle, is so different in consequence from a broad general referendum covering all legislation of any sort, espe- cially when coupled with the initiative which enables the people to dispense with the Legislature entirely or even to amend the Constitu- tion by direct intervention of the people, that the narrower referen- dum first mentioned, limited to certain matters affecting local in- terest, may be dismissed from our further discussion. The State initiative is, of course, direct legislation by the people; and this, it must be noted, is no new thing, but merely a recurrence to primeval principles, — doing away with that invention of representative gov- ernment which has served the English people well for a thousand years and has been commended as their peculiar contribution to pohtical science. Direct legislation early existed in England, at least as to the free men or greater barons; indeed, mention is made by historians of a Witenagemot of sixty thousand men meeting on SaUsbury Plain not very long after the Conquest.^ The inconven-
» See Book III, §§ 260, 270. * See Book III, § 309.
2 See Book III, §§ 300, 310. « See Book III, §§ 316, 363 and 372.
3 See Book lU, § 304. « Hannis Taylor, I, 240.
CHAP. IX] GOVERNMENT ORGANIZATION 57
ience and expense of such large assemblies, coupled perhaps with the notion of greater wisdom in their chosen representatives, gave rise to the device of representation. It is difficult to see why the objections of a thousand years ago do not apply to-day, at least as to the initia- tive, and even as to the referendum. The inconvenience of referring all laws to the people is already shown in the usual provision that they must be allowed to vote on each amendment to the Constitution separately, and that not more than two or three amendments may be submitted in any one year ; ^ for submission of a law by referendum is practically the same in working as that of a constitutional amend- ment. Indeed, we already have the principle of the initiative in full operation in the adoption of new State Constitutions ; - still more so when the State Constitutions require the submission of a new Con- stitution or the voice of the people as to whether one is necessary, every seven,^ ten,* or twenty ^ years.
One of our political parties peculiarly favors the referendum and may, perhaps, even adopt it as applicable to Federal legislation. There is no logical difficulty as to this, for, after all, the people made the Constitution and not the States; to the people, therefore, may be referred both any amendment to the Constitution, and any law, by permission of the Constitution when amended so as to allow the referendum. Whether such a system would be workable may be told better when we have the experience in the smaller field of the States.
The objections to the referendum fall into three arguments: First, that of inconvenience above referred to; second, that it takes away responsibility from the legislatures to the extent of belittling both their personnel and their ambition ; third, that the people them- selves are not wuse enough or competent to vote directly upon laws. If all laws are to be subject to a referendum, the legislature becomes nothing but a draughting committee for which it were better to sub- stitute a mere parliamentary counsel.^ If, on the other hand, the people have the initiative and employ it generally, it is hard to see that any function remains to the legislature whatever.
' See Book III, § 993. of experts, and the adoption of the
* See Book III, Art. 99. practice in this country has lately been ^ N. H., see Book ill, § 994. recommended by Bryce. Indeed, the
* lo. result of the present system may be
* Md., N. Y., O. seen in Oregon, where the Secretary of
* It is the practice in the English State complains bitterly of the form in House of Commons to have bills which laws are drawn up by initiative, draughted by such a permanent body
58 TIIK AMERICAN CONSTITUTIONS [BOOK I
Unfortunately, our experience at the time of going to press (Marcli, 1008), is too liiiiitfd to ciiahle us (o ronii a jiid^^incnt on this great c|nes(ion. Sevou States, as we say, have adopted the referendum, but three ol" them <h(l so only in the year 190(>. The Oregon amend- ment was itself originated by initiative petition and not by the legis- lature; and extends the general referendum to items or parts of acts and also to all local or numicipal legislation, not more than ten per cent of the voters to be recjuired for the referendum or fifteen per cent for the initiative.' The early use of the initiative in Oregon is in- structive. Under it the Legislature were allowed to regulate the binding and printing of State documents — a matter of comparative unimportance — and free passes were prohibited to railroads, etc. ; but the enacting clause being omitted, this latter law was considered of no effect. The veto of the governor does not usually extend to measures referred to the people by initiative or referendum, any more than it would to constitutional amendments.
In municipal matters the referendum is making much more rapid progress; as has been said, that sphere is peculiarly appropriate to it. Indeed, the famed system of municipal government in New England, the town meeting, like the early Witenagemot, is nothing but the initiative and referendum combined in one assembly. As a matter of fact, however, the articles in the w^arrant are shaped by a small committee of the town, thus resembling bills prepared by a legislature or draughting committee (the Selectmen) and referred to the people in town meeting. Other measures than those recom- mended may, however, be adopted directly at such town meeting, which w^as thus, until the initiative, the only example of direct legis- lation in modern times.-
So far it does not appear that the referendum makes much altera- tion in legislation ; though of course the fear of it may prevent many laws which the Legislature might otherwise pass; nor does it appear that measures begun by the initiative are much more likely to pass the popular suffrage than those drawn up by the Legislature. The practical working of the initiative leaves, as has been said, much to be desired. A constitutional amendment adopted by initiative was not even printed in the Oregon Annual Laws.
* Charles Edward Merriam, in N. Y. pal referendum, see Delos F. Wilcox on
State Library Bulletin No. 113, Review local government, printed in N. Y.
of Legislation for 1906. State Library Review of Legislation
^ For a full discussion of the munici- for 1905, p. 191.
CHAP. IX] GOVERNMENT ORGANIZATION 59
A more radical measure still, is that of the recall; that is, any senator or representative, or possibly even a judge or other officer, may be instantly retired by a direct vote of the people. As to this, and indeed the referendum, it may safely be said that the laws should be very careful to require a sufficiently large proportion of the total vote. The writer believes the most serious danger of the initiative and referendum to be its perversion to the very corrupt purposes the institution is designed to prevent. It would be easy enough for a public service corporation, directly or indirectly con- trolling possibly a tenth of the voters of an entire city, to propose complicated laws, by initiative, which the people might find hard to understand or in which they would take little interest; and so rush them through a popular election by a vote of their tenth of the votes, the rest of the people not taking the trouble to understand the question. The experience of constitutional amendments has shown that the votes upon them are ridiculously small. In New York, for instance, in 1905, a constitutional amendment altering the entire economic law as to the rate of wages to be paid in public work ^ passed the popular electorate by a vote hardly one-tenth of the total vote thrown for governor, — a far less important matter.
> See Book III, § 453.
60 THE AMERICAN CONSTITUTIONS [BOOK I
CHAPTER X
FEDERAL AND STATE POWERS
The division of all governmental powers, judicial as well as legis- lative and executive, into two sovereignties, whereby a strong national government is made compatible with local courts, laws suited to the conditions and institutions of each several State, and home admin- istration of domestic affairs, — is the most striking of American in- ventions and has been discussed elsewhere.' This it is which chiefly distinguishes the American public from France or most other modern governments; though indeed some resemblance to it may be found in the system of the German Empire. Our frontispiece shows graphically this division of powers : the whole circle representing the sphere of all possible legislation, and every possible division and qualification of power being represented in the several zones; the blue zones "A" and "B" representing powers granted, express or implied, to the Federal Government and to the States respectively; the red zones "X" and "Z" representing powers denied or withheld, expressly or by necessary implication, from the Federal Government and from the States respectively; the perpendicular lines always referring; to the States and the horizontal lines alwavs to the Federal Government; while that domain of sovereign power left uncovered in the centre by either the two blue zones of permission or the two red zones of denial represents those cardinal rights and that part of ultimate sovereignty which the people who adopted the Constitution chose to keep in their own hands not only by necessary implication, but by the express iteration of the Tenth Amendment. These divisions of power and negations of power we have endeavored to analyze in detail in Chapter III of Book II; but it remains for us here to study the broad lines and the leading principles of this great division of all constitutional powers between the States and the Federal Government.
The Federal powers are political; that is the great criterion. The State powers, on the other hand, are domestic, social. They relate
' See Chapter I; Stimson, "The American Constitution," Chapters V and VI; Book 111, Art. 19.
CIIAr. X] FEDERAL AND STATE POWERS 61
to the relation between a man and his fellow-men, to his control over his own property, taxation for all purposes but national defence, and to the trial of his disputes with his neighbors, of his contro- versies with all except the Federal Government, and of all his crimes or offences except only those which, like treason, relate directly to his duty to the Federal Government, or are committed in the places subject to its exclusive jurisdiction, such as forts, military reservations, national territory not incorporated into a State, and the high seas. The Federal Government is a political sovereign ; but has almost none of the attributes of sovereignty for any other purpose. This broad fact is revealed to us with startling clearness when we note that it has generally neither the power of capital punishment nor, in effect, of direct taxation. It would be hard to find two more necessary attributes of sovereignty, as com- monly understood in the science of government, than the power over life and the power over property. Moreover, except for speci- fied purposes of national defence, etc., it cannot hold any land; even the district of the capitol is limited to ten miles square. Even its political power is far less than is commonly enjoyed by sov- ereign nations; it cannot, for instance, cede territory from any State. Moreover, our national sovereign is controlled by the most fundamental of all limitations. It may not, under the Constitution — that is to say, without going back to the people, which It recognizes as the only source of power — change its form from a republican form of government,^ not even to a pure form of democracy.' It is even possible, under the Fifth and Fourteenth Amendments, that it may not adopt a system of socialism or communism, or permit a State so to do.
To see how completely this division between what is political and what is social, domestic, or relating to private right is carried out in the Federal Constitution, it will repay us to run over its provisions in some detail. The Preamble relates both to social and political objects, such as the common defence, but lays down at the beginning the great principle that it is the people and not the States who made the nation and the Constitution. The first two sections of Article I relating to Congress are political. Section 3 forbids all direct taxes, that is, all taxes directly imposed upon property or individuals, except they be apportioned to the States according to their popula-
' Cooley, Const. Law, Chap. XI; ^ Art. IV, 4. 3d ed., p. 213.
62 THE AMERICAN CONSTITUTIONS [boOK I
tion, and not according to their wealth. This not only is, hut was intended to be, in effect a prohibition to the Federal Government of the power of direct taxation. All the rest of the first seven sections are also political; relating generally to the organization, election, and liberties of the Congress, and the method of legislation. Sec- tion 8 of Article I contains almost the only powers given to the Fed- eral Government which may, under our division, be called social; and while no one would desire to change the Constitution in this particular, it is highly significant that this exception has given rise to most of the litigation, most of the discussion, and to the leading division between the two great political parties to-day. That is to say, while the object of the Federal Government is to protect the nation from attack and manage its foreign affairs and impose taxes therefor "for the common defence and general welfare of the United States," the lesson of the existence of the thirteen States under the Confederation showed that they could not be trusted with the regu- lation of commerce passing from or to other States and crossing their borders. This, therefore, was denied to the States, and neces- sarily left to the Federal power ; doubtless, however, rather with the intention of preventing the States from interfering with such com- merce than of allowing the Federal Government to do so. Then, Congress is authorized to make a uniform bankruptcy law through- out the United States; the only matter in which the necessary ad- visability of uniform laws was recognized in the Constitution and expressly given to the Federal Government; and the power to estab- lish post offices and post roads and issue national patents and copy- rights, being a usual national power, is hardly an exception to our rule. Yet these matters, until we come to the Fourteenth Amend- ment, are the only subjects in which the Constitution clothes the Federal Government with any power relating to the citizen's in- dividual affairs and his private business.
But even the political powers are not broadly given. The eight clauses of Section 9 in the first article consist entirely of negations; and there are many others.* On the other hand, the entire sov- ereignty of the State over individual relations, social and domestic affairs, and property rights is shown by the very few restrictions and exceptions we can find in the Federal Constitution. And these ex- ceptions are purely political,^ except in so far as they guarantee the
' See Chapter III, Book II (X), ^ i^id., (Z). (ZX).
CHAP. X] FEDERAL AND STATE POWERS 63
rights of citizens of States to equal law in other States. The expe- rience of the Revolution gave rise to Article I, Section 10, Clause 1, prohibiting them from passing a law impairing the obligation of contracts ; that is to say, a stay law, or a law preventing any creditor — and it was aimed to protect creditors outside the State — from enforcing lawful contracts or debts. National political powers, as well as powers of national taxation, or taxes upon interstate or foreign trade, are, of course, forbidden to the States. Article II re- lates entirely to the Federal executive power and is entirely political ; Article IlPto the Federal judicial power, and here we find that the only case where the national courts may be invoked- except to inter- pret and define the Federal Constitution is to guarantee a fair trial in an impartial tribunal between citizens of different States. Article IV, Section 2, does, indeed, provide that a citizen of one State shall have all the social and contractual rights that are given in any other State to the citizens thereof ; but this can hardly be said to give the Federal Government any power over social matters ; rather it merely guarantees the right to law in each State to all citizens of other States, much as the Fourteenth Amendment later does to all citizens of the United States, and even as Henry II guaranteed it to all freemen of England. Over the territories, indeed,^ Congress ^ is expressly given full power, social and domestic as well as pohtical; but it is only of late years that it has generally exercised it in any other way than to erect territorial legislatures; and in the older territories, at least, there is no meddling with individual rights.
The first eleven amendments are all restrictions; that is to say, they are at great pains expressly to withhold all social and domestic affairs, or cardinal liberty rights, from the Federal Government, and even some that are political; the first ten, therefore, showing a strong reaction in favor of the rights of the States and the liberties of the people, in 1791, while the Eleventh Amendment, in 1798, was a still more decisive step in that direction, withholding all Fed- eral judicial power where a State was directly concerned; much as James I endeavored, though vainly, to get Chief- Justice Coke to rule that he would not consider a case where the interests of the king were involved. The Thirteenth Amendment is striking in that it is the only instance where the Constitution is expressly extended to any place subject to the jurisdiction of the United States, and
\ Art. IV, Sec. 3. the whole government, both President
^ Not, as in England it would be, and Congress, but Congress alone.
64 THE AMERICAN CONSTITUTIONS [BOOK I
wlicrc, as it has recently been put, "The Constitution follows the flag." Slavery, therefore, can exist nowhere, not even in the Sulu Islands; although even the other cardinal requirement, a republican form of government, may constitutionally be withheld from them as from the other territorial possessions.
The modern reaction in favor of the Federal power is shown first in the Fourteenth Amendment, proclaimed July 28, 1868, though the interpretation which might have revolutionized the whole State and Federal system has substantially been denied by the Supreme Court. The amendment does, however, and for the first time, interfere be- tween the State and the individual, if not between the individual and his neighbors. The State is forbidden to deprive any person of life, liberty, or property without due process of law, or to deny any person within its jurisdiction the equal protection of the laws, and this directly by the Federal Government. The radical upholders of centralization, in reconstruction times, undoubtedly believed that this brouffht the hand of the Federal Government between a man and his neighbors and indeed into all his private affairs ; otherwise it would be surprising that it took nearly twenty years of great decisions by the Supreme Court to read the amendment in strict accordance with its simple words and establish that it applied only to a State, and to due process of law of a State; that it did not give, as had been given to the King's courts after the Conquest, on the mere plea of Englishry or that a Norman was concerned, jurisdiction to the Federal courts of all matters and causes where a Negro was concerned. As it has therefore worked out, it is merely a new national guaranty, like that securing a republican form of government, of the cardinal liberty and property rights against law- making by the States; and it does not, under the plea that a person is being unfairly treated by a neighbor or an official, drag all matters of ordinary trade and private right into the Federal courts.
Whether the extreme interpretation of the interstate commerce clause now proposed will carry us to this length, it is too early now to say; nor, indeed, is this a controversial essay. That there has been for some years a decided trend in that direction, one must admit. The effect of the interpretation by the courts and by Congress of the words "regulate commerce among the several States" has been gradually to extend the meaning of " commerce, " from the things transported, the physical instrumentalities of interstate commerce, the necessary documents concerning it, to the corporations and
CHAP. X] FEDERAL AND STATE TOWERS 65
persons conducting it, the conditions of their labor and the rates they may charge, — this by the year 1908, — and the meaning of the words "among the several States" from the natural physical trans- portation across State lines, to a combination or contract made in one or more States intended to act in others or in effect carried out in others. It is perhaps obvious that we intend to withhold the right of conducting interstate commerce from any corporation not con- forming to a Federal standard. Whether we shall go further and deny it to individuals; whether, indeed, Congress has the consti- tutional right to deny it to individuals; and whether, on the other branch of the definition, we shall extend it from commerce, in the sense of interstate traffic, to manufacturing, mining, or producing goods intended to be sold outside of the State where they are manu- factured, mined, or produced; and to the returns, or the profits, or the fortunes, or the disposition of the fortunes derived therefrom ; and still more, to the contractual relations, the conditions of labor, etc., of the persons so engaged, — are all matters for the future to settle.
Finally, we must never forget that there is a division of power more important still, and also made for the first time in the American Constitution ; that is to say, the powers, rights, or liberties reserved in the people of the United States, not delegated by them to the Federal power or always, even, to the State Governments formed or to be formed. This principle we have discussed in Chapter I. It is expressed in the frontispiece in the central domain "Y, " left white, "virgin still with the people." ^ It must be particularly noted that this is the only infinite domain of power recognized in the Federal Constitution. All the others are definite, delimitated ; given, or denied. There has, indeed, of late been a notion that there is something like an inherent national power, indefinite in extent; but this idea can find no place in any logical study of the Constitution ; if there be such powers, they simply fall under the head of implied powers of the Federal Government. And from the point of view of our study, there is no difference between an expressed power and one implied. After the Supreme Court of the United States has found an implied power to exist, by necessary implication or other- wise, it becomes for our purposes just as much a part of the Federal Constitution as if it were definitely expressed. The wording of the articles of Confederation (Article II) that "each State retains every
' See " The American Constitution," p. 197. 5
66 THE AMERICAN CONSTITUTIONS [BOOK I
power . . . which is not by this confederation expressly delegated to the United States . . ." fell to the ground with the adoption of the Federal Constitution eight years later, and received its coup de grace in the Civil War; but because this is so, we must not fly to the other extreme and hold powers to reside in the Federal Gov- ernment, whether they were ever given to it or intended to be given by the people, expressly or impliedly, or not. The " inherent national power," therefore, finds its natural and legitimate place in our zone of "A"; but is not to be robbed from the central liberties of "Y."
The great right reserved to the people, of course, is that of a re- publican form of government. The next is that of personal liberty. A republican form of government is forever guaranteed to the States, — not, apparently, to the territories ; still less to the insular possessions; for the somewhat contradictory opinions of our judges on the insular cases seem at least to involve this result : that there is a tertium quid, something other than a State or a territory as hitherto understood. Just what a republican form of government means, it may be for the future to settle. On the one hand, it may not be a military dictatorship or military power generally, save, per- haps, in the insular possessions; or in time of actual war, or as a consequence thereof; on the other hand, according to the text- writers, it must involve representative government, and by the letter of our Constitution, the institution of private property. The right of personal liberty was originally and expressly guaranteed to citi- zens of the States alone, but practically, by the Fourteenth Amend- ment and many decisions, to United States citizens in the territo- ries; while the general institution of slavery, indeed, is the one thing forbidden by the Constitution even in our insular possessions. The rest of the Federal Constitution, however, does not, by the prevailing opinion, extend to the insular possessions, except, at least, in such doses as Congress may choose to administer it. As to the frame of government, the Constitution makes the most sacred thing in it the last sentence in the fifth article, providing that the Constitution itself may never be so amended as to deprive any State of its equal suffrage in the Senate; this, indeed, being the strongest recognition of States' rights in that document, outside of the Tenth Amendment, and, indeed, put more strongly than in the Tenth Amendment, as it is the one instance in which the Con- stitution itself recognizes the right of secession.
The other cardinal rights reserved to the people are in general
CHAP. X] FEDERAL AND STATE POWERS 67
all those liberty rights discussed in our seven first chapters; in other words, substantially the English Constitution. These are, for the most part, set forth in the first eight amendments. The people are declared in the Preamble to be the sovereign, though the expression of that sovereignty is, in the Fifth Article, shifted to legislatures or popular conventions in three fourths of the States. The political rights are, broadly speaking, popular representation, equal suffrage for the lower house, control of their own elections and courts, impeachment of Federal officers, the power of the purse in the lower house of Congress, uniform taxation for the general welfare, limitation of military appropriation to two years, practical freedom from direct taxation by the Federal Government, and pro- hibition of special privilege; most important of all, that the judges shall hold their office for life, not subject to removal by the Execu- tive, and for a fixed compensation; and the careful separation of the powers already referred to.
Many of these rights are doubly safeguarded by being forbidden both to the nation and to the States.' Freedom of trade amoncr the States, supremacy of the Federal Constitution, a republican form of government, liberty and racial equality are so guaranteed. It will be noted ^ that Massachusetts (1780) preceded and New Hampshire (1792) followed the Federal Constitution in reserving to the people every power, jurisdiction, and right which was not by them expressly ^ delegated to the United States of America in Congress assembled. A more striking statement still is found in West Virginia (Article I, 2): "The government of the United States is a government of enumerated powers, and all powers not delegated to it, nor inhibited to the States, are reserved to the States or to the people thereof. Among the powers so reserved by the States, is the exclusive regulation of their own internal government and police ; and it is the high and solemn duty of the several departments of government, created by this Constitution, to guard and protect the people of this State from all encroach- ments upon the rights so reserved."
' Book II, Chap. Ill, "ZX." Hampshire, but omitted, in accordance
^ See Book III, § 193, notes. with modem doctrine, from the later
' Sic, in Massachusetts and New Constitution of West Virginia.
68 THE AMERICAN CONSTITUTIONS [BOOK 1
CHAPTER XI
THE STATE CONSTITUTIONS
IMany of the State Constitutions, notably of Virginia and Massachusetts, were adopted before the Federal Constitution itself,' and served to a certain extent as a model for it, and it is always important to remember that the two parties bringing their influence to bear upon the adoption of the State Constitutions changed posi- tions entirely from those occupied by them in considering these, when they came to consider the Federal Constitution. The latter, in its most centralized form, giving largest power to the Federal Government, was backed by the Federalists ; generally the educated and propertied classes, who were desirous of a strong central government, not only from motives of personal ambition, but because they desired protection from the absolute democracy of the State Legislatures. They wanted the nation to be strong abroad, their own property and contracts to be protected and respected at home, and their trade and business not to be taxed or interfered with by State regulations. Too great extension of the Federal power was, however, opposed by those whom we should now call Democrats, Thomas Jefferson, Patrick Henry, and others, jealous of too much government of any sort, who desired above all things
' Virginia, June 29 ; New Jersey, vania and Maiyland, was the first Am-
July 13; Delaware, Sept. 21 ; Pennsyl- erican Constitution actually adopted,
vania, Sept. 28; Maryland, Nov. 11; that of South Carolina (March 26, 1776)
North Carolina, Dec. 18, 1776; Georgia, being a political frame of temporary
Feb. 5; New York, April 20, 1777; government for the " Colony " and soon
Massachusetts, March 2, 1780. In followed by the Constitution of 1778. It
Connecticut the charter of Charles II uses the word "Commonwealth;" the
(1662) was ratified, and a simple Bill Declaration of Independence, and the
of Rights added, in 1776. New Hamp- Constitution of Delaware are first to
shire, after one or two abortive at- say " State." Pennsylvania, Massa-
tempts, adopted its Constitution June chusetts, and Kentucky are also still
2, 1784. Charles II, in 1663, granted Commonwealths; Connecticut (1776)
to Benedict Arnold and other " trustie calls itself a Republic, Massachusetts
and well-beloved subjects " a charter a " free, Sovereign, and Independent
for Rhode Island and Providence plan- State;" while Maine is officially the
tations which lasted until 1842, but State of Maine, and Rhode Island also
this granted autonomy, with the fiber- " of Providence Plantations." Thus
ties of the common law. Virginia's, doth one star differ from another in
followed closely by those of Pennsyl- glory 1
CHAP. Xl] THE STATE CONSTITUTIONS 69
to maintain the political liberty of the individual, and his freedom in his home alfairs; while as to the State Governments, having enjoyed for the first time in modern English history complete legis- lative power unhindered even by a Constitution or a Protector, popular leaders were desirous of preserving their sovereignty, and therefore wished to give indefinite powers to the State Governments and particularly to the State Legislatures, and withhold as much as they could from the Federal Government. For, the powers of a State government being original, not delegated, its legislature represents a power that at its origin was sovereign. Here, therefore, the Federalists became the upholders of individual rights and prop- erty, and imposed the checks in the State Bills of Rights that we find so notable in Virginia and in Massachusetts. It is as true as are most antitheses that the people imposed the Bill of Rights upon the Federal Government, in the form of the first ten amendments; and that the so-called privileged classes imposed similar checks upon the State legislatures. Upon one thing only were they agreed, — personal freedom.
These Bills of Rights have been necessarily discussed already; for they concern, generally, the cardinal principles of that part of the Anglo-x\merican Constitution which is not merely political. Every State without exception has one, though Michigan in her last Constitution chops up its Bill of Rights and distributes its provisions around "under their proper headings."' The political framework, also, has been sufficiently discussed in Chapters VIII and IX above. It remains for us to discuss here that extraordi- nary development of the modern State Constitution which tends to reduce all law-making to constitutional provisions; to require a periodical referendum; and to a great extent do away with representative government.^ New Constitutions, such as those of Alabama, Louisiana, and the seven Western States, evidently seek to embody all the broad notions of what a present majority thinks the law ought to be into the organic law of the State. Necessarily this leads to the embodying of the prejudice or caprice of the moment into the Constitution itself; for it is human nature
* I cannot agree with Professor tinuity; moreover the Bill of Rights
Dealey that this is " a good precedent." should have a greater sanctity than the
(Am. Acad. P. & S. S. Supp. March organization parts of a modern State
1907, p. 21). Is the great clause 39 Constitution.
of Magna Carta judicial alone? Such « ggg goo^ III, §§ 182, 200, 209,
an arrangement destroys historical con- &c.
70 THE AMERICAN CONSTITUTIONS [DOOK I
to care more for one's peculiar fancies than for commonplace facts. Thus, the Constitutions of several States make licjuor selling, or the bribery of officials, necessarily crink's by the organic law; which murder is not. It is part of the Constitution of Oklahoma that corporations shall be tlenied the rights of ordinary citizens in the courts; of California that stockholders shall not be protected from unlimited liability; and of several States that fiduciaries may not in- vest in corporate securities.' All these fall into that part of our Book III that we call "Legislation," and, it will be observed, they cover one hundred and thirty-six out of two hundred and forty-nine pages of that portion of our work.
It is significant to compare these modern Constitutions with the older Constitutions, such as that of Massachusetts. This is, indeed, owing to its elaborate political framework, much longer than most Constitutions of the original thirteen States; but it contains only a Bill of Rights, and a Part II, setting forth the frame of government, — and nothing whatever else ; no directions or instructions or limi- tations, upon the Legislature, save that they should enact ^ "all manner of wholesome and reasonable laws as they may judge for the benefit and welfare of this State." The only other restriction which can possibly be considered a regulation or direction in the modern sense is a special separate chapter providing for welfare of the university at Cambridge, — Harvard College. The Constitu- tion of Alabama, on the other hand, contains nearly one hundred sections relating to the legislation permitted or denied to the Legis- lature ; ^ and thirty-six long sections concern corporations, the whole Constitution covering sixty-nine pages of fine print. The Oklahoma Constitution runs to one hundred and seventy-five pages, — and that without an index. Such Constitutions, of course, show distrust by the people of their own Legislatures ; but such dis- trust will breed unworthiness.^ Of such nature also are the curious restrictions upon the passage of bills, and the elaborate constitu- tional provisions against corruption or abuse of official power.^ The more reasonable partial referendums, to the people or even to the taxpayers, of all bills involving the raising or expenditure of public money or the increase of State or municipal debt,® have al-
> See Book III, §§ 424, 508, 509. ■• See above, Chapter VIII.
=> See Book III, § 391. ^ See Book III, Articles XXII and
3 §§ 65 to 111; 204 to 219; con- XXVII. earning taxation and exemptions; '^ See Book III, Articles XXXI to
and 220 to 255. XXXVII, &c.
CHAP. Xl] THE STATE CONSTITUTIONS 71
ready been discussed. The extraordinary number of things which the Legislatures are now forbidden to do by local or special law (fol- lowing the precedent set by the Constitution of New York of 1848) is another indication of the same distrust.*
The main lines on which this third or unscientific part of the modern State Constitution has sought to hamper posterity may be briefly summarized. Land laws, the prohibition of feudal tenures, long leases, and absentee land-holding - go back to the first Constitu- tion of the State of New York; but the complete alteration of the common law as to the use of water, both for irrigation purposes and for municipal supply, is the creature of recent Western State Con- situtions and Spanish or customary local law.^ The same may be said of the "apexing" law of mines, though this has not yet crept into any Constitution. The prejudice against dealing in futures, stock jobbing, etc.,^ is closely connected with the provisions against trusts, of which later. Many States forbid the Legislature to grant any divorces.^ Otherwise the law of marriage is not interfered w^th. Laws prohibiting the manufacture or sale of intoxicating liquor or extending the right so to prohibit it to the counties or tow^ns them- selves is, of course, the most striking novelty usually indulged in by Constitution-makers;® but is now likely to be surpassed in fre- quency of adoption by the provisions protecting union labor, guard- ing the labor of women and children, and providing the length of the day's work, even of men, for any work done for the State or a public contractor; and, in such work, the payment of fixed wages.' But the greatest innovation by the Constitution on the legislative domain will be found in the law of corporations and of combinations. The laws against "trusts" — which, however, in almost no instance where the law has been held constitutional, do more than restate the principles of the older common law,^ are put into constitutions. Not only are general incorporations constitutionally regulated, but a special chapter must be given to railroads and banks.^ The charges of all public service corporations may be regulated, and all discrimination or preference forbidden,*" and they may not en- gage in other lines of business," nor can foreign corporations engage
' See Book III, § 395. ^ See Book III, Articles L and
" See Book III, Article XL. LVIII.
» See Book III, Article XLI. » See Book III, Articles LIII and
* See Book III, Article XLII. LV
'' See Book III, §§ 395, 430. "> Book III, §§ 506, 521-524.
• See Book III, Article XLIV. '' Ibid., § 531. ^ Chapter V; See Book III, Article
XLV.
72 THE AMERICAN CONSTITUTIONS [BOOK I
in business not permitted to State corporations ' nor one corpora- tion own stock in another.^ Most interesting will be found the article against trusts, monopolies, combinations to fix prices, limit output, control the market or the actions and business of others.^ All these, being common-law principles, have stood the tests of the courts; when legislators have gone beyond them, and particularly when even State Constitutions have attempted to exempt certain classes, such as organized or agricultural labor, or certain busi- nesses, such as dealing in farm produce, from the limitations of the general law, they have been held unconstitutional ; that is to say, State Constitutions have been held void under the Federal Constitution, and State laws under both ; under State Constitutions frequently even by the courts of the same States which adopted them.
A few States have embodied in their Constitution their system of municipal government,* but this need not detain us except for the striking novelty in newer Western Constitutions that any city or even town may form its own charter, thereby making its own law and founding its own frame of government, — a recurrence, as in many another case, to the earliest of English precedents; thereby interesting and probably possible, for what has worked well is likely to work again. It is new legislation, made without regard to custom or habit, that is apt to be futile.^
With the judicial system alone have State Constitutions rarely presumed to tamper. They have contented themselves with adopt- ing the common law, or such part of it as is suited to their needs and to their previous customs; none of them has so far rejected it; al- though a good many "fuse" common law with equity; while there is a recent tendency to deprive courts of chancery of the power of specific performance or of enforcing their decrees by contempt process, at least in labor disputes.^ And they have usually pre- scribed a scheme of courts, their organization and jurisdiction; though even this is not done in New Hampshire.^
> Book III, § 505. " See above. Chapter IV, Book
= Ibid., § 518. Ill, Arts. LXV, LXVII.
^ See Book III, §§ 518, 527, 580. ' See Book III, Art. LXV, American
* See Book III, Article LX. Statute Law, Vol. I, § 550, "Table of
* See James C. Carter, "Law: its Courts." Origin, Growth and Function," passim.
BOOK II
CONSTITUTIONAL PRINCIPLES AS EXPRESSED IN THE ENGLISH STATUTES OF THE REALM AND AMERICAN CONSTITUTIONS
CHAPTER I
CONSTITUTIONAL PRINCIPLES PROTECTING PERSONAL LIBERTIES AND PRIVATE RIGHTS AS EXPRESSED IN CONSTITUTIONAL DOCUMENTS FROM MAGNA CARTA TO THE UNITED STATES CONSTITUTIONS
I. LIBERTY (a) General Right to; Jury Trial
Mn;?na Carta (li:i5). Cap. 39
Cap. 43
Masna Carta of Henry III
Cap. JJ5
28 Edw. Ill (1354), Cap. 3
Slassacliu- setts Body of Liber- ties, 1041 (1)
(17)
(91)
"No free man shall be taken or imprisoned or disseised, or outlawed, or exiled, or anyways destroyed ; nor will we go upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land."
"In future any one may leave the Kingdom and return at will. . . ."
Wording identical with M. C. cap. 39, save that the very im- portant words "Of his freehold or his liberties or his free customs " are added after the word "disseised."
The words "Unless by due process of law" are used instead of "the legal judgment of his peers or the law of the land."
"No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arrested, re- strayned, banished, dismembered, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country warant- ing the same, established by a generall Court and sufficiently published, or in the case of the defect of a law in any parteculer case by the word of god. And in Capitall cases, or in cases con- cerning dismembring or banishment, according to that word to be judged by the Generall Court."
" Every man of or within this Jurisdiction shall have free libertie, notwithstanding any civill power to remove both him- selfe, and his familie at their pleasure out of the same, provided there be no legall impediment to the contrarie."
" There shall never be any bond slaverie, villinage or Cap- tivitie amongst us unles it be lawfuU Captives taken in just warres and such strangers as willingly selle themselves or are sold to us. . . ."
76
CONSTITUTIONAL PIIINCIPLES
[book II
Virginia Kill <>r ItiKlitM (.liiiM-, I77««), (Sec. 1>
(S)
I>e<'larn- tioii of In- «loi»«'inl«'in'e (July, 177«>
MaMN. necl. of Iti^litM
Ibid., XII
V. S. Consti- tution (1787), III, 3 (3)
Ibid.. Amt. Y (.1791)
Ibid., Amt. VI
Ibid., Amt. XIII (18(J5>
Ibid., Amt. XIV, 1
(1868)
" That all men arc by natvirc eciually free and independent, and have certain inheront rif^hls, of which wiieii tiiey enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of uctiuirinj? and possessing property, and pursuing and obtaining hap[)incss and safety."
"... That no man be deprived of his liberty, except by the law of the land or the judgment of his peers."
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Uights, that among these are Life, Liberty and the pursuit of IIapi)iness. . . ."
"For depriving us in many cases of the benefits of trial by jury."
"All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness."
"... And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liVjerty, or estate, but by the judgment of his peers, or the law of the land."
"And the legislature shall not make any law that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury."
"The Trial of all Crimes, except in cases of Impeachment, shall be by Jury. . . ."
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just com- pensation."
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him; to have compul- sory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the LTnited States, or any place subject to their jurisdiction."
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make
CUAP. l]
CONSTITUTIONAL PRINCIPLES
77
or enforce any law which shall abridge the privileges or immuni- ties of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal pro- tection of the laws."
(For State Constitutions, see Book III, §§ 10, 12, 13, 14, 130, 184.)
(b) Habeas Corpus and Indictment
ItlitKna Carta. Cap. 30
Petition of Ri^flits, V (1037>
Mass. Deel. of Rights, XII
IT. S. Consti- tntion, 1; 9 (3>
Mass. Body of I/il»ertles (KJ41) Clause 18
Habeas Corpus Act, 167»
■''irafinia rs'l of •*iarhts, Sec. 8
r. S. Consti- tution, A.mt. V
"The right of inquest of life or limb shall be given gratis, and not denied." Substantially the same in the Magna Charta of Henry III, cap. 32.
"... divers of your subjects have of late been imprisoned without any cause showed; and when, for their deliverance, they were brought before your justices, by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special command . . ."
" No subject shall be held to answer for any crimes or offence, vmtil the same is fully and plainly, substantially and formally, described to him. . . ."
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
(For State Constitutions, see Book III, §§ 125, 126.)
" No mans person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto. If he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it."
Provides, in substance, " that on complaint and request in writing by or on behalf of any person committed and charged with any crime . . . any of the twelve judges, in vacation, upon viewing a copy of the warrant, or affidavit that a copy is denied, . . . shall award a habeas corpus . . . returnable immediately. . . . That the writ shall be returned and the prisoner brought up, within a limited time according to the distance, not exceeding in any case twenty days. . . . That no person once delivered by habeas corpus, shall be recommitted for the same offence, on penalty of £500."
"That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation. . . ."
"No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the mihtia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself. . . ."
(For State Constitutions, see Book 111, §§ 120, 127, 128.)
78
CONSTITUTIONAL PRINCIPLES
[liOOK II
MnK-na <'iii'(it, C'a|» '20
MiisN. Tlo«ly «»f l.ilM>i-( if.s Claiisf 1<>
<'«irinis Act, Cliiuse XI
nil! of
ItiKhts.
Clause
10
Bill of RiKlits, See. y
Mass. I>ecl. of HiKhts, Clause XXVI
V. S. Con- stitution, Amt. VIII
(c) ExTKNT OF Bail and Punishment
"A Freeman sliall only be amerced . . . after the manner of the offence . . . saving to him liis contenement ... a mer- cliant savinfj^ liis merchandise, and a villein saving his wainage; tiie amercement in all cases to be assessed by the oath of honest men of the neighbourhood."
" For bodilie punishments, we allow amongst lis none that arc inhuman, barbarouse, or cruel."
That no "inhabitant ... of I'ngland . . . shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier ... or places beyond the seas . . . within or without the dominions of his Majesty. . . ."
"That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Copies the English Bill (10).
"No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines or inflict cruel or unusual punishments."
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
(For State Constitutions, see Book III, §§ 121, 122, 123, 140, 141.)
Mass. Body of Liiber- ties, Clanse 42
Clanse 45
(d) Trial and Evidence
"No man shall be twise sentenced by Civill Justice for one and the same Crime, Offence or Trespasse."
"No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fuUie convicted by cleare and suffitient evi- dence to be guilty " (after which he may be tortured to obtain evidence against his confederates yet not with such "as be bar- barous and inhuman ").
Clanse 47 "No man shall be put to death withovit the testimony of two
or three witnesses or that which is equivalent thereunto."
Forbids a second committal for the same offence.
"... to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself. ..."
"No subject shall ... be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. . . ."
"Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."
(For State Constitutions, see Book III, § 132, 137, 140.)
Habeas Coryus Act, VI
"Virginia Bill of Rights, See. 8
Mass. Decl. of Rights, XII
r. S. Con- Ntitntion, Amt. V
CHAP, ij
Mass. Deol. of Kiglits, XXIV
r. S. Con- stitiitiuii, If
1, 10, (1)
CONSTITUTIONAL PRINCIPLES (e) Bills of Attainder
79
"Laws made to punish for actions done before the existence of sucli laws, and which have not been declared crimes by pre- ceding laws, are vmjust, oppressive, and inconsistent with the fundamental principles of a free government."
"No Bill of Attainder or ex post facto Law shall be passed."
"No State shall . . . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. . . ."
(For State Constitutions, see Book III, §§ 138, 141.)
Bill of Rights (1)
(3)
VirKinia Bill of Ril^lits, Sec. 7
Mass. Decl. of Rights, XX
(f) Suspending Laws
" That the pretended power of suspending of laws, or the execu- tion of laws, by regal authority, without consent of Parliament, is illegal."
is to the same effect but forbids the "dispensing with laws" and leaves out the clause about Parliament.
" That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."
"The power of suspending the laws, or the execution of the laws ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for."
(For State Constitutions, see Book III, §§ 126, 392.)
XXV
IJ. S. Con- stitution, III, 3, (1)
III, 3, (3)
(g) Treason
"No subject ouglit, in any case, or in any time, to be declared guilty of treason or felony by the legislature."
"Treason against the United States shall consist only in levy- ing War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Trea- son unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
"The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood or Forfeiture except during the Life of the Person at- tainted."
(For State Constitutions, see Book III, § 150.)
Magna Carta, Cap. 39
Cap. 40
II. LAW
(a) Common Law, Judges (The right to law, in criminal matters, has necessarily been
shown above in connection with Liberty. This heading relates to
general matters.)
"... unless by . . . the law of the land." (See I, above.), "To none will we sell, to none will we deny or delay right, or
justice."
80
CONSTITUTIONAL PRINCIPLES
[book II
Cap. 4S
28 Kilw. Ill, C'liiip. Ill
Mnss. Horty of liiber- ties. Clause 2
Petition of Rigrlit
Bill of Rights (3)
Aet of Set- tlement (1700)
Virginia Bill of Rigrlits, See. 6 Sec. 11
Declaration of Inde- I»enclence, Clause 13
Clanse 24
New York Constitu- tion, Clause 41 (1777>
Mass. Deel. of Rig;lits, XI
XV
"Justices, constables, slieritTs, and bailiffs shall only be ap- pointed of 'such as know the law and mean duly to observe it.'"
"No man . . . shall be . . . put out of land or tenement . . . nor disinherited . . , without being put in Answer by due Process of the Law."
" Every person within tliis JuriscHc-tion, whether Iiihal)itant or forreiner shall enjoy the same justice and law, that is generall for the plantation, which we constitute and execute one towards another without partialitie or delay."
Cites Magna Carta and 28 Edw. Ill as above and denounces the acts comphiined of as "against the laws and free customs of the realm " (clauses II, VI, VII, VIII, IX), "the laws and fran- chise of the land " (X).
Tliat the commission for erecting the late Court of Commis- sioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious.
"That . . . judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established ; but upon the Address of both Houses of Parliament, it may be lawful! to remove them."
No men can be "bound by any law to w'hich they have not [by their representatives] assented. . . ." See Government, below.
"That in controversies respecting property, and in suits be- tween man and man, the ancient trial by jury of twelve men is preferable to any other and ought to be held sacred."
"He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."
"For abolishing the free System of English Laws in a neigh- bouring Province, establishing therein an Arbitrary govern- ment, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies."
"... the legislature of this State shall at no time hereafter institute any new court or courts, but such as shall proceed according to the course of the common law."
"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 character. He ought to obtain right and justice freely, and without being obliged to purchase it ; — completely, and without any denial ; — • promptly, and without delay; — conformably to the laws."
"In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, — unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it."
CHAP. l]
CONSTITUTIONAL PKINCIPLES
81
MnMs. Docl. of Iti^Iits, X.VI.V
IT. S. Consti- tution, Amt. VII
Amt. V
"It is essential to the preservation of the rights of every indi- vidual, his life, liberty, property, and character, that tliere be an impartial interpretation of the laws, and administration of jus- tice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honor- able salaries ascertained and established by standing laws."
(The Virginia Bill of Rights implies this principle; see III (d), below.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be pre- served, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
" No person shall be
without due process of law
Amt. XIV, 1 "... Nor shall any State deprive . . . , without due process of law, nor deny to any person . . . the equal protec- tion of the laws."
(For State Constitutions, see Book III, §§ 70, 72, 73, 74, 76, 130.)
Masna Carta, Cap. 17
Cap. 20
Cap. 34
(b) Local Courts
"Common pleas shall not follow the King's Court, but be held in some certain place."
Fines to be assessed by honest men of the neighbourhood (see I, (c), above).
The writ called Prcecipe shall not in future be issued, so as to cause a freeman to lose his court.
Virffinia Bill of Ri^'lits (S)
Deeiaration "He has combined with others to subject us to a jurisdiction
of inde- foreign to our Constitution, and unacknowledged by our laws;
pendenee, '^ o j i
Clause 17
jury of liis vicinage
giving his Assent to their Acts of pretended Legislation."
Clause 23
Maryland Constitu- tion, Clause
IS (1776)
Mass. Decl. of Rights, XIII
U. S. Consti- tution, III, 2, (3)
"For transporting us beyond Seas to be tried for pretended offences."
" That the trial of facts where they arise is one of the greatest securities of the lives, hberties, and estates of the people."
"In criminal prosecutions, the verification of facts, in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen."
"The trial of all Crimes, except in Cases of Impeachment, shall be by Jury ; and such Trial shall be held in the State where the said Crimes shall have been committed ; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
(See for State Constitutions, Book III, § 133.)
82
CONSTITUTIONAL PRINCIPLES
[book it
(c) Martial Law, Right to Arms, etc.
Petition of HiK-litM, Clause V'l
ClnnseH VII, VIII
Clause X
Bill of Rigrlits, Clause '
Clause G
". . . of late p;rcat coinpaiiies of soldiers and mariners have been dispersed into divers counties of the realm, and the iniiab- itants against their wills have been conii)elled to receive them into their houses and there to suffer them to sojourn, against the laws and customs of this realm, ..."
"... certain persons have been appointed commissioners, with power and authority to proceed . . . according to . . . martial law . . . and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial. By pretext whereof some of your Majesty's subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might and by no other ought, to have been judged and executed."
"... and that the foresaid commissions, for proceeding by martial law, may be revoked and annulled . . . that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come."
"That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law."
"That the raising or keeping a standing army, within the kingdom in time of peace, unless it be with consent of Parhament, is against law."
"Virginia Bill of Rigrlits, See. 13
Declaration of Inde- pendence, Clause 15
Clauses IS, 19
Mass. Decl. of Rij^Iits, XXVII
XXV^H
"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State ; that standing armies in time of peace should be avoided as dangerous to liberty; and that in all cases the mili- tary should be under strict subordination to, and governed by, the civil power."
"He has kept among us, in times of peace. Standing Armies without the Consent of our legislatures."
"For quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from punishment for any mur- ders which they should commit on the inhabitants of these States."
"In time of peace, no soldier ought to be quartered in any house without the consent of the owner ; and in time of war such quarters ought not be made but by the civil magistrate, in a manner ordained by the legislature."
"No person can in any case be subject to law-martial, or to any penalties or pains, by virtue of that law, except those employed in the army or na\'y, and except the militia in actual service, but by authority of the legislature."
CHAP. l]
CONSTITUTIONAL PRINCIPLES
83
XII
XVII
V. S. Consii- tntion, I, 8, (12)
I, 8, (14)
I, 8, (15) I, 8, (IG)
Amt. II (1701)
Amt. Ill
"And the legislature shall not make any law that shall suljject any person to a capital or infamous punishment (excepting for the government of the army and navy) without trial by jury."
"The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dan- gerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it."
"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years."
"To make Rules for the Government and Regulation of the land and naval Forces."
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."
"To provide for organizing, arming, and disciplining, the ^lilitia, and for governing such Part of them as may be em- ployed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers and the Authority of training the Militia according to the discipline pre- scribed by Congress."
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."
(For State Constitutions, see Book III, §§ 62, 63, 290, 291, 293, 294, 295, 298).
III. PROPERTY AND TRADE
Ma^na Carta, Cap. 39
Mai^na Carta, Caps.
28, 30, 31
(a) Property
The word "disseised" (see I, (a), above) relates to property.
No constable or other royal baiUfif shall take any man's corn or other chattels without immediate payment . . . nor shall the King, his sheriffs or bailiffs take any horses or carriages of freemen for carriage, or any man's timber . . . unless by con- sent of the owner.
Maprna Carta of Henry III, Cap. 23
28 E<lTr. Ill, Cbap. Ill
No constable nor his bailiff shall take com or other chattels of any man . . . but he shall forthwith pay for the same.
(See II, (a), above.) A man may not be "put out of Land or Tenement " but by due process of Law.
Mass. Body " No mans Cattel or goods of what kinde soever shall be pressed
of Liber- qj. taken for any publique use or service, unlesse it be by warrant
Clause 8 grounded upon some act of the generall Court, nor without such
reasonable prices and hire as the ordinarie rates of the Countrie
84
CONSTITUTIONAL PRINCIPLES
[book n
Virginia Hill «>r KiKlit.i, See. 1
MnsN. I>eel. of Rif?ht»«, I
II. S. Con- Htitntiuu, Aiut. V
Amt. XIV, 1
do afford. And if his Cattel or goods shall perish or suffer dam- age in such service, the owner shall be sufhtiently recompenced."
"... all men . . . have certain riglits . . . namely, the enjoyment of life and liberty, with tlie means of acc)uiriiig and possessing prupcrty, and pursuing and obtaining happiness and safety."
"... tliat of accjuiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness."
(No person shall) . . . "be deprived of life, liberty, or property without due process of law; nor shall jirivate property be taken for public use without just compensation."
" Nor shall any State deprive any person of . . . property without due process of law."
(For State Constitutions, see Book III, §§ 13, 90-95, 130, 183.)
Carta, Cap. 13
Cap. 41
Cap. 33
Mag'na Carta of Henry III, Cap. 35
Statate of
monopolies,
1623
Mass. Body of Liberties (O)
Declaration, of Incle- penrtence. Clause 20 "Virsinia Bill of Kij^Iits, Sec. 4
Maryland Constitu- tion, XXXIX (1770)
Mass. Decl. of Rigrlits, Clause VI
(b) Trade and Monopoly
"The City of London shall have all its ancient liberties and free customs as well by the lands as by the seas and so of all other cities, boroughs, towns and ports." In Henry III this is ex- tended to the barons of the five ports.
" All merchants shall have liberty safely to enter, to dwell and travel in and to depart from England for the purpose of com- merce without being subjected to any evil tolls but only to the ancient and allowed customs except in time of war. , . ." Iden- tical in Cap. 37 of the Charter of Henry III.
All w^eirs in the Thames and Medway and throughout England shall be put down, except on the sea-coast.
"No freeman shall be . . . disseised of his freehold or liber- ties or free customs." The last words relate to trade, and are expounded by Coke as including a prohibition of monopoly.
All monopolies, all licenses to do, use or exercise anything against the tenor or purport of any law or statute, declared void. 21 James I, Cap. 3.
"No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie and that for a short time."
"For cutting off our Trade with all parts of the world."
"That no man, or set of men, are entitled to exclusive or sepa- rate emoluments or privileges from the community but in con- sideration of publick services; which not being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary."
That monopolies are odious, contrary to the spirit of a free government and the principles of commerce; and ought not to be suffered.
"No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissi-
CHAP. l]
CONSTITUTIONAL rRINCIPLES
85
IT. S. Consti- tution, Antt. XIV, Sec. 1
Mn^na Carta, Cap. 13
Cap. 14
Petition of Rights, I
Bill of Rigrlits (4)
Virginia Bill of Rights, See. 6
Declaration of Inile- pen«lence, Clause 21 Mass. Decl. uf Rights, X
Mass. Decl. of Rights, XXIII
ble to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver or judge, is absurd and unnatural."
"... nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws."
(For State Constitutions, see Book III, §§ 14, 16, 70, 394, 404, 580, etc.)
(c) Taxation
"No scutage nor aid shall be imposed in our kingdom unless by the common Council of the realm" (t. e. the Parliament).
Describes how the National Council is to be summoned by a writ to all the nobility and tenants in chief.
These two clauses were omitted in Magna Carta of Henry III but restored in the Confirmation of Charters of Edward I in the words "From henceforth we shall not take such manner of aids, tasks nor prises but by the common assent of all the realm and for the common profit thereof."
"... your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid or other Hke charge not set by common consent, in parliament."
"... that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by the act of parliament."
"That levying money for or to the use of the Crown by pre- tence of prerogative, without grant of Parliament, for longer time, or in other manner, than the same is or shall be granted, is illegal."
". . . all men . . . cannot be taxed or deprived of their property for publick uses without their own consent or that of their representatives. . . ."
"For imposing Taxes on us without our Consent."
"Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection ; to give his personal ser- vice, or an equivalent when necessary; but no part of the prop- erty of any individual can, with justice, be taken from him, or applied to public use, without his own consent, or that of the representative body of the people. In fine, the people of this Commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever the pubHc exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor."
No subsidy, charge, tax, impost, or duties ought to be estab- lished, fixed, laid, or levied, under any pretext whatsoever, with- out the consent of the people or their representatives in the legislature.
(For State Constitutions, see Book III, §§ 90, 330, 335, 340, 310, 311, 312, 314, 320, 322.)
86
CONSTITUTIONAL PRINCIPLES
[nooK II
mil of
ClauNt> S>
Virpriiiia ntll of RfKhtN, Sec. 12
Mnj«!«. r>ecl. of RiKhtH, Clnuite X\l
XXI
(d) Miscellaneous Rights
Freedom of Speech
"That the freedom of speech, and debates or proceedings in Parliament, ou^ht not to be impeached or questioned in any court or place out of Parliament."
"That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by dcspotick govern- ments."
"The liberty of the press is essential to the security of freedom in a State: it ought not, therefore, to be restrained in this Commonwealth."
"The freedom of deliberation, speech and debate, in either house of the legislature is so essential to the riglits of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint in any other court or place whatsoever."
Bill of Clause 5
Mass. Decl. of Rif?lit8, Clause XIX
XXI
Right to Petition
"That it is the right of the subject to petition the King, and all commitments and prosecutions for such petitioning are illegal."
"The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good ; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer."
"The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever."
Virginia Bill of Rights, Sec. IG
Mass. Decl. of Rights, III
Religion
"That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity, towards each other."
"And every denomination of Christians, demeaning them- selves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law : and no subordi- nation of any one sect or denomination to another shall ever be established by law."
Virginia Bill of Rights, See. lO
Search Warrants
"That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described, and supported by evidence, are grievous and oppressive, and ought not to be granted."
CHAP. l]
CONSTITUTIONAL PRINCIPLES
87
MiiNH. IJeol. of Ui^IitM, XIV
tl. S. Consti- tution, Art. IV
"Every subject has a right to be secure from all unreasonable searches, and seizures, of liis person, liis houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously sup- ported by oath or affirmation, and if the order in tlie warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize tlicir property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws."
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon prob- able cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
(For State Constitutions, see Book III, §§ 71, 136.)
IV. POLITICAL RIGHTS
Bill of Ri^lits, Clanse 8
Virginia Bill of Riglits, Sec. O
Masjii. Decl. of Riglits, IX
V. S. Constl- tntion, Fif- teenth Auit.
(a) Elections "That election of members of Parliament ought to be free."
"That elections [of representatives] ought to be free, and that all men having sufficient evidence of permanent common in- terest with, and attachment to the community have the right of suffrage . "
"All elections ought to be free; and all the inhabitants of this Commonwealth having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments."
"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State, on account of race, color, or previous condition of servitude.
" The congress shall have power to enforce this article by ap- propriate legislation."
(For State Constitutions, see Book III, §§ 230, 235, 240, etc.)
(b) Legislatures
Bill of "And that for redresse of all grievances, and for the amending,
Clau'se'is strengthening, and preserveing of the lawes, Parlyaments ought to be held frequently."
MaH!<. Deoi. The legislature ought frequently to assemble for the redress of
2^f Risiits, grievances, for correcting, strengthening, and confirming the laws, and for making new laws, as the common good may require. (For State Constitutions, see Book III, § 277.)
Vipprinla Bill of Rierlits, Sec. 2
(c) Theory of Government
"That all power is vested in, and consequently derived from, the people ; that magistrates are their trustees and servants, and at all times amenable to them."
88
CONSTITUTIONAL PRINCIPLES
[book II
A'irK'Inla Hill of IliulitM, Sec. ;{
Declaration of Iiule- Itt'iidence; 3,4
Mass. Con-
Ntitntion,
Preuinble
Mass. Deel. of Rights, IV
VII
VIII
"That government is, or oupht to be, instituted for the common benefit, protection and security of the people, nation, or comiiiuiiity ; of all (he various modes and forms of government, that is best, wliicii is capable of i)roducinf^ the greatest degree of liappiness and safety, and is most effectually secured against the danger of maladministration; and that, whenever any govern- ment shall be found inadeciuate or contrary to these purj)oses, a majority of the comnumity hath an indubitable, imalienable and indefeasible right, to reform, alter or abolish it, in such manner aa shall be judged most conducive to the public weal."
"That to secure these rights. Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its founda- tion on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
"The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness.
" The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a con- stitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faitliful execution of them; that every man may, at all times, find his security in them."
" The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independ- ent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter be, by them expressly delegated to the United States of America, in Congress assembled."
" All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them."
" Government is instituted for the common good ; for the pro- tection, safety, prosperity, and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men : Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it."
" In order to prevent those who are vested with authority from becoming oppressors, the people have a right, at such periods and
CHAP. l]
CONSTITUTIONAL PRINCIPLES
89
in such manner as they shall estabhsh by their frame of govern- ment, to cause their public officers to return to private life ; and to fill up vacant places by certain and regular elections and appointments."
(For State Constitutions, see Book III, §§ 4, 6, 11, 181, 182, 183, 184, 185.)
Act of Set- tlement (1700)
Virginia Bill uf Rights, Sec. 5
Mass. Decl. of Riglxts, XXX
IT. S. Constl- tation, I, 1
(d) The Separation of the Powers
"That no person who has an office or place of profit under the king, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons."
"That the legislative and executive powers of the State should be separate and distinct from the judiciary ; and that the members of the two first may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reducted to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or in- ehgible, as the laws shall direct."
" In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them : the executive shall never exercise the legisla- tive and judicial powers, or either of them : the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."
"All legislative powers herein granted shall be vested in a Congress of the United States. ..." (See II, 1; III, 1, similarly expressed as to the other two powers.)
90
CONSTITUTIONAL PRINCIPLES
[book II
CHAPTER II
HISTORICAL DIGEST OF ENGLISH SOCIAL LEGISLATION
lOGG
1087
William
Knfiis
llOO
1 Hen. I
1136
1 Stephen
1154
1 Hen. II
1159
11C4
10 Hen. II
1181
28 Hen. II
118S
3G Hen. II
1193 Richard I
1203 John
The Conquest.
Charter of Henry I (" of Liberties ") restores the laws of Edward the Confessor " with the amendments made by my father with the counsel of his barons."' First recognition of personal property at a man's death. It is to be divided between his widow and heirs.
Charter of Stephen mainly concerning church matters, simony, and forests; but promises to observe " good and ancient laws and just customs " ; and again " all good laws and just customs which they had in the time of King Edward."
Confirms " liberties and free customs " to " all counts and barons and to all men."
Scutage substituted for military service. Institution of the " Grand Assize" or trial by jury (Taswell-Lang- mead, p. 71) supersedes old modes of trial by battle (Norman) and compurgation (Saxon).
Constitutions of Clarendon subjected the church and priests to the secular (common) law (I Taylor, 287), the church courts still retaining jurisdiction over offences between the clergy, marriage, sexual relations, slander, usury, and wills.
Assize of Arms revives the ancient fjTd (militia). — Glanvil Justiciar.
Saladin tithe ; first taxation of personal property.
Tax of one-fourth of every person's revenue or goods to ransom the King.
Tax of one-seventh on thie barons, (1207) tax of one- thirteenth on every man.
CHAP. Il] , HISTORICAL DIGEST 91
1313 John surrenders England to the Pope and takes it
back in feud for tribute of 1000 marks. Trial by ordeal abolished by the Latcran Council.
'21K Maqna Carta. C. 7. Establishment of the widow*s
John ^
dower. C. 12. No scutage or aid (tax) shall be imposed in our kingdom unless by the comiuon council of our realm. C. 14. In order to take the common council of the realm in the imposition of aids the King shall smnmon tlie archbishops, earls, and barons by separate writ, and all other tenants in chief by general writ, with the 40 days' notice ; and the consent of those present shall bind those absent. [These two clauses were omitted in the re-issue of Henry III, and only returned in Edward I, Confirmation of Charters (1297).] C. 13. Confirms ancient liberties and customs of London and of all other cities and free ports. C. 17. Common Pleas : Court shall not follow the King, but be held in some place certain. C. 20. Fines to be reasonable ; with exemption of tools, implements of husbandry, stock in trade. C. 39. The great Liberty statute : " No freeman shall be taken or imprisoned or be disseized [of his freehold or liberties or his free customs, in the Charter of Henry III], or be out- lawed or exiled or any othenvise destroyed ; nor will we go upon him nor send upon him but by law^ful judgment of his peers or by the law of the land. C. 40. We will sell to no man, we will deny or delay to no man either right or justice." C. 34. The Avrit "praecipe " not to issue to oust local courts of jurisdiction. C. 36. The wa-it of inquest of life or limb [predecessor of habeas corpus] to be given gratis and not denied. C. 45. Jus- tices to be appointed of such as know the law. (Omitted in Charter of Hen. III.) C. 41. Merchants to have safe conduct in England in time of peace, subject only to the ancient and allowed customs not to evil tolls; in time of war they shall be attached, without injury, until it be Imown " how our merchants are treated in such hostile state ; and if ours be safe, the others shall be safe also." C. 42. Any one may leave the kingdom, and re- turn at will, except in time of war (omitted in Charter of Henry III). C. 60. Extends these customs and liberties to the whole nation.
12GG
61 Hen. Ill
92 CONSTITUTIONAL rRINCIPLES [bOOK II
1217 Ilciirv III reissues charier, oniiUinf:^ clauses 12, 14,
45; improving clause 39; and adding clause 43 con- cerning JVIortinain.
1226 Charter of the Forest and reissue of Magna Carta.
1235 C. 2. Slatute of Merlon: no usury permitted against
2(> Hen. Ill ' •' ^ °
minors. Children born before marriage to be illegiti- mate.
1253 In the King's presence, the Archbishop of Canterbury
37 Hen. Ill ^^^ ^|j ^^^^ bishops, "apparelled in pontificals, with
tapers burning" curse and excommunicate all who break
the charters or " the liberties or other customs of the
realm of England."
1264 Citizens of towns first represented in Simon de Mont-
fort's parliament.
The assize of bread and heer. Fixes the price of bread according to the cost of wheat, and two gallons of ale for a penny, with barley at 205. The first French statute; previously all were in Latin.
12G7 Statnfe of Marlborough. Concerns actions concerning
52 Hen. Ill j.p^| estate and trials of clerks for murder. Fanner shall commit no waste.
1275 Westminster the First. First use of the word Par-
liament. Common right to be done to rich and poor. Statute concerns principally criminal law. Nothing to be a wreck from which a dog or cat escapes quick out of the ship. No disturbance of free elections for parlia- ment. Customs tax on wool. Fines to be reasonable. Slander made criminal. Eavishment of women of full age without their consent, or of maidens under age with or without, is now made a crime by secular law, pun- ished by fine and two years' imprisonment. " Excessive toll, contrary to the common custom of the realm," for- bidden in Market towns. Parties indicted, etc., to have the writ de odio et atia "lest they be kept long in prison, like as it is declared in Magna Carta." — This great statute the first complete code of English law.
1275 Statute of Bigamy aimed against priests with more
than one wife refers to the Pope as " the Bishop of Eome."
CHAP. Il]
HISTORICAL DIGEST
93
1279
128:t
11 L:d. I
( Ile-enac-ted iL'Sf) and called the Statute Merchant.)
1284
1285 13 Ed. I
1285
13 Cd. I
1285
1289
IS E:a. I
127G or 1
(Time uncertain
1295
1297 25 Bd. I
1300
1305 33 Ed. I
290
)
Statute of Mortmain.
Statute of Acton Burncl provides for speedy recovery of debts due merchants. Foundation of the modern law of pledge, sales of collateral, etc. If he have no goods to be seized the debtor to be imprisoned, but " the cred- itor shall find him bread and water," and, if a stranger, may recover expenses of liis trip to England (1285). Does away with the Droit D'Aubaine. Provides gen- erally for the recovery of ordinary debts; but Jews are excluded from its provisions.
Statute of Wales. A complete code of procedure for Wales, Avith jury trial.
Westminster the Second. De Donis. A still more complete code than Marlborough. These two codes caused Edward I to be named the English Justinian, but mainly concern criminal law and land ownership. First game law, protecting salmons, c. 47.
Statute of Winchester. Provides for the gates of great towns to be shut at sunset, and no citizen to bear arms, nor taverns to sell drink, after 9 p. m. The duties of the watch described in Dogberry's language.
Statutes for London.
Statute of Bakers. The first pure food law. ment of forestallers.
Punish-
Wcstminster Third, or Quia Emptores. Affects land tenures.
Statute of Quo Warranto. (All offices and privileges may be tried and challenged in the courts.)
Statute concerning Jews: Usury forbidden. Chris- tian debtors to retain half of their substance. Jews must wear mark of two tables joined, on coat. Quia Emptores.
The Model Parliament.
The Confirmation of the Charters. No aid or tax with- out common consent of the realm and for the common profit.
Articles upon the Charters.
First statute of conspiracy (in maintaining law suits only). Else of chancery jurisdiction. Year books begin.
94
CONSTITUTIONAL PRINCIPLES
[book II
1309
1300 3 Kd. 5 Kd.
II
1322
15 Ed. II
1330 1331
9 Ed. 1335
III
1336
10 Ed. Ill
1337
11 Ed. Ill
1340 or 1328 14 Ed. Ill
1340
14 Ed. Ill
1344
18 Ed. Ill
Summary of Grievances: seizure of supplies by King; new customs on wine and cloth and other imports whereby their price to the people is enhanced; current coin debased; petitions of Commons to Parliament not received; delay of actions at law; pardons to felons; trial of civil cases by constables; escheats.
Statute of Stamford. All duties suspended " in order to know what advantage will accrue to the people thereby."
Abolition of " new " customs duties. The King shall not go out of the realm. First statute restraining chan- cery jurisdiction, forbidding arrest, conviction, or for- feiture without jury.
Assertion of right of commonalty to share in legis- lation. End of scutage. Customs become part of per- manent revenue.
Yearly sessions parliament, law for.
Statute against invasion of common-law jurisdiction by the Chancellor.
Statute of Yorl\ Allows free trading in England to foreign merchants. Statute de, Moneta; forbids carrying money abroad. About this time (records contradictory, see 1285) the first law making forestalling penal.
Unanimous verdict of jury of twelve now necessary. De Cihariis. Forbids more than two courses of three dishes each for dinner or supper.
Felony to carry wool out of England or to wear cloth made out of England. No clothes made beyond seas to be brought into England. The right to wear furs to be accorded the nobility only.
All merchants allowed to come freely into the King- dom. Abolition of the laws of staple.* Export of wool restricted.
" The realm and people of England shall not be sub- ject to the King or people of France."
In the royal edict issued the year he assumed the title King of France, King Edward also deprecates any in- ference being drawn from his assuming the Flower de Luces in the first quarter of his arms.
This statute complains that the French king is tr\dng to destroy the English language. The statute itself is
CHAP, iij
HISTORICAL DIGEST
95
1348
1349 23 Kd.
Ill
1330
1350
1 350 25 E}d.
Ill
1352 1353
written in French. All persons may buy or export wool ; the seas to be open to merchants.
Herbert Spencer notes that at this time the Court of Chancery became the Court of Equity with power to relieve in certain cases and a fixed abode. The Black Death.
The first statute of laborers. Eequires all persons able in body under sixty to do labor to such persons as require labor or else be committed to gaol.
No workman or servant can depart from service before the time agreed upon; the old wages and no more shall be given. Victuals shall be sold only at reasonable prices. (Apparently these prices were to be fixed by the mayor.) C. 7 provides that no person shall give anything to a beggar who is able to labor. Barring- ton notes that this statute is probably illegal because the Commons are not mentioned as having joined in its en- actment. It recites the great increase of wages by reason of the plague.
Herbert Spencer has a note that this year privileges of the trade guilds were confirmed by statute after two cen- turies of struggle. Tliis statute, however, cannot be found in the Statutes at Large.
The amended statute of laborers. This law was joined in by the Commons and provides elaborately for the amount of wages to be paid all sorts of service, including agricultural service. Thus, common laborers one penny, mowers three pence a day. At this time the Black Prince, the head of the army, was paid 20 shillings a day, carpenters two or three pence, masons three or four pence, servants one-half a penny, tilers three, thatchers of fern and straw 3 pence a day. (Confirmed in 1378.)
The statute of cloths. C. 3 of this statute contains a more severe provision against forestalling wines and victuals, the buyer to forfeit the value of the amount of goods he forestalled, with two years' imprisonment. This law confirmed in 2 R. II, 1378.
Indictments made necessary by statute.
Statute of the staple re-established and enlarged; cre- ates staple towns, giving a law for the staple of wood, wool, lead, and leather, and fixing the rent of houses in
96
CONSTITUTIONAL PRINCIPLES
[book II
1R54
2H Kd. Ill
1.100
34 Kd. Ill
1303
36 Kd. Ill
1376
51 Ed. Ill
1377
2 Rich. II
staple town at a reasonable rate ; merchandise to be freely sold at tlu' staple, if not forestalled. Consent of l^ar- liament fully recognized as necessary even to indirect taxation (I Taylor, 490).
Another confinnalion of tlic cliariers, notable because this time the great clause in the jMagna Carta uses the words " due process of law " instead of the previous phrases " law of the land," " judgment of his peers/' etc. The export of iron is forbidden.
Confirms the statute of laborers, and allows work in gross, i. e., by contract, if well and lawfully done, and declares void all alliances and covins between masons, carpenters and guilds, chapters and ordinances. La- borers refusing work may be imprisoned. C. 10 punishes laborers departing to another county. This, though claimed to have been repealed by general words in the 5 Elizabeth, was not expressly repealed until 1869.
Parliament required to be held once a year, and pleas to be in the English language.
Fixes the price of hens and chickens, capons and geese, at from one to four pennies, the reason of such a statute being alleged to be the great deamess of such articles in the kingdom. By c. 5 merchants are for- bidden to ingress or enhance the prices of them, and are required to deal in only one kind of goods, and in the same way handicraftsmen were allowed to " use but one mystery." This statute also prescribes in great detail for the apparel of all sorts and conditions of persons, their wives and servants. The part of the law forbid- ding merchants from using more than one kind of mer- chandise was, however, repealed the following year, and it was declared that " all people shall be free as they were at all times before."
Ordinance that women might not sue in court by way of maintenance or reward, especially Alice Ferrers. First impeachment by Commons, Nevil and Latimer.
Last severe statute concerning villeinage, requiring vil- leins refusing to labor to be committed to prison without bail at the complaint of the landlord. Villeins fleeing to cities were made free after a year and a day.
CHAP. Il] HISTORICAL DIGEST 97
i37» First statute concerning frauds by debtors against
creditors.
2 Rich. II
insi All persons not great lords or merchants forbidden to
*** '■ leave the Jiingdom. No goods to be exported or im-
ported save in English ships, except (see amending statute of 1381) where no English ships are to be had. Exportation of gold and silver definitely forbidden. Attendance at Parliament made compulsory.
138.3 Wat Tyler leads rising against villeinage. Growth of
small freeholders. Villeins demand commutation of ser- vice to 4d an acre rent, and freedom of commerce in market towns.
First laws against vagabonds.
Barons protest against Roman law, and judges forbid it to be cited in the courts (T.-L. 145).
1.38S Laborers restricted to their hundred, and following the
same trade as father compulsory after twelve. Wages of agricultural laborers fixed as well as of handicrafts- men at low rates, — shepherds ten shillings a year, plow- men seven, women laborers six shillings. Servants may carry bows and arrows, not swords ; may not play tennis or football. Servants leaving employment required to cdSTy testimonial, and none to receive servants with- out such letter, — the original of the black list. The first Poor Law; those unable to work are to be sup- ported in the town where bom. Villeinage, which be- gan at the Norman Conquest, according to Fitz-Herbert, " because the Conqueror gave lordships with all the in- habitants to do with them at their pleasure to his prin- cipal followers, and they, needing servants, pardoned the inhabitants of their lives, and caused them to do all manner of service," — was now abolished by com- pensation in a money wage payment.
The institution of villeinage is last mentioned in a commission of Queen Elizabeth, 1574, directing Lord Burleigh and others in certain counties to compound with all such bondmen or bondwomen for their manu- mission and freedom.
First act against nuisances, forbidding corruption of rivers, etc.
7
98
1380
1»01
15 Rich.
CONSTITUTIONAL PRINCIPLES
[book II
II
17 Rich. II
1400
2 Uen. IV
1401
2 Uen. IV
1402
1403
1406 1407
1412
1 Hen. VI
1414
1422-1461
Wages of artisans and laborers to be fixed at Easter and Michael mas by a Justice of the Peace, not as before, fixed at a permanent sum.
No man to be compelled to answer before a Lord of matters determinable at common law. Statute limiting admiralty jurisdiction. Eoman law prohibited.
Court of Chancery now established. ( Spence, V, 34-1 . ) '
Foreign merchants permitted to carry away half the value of their imports in money, spending the other half in English commodities.
First secular law against heresy, making it a capital offence. Upon conviction by the ordinary the heretic is to be delivered to the secular arm, i. e., burnt. Note that the trial, however, still remains with the ordinary, i. e., the clerical court.
English burgesses who marry Welsh women disfran- chised.
Laborers not to work feast days, nor for more than half a day before a holiday.
Attorneys to be learned in the law and examined by judges.
Parliament asserts right to ratify treaties and be con- sulted on wars.
Transmutation of metals into gold made a felony, also breach of trust and embezzlement.
Petition of 31 articles.
King ceases to sit in Parliament. Establishment of principle that money bills must originate in the House of Commons.
On account of the felonies committed by Irishmen re- sorting to the University of Oxford, all natives of that country obliged to leave England, except University graduates, clergymen, and lawyers.
Legislation still by petition of House of Commons, but now in English.
Personal property now legally protected. (Spencer.) No one with land of less than twenty shillings per annum to apprentice a son or daughter within a city.
CHAP. Il]
HISTORICAL DIGEST
99
1423 1425
1427
1429
1436 15 Hen.
1436
VI
1439
18 Hen. VI
1444 23 Hen.
VI
1453 31 Hen.
VI
1463
3 Ed. IV
Pound of silver, though worth 32 shillings, fixed at 30s.
Masons forbidden to confederate themselves in chap- ters, etc.
Attempt to fix wages by law (1388) again abandoned. To be fixed by justices as in 1389 "because Masters could not get Servants without giving higher ^Yages than allowed by the Statute."
First disfranchising act, restricts voting qualification to 40s a year freeholders. Eesidence qualifications for both electors and elected — only abolished in 14 Geo. III..
Corn allowed to be exported when below a certain> price. Importation of manufactured articles and of wheat, when under 6s Sd per quarter, forbidden.
First statute against by-laws in restraint of trade, providing for guilds and the corporate companies making unlawful ordinances as to the price of their wares for their own profit and to the common hurt of the people and such made penal and invalid except when approved by the chancellor. This statute re-enacted in 1503, 19 Hen. VII, c. 7.
Exportation of wool still forbidden.
Servant in husbandry proposing to depart from his master must give him half a year's warning. Wages again fixed, overseers 20s, common husbandry 15s, women 10s, etc., etc., with meat and drink. Carpenters, in summer 4J a day, in winter Sd, etc., and meat and drink, or li/^^Z a day in lieu thereof. Women 2i/^(i a day and keep at 2d. Eepealed by 5 Eliz., c. 4.
Prototype of government by injunction. C. 2 recites Jack Cade's Eebellion, declares that in cases of riots, etc., in the future, if any offender be commanded to appear in chancery or before a council but disobey, the chancellor, on certificate thereof, may issue writs of proclamation to appear within one month or suffer for- feiture or outlawry. Statute to continue only seven years.
First corn law prohibiting importation of corn, but only effective when the quarter of wheat or barley, etc.,
100 CONSTITUTIONAL PRINCIPLES [BOOK II
does not exceed a certain price. General prohibition of importation of manufactured articles. First example of reciprocity; 4 Ed., c. 5, prohibits importation of mer- chandise from Burgundy while English cloth is pro- hibited there. Strict law regulating apparel, but repealed twenty years later.
1483 Statutes now begin to be in English. C. 12, first
precedent of prohibitive tariff imposed on manufactured articles only, and not on raw materials.
148.^ " No tanner shall be a currier, nor any currier a
I Heu. VII , „
tanner."
[Hallam, Const. Hist. I, 2.] Six liberty rights now established: taxation by parliament; no person to be imprisoned without warrant; legislation by consent of commons ; criminal causes triable by a jury of the count}', in open court, from whose unanimous verdict no appeal could be made ; officers, administrators, or soldiers liable for acts at the common law ; impeachment of the King's ministers.
1487 Gives special authority to court of Star Chamber over
riots and disorders.
Dispensing power of Crown now denied as to mala in se (things against the common law).
1495 First suits in forma pauperis.
II Hen. VII
1503 Bv-laws of guilds, etc., restraining suits at law un-
19 Hen. VII " .
lawful. So ordinances " against the common weal of the people."
1509 Paucity of legislation due to attempt at personal
1 Hen. VIII ,
government. 1511 License required from physicians and surgeons to
3 Hen. VIII , •
practise.
1513 The Strode Case. Eight of Parliamentary privilege established. Benefit of clergy abolished in murder. Statute of laborers repealed in so far as it imposes a penalty on the master for giving higher wages than the law allows.
1514 Henry VIII manumits two villeins in the following form : " Whereas God created all men free , , ."
CHAP. Il] HISTOKICAL DIGEST 101
1514 The most elaborate of all the acts fixing the wages and
hours of labor, what time he shall begin and end his work, and what time he shall have for his meals and sleep. First general commission of sewerage.
1B23 Wolsey's attempt to intimidate the House of Commons.
Parliament not summoned for seven years.
1530 Bakers, brewers, surgeons, and scriveners declared
not handicraftsmen.
1B33 New act against the forestalling, and rcgrating of
victuals, com and especially fish.
1534 Henry VIII declared supreme head of the Church of England. First game law against wild fowl.
1535 Statute of uses and wills. Third conviction for join- ing trade union punished with loss of ear. (H. Spencer, but not in statutes at large.) The law, 27 Hen, VIII, c. 25, is aimed only at sturdy vagabonds and beggars.
1536 First State poor law.
1539 Dissolution of monasteries. The " Bloody Statute " against heresy. The sacraments, celibacy, masses, con- fessions insisted upon. Punishment, burning. The act is entitled " An Act abolishing diversity of opinion on certain articles concerning the Christian religion."
1540 First act against witchcraft. First act establishing prescriptions in land titles. First act for the breeding of horses, to be over fifteen hands.
1539 Act giving royal proclamations of the King in Council
the force of law.
Abuse of bills of attainder.
1542 C. 4. First hanhruptcy act, empowering distribution
34 Hen. VIII ^£ effects, with penalties against absconders and fraudu- lent debtors. Prohibits Tindale's translation of the Bible and directs that the ISTew Testament in English shall not be read by women, prentices, and laborers under the degree of yeomen.
1545 Usury ]a,w — 10'^°.
1548 Marriage of priests made lawful.
102
CONSTITUTIONAL PRINCIPLES
[book II
lK4ft
» A: 4 Ed. VI
16S2
inr>3
7 Ed. VI
1656
1 P. <& M.
1RC2 6 EUz.
1566
1570 13 Eliz.
C. 5. Unlawful assemblies of twelve to alter laws or abate prices, etc. First (High Church) Prayer Book.
Tlie last act against regraters, forestallers, and in- grossers. 5 Ed. VI, c. 14, made perpetual by 13 Eliz., and repealed by 12 Geo. III. Origin of anti-trust laws.
Two witnesses required to treason.
First precedent of a coal and fuel law, proliibiting middlemen. The Thirty-nine Articles.
Act for relief of weavers, prohibiting "the ingrossing of looms," anticipating Marx.
C. 4. The great statute of laborers. Consolidation of all previous laws. Eecites that wages were fixed too small, and not reasonable to this time. Provides for many trades, and no person to be hired for less than a year. Compels all persons not having an estate of 40s per annum to serve in any of the mentioned handicrafts. Unmarried persons under 30 not having been brought up to any special craft, if not in a nobleman's house- hold, may be compelled to labor at the request of any person using an art or mystery. Other persons between 12 and 60 compelled to serve in husbandr}'. None may leave or discharge before a year's time, except on order of a justice of the peace, and none may leave his city or town without a testimonial. Hours of labor between March and September from 5 a. m. to 7 p. m. with 214 hours for meal times, and drink times and sleep 2I/2 hours. From September to May, dawn to sunset. Wages to be fixed by justice of the peace. Unmarried women between 12 and 40 to serve in like manner; and elaborate rules for the apprentices. None may use any manual art who has not been apprenticed to the same. Masters prohibited from discharging servants before their term without reasonable cause or ^ quarter's warn- ing. No servant to be hired without testimonial.
Speaker Onslow tells Elizabeth she is subject to the common law.
The Pope forbids attendance at the English Church.
C. 5. Fraudulent conveyances against creditors de- clared void.
CHAP. Il]
HISTORICAL DIGEST
103
1571
1S81
1S8S 1572 1601 14 BIlz.
1603
1G04 1606
1609
1615
1616
1617
1623
21 James I
Cominons complain of monopolies. First punishment for bribery at elections.
First recorded expulsion of a member of the House of Commons.
Strict censorship of the press.
C. 5. The first law against vagabonds and poor law, completely re-enacted in 43 Eliz., c. 2, establishing the principle of support of the poor by the public, i. e., parish, only that the able who refuse work may be sent to the house of correction by the magistrates.
Many acts regulating trades, and encouraging agricul- ture, rebuilding villages, etc., passed during this period.
Height of the monopoly abuse. Elizabeth promises to do away with them.
James attempts to control elections. Asserts Divine Right.
The " Form of Apology."
Patents granted for the exclusive sale of article not inventions. Beginning of laws licensing liquor sellers, aimed against drunkenness. James omits to summon Parliament and imposes a duty on imports without its consent.
The Commons object to laws by proclamation, and the King's Bench sustains them.
James attempts to get the opinion of the judges in advance and separately.
Case of Commendams. Disgrace of Coke. Judges now hold office at the King's pleasure.
Last laws of villeinage.
C. 3. The statute of monopolies, prohibiting of such monopolies both granted and to be granted, giving remedy in double or treble damages, making exceptions of the charters to municipal corporations, of the trade guilds and fellowships, and of copyrights and tavern licenses.
Legal rate of interest now 8^.
1628
3 Charles I
The Petition of Right.
104 CONSTITUTIONAL PRINCIPLES [BOOK II
1C41 Massachusetts Body of Liberties. The Grand Bemon'
strance.
1642 Arrest of the Five members. Parliament abolishes
the Star Chamber and all but common law courts.
i«43 First Business Corporation: the Fellowsliip of Mer-
chant Adventurers.
(Co'minon- The Instrument of Government.
TFeulth)
16G6 Appropriation Act.
1667 The Statute of Frauds.
1670 Immunity of jurymen for their verdicts finally estab-
lished. General verdicts vindicated.
1679 The Habeas Corpus Act.
31 Cbarles II ^
Standing armies begin, in England. The Mutiny, or Army Act.
1685 Act to encourage the building of ships in England.
Tax on foreign ships employed in coasting trade.
1689 Bill or Declaration of Rights.
IVilliam III
1691 Eates of carriers fixed by law.
1700 -^ct of Settlement. Judges' tenure made for life. No
pardon pleadable to impeachment.
1707 Last royal veto of an Act of Parliament.
1716 The Septennial Act.
1765
General warrants declared illegal by Lords Camden and Mansfield.
1776 Virginia Bill of Rights.
Declaration of Independence.
1780 Massachusetts Bill of Rights.
The Massachusetts Constitution.
1787 Constitution of the United States.
1789 First Ten Amendments U. S. Constitution.
1794 Eleventh Amendment U. S. Constitution.
1804 Twelfth Amendment TJ. S. Constitution.
CHAP, ii]
HISTORICAL DIGEST
105
1840 About this time the invention of the business corpora-
tion with limited liability to stockholders.
18G5 Thirteenth Amendment U. S. Constitution.
I860 Fourteenth Amendment U. S. Constitution.
1870 Fifteenth Amendment U. S. Constitution.
18ST Interstate Commerce Act.
1890 Anti-Trust (Sherman) Act.
1003 Bureau of Corporations established. Discrimination
(Elkins) Act.
1906 Pure Food Law.
1906 Eailway Eate Eegulation (Hepburn) Act.
106 CONSTITUTIONAL PRINCIPLES [BOOK II
CHAPTER III
DIVISION OF NATIONAL AND STATE POWER
The frontispiece graphically represents the exact division of polit- ical and legislative power between the States and the Federal Gov- ernment as well as the large field reserved by the Constitution to the people; and it does this even to the finer shades of distinction, as when powers delegated to the Nation are, at the same time, for- bidden to the States or when they are shared by the Nation and the States, or when nothing is said about it, so that the matter must depend upon the interpretation of the Supreme Court. Thus, the entire sovereign and legislative power we will assume represented by the entire circle. Then, drawing a zone " A " on the northwest of the circle nearly to the centre, we will assume that " A," colored blue with horizontal lines, comprises all the powers which are dele- gated or permitted to the Federal Government. A corresponding zone " B," colored blue with vertical lines, will represent in like manner the powers expressly reserved by the Federal Constitution to the States; though it is obvious that all powers not comprised in the zone " A " must necessarily remain either with the States or with the people. It will be observed that these two zones intersect. The area covered by both " A " and " B " will naturally and mathe- matically represent the powers given, by the express words of the Constitution, to both the Nation and the States. These, naturally, are few in number.
Now in a manner precisely corresponding, we can represent those powers which are denied or forever withheld, both to the United States and to the States, by the wording or necessary implication of the Constitution. These denied or withheld powers we have colored red. Thus, the zone " X," with horizontal lines, comprises all those matters which are expressly or by necessary implication forbidden to the Federal Government ; in like manner zone " Z," drawn red with perpendicular lines, comprises all those matters which are ex- pressly or by necessary implication forbidden to the States. Again,
CHAP. Ill] DIVISION OF NATIONAL AND STATE POWER 107
where these two zones intersect, is the area "XZ," comprising many most important matters which, by the Federal Constitution, are for- bidden to both the Nation and the States; that is to say, matters wliich the people expressly withheld from either government they were creating. In a sense, therefore, this area " XZ " is analogous to " Y," the central area, outside of any zone permitted to either Nation or State ; the dill'erence being that our area " XZ " will rep- resent those matters which are merely denied to both State and Federal power, while the area " Y " will represent those which are, by the wording of the Constitution itself, expressly reserved or declared to remain with the people.
But we have not yet exhausted all our shades of meaning. The intersection of the zone " B," matters permitted to the States, with the zone " X," matters forbidden to the Federal Government, results in the area " BX," the peculiar domain of States' rights ; that is to say, those powers which are both permitted to the States or reserved to the States, and, by the wording of the Constitution, ex- pressly denied or forbidden to the Federal Government. On the other hand, the corresponding area " AZ " in like manner represents those powers delegated to the United States and forbidden expressly to the States; that is to say, " AZ " is the peculiar domain of the imperialist or the supporter of centralization; those great matters, notably interstate commerce, which, by interpretation or otherwise, he would have given over solely to the National Government, and- withheld from any control by the States.
It is not too much to say that if we knew exactly what matters fall within the area " AZ " and the corresponding area " BX " and the central domain of " Y," we should have the solution of all the questions that are now vexing both the constitutional lawyer and the general public; for these neutral grounds, these contested areas, grapliically represent both what is given or denied to the Federal Government, what is reserved to the States, and finally, what has never been parted with by the people. Under the extreme inter- pretation at some times proposed by President Eoosevelt, the area " Y " almost disappears ; while the area " BX," or indeed the whole zone of " X," is much shrunken. On the other hand, according to Thomas Jefferson and the old strict-construction Democrats, it is the area " Y " that largely expands, and the area " AZ," or in- deed the whole zone " Z," what is forbidden to the States, largely diminishes. If the reader of this book will take the diagram and carefully, for himself, decide (for on some clauses there may be a difference of opinion) just what sentences or sections of the Consti- tution, or matters or powers mentioned therein, faU witliin each of
108 COXSTITUTIONAL PRINCIPLES [bOOK II
these nine divisions of our sj)liore of tlie total powers of government, lie will almost, by the very study re(iuired, the close examination of the Constitution necessary, become a good American constitu- tional lawyer. But it is needJess to say that hundreds of decisions of the Supreme Court have been required to settle these most debatable areas, " AZ," " BX," and " Y"; and many more are still required before we can be certain on all points. That great power to control commerce among the States, under which it seems it is now proposed to bring the Federal Government into all the domains of law and life in such a manner as to revolutionize our whole system, does it, for instance, all fall within the area " AZ " ? or may it go into the rest of the zone of " A," that is, a matter over which some control or power, co-ordinate, not subordinate to the Federal Gov- ernment, rests or remains with the States? In like manner, does the power of imposing an income tax belong only in the narrow area of " BX " ? or may it go into the other divisions of the zone of " B," powers given or reserved to the States, which yet may be exercised concurrently by the Nation?
With this explanation I pass (with some diffidence, for my readers may not agree with me on all points) to the division I have made into our nine possible categories of the matters and powers enumer- ated in the Federal Constitution:
AZ
FEDERAL POWERS WHICH ARE FORBIDDEN TO THE STATES
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. I, 1. The House of Representatives shall choose their Speaker and other offi- cers and shall have the sole power of impeacliment. I, 2, (5).
The Senate shall choose their other officers, and also a President pro tempore in the absence of the Vice-President. ... I, 3, (5).
The Senate shall have the sole power to try all impeachments. I, 3, (6).
Each house shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each house may provide. I, 5, (1).
Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two tliirds, expel a mem- ber. I, 5, (2).
Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy, and the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal. I, 5, (3).
Every bill wliich shall have passed the House of Representatives and the Senate shall, before it become a law, be presented to the President of the United States ; if he approve he shall sign it, but if not he shall return it, with his ob-
CHAP. Ill] DIVISION OF NATIONAL AND STATE POWER 109
jections, to that house in which it shall have originated, etc. If approved by two-thirds of [each] house it shall become a law. I, 7, (2).
The Congress shall have power to lay and collect . . . duties, imposts, . . . ... to pay the debts and provide for the common defense and general wel- fare of the United States. ... I, 8, (1).
To borrow money on the credit of the United States; I, 8, (2).
To regulate commerce with foreign nations and among the several States, and with the Indian tribes; I, 8, (3).
To establish an uniform rule of naturalization, and uniform laws on the sub- ject of bankruptcies throughout the United States ; I, 8, (4).
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; I, 8, (5).
To establish post-offices and post- roads ; 1,8, (7).
To constitute tribunals inferior to the Supreme Court; I, 8, (9).
To define and punish piracies and felonies committed on the high seas and offences against the law of nations; I, 8, (10).
To declare war, grant letters of marque and reprisal, and make rules con- cerning captures on land and water; I, 8, (11).
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; I, 8, (12).
To provide and maintain a navy; I, 8, (13).
To make rules for the government and regulation of the land and naval forces ; I, 8, (14).
To provide for calling forth the militia to execute the laws of the Union, sup- press insurrections, and repel invasions; I, 8, (15).
To provide for organizing, arming and disciplining the militia, and for gov- erning such part of them as may be employed in the service of the United States. ... I, 8, (16).
To exercise exclusive legislation [over the District of Columbia and] all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings ; 1,8, (17).
To make all laws wliich shall be necessary and proper for carrying into exe- cution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof I, 8, (18).
. . . the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. I, 10,(2).
The executive power shall be vested in a President. . . . He shall hold his office during the term of four years, and together with the Vice-President, chosen for the same term, be elected as follows. II, 1, (1).
The Congress may determine the time of choosing the electors and the day on which they shall give their votes, wliich day shall be the same throughout the United States. II, 1, (4).
In case of the removal of the President from office, or of his death, resigna- tion, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly until the disability be removed or a President shall be elected. II, 1, (6).
The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he may have been elected, and he shall not receive within that period any other emolument from the United States, or any of them. II, 1, (7).
110 CONSTITUTIONAL PRINCIPLES [DOOK II
Tlie President shall be Commander-in-chief of the Army and Navy of tlio United States, and of the militia of tlie several States when called into the actual service of the United States; he may recjuire the opinion, in writinjz;, of the priiu'ij)al oflicer in each of the executive departments, upon any subject relating to the duties of their respective oflices, and he shall have power to grant reprieves and pardons for olTences against the United States, except in cases of impeachment. II, 2, (1).
He shall have power, by and with the advice and consent of the Senate, to make treaties, j)rovided two-thirds of the Senators present concur; and he shall nominate, and, by and witli the advice and consent of the Senate, shall ajjpoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other oflicers of the United States, whose api)ointments are not herein otherwise provided for, and which shall be established by law ; but the Con- gress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of depart- ments. II, 2, (2).
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions wliich shall expire at the end of their next session. II, 2, (3).
He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient ; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall tliink proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faitlifuUy executed, and shall commission all the officers of the United States. II, 3.
The President, Vice-President, and aU civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. II, 4.
The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. Ill, 1.
The judicial power shall extend ... to all cases affecting ambassadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States; between a State and citizens of another State ; between citizens of different States ; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects. Ill, 2, (1).
In all cases affecting ambassadors, other pubfic ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. Ill, 2, (2).
The Congress shall have power to declare the punishment of treason. . . . Ill, 3, (2).
. . . the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. IV, 1.
The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States ; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or of any particular State. IV, 3, (2).
New States may be admitted by the Congress into this Union. . . . IV, 3, (1).
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the
CHAP. Ill] DIVISION OF NATIONAL AND STATE POWER 111
legislatures of two thirds of the several States, shall call a convention for pro- posing amendments. ... V.
. . . But Congress may, by a vote of two thirds of each house, remove such disability. Amendment XIV, 3,
POWERS GRANTED TO THE UNITED STATES SIMPLY
... in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, . . . do ordain and establish this Constitution for the United States of America. (Preamble.)
. . . direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers. ... I, 2, (3).
The Vice-President of the United States shall be President of the Senate. ... I. 3, (4).
. . . the Congress may at any time by law make or alter such regulations [elections for Senators and Representatives]. I, 4, (1),
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law and paid out of the Treasury of the United States. I, 6, (1).
. . . the Senate may propose or concur with amendments as on other bills [bills for raising revenue]. I, 7, (1).
The Congress shall have power to lay and collect taxes, . . . and excises, • • • I'8, d).
To provide for the punishment of counterfeiting the securities and current coin of the United States. I, 8, (6).
To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. I, 8, (8).
To make all laws which shall be necessary and proper for carrying into execu- tion the foregoing powers, etc. ... 1,8, (18). See in AZ.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. . . . Ill, 2, (1).
The electors shall meet in their respective States and vote by ballot for President and Vice-President [the general method of election]. Amendment XII.
Congress shall have power to enforce this article by appropriate legislation [the article against slavery]. Amendment XIII, 2.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article [the Fourteenth Amendment]. Amendment XIV, 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of the article [the Fifteenth Amendment]. Amendment XV, 2.
AB
POWERS COMMON TO THE NATION AND THE STATES
No State shall, without the consent of Congress, lay any imposts or duties on imports or exports. ... I, 10, (2).
[or] lay any duty of tonnage. ... I, 10, (3).
112 CONSTITUTIONAL PRINCIPLES [BOOK II
. . . nor any State be formed by the junction of two or more States or parts of States, without tlie consent of the Legislatures of the States concerned as well as of the Congress. IV, 3, (1).
Tiie Ihiited States . . . shall protect each of them against invasion [the States] and on ai)plication of the loj:;islaturc, or of the executive [when the legislature cannot be convened], against domestic violence. IV, 4.
'1 he Congress ... on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments. V.
POWERS RESERVED IN THE STATES (SIMPLY).
. . . each State shall have at least one Representative. I, 2, (3).
[A State may lay imposts or duties] absolutely necessary for executing its inspection laws. I, 10, (2).
A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of tlie executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. IV, 2, (2).
[House shall vote, by States, for President, in case of no electoral majority, from the three liighest on the list, each State having one vote]. Amendment XII.
BX
STATE POWERS FORBIDDEN TO THE UNITED STATES
The House of Representatives shall be composed of members chosen . . . by the people of the several States. I, 2, (1).
When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies. I, 2, (4).
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years, and each Senator shall have one vote. I, 3, (1).
... if vacancies happen by resignation or otherwise during the recess of the Legislature of any State, the executive thereof may make temporary ap- pointments until the next meeting of the legislature, which shall then fill such vacancies [in the Senate]. I, 3, (2).
The times, places, and manner of holding elections for Senators and Repre- sentatives shall be prescribed in each State by the Legislature thereof ; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. I, 4, (1).
. . . reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. I, 8, (16).
The migration or importation of such persons (slaves) . . . shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight. ... I, 9, (1).
Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Rep- resentatives to which the State may be entitled in the Congress. ... II, 1, (2).
The powers not delegated to the United States by the Constitution, nor pro- hibited by it to the States, are reserved to the States respectively. . . . Amend- ment X.
CHAP. Ill] DIVISION OF NATIONAL AND STATE POWER 113
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. Amendment XI.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. . . . Amendment XIV, 2.
POWERS FORBIDDEN TO THE UNITED STATES SIMPLY
Representatives and direct taxes shall be apportioned among the several States according to their respective nmnbers . . . excluding Indians not taxed. ... I, 2, (3).
prhe Senators] . , . shall be divided as equally as may be into three classes ... I, 3, (2).
The . . . President of the Senate . . . shall have no vote, unless they be equally divided. I, 3, (4).
[The Senate when sitting to try impeachments shall] be on oath or affirma- tion. When the President of the United States is tried, the Chief Justice shall preside : and no person shall be convicted without the concurrence of two- tliirds of the members present. I, 3, (6).
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. ... I, 3, (7).
[The meeting of Congress] shall be on the first Monday in December, unless they shall by law appoint a different day. I, 4, (2).
Neither house, during the session of Congress, sliall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. I, 5, (4).
No Senator or Representative shall, during the time for wliich he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time. ... I, 6, (2).
All bills for raising revenue shall originate in the House of Representatives. ... I, 7, (1).
(Vetoed bills) . . . the votes of both houses shall be determined by yeas and nays, and the names of persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President \vitliin ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in Uke manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. I, 7, (2).
Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjourn- ment) shall be presented to the President of the United States ; and before the same shall take effect, shall be approved by him or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. I, 7, (3).
... all duties, imposts and excises shall be uniform throughout the United States. 1, 8, (1).
... no appropriation of money [to raise and support armies] . . . shall be for a longer term than two years. I, 8, (12).
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. I, 9, (2).
8
11-4 CONSTITUTIONAL PRINCIPLES [BOOK II
No bill of attainder or ex post facto law sliall be passed. I, 9, (3). -No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration iiereinljefore dircc^ted to be taken. I, 9, (4).
No tax or duty siiall be laitl on articles exported from any State. I, 9, (5).
No preference siiall be given by any regulation of commerce or revetme to the ports of one State over tliose of another ; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another. I, 9, (G).
No money shall be drawn from tlie Treasury but in consecjuence of appro- priations made by law. ... I, 9, (7).
No title of nobility siiall be granted by the United States; and no person holding any office of profit or trust under them shall, witliout the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign State. I, 9, (8).
. . . The judges, botii of the supreme and inferior courts, shall hold their offices during good behavior. . . . (See also in Y.) Ill, 1.
[The trial of crimes] . . . not committed within any State . . . shall be at such place or places as the Congress may by law have directed. Ill,
2, (3).
Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. ... Ill,
3, (1).
... no attainder of treason shall work corruption of blood, etc. Ill, 3, (2).
... no State, without its consent, shall be deprived of its equal suffrage in the Senate. V.
All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as vaUd against the United States under tliis Consti- tution as under the confederation. VI, 1.
... no religious test shall ever be required as a qualification to any office or public trust under the United States. (See also in Y.) VI, 3.
Congress shall make no law respecting an establishment of religion, or pro- hibiting the free exercise thereof ; or abridging the freedom of speech or of the press. . . . Amendment I. (See also under Y.)
. . . the right of the people to keep and bear arms shall not be infringed. (See under Y.) Amendment II.
No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. (See under Y.) Amendment III.
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirma- tion, and particularly describing the place to be searched, and the person or things to be seized. Amendment IV.
No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation. Amendment V.
[Trial by jury of the vicinage. Witnesses, evidence, etc.] (See under Y.) Amendment VI.
[Trial by jury in civil cases.] (See under Y.) Amendment VII.
[Bail, fines, punishments.] (See under Y.) Amendment VIII.
[Powers not delegated to the United States forbidden.] (See under BX.) Amendment X.
The validity of the public debt of the United States, authorized by law,
CHAP. Ill] DIVISION OF NATIONAL AND STATE POWER 115
including debts incurred for payment of pensions and bounties for ser\nces in suppressing insurrection or rebellion, shall not be questioned. . , . Amend- ment XIV, 4
POWERS FORBIDDEN TO THE STATES SIMPLY
No State shall enter into any treaty, alliance, or confederation ; grant letters of marque and reprisal ; coin money ; emit bills of credit ; make anytliing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobihty. I, 10, (1).
No State shall . . . lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws. . . . (See also under AB.) I, 10, (2).
No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or com- pact with another State or \\ith a foreign power, or engage in war, unless actu- ally invaded or in such imminent danger as will not admit of delay. I, 10, (3).
... no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. II, 1, (2).
Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. . . . IV, 1.
The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. IV, 2, (1).
Fugitive slave provision, [obsolete^ IV, 2, (3).
No State shall make or enforce any law which shall abridge the pri\dleges or immunities of citizens of the United States ; nor shall any State deprive any person of Ufe, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Amendment XIV, 1.
. . . when the right to vote at any election for the choice of electors for President and Vice-President . . . , Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced [in proportion]. Amendment XIV, 2.
No person shall be a Senator or Representative ... or elector ... or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath ... to support the Constitution of the United States, shall have engaged in insurrection or rebeUion against the same, or given aid or comfort to the enemies thereof. . . . Amendment XIV, 3.
ZX
POWERS EXPRESSLY FORBIDDEN TO BOTH THE NATION AND THE STATES
. . . the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature. I, 2 (1).
. . . The number of Representatives shall not exceed one for every thirty thousand. ... I, 2, (3).
No person shall be a Representative who shall not have attained the age of
116 CONSTITUTIONAL I'RINCirLES [BOOK II
twenty-five years, and been seven years a citizen of the United States. . . . 1, 13, (•-').
The 8enateof the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years. ... I, 3 (1).
No person shall be a Senator wlio sliall not have attained the age of thirty years, and been nine years a citizen of the United States. ... I, ',i, (3).
No person shall be a Senator who shall not have attained to the age of thirty years . . . and who shall not, when elected, be an inliabitanl of that State for which he shall be ciioscn. I, 3 (3).
[Senators and KepresentativesJ shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during tiieir attendance at the session of their respective houses, and in going to and returning from tiie same; and for any speech or debate in either house they shall not be questioned in any other place. I, G, (1).
No tax or duty shall be laid on articles exported from any State. (See also 1,10,(2).) 1,9,(5).
No person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President ; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. II, 1, (5).
... no new State shall be formed or erected within the jurisdiction of any other State. ... IV, 3, (1).
The United States shall guarantee to every State in this Union a republican form of government. . . . IV, 4.
This Constitution, and the laws of the United States which sliall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be tlie supreme law of the land ; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. VI, 2.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to tlieir jurisdiction. Amendment XIII, 1.
. . . neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave ; but all such debts, obligations, and claims shall be held illegal and void. Amendment XIV, 4.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Amendment XV, I.
RIGHTS RESERVED OR EXPRESSLY RETAINED IN THE PEOPLE
We, the people of the United States, in order to . . . secure the blessings of liberty to ourselves and our posterity ... do ordain and establish this Con- stitution for the United States of America. Preamble.
All legislative powers herein granted shall be vested in a Congress [separa- tion of powers]. . . . (See also II, 1 ; III, 1.) I, 1.
The House of Representatives shall be . . . chosen ... by the people of the several States. ... I, 2, (1).
[Every Senator or Representative must be] an inhabitant of that State in which he shall be chosen. I, 2, (2) ; I, 3, (3).
. . . each State shall have at least one Representative. ... I, 2, (3).
Cir.VP. Ill] DIVISION OF NATIONAL AND STATE lOWKR 117
[Persons impeached] shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law. I, 3, (7).
The Congress shall assemble at least once in every year. ... I, 4, (2).
[Privilege of Senators from arrest, etc.] (See under XZ.) I, G, (1).
... no person hoUiing any office under the United States shall be a member of either house during liis continuance in ofhce. I, 6, (2).
All bills for raising revenue shall originate in the House of Representatives. ... I, 7, (1).
... all duties, imposts, and excises shall be uniform throughout the United States. I, 8, (1).
... no appropriation of money ... [to raise and support armies] shall be for a longer term than two years. I, 8, (12).
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. I, 9, (2).
No bill of attainder or ex post facto law shall be passed. I, 9, (3).
[No direct Federal taxation]. I, 9, (4).
No money shall be drawn from the Treasury but in consequence of appro- priations made by law ; and a regular statement and accovmt of the receipts and expenditures of all public moneys shall be published from time to time. I, 9, (7).
No title of nobiUty shall be granted by the United States. ... I, 9, (8).
(The President) before he enter on the execution of his office . . . shall take . . . oath to . . . preserve, protect, and defend the Constitution of the United States. II, 1, (8).
The President, Vice-President, and all civil officers . . . shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. II, 4.
The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office. Ill, 1.
The trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been com- mitted. . . . Ill, 2, (3).
. . . No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court . . . but no at- tainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. Ill, 3.
The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. IV, 2, (1).
The United States shall guarantee to every State in this Union a repubUcan form of government. . . . IV, 4.
[Amendments to this Constitution shall be valid] when ratified by the legis- latures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress. ... V.
. . . the judges in every State shall be bound thereby [this Constitution] anything in the Constitution or laws of any State to the contrary notwithstand- ing. VI, 2.
The Senators and Representatives . . . and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath . . . to support this Constitution ; but no religious test shall ever be required as a qualification to any office or public trust under the United States. VI, 3.
Congress shall make no law [respecting religion — see in X] or abridging freedom of speech or of the press ; or the right of the people peaceably to as- semble and to petition the government for a redress of grievances. Amend- ment I.
118 CONSTITUTIONAL PRINCIPLES [bOOK II
A well-rejiiilated militia boinp norossary to the Kcriirity of a free State, the right of the people to ia-ep aiul l)car arms shall not be infringed. Amend- ment II.
No soldier shall, in time of j)eare, he (luartered in any hou.se without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment III.
The riglit of the people to be secure in tlicir persons, houses, papers, and effects, against unreasonal)le searciies ami seizures, .shall not be violated, and no warrants shall issue but upon {)robable cause, supported by oath or aflirma- tion, and particularly describing the place to be searched, and the person or things to be .seized. Amendment IV.
No person .sliall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in ca.ses arising in the land or naval forces, or in the militia, when in actual .service in time of war or public danger; nor .shall any penson be subject for the same offence to be twice put in jeopardy of life or limb ; nor .shall be compelled in any criminal case to be a witness again.st himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation. Amendment V.
In all criminal prosecutions the accused shall enjoy the right to a .speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the assi-stance of coun.sel for his defense. Amendment VI.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than accord- ing to the rules of the common law. Amendment VII.
Exce.s.sive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment VIII.
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Amendment IX.
The powers not delegated to the United States by the Constitution, nor pro- hibited by it to the States, are reserved to the States respectively or to the peo- ple. Amendment X.
[President elected by electors chosen as the State legislatures may direct, but in fact by the people]. Amendment XII.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party sliall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction. Amendment XIII, 1.
All persons born or naturalized in the United States, and subject to the juris- diction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privi- leges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property, w-ithout due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws. Amend- ment XIV, 1.
BOOK III
THE STATE CONSTITUTIONS DIGESTED, ANNOTATED, AND COMPARED
WITH THE
FEDERAL CONSTITUTION
THE STATE CONSTITUTIONS
Section 1. Explanatory preface. Of the contents of the various State Constitutions, a threefold division may roughly be made; they usually contain, first, the Declaration of Rights; second, the political constitution and organization of the State; and third, very varied and miscellaneous restrictions and injunc- tions concerning legislation. I have attempted to incorporate herein the entire Constitution of every State, excepting only minute and detailed provisions, not of general interest, concerning minor administrative offices, courts, and municipal government. Where the wording in the several States is not identical, I have been careful to give the various forms when there is any possibility of a difference of meaning or legal effect.
This third part has grown out of all proportion to the others ; in fact, in the newer Constitutions, particularly in the West, it far ex- ceeds the other two in bulk and contains such a code of directions or inhibitions as to leave very little real legislative power to the Legislature. The Louisiana Constitution, for instance, contains one hundred and forty-four pages ! But still more notable is that of Alabama, covering sixty-nine pages of fine print, and those of the eight new far Western States. Even in States which do not adopt the initiative and referendum, as some of these W^estern States do, the adoption of such an elaborate Constitution is practically direct legislation, "Legislation by the people." Naturally, there is a tend- ency in such cases to more frequent amendment ; necessarily so when the Constitution, instead of embodying a few great principles and the broad framework of the State government, attempts to pre- scribe infinite details of legislation and of administrative machinery. Historically, and from the point of view of a Constitutional law}^er, such Constitutions are entirely unscientific. The late Governor Russell of Massachusetts, in his address before the Yale Law School, well pointed out the objections of putting such a mass of
122 THE STATE CONSTITUTIONS [BOOK III
things into tlic Constitution, both as (lcj)riviiig tlio 1 jogislature of all sense of responsibility, and as (liscrediting the Constitution itself. Such a vast mass of directions cnilxxlying merely the temporary desires of a present majority, when either necessity or popular opinion requires a change, involves a necessity of such continual amendment and frequent alteration as to bring a written Consti- tution into contempt.
It must be borne in mind that this is a comparative digest of constitutional provisions only; it does not follow, of course, that there may not be in the several States statutes on the same subject.
All the forty-six States have Constitutions ; not so the Territories, or the District of Columbia. Arizona, however, has a "Bill of Rights," though it has naturally no greater sanction than an ordi- nary territorial statute. In a few cases I have noted similar pro- visions in the United States laws which restrict the legislation of New Mexico and Arizona. References are also made in the Bill of Rights to the provisions of the United States Constitution or of the English and American constitutional documents on which such articles are founded; and the principles are fully discussed in the notes, and elsewhere.
It may generally be said that the Constitutions of the Western States are more elaborate, more cumbrous, and more frequently amended than those of the Eastern. One reason for this is, that in the West the State Constitution is frequently made the instru- ment for enacting laws which are in most States unconstitutional; another, that in the West many things are put in the Constitution which are elsewhere left to the Legislature. The constitutional provisions are, of course, much more stable than ordinary laws. Nevertheless, the practice is, as has been said, an objectionable one.
For the date of the latest State Constitutions and where they may be found, see the Table of Citations. States are cited in alphabeti- cal order, and the words " Article " or " Section " are left out. That is to say, 1, 14, would be Article 1, Section 14, or whatever other division is used in the Constitution in question. If there is no citation, refer to the one of the same State last preceding. Many of the States, however, have the articles of the Constitution num- bered continuously. The asterisk sign is used in the rare in- stances where, to complete the subject, a statute is cited.
Since the first edition of this part, published as the first part of Volume I. of "American Statute Law," in 1886, no less than eighteen
BOOK III] THE STATE CONSTITUTIONS ' 123
new State Constitutions have been adopted, counting Oklahoma. Of these, eight are of new Western States, but the other ten are new Constitutions adopted in the Eastern or Southern States. It is notable that none of the States of the middle West or New England, with the exception of New Hampshire, have adopted new Constitu- tions during this period of twenty years. The industry of constitution making is confined to the more radical States, or to those which have the greatest distrust of their legislators. My thanks are due to Mr. Robert H. Whitten of the New York State Library for a com- plete table of constitutional amendments adopted in the last twenty years. Owing to the negligence or stupidity of the State author- ities in not printing these with the annual laws, this is a difficult matter to ascertain. In Oregon, indeed, where laws and constitu- tional amendments are adopted by initiative, the Secretary of State complains that they are "full of bad spelling, punctuation, omis- sions, and repeated words ! " It appears, however, that only two states — Tennessee and Wyoming — failed to amend their Consti- tutions in the last twenty years, while California did so forty-two times !
§ 2. Interpretation of the State Constitutions. — In some of the newer Constitutions we find the provision that the Constitution itself is mandatory and prohibitory, except where otherwise declared by express words. ^
^ Cal. 1, 22; Mon. 3, 29; N. D. 21; would seem to be, if the Constitution S. C. 1, 29; Utah 1, 26; Wash. 1, 29. defines Trusts or declares the law in In other States, whether the Constitu- any way, it is self -executing ; other- tion is self-executing is sometimes an wise if it merely says that the legisla- important question. It has been par- ture shall enact laws to a certain effect, ticularly debated in Kansas and Ohio, If it do both — as has happened in where new constitutional amendments several States — we are in a quandary. reUeving corporations and stockholders The better rule here would be valeat from hability have not been followed quantum valere potest. White (§ 14), by legislation to carry them into effect; cites some Pa. cases where it was held and in States whose constitutions have directory merely, articles against Trusts, etc. The rule
124 THK STATK CONSTITUTIONS [BOOK III
Paet I
BILL OF RIGHTS
§ 3. Note io Part I. — The Bill of Rights of the English Statute ' has been largely adopted in the States of the Union, somewhat modi- fied and largely amplified by the addition of new provisions of a similar nature, founded on Magna Carta, the Declaration of Independence and the Constitution of the United States, old Province charters, and the "\^irginia and IMassachusetts bills of rights.
§ 4. Bill of Rights Irrepcalahlc.- — Ten States declare that "to guard against transgression of the high powers delegated to the Legislature by the Constitution, everything in the Bill of Rights is declared to be excepted out of the general powers of Government, and shall forever remain inviolate; and all laws contrary to the Bill of Rights are void." ^ Meaning of course constitutions as well as statutes, — a striking attempt to bind posterity.
"When men enter into a state nf society they surrender up some of their natural rights to that society in order to insure the protec-
* 1 W. & M. Sess. 2. This declara- terity would not, however, sur\'ive
tion of rights, however, represents but omission in a new State Constitution,
principles old as Anglo-Saxon freedom, A precedent of such attempt may,
rewon from Norman or Stuart kings however, be found in England, where
and thus finally codified in the Revolu- in 1495 an act for the security of a
tion of 1689. Magna Carta, won in like subject serving a de facto king declared
manner from John, was not superseded " Every Act made contrary to this
by it; in theory it had always been in statute shall be void and of no effect."
force. The Declaration represents only (Taswell-Langmead, p. 295.)
additions, or, more correctly, precisions, So in Arizona "the Bill of Rights is
of the old principles. In outward form the supreme law of the land, subject
the Constitution under Edward I. be- only to the United States Constitution
came essentially the same as in the and laws. And it cannot be amended
present day. (Taylor, I. 424. See or altered but by the concurrence of a
notes to §§ 10, 70, 130.) majority of all the members elected
2 Compare U. S. C. Amts. 9, 10. to the Legislature, the vote to be taken
Decl. Ind. § 2. by yeas and nays entered on the
^ Ala. 1,36; Ark. 2, 29; Del. Art. 1, journal." B. Rts. 32. Neither can
ad fin. ; Ky. 26 ; N. D. 24 ; N. M.* any other law !
1851, July 12, § 20; Pa. 1, 26: R. L A Bill of Rights is still necessary
Preamble; Tenn. 11, 16; Tex. 1, 29; (R. Wliite, p. 31). Va. 1, 17. This attempt to bind pos-
PART I J BILL OF EIGHTS 125
tion of others; and without such an agreement the surrender is void." '
In other States also the social compact is recognized. Thus, the Constitutions of five States declare that some rights cannot be surrendered by men when they enter into a state of society, but are inalienable, because no equivalent can be given for them.^ As, for example, rights of conscience,^ and other natural rights. "*
This social compact notion hardly appears in the Federal Consti- tution except, possibly, by inference, in the Tenth Amendment. This says that "The powers not delegated to the United States . . . by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." But the second para- graph of the Declaration of Independence states that "All men arc . . . endowed by their creator with certain inalienable rights. . . . That to secure these rights governments are instituted. "... This, and not Rousseau directly, is doubtless the prototype of the State provisions.
§ 5. Construction of Bill of Rights. — By the Constitutions of most States it is declared that this enumeration of rights shall not be construed to impair or deny others retained by the people.^
This section is, of course, founded on the Ninth Amendment to the Federal Constitution, the wording being almost identical, though the phrase "deny or disparage" is used instead of "im- pair or deny."
And in many States the Constitution declares that a frequent recurrence to fundamental principles is necessary to preserve the blessings of liberty.®
> N. H. 1, 3. See also § 182. 1, 25; Va. 1, 17; Wash. 1, 30; Wy.
2 N. H. 1, 4; Va. 1, 1; W. Va. 3, 1. 1, 36.
Ala. 1, 1. * m. 2, 20; Mass. 1, 18; N. C. 1, 29;
3 N. H. 1, 4. N. H. 1, 38; S. D. 6, 27; Utah 1, 27;
* (See also §§ 12, 13, 14, 15), Va., Va. 1, 15; Vt. 1, 18; Wash. 1, 32; W. Va. W. Va. 3, 20; Wis. 1, 22. This refer-
* Ala. 1, 36; Ark. 2, 29; Cal. 1, 23; ence to fundamental principles is Col. 2, 28; Fla. Decln. Rts. 24; Ga. made in several, both of older and of 1, 5, 2; Ida. 1, 21; 1, 25; lo. 1, 25; the newer, State Constitutions, and Kan. B. Rts. 20; La. 15; Me. 1, 24; always in a more or less general Md. Decln. Rts. 45; Minn. 1, 16; Miss, phrase. Thus in Idaho (3, 24) "Sobri- 1,32; Mo. 2, 32; Mon. 3, 30; Neb. 1, ety, morality and the purity of the 20; Nev. 1, 20; N. C. 1,37; N. D. 24; home "are the words used. In Wyom- N. J. 1,21; 0.1,20; Okla. 2, 33; Ore. ing (7, 20) "Health and morality." 1,33; R. I. 1, 23; S. C. 1, 41; Utah It has not seemed necessary to print
these phrases in full.
12G TIIK STATE CONSTITUTIONS [liOOK III
§ G. Indloulual llijltls. — It is (leclaivd that the object ol" gov- ernment is to protect aiul maintain individual rights, in the Con- stitution of Washington, and in hoth Washington and Utah it is declared that a frecjucnt ret urrence to fundamental prineij)les, etc., is "essential to the security of individual right." ' Tliis definite recognition of the claims of the individual against socialistic gov- ernment is a decided novelty, though a Federal judge in Texas has refused to naturalize a socialist on the ground that his doctrine was not compatible with the Federal Constitution.- In Oklahoma, on the other hand, "the right of the State to engage in any occupa- tion or business for public purposes shall not be denied or pro- hibited, except that the State shall not engage in agriculture for any other than educational and scientific purposes and for the support of its penal, charitable, and educational histitutions. " ^ The ques- tion whether a State could under the Federal Constitution was debated, but not decided, in the South Carolina liquor case ; * and municipal coalyards, etc., have usually but not always been held unconstitutional under State constitutions.^
1 See last note for citations. * 199 U. S. 437.
^ Ex parte Sauer, 81 Fed. Rep. 355. * Opinion of Justices, 182 Mass. 605.
3 Okla. 2, 31.
PART l] BILL OF RIGHTS: CIVIL 127
CHAPTER I
BILL OF RIGHTS: CIVIL
Note. This division of the Bill of Rights into civil and criminal is purely one of convenience, and has no precedent, either in the statute of William and Mary or in the various State Constitutions, where those rights which we have termed civil and those which relate to criminal proceedings are often treated in the same para- graph, as, notably, the great clause 39 Magna Carta. See § 130.
Article 1. Natural Rights
§ 10. Freedom.^ — The Constitutions of many States have a provision that men are free.
Thus, that all men are born free and independent ; ^ that they are by nature free and independent ; ^ that they are equally free and independent ; * that they are born equally free and independent ; ^ that they are by nature equally free and independent.^
"The inhabitants of this State are not controllable by any other laws than those to which they or their representative body have given their consent." ^
* Compare also §§ 12, 30. The great 000 registered population. Villeins
principles of freedom, both of body were free men as the word is used in
and of labor or trade, antedate Magna Magna Carta. Wat Tyler led 100,000
Carta itself; a month before Runny- villeins in 1381, but by 1530 villein-
mede, John granted to the baronies of age had disappeared (Taylor, I. 510.
London the right to elect their Mayor; "By nature equally free and indepen-
and the right to hberty is implied in dent " is the phrase in the Virginia Bill
several provisions of the Magna Carta of Rights. It is not in the Federal
of John ("The City of London shall Constitution. Compare §§ 130, 183. have all its ancient liberties and free - Mass. 1, 1; S. C. 1, 1. customs as well by land as by water: ^ Cal. 1, 1; Fla. Decln. Rts. 1; Ida.
furthermore we will and grant that all 1, 1; 111. 2, 1; lo. 1, 1; Ky. 1; Nev. 1,
other cities and boroughs, and towns and 1; N. J. 1, 1; O. 1, 1. forts shall have all their liberties and * Ala. 1, 1.
free customs." — Cap. 13), but more ex- * Ark. 2, 2; Me. 1, 1; Mon. 3, 3;
presslystatedinthatof Henry III., cap. Neb. 1, 1; N. H. 1, 1; Pa. 1, 1; S. D.
29: "No man . . . shall be disseized 6, 1; Vt. 1, 1; Wis. 1, 1. of his liberties or free customs," etc. * N. D. 1; Va. 1, 1; W. Va. 3, 1. There were 25,000 slaves numbered in ^ N. H. 1, 12. the Domesday book out of about 300,-
128
THE STATE CONSTITUTIONS
[book III
So, many States have preambles resembling the United States Constitution (mentioning liberty, justice, etc.).'
§ 11. Equality.- — The Constitutions of most States declare this principle. Thus, that men are born equal, ^ (and this seems to be implied in other States);* that they are by nature ecpial ; ^ that they are equal before the law;" (and this seems implied in the Constitutions of seven other States);^ that all men have e(|ual rights when they form a social compact; ^ that "no person shall be denied the equal protection of the laws " ; " that all laws should be made for the good of the whole ; and the burdens of the State ought to be fairly distributed among its citizens.'"
§ 12. Life and Lihcrty?^ — The Constitutions of most of the States declare that all men have a natural, inherent, and inalien- able right to enjoy and defend life and liberty, and (in all of these except Missouri) to the pursuit of happiness.'^ (The same may be implied in other States from the provisions of §§ 10, 71, 184.) And in most of these States, also, that they have such natural right to obtain safety.'^
§ 13. Property?^ — In more than half the States the Constitu-
» Ala., Ida., Ky., La., Mon., N. D., N. Y., S. D., Utah, Wy.
^ Equality is first mentioned in the Virginia Bill of Rights, § 1 : "By nature equally free and independent," and in the Declaration of Independence, "All men are created equal." It is no part of the English Constitution, except as freemen have equal rights at law. This legal (but neither political nor social) equaUty was re-estabUshed in England as early as Henry II. (II. Taylor, 3), and was clearly implied in John's Magna Carta, caps. 39, 40; and the great statute of Westminster I (1275). " Common right shall be done to rich and poor alike without respect to persons."
^ Ind. 1, 1; Mass. 1, 1; Me. 1, 1; Neb. 1, 1; N. C. 1, 1; N. H. 1, 1; S. C. 1, 1; Vt. 1, 1.
* Ark. 2, 2; Mon. 3, 3; Pa. 1, 1; S. D. 6, 1; Wis. 1, 1; Wy. 1, 2. See also §§ 10, 20, and 184.
« Ida. 1, 1 ; lo. 1, 1 ; Ky. 1 ; Nev. 1, 1.
• Ark. 2, 3; Fla. Decln. Rts. 1.
^ Ala. 1, 1; Ga. 1, 1, 2; Kan. B. of Rts. 1; O. 1, 2; Va. 1, 1; W. Va. 3, 1; Wy. 1, 3. See §§ 10, 12, 20, 184.
« Ct. 1, 1; Ky.3; N. M.* 1851, July 12, § 2; Ore. 1, 1; Tex. 1,3.
9 S. C. 1, 5.
'» R. I. 1, 2.
" Inalienable rights are based on the social compact theory; but have no higher standing than the Constitution at law. The word is not in the Declara- tion of Independence.
'2 Ala. 1, 1 ; Ariz.* Preamble B. Rts. ; Ark. 2, 2; Cal. 1,1; Col. 2, 3; Del. Preamble; Fla. Decln. Rts. 1; Ida. 1, 1; 111. 2, 1; Ind. 1, 1 lo. 1, 1; Kan. Bill of Rts. 1; Ky. 1; La. 1; Mass. 1, 1; Me. 1, 1; Mo. 2, 4; Mon. 3, 3; Neb. 1, 1; Nev. 1, 1; N. O. 1, 1; N D. 1; N. H. 1, 2; N. J. 1, 1; O. 1, 1; Okla. 2, 2 ; Pa. 1, 1 ; S. C. 1, 1 ; S. D. 6, 1; Utah 1, 1; Va. 1, 1; Vt. 1, 1; W. Va. 3, 1; Wis. 1, 1; Wy. 1, 2.
13 Cal, Col., Fla., Ida., lo., Ky., Mass., Me., Mon., Nev., N. D., N. J., O., S. C, S. D., Va., Vt., W. Va.; as cited in § 12.
" The property right is recognized in Magna Carta (cap. 28. No constable, etc., shall take corn or other chattels of any man unless he presently give him money for it, etc. ; and see also
PART l] BILL OF EIGHTS : CIVIL 129
tion declares expressly that all men have a natural right to acquire, possess, and protect property * (it seems the right of property is also recognized in other States by the provisions of § 183,' and compare also § 90); but in three, only that all men have such right to the enjoyment of the fruits of their own labor. ^ So, the Constitutions of other States declare that the right of property is "before and higher than any constitutional sanction." *
§ 14. Rights to Labor or Trade. — "Every citizen of this State shall be free to obtain employment wherever possible, and any person or corporation maliciously interfering or hindering in any way any citizen from obtaining or enjoying employment already obtained from any other corporation or persons is guilty of a misdemeanor." ^
The rights of labor shall have just protection through laws calcu- lated to secure to the laborer proper rewards for his services and to promote the industrial welfare of the State. ^
No law shall be passed fixing the price of manual labor. '^
These provisions are novel and interesting, but may carry the courts further than the Legislature intended; for instance, the first might make unlawful the sympathetic strike, or any strike against union or non-union labor. The right to one's free liberties or customs is, however, guaranteed in Magna Carta itself.
§ 15. Reputation. — In four States the Constitution declares that men have a natural right to acquire, possess, and protect reputation.^
§ 16. Special or Exclusive Privileges.^ — The Constitutions of many States prohibit to the Legislature any grant of special privi-
caps. 30, 31, 39. No man shall be dis- * Ark. 2, 22; Ky. 13, 3; and see
seised of his freehold); but the word §§ 90, 130. "Higher" is impossible,
"property" is first used in the Va. B. ' N. D. 23; Utah 12, 19.
Rts. The Declaration of Independence « Mon. 1, 22; Wy. 1, 22.
does not mention it at all. The Fed. ^ La. 51. See Art. 45 for the new
Const, only in the 14th Amt. (See New York provision as to public work.
also § 130 and Art. 9, Eminent « Ark. 2, 2; Del. Preamble; N. D,
Domain.) 1; Pa. 1, 1.
' Ark. 2, 2; Ariz. Preamble B. Rts. ; Blackstone mentions this as a
Cal. 1, 1; Col. 2, 3; Del. Preamble; natural right; but it appears in no
Fla. Decln. of Rts. ; Ida. 1,1; lo. 1, 1; other American or EngHsh Constitu-
Ky. 1; Mass. 1, 1; Me. 1, 1; Mon. 3, 3; tional document.
Nev. 1, 1; N. D. 1, N. H. 1, 2; N. J. ^ The usual provision is that such
1,1; 0.1,1; Pa. 1,1; S. C. 1,1; S. D. privileges may not be granted by
6, 1; Utah 1, 1; Va. 1, 1; Vt. 1, 1; specialact; and compare §§ 20, 21, 392,
W. Va. 3, 1. 394, 395 (15), and Arts. 50 and 60, and
2 Ala. 1, 35; Ga. 1, 1, 2; 111. 2, 1; see U. S. Constitution 1, 9; Va. B.
Ky. 4; Mo. 2, 4. Rts. 4. There is nothing of this kind
» N. C. 1, 1; Mo. 2, 4; Okla. 2. 2. in the English Constitution.
9
130 THE STATP: constitutions [book III
leges or immunities to any citizen or class of citizens, ^ or corpora- tion.- No man or set of men is entitled to exclusive public emolu- ments or privilef^es from the community.^
Except in consideration of public services.*
No special privileges or immunities shall be granted that may not be altered or revoked by the Legislature.^
In Kansas, the wording is that no such special privilege or immu- nity can be granted except by the Legislature.
And in three States the operation of a general law cannot })e sus- pended by the Ix^gislature for the benefit of any individual, corpora- tion or association.®
§ 17. Hereditary Privileges.'' — In many States the Constitution declares that no hereditary emoluments, privileges, or honors can be granted ; ^ or no hereditar}^ distinctions ; " no hereditary offices ; *" no title of nobility; ^^ no hereditary emoluments. ^-
§ 18. Pensions cannot, by the Constitution of one State, be granted but in consideration of public services; and not for more than one year at a time.^^ In two, the Legislature are forbidden to establish any general pension system.'*
Pensions may be granted only for military or naval service; but officers may not be retired on pay or half pay.'^
Pensions to confederate soldiers, sailors and their widows are provided for in several Constitutions.'®
' Ark. 2, 18; Cal. 1, 21; Ind. 1, 23; » Ala. 1, 29; Ark. 2, 19; Ct. 1, 20;
lo. 1, 6; Ky. 3; Mass. 1, 6; N. D. 20; Kan. B. of Rts. 19; Mass. 1, 6; Me. 1,
Okla. 5, 51; Ore. 1, 20; S. D. G, 18; 23; N. C. 1,30; O. 1, 17; Tenn. 1,30;
Tenn. 11, 8; Wash. 1, 12. Wash. 1, 28; W. Va. 3, 19.
=2 lo., Okla., Wash., Territories. » Ala.; Del. 1, 19; Ind. 1, 35; Ky.
3 Ct. 1, 1; Ky. 3; N. C. 1, 7; N. M. 23; Me.; Md. Decln. Rts. 42; Ore. 1,
1851, July 12, § 2; Tex. 1, 3; Va. 1, 29; Pa. 1, 24. 4; Vt. 1, 7. '" Mass.; N. H. 1, 9; Va. 1, 4.
* This exception is not made in " Ala., Ky., Ind., Md., Ore., Pa.,
some (Ct., N. D., S. D., Wash.). S. C.
5 Ala. 1, 22; Cal. 1, 21; Col. 2, 11; ^^ Ala.; S. C. Ga. 1, 3, 2; Ida. 1, 2; 111. 2, 14; Kan. " N. H. 1, 36. The same would
B. of Rts. 2; Mo. 2, 15; Mon. 3, 11; result from the Constitutional principles
Neb. 1, 16; N. D. 20; O. 1, 2; Pa. 1, of taxation. 17; S. D. 6, 12; Tex. 1, 17; Utah 1, 23; " Md. 3, 59; S. C. 3, 32. Wash. 1, 8. See also §§ 212, 503. '« S. C.
8 Ark. 5, 25; Tenn. 11, 8. See §§ " Ga. 1893 p. 19, La. 303; 1902, 129;
394, 395 (15). Miss. 272; S. C. 13, 5; Tex. 1897, p.
' Compare U. S. C. 1, 9. See also 275. See U. S. 14th Amt. § 4. §212.
PART l] BILL OF RIGHTS: CIVIL 131
Article 2. Civil Rights
§ 20. General Provisions.^ — The Constitution of Georgia pro- vides that the social status of the citizen shall never be the subject of legislation.- So in South Carolina,^ that no person shall be dis- qualified as a witness, nor be prevented from acquiring, holding, and transmitting property, nor be hindered in acquiring education, nor be liable to any other punishment for any offence, nor be subject in law to any other restraints or disqualifications in regard to any personal rights, than such as are laid upon others under like circum- stances. "All citizens of the State possess equal civil and political rights and public privileges." * "Every citizen is entitled to equal representation in the government." ^ "The civil rights of the people shall not be abridged." ^
"Since equality in the enjoyment of natural and civil rights is made sure only through political equality, the laws of this State affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or con- dition whatsoever other than individual incompetency, or unworthi- ness duly ascertained by a court of competent jurisdiction." '^
§ 21. Color Distinction.^ — By the Constitution of Arkansas also no citizen shall be ever deprived of any right, privilege, or immunity, nor exempted from any burden or duty, on account of race, color, or previous condition.^
So in Maryland, as to the right of being a witness in a court of law.^° So, in other States, as to the right of suffrage and holding office. ^^ Distinction on account of race or color in any case what- ever is prohibited, and all classes of citizens shall enjoy equally all common, public, legal, and political privileges.*- So, in several, it is specially provided that all the public schools should be free and open, without regard to race or color, ^^ or caste.'*
In INIississippi the Constitution provides that the right of all
» Compare §§11, 16, 184. » Ark. 2, 3.
' Ga. 1, 1, 18. 1" Md. 3, 53.
' S. C. 1, 12. " Nev. 18, 1; Okla. 1,6; S. C. 1,
♦ Ala. 1, 2; S. C. 1, 31. 10; Terr.* U. S. 1860.
« W. Va. 2, 4. 12 ^vy i^ 3
« Ariz. Bill Rts. 6. " Col. 9, 8; Ida. 9, 6; Wash. 9, 1;
' Wy. 1, 3. Wy. 7, 10.
« Compare U. S. C. Amts. 14, 15, " Wash, which of course apply in all the States; and see §§ 240, 241.
132 THE STATE CONSTITUTIONS [BOOK III
citizens to travel upon all public conveyances shall not be in- fringed.'
§ 22. Exceptions. — By the Constitutions of a few States the right of voting is confined to whites,- but this provision is rendered null by the Fifteenth Amendment.
By the Constitutions of many States white and colored children shall not be tauglit in the same [public] schools.^
By that of Oregon no Chinaman can hold real estate, or hold or work a mining claim."' And by that of three States no native of China can vote or hold office.^ The old Constitution of Mississippi legitimated all children, born before or after its adoption [bSOS], of persons not married, but cohabiting as husband and wife on December 1, 1869; and such persons are to be taken as married.^ So by the old Virginia Constitution the children of parents, one or both of whom were slaves at or during the period of cohabitation, and who were recognized by the father as his children, and whose mother was recognized by such father as his wife, and was co- habited with as such, shall be capable of inheriting from such father as if born in la^vful wedlock.'' And by the old South Caro- lina Constitution "no person shall be disfranchised for felony or other crim'es committed while a slave." *
The Constitution of Oregon provides that the Legislature shall pass laws prohibiting free negroes from coming to or living in the State, and making such action felony.^ And in several, the inter- marriage of white persons with negroes or mulattoes,^" or their cohabitation as husband and wife, is forbidden."
By that of California the Legislature is to prescribe all necessary regulations for the protection of the State and the counties, cities, and towns thereof from the burdens and evils arising from the pres-
1 Miss. 1, 24. « Miss. 12, 22, Constitution of 1868. " Kan. 5, 1; Md. 1, 1; O. 5, 1; Ore. ' Va. 11, 9, Constitution of 1870.
2, 2. « S. C. 8, 12, Constitution of 1868.
2 Ala. 256; Del. 10, 2; Ga. 8, 1, 1; » Ore. 1, 35. Now unconstitutional Ky. 187; La. 248; Miss. 207; Mo. 11, under the 14th Amt.
3; N. C. 9, 2; Okla. 1, 5; 13, 1; S. C. " A mulatto is a person who has J or 11, 7; Tenn. 11, 12; Tex. 7, 7; Va. 140; more of ne^ro blood. (S. C, Fla., W. Va. 12, 8. See § 50. Miss.) " Colored " or " Negro " means
* Ore. 15, 8. the African race; all others are included
^ Cal. 2, 1; Ida. 6, 3; Ore. 2, 6. in white. Okla. 23, 11. Such laws are See also Art. 24 for the provisions in valid under the Fourteenth Amend- full concerning the right of voting, ments; for they apply to whites and This provision is of course abrogated blacks equally.
by U. S. Constitution, Amt. 15, as to '^ Ala. 102; Fla. 16, 24; Miss. 263; voting by U. S. citizens. N. C. 14, 8; S. C. 2, 33; Tenn. 11, 14.
PART l] BILL OF RIGHTS : CIVIL 133
ence of aliens who are or may become vagrants, paupers, mendi- cants, criminals, or invalids afflicted with contagious or infectious diseases, and from aliens otherwise dangerous or detrimental to the well-being or peace of the State, and to impose conditions upon which such persons may reside in the State, and to provide the means and mode of their removal from the State upon failure or refusal to comply with such conditions; and no corporation shall employ directly or indirectly in any capacity any Chinese or ]\Ion- golian, and the Legislature shall pass laws to enforce this provision; and no Chinese shall be employed in any State, municipal, or other public work except as a punishment for crime. ^ And further the presence of foreigners ineligible to become citizens of the United States is declared to be dangerous to the well-being of the State; and the Legislature is to discourage their immigration by all means within its power ; and Asiatic coolieism is declared a form of human slavery, and prohibited, and all contracts for coolie labor are void; and the Legislature may prescribe penalties for companies or cor- porations formed in any country for the importation of such coolie labor; and the Legislature is to delegate all necessary powers to cities and towns for the removal of Chinese, or their location in prescribed portions of such towns; and also to provide legislation to prohibit the introduction of Chinese into the State. ^
§ 23. Sex Distinctions: Voting. — The Constitutions of all the older States specify that the elective franchise is confined to males. ^
But in three States the Legislature may at any time enact a law to extend the right of suffrage to women of lawful age, otherwise qualified; and such enactment shall take effect if approved by a majority of the electors at a general election.* In Colorado it was so submitted and adopted. In two States it was rejected,^ while in three States the Constitution provides for female suffrage,® making four full suffrage States in all.
» Cal. 19, 1-3. 6, 2; Va. 18; Vt. 2, 8; Wash. 6, 1;
^ Cal. 19, 4. W. Va. 4, 1 ; Wis. 3, 1. This would
^ Ala. 177; Ark. 3, 1; Cal. 2, 1; be the common law in the absence of
Col. 7, 1; Ct. 6, 2; Del. 5, 2; Fla. 14, 1; statute, though women voted in New
Ga. 2, 1, 2; 111. 7, 1; Ind. 2, 2; lo. Jersey and possibly other States in
2, 1; Kan. 5, 1; Ky. 145; La. 185; early times, though never in England.
Mass. 2, 1, 3, 4; Amt. 3; Md. 1, 1; Me. See § 240.
2,1; Mich. 7,1; Minn. 7,1; Miss. 247; * Col. 7, 2; N. D. 122; Wis. See
Mo. 8, 2; N. C. 6, 1; Neb. 7, 1; Nev. § 240 G.
2, 1 ; N. H. 2, 27 ; N. J. 2, 1 ; N. Y. 2, 1 ; « S. D. 7, 2 ; Wash. 27, 17. The vote
O. 5, 1 ; Okla. 3, 1 ; Ore. 2, 2 ; Pa. 8, 1 ; in South Dakota was 45, 682 to 22, 072.
R. I. 2, 1; S. C. 2, 3; Tenn. 4. 1; Tex. « Ida. Amt. 6; Utah 4, 1; Wy. 6, 1.
134 THE STATE CONSTITUTIONS [BOOK III
But in several States the Constitution provides tliat women of the age of twenty-one may vote at any election of school officers, or upon aqy measure relating to schools/ or libraries.^
And in Louisiana they may vote upon all (juestions submitted to the taxpayers as such of any municipal or other political subdivi- sions of the State, subject to ordinary age and residence c|uaHfi- cations, either in person or by their agents authorized in %vi-iting.'
Upon all questions submitted to the vote of the taxpayers of the State, or any political division thereof, women who are taxpayers and possessed of the qualifications for the right of suffrage required of men by this Constitution, shall, equally with men, have the right to vote.*
§ 24. Sex Distinctions: Schools. — The Constitutions of some States declare that the Legislature, in providing for the formation and regulation of schools, shall make no distinction between the rights of males and females.^ So as to admission to the University.*
And in several States, women may hold any office pertaining solely to the management of schools.''
§ 25. Sex Distinctions: Occupation. — The Constitution of Cali- fornia provides that no person shall, on account of sex, be disquali- fied from entering upon or pursuing any lawful business, vocation, or profession.^
In Missouri and Oklahoma, the Constitution specifies that the Governor and members of the Legislature must be male.**
Women may be notaries public. ^° They may hold any office except as otherwise provided by the Constitution.*^
* Col. 7, 1; Ida. 6, 2; Minn. 7, 8; statutes of the more advanced States; Mon. 9, 10; N. D. 128; Nev. 15, 3; see also Art. 45. These statutes have Okla., 3, 3; S. D. 7, 9; Wash. 6, 2. frequently been held unconstitutional "Until otherwise provided" (Ida.), as depriving women of their liberties. "The legislature may so provide" They are only valid where clearly in the (Wash.). interest of morality or the general
2 Minn. 1897, 175, health, and probably never in States
' La. 199. with constitutional provisions like the
* lo.* 1121; Mon. 9, 12. above. Of such nature are the laws
* Kan. 2, 23; Wash. 9, 1; Wy. 7, 10. limiting their hours of labor or age of ** Mon. 11, 9. employment differently from men. ^ Col. 7, 1 ; Ida. 6, 2 ; Minn. 7, 8 ; Tliese liave, in most of the States ex-
Mon. 9, 10; N. D. 128; Pa. 10, 3. cept Massachusetts, been held uncon-
" Unless the Legislature otherwise pro- stitutional.
vide" (Ida.). "Or libraries," in Minn. » Mo. 4, 4 & 6; 5, 5; Okla. 6, 3.
* Cal. 20, 18. At the common law And so in Oklahoma of the other execu- every employment was open to them tive officers. This is common law, iu except political offices, the army or the absence of any statute.
navy, and learned professions. They '" Va. 32.
are now, however, forbidden to engage *^ S. D. 7, 9. In other States, by
in many trades or employments by the common law, not. See Arts. 20, 21.
PART l] BILL OF RIGHTS: CIVIL 135
The rights of citizens in two States, "to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall equally enjoy all civil, political and religious rights and privileges."^
§ 2G. Sex Distinctions: Property. — In many States there are con- stitutional provisions concerning the property of married women. ^
In detail : the real and personal property of a female acquired before marriage remains her estate and property, and is not (without her consent in Florida, executed as a conveyance) liable for the debts of the husband, and may be devised and bequeathed by her as if unmarried; and so also all property to which she may become entitled after marriage.^ The Legislature shall provide for the protection of the rights of women in acquiring and possessing property, real, personal, and mixed, separate and apart from the husband.* The Legislature are to provide for the registration of such separate property.^
A married woman's separate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestrated for the purchase money thereof ; or for money or thing due upon any agreement made by her in wTiting for the benefit of her separate property; or for the price of any property purchased by her, or for labor and material used with her knowledge or assent in the construction of buildings, or repairs, or improvements upon her property, or for agricultural or other labor bestowed thereon, with her knowledge and consent.^
The Legislature shall never create by law any distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or their power to contract in reference thereto. Married women are hereby fully emancipated from all disability on account of coverture. But this shall not prevent the Legislature from regulating contracts between husband and wife, nor shall the Legis- lature be prevented from regulating the sale of homesteads.^
§ 27. Sex Distinctions: Custody of Children. — In Kansas the
* Utah 4, 1 ; Wy. 6, 1. rights of a man, save that she is to a
2 Ala. 209; Ark. 9, 7; Cal. 20, 8; certain extent protected. Fla. 11, 1; Ga. 3, 11, 1; Kan. 15, 6; * Ala., Ark., Cal, Fla., Ga., Mich.,
Md. 3, 43; Mich. 16, 5; Miss. 94; N. C. N. C, N. D., Nev., Ore., S. C, S. D.,
10, 6; N. D. 213; Nev. 4, 31; Ore. Tex., Utah.
15, 5; S. C. 17, 9; S. D. 21, 5; Tex. " Fla., Kan., Md., Nev., W. Va.
16, 15; Utah 22, 2; W. Va. 6,49. By * Ark. 9, 8; Nev.; Ore.; Tex. the laws of all States, she has all the * Fla. 11, 2.
' Miss. 94.
136 THE STATE CONSTITUTIONS [BOOK III
Constitution provides that the T>(><:^islature shall provide for women equal rights with the husband in the possession of their children.'
Article 3. Slavery and Apprenticeship
§ 30. Slavcrij Prohihiicd. — In most States slavery and invol- untary servitude remain forbidden by the Constitution; and they are prohibited in all the States by the Thirteenth Amendment.^
Except ^ as a punishment for crime whereof the party has been duly convicted; and in Vermont, when bound by law for the pay- ment of debts, damages, fines, costs, and the like.
In Maryland there is a constitutional provision that slavery shall not be re-established.* In Tennessee, the Legislature can make no law recognizing the right of property in man.^
§ 31. Compensation for Slaves. — In two States the Constitution provides that the Legislature shall have no power to make compen- sation for emancipated slaves.® The provision in Mississippi to this effect was left out of the new Constitution. It is forbidden, however, by United States Amendment 14 (4).
And in INIaryland the Constitution declares that, slavery having been abolished by the authority of the United States, compensation is due the State from the National Government.^
§ 32. Apprenticeships. — In Vermont service by indentures and apprenticeships is allowed, but must expire at the age of twenty-one in males and eighteen in females.^
In Indiana, no indenture of any negro or mulatto made out of the State is valid. ^
§ 33. Terms of Service over the age prescribed in § 32 are for- bidden by the Constitution of Vermont unless entered into with the full consent of the party serving. ^°
' Kan. 15,6. 21; Vt. 1, 1; Wis. 1, 2. See § 10,
" Ala. 1, 32; Ark. 2, 27; Ariz. *B. note.
Rts. 20; Cal. 1, 18; Col. 2, 26; Fla. ' This exception is omitted in a few
Decln. of Rts. 19; Ga. 1, 1, 17; Ind. 1, (Vt., R. I., N. M.).
37; lo. 1, 23; Kan. Bill of Rts. 6; * Md. Decln. Rts. 24.
Ky. 25; Mich. 18, 11; Minn. 1, 2; Miss. « Tenn. 1, 34.
15; Mo. 2, 31; Mon. 3, 28; N. C. 1, 33; « Md. 3, 37; N. C. 1, 6.
N. D. 17; Neb. 1, 2; Nev. Ordinance ^ Md. Decln. Rts. 24.
3 & 1, 17; N. M.* 76, 1; O. 1, 6; Ore. « Vt. 1, 1.
1, 34; R. I. 1, 4; Tenn. 1, 33; Utah 1, » Ind. 1, 37. ^° Vt. 1, 1.
PART l] BILL OF RIGHTS : CIVIL 137
Article 4. Religious Rights
§ 40. General Rights of Conscience.'^ — In all the States except Alabama (for which compare §§ 42, 43), these are recognized by the Constitution, in slightly varying phrases. Thus, "every man may worship God according to his own conscience." ^ "The free enjoyment of all religious sentiments and the different modes of worship shall ever be held sacred." ^ "It is the duty of the Legis- lature to pass suitable laws to protect every religious community in the peaceable enjoyment of its own mode of worship." * "No human authority or law ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion." ^ "No person ought to be molested in person or estate on account of his religious persuasion." ^
§ 41. Limitations. — ^ But the provisions of §§ 40, 45 are not to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State ; ^ or polygamy ; ^ or bigamy, or advice and propaganda thereto.^ Nor to excuse disturbance of the public peace. ^"^ Nor "to justify practices inconsistent with the rights
* In newer Western States, these Mon. 3, 4; N. D. 4; Nev. Ordinance
clauses are made irrevocable without 3 & Const. 1, 4; N.Y.I, 3; Okla., 1,2;
the consent of the U. S. (Ida., N. D., S. C. 1, 4; S. D. 22, 1; Utah 1, 4; Va.
S. D., Utah, Wash., Wy.). See U. S. 58; Wash. 26, 1; Wis. 1, 18; Wy.
Amt. 1. "Congress shall make no law Ordinance, 1, 18.
respecting an establishment of reli- * Ark. 2, 25; Neb.; N. M.* 1851,
gion, or proliibiting the free exercise July 12, § 4; O. ; Tex. thereof." This constitutional right to * Ark.; Del. 1, 1; Ga. ; Ind. 1, 3;
free worship does not appear to be rec- lo. 1, 3; Kan.; Ky. 6; Mich.; Minn.;
ognized in any British constitutional Mo.; N. C. ; Neb.; O. ; Ore. 1, 3; Pa.;
document. It first appeared in a stat- Tenn. ; Tex.; Utah 1, 4; Vt. ; Wis. uteof Charles I. and in the Va B. Rts. « Ga. 1, 1, 13; Ida. 21, 19; Mass.;
16. Md. ; Me. ; Nev. ; N. H. ; N. M.* ; N. D.
2 Ark. 2, 24; Ct. 7, 1; Del. Pre- 203; Okla ; R. I.; S. D. 26, 18; 22, 1; amble; Ga. 1, 1, 12; Ida. Sched. 19; Utah 3, 1; Va. 58; W. Va.; Wy. 21,2; Ind. 1, 2; Kan. B. Rts. 7; Ky. 1; Wash. 26,1.
La. 4; Mass. 1, 2; Md. Decln. Rts. 36; ' Ariz.* B. Rts. 13; Cal. 1, 4; Col.
Me. 1, 3; Minn. 1, 16; Mo. 2, 5; N. C. 2, 4; Ct. 1, 3; Fla. Decln. Rts. 5; Ga.
1,26; Neb. 1,4; N.H.I, 5; N.J. 1,3; 1, 1, 13; Ida. 1, 4; 111. 2, 3; Md.
N. M.* 95, 1; 1851, July 12, § 4; O. 1, Decln. Rts. 36; Minn. 1, 16; Miss. 18;
7; Ore. 1, 2; Pa. 1, 3; R. I. 1, 3; S. D. Mo. 2, 5; Mon. 3, 4; N. D. 4; Nev. 1,
6,3; Tenn. 1,3; Tex. 1,6; Utah 1, 1; 4; N. Y. 1,3; S. D. 6, 3; Wash. 1, 11;
Va. 16; Vt. 1, 3; Wash. 1, 11; W. Va. Wy. 1, 18. 3, 15. « Ida., Utah.
3 Cal. 1, 4; Col. 2, 4; Ct. 1, 3; Fla. » Ida., Mon.
Decln. Rts. 5; Ida. 1, 4; 111. 2, 3; lo. '" N. H. 1, 5 ; Mass. 1, 2; Me. 1, 3; 1, 3; La. 4; Mich. 4, 39; Miss. 18; Md.
138
THE STATE CONSTITUTIONS
[hook III
of others." ' No person is to disturb others in their rcHgious worship. -
§ 42. Compulsory Support of Churches. — No man can be com- pelled, against his consent, to support or attend any church.^ Nor to send his children to any school to which he may be conscien- tiously opposed.' No person of one particular sect shall be com- pelled to contribute to the support of ministers of another sect.^
§ 43. Established Church. — The Constitutions of some States provide that there shall be no established church." Others say that there shall be no preference shown any one scct.^ No subordination of one sect to another.^ No union of Church and State.'' But the Constitutions of two States declare that every sect ought to observe the Lord's day and to keep up some sort of religious worship.*"
No charter may be granted to any church or religious corporation, but their title to property may be secured to an extent to be limited by law,**
§ 44. State Support. — By the Constitutions of many States no money can be taken from the public treasury in aid of any church, sect, or sectarian institution.*^ Or in aid of any priest, etc.*^ Nor from any municipal corporation.** Nor can property of the State ever be appropriated for such purpose.*^ Nor property of any mu- nicipality.*" Nor shall money be appropriated for religious services
1 Md., Mo., Va.
2 Mass., Me., N. H., N. M.*
3 Ala. 1, 3; Ark. 2, 24; Col. 2, 4 Ct. 7, 1; Del. 1, 1; Ida. 1, 4; 111. 2, 3 Ind. 1, 4; lo. 1, 3; Kan. B. of Rts. 7 Ky. 5; Md. Decln. Rts. 36; Mich. 4,39 Minn. 1, 16; Mo. 2, 6; Mon. 11, 9 Neb. 1, 4; N. J. 1, 3; O. 1, 7; Pa. 1, 3 R. I. 1, 3; S. D. 6, 3; Tenn. 1, 3; Tex
1, 6; Va. 58; Vt. 1, 3; W, Va. 3, 15 Wis. 1, 18.
* Ky.
' N. H. 1, 6.
« Ala. 1, 3; lo. 1, 3; La. 4; N. J. 1,4; S.C.I, 4; Utah 1,4; Va. 58. ^ Ala.; Ark. 2, 24; Cal. 1, 4; Col.
2, 4; Ct. 1, 4; Del. 1, 1; Fla. Decln. Rts. 6; Ida.; 111.2,3; Ind. 1,4; Kan. B. Rts. 7 ; Ky. 5 ; La. 53 ; Mass. Amt. 11; Me. 1, 3; Minn. 1, 16; Miss. 18; Mo. 2, 7; Mon.; N. D. 4; Neb. 1, 4; Nev. 1, 4; N. H. 1, 6; N. M.* 1851, July 12, § 4; N. J.; N. Y. 1, 3; O. 1, 7;
Pa. 1, 3; S. D. 6, 3; Tenn. 1, 3; Tex. 1,6; Va. 58; W. Va. 3, 15; Wis. 1, 18; Wy. 1, 18.
« N. H., Mass., Me.
» Utah.
" Del. 1, 1; Vt. 1, 3.
" Va. 59.
12 Ala. 1, 3; Cal. 4, 30; Col. 9, 7 Fla. Decln. Rts. 6; Ga. 1, 1, 14; III 8, 3; Ind. 1, 6; La. 53; Mich. 4, 40 Minn. 1, 16; Miss. 66; Mo. 2, 7; Mon 5, 35; Okla. 2, 5; Ore. 1, 5; Pa. 3, 18 S. C. 11, 9; S. D. 6, 3; Tex. 1, 7; Utah 1, 4; Va. 67 & 141; Wash. 1, 11; Wis. 1, 18; Wy. 1, 19.
>3 La.
'* Cal; Col.; Ida. 9, 5; 111.; Mo. 11, 11; W. Va. 3, 15.
15 Cal.; Col.; Ida. 9, 5; 111.; Mich.; Mo.; Okla.; S. C; S. D.; Tex.; Va. 10, 13.
'« Cal.; Col.; 111.; Mo.; S. C; S. D. 8, 16.
PART l] BILL OF RIGHTS: CIVIL 139
in the Legislature.* Nor shall the State or anv countv or muni- cipality accept any grant or gift of land, money or other property to be used for sectarian purposes.^
But by the Constitution of New Hampshire the Legislature may authorize towns or parishes to provide at their own expense for the support of Protestant ministers.^ And in Massachusetts * and Missouri parishes may do so. So in Maine, religious societies.^ But in Virginia and West Virginia it is expressly provided to the contrary."
For religious corporations and their support, see also § 323 ; for schools, § 54.
§ 45. Religious Test — In many States no religious test may be required as a qualification for office,^ for any public trust under the State,^ for voting,*" for serving on juries,*" or for being a witness in a court of law.**
Nor can a man be questioned in a court as to his religious belief, in order to shake his credit,*- or be deprived of any civil right as a citizen on account of his religious sentiments.*^
§ 46. Limitations. — But by the Constitution in a few States, a man cannot hold office who denies the being of Almighty God or the existence of a Supreme Being.** Nor is he competent as a
»Mich. 4, 24; Ore. » Ala.,Cal.,Del., Ga., Ind., lo., Kan.,
^ Ida. 9, 5; Neb. 8, 11; S. D. Md., Me., Mich., Minn., Mo., N. J.,
3 N. H. 1, 6. Ore., Tenn., Tex., Utah, Wis., Wy.
* Mass. Amt. 11. * Ark., Kan., Minn., Utah, W. Va.
6 Me. 1,3. *" Cal.; Md. Decln. Rts. 36; Mo.;
8 Tlie introduction of these provi- N. D. 4; Ore. 1, 6; Tenn. 1, 6; Utah; sions into the Virginia Bill of Rights is Wash. ; W. Va. ; Wy. commemorated on Jefferson's tomb. " Ark.; Cal.; Fla. Decln. Rts. 5; The Church of England was " estab- Ind. 1, 7; lo.; Kan.; Md.; Mich. 6, lished " in Virginia before the Revo- 34 ; Minn. ; Mo. ; N. D. ; Neb. ; Nev. lution, as, more recently, was the 14; N. Y. 1, 3; O.; Ore.; Tex. 1, 5; " Congregational " or English Calvinist Utah; Wash.; Wis.; Wy. church in Massachusetts and Connec- *- Ore. 1, 6; Wash, ticut, to the extent that taxes were " Ala.; Ariz.* B. Rts. 13; Col. 2, 4; levied in support of the same. Ida.; 111. 2, 3; lo. 1, 3; Ky. 5; Mich.
' Ala. 1, 3; Ark. 2, 26; Cal. 20, 3; 4, 41; Mon. 3, 4; N. J.; Okla.; R. I. Del. 1, 2; Ga. 1, 1, 13; 111. 5, 25; Ind. 1, 3; S. D. 6, 3; Va. 5, 14; Vt. 1, 3; 1, 5; lo. 1, 4; Kan. B. Rts. 7; Mass. W. Va. 3, 15. This provision would Amt. 7; Md. Decln. Rts. 37; Me. 1, 3; seem to apply generally to the rights Mich. 18, 1; Minn. 1, 17; Miss. 18; of voting, holding office, serving on Mo. 2, 5; Neb. 1,4; N.J. 1,4; N. M.* juries, or being witnesses. Compare 95, 1; 1851, July 12, § 3; N. Y. 12, 1; § 40, ad fin. Religious disqualifica-
0. 1, 7; Okla., 1, 2; Ore. 1, 4; R. I. tion only disappeared from England in
1, 3; Tenn. 1, 4; Tex. 1, 4; Utah 1, the nineteenth century.
4; Va. 58; Wash. 1, 11; W. Va. 3, 11; '" Ark. 19, 1; Miss. 265; N. C. 6, 5; Wis. 1, 19; Wy. 1, 18. See U. S. 6, 3. S. C. 4, 3; 17, 4; Tex. 1, 4.
140 THE STATE CONSTITUTIONS [BOOK III
^vitnoss.' Nor, it seems, can ii nuin hold oflice unless he helieves in Ciod- and in a future state of rewards and j)unishnients.^ And a man who does not believe in (lod and a future state of retribu- tion will be deemed incompetent as a witness or juror.*
§ 47. Oaths and Afjirmuiiuii.s. — The provisions of § 40 shall not be construed to dispense with oaths or afhrmations.'' And the mode of administering an oath shall be such as is most binding upon the ])erson sworn." The general form is to be such as shall be deemed by the Legislature the most solemn appeal to God,^ but an affirmation may be made, instead of an oath, by Quakers.* Any oath or affirmation, taken as above, renders the person liable for perjury, if falsely taken, as if the oath were in the ordinary form.^
§ 48. Sundays and Sabbaths. — By the Constitution of Ten- nessee no person shall, in time of peace, be required to perform any service to the public on any day set apart by his religion as a day of rest.^"
§ 49. Superstitious u^es are not recognized in the American law. White, § 19.
Article 5. Education
§ 50. General Right.^^ — In some States the Constitution declares that the people have a right to education, which it is the duty of the State to guard and maintain,'^ "without distinction of race, color, caste or sex." ^^
In others, that a general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, it shall be the duty of the Legislature to encourage the promotion of intellectual, scientific, moral, social, and agricultural improvement,^* "to cherish the interests of literature and the sci- ences," ^^ or " to encourage schools and the means of instruction." ^^
* Ark. and so, possibly, by the c. 1. in " See § 21. There is, of course, no other States. White, p. 65. constitutional right to free education
^ Md. Decln. Rts. 37; Pa. 1, 4; except where so specified.
Tenn. 9, 2. i^ N. C. 1, 27 ; Wash. 9, 1 ; Wy. 1, 23.
" Pa., Tenn. "^ j^a. 9, 6; Wash.; Wy. 7, 10. See
* Ark.; Md. Decln. Rts. 36. § 21.
« Ark. 2, 26; Col. 2, 4; Ida. 1, 4; " Cal. 9, 1; Ind. 8, 1; To. 9,2,3; Kan.
111. 2, 3; Mon.; Neb. 1, 4; O. 1, 7. 6, 2; Mass. 5, 2; Md. Decln. Rts. 43;
« Ind. 1,8; Ky. 232 ; Md. Decln. Rts. Mich. 13,11; Miss. 201 ; N. D. 151 ; Nev.
39; Ore. 1, 7; Tex. 1, 5; Wash. 1, 6. 11, 1; W. Va. 12, 12. See also § 391.
' Ky. 15 Mass.; N. H. 2, 82; Tenn. 11, 12.
« Mass. Amt. 6; N. H. " i^^^ g^ i- m^ss.; Me. 8, 1; N. C.
» Mass., N. H., Tex. 9, 1 ; N. D. 147; Neb. 1, 4; N. H.; O.
'° Tenn. 11, 15. 1, 7; R. I. 12, 1; S. D. 8, 1; Tex. 7, I.
PART l] BILL OF raCIITS : CIVIL 141
" All religious societies or bodies of men, united or incorporated for the advancement of religion or learning, or other pious or chari- table purposes, ought to be encouraged and protected in the enjoy- ment of the rights, immunities, and estates which they in justice ought to enjoy, under such regulations as the Legislature direct."*
This right or duty of education is not mentioned or referred to in the Federal Constitution, though most of the other fundamental principles are. It would therefore seem without the power of the national government to prescribe, limit or regulate the State com- mon schools (10 Bush, 681), (63 Ky. 49). A treaty to that effect, though valid in favor of a foreign power, would not be binding upon the States except as a consequence of the war power.
§ 51. Free Schools. — The Constitutions of nearly all the States provide for a system of free schools.^ And in most of the newer States there is provided by the Constitution a school fund to be used for that purpose.^
§ 52. Time of Holding. — The schools must be held, in several States, for at least three months a year in every district;* in others, at least four months,^ and in some six."
' Vt. 2, 41. Congress after they had adopted con-
2 Ala. 256; Ark. 14, 1; Cal. 9, 5 Col. 9, 2; Del. 10, 1; Fla. 12, 1; Ga 8, 1, 1; Ida. 9, 1; 111. 8, 1; Ind. 8, 1
10. 9, 1, 12; Kan. 6, 2; Ky. 183; La, 248; Md. 8, 1; Me. 8, 1; Mich. 13, 4 Minn. 8, 3; Miss. 201; Mo. 11,1; Moa
11, 1; Ord., N. C. 9, 2; N. D. 147 Neb. 8, 6; Nev. 11, 2; N. J. 4, 7, 6 N. Y. 9, 1; 0.6,2; Okla. 13, 1; Ore 8,3; Pa. 10,1; S. C. 11,5; S. D. 8, 1 22, 1; Tex. 7, 1; Utah 3, 4; 10, 1; Va 129; Vt. 2, 41; Wash. 9, 1; 26, 1
stitutions which were declared "re- publican in form" (U. S. Stats. 1890, 656 and 664). One of these enabling acts also required it to be according to the principles of tlie Declaration of Independence ; which would seem to make it, after all, a constitutional document.
2 Ala. 256, 279; Ark. 14, 2; Cal. 9, 4; Col. 9, 3; Ct. 8, 2; Del. 10, 2; Fla. 12, 4; 1893, p. 491; Ga. 8, 1, 1; Ida. 9, 2; 111. 8, 2; Ind. 8, 2; lo. 9, 2, 1;
27, 1; W. Va. 12, 1; Wis. 10, 3; Wy. Kan. 6, 3 ; Ky. 184; La. 248; Md. 8, 3;
7, 1; Ord. (Irrevocable witliout the Mich. 13, 2; Minn. 8, 2; Amt. 1903, 25;
consent of the U. S.; Wy., Wash., Miss. 206; Mo. 11, 6-8; Mon. 11, 2; N. C.
Utah, N. D., S. D., Mon.) See U. S. 9, 4, 5; N. D. 1, 53; Neb. 8, 3; Nev. 11,
Stats. 1889, 180. In Georgia, free 2; N. J. 4, 7, 6; N. Y. 9, 3; O. 6, 1;
schools are to be established only on Ore. 8, 2; Pa.; R. I. 12, 2; S. C. 11, 6;
two-thirds vote of the town or county S. D. 8, 2; Tenn. 11, 12; Tex. 7, 2;
or district, and the legislature may Utah 10, 3; 9, 6; Va. 134; Wash. 9,2;
prescribe who sliall vote at such elec- 16, 1; W. Va. 12, 4; Wis. 10, 2; Wy.
tion (1903, p. 23). The Dakotas, Mon- 7, 2. (This also is irrevocable without
tana, and Washington were authorized the consent of the U. S. as above in
admission by Act of Cong'ess pre- six of the new Western States.)
scribing that they should adopt State * Col.; lo. 9, 1; Kan. 6, 4; Mich.
constitutions containing this, with 13,5; Mo. 11, 2; Mon. 11,6; Neb. 8,
other similar provisions, upon procla- 7; Wis. 10, 5; Wy. 7, 8.
mation by the President. For Utah, « Miss. 205; Mo. 11, 7; N. C. 9, 3;
see U. S. Stats. 1894, 138. Idaho and Va. 136.
Wyoming were admitted by Acts of ^ Cal., Nev.
142 THE STATE CONSTITUTIONS [BOOK III
In Vermont, there must be one or more schools in each town, and one or more grammar schools in each county;' antl one in each township, in Minnesota.-
§ 53. A(jc of Scholars. — The free schools must provide instruc- tion for all persons between the ages of 5 and 21,-' G and 21,'' 4 and 20,^ 5 and 1S,° G and 18/ G and 20,"^ 7 and 20," 7 and 21.'" See also § 55.
§ 54. Unscctarian *S'c/<oo/,v." — No public money shall ever be appropriated for the support of any sectarian or denominational school; '- and the same would follow from § 44 in other States. So, no public money can be appropriated for any school not under the exclusive control of the State or its school department.'''
No sect shall ever have any exclusive right to, or control of, the State school fund.'^ So, the school fund is for "the equal benefit of the people. ' ' "^
No sectarian instruction or control is permitted, directly or in- directly in any of the State schools.'" No religious test required, for teacher or student.'^ No teacher or student shall ever be re- quired to attend or participate in any religious service whatever.'^
§ 55. Compulsory Attendance. — The Constitutions of a few States specify that the Legislature may enact laws requiring the attendance at a free school of all persons between six and eighteen years of age for a term of at least sixteen months in all; "^ and
1 Vt. 2, 41. Utah 10, 13; Wash. 9, 4; Wis. 1, 18;
' Minn. 8, 3. Wy. 7, 8; Ord. 5. Irrevocable — see
' lo. 9, 2, 7; Kan.; Minn. 8, 2; § 51 note 2 — in tlie six new States
Neb. 8, 6. and in Idaho, by Act of Congress
* Ark.; Col.; Ida. 9,9; Mon. 11, 7; (U. S. Stat. 1890, 656, 658), as to N. C. ; Pa.; S. C. 11, 5; Wy. 7, 9. lands granted by the United States.
* Ore. 8, 4; Wis. 10, 3. '^ Cal.; Mass.; Me. 8, 1; Mon. 5, 35; « N. J. 11, 8; N. D.; Pa. 3, 17; S. C. 11, 9; ' Ida. 9, 9; La. Okla. Va. 141; Wy. 3, 36.
8 Mo. 11, 1. " Kan. 6, 8; Miss. 208; O. 6, 2;
« Va. Tex. 1891, 195.
>" Ala. '" Ct. 8, 2; N. J.; Tenn. 11, 12;
" See also §§ 44, 323. For sex dis- Wash. 26, 1; 9, 4; Wy. 7, 12, Ord.
tinctions, color distinctions, etc., in '"Cal.; Col. 9, 8; Ida, 9, 6; Mon. 11,
schools, see §§ 22, 24. 9; N. D. 147; Neb. 8, 11; Nev. 11, 9;
'■' Ala. 263; Cal. 9, 8; Col. 9, 7; S. C; S. D. 22, 4; 26, 1; 8, 16; Utah
Del. 10, 3; Ida. 9, 5; 111. 8, 3; Ky. 10, 1; 3, 4; Wis. 10, 3 (irrevocable in
189; La. 253; Mass. Amt. 18; Mich, the new States, see § 51, note 2).
4, 40; Minn. 8, 3; Miss. 208; Mo. 11, ^' Ida. 9, 6; Mon.; Utah 10, 12 & 1.
11; Mon. 11, 8; 5, 35; N. D. 152; '^ Col, Ida., Wy.
N. H.2,82; N. Y. 9, 4; Pa. 10, 2; S. C. '"> N. C. 9, 15; Okla., Wy. (unless
11, 9; S. D. 8, 16; 26, 18; Tex. 7, 5; educated by other means).
PART l] BILL OF RIGHTS: CIVIL 143
SO, of children between eight and twelve/ not mentally or physically disabled." '" So, of all persons between six and eighteen for a terra of at least three years, ^ or three months each year.*
So, in Nevada, the Legislature may enact laws to insure general attendance.^ See also § 53.
§ 56. Universities. — The Constitutions of many of the States provide for a State university or college."
So, in Massachusetts, Harvard College is specially recognized by the Constitution and provided for ; ^ and in Connecticut, Yale ; ^ In Virginia, William and INIary ; ° in Louisiana, Southern University for Negroes; ^° in California, Leland Stanford. ^^
And in some States the Constitution provides specially for free normal schools or academies. ^^
And in others for an agricultural school or schools; ^^ for a school of mines; ^* for a mechanical school; ^^ manual training or technical schools; ^^ a school of forestry; ^^ a scientific school; ^^ kindergartens. ^^
§ 57. The Language taught in the schools is, by the Constitu- tion of two States, to be English;-" but in Louisiana the instruc- tion may be given in French.
§ 58. Libraries. — The Constitutions of two States provide that there shall be at least one public library in each township.-^
So, in Iowa, the State school fund may be applied to the estab- lishment of libraries.-^
§ 59. Legislative Restrictions. — No educational or charitable
1 Del. 10, 1; Va. 138. Miss. 201; Mon. II, 12; N. C. 9, 14;
2 Va. N. D. 148-215; Nev. II, 5; N. Y. 9, « Col. 9, II; Wy. 7, 9. I; Pa. 3, 17; S. C. 10, 6; Utah 10, 2;
* Okla. 13, 4. Va. 137; Wash. 9, 2; W. Va. 12, II;
* Nev. II, 2. Wis. 10,2.
6 Ala. 264; Cal. 9, 9; Col. 9, 12; " Ala. 266; Cal.; La. 255; Mich.
Fla. 8, 2; Ga. 8, 6, I; Ida. 9, 10; lo. 13, II; Miss. 8, 8; N. C. 9, 14; N. D.;
9, 1, II; Kan. 6, 7; La. 255; Mich. Nev.; Okla. 13, 7; S. C; Tex. 7, 13;
13, 6-8; Minn. 8, 4; Miss. 213; Mo. Utah; Va.
11,5; Mon. II, 11; N. C. 9, 6, 7; N. D. i* Col. 8, 5; N. C; S. D. 14,5; Wy.
215; Neb. 8, 10; Nev. II, 4; N. Y. 9,5.
9, 2; Ore. 8, I: S. C. II, 8; S. D. 14, 4; '' Ala., La., N. C, S. C, Tex., Va. Tex. 7, 10; Utah 10, 4; Wis. 10, 6; »« La. 256; Va.; Wash. 9, 2. Wy. 7, I-I5. " N. D.
' Mass. 5, 1. »8 N. D.
* Ct. 8, 1. 19 La., Utah.
» Va. 141. 2« Ga. 8, 1, I; La. 251; Mich. 13, 4.
" La. 256. French was used in the Enghsh House
" Cal. 1899, p. 493. of Commons until 1414. »2 Cal. 9, 6; 1901, p. 948; Fla. 12, -^ Ind. 13, 12; Mich. 13, 12. 14; Kan. 6, 2; La. 256; Me. 8, 1; -^ lo. 9, 2, 4.
144 TIIH STATE CONSTITUTIONS [ROOIv III
institution, othcT than the State institutions now existing;, or ex- pressly provided for in this Constitution, shall be estahlisiicd by the State, except upon a vote of two-thirds of the members elected to each House of the General Assembly.'
Neither the Le<;i.slature nor the State Board of Education shall have power to prescribe text-books to be used in the common schools.^ In California they must be printed by the State. ^
The metric system shall be taught in the public schools of the State.* So, agriculture, stock-feeding, and domestic science.''
No teacher or officer connected with the public school system shall be interested in the sale of text-books." Text-books must be uniform.^ Separate schools for white and colored must in some States be provided. See § 22.
Article 6. Miscellaneous Rights
§ 60. Freedom of Speech. — Nearly all the States ^ provide in some phrase for general freedom of speech; ^ thus, "every man is given the right freely to vn-ite, speak, and publish his opinions on all subjects, being responsible for the abuse of that privilege." '"
No law shall ever be passed to abridge or restrain freedom of speech and of the press. ^' This is the form in the Federal Consti- tution. And so, in two, of freedom of speech only; ^- and in sev- eral, of freedom of the press only.^^
In others, there is a declaration that the liberty of the press ought
1 La. 60. 111. 2, 4; Ind. 1, 9; lo. 1, 7; Kan. B.
' Utah 10, 9; Wy. 7, 11. Rts. 11; Ky. 8; La. 3; Md. Decln. Rts.
» Cal. Amt. 1894, Nov. 6. 40; Me. 1, 4; Mich. 4, 42; Minn. 1, 3;
« Utah 10, 11. Mo. 2, 14; Mon. 3, 10; N. D. 9; Neb.
«Okl. 13, 7. 1,5; Nev 1,9; N.J. 1,5; N. M.*95, 1;
« S. D. 8, 17. July 12, 1851, § 5; N. Y. 1, 10; O. 1,
^ Okla. 13, 6. 11; Okla. 2, 22; Ore. 1, 8; Pa. 1, 7;
8 (Except Del., N. H., Mass., R. I.) S. D. 6, 5; Tenn. 1, 19; Tex. 1, 8;
® For speech in the Legislature, see Utah 1, 1; Va. 1, 12; Wash. 1, 5; Wis.
§272. Freedom of speech and of the 1, 3; Wy. 1, 20. Substantially the
press are both guaranteed by U. S. C. English law, though not in the Eng-
Amt. 1. By Eng. Stat. W. & M. S. 2, lish Constitution. See White, p. 87.
C. 2, the principle is limited to speech in ^' Ala. 1, 4; Cal.; Ct. 1, 6; Fla. ;
the Legislature ; nor does Blackstone Ga. ; Ind. ; lo. ; Ky. 1 ; La. 3 ; Mich. ;
give it as one of the fundamental rights. Miss. 13; Mon.; Nev.; N. J. ; N. M.*;
though he calls liberty of the press N. Y.; O.; Okla.; Ore.; S. C. 1, 4;
" essential to a free State." See follow- Tex. ; Utah 1, 15; Va. 12 & 58; W. Va.
ing note. 3, 7; Wis.
" Ala. 1, 4; Ark. 2, 6; Ariz.* B. Rts. '- Col., Mo.
16; Cal. 1, 9; Col. 2, 10; Ct. 1, 5; Fla. '^ Ark., Del., Ky., Mass., Me., N. Y.,
Decln. Rts. 13; Ga. 1, 1, 15; Ida. 1, 9; Pa., Tenn.
PART l] BILL OF RIGHTS: CIVIL 145
to be maintained ; ' or that " the printing-presses shall be free to every person who undertakes to examine the proceedings of the Legislature or any branch of government; and no law shall ever be made to restrain the right thereof." -
In one, the general right extends only to freedom of speech, and freedom to publish matters relating to the government or officers thereof;^ while in three "any man may publish his sentiments on any subject, being responsible for the abuse of that liberty." ^
Limitations. — But the Constitution of West Virginia specifies that the Legislature may restrain the sale of obscene books, etc. ; and that they may provide for the punishment of libel and de- famation; and the Federal Government, under U. S. Const. I. 8, (8) denies to such the use of the mails.
§ 61. Lihel.^ — The Constitutions of many States provide that in all civil and criminal trials for libel the truth may be given in evidence.® [This would seem implied in certain cases by the Constitutions of other States; see below.] So, in seven others, when the matter published is proper for public information, or in prosecutions for libels on officers or men in a public capacity.'' But in some the principal provision applies to criminal trials only.^ [This, also, would seem implied by the Constitutions of other States mentioned below.]
And the truth, in all civil and criminal trials for libel, is a suffi- cient defence.^ But only in the absence of malice,*" or when pub- lished with good motives and for justifiable ends.**
In other States the truth is a sufficient defence only in indict- ments or prosecutions for libel, when the libellous matter was pub- lished with good motives and for justifiable ends.*^
1 Kan.; Md.; Mass. 1, 16; Minn.; B. Rts. 11; La. 179; Mo. 2, 14; Mon N. H. 1, 22; N. C. 1, 20; Vt. 1, 13; Va. 3, 10; Nev. 1, 9; N. D. 9; S. C. 1. 21
2 Del. 1, 5; Ky. 8; Pa.; Tenn. W. Va. 3, 8.
3 Vt. 1, 13. ' Ala. 1, 12; Del. 1, 5; Ky. 9; Me
* Del.; N. C; R. I. 1, 20. 1, 4; N. M.* 1851, July 12, § 6; Tenn
* The doctrine of the general verdict 1, 19; Tex. 1, 8.
and evidence of truth in prosecutions ^ Ark. 2, 6; Cal. 1, 9; lo. 1, 7;
for libel grew up under George III but Mich. 6, 25; Miss. 13; N. J. 1, 5; N. Y
is not expressed in any English con- 1,8; O. 1, 11; Okla. 3, 22; Utah 1,
stitutional document. The English 15; Wis. 1, 3. Stat. 32 Geo. Ill, C. 60, only dates from » Ind. 1, 10. 1791 II Taylor, 491. The EngUsh " R. I. 1, 20.
law is now similar to the American " Fla. ; 111.2,4; Kan.; N. D. ;Neb.
(note 12) by 6 & 7 Vict. c. 96. See § 132. 1, 5; Nev.; S. D. 6, 5; W. Va. ; \Vy.
6 Col. 2, 10; Ct. 1, 7; Fla. Decln. 1,20. Rts. 13; Ga. 1, 2, 1; Ind. 1, 10; Kan. '^ Ark. 2, 6; .Cal. 1, 10; lo. 1, 7;
10
146 THE STATE CONSTITUTIONS [BOOK III
In Indiana the provision is simply that the truth may be given in justification in "all prosecutions for libel." ' And in Pennsylvania, that no conviction shall be had in any prosecution for the publica- tion of papers relating to the official conduct of ofl^icers or men in public capacity, or to any other matter proj)er for public investiga- tion or information, when the jury find that such publication was not maliciously or negligently made."
In many States the jury are to determine the law and the facts, under direction of the court, in all prosecutions for libel ; ^ and in some, also in civil suits.* And may give a general verdict as in other cases. ^
The Constitution of California provides that indictments or infor- mations for libels by newspapers are to be tried either in any county where the paper is published or in that of the plaintiff's residence, unless the venue is changed for good cause. ^
§ 62. Arms.'^ — The Constitutions of most States provide that the people shall have the right to bear arms in defence of them- selves and the State ;^ and this is perhaps implied in three other States.^ In others, in defence of themselves only; '° or, in others, the provision is simply that "they have the right to bear arms." ^^ But the Legislature may prescribe the manner in which arms are to be borne; '^ as "with a view to prevent crime," ^* or may forbid the carrying of concealed weapons.^*
Mich.; Miss.; N.J.; N. Y.; O.; Okla.; jects "which are Protestants." The
S. D. 6, 5; Utah 1, 15; Wis.; Wy. 1, 20. basing of this right upon the necessity
^ Ind. 1, 10. of miUtia, as in the Federal Constitu-
^ Pa. 1, 7. tion, is not historically correct.
3 Ala., Cal., Col., Ct., Del., Ga., Ky., » Ala. 1, 26; Ariz.* B. Rts. 5; Ark.
La.,Me.,Mich..Miss..Mo.,Mon.,N.D., 2,5; Col. 2, 13; Ct. 1, 17; Fla. Decln.
N. J., N. Y., Pa., S. C, S. D., Tenn., Rts. 20; Ind. 1, 32; Ky. 1; Mass. 1,
Tex., Utah. Wis., Wv. See White, p. 98. 17; Me. 1, 16; Mich. 18, 7; Miss. 12;
* Col., Ct., Mo., Hon., N. D., S. D., Mo. 2, 17; Mon. 3, 13; N. M.* July 12,
Wy. 1851, § 13; Okla. 3, 26; Ore. 1, 27;
5 N. D. Pa. 1, 21; S. C. 1, 26; S. D. 6, 24;
6 Cal. 1, 9. Tenn. 1, 26; Tex. 1, 23; Vt. 1, 16;
7 See Art. 29. Compare Eng. Stat. Wash. 1, 24; Wy. 1, 24.
W. & M. S. 2, C. 2. U. S. C. Amt. 2. « Md. Decln. Rts. 28; N. H. 1, 24;
"The right of feud, or private war, Va. 1, 15. See § 290.
was a right which every Teutonic free- ^'' Ida. 1, 11; Kan. B. Rts. 4; O. 1,
man considered inalienable — a right 4; Utah 1, 6.
which entered with him into every " Ga. 1, 1, 22; La. 8; N. C. 1, 24;
political or social organization of which R. I. 1, 22.
he was a part." (Hannis Taylor, I. 195). ^- Fla., Ga., Ida., Utah.
The right to arms is probably pri- '^ Tenn., Tex.
mordial; but it is definitely recog- " Col., Ky., La., Miss., Mo., Mon.,
nized in the Bill of Rights, as to sub- N. C, Okla.
PART I J
BILL OF rights: CIVIL
147
§ G3. " Pinkerton Men, " etc. — No armed person or bodies of men shall be brought into this State for the preservation of the peace or the suppression of domestic violence, except upon the application of the General Assembly, or of the Governor when the General Assembly may not be in session.' — No armed police force or representative of a detective agency shall ever be brought into the State for the suppression of domestic violence ; nor shall any other body of men be brought in for that purpose except upon application of the Legislature, or the Executive when the Legisla- ture is not in session (as provided for the regular army in the United States Constitution).^
No flag other than the United States flag can be carried.^
So, the right to bear arms does not authorize individuals or cor- porations to organize, maintain or employ an armed body of men.* No corporation or association shall bring any armed person or bodies of men into this State for the preservation of the peace or the suppression of domestic trouble without authority of law.^
§ G4. Assemblies.^ — In all the States except Minnesota and Virginia, the Constitution declares that the people have a right to
1 Ida. 1, 46 ; Ky. 225 ; Mon. 3, 31; N. D. 190; Utah 12, 16; Wash. 1, 24; Wy. 19, 1. As provided for in U. S. C. 4, 4.
2 Ida. 14, 6; Mon. 3, 31; S. C. 8, 9; Wy. 19, 1.
3 Wy. 17, 4.
* Wash. 1, 24.
5 Utah 12, 16. The objection to private war is by no means new. The complaint of "retainers" or armed retinue was frequent in feudal times, and was one of the causes of granting the writ de odio et atla, when justice was thereby overborne. The Court of Star Chamber was created to sup- press such "maintenance" and pre- vent " assemblies " of private retamers of powerful persons, much as a modern injunction is directed against a mob of strikers. Taswell-Langmead, p. 296.
* Founded on U. S. C. Amt. 1 ; and (as to the right of petition) on Eng. Stat. W. & M. S. 2, C. 2. This right to assemble and the right to petition are somewhat different tilings. The former right is not expressed in any written constitutional document of England, but it u attributed by Dicey
(The Law of the Constitution, p. 258) to the "result of the view taken by the courts as to individual liberty of per- son and individual liberty of speech." In England both the right to assemble and the right to petition in so far as they are constitutional principles only extend to a peaceable and orderly meeting or petition ; in fact the Stat- ute of 13 Charles Second Chap. 5 for- bids petitions to the Iving or Parlia- ment signed by more than twenty or presented by more than ten persons The U. S. Constitutional amendment, however, expresses both rights, "the right of the people peaceably to assem- ble, and to petition the government for a redress of grievances." Tliis right to assemble is not merely politi- cal (M?Clain, p. 309) but extends to assemblies for religion?, social, and busi- ness purposes. It would of course in- clude the right to meet and combine for the purpose of nominating or de- feating the nomination of any political candidate. Hence an organization of American citizens, rich or poor, for that purpose, cannot properly be termed a conspiracy.
148 THE STATE CONSTITUTIONS [BOOK III
assemble peaceably, consult together and petition the Legislature for the redress of grievances;' to instruct their representatives;^ and "for other proper purposes." ^
But in one, secret political societies are declared dangerous to liberty, and should not be tolerated.'
§ 65. Emigration. — In six States the Constitution declares that all persons have a right to emigrate from the State. ^ Or, that they have a rijjht to emigrate from one State to another."
§ 66 Immigration. — The Constitution of Alabama declares that immigration shall be encouraged ; ' but by the Constitution of Oregon the Legislature has power to restrain and regulate the im- migration into the State of persons not qualified to become citizens of the State. ^
In a few States there is, by the Constitution, a Commissioner. * or a bureau or department of Lnmigration.'"
In Delaware the Board of Agriculture is to encourage immigration.-**
In Texas the Legislature is forbidden to create such a department.'^
Article 7. Rights at Law
§ 70. General Rights. '^^ — In nearly all the States the Con- stitution declares that every person ought to have a certain remedy
1 Ala. 1, 25; Anz.* B. Rts. 15; guaranteed by the U. S. Constitution. Ark. 2, 4; Cal. 1, 10; Col. 2, 24; Ct. See Crandall u. Nevada, 6 Wall. 35.
1, 16; Del. 1, 16; Fla. Decln. Rts. 15; « Vt. 1, 19.
Ga. 1, 1, 24; Ida. 1, 10; 111. 2, 17; ' Ala. 1,30.
Ind. 1, 31; lo. 1, 20; Kan. B. Rts. 3; « Ore. 1, 32. See § 22. This is
Ky. 1; La. 5; Mass. 1, 19; Md. Decln. doubtless contrary to the Federal
Rts. 13; Me. 1, 15; Mich. 18, 10; Constitution. See also § 22. The
Miss. 11; Mo. 2, 29; Mon. 3, 26; N. C. right of a State to foster immigration
1, 25; N. D. 10; Neb. 1, 19; Nev. 1, was denied by an executive ruling un-
10; N. H. 1, 32; N. J. 1, 18; N. M.* der Roosevelt's second administration.
95, 1; 1851, July 12, § 18; N. Y. 1, » Md. 10, 3.
9; O. 1, 3; Okla. 3, 3; Ore. 1, 26; Pa. '« N. C. 3, 17; Va. 143; Wash. 2, 34;
1, 20; R. I. 1, 21; S. C. 1, 4; S. D. 6, Ida. 13, 1.
4; Tenn. 1, 23; Tex. 1,27; Utah 1, 1; '^ Del. 11, 7.
Vt. 1, 20; Wash. 1, 4; W. Va. 3, 16; '^ ^ex. 16, 56.
Wis. 1, 4; Wy. 1, 21. '^ This provision isfounded on Magna
2 Ariz., Cal., Fla., 111., Ida., Ind., lo., Charta, cap. 40: " We \^-ill sell to no Kan., Mass., Me., Mich., N. C, Nev., man, we will not deny to any man N. H., N. J.,0.,Ore.,Tenn.,Vt., W. Va. either justice or right." Compare
3 Ala., Ct., Del., Ky., N. D., Pa., also § 130. See Taswell-Langmead, R. I., S. D., Tenn., Wy. pp. 103, 107. The right to law — as
* N. C. against all, king, officer, or subject —
* Ala. 30; Ind. 1,36; Ky. 24; Ore. is the cardinal Constitutional right, 1, 30; Pa. 1, 25 This right is recog- and has been fully discussed in Part I. nized in Magna Carta (c. 42) and is See Taylor, I. 516; II. 3, 271.
PART l] BILL OF RIGHTS : CIVIL 149
at law for all injuries to the person, property or character; and to obtain justice freely without being obliged to purchase it, com- pletely and without denial, promptly and without delay. ^ So "without sale, denial or delay,"- "or prejudice;"^ or, by due course of law,* "promptly and without delay;" '^ "by due course of law, without sale, denial or delay." ^
And in many States that all courts shall be open.''
So, in four, no person can be deprived of his right to prose- cute or defend liis own cause in any of the courts of the State.*
But all persons except witnesses may be excluded from court room in cases of adultery, rape, etc.^
§ 71. Arrest and Search.^^ — In all the States but New York the Constitution declares that the people have a right to hold them- selves, their houses and possessions without unreasonable search and seizure; consequently, no warrant of search or seizure ought to be issued but upon probable cause supported by oath; and the warrant must describe the thing or person to be seized. ^^ Or, that general warrants, whereby an officer may be commanded to search suspected places without evidence oF the act committed,
» Ark. 2, 13; Col. 2, 6; Ct. 1, 12; » Miss.
Del. 1, 9; Fla. Decln. Rts. 4; 111. 2, 19; ^^ Compare U. S. C. Amt. 4; Decln.
Ind. 1, 12; Ky. 14; Mass. 1, 11; Md. Ind. (22). See II. Hannis Taylor, 382
Decln. Rts. 19; Me. 1, 19; Minn. 1, 8; and Va. B. Rts. 10. TWs may be said
Mo. 2, 10; N. C. 1, 25; N. D. 22; to be the only constitutional principle
N. H. 1, 14; N. M.* 95, 1; Okla. 2, 6; first established in America (by James
Ore. 1, 10; Pa. 1, 11; R. I. 1, 5; S. C. Otis, arguing against writs of assis-
1, 5; Tenn. 1, 17; Vt. 1, 4; W. Va. tance in Massachusetts) and afterwards
3, 17; Wis. 1, 9. adopted in England (by Lord Camden,
== Ida. 1, 18; Miss. 24; Mon. 3, 6; State Trials, Vol. XIX. p. 1030).
Okla. ; Wy. 1, 8. " Ala. 1, 5; Ariz.* B. Rts. 7; Ark.
=* Ida. 2, 15; Cal. 1, 19; Col. 2, 7; Ct. 1, 8
Ala. ; Ark. ; Ct. ; Del. ; Fla. ; 111. Ind.; Kan. B. Rts. 18; Ky. ; Mass. Md . ; Me. ; Minn. ; Miss. ; N. C. ; N. D. N. H.; N. M.* 1851, July 12, § 11 Ore.; Pa.; R. I.; S. C. 1, 15; Tenn
Del. 1, 6; Fla. Decln. Rts. 22; Ga 1, 1, 16; Ida. 1, 17; 111. 2, 6; Ind. 1 11; lo. 1, 8; Kan. B. Rts. 15; Ky. 10 La. 7; Mass. 1, 14; Me. 1, 5; Mich 6, 26; Minn. 1, 10; Miss. 23; Mo. 2
Tex. 1, 13; Vt.; W. Va.; Wis. 11; Mon. 3, 7; N. D. 18; Neb. 1, 7
^ Kan.; S. C; Wash. 1, 10. Nev. 1, 18; N. H. 1, 19; N. J. 1, 6
« Ala. 1, 13; La. 6; Neb. 1, 13; O. N. M.* 95, 1; 1851, July 12, § 7; O
1,16; S. D. 6, 20; Utah 1, 11. 1,14; Okla. 2, 30; Ore. 1, 9; Pa. 1, 8
' Ala.; Col.; Ct.; Del; Fla.; Ida. Ind.; Ky. ; La.; Miss.; Mo.; Mon. N.C.; N. D.; Neb.; N. M.*; O.; Okla. Ore.; Pa.; S. C; S. D.; Tenn.; Tex. Utah; Vt. 2, 4; Wash.; W. Va.; Wy. to be searched; Okla.).
« Ala. 1, 10; Ga. 1, 1, 4; Miss. 25 Utah.
R. I. 1, 6; S. C. 1, 16; S. D. 6, 11 Tex. 1, 9; Utah 1, 14; Vt. 1, 11 W. Va. 3, 6; Wis. 1, 11; Wy. 1, 4.
See also U. S. Amt. 4, ^and the place
150 THE STATE CONSTITUTION'S [BOOK III
or to seize a person not named, or whose ofFenee is not partifularly described and supported hy evidenee, are "grievous and ()u<;ht not to be granted.' And in Washington "no jx-rson shall be disturbed in his private affairs, or his home invadeil without authority of law." -
§ 72. Trial by Jury.^ — In most States there is a general pro- vision in the Constitution that the right to trial by jury shall remain inviolate.*
In a few this provision applies only to civil cases,'' or only to controversies concerning property and suits between two or more persons [i. c, civil suits]." So, the right shall only in civil cases exist when an issue of fact proper for a jury is joined in a court of law.^ In Texas the Constitution further provides that the Legislature shall pass laws to regulate trial by jury, and maintain its purity and efficiency.
§ 73. Exceptions. — (For criminal causes, see § 131.) There is in many States no constitutional right to trial by jury when the amount in controversy does not exceed a certain sum.^ Or in minor courts; as, in civil cases, before a justice,'' or in courts not of record. But the right usually exists when the title to real estate is involved.'" In some States the right is expressly declared to extend to all cases at law, without regard to the amount in controversy.''
Some States make an exception to the right to a jury "in cases heretofore used and practised." '-
1 Md. Decln. Rts. 26; N. C. 1, 15; N. J. 1, 7; N. M.* 95, 1; 1851, July 12, N. H.; Tenn. 1, 7; Va. 1, 10; Vt. § 12; N. Y. 1, 2; O. 1, 5; Okla. 2, 19;
2 Wash. 1, 7. This seems to estab- Pa. 1, 6; R. I. 1, 15; S. C. 1, 25; S. D. lish the much discussed "right to 6, 6; Tenn. 1, 6; Tex. 1, 15; Va. B. privacy." Rts. 10; Wash. 1, 21; Wis. 1, 5; ^Ny.
3 Compare Decln. Ind. (22) and 1, 9.
U. S. C. Amt. 7. For a fuller discus- ^ Ind. 1, 20; Ore. 1, 17; W. Va. 3,
sion of the questions of jury trial and 13. See § 131.
due process of law, see §§ 140, 131. ° Mass. 1, 15; Me. 1, 20; N. C. 1,
Trial by jury is not the judgment of 19; N. H. 1, 20; Va. 1, 11.
his peers referred to in Magna Carta, ' Md. 15,6; Vt. 1, 12. For criminal
c. 39, but grew out of that when it be- causes, see § 131.
came the usual mode of trial some cen- * In detail, $5. Md. 15, 6; S20,
turies later. Taswell-Langmead, p. 105. Okla. 2, 19; W. Va. 3, 13; $100, N. H.
Taylor, I. 281, 310, 331, 332. 1, 20.
* Ala. 1, 11; Ariz.* B. Rts. 8; Ark 2, 7; Cal. 1, 7; Ct. 1, 21; Del. 1, 4 Fla. Decln. Rts. 3; Ga. 6, 18, 1; Ida 1,7; 111.2,5; To. 1,9; Kan. B. Rts. 5 Ky. 7; Md. Decln. Rts. 5; Mich. 6, 27 Minn. 1, 4; Miss. 31; Mo. 2, 28; Mon
9 W. Va.
'» N. H.
" Ark., Minn., S. D., Wis. This would seem to follow from the silence of the Constitution in other States.
1- 111., Mass., Md., Me., Mo., N. H.,
3, 23; N. D. 7; Neb. 1, 6; Nev. 1, 3; N. Y., Pa.
PART l] BILL OF RIGHTS : CIVIL 151
The Legislature may alter the law trial by jur}^ as to causes aris- ing on the high seas, or concerning mariners' wages. ^
In some the Legislature may in civil cases authorize a trial by a jury of less than twelve men.- So, in a few States, in inferior courts [as before a Justice of the Peace]. ^ So, in New Jersey,* in civil suits involving less than fifty dollars, and in Connecticut in cases involving twenty dollars and not more than one hundred dollars, by a jury of six men.^ And in three States the parties may agree on a jury less than twelve in number.^ In one no jury is allowed in cases tried before a Justice of the Peace, except on appeal therefrom.^ A jury in justices' courts, civil or criminal, consists of not more than six.^ In Kentucky the Legislature may provide for a three-fourths verdict in the Circuit Court.''
And by the Constitutions of a few States, in civil actions, three- fourths of a jury may render a verdict.'" So, two-thirds.'*
Juries are of eight men, or four in minor courts.'-
§ 74. Waiver .^^ — By the Constitutions of many States the right to a trial by jury may be waived by the parties in all cases in the manner prescribed by law.'* In some, the right shall be deemed waived, in all civil cases, unless demanded by the parties, or one of them, in the manner prescribed by law.'^
So, in one State, the Constitution only provides that the right shall be preserved if required by either party.'*'
§ 75. Suits against the State.^'' — In many States the Constitu-
^ Mass., N. H. " Mon., Mo. (in courts not of
" Col. 2, 23; Fla. 5, 38; La. 116; record.)
Mich. 4, 46; Wy. 1, 9. The constitu- " u^ah 1, 10.
tional number of a jury was always, and '^ For criminal cases, see § 132.
must necessarily be, twelve men. See " Ark. 2, 7; Ariz.* B. Rts. 82; Cal.
Taylor, I, 203, 206. 1, 7; Del. 4, 23; Fla. Decln. Rts. 2;
* Fla. (six men); Ga. (but not less Ida.; Md. 4, 1, 8; Minn. 1, 4; Mon. than five men); III.; lo.; Ky. 248 3,23; N. C. 4, 13; Nev. 1,3; N.Y.I, (six men); Mo.; Mon.; N. C. 4, 27 2; Pa. 5, 27; Vt. 2, 31; Wash. 1, 21; (six men); N. D.; Neb.; Okla. 2, 19 Wis. 1, 5.
(six men); S. D.; Tex. 5, 17 (six men '' Mich. 6, 27; Tex. 5, 10; Utah
in the county court); Va. ; Wash.; 1, 10.
W. Va. " W. Va. 3, 13.
* N. J. 1, 7. " For the method of prosecuting ^ Ct.* 679. claims against the State, in the courts, ® Cal., Ida., Mon. see also § 6.53. The Federal courts ^ W. Va. were forbidden to entertain suits
* Mon. against a State by the eleventh ^ Ky. 248. amendment. A State, being sovereign, *" Cal.; Ida. 1, 7; Mo. 1899, p. 381; cannot be sued but with its own
Nev.; Okla. 2, 19; S. D.; Tex. 5, 13; consent. Utah; Wash.; 1, 21.
152
THE STATE CONSTITUTIONS
[book III
tion provides that the Legislature shuU direct a method by which citizens having claims against it may sue the State.' No special act authorizing such suit can, however, be passed.'^ In a few, the Supreme Court has, by the Constitution, jurisdiction of claims against the State, but its decisions are merely recommendatory.^ In others a board is created to audit claims.^
In others, the State can never be made defendant in a court of law or equity.^
§ 76. The Common Laii\^ — By the Constitution of Maryland the people are declared entitled to the common law of England.^ So, in New York, such parts of the common law as formed the law of the colony, April 19, 1775, are declared in force, if not repugnant.^
So, in four States, to such parts of the common law as were in force in the territory, or previously to the adoption of the present Con- stitution in the State, if not inconsistent with the State Constitution.^
So, in ^Maryland, such English statutes as existed July 4,
» Cal. 20, 6; Del. 1, 9; Fla. 3, 22; Ind. 4, 24; Ky. 231; La. 192; N. D. 22; Neb. 6, 22; Nev. 4, 22; Ore. 4, 24; Pa. 1, 11; S. C. 17, 2; S. D. 3, 27; Tenn. 1, 17; Wash. 2, 26; Wis. 4, 27; Wy. 1, 8.
2 Fla., Ind., Nev., Ore.
3 Ida. 5, 10; N. C. 4, 9.
* The Secretary, Treasurer, and Commissioner of Lands of the State shall constitute a board of State auditors, to examine and adjust all claims against the State not othermse provided for by general law (Mich. 8, 4). So, the Governor, Secretary of State, and Attorney General (Ida. 4, 18; Mon. 7, 20; Utah 7, 13). They are examined by the auditor, and approved by the Secretary of State, with appeal to the District Court (Neb. 9, 9).
* Ala. 14; Ark. 5, 20; 111. 4, 26; W. Va. 6, 35, and so, where the laws are silent.
® Altering the common law, as it has been altered in England, by growth rather than by statute, still prevails in most States. California and the Da- kotas, Idaho, AVyoming, Utah, Mon- tana, and Oklahoma have attempted complete codes, however; Georgia, New York, and other States, partial codes. See Blackstone, Book III. p.
126, for the earliest argument against them; Reinsch, Am. Legislatures, for the latest. The effect of a code seems to be to render the law uncertain and increase the number of suits that are carried to the higher courts. The so-called codes of the earlier kings, Edward the Confessor or Henry II., were in no sense codes in this modern sense.
The Constitutional history of Eng- land consists mainly in the reassertion of the common English law against Norman ideas, whether in the form of royal prerogative, statute, order-in- council, church authority, chancery, martial or civil law. See Part I. "The laws of the English, the most ancient of modern laws, extend in an unbroken series from the first [written] laws of Ethelbert. . . (600) down to the pres- ent time" (Taswell-Langmead, p. 33). They were recognized by William the Conqueror (ibid. 52), formally recog- nized by everj^ k'ng on his coronation, and for the last time questioned by Charles I. See Taylor, I. 425, 271.
^ Md. Decln. Rts. 5.
« N. Y. 1, 16.
9 Mich. Sched. 1; N. J. 10, 1; Va. Sched. 1; W. Va. 8, 36; Wis. 14, 13; Wy. 21, 3.
PART l] BILL OF RIGHTS: CIVIL 153
1776, and are, or have been found, applicable. In New York, grants of land made by the King after October 14, 1775, are invalid.^
§ 77. Law Previously in Force. — By the Constitutions gener- ally, such laws of the colony (in the original thirteen) or territory (in the others) or State, as were in force previous to the Constitution, remain in force afterwards unless repugnant to it, or repealed by the Legislature.^
In Kentucky, all laws, not local, which were in force in Virginia, June 1, 1792, are vaUd in the former State if not repugnant to its Constitution.^ In Maine all Massachusetts laws in force December 6, 1819.^ In West Virginia all land titles are valid which existed under the laws of Virginia up to 1863.^
§ 78. Miscellaneous Rights at Laiv.^ — In Nebraska the Con- stitution provides that the right in all civil cases to be heard in the court of last resort by appeal, etc., shall not be denied.^
§ 79. Venue.^ — Every action shall be tried in the county where commenced unless the judges determine that an impartial trial can- not be had.®
Article 8. Debtors
§ 80. Imprisonment for Debt. — In many States the Constitu- tion provides absolutely that there shall be no imprisonment for debt.^" In others, no imprisonment for debt in any civil action or mesne or final process,'^ or in any action or judgment founded upon contract.^- In others, that there shall be no person imprisoned for
1 N. Y. 1, 17. * Me. 10, 1.
2 Ala. Sched. 1; Ark. Sched. 1 Cal. 22, 1; Col. Sched. 1; Ct. 10, 3 Del. Sched. 18; Fla. 18, 2; Ga. 12, 1, 3 Ida. 21, 2; 111. Sched. 1; Ind. Sched. 1 lo. 12, 2; Kan. Sched. 4; Ky. Sched. 1 La. 325; Mass. 6, 6; Md. Decln. Rts 5; Me. 10, 1; Mich. Sched. I; Minn Sched. 2; Miss. 274; Mo. Sched. 1 Mon. 20, 1; N. C. 4, 19; N. D. Sched 2; Neb. 18, 1; Nev. 17, 2; N. H. 2, 89 N. J. 10, 1; N. Y. 1, 16; O. Sched. 1 Okla. Sched. 2; Ore. 18, 7; Pa. Sched 2; R. I. 14, 1; S. C. 17, 11 & 10 Tenn. 11, 1; Tex. 16, 48; Utah 24, 2
« AV. Va. 13, 1.
^ For the right to counsel, see § 134.
-> See also §§ 654, 665. Neb. 1, 24.
* For criminal cases, see § 133
9 Del. 1, 9. See U. S. C. Amt. 6.
" Ala. 1, 20; Fla. Decln. Rts. 16 Ga. 1, 1, 21; Ida. 1, 15; Ind. 1, 22 Kan. B. Rts. 16; Md. 3, 38; Minn. 1 12; Miss. 30- Mo. 2, 16; N. C. 1, 16 Nev. 1, 14; Okla. 2, 13; Ore. 1, 19 S. C. 1, 24; Tex. 1, 18; Utah 1, 16 Wash. 1, 17; Wy. 1, 5.
" Ark. 2, 16 ; Ariz.* B. Rts. 18; Cal. 1, 15; To. 1, 19; Neb. 1, 20; O.
Va. Sched. 1; Wash. 27, 2; W. Va. 8, 1, 15; Ore. 1, 15; Tenn. 1, 18. 36; Wis. 14, 2; Wy. 21, 3. '- Mich. 6, 33 ; N. J. 1, 17; S. D.
3 Ky. 293. 6, 15; Wis. 1, 16.
154 THE STATE COXSTITUTIONS [BOOK III
debt in any civil action when he luis ileUvered up his property for the benefit of creditors in the manner prescribed by law.*
And a general exception is made in case of fraud.- So the T>eg- islature has power to provide for the punislmient of fraud, and for reaching property of the debtor concealed from his creditors.' Absconding debtors may be imprisoned ; ' or debtors in cases of libel or slander ; ^ in civil cases of tort generally ; " in cases of malicious mischief ; ' or of breach of tru.'it ; * or of moneys col- ^ lected by public officers, or in any professional employment; " for non-payment of fines, etc.'"
§ 81. Debtor Exemption Laws.^^ — The Constitutions of many States have provisions exempting certain property of resident debtors from attachment, execution or sale by creditors; thus, in detail "that the privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws exempting a reasonable amount of property ; " *- that the Legislature shall pass liberal exemption laws;'^ that laws shall be passed protecting from forced sale a certain amount of the personal property of adults, male and female ; " that certain personal property to be designated by law, to the value of five hundred dollars, shall be exempted.'^
That personal property (of any nature) to the value of §200, in the hands of a husband, a parent, or the infant children of deceased parents, shall be exempted.'" Personal property (of any nature) to be selected by the debtor, to the value of S500 '^ or of $1000; '^ and wearing apparel and tools and implements of trade, to the value of $300, of any person.'^ Personal property of a resident not mar- ried or the head of a family, to the value of $200 and his clothing,
* Col. 2, 12; 111. 2, 12; Ky. 18; of real and personal property are not
Mon. 3, 12; N. D. 15; Okla.; Pa. 1, kept distinct, see §§ 83 e< sej. The ex-
16; R. I. 1, 11; Vt. 2, 33. emption of a farmer's horse and cattle
^ Ariz.*, Ark., Cal., Col., Fla., Ida., or plow and of an artisan 's tools goes
111., Ind., lo., Kan., Ky., Mich., Minn., back to Magna Carta, c. 20. See Tas-
N. C, N. D., Neb., Nev., N. J., O., well-Langmead, p. 92.
Ore., Pa., R. I., S. C, Tenn., Vt., ^' Ind. 1, 22; Minn. 1, 12; Mon. 19,
Wy. 4; N. D. 208; Nev. 1, U; S. D. 21, 4;
"03.1,2,6. Wis. 1, 17.
« Ore., Utah, Wash. '^ Col. 18, 1 ; 111. 4, 32.
« Nev. " Cal. 17, 1; Tex. 16, 49; Wash.
« Cal., Col., N. D. 19, 1.
» Cal. " Md. 3,44; Mich. 16, 1.
8 Ariz.*, Mich. " W. Va. 6, 48.
9 Ariz.*, Mich. " N. C. 10, 1 ; S. C. 3, 28.
10 Mo. " Ala. 204. '1 For States where the exemptions '* S. C.
PART l] BILL OF RIGHTS: CIVIL 155
and personal property of the head of a family to the value of $500, besides their clothing, are exempt from any process on a debt founded on contract; ^ $1000 worth of personal property owned by the head of a family.' And the exemption applies only to heads of families in other States.^
Exceptions. — ■ These exemptions do not prevail against artisans' liens on the property claimed as exempt.^ Nor, against a debt for the purchase money of the exempt property, in the hands of the vendee.^ Nor, against a levy for taxes. ^ Nor for debts of laborers or servants.''
These exemptions may be waived by an instrument in writing.^
By the Constitution of North Carolina a husband may insure his life for the sole use and benefit of his wife and children, and at his death the claim shall be paid to the widow and children, or their guardian, for their use, free from all liabilities of the husband or claims of his representatives.''
§ 82. Homestead. — The same States usually have provisions concerning the homestead exemption; thus, "that the Legislature shall pass liberal homestead laws." ^^ That there shall be a home- stead exempt, as provided by law.^* That a homestead in the possession of each head of a family is exempt, with improvements thereon to the value, in all of $1,000,'- or of $1,500,'^ or even of $5,000.'*
In other States the laws vary in great detail.'^
' Ark. 9, 1, 2. in any toT\Ti; or instead thereof, at the
* Fla. 10, 1. option of the owner, any lot in any ^ Cal., S. C. city, village, or recorded town plat, ^ Ala. 10, 4; Minn. 1889, p. 1. Amt. or such parts of lots as shall be equal
1, 12. N. C. 10, 4. thereto, and the dwelling house thereon
® Ark. ; W. Va. ; Okla. 12, 3. and its appurtenances, owned and
' Fla., S. C, W. Va. occupied by any resident of the State,
^ Minn. not exceeding in value $1,500, shall
* Ala. 210. be exempt from sale under legal pro- ^ N. C. 10, 7. cess. In Kansas (15, 9), a homestead
" Col. 18, 1; 111. 4, 32; Mon. 19, 4; to the extent of 160 acres of farming N. D. 208; S. D. 21, 4; Wash. 19, 1. land, or one acre in a town or city, '' Cal. 17, 1; Nev. 4, 30; Wy. 19, 1. occupied as a residence by the family '- S. C. 3, 28; Tenn. 11, 11; W. Va. of the owner, with all improvements, 6, 48. be so exempt. In North Carolina '^ Utah 22, 1. (10, 2), every homestead and buildings " Okla. 12, 2. ' thereon, to be selected by the owner, *^ Thus, in Michigan (16, 2), every or in lieu thereof a town lot and build- homestead, if not exceeding 40 acres ings thereon, owned and occupied by a of land, and the dwelling house thereon, resident of the State, not exceeding in and the appurtenances to be selected value SI, 000, shall be so exempt In by the owner thereof, and not included Virginia (190), every householder or
156
THE STATE CONSTITUTIONS
[book III
§ 83. Exceptions. — The liomestcad exemption does not avail as against any mortgage or pledge thereon, lawfully obtained;* or, as against any lien.-
Nor, against any obligation or debt contracted for the purchase of the premises (or property),-' or contracted for improvements thereon.* Nor, against a sale for taxes. ^ Nor against a claim for
head of a family shall be entitled, in addition to the articles now exempt from levy or distress for rent, to hold exempt his real or personal property, or either, to the value of $2,000, to be selected by him.
A married woman is entitled to a homestead, her husband not having Bufficient property to constitute one (S. C). In Arkansas (9, 3-5), the homestead of a resident who is married or the head of a family, not exceeding 160 acres of land outside of a town, with improvements thereon, nor ex- ceeding in value $2,500, but not less than 80 acres, without regard to value; or, if in a town, not exceeding one acre, nor $2,500 in value, but not less than one quarter acre, is exempt. In Texas (16, 50, 51), the homestead of a family, 200 acres in extent, with improvements, or, in a town, lots to the value of $5,000, exclusive of improvements, \^^th the improvements thereon (provided the same be used for the purposes of a home, or as a place of business of the head of the family), is exempt.
In Alabama (205), every homestead not exceeding 80 acres, mth improve- ments thereon, to be selected by the owner, or, in a town, any lot with improvements, not in all exceeding $2,000 in value, owned and occupied by a resident, is exempt. In Georgia (9, 1, 1; 9, 4, 1), there is exempt from levy or sale of the property of every head of a family, or guardian or trustee of a family of minor children, or any aged or infirm person, or person having the care and support of dependent females of any age, who is not the head of a family, realty or personalty, or both, to the aggregate value of $1,600 besides improvements (and besides this, the Constitution recognizes a species of homestead previously existing called short homestead. In Florida (10, 1), a homestead to the
extent of 100 acres of land, or lialf an acre in a town, and improvements thereon, owned by the head of a family residing in the State, is exempt. In Louisiana (24-1), of every iiead of a family, or person having a mother or father, or person or persons dependent on him for support, there is exempt the homestead bona fide owned by the debtor and occupied by him, consist- ing of lands, buildings, and appurte- nances, whether rural or urban; also one work-horse, one wagon, one yoke of oxen, two cows and calves, twenty-five head of hogs, or one thousand pounds of bacon or its equivalent in pork, and on a farm the necessary corn and fodder for a year, and farming imple- ments to the value of $2,000; if the homestead exceed $2,000 in value, the beneficiary is entitled to that amount in case a sale of the homestead under legal process realize more than that sum; but no husband is entitled to a homestead whose wife was and is in the actual enjoyment of property to the value of $2,000. In Oklahoma (12, 1) a homestead of 160 acres in the country or one acre in a city, town, or village, not over $5000 in value, but in no case less than one quarter acre.
1 Ala. 205; Fla. 10, 4; Mich. 16, 2; Nev. 4, 30; S. C. 2, 28; Va. 190.
- Ark. 9, 3; Kan. 15, 9; N. D.; Nev.
^ Ark. ; Fla. 10, 1 ; Ga. 9, 2, 1 ; Kan. ; La. 245 ; N. C. 10, 2 ; Nev. ; Okla. ; S. C. 2,28; Tenn. 11, 11; Tex.; Va.; W. Va. 6, 48 ; Wy. 19.
* Fla., Ga., Kan., La., N. D., Nev., Okla., S. C, Tenn., Tex. (such claims for work or materials used in improve- ments must be evidenced by written contract for with the consent of the wife given as in a deed of the home- stead.) W. Va., Wy.
^ Ark., Fla., Ga., Kan., La., N., C, Nev., Okla., S. C, Tenn., Tex., Va., W. Va., Wy.
PART l] BILL OF EIGHTS : CIVIL 157
services thereon by a laboring person or mechanic/ or against laborers' or mechanics' liens thereon,^ or against a debt incurred by a public officer, fiduciary or attorney-at-law as such,' or trustee of an express trust.* Nor against a claim for rent, or for the lesral fees of an officer,^ or a debt for the removal of incumbrances thereon.^
"The yearly products of the homestead are not exempt as against obligations contracted in the production of the same." ^
§ 84. Alienation. — A homestead cannot be alienated or mort- gaged without the joint consent of husband and wife.^ An instru- ment of waiver of homestead rights, besides being so signed, must be attested by one witness.® In Texas no mortgage, trust-deed, or other lien on the homestead is ever valid, except for the purchase- money therefor or improvements thereon, as in § S3, whether such mortgage, etc., is created by the husband alone or together with his wife; and all pretended sales of the homestead involving any condition of defeasance are void.'"
All homestead rights may be waived by the debtor in writing except S300 worth of household furniture and provisions, and wearing apparel."
No temporary renting shall change the character of a homestead, no other homestead having been acquired.'"
§ 85. Recording. — The Constitution of Nevada pro\ades that laws shall be enacted requiring homesteads to be recorded. '^
§ 86. Duration. — In some States the homestead estate continues exempt from the owner's debts after his death, during the minority of any of his children." In others, during the life and widowhood of his widow, unless she be the owner of a homestead in her own right. '^ So, it is provided in general terms that it shall inure to the benefit of the widow. '^ So it would seem to be implied in Texas, where the Constitution provides "that on the death of the husband, wife, or both, the homestead descends and vests like other real
* Fla., La., Va. " Ala. 210.
2 Ala. 207 ; Ark. ; Ga. ; N. C. 10, 4. »" Tex. 16, 50. These are surprising ' Ark., La., Va. innovations.
* Ark. 11 Ga. 9, 3, 1.
* Va. »2 Tex. 16, 51 ; Okla. 12, 2. « Ga. " Nev. 4, 30.
' S, C. " Ala. 206; Ark. 9, 6, 10; La. 244;
« Ala. ; Fla. 10, 1 ; Kan. 15, 9 ; La. Mich. 16, 3 ; N. C. 10, 3 Tenn. ; W. 246; Mich. 16, 2; N. C. 10, 8; Nev. Va. 6, 48. 4, 30; Okla., 12, 2; S. C. 2, 28; Tenn. ; '^ Mich. 16, 4 ; N C. 10, 5. Tex.; Wy. " Ala. 208; Fla. 10, 2; La ; Tenn.
158 THE STATE CONSTITUTIONS [BOOK III
property of the deceased, and shall he governed hy the same laws of descent and distribution, Jnit shall not he partitioned among the heirs of the deceased during the lifetime of the hushand or widow, or so long as he or she occupy or use the same as a home- stead, or the guardian of minor children be permitted so to do by order of court." ' So, in Arkansas, during her natural life (whether she marry or not), unless she be the owner of a homestead in her own right. In Florida the homestead exemption iimres to the widow and heirs of the party enjoying it.^
§ 87. Stay Laws. — By the Constitution of Virginia no law staying the collection of debts can be passed.^
§ 88. Garnishment. — By the Constitution of Texas no current wages for personal service shall ever be subject to garnishment/
Article 9. Eminent Domain,^
§ 90. General Principles. — In two States private property is expressly declared by the Constitution to be inviolate. ° But, in four, subservient to public welfare when necessity demands it.^
But it cannot be taken by law ^ without just compensation being made.*^
§ 91. Taking for Public Use. — The Constitutions of many States prescribe specially that no man's property shall be taken, ^" damaged, or destroyed for public use " without just compensation being made,^^ or not without the owner's consent or just compensa-
* Tex. 16, 52. only specify property "taken," not " Fla. 10, 2. merely damaged, but the distinction ^ Va. 194. should be unimportant. Property dam-
* Tex. 16, 28. aged is property "taken" in part,
* See also section 15 for the general though not destroyed. "Taken or ap- principle. The principles of this arti- plied" (Del.).
cle are covered repeatedly in Magna " /. e., by the State or by a munici- Carta. Kansas and North Carolina pal corporation, or, perhaps by a quasi- alone have no constitutional provi- public corporation. In some States sions covering tliis article, which has the words "public use" extend, by the doubtless had its effect in the hberal context, to takings by a private cor- opinions of Kansas courts upon laws poration for a public use (N. J., 111., destroying property rights, Wy., Wash.).
•5 Ark. 2, 22; O, 1, 19. '" Ala. 23; Ark. 2,22; Ariz. *B. Rts.
' Mass, 1. 10; Me. 1, 21; O. ; Vt. 14; Cal. 1, 14; Col. 2, 15; Ct. 1, 11;
1.2, Seeabo§92. Fla. 16, 29; Ga. 1, 3, 1; Ida. 1, 14;
^ /. e. either for public or private 111. 2, 13; Ind. 1, 21; lo. 1, 18; Ky.
use; compare §§ 91-93. 242; La. 167; Mass. 1, 10; Me. 1, 21;
» Fla. Decln. Rts. 12; 16, 29; Ind. Mich. 18, 14; Minn. 1, 13; Amt. 1895,
1,21; Mass.; N. M.* 95, 1. 5; Miss. 17; Mo. 2, 21; Mon. 3, 14 ;N.
1" The U.S. Amt. 5 and many States D. 14; Neb. 1, 21; Nev. 1, 8; N. J.,
PART l] BILL OF KIGIITS : CIVIL 159
tion/ or the consent of the owner's representatives (i c, the legis- lature) and just compensation,' or his own consent or that of the representative body of the people.^
But reservoirs, storage-basins, irrigation canals, ditches, flumes, and pipes for water drainage, or mining purposes, working mines, as dumps, hoists, shafts, tunnels, etc., are declared a public use in the arid States.* So, as to water only,^ or "any other use necessary for the complete development of the material resources of the State or the preservation of the health of its inhabitants." ^
§ 92. Taking by Private Parties.'' — Private property cannot constitutionally be taken for private use, or the use of corporations other than municipal, without the consent of the owner, except as below. ^
But land may be taken by private parties in a manner provided by law for ways of necessity/ for drains across another's land,^° for flumes and aqueducts across another's land.^^ In a few, lands may be taken by private persons or corporations, for a public way.^^ or for works of internal improvement generally. ^^
But the Constitution declares that no man's property can be taken for such private use ^* without just compensation.^^
No right of way shall be appropriated to the use of a corporation
(other than municipal) until full compensation is paid or secured
in money. ^^
1, 16; 4, 7, 8; N. Y. 1, 7; O. 1, 19; Okla. 2, 23; S. C. 1, 17; Wash. 1, 16;
Okla. 2, 24; Ore. 1, 18; R. I. 1 16; S. Wy. 1, 32.
C. 1, 17; S. D. 6, 13, 17, 18; Utah 1, « Ala.; Col; Ga. ; 111. 4, CO; Mich.
22; Va. 58; Vt. 1, 2; Wash. 1, 16; 18, 14; Miss. 110; Mo.; Mon. ; N. J.
W. Va. 3, 9; Wis. 1, 13; Wy. 1, 33. 1, 16; N. Y. 1,7; Okla.; Wash.; Wy.
See also § 90. Or, in several States, " Col. 16, 7; Ida. 1, 14; 111. 4, 31;
"secured to be made." (lo., Me., Nev., Mo. ; Mon. 3, 15 ; N. Y. ; Okla. ; Wash. ;
Pa., Minn., Wash.) Wy.
1 Md. 3, 40; N. M.* 1851, July 12, "Col.; Ida.; Wash.; Wy. See
§14; Tex. 1, 17. These distinctions also §§ 91, 418.
would appear unnecessary. *- Ala.; Ark. 12, 9; Cal. 1, 1±;
- Del. 1, 8; Pa. 1, 10; Tenn. 1, 21. Minn. 10, 4; N. J.
3 Mass. ; N. H. 1, 12 ; Vt. 1, 9. '' W. Va. 3, 9.
•* Ida. ; Wy. " This is probably law in many
^ Mon. 3, 15. See § 418. other States, as included in the provi-
* Ida. sions of § 91. See § 91, notes.
^ In States having no provisions ^* Ala.; Ark.; Col. 2, 15; 16, 7; Fla.
under this section, the right of eminent 16, 29 ; Ga. 1, 3, 1 ; Ky. 242 ; Mich. ;
domain can probably only be exer- Minn.; Mo. 2, 21 ; N.J. 4, 7, 8; N. Y. ;
cised under Sections 90, 91; and land O. 1, 19; Okla.; Pa. 16, 8; Wash.; W.
can never be taken for private use. Va. ; Wy.
(See Mo. 2, 21.) »« Cah ; Fla.; Kan. 12, 4 ; N. D. 14;
» Ala. 1, 23; Col. 2, 14; Mo. 2, 20; Nev. 8, 7; O. 13, 5; S. C. 9, 20; Wash.
1, 16.
160 THE STATE CONSTITUTIONS [BOOK III
In Alabama, that the right of eminent domain shall not be so construed as to allow taxation or foreed subscription for the benefit of railroatis or any corporations, except municipal.
The fee of land taken for railroad tracks without the consent of the owners remains in them subject to the use for which it is taken.*
§ 93. Compensation. — The compensation must, in most States, always be paid - before ^ the taking.* So, when the taking is for public improvements in towns.^ But not in some States, when the taking is by the State.® Nor when the taking is by a municipal corporation.^ Until the compensation is paid, as above, the rights of the owner are not, in two States, divested.^
§ 94. Junj Trial. — The amount of compensation for property so taken must be determined by a jury, either in cases of taking by the State,* or by public or municipal corporations,'" or in cases of taking by private parties or corporations, under § 92," or, when any corporation is interested for or against the right of taking. '^
In Wisconsin, the necessity of the taking must also be ascertained by a jury in cases of taking by municipal corporations against the owner's consent.'^ And so, in Michigan, in all cases where a jury
1 111. 2, 13; Mo.; Okla. 2, 23; S. D. Col., Mo., Okla. On the appeal from
6, 13. Or highways; S. D. See § 519. preliminary assessment: Ala. Always
^ "Except in cases of war, riot, fire, by a jury when required by the owner;
or public peril, or, in Ohio, making or not, as above, by the commissioners :
repairing public roads" (O., Nev.). Or, Col. Except when agreed upon by the
in some States, secured to be paid by parties (this would seem to follow in all
a deposit in money or bond; see § 91, States). Md., N. D.
note 1. (lo., Mich., O., Pa., Kan., '"Ala.; Col.; 111. 2, 13, 20; Ky. ;
W. Va., Ark., Tex., Ore., Nev., S. C.) Md. ; Mich. 15, 15; 18, 2; Mo.; N. Y.
3 Except, in some States, by the 1, 7; O. ; Okla.; S. D. On the appeal
owner's consent. [Tliis would seem to from preliminary assessment: Ala., Ky.
follow in all States, from general Or by commissioners: Col., Mo.,N. Y.
principles.] Always by a jury when required by
* Ala. 23; 235; Ark. 12, 9; Cal. 1, the owner; not, as above, by com- 14; Fla. 16, 29; Ga. ; Ida.; Ind. 1,21; missioners: Col. Except when agreed lo. ; Kan. 12, 4; Ky. 242; La.; Md. ; upon by the parties: Md., Okla. Mich. 15,9; Minn.; Miss. 17; Mon. ; " Ark., Ala., Cal, Col., 111., lo., N. D. 14; Nev. 1, 8; N. J. 4, 7, 8; O. 1, Fla., Ky., Mich., Md., Mo., N. Y., O., 19; Okla. 2, 23; Ore. 1, 19; 11, 4; Pa. Okla., N. D., S. C, W. V., Wash. On 16, 8; S. C. 1, 17; S. D. 6, 13; 17, 18; the appeal from preliminary assess- Tex. ; Wash.; W. Va. ment Ala., Ky.; Ark. 12, 9. Always
* Mich. 15, 5 ; Pa. by a jury when required by the owner;
* Cal.; Ind.; Mich.; N. J. 1, 16; not, as above, by commissioners: Col, Ore. 1, IS; Tex.; W. Va. On the appeal from preliminary assess-
' Cal. ; N. J. ; Wash. 1, 16; W. Va. ment : Ala., Ky., Okla. Or by commis-
« Col. 2, 15; Mo. 2, 21. sioners: Col., N. Y., Mo. » N. D. 14 ; Id. 1, 18 ; Col. 3, 4 ; Md. ; '^ 111. 11, 14 ; Mo. 12, 4.
O. ; Okla. 2, 24 ; Mo. ; Ala. ; S. D. Or " Wis. 11, 2.
by commissioners appointed by law:
PART l] BILL OF RIGHTS : CIVIL 161
trial is required by the Constitution. So, in others, in opening private roads. ^
The question whether the use alleged to be public is really so must be determined by the court, any legislation asserting it to be public notwithstanding.^
§ 95. The Amount of Compensation must be determined with- out any reference to any benefit that may be conferred by better- ment or otherwise, in some States, in cases of taking of rights of way by a private corporation,^ or in all cases of taking for public use,* or in cases of taking by a municipal corporation.^
§ 90. Appeal from the preliminary assessment of damage [i. e., by commissioners] can, in some States, never be denied in the case of taking by corporations; and on such appeal the amount must be determined by a jury.®
§ 97. The Exercise of the Right against Franchises. — The right of eminent domain shall never be so construed as to prevent the legislature from taking the property or franchises of incorpo- rated companies and subjecting them to public use the same as that of individuals.^
Article 10. Citizens and Aliens. Language, etc.
§ 100. Who are Citizens.^ — All citizens of the United States resident in the State are, by the Constitution, declared citizens of the State.'* (For § 101, Forfeiture of citizenship by absence, see Art. 24.)
§ 102. Alien's Rights.^^ In two States the Constitution provides
» Mon., N. Y. 6 ; Pa. 16, 3 ; S. D. 17, 4 ; Utah 12, 11 ;
- Col.; Miss. 17; Mo. 2, 20; Okla. Wash. 12, 10; W. Va. 11, 12; Wy. 2, 23; Wash. An excellent legislative 10, 9; 10, 10 (4). See § 504. recognition of its boundaries on the * Founded on U. S. Amts. 14, 1, judicial power. and consequently true in all States ; see
^ Ark. 12, 9 ; Cal. 1, 14 ; Fla. 16, 29 ; also Aiticle 24. Kan. 12, 4; N. D. 14; O. 13, 5; 1, « Ala. 2; Ga. 1, 1, 25; Miss. 8; 19; S. C. 9, 20; S. D. 6, 13; Wash. Vt. Amt. 1; W. Va. 2, 3. So, in 1, 16. Alabama, all persons who have duly
* lo. 1, IS; O. 1, 19; S. D. 1, 16. declared their intention to become
* Kan. citizens of the United States. But in « Ala. 159 ; Ky. 242 ; Okla. 2, 23 ; Vermont there is an oath of allegiance
Pa. 16,8; S. D. 17, 18; see § 94. required from persons wishing to
^ Ala. 1, 23; Ark. 17, 9; Cal. 12, 8; become freemen (Vt. 2, 21). Col. 15, 8: Ga. 4, 2, 2; Ida. 8; 111. 11, ^° For tax laws, see § 334. By the 14; Ky. 195; Miss. 190; Mo. 12, 4; Act of Settlement of WiUiam III. no Mon. 11, 8; 15, 9; N. D. 134; Neb. 11, person born out of English dominions
u
102 THE STATK CONSTITUTIONS [BOOK III
that no distinction whatever can he made hetween citizens and ahens with resjK'ct to the possession, enjoyment, or dtscent of property, real or personal.' Or, in others, between citizens and aliens bo)m fide resident in the State.* But in others, this applies only as to mining property.^
In ^\>rmont, persons of good character who have come to settle in the State, having first made oath of allegiance to the same, may take, hold, and transfer real estate.'
But in others, the legislature shall enact laws limiting the number of acres of land which any alien or corporation controlled by aliens may own within the State. ^
And in Washington, the ownership of lands by alieng, other than those who in good faith have declared their intention to become citizens of the United States, is prohibited, except where acquired by inheritance, under mortgage, or in good faith in the ordinary course of justice in the collection of debts; and all conveyances of lands hereafter made to any alien directly, or in trust for such alien, shall be void. Every corporation, the majority of the capital stock of which is owned by aliens, shall be considered an alien for the purpose of this prohibition.® This does not apply to mining lands or property.
In Oklahoma,^ no alien or person not a United States citizen may take or own land, and if acquired by devise, descent, etc., he must sell within five years; but this does not apply to Indians nor to aliens who are bona fide residents, nor to lands now owned by ahens.
§ 103. Language. By the Constitutions of four States, the laws, public records, and written legislative and judicial proceedings shall be conducted, promulgated, and preserved in the English language (only).^ So, in Oklahoma, schools must be taught in English only.^
although naturalized, except such as And see § 22); Col, 2, 27; lo. 1, 22;
are born of English parents could be a Mich. 18, 13; Mon. 3, 25; Neb. 1, 25;
member of the House of Parliament or Nev. 1, 16; Ore. 1, 31; S. D. 6, 14;
enjoy any office, civil or militarj^ or W. Va. 2, 5; Wis. 1, 15; Wy. 1,29.
have any granted land from the Crown. ^ Mon. 3, 25 ; Wash. 2, 33.
This was only repealed by 7 & 8 Vict. * Vt. 2, 39.
c. 66. ' Miss. 84 ; S. C. 3, 35.
1 Fla. D. Rts. 18; Kan. B. Rts. 17. « Wash. 2, 33.
2 Ala. 1, 34; Ark. 2, 20; Cal. 1, 17; ^ Okla. 22, 1.
Amt. 1893, p. 624; (Except that in » Cal. 4,24; 111. Sched. 18; La. 165;
California a distinction may be made Mich. 18, 6. against such aliens as are not eligible * Okla. 1, 5. to become United States citizens.
PART l] BILL OF RIGHTS: CIVIL 163
In Colorado, laws are also to be published in Spanish and German.* And in Louisiana, the legislature may provide for the publication of laws in the French language, and that judicial advertisements, in certain designated districts, may be made in French. So, in INIissouri, certain characters, etc., in the German language.^ So, in Maryland, proposed amendments to the Constitution, in German.^
1 Col. 18, 8. 2 Mo. 9, 16. 3 Md. 14, 1.
lG-4 THE STATE CONSTITUTIONS [BOOK III
CHAPTER 11
BILL OF RIGHTS: CRIMINAL
Article 12. Rights Before Trial
§ 120. To Hear Accusation^ By the Constitutions of nearly all the States, persons accused of crime have the right to hear the nature and cause of the accusation.- And in many they are to have a copy of the accusation furnished them.'* In Georgia, also, to have a list of the witnesses on whose testimony the charge is founded.*
§ 121. Bailable Offences. The Constitutions of most of the states provide that all persons shall, before conviction, be admitted to bail, upon giving sufficient sureties, except (where proof of their guilt is evident or the presumption great) for capital offences.^ Or for murder and treason,^ or offences punishable with death or im-
• The wording of the text is that N. M. * 50, 7; 95, 1; O. 1, 10; Okla. of the Virginia Bill of Rights, and 1,20; Ore. 1,11; Pa. 1,9; R.I. 1,10; would apparently give the right to any S. C. 1, 18; S. D. 6, 7; Tenn. 1, 9; person arrested and accused before Tex. 1, 10; Utah 1, 12; Va. 1, 8; Vt. trial or indictment. U. S. Amt. 6 1,10; Wash. 1,22; W. Va. 3, 14 ; Wis. confines this right to criminal prosecu- 1, 7; Wy. 1, 10.
tions. The former doctrine is pref era- ^ Ala. ; Ark.; Ga. 1, 1, 5; 111 ble, and the principle is an old one, Ind. ; lo. ; Md. ; Me. ; Mon. ; Neb asserted by Coke in 1615, and probably O. ; Okla. ; Ore. ; S. D. ; Tenn. ; Tex independent of the right to habeas Utah ; Wash. ; Wy. Or of the indict- corpus: see § 125. ment (Fla.).
''No man could be committed to * Compare § 135. prison but by a le^gal warrant specify- ^ Ala. 1, 16; Ariz.* Bill of Rts. 11 ing his offence ; and by an usage nearly Ark. 2,8; Cal. 1,6; Col. 2, 19 ; Ct. 1 tantamount to constitutional right, 14; Del. 1, 12; Fla. Decln. of Rts. 9 he must be speedily brought to trial Ida. 1, 6; 111. 2, 7; lo. 1, 12; Kan by means of regular sessions of gaol Bill of Rts. 9 ; Ky. 16 ; La. 12 ; Me delivery." (Taswell-Langmead, p. 294.) 1, 10 ; Minn. 1,7; Miss. 29 ; Mo. 2, 24
2 Ala. 1, 6; Ark. 2, 10; Col. 2, 16 Ct. 1, 9; Del. 1, 7; Fla. Decln. Rts 11; 111. 2, 9; Ind. 1, 13; lo. 1, 10 Kan. Bill of Rts. 10; Ky. 11; La. 10 Mass. 1, 12; Md. Decln. Rts. 21; Me 1,6; Mich. 6,28; Minn. 1,6; Miss. 26 Mo. 2, 22; Mon. 3, 16; N. C. 1, 11 Neb. 1, 11; N. H. 1, 15; N. J. 1, 8
Mon. 3, 19; N. D. 6; Nev. 1, 7; N. J 1, 10 ; N. M.* 95, 1 ; 1851, July 12, § 9 O. 1, 9 ; Okla. 2 8 ; Pa. 1, 14 ; S. C. 1, 20 S. D. 6, 8; Tenn. 1, 15; Tex. 1, 11 Utah 1, 8; Vt. 2, 33; Wash. 1, 20 Wis. 1, 8; Wy. 1, 14.
6 Ind. 1, 17 ; Mich. 6, 29 ; Neb. 1, 9 ; Ore. 1, 14.
PART l]
BILL OF lUGIITS : CKIMIXAL
165
prisonment for life.' And so, ajtcr conviction, except for capital or infamous offences in Louisiana.
§ 122. Excessive Bail? The Constitutions of all the States except Illinois provide that excessive bail shall not be required.^
§ 123. Imprisonment of Parties Accused. In a few States the Constitution provides that no person arrested shall be treated with unnecessary rigor.*
§ 124. Witnesses. In several States the Constitution provides that witnesses shall not be unreasonably detained ; '" or that they shall not be imprisoned longer than may be necessary for securing their depositions; and thereafter shall be discharged on their own recognizance.** Depositions so obtained may be used at the trial if the witness is dead or absent from the State. ^ They shall not be confined in any room where individuals are actually imprisoned.^ Cf. § 135.
Contempts and their punishment are regulated by the Consti- tution in Oklahoma and two other States. See § 662.
' R. I. 1, 9.
- Compare Eng. Stat. 1 W. & M. Sess. 2 ; U. S. Amt. 8. Excessive bail was one of the abuses complained of in the Bill of Rights, and a usual method under the Stuarts of evading the habeas corpus. The right to bail was granted under the writ de odio et atia even before Magna Carta and was the means by which a person imprisoned on a charge of homicide could get released on bail to await the Iter of the King's Justices.
3 Ala. 1, 16; Ariz.* Bill of Rts. 10 Ark. 2, 9; Cal. 1, 6; Col. 2, 20; Ct. 1 13; Del. 1, 11 ; Fla. Decln. of Rts. 8 Ga. 1, 1, 9; Ida. 1, 6; Ind. 1, 16; lo 1, 17; Kan. Bill of Rts. 9; Ky. 17 La. 12; Mass. 1, 26; Md. Decln. of Rts. 25; Me. 1, 9; Mich. 6, 31 ; Minn. 1, 5 ; Miss. 29 ; Mo. 2, 25 ; Mon. 3, 20 ; N. C. 1, 14; N. D. 6; Neb. 1, 9; Nev. 1, 6; N. H. 1, .33; N. J. 1, 15; N. M.* 95,1; 1851, July 12, § 11; N.Y. 1,5; O. 1, 9; Okla. 2, 9; Ore. 1, 16; Pa. 1, 13; R. I. 1, 8; S. C. 1, 19; S. D. 6, 23; Tenn. 1, 16; Tex. 1, 13; Utah 1, 9; Va. 1, 9; Vt. 2, 33; Wash. 1, 14; W. Va. 3, 5; Wis. 1, 6; Wy. 1, 14.
* Ariz.* 4, 28; Ga. 1, 1, 9; Ind.l, 15; Ore. 1, 13; Tenn. 1, 13; Utah 1, 9; Wy. 1, 16. Compare § 140. So
the Constitution of Rhode Island declares that every man is presumed innocent until proved guilty by the law; and consequently no act of severity not necessary to secure the accused should be permitted. (R. I. 1, 14.) And in Delaware their friends and counsel must be allowed access to the accused. (Del. 1, 12.) "Theo- retically torture was never part of the law of England " (Taylor II. 166), but was employed under Ehzabeth and Henry VIII. to extort confessions from Roman CathoUcs by authority of the Privy Council. Coke says the rack was introduced by the Duke of Exeter under Henry VI. and adds: "There is no law to warrant tortures in this land, nor can they be justified by any pre- scription, being so lately brought in, and it was declined by the judges in the trial of Felton, the murderer of the Duke of Buckingham. (Taswell- Langmead, p. 360.)
5 Ariz.* Bill of Rts. 10 ; Ark. 2, 9 ; Cal. 1, 6; Fla. Decln. of Rts. 8; Mich. 6,31; N. D. 6; Nev. 1,6; N.Y. 1,5; S. C. 1, 19.
« Col. 2, 17; Cal.; Mon. 3, 17; Wy. 1, 12.
' Mon.
« Cal, N. D., Wy.
166 THE STATE CONSTITUTIONS [bOOK III
§ 125. Habeas Corpus.^ Three State Constitutions declare the writ of habeas corpus a writ of right.- Two others declare that the \\Tit or remedy ouglit not to be denied or delayed.^
In others, the legislature are to enact laws to render the remedy speedy and effectual.' Or the privilege of the writ is to be enjoyed in the most easy, cheap, expeditious and ample manner.^
So, North Carolina declares that every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful."
§ 126. Suspension of Habeas Corpus.'' By the Constitutions of most States, the writ can only be suspended where, in cases of
* The right to habeas corpus is 383.) The Constitution of the United contained in Magna Carta, C. 39. Its States, Art. 1, § 9 (2) providing that predecessor was known as the writ de the privilege of the writ of habeas odio et alia, which, however, was not corpus shall not be suspended, etc., granted as of right and was often only applies to action by the Federal refused except for a money payment. Government. (See § 126.) Five centuries of effort to evade this ^ Fla. Decln. of Rts. 7; Tex. 1, 12; writ, the great guaranty of personal Vt. Amt. 12. liberty, ended in the Habeas Corpus * lo. 1, 13; N. C. 1, 18. Act of Charles II. wliich applies to any * Tex., Vt.
person committed and charged with * Fla. ; Mass. 2, 6, 7 ; N. H. 2, 90. crime and requires any judge at any * N. C. 1, 18.
time to issue the writ, returnable ^ Derived from U. S. C. 1, 9 (2). immediately, and within two days to "The privilege of the writ of habeas discharge the prisoner if bailable, corpus shall not be suspended, unless This statute of Charles II. only covered when in cases of rebellion or invasion arrests on a criminal charge. This was the public safety may require it." only remedied by 56 Geo. III. c. 100. This of course only applies to the The right to personal liberty — the Federal Government ; but is most most precious of all rights — is as old unfortunately ambiguous as it does as the Constitution itself. It rests not say who is to suspend the writ, upon the common law wliich was The better law is that the President merely defined and declared by Magna may not suspend the writ, but only Carta and the stream of statutes Congress; though they may perhaps which form that enactment (Taswell- authorize the President to suspend the Langmead, p. 488). An EngUsh sub- writ on finding a special state of facts, ject was always free from lawful It may be questioned, however, whether detention except upon a criminal an act would be constitutional which charge or conviction or for a civil authorized the President to suspend the debt, and the habeas corpus was in writ at his discretion. Habeas corpus theory always a writ of right, but it will issue from a Federal court to a was doubtful whether it could be State court or other authority, but only issued by a single judge during vaca- on the ground that the person detained tion, and it was only issued by the is deprived of a right secured to him by Court of lung's Bench. The Habeas or under the Constitution of the United Corpus Act of Charles II. fixed no limit States. The President was authorized on the amount of bail which might be to suspend the writ by Act of Congress demanded, which defect was remedied in 1863, 1866, 1867 (McClain, p. 331), by the Bill of Rights in 1689, and it but there is no general act to that did not provide against falsehood in effect in Revised Statutes, the return. (See II. Taylor, pp. 328-
PART l] BILL OF RIGHTS: CRIMINAL 1G7
invasion or rebellion, the public safety requires it.* In others, it can never be suspended in any case.' "Martial law" of course would suspend it.^ The writ can only be suspended by the legisla- ture.^ In other States this is implied by the general provision of § 392; and it is a general constitutional principle.
The manner of its suspension is left to the legislature to determine by law.^
§ 127. Indictment.^ In most States, the Constitution provides that no person shall be held to answer for a capital crime ' or a crime punishable by imprisonment for life ^ or infamous crime or felony " or any criminal offence ^"^ except on indictment or presentment of a grand jury.^* So, in others, that no person, for any indictable
' Ariz.* Bill of Rts. 9; Ark. 2, 11; constitutional provision requiring an Cal. 1, 5; Col. 2, 21; Ct. 1, 14; Del. indictment in England, though the 1, 13; Fla. Decln of Rts. 7; Ida. 1, 5; effect of a habeas corpus is in most 111. 2, 7; Ind. 1, 27; lo. 1, 13; Kan. cases to make one necessary. Informa- Bill of Rts. 8; Ky. 16; La. 13; Me. tions were, however, always unpopular 1, 10; Mich. 4, 44; Minn. 1, 7; Miss, and are rendered very unusual by the 21; Mon. 3, 21; N. D. 5; Neb. 1, 8; effect of recent statutes (4 Blackstone, Nev. 1, 5; N. J. 1, 11; N. M.* 95, 1; 311) requiring express directions from 1851, July 12, § 10; N. Y. 1, 4; O. 1, the Court of King's Bench. The con- 8; Ore. 1, 23; Pa. 1, 14; R. I. 1, 9; stitutional provisions of California and S. C. 1, 23; S. D. 6, 8; Tenn. 1, 15; other code States would seem to revive Utah 1, 5; Va. 58; Wash. 1, 13; Wis. the information in all criminal cases. 1, 8; Wy. 1, 17. ' Ct., Fla., La., Me., Nev., N. M.*,
- Ala. 1, 17; Ga. 1, 1, 11; Md. 3, N. Y., O., Okla., R. L See Note 7 55; Mo. 2, 26; N. C. 1, 21; Okla. 2, below. 10; Tex. 1, 12; Vt. Amt. 12; W. Va. » Ct.
3, 4. Or can only be suspended on the * All the States previously men- most urgent occasions, and for a tioned except Ct. and La. ; and also limited time (not exceeding in Massa- in Cal., Col., Mo., N. D., and the chusetts twelve months, and in New U. S. Const. Amt. 5 as applying to Hampshire three months. Mass. 2, 6, Federal courts. An indictment is 7; N. H. 2, 90). not necessary to due process of law
^ Compare §§ 293, 392. and consequently is not required by
* Ark, Ct., Ida., Md., Mich., the Federal Constitution in the State Miss., N. H., R. I., Tenn. courts under the Fourteenth Amend-
* Ida. 1, 5 ; Neb. ment.
* Compare U. S. Amt. 5. A present- *° Ark., Ill, lo., Ky., Minn., ment is the notice taken by a grand N. C, Neb., N. J., Okla., S. C, jury of an offence of their own knowl- S. D., Tenn., Tex., W. Va.
edge without an indictment. Informa- " Ariz.* Bill of Rts. 14; Ark. 2, 8;
tion is a complaint against a person Col. 2, 8; Ct. 1, 9; Fla. Decln. of Rts.
for some criminal or penal offence, 10; 111.2,8; lo. 1, 11; La. 9 ; Me. 1,
filed by the proper officer, on behalf 7; Minn. 1, 7; Mo. 2, 12; Amt. 1899,
of the people, at his own discretion, on p. 382; N. C. 1, 12; N. D. 8 ; N. M.*
the relation of some private person; 50, 6; 1851, July 12, § 8; Neb. 1, 10;
not founded on the oath of a jury, Nev. 1, 8; N. J. 1, 9; N. Y. 1, 6; O.
although the subsequent proceedings 1, 10; Okla. 2, 17; R. I. 1, 7; S. C. 1,
are the same. (Stimson's Law Glos- 17; Tenn. 1, 14; Tex. 1, 10; W. Va.
sary.) There does not appear to be any 3, 4 ; Wy. 1, 13.
108 THE STATE CONSTITUTION'S [BOOK III
ofTonce, shall be proceeded against criininally, by information.' In Wisconsin and Minnesota, no person shall be held to answer for a criminal offence without due process of law.-
But in the "code" States, offences may usually l)e prosecuted either by indictment or by information after examination and commitment by a magistrate.^ Under this statute indictments are practically done away with and all offences are prosecuted bv such inforuiation,* except that a grand jury may still be summoned.^
Exceptions. But in nearly all these states an exception to the above rule is made in cases arising in the army or navy of the State or the militia, in time of war or public danger," or at any time.' An exception is made also in cases of impeachment.^
So, of course, in cases of inferior offences not above described, * as petit larceny,'" or in courts not of record," or cases cognizable by a justice of the peace,'- or by the county court, '^ or poHce courts," or probate courts,'^ or in cases where the punishment is by fine, or by imprisonment not in the penitentiary.'"
A person may be proceeded against by information, by leave of court, for oppression or misdemeanor while in office.'^
Indictments are (of course) unnecessary in cases where the legisla- ture may have dispensed with a grand jury and provided other process by law.'^ But without a constitutional permission, such dispensing would be invalid.
In cases where indictments may be employed, indictment and information are declared concurrent remedies.'^
1 Ala. 1, 8; Del. 1, 8; Ky. 12; » Ariz.*, Ark., Fla., Ida., 111., Me., Miss. 27; Pa. 1, 10. Minn., N. C, Neb., Nev., N. M.*,
2 Minn. Amt. 1903, 269; Wis. 1, 8 N. J., N. Y., O., R. I., S. D., Tenn., and Amt. Presumably the same Tex.
meaning is intended. ® Ala., La., Miss., N. D., O., and
3 Cal. 1, 8; Ida. 1, 8; La. 9; Mon. others.
3, 8; Okla.; S. D. 6, 10; Utah 1, 13; '° Ala., Nev., N. Y., O.
Wash. 1,25. '1 Ala.; Ark.; lo. ; Me.; Minn.;
* Ida.; Mon.; Utah; Wash. 1, 26. Miss.; Mon. 3, 8; N. J. ; N. M.*; R. L
^ But not, by information, after a S. D. ; W. Va.
charge has been ignored by a grand " Okla.
jury. See § 129. '^ g jy . -pex. 5, 17.
« Ala., Ariz.*, Ark., Col., Ct., Del., ^* D. C* 1064; Mon.
Fla., Ida., 111., lo., Ky., La., Me., '^ Ida., Mon.
Minn., Miss., Mo., N. D., Neb., Nev., '^ jn^ ^eb., Tex.
N. J., N. M.*, N. Y., O., Pa., R. I., »^ Ala., Ky., Miss., Pa.
S. C, S. D., Tex., U. S., Wy. ^^ See § 128.
' Fla., N. Y., N. D., S. D. " Col., La., Mo.
PART l] BILL OF RIGHTS: CRIMINAL 169
§ 128. Grand Juries.^ In some States the Constitution gives the legislature authority to make laws dispensing with a grand jury in any case.^ In Oklahoma (2, 18) it may make the calling of grand juries compulsory. So "No grand jury shall be summoned unless, in the opinion of the judge of the district, public interest demand it."^ One hundred resident taxpayers of the county may, in Oklahoma, petition any judge to call one.
A grand jury shall consist of twelve men, any nine of whom may concur to find an indictment or true bill.^ Of seven men, of whom five may so concur.^ Of any number from five to fifteen.® Eighteen, of whom twelve may so concur.^ Of eight. ^
After a charge has been ignored by a grand jury, no information will lie.^ The Oklahoma Constitution [unnecessarily] specifies that grand juries have power to return indictments for all character and grades of crime, and such other powers as the legislature may prescribe.
Article 13. Rights at Trial
§130. Rights to Law.^'' In nearly all the States the Constitution provides that no person can be deprived of his life, liberty, or property
* Grand juries are older than petit nor conceal any guilty one. In other
juries. By the Assize of Clarendon, words, they were inquisitors represent-
A. D. 1166, it was ordained that in every ing the earliest form of a jury of
county twelve lawful men of each presentment.
hundred, with four lawful men from ^ Col. 2, 23; 111. 2, 8; Ind. 7, 17;
each township, should be sworn to lo. Amt. 3 ; N. D. 8; Neb. 1, 10; Ore.
present all reputed criminals of their 7, 18; S. D. 6, 10; Wy. 1,9; Wash,
district in each county court, at a time In misdemeanors, etc., only: Ala. 1,
when the persons so presented were 8 ; Miss. 27.
tried by the water ordeal (Taswell- ^ Ida.; Mo. Amt. 1899, p. 38;
Langmead, p. 134). In the course of Mon. ; Utah 1, 13; Wash. 1, 26. time the element of popular election * Col.; La. 117; Ky. 248; Mo. 2,
in the mode of nominating the grand 28; Okla. 1, 18; Tex. 5, 13; Wy. jury was entirely eliminated. Now, * Mon. ; Ore. ; Utah, twenty-four freeholders of each county ^ lo. are summoned by the sheriff, of which ' S. C. 5, 22. a certain number, varying from twelve * Miss, to twenty-three, are sworn. A grand ^ Ida., Utah.
jury in the United States usually con- '° This provision is founded on
sists of twenty-three, but they must all. Magna Carta, C. 39. Compare also
in the absence of express constitutional U. S. C. Amts. 5, 14, and §§ 70, 72, 127.
provision, concur in order to find a The right of a man to law either as
bill of indictment. Tajdor traces the against king, officer, or subject, is
Grand Jury to the Hundred Courts of discussed in Book I., and in matters not
Aethelred, his law providing that the criminal under § 70. We are now
twelve senior thegns go out and swear discussing that protect'on to a man's
on the relic that is given them in hand person, property, or liberty, which,
tliat they will accuse no innocent man while it always existed under English
170 THE STATE CONSTITUTIONS [llOOK III
except bv due process of law; ' or by tlie law of the land or the jtidf;- mcnt of his peers.- The exact wording may be important as deter-
law, was so clearly expressed in Mapjna but by the judgment of his peers, that
Carta, Chap. 39. "No free man shall is, etiuals, or according to tlie law of
be taken, or imprisonetl, or disseised, the land. Others have said that Jolm
or outlawed, or exiled, or anyways was in tlie habit of descending upon
destroyed; nor will we pass upon him his enemies with an armed force, and
(in some translations, "go upon him"), tliat this was meant to be forbidden,
nor will we send upon him, unless by Whatever was the historical meaning,
the lawful judgment of his peers, or the former one has grown to be tlie
by the law of the land." In these true one, and the words were used in
clauses are contained both habeas the times of the Tudors and Stuarts to
corpus and trial by jury, the most prevent any condemnation, outlawry,
effectual securities against oppression or forfeiture of a subject without the
which the wisdom of man has hitherto proper forms or law. The words
been able to devise. "Henceforth," "judgment of his peers or by the law
says Hallam, "it must have been a of the land," or as they appear in later
clear principle of our constitution that confirmations of the charter "due
no man can be detained in prison with- course of law" did not, at the time of
out trial. Whether courts framed the the original Charter of John, mean
writ of Habeas Corpus in conformity jury trial, although Coke says they
with this clause or possessed it already meant the lawful judgment, that is,
it became from that era the right of verdict of his equals, or the law of the
every subject to demand it." Coke land, that is, the due course and process
points out that these clauses, as they of law. It is probable, however, that
stand combined in the second issue of the words included trial by jury, even
the Charter under Henry III. with the in the original charter, as it was used
words "No person shall be disseised at the time, and there can be no ques-
of his free tenement or liberties, or tion but that by the interpretation of
customs" recite the evils from which centuries they have come to mean
the laws of the land are to protect the that both in English and American
subject, in the order in which they constitutional history. (See Taswell-
most affect him. First, the liberty Langmead, 107.) The American
of a man's person. Second, his prop- Supreme Court has decided that the
erty, liberties, or free customs, that is, words "due process of law" do not
the right to labor or trade as well as necessarily mean trial by jury, but it
other franchises; which inferentially is at least probable that they did so
forbids state-created monopolies, mean, in any case where trial by jury
Only the third clause, relating to out- was wont to be used ; and such is
lawry, may be considered obsolete, certainly the Constitution in England.
The words "Nor will we go upon him," In fact, the Supreme Court in render-
etc, are much disputed. Coke takes ing this decision do not refer to the fact,
the simple meaning that no person is nor was it pointed out to them in
to be condemned at the King's suit, argument, that the words "judgment
that is, in any criminal or penal suit, of his peers" and "due course of law"
1 Ala. 1, 6; Ariz.* Bill of Rts. 14; Okla. 2, 7; S. C. 1, 5; S. D. 6, 2;
Ark. 2, 8; Cal. 1, 13; Col. 2, 25; Ct. Tex. 1, 19; Utah 1, 9; Wash. 1,3; Wy.
1, 9; Fla. Decln. of Rts. 12; Ga. 1, 1, 1, 6.
3; Ida. 1, 13; III. 2, 2; lo. 1, 9; Ky. ^ i^gi 17. T^iagg j^ 12; Md. Decln.
14; La. 2; Mich. 6, 32; Minn. 1, 7; of Rts. 23 ; Me. 1, 6; N. H. 1, 15; N. M.*
Miss. 14 ; Mo. 2, 30 ; Mon. 3, 27 ; N. C. 95, 1 ; Pa. 1, 9 ; R. I. 1, 10 ; Tenn. 1, 8 ;
1,17; N. D. 13 ; Neb. 1, 3 ; Nev. 1,8; Va. 1, 8 & 11 ; Vt. 1, 10 ; W. Va. 3, 10. N. M.* 1851, July 12, § 15; N. Y. 1, 6;
PART l]
BILL OF RIGHTS : CRIMINAL
171
mining rights of trade or labor, freedom of contract, etc. Even in Magna Carta of Henry III. it includes one's " liberties or free cus-
are used interchangeably in the several issues of Magna Carta and in many Acts of Parliament.
In connection with this clause must, of course be read Cap. 40. "To none will we sell, to none will we deny or delay right or justice." (In some trans- lations, " We will sell to no man, we will not deny to any man either justice or right.") See § 70, notes. "These words," says Coke, "are spoken in the person of the King, who, in judgment of law, in all his courts of justice is present, and repeating these words." The words "To none will we sell" were intended to abolish the fines paid in early times for procuring right or judgment. "To none will we deny" referred to the stopping of suits and the denial of writs. "To none will we delay" meant the delays caused either by the counter-fines of defendants, or by the will of the king. Taylor points out (I. 389) that the formula of Magna Carta was almost exactly anticipated in an edict of Conrad II. issued two centuries before in the words "No one shall lose his benefit except according to the custom of our ancestors and by judgment of his peers." And in the so-called laws of Henry I. it is expressed, "Every one is to be judged by his peers of his own county." This would dispose of the trial by jury theory, historically; but it is clearly of not so much importance as it seems. What- ever the clause meant at the time of King John, it has been repeatedly established in seven centuries, either aa against king, American Congress or President, that trial by his peers, at least, does mean trial by jury as the word is now understood. The only real doubt is whether "due course of law" does not mean the same thing.
There is considerable doubt whether the law referred to in this section is in England the law of the king or the law of the people. "Pleas of the Crown are criminal prosecutions carried on in the name of the sovereign, who is supposed by the law to be the person injured by every infraction of the public rights of the community." (Blackstone,
reported in Taswell-Langmead, p. 93.) On the other hand, as we have dis- cussed in the first part, the English notion of law was the custom or law of the people, written or unwritten, not the command of a king to his subject. Hence, constitutional his- torians will differ on this point accord- ing as they take what we may call the Norman or the Saxon view. The distinction may appear somewhat theoretical, but it was not so in early days when every king upon his acces- sion was compelled to promise to ob- serve the laws or customs of the English or of Edward the Confessor; and for centuries the English people struggled to establish or restore the principle that the people, that is. Parliament, alone could make or unmake a law, — with, of course, the consent of the king, — against the effort of all the kings, at least until the Revolution of 1688 established the principle that the law was theirs and they made it. In England, writs still rvm "against the peace of the King," but this is probably as much of a formality as the words "The King so wills" at the end of an Act of Parliament. Writs in New York run in the name of "The people of the State of New York by the grace of God free and independent," but in most States they run in the name of the State or Commonwealth as the case may be. (Massachusetts, Pennsyl- vania, Virginia, and Kentucky are the only "commonwealths ; " all the others are States.) As, upon the Declaration of Independence, the right of sover- eignty reverted to the people of each colony and not to the States, in the first instance, it may be questioned whether the former is not the better form. It certainly tends less to con- fusion of thought and socialism.
It is important to note that the right to law in England has always meant the right to the law of one's o-rti country or neighborhood and one's local court. Magna Carta itself has a chapter on this point, C. 34. "The writ called praecipe shall not in future be issued so as to cause a freeman to
172 THE STATE CONSTITUTIONS [nor)K III
toms." Thus in New Ilanipsliiro and Massachusetts: "arrested, imprisoned, despoiled, or deprivetl of his jjroperty, immunities, or privileges, put out of the protection of the law, exiled, or dij)rived of life, liberty, or estate."
No person shall be arrested, detained, and punished ; or, in Alabama, accused, arrested, or detained, except in cases clearly ascertained by law.' And according to the forms by law prescribed.^
In several States, no person shall be disfranchised or deprived of any rights and privileges as a citizen, unless as provided above respectively.^
§ 131. Jury Trial.* In most States, the Constitution provides
lose his court," and the object of this accuse a powerful layman amenable
writ was to prevent a case being to the bishop's jurisdiction, tiie sheriffs,
removed to the King's Court from at the bishop's re(|uest, were directed
the Court Baron or manorial court, to 'swear twelve lawful men of the
In early times the English people had neighbourhood to tell the truth, accord-
the same dread of centralizing even to their conscience.'" If the jurors
the judicial power in London, or with chosen were ignorant of the facts, a
the king's person, that the founders fresh jury had to be summoned. If
of the American Constitution had as some were ignorant or if they could not
against the Federal power. C. 24, agree, others were added, which was
however, secured the trial of all serious called "afforcing the jury," until a
crimes before the king's justices. "No verdict could be obtained from twelve
sheriff, constable, coroner or bailiff of unanimous witnesses . . . just the op-
the Iving shall hold pleas of the Crown." posite of the modern notion. Trial by
' Ala. 1, 7; Ct. 1, 10; S. C. jury as the word is used in Magna
2 Ala. Carta, therefore, must mean a jury of
' Ark. 2, 21 ; Mass. ; Md. ; Me. ; this sort. The English mode of trying
Minn. 1, 2; N. H. ; N. C. ; N. M.* ; facts before the jury arose was that of
N. Y. 1, 1; S. C. ; Tenn. ; Tex. For the ordeal, by water or otherwise ; but
lynch law, see § 165. this was abolished by the fourth
* For civil cases, see Art. 7. The Lateran Council in 1215. The Norman
matter of jury trial is partly discussed method of trial was by battle, but only
in the notes to §§ 128 and 130. Theorig- if the injured prosecutor demanded it.
inal petit jury was a jury of witnesses, Even before the abolition of the ordeal
not a Saxon institution, but operated (says Taswell-Langmead) the practice
from, or suggested by, a procedure of had grown up of allowing a second or
the Norman kings, — the Inquest, of petit jury to affirm the finding of the
commissioners to verify facts. This grand jury ; but for a long time the
Inquest at first belonged to matters not prisoner was not compelled to plead,
judicial, as, in 1106, Henry I. directed that is, he might refuse to be tried by
five commissioners to verify certain jury, in which case he was remanded to
matters concerning taxation and the prison and submitted to the punish-
customs of the Church by the oath of ment called -peine forte et dure, which
twelve of the citizens. (Taswell- was abolished in England only so late
Langmead, p. 131.) Henry II. applied as George III. and under which Giles
recognition by jury to every descrip- Corey was executed in the Salem
tion of business, fiscal and legal. But Witchcraft case. In early times a
the use of a jury as now understood is verdict of a majority might be received,
mentioned for the first time in the as in some of the new American States,
Constitutionsof Clarendon, 1164, where, but by the reign of Edward III. the "when no one could be obtained to necessity for an unanimous verdict of
PART l] BILL OF RIGHTS: CRIMINAL 173
that (in criminal prosecutions) all persons accused shall have a speedy and public trial by an impartial jury/ And so, in several, of all persons prosecuted by indictment or information.- In California, the provision is simply that the accused shall have a speedv and public trial. ^ So, the legislature shall make no law subjecting a person to capital [or infamous, in Mass.] punishment without trial by jury ; * or, the right to trial by jury shall remain inviolate in criminal cases ; ^ no person shall be convicted of any crime but by the verdict of a lawful jury in open court.^ (Except upon confession, demurrer, etc., in Arizona — an unnecessary exception.)
Exceptions. The legislature may provide other means of trial for offences not infamous,^ for petty offences,^ for all offences less than felony, and in which the penalty does not exceed $100 or thirty days' imprisonment; these shall be tried summarily before a justice of the peace. ** No fine of more than $50 shall be imposed except by a jury.'"
But in all such cases of trial without a jury there must be a right of appeal.^ ^
Laws may be made for the government of the army and navy,
twelve was re-established. As late as ^ Ark. 2, 10 ; Col. 2, 16 ; Del. 1, 7
Queen Anne the Court of Queen's Fla. Decln. Rts. 11; Ga. 1, 1, 5; Ida
Bench decided that a jury might give 1, 13; 111. 2, 9; Ind. 1, 13; lo. 1, 10
a verdict of their own knowledge, but Kan. Bill of Rts. 10 ; La. 9 ; Md. Decln
ought so to inform the Court, that they of Rts. 21; Me. 1, 6; Mich. 6, 28
might be sworn as witnesses; though Minn. 1, 6; Mo. 2, 22; Mon. 3, 16
as early as the year 1450 the mode of N. D. 13; Neb. 1, 11; N. J. 1, 8
procedure by viva voce evidence was N. M.* 95, 1; 1851, July 12, § 8; O. 1
the same as at present. Taswell- 10; Okla. 1,20; Ore. 1, 11; Pa. 1,9
Langmead places the modern principle R. I. 1, 10; S. C. 1, 18; S. D. 6, 7
— that no juror is competent who Tex. 1, 10; Utah 1, 12; Va. 1, 8; Vt.
knows anj^hing as a witness — so late 1, 10; Wash. 1, 22; Wj\ 1, 10; and
as George I. In old days the jurymen, so, as applied to Federal courts, in U. S.
being witnesses, were guilty of perjury Amt. 6.
if they gave a wrong verdict; and as - Ala. 1, 6; Ct. 1, 9; Ky. 11; Miss.
late as 1554 the Court, being dissatis- 26; N. M.* 50, 7; Tenn. 1, 9; Wis. 1, 7.
fied with a verdict, committed a jury ^ Cal. 1, 13.
to prison; but in 1670 a London jury, * Mass. 1, 12; N. H. 1, 16; L^tah 1,
having failed to find William Penn 10.
guilty of preaching, was heavily fined, ^ Col. 2, 23 ; Fla. Decln. of Rts. 3 ;
and when one of the jurors brought Ida. 1, 7; N. Y. 1, 2; Wash. 1, 21;
habeas corpus, he was decided by Chief Wy. 1,9; see also § 72, for other States.
Justice Vaughan to be improperly ^ Ariz.* 429 ; N. C. 1, 13 ; N. M.*
imprisoned, though return was m.ade 50, 8 ; W. Va. 3, 14.
that he had been committed for find- ^ La., Va. (Amt. 1891).
ing a verdict "against full and mani- * Del. 15, 7; N. C.
fest evidence and against the direction ^ lo. 1, 11 ; S. C. 5, 21.
of the Court." (Taswell-Langmead, " Tenn. 6, 14.
p. 138.) For the procedure in jury '' lo., N. C... S. C.
matters, see Art. 65 below.
174 THE STATE CONSTITUTION'S [BOOK III
(and the militia in actual service, in X. II.) without providing for trial by jury.'
All cases in which the punishment may not be at hard labor shall, until otherwise provitletl by law, which shall not be prior to 1904, be tried by the judge without a jury. Cases in which the punish- ment may be at hard labor shall be tried by a jury of five, all of whom must concur to render a verdict; cases in which the punish- ment may be capital, by a jury of twelve, all of whom must concur to render a verdict. -
Waiver. The Constitution provides that a jury may be waived by consent of both parties in all criminal cases not amounting to felony.^ So, the accused may in all cases waive jury trial,' with the consent of the State's attorney.^
§ 132. Juries.^ By the Constitution of Florida the number of the jury may in all cases be fixed by the legislature.'' So, in other States, in courts not of record,^ or in cases not punishable by hard labor or death." Juries in the county or other inferior court consist of six men. '° Not less than five." Eight, in cases not capital, or four, in inferior courts. '-
The parties may agree on a jury less than twelve in number, in cases of misdemeanor.'^ But otherwise the usual number (twelve) is by the Constitution declared indispensable.'^
The Verdict of the jury, by the Constitution of several States, must, except as below, be unanimous to convict.'^ But in others, a verdict of five-sixths, in misdemeanors,'^ or two-thirds, '^ suffices. So, in others, nine members of the jury may concur to render a verdict in cases not amounting to felony.'^ By the Constitution of Louisiana, the accused is given the right to challenge peremptorily
1 Mass., N. H. In other States '« Mon. 3, 23; Tex. 5, 17; Okla. § 131 does not apply, probably, to cases 1, 19.
of military law where allowable. See " Va.
§ 127. '- Utah 1, 10.
2 La. 116. " Cal. 1, 7; Ida.; Mon.
» Cal. 1, 7; Ida. 1, 17; Mon. 3, 23. " Me. 1, 7; W. Va. 3, 14; Okla.
* N. M.* 1851, July 12, § 8 ; Va. 1, 8. ^' Md. Decln. of Rts. 21 ; Me. 1,7; « Va. N. C. 1, 13; Okla., S. C, Utah, Va. 8;
* See § 73 for juries in civil suits, Vt. 1, 10. and § 131, note. " Ida.
' Fla. 5, 38. ^' Mon.
« Col. 2, 23; lo. 1, 9; Mich. 6, 28; *» Tex. 5, 13; Okla. In such cases
La. 9; Mo. 2, 28; Mon.; Wash. 1,21; the verdict must be in writing and
Wy. 1, 9. signed by each member concurring.
» Ky. 248 ; La. 9. ; S. C. 5, 22 ; Mon. ; Va. 1. 8.
PART l] BILL OF RIGHTS: CRIMINAL 175
a number of jurors to be fixed by statute/ In Oklahoma, the Constitution (7, 21) provides for a general verdict, though the court may direct a special finding.
The Constitution provides that in all criminal cases whatever ' the jury shall have the right to determine the law and the facts ;^ but under the direction of the court, as to the law.*
§ 133. Venue.^ The Constitutions of many States provide that the jury shall be of the county or district where the alleged offence was committed," and this county, etc., shall have been previously ascertained by law.'' So, criminal offences must be tried by a jury of the vicinage.^
Change of. In several, the power to change the verme is vested in the courts.** It is to be exercised in such manner as the legislature provide.^" And for the same grounds, by State or defendant. ^^
In one, change of venue in criminal cases can only be directed by the legislature, on report of the judges of the Superior Court, in cases of insurrection.^-
The Constitutions of a few States specially give to the legislature power to provide for change of venue. ^^ So, the Constitution specifies that the legislature shall so provide in cases where an impartial trial cannot be had in the county where the crime was committed."
The legislatures are frequently forbidden to enact special or local laws for the change of venue in civil or criminal cases, ^*
In Vermont and Oklahoma no person can be transported out of the State for any offence committed within it.^"
§ 134. Counsel}'^ The Constitutions of all the States except
1 La. 10. S. D. 6, 7; Tenn. 1, 9; Utah 1, 12;
2 For libel, see § 61. Wash. 1, 22; W. Va. 3, 14; Wis. 1, 7; ' Ind. 1, 19; La. 179; Md. 15, 5; Wy. 1, 10.
Ore. 1, 16. ' Minn., N. M.*, Wis.
* La., Ore. And, subject to the « Ky. 11; Mass. 1, 13; Md. 1, 20; right of new trial, as in civil cases (Ore.). Me. 1,6; Pa. 1,9; Va. 1, 8.
" By the reign of Henry VII. says » Ala. 75; Ariz.* 11, 285; Del. 1, 9; Hallam, "the fact of guilt or innocence Md. 4, 8; Pa. 3, 23; W. Va. In civil on a criminal charge was determined or criminal cases. (Ala., Col., Ga., in a public court, and in the county La., Pa., S. C, Tex.) where the offence occurred, by a juiy '" Ala. 1, 6; Ark.; Col. 5, 37; Ga. of twelve men, from whose unanimous 6, 17, 1 ; Mon. ; Okla. ; Pa. ; Tex. 3, 45. verdict no appeal could be made." '' Mon.
» Ala. 1, 6; Ark. 2, 10; Col. 2, 16; '- N. H. Fla. Decln. Rts. 11; 111. 2, 9; Ind. 1, '=> Ky. ; La. 169. 13 ; Kan. Bill of Rts. 10 ; La. 9 ; " S. C. 6, 2. Minn. 1, 6; Miss. 28; Mo. 2, 22; Mon. ^^ See § 395.
3, 16 ; Neb. 1,11; N. H. 1, 17 ; N. M.* '« Vt. 1, 21 ; Okla. 2, 29. See § 141. 50,7; 0. 1, 10; Okla. 1,20; Ore. 1, 11; '^ This constitutional provision does
17G THE STATE CONSTITUTIONS , [boOK III
Virginia provide citlicr tliat every person accused may defend by himself and counsel.' Or (hat he may have the assistance of counsel in his defence.- Or that he may be allowed counsel,^ or may be heard by himself or counsel.' In several, the above principle, as particularized respectively, extends to any suitor in a court of law, civil or criminal.^
§ 135. Witnesses.^ By the Constitutions of most of the States every person accused is entitled to enforce by compulsory process the attendance of witnesses [in liis favor],^ or to call for evidence on his behalf.^
not mean that defendant is entitled tional right. Originally -n-itncsses in
to have his counsel paiil by the State, England testified broadly to the fact,
but it is usually so provided by statute, that is, whether the person charged
(McClain Constitutional Law, p. 327.) was guilty or not, like a modern jury,
It does not appear that the riglit to or rather to his trustworthiness ; this
have counsel is a constitutional right trial by "compurgation" being the
in England. At one time certainly, alternative to trial by ordeal, which
a defendant was not allowed counsel latter was usually employed only when
in cases of treason or felony. Counsel there was strong proof of guilt, or when
was, however, early allowed by express the accused was unable to procure a
statutes in trials for treason, and sufficient number of compurgators, or
doubtless this and other statutes made had been guilty of perjury on a previous
a precedent, and now it is required in occasion. These compurgators were
all cases by 6 & 7 Wil. IV, chap. 114. thus in reality witnesses of character,
* Ala. 6 ; Ariz.* Bill of Rts. 14 ; and the oaths of different men varied in Ark. 2, 10; Cal. 1, 13; Col. 2, 16; Ct. legal value according to their rank or 1, 9 ; Del. 1, 7 ; Fla. Decln. of Rts. 11 ; property. Thus, the word of one thegn Ga. 1, 1, 4; Ida. 1, 13; 111. 2, 9; Ind. was as good as that of twelve churls. 1, 13; Ky. 11; Me. 1, 6; Mo. 2, 22; (Taswell-Langmead, p. 31.) Doubt- Mon. 3, 16 ; N. D. 13 ; Nev. 1, 8 ; N. H. 1, less these original jury- witnesses gave 15; N. M.* 95, 1; 1851, July 12, § 8; place to modern \\itnesses under the N. Y. 1, 6; O. 1, 10; Ore. 1, 11 ; Pa. 1, jury trial. (Taylor, p. 325.) It does 9; R. I. 1, 10; S. C. 1, 18; S. D. 6, 7; not appear that the right to compel Tenn. 1, 9; .Tex. 1, 10; Utah 1, 12; -^vitnesses is a constitutional right in Vt. 1, 10; Wash. 1, 22; Wis. 1, 7; Wy. England, but rather a matter of^time- 1, 10. honored procedure. White says only
~ lo. 1, 10; La. 9; Mich. 6, 28; since 1688 (p. 103). Minn. 1, 6; N. C. 1, 11; N. J. 1, 8; ' Ala. 6; Ark. 2, 10; Cal. 1, 13;
W. Va. 3, 14. So in U. S. C. Amt. 6. Col. 2, 16; Ct. 1, 9; Del. 1, 7; Fla.
3 Ga. 1,1,5; Md. Decln. of Rts. 21 ; Decln. Rts. 11 ; Ga. 1,1,5; Ida. 1, 13 ;
N. C. 1, 11. 111. 2, 9; Ind. 1, 13; lo. 1, 10; Kan.
* Ala. 1,10; Ariz.* 426; Kan. Bill of Bill of Rts. 10; Ky. 11; La. 9; Md. Rts. 10; Mass. 1, 12; Mich. 6, 24; Decln. of Rts. 21 ; Me. 1, 6; Mich. 6, 28; Miss. 25, 26; Neb. 1, 11; Nev. 1, 8; Minn. 1,6; Miss. 26; Mo. 2, 22; Mon. N. M.*50, 7; Okla. 1, 20; Wis. 7, 20. 3, 16; N. D. 13 ; Neb. 1, 11 ; N. J. 1, 8;
« Fla., Ga., Mich., Miss., Nev., Wis. N. M.* 50, 7; 95, 1 ; 1851, July 12, § 8;
« The word "witnesses" in the first O. 1, 10; Okla. 1, 20; Ore. 1, 11; Pa.
clause will undoubtedly be extended 1,9; S.C.I, 18; S. D. 6, 7; Tenn. 1,9;
by judicial construction to include the Tex. 1, 10; Utah 1, 12; Vt. 1, 10;
right to call for evidence, documentary Wash. 1, 22; W. Va. 3, 14; Wis. 1, 7;
or other-5\-ise. The right to be con- Wy. 1, 10.
fronted with witnesses was merely a * Ariz.* 426; Mass. 1, 12; N. C. 1,
matter of general common law pro- 11; N. H. 1, 15; R. I. 1, 10; Va. 1, 8.
cedure, hardly in England a constitu- So in U. S. C. Amt. 6.
PART l] BILL OF RIGHTS: CRIMINAL 177
In Maryland it is specially provided that the accused may examine all witnesses under oath. The legislature has power, in several States (except in cases of homicide: Cal.) to provide for the taking of depositions, in the presence of the person accused and his counsel, when there is reason to believe that the witness will not attend the trial.^ But in most States the old rule prevails and the accused shall be confronted with the witnesses against him.^ And may give evidence (testify) in his own behalf.^
In Oklahoma,* in capital cases, defendants must be furnished with a list of the witnesses that will be called in chief by the prosecu- tion two days before the trial, with their post-ofEce addresses.
§ 136. Criminating Evidence.^ The Constitutions of most of the States provide that no person accused shall be compelled to give evidence against himself,*^ or to furnish evidence.^ So, no person [whether accused or not, it seems] can be compelled to give evi- dence criminating himself in any court of law,^ or in any criminal proceeding.^
"Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the State, shall not be excused
^ Cal., Col., Mon., Wy. See § 124. such testimony will be unconstitutional ^ Ala., Ariz.*, Ark., Col., Ct., Del., unless it guaranties full immunity
Fla., Ga., 111., Ind., lo , Kan., Ky., La., from prosecution for any offences so
Mass., Md., Me., Mich., Minn., Miss., revealed ; and testimony actually given
Mo., Mon., N. C, Neb., N. H., N. J., under compulsion cannot be used
N. M.* 50, 7; 95, 1 ; 1851, July 12, against them.
§ 8; O., Okla., Ore., Pa., R. I., S. C, « Ala. 6; Ariz.* Bill of Rts. 14;
S. D.,6, 7;Tenn., Tex., Utah, Va., Vt., Ark. 2, 8; Cal. 1, 13; Col. 2, 18; Ct.
Wash., W. Va., "Wis., Wy. So in 1,9; Del. 1,7; Fla. Decln. of Rts. 12 ;
U. S. C. Amt. 6. ♦ 111. 2, 10 ; Ind. 1, 14 ; Kan. Bill of Rts.
3 Ala., Utah, Wash. 10; Ky. 11; La. 11; Mass. 1, 12; Md.
*Okla. 2, 20. See also § 120. Decln. of Rts. 22; Me. 1, 6; Mich. 6,
* The word "subject," oddly enough, 32; Minn. 1, 7; Miss. 26; Mo. 2, 23;
is retained in some States (Mass., N. C. 1, 11; Neb. 1, 12; Nev. 1, 8;
N. H.). The provision is unfortu- N. H. 1, 15; N. M.* 95, 1; 1851,
nately ambiguous ; does " testify " July 12, § 8; N. Y. 1, 6; O. 1, 10; Ore.
include furnishing documentary evi- 1,12; Pa. 1,9; S.C.I, 17; Tenn. 1,9;
dence ? This came up in the Chi- Tex. 1,10; Va. 1,8; Vt. 1, 10; W. Va.
cago beef-trust cases and was decided 3, 5 ; Wis. 1, 8.
in the affirmative. — This is also not ^ Ga. 1, 1, 6; Mass.; N. H. ; R. I. 1,
a constitutional right in England, 13; Okla. 1,21; Va.
but a rule of common law procedure. * Ida. 1, 13; La.; Minn. Amt. 1903,
(McClain, p. 320.) It applies, however, 269; Mon. 3, 18; N. D. 13; S. C. 1,
to all cases, whether civil or criminal, 17; S. D. 6, 9 ; Utah 1, 12; Va. 1, 8;
and to all persons, whether "accused" Wash. 1, 9; Wy. 1, 11. This is the
at the time or not ; and to the produc- wording in the Federal Constitution ;
tion of books or papers as well as oral U. S. C. Amt. 5.
testimony. Hence a statute compelling
12
178 THE STATE CONSTITUTIONS [BOOK III
from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the State; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence." Okla. 27.
"The records, books, and files of all corporations shall be, at all times, liable and subject to the full visitorial and inquisitorial powers of the State, notwithstanding the immunities and privileges in this Bill of Rights secured to the persons, inhabitants, and citizens thereof." Okla. 28.
In one State, by the Constitution, husband or wife may not in criminal prosecutions be compelled to testify against one another.*
§ 137. Twice in Jeopardy.^ In most States the general pro- vision is found that no person, for the same offence can be twice put in jeopardy,^ in jeopardy of life or limb,* in jeopardy of life or liberty,^ or in jeopardy of punishment."
But it is provided that the accused shall not be deemed to have been in jeopardy if the jury disagree, or the judgment be reversed for error. ^
But in several the provision is that no person shall, after an
' Utah 1, 12. This is the common discharged could not be re-arrested for law. the same offence, which is a somewhat
- See also § 668. The phrase "twice similar principle. The word "limb" in jeopardy" may be defined to be the in the provision is, of course, obsolete, being confronted with a petit jury as all punishments but death and w^hen charged with an offence, though imprisonment have ceased in all States, the law varies somewhat in different except, indeed, the wliipping-post in States. In about half the States, the Delaware.
government has the right to appeal in ^ Ariz.* Bill of Rts. 14 ; Cal. 1, 13 ; case of mistrial ; that is, for error of Col. 2, 18 ; Fla. Decln. of Rts. 12 ; Ida. law, and in all States the accused can 1, 13; 111. 2, 10; Ind. 1, 14; Kan. Bill be tried again if the jury disagree. It of Rts. 10 ; Mon. 3, 18 ; N. D. 13 ; Neb. is usually, however, the custom not 1, 12; Nev. 1, 8; N. Y. 1, 6; O. 1, 10; to try a man more than twice, and Ore. 1, 12; S. D. 6, 9; Utah 1,12; Va. thereafter he is released upon bail. 1,8; Wash. 1,9; Wy. 1, 11. President Roosevelt has had intro- * Ala, 9; Del. 1, 8; Ky. 13; Me. 1, duced a bill giving the government the 8; N. M.* 1851, July 12, § 12; Pa. 1, right of appeal in Federal courts. It 10;Tenn. 1, 10. So in the U. S. C. Amt. might possibly not be constitutional 5. TMs limits it to capital cases, under the 5th Amendment, though the * Ark. 2, 8; Ga. 1, 1, 8; La. 9; better opinion is to the contrary. The S. C. 1, 17; Tex. 1, 14; Va. 88; W. Va. principle probably dates back to the 3, 5; Okla. 1, 21.
time of the Bill of Rights, though not " Minn. 1, 7; Miss. 22; Mon.; expressly included therein. The Habeas N. D.; Wis. 1, 8. Corpus Act provided that a person once ^ Col., Wy.
PART l]
BILL OF RIGHTS : CRIMINAL
179
acquittal, be tried for the same offence/ or have his Ufe or hberty again put in jeopardy for the same offence.-
But in three, it is specified that such acquittal must be upon the merits.^ And in Texas, it must be in a court of competent jurisdic- tion.
Exceptions. But the person may be tried again on his own motion, after conviction.* So, in case of mistrial,^ or if a motion in arrest of judgment is sustained," or, if the jury disagree.'' Courts may, for reasons fixed by law, discharge the jury and empanel a new one.* An appeal is allowed to the State in revenue cases, but not in any case involving the life or liberty of any person.'
§ 138. Attainder. '^'^ Most States have a general constitutional provision that the legislature shall pass no bill of attainder, ^^ or, that no person can be attainted of treason or felony by the legislature.^^ So, in one, of treason alone.*'
§ 139. Miscellaneous. The Constitutions of two States forbid the issue of commissions of oyer and terminer and gaol delivery.** By that of Nebraska the writ of error is declared a writ of right in
1 Ariz.* 427; lo. 1, 12; Mich. 6, 29; judges that a bill of attainder would
be valid although it condemned a man to death for treason without a hearing, and himself perished by the same act of attainder that he had procured. There is no such thing as an executive attainder; for this reason President Roosevelt's order that the negro sol- diers in Texas should be both dis- charged and forever precluded from holding any civil office was unconstitu- tional in its latter part.
'1 Ala. 14; Ariz.* Bill of Rts. 19; Ark. 2, 17; Cal. 1, 16; Fla. Decln. of Rts. 17; Ga. 1,3,2; Ida. 1, 16; lo. 1, 21; Me. 1, 11; Mich. 4, 43; Minn. 1, 11; N. D. 16; Neb. 1, 16; Nev. 1, 15; N. J. 4, 7, 3; N. M.* 1851, July 12, § 14; Okla. 2, 15; S. C. 1, 8; Tex. 1, 16; Utah 1, 18; Va. 58; Wash. 1, 23; W. Va. 3, 4; Wis. 1, 12. Compare U. S. 1, 9, 10, forbidding such bills both to States and the nation. See also § 142. This might be implied in other States from § 127.
1- Col. 2, 9; Ct. 1, 15; Ky. 20; Mass. 1, 25; Md. Decln. of Rts. 18;. Mo. 2, 13 ; Mon. 3, 9 ; Pa. 1, 18; S. D. 6, 22; Vt. 2, 20.
13 Ala. 1, 19.
" Del. 1, 14; Pa. 1, 15.
N. H. 1, 16; N. J. 1, 10; N. M.* 50, 9; 95, 1; R. I. 1, 7; Tex.; Okla.
2 Mo. 2, 23.
3 Mich., Miss., N. M.* * Ga., La. ° Ga., La., Mo.
6 Ljj
' Ark., Col., Mo., Wy. « Ala.
» Va. 88.
" Bills of attainder were the usual method by which arbitrary kings or parUaments evaded the right to law described in §§ 70, 131. They could only be passed by Parliament, not by the Crown, but were used by the Stuart kings particularly as a method of getting rid of objectionable subjects. In effect, of course, they were a trial and conviction without hearing, witnesses, jury, or other process of law, — by mere legislative act, and commonly involved both death and forfeiture of property. Impeachment differed from attainder principally in that it was found by the Commons and tried by the laws and applied only to a political person- age. Thomas Cromwell in the name of Henry VIII. got a decision from the
180 THE STATE CONSTITUTIONS [BOOK III
all cases of felony.* So, in Wisconsin, tiie writ shall never be pro- hibited by law.- In Kentucky, the le<;islature are authorized to pass laws regulating writs ot" error in eriininal or penal cases. ^ And also, laws regulating the right of challenge of jurors therein.
Article 14. Rights after Trial
§ 140. Fines and Costa J The Constitutions of nearly all states provide that excessive fines shall not be imposed nor, except in Connecticut and Vermont, cruel or unusual punishments be inflicted."' Nor, in one, excessive costs."
No person shall be compelled to pay costs except after conviction on final trial.'' In Texas the legislature may by law require fines and costs in prosecutions for misdemeanors to be discharged by manual labor in default of payment.^
So, all punishments and penalties should be proportioned to the offence.® "Indefinite imprisonment" is forbidden. ''^ And in six, reformation, not vindictive justice, is declared to be the principle of the penal code.** Further, it is specially declared that sanguinary
» Neb. 1,23. * Ala. 15; Ariz.* Bill of Rts. 10;
2 Wis. 1, 21. Ark. 2, 9; Cal. 1, 6; Col. 2, 20; Ct. 1,
3 Ky. 2, 39; La. 10. 13; Del. 1, 11; Fla. Decln. of Rts. 8; " Copied from U. S. Amt. 8. This Ga. 1, 1,9; Ida. 1,6; Ind. 1, 16; lo. 1,
principle goes back to Magna Carta, 17; Kan. Bill of Rts. 9 ; Ky. 17; La.
Cap. 20. "A freeman shall only be 12; Mass. 1, 26; Md. Decln. of Rts.
amerced . . . after tlie manner of 25; Me. 1,9; Mich. 6, 31 ; Minn. 1,5;
the offence . . . according to the Miss. 28 ; Mo. 2, 25 ; Mon. 3, 20 ; N. C.
hcinousness of it," but the fines re- 1, 14; N. D. 6; Neb. 1, 9; Nev. 1, 6;
ferred to in Magna Carta were assessed N. H. 1, 33; N. J. 1, 15; N. M.* 95, 1 ;
by the oath of "honest men of the 1851, July 12, § 11; N. Y. 1, 5; O. 1,
neighbourhood." The constitutional 9; Okla. 2, 9; Ore. 1, 16; Pa. 1, 13;
provision refers only to fines imposed R. I. 1, 8; S. C. 1, 19; S. D. 6, 23;
in courts of law or by statute. The Tenn. 1, 16; Tex. 1, 13; Utah 1, 9;
exact provision is found in the Bill of Va. 1, 9; Vt. 2, 32; Wash. 1, 14;
Rights, paragraph 10, and on this our W. Va. 3, 5; Wis. 1, 6; Wy. 1, 14.
provision is based, it being a favorite The clause about punishment is
use of the Stuart Icings. "Cruel and omitted in a few. (Ct., Vt.)
unusual punishments" were also for- * N. C.
bidden by the Bill of Rights; this is a ^ Fla. Decln. Rts. 14; Ga. 1, 1, 10;
provision aimed at torturing, maiming, N. C. 1, 11.
and banishment. No punishment * Tex. 16, 3.
remains in any of the States except * 111.2,11; Ind.; Me.; N. H. 1, 18;
death and imprisonment with the Neb. 1, 15; Ore.; R. I.; W. Va.
exception of the whipping post in " Fla.
Delaware; but no mode of putting '^ Ind. 1, 18; Mon. 3, 24; N. C. 11,
condemned persons to death under a 2 ; N. H. ; Ore. 1, 15 ; Wy. 1, 15. criminal statute is "cruel or unusual" under the court decisions.
PAKT l] BILL OF RIGHTS: CRIMINAL 181
laws shall not be passed.' But the death penalty is in INIontana expressly preserved. In all criminal cases when the defendant is insolvent or discharged, the legal costs and expenses, including officers' fees, must be paid by the counties.^
That whipping or corporal punishments shall not, in two, be inflicted.^ No mechanical trade shall be taught to convicts in the State prison, except the manufacture of those articles of which the chief supply for home consumption is imported from other States.* But in others, provision is made by the Constitution for punishment by hard labor.^ In several, the Constitution forbids the letting out of convict labor by contract.^ In New York, also, the product or profit may not be sold, but may be used by the State or in public institutions.
No citizen shall be outlaw^ed.' Banishment from the State or transportation shall not be allowed as a punishment for crime. ^
The gaols shall be constructed with regard to the health of the prisoners.® So, the erection of secure and comfortable prisons, and the humane treatment of prisoners, shall be provided for.'"
In North Carolina, the Constitution provides that death, imprison- ment, fines, removal from office, and disqualification for office, shall be the only punishments known to the laws; convict labor may be employed on public w^orks, or farmed out; but no convict sentenced for murder, manslaughter, rape, or arson shall be farmed out; murder, arson, burglary, and rape may be made punishable by death. ^' In Vermont, punishment for crimes not capital should be by hard labor.'- Sentence of labor on the highways or public works may be imposed.'^ And convicts may be hired out under State supervision.'* INIichigan makes provision in the Constitution for indeterminate sentences and release of prisoners on parole.'^
* Md. Decln. of Rts. 16 ; Me. ; N. H. State for any purpose, without his 2 Fla. 16, 9 ; Amt. 1894. consent, except by due process of law ; ^Ga. 1, 1, 7; S. C. 1, 19. but nothing in this provision shall
* Mich. 18, 3. prevent the operation of extradition
* Cal. 10, 6; Ky. 153; N. C. 11, 1; laws, or the transporting of persons Vt. 2, 37. sentenced for crime to other States
" Cal. ; Ky. ; Mon. 18, 2 ; N. Y. 3, for the purpose of incarceration." 29; Wash. 2, 29. Okla. 2, 29.
' Tex. 1, 20. « Del.
8 Ala. 1, 30; Ark. 2, 21; Ga. 1, 1, 7 ; 111. ; Kan. Bill of Rts. 21 ; Neb. ; O. 1, 12; Tex.; W. Va. ; Vt. 1, 21.
" No person shall be transported out of the State for any offence com- mitted within the State, nor shall any person be transported out of the
Tenn. 1, 32 ; Wy. 1, 16. See § 124. 1 N. C. 11, 12. - Vt. 2, 37. 3 S. C. 5, 33 ; 12, 6. * S. C. 12, 9. = Mich. 1901, p. 391.
1S2 THE STATE CONSTITUTION'S [BOOK III
For contempt, sec § GOS.
§ 141. A\r Post Facto Laics.^ These arc, in most of tlie States, forbidden by the Constitution.^ So, "no person can be punished but by virtue of a law ah'cady estabhshcd or promulgated prior to the offence." ^ Conversely the repeal or amendment of any criminal statute shall not affect the prosecution or punishment of any crime committed before sucli repeal or amendment.^
§ 142. Corruption of Blood.* The Constitutions of most States provide that no conviction shall work corruption of blood or for- feiture of estate." But in three, it seems that there may be forfeiture of estate during the life of the offender.'
§ 143. Suicides. The Constitution declares that the estates of suicides are not forfeit.*^ Such estates descend as in cases of natural death.®
§ 144. Dcodands are in seven States abolished by the Constitu- tion.'"
' The words ex post facto are here Utah 1, 18; Va. 58; Wash. 1, 23;
used as the equivalent of retroactive W. Va. 3, 4; Wis. 1, 12; Wy. 1, 35.
and retrospective; and the law is here So, both as to States and nation, in
applied only to criminal offences. For U. S. C. 1, 9 (4); 1, 10 (1).
civil laws of a similar nature, see §§ 392, ^ Ala. 7.
393, Laws impairing the obligations * Fla. 3, 32.
of contracts. The provision against ^ Compare U. S. C. 3, 3. The at-
ex post facto laws does not expressly tempt to enact a statute working cor-
appcar in the English Bill of Rights, ruption of blood would probably be
though it was a familiar abuse under held unconstitutional in all the States
the Stuart kings. Ex post facto has as part of the unwritten Constitution,
been decided by the U. S. Supreme This, and the following two sections
Court to refer only to criminal statutes are probably, therefore, unnecessary,
whereby a man is punished for an " Ala. 19; Ark. 2, 17; Col. 2, 9;
offence under a law passed after the Ct. 9, 4 ; Del. 1, 15 ; Fla. Decln. Rts.
offence was committed. They are 23; Ga. 1, 2, 3; Ida. 5, 5 (the clause
forbidden by the U. S. Constitution, is clumsily worded, so as to apply only
Art. 1, Sec. 9, Clause 3, to the United to treason or "attainder"); IH. 2, 11;
States, and by Sec. 10, Clause 1, to the Ind. 1, 30; Kan. Bill of Rts. 12; Ky.
States, in the Federal Constitution. 20 ; ]\Id. Decln. of Rts. 27 ; Me. 1,11;
2 Ala. 22; Ariz.* Bill of Rts. 19 Ark. 2, 17; Cal. 1, 16; Col. 2, 11; Fla Decln. of Rts. 17; Ga. 1, 3, 2; Ida. 1 16; 111. 2, 14; Ind. 1, 24; lo. 1, 21 Ky. 19; La. 166; Mass. 1, 24; Md Decln. of Rts. 17; Me. 1, 11; Mich. 4 43; Minn. 1, 11; Miss. 16; Mo. 2, 15 Mon. 3, 11; N. C. 1, 32; N. D. 16 Neb. 1, 16; Nev. 1, 15; N. H. 1, 23 N. J. 4, 7, 3; N. M.* 1851, July 12 § 14; O. 2, 28; Okla. 2, 15; Ore. 1 21; Pa. 1, 17; R. I. 1, 12; S. C. 1, 8 S. D. 6, 12; Tenn. 1, 11; Tex. 1, 16
Minn. 1, 11; Mo. 2, 13; Mon. 3, 9; N. C. 4, 5 ; Neb. 1, 15 ; O. 1, 12 ; Okla. 2, 15; Ore. 1, 25; Pa. 1, 19; S. C. 1, 8; Tenn. 1, 12; Tex. 1, 21; Wash. 1, 15; W. Va. 3, 18; Wis. 1, 12.
' Del., Ky., Pa.
« N. H. 2, 88; Pa. 1, 19; Vt. 2, 38.
» Col. 2, 9; Del. 1, 15; Ky. 21; Mo. 2, 13; Mon. 3, 9; N. H. ; Pa.; Tenn. 1, 12; Tex. 1,21; Vt.
10 DeL 1, 15; Ky. 21; Mo. 2, 13; N. H. 2, 88; Pa. 1, 19; Tenn. 1, 12; Vt. 2, 38.
PART l] BILL OF KIGIITS : CRIMINAL 183
§ 145. Appeals.^ By the Constitution of Texas and Virginia the State has no right of appeal in criminal cases,- but the defendant has.^
§ 145. Fees and Cosis.'^ No accused person before final judg- ment shall be compelled to advance money or fees to secure the rights herein guaranteed.^
Article 15. Special Provisions Coxcerxing Criminal
Offences
§ 150. Treason^ is by the Constitutions of most of the States declared to consist only in levying war against the State, adhering to its enemies, and giving them aid and comfort ; there must be two witnesses to the same overt act, in order to convict, or a confession in open court. ^
§ 151. Duelling. By the Constitutions of many States duelling is made a cause of disfranchisement and disqualification to hold office.^ And in five, it is made, by the Constitution, a criminal offence.®
The governor may pardon it after five years. ^^
* See Art. 70, and § 137. was that the imagination must be at- ^ Tex. 5, 26; Va. 88. See § 137. tended with the intent or purpose as ^ Utah 1, 12; Wash. 1, 22. manifeeted by some overt act. Still,
* This is a new provision although the mental act constituted a treason, in the Bill of Rights, threats and not the phj^sical one. Thus, the regi- promises of fines and forfeitures of cides were tried not for beheading King particular persons before conviction Charles, but for compassing his death, are declared illegal and void. of which the killing was only evidence.
' Utah 1, 12; Wash. 1, 22. See ' Ala. 18; Ark. 2, 14; Cal. 1, 20;
§ 140. Col. 2, 9; Ct. 9, 4; Del. 6, 3; Fla.
« Copied from U. S. C. 3, 3. This Decln. of Rts. 23 ; Ga. 1, 2, 2 ; Ida. 5,
is also an English constitutional prin- 5; Ind. 1, 28-29; lo. 1, 16; Kan.
ciple, though forfeiture for treason Bill of Rts. 13; Ky. 229; La. 162;
was only abolished under Victoria. Me. 1, 12; Mich. 6, 30; Minn. 1, 9;
The principle requiring two witnesses Miss. 10 ; Mo. 2, 13 ; Mon. 3,9; N. C.
is as old as Edward VI. and they were 4, 5; N. D. 19; Neb. 1, 14; Nev. 1,
required to be confronted with the 19; N. J. 1, 14; Okla. 1, 16; Ore. 1,
person charged, although this statute 24; S.C.I, 22; S. D. 6, 25 ; Tex. 1,22;
was evaded or disregarded under Queen Utah 1, 19 ; Wash. 1, 27 ; W. Va. 2, 6 ;
Elizabeth and the Stuarts. (Taswell- Wis 1, 10; Wy. 1, 26.
Langmead, p. 308.) In England, of « See §§ 223, 254, 257. It will be
course, treason might and usually did noticed that this statute is peculiar to
rather consist in words or writings the Southern States,
than in acts. » Ala. 86; Ark. 19, 2; Ga. 2, 4, 2;
"Imagining the Kings' death" was Ky. 239; Tenn. 9, 3.
treason in England, but the better law " Ky. See § 160.
184 THE STATE CONSTITUTIONS [I'.OOK III
§ 152. Bribery ' of an officc-holdcT, whether aocomphshed or attempted, is made a felony - in the person giving or offering the bribe, by the Constitution of several States.^ And usually also in the office-holder receiving or offering to receive the bribe.^ So, of a member of the legislature bribed,^ or offering or seeking to bribe."
Bribery at elections is, by the Constitution of several States, made a criminal offence in both parties.' So, fraud, or other wilful and corrupt violation of election laws.** "Any person who shall directly or indirectly offer, give or promise any money or thing of value, testimonial, privilege or personal advantage, to any executive or judicial officer or member of the Legislative Assembly, to influence him in the performance of any of his official or public duties, shall be deemed guilty of bribery, and be punished in such manner as shall be provided by law." °
And in many States bribery is cause of disfranchisement or dis- qualification for office.^"
§ 153. Lobbying is declared a felony by the Constitution in two States." So, no State or county officer shall accept a fee, reward, etc., for lobbying.'^ Lobbying is in California defined to be the seeking to influence the vote of a member of the legislature by bribery, promise of reward, intimidation, or other dishonest means.
§ 154. Corrwpt Legislation. No State officer or member of the legislature shall directly or indirectly receive a fee or be engaged as
^ See § 154. The tendency of mod- who shall solicit, demand, or receive,
ern statutes is to make bribery a or consent to receive, directly or in-
felony in both the person giving and directly, for himself or for another,
the person offering the bribe, and more from any company, association, or
elaborate statutes are being devised to person, any money, office, appointment,
cover all cases of political corruption employment, or personal advantage
by influence or otherwise. for his vote or influence or withholding
^ A penal offence or a misdemeanor the same, or with the understanding
only (La.). that his vote, etc., shall be in any way
^ Ark. 5, 35 ; Col. 5, 4,1 and 42 ; influenced thereby, or who shall solicit
Del. 2, 22; La. 183; Md. 3, 50; N. Y. or demand such money or other ad-
13, 2 and 3; Pa. 3, 30; Tex. 16, 41; vantage for another, or give or with-
W. Va. 6, 45. hold his vote in consideration thereof,
* Ark., La., Md., Nev., N. Y., Tex., is guilty of bribery and shall incur the W. Va. disabilities and penalties provided in
* Cal. 4, 35 ; Col. 12, 6 ; La. ; Md. ; the Constitution for such offence, and N. Y. ; Pa. 3, 29-31 ; Tex. ; W. Va. such additional punishment as may
^ Ala. be provided by law. And so, any
^ Ark. 3, 6 ; Del. 5, 7 ; Fla. 4, 9 ; person who shall directly or indirectly
Xa. ; Nev. 4, 10 ; Tenn. 10, 3. offer such money (Ala. 79, 80 ; Pa.).
» Ark. " See §§ 223, 255.
« Mon. 5,42;Pa.;S.D.3,2S;Wy.3, '' Cal. 4, 35; Ga. 1, 2, 5.
43. So, a member of the legislature " Ala. 101. See also § 154.
PART l] BILL OF RIGHTS: CRIMINAL 185
counsel, agent, or attorney in the prosecution of any claim against the State/ or in advocating any bill or measure.^ Upon clue proof thereof he shall forfeit his seat.^
So, the offence of corrupt solicitation of members of the Legisla- tive Assembly, or of public officers of the State, or of any municipal division thereof, and the occupation or practice of solicitation of such members or officers, to influence their official action, shall be defined by law, and shall be punishable by fine and imprisonment.^
Any governor of this State who asks, receives, or agrees to receive any bribe upon any understanding that his official opinion, judg- ment, or action shall be influenced thereby, or who gives or offers, or promises his official influence in consideration that any member of the legislative assembly shall give his official vote or influence on any particular side of any question or matter upon which he may be required to act in his official capacity, or who menaces any member by the threatened use of his veto power, or who offers or promises any member that he, the sa!d governor, will appoint any particular person or persons to any office created or thereafter to be created, in consideration that any member shall give his official vote or influence on any matter pending or thereafter to be introduced into either house of said legislative assembly, or who threatens any member that he, the said governor, will remove anv person or persons from office or position, with intent in any manner to influence the action of said member, shall be punished in the manner now, or that may hereafter be, provided by law, and upon conviction thereof shall forfeit all right to hold or exercise any office of trust or honor in this State.^
No member of the legislature can be interested directly or in- directly in any contract with the State or a county thereof authorized by a law passed during his term," or within one year thereafter.^
The governor is forbidden to receive any compensation or promise thereof for any service rendered or performed while governor, or to be rendered thereafter.^
"Any member of the legislature who shall give, offer, or promise
> Ore. 15, 7; R. I. 4, 4; Vt. 2, 19. « 111. 4, 15; Mich. 4, 18; Miss. 109;
2 N. H. 2, 7; Vt. Neb. 3, 12; S. D. 3, 12; Tex. 3, IS;
8 N. H. W. Va. 6, 15. Compare also § 303.
* Ala. 81 ; Mon. 5, 43; S. D. 3, 28; ' 111., Mich., Miss., Neb., S. D. Wash. 2, 30; Wy. 3, 45 ; Pa. 3, 31. « Tex. 4. 6.
« N. D. 3, 81; S. D. 4, 11; Wy. 4, 10.
ISG THE STATE CONSTITUTIONS [bOOK III
his vote in favor of or against any measure, in consideration that any other member shall give or promise his vote on another measure, shall be guilty of solicitation of bribery, or bribery [if the thing be accomplished] ; and such member shall be expelled, and not there- after be eligible for the legisla'ure, and be liable to such further penalty as may be prescriljed by law," ^
Evidence. By the Constitutions of several, any person may be compelled to testify in any investigation or proceeding to esta})lish bribery or lobbying offences under these three sections; but such testimony cannot be afterwards used against him, except to prove perjury.^ And the person so testifying is exempted from punish- ment for his own offence.^ He may also testify in his own behalf.*
§ 155. Special Crimes. The Constitution of Texas provides that the legislature shall provide by law for defining and punishing barratry.^
Gamhling is by the Constitution of Louisiana declared to be a vice, and laws shall be passed to suppress it.**
Prize fighting is forbidden.^
Polygamy and bigamy are made crimes in the Constitution.^
§ 156. Embezzlement of public funds or defalcation in public office or trust is, in some, declared a felony by the Constitution." So, misappropriation of the State or school funds.^" It is a penal offence to borrow, or divert from its purpose, any State fund.^^ Or for a public officer to make a profit out of public money, or to use it for any purpose not authorized by law.^-
* Col. 5, 40; Mon. 5, 41; N. D. 40; moral obligation; a State when once Wy. 3, 42. admitted comes in with all the rights
2 Cal. ; La. 174 ; Md. 3, 50 ; N. Y. of the older States. So far as this 13, 3 ; Pa. 3, 32 ; S. D. 3, 28 ; Wash. 2, section is concerned, Utah could prob- 30 ; W. Va. 6, 45 ; Wy. 3, 44. See also ably amend her Constitution and re- § 239. establish Mormonism to-morrow.
3 Md., W. Va. » Cal. 4, 21 ; Ida. 18, 2; Amt. Nev.
* N. Y. 13, 4. 4, 10 ; S. C. 10, 12. « Tex. 16, 29. See I. Taylor, 567, for '° Minn. 9, 12.
the origin of this offence. " Tex. 8, 7. The notion that an
^ La. 188. See § 426. appropriation could be limited to any
^ S. C. 8, 12. definite object was only established in
* Ida. 1, 4. See also § 41. The England as late as Charles II. The use enabling acts admitting the eight new of public funds for other purposes than Western States usually provided they were originally raised for, although against polygamy on account of the probably contrary to Magna Carta Mormon influence, and this, with other itself, is usual in other countries, so provisions concerning schools, etc., was much so that it has been given a made forever irrepealable without the special name, virement, in France. See consent of the United States ; see Art. 32.
Utah 3, 1. This is probably only a ^^ Ark. 16, 3; Cal. 11, 17; Col. 10,
PART l]
BILL OF RIGHTS : CRIMINAL
187
§ 157. War Exemption. By the Constitutions of two States, no person shall be prosecuted in any civil or criminal action for any act done by him during the war of secession under orders, or in pursuance of military authority vested in him by the United States, the Confederate States, or the State. ^ The Florida provision is omitted in the new Constitution.
§ 158. Felony. The Constitution of Colorado defines felony to mean any criminal offence punishable with death or imprisonment in the penitentiary.-
Article 16. Pardons
§ 160. Pardon Power.^ By the Constitution of most States, the governor has power to grant pardons and commutations * of sentence after conviction.^ And so in all the territories, by U.S.R.S. 1841.
In some, the governor may grant pardons as above only by and with the advice of the Council,'' or Senate,^ or Board of Pardons.^
13; Ga. 5, 2, 5; 7, 9, 1 ; Ida. 7, 10; Ky. 173; Mo. 10, 17; Mon. 12, 14; Okla. 10, 11; Pa. 9, 14; S. D. 11, 11; Utah 13, 8; AVash. 11, 14; Wy. 11, 14; 15, 8.
' Mo. 14, 2; W. Va. 8, 35. The 14th Amendment inferentially terms rebellion a crime. Presumably a Confederate soldier or officer would be liable for acts committed during the Revolution, even if acts of war, — civilly, if not criminally ; but there are hardly any instances of such suits being brought, though there are one or two cases where damages have been re- covered for acts improperly committed, such as seizures of goods not contra- band, or forfeiture of property without due process of law. The statutes and court decisions of the States in rebellion, except in so far as they concern such political matters, have been declared valid by the U. S. Supreme Court.
- Col. 18, 4. And the word is always so used in this book. This is a proper definition, at least in the United States; there being no longer any forfeiture or corruption of blood.
3 Compare U. S. C. 2, 2. The pardon power is not inherent in the executive, like the power to punish for contempts in the judiciary, but it may be questioned whether it would not be exerted even
in the absence of a statute. All the States have such statutes, however, and the tendency is more and more to relieve the Executive of the responsi- bility by creating boards of pardons. The granting of pardons before con- viction became an abuse under the Stuarts.
* Nothing is said about commuta- tions of sentence (Kan., Mass., Md., Minn., Miss., Neb., N. H., N. J., R. I., Tenn., Vt.) "Under the regulations and restrictions prescribed by law : " (N. Y., O., Ind., 111., Mich., Wis., lo., Kan., Va., Neb., Del., N. C, Mo., Ark., Cal., Ore., Col., Ga., Ala., N. D., S. D., Wy.)
* Ala. 124 ; Ariz.* 1093 ; Ark. 6, 18 ; Cal. 7, 1 ; Col. 4, 7 ; Ga. 5, 1, 12 ; 111. 5,13; Ind. 5. 17; lo. 4, 16; Kan. 1, 7; Ky. 77 ; Md. 2, 20 ; Mich. 5, 11 ; Minn. 5, 4; Miss. 124; Mo. 5, 8; N. C. 3, 6; N. D. 76; Neb. 5, 13; N. Y. 77; O. 3, 11; Okla. 6, 10; Ore. 5, 14; S. C. 4, 11; S. D. 4, 5; Tenn. 3, 6; Tex. 4, 11; Va. 73; Vt. 2, 11; Amt. 8; Wash. 3,9; W. Va. 7, 11 ; Wis. 5, 6; Wy. 4, 5.
« Mass. 2, 2, 1, 8; Me. 5, 1, 11; N. H. 2, 51.
' R. I. C. Amt. 2.
« Fla. 1895, p. 366, Del. 7, 1 ; Minn. 1895, 2; S. D. 4, 5; N. J. 5, 10; S. C.
188 THE STATE CONSTITUTIONS [BOOK III
Pov.'er to pardon, as above, is, in otluTs, vested in the governor, judges of the Supreme Court, and attorney-general, or a majority of them, of which the governor must be one.' Governor, secretary of state, and attorney-general."'^ Governor, secretary of state com- missioner of agriculture, controller, attorney-general.'' Governor, secretary of state, attorney-general and auditor.' Presiding judge, secretary of state, and attorney-general.^ Governor, chief justice, and attorney-general.®
In other States, pardons are issued by the governor, upon written recommendation of the lieutenant-governor, secretary of state, secre- tary of internal affairs, and attorney-general, or any three of them,' or a majority of the board, ^ as above,'' the lieutenant-governor, secretary of state, and presiding judge,'" or the attorney-general, chief justice, and two electors appointed by the governor."
The Board of Pardons must sit in open session, give published notice of hearings, and record all pardons, etc. ; and communicate them to the legislature at each session. '-
Exceptions. But in California a person twice convicted of felony cannot be so pardoned by the governor without the ^Titten recom- mendation of a majority of the judges of the Supreme Court. And in Kentucky, a person who has participated in a duel may be pardoned only after the expiration of five years from the offence.'^ Restoration to franchise is by a two-thirds vote of the legislature. '■*
§ 161. What may be pardoned. In most States all offences may be pardoned, according to § 160, except treason and in cases of impeachment.'^ Or except only in cases of impeachment.'" Or except only treason." In Vermont, except also murder.
But in some States, no exception is made of either treason or impeachment.'^
1 Nev. 5, 14; Utah 7, 12. Ind., lo., La., Md., Mich., Miss., Mo.,
2 Ida. 4, 7. N. D., Neb., Nev., N. Y., O., S. D.,
3 Fla. Tex., Utah, Vt., Wis., Wy. The
* Mon. 7, 9 ; Ala. 124. President of the United States is ^ S. D. authorized to pardon even treason 6 Minn. (U. S. C. 2, 2, 2), but not impeachment, ^ Pa. 4, 9. and this is probably a constitutional
* Mon., S. D. principle in England. There can, of
* Except minor crimes, S. D. course be treason to a State as well as *" La. 69. to the United States.
" N. D. Amt. 3. '8 Ala., Del., Ky., Mass., Md., Me.,
12 Ida., Mon., N. D., S. D., Utah, Wy. Minn., N. C, N. H., N. J. Okla., Pa.,
" Ky. 239. R. I., S. C, Tenn., Va., W. Va.
1* Miss. 253. " Ore.
1^ Ark., Cal., Col., Fla., Ga., Ida., »« Ct., 111., Kan.
PART l] BILL OF I'JGIITS : CRIMINAL 189
Treason may, in many States, be pardoned by the legislature; and the governor may suspend the sentence until the end of the session of the legislature next following conviction.^ So, in two more, except that this power to pardon is vested in the Senate."
§ 102. The Effect of a Pardon. In Alabama it does not relieve from civil or political disability unless so specifically expressed in the pardon. But in South Carolina pardon by the governor restores the right of suffrage.^ In Connecticut, the legislature, by a two- thirds vote of each full house, may restore the privileges of an elector to a person convicted of crime.^ Or embezzlement.^
In two, the governor may remove political disabilities consequent on conviction,*^ or that of holding office (as to duelling only).^
§ 163. Reprieves. By the Constitutions of most States, the governor is expressly given powder to grant reprieves in the same cases (§ 161),^ but not for more than sixty days.^ The governor may grant reprieves, after conviction, except in cases of impeach- ment, until the end of the next session of the legislature. ^^ So the Board of Pardons.*^
§ 164. Fines and Forfeitures may, by the Constitutions of most States, be remitted by the governor or other persons in whom the pardoning power is vested (see § 160).^- So the governor may suspend their collection for a period not exceeding sixty days.^^ So, of fines or forfeitures.^* But he may not remit other debts due the State.''
§ 165. Lynch Law. A prisoner lawfully in custody of any officer seized by a mob or other unlawful assemblage and suffering violence or death, the officer is guilty of a misdemeanor and upon conviction shall forfeit his office and be forever disqualified to hold office unless pardoned ; and when death ensues to the person lynched
1 Cal., Fla., Ga., Ida., Ind., lo., S. C, S. D., Tenn., Tex., Utah, Va., Ky., La.. Mich., Miss., N. D., Neb., W. Va., Wis., Wy.
Nev., N. Y., O., Ore., S. D., Utah, Vt., « Fla., Nev.
Wis., Wy. 10 Ct. 4, 10; R. I. 7, 4.
2 Ark., Tex. " Ida.
3 S. C. 2, 6. 1' Ala., Ariz.,* Ark., Del., Fla., Ga., * Ct. Amt. 17. Ida., Ind. 5, 17; lo., Ky., La., Md., « S. C. 10, 12. Me.,Miss.,Mon.,N.D.,Nev.,N.J.,Ore., « Ky. 145; Va. 73. Pa. 4, 9; S. C., S. D., Territories, ^ Ky. 240. U. S. R. S. 1841; Tex., Utah, Va. « Ala., Ark., Cal., Col., Del., Fla., 73; Vt. 2, 11; Wash. 3, 11; W. Va.,
Ga., Ida., 111., Ind., lo., Ky., La., Md., Wy.
Me., Mich., Minn., Miss., Mo., Mon., '^ Nev.
N. C, N. D., Neb., Nev., 5, 13; N. J. " Fla. 4, 11; N. J. 5, 9.
5, 9; N. Y., O., Okla., Ore., Pa. 4, 9; " Md.
190 THE STATE CONSTITUTIONS [BOOK III
the county where it takes phice is liable in exemplary damages of not less than S2000 to his representatives. The county may recover back from the parties engaged in said lyncliing.^
The sheriff suffering a lynching to take place is liable to impeachment.'
* S. C. 6, G. Statutes of similar im- « Ala. 138. port are being adopted in many States.
PAIiT II] POLITICAL PfiOVISIONS 191
Paet II
POLITICAL PROVISIONS
§ 180. Note. Compare, generally, with this part the United States Constitution, after which the poHtical systems of the newer States are generally modelled. It has proved, since the first edition (1S8G) of American Statute Law, owing to frequent amendments of this part of the State Constitutions and endless diversity of detail, unwise to attempt herein more than a general statement of the States' frame of government.
Article 18. Rights of Government
§ 181. Authority derived from the People. The Constitutions of all States except New York and Michigan declare that all political power is inherent in the people,' or that Governments derive their just powers from the consent of the governed," or are founded on the authority of those governed.^ And that the people have at all times the right to make, alter, or reform the government.* So, in three, the doctrine of non-resistance is declared to be wrong; and the people ought to reform or abolish the government when other means of redress fail.'
' Ala. 1, 2; Ark. 2, 1; Cal. 1, 2; » Ariz.* Bill of Rts. 1; Ark. 1, 2; Col. 2, 1; Ct. 1, 2; Del. Preamble; Del.; Ga. ; 111.2, 1; La.; Md. ;Mon.; Fla. Decln. of Rts. 2; Ga. 1, 1, 1; Ida. N. C; Neb. 1, 1; N. H.; S. D. 6, 1; 1, 2; Ind. 1, 1; lo. 1, 2; Kan. Bill of Wash. ; Wis. 1, 1. See Decln. Ind. Ij 3. Rts. 2: Ky. 4; La. 1; Mass. 1, 5, & 7; ^ Ala., Col., Ct., Ind., Kan., Ky., Md. Decln. of Rts. 1 ; Me. 1, 2; Minn. La., Me., Miss., Mo., Mon., N. M.*, Ore., 1, 1; Miss. 5; Mo. 2, 1 ; Mon. 3, 1; Pa., S. D., Tenn., Tex., Utah, Wy. N. C. 1, 2; N. D. 1, 2; Nev. 1, 2; ^ Ala. ; Ariz.* ; Ark. ; Cal. ; Col. 2, 2 ; N. H. 1, 1, & 8; N. J. 1, 2; N. M.* Ct. ; Del. ; Fla. ; Ga. 1, 5, 1 ; Ida. ; Ind. ; 95, 1; July 12, 1851, § 1; O. 1, 2; lo. ; Ky. ; Mass. Preamble 1, 7; Md. ; Okla. 2, 1 ; Ore. 1, 1 ; Pa. 1, 2 ; R. I. 1, Me. ; Minn. ; Miss. 6 ; Mo. 2, 2 ; Mon. 3, 1; S. C. 1, 1; S. D. 6, 26; Tenn. 1, 1; 2; N. C. 1,3;N. D. ; Nev.; N. H. 1,10; Tex. 1, 2 ; Utah 1, 2 ; Va. 1, 2 ; Vt. 1,6; N. J. ; N. M.* ; O. ; Okla. ; Ore. ; Pa. ; R. Wash. 1, 1 ; W. Va. 2, 2; 3, 2; Wy. I. ; S. C. ; S. D. ("In lawful and consti- 1, 1. So in the United States Constitu- tuted methods"), Telkn. ; Tex. ; Utah; tion (Preamble; Amts. 9, 10). In Va. 1, 3; Vt. 1, 7; W. Va. 3, 3; Wy. England it resides with the Sovereign See also Decln. Ind. ^ 1. See also § 183. and Parliament. (Taswell-Langmead, ^ Md. Decln. of Rts. 6 ; N. H. ; Tenn. p. 428.) See Decl. Ind., CI. 3. 1, 2. This seems Uke an attempt to
192 THE STATE CONSTITUTIONS [BOOK III
§ 1S2. Form of Government. The Constitution of Texas declares that the faith of the people stands pledged to a republican form of government ; ' and that of Kentucky and Wyoming, that absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority.^ Representative government is not necessary, however, in Okla- homa. See § 201.
§ 183. The object of Government is declared to be for the security, benefit, and protection of the people,^ "for the preserva- tion and protection of our liberties," * for their peace, safety, and happiness,^ for their benefit, or "for the good of the whole," " "for the protection of property," ^ for their equal protection and benefit,^ or to protect the citizen in the enjoyment of life, liberty, and prop- erty,° or, to protect and maintain individual rights. ^° And in New Hampshire, also in the enjoyment of rights of conscience.'^ In Massachusetts, to protect them in the enjoyment of their natural rights generally. ^^
When Government assumes other functions than as above, it is, in Alabama, declared to be usurpation and oppression. So, in Missouri, when it fails of its objects as above, it fails of its chief design. ^^ And may be reformed or abolished by a majority of the community. '*
§ 184. Officers. — [As a consequence of § 181] all officers are by the Constitutions of seven States declared to be accountable to the people as their trustees or servants.'^
establish a constitutional right to revo- * S. C. Preamble.
lution! See also §§ 4, 5, 12. ' Del. Preamble; La. 1; Ind. 1, 1;
1 Tex. 1, 2. Tliis is required by Ky. 4; Ore. 1, 1; Pa. 1, 2; Tenn. 1, U. S. Const. 4, 4. A republican form 1; Wy. 1, 1.
of government is usually understood to ® Col. 2, 1; Ct. 1, 2; Ga. 1, 1, 1;
be based upon the suffrages of the Ida. 1, 2; La. 1 ; Md.; Okla.; Decln.
people with a representative legislature of Rts. 1 ; Me. 1, 2 ; Miss. 5 ; Mo. 2, 1 ;
and an elective non-hereditary execu- Mon. 3, 1 ; N. C. 1, 2 ; N. H. 1, 1 ;
tive ; while in a pure democracy all Okla. ; R. L ; S. D. ; Tex. 2, 2.
the people make the laws and elect the ^ Ky.
officers directly. « Ida.; S. D. 6, 26; Utah 1, 2.
2 Ky. 2; Wy. 1, 5. This is a good » Ala. 1, 35; Ariz.* Bill of Rts. 1; definition of constitutional govern- Ark. 2, 2; Ga. 1,1,2; 111.2,1; Mo. 2, ments as distinct from a pure democ- 4; Neb. 1, 1; N. H. 1, 12; S. D. 6, 1; racy. Wis. 1, 1. See also Decln. of Ind. If 4.
3 Ark. 2, 1 ; Cal. 1, 2; Fla. Decln. '° Wash. 1, 1. See also § G. of Rts. 2; Ida. 1, 2; lo. 1, 2; Kan. " N. H. 1, 4.
Bill of Rts. 2; Mass. 1, 7; Minn. 1, 1 ; '= Mass. Preamble.
N. D. 1, 2; Nev. 1, 2; N. H. 1, 10; " ggg ^Iso §§ 6, 12.
N. J. 1, 2 ; O. 1, 2 ; Okla. 2,1; R. I. 1, " Va. 1, 3.
2 ; Va. 1, 3 ; Vt. 1, 7 ; W. Va. 3, 3. ^' Ga. 1, 1, 1 ; Mass. 1, 5; Md. Decln.
PART II] POLITICAL PROVISIONS 193
§ 185. Fundamental Principles are referred to, and their observ- ance required both of electors and officers.'
§ 186. Representation is, by the Constitutions of many States, required to be apportioned according to population.^ And so of representatives to Congress.^ So, in others, it is to be "founded on principles of equality." * To be "equal and uniform." ^ Rep- resentation according to population in both houses of the Legisla- ture is in fact provided for in nearly all.® In others, as to the lower house only,^ in Connecticut as to the Senate. In New Hampshire, the representative districts are divided according to population, but the senatorial according to the proportion of direct taxes paid.* For Oklahoma, see also § 182.
§ 187. Gerrymandering. — See § 218.
§ 188. Initiative and Referendum. — See § 309. (See also § 182, note 1.)
Article 19. State Sovereignty
§ 190. The United States Constitution,^ by the Constitutions of a few Southern States, is expressly declared the supreme law of
of Rts. 6; N. H. 1, 8; Va. 1, 2; Vt. 1, 'Compare § 391. The Federal 6; W. Va. 3, 2. See § 213. Constitution, Art. 6, § 2, reads: "This
* N. H. 1, 38. See § 5. Constitution, "and the Laws of the '^ Ala. 198, 200, 284 ; Ariz.* Bill United States which shall be made in
of Rts. 12 ; Col. 5, 45 ; Kan. 10, 2 ; Pursuance thereof ; and all Treaties
Ky. 33; La. 18, 19; Md.Amt. 1900,432; made or which shall be made, under
Me. Amt. 25; Minn. 4, 2; Mon. 6, 2; the Authority of the tfnited States
N. D. 29 & 35 ; Neb. 3, 2 ; Nev. 1, 13; shall be the supreme Law of the Land;
N. Y. 3, 4 ; S. D. 3,5; Tex. 3, 25, & and the Judges in every State shall be
26; Wash. 3, 3; W. Va. 2,4; Wy. 3, 3. bound thereby, anything in the Con-
' Mon.; Va. 55; W. Va. 1, 4. stitution or Laws of any State to
* Mass. 2, 1, 3, 1 ; N. H. 2, 9. the contrary notwithstanding." It is ^ Ky., La. therefore quite unnecessary to put ^ Ark. 8, 1, 2; Cal. 4, 6; Ct. Amts. similar provisions in the State Constitu-
2, 18, 23, 31 (the equality is still im- tions, though it is probably done in
perfect, however) ; Fla. 7, 3 ; III. 4, 6 ; memory of the attempted Secession.
Ind. 4, 5 ; lo. 3, 35 ; Ky. 33 ; Mass. Amt. It will be noted that all treaties made
21-22; Me. 4, 1, 2; Mich. 4, 4; Miss, under the authority of the United
4, 34-35; Mo. 4, 2, & 5; Mon. 6, 6; States shall be the supreme law of the
N. C. 2, 4-5; N. D. 29, 35; N. Y. 3, land. But just as a law must be con-
4-5; O. 11, 2, & 6; Okla. 5, 9 a, & stitutional, it would seem that a treaty
10 (c) ; Ore. 4, 6 ; Pa. 2, 16-17 ; Tenn. should be constitutional, and one made
2, 4-6 ; Vt. 2, 7 ; W. Va. 6, 4, & 7 ; counter to the admitted rights of the
Wis. 4, 3 ; Wy. 3, 3. States would, according to the better
^ Ga. 3, 3, 2-3; Md. 3, 2-4; N. J. opinion,not be constitutional, at least as
4, 3, 1; R. I. 5, 1, but each town or between the States and the Federal gov- city is at least entitled to one member ; ernment.
5. C. 1, 2, and so of the Senate; R. I. Treaties stand on no higher footing
* N. H. 2, 9, & 25. than acts of Congress and may be im-
13
194 THE STATE CONSTITUTIONS [BOOK III
the land,* or that the State is free and independent, subject only to the United States Constitution.^ So, the United States Constitu- tion is declared part of the State law, anything in the State Consti- tutions or laws to the contrary notwithstanding.^ And so of United States laws made under the Constitution,* or treaties by the national Government.^ This is declared irrepealable without the consent of the United States, in the new Western Constitutions, according to their enabling Acts ; but this would seem to add no new strength to the clause; of. § 155, note 8.
§ 191. Allegiance. — The Constitutions of North Carolina and the newer States provide that the State shall always remain a member of the American Union. ^ So, that no law shall be passed in deroga- tion of the paramount allegiance of the citizens of the State to the United States Government.'' And in two, it is declared that the State and United States Constitutions apply as well in war as in peace. ^
§ 192. Secession. — The Constitutions of three States declare that there is no right on the part of the State to secede or dissolve its connection with the Union, ^ and that all attempts at secession ought to be resisted by the State,'" and by the Federal Government, if necessary, by force of arms.'*
§ 193. State Rights. — But the right of local self-government belonging to the people of each State is in several of the older States
paired by a subsequent law counter to * Ga., Md., W. Va.
their provisions. Under Art. 2, § 2, » Ariz.* Bills of Rts. 2; Cal. 1, 3;
the president has power, by and with Ida. 1, 3; N. C. 1, 4; N. D. 3 ; Okla.
the advice and consent of the Senate, 1, 1; S. D. 6, 26; Utah 1, 3; Wy.
to make treaties provided two-thirds Ordinance; 1, 35. This would seem to
of the Senate as present concur. They be settled, and it is left out in the new
cannot be formally abrogated or modi- Constitution of S. C. and Va.
fied except by the power that made ' Fla. Decln. of Rts. 2 ; Miss. 7 ;
them, but a law inconsistent with their N. C. 1, 7; Nev. 1, 2 ("In the exercise
provisions would, nevertheless, take by the United States Government of
effect pro tanto. the constitutional powers as defined
1 Ariz.* Bill of Rts. 2; Cal. 1, 3; by the U. S. Supreme Court"). Ga. 12, 1, 1; Ida. 1, 3; Md. Decln. « Md. Decln. of Rts. 44; W. Va. of Rts. 2; Miss. 6; Mo. 2, 2; Mon. 3, 1, 3.
2; N. C. 1, 5; N. D. 3 ; Nev. Prelim. " Fla. Decln. of Rts. 2; N. C. 1, 4; Act; Okla. 1, 1 ; S. D. 6, 26; Utah 1, Nev. 1, 2. Similar provisions existed 3; Wash. 1, 2; W. Va. 1, 1; Wy. 1, in Alabama and Mississippi, but have 35 ; Ordinance. See also § 193. been omitted by the new Constitution.
^ Col. 2, 2 ; Md. Decln. of Rts. 2-3 ; In substance this is declared by the Tex. 1, 1. 14th Amendment. See § 157, note 1.
3 Ga. 1, 4, 2; Ida. Sched. 22; Md.; Compare also § 191. Territories, U. S. R. S. 1891. '" N. C.
* Ariz.* Ga., Md., Territories, W.Va. *' Nev,
PART II] POLITICAL PPvOVISIONS 195
declared a constitutional right which the national Government can never infringe.^ The people of the State have the sole and exclu- sive right of governing themselves as a free, sovereign, and inde- pendent State; and shall exercise and enjoy every power, jurisdic- tion and 7-ight which is not or may not hereafter be, by them, expressly delegated to the United States of America in Congress assembled.^
So, in Virginia, that the people have a right to uniform govern- ment; and therefore that no government separate from, or inde- pendent of, the government of Virginia, ought to be erected or established within the limits thereof.^
And that the powers not delegated to the United States by the United States Constitution, nor prohibited by it to the States, are reserved to the State.*
Article 20. Constitution of the State Governments
§ 200. The Three Functions J" — By the Constitutions of nearly all, the powers of Government are divided into three distinct depart-
» Col. 2, 2; Ga. 1, 5, 1; Md. Decln. is to say, Article 1, § 1, "All legisla- of Rts. 4; Mo. 2, 2 ; N. C. 1, 3; Tex. tive powers herein granted shall be 1,1; Vt. 1,5; W. Va. 1,2. See Book vested in a Congress." Art. 2, § 1, I for a full discussion of this principle "The executive power shall be vested and its history. in a President." Art. 3, § 1, "The
* Mass. 1,4; N. H. 1,5. Judicial power of the United States ' Va. 1, 14. shall be vested in one Supreme Court,"
* Md. Decln. of Rts. 3; W. Va. 1, 2. etc. The Massachusetts provision adds To the State or to the people, and the striking words "To the end it may so the words run in the U. S. 10th be a government of laws and not of Amendment. men," which phrase was praised by
* This division of the powers of Daniel Webster as its "noblest expres- sovereignty into three departments, sion." The omission of the provision legislative, executive, and judicial, and from the Constitution of New York, constitutional exclusion of either de- with the corresponding omission of the partment from the functions of the statement (Sec. 183) that the object of other is, with the invention of a dele- government is for the benefit, etc. of gated legislative authority subject to the people, is a most striking one. In the judgment of the courts, perhaps England the attempt of the kings to the greatest political invention of the resist this principle was in modern founders. (See Book I.) Although times most notable under Charles I. doubtless theoretical precedents are and George III. The effort of James I. to be found in the books of l\Iontes- in 1616 to interfere ^\'ith the judiciary, quieu and others, the principle does and the resistance of Coke is well de- not exist in the British Constitution, scribed in Taswell-Langmead (pp. 406- and was really first applied intelli- 407). By the Act of Settlement (12 gently in our own. The separation of and 13 William III. c. 2) all judges' powers is just as clearly expressed in commissions are to be during good the Federal Constitution as in those behavior, and their salaries fixed, and of the States, although put more they can only be removed upon address simply and without the negative; that of both houses of Parliament. In 1780
19G THE STATE CONSTITUTIONS [BOOK III
ments, — the legislative, executive, and judicial,* "to the end that it be a government of laws, not of men." - And in most of these it is declared that no person or collection of persons exercising the functions of one department siiall assume or discharge the func- tions of any other.^ They (tiie three departments) ought to be kept as separate from and independent of each other as the nature of a free government will admit."*
In the other States the same thing is implied by the distribution of all such power in separate articles, as in the United States Constitution.
In others, only that the Legislature can exercise no judicial power not expressly conferred by the Constitution,'' or that the judges shall have none but judicial duties imposed upon them."
The legislature shall have no power to deprive the Judicial De- partment of any power or jurisdiction \^hich rightfully pertains to it as co-ordinate department of the Government; but the Legisla- ture shall provide a proper system of appeals, and regulate, by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the Supreme Court, so far as the same may be done without conflict with this Constitution.''
§ 201. Political Constitution. (See 309.) There is in all the States and territories a Legislature.^ Both the Senate and the House
a resolution was proposed and carried (Except in cases expressly by the Con- in the House of Commons affirming stitution permitted : Ark., Cal., Col., that the influence of the Crown has Fla., Ga., Ida., 111., Ind., lo., Ky., La., increased, is increasing, and ought to Me., Mich., Minn., Mo., Mon., Neb., be diminished (Taswell-Langmead, p. Nev., Ore., Tenn., Tex., Utah, Wy.) 550). * N. H.
' Ala. 42; Ark. 4, 1; Cal. 3, 1 ; ^ 0.2,32. Col. 3, 1; Ct. 2; Fla. 2; Ga. 1, 23; « N. D. 96; Wy. 5, 16. Ida. 2, 1 ; 111. 3, 1 ; Ind. 3, 1 ; lo. 3, ^ Ida. 5, 13. See also Art. 65, for
1; Ky. 27; La. 16; Mass. 1, 30; Md. laws regulating powers of courts in
Decln. of Rts. 8 ; Me. 3, 1 ; Mich. 3, contempt cases.
1 ; Minn. 3, 1 ; Miss. 1, 1 ; Mo. 3, 1 ; « ^la. 44 ; Ark. 5, 1 ; Cal. 4, 1 ; Col
Mon. 4,1; N. C. 1, 8 ; Neb. 2, 1 ; Nev. 5, 1 ; Ct. 3, 1 ; DsL 2, 1 ; Fla. 3, 1 ; Ga,
3, 1 ; N. H. 1, 37 ; N. J. 3 ; Okla. 4, 1 ; 3, 1, 1 ; Ida. 3, 1 ; 111. 4, 1 ; Ind. 4, 1
Ore. 3, 1 ; R. I. 3 ; S. C. 1, 14 ; S. D. 2, lo. 3, 1 ; Kan. 2, 1 ; Ky. 29 ; La. 21
1 ; Tenn. 2, 1 ; Tex. 2, 1 ; Utah 5, 1 ; Mass. 2, 1, 1, 1 ; Md. 3, 1 ; Me. 4, 1, 1
Va. 5 & 39 ; Vt. 2, 6 ; W. Va. 5, 1 ; Wy. Mich. 4, 1 ; Minn. 4, 1 ; Miss. 33 ; Mo
2, 1. 4, 1 ; Mon. 5, 2; N. C. 2, 1 ; N. D. 52
^ Ala. 43 ; Mass. Neb. 3, 1 ; Nev. 4, 1 ; N. H. 2, 2 ; N. J
3 Ala. ; Ark. 4, 2 ; Cal. ; Col. ; Fla. ; 4, 1, 1 ; N. Y. 3, 1 ; O. 2, 1 ; Okla. 5, 1
Ga. ; Ida. ; 111. ; Ind. ; lo. ; Ky. 28 ; La. Ore. 4, 1 ; Pa. 2, 1 ; R. I. 4, 2 ; S. C. 3
17; Mass.; Md.; Me. 3, 2; Mich. 3,2; 1 ; S. D. 3, 1 ; Tenn. 2, 3; Tex. 3, 1
Minn.; Miss. 1, 2; Mo.; Mon.; Neb.; U. S. R. S. 1846; Utah 6, 1; Va. 40
Nev.; N. J.; Okla.; Ore.; S. C; S. D.; Vt. Amts. 2-3; Wash. 2, 1; W. Va,
Tenn. 2, 2 ; Tex. ; Utah ; Va. ; Vt. ; W. Va 6, 1 ; Wis. 4, 1 ; Wy. 3, 1. In many
PART II] POLITICAL PROVISIONS 197
are in all States elected by the people at the general election day/ Vacancies in either House are nearly always filled in the same way by a special election,^ but in Massachusetts, vacancies in the Senate are filled by special election upon the order of a majority of the senators elected,'' and in New Hampshire by direct vote of the two Houses. Where there is no majority vote, see § 232.
Each house of the Legislature has a negative on the other. ^ Or the concurrence of both Houses is necessary to the enactment of laws.^ For other States, see § 304.
The legislative authority of the State shall be vested in a Legisla- ture, consisting of a Senate and a House of Representatives ; but the people reserve to themselves the power to propose laws and amend- ments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature.*
There is, in most States, a provision that legislative districts shall be fixed according to population. ^ In some of the older States, however, the districts are fixed by the Constitution, and cannot, apparently, be changed.* So, in South Carolina, there must be only one senator from each county.'' In several States the number of both Senate and House is permanently fixed ; thus, for the Senate, forty-four ; ^^
the le2;islature is called the General Utah; Va. 41, 42; Vt. Amts. 5-24,2
Assembly (Ark., Col., Ct., Del., Ga., 111., Wash. ; W. Va. 4, 7 ; Wis. 4, 4-5 ; Wy Ind., To., Ky., La., Md., Mo., N. C, ^ Ala. 46; Ark. 5, 6; Cal. 4, 12
N. J., O., Pa., R. I., S. C, Tenn., Va., Col. 5, 2; Del. 2, 6; Ga. 5, 1, 13; 111
Vt.) ; in a few, the Legislative Assembly 4, 2 ; Ind. 5, 19 ; lo. 3, 12 ; Kan. 2, 9
(Mon., N. D., Ore.); in some of the Ky. 152; La. 23 ; Md. 3, 13; Me. 1897
old States, the General Court (Mass., resolve 259; Mich. 5, 10; Minn. 4, 17
N. H.). In the territories the Senate Miss. 77 ; Mo. 4, 14 ; Mon. 5, 45 ; N. C
is called the Council. In some States 2, 13 ; N. D. 44 ; Nev. 4, 12 ; N. H. 2
the House of Representatives is called 15 & 33 ; N. J. 4, 4, 1; O. 2, 11
the Assembly (Cal., Nev., N. Y., Wis.). Okla. 5, 20; Ore. 5, 17; Pa.; R. I. 8
In others, the House of Delegates (Md., 9; Amt. 11; S. C. 3, 25; S. D. 3, 10
W. Va.). Tenn. 2, 15 ; Tex. 3, 13 ; Utah 6, 13
' Ala. 46 ; Ark. 5, 2-3 ; Cal. 4, 3-4 ; Va. 47 ; Wash. 2, 15 ; W. Va. ; Wis. 4,
Col. ; Ct. 3, 3-4 ; Del. 2, 2, 3 ; Fla. 3,3; 14 ; Wy. 3, 4. See also § 232. Ga. 3, 4, 2; Ida. 3, 2; 111.; Ind. 4, 2; ' Mass. Amt. 24. lo. 3, 3 & 5 ; Kan. 2, 29 ; Ky. 29, 30, * Mass. ; Me. ; N. H. 2, 2 ; Vt. This
31 ; La. 191 ; Mass. Amts. 3-15; Md. is, of course, the case in all the States.
3, 2 & 6; Me. 4, 2, 1; Mich. 4, 2; * lo. 3, 15; N. Y. 3, 15; R. I. 4. 2. Minn. 4, 24; Miss. 34, 35; Mo. 4, 2 & « Okla. 5, 1; Mon. 1905, 61. See 5 ; Mon. ; N. C. 2 ; N. D. ; Neb. 16, 13 ; also § 309.
Nev. 4,3-4; N. H. 2, 11 & 27; N. J. ^ S. C. 3, 3. See § 186.
4, 2, 1; N. Y. 3, 2-5; O. 2, 2; Okla. * Ct. 1895, p. 712; 1899, p. 1153;
5, 9; Ore. 4, 3; Pa. 2, 2; R. I. 8, 1 ; Del. 2, 2.
S. C. 3, 2 & 6; S. D.; Tenn.; Tern- " S. C. 3, 6. tories, U. S. R. S. 1846; Tex. 3, 3-4; '" Okla. 5, 9.
198
THE STATE CONSTITUTIONS
[rook III
or fifty.' For the House, one hundred;^ one-hundred and eipjlit;'' one hundred and fifty.*
United States senators must be elected by popular vote whenever the Federal Constitution so permits/' and several states have passed resolutions urging Congress to call a convention so to amend ; " while a few States have statutes authorizing voters to express their preferences for United States senators at ordinary elections.
§ 202. Executive. There is in all the States a governor, a secre- tary of state, and a treasurer.^ And so in all the territories by U. S, R. S. 1841. In most of the States there is also a lieutenant-governor.^ In New Hampshire, Massachusetts, and Maine," there still exists an executive council with power to advise the governor; so in North Carolina, the "council" consists of the secretary, auditor, treasurer, and superintendent of public instruction,"' But in some States the president of the Senate, etc., succeeds to the governor's office when vacanf
There is in most States also an auditor,'- comptroller,'^ and an attorney-general." In the other States these offices may be provided for by statute. In many States there is a superintendent of public
1 N. Y. 1902, p. 199; 1898, p. 1550.
2 Okla. 5, 10.
3 lo.
* N. Y.
' Okla. 3, 4.
« lo. 1907, p. 185; Neb. 1907, 203; Ore. 1901, p. 476.
' Ala. 113; Ark. 6, 1; Ariz.* 1143; Territories, U. S. R. S. 1843; Cal. 5, 1 & 17; Col. 4, 2; Ct. 4, 1 & 18 & 17; Del. 3, 1 & 15 ; 2, 16 ; Fla. 4, 1 & 20 ; Ga. 5, 1, 1 ; Ida. 4, 1 ; 111. 5, 1 ; Ind. 5, 1 ; 6, 1 ; lo. 4, 1 & 22 ; Kan. 1, 1 ; Ky. 69, 80, 82 ; La. 61 ; Mass. 2, 2, 1, 1 ; 2, 2, 4, 1 ; Amt. 17 ; Md. 2, 1 & 22 ; 6, 1 ; Me. 5, 1, 1 ; 5, 3, 1 ; Mich. 5,1; 8, 1 ; Minn. 5, 1 ; Miss. 116, 133; Mo. 5, 1; Mon. 7, 1; N. C. 3, 1; N. D. 71, 82; Neb. 5, 1; Nev. 5, 1 & 19 ; N. H. 2, 40 & 66 ; N. J. 5, 1; 7, 2, 3,4; N.Y. 4, 1; 5, 1; 0.3, 1 & 5 ; Okla. 6, 1 ; Ore. 5, 1 ; 6, 1 ; Pa. 4, 1 ; R. I. 7, 1 & 12 ; S. C. 4, 1 & 24 ; S. D.
4, 1 & 12 ; Tenn. 3, 1 & 17 ; 7, 3 ; Tex. 4, 1 ; Utah 7, 1 ; Va. 69, 80, 81 ; Vt. Amts. 8-10 ; Wash. 3, 1 ; W. Va. 7, 1 ; Wis.
5, 1; 6, 1; Wy. 4, 1 & 11.
« Ala. 112; Cal. 5,15; Col. 4, 1; Ct. 4, 3 ; Del. 3, 19 ; Ida. ; 111. ; Ind. 5, 2; lo. 4, 3; Kan.; Ky. 82; La.;
Mass. 2, 2, 2, 1 ; Mich. ; Minn. ; Miss. 128; Mo.; Mon.; N. C. ; N. D. 72; Neb.; Nev. 5, 17; N. Y.; O.; Okla.; Pa.; R. L; S. C. 4, 5; S. D. 4, 1; Tex.; Va. 77; Vt."; Wash.; Wis. See § 282.
» N. H. 2, 59; Mass. Amt. 16; 2, 2, 3, 1; Me. 5, 2, 1.
1" N. C. 3, 14.
»' See § 282.
>2 Ala. ; Ark. ; Col. ; Ida. ; 111. ; Ind ; lo. ; Kan. ; Ky. ; La. 82 ; Mass. ; Mich. ; Minn. ; Miss. ; Mo. ; Mon. ; N. C. ; N. D. ; Neb. ; O. ; Okla. ; Pa. ; S. D.; Utah; Va. ; Vt. Amt. 1882, p. 108 ; Wash. ; W. Va. ; Wy.
'3 Cal. ; Ct. 4, 19 ; Fla. ; Ga. ; Md. Nev. ; N. J. ; N. Y. ; S. C. ; Tenn. ; Tex
'* Ala. ; Ark. ; Cal. ; Col. ; Del. 7, 1 Fla. ; Ga. 6, 10, 1 ; Ida. ; 111. ; lo. 5 12; Kan.; Ky. ; La. 97; Mass. 9, 11 Md. 5, 1; Me. 9, 11; Mich.; Minn. Miss. 143 ; Mo. ; Mon. ; N. C. ; N. D. Neb.; Nev.; N. H. 2, 46; N. J. ; N Y.; O.; Okla.; Pa.; R. L; S. C. S. D.; Tenn. 6, 5; Territories, U. S R. S. 1875; Tex.; Utah; Va. 107 Wash. ; W. Va. ; Wis.
PART II ]
POLITICAL PROVISIONS
199
instruction,' in others, a board of education.^ And the state Constitu- tions estabHsh other offices as follows : a secretary of internal affairs; ^ a state engineer or surveyor ; * a state corporation commission of three members ; * a state examiner of banks ; ® a commissioner of charities;^ a state examiner and inspector;^ a commissioner of insurance; * of state prisons; '" of immigration, labor, and statis- tics; " of charities; ^" of the land office; '^ of agriculture; " a canal board ; '^ a superintendent of public works ; ^^ a commissioner of mines; " a board of public works; '^ a register of the land office; '" a state librarian ; -'* a superintendent of labor and agriculture ; ^' a board of railway commissioners;'^ a board of prison commis- sioners ; " a state board of health ; ^* a state board of labor may in Virginia be established by law." In the other States, many of these boards or commissions are created by the statutes and are com- posed of certain specified officers.
There has been a decided movement recently U) establish railroad commissions, and in many states they are created by the state Con- stitution itself ; see § 532. For arbitration commissions, see § 456.
Executive officers are, in most States, elected by the people at the general election.-^
'« N. Y.
'' Col. 16, 1.
i« Md. 12, 1 ; Va. 4. 17.
" Ky.
20 Md. 7, 3.
2^ Ala.; Del. 11, 1; Ky. ; La.; Okla.
6, 31; Md. 10, 1; Mon. 18, 1; N. D.; Va. 143.
22 Neb., N. D. See in § 532.
2» Mon. 7, 20; Nev. 5, 21.
2* Del. 12, 1.
^ Va. 86.
26 Ala. 114; Ark. 6, 3; Cal.; Col 4, 3 ; Ct. Amts. 4, 5, and 6; Del. 3, 2, &21; Fla. 4, 20; Ga. 5, 1, 3; Ida. 4,2; ni. 5, 3 ; Ind. 5, 3 ; 6, 1 ; lo. 4, 2, & 3; Kan.; Ky. 70; La. 62 & 79; Mass. ; Md. 2, 2 ; Me. 5, 1, 2 ; Mich. 5, 3 ; 8, 1 ; Minn. ; Miss. ; Mo. 5,2; Mon.
7, 2; N. C; N. D. 74; N. H. 2, 41 & 59; Neb. ; Nev. ; N. Y. 5, 1 ; O. 3, 1 & 18 ; Okla. ; Ore. ; Pa. 4, 2 ; R. L
8, 1 ; S. C. ; S. D. 4, 3 ; Tenn. 3, 2 ; Tex. 4, 2 ; Utah 7, 2 ; Va. 70 ; Vt. Amt. 1883, p. 107 ; Wash. ; W. Va. 7, 2 ; Wis. 5, 3 ; 6, 1 ; Wy. 4, 3. But in New Jersey the treasurer and comptroller are appointed by the legislature in joint session; and
' Ala. 13, 7; Ark. 6, 21 ; Col. ; Fla 12, 2 ; Ga. 8, 2, 1 ; Ida. ; 111. ; Ind. 8 8; Kan.; Ky. 91; La. 225; Mich. Miss. 202 ; Mo. ; Mon. ; N. C. ; N. D. Neb.; Nev. 11, 1; Okla.; Ore. 8, 1 Pa.; S. C. 11, 1; S. D. ; Utah; Va 131; Wash.; W. Va. ; Wis. 10, 1 Wy.
2 Cal. 9, 2 ; Col. 9, 1 ; Fla. 12, 3 ; Ida. 9, 2; lo. 9, 1, 1; Mich. 13, 9; Miss. 203; Mo. 11,4; N. C. 9, 8; Neb. 8, 1; S. C. 11, 2; Tex. 7. 8; Va. 130.
3 Pa.
* Cal. ; Nev. ; N. Y. 5, 2.
' Va. 155.
« La. 194.
' Okla. 6, 27.
8 Okla. 6, 19.
« N. D. 82 ; Okla. 6, 22.
" N. Y.
» Fla.; Ida. 13, 1; Ky.; Md. 10, 3; Va. ; Wash. ; Okla. 6, 20.
'= N. Y. 8, 11.
" Ark. ; Col. 9, 9 ; Fla. 4, 26 ; Ky. ; Md. 7, 4 ; Mich. ; Neb. ; N. Y. 5, 5 ; Okla. 6, 32 ; S. D. ; Tex. ; Wash.
» Ala.; Del. 11, 1; Va. 143.
1* N. Y. 5, 5.
200
THE STATE CONSTITUTIONS
[book III
Vacancies in all executive offices (except the governor or lieutenant- governor, see § 282) are, as a rule, filled either by election or appoint- ment as originally provided.' But in some, they are filled by the governor, with the consent of the Senate, if in session ^ (except in Illinois, Montana, North Carolina; and, in Massachusetts, vacancies of the council are filled by the joint vote of the Legislature, or, if not in session, by the governor and council. Mass. Amt. 25.)
In a few States, all state offices for the weighing, gauging, inspecting or measuring any merchandise or produce are forbidden.''
§ 203. Terms of Office. A senator, by the Constitution of most States, is elected for four years.* In many others, for two
the attorney-general and secretary of state are nominated by the governor and confirmed by the senate (N. J. 7, 2, 3, & 4) ; so, in New York, the super- intendents of pubUc works, and of prisons. In Pennsylvania, the secretary of state and attorney-general are ap- pointed by the governor and confirmed by the senate on a two-thirds vote ; and so he appoints one superintendent of public instruction and all other officers whom he is given power to appoint (Pa. 4, 8). In Maryland, the comptroller and attorney-general are elected by the people ; the secretary of state, librarian, and commissioner of lands appointed by the governor ; and the legislature in joint session elects the treasurer. In Delaware, the secre- tary of state is appointed by the governor and confirmed by the senate (Del. 3, 10) ; and the treasurer by the legislature (Del. 2, 16). In two States, the secretary of state is appointed by the governor and confirmed by the senate (Tex. 4, 21 ; W. Va. 7, 3). In Georgia, the school commissioner or superintendent is appointed by the governor. In several, the secretary and treasurer [and commissary] are elected by the legislature in joint ballot (Me. ; N. H. 2, 66; Tenn. 3, 17; 7, 3 ; so, in one, the comptroller (Tenn.) ; so, in one, the attorney-general (Me. 9, 11). In one, the attorney-general is appointed by the Supreme Court (Tenn.), in one, by the governor and council (N. H. 2, 45). The state boards of charities, lunacy, and prisons are appointed by the governor and con- firmed by the senate (N. Y. 8, 12).
In the territories, the governor, sec- retary, and attorney-general are ap- pointed by the President, and con- firmed by the Senate of the United States (U. S. R. S. 1877).
In Maine, the council is elected by the legislature in joint ballot (Me. 5, 2, 2).
In Mississippi, the governor is chosen by votes of the counties or district, each one being entitled to the same num- ber of votes as it is entitled to members in the House, these being designated electoral votes and given to the person receiving in each county or district the highest number; and the person re- ceiving a majority of all the electoral votes and also a majority of the popular vote is declared elected by the House, which may determine the contested vote of counties or districts by a ma- jority vote. If no person have such majorities, the House chooses the gov- ernor from the two persons who have received the highest number of popular votes, which election is viva voce. (Miss. 140; 141.)
' See §§ 202, 211.
2 Ala. 136; Ark. 6, 23; Col. 4, 6 Del. 2, 9; 111. 5, 20; Kan. 1, 14; Ky, 76; La. 76; Mich. 8, 3; Minn. 5, 4 Mon. 7, 7; N. C. 3, 13; Neb. 5, 20 W. Va. 7, 17. In R. I., the legislature elects, as in § 232, by majority vote. (R. I. Amt. 11.)
^ Cal. 11, 14; Pa. 3, 27.
* Ala. 46 ; Ark. 5, 3 ; Cal. 4, 4 ; Col. 5, 3 ; Del. 2, 2 ; Fla. 7, 2 ; Ind. 4, 3 lo. 3, 5 : Kan. 2, 29 ; Ky. 31 ; La. 24 Md. 3, 2; Minn. 4, 24; Miss. 34, 35 Mo. 4, 5; Mon. 5, 2; N. D. 27; Nev
PART II ] POLITICAL PROVISIONS 201
years.* In two, for one year.^ In one, for three years.^ Half the senators are, in many States, elected at each general election for them, the other half holding over.* And so, one-third are elected at each general election, the others holding over.^ In three States, a representative is elected for four years.'' But in most States, for two years. ^ In four States, for one year.^ In about half, the governor holds office for a term of two years.* In most others, for four years.'" In two, for one year." In one, for three years. '^
The other executive officers, generally, hold office for the same period as the governor in all the States. '^
§ 204. Special Qualifications for Senators and Representatives.^* The usual qualifications required by the state Constitutions for state senators and representatives fall into three classes : citizenship, age, and residence. Thus, in most States, no person can be state
4, 4; Okla. 5, 9; Ore. 4, 4; Pa. 2, 3 ; 3, 4; Tex. 4, 4; Vt. Amt. 24, 3; Wis.
5. C. 3, 6; Tex. 3, 3; Utah 6, 4; Va. 5, 1.
41; Wash. 2,6; W. Va. 6,3; Wis. 4, '" Ala. 116; Cal. 5, 2; Del. 3, 2; 5 & Amt. ; Wy. 3, 2. Fla. 4, 2 ; 111. 5, 1 ; Ind. 5, 1 ; Ky. 70 ;
1 Ct. Amt. 16, 2; Amt. 27; Ga. 3, La. 62; Md. 2, 1 ; Miss. 4, 2; Mo. 5,2;
4, 1 ; Ida. 3, 3 ; 111. 4, 2 ; Me. Amt. 23 ; Mon. 7,1; N. C. 3, 1 ; Nev. 5, 2 ; Okla. Mich. 4, 2; N. C. 2, 3; Neb. 3, 4; N. 6, 4; Ore. 5, 1; Pa. 4, 3 ; Territories, H. 2, 24; N. Y. 3, 2; O. 2, 2; S. D. U. S. R. S. 1841; Utah 7, 1; Va. 69; 3, 6; Tenn. 2, 3; Territories, U. S. R. Wash. 3, 2; W. Va. 7, 1; Wy. 4, 1.
5, 1846; Vt. Amt. 24, 4. " Mass. 2, 2, I, 2; R. I.
2 Mass. Amt. 22 ; R. I. 8, I. '^ N. J. 5, 3.
^ N. J. 4, 2, 1. " In New Jersey, the treasurer and
* Ark. ; Cal. 4, 5 ; Col. 5, 5 ; Fla. ; comptroller hold office for three years, Ind. ; lo. 3, 6 ; Ky. ; Md. 3, 7-8 ; Minn. ; and the attorney-general and secretary Mo. 4, 10 ; Mon. ; N. D. ; Okla. Ore. ; of state for five (N. J. 7, 2, 3, & 4). Tex.; Utah; 1, 4; Wash.; W. Va. ; The term of the auditor-general is three Wis. ; Wy. years, and of the treasurer two (Pa.
« N. J. 4, 2, 2. 4, 21). In Ohio, the auditor holds office
' Ala. ; La. ; Miss. for four years. In Indiana, they all
" Ark. 5, 2 ; Cal. 4, 3 ; Col. 5, 3 ; hold office two years, except the lieu-
Ct. Amt. 27, 1 ; Del. 2,2 ; Fla. ; Ga. ; tenant-governor. In Minnesota, the
Ida. ; 111. ; Ind. ; lo. 3, 3 ; Kan. ; Ky. auditor holds office four years (Minn.
31; Md. 3, 6; Me.; Mich. 4, 3; Minn.; 5,5; Amt. 1883, C. 1). In Maryland,
Mo. 4, 2 ; Mon. ; N. C. 2, 5 ; N. D. the attorney-general and the superin-
33 ; Neb. ; Nev. 4, 3 ; N. H. 2, 9 ; O. ; tendent of labor, etc., hold office four
Okla.; Ore.; Pa.; S. C. 3, 2 ; S. D. ; years (Md. 5, 1). In several, the
Tenn. ; Territories* ; Tex. 3, 4 ; Utah treasurer holds office two years (Del.
6, 3; Va. 5, 2; Vt.; Wash. 2, 5; W. 3, 21; 111. 5, 2; Ky. 3, 25). And the Va. ; Wis. 4, 4. auditor (Del.). In Tennessee, the sec-
* Mass. 2, 1,3, 1 ; N. J. 4, 3, I ; retary of state holds office four years N. Y. 3, 2 ; R. I. and the attorney-general, eight. In
® Ark. 6, 1 ; Col. 4, I ; Ct. ; Ga. 5, Nevada, the superintendent of instruc- 1, 2; Ida.; lo. 4, 2; Kan. 1, I; Me.; tion holds office two years (Nev. 11, Mich. 5, 1 ; Minn. 5, 3 ; N. D. 71 ; 1). For citations of other States, see Neb. 5, 1; N. H. 2, 41; N. Y. 4, 1; above and § 202. See also § 212. O. 3, 2 ; S. C. 4, 2 ; S. D. 4, 1 ; Tenn. ^* For religious quahfications, see
§§ 46, 47.
202 THE STATE CONSTITUTIONS [BOOK III
senator or representative who is not a citizen of the United States * or in some cases a qualified elector of the State, which would seem to mean much the same tliiii<^. Maine alone prescribes that he must have been a citizen of the United States for five years. ^
The residence qualifications vary considerably and are usually greater in the case of a senator than in a representative; thus, no person is eligible for state senator who has not been one year,^ two years,* three years,'' four years," five years,'' six years,^ or seven years ' resident in the State. In a few States the term used is "citizen " in- stead of "resident." ^^ In others "a qualified elector." "
For representatives, the period of residence is one year,^^ two years," tliree years, ^* four years, ^^ and five years; '" and in sev- eral States he must in like manner be a qualified elector,'^ or a citizen. ^^
There is frequently required by the Constitution a term of residence within the senatorial or representative district which is usually also greater in the case of senators than in that of representatives. Thus, in many, a candidate must be resident in the senatorial^'* or represent- ative "" district at the time of the election ; and if he cease to reside in such district he vacates his office."^ The time of residence required in the district varies in the case of senators, from sixty days,^ three
lArk. 5, 4; Col. 5, 4; Ga. 3, 5, 1 ; ^^ ^rk. ; Ga. ; Ind. ; Ky. 32; Mo.;
Ida. 3, 6; III. 4,3; Ind. 4, 7; lo. 3, 5; N. H. 2, 13; N. J. 4, 1, 2; N. D. 34;
Mich. 4, 5 ; Mo. 4, 6 ; Mon. 5, 3 ; Ore. S. D. ; Tex. ; Vt. 2, 18.
4, 8; S. C. 3, 7; S. D. 3, 3 ; Tenn. 2, '* Ala. 47; Cal. 4, 4; Del. 2, 2; 10; Tex. 3, 6; Utah 5, 1; Wash. 2, 7; Md. 3, 9; Tenn.; Utah.
Wy. 3, 2. '' Miss. 41 ; Pa. 2, 5.
2 Me. 4, 2, 6. '« 111. ; La. 24.
* lo. 3, 5; Me. 4, 1, 4; 4, 2, 6; " Ida.; La.; Md. ; Minn.; Miss. Minn. 4, 25 ; Wis. 4, 6. 41 ; Mo. ; N. C. 2, 8 ; Neb. 3, 5 ; N. J. ;
* Ark.; Ind.; N. C. 2, 7; N. D. 28; S. C; Territories; Tex.
5. D. '« Ky. ; Wy.
= Ala. 47 ; Del. 2,3; Cal. 4, 4 ; Md. '» Ct. 3, 3 ; Kan. 2, 4 ; Mass. ; Me. ;
3, 9 ; Mo. ; Tenn. ; Utah. Mich. ; Miss. ; Neb. ; N. H. ; Okla.
« Ga.; Miss. 42; N. J. 4, 1, 2; Pa. 5, 17; Territories, U. S. R. S. 1846;
2, 5. Va. 5, 5.
^ 111.; La. 24; Mass. 2, 1, 2, 5; ^^ Ct. Amt. 3; Kan. 2, 4; Mass.
Amt. 22 ; Tex. ; W. Va. 4, 4. Mich. 4, 5 ; Miss. ; Neb. ; N. H.
8 Ky. Territories; Va. 44; Vt. Amt. 23
« N. H. 2, 28. Wis.
" Cal., Del., Ky., Md., N. C, N. J., ^i ^i^. ; Fla. 3, 8; Ga. 3, 4, 8; La.;
Pa., W. Va., Wy. Mass.; Me.; Mich.; Miss.; Mo. 4, 13;
'' Ida.; Md.; Minn.; Miss.; Mo.; Neb.; Okla.; Pa.; Tex. 3, 23; Va. ;
N. D.; Neb. 3, 5; N. J. ; Tex.; Ter- W. Va. 6, 12.
ritories, U. S. R. S. 1846; W. Va. ^^ lo. In England at one time mem-
'^ lo. ; Me. ; Minn. 4, 25 ; S. C ; bers of Parliament had to be resident
Wis. 4, 6. in the district.
PAUT II] POLITICAL PROVISIONS 203
months/ six months,^ one year,^ to two years.* In some States, instead of resident he must be a qualified elector,^ in the district.
In the case of representatives, he must, in like manner, be resident in the district at the time of the election,*' and upon ceasing to be such resident he loses his office.^ The time of residence required varies from sixty days,** three months,^ six months,^*' one year,'' to two years. '^
Many state Constitutions have also age qualifications for senators or representatives, varying from twenty-one '^ in the case of senators to twenty-five,''* twenty-six,'^ twenty-seven,'^ or thirty.'^ For repre- sentatives, the age varies from twenty-one,'^ to twenty-four,'® or twenty-five.^" In Missouri, either senator or representative must have paid a state or county tax within one year before election.
There are certain other miscellaneous special qualifications. (See also Art. 22 and § 304.) Thus, in Massachusetts, the Constitution forbids any property qualification for the Legislature or Council.'' In Nebraska, no person interested in a contract with, or an unadjusted claim against, the State, can hold a seat in the Legislature.-" In Dela- ware, no person concerned in an army or navy contract; and no person who has served as state treasurer is eligible for the Legislature before his accounts as treasurer are settled and discharged.-^ In West Virginia, no salaried officer of a railroad.-^ No person convicted of embezzlement or misuse of the public funds. ^^ No person who has
1 Me., S. C. Amt. 21; Md.; Mo.; Mon. ; N C;
^ Minn. Neb.; N. J.; O. 2, 3; Ore.; Pa.;
3 Ala.; Ark.; Cal. ; Col.; Del. ; Tenn. 2, 9; Tex.; Utah; Vt.; W. Va.
Ga.; Ida.; Ind. ; Ky. ; Md. ; Mo. 4, 6, 12 ; Wy.
6; Mon.; N. C. ; Neb.; N. J. ; 0.2, '^ jlL, La., Miss.
3 ; Ore. ; Pa. ; Tenn. ; Tex. ; Utah ; " Ore.
W. Va. ; Wy. " Ala. ; Ark. ; Col. ; Ga. ; 111. ; Ind. ;
* 111., La., Miss. lo. 3, 5 ; La. ; Md. ; Me. 4, 2, 6 ; Miss. ; « Fla. 3, 4 ; Kan. ; Mich. ; N. D. ; Mon. ; N. C. ; N. D. ; Okla. ; Pa. ; S.
Nev. 4, 5 ; Okla. ; S. C. 3, 7 ; S. D. ; C. ; S. D. (24) ; Utah ; W. Va. ; Wy.
Utah ; Va. ; Wash. ; Wis. '« Tex.
« Ct. 3, 3 ; Kan. 2, 4 ; Mass. ; Me. ; " Del.
Mich.; Miss.; Neb.; N. H. ; Okla. " Ky., Mo., N. H., N. J., Tenn., Vt.
5, 17; Territories, U. S. R. S. 1846; '^ Ala., Ark., Ga., 111., Ind., lo., Md.,
Va. 5, 5. Me., Miss., Mon., N. D., N. J., Okla.,
' Ala. ; Fla. 3, 8; Ga. 3, 4, 8; La.; Ore., Pa., S. C, Tenn., Tex., Wy.
Mass. Amt. 21 ; Me. ; Mich. ; Miss. ; Mo. '^ Del., Ky., Mo.
4, 13; Neb.; N. H. ; Okla.; Pa.; Tex. ^o c^i^ q^^ g jy ^ utah.
3, 23 ; Va. ; W. Va. ^' Mass. Amt. 13.
* lo. 22 Ngb 3^ g Compare § 154. « Me. 23 Del 2, 24.
'" Minn. =4 -^V. Va. 6, 13. See § 204, note 14.
" Ala. ; Ark. ; Cal. 4, 4 ; Col. ; ^5 q^. 3, 4, 7 ; Kan. 2, 6. See also Del. ; Ga. ; Ida. ; Ind. ; Ky. ; Mass. § 222.
204 THK STATE CONSTITUTIONS [BOOK III
been convicted of bribery, perjury, or otlier infamous crime,* or expelled for corruption.- And also, no person who has collected or been intrusted with public money, and has not accounted for the same.^
Many qualifications similar to these are, of course, contained in the general provision for disqualification for office.*
§ 205. Special Qualifications for Governor.^ Similar qualifications for the governor are prescribed in many state Constitutions; thus, he must be a citizen of the United States." And he must, in some States, have been such citizen for a certain period of time ; thus, two years,'' five years,* ten years,® twelve years, *° fifteen years, '* or twenty years.*^ In Maine, he must be a natural-born citizen of the United States.*^ In others, he must have been resident of the State a certain period of time ; thus, one year," two years,*^ three years,'" four years," five years,** six years,*® seven years,-" and ten years.-* And in Maine and the terri- tories, he must continue to reside in the State or territory during his term of office. ^^ In a few States, instead of "citizen," the words "qualified elector" are used.^^ The age limitations for the governor vary from twenty-one in States where there is no prescription, to twenty-five in a few,^* thirty in most,^^ and thirty-five in two.-"
In a few States the governor is not eligible for re-election for any two successive terms (unless the office devolved upon him) ; " and so in Delaware, he is not eligible for a third time for the office.-* In
> N. D. 38; S. D. 3, 4; Okla. 5, IS. " Ore., Va.
2 Okla. 5, 19. " Vt. 2, 30.
3 Ky. 45; W. Va. 6, 14. i* Cal. ; Fla. ; III; Ind.; Md. 2, 5; * See § 223. Me.; Miss.; N. Y. ; S. C. ; Tex.; « See also § 221. Utah; Va. 71 ; W. Va. 4, 4; Wy.
» Ark. 6, 5 ; Col. 4, 4 ; Del. 3,6; '» Del. ; Ga ; Ky. 72. Ida. 4, 3 ; Minn. 5, 3 ; Mon. 7,3; N. D. '" Ala. ; Ark. ; Mass. 2, 2,1,2; Mo. ;
73; N. Y. 4, 2; Okla. 6, 3; Ore. 5, N. H. 2, 41; N. J.; Pa. 4, 5; Tenn. 2; Pa. 4, 5; S. D. 4, 2; Tenn. 3, 3; ^i l^., Md. Tex. 4, 4; Va. 71; Wis. 5, 2; Wy. 22 ^^^ u g j^ g i841.
4, 2. 23 Ark. ; Ct. 4, 1 ; Fla. ; Md. ; N. D. ; ' lo. 4, 6 ; Neb. 5, 2. Nev. ; S. D. ; Utah ; 7, 3 ; Wis. ; Wy. « Cal. 5, 3; 111. 5, 5; Ind. 5, 7; =* Cal., Minn., Nev.
Mich. 5, 2 ; N. C. 3, 2 ; S. C. 4, 3. ^s ^la. Ark., Col., Ct., Del., Ga., Ida.,
« Ala. 117; Fla. 4, 3; La. 63; Mo. 111., Ind., lo., La., Md., Me., Mich.,
5, 5 ; Va. (if of foreign birth). Miss., Mon., N. C, N. D., Neb., N. H., 1" Del. N. J., N. Y., Okla., Ore., Pa., S. C, " Ga. 5, 1, 7. S. D., Tenn., Tex., Utah, Va., W. Va., 12 Miss. 117; N. J. 5, 4. Wy.
»* Me. 5, 1, 4. 28 i^y j^o
" Minn. " Fla. 4, 2; Ky. 71; La.; Miss.
•»Col. ; Ida.; lo. ; Mich.; Miss.; 116; Mo. 5, 2; N. C. ; N. J. 5, 3 ; Okla.
Mon.; N. C; Neb,; Nev. 5, 3; Okla.; 6, 3; Pa. 4, 3; Va. 69; W. Va. 7, 4. S. C; S. D. 28 Del 3^ 5^
PART II] POLITICAL PROVISIONS 205
Tennessee, not more than six years in any term of eight.' In Indiana, not more than four years in any term of eight." In Oregon, not more than eight years in any period of twelve.^ In Georgia he is not ehgible for four years after a second term.*
Other executive offices must generally have the same qualifica- tions as the governor and this is frequently specified as to the lieutenant-governor,^
Several States provide against long periods of service by the trea- surer or auditor; thus, the treasurer is not eligible for any two suc- cessive terms,* or for more than five successive years,^ or until two years after the end of two successive terras ; * so the auditor is only eligible for two successive terms ; ^ and in Oregon, the treasurer and secretary are not eligible for more than eight years in any period of twelve. '" There are certain other qualifications for the less important executive offices in several States which it has not seemed worth while to set forth in detail."
§ 206. Paij of the State Legislature. Many state Constitutions provide that members of the Legislature shall receive a fixed compensa- tion '' which generally may not be increased or diminished during the term for which they are elected. ^^ In a few States it cannot be altered at all by the Legislature, the salaries being fixed by the Constitution.'*
Similar principles apply to the pay of all executive officers in several
States.'^
^ Tenn. 3, 4. 3, 23 ; 111. 4, 21 ; Ind. 4, 29 ; lo. 3, 25 ;
^ Ind. 5, 1. Kan. 2, 3 ; Ky. 42 ; La. 29 ; Md. 3, 15 ;
3 Ore. 5, 1. Me. 4, 3, 7; Mich. 4, 15; Minn. 4, 7;
* Ga. 5, 1, 2. Miss. 46; Mo. 4, 16; Mon. 5, 5; N. C.
8 Ala. ; Cal. 5, 15 ; Col. 4, 4 ; Ct. 2, 28 ; N. D. 45 ; Neb. 3, 4 ; Nev. 4,
4, 3; Del. 3, 19; 111. 5, 5; Ind. 5, 7; 33; N. H. 2, 14; N. J. 4, 4, 7; N. Y. lo. 4, 6; Ky. 82; Mass. 2, 2, 2, 1; 3, 6; O. 2, 31; Okla. 5, 21; Ore. 4, Mich. 5, 2; Minn. 5, 3; Miss. 5, 14; 29; Pa. 2, 8; R. I. 4, 11 ; Amt. 11 Mo. 5, 15 ; N. C. 3, 2 ; Neb. 5, 2 ; Nev. (1900, p. 146) ; S. C. 3, 19; S. D. 3, 6
5, 17; N. Y. 4, 2; Okla. 6, 3 & 15; Tenn. 2, 23; Terr. U. S. R. S. 1853 Pa. 4, 5 ; S. C. 4, 5 ; Vt. 2, 30 ; Wis. 1878, 329 ; Tex. 3, 24 ; Utah 6, 9 5, 2. Va. 45 ; Wash. 2, 23 ; W. Va. 6, 33
« Ky. 93; La. 80; Mon. 7, 1; Mo. Wis. 4, 21; Wy. 3, 6.
5, 2; Utah; N. D. 82; S. D. 4, 12; '^ Ark.; Cal.; Col.; Ct. 4, 4; Ind.
Miss.; Wash. 3, 25; Wy. 4, 11. lo. ; Ky. 74; Me.; Minn.; Miss.
^Col. 4, 21; Mass. 2, 2, 4, 1 ; Me. Mon. 5, 5 & 8; Nev.; O. ; Pa.
5, 4, 1 ; Pa. 4, 21. S. C. ; Utah; Va. 72; Wy. 3, 9.
« 111. 5, 2; Neb. 5, 3. »* Mo., Tex.
» Col., Pa. " Ala. 118; Ark. 19, 11 ; Cal. 5, 19
'0 Ore. 6, 1. Col.; Ida. 4, 19; 111. 5, 23; Kan.
>' Ky. 93; Mon. 7, 3. Ky. 235; N. C. 3, 15; N. H. 2, 17; N
'2 Ala. 49; Ariz.* 1139; Ark. 5, D. 84; N. Y. ; O. 2, 19; S. D. 21,2
16; Cal. 4, 23; Col. 5, 6; Ct. Amt. 27; Utah; Wash. 3, 14; Wy. 4, 13. Del. 2, 15 ; Fla. 3, 4 ; Ga. 3, 9, 1 ; Ida.
206 Till': STATi; constitutions [book hi
When tlie pay of tlio Lrj^islatun' is fixed l)y the Constitution, or the term for whieli they are j)ai(l limited (see § 277), the provision be- comes more important, as in a certain measure determining the lengtli of legishitive sessions. Tlius, in New Hampshire, in the case of a special session, legislators receive three dollars a day, but for a period not exceeding fifteen days, and the total pay for any regular session is two hundred dollars with mileage. See also § 277. Mileage is given in most States.
This pay would doubtless be understood to be all that a member of a state Legislature could receive in any manner, direct or indirect, for performing the duties of his office without being liable for bribery or malfeasance, and the Constitution of INIississippi expressly provides that no member can take a fee or act as counsel before either House.'
Article 21. Of Offices ix General
§ 210. Appointment. (For the important executive officers and the members of the Legislature, see Art. 20; for the judicial officers, see Art. 65.)
Generally speaking, it may be stated that all State officers except such important executive officers or judges as are elected by the people of the State or the several districts are appointed by the gov- ernor,- in Massachusetts, INIaine, and New Hampshire, with the consent of the Council,^ and very generally this appointment must be confirmed by the Senate.^ Other officers are to be appointed or elected as the Legislature may provide.^ INIost State Constitutions provide with considerable detail what officers shall be elected by the people of the several counties, towns, or districts, usually solicitors or district attorneys, sheriffs, registers of deeds and probate, county treasurers, and so on. It has not seemed worth while to go into this matter in more detail.
§ 211. Vacancies in any office whatever (except members of the
1 Miss. 47. * Col., Del., Ida., Ill, La., Md.,
2 Col. 4, 6; Del. 3, 9; Ida. 4, 6; 111. Minn., N. C, Neb., N. J., Pa., Territo- 5, 10 ; La. 71 ; Md. 2, 10 ; Minn. 5, 4 ; ries, Utah, W. Va.
Mo. 5, 23; Mon. 7, 7; N. C. 3, 10; * Cal. 20, 4; Fla. 3, 27; Ind. 15, 1;
Neb. 5, 10; N. J. 7, 2, 9 ; Pa. 4, 8; Kan. 2, 19 & 15, 1; Ky. 93; Mo. 14,9;
Territories, U. S. R. S. 1857; Utah 7, Neb. 5, 1; Amt. 1883, Nev. 15, 10;
10 ; Vt. 2, 11 ; W. Va. 7, 8. N. H. 2, 5 ; O. 2, 27 ; Ore. 6, 7 ; Pa. 12,
3 Mass. 2, 2, 1, 9; 2, 1, 1, 4; Me. 5, 1 ; Tenn. 7, 4; Territories; W. Va. 4, 1, 8; N. H. 2, 45. 8; Wis. 13, 9; Wy. 6, 12 (6).
PART II ] POLITICAL PROVISIONS 207
Legislature and the governor or lieutenant-governor or other high executive offices) are usually filled by the governor with the consent of the council, when there is one, or in some States of the Senate, but in other States the whole matter of filling vacancies is left to the Legislature. ^Yhere nothing is said, all offices would presumably be filled in the same manner as the original appointment (see § 210). So, vacancies in elective offices are filled at the next regular election.
§ 212. Tenure. A few States have the general provision that no office can be granted for a longer term than during good behavior,^ while in three States no person shall be elected or appointed to office for life or during good behavior, but the terms of all offices shall be for some specified period (except notaries and in the militia).- In several States no office can be created by the Legislature for a longer term than four years,^ or in Texas, two years.*
It is usually provided that all officers (except in case of impeach- ment or suspension) shall continue to discharge their duties until their successors are duly appointed and qualified ; ^ and in some States this provision is expressly made of the governor or other exec- utive officers.'^ No law can be passed which shall operate to extend the term of any public officer after his election or appointment.^
Rotation in office is still, by the Constitutions of Massachusetts, Maryland, and Virginia, declared to be a necessary principle in a free government.^
§ 213. Pay. The State Constitutions frequently provide that all officers are to receive a compensation fixed by law, reasonable in amount, and paid at stated periods.^ In some, a limit of salaries is fixed by the Constitution.**' In Vermont all offices of profit are for-
1 Ala. 1, 29 ; Del. 1, 19 ; Me. 1, 23 ; Miss. 5, 22 ; Mo. 5, 2 ; Mon. 7, 1 ; N. C. Pa. 1, 24. 3, 1 ; N. D. ; Nev. 5, 2 ; 5, 19 ; N. J. 7,
2 Ky. 23; Miss. 20; S. C. 1, 11. 2,3; Pa. 4, 17; R. I. 8, 1 ; S. C. 4, 2 ;
3 Cal. 20, 16 ; Fla. 16, 7 ; Ind. 15, 2 ; S. D. 5, 36 ; Tenn. 3, 4 ; Tex. 4, 4 ; 4, Kan. 15, 2; Miss. 252; Nev. 15, 11; 22; 4, 23; Vt. Amt. 21; Wash. 3, 2; Ore. 15, 2. Wy. 4, 1.
* Tex. 16, 30. ' Col. 5, 30; Del. 15, 4; 111. 4, 28;
* Ark. 19, 5; Col. 12, 1; Del. 15, 5; Mo. 14, 8; Mon. 5, 31; Okla. ; Pa. 3, Fla. 16, 14; Ind. 15,3; La. 172; Miss. 13; W. Va. 6, 37; Wy. 3, 32.
136; Mo. 14, 5; O. Sched. 10; Okla. » Mass. 1, 8; Md. 1, 34; Va. 1, 5. 23, 10; Ore. 15, 1; R. I. 4, 16; Tenn. » Ala. 118; Ark. 16, 4; Ky. 96;
7, 5 ; Tex. 16, 17 ; Va. 33 ; W. Va. 4, La. 81 ; Miss. 103 ; Mo. 5, 24 ; Okla.
6; Wy. 6, 12. 6, 34; Ore. 13, 1; N. Y. 10, 9; Tex.
* Ark. 6, 1 ; Ct. 4, 1 ; Ga. 3, 4, 1 ; 3, 44 ; Va. 83.
5,1,2; 111.5,1; lo. 3, 3; 4,2; 5,12; "Ark. 19, 23; Ky. 246 ($5000); Kan. 1,1; Ky. 73 ; La. 64 ; Mass. Amt. La. ; Md. 15, 1 ; Mich. 9, 1 ; Amt. 1893, 17 ; Md. 2, 1 ; 5, 1 ; Minn. 5, 3 ; 5, 5 ; p. 433 ; S. D. 21, 2.
208 THE STATE CONSTITUTIONS [bOOK III
l>iddcii, hut fees or a reasoniihle compensation may be allowed.' In two States all fees and perquisites are forbidden,- and the Legisla- ture may not increase the expenses of any office by appointing assistant officers.^
§ 214. Extra Pay. ^ ery generally this compensation may not be increased or diminished during the term of office ; and the Legis- lature can grant no extra compensation after the service is ended or after the contract is entered into.* Nor can it authorize municipal corporations to grant such compensation.^ In two States, salaries of deceased officers may not be paid beyond the date of death," and it would seem that this must be the law in others.^
§ 215. Farming Offices. By the Constitutions of three States, no person elected or appointed to any oflBce under the laws of the State or any municipal ordinance shall hold such office without personally devoting his time to the performance of its duties.^
§ 216. Gerrymandering. The Constitutions of California and Idaho provide that when a congressional district shall be composed of two or more counties, it shall not be separated by any county be- longing to another district; nor can a county or city be divided to form congressional districts, except when rendered necessary by excess of population.^ In four, the congressional districts shall be formed of contiguous counties, &c., and be "compact."^"
There are in nearly all States provisions of the same nature as to districts electing members of the State Legislature, and in Oklahoma an apportionment made by the Legislature is reviewable by the Supreme Court at suit of any citizen."
§ 217. Election of United States Officers. The Constitutions of several States provide that senators shall be elected by the two houses of the Legislature in joint convention, at such time and in such man-
1 Vt. 2, 25. 12, 3 ; Utah 6, 30 ; Tex. 3, 44 ; W. Va.
=^ La. 180; Okla. 6, 38; Wash. 2, 25; Wis. 4, 26; Wy.
« La. 54. 3, 30; 3, 32; 4, 13.
* Ala. 68, 98, 118, 281 ; Ark. 5, 27 ; « Ala. ; Cal. ; Ct. ; La. ; Mo. ; N. Y. ;
Cal. 4, 32 ; Col. 5, 28 & 30 ; Ct. Amt. Tex. 3, 53.
24; Del. 15, 4; Fla. 16, 11; Ga. 7, 16, » Ala. 97; S. C. 3, 32.
2 ; Ida. 5, 27 ; 111. 4, 19 ; lo. 3, 31 ; Ky. ^ Compare also § 395.
235; La. 47; Md. 3, 35; Mich. 4, 21 ; » Col. 12, 2; Mo. 2, 18; Miss. 267;
Miss. 96; Mo. 4, 48; 5, 24; 14, 8; Okla. 2, 11.
Mon. 5, 29 & 31; 7, 4; Neb. 3, 16; » Cal. 4, 27; Ida. 3, 5.
Nev. 4, 28; 15, 9; N. Y. 6, 12; 3, 28; "> Mon. 6, 3; Va. 55; W. Va. 4, 6;
10, 9 ; O. 2, 20 & 29 ; Okla. 5, 47 ; 23, Wy. 3, 46.
10; Pa. 3, 11 & 13; S. C. 3, 30; S. D. " Okla. 5, 10 (j).
PART II] POLITICAL PROVISIONS 209
ner as may be by law provided.' In Nebraska the Legislature may provide that at the general election next preceding the expiration of tiie term of a United States senator, the electors may by ballot express their preference for some person for such office." In Oklahoma ^ the Legislature shall provide for their election by direct vote of the peo- ple "at any time the Federal Constitution may permit." By the Constitution of Florida, no person can receive credentials as a mem- ber of Congress who has not been five years a citizen of the State and ten years a citizen of the United States and is not a qualified voter.*
In Colorado, one representative in Congress is elected for the State at large.^ Presidential electors must, in Colorado, be elected by the people; and it was so prescribed in the old Constitution of South Carolina, but seems to be omitted from the present one. There is, of course, nothing in the Federal Constitution (Art. 2, 1) to prevent a State from appointing the electors in such manner as the Legislature direct, or by direct choice of the Legislature itself, if the State Constitution were so to provide. Michigan and other States in fact elect them by districts.
Territorial delegates are elected by the people, one from each territory.^
§ 218. Corruption. State officers may not be interested in con- tracts awarded by their department.^
Article 22. Qualifications for Office
§ 220. Plurality of Offices. Nearly all the States have provisions that no person can hold at the same time a State office and a national office of trust or profit, or at the same time two State offices of trust or profit, and this applies as well to seats in the Legislature as to other offices. The only exception is commonly that of justices of the peace and officers in the militia. Generally the holding of such other office, State or national, or under any foreign government, would make the person ineligible for a State office; and if already holding a seat in the Legislature or other State office, his acceptance of such
» Fla. 3, 31; Minn. 4, 26; Nev. 4, * Fla. 16, 20.
34; R. I. 4, 18. = Col. 5, 44.
2 Neb. Sep. Prop. » U. S. R. S. 1862.
» Okla. 3, 4. ' Del. 15, 8. See also § 304.
14
210 THE STATE CONSTITUTIONS [BOOK III
otlier office, State or national, would vacate his seat or amount to a resignation. The State Constitutions provide for this subject with endless and, it seems, unnecessary detail.
§ 221. Age and Citizenship. There is not usually much pro- vision about age and citizenship qualifications for ordinary offices; but in many States no one who does not possess the (pialifications of an elector is eligible for office.' A few States make residence in the State for one year a necessary qualification for any office; - and in a few others he must continue to reside within the State or forfeit his office.' (For judges, see Art. Go.)
A few State Constitutions specially provide that there shall be no property qualification for holding office ; " and in New Hampshire and South Carolina, every inhabitant of the State having the proper qualification has equal right to be elected into office,^ but in New Hampshire he must be able to read the State Constitution in English, and to write.
§ 222. Disqualifications. The State Constitutions very frequently provide that no person convicted of crime can hold office, and more particularly any person convicted of bribery, election frauds, defal- cation of public money, or duelling, the attention of State Legisla- tures having of late years been especially called to the advisability of such disqualifications. Thus, many States provide generally that no person convicted of felony or infamous crime can hold office,® or, in Kentucky, " high misdemeanors." The special crimes thus disquali- fying are defalcation or embezzlement of public ^ money, ^ or the case where any person remains liable for public moneys unaccounted for, whether actually convicted of defalcation or not.** Bribery is gener- ally a disqualification for holding office, both of the party giving
1 Ark. 19, 3; Col. 7, 6; Ct. 6, 4; Del. 2, 21; Fla. 6, 5; Ga. 2, 21 ; Ida. La. 210; Minn. 7, 7; Miss. 250; Mon. 6, 3; 111.4, 4; Ky. 150; La. 202; 9, 7 & 11; N. H. 1, 14; Nev. 15, 3; Minn. 4, 15; Miss. 44; N. C. 6, 5; N. C. 6, 7; Amt. 1900; O. 15, 4; S. C. N. D. 2, 38; Neb. 14, 2; O. 5, 4; Pa. 2, 2; 17, 1; Wash. 3, 25; Va. 32; 2,7; Tex. 16. 2; Wis. 13,3.
W. Va. 4, 4 ; Wy. 6, 12 (3). ' Ky. 45 (for the legislature only).
2 111., Mo., Mon. « Ala.; Ark. 5, 9; Cal. 4, 21; Col.
3 Ark. 19, 4; Del. 3, 11; Ky. 234; 12, 4; Del. 2, 21; Fla.; Ga. ; Ida.; 235 ; La. ; R. I. 9, 1 ; Tex. 16, 14. La. 182 ; Nev. 4, 10 ; Pa. ; O. ?, 5 ;
* Cal. 1, 24; Del. 7, 12; Ida. 1, 20; S. C. 10, 12; Wis. 13, 3. Kan. Bill of Rts. 7 ; Minn. 1, 17 ; N. C. « Ark. 5, 8 ; Col. 12, 3 ; Ga. 2,4,1;
1,22; Utah 1, 4. 111.4,4; Ind. 2, 10; lo. 3,23; Ky. 45;
« N. H. 1, 11; S. C. 1, 10. See La. 182; Md. 3, 12 ; Mich. 4, 30; Miss,
also § 246. 43 ; Mo. 2, 19 ; Neb. 16, 2 ; O. ; Ore.
" Ala. 60; Ark. 5, 9; Cal. 20, 11; 2, 11; Tenn. 2, 25; Tex. 3, 20.
PART II] POLITICAL PROVISIONS 211
and the party receiving the bribe.' So specially in a few States brib- ery at elections,- but in some only as to the person offering the bribe. The giving or offering a bribe to procure the election or appointment of the guilty party disqualifies him for that term of office in many States,^ and in a few permanently.'' So, in some States specially the bribery of members of the Legislature/ or "treating." ®
In Kentucky, corporations bribing or offering bribes forfeit their charters, or foreign corporations their license.'
A few States have the general provision that malfeasance in office shall be a disqualification,** but it would seem difficult to determine this without process of impeachment, to which the guilty party is nearly always liable. And so, in a few States, corruption in office,^ malpractice,'" taking more fees than the law allows," or generally the violation of the oath of office. '-
Betting on elections was, by the old Constitution of Florida, cause for the disqualification for office, and now in South Carolina, gam- bling,'^ and in two States, fraud or wilful violation of the laws'* (whether a candidate for office or not).
Ordinary crimes are not made by the State Constitutions cause for general disqualification for office (see § 206 for disqualification for Legislature), but several State Constitutions so prescribe in case of perjury,'^ and a few in the case of larceny,'" forgery, ''^ and treason.'^ Idaho makes the practice of polygamy or professing IMormonism a cause for disqualification.'^
Duelling, however, is by the Constitutions of a great many States made cause for disqualification for office, for either fighting a duel
1 Ala. 60; Ark. 5, 9; Cal. 20, 11; « Tenn.
Col. 12, 4 ; Fla. ; Ga. 2, 2, 1 ; 111. 4, 4 ; ^ Ky. 150.
Ky. 151; La. 183; Md. 3, 50; Minn. « Cal, Ga.
4, 15; Miss. 44; O. 5, 4 ; Pa.; Tex. » N. C, Ga.
16, 2; Wash. 2, 30; W. Va. 6, 45. " N. C.
The same is implied in other States. " Vt. 2, 25.
See § 152. '' 111. 4, 5; Md. 1, 7; Mo. 4, 15;
■ Ark. 3, 6 (but there must be a N. H. ; Neb. 14, 1 ; Okla. 15, 2 ; S. D.
conviction of actual bribery) ; Ga. 2, 2, 3, 8; W. Va. 6, 16; Wy. 0, 12 (9).
1; Ida. La.; Md. 1, 3; Miss.; Mass, See § 223.
2, 6, 2; Nev. 4, 10; N. H. 2, 96; '^ S. C. 17, 8.
Tex. 16, 5. '* Ark. 3, 6 ; Pa. 8, 9.
^ Ind. 2, 6; Kan. 5, 6; Ky. 150; "> Ala.; Cal.; Col. 12, 4; Del.; Fla.;
Mass. ; N. H. ; Ore. 2,7; R. I. 9, 2 ; 111. ; Ky. ; Minn. ; N. C. ; O. ; Pa. ;
Tenn. 10, 3 ; Tex. 16, 5 ; Vt. 2, 34. Tex.
* Cal. 20, 10 ; Pa. 8, 9. '« Ga.
* W. Va. In one, only the member *' Ark., Cal., Tex. of the Legislature is so disqualified ** Ga., N. C. (Cal. 4, 35. See § 276.) " Ida. 6, 3.
212 THE STATE CONSTITUTIONS [BOOK III
as principal/ or absence from the State for that purpose,- or being a second,'' or tlie giving, carrying, or accepting a challenge,' or the being engaged in a duel in any State or country as either principal or accessory.^
The Constitutions of a few States prescribe that no insane person or idiot can hold oflice." The provision would seem to be unnecessary.
In two, no minister or preacher of any religious denomination can be a member of the Legislature.'
By the United States statutes, no soldier, seaman, or marine in the regular army or navy of the United States can hold a State office.*
The Louisiana Constitution disqualifies paupers or inmates of charitable institutions." The same is probably provided by the stat- utes of most other States.
Idaho has a general provision that the disqualifications for office are the same as for voting. ^^ There is an extraordinary provision in Utah. No officer, employee, attorney or agent of any corporation, company, or association doing business under, or by virtue of, any municipal charter or franchise, shall be eligible to or permitted to hold any municipal office in the municipality granting such charter or franchise."
§ 223. Oath of Office. Members of the Legislature and other State officers, executive, judicial, or otherwise, are usually required to make oath to support the national and State Constitutions and faithfully discharge the duties of their office. Citations on this point seem unnecessary ; but in three New England States they only make oath to bear allegiance to the State, and support the State Constitu- tion.'" In a few they must make oath that they have not, directly or indirectly, paid, or offered to pay, any consideration, or made any promise, as a reward for the giving or withholding a vote at an elec- tion ; '^ or for their own election or nomination ; '* that they will not
» Ark. 19, 2 ; Cal. 20, 2 ; Col. 12, 12 Ga. 2, 4, 2; Ind. 2, 7; lo. 1,5; Md. 3 41; Mich. 7, 8; Miss. 19; Mo. 14, 3 N. C. 14, 2 ; Nev. 15, 3 ; O. 15, 5 ; Ore 2, 9 ; Pa. 12, 3 ; S. C. 1, 11 ; Tenn. 9, 3 Tex. 16, 4 ; Wis. 13, 2 ; W. Va. 4, 10. « U. S. R. S. 1860.
2 Col. ; Ind. ; Kan. 5, 5 ; Md. ; " La. 202. Miss. ; Mo. ; N. C. ; Nev. ; Ore. ; Tex. '" Ida. 6, 3.
* Ark., Cal., Col, Md., Mo., N. C, " Utah 12, 17. Nev., O., Pa., Tex., W. Va. '- Mass. Ami. 6; N. H. 2, 83; Vt
' Cal., Ga., lo., Md., Mich., Nev., S. C, Tenn., Tex., W. Va., Wis.
« Ga. 2, 2, 1 ; Ida. 6, 4 ; La. 202. See § 251.
' Md. 3, 11; Tenn. 9, 1.
Ark.; Cal.; Col.; Ga. ; Ind. Kan.; Ky. 239; Md. ; Mo.; N. C. Nev. ; O. ; Ore. ; Pa. ; S. C. ; Tenn,
2, 12; 2, 29.
>» Del., 111., Mon., Neb., N. Y., Pa., S. D., Tex., Wy. See also § 154.
Tex.; W. Va. " Mon., Okla., S. D., Wy.
PART ll] POLITICAL PROVISIONS 213
accept, or directly or indirectly receive, any valuable consideration for the giving or withholding a vote,' or for the doing or not doing any duty relating to their office ; ^ that they have not been concerned in a duel as above specified ; ^ that they have not violated any election law ; * that they are not disqualified for holding office under the national or State Constitutions ; ■' that they will not receive the profits of any other office during their term as governor, member of the Leg- islature, or judge; ^ that they hold no office of profit or trust under Congress.^
Violation of the oath of office is in a few States declared to be per- jury.^ Any officer convicted of having sworn falsely to, or violated, his oath of office forfeits it." And he is always liable to impeach- ment.
§ 224. Official Bonds. The Legislature shall fix the amount of the penalty of all official bonds, and may, as far as practicable, pro- vide that the whole or a part of the security required for the faithful discharge of official duty shall be made by some guarantee company or companies.'"
§ 225. Political Tests. The Constitution of West Virginia de- clares political tests which require persons, as a prerequisite to the enjoyment of their civil and political rights, to purge themselves by their own oaths of past alleged offences, are repugnant to the princi- ples of a free government, cruel, and oppressive.'^
Article 23. Elections
§ 230. General Provisions. The Constitutions of many States declare that all elections should be free.^^ Of five, that they shall
* 111. ; Neb. ; Pa. ; Tenn. 10, 2 ; ment for having participated in the W. Va. 6, 16. Rebellion came to naught, partly by
2 Mo., Mon., Okla., Pa., S. D., Wy. voluntary repeal of the proscription,
^ Ky., Nev., S. C, Tex. but mainly because decisions of the
* Mon., Okla., Pa., Wy. United States Supreme Court rendered
* Fla., S. C. the enforcement of such laws by test
* Md. oaths impracticable.
' Vt. Amt. 1883. '- Ark. 3, 2; Col. 2, 5; Del. 1, 3;
« See § 222. 111. 2, 18 ; Ind. 2, 1 ; Ky. 6 ; Mass. 1, 9 ;
» 111. 4, 5; Md. 1, 7; Neb. 14, 1; Md. Decln. of Rts. 7; Mo. 2, 9; Mon.
Okla. ; S. D. ; Wy. 3, 5 ; N. C. 1, 10 ; Neb. 1, 22 ; N. H. 1,
•0 Miss. 82. 11; Okla. 3, 7; Ore. 2, 1 ; Pa. 1, 5;
'1 W. Va. 3, 11. The attempt of the S. C. 1, 10; S. D. 6, 19; Tenn. 1, 5;
United States Government to dis- Utah 1,17; Va. 1, 6; Vt. 1,8; 2,34;
quahfy persons from office or employ- Wash. 1, 19; Wy. 1, 27. A principle
214 THE STATE CONSTITUTIONS [bOOK III
be open,' or "not secret, nor the ballots counted in secret;" ^ that they shall be equal ^ and frequent/ So, in others, that no power, civil or military, shall ever interfere with the free exercise of the right of suffrage.*
§ 231. Votes- by Ballot. The Constitutions of many States pro- vide that all elections shall be by ballot." So, in most, all elections by the people.^ So, "until the Legislature otherwise direct." * And all elections by the Legislature, or by the people in a representative capacity, must be viva voce ° (see also § 30G).
The ballot box must be kept in public view.'" The counting must be public." But the secrecy of the ballot shall be maintained. '- Vot- ing machines may be used.'^ But ballots may be numbered.'''
§ 232. Majority Vote. By the Constitutions of nearly all, the person having the highest number (i. e., a plurality) of votes is de- clared elected.'* And so, a plurality of votes given at any elec-
dating from very early statutes in S. D. 3, 14; Tenn. ; Tex. 3, 41; Va. ;
England, and confirmed in the Bill of Wash. 2, 27; W. Va. 6, 44; Wis. 4, 30.
Rights. '" Va.
» Col., Mo., Mon., S. C, Wy. " La.
"' S. C. '= Cal., Ida., Ky., N. D., N. Y., Pa.,
» Ark., Del., 111., Ind., Ky., Mass., Utah, Va., Wash., Wy.
Ore., Pa., S. D., Tenn., Wash., Wy. » Col.; Cal.; Ct. ; Amt. 23; Utah;
* Md.; N. C. 1, 28. Va. 37.
«Ark.; Col.; Ida. 1, 19; Mo.; " Col.. R. D.: Texas 1S91. p. 104.
Mon.; Neb.; Okla. 2, 4; Pa.; S. C. '^ Ala. 115; Ariz.* 1373; Ark. 6, 3;
2, 15 ; S. D. ; Utah ; Wash. ; Wy. Cal. 5, 4 ; Col. 4, 3 ; Ct. Amt. 3 ;
* Cal. 1895, p. 407; Del. 5, 1; 111. D. C* 99-100; Del. 3, 3; Ida. 4, 2; 7, 2; lo. 2, 6; Md. 1, 1; Mich. 7, 2; 111. 5, 4; Ind. 5, 5; lo. 4, 4 ; Kan. 1, Minn. 7, 6; Neb. 7, 6; N. Y. 2, 5; O. 2; Ky. 70; La. 62; Mass. Amt. 14; 5,2; Pa. 1901, p. 882; Utah 4,8; W. Md. 2, 3; 15, 4; Me. 4, 1, 5; 4, 2, Va. 4, 2 ; Wis. 3, 3. 5 ; 5, 1, 3 ; Amts. Art. 24 ; Mich. 5, 3 ;
^ Ala. 179; Ariz. * 1358; Ark. 3, 3; Mo. 5, 3; Mon. 7, 2; N. C. 3, 3;
Cal. 2, 5; Col. 7,8; 1905, p. 84; Ct. N. D. 74; Neb. 5, 4; Nev. 5, 4; N. J.
6, 7 ; Amt. 6 ; Fla. 6, 6 ; Ga. 2, 1, 1 ; 5, 2 ; N. M.* 63, 28 ; N. Y. 4, 3 ; 1898,
Ida. 6, 1; Ind. 2, 13; Kan. 4, 1; Ky. p. 1550; O. 3, 3; Ore. 5, 5; Pa. 4, 2;
147; La. 203; Mass. 2, 1, 3, 3; Me. R. I. Amt. 10; S. C. 4, 4; S. D. 4, 3;
2, 1 ; Miss. 240 ; Mo. 8, 3 ; Mon. 9, 1 ; Tenn. 3, 2 ; Territories, U. S. R. S.
N. C. 6, 6; N. D. 129; Nev.2, 5; N. H. 1847; Tex. 4, 3; Utah 7, 2; Va. 70;
2, 14 & 42; N. M.* 63, 22; Okla. Vt. Amt. 5; Wash. 3, 4; W. Va. 7, 3 ;
3, 6; Pa. 8, 4; R. I. 8, 2; S. C. 2, 1; Wis. 5, 3; Wy. 4, 3. In some States S. D. 7, 3 ; Tenn. 4, 4 ; Tex. 6, 4 ; Va. the above rule applies only to elections 27 ; Vt. 2, 8 ; Amt. 19 ; Wash. 6,6; of the officers of the executive (see Wy. 6, 11. §202): Ala., Ark., Cal., Ga., 111.;
» Ore. 2, 15. Kan., Mo., N. C, Neb., Nev., O., Tex.,
» Ala. ; Ariz.;* 1112; Ark. 3, 12; W. Va. In others, only to elections of
Cal. 4, 28 ; Fla. ; Ga. 3, 10, 1 ; Ind. ; the governor or lieutenant-governor
lo. 3, 38; Kan.; Ky. ; La.; Mich. 4, (Cal., Ct., Del., Ind., lo., Ky., La.,
11; Minn. 4, 30; Miss. 76; Mo. 8, 6; Md., Mich., N. J., N. Y.. Pa., Tenn.,
N. C. 2, 9; N. D. 54; Neb. 3, 8; Nev.; Va., Wis.). In others, only to elec-
N. Y. ; O. 2, 27; Ore.; Pa. 8, 12; tions of the Legislature (Ct., Vt.).
PART II] POLITICAL PROVISIONS 215
tion shall constitute a choice, where not otherwise directed in the Constitution.'
When there is no majority for any person for governor, the Legis- lature in joint session elects him. ^ But only one of the two having the highest votes.' So, only, in case of a tie.* So, when there is none for lieutenant-governor.^ Or for the council." And in the case of State senators, when no candidate has received a majority.^ So, for secre- tary, treasurer, or attorney-general.^ Or for treasurer." For secre- tary of State or comptroller.'" For vacancies in office, see § 201.
§ 233. Australian Ballot. — Ballots must be uniform, with the names of all candidates and the offices to be filled in due order, and have no distinguishing mark or symbol; but any voter may erase any name and insert another." So elections are by "secret official ballot" marked by each voter in private.'^ At all elections by the people, except primaries and municipal elections in small towns which are not held at the same time as a general election, there must be an official ballot which may have a separate device by which the political party or the candidate may be indicated; and the voter may vote for such device at the head of the list thereby voting for the entire ticket, or he may vote for each of the candidates in turn by marking him specially by his name. Ballots must be prepared in secrecy at the polls, and the names of independent candidates may be printed with a device; and names of candidates may be WTitten on the ballot. '^ In other States similar provisions are made by statute.
Cumulative Voting exists by the Constitution of Illinois (each district voting for three representatives) each voter may cast as many votes for each candidate as there are State representatives to be elected, or may distribute his votes, or equal parts thereof, among the candidates as he sees fit.'*
§ 234. Election Day, by the Constitutions of the States (or statutes in some States and the Territories) comes as follows: In nearly all States, on the first Tuesday after the first Monday in
> Cal. 20, 13; Fla. 16, 8; Nev. 15, « N. H. 2, 60.
14; Ore. 2, 16. ' Me. 5, 1, 3; N. H. 2, 33.
2 Ga. 5, 1, 5; 5, 2, 1; N. H. 2, 41; « Ct., R. I. Vt. 2, 10; Amt. 9. For Mississippi, see » Ga., Vt.
§ 202, notes. '« Ga.
3 N. H., R. I. " Va. 28.
* Ala.; Ct. Amt. 30; Ida.; Ky. ; La.; >= Ky. 147; Wy. 5, 11. Mon. ; N. D. ; N. Y. ; R. I. ; S. C. ; S. D. ; " La. 212.
Utah; Wash.; W. Va. 1891, 153; Wy. " 111. 4, 7, and 8.
* Ct., Vt.
216 TIIF. STATE CONSTITUTIONS [BOOK III
November, hiennially; in tlie oven years; ' in the odd years.- In a few other States it is biennially in the even years but on (lilVerent days; thus, in Maine on the second Monday in Septeinl)er ; ' in Oregon on the first Monday in June;^ in Vermont on the first Tuesday in September; ^ in Arkansas on the first INIonday in Septem- ber;" in (Jeorgia on the first Wednesday in October; and in Colo- rado (now changed by statute) on the first Tuesday in October.''
In other States, the election is held annually on the first Tuesday after the first Monday in November.^ In a few of the southern States, the elections and terms of office have recently been made quadrennial; thus, in Louisiana, every four years on the Tuesday after the third Monday in April (next in 1908) ; * in Alabama and Mississippi, every four years on the first Tuesday after the first Monday in November (beginning in Mississippi with 1895 and in Alabama with 1902); and see also § 203.^" But the Legislature, in some States, may fix a different day.'^
§ 235. Conduct of Elections. — The Constitutions of many States provide that the right of suffrage shall be protected by law^s regu- lating elections and prohibiting all undue influences from power, bribery, tumult, or improper conduct.'- Or, that the Legislature may enact laws concerning the judges, time, place, and manner of elections ; " that the Legislature shall forbid the sale of intoxicating liquors near the polls.'* The Legislature shall provide by law against fraudulent voting, etc.'^ In four States, the election officers are sworn not to disclose how any person shall have voted, except in judicial
» Ariz.* 1129; Cal. 4, 3; Ct. Amt. « Ark. 3, 8; Jan. 23, 1875, § 1.
27, 1 ; Del. 5, 1 ; Schedule, 7 ; Fla. 3, 3 ; ' Col. 5, 2 ; 7, 7 ; Ga. 3, 4, 2.
1889, p. 314 ; 1895, p. 367 ; Ida. Pol. C* « Col.* 1575 ; Del. 4, 1 ; Ind. 2, 14
770; 111. 4, 3 and 5, 3; lo. Amt. 1(1882, Kan. 4, 2; Ky. 148; Mass. Amt. 15
No. 12); 1904, p. 207; Kan. 1905, Neb. 16, 13 ; N.J. 4, 1,3; N. Y. 3, 9
543; Mich. 4, 34; Minn. 7, 9, Amt. Pa. 8, 2 ; R. I. Amt. 11 (1890, p. 146)
1883; Mo. 8, 1; Mon.* 1150; N. C. 2, Va.* 109. But note that the terms of
27; Code, 2668*; N. D. 124; Nev. 4, office may be biennial; see §§ 201,
3; 15,5; N. H. 26, 40 ("biennially in 202.
November"); N. M.* 1588; O. 1904, » La. 206.
p. 640; Okla.* 2906; S. C. 3, 8; S. D. '» Ala. 46; Miss. 102, 140, 252.
7, 4; Tenn. 2, 7; Tex.* 1659; Utah " Ala., Ga., La.
6, 3; 4, 9; Wash. 2, 5; 6, 8; W. Va. '^ Ala. 33 and 191; Cal. 20, 11; Ct.
Amt. 1884; Wis. 13, 1; Wy. 3, 5; 6,6; Fla. 3, 26; Ky. 150; Nev. 4, 27;
6, 12 (5). Ore. 2, 8; S. C. 1, 9; Tex. 16, 2; Va.
2 Ky. 30 & 95; Md. 3, 7; 15, 7 ; 36; W. Va. 4, 11; Wy. 6, 12 (1). Miss. 102, 252; Va. 41, 42. '^ Md. 3, 49.
3 Me. 2, 4; Amt. 23. '" Ala. 191; Ga. 2, 5, 1; Ky. 154; * Ore. 2, 14. La. 205.
« Vt. 2, 8; Amt. 24, 1. '' S. C. 2, 5.
I
PART II] POLITICAL PROVISIONS 217
proceedings.' So, in one, a voter may vote by sealed ballot if he so choose.- All boards, etc., must be bi-partisan.^ Election managers shall require proof of the payment of taxes, etc.* All employers must allow employees four hours in which to vote,^ between 6 a. m. and 7 p. m. No corporation organized or doing business in this State shall be permitted to influence elections or official duty by contributions of money or anything of value."
§ 236. Registration. — The Constitutions of some States have a general provision that there shall be laws to preserve the purity of elections, prevent fraud, and guard against the abuse of the elective franchise.' And in many, provision for registration of voters is especially made.^ Permanent lists are kept, and a certificate given to the voter. ^ A person denied registration may appeal to the courts. '° But in one, the Constitution expressly forbids registration laws.'' And in one, no elector shall be deprived of his vote by reason of his name not being registered.'- And in one, the Legislature shall estab- lish no board or court of registration of voters.'^ Registration must be four months before the election; '* so, ten days.'^
§ 237. Freedom from Arrest. — In most States, the Constitution provides that electors shall be free from arrest while attending, going to, or returning from the polls, except for treason, felony, or breach of the peace.'" So, in some, on any civil process. '^ They are not liable to arrest on civil process during election day.'^ Nor are they required to attend court on that day, either as party or witness.'*
' Ark. 3, 3; Col. 7. 8; Mo. 8, 3; registration in cities and towns); Wy.
Pa. 8. 4. 6, 12.
- W. Va. 4, 2. See § 231. » S. C.
» N. Y. 2, 6. »" La. 201 ; S. C. 2, 5.
* S. C. 2, 4. See § 244. " Ark. 3, 2.
« Ky. 148. 1= W. Va. 4, 12.
« Okla. 9, 40. " W. Va. 6, 43.
^ Col. 7, 11; Fla. 6, 9; Kan. 5, 4, " Miss. 251.
Ky. 150; Md. 3, 42; Mich. 7, 6; Mon. "^ N. Y.
9, 9; Nev. 2, 6; N. Y. 2, 4 ; Okla. 3, >« Ala. 191; Ariz.* Bill of Rts. 24;
6; Pa. 1901, p. 881; R. I. 2, 6; Tenn. Ark. 3, 4; Cal. 2, 2; Col. 7, 5; Del. 5,
4, 1; Tex. 6, 4; W. Va. 4, 11. 5; Ga. 2, 3, 1 ; 111. 7, 3; Ind. 2, 12;
« Ala. 186; Del. 5. 4; Fla. 6, 2; lo. 2, 2; Kan. 5, 7 ; Ky. 149; La. 204 ;
Ga. 2, 2, 1 (such provision may be Me. 2, 2; Mich. 7, 3; Miss. 102; Mo.
made by the Legislature) ; Ind. 2, 2 and 8, 4 ; Mon. 9,4; N. D. 123 ; Neb. 7, 5 ;
14; Ky. 147; La. 197, 214; Md. 1, 5; O. 5, 3; Okla. 3, 7; Ore. 2, 13; Pa. 8,
Mo. 8, 5; N. C. 6, 3; Amt. 1900, 2; 5; S. C. 2, 14; S. D. 7, 5; Tenn. 4, 3;
Nov.; N. Y.; Okla. 3, 6; R. LAmt. 7; Tex. 6, 5; Utah 4, 3; Wash. 6. 5;
Pa. 1901, p. 881; S. C. 2, 4 & 8; Va. Wy. 6, 3.
18, 19, 20, 25; Wash. 6, 7; Wis. 3, 1; " Ct. 6, 8; Va. 29; W. Va. 4, 3.
Amt. Cthe Legislature must provide for '* Minn. 7, 5 ; Nev. 2, 4.
" Mich., Va., W. Va.
218
THE STATE CONSTITUTIONS
[book III
And tlicy are not oblifj^cd to perform military duty on election day, except in time of war or public danger.'
§ 238. Contested Elections are, by the Constitutions of many States, to be tried in a manner to be provitled by law.- In many others, they are to be tried by the Legislature in joint session.-' So, in several others, by the Legislature in the manner of law provided.* In two States, by a committee of both houses."^ In one, by the house alone." In others, by the courts of law.^ But in most of the States, the elections of members of each house of the Legislature are to be determined by such house.* In the trial of contested elections, and proceedings for investigating them, no person can refuse to testify on the ground that it will criminate him; but such testi- mony shall not afterwards be used against him except in pro- ceedings for perjury.^
Article 24. The Right of Suffrage
§ 240. Citizens.^^ — The right of suffrage (subject to the other conditions in this article) is, by the Constitutions (or statutes) of all
» Cal. 2, 3; 111.; lo. 2, .3; Me. 2, 3; Mich. 7, 4 ; Mon. 9,5; N. D. ; Neb. ; Ore. ; S. D. ; Utah 4, 4 ; Va. ; Wash. ; W. Va. ; Wy. 8, 4.
2 Ark. 19, 24 ; Col. 7, 12 ; Ct. 4, 2 ; Ida. 4, 2 ; lo. 3, 7 ; Ky. 38 ; La. 209 ; Mon. 7, 2; N. J. 5, 2; O. 2, 21; Tex.
3, 8; W. Va. 4, 11; Wash. 3, 4.
* Ark. 6, 4 ; Col. 4, 3 ; Mass. 2, 2, 1, 3 ; Me. 5, 1, 3 ; Mo. 5, 25 ; N. C. 3, 3 ; N. H. 2, 41 ; R. I. 8, 7 ; Tex. 4, 3 ; Va.
4, 2; Vt. Amt. 9; W. Va. 7, 3. See also § 270.
* Ala. 115; Ga. 5, 1, 6; III. Ind. 5, 6; lo. 4, 5; Ky. 90; Neb. 5, 4 ; Ore. 5, 6 ; Tenn. 3, 2.
' Del. 3, 4; Pa. 4, 2.
« Md. 2, 4.
^ Ariz.* 1384; Mo. 8, 9; N 1874, 29 ; Pa. 8, 17 ; Wy. 6. 2.
« N. H. 2, 21 and 34; N. M.* 63, 59. For other States, see § 270. In some States the above provision applies to the contested elections of the gov- ernor or other executive officers only (Ala., Ark., Col, Ct., Del., III., Mass., Me., N. C, Nev., N. H., N. J., R. I., Tex., Vt.). In others, for members of
5, 4; Mo. ;
M.*
the Legislature only (lo., Ky., Pa.). In others, for the governor or lieuten- ant-governor only (Del., Ind., lo., Ky., Md., Miss., Mo., Ore., Tenn., Tex., Va., W. Va.). But in some States these provisions do not apply to contested elections for the governor (Mo., Pa.), or it only applies to elections of ex- ecutive officers other than governor, &c. (Mo.).
» Ark. 3, 9; Col. 7, 9; La. 216; Pa. 8, 10.
'" In order to give a complete pres- entation of the subject in this article, the statute provisions of a few States which have no constitutional provi- sions on the subject are also incor- porated. In England all free men voted until 1429. The right to vote even for presidential electors and members of the House is determined by the laws of the States, save only that any one who can vote for the lower House of the State Legislature must be allowed to vote for members of Congress (U. S. C. 1, 2, 1); therefore it will of course vary in the different States of the Union. But by the Fourteenth Amendment any
PART II]
POLITICAL PROVISIONS
219
the States, given to every male (or female, see below) citizen of the United States aged twenty-one.' But he must also be a citizen of the State.^ So, of any person naturalized ; but he must have been a United States citizen ninety days before the election,^ or one month before.'' And in many States, also to every male of foreign birth, aged twenty-one, who has declared his intention to become a citizen according to the United States naturahzation laws,* at least thirty days before the election ; ^ at least one year, and not more than five years, before ; ^ at least four months before ; ^ or one year, and not more than six, respectively.*
In other States, to every male citizen or inhabitant o^ the State aged twenty-one.'" He must have been a citizen ninety days." Since the Fourteenth Amendment this provision is of course neutralized ; See note 10.
Indians, aged twenty-one, if civilized, and not a member of any tribe, can vote.'^ So, in Michigan, if born in the United States. In
person naturalized in the United States becomes a citizen both of the United States and of the State wherein he resides ; therefore the State may not withhold the right to vote except as it may be withheld from other citizens in the State ; and never by reason of race, color, or previous condition of servitude (U. S. C. Amts. 14, 1 ; 15, 1). It would seem, however, that foreigners newly naturalized may be subjected to the same term of residence in the State before being allowed to vote as are re- quired of citizens coming from other States. All limitations of the riglit of suffrage are indirectly forbidden by the Federal Constitution (Amt. 14, 2). That is to say, the representation of the State in Congress is reduced in pro- portion to the number of male inhabi- tants whose right of suffrage is denied or abridged except for participation in rebellion or for other crime. The edu- cational tests, therefore, imposed es- pecially by the newer Constitutions, would seem to be ground of diminish- ing the representation in Congress of the States adopting them ; but this has not yet been done. The right of suf- frage is not, however, a natural right, but one of political expediency ; hence women, although citizens, do not neces- sarily vote.
' Ala. 177 ; Ariz.* 1347 ; Ark. 3, 1 ; 1891, p. 314; Cal. 2, 1; 1893, p. 543; Col. 7, 1 ; Ct. Amt. 8 ; D. C* 98 ; Fla. 6, 1; Ga. 2, 1, 2; Ida. 6, 2; 111. 7, 1; Ind. 2, 2 ; lo. 2, 1 ; Kan. 5, 1 ; Ky. 145; La. 197; Md. 1, 1; Me. 2, 1 ; Mich. Amt. 1893, p. 438; Minn. 7, 1; Amt. 1895, 3; Miss. 241; Mo. 8, 2; Mon. 9, 2; N. C. 6, 1 ; N. D. 12l"; Neb. 7, 1 ; Nev. 2, 1 ; N. J. 2, 1 ; N. M.* 1868, 26, 2 ; O. 5, 1 ; Okla. 3, 1 ; Ore. 2, 2; R. I. 2, 1; Amt. 7; S. C. 2, 3; S. D. 7, 1 ; Tenn. 4, 1 ; Territories, U. S. R. S. 1859, 1860; Tex. 6, 2; Utah 4, 2 & 5 ; Va. 18 ; Wash. 6, 1 ; Wis. 3, 1 ; Amt. ; Wy. 6, 2 & 5.
^ La., S. C.
' Cal., Utah.
* Pa. 8, 1.
« Ariz.* 1412; Ark.; Ind.; Kan.; Mo. ; Ore. ; S. D. ; Terr. ; Tex. ; Wis.
« Neb.
' Mo.
» Col.
» N. D.
'" Del. 5, 2; Mass. 2, 1, 2, 2; Amt. 3 ; Mich. 7, 1 ; N. H. 2, 12 & 27 ; N. Y. 2, 1; Okla.; Pa. 8, 1; Vt.*62; W.Va. 4, 1.
" N. Y.
•- Ida., Wis., Minn. In other States, it would follow from §§ 240 or 21, 22, that all Indians not on a reservation
220 THE STATE CONSTITUTIONS [bOOK III
Oklahoma, all Indians vote like whites; in North Dakota, civilized Indians who have two years severed their tribal relation. So, in Wisconsin, persons of Indian blood who have once been de- clared by Congress citizens of the United States, any subsequent act of Congress to the contrary notwithstanding. So, in Minnesota, persons of mixed white and Indian blood who have adopted the customs and habits of civilization ; and Indians also, after an ex- amination by the courts. But in several no Indian not taxed can vote.^ And in one, no Narragansett can vote.^
The Constitutions of a few States still restrict the right of suffrage to white persons (see § 22); but this is void under the Fifteenth Amendment. Mongolians may not vote, if not born in the United States.^ In four States, women vote in all respects like men.* (See also §§ 22, 23.) By the Constitution of others, the Legislature may at any time extend the right of suffrage without regard to sex to persons not here enumerated;^ but the law must be approved by a majority of the voters at a general election.^
"The Legislature shall at its first session after the admission of the State into the Union submit to a vote of the electors of the State the following question to be voted upon at the next general elec- tion held thereafter, namely: 'Shall the word "male" be stricken from the article of the Constitution relating to elections and the right of suffrage?' If a majority of the votes cast upon that question are in favor of striking out said word ' male,' it shall be stricken out and there shall thereafter be no distinction between males and females in the exercise of the right of suffrage at any election in this State."^
§ 24L Residence Qualijications. — By the Constitutions of a few States, a voter must have been resident a certain period of time in the United States.^ And by the Constitutions of nearly all, to vote at a State election, a person qualified according to § 240 must have
are citizens, there being no provision The above question was submitted
to the contrary. to the people at the election held in
' Ida. ; Me. 2, 1 ; Miss. 241 ; Wash. November, 1890, and was rejected in
6, 1. both, in South Dakota by the following
2 R. I. 2, 4. vote : for, 22,072 ; against, 45,682.
* Ida. * Ninety days (Cal.). One year Mda. Amt. ; Col. 7, 1 ; Utah 2, 6; (Ind. 2, 2; Minn. 7, 1 ; S. D. 7, 1). He
4, 1 ; Wy. 6, 2. must have been a citizen one month
* N. D. 122 (perhaps repealed by (Pa. 8, 1). In one, he must he horn in Amt. 2); Col. 7, 2 (adopted). the United States, unless he holds a
' Wis. certain amount of real estate in the
' S. D. 7, 2. And so, substantially, State (see § 244; R. I. 2, 1 & 2), in Washington (27, 17).
PART II]
POLITICAL PROVISIONS
221
been resident for a certain period immediately preceding the election in the State/ In England no residence qualification existed until Henry V., and it was repealed under Geo. III.
In one State, residence on State land ceded to the United States is not sufficient (compare § 243).^ Ministers and teachers are qualilied after six months' residence.^ And by the Constitutions of a few States, a person otherwise qualified must, in order to vote at any election, have been resident in the county or legislative district for a certain period of time before,* or in the city or township.^ So he must be registered in the town by June 30 preceding.®
§ 242. Losing a Residence, etc. — By the Constitutions of many States, no person shall be deemed to have lost a residence for the purpose of voting,^ by reason of his absence from the State while employed in the service of the United States,^ or of the State. ^ Or, while engaged in the navigation of the waters of this State or of the United States,^" or temporarily absent from the State.'' Or, while
' Three months (Me. 2, 1). Four months (Minn.). Six months (Ark. 8, 2; Col. 7, 1; Ida. 6, 1; Ind. 2, 2; lo. 2, 1 ; Kan. 5, 1 ; Mich. ; Minn. ; Neb.
7, 1 ; Nev. 2, 1 ; N. H.* 31, 8 ; N. M.* ; Ore. 2, 2 ; S. D.). One year (Ark. 3, 1; Cal. 2, 1; Col. 1901, 47; Ct. Amt. 8 ; D. C* 98 (in the District) ; Del. 5, 2; Fla. 6, 1; Ga. 2, 1,2; 111.7,1; Ky. 145; Mass. Amt. 3; Md. 1, 1 ; Miss. 241; Mo. 8, 2; Mon. ; N. D. ; N. J. 2, 1 ; N. Y. ; O. 5, 1 ; Okla. 3, 1 ; Pa.
8, 1; Tenn. 4, 1; Tex. 6, 2; Utah; Vt.* 61 ; Wash. ; W. Va. 4, 1 ; Wis. 3, 1; Wy.). For two years (Ala. 178; La.; N. C. 1900, 2; R. I. Amt. 7; S. C. 2, 4 ; Va. 18). Two and a half years (Mich.).
2 R. I. 2, 5.
" S. C.
* Ten days (Ark., Minn.). Thirty days (Dc!., Ida., Nev., O.* 2945, S. D.). Sixty days (lo., Mo., W. Va., Wy.). Three months (Cal., Del., 111., N. C, Va., Wash.). Four months (N. Y., Utah). Five months (N. J.). Six months (Ark., Fla., Ga., Ky., Md., N. C, N. D., Okla., Tenn., Tex.). One year (La., Miss., S. C, Va.). "As by law provided" (Col., Mon., Neb., O.).
^ Sixty days (Ind., Mo., Pa.). Six months (Ct., La., Mass., Md., N. H., R. I.). Thirty days (Cal., Kan., Minn.). One year (Ala., S. D., Va.).
In the ward or precinct or election dis- trict, ten days (Mich., Minn.). Twenty days (Mich., O.). Thirty days (Ark., Cal., D. C* Del., 111., Ind., Nev., N. Y., Okla., Va., Wash., Wis.). Si.xty days (Ky. ; Pa. 8, 1 ; Utah.) Three months (Ala., Md., Me.). Four months (N. C, S. C). And he does not lose his residence in the old district for a cor- responding period (Va.).
« R. I. Amt. 11 (1900, p. 149).
' Or for the purpose of holding office (Col., Ky., Tex.). Or for any purpose whatever (Ark., Cal., Ind., Wis.).
» Ariz.* 1693 ; Ark. 19, 7 ; Cal. 2, 4; 20, 12; Col. 7, 4; Ida. 6, 5; 111. 7, 4; Ind. 2, 4; Kan. 5, 3; Me. 2, 1; Mich. 7, 5 ; Minn. 7, 3 ; Mo. 8, 7 ; Mon. 9,3; N. D. 125; Nev. 2, 2; N. Y. 2, 3 ; Ore. 2, 4 ; Pa. 8, 13 ; S. C. 2, 7 ; S. D. 7, 6 ; Tex. 16, 9 ; Wash. 6, 4 ; Wis.3,4 ; Wy. 6, 7. These exceptions do not apply to a person serving ovit a sentence in the penitentiary for infamous crime.
8 Ark., Cal., Col., Ida., 111., Ind., Ky., Me., Mich., Mo., Mon., N. D., Ore., Pa., S. D., Tex., Wash., Wis.
'" Ariz.,* Cal., Ida., Kan., La., Mich., Minn., Mo., Mon., Nev., N. Y., Ore., Pa., S. C, Wash. Or. in all these last except Idaho and Minnesota, of the waters of the high seas.
'^ Ala. 1, 31; Ariz.*; Ark.; S. C. 1, 12.
222 THE STATE CONSTITUTIONS [BOOK III
confined in prison,' or kept at an almshouse or asylum at the public expense.^ Or while a student in any institution of learning.^ And in several States no person shall he deemed to have gained a residence in the State by reason of his presence, for the various reasons respectively specified,*
§ 243. Army and Navy. — And in most States it is specially provided that no person shall be deemed to have acquired a residence for the purpose of voting by reason of being stationed in the State while in the military or naval service of the United States.^ And the same law would seem to be implied (by § 242) in a few other States.
In several, no person in the regular army or navy of the United States can vote (see also below).® But those who were soldiers and sailors in the Civil War, if United States citizens, have a special right to vote.^ And conversely, no person in the actual military or naval service of the United States is deemed to have lost his right to vote by reason of his absence (in time of war, except in Nevada); ^ but a manner in which he may vote is to be provided by the Legislature.^ But in three, only when such person is not in the regular army or navy. ^^
§ 244. Property Qualification. — In nine States there is an express constitutional provision that there shall be no property qualification for the right of suffrage.'* Except school elections; '- elections creating indebtedness.'^ But in one, the Constitution dsclares that every free man has a right to vote "who has a sufficient
1 Ariz.* Cal., Col., Kan., Mich., » Kan. 5, 3 ; Mo. 8, 11; Ore.; Tex.
Minn., Mo., Nev., N. Y., Ore., Pa. 6, 1.
- Ariz.,* Cal., Col., Ida., Kan., La., ' R. I. Amt. 6.
Mich., Minn., Mo., Mon., Nev., N. Y., » Ariz.* 1407; Ct. Amt. 13; Kan.
Ore., Pa., Va., Wash. 5, 3; La. 208; Me. 2, 4; Mich. 7, 1;
3 Ariz.* ; Cal. ; Col. ; Ida. ; Kan. ; Neb. 7, 3 ; Nev. 2,3; N. J. 2, 1 ; N. Y.
La. ; Mich. ; Minn. ; Mo. ; Mon. ; Nev. ; 2, 1 ; Okla. ; Pa. 8,6; R. I. Amt. 4 ;
N. Y.; Ore.; Pa.; S. C. ; Va. 24; S. D. 6, 19; Utah 1,17; Wash.; Wy.
Wash. 6, 7.
* Ariz.,* Cal., Col., Ida., Kan., La., " This last clause is not added in a
Mich., Mo., Mon., Nev., N. Y., Ore., few States (Wash., Wy.).
Pa., S. C, Wash. So, in Maine, as to " Ct., Kan., Neb.
paupers or asylum inmates only. " Ark. 1, 21 ; Cal. 1, 24; Ida. 1, 20;
« Ark. 3, 7 ; Del. 5, 2 ; Ga. 2, 1, 2; Kan. Bill of Rts. 7 ; Minn. 1, 17 ; N. C.
111.7,5; Ind. 2, 3; lo. 2, 4 ; Ky. 146; 1, 22; S. C. 1, 11 ; Utah 1, 4 ; 4, 7. In
La. 175 ; Me. 2, 1 ; Mich. 7, 7 ; Minn. States where there is no express quali-
7, 4 ; Mon. 9. 6 ; N. D. 126 ; Neb. 7, 4 ; fication, the same would result from
N. J. 2, 1 ; O. 5, 5; Okla. 3, 2; Ore. 2, § 240 (except as the Constitution
5 ; R. I. 2, 4 ; S. D. 7, 7 ; Territories, provides).
U. S. R. S. 1860 ; Va. 24 ; Wash. 6, 4 ; '- Ida.
W. Va. 4, 1; Wis. 3, 5; Wy. 6, 8. '^ Ida., Utah.
PART II] POLITICAL PROVISIONS 223
interest in the community." ' In Virginia, the Legislature may pro- vide a property quaHfication not exceeding $250 in town or county elections except for members of the Legislature.^ And in several, there is a provision requiring a voter to have paid certain taxes.^ See also §§ 245, 24G.
And in municipal elections, in two States, to determine the expen- diture of money or the assumption of debt, no person can vote who does not pay a property tax in such municipality.*
And in one, no person can vote in city council or tax or money elections unless he have paid a property tax on property in such town or city to the net value of $134.28.^
Exceptions. — No person who served in the army or navy, U. S. A. or C. S. A., is required to have paid such poll tax above required."
§ 245. Educational Qualifications of the right of suffrage exist in several States. Thus, no person can vote who cannot read the Constitution and Statutes of the State. ^ No person who cannot read the Constitution of the State in English.^ No person who can- not wi'ite his name; ^ or, in New Hampshire "write"; in Virginia, he must write his application.^" Who cannot read and speak English.^ ^ Who cannot read and wiite any section of the State Constitution.*^ Physical disability is always an excuse.'^
Except persons who now (1904) have the right to vote, or who were sixty years old January 1, 1904; " or who were twenty or be- came United States citizens before January 1, 1900,'^ or were voters, or over the age of sixty in 1893.'^
» Vt. 1, 8. * Ida. 1, 20; Tex. 6, 3. (Such a tax
^ Va. 30. may be required also in scliool elec-
^ Thus, all taxes except for the year tions. See §§363, 372.)
of the election (Ga. 2, 1, 2). He must ^ R. I. Amt. 7.
have paid a State, county, or city tax * Va. 22.
within two years previous to the elec- ^ Ct. Amt. 11 ; Wy. 6, 9.
tion (Pa. 8, 1). He must have paid all « Cal. 1893, p. 543 ; Del. 5, 2 ; Mass.
poll taxes assessed upon him for the Amt. 20; Me. 1891, res. 109; Miss.
year previous (N. C. 5, 1) ; for a period 244; N. H. 1, 11.
of two years preceding (Miss. 241; R. ^ Cal., Del., Mass., Me.
I. 2, 3); three years (Va. 20, 21); to '" Va. 20.
be prescribed by the Legislature (Fla. " Wash. C. Amt. 1896.
6, 8; Tenn. 4, 1; Tex. 1901, p. 322). " N. C. 1900, 2; S. C. 2, 4 ; (unless
He must have paid all poll taxes due he have paid taxes on $300).
six months before the election (S. C. 2, '^ c^i^ Mass., Me., Del., N. H., Wy.
4). No person can vote who is excused " N. H.
from paying taxes at his own request '^ Del.
(N.H. 2, 28). He must have paid a tax '» Me.
to the amount of SI, unless he owns real
estate in the State (R. I. 2, 1 & 2).
224 THE STATE CONSTITUTIONS [dOOK III
Every inliahitant of the Stiite possessing tlie qualifications required by the Constitution has an equal right to vote.'
In Colorado, the Legislature were authorized to exact an educa- tional qualification after 1890.^
§ 246. Southern State Provisions. — In Alabama after January 1, 1903, only those persons can register who can either (1) read and write any article of the Constitution of the United States in English, and who are physically unable to work or who have worked or been regularly engaged in some lawful employment, business, occupation, trade, or calling for the greater part of the twelve months next pre- ceding; or else (2) the owner in good faith in his own right, or the husband of such owner, of forty acres of land upon which they reside, or of real estate or personal property assessed to the value of $300, provided the taxes have been paid.^
In Louisiana an applicant for registration must be able to read and write and shall make his own written application in English or in his mother tongue, which application contains the essential facts and must be entirely written, dated, and signed by him in the pres- ence of the registration officer without assistance or suggestion from any person, or any memorandum whatever, except the form of appli- cation, provided that if unable to write in English he may write the same in his mother tongue from the dictation of an interpreter, or if unable to write by reason of physical disability, the same shall be written at his dictation by the registration officer.
If he be not able to read or write he may nevertheless be entitled to be registered if, at the time he offers to register, he be the bona fide owner of property assessed him in the State at a valuation of not less than $300 on which all taxes shall have been paid, if the property be personal ; but he must make oath that he is a citizen of the United States and of the State, over the age of twenty-one, that he possesses the qualifications as to residence prescribed in the general laws, and that he is the owner of property assessed at such valuation.*
"Grandfather Clause." — This principle recently adopted in State Constitutions, mainly in Southern States, but also in some Northern States, operates as an exception to the property and educational qualifications. Thus, in New Hampshire, all persons who had the right to vote at the time of the adoption of the new Constitution, 1903, or were sixty years old January 1, 1904. So in Delaware the
> S. C. 1, 10. ^ Ala. 181, 180.
'^ Col. 7, 3. * La. 197 (3) & (4).
PART II] POLITICAL PROVISIONS 225
educational qualification only applies to persons who become twenty- one years old or are naturalized as United States citizens after Janu- ary 1, 1900. In Virginia there was a general registration in 1902 and 1903, at which all male citizens of the United States having proper qualifications of age and residence could register if they were either, first, a person who, prior to the adoption of this Constitution, served in time of war in the Army or Navy of the United States or of the Confederate States or of any State of the United States or of the Confederate States; or, second, a son of any such person; or third, a person who owns property upon which, for the year next preceding that in which he offers to register. State taxes aggregating at least one dollar have been paid ; or, fourth, a person able to read any sec- tion of the State Constitution and give a reasonable explanation of the same, or, if unable to read such section, able to understand and give a reasonable explanation thereof when read to him by the officers. A roll containing the names of all persons thus registered w'as to be preserved, and persons so enrolled need not register again. ^ In South Carolina, up to January 1, 1898, persons were allowed to register permanently who could read or understand the State Con- stitution when read to them.^ In Alabama, up to December 20, 1902, persons who served in the U. S. or C. S. army or navy in the Mexican, Indian, Civil, or Spanish wars; the lawful descendants of such; and "all persons of good character who understand the duties and obligations of citizenship under a republican form of government." ^
In North Carolina no male person who was, on January 1, 1867, or prior thereto, entitled to vote under the laws of any State in the United States wherein he then resided, and no lineal de- scendant of any such person shall be denied the right to register and vote by reason of his failure to possess these educational quali- fications, provided he have registered prior to December 1, 1908; and the Legislature are to provide for the registration of all persons entitled to vote without such educational qualifications and make a permanent record of such registration on or before November 1, 1908, and all persons so registered shall forever there- after have the right to vote unless disqualified for other reasons, provided such person have paid his poll tax as required.*
On and after the first day of January, a. d., 1892, every elector
» Va. 19. ' Ala. 180.
» S. C. 2, 4. ,^ ♦ N. C. Amt. 1900, 2.
10
226 THE STATE CONSTITUTIONS [bOOK III
shall, in addition to the foregoing qualifications, be able to read any section of the Constitution of the State ; or he shall be able to understand the same when read to him, or give a reasonable inter- pretation thereof.*
In Louisiana " no male person who was in 1807, or prior, entitled to vote under the Constitution or statutes of any State of the United States wherein he then resided, and no son or grandson of such per- son not less than twenty-one years of age at the time of the adoption of this Constitution, and no male person of foreign birth who was naturalized prior to 1898 shall be denied the right to register and vote by reason of his failure to possess the educational or property qualifications prescribed by this Constitution, provided he shall have resided in the State for five years next preceding the date at which he shall apply for registration and shall have registered in accordance with this article prior to 1898; but no person shall be entitled to register under this section after said date. "
All registration under this section closed on the 31st of August, 1898, and permanent records of voters so registering were made, and such persons are admitted to register for all elections without possessing the educational or property qualifications otherwise pre- scribed by this Constitution.^
§ 247. Challenges. — By the Constitution of Georgia, any voter, on being challenged, must make oath that he has complied with the constitutional requirements.^
§ 248. Primaries. — Only registered and qualified electors can vote at primaries.* The Legislature shall provide by law for the regulation of primaries and punishing fraud at the same.^
The Legislature shall enact laws providing for a mandatory primary system, which shall provide for the nomination of all candi- dates in all elections for State, District, County, and municipal officers, for all political parties, including United States senators. Provided, however, this provision shall not exclude the right of the people to place on the ballot by petition any *non-partisan candidate.^
§ 249. Municipal Elections, Special Provision. — The voter must have been resident four months and paid all taxes due for the pre- ceding fiscal year.^
* » Miss. 244. s Cal. 1899, p. 501; La. 215; S. C.
2 La. 197 (5). 2, 10; Miss. 247. » Ga. 2, 1, 2. « Okla. 3, 5.
* La. 200 ; Va. 35. ' S. C. 2, 12.
PART II ] POLITICAL PROVISIONS 227
No person less than sixty years of age can vote at any election who shall not, in addition to the qualifications herein prescribed, have paid on or before the end of each year, for two years preceding the year in which he offers to vote, a poll tax of one dollar per annum to be used for the public schools; but such taxes are a lien only upon assessed property, and every person liable for such tax before being allowed to vote must exhibit to the registration officers his poll tax for two years.*
Article 25. Disfranchisement
§ 250. General Provisions. — The Tennessee Constitution de- clares that no person shall be deprived of the right of suffrage except upon conviction by a jury of some infamous crime previously as- certained and determined by law and judgment thereon by a court of competent jurisdiction.^ Or, upon lawful conviction of a felony at common law.^
§ 251. Insanity. — By the Constitutions of most States no in- sane or idiot person can vote.* So, in a few, no person under guar- dianship.^ No person in gaol on convictiAi of a criminal offence.^ In a few States there are constitutional provisions disfranchising paupers; thus, in some, that no pauper can vote.^ So, in others, no person kept at a poor house or asylum at the public expense.^ So, in Texas, no pauper supported by any county.
Exception. — But these provisions do not apply to any person who has served in the United States army or navy in time of war and been honorably discharged.^ Nor to Soldiers' Home inmates.'"
§ 252. Crime. — By the Constitutions of most States, no person convicted of infamous crime can vote.'* In other States, the Legis-
' La. 198. Md. 1, 2; Me. 2, 1 ; Minn. ; N. D. ; R.
^ Tenn. 1, 5. This is propably im- I.; S. D. ; Wis.
plied in other States. See § 130. « Ida., Okla.
=• Ark. 3, 2. ' Del. 5, 2 ; Mass. Amt. 3 ; Me. 2, 1 ;
* Ala. 182; Ark. 3, 5; Cal. 2, 1 ; N. H. 2, 28; N. J. 2, 1; R. I. 2, 4;
Del. 5, 2 ; Fla. 6, 4 ; Ga. 2, 2, 1 ; Ida. Tex. 6, 1 ; Va. 23 ; W. Va. 4, 1.
6, 3; lo. 2, 5; Kan. 5, 2; Ky. 145; « La. 202; Mo. 8, 8; Okla. 3, 1;
La. 202 ; Minn. 7, 2 ; Miss. 241 ; Men. S. C. 2, 6; See § 242.
9,8; N. D. 127; Neb. 7, 2 ; Nev. 2, 1 ; 'Mass. Amt. 28; Okla. (or the
N. J. 2, 1 ; O. 5, 6; Okla. 3, 1 ; Ore. 2, Confederate army).
3; R. L 2, 4; S. C. 2, 6; S. D. 7, 8; '" La.; Mich. Amt. 1893, p. 439.
Tex. 6, 1 ; Utah 4, 6; Va. 23; Wash. " Ala. 182; Cal. 2, 1 ; Ct. 6, 3 ; Ga.
6, 3 ; W. Va. 4, 1 ; Wis. 3. 2 ; Wy. 6, 6. 2. 2, 1 ; Ida. 6, 3 ; lo. 2, 5 ; Md. 1,2;
» Fla.; Ida.; Kan.; Mass. Amt. 3; La. 202; N. C. 6, 1 ; Neb. 7, 2; Nev.
228
THE STATE CONSTITUTIONS
[book III
lature may pass laws to such effect/ or to disfranchise persons con- victed of "other high crimes";^ or high misdemeanors.^ So, in several, specially, no person convicted of "felony."* And no per- son confined in public prison.^ And, specially, no person convicted of larceny can vote;*' of forgery;' treason." No person who has ever borne arms voluntarily against the United States (if, in Nevada, such person was over eighteen at the time).® No person guilty of mur- der ; ^^ adultery ; ^^ bigamy ; '^ vagrancy ; '^ receiving stolen goods ; ' * living in adultery;''' selling or offering votes ;*^ other offences con- nected with the election laws;'' bartering or selling, or offering to buy votes ; '^ burglary ; '^ assault and battery on the wife ; ^^ a biga- mist or polygamist ; "' or persons advising polygamy ; "" a person who preaches or advises that the rules of the State are not our supreme law.^^ No person who held civil or military office under the Con- federate States ; ^* no person who in any manner voluntarily aided or abetted the Rebellion.^^ And no one dishonorably discharged from the United States service.^^ For perjury ;^' malfeasance in office ; ^^ misdemeanors connected with the right of suffrage ; ^® embezzlement of the public funds.^*^ For defrauding the United States, or any
2,1; N. J. 2, 1 ; Ore. 2,3; R. I. 2, 4 ; '- Ala. ; S. C. Tex. 6, 1 ; Wash. 6, 3 ; W. Va. 4, 1 ; Wy. 6, 6. Whether the conviction was in the home State, or any other (Nev.). Compare U. S. Amt. 14, 2.
» Ark. 1891, p. 314; Fla. 6, 4; 111. 7,7; Ind. 2,8; Minn. 4, 15; Mo. 8, 10; N. Y. 2, 2 ; O. 5, 4 ; Tenn. 4, 2 ; Wis. 3, 6.
2 Cal. 20, 11; Tex. 16, 2.
' Ky.
* Ark. 3, 2; Del. 5, 2; Fla. 6, 4; Ida. 6, 3 ; Kan. 5, 2 ; Ky. 145 ; Minn. 7, 2; Mo.; Mon. 9, 2; N. C. : N. D. 127 ; Okla. 3,1; S. D. 7, 8 ; Va. 23 ; Wis. 3, 2.
* Col. 7, 10 ; Ky. ; La. ; Mo. 8, 8 ; S. C.
« Ala. 182 ; Ct. 6, 3 ; Fla. 6, 5 ; Ga. 2, 2, 1; La.; Md. 1,2; Miss 6; Va. 23; Wis. 3,6.
Ala.; Cal. 20, 11; Ct. 14, 4; Miss, be granted by the United States
Ala. Ala.
Ala. ; S. C.
Ala.
Ala.
Ala.
Ida., Ky.
Ala., Miss., S. C. 20 Ala., S. C. 2' Ida.
22 Ida.
23 Ida.
2« Nev.
2^ Kan.
2* Except, in Kansas, persons honor- ably discharged from the military ser- vice of the United States, after April, 1861, and who had served at least one year therein, are not so disfranchised.
S. C. 2, And in Nevada, the foregoing provi- sions cease to apply when an amnesty
government. 2' Ala. ; Cal.
241; S. C. ; Tex. 16, 2; Va.
* Ala. ; Ga. ; Ida. ; Ky. ; Minn. ; N. D. 127; Neb.; Nev. 2, 1 ; S. D. 7, Miss.; O. ; S. C. ; Tex.; Va 8; Utah; Va. ; W. Va., 4, 1; Wis. 28 ^la., Cal., Ga, 3, 2.
» Kan. 5, 2 ; Nev.
'" Ala.
» S. C.
Ct. ; Minn. 4, 15;
29 Mo.; S. C; Utah 4, 6. '° Cal. Amt. 1893, p. 543; Miss. ; Va.
Ga.;
PART II] POLITICAL PROVISIONS 229
State government/ or fraudulent bankruptcy.^ Obtaining money under false pretences;^ robbery;* arson ;^ miscegenation, sodomy, or fornication ; ^ incest ; ' assault to rape ; ^ or to rob ; ^ breach of trust/" Unless legally restored to the rights of citizenship,'^
§ 254. Bribery. — By the Constitutions of many States, no person convicted of bribery can vote;'^ whether giving or receiving the bribe.*^ So, no person guilty of giving or offering to give or receive a bribe.'* So, no person convicted of bribery at elections, as to both parties.*^ A person giving or offering or receiving a bribe at an election is disqualified to vote at that election}^ No member of the Legislature convicted of bribery can vote." In Pennsylvania, any person convicted of wilful violation of the election laws is deprived of the right of suffrage for four years.'^
§ 255. Betting on an Election disqualifies the persons interested from voting at that election.'^ And in Florida, laws shall be passed to deprive a person convicted of so betting of the right of suffrage absolutely.'"
§ 256. Duelling. — By the Constitutions of several States a person is disfranchised by being concerned in a duel in the same cases in the several States respectively that he would be disqualified to hold office (see § 223).^' And so, a conviction for duelling is cause of disfranchisement.^^ Or sending or accepting a challenge, or assisting in a duel.^^ But the Legislature on two-thirds vote may remove the disqualification.^*
' Kan. § 253, notes. For a term not over ten
^ Ct. years (Me.).
» Ala., Miss., S. C, Va. » Del., Miss.
* S. C. " Kan.
« S. C. 15 Ga.; Ida. 6, 3; Ky. ; Md. 1, 3;
« Ala., S. C. Me. 9, 13; Va. ; W. Va.
' S. C. '« Del. 5, 3; N. Y. ; Pa., 8, 8; Vt.
« S. C. 2, 6. 2, 34.
» Ala. " Cal. 4, 35.
'» S. C. »» Pa. 8, 9.
" Fla., Ga., Ida., Kan., Ky., La., '» N. Y. ; Wis. 3, 6.
Md., Minn., Mon., N. C., N. D., Neb., ^o YXa.. 5, 4.
Nev., N. J., O., Olda., R. I., S. C, S. D., ^i Qal. 20, 2 ; Fla. 6, 5 ; Mich. 7, 8 ;
Wash., Wis., Wy. Miss. 19; Nev. 15,3; Tex. 16,4; Wis.
12 Ala.; Cal. 20, 11; a. 6, 3; Del. 13, 2.
5, 7 ; Fla. 6, 5 ; Ga. ; Minn. ; N. J. 2, -^ Ct. 6, 3. ; Va. 23.
2; N. Y.; O. 5, 4; R. I. 2, 4; S. C. ; =3 Va.
Tex. 16, 2 ; Va. 23 ; Wis. 3, 6. See ^* Va. 57.
230
THE STATE CONSTITUTIONS
[book III
Article 20. Removal of Officers
§ 2G0. By Impeachment^ — By the Constitutions of many States, every civil State Ofiicer may be impeiu-'hed.^ So, in Kansas, all officers under the Constitution.^ All "executive" officers;* the governor;'' lieutenant-governor;" secretary of State;' treasurer of the State;* the council;'* the auditor;'" the comptroller;** the attorney-general;*^ all attorneys for the State ;'^ the superin- tendent of education;'* the commissioner of public lands ;'^ the railroad commissioners ;'° the surveyor-general;*' all judicial ofiicers or judges;'^ all judges of the supreme courts;'^ all judges of the superior courts;^" all judges of the criminal court;^* all judges of the Court of Appeal ;^^ all chancellors.^^ Any such officer may be impeached within two years after his term of office expired.^* The Constitution forbids impeachment of public officers.'^
§ 261. The Causes of Impeachment are in many States, crime. Thus in detail (for citations, see also in § 260) :
Crime (generally).^® Misdemeanors (generally).^' Any high
* The right of impeachment by the Commons, to be tried by the Lords, existed from early times, in England, but lay dormant from 1449 to 1621 (T.-L. 409).
- Ark. 15, 1; Col. 13, 2; Del. 6, 2; 111.5,15; Ind. 6, 7; lo. 3, 20; Ky. 68; Mass. 2, 1, 2, 8; Me. 9, 5; Mich. 12, 1; Miss. 50; Mon. 5, 17; N. D. 196; Neb. o, 5; Nev. 7, 2; N. H. 2, 37; N. J. 5, 11; O. 2, 24; Okla. 8, 1; Pa. 6, 3; S. D. 16, 3; Utah 6, 19; Va. 54; Vt. 2, 24; Wash. 5, 2; W. Va. 4, 9; Wis. 7, 1 ; Wy. 3, 18.
3 Kan. 2, 28.
* Ct. 9, 3; Fla.; R. I. 11, 3; S. C. « Ala. 173; Ark.; Cal. 4, 18; Col.
Ct.; Del.; Fla. 3, 29; 111.; lo.; Kan. Ky.; La. 217; Minn. 13, 1; Miss. Mo. 7, 1; Mon.; N. C. 4, 4; N. D. Nev.; N. H. 2, 39; N. J. ; O. 2, 24 Okla.; Pa.; R. I.; S. C. 15, 5; S. D. Tenn. 5, 4; Tex. 15, 2; Utah; Va. Wash.; Wis.; Wy.
« Ala., Cal., Fla., La., Mo., Tex., Va.
^ Ala., Cal., Fla., La., Minn., Mo., Tenn.
* Ala., Cal., La., Minn., Mo., Tenn., Tex.
« N. H. 2, 62.
'" Ala., La., Minn., Mo.
" Cal., Tenn., Tex.
*2 Ala., Cal., La., Minn., Mo., Tex., Va.
^3 Ark., Tenn.
" Ala., La., Mo.
'' Tex.
" La.
»' Cal.
'« Col.; Ct.; La.; Md. 4, 4; Mon.; Nev.; N. D.; O.; R. L; S. C; S. D.; Tenn.; Utah; Va. ; Wash.; Wy.
18 Ala., Ark., Cal., Fla., lo., Minn., Mo., Okla., Tenn., Tex. See § 551.
2" Ark., Cal., Fla., lo., Minn., Mo., Tex.
21 Mo.
2= Tex.
2^ Ark., Tenn.
2* N. J.
2^ Ore. 1, 19.
26 Ark., Col., Ind., La., Mich., Minn., Mo., Mon., N. D., S. D., Utah, Va., Wash., W. Va., Wis., Wy. It may now be regarded as settled that "high crimes and misdemeanors may include mis- conduct in office which does not in itself constitute a crime." ' (McClain, p. 61.)
" Ark., Col., La., Mich., Minn., Mo.,
PART II]
POLITICAL PROVISIONS
231
crime in office.* Any misdemeanor in office.^ Any offence involving moral turpitude, committed while in office, or connected therewith.^ Treason.* Bribery.^ Habitual drunkenness.^ Drunkenness, at any time or place.^ "Gross immorality."** In several, malfeas- ance'* or misconduct in office.'" Corruption in office.'* Or "favor- itism." Extortion in oflice.'^ Oppression in office.'^ Neglect of official duties.'* "Maladministration."'^ Incompetency.'® Inca- pacity, mental or physical.'^ No causes are specified.'^
§ 202. Process of Impeachment. — By the Constitutions of nearly all, the impeachment is first made by the House of Representatives.'^ In most, a majority of a quorum seems to be sufficient for impeach- ment in the house as in ordinary votes (see § 304).^° But in a few, a majority of the members elected.^' In two, a vote of two thirds of the members present," or elected.^^ And the impeachment is then, in all these States but two, tried by the Senate, sitting as a court, under oath.'* In many States, with the chief justice of the Supreme Court presiding (in cases of impeachment of the governor),^^
Two thirds of the senators elected must, in many States, concur
Mon., Utah, Va., Wash., W. Va., Wis., Wy.
^ Del., Miss., Tenn.
2 Cal, Fla., Del., 111., lo., Kan., Ky., Me., Miss., N. D., Neb., Nev., O., Pa., S. D.
3 Ala., Okla. * Del., Miss.
5 Del. ; Miss. ; N. H. 2, 37.
« Ala., La., Mo., N. D., Okla.
^ Neb. 14,3; S. D.
« W. Va.
» Ark.; Col.; Ic; La.; Mass. 2, 1,
6; Md. 3, 26; Me. 4, 1, 8; Mich. 12, 1 & 2; Minn. 4, 14; Miss. 49; Mo. 7, 2; Mon. 5, 16; N. C. 4, 4; N. D. 194; Nev. 7, 1; N. H. 2, 16; N. J. 6, 3, 1; N. Y. 6, 13; O. 2, 23; Okla. 8, 3; Pa. 6, 1; R. L 11, 1; S. C. 15, 1; S. D. 16, 1; Tenn. 5, 1; Tex. 15, 1; Utah 6, 19; Va. 54; Vt. Amt. 25, 3; Wash. 5, 1; W. Va. 4, 9; Wis. 7, 1; Wy. 3, 17.
20 Ark., Cal., Ct., Ga., Ind., lo., Kan., Ky., Mass., Me., Mo., N. C, N. H., Tenn., Tex., W. Va.
=' Ala., Col., III., Md., Mich., Minn.,
2,8; Mo.; Mon.; N. D.; Nev.; N. H.; Mon., N. D., Nev., N. J., N. Y., O.,
S. D.; Utah; Va. ; Wash.; Wy.
'o Ala., La., Mich., Minn., N. D., H., Okla., S. D., Va., W. Va., Wis.
'1 La.
'2 La.
" La., Mo.
" Ala., Ind., Okla., Va., W. Va.
S. D., Utah, Wash., Wis., Wy. N. 22 Fla., Miss.
23 Del., Ind., R. I., S. C, Vt.
2* Ala. ; Ark. ; Cal. ; Col. ; Ct. 9, 2 ; Del.; Fla.; Ga. 3, 5, 3; Ida. 5, 3; III.; Ind.; lo.; Kan.; Ky. 67; La.; Mass. 2, 1, 2, 8; Md.; Me. 4, 2, 7;
»5 Mass.; N. H.; Va.; Vt. 2, 24; Mich.; Minn.; Miss.; Mo.; Mon.
W. Va.
« Ala., La., Okla., W. Va. " Ind.
'» S. C.
N. C. 4, 3; N. D. 195; Nev.; N. H. 2, 37; N. J.; O.; Okla.; Pa. 6, 2; R.I. 11, 2; S. C. 15, 2; S. D. 16, 2; Tenn. 5, 2; Tex. 15, 2; Utah 6, 18; Va.;
'« Ala. 173; Ark. 15, 2; Cal. 4, 17; Vt. Amt. 7; Wash.; W. Va.; Wis.;
Col. 13, 1 ; Ct. 9, 1 ; Del. 6, 1 ; Fla. 3, Wy.
29; 1897, p'. 308; Ga. 3, 6, 3; Ida. 5, 25 ^la.; Del.; Ida.; Mon.; N. D.;
4; 111.4.24; Ind. 6, 7; lo. 3, 19; Kan. N. H. 2, 39; Okla.; S. D.; Utah;
2, 27; Ky. 66; La. 218; Mass. 2, 1, 3, Wash.; Wy.
232 THE STATE CONSTITUTIONS [BOOK III
to convict of the impcacbincnt.* In otliors, two thirds of the senators, &c., |)resent.' In four, a vote of a (juoruni, as in other cases (see § 304).^ But in Nebraska, the impeachment is first made by the Legishiture in joint convention upon resolution in either house ; and a majority of elected members must concur; and it is then tried by the judges of the Supreme Court."* So, in Nev^' York, it is tried by the Senate and the judges of the Court of Appeals.
§ 263. The Ejjcct of Impeachment is, by the Constitutions of all but Maryland and Oregon, merely to remove from office; and, in all these States except Rhode Island, Indiana, Michigan, South Carolina, and Oklahoma, to disqualify the person impeached from holding any other State office; and the person impeached, whether convicted or not on the impeachment, is nevertheless liable to indictment, trial, and punishment according to law.^ But in one State such disqualification only lasts during the term for which he was elected or appointed.^ In many, when an officer is impeached, he is at once suspended from his office until acquitted.' In Tennessee, the Legis- lature has no power to relieve the person impeached from the above penalties (and see also § 162).^ He cannot be again impeached for the same ofi'ence.^
§ 265. Removal by Address. — Certain officers may, by the Constitutions of many States, be removed by the Legislature ; thus, in many States, judges of the supreme or superior courts,^" or all judicial officers.^^ So, judges of the supreme court, and all other judicial officers, on recommendation of the governor,
1 Cal., Col., Del., Ida., 111., Ind., 15,3; S. D. ; Tenn. 5, 4 ; Tex. 15, 4;
Kan., La., Md., Mich., Mon., N. D., Utah; Va. 54; Vt. Amt. 7; Wash.;
Nev., N.J.,0.,R. I., S.C, S.D., Utah, W. Va. 4, 9; Wis. 7, 1 ; Wy.
Wash., W. Va., Wy. « Ala.
^ Ark.; Ct. ; Fla. ; Ga. 3, 5, 4 ; lo. ; ^ Fla. ; La. 219; Mich. 12, 4 ; Minn.
Ky.; La.; Me.; Minn.; Mo.; N. C. ; 13,3; N. D. 198; Neb.; N.J. 6, 3, 2;
N. Y.; Okla.; Pa.; Tenn. ; Tex. 15, 3 ; N. Y. ; R. I. 11,2; S. D. 16,5; Tex.
Va.; Vt.; Wis. Soin U. S. C. L 3 (6). 15,5; Utah 6, 20; Wis. 7, 1.
^ Ala., Mass., Miss., N. H. * The principle that the power to
* Neb. 3, 14. pardon does not extend to impeach-
^ Ala. 176; Ark. 15, 1; Cal. 4, 18; ments is embodied in the Act of
Col. 13, 2; Ct. 9, 3; Del. 6, 2; Fla. 3, Settlement, but was claimed in Danby's
29; Ga. 3, 5, 5; Ida. 5, 3; 111. 4, 24; case, 1679.
lo. 3, 20; Kan. 2, 28; Ky. 68; La. » N. D. 201; S. D. 16, 8.
218; Mass. 2, 1, 2, 8; Me. 4, 2, 7 ; '" Cal. 6, 10; Kan. 3, 15; Miss. 53
Mich. 12, 2; Minn. 13, 1; Miss. 51; N. C. 4, 31; Nev. 7, 3; O. 4, 17
Mo. 7, 2; Mon. 5, 17; N. C. 4, 3; N. R. I. 10, 4; S. C. 15, 4; Va. 104
D. ; Neb. 3, 14; Nev. 7. 2 ; N. H. 2, Wash, 4. 9; Wis. 7, 13; W. Va. 8,
38 ; N. J. 6, 3, 3 ; N. Y. 6, 3 ; O. 2, 24 ; 18 ; Utah 8, 11.
Okla. 8, 5; Pa. 6, 3 ; R.I. 11, 3; S.C. " 111.6,30; Nev.; O.; Wash.
PART II]
POLITICAL PROVISIONS
233
bv vote of two thirds of the senate elected.^ All civil officers,^ or all executive officers.^ All officers not liable to impeachment may be removed as provided by law.^ In a few, a two-thirds vote of both houses elected is necessary,^ or a three-fourths vote.^ In others they are removed by a majority vote of elected members in joint com- mittee,' or by the governor (or governor and council), upon the address of both houses of the Legislature ; thus: all judicial officers or judges;^ the judges of the supreme and superior courts;^ all State officers except members of the Legislature ; ^*^ the auditor, treasurer, secretary of state, attorney-general, and chancellors;^^ the attorney-general/^ In one State, by the governor, on address of two thirds of the full senate, all officers elected by the people except members of the Legislature and judges.^^ Minor judges, by the senate on address by the governor/^
The Causes of Removal of officers under this section are by the Constitutions specified to be any reasonable cause,'^ misbehavior in office,^" any infamous crime,^' incompetence,^^ neglect of duty,^^ age,^** mental or bodily infirmity ,^^ corruption in office,^" drunken- ness,^^ if habitual.^*
§ 266. Removal hy the Governor. — So, in many States, certain officers may be removed by the governor alone, as, namely: any officer whom he has power to appoint,^^ all officers not legislative or judicial,^® judges,^' sheriff s,^^ coroners,^^ district attorneys,^" county
> N. Y. 6, 11. » La. 163. 3 S. C.
* Fla. 14, 15; N. D. 197; S. D. 16, 4; Utah 6, 21; Wash. 5, 3; Wy. 3, 19. See also § 268.
5 Cal., Kan., La., Miss., N. C, N. Y., Nev., O., Utah, Wis., W. Va.
« 111., Wash.
' R. I., Va.
» Mass. 2, 3, 1 ; Md. 4, 4 ; Mich. 12, 6; Mo. 6, 41; N. H. 2, 72; Pa. 5, 15; S. C. ; Tex. 15, 8. Two thirds of each house must concur (Ark., Ct., Del., Ky., La., Md., Mich., Miss., Mo., Ore., Pa., S. C, Tex.).
• Ark. 15, 3 ; Ct. 5, 3 ; Ky. 112, 129; Ore. 7, 20.
'» Del. 3, 13; La. 220; Me. 9, 5; S. C. " Ark. '2 Ore.; Va. 107.
" Pa. 6, 4.
'* Cal. 1904, Nov. 8.
'5 Del., Ky., La., Mich., Miss., Nev., Pa., S. C, Wash.
'« N. D., Ore., Pa., S. D., Wash., Wy., Utah.
" N. D., Pa., S. D., Utah, Wy.
'» N. D., Ore., S. D., Wash., W. Va.
'8 Ore., S. C.
2« W. Va.
=' Mo., N. C, W. Va.
22 Wash., Ore.
^ S. D.
^* N. D.
25 Col. 4, 6; 111. 5, 12; Md. 2, 15; Neb. 5, 12 ; Pa. 6, 4 (except judges) ; W. Va. 7, 10.
29 Mich. 12, 8. 2^ Md. 4, 4.
28 N. Y. 10, 1;
29 N. Y., Wis.
30 N. Y., Wis.
Wis. 6, 4.
234 THH STATE CONSTITUTIONS [rOOK III
clerks,^ registers of deeds,^ all public officers.^ In Florida by the governor, with the concurrence of the senate, all officers not liable to impeachment may be removed; in California by the senate on recommendation of the governor, judges of inferior courts.^ Me may susj)en(l all executive State officers except the lieutenant-governor until the next session of the Legislature."' He shall prosecute and suspend officers charged with embezzlement."
The Cmiscs of Removal under this section are specified to be: incompetency;' malfeasance in office;^ misconduct ; ** neglect of duty ; '" conviction in a court of law of incompetency, misbehavior, or neglect in office,or anycrirae(as to judges only) ;" gross immorality.'^
§ 2G7. Removal bij the Courts. In a few states, certain officers may be removed by the judges of the supreme court.
Thus, judges of the superior court ;'^ judicial officers;'* all officers not liable to impeachment ; '^ any judge (except those mentioned in § 2G0) ; '" any prosecuting attorney.''
By the judges of the superior courts : — -
Minor officers;'^ county or town officers;'^ county judges, attorneys, clerks of court, and justices of the peace.'" In Oregon, all officers may be tried for incompetence, corruption, malfeasance, or delinquency in office, as for criminal offences; and judgment may be rendered for dismissal from office.^'
§ 268. Other Removals from Office. The Constitutions of other States provide that the Legislature may provide for the removal of inferior officers from office, for malfeasance or non- feasance of their duties ;^^ for official misconduct, incompetence, neglect of duty, or gross immorality ,^^ or for any cause.^*
' N. Y. " Ala. 174.
=" Wis. '^ Tenn. 5, 5.
» Del. 15, 6. '« Ind. 7, 12.
♦ Cal. 6, 10; Fla. 4, 15. '' Ind.
» Va. 73. >« La. 222.
• S. C. 4, 22. '« Ark. 7, 27 ; La. ; Tex. 5, 24. ' Col. ; Fla. ; 111. ; Md. ; Neb. ; ==" Tex. 5, 24 ; La.
W. Va. 7, 10. =' Ore. 7, 19.
• « Col., Del., Fla., lU., Neb., W. Va. =^ Col. 13, 3; Minn. 13, 2; Mo. 14,
» Md., W. Va. 7; Mon. 5, 18; N. D. 197; Nev. 7, 4;
>» Col., Fla., 111., Neb., W. Va. S. C. 3, 27; S. D. 16, 4; Utah; Wash.
" Del., Md. 5, 3;Wy. See § 265, 2d paragraph.
'2 W. Va. " W. Va. 4, 6.
" La. 221 ; Tex. 15, 6. ^^ Okla. 8, 2; Tex. 15, 7.
PAKT II] POLITICAL PROVISIONS 235
Article 27. The Legislature
§ 270. General Provisions} — The Constitutions of all the States provide that each house of the Legislature shall judge of the quali- fications, elections, and returns of its members, and determine the rules of its own proceedings.^ "It has all other powers necessary and usual for the Legislature of a free State." ^ In most States, each house shall choose its own officers,^ except, in many, the president of the senate, which place is filled by the lieutenant-governor,^ or by the governor or lieutenant-governor ; ^ if neither, by the secretary of State.'
§ 27L Quorum. — By the Constitutions of nearly all, a majority of elected members in either house constitutes a quorum.^ But in some two thirds is necessary.^ And in one State, a majority is a
> Copied from U. S. C. I, 5. The Ky. 34; La.; Mass. 2, 1, 2, 7; 2, 1, 3,
right to determine contested elections 10; Md. ; Me. 4, 1, 7; 4, 2, 8; Mich,
was finally vindicated by the House Minn. 4, 5 ; Miss. ; Mo. ; Mon. 5, 9 ;
of Commons against James I. who N. C. 2, 18-20; N. D. 31, 36; Neb.;
tried to transfer such cases to his Nev. ; N. H. 2, 21 &36; N. J. 4, 4,
own Court of Chancery, in 1604. (T.- 3 ; N. Y. ; O. 2, 8 ; Okla. 5, 29 ; Ore. ;
L. pp. 389, 390, 421.) Congress, having Pa. ; R. I. 5, 2 ; 6, 4 ; S. C. 3, 12 ; S. D. ;
delegated powers only, has not sue- Tenn. ; Tex. 3, 9 ; Utah 6, 12 ; Va.
ceeded to the unlimited powers of 47 ; Vt. ; Wash. 2, 10 ; W. Va. ; Wis.
Parliament to punish for contempt. 4, 9; Wy. See U. S. C. I, 2 (5); I, 3
(Reinsch, American Legislatures, 176.) (5).
2Ala.51,53; Amt.6; Ariz.* 1110; ^ Ala. 51; Col.; Ct. ; 4, 13, 111.;
Ark. 5, 11, 12; Cal. 4,7 & 9; Col. 5, 10 Ind. ; lo. 4, 18; Ky. ; La.; Mich.;
& 12 ; Ct. 3, 6 & 8 ; Del. 2, 8 & 9 ; Minn. ; N. C. ; Neb. ; Nev. ; N. Y. ; O. 3,
Fla. 3, 6; Ga. 3, 7, 1; Ida. 3, 9; 16; Okla. 5, 28; Pa. ; Tex. ; Va. ; Vt. ;
111. 4, 9; Ind. 4, 10; lo. 3, 7 & 9; Wash. 3, 16; Wis. See also § 282. Kan. 2, 8 ; Ky. 38, 39 ; La. 25 ; Mass. « R. I. 6, 2. 2, 1, 2, 4; 2, 1, 3, 10; Md. 3, 19; Me. ' R. I. 6, 3.
4, 1,5; 4, 2,5; 4,3, 3 & 4; Mich. 4, 9; » Ala. 52; Ark. 5, 11; Cal. 4, 8;
Minn. 4,3 & 4; Miss. 38 & 55 ; Mo. 4, Col. 5, 11; Ct. 3, 7 ; Del. 2, 8; Fla. 3,
17; Mon. 5,9 & 11; N. C.2, 22 ; N. D. 11; Ga. 3, 4, 4; Ida. 3, 10; 111. 4, 9;
47 & 48; Neb. 3, 7; Nev. 4, 6; N. H. lo. 3, 8; Kan. 2, 8; Ky. 37; La. 34;
2, 24,34; N. J. 4, 4, 2; N. M.* 63, 35; Mass. Amt. 33; Md. 3, 20; Me. 4, 3,
N. Y. 3, 10; O. 2, 6 & 8; Okla. 5, 30; 3; Mich. 4, 8; Minn. 4, 3; Miss. 54;
Ore. 4, 11; Pa. 2, 9 & 11; R. 1. 4, 6 Mo. 4, 18; Mon. 5, 10; N. C. 2, 2; N.
& 7; S. C. 3, 11; S. D. 3, 9; Tenn. D. 46; Neb. 3, 7; Nev. 4, 13; N. J. 4,
2, 11 & 12; Tex. 3, 8 & 11; Utah 6, 4,2; N. Y. 3, 10; 0.2,6; Okla. 5, 30;
10 & 12; Va. 47; Vt. 2, 9; Amt.6; Pa. 2, 10; R. I. 4, 6; S. C. 3, 11; S.
Wash. 2, 8 & 9; W. Va. 6, 24; Wis. D. 3, 9; Utah 6, 11; Va. 46; Vt. 2, 9;
4, 7 & 8; Wy. 3, 10 & 12. But see Amt. 6; Wash. 2, 8; W. Va. 6, 24;
§ 238. Wis. 4, 7; Wy. 3, 11. See U. S. C. I,
« Mon., N. D., Wy. 5, (1). Compare also § 303.
* Ala.; Ariz.*; Ark.; Cal.; Col Ct. 3, 7 ; Del. 2, 7 ; Fla. ; Ga. 3, 5, 2 3, 6, 2; Ida.; 111.; Ind. 2, 10; lo.
» Ariz.* 1116; Ind. 4, 11; Ore. 4, 12; Tenn. 2, 11; Tex. 3, 10.
236 THE STATE CONSTITUTIONS [BOOK III
quorum in the house ; but when less than two thirds are present, a two-thirds vote is necessary to any act or proceeding; and in the senate thirteen are necessary to a quorum, and when less than sixteen are present, a vote of ten is necessary.'
But a smaller number than a (luorum may generally adjourn from day to day and compel the attendance of absent members.-
§ 272. Speech in the Legislature. — The Constitutions of most States provide that no member of the Legislature for any speech or debate in either house shall be questioned elsewhere.^ So, in many, that speech in the legislature can be the foundation of no prosecution or action whatever, civil, or criminal, in any other court or place.*
§ 273. Freedom from Arrest. — By the Constitutions of most States, State senators and representatives are privileged from arrest in all cases except treason, felony, and breach of the peace, during the session of the Legislature, or in going to and returning from the Lef^islature.^ For fifteen davs before and after the session of the
> N. H. 2, 19 & 36. may, however, be expelled by the House
- Ala., Ark., Ariz., Cal., Col., Ct., itself, as was the case with Sir Richard Del., Fla., Ga., Ida., Ind., lo., Ky., La., Steele in 1714 for writing "a seditious Mass., Md., Me., Mich., Minn., Miss., and scandalous libel" (T.-L. 579). Mo Mon., N. D., Nev., N. J., O., " Mass. 1, 21; Md. 3, 18; Neb. 3, Okla., Ore., Pa., R. I., S. C, S. D., 23; N. H. 1, 30; Vt. 1, 14; Wash. 2, Tenn., Tex., Utah, Va., Wash., W. Va., 17; Wis. 4, 6.
Wis.,Wy. Notes. 1. So in U. S. 1.5. « Ala. 56; Ark. 5, 15; Col. 5, 16; 2. But there are often special provi- Del. 2, 13 ; Ga. 3, 7, 3 ; Ida. 3, 7 ; 111. sions for finance bills; see Arts. 30, 4,14; Ind. 4, 8; lo. 3, 11; Kan. 2,22; 31. Ky. 43; La. 28; Me. 4, 3, 8; Minn. 4,
3 Ala. 56; Ark. 5, 15; Ariz.* 1118; 8; Miss. 48; Mo. 14, 12; Mon. 5, 15; Col. 5, 16 ; Ct. 3, 10 ; Del. 2, 13 ; Ga. N. D. 42 ; Neb. 3. 12 ; N. J. 4,4,8; O. 3,7,3; Ida. 3, 7; 111.4,14; Ind. 4, 8; 2,12; Okla. 5,23; Ore. 4, 9 ; Pa. 2, 15; Kan. 2, 22; Ky. 43; La. 28; Md. S. C. 3, 14; S. D. 3, 11; Tenn. 2, 13; Decln. of Rts. 10 ; Me. 4, 3, 8 ; Mich. 4, Tex. 3, 14 ; Utah 6, 8 ; Va. 48 ; W. Va. 7; Minn. 4, 8; Mo. 14, 12; Mon. 5, 15; 6, 17; Wy. 3, 16. The Protestation of N. D. 42; N. J. 4, 4, 8; N. Y. 3, 12; 1621 puts the right in those words: O. 2, 12; Okla. 5, 23; Ore. 4, 9; Pa. 2, "And that every member of the 15; R. I. 4, 5; S. D. 3, 11 ; Tex. 3, 21 ; said House hath like freedom from all Tenn. 2, 13 ; Utah, 6, 8 ; Va. 48 ; impeachment, imprisonment, and mo- Wash. 2, 17 ; W. Va. 6, 17 ; Wy. 3, 16. testation (other than by the censure of This is an old English constitutional the House itself), for or concerning any right, finally definitely established in speaking, reasoning, or declaring any Strode's case and the Stat. 4 Hen. VIII. matter or matters, touching the Par- (Taylor, I. 523). It would probably be liament, or ParUament business." (T.- deenied part of the "unwritten consti- L. 419). But it first received distinct tution" where not guaranteed here or legislative recognition under James I. in § 60. Freedom of speech was first in 1604 (T.-L. 389). Both the right to definitely asserted by Peter Wentworth freedom of speech and freedom from against Elizabeth in 1576, and is dis- arrest is probably inherent in the tinctly claimed as the privilege of Par- Constitution of Parliament and coeval liament in the Protestation of Decem- with the first existence of National ber 18, 1621 (T.-L. 419). A member Councils in England (T.-L. 259). The
PART II] POLITICAL PROVISIONS 237
Legislature.* So ten days before and after.^ In some they are so privileged from arrest (except as above) at all times while members of the Legislature.^ This privilege does not, in five States, protect from arrest in cases of violation of the oath of office.''
In two they cannot be arrested or held to bail upon mesne process during their attendance upon, going to, or returning from the Legis- lature.^ And it is further provided, in a few States, that members of the Legislature are not subject to any civil process during the session of the Legislature and for fifteen days before such session and after its termination.® Or for fifteen days before the session.'' So, in one, their persons are free from arrest and their property from attach- ment on any civil action during the session and for two days before and after it.^ And in one other, they are free from arrest in civil process during the session and for four days before and after.®
§ 274. Open Sessions. — The Constitutions of nearly all the States provide that the doors of each house of the Legislature shall be open, or that the proceedings shall be public''' Except such occa- sions as may, in the opinion of the House, require secrecy," or except the senate when in executive session.*^ And in a few it is even re- quired that the doors of either house should be open when sitting as
privilege of freedom from arrest is 4, 12 ; Minn. 4, 19 ; Miss. 58 ; Mo. 4,
limited to civil causes in England, and 19; Mon. 5, 13; N. D. 50; Neb. 3, 8;
it is not available in case of attach- Nev. 4, 15; N. H. 2, 8; N. Y. 3, 11;
ment for refusing to obey the writ of O. 2, 13 ; Ore. 4, 14 ; Pa. 2, 13 ; S. C.
habeas corpus. It originally extended 3, 23; S. D. 3, 15; Tenn. 2, 22; Tex.
to the servants or household of a mem- 3, 16; Utah 6, 15; Vt. 2, 13; Wash.
ber, but this was altered by statute in 2, 11 ; Wis. 4, 10; Wy. 3, 14. One of
1770 (T.-L. 263). the original privileges of Parhament
' Cal., Miss., Mo., Neb., Utah, Va. was secrecy of its proceedings; and it
^ S. C, W. Va. was only after a prolonged struggle
3 Ariz.* 1118; Cal. 4, 11; Mich. 4, that the right of the pubhc to know
7 ; Wash. 2, 16 ; Wis. 4, 15. what their representatives were doing
* Ala., Col., Mon., Pa., Wy. in Parliament was at length conceded.
' N. H. 2, 20 (this is ambiguous. The Long Parliament in 1641 had per-
but § 21 seems to confine the word mitted the publication of its proceed-
" arrest " to arrests for debt) ; Mass. ings, but prohibited the printing of
2, 1, 3, 10 (the privilege is here con- speeches, and it is still in theory a
fined to the House of Representatives, breach of privilege to report debates ;
by the letter of the Constitution). but no action for Ubel will lie for so
« Ariz.*; Cal.; Ind. ; Kan.; Mich.; doing (T.-L. 579-587).
Nev. 4, 11; Ore.; Va. ; Wash.; Wis. " Ala., Ark., Ariz.*, Cal, Col., Ct.,
' Ind. ; or 10 days before (Ida.). Del., 111., Ind., lo., Md., Mich., Min.,
« R. I. 4, 5. Miss., Mo., Mon., N. D., Neb., N. H.,
« Ct. 4, 10. N. Y., O., Ore., Pa., S. C, S. D., Tenn.,
I'Ala. 57; Ark. 5, 13 ; Ariz.* II13; Vt., Wash., Wis., Wy. " In the opinion
Cal. 4, 13; Col. 5, 14; Ct. 3, 11; Del. of two thirds of those present" (O.).
2, 11 ; Fla. 3, 13 ; Ida. 3, 12 ; 111. 4, 10; '^ Y\si., Nev., Tex., Utah.
Ind. 4, 13 ; lo. 3, 13 ; Md. 3, 21 ; Mich.
238
THE STATE CONSTITUTIONS
[book III
committee of the whol(\' But no person with exception of members of the press and certain olliccrs can be achnitted to the floor of either house in session. -
§ 27'). Journals. — The Constitutions of all the States but Massa- chusetts provide that each house of the Lcf^^islature shall keep a journal of its proceedings;^ and, in all these States except Oregon, publish the same. But, in one, they are only to publish it when re- quired by one fifth of the members.^ They need not print such parts as may require secrecy.'' The yeas and nays of the members of either house voting in elections, must in some States be always en- tered on the journal,® and in several States the same is required of other votes ^ (see also § 304). So in others at the request of any one member,^ or at the request of two members in either house," of two in the senate, or five in the house,^'' of three in either house," of five in either house, ^" of one sixth of the members present in either house, ^^ of one fifth of the members present in either,'* of one fifth of the mem- bers elected in either,'^ of one tenth of those present,'" or, in one, whenever the Constitution requires a two-thirds vote.'' Any member may dissent from or protest against any act or proceeding he may deem injurious to the public, and have the reasons for his dissent entered on the journal.'^ So, in two, any tw^o or more members may do so.'"
§ 276. Expulsion of Members, etc. — By the Constitutions of
1 Ark., Col., Del., Ida., 111., Md., Miss., Mon., Neb., Ore., Pa., S. D., Tenn., Wy.
2 Ala.
3 Ala. 55; Ark. 5, 12; Ariz.* 1111; Cal. 4, 10 ; Col. 5, 13 ; Ct. 3, 9 ; Del.
2, 10; Fla. 3, 12; Ga. 3, 7, 4 ; Ida. 3, 13; 111. 4, 10; Ind. 4, 12; lo. 3, 9; Kan. 2, 10; Ky. 40; La. 30; Md. 3, 22 ; Me. 4,3,5; Mich. 4, 10 ; Minn. 4, 5; Miss. 55; Mo. 4, 42; Mon. 5, 12; N. C. 2, 16; N. D. 49; Neb. 3, 8; Nev. 4, 14 ; N. H. 2, 23 ; N. J. 4,4,4; N. Y.
3, 11 ; O. 2, 9 ; Okla. 5, 30 ; Ore. 4, 13 ; Pa. 2, 12 ; R. I. 4, 8 ; S. C. 3, 22 ; S. D. 3, 13 ; Tenn. 2, 21 ; Tex. 3, 12 ; Utah 0, 14 ; Va. 49 ; Vt. 2, 14 ; Wash. 2, 11 ; W. Va. 6, 41; Wis. 4, 10; Wy. 3, 13. See in U. S. Const. 1, 5.
* Ct.
« Ala., Ark., Ariz.*, Col., Ct., Del., Me., Mich., Miss., Mon., Neb., N. Y., Pa., S. C, S. D., Tenn., Wash., Wis., Wy. Nor proceedings of executive sessions (Utah).
8 Ark. 4, 14 ; Cal. ; Kan. ; lo. 3, 38 ; Minn. ; Miss. 76; Okla. 5, 31 ; S. C. 2, 24 ; S. D. 3, 14 ; Tenn. 4, 4 ; Wash. 2, 27 ; W. Va. 6, 44.
' Kan., Minn., S. D., Tenn.
« Del, N. H., Vt.
« Col. ; Ind. ; lo. 3, 10 ; Ky. ; Mo. ; Mon.; Neb.; O. ; Ore.; Pa.; Wy.
'0 111.
'1 Cal., Ida., Nev., Tex.
'^ Ark., Fla., Md., Tenn., Utah. Of five in the Senate, ten in the house (S. C).
13 N. D. ; S. D. ; Wis. 4, 20.
1* Ct.; Ga. 3, 7, 6; La. 36; Me.; N. C; 2,26; N. J.; R. L; Va.
»« Ariz.*, Mich.
»« Ala., Miss., W. Va.
" Ga. 3, 7, 21.
'8 Ala.; Ariz.*; Ind. 4, 26; lo. ; Kan. 2, 11 ; Mich. ; N. C. 2, 17 ; N. H. ; O. 2, 10; Ore. 4, 26; S. C. ; Tenn. 2, 27; Vt.
>" 111.; Minn. 4, 16.
PART II] POLITICAL PROVISIONS 239
most States, either house of the Legislature may expel any of its members by a vote of two thirds of the elected members.' So, in one, by a majority vote of a quorum.- But no member can, in many, be expelled a second time for the same cause ; '' except for theft, perjury, etc.* Nor, for any cause known to his constituents before his elec- tion.^ The reasons for the expulsion must, in two, be entered on the journal with the names of the members voting.** In some, a member expelled for corruption is not thereafter eligible for either house.^ Each house has, in most States, power to punish its members for disorderly conduct.^ And in many, either house may punish any person not a member for disorderly or contemptuous conduct, such punishment not to extend beyond final adjournment of the session.^ It may punish for contempt any person who refuses to attend as a witness or produce papers, etc., before the Legislature, either house, or a committee of either, or to testify as to any matter which may be a proper subject of inquiry by the Legislature.'"' Such punishment is to be by imprisonment.'' But not over thirty days.'^ Not over ten days.'^ Not over twenty-four hours at a time.'* No time is specified.'^
' Ala. 53; Ark. 5, 12; Ariz.* 1110; ^ Yt. 2, 9.
Cal. 4, 9; Col. 5, 12 ; Ct. 3, 8; Del. 2, ^ Ma., Ark., Ariz., Col., Ct., 111.,
9; Fla. 3, 6; Ga. 3, 7, 1 ; Ida. 3, 11; Ind., lo., Ky., Md., Me., Mich., Minn.,
111. 4, 9; Ind. 2, 8; lo. 3, 9; Ky. 39; Miss., Mo., Neb., O., Ore., Pa., R. I.,
La. 25; Md. 3, 19; Me. 4, 3, 4; Mich. S. C, Tenn., Tex., Wash., W. Va., Wis.
4, 9; Minn. 4, 4; Miss. 55; Mo. 4, 17; * Miss.
Mon. 5, 11 ; N. D. 48; Neb. 3, 7; Nev. « Ariz., Mich., Vt.
4,6: N. J. 4,4,3; O. 2, 8 ; Okla. 5, 30 ; « Ariz., Mich.
Ore. 4, 15; Pa. 2, II; R.I. 4, 7; S. C. ^ Ala. 54; Ark.; Col.; Mon.; N.
3, 12; Tenn. 2, 12; Tex. 3, 11; Utah D. 2, 38; Okla. 5, 19; Pa.; Wy. See
6, 10; Va. 47; Wash. 2, 9; W. Va. 6, §§ 206, 210.
25; Wis. 4,8; Wy. 3, 12. In many of « Ala. ; Ark. ; Ariz. *1120; Col.
these States (N. J., Pa., O., Ind., lo., Ct. ; Del.; Fla.; 111.; Ind.; lo. ; Ky.
Minn., Va., Ky., Tenn., Ark., Tex., La. ; Md. ; Me. ; Minn. ; Miss. ; Mo.
Okla., R. L, Ore., Col., S. C, Ga., Mon.; N. D. ; N. H. 2, 21, 32; Nev.
Ala., Mon., N. D., Wy.) the provision N. J.; O. ; Okla.; Ore.; Pa.; R. I.
is ambiguously worded, and so in U. S. S. C. ; Tenn.; Tex.; L^tah; Va.
C. 1,5, (2) ; by custom, however, "two- Wash. ; W. Va. ; Wis. ; Wy.
thirds of the house " should be so inter- * Ariz. ; Fla. 3, 9 ; Ga. 3,7,2; Ky. ;
preted. In a few it is definitely stated Mass. 2, 1, 3, 10-11 ; Me. 4, 3, 6; Miss,
to mean members present (Fla., Miss.), 58; N. D. ; Nev. 4, 7 ; N. H. ; S. C.
and such is general parliamentary 3, 13; W. Va. 6, 26; and tliis is the
law, in vetoes (§ 304) and impeach- proper rule,
ments ; and so by the practice of the '" Ky. 39 ; Okla. 5, 42.
U. S. Senate, even on votes of " Mass. ; Me. ; N. D. ; N. H. ; S. C. ;
expulsion. It is one of the inherent Tenn. 2, 14.
powers of a Legislature to expel a *- Mass., N. D.
member, or punish any person for con- " La. 26 ; Md. 2, 23 ; Mo. ; N. H,
tempt, but in the Wilkes case it was " 111. ; Ind. 4, 15 ; Minn. 4, 18 ;
established that a member thus ex- Neb. ; Ore. 4, 16.
pelled is not thereby disqualified. " Ala., Col., Mon., Wash., Wis., Wy.
240 THE STATE CONSTITUTIONS [BOOK III
Not over forty-ciglit hours.' Tlie house may commit any person to gaol for crime, until duly released by law.^ And it docs not bar a criminal prosecution.^ Bribery offered or ell'ected of a member of the legislature may be punished bv it directly.'' For punishment for contempt, see above.
§ 277. 2'ime of Session. — There is in three States a general pro- vision of the Constitution that the Legislature should be frequently convened.^ The regular session of the Legislature is, in six States, once each year." Li most States and most territories once every two years ; thus in the even year,' and in others in the odd year ; ^ but often there are adjourned sessions held in the intervening year; in Pennsylvania, such adjourned sessions are, however, prohibited. In a few Southern States only once in four years. ^
Beginning on the first Monday in January ; '° the first Tuesday ; " the first Wednesday in January; '- the first Monday after January 1,'^ the Wednesday after the first Monday in January; '* the second Wednesday in January ; '^ the first Tuesday after the first Monday in January; '^ the first Thursday after the first Monday in January; " the second Tuesday in January; '^ the third Monday in January; " the first Wednesday of October ; ^^ the second Monday in January ; ^^ the second Monday in May ; " the fourth W^ednesday in June ; ^^ the Tuesday after first Monday in April.-*
Extra sessions on extraordinary occasions may be convened by the
1 Tex. 3, 15. 6, 2 ; W. Va. 6, 18 ; Wash. 2, 12 ;
' Md. 3, 24. 1891, Wis. 20* ; 4, 11 ; 99* Wy. 3, .5.
3 Mon., N. D., Okla., Wy. » Ala. 48; Miss. 36. See also § 203.
* Ky., Mon., N. D., Wy. Beginning in 1903 (Ala.) 1892 (Miss.) ;
* Mass. 1, 22 ; Md. Decln. of Rts. 12 ; and there is a " special session " in 1894 S. C. 1, 3. and every four years thereafter (Miss.).
* Ga. 1891, p. 55; Mass. Amt. 10; '" Mon., O., Tenn.
N. J. 4, 1, 3; N. Y. 10, 6; R. I. Amt. " Del., Neb., Pa., R. I.
XL; S. C. 3, 9. '^ Col., Mass., Me., Mich., N. Y.,
7 Ky. 36; La. 23; Md. 3, 14; Miss. N. H. So, after Jan. 1, Md., Mo.
36; Mon. 5, 6; N. D. 53, 55; O. 2, 25; " Ida., Cal.
Okla. 5, 27; Va. 46; Vt. Amt. 24, 1. " Ct., 111., N. C.
« Ark.* 1875, 39, 1; 3520; Ariz.* '^ Va., W. Va., Wis.
39; Cal. 4, 2; Col. 5, 7; Ct. Amt. 27, '" Ky., Minn., N. D., S. D., Miss.
1899, p. 1153; Del. 2, 4 ; Fla. 3, 2 ; Ida. Okla.
3, 8 ; III. 4, 9 ; Ind. 4, 9 ; lo. 3, 2 ; Amt. " Ind.
1900; Kan. 2, 25; Me. 4, 3, 1; Amt. »« Ala., Kan., N. J., S. C, Wy., Tex. 23 ; Mich. 4, 33 ; Minn. 3, 4 ; 4, 1 ; Mo. »« Nev., N. M.,* Ariz.*
4, 20 ; N. C. 2, 2 ; Neb. 3, 3 & 7 ; Nev. ^o yt.
4, 2; 17, 12; N. H. 2, 32; N. Y. 1898, ^i Wash., Ark., lo., Ore., Utah.
p. 1550; N. D. 55; N. M., U. S. 1896, ■' La.
252 ; Ore.* 2371 ; Pa. 2, 4 ; S. D. 3, " Ga. 1890, p. 57.
2 & 7; Tenn. 2, 8; Tex. 3, 5; Utah ^* Fla.
PART II] POLITICAL PROVISIONS 241
governor.* But in the newer States the Legislature so called may only legislate on the subject specified in the proclamation.^ So, in two, the governor may call the Legislature together sooner than the time to which it was adjourned or prorogued, if necessity require.^
No session can extend beyond the term of forty,* forty-five,^ fifty,*' sixty,^ sixty-one,^ seventy-five,^ or ninety days.'" It must be dissolved by the governor if necessary, seven days before the first Wednesday of January." So, in others, no member will be paid, or paid full rates, for more than a session of seventy-five days,*^ of seventy days,*^ of sixty days,** of forty days,*^ or by extra ses- sion, thirty days.*® And the session may be continued for thirty davs beyond the time so above limited, upon concurrence of two thirds " or three fifths *^ of the members. Unless organization is effected within four days after a quorum is secured, they get no pay.'^
§ 278. Adjournment. — By the Constitutions of all States, neither house can adjourn without the consent of the other for more than three days,-" or than two days,-* nor without such consent, to
1 Ala. 122 ; Ark. 6, 19 ; Cal. 5, 9 ; » Ind. 4, 29.
Col. 4, 9 ; Ct. 3, 2 ; Del. 3, 16 ; Fla. 4, » Col. 5, 6.
8; Ga. 5, 1, 13; Ida. 4, 9; 111. 5, 8; '" Col. Amt. 3; Md. 3, 15; Minn.
Ind.; Id. 4, 11; Kan. 1, 5; Ky. 80; Amt. 1889, 1, 2.
La. 75 ; Mass. Amt. 10 ; Md. 2, 16 ; ** N. H. 2, 3.
Me. 5, 1, 13; Mich. 5, 7; Minn. 5, 4 ; '^ ^enn. 2, 23.
Miss. 36; Mo. 5, 9; Mon. 7, 11 ; N. C. '^ Mo. 4, 16.
3, 9; N. D. 75; Neb. 5, 8;-Nev. 5, 9; " Cal. 4, 2; Del. 2, 15; Ida. 3, 23;
N. H. 2, 49; N. J. 5, 6; N. Y. 4, 4; Nev. 1891, 11; R. I. Amt. 11 (1900,
O. 3, 8 ; Okla. 6, 7 ; Ore. 5, 12 ; Pa. 4, p. 146) ; Tex. 3, 24 ; Va.
12; R. I. 7, 7; S. C. 4, 16; S. D. 4, 4; '^ Ore. 4, 29; S. C.
Tenn. 3, 9 ; Tex. 4, 8 ; Utah 7, 6 ; Va. '« La., Miss., Neb., S. C, Utah., Va. ;
73; Vt. 2, 11; Wash. 3, 7; W. Va. 6, or twenty (Fla.).
19; Wis. 5, 4; Wy. 4, 4; U. S. R. " Ga.
S. 1923; 1874, 388 (Territories). But '« Va.
no such extraordinary session can be >" Ida. 3, 10. So, only $2 a day after
called in the Territories without the ap- 60 days (Okla. 5, 21).
proval of the President of the United ^o ^i^. 58; Ariz.* 1113; Ark. 5, 28
States ; so, it must be on appUcation Cal. 4, 14 ; Col. 5, 15 ; Del. 2, 12 ; Fla
of three fifths of the elected mem- 3,13; Ga. 3, 7, 24; Ida. 3, 9; Ind. 4
bers, except on extraordinary occasions 10; lo. 3, 14; Ky. 41; La. 35; Md
(W. Va.) or with advice of the Council 3, 25; Mich. 4, 12; Minn. 4, 6; Miss
(N. C). 57; Mon. 5, 14; N. D. 51; Neb. 3, 8
* Ida., Mon., Okla., Utah. Nev. 4, 15; N. J. 4, 4, 5; Okla. 5, 30 » Mass. 2, 2, 1, 5; N. H. 2, 49. Ore. 4, 11; Pa. 2, 14; S. C. 3, 21; S
* Wy. 3, 6. D. 3, 16; Tenn. 2, 16; Tex. 3, 17 « W. Va. 6, 22. Utah 6, 15; Va. 46; Vt. Amt. 3 « Ala.; Ga. 1891, p. 55. Wash. 2, 11; W. Va. 6, 23; Wis. A ^ Ark. 5, 17; Ariz.;* Col. Amt. 3; 10; Wy. 3, 15 (Sundays excepted, O.
Fla. 3, 2 ; Ky. 42 ; La. 23 ; Mon. 5, Kan. ; Minn.).
5; N. D. 56; Nev. 4, 29; S. D. 3, 6; ^i m. 4^ 10 ; Kan. 2, 10; Mass. 2, 1, Utah 6, 16; Va. 46; Wash.; Terri- tories U. S. R. S. 1852; U. S. 1881, 7.
16
2V2
THE STATE CONSTITUTIOXS
[book hi
any Other place than tliat in wliieli it may be sitting; hut in one it may adjourn to such other place by concurrent vote of two thirds present.' And in one other, every adjournment or recess taken by the Legisla- ture for more than three days has the effect of an adjournment sine dic.^
Adjournment by the Governor. — In most States, if the two houses disagree with respect to the time of adjournment, the governor may adjourn the Legislature, to such time as he think proper, not beyond the first day of the next regular session,^ or for more than ninety days,* or such time as he think proper,^ not exceeding four months.' So, if either house remain five days without a quorum.'
§ 279. The Place of Sessio)i. — The capital, in all States. But the governor may convene the Legislature elsewhere in case of war or contagious disease, etc., etc.^
Article 28. The Executive
§ 280. Duties of the Governor. — It is in most States declared to be the duty of the governor to take care that the laws are faithfully executed.* He is generally, at the commencement of each session, or from time to time, to give the Legislature information "by message of the condition of the State, and recommend such measures as he deems expedient.^" He must, in some States, present estimates, at the
2, 6; 2, 1, 3, 8; Me. 4, 3, 12; Mo. 4, 23; N. H. 2, 18 & 35; N. Y. 3, 11;
0. 2, 14; R. I. 4, 9. 1 Md.
^ Mo. 4, 21.
3 Ark. 6, 20; Cal. 5, 11 ; Col. 4, 10 Ct. 4, 7 ; Fla. 4, 10 ; 111. 5, 9 ; lo. 4, 13 Kan. 1, 6; Me. 5, 1, 13; Miss. 121 Neb. 5, 9; Nev. 5, 11; O. 3, 9. But only with assent two thirds elected members each house : Okla. 6, 14 ; R.
1. 7, 6; S. C. 4, 16; Utah 7, 7.
^ Del. 3, 16; Mass. 2, 2, 1, 6; N. H.
2. 42.
* Ga. ; Vt. ; Amt. 3.
« Ky. 81 ; Pa. 4, 12.
' Kan., O., Minn., S. C.
« Ala. 4, 8; Ky. 36, 80; La. 75; N. D. ; Okla. 6, 14 ; S. C. 3, 9.
» Ala. 120 ; Ariz.* 1089 ; Ark. 6, 7 ; Cal. 5, 7 ; Col. 4, 2 ; Ct. 4, 9 ; Del. 3, 17; Fla. 4, 6; Ga. 5, 1, 12; Ida. 4, 5;
111. 5, 6 ; Ind. 5, 10 ; lo. 4, 9 ; Kan. 1, 3; Ky. 81; La. 75; Md. 2, 9; Me. 5, 1, 12; Mich. 5, 6; Minn. 5, 4; Miss. 113; Mo. 5, 6; Mon. 7, 5; N. C. 3, 7; N. D. 75; Neb. 5, 6; Nev. 5, 7; N. J. 5, 6 ; N. Y. 4, 4 ; O. 3, 6 ; Okla. 6, 8 ; Ore. 5, 10; Pa. 4, 2 ; R. I. 7, 2; S. C. 4, 12 ; S. D. 4, 4 ; Tenn. 3, 10 ; Terri- tories U. S. R. S. 1841; Tex. 4, 10; Utah 7, 5; Va. 73; Vt. 2, 11; Wash.
3, 5; W. Va. 7, 5; Wis. 5, 4; Wy.
4, 4.
1" Ala. 123 ; Ark. 6, 8 ; Ariz.* 1091 ; Cal. 5, 10 ; Col. 4, 8 ; Ct. 4, 8 ; Del. 3, 15; Fla. 4, 9; Ga. 5, 1, 13; Ida. 4, 8; 111.5,7; Ind. 5, 13; lo. 4, 12; Kan. 1, 5; Ky. 79; La. 74; Md. 2, 19; Me.
5, 1, 9; Mich. 5, 8; Minn. 5, 4; Miss. 122; Mo. 5, 9; Mon. 7, 10; N. C. 3, 5; N. D. 75; Neb. 5, 7; Nev. 5, 10; N. J.; N. Y.; O. 3, 7 ; Okla. 6, 9; Ore. 5, 11 ; Pa. 4, 11 ; S. C. 4, 15 ; S. D. 4,
TART II]
POLITICAL TROVISIOXS
243
commencement of the session, to the Legislature of the amount of money required to be raised by taxation for all State purposes.^
§ 2S1. Powers of the Governor. — By the Constitutions of most States, the governor may require information in writing from officers of the executive department upon any subject relating to the duties of their respective officers.^ So, in a few, from all officers or managers of State institutions.^ He may, in some, require such information to be given under oath.* So, in two, any officer making a false report is guilty of perjury.* The governor and council have a negative on each other in nominations and appointments." In Massachusetts the council has only advisory power, except that it succeeds to the duties of governor if the offices of both governor and lieutenant- governor are vacant.^
§ 282. The Lieutenant-Governor, by the Constitutions of most States, succeeds to the office of governor upon the death, impeach- ment, or other disability of the latter.^ But in many (where there is no lieutenant-governor), the president of the senate succeeds the governor.^ And, after him, the speaker of the house. ^"^ In others the secretary of state succeeds (so in the territories, U. S. R. S. 1843), and after him the president of the senate." Or, in Delaware, the attorney-general, then the president of the senate fro tern-pore, then the speaker of the house. And in two, the Legislature, in case of vacancy, elects a governor.^' So, if the vacancy occurs in the first three years of the term, there is an election by the people.^^
4 ; Tenn. 3, 11 ; Tex. 4, 9 ; Utah ; Va. ; Wash. 3, 6; W.Va.7,6; Wis.; Wy.4, 4.
1 Ala.; Col.; Ida.; 111.; Mo. 5, 10; Mon. ; Neb. ; Tex. ; W. Va. 7, 6.
2 Ala. 121; Ariz.* 1088; Ark. 6, 7 Cal. 5, 6 ; Col. 4, 8 ; Ct. 4, 6 ; Del. 3 14; Fla. 4, 5; Ga. 5, 1, 18; Ida. 4, 8 III. 5, 21 ; Ind. 5, 15 ; lo. 4, 8 ; Kan. 1 4; Ky. 78; La. 73; Me. 5, 1, 10 Mich. 5, 5; Minn. 5, 4; Miss. 120 Mo. 5, 22; Mon. 7, 10; N. C. 3, 7 Neb. 5, 22; Nev. 5, 6; O. 3, 6; Okla, 6, 9 ; Ore. 5, 13 ; Pa. 4, 10 ; S. C. 4, 14 Tenn. 3, 8; Tex. 4, 24 ; Utah 7, 5; Va. 74; Wash. 3, 5; W. Va. 6, 18.
3 Ala.; Col.; Ida.; Mass. 2, 2, 1, 12; Mo.; Mon.; Neb.; N. H. 2, 56; Utah.
* Ala., Col., Ida., III., Mon., Te.x. 6 Ala., Mo.
• N. H. 2, 46.
' Mass. 2, 2, 3, 5 & 6.
« Ala. 127; Cal. 5, 16; Col. 4, 13; Ct. 4, 14; Del. 3, 20; Ida. 4, 12; 111. 5, 17 ; Ind. 5, 10 ; lo. 4, 17 ; Kan. 1, 11; Ky. 84; La. 65; Mass. 2, 2, 2, 3; Mich. 5, 12; Minn. 5, 6; Miss. 131; Mo. 5, 16; Mon. 7, 14 ; N. C. 3, 12 ; N. D. 72; Neb. 5, 16; Nev. 5, 18; N. Y.
4, 6 ; O. 3, 15 ; Okla. 6, 16 ; Pa. 4, 13 ; R. I. 7, 9; 1890, p. 146; S. C. 4, 9; S. D. 4, 6; Tex. 4, 16; Va. 78; Vt. Amt. 8; Wash. 3, 10; Wis. 5, 7. See also § 202.
» Ala.; Ark. 5, 18; 6, 12; Del. 3, 14; Fla. 4, 19; Ga. 5, 1, 8; Md. 2, 7; Me. 5, 1, 14; N. H. 2, 48; N. J.
5, 12; Tenn. 3, 12; W. Va. 7, 16.
" Ala. ; Ark. 6, 13 ; Fla. ; Ga. ; Me. ; N. J.; Tenn.; W. Va.
" Del.; N. D. ; Ore. 5, 8; S. D.; Utah 7, 11; Wy. 4, 6.
'■ Md. 2, 6 ; W. Va.
" W. Va.
244 THE STATE CONSTITUTIONS [BOOK III
So, if ill the first two years of the term.' So, if a year of the term remains unexpired,^ So, if sixty days before the next election.*
The Heutenant-governor is in most States president of the senate, with a casting vote.' And in one, lie is a nieinber of the council, and president thereof when the governor's chair is vacant.'' But he cannot grant pardons or reprieves, nor can he command the militia, except as lieutenant-general, but by advice of the senate."
Upon the death, inipeachinent, or inability of the lieutenant- governor or secretary of State also, the temporary president of the senate is, in most States, governor pro tempore.'' But in one, the council, or a majority of it, has the power of the governor.^ And in others, the secretary of state succeeds.^ And so, by succession, in several, the speaker of the house succeeds the president of the senate.'" And the secretary of state the speaker." In Rhode Island the Legislature elects from the persons having the highest votes, as in § 232. '^
Article 29. The INIilitia
§ 290. General Provisions. — In four State Constitutions it is declared that every member of society is bound to yield his personal service, or an equivalent thereto, to the State for the defence of life, liberty, and property.'^ But in many States it is declared that a person conscientiously opposed to bearing arms will not be com- pelled thereto if he will pay an equivalent.'* But in a few it seems
1 Ky. 85. N. D. 31; Neb. 5, 18; Nev. ; N. Y. ;
2 Ark. 6, 14. O. 3, 17; Okla. 6, 15; Pa. 4, 14; R. I.
3 Ala. 7, 10; S. C. ; Tex. 4, 17; Utah. * Ala. 117 ; Cal. 5, 15 ; 1897, p. 646; » Mass. 2, 2, 2, 6.
Col. 4, 14 ; Ct. 4, 13 ; Del. 3, 19 ; Ida. » Ky. 87 ; La. ; N. D. ; S. D. ; Wash. ;
4,13; 111.5,18; Ind. 5, 21 ; lo. 4, 18; Wis.
Kan. 1, 12; Ky. 83; La. 67; Mich. '" Cal., Col., Ida., 111., lo., Kan.,
5, 14; Minn. 5, 6; Miss. 129; Mo. 5, Miss., Mo., Mon., Neb., N. H., N. Y.,
15 ; Mon. 7, 15 ; N. C. 3, 11 ; N. D. 77 ; O., Okla.
Neb. 5, 17 ; Nev. 5, 17 ; N. Y. 4, 7 ; O. » Del.
3, 16; Okla. 6, 15; Pa. 4, 4; S. C. 4, >2 j^ j ^^^ n
5 & 6; S. D. 4, 7; Tex. 4, 16; Va. » Mass. 1, 10; N. H. 1, 12; Ore. 1,
79; Vt. Amt. 6; Wash. 3, 16; Wis. 27; Vt. 1, 9.
5, 8. " Col. 17, 5; Ida. 14, 1; lU. 12, 6
« Mass. 2, 2, 2, 2. Ind. 12, 6 ; lo. 6, 2 ; Ky. 220 ; La,
« Vt. 300 ; Me. 7, 5 ; Mo. 13, 1 ; N. D. 188
' Cal.; Ct. 4, 15; Col. 4, 15; Ida. N. H. 1, 13; Ore. 10, 2; S. C. 13, 1
4, 14; 111. 5, 19; lo. 4, 19; Kan. 1, 13; Tenn. 1, 28; 8, 3; Tex. 16, 47; Vt. Ky. 85; La. 68; Mich. 5, 13; Minn.; Wash. 10, 6.
Miss.; Mo. 5, 17; Mon. 7, 16; N. C;
PART II] POLITICAL PROVISIONS 245
that he may be compelled to bear arms in time of war, as the exemp- tion applies only to militia duty in time of peacc.^ " Upon such terms as may be prescribed by law," he will be relieved from such service.^ And in Maine, Quakers and Shakers and clergymen are excused. In several, the militia is declared the proper and natural defence of a free State.^
§ 291. The Militia consists in most States of all able-bodied male persons (citizens, lo., Mich., or inhabitants, Fla., N. Y., and Ore.) between the ages of eighteen and forty-five,* twenty-one and forty-five,^ or twenty-one and forty." In a few, they must in addition be white.'' In others, the whole matter (otherwise) is left to the Legislature to be determined by law.^ But there must always be 10,000 men fully equipped, disciplined and ready for action.® The Legislature shall provide for maintaining an organized militia con- forming as nearly as practicable to the regulation for the government of the United States army.^** "Not incompatible with the Constitu- tion or laws of the United States." "
§ 292. Civil Power. — The military is, in all States except New York, declared forever subordinate to the civil power.*^
» Col. ; Ida. 15, 7 ; 111. ; lo. ; N. D. ; " N. D. 189 ; Wash. 10, 2.
Ore. ; S. D. ; Wash. 10, 6. " Ala. 27 ; Ark. 2, 27 ; Ariz.* Bill of
• Fla. 14, 1; Kan. 8, 1; Mich. 17, Rights 3; Cal. 1, 12; Col. 2, 22; Ct. 1 ; Mo. ; N. C. 12, 1 ; N. Y. 11, 1 ; Wy. 1, 18; Del. 1, 17 ; Fla. Decln. Rts. 21 ; 17, 1. Ga. 1, 1, 19; Ida. 1, 12; 111. 2, 15;
^ Ga. 10, 1, 1; La. 6; Md. Decln. Ind. 1, 33; lo. 1, 14; Kan. Bill of
of Rts. 28; N. C. 1, 24; N. H. 1, 24; Rts. 4; Ky. 222; La. 14, 173; Mass.
S. C. 1,26; Tenn. 1,24; Va. 13. 1, 17; Md. Decln. of Rts. 30; Me. 1
* Ala.; Ark. 11, 1; Col. 17, 1; Fla. 17; Mich. 18, 8; Minn. 1, 14; Miss. 9
14, 1; Ida. 14, 1; 111. 12, 1; Ind. 12, Mo. 2, 27; Mon. 3, 22; N. C. 1, 24
1; lo. 6, 1; Ky. 219; Mich. 17, 1; N. D. 12; Neb. 1, 17; Nev. 1, 11
Miss. 214; Mo. 13, 1; Mon. 14, 1; N. H. 1, 26; N. J. 1, 12; N. M.* 1851
N. D. 188; O. 9, 1; Ore. 10, 1; S. C. July 12, § 16; O. 1, 4; Okla. 2, 14
13, 1 ; S. D. 15, 1 ; Utah 15, 1 ; Wash. Ore. 1, 27 ; Pa. 1, 22 ; R. I. 1, 18 ; S. C
10, 1; Wy. 17, 1. 1, 26; S. D. 6, 16; Tenn. 1, 24; Tex
« Kan. 8, 1. 1, 24; Utah 1, 20; Va. 13; Vt. 1, 16
• N. C. 12, 1. Wash. 1, 18; W. Va. 3, 12; Wis. 1, 20 ^ Ind., Kan., O. Wy. 1, 25. Compare Eng. Stat. 1 W. &
M. Sess. 2 ; also Declaration of Inde- pendence. See § 240, note. Martial law and courts martial are no part of the common law of England. It was complained of in the Petition of Riglit, but is not expressly forbidden in the
Ala. 271 ; Cal. 8, 1 ; Ga. 10, 1, 1 Ida. 14, 2; Ky. 220; La.; Md. 9, 1 Minn. 12, 1; Mon. 14, 1; Miss. 215 Neb. 13, 1; Nev. 12, 1; N. D. 190 N. J. 7, 1, 1 ; N. Y. 11, 2 ; Okla. 5, 40 Pa. 11, 1; S. D. 15, 2; Te.x. 16, 46
Wis. 4, 29. Bill of Rights. In this country the
" N. Y. 11, 3. Federal Constitution makes no specific
*" Ida. 14, 2; Ky. 221; Mon. 14, mention of it, but it is doubtless for-
2 ; S. D. 15, 2-3 ; Utah 15, 2 ; Wy. bidden by the ordinary constitutional
17, 2. provisions requiring due process of law
246 TIIF, STATE CONSTITUTIONS [BOOK III
§ 293. Martial Law is in one State declared inconsistent witli a free government and is not "confided" to any department of the State government.' And in several, no person can be subjected to martial law except the army, navy, or mihtia in actual service.- In one, martial law is to be employed only when occasion necessarily requires it.^ But in three, it seems any person may be subjected to martial law by authority of the Legislature.''
§ 294. Standing Armies} — The Constitutions of most of the States provide that standing armies are dangerous to liberty and ought not to be kept up in time of peace." And in time of war the appropriation for such army cannot be for a longer term than two years,' or even one year.^ But in several, it seems standing armies may be kept up at any time with the authority of the Legislature.'
§ 295. Billeting Soldicrs.^^ — By the Constitutions of all but Vermont, New York, Wisconsin, Virginia, and Mississippi, no soldier can be quartered in any house without the consent of the owner, except in time of war; and then only (in all these States except Louisiana) in the manner by law prescribed."
(Amts. 5 and 14). When so-called pline, wliich are also contrary to the martial law is enforced at the will of common law. Hence the Parliament the commanding officer it will not, in has to be summoned once a year." ordinary cases, prevent the person tried Anson, Law and Customs of the Const, from being tried again at the common 1,248. Henry II. promised never to em- law ; nor uill it exempt the officers or ploy mercenary soldiers in England, soldiers carrying out orders under mar- though he kept a force of 10,000 tial law from being responsible for their Braban^ons and many Welsh and Gal- acts in the ordinary manner. At most wegians. He faithfully kept his prom- it is lawful in the enemy's country ise, but John's mercenary army, though in time of actual warfare. There is, raised to repel the French invasion of however, a New York decision to the 1213, was one of the greatest occasions effect that in that state a statute of his downfall. (1 Stubbs, 588.) pro\nding for courts martial is con- ' Ark. 2, 27; Cal. 1, 12; lo. 1, 14; stitutional. It will be noted that the Kan. Bill of Rts. 4; Ky. 22; Mass. 1, New York Constitution alone has no 17; Me. 1, 17; Minn. 1, 14; N. C. 1, provision that the mihtary is forever 24; N. D. 12; Nev. 1, 11; N. H. 1,2.5; subordinate to the civil power (see 0.1,4; Pa. 1,22; S.C.I, 26; Tenn. §292). People V. Daniel, 50 N. Y. 274. 1, 24; Va. 13; Vt. 1, 16; Wash. 1,
' Tenn. 1, 25. 31 ; W. Va. 3, 12.
=> Mass. 1, 28; Md. Decln. of Rts. ' lo., Nev. 32; Me. 1, 14; N. H. 1, 34; S. C. 1, » Ala. 27.
26 ; Tenn. 1, 25 ; Vt. 1, 17 ; W. Va. 3, » Ala. ; Del. ; Ky. ; Mass. ; Ud.
12. Decln. of Rts. 29 ; Me. ; N. H. ; Pa. ;
3 R. I. 1, 18. S. C.
* Mass. ; N. H. ; S. C. "> U. S. C. Amt. 3.
« " The existence of a standing army " Ala. 28 ; Ark. 2, 27 ; Ariz. B. Rts.
in time of peace is contrary to law. It 4; Cal. 1, 12; Col. 2, 22; Ct. 1, 19;
is legahzed each year for a year by the Del. 1, 18; Fla. 16, 23; Ga. 1, 1, 19;
Army Act; as are the punishments and Ida. 1,12; 111.2,16; Ind. 1,34; lo. 1,
procedure for the maintenance of disci- 15 ; Kan. Bill of Rts. 14 ; Ky. 22 ; La.
PART II]
POLITICAL PROVISIONS
247
§ 296. Privileges of Militia. — Members of the militia are, by the Constitutions of several States privileged from arrest during their attendance at musters and elections and in going to and return- ing from them, except in cases of treason, felony, and breach of the peace.^ And in several, no person can be imprisoned for a militia fine in time of peace.^
§ 297. The Governor is Commander-in-Chief of the militia (and army and navy of the State), by the Constitutions of all States.^ And so, in the territories, by U. S. R. S., 1841. Except, in many, when they are called into the United States service.^ But he is not, in a few, to command in person in the field unless he is advised to do so by resolution of the Legislature.^ And he is not, without legislative authority or their consent, to lead or order the militia out of the State.'' Officers are to be appointed as by law.'' Captains and subalterns are to be nominated by the field officers and appointed by the governor and council.* No officer can be removed except by court martial or upon address of both houses to the governor." The officers appoint their respective aids and the captains and sub- alterns their non-coms.'"
§ 298. Purposes of the Militia. — The governor may, by the Constitutions of most States, call out the militia to execute the laws, to suppress insurrection, and to repel invasion." So, in Louisiana,
173 ; Mass. 1, 27 ; Md. Decln. of Rts. 31 ; Me. 1, 18 ; Mich. 18, 9 ; Mo. 2, 27 ; Mon. 3, 22; N. C. 1, 36; N. D. 12; Neb. 1, 18; Nev. 1, 12; N. H. 1, 27; N. J. 1, 13; O. 1, 13; Okla. 2, 14; Ore. 1, 28 ; Pa. 1, 23 ; R. I. 1, 19 ; S. C. 1, 26; S. D. 6, 16; Tenn. 1, 27; Tex. 1, 25; Utah 1, 20; Wash. 1, 31; W. Va. 3, 12; Wy. 1, 25.
1 Ala. 275; Ark. 11, 3; 111. 12, 4; Miss. 220; Mo. 13, 5; N. D. 193; S. C. 13,2; S. D. 15, 5; Wash. 10,5.
- Cal. 1, 15; lo. 1, 19; Mich. 6, 33; Nev. 1, 14; N. J. 1, 17.
" Ala. 131; Ark. 6, 6; Cal. 5, 5; Col. 4, 5; Ct. 4, 5; Del. 3, 8; Fla. 4, 4; Ga. 5, 1, 11; Ida. 4, 4; 111. 5, 14; Ind. 5, 12 ; lo. 4, 7 ; Kan. 8, 4 ; Ky. 75 ; La. 183, 73 ; Mass. 2, 2,1,7; Md. 2, 8 ; Me. 5, 1, 7; Mich. 5, 4; Minn. 5, 4; Miss. 119, 219; Mo. 5, 7; Mon. 7, 6; N. C. 3, 8 ; N. D. 75 ; Neb. 5, 14 ; Nev. 5,5; N. H. 2, 50; N.J. 5, 6; N. Y. 11, 6 ; O. 3, 10 ; Okla. 6, 6 ; Ore. 5, 9 ; Pa. 4, 7; R. I. 7, 3; S. C. 4, 10; S. D. 4,
4 ; Tenn. 3, 5 ; Tex. 4, 7 ; Utah 7, 4 ; Va. 73 ; Vt. 2, 11 ; Wash. 3, 8 ; W. Va. 7, 12; Wis. 5, 4; Wy. 4, 4; 17, 5.
* Ala., Ark., Col., Ct., Del., Fla., Ida., 111., Ky., La., Me., Miss., Mo., Mon., N. C, N. D., Neb., Nev., O., Okla., Pa., R. I., S. C, S. D., Tenn., Tex., Utah, Wash., W. Va., Wy.
« Ala., Ky., Md., Mo.
* Mass., Me., Mon., N. H.
' Ida.; N. D. 191; Wash. 10, 2; Wy. 17, 3. Or elected (Ala. 271).
« N. H. 2, 47.
9 N. H. 2, 52.
" N. H. 2, 53.
" Ala. 131; Ark. 11, 4; Cal. 8, 1; Col. 4, 5; Fla. 14, 4; Ida. 4, 4; 111. 5, 14 ; Ind. 5, 12 ; Kan. 8, 4 ; La. 301 ; Md. 2, 8 ; Mich. 5, 4 ; Minn. 5, 4 ; Miss. 217 ; Mo. 5, 7 ; Mon. 7, 6 ; N. C. 12, 3 ; N. D. ; Neb. 5, 14 ; Nev. 12, 2 ; Okla. 6, 6; Ore. 5, 9; S. C. 13, 3; S. D. ; Tex. 4, 7; Utah; Va. 73; Wash. 10, 2; W. Va. 7, 12; Wy. 17,5.
248 THE STATE CONSTITUTIONS [BOOK III
"when the pubh'c service requires it." But so, in three, only when the Legishiture deehire l)y law that the puhHc safety re(|uires it.' So, in Tennessee, only witii special enactuient of the Legislature; or in Texas, to protect the frontier, or the puhlic health.- And, in five, to preserve the public peace.^
§ 299. Miscellaneous Provisions. — (See also § 63.) The Cali- fornia Constitution provides that all military organizations receiving State support should carry under arms no device or flag of any nation other than the United States or State flag.^ The legislative assembly shall provide by law for the establishment of volunteer organizations of the several arms of the service, which shall be classed as active militia, and no other organized body of men shall be permitted to perform military duty in this State, except the army of the United States, without the proclamation of the governor of the State.^
« Mass. 2, 2, 1, 7 ; N. H. 2, 50 ; Tenn. ^ Ark., Fla., La., S. C, Wy. 3, 5. " Cal. 8, 2; Ida. 14, 5; Wy. 17, 4.
2 Okla. « N. D. 190.
PART III]
LEGISLATION
249
Paet III
LEGISLATION Article 30. Process of Legislation
§ 300. Bills. — (See also §§ 201, 310.) By the Constitutions of many States, no law can be passed except by bill ; ^ and bills may generally originate in either house of the Legislature,^ but they may be amended, altered, or rejected in the other house.^ (The same is probably implied in all other States; see § 303.) But not, in some States, so as to change the original purpose of the bill,'' nor upon or after the last reading.^
§ 301. Form of Bills. — The Constitutions of most States pre- scribe that no law shall relate to more than one subject, and that this shall be expressed in the title," indicating clearly the subject matter.^ Except, in a few, general appropriation bills,** and in two,
> Ala. 61; Ark. 5, 21; Cal. 4, 15; Col. 5, 17 ; Ida. 3, 15 ; Ind. 4, 1 ; Kan.
2, 20 ; Md. 3, 29 ; Miss. 60 ; Mo. 4, 25 ; Mon. 5, 19; N. D. 58; Neb. 3, 10; Nev. 4, 23; N. Y. 3, 14; Pa. 3, 1; Tex. 3, 30; Va. 50; Wash. 2, 18; Wis. 4, 17 ; Wy. 3, 20. After the Con- quest EngUsh legislation was based on petitions addressed to the king by the House of Commons ; this resulted in their not always getting the legislation they desired, so that it soon became the practice to accompany the petition with the precise law asked for. Later, laws were made by Ordinances or Orders in Council without the consent of Parliament. (T.-L. p. 249.)
■ Ariz.* 1114; Cal; Fla. 3, 14; Ida. 3, 14 ; 111. 4, 12 ; Ind. 4, 17 ; lo.
3, 15 ; Kan. 2, 12 ; Md. 3, 27 ; Me. 4, 3, 9; Mich. 4, 13; Miss. 59; Mo. 4, 26; N. D. 57 ; Neb. 3, 9 ; Nev. 4, 16 ; N. Y. 3,13; 0.2,15; Ore. 4, 18; S. C. 3, 15; S. D. 3, 20; Tenn. 2, 17; Tex. 3, 31; Va.; W. Va. 6, 28; Vt. Amt. 3;
Wash. 2, 20 ; Wis. 4, 19. See, however, §309.
3 Ala., Ark., Cal., Col., Fla., Ida., 111., Ind., lo., Kan., Md., Me., Miss., Mo., N. D., Neb., Nev., N. Y., O., Ore., Pa., S. C, S. D., Tenn., Tex., Va., Wash., W. Va., Wis.
* Ala. ; Ark. ; Col. ; Mo. ; N. D. 58 ; Pa. ; Tex. ; Wash. 2, 38 ; Wy. 3, 20.
« N. Y.
« Ala. 45; Cal. 4, 24; Col. 5, 21; Del. 2, 16; Fla. 3, 16; Ga. 3, 7, 8; Ida. 3, 16 ; 111. 4, 13 ; Ind. 4, 19 ; lo. 3, 29; Kan. 2, 16; Ky. 51; La. 31; Md. 3, 29 ; Mich. 4, 20 ; Minn. 4, 27 ; Mo. 4. 28; Mon. 5, 23; N. D. 61 ; Neb. 3, 11; Nev. 4, 17; N. J. 4, 7, 4; O. 3, 16; Okla. 5, 57; Ore. 4, 20 ; Pa. 3, 3; S. C. 3, 17; S. D. 3, 21; Tenn. 2, 17; Tex. 3, 35; Utah 6, 23 ; Va. 52; Wash. 2, 19; W. Va. 6,30; Wy. 3, 24.
' Miss. 71.
» Ala., Col., Del., Mo., Mon., Okla., Pa., Te.x., Utah, Wy. See § 311.
250
THE STATE CONSTITUTIONS
[book III
the principal provision only applies to private or local hills.' But, in several States, if there are other subjects in the hill not embraced in the title, the bill is nevertheless f^ood pro tanto as to those that are.- By the Constitutions ot" three States, every act is to be plainly worded, avoiding, so far as possible, the use of technical terms.^ And by that of Louisiana, the Legislature shall never adopt any system or code of laws by general reference to such cotle, but shall in all cases recite at length the provisions enacted (compare § SO?).* Every statute is a public law unless otherwise declared.^
§ 302. Passage of Bills.^ — By the Constitutions of some States, no bill shall be considered for passage unless it has first been re- ferred to a committeee and reported therefrom.^ And in Texas, no bill shall be passed unless so referred and reported at least three days before the final adjournment of the Legislature. Except if the committee refuses or fails to report a bill "within a reasonable time" any member may call it up.^
Reading of Bills. — Every bill must ordinarily, by the Constitu- tions of most States, be read by sections on three different days in each house of the Legislature.^ But in case of urgency, either house
1 N. Y. 3, 16; Wis. 4, 18. - Cal., Col., Ida., III., Ind., lo., Mon., N. D., Ore., Tex., W. Va., Wy.
3 Ida. 3, 17; Ind. 4, 20; Ore. 4, 21.
* La. 33.
« Del. 2, 23.
* While these directions as to the method of passing laws are manda- tory in form, they are binding only on the conscience of the legislative body. The courts, in the v«ry nature of things, are obliged to accept the enactment of the law as conclusive proof of the com- pliance of the Legislature with the necessary formalities, and cannot con- sider questions of fact relative to the regularity of procedure. It has been expressly decided that such matters will not be inquired into by the courts. In Kilgore v. Magee, 85 Pa. 401 (1877), it was contended that an act of Assembly had been so altered during its passage as to change its original purpose, and also that the required forms had been dis- regarded. As to this the court said : "In regard to the legislation required by the constitution, we think the sub- ject is not within the pale of judicial inquiry. So far as the duty and the
consciences of the members of the Leg- islature are involved, the law is manda- tory. They are bound by their oatlis to obey the constitutional mode of proceeding, and any intentional disre- gard is a breach of duty and a violation of their oaths. But when a law has been passed and approved and certi- fied in due form, it is no part of the duty of the judiciary to go behind the law as duly certified to inquire into the observance of form in its passage. The presumption applies to the act of passing the law, that applies generally to the proceedings of any body whose sole duty is to deal with the subject. The presumption in favor of regularity is essential to the peace and order of the State." T. R. White, The Consti- tution of Pennsylvania, p. 212.
' Ala. 62 ; Col. 5, 20 ; Ky. 46 ; La. 39 ; Miss. 74 ; Mo. 4, 27 ; Mon. 5, 22 ; Pa. 3, 2; Tex. 3, 37; Va. 50; Wy. 3, 23.
« Ky.
» Ala. 63; Ark. 5, 22; Ariz.* 1117; Cal. 4, 15; Col. 5, 22; Fla. 3, 17; Ga. 3, 7, 7; Ida. 3, 15; 111. 4, 13; Ind. 4, 18; Kan. 2, 15; Ky. 46; La. 39; Md.
PAET III] LEGISLATION 251
may dispense with such rule, on a vote of four fifths of the members present/ three fourths/ two thirds/ or of a majority of those elected.* But in Minnesota and Florida, every bill must have been read at least twice at length, in order to pass either house. Provision may be made by law for reading by title only.^ And every bill, in order to become a law, must, in many States, have been read at length on its final passage," on its second reading/ its first/ or on its first and third.^ It must be printed for the use of members,'" and no amend- ment is allowed on the last reading."
Of Private or Local Bills,^^ there must, by the Constitutions of several States, be notice given ; as by thirty days' publication of the bill in the locality affected before its introduction into the legislature,'^ or in others four weeks' notice by such publication.'* In one State, the manner of notice is expressly left to the Legislature to determine.'^ All private or local bills must, in Georgia, originate in the lower house, and be referred to a committee.'" There is a permanent joint committee on special private or local legislation.'^
§ 303. Voting}^ — By the Constitutions of most States no bill '^ can become a law unless on its final passage it receive in each House a vote of a majority of "each house," ^° or of the members elected.-'
3, 27; Mich. 4, 19; Minn. 4, 20; Miss. Wy. It must have been "upon their
59 ; Mo. 4, 26 ; N. C. 2, 23 ; N. D. 63 ; desks in its final form three calendar
Neb. 3, 11; Nev. 4, 18; N. J. 4, 4, 6; legislative days " (N. Y.).
O. 3, 16; Okla. 5, 34; Ore. 4, 19; Pa. '' N. Y.
3, 4 ; S. C. 3, 18 ; S. D. 3, 17 ; Tenn. 2, '^ See also §§ 395, 501.
18 ; Tex. 3, 32 ; Utah ; Va. 50 ; W. Va. " Ark. 5, 26 ; Ga. 3, 7, 16 ; La. 50 ;
6, 29. It seems the readings need not Mo. 4, 54 ; N. C. 2, 12 ; Okla. (four
be on different days (Mich.) ; and the weeks) ; Pa. 3, 8; Tex. 3, 57 (60 days) ;
first two may be on the same day (N. Fla. 3, 21.
D., S. D.). '* Ala. 106; Okla. 5, 32.
' Tex., Va., W. Va. »^ N. J. 4, 7, 9.
2 O. '« Ga. 3, 7, 15.
3 Ark., Cal., Fla., Ida., Ind., Kan., '' Miss. 89; Va. 51.
Md. (of the members elected), Minn., *^ Notes. Whether by ballot or not,
Miss., Nev., Okla., Ore. But only so see § 231. See also § 314.
far as to allow all three readings on the "' So, also, of joint resolutions (Kan.,
same day (Ark.). Md.).
* Ky. 20 Ala. 63 ; Ark. 5, 22.
" S. C. So on the first reading =' Cal. 4, 15; Col. 5, 22; Del 2, 10;
(Fla.). Ga. 3, 7, 14; 111.4,12; Ind. 4, 25; lo.
« Ala.; Cal.; Fla.; Ida.; Ind.; lo. 3, 17; Kan. 2, 13; La. 39, 40; Md. 3,
3, 17; Kan.; Mich.; Miss.; Nev.; N. 28; Mich. 4, 19; Minn. 4, 13; Mo. 4,
Y. (implied) 3, 15; Ore.; W. Va. 31; N. D. 65; Neb. 3, 10; Nev. 4, 18;
' Fla., S. C. N. J. 4, 4, 6; N. Y. 3, 15; O. 2, 9;
« Ky. Okla. 5, 34 ; Ore. 4, 25 ; Pa. 3,4; S. D.
» N. D., S. D. 3, 18; Tenn. 2, 18; Utah 6, 22; Wash.
" Ky. ; Ida. 3, 15 ; Men. ; N. Y. ; 2, 22 ; Wy. 3, 25.
252 THE STATE CONSTITUTIONS [rOOK III
In otliors, of a majority of t\\v members present,' and this would be implied in States where the Constitution is silent, as in the United States Congress. In two, a majority vote including two fifths of the members elected. -
The names of the members so voting for or against a bill on its final passage must usually be entered in the journals.^
In many States, a member who has a personal or private interest in any measure or bill, proposed or pending, must disclose the fact to the house of which he is a member, and cannot vote thereon.'*
All votes on the final passage of any measure shall be subject to reconsideration for at least one whole legislative day, and no motion to reconsider such vote shall be disposed of adversely on the day on which the original vote was taken, except on the last day of the session.^
§ 304. Veto Power. — In all States but Rhode Island and North Carolina, and in the territories " the Constitution provides that every bill or every joint or concurrent resolution, except for adjournment,^ passed by the legislature shall be presented to the governor before it becomes a law; and if he approves he is to sign it.^ Except in Missouri, resolutions for amending the Constitution. The governor may generally veto a bill, by returning it with his objections to the house in which it originated,^ or in Kansas, to the house of representatives. It will then become a law, by an ordinary ma-
' Ariz.* 1117; Fla. 3, 17; Ida. 3, « Ala. 125; Ark. 6, 15; Cal. 4, 16;
15; Mon. 5, 24. Col. 4, 11; Ct. 4, 12; Del. 3, 18; Fla.
2 Ky. 47; Va. 50. 3, 28; Ga. 5, 1, 17; Ida. 4, 10; 111. 5,
» Ala. ; Ark. ; Ariz.* ; Cal. ; Col. ; 16 ; Ind. 5, 14 ; lo. 3, 16 ; Kan. 2, 14 ;
Del.; Fla.; Ga. ; Ida.; 111.; lo. ; Ky. 88; La. 41, 76; Mass. 2, 1, 1, 2;
Kan. ; Ky. 46 ; La. ; Md. ; Mich. ; Md. 2, 17 ; Amt. 1890, 394 ; Me. 4, 3,
Minn.; Mo.; Mon.; N. D. ; Neb.; 2; Mich. 4, 14 ; Minn. 4, 11; Miss. 72;
Nev. ; N. J. ; N. Y. ; O. ; Okla. ; Pa. ; Mo. 4, 39 ; Mon. 7, 12 ; N. D. 79 ; Neb.
S. D.; Tenn. 2, 21; "By yeas and 5, 15; Nev. 4, 35; N. H. 2, 43; N. J.
nays": Utah 6, 22; Va. ; Wy. The 5, 7; N. Y. 4, 9; O. 1902, p. 962;
same would follow in other States Okla. 6, 11; Ore. 5, 15; Pa. 4, 15; S.
from § 275. C. 4, 23 ; S. D. 4, 9 ; Tenn. 3, 18 ; Tex.
* Ala. 82 ; Col. 5, 43 ; Del. 2, 20 ; 4, 14 ; Utah 7, 8 ; Va. 76 ; Vt. Amt.
La. 52; Ky. 57; Mon. 5, 44; N. D. 11; Wash. 3, 12; W. Va. 7, 14; Wis.
43; Okla. 5, 24; Pa. 3, 33; Tex. 3, 5,10; Wy. 4, 8. And so in U. S. C. L 7.
22 ; Wash. 2, 30 ; Wy. 3, 46. See « Ala. ; Ark. ; Ariz.* ; Cal. ; Col. ;
also § 154. Ct. ; Del. ; Fla. ; Ida. ; 111. ; Ind. ;
^ Miss. 65. lo. ; Ky. ; La. ; Mass. ; Md. ; Me. ;
" U. S. R. S. 1842. Mich. ; Minn. ; Miss. ; Mo. 4, 39 ; Mon. ;
7 Ala.; Ark. 6, 16; Ariz.*; Col. 5, N. D. ; Neb.; Nev.; N. H. ; N. J.;
39 ; Del. ; Ga. ; Kan. ; Ky. 89 ; La. N. Y. ; O. ; Okla. ; Ore. ; Pa. ; S. C. ;
78 ; Mass. ; Me. ; Mich. ; Minn. 4, 12 ; S. D. ; Tenn. ; Tex. ; Utah ; Va. ; Vt. ;
Mo. 5, 14 ; Mon. 5, 40 ; Neb. ; N. H. 2, Wash. ; W. Va. ; Wis. ; Wy. ; Territories,
44; Okla.; Pa. 3, 26; S. C. ; Tenn.; U. S. R. S., 1842. Tex. 4, 15; Va. ; Wy. 3, 41.
TART III]
LEGISLATION
25;
jority vote in each house/ or a majority of the elected members of each house,' of three fifths of the elected members of each house,^ two thirds of the members present in each house * (the provision is ambiguous, however, on these points in some States, though, by custom, it means the members present '"), two thirds of the elected members of each house," two thirds of the elected members of the house which originated the bill, and of a majority in the other house,^ or two thirds of the members present, and a majority of those elected, in each house.** The votes must in this case be entered on the journal ^ by yeas and nays. Any bill may be vetoed in part.^"
§ 305. Pocketed Bills. — In most States, if a bill be kept a cer- tain length of time by the governor, without returning it, it will become a law except in case of adjournment by the Legislature ; as, three days, Sundays excepted," five days,'- six days,'^ or ten days.'* But Sundays apparently are not excepted in some States.'^ But in most States, if the Legislature adjourn before the time respectively limited above, the bill does not (except as below) become a law.'® In several States, however, the bill does become a law if not returned by the governor within five days after the adjournment," ten days after,'^ fifteen,'^ twenty,^ thirty days after; -' or, within two -^ or tlu-ee
> Ct.
2 Ala., Ark., Ind., Ky., N. J., Tenn., Vt. W. Va.
«' Del., Md., Neb.
* Fla. ; Ga. 5, 1 ; Ida. ; Mass. ; Me. ; Minn. ; Miss. ; Mon. ; N. H. ; Ore. ; S. C; S. D.; Tex.; Wash.; Wis.; Territories. So in U. S. C. I. 7.
5 Ga., Miss., S. C.
« Cal., Col., 111., Kan., La., Mich., N. D., Nev., N. Y., O. (and it must not be less than on the original passage) ; Okla., Pa., Utah, Wy.
' Mo.
» Va.
» See also § 303.
>« (See § 310.) O., Va., Wash.
'» Ct., Ind., lo., Kan., Minn., N. D., Nev., N. M., Okla., S. C, S. D., Wy., Wis.
^* Ark., Fla., Ga., Ida., La., Mass., Me., Miss., Mon., Neb., Nev., N. H., N. J., Ore., Tenn., Utah, Va., Vt., Wash., W. Va., Wy.
» Ala., Md.
" Ariz. ; Cal. ; Col. ; Del. ; lU. ;
Ky.; Mich.; Mo. 4, 40; N. Y. ; O. ; Pa.; Tex.
1^ Col., La., Mass., Mo., Pa.
i« Ala. ; Ark. ; Cal. ; Col. ; Ct. Del.; Fla.; Ga. ; 111.; Ind.; lo. : Kan. ; Ky. ; La. ; Mass. Amt. 1 ; Md. Me. ; Mich. ; Minn. ; Miss. ; Mo. 5, 12 Mon.; N. D. ; Neb.; N. H. ; N. J. N. Y. ; O. ; Okla. ; Ore. ; Pa. ; S. C. S. D. ; Tenn.; Tex.; Va. ; Vt. ; W Va. ; Wis. ; Wy. ; and the territories In Vermont it does not become a law if the Legislature adjourn within three days after its presentment to the governor.
" Ind., Ky., Neb., Ore., S. D., W. Va.
Sundays are excepted, except in Ark., Fla., 111., Ind., Neb., N. Y., S. D., W. Va. Tex.
i« Fla.*, 111., Ida., Ky., Nev., S. D., Utah, Wash.
" Mon., N. D., Wy.
2" Ark., Tex.
" Col. ; Mo. ; N. J.* 1880 ; 173 ; Pa.
"2 Ala., S. C.
254 THE STATE CONSTITUTIONS [liOOK III
(Jiivs after the next meeting of the Legislature,' or ten days after." And in California,^ the bill becomes a law // returned and signed within ten days after the adjournment, in Oklahoma fifteen days, in New York thirty days after. So, in Michigan, if returned signed within five days of the adjournment, the bill having been passed in the last five days of the session ; or, in Minnesota, if passed in the last three days of the session, if signed within three days of the adjournment; and in Iowa, if returned within thirty days after.
§ 306. General Restrictions. — By the Constitutions of several States, no new bill can be introduced into either House after the first thirty * or fifty ^ days of the session ; or, not during the last three days of the session." In others, not within the last ten days, except by a two-thirds vote of a full house.^ And in one, no bill can be passed by either house on the day prescribed for adjournment,* nor be presented to the governor within two days of the final adjourn- ment,^ nor within the last twenty days except on special message of the governor."^
By the Constitutions of three States, after a bill or resolution has been considered and defeated in either house, no bill the same in substance shall be passed during that session," or be again proposed without the consent of a majority of the house which rejected it.'- In New Mexico and Ai'izona, all laws passed by the territorial Legislature and governor must be submitted to Congress, and, if disapproved, shall be void.^^
There can be no legislation at special sessions on subjects other than those designated in the Governor's proclamation except on two-thirds vote of each House. ^* •
In other States these matters are usually provided for by the Legislature itself.
§ 307. Amendments, Repeals, and Revisions. — The Constitu- tions of many States provide that no law shall be revived, altered, or amended by reference to its title only; but the act revived, and
1 Me., Miss. « Ind. 5, 14.
=> 111. " Minn. Amt. 1889, p. 2.
* Sundays excepted. " Ga. 3, 7, 13 (without the consent
* Col. 5, 19, Amt. 1887. of two tliirds of the house which re-
* Cal. 4, 2 (unless by the consent of jected it) ; Tenn. 2, 19 ; Tex. 3, 34. two-tliirds of the members). '- La. 38.
« Ark. 5, 34 ; Miss. 67. " U. S. R. S. 1850.
" Md. 3, 27 ; Wash. 2, 36. " Ala. 76 ; Ida. ; Mon. ; Okla. ; Utah.
« Minn. 4, 22. (See § 277.)
PART III] LEGISLATION 255
sections altered or amended, sliall be enacted and published at length.' And the sections so amended shall, in tlu-ee, be repealed. ^ So, in two States, no act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said act, or shall be applicable, except by inserting it in such act.^ But in two others, all acts wliich repeal, revive, or amend former laws, shall recite in their caption or otherwise the substance of the act repealed or revived.* Amendments may not turn a general law into a special, private, or local one.^
§ 308. When Acts take Effect. — In some States the Constitution provides that laws go into effect immediately upon publication,^ or on the fortieth day after final passage,^ the sixtieth day,^ or the nine- tieth day,^ or ninety days after the end of the session ; ^° or sixty days after; " on the July 1st after the passage of the law,'- the July 4th following,'^ or the June 1st following.'* In Louisiana, on the day of publication in the place where the State journal is published ; else- where, twenty days thereafter.'^ In other States the Legislature is to prescribe the time when its acts take effect.'® In several, the Legislature are to provide for the speedy publication of laws.'^ The above rules are subject to exception in several States ** if the Act so provide." '^
No law can be in force until published.'® In three States, no law shall be passed the taking effect of which shall be made to depend upon any authority, except as provided in the Constitution.^"
But in some States the Legislature may, "in case of emergency" provide that any law shall go into effect sooner than the time re-
1 Ala. 45 ; Ark. 5, 23 ; Cal. 4, 24 ; » Col. 5, 19.
Col. 5, 24 ; Fla. 3, 16 ; Ida. 3, 18 ; 111. '" Ky. 55 ; Mich, 4, 20 ; Mo. 4, 36 ;
4,13; Ind. 4, 21; Kan. 2, 16; Ky. 51 ; Neb. 3, 24; Okla. 5, 58; Ore. 4, 28;
La. 32 ; Md. 3, 29 ; Mich. 4, 25 ; Miss. S. D. 3, 22 ; Tex. 3, 39 ; Va. 53 ; Wash.
61 ; Mo. 4, 33 & 34 ; Mon. 5, 25 ; N. D. 2, 31 ; W. Va. 6, 30.
64 ; Neb. 3,11; Nev. 4, 17 ; N. J. 4, 7, '' Fla. 3, 18 ; Ida. 3, 22 ; Utah 6, 25.
4; O. 2, 16; Okla. 5, 57; Ore. 4, 22; '- 111. 4, 13; N. D. 67.
Pa. 3, 6 ; Tex. 3, 36 ; Utah 6, 22 ; Va. >' lo. 3, 26.
52; Wash. 2, 37; W. Va. 6, 30; Wy. " Md. 3, 31.
3, 26. '= La. 42.
^ Kan., Neb., O. This seems un- '" Kan. 1, 19.
necessary. " Col. 18, 8 ; lo. ; Kan. ; La. ; Mich.
3 N. J.; N. Y. 3, 17. 4, 36; Neb.; Nev. 15, 8; N. Y. 6, 23;
* Ga. 3, 7, 17 ; Tenn. 2, 17. Utah 6, 25 ; Wis.
« Va. 64. See § 394. »» Md., Miss., Ore., Tenn.
« Ind. 4, 28; Wis. 7, 21. '» Kan., Wis.
' Tenn. 2, 20. -" Ind. 1, 25; O. 2, 26; Ore. 1, 21.
« Miss. 75. But see § 309.
256
THE STATE CONSTITUTIONS
[book III
spectlvely above limited,' as by a two-thirds vote of all members elected to each house,^ a four-IH'tlis votc,^ or a majority of those elected/
No amendment to bills by one house shall be concurred in by the other, except by a vote of a majority thereof, taken by yeas and nays; and the names of those voting for and against recorded uj)()n the journals; and reports of committees of conference shall in like manner be adopted in each house. ^
"Emergency" is strictly defined in Oklahoma.®
§ 309. Referendum and Initiative. — Some States impliedly for- bid the referendum in their Constitutions (see §§ 201, 300).^ Six have adopted it: Montana, Nevada, Oklahoma, Oregon, South Dakota, and Utah ^ — all new or far western States; and in
» Col., Fla., Ida., Ind., lo., Ky., Mich., Mo., Neb., Ore., S. D., Tex., Utah, Va., Wash., W. Va.
^ Col., 111., Mich., Mo., N. D. (pres- ent). Neb., Olila., S. D., Tex., Utah, Wash., W. Va.
' Va.
* Ky.
« Miss. G2.
* "No act shall take effect until ninety days after the adjournment of tlie session at wliich it was passed, except enactments for carrying into effect provisions relating to the initia- tive and referendum, or a general ap- propriation bill, unless, in case of emergency, to be expressed in the act, the Legislature, by a vote of two-thirds of all members elected to each House, BO directs. An emergency measure shall include only such measures as are immediately necessary for the preser- vation of the public peace, health, or safety, and shall not include the grant- ing of franchises or Ucense to a corpo- ration or individual, to extend longer than one year, nor provision for the purchase or sale of real estate, nor the renting or encumbrance of real prop- erty for a longer term than one year. Emergency measures may be vetoed by the Governor, but such measures so vetoed may be passed by a three- fourths vote of each House, to be duly entered on the journal " (Okla. 3, 58).
^ "No law, except such as relates to the sale, loan, or gift of vinous,
spirituous, or malt licjuors, bridges, turnpikes, or other pubhc roads, pub- lic buildings or improvements, fencing, running at large of stock, matters per- taining to common schools, paupers, and the regulation by counties, cities, towns, or other municipaUtics of their local affairs, shall be enacted to take effect upon the approval of any other authority than the General Assembly, unless otherwise expressly provided in tliis Constitution " (Ky. 60).
* "The legislative power shall be vested in a Legislature — except that the people expressly reserve to them- selves the right to propose measures, which measures the Legislature shall enact and submit to a vote of the elec- tors of the State, and also the right to require that any laws which the Legis- lature may have enacted shall be sub- mitted to a vote of the electors of the State before going into effect (except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the State government and its existing public institutions).
"Provided, that not more than five per centum of the qualified electors of the State shall be required to invoke either the initiative or the referendum.
"This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the executive shall not be exercised as to measures referred to a vote of the
PART III]
LEGISLATION
257
Oregon the secretary of state complains that the laws adopted by
people. This section shall apply to municipalities" (S. D. 3, 1).
"The legal voters, or such fractional part thereof, of the State of Utah as may be provided by law, under such conditions and in such manner and within such time as may be provided by law, may initiate any desired legis- lation and cause the same to be sub- mitted to a vote of the people for ap- proval or rejection, or may require any law passed by the Legislature (except those laws passed by a two-thirds vote of the members elected to each house of the Legislature) to be submitted to the voters of the State before such law shall take effect.
"The legal voters or such fractional part thereof as may be provided by law, of any legal subdivision of the State, under such conditions and in such manner and within such time as may be provided by law, may ini- tiate any desired legislation and cause the same to be submitted to a vote of the people of said legal subdivision for approval or rejection, or may re- quire any law or ordinance passed by the law-making body of said legal sub- division to be submitted to the voters thereof before such law or ordinance shall take effect" (Utah 6, 1, Amt.).
"The legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representativ'es ; but the people re- serve to themselves the power to pro- pose laws [and amendments to the Constitution in Oklahoma and Oregon] and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature" (Mon. 1905, 61 ; Okla. 5, 1 ; Ore. 4, 1, Amt. 1899, p. 1129).
"Except, that the people may not propose laws relating to appropriations, constitutional amendments, or local or special laws [as enumerated in § 395] and they have no right to approve or reject acts of the Legislature which are necessary for the immediate preser- vation of the public peace, health or safety, or laws relating to appropri-
ations of money, or laws for the stib- mission of constitutional amendments or local or special laws as above." (Mon.).
"The first power reserved by the people is the Initiative, and eight per cent ot the legal voters of the State shall be required to propose any meas- ure by petition ; provided, that two- fifths of the whole number of the coun- ties of the State must each furnish as signers of said petition eight per cent of the legal voters in such county, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State, not less than four months before the election at which they are to be voted upon" (Mon.).
"The second power is the Refer- endum, and it may be ordered either by petition signed by five per cent of the legal voters of the State ; provided, that two-fifths of the whole number of the counties of the State must each furnish as signers of said petition five per cent of the legal voters in such county, or, by the Legislative Assem- bly as other Bills are enacted" (Mon.).
"Referendum petitions shall be filed with the Secretary of State, not later than six months after the final adjournment of the Session of the Legislative Assembly which passed the Bill on which the Referendum is de- manded. The veto power of the gov- ernor shall not extend to measures re- ferred to the people by the Legislative Assembly or by Initiative Referendum petitions" (Mon.).
"All elections on measures referred to the people of the State shall be had at the biennial regular general election, except when the Legislative Assem- bly, by a majority vote, shall order a special election. Any measure referred to the people shall still be in full force and efTect unless such petition be signed by fifteen per cent of the legal voters of a majority of the whole num- ber of the counties of the State, in which case the law shall be inoperative until such time as it shall be passed upon at an election, and the result has
17
258
THE STATE CONSTITUTIONS
[rook III
initiative are "full of bad spelling, punctuation, omissions, and
been determined and declared as pro- vided by law. The whole miinber of votes cast for governor at the regular election last preceding the filing of any petition for the Initiative or Referen- dum, shall be the basis on which the nvimber of the legal petitions and orders for the Initiative and for the Referendum shall be filed with the Secretary of State ; and in submitting the same to the people, he, and all other officers, shall be guided by the General laws and the Act submitting this amendment, until Legislation shall be esi)ecially provided therefor. The enacting clause of every law originated by the Initiative shall be as follows:
"'Be it enacted by the people of Montana' :
"This section shall not be construed to deprive any member of the Legisla- tive Assembly of the right to introduce any measure" (Mon.).
" By the Oklahoma Constitution, the initiative consists in the proposal by eight per cent of the legal voters of any legislative measure, and in the same manner fifteen per cent may pro- pose amendments to the State Consti- tution by petition. Every such peti- tion must include the full text of the measure proposed. The referendum may be ordered except as to laws neces- sary for the immediate preservation of the public peace, health or safety, either by petition signed by five per cent of the voters, or by the Legisla- ture as other bills are enacted. The ratio and per cent to be based on the total number of votes cast at the last general election for the State office re- ceiving the highest number of votes. Referendum petitions must be filed with the Secretary of State not more than ninety days after the final ad- journment of the session of the Legisla- ture which passed the bill on w^hich the referendum is demanded. The gov- ernor has no veto power on measures voted on by the people. The elections upon such measures are held at the next election held throughout the State except when the Legislature or gov- ernor order a special election, and must be passed by a majority of votes cast.
whereupon, apparently, it takes elTect immediately. The referendum may be demanded by the peojile against one or more items, sections, or parts of any act of the Legislature as well as on a complete act, and the fihng of a peti- tion against a part does not delay the remainder of the act from becoming law. Otherwi.se the referendum, ap- parently, suspends its operation. The.se powers of initiative and referendum are further reserved to the local voters of every county and district in the State as to all local legislation or action in the administration of county and dis- trict government in and for their re- spective counties and districts. The manner of such powers to be pre- scribed by general laws. The requi- site number of petitioners for the initiative and referendum in counties and districts to be twice the ratio to the whole number of legal voters in such county or district as herein pro- vided for the State at large. Any mea,sure rejected by the people through initiative or referendum cannot be again propo.sed by the initiative within three years by less than twenty-five per cent of the legal voters. This reser- vation of the powers of initiative and referendum does not, however, deprive the Legislature of the right to repeal any law, propose or pass any measure which may be consistent with the Con- stitution of the State and of the United States. Laws shall be provided to prevent corruption in making, procur- ing and submitting initiative and referendum petitions" (Okla. 5, 2-8).
"The powers of the initiative and referendum, reserved by this Constitu- tion to the people of the State and the respective counties and districts therein, are hereby preserved to the people of every municipal corporation now ex- isting or which shall hereafter be cre- ated within this State, with reference to all legislative authority which it may exercise, and amendments to charters for its own government in accordance with the provisions of this Consti- tution.
" Everj?- petition for either the initia- ative or referendum in the government
PART III]
LEGISLATION
259
repeated words;" and an important amendment to the Constitu-
of a municipal corporation shall be signed by a number of qualified electors residing within the territorial limits of such municipal corporation, equal to twenty-five per centum of the total number of votes cast at the next pre- ceding election, and every such pe- tition shall be filed with the chief executive officer of such municipal corporation.
"When such petition demands the enactment of an ordinance or other legal act other than the grant, exten- sion or renewal of a franchise, the chief executive office shall present the same to the legislative body of such corporation at its next meeting, and unless the said petition shall be granted more than thirty days before the next election at which any city officers are to be elected, the chief executive officer shall submit the said ordinance or act so petitioned for, to the qualified elec- tors at said election ; and if a majority of said electors voting thereon shall vote for the same, it shall tliereupon become in full force and effect.
"When such petition demands a referendum vote upon any ordinance or any other legal act other than the grant, extension, or renewal of a fran- chise, the chief executive officer shall submit said ordinance or act to the qualified electors of said corporation at the next succeeding general municipal election, and if, at said election, a ma- jority of the electors voting thereon shall not vote for the same, it shall thereupon stand repealed.
"When such petition demands an amendment to a charter, the chief ex- ecutive officer shall submit such amend- ment to the qualified electors of said municipal corporation at the next election of any officers of said corpora- tion, and if, at said election, a majority of said electors voting thereon shall vote for such amendment, the same shall thereupon become an amendment to and a part of said charter, when approved by the Governor and filed in the same manner and form as an orig- inal charter is required by the provi- sions of this article to be approved and filed" (Okla. 18,4).
"The legislative authority of the State shall be vested in a legislative assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also re- serve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than eight per cent of the legal voters shall be required to propose any measure by such peti- tion, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the elec- tion at which they are to be voted upon. The second power is the refer- endum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety) either by petition, signed by five per cent of the legal voters, or by the legislative assembly, as other bills are enacted. Referendum peti- tions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referenduiTi is demanded. The veto power of the governor shall not extend to meas- ures referred to the people. All elec- tions on measures referred to the people of the State shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and be- come the law when it is approved by a majority of the votes cast thereon, and not otherwise. The style of all bills shall be : * Be it enacted by the people of the State of Oregon.' This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure. The whole number of votes cast for justice of the Supreme Court at the regular election last preceding the filing
260
THE STATE CONSTITUTIONS
[book III
tion rc'(juliiiig constitutional anioiuliiienls proposed hv initiative to be submitted to the j)r()j)le at the next election, and calling for a constitutional convention, is not included in the Oregon law of 1907, though adopted by the people June 4, lUOO. It is yet too early to judge of the effect in the other States. In Delaware the Legislature "are to provide a system of advisory initiative and referendum." '
Article 31. Form of Revenue Bills
§ 310. Origin. — All bills for raising revenue must, by the Con- stitutions of most of the States, originate in the lower house; but the senate may generally propose amendments as in other bills.^ But no new matter not relating to the revenue can be so introduced.^ The governor may, in most States, veto certain items in an appro- priation bill and allow the others to become a law.* In several States,
of any petition for the initiative or for the referendum sliall be the basis on which the number of legal voters neces- sary to sign such petition shall be counted. Petitions and orders for the initiative and for the referendum shall be filed with the secretary of state, and in submitting the same to the people he and all other officers shall be guided by the general laws and the act sub- mitting this amendment until legisla- tion shall be especially provided therefor" (Ore. 1S99, p. 1129, Amt. to IV. 1).
"Whenever ten per centum or more of the voters of this State, as shown by the number of votes cast at the last preceding general election, shall ex- press their wish that any law or resolu- tion made by the Legislature be sub- mitted to a vote of the people, the officers charged with the duties of an- nouncing and proclaiming elections and of certifying nominations or ques- tions to be voted on, shall submit the question of thg approval or disapproval of said law or resolution to be voted on at the next ensuing election wherein a State or Congressional officer is to be voted for, or wherein any question may be voted on, by the electors of the entire State.
"When a majority of the electors voting at a State election shall by their
votes signify approval of a law or reso- lution such law or resolution shall stand as the law of the State and shall not be overruled, annulled, set aside, suspended, or in any way made inop- erative except by the direct vote of the people. When such majority shall so signify disapproval, the law or reso- lution so disapproved shall be void and of no effect" (Nev. 1901, p. 139).
1 Del. 1905, 53.
== Ala. 70; Ark. 6, 17; Col. 5, 31; Del. 8, 2; Ga. 3, 7, 10; Ida. 3, 14; Ind. 4, 17 ; Ky. 47 ; La. 37 ; Mass. 2, 1,
3, 7; Me. 4, 3, 9 ; Minn. 4, 10; Mon. 5, 32; Neb. 3, 9; N. H. 2, 17; N. J.
4, 6, 1 ; Okla. 5, 33 ; Ore. 4, 18 ; Pa.
3, 14; S. C. 3, 15; Tex. 3, 33; Vt. Amt. 3; Wy. 3, 33. This principle was fully established in England as early as 1407 (T.-L. p. 248). It is also contained in the United States Con- tution (I. 7 (1)). See also § 300.
3 Del. ; Ky. ; Me. ; Vt. ; Miss. 69. * Ala. 126 ; Ark. ; Cal. 4, 16 ; Col.
4, 12; Del. 3, 18; Fla. 4, IS; Ga. 5, 1, 16; Ida. 4, 11; Kan. 1903, 545; Ky. 88; La. 77; Md. Amt. 1890, 194; Minn. 4, 11; Miss. 73; Mo. 5, 13; Mon. 7, 13; N. D. 80; Neb. 5, 15; N. J. 5, 7 ; N. Y. 4, 9 ; Okla. 6, 12 ; Pa. 4, 16; S. C. 4, 23; S. D. 4, 10; Tex. 4, 14 ; Utah 7, 8 ; Va. 76 ; Wash. 14, 12 ; W. Va. 7, 15 ; Wy. 4, 9.
PAUT III] LEGISLATION 261
no appropriation bill can be passed in the last five ' or ten ^ days of the Legislative session, or not after the first forty days but by unanimous consent.^
§ 311. The General Appropriation Bill may contain only, in some States, appropriations for the ordinary expenses of the State in its legislative, executive, and judicial departments.' So, in several, for the general expenses of government.^ And in a few, for the in- terest on the public debt,^ for the sinking fund,^ for public schools,^ or public charities.^ In more detail, it may contain appropriations for salaries of State officers generally,'" of the Legislature, or for the "civil list"; " for the cost of collecting the revenue;'^ for institu- tions under the exclusive control and management of the State; '^ for the support of the eleemosynary institutions of the State." It may not contain any other enactment or provision unless it relate specifically to some particular appropriation.'^
§ 312. Other Appropriation Bills must, by the Constitution of a few States contain no provisions on any other subject; "^ and so, in one, of all bills for raising revenue ; " so, they must, in other States, contain only one item or subject.'^
They must, in several, be for a certain specified purpose ; '*' and it is not sufficient to refer to any other law to fix such purpose.-" So, no appropriation can be made under the title of " contingent " ; -' all must specify the sum appropriated,-^ and none may last six months be- yond the next meeting of the Legislature.^^ No moneys shall be issued out of the treasury but for the necessary defence and support of the State government and the protection of the inhabitants.-*
1 Ala. ; La. 57 ; Miss. 68 ; Okla. ; '' Mo. Wy. 3, 22. See also § 306. '' Cal., Ga.
2 Mon. 5, 21. " Mo.
3 N. D. 60. 15 N. Y. 3, 22.
* Ala. 71; Ark. 5, 30; Col. 5, 32; "" Ala. 71; Fla. 3, 30; Ga. 3, 7, 9;
Ga. 3, 7, 9; Miss. 69; Mon. 5, 33; La. 55; Miss. 69; Okla. 1, 16; Pa. 3,
N. D. 62; Pa. 3, 15; S. D. 12,2; Wy. 15; S. D. 12, 3.
3, 34. " Del. 8, 2.
' Cal. 4, 29; La. 55; Neb. 3, 19; '« Ala.; Ark. 5, 30; Cal. 4, 34; Col.
Ore. 9, 7. 5, 32 ; Ga. ; La. ; Miss. ; Mon. ; Pa. ;
« Ala. ; Col. ; Ga. ; La. ; Miss. ; Mo. N. D. 62 ; S. D. ; Wy. 3, 33.
4, 43 ; Mon. ; N. D. ; Pa. ; S. D. ; Wy. '» Ark. 5, 29 ; Cal. ; La. 56 ; Mo. 10. ' Mo. 19; N. Y. 3, 21; Okla. 5,55; S. C. » Ala., Col., Ga., La., Miss., Mo., 4, 23.
Mon., N. D., Pa., S. D., Wy. ^° Mo., N. Y.
« La. 2' La.
»" Cal. ; 111. 4, 16 ; Neb. ; Ore. ; - N. Y. W. Va. 6, 42. -' Miss. 64. See also § 300.
" Mo. '* Mass. 2, 2, 1, 11 ; N. H. 2, 56.
262 THE STATE CONSTITUTIONS [BOOK III
In one the rjcncral appropriations (§ ol 1 ) must be made first, and take precedence of any others.'
§ 313. Voi'nuj. — The Constitutions of several provide tliat a bill appropriating money or projx'rty for private or local purposes must receive a vote of two thirds of the elected members of each house.- So, in two, an appropriation for charitable or educational institutions not under the absolute control of the State.' In two, a bill appropriating money for extraordinary purposes (not included in §§ 311, 335) requires a two-thirds vote in each house.* The yeas and nays must always be entered on the journal, on the passage of a bill appropriating money ; ^ and three-fifths of each house are necessary to a quorum.*' So, in two, such act must be voted for by a majority '' or two thirds of the members * elected to each house, or of three fifths of those present." So, any act releasing, discharg- ing, or commuting any claim or demand of the State '" must have a majority vote of members elected, or of a quorum of three fifths, as above."
§ 314. Tax Bills. — The Constitutions of several States re- quire that every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied.'' So, in a few, of a bill creating a debt.'' And it is not sufficient to refer to any other law, to fix such object.'*
In several, all taxes must be levied and collected by general laws.^^
In two, a bill imposing a tax must receive the necessary vote in a quorum of three fifths of each house, to be entered in the journal (as in § 313) ; '" and in one of a majority of a quorum of two thirds of the elected members, in the house.'^ In one other, it must be read three several times in each house, and pass the tliree readings on different days, the yeas and nays of the second and third read- ings entered in the journal.'^ In others, a bill imposing a tax for
» Mo. 4, 43. 4; Ky. 180; Mich. 14, 14; N. C. 5,
2 lo. 3, 31; Mich. 4, 45; Miss. 60; 7; N. D. 175; N. Y. 3, 24; O. 12, 5; N. Y. 3, 20; R. I. 4, 14. Okla. 10, 19; Ore. 9, 3 ; S. C. 10, 3;
3 Ala. 73; Pa. 3, 17. S. D. 11, 8; Va. 50; Wash. 7, 5; Wy. * Ark. 5, 31 ; S. D. 12, 2. See also 15, 13. See also § 330.
§ 314. '^ Col. 11, 4; Ga. 7, 4, 1 ; Ky. 178;
' Ga. 3, 7, 12 ; N. Y. 3, 25 ; Wis. 8, 8. N. Y. 7, 4 ; Nev. 9, 3 ; Pa. 9, 5.
« N. Y., Wis. " lo., Mich., N. Y., Va.
■> Ky. 46; Miss. 64; Va. 50. '^ Col. 10, 3; Ga. 7, 2, 1 ; Ky. 171;
« S. D. 12, 2. Mo. 10, 3 ; Pa. 9, 1 ; Tex. 8, 3. See
» Miss. 70. § 395.
" Va. 50. See also § 304. >« N. Y. 3, 25 ; Wis. 8, 8.
" N. Y. " Vt. 2, 9.
»2 Ark. 16, 11; lo. 7, 7; Kan. 11, i» N. C. 2, 14.
TART III] LEGISLATION 263
extraordinary objects (not included in § 335) requires a two-thirds vote in each house/ or a majority of the members elected.^
§ 315. State Debt Bills.^ — Bills providing for a loan to the State or creating a State debt require the assent of two thirds of the elected members of each house,* or of three fourths/ or of a majority of members elected," or of a majority of members present ; but three fifths are, in such case, necessary to a quorum (as in § 313).^ They must be read three times, like tax bills (see § 314).^ The law must state the purpose for which the money is borrowed.^
§ 31G. State Aid Bills. — In four States the Legislature ^° has no power to give or lend the credit of the State in aid of any person or corporation, unless the law be approved by direct vote of the peo- ple." So, law creating a State debt must be approved by the people at a general election ; '^ and in South Carolina it must receive a two thirds vote.
Article 32. Appropriations '^
§ 320. Warrants, etc. — By the Constitutions of most States, no money shall be paid out of the treasury except upon appropria- tions duly made by law specifying the purpose, etc. (see Art. 31).^* And there must be warrants drawn by the proper officer. ^^ And in
* Ark. 5, 31. in 1665 under Charles II. Since then - Va. it has been "an undisputed principle, ^ See also § 314. For temporary recognized by frequent, and at length
loans, see § 360. constant practice," that "suppUes
* Minn. 9, 5. granted by parUament are only to be
* Del. 8, 3. expended for particular objects speci- « Kan. 11, 5; Wis. 8, 6. ficd by itself." (Hallam, Const. Hist., ^ N. Y. 3, 25; Wis. 8, 8. vol. ii. p. 356.)
« N. C. 2, 14. '* Ala. 72 ; Ark. 5, 29 ; 16, 12 ; Ariz.*
« Del. ; Mon. ; N.Y. 7, 5 ; Okla. 10, 16. Bill of Rts. 25 ; Cal. 4, 22 ; Col. 5, 33 ;
»» Compare § 326. Also Art. 36. Del. 8, 6 ; Fla. 9, 4 ; Ga. 3, 7, 11 ; Ida.
" Ark. 10, 6; Ky. 50; N. C. 5, 4; 7, 13; 111.4, 17; Ind. 10,3; lo. 3, 24 ;
S. C, 10, 11. ' Kan. 2, 24; Ky. 58, 230; La. 45; Md.
'- Ky. ; Mon. 13, 2; S. C. See also 3,32; Me. 5, 4, 4; Mich. 14, 5; Minn.
§§309,361. 4,12; 9,9; Miss. 60; Mo. 4, 43 ; Mon.
'' See U. S. C. 1, 9. The appropria- 5, 34; 13, 2; N. C. 14, 3; N. D. 186;
tion of suppUes to objects specified in Neb. 3, 22 ; Nev. 4, 19 ; N. J. 4,6,2;
the law dates from 1353, but was only N. Y. 7, 8 ; O. 2, 22 ; Okla. 5, 55 ; Ore.
put in practice occasionally, and at 9, 4; Pa. 3, 16; S. C. 10, 9; S. D. 11,
long intervals. An account of the ex- 9 ; Tenn. 2, 24 ; Tex. 8, 6 ; Va. 186 ;
penditure of the last subsidy was re- Vt. 2, 17; Wash. 8, 4; W. Va. 10, 3;
quired from Richard II; and the Wis. 8, 2; Wy. 3, 35; 16, 7. So in
principle that an appropriation should U. S. C. 1 9, (7).
be diverted to no other purpose was " Ala. ; Cal. ; Col. ; 111. ; Mass. 2, 2,
expressly asserted by the Commons 1,11; Mo. 10, 19; Mon.; Neb.; N. D. ;
under Henry VI, and finally vindicated N. H. 2, 55 ; Pa. ; S. D. ; W. Va. ; Wy.
2C4 THE STATE CONSTITUTIONS [BOOK III
a few States, no appropriation can be made for a longer term than two years;' so in otliers, the warrant must be issued within two years - or two and a half years of the act of appropriation.^ INIoney raised by taxation, loan, or assessment for any purpose shall not be diverted to any other purpose except by authority of law."
No appropriation shall be made, nor any expenditure authorized, by the Legislature, whereby the expenditure of the State during any fiscal year shall exceed the total tax then provided by law, and applicable to such appropriation or expenditure, unless the Legisla- , ture making such appropriation shall provide for levying a sufficient tax, not exceeding the rates allowed in [§ 33G], to pay such appro- priation or expenditure within such fiscal year. This provision shall not apply to appropriations or expenditures to suppress insurrec- tion, defend the State, or assist in defending the United States in time of war.^
§ 321. State Accounts. — By the Constitutions of most States, a regular statement and account of receipts and expenditures of public moneys must be published annually," semi-annually,^ or after every session of the Legislature, with the laws,^ or in such manner as by law directed.'
§ 322. Private Appropriations, Claims, and Debts. — The Con- stitution of Illinois provides that the Legislature shall make no ap- propriation of money out of the treasury in any private law.^'' So, in Texas, that no appropriation for private or individual purposes shall be made." In Mississippi, no law granting a donation, etc. without a two-thirds vote of members elected in each house. '^ So, in several States, no appropriation of money or grant of property can be made by the State to any individual or corporation, municipal or otherwise.'^ And by the Illinois Constitution, the Illinois and
» Ark., Kan., La., Mo., Mon., O., « Cal. 4, 22; Fla. 3, 19; Ga. 3, 7
Tex., Va. 11; 111. 4, 17; Ind. 10, 4; lo. 3, 18
2 Kan., Mo., N. Y., Wash. Md. 3, 32; Me. 5, 4, 4; Mich. 18, 5
3 Okla. Minn. 9, 11; Miss. 113; Mon. 7, 19 * Ky. 18; O. ; N. D. 130; S. D. Neb. 3, 22; Nev. 4, 19; Ore. 9, 5
10, 2. S. C. ; Tenn. 2, 24 ; Va. 10, 18 ; Vt.
« Ida. 7, 11; Mon. 12, 12. 2, 28.
« Ala. 72; Del. 8, 6; Ky. 230; » Ark. 19, 12; Ct. 4, 21; Kan. 15,
N. C. 14, 3; S. C. 19, 8; S. D. 11, 12; 5; Mo. 10, 19; O. 15, 3; S. D. ; Tex.
12, 4 ; Tex. 16, 6 ; Utah 13, 6 ; Wash. " 111. 4, 16. See also § 395.
7, 7; W. Va. 10, 3. Quarterly: Ga. ; '' Tex. 16, 6. Compare Art. 39.
La. ; Mon. 12, 13. '- Amt. 1906, 238.
' Ky. 53; Miss, 137. '' Ga. 7, 16, 1; Ky. 177; Mo. 4, 46;
PART III] LEGISLATION 265
INIicliigan Canal can never be sold or leased but by vote of the peo- ple/ Except that in two States a grant of aid may be made in case of a public calamity.^ And a right of way through public land may, in one, be granted to a railroad or canal.'
The Constitutions of two States provide that the Legislature shall not audit nor allow any private claim or account ; * nor, in several, authorize the payment of any claim against the State under an agreement or contract made without the authority of law.^ Or of any such claim against a municipality ; ^ and all such private or special contracts are void.' Nor, in a few, can money be paid on any claim the subject matter of which is not provided for by pre- existing laws.* Such claim may, however, be allowed on a two- tliirds vote of the full Legislature." So, in two, no special act mak- ing compensation to a person claiming damages against the State can be passed.^"
In ^Maryland, the Legislature can appropriate no money in pay- ment of a private claim over $300 unless proved before the comp- troller and reported on by him." And in Indiana (10, 7), the State is freed from all liability on account of Wabash & Erie Canal stock.
Exceptions. But, in a few States, the Legislature may appro- priate for expenses incurred by private persons in suppressing in- surrection or repelling invasion. ^^
The Constitutions of several States provide that the Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, any indebtedness or liability, of any corporation or individual to the State,^' or to any municipal corporation therein.'* This follows, practically, in other States, from the provisions of § 395.'^
So, in several, the Legislature have no power to release, alienate,
N. D. 185; Neb. (of land only) 3, 18; 16, 11; lo. 3, 31; Nev. 4, 28; O. 2,
N. J. 1, 20 ; Tex. 3, 51. See also § 326. 29 ; Pa. 3, 11 ; Tex. 3, 44.
' 111. Sep. § 3. 9 Ark., Fla., O.
=" Mo., Tex. " Ind. 4, 24; Ore. 4, 24.
3 La. 58. " Md. 3, 52.
* Ariz.* B. Rts. 27; Mich. 4, 31; '^ 111., Miss., S. D., W. Va.
N. Y. 3, 19. 13 Ala. 100 ; Ark. 5, 33, 12, 12 ; Col.
« Cal. 4, 32; 111. 4, 19; Ky. 58; 5, 38; 111. 4, 23; Ky. 52; La. 59;
La. 47; Miss. 96; Mo. 4, 48; Mon. 5, Miss. 100; Mo. 4, 51; Mon. 5, 39;
29; S. D. 12, 3; Tex. 3, 53; Utah 6, Okla. 5, 53; S. D. 3, 24; Tex. 3, 55;
30 ; W. Va. 6, 38. Utah 6, 27 ; Wy. 3, 40.
« Cal.; Ky. 162; La.; Tex. " Ala., Col., 111., Ky., La., Miss.,
^ Cal., m., Ky., La., Mo., S. D., Mon., Okla., Wy.
W. Va. '5 Cal., Md.
« Ark. 5, 27 ; Col. 5, 27 & 28 ; Fla.
266 THE STATE CONSTITUTIONS [BOOK III
or alter the lien held by the State upon any railroad,' or as against any corporation.- And in Illinois, specially of the Illinois Central Railroad, no lien, contract, obligation, or lialnlity in the original charter, shall ever be released or inij)aire(l.-'
In one State, no claim shall be allowed (by the Legislature or other body or officers acting for the State) against the State which would be barred by lapse of time if made against a private person; except that a claim may be so prosecuted within two years of the re- moval of a legal disability of the claimant.*
The Legislature shall not authorize payment to any person of the salary of a deceased officer beyond the date of his death ; '' nor retire any officer on pay, or part pay, or make any grant to such retiring officer."
§ 323. Charitable and Sectarian Appropriations. — The Con- stitutions of a few States provide that no appropriation shall be made for private, charitable, educational, or benevolent purposes to any person or community or any corporation not wholly under the State authority ; ^ nor to any denominational or sectarian insti- tution ; * except by a vote of two-thirds the members elected ; ^ and see § 313.
Exceptions. But in California, grants of aid may be made to orphan or indigent asylums in accordance with a uniform rule. And in Pennsylvania, to asylums for soldiers' widows or orphans.^*'
§ 324. Internal Improvement. — By the Constitutions of a few States the State cannot be interested in works of internal improve- ment, or "engage in them"" except on two-thirds vote of the people ; ^' nor, in Alabama, loan its credit in support of such works ; ^^ nor, in several States, create or contract debts for them ; ^* nor be a party to carrying on such works. ^^
But the Tennessee Constitution declares that a well-regulated system of internal improvement should be encouraged by the Legislature.'"
1 Ark. 5, 33 ; Mo. 4, 50 ; Pa. 3, 24 ; » Ala. Tex. 3, 54. " Pa. 3, 19.
2 Pa. " Mich.; N. D. 185; S. D. 13, 1;
3 111. Sep. § 1. Wy. 16, 6.
^ N. Y. 7, 6. '2 N. D., Wy.
« Miss. 92. " Ala. 93.
6 Miss. 93. '* Ala. ; Md. 3, 34 ; Minn. 9, 5 ; O.
' Ala. 73; Cal. 4, 22; Col. 5, 34; 12,6; Wis. 8, 10. See, however, §361.
La. 53; Mon. 5, 35; Pa. 3, 17 ; S. C. '« Ala. ; Kan. 11, 8; Md. ; Mich.
11, 9; Va. 67; Wy. 3, 36. See also 14, 9; Minn.; Wis.
§§ 44, 54. '" Tenn. 11, 10.
« Wy.
PART III] LEGISLATION 267
§ 325. Miscellaneous Restrictions. — The Constitution of Texas provides that the State shall make no appropriation for a bureau of, or to encourage or assist, immigration/ Not for war debts of the State or any county, city, or town.^
§ 326. Loans of Credit, etc.^ — The State, by the Constitutions of most of the States, cannot lend money or its credit to any indi- vidual, association, or corporation, municipal or otherwise, what- ever/ Except corporations for religious or charitable purposes; or for the support of the poor/ So, specially, it cannot loan, etc., to railroads or canals."
Nor, in many, can the State become a stockholder or bondholder in any corporation,^ in any bank,^ railroad,^ or highway.^"
The Constitution provides, in general terms, that the State may not be interested in any private or corporate enterprise," or internal improvement.^^
Nor, in many, can it assume the debts of any (individual or) muni- cipal corporation ; ^^ except, in several, when incurred in time of war for the benefit of the State."
Nor, in Tennessee, can any bonds of the State be issued to any railroad which is in default in paying interest on bonds previously loaned to it, or has sold them for less than par.^^
Limitations. But in North Carolina, the credit of the State may be so loaned, contrary to the above rules, upon vote of the people.
§ 327. Money. — The Constitution of Texas provides that the
1 Tex. 16, 56. See § 202. Cal. 12, 13 ; Col. ; Fla. ; Ga. ; Ida.
2 Va. 186. See U. S. C. Amt. 14. Ind. ; lo. 8, 3; Ky.;. La.; Mich. 14
3 Compare § 316. See also Art. 36. 8; Miss.; Mo. 4, 49; Mon. ; N. D. * Ala. 93; Ark. 16, 1; Cal. 4, 31; Nev. ; O. ; Okla. ; Ore. 11, 6; Pa.
Col. 11, 1-2; Del. 8, 4; Fla. 9, 10; S. C. ; S. D. ; Tenn. ; Utah; Va.
Ga. 7, 5, 1 ; Ida. 8, 2 ; lU. 4, 20 ; Ind. Wash. ; W. Va. ; Wy.
11, 12; lo. 7, 1; Ky. 177; La. 58; « III., Ind., Kan., Mo., Tenn. See
Md. 3, 34 ; Me. 9, 14 ; Mich. 14, 6 ; § 530.
Minn. 9, 10; Miss. 258; Mo. 4, 45; « Ky.
Mon. 13, 1 ; N. C. 5, 4 ; N. D. 185 ; >° Ky.
Neb. 14, 3; Nev. 8, 9; N. J. 4, 6, 3; " Ala., La., Va. See § 324.
N.Y. 7,1; 8, 9; 0.8, 4; Okla. 10, 11; ^^ Va.
Pa. 9, 6 ; S. C. 10. 6 ; S. D. 13, 1 ; Tenn. i^ ^rk. 12, 12 ; Cal. ; Col. ; Ga. 7, 8,
2, 31; Terr. U. S. 1886, 818; Tex. 3, 1; Ida. 12, 3; 111.; Ind. 10, 6; lo. ;
50; Utah 6, 31; Va. 185; Wash. 12, Ky. 176; La.; Mon. 13, 5; Nev. 9, 4;
9; 8, 5; W. Va. 10, 6; Wis. 8, 3; O. 8, 5; Okla. 10, 14; Ore. 11, 8; Pa.
Wy. 16, 6. 9, 9 ; S. D. ; Tex. ; Utah 14, 6 ; W. Va. ;
« N. D., S. D. Va.
« 111. Sep. §3; Wy. 3, 39; 10, '" Ark., Ga., Ida., lo., Ky., Nev., O.,
10 (5). Okla.. Ore., Pa., S. D.
' Ariz.* Bill of Rts. 27 ; Ark. 12, 7 ; " Tenn. 2, 23.
268 THE STATE CONSTITUTIONS [BOOK III
State shall have no power to issue treasury notes or warrants in- tended to circulate as money.^
§ 328. Embezzlement, etc. (See § 15G.) — The Legislature shall provide by law for the establishment and maintenance of an efhcient system of checks and balances between the officers of the Executive Department, and all commissioners and superintendents, and boards of control of State institutions, and all other officers entrusted with the collection, receipt, custody, or disbursement of the revenue or moneys of the State whatsoever.^
Article 33. Taxation
§ 330. General Principles.^ — In the Constitutions of several States it is declared that every member of society is bound to con- tribute his proportion to the expenses of the government; but no part of his property can be taken without his own consent or legisla- tive authority.*
So, in many, no tax, impost, duty, or charge can be levied except in pursuance of a law ; ^ or by consent of the people,^ or their repre- sentatives in the Legislature.^ Taxation can be for public purposes only ; ^ and must be levied under general laws.^
^ Tex. 16, 7. See U. S. C. 1, 10. power is subject to the broad limita-
" Okla. 5, 60. tion that it may be exercised only by
2 Compare Art. 9. The history of Congress and to pay the debts and
English taxation, as distinct from provide for the common defence and
feudal aids, begins with the imposi- general welfare of the United States;
tion of the Dane-geld, a. d. 1008. The and that all indirect taxes shall be
first tax on personal property was the uniform throughout the United States,
Saladin tithe, a. d. 1188 (see Historical and direct taxes, if any, imposed upon
Digest). The English constitutional the States according to their respective
principles affecting taxation are fully numbers, now excluding only Indians
discussed in Book I. ; in substance, not taxed.
that no tax, direct or indirect, shall * Del. 8, 1; Mass. 1, 10; Md.
be imposed upon the people or upon Decln. of Rts. 14 & 15; N. H. 1, 12;
their property, real or personal, wliich Okla. 10, 14; Va. 1, 6; Vt. 1, 9; Wy.
has not been voted or assented to by 15, 13 ; 13, 3.
the House of Commons; second, that * Ark. 16, 11; Fla. 9, 3; Kan. 11,
all taxes must be for the common 4 ; Ky. 171 ; Mo. 10, 1 ; Mon. 12, 16 ;
benefit or the general advantage of N. D. 175 ; O. 12, 5 ; Ore. 9, 3 ; S. C.
the Realm. To these, American Con- 8, 3 ; 10,3; Wash. 7, 5.
stitutional Law may be said to have " Mass. 1, 23; Me. 1, 22; N. C'l,
added a tliird principle, that taxes 23; N.H.I, 28; Ore. 1,32; S.C.I, 7;
shall be proportionate and uniform. S. D. 6, 17; Wy. 1, 28.
The Federal Government has practi- ^ La. 224 ; Mass. ; Md. ; Me. ;
cally no power of direct taxation ; this N. C. ; N. H. ; Ore. ; S. C. ; S. D. ; Wy.
remains with the people of the States. * Ky. 171 ; Minn. Amt. 1907, p. 18;
Otherwise the powers of taxation be- 9, 1 ; S. C. ; S. D. 10, 2. See note 1.
long both to the Federal and the State * Ida. 7, 5 ; Ky. ; Mon. ; Okla. ;
governments; though the Federal Va. 168.
PART III] LEGISLATION 269
And in Vermont, previous to any law for a tax, the purpose for which the tax is levied ought not to appear of more importance to the community than the money would be if not collected.
By the Constitution of Arkansas, "the State's ancient right of eminent domain, and of taxation, is expressly and fully conceded." ^ In Georgia, taxation is declared to be a sovereign right of the State, absolutely inalienable.^
In several, the Legislature has no power to release (in Louisiana, postpone) the inhabitants of, or property in, any town or county from payment of State or county taxes ; ^ except in case of great public calamity,* and by a two-thirds vote of each house.^ So, in others, the power to tax shall not be surrendered or suspended by any act, contract, or grant to which the State is a party ; " so, specially, of the power to tax corporations and their property. ^
And in several, no power to levy taxes can be delegated to indi- viduals or private corporations.^ See § 340.
In Illinois, the Constitution provides that the specification therein of the objects and subjects of taxation shall not deprive the General Assembly of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in the Constitution.^
§ 33L Taxable Property. — In many States, the Constitution declares that all property, real and personal and mixed, is taxable.'"
In others, taxes "shall be levied upon such property as is described by law." " "Polls, estates, and other classes of property, including franchises and property when passing by will and inheritance." ''
' Ark. 2, 23. clause of the Federal Constitution, and
^ Ga. 4, 1, 1. prevent the granting or bargaining
^ Cal. 11, 10; Col. 10, 8; 111. 9, 6; away of the sovereign right of taxa-
La. 212; Mo. 10, 9; Neb. 9, 4; Tex. tion, in conformity with the views of
8, 10. a persistent minority in the United
* La., Tex. States Supreme Court.
« Tex. 8 Ala. 212; Cal. 11, 13; Col. 5, 35;
« Cal. 13, 6; Ga. ; Ida. 7, 7; Ky. Ga. 4, 1, 1 ; Pa. 3, 20. Compare § 340.
175; Me. 9, 9; Minn.; Mon. 12, 6; » 111.9,2.
N. D. 178; Okla. 10, 5; Wash. 11, 9; " Cal. 13, 1; Col. 10, 3; Fla. 9, 1;
Wy. 15, 14. And this applies also to Ind. 10, 1 ; Ky. 174 ; Minn. 9, 3 ; Mon.
municipal taxation (N. D.). 12, 16; N. C. 5, 3; N. D. 176; Nev.
^ Ark. 16, 7; Col. 10, 9; Ga. 7, 2, 5; 10, 1; O. 12, 2; S. C. 10, 13; Tenn.
Ida. 7, 8 ; La. 228 ; Miss. 182 ; Mo. 2, 28 ; Utah 13, 2 ; Va. 168 ; Wash. 7,
10, 2 ; Mon. 12, 7 ; Pa. 9, 3 ; S. D. 1 ; W. Va. 10, 1.
113; Tex. 8, 4; Va. 64; Wash. 7, 4. » Ida. 7, 3; Mich. 14, 11; Wis. 8, 1.
These two provisions show the desire ^- N. H. 2, 6. to escape the impairment of contract
270 THE STATE CONSTITUTIONS [nOOK III
In one, the personal property of residents of the State is taxable in the county or city where the resident hoiici fide resides for the greater part of the year; and not elsewhere, exccj)t goods and chattels "per- manently located." ' But in two, all property is to be assessed where situated (except rolling stock, etc., of railroads).''
Land and the improvements thereon are to be separately assessed.' Mortgages, except mortgages by railroads, etc., are taxed to the owner, and the property less the value of the mortgage to the mortgagor. "^ INIortgages may be taxed where the huui is."
In Texas, all property of railroads in towns shall bear its share of municipal taxation; " and all property of railroads shall be taxed.'
The property of all corporations shall, by several State Constitu- tions, be subject to taxation the same as that of individuals ; ** so of corporations for pecuniary profit only.^ But this shall not be construed so as to authorize the taxation of the stocks of any com- pany or corporation when the property of such company or cor- poration represented by such stocks is within the State and has been taxed. ^'^
"The Legislature shall provide for taxing all moneys, credits, in- vestments in bonds, stocks, joint stock companies, or otherwise ; and also for taxing the notes and bills discounted or purchased, moneys loaned and all other property, effects or dues of every description, of all banks and of all bankers, so that all property employed in bank- ing shall always be subject to a taxation equal to that imposed on the property of individuals." "
In Maryland, the Legislature are to provide for the taxation of the revenue of foreign corporations doing business in the State.'-
1 Md. 3, 51. Del., Mass., Me , N. J., N. Y., N. C,
- Cal. 13, 10; Tex. 8, 11. Tex., Vt., Wash., W. Va. See Re-
^ Cal. 13, 2; Wy. 15, 1; Del. 8, 7. port Committee on Corporation Laws,
* Cal. 13, 4. Massachusetts, 1903, pp. 273-279.
s Md. Amt. 1898. » Ala., lo.
« Tex. 8, 5. " Mon. 12, 17.
' Mon.; Tex. 8, 8. See § 540. " S. D. 11, 4.
« Ala. 217; Col. 10, 10; Fla. 16, '^Md.3,58. See in § 509. There is
16; Ida. 7, 8; lo. 8, 2; Ky. ; Miss, no Constitutional limit to the power of
181; Mon. 12, 7; Nev. 8, 2; 0.13,4; imposing a franchise tax on foreign
S. D. 11, 2; Utah 13, 10; Wash. 7, 3. corporations, even to the point of
See § 330. This provision would not, driving them from the State; property
however, be held to preclude franchise taxes, however, must be identical with
taxes, or taxes on the capital stock, those imposed on home corporations,
and the imposition of such in addition In 1903 such taxes existed in ten
to a property tax is not double taxa- States: Ala., Col., Mass., N. C, N. Y.,
tion. Already, by the year 1903, such O., Tex., Vt., Wash., W. Va. These
taxation existed by law in : Ala., Col., principles do not, however, hold of
PAllT III] LEGISLATION 271
In three States, mines and mining claims may not be directly taxed, but only their proceeds.^ Coal lands not being mined are to be taxed according to value.- All mines are to be taxed ac- cording to gross product, and the land (except improvements) is exempt.^ So, the net proceeds; but the land is taxed at the price paid the United States.* There is a special and separate assess- ment of coal or mineral land.''
The Legislature may provide for a special mode of valuation and assessment for railroads, and railroad (and other corporate) property."
§ 332. Exemptions. — The following are the constitutional ex- emptions from taxation (there are these and many others existing by statutes; indeed the older States have not deemed it advisable to put such matters in the Constitution) :
(A) Burying-grounds.''
(B ) Public schoolhouses ; ^ school buildings and apparatus ; ^ libraries and grounds used for school purposes. ^°
(C) Churches; ^^ church property used for religious purposes ;^^ public hospitals; ^^ parsonages.^*
(D) Academies ;^^ colleges, universities, and seminaries of learn- ing; ^^ public libraries; ^^ books, paintings, and statuary, kept in a free public hall; ^^ institutions of purely public charity; ^^ of educa- tion ; -" or free museums.-^
interstate commerce corporations. See " Ala. ; Ark. ; Ga. ^ c j La_ j S. C. ;
Mass. Corporation Committee Report, Tex.
Digest by F. J. Macleod, p. 295, ut ^° Ark. ; Col. ; Ga. b c ; i,a. c ;
supra. Minn. 1907, ix; N. D. ; S. C. ; Va.
' Col. 10, 3 ; Nev. 10, 1 ; Wy. 15, 3. " Ark. ; Ga. b c ; Ky. ; La. c ; Minn. ;
See § 519. Mon. ; O. b; Pa. b; s. C. ; Tex.;
2 Wy. 15, 2. Utah ; Va. ; Wy.
^ Wy. 15, 3. 1- Cal. 1899, p. 447 ; Col. ; Ky. ;
* Mon. 12, 3 ; Utah 14, 4. Minn. ; Utah ; Wy.
« Va. 172. " Minn., Mon., S. C.
« Ky. 182; Miss. 112. See § 519. " Ky. ; La. 1902, 129; Va. ; Wy.
^ Ala. 91; Ark. 16, 5; Col. c 10, 5; '' Ga. b c; Minn.; S. C. ; Va.
Ga. b c 7^ 2, 2 ; 111. b 9, 3 ; Ky. c 170 ; >« Ga. b c ; La. <= ; Minn. ; S. C. ; Va.
La. c 230 ; Minn. 9, 3 ; Mo. 10, 6 ; '' Cal. 1893, p. 658 ; Col. 10, 4 ; Ga.
Mon. c 12, 2 ; N. C. b 5, 5 ; N. D. b ; Ida. 7, 4 ; Ky. ; La. ; Mon. ; Okla. ;
170; Neb. b 9, 2; O. b 12, 2 ; Okla. S. C. ; Utah; Va. ; Wy.
10, 6 ; Pa. b 9, 1 ; S. C. 10, 4 ; S. D. '« Ga. b c ; Ky. ; La. c.
11, 6; Tex. beg, 2; 1905, p. 410. '« Ga. b c; La.; Minn. ;0. b; Pa. c; Utah 13, 3 ; Va. c 183 ; W. Va. b 10, S. C. ; Tex. b.
1; Wy. c 15, 12 a. :o Ky c.
» Cal. 13, 1; Col.; La. <=; Minn.; ^i Cal., Okla. O. b ; Okla. ; S. C. ; Tex
272
THE STATE COXSTITUTIOXS
[book TTI
(E) Public property used exclusively for any public purpose;^ or for any numicipal purpose; ^ all public- j)r()perty.^
(F) So, any property (real or pei\s(>nal), held for educational or scientific ' or literary purposes;'' or charita])le purposes;" or re- ligious purposes;' by agricultural or horticultural societies.^ So, lots in towns, within one mile of the limits, to one acre in extent ; and lots one mile or more distant from towns to five acres in extent, with buildings thereon, used exclusively for religious, school, or purely charitable purposes ; " for lodge purposes ; '" for public monuments or historical collections."
(G) In several, lands the property of the United States are ex- empt;^'- all property exempt by United States laws;*^ all property belonging to the State ;" all property belonging to the United States;*^ all property belonging to nmnicipal corporations ; *" the property of religious or charitable corporations, or of educational "cor- porations." ^'
(II) In a few Western States, the Legislature may exempt for a time the increase in value of private lands caused by the planting of hedges, orchards, and forests; ^^ so, "a limited amount of im- provements on land";^^ so, fruit or vines planted 4 or 5 years respectively.""
(I) The personal property of every individual is exempt, to the
' Ark.; Kan. 11, 1; Ky. 170; Minn. ; Nev. b lO, 1 ; O. b ; Ore. b 9, 1; Pa. b; Tenn. b2, 28; Tex. 11, 9; Va. ; W. Va. b.
^ Ind. b 10, 1; Kan.; Va. 10, 1; S. C.
3 Ala. ; Ga. b c ; La. c ; Mon.
* Ala. 91; Cal. ; Fla. b 9, 1; 111. b Ind. b; Kan.; La.; Mon.; N. C. b N. D.; Neb. b; Nev. b; Okla. 91 Ore. b; S. C. b; S. D.; Tenn. b; Tex. Va. • W. Va. b.
^'ria. b; Ind. b; Kan.; N. C. b
» Ala. ; Mo. b.
»" Va.
" La.
'^ Ida. ; Kan. Ordinance ; Minn. 2, 3; Mo. 14, 1; Mon.; Nev. Ordinance; N. D. 176; Okla.; S. D. 115; Utah; Wash. 7, 2 ; Wis. 2, 2 ; Wy.
" Cal. 13, 1 ; Utah ; Wash.
" Ala. ; Cal. ; Col. 10, 4 ; Ida. ; 111 Mo.; Mon.; N. C. ; Neb.; N. D Okla.; S. D. ; Tenn.; Utah; Va Wy.; Wash.
'' Cal. ; Ida. ; Mon. ; N. D. ; S. D. ; Nev. b; Ore.; S. C. b 10, 1 ; Tenn. b; Terr. U. S. R. S. 18ul ; Utah; Wash.; W. Va. b. Wy.
« Ala. ; Ark. ; Col. ; Fla. b ; m. ; Ind. 's
b ; Kan. ; Ky. ; Mon. ; N. C. b ; N. D Neb. b ; Nev. b ; Ore. b ; S. C. b ; S. D. Tenn. b ; Tex. ; Va. b ; W. Va. b.
' Ala. b; Fla. b; m. b; ind. b Kan. ; Ky. ; N. D. ; Neb. b ; Nev. b N. C. b ; Okla. ; Ore. b ; S. C. b ; S. D. Tenn. b ; Va. ; W. Va. b.
« Ala. ; 111. b ; Mo. b 10, 6 ; Mon. Neb. b; S. D.
Ala.; Cal.; Col.; Fla. b; Ida. 111. b; Ind. b; La. c; Mo. ; Mon. N. C; N. D.; Neb.; Nev. b 8, 2 Okla. ; S. C. ; S. D. ; Tex. 8, 1 ; Utah Va. ; Wash. ; Wy.
" Fla. b ; Nev. b.
»« Col. 18, 7.
i« Ida. 7, 2.
20 Cal. 1893, p. 623.
PART III] LEGISLATION 273
value of $200;' $100;- $250, if with a family ;3 of $1,000;* household property to the value of $500; ^ of $250; « $200 of heads of families; ^ $300; ^ of every widow or disabled person, $200.^
(J) Growing crops are exempt.'" So, the direct products of the soil in the hands of the producer; " and of his immediate vendee.'^ And no articles manufactured of the produce of the State shall be taxed otherwise than to pay inspection fees." Supplies for home or farm use are exempt.'*
(K) All wearing apparel is exempt ; arms for muster; all house- hold furniture; mechanical instruments of mechanics, and agricul- tural implements of farmers; libraries; scientific instruments; but the total value of exemptions under this paragraph cannot exceed $300.'^
(L) Such property as the Legislature may except for the public welfare.'®
(M) For a period of 10 years from 1900, mining and manufac- turing property in factories where five hands are employed and (up to 1904) certain railroads.'^ So, railroads constructed between 1905 and 1909.'^ See also § 331.
(N) Provision shall be made by general laws whereby cities and towns may be authorized to aid and encourage the establishment of manufactories, gas works, water works, and other enterprises of public utility other than railroads, within the limits of said cities or towns, by exempting all property used for such purposes, from muni- cipal taxation for a period not longer than ten years.'*
(O) The General Assembly may authorize any incorporated city or town to exempt manufacturing establishments from municipal taxation for a period not exceeding five years, as an inducement to their location.-'^ So the Legislature may grant a general exemption from taxation to manufacturing corporations or enterprises of public utility for one year.^'
1 Kan. (of every family); Minn.; " Ky. ; Tenn. 2, 30; Tex. 8 19 N. D.; O. b; S. D. (1879, p. 192).
2 Cal. 1904, Nov. 8 ; Okla. '^ Tenn.
» Ky. " Tenn. 2, 30.
* Tenn. " Tex.
« La. « N. C. b.
8 Ky. 170 ; Okla. ; Tex. 8, 1. '« Del. 8, 1 ; Wash.
' Col. 1899, p. 89. " La. 206.
8 Wash, b Amt. 1900. *« La. 1904, 16.
8 Fla. 9, 9. '» Miss. 192.
"> Cal., Ky., Okla. ^° Ky. 170 ; Okla. 10, 6.
" Miss. 82.
274 THE STATE CONSTITUTIONS [BOOK III
(P) Cities and towns may exempt by ordinance, except for school purposes, manufactories, for five years from tlieir establish- ment, upon majority vote of all the qualified electors at a special election.' State or municipal bonds are made exempt from taxation.^
(Q) Except as above, all laws exempting property from taxation are, in several States, void.*
§ 333. Taxes Equal.* — The Constitutions of many States pro- vide that taxation shall be "equal and uniform" throughout the State or throughout each municipality levying a tax;'^ or "pro- portional and reasonable." ®
Lands belonging to persons resident out of the State cannot, in several, be taxed higher than lands belonging to residents.''
The Legislature shall not enact any law which will permit any person, firm, corporation, or association to pay a privilege, license, or other tax to the State of Alabama, and relieve him or it from the payment of all other privilege and license taxes in the State. ^
§ 334. Valuation and Assessment. — In most States the Con- stitution provides that all taxes levied shall be assessed in exact proportion to the value ^ of the property. '"^
» S. C. 8, 8. 7,5; Ind. 10, 1 ; Kan. 11, 1 ; Ky. 171 ;
2 O. 1904, p. 652. La. 225; Mich. 14, 11; Minn. 9, 1;
^ Ark. 16, 6; Col. 10, 6; Ga. 4, 2, Miss. 112; Mo. 10, 3; Mon. 12, 2 &
4; Ky. 3; Mo. 10, 7; Mon. 12, 1; 11; N. C. 5, 3; N. D. 176; Nev. 10, 1 ;
Okla. 5, 50 ; Pa. 9, 2 ; S. D. 11, 7 ; Tex. N. J. 4, 7, 12 ; Okla. 10, 5 ; Ore. 1, 32 ;
Notes, (a) See also §§ 394, 395; 9, 1; Pa. 9, 1 ; S. C. 10, 1; S. D. 6, 17;
these same States being apt to restrict Tenn. 2, 28 ; Tex. 8, 1 ; Va. 16, 8 ;
their legislatures' powers to enact Wash. 7, 2 ; W. Va. 10, 1 ; Wis. 8, 1 ;
special laws, (b) In these States the Wy. 1, 28. Constitution only provides that tliis * N. H. 2, 5.
property may be exempted by law. ' Ida. 21, 19; Kan. Ordinance;
(c) In these States, only burying- Minn. 2, 3 ; Mo. 14, 1 ; N. D. 203 (2) ;
grounds, etc., wliich are not held Nev. Ordinance; Okla. 1, 3; S. D.
for personal or corporate profit, or 22 (2) ; Terr. U. S. R. S. 1851 ; Wash,
are "actually occupied." (S. C.) 26, 1 (2); Wis. 2, 2; Wy. Ordinance.
* I. e., in the same class of subjects * Ala. 221. (Col., Minn., Pa., Mo., Va., Ga., Del.) ; * /. e., the cash value (Ky., La.,
but " no one species of property can be Mich., Minn., N. C, N. D., Okla.,
taxed higher than another species, of S. D.).
the same value" (Ark., Tenn., W. "Ala. 211; Ark.; Cal. 13, 1 ; Ga. ;
Va.) ; except Ucense or corporation Ida. 7, 2; 111. 9, 1; Ind.; Ky. 172;
taxes (Mich. 1900, p. 15). (See, how- La.; Mass. 2, 1, 1, 4; Me. 9, 8; Mich,
ever, § 339). This principle generally 14, 12; Minn.; Miss. 112; Mo. 10, 4;
applies only to property taxation; not N. C. ; N. D. 179; Neb. 9, 1 ; N. H. ;
inheritance or license taxes, or other N. J. 4, 7, 12 ; Okla. 10, 8 ; Ore. 9, 1 ;
excises. S. C. 3, 29 ; S. D. 11, 2 ; Tenn. ; Tex. ;
' Ala. 217; Ark. 16, 5; Col. 10, 3; Utah 13,3; Va. 169; Wash.; W. Va. ;
Del. 8, 1; Fla. 9, 1; Ga. 7, 2, 1 ; Ida. Wy. 15, 11.
PART III] LEGISLATION 275
The Legislature is to provide for a just valuation, no time being specified.* Every five years ; " every ten years. ^
In Louisiana, the assessment of all property shall never exceed the actual cash value thereof. Taxpayers have a constitutional right of testing the correctness of their assessments in the courts. The val- uation put on property for purposes of State taxation must be taken as the proper valuation for local taxation.*
In California, cultivated and" uncultivated land of the same quality and similarly situated are to be assessed at the same value ; ^ so, plowing is not an improvement to be taxed.^ The value or rental value of the buildings as well as the land must be included in all assessments.^ Grain held in elevators, grown in the State, may be specially taxed. ^
§ 335. Purposes of Taxation. — (See § 330, note *). The Con- stitutions of many States prescribe certain limits to the taxing power. Thus taxes can be levied, only for the ordinary expenses of the State Government and Public State Institutions ; ^ for the costs of col- lecting the revenue ; ^^ to pay any deficiency in the finances of the previous year;" to pay the interest on the State debt; '"to pay the principal of the State debt.'^ So, in Texas, for the benefit of a sinking fund, which (tax?) shall not be more than two per cent of the State debt. Special taxes (§ 337) only are levied for these purposes,'* or for educational purposes generally.'^ For the support of free schools;'® to suppress insurrection, repel invasion, and defend the State in time of war;'^ to protect the frontier,'® for the necessary defence of the government;'^ for the erection and repairs of public buildings ; ^° for maintaining and erecting levees ; ^'
» Col. 10, 3 ; Fla. ; Ida. 7, 5 ; Mon. '» Tex.
12, 1 ; Nev. 10, 1 ; R. I. 4, 15 ; S. C. " Minn. ; Nev. ; Okla. 10, 3 ; Ore.
10, 1; Utah; Wash.; Wy. 9,6; S. C. ; S. D.; Wash. 7,8; W. Va;
2 Mich. 14, 13; N. H. 2, 6; Va. 171. Wis.
3 Mass. 2, 1, 1, 4; Me. 9, 7. '^ Ark., Fla., Ga., La., Mich., Okla., * La. 225. Ore., S. D., Tex., Va., Wash., W. 5 Cal. 13, 2. Va.
» N. D. 177. »* Ark., Fla., Ga., La., Mich., Okla.,
^ Del. 8, 7. This seems like an at- S. D., Utah, Va., Wash., W. Va. See
tack on the "single-tax" theory. § 362.
» N. D. Amt. 5. » Mich.
« Ark. 3, 31 ; Col. 10, 2 ; Fla. 9, 2 Ga. 7, 1, 1; Kan. 11, 3; Ky. 171; La 227; Mass. 2, 1, 1, 4; Mich. 14, 1 Minn. 9, 2 ; N. D. 174; Nev. 9, 2 N. H. 2, 5; Okla. 10, 2; Ore. 9, 2 S. C. 102; S. D. 11, 1; Tex. 3, 48 Utah 13, 2; Va. 188; Wash. 7, 1 W. Va. 10,5; Wis. 8, 5.
■^ Ga., La., Mich.
'« Ark., Tex., W. Va.
" Ark., Ga., La.
18 Tex.
'8 Mass., N. H.
="» Tex.
" La. 238.
276 THE STATE CONSTITUTIONS [BOOK III
to supply Confederate soldiers with wooden legs and arms; ' with pensions.' For the enforcement of (|uurantine regulations;^ to preserve the public health;* to provide "such revenue as may be needful." '
Taxes can be levied for public purposes only." No tax can be levied for paying the interest on the bonds of any chartered com- pany.^ But taxes for other purposes may be enacted according to the provisions of § 314.^ And (see § 13) the State of Oklahoma is expressly authorized to impose taxes to pay for its socialistic experiments (see § 6); and levy such taxes separately.'*
§ 336. Amount of State Tax. — (See also § 341.) The Consti- tutions of a few States limit the amount of State taxation for any one year/" to a proportion varying from one and a half mills to one cent on the dollar."
This rate may, however, be increased for a definite rate and time, by majority vote at a general election,'- or an election of the property- tax-payers. ^^
§ 337. Special State Taxes. — The Constitutions of a few States give the Legislature authority to levy a special tax in aid of the com- mon schools ; thus, in Florida, not less than one tenth per cent ; ^* not greater than one-fifth per cent.'^
§ 338. Poll-Tax. — By the Constitutions of two States, poll- taxes are declared oppressive and prohibited.*"
1 Ga. $200,000,000, and never over eight mills
2 La. (Utah 13, 7). So, one and a half
3 Tex, mills when $300,000,000, two and a half * La. mills when $1,000,000,000, and never ^ Neb. 9, 1. over three mills (Mon. 12, 9). Two « Ky. ; Minn. ; Mo. 10, 3 ; Mon. 12, mills, always (S. D. 11, 1 ; Va. 189) until
11; Okla. 10, 14; S. C. 8, 3; Tex. 8, 1907, with one other mill for schools, 3 ; Wy. 13, 3. See § 330, note 1. and a half mill for persons thereafter as ' Fla. 9, 7. by law to be provided (Va.). Three and 8 Ark. one half mills (Tex. 8, 19, Amt. 1883 ; » Okla. 10, 13 & 14. Okla. 10, 9). Four mills when the State " Exclusive of the tax to pay in- valuation reaches $100,000,000; until terest on the State debt (Mo., Tex., then, six mills (Col. 10, 11). Four mills, N. D., Wy.), or the tax to support always (N. D. 174; Wy. 15, 4). Five State educational or charitable in- mills except for defence in case of in- stitutions (Wy.). vasion, etc. (Ga. 1903, p. 21). Six " Thus one and a half mills when mills (La. 232). Ten mills, or one per the State valuation is $300,000,000 cent (Ark. 16, 8). (Ida.), or $900,000,000 (Mo.), and never »= i^j^. 1995, p. 441 ; Men. over two mills (Mo.); three mills '^ Utah, where it is $100,000,000; five mills " Fla. 12, 6.
when $50,000,000 ; and never over ten '^ ^j-k. 14, 3; Nev. Amt. 1887,
mills (Ida. 7, 9). So, four mills p. 169. when $300,000,000, five mills when '" Md. Decln. of Rts. 15 ; O. 12, 1.
PART III] LEGISLATION 277
But in many States, the Constitution provides that a poll-tax may or shall be imposed, not to exceed SI per head,^ SI. 50 per head," $2 per head,^ or $4 per head.^ Nor less than fifty cents per head,"' S2 per head," or SI per head.^ Nothing is said about the amount.^
Poll-taxes may be imposed on all male inhabitants between the ages of twenty-one and sixty/ twenty-one and fifty/" over twenty one," or on all voters. ^^
Except paupers,'^ idiots," insane persons,*^ the aged or infirm,'^ and Indians not taxed, or uncivilized."
Poll-taxes are, in several States, to be applied exclusively to the common-school fund,^^ or, in North Carolina, to purposes of educa- tion; and part of it, not more than one fourth, to the poor.^^ They must be used in the county where collected.-" One dollar may be authorized, additional to the State tax, for the public schools in any county, city, or town.^^
§ 339, Income and License Taxes. — The Constitutions of a few States specify (unnecessarily) that income taxes may be imposed ;^^ and they may be graduated.-^
But, by one, the tax is limited to such incomes as exceed S600 a year ; -* and, in two, it cannot be imposed on incomes derived from taxed property. ^^
License Taxes, Special, Specific, or Occupation taxes, may, by the Constitutions of some States be imposed. As, in detail, upon pedlers,-" hawkers,-^ auctioneers,^^ brokers,^® pawnbrokers,^ merchants,"^ com-
|
1 Ark. 14, 3 ; Fla. 9, 5 ; Ga. 7, 2 |
3; |
'» Ark., Cal., Fla., Ga., La., Miss., |
|
La. 231; R. I. Amt. 7; S. C. 11, |
6; |
R. L, S. C, Tex., W. Va. So SI; |
|
Tenn. 2, 28; W. Va. 10, 2. |
balance to the county (Va.). |
|
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2 Ala. 194; Ky. 180; N. D. 180; |
'» N. C. 5, 2. |
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Va. 173. |
2" Del. |
|
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' Miss. 243 ; N. C. 5, 1 ; Okla. |
10, |
^' Va. |
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18; Wy. 15, 5. |
22 Cal. 13, 11; Ky. 174; N. C. 5, |
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* Nev. |
3; Okla. 10, 12; S. C. 10, 1; Tenn. |
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' Tenn. |
2, 28; Tex. 8, 1; Utah 13, 12; Va. |
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« Cal. 13, 12 ; Nev. 2, 7. |
170. |
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' Tex. 7, 3. |
23 Okla., S. C. |
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« Del. 8, 5; Ida. 7,2. |
2" Va. |
|
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» Cal., La., Nev., S. C. Tex. |
25 N. C, Tenn. |
|
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" N. C, N. D. |
28 Ark. 16, 5; III. 9, 1; Neb. 9, 1; |
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» Ark., Va., W. Va. |
Tenn. 2, 28. |
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12 R. L |
2^ Ark., Neb. |
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" Cal., N. C, N. D. |
2« 111., Neb. |
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'^ Cal., N. D. |
29 111., Neb. |
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" Cal., N. D. |
30 Va. |
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" N. C, Tenn., W. Va. |
3' 111., Tenn. |
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" Cal., N. D., Nev. |
278 THE STATE CONSTITUTIONS [BOOK III
mission merchants,' showmen,^ jugglers,^ innkeepers,* liquor dealers,^ grocery keepers,® toll bridges,^ ferries," insurance busi- ness," telegraph business,'" express business," venders of patents.'^ Generally, upon all persons or corporations using franchises or privileges.'^ Upon corporations generally," banks, and banking companies,'^ railroads,'" upon destructive domestic animals.'^ Generally, upon all business which cannot be reached by the ad valorem system.'" So, upon trades, or professions."* So, gen- erally, upon persons or corporations doing business.^ "Gross revenue, franchise, stamp, registration, production, or other specific taxes." -'
Such taxes must be uniform upon each class upon which they operate,-- but in South Carolina they may be graduated. They can- not be imposed on mechanical or agricultural pursuits ; '^ or upon persons selling their own farm products.-* In Louisiana, they may be imposed on all persons except clerks, laborers, clergymen, school teachers, those engaged in mechanical, agricultural, horticultural, and mining pursuits, and manufacturers of anything except li(|Uor, tobacco, etc., and cotton-seed oil.-^ License taxes imposed by cities and towns shall be graded.^®
Collateral inheritance taxes are permitted in the Constitution, not to exceed 2h per cent ; " 3 per cent for direct inheritances over $10,000, 10 per cent on collateral.-" Unlimited, direct or col- lateral, and may be graded.'" 5 per cent, and graded.^"
' 111., Neb. " Ga. 7, 2, 1 ; S. C.
~ Ark., 111., Neb. '« Va. 170.
3 111., Neb. '9 N. C.
* 111., Neb. 20 Fia. 9, 5; Ida. 7, 2; Ky. 181;
« 111., Neb. Mon. 12, 2 ; Okla. ; S. C. (Graduated) ;
« 111. Tex. 8, 1 ; Utah 13, 12.
' 111., Neb. 21 Okla.
8 Ark., 111., Neb. " Neb.
^ 111., Neb. 2' Tex. Quaere whether this is
'° 111., Neb., "equal protection of the law."
» 111., Neb. 2^ Minn. 1907, p. xi.
'' 111., Neb. 25 La. 229.
» Ark. ; 111. ; Ky. ; N. C. 5, 3 ; ^6 g q g, 6.
Tenn. ; Va. ; W. Va. 10, 1. 27 ^la. 219.
"Mich. 14, 10; Mo. 10, 21. See =« La. 235.
Art. 65. 29 Okla.
" Kan. 11, 2; Minn. 9, 4. ^o j^iinn, 1893, 1 Amt. '« Mo. 10, 5.
PAKT III] LEGISLATION 279
Article 34. Municipal Finance and Taxation
§ 340. General Principles. — By the Constitutions of many States, the Legislature may not impose taxes upon counties, cities, or other municipaUties, or upon the inhabitants or property thereof ; but may by law ' vest in the corporate authorities thereof the power to tax.^ So, counties and townships shall have such powers of local taxation as may be prescribed by law.^
The principles of taxation are generally the same in municipal as in State taxation.'* Taxes must be levied in pursuance of a law and for public purposes specified therein.^
So, in several, such taxes must be uniform as to persons and prop- erty (except as in § 342)", and must be levied according to the value of the property.''
So, taxes for municipal purposes may be levied on all property subject to State taxation ; ^ and the valuation of property for mu- nicipal purposes must be the same as for State purposes,^ or not greater than the valuation for State purposes.^"
The Legislature shall provide by law such a system of county finance as shall cause the business of the several counties to be con- ducted on a cash basis. It shall also provide that whenever any county shall have any warrants outstanding and unpaid, for the pay- ment of which there are no funds in the county treasury, the County Commissioners, in addition to other taxes provided by law, shall levy a special tax, not to exceed ten (10) mills on the dollar of taxable property, as shown by the last preceding assessment, for the creation of a special fund for the redemption of said warrants.^^
§ 34L Amount of Municipal Tax. — (See also § 343.) The Con- stitutions of a few States limit the amount of municipal taxation for any one year. Thus the rates of county taxation, from five mills to two and one half per cent.'' But municipal corporations generally
' Usually, by general laws only ; * Fla. ; La. 243 ; S. D. 10, 2 ; Tenn. ; see also §§ 313, 330, 395, 600. Wy. 13, 3.
2 Cal. 11, 12; Col. 10, 7; Fla. 9, 5; ' S. B. Ida. 7, 6; 111. 9, 9-10; Ky. 181; La. « 111. 6, 9; N. C. 7, 9; Neb.; S. C. ; 224; Mo. 10, 10; Mon. 12, 4; Neb. 9, S. D. ; Wash.; W. Va. 6-7 ; Okla. 10, 20 ; S. C. 10, 5 ; S. D. ^ N. C. ; Tenn. 11, 10; Tenn. 2, 29; Utah 13, 5; « Mo. 10, 11 ; Mon. 12, 5. Wash. 7, 9; W. Va. 10, 9; Wy. 11, 12. » La. 225; Mon.
« Ark. 2, 23; Minn. 11, 5; S. C. "> Mo.; Mon. 8, 6. " Ida. 7, 15.
•^ Not over one half per cent on the
280
THE STATE CONSTITUTIONS
[book III
may levy a greater rate than as above limited, with a vote of the property tax-payers at an election ; ' or of the electors of the county generally ; ^ or of three-fifths vote of such electors.^
So, in some, the tax rate of towns or cities is limited to from not more than one half per cent to two per cent or even more.*
Except, taxes to pay valid indebtedness now existing or hereafter renewed.^
The Legislature shall restrict the powers of cities and towns to
valuation, real and personal (Ala. 215; Ark. 16, 91); eight mills (Okla. 10, 9); three fourths per cent (111. 9, 8); ninety-five cents per $100 (W. Va. 10, 7) ; one per cent (La. 233) ; twelve mills (Wy. 15, 5) ; one and one half per cent (Neb. 9, 5) ; two per cent in any city over 100,000 or county containing such city (N. Y. 1901, p. 1804). Not more than one-half the State tax, i. e., one fourth per cent (Tex. 8, 9, Amt. 1883). Not more than twice the State tax, except for special purpose, and with the special approval of the Legis- lature (N. C. 5, 6). The rate in counties not exceeding $6,000,000 in valuation shall not in the aggregate exceed one half per cent ; in counties between $6,000,000 and $10,000,000, it must not exceed four tenths per cent ; in counties between $10,000,000 and $30,000,000, not greater than one half per cent ; in counties over $30,000,000, not more than thirty-five hundredths per cent (Mo. 10, 11). No county, city, or town may incur debt or loan credit to an ex- tent of more than ten per cent of the value of the real estate (N. Y. 8, 10). There is a complicated sUding scale according to population of cities, etc., varying from $1.50 per $100, to 50 cents (outside the school tax : Ky. 157).
Except that, in some States, cer- tain taxes are not to be included in the amounts respectively above limited ; as, "special taxes authorized by law" (Ala.) ; taxes for free schools (Ark. 14, 3 ; N. Y. ; Va.) ; for debts already in- curred (Ala., Ark., 111., Neb., Tex., W. Va., Wy.) ; for the erection of pub- lic buildings ; but such taxes must not exceed one half per cent in any one year ; and not over fifteen hundredths per cent, for roads and bridges (Tex.).
There is a three mills county road
tax ; a seven mills school tax ; and a poll-tax of $1 (Ark. 1897, p. 93 ; 1905, p. 833). So, a three mills school tax (Fla. 1903, p. 037).
1 La.
- 111., Neb.
3 W. Va.
* Thus, not more than one half per cent in any one year (Ala. 215; Ark. 12, 4). Eight mills (Wy. 15, 6). No town not having a special charter can so levy a tax of more than one-fourth per cent (111. 11, 4), and cities having more than 10,000 population, not more than two and a half per cent (Te.x. II, 5). Counties, cities, and towns, twenty- five cents per $100 for county, city, or town purposes, fifteen cents "for roads and bridges, twenty-five cents for public buildings, streets, sewers, water, etc. (Tex, 1899, p. 171). The rate in cities and towns having over 30,000 inhabitants may not exceed in the aggregate one per cent ; between 10,000 and 30,000 inhabi- tants, not over six-tenths per cent; between 1,000 and 10,000, not over one-half per cent; under 1,000 not over one-quarter per cent ; and in school districts, for school purposes, not over four-tenths per cent ; but for school purposes these rates may be in- creased by a majority vote of tax- paying voters at a special election, and for the erection of public buildings, by a two-thirds vote of all voters at such an election (Mo.). Similar pro- visions are found in Oklahoma, and the rates are : townships not over one half per cent; cities and towns, one per cent ; school districts, one half per cent ; total thirty-one and one half mills (Okla. 10, 9, & 10). For New York, see above, note 12.
« Ala., Ark., Mo., Wy.
PART III] LEGISLATION 281
levy taxes and assessments to borrow money and contract debts.' And this is done, in fact, in many other States.
§ 342. Prescribed Purposes. — In Wisconsin, the Constitution provides that each town and city shall raise, by tax, annually, for the support of the common schools, a sum not less than half the sum re- ceived for such purposes from the State school fund.^ In North Carolina, no county, town, etc., shall levy a tax, except for its neces- sary expenses, without a special vote of the electors.^ In Arkansas the Legislature may, by general law, authorize school districts to levy, by a vote of the qualified electors, a tax for school purposes, not to exceed one half per cent.* In Georgia, counties may levy taxes for schools under special authority of the Legislature and a two-thirds vote of the county.^ In Texas, counties may raise a special tax for common schools not exceeding one fifth per cent.^ In Florida it must be from three to five mills.^
Counties, towns, etc., may levy taxes for their current annual ex- penses,^ for educational purposes,^ for the interest and sinking fund of debts already created,*" for the building and repair of courthouses, gaols, bridges, and other necessary conveniences for the people of the county.'* The Constitution of South Carolina provides that there shall be an annual tax of three mills per dollar in each county for the support of public schools.'"
In other States these matters are left to statutes.
§ 343. Special Taxes for local improvements may be made either by general assessment,*^ or by betterment tax on contiguous property.** But only for sidewalks and sewers, and not in excess of the benefit.*^
But such betterment taxes must be consented to by a majority of
property holders in the locality affected, and they must be ad valorem
and uniform.*^ So, in Louisiana, a special tax not exceeding one half
per cent, nor for more than ten years, may be levied in aid of railroads
or public improvements by vote of a majority of the tax-payers.*^
' S. C. 8, 3. '2 S. C. 11, 6.
^ Wis. 10, 4. " 111. 9, 9 ; Neb. 9, 6.
3 N. C. 7, 7. " Ala. 222, 223 ; Ark. Amt. 1907,
* Ark. 14, 3. p. ix; 19, 27; Cal. 11, 19: Col. 1891,
« Ga. 8, 4, 1. p. 89; 1903, p. 74; 111.; Minn. 9. 1;
« Tex. Amt. 1883. Neb.; Okla. 10, 7; S. D. 11, 10; Va.
^ Fla. 12, 8. 170; Wash. 7, 9.
« Tex. 11, 6. '' Ala., Va.
» Ga. 7, 6, 2. " Ark.
i" Tex. " La. 242. " Ga.
282
THE STATE CONSTITUTIONS
[book III
The betterment tax must be collected before the work is com- menced.* License taxes may be imposed by towns, etc., under legislative authority.-
§ 344. Power to Contract Loans, etc. — The Con.stitutions of several States provide that the power of municipal corporations to tax, borrow money, contract debts, or loan credit, shall be restricted so as to prevent the abuse of such power.^ So, it may only be for schools, roads, bridges, indebtedness, current expenses, etc*
But in Nevada, that there can be no restriction on the power of municipalities to tax, borrow, loan, etc , for the purpose of getting a water supply.
§ 345. Loans of Credit, etc. — By the Constitutions of most States, no town, county, or municipality can give money or property to any corporation having for its object a dividend of profits ; ^ or to any in- dividual or corporation whatever;^ or to any railroad corporation specially.^ Nor can it loan its money or credit to such corporations respectively.^ (So, no county can loan its credit to any association or corporation but by special act with notice, etc., see § 346.) ®
No county, city, or town, etc., may incur any debt above its an- nual revenue without a two-thirds vote at a special election; and a tax wdth sinking fund of twenty years must be provided.*" It may not become a party to, or interested in, any work of internal im- provement except roads.**-
Nor, in several, can such town, etc., become security for such cor- poration ; *" nor become a stockholder or bondholder in such private corporation.*^
Utah;
» Cal.
" Ky. 181, Amt. 1902, 50. 3 Ala. 222, 226; Ark. 12, 3; Kan. 12, 5 ; Mich. 15, 13 ; Miss. 80 ; N. C.
8, 4; N. D. 130; Nev. 8, 8; N. Y. 12, 1; O. 13, 6; Ore. 11, 5; S. C. 8, 3; S. D. 10, 2; Wis. 11, 3; Wy. 13, 3.
* S. C.
« Ida. 12, 4; N. H. 2, 5; Okla. 10, 17.
« Ala. 94 ; Ark. 12, 5 ; Cal. 4, 31 ; Col. 11, 2; Del. 8, 8; Fla. 9, 10; Ga. 7, 6, 1 ; Ida. 8, 4 ; III. separate section ; Ind. 10, 6; Ky. 179; La. 58; Miss. 183; Mo. 4, 47; 9, 6; Mon. 13, 1; N. D. 185; N. J. 1, Amt. 19 & 20; N. Y. 8, 10; O. 8, 6; Ore. 11, 9; Pa.
9, 7; S. D. 13, 1; Tex. 3, 52 & 11, 3; Utah 6, 31; Wash. 8, 7; Wis. 11, 3; Wy. 16, 6.
' Ct. Amt. 25 ; Neb. 14, 2 ; Wy. 3, 39; 10, 10 (5).
8 Ala. ; Ark. 16, 1 ; 1903, p. 484 Cal. ; Col. 11, 1 ; Ct. ; Del. ; Fla. ; Ga. Ida. ; 111. ; Ind. ; Ky. ; La. ; Miss. ; Mo. Mon.; N. D. ; Nev. 8, 10; N. H. N. J.; N. Y.; O. ; Okla.; Ore.; Pa. S. D. ; Tenn. 2, 29 ; Terr. U. S. 1886 818, 2 ; Tex. ; Utah; Va. ; Wash. ; Wy
» Md. 3, 54.
|
" Ida. 8, 3. |
|
|
" Va. |
|
|
'- Cal., Col., La |
, N. H., N. J., Terr. |
|
'3 Ala. ; Ark. ; |
Cal.; Col. 11, 2; |
|
Ct. ; Del. ; Fla. |
Ga. ; Ida. ; 111. ; |
|
Ind.; Ky.; La.; |
Miss. ; Mo. ; Mon. ; |
|
N. D.; Neb. 12, |
1; Nev.; N. H. ; |
|
N. J. ; N. Y. ; 0. |
; Okla.; Ore.; Pa.; |
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S. D. ; Tenn.; |
Terr. ; Tex. ; Va. ; |
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Wash.; Wy. |
PART III] LEGISLATION 283
Except, it may own stock or bonds of railroad companies; ' or of any corporation, if the stock be paid for at the time of subscription ; ' or for gas, lighting, sanitary, water, or school purposes, provided it "own its just proportion of the property so erected and receive its proportionate income." ^
Nor can the Legislature authorize such town, etc., so to do.'' The same would follow from the constitutional provisions in other States.
So, no municipality can become a stockholder, directly or in- directly, in any bank.^
In other States no municipality can become indebted or issue bonds to aid a railroad for more than ten per cent of its valuation ; ^ and five per cent additional, on a two-thirds vote.' (See § 340.)
Except for the necessary support of the poor.^
§ 346. Limitations on Section 345. — But in some States a county, town, etc., may give or lend its property or credit, or own stock, not- withstanding § 345, on vote of the electors under authority of law ; ^ or on a three-fourths vote of the electors ; ^° or by act of the Legisla- ture approved also by the next Legislature after publication in the locality interested ; " or for constructing roads and bridges ; '^ or by a vote of property owners, for ten years, if the appropriation be not more than five mills on the valuation. ^^
See also § 332.
Article 35. Collection of Taxes
§ 350. Sworn List. — By the Constitution of California every tax-payer is required to make an annual statement of his taxable property under oath.^*
§ 35L Sale for Taxes. — The Constitution of Louisiana provides that there shall be no forfeiture for the non-payment of taxes. ^^
But there must be a sale of so much as is necessary. ^^ Such sale of real estate must be after order or judgment of some court of record."
There must, in two, be reasonable notice to the owner. ^^ And, in
> Nev. ' Neb. 14, 2.
2 Ind. "' Tenn. 2, 29.
» Ida. 12, 4. " Md. 3, 54.
* Ala., Cal., Fla., Ga., Ky., Mo., '^ Ky.
N. H., O., Tex. But see Tex. Amt. >" La. 270.
1903, p. 247. " Cal. 13, 8.
s lo. 8, 4. *^ La. 233.
8 Minn. 9, 14 ; Neb. (see § 346). >« La. ; Tex. 8, 13.
' Neb. " 111. 9, 4.
8 N. D. ; N. Y. " 111. 9, 5 ; La.
284 THE STATE CONSTITUTIONS [BOOK III
two others, the occupant must always have personal notice by service before the time of redemption expires.'
§ 352. Redemption. — By the Constitutions of a few States, the owner, tenant, etc., of real estate sold for taxes may redeem at any time within two years from the sale;- at any time within one year therefrom.^ Upon payment of twice the purchase-money ; * of the price plus twenty per cent and costs.*
The right of redemption from all sales of real estate, for the non- payment of taxes, or special assessments, of any and every character whatsoever, shall exist, on conditions to be prescribed by law, in favor of owners and persons interested in such real estate, for a period of not less than two years.'
§ 353. Tax-titles. — By the Constitution of Louisiana, all tax deeds are prima facie e\adence of the sale ; and no sale can be an- nulled for informality except on payment or tender of the price plus ten per cent interest.^ In Texas, the deed vests a good title in the purchaser, subject to be impeached only for actual fraud. ^ The courts are "to apply liberal principles in favor of tax titles." ^
§ 354. State Boards of Equalization are pro\aded for, consisting of the Governor, Secretary of State, Attorney-General, State Auditor, and State Treasurer, whose duties shall be prescribed by law. The Board of County Commissioners for the several counties of the State shall constitute Boards of Equalization for their respective counties, whose duty it shall be to equalize the valuation of the taxable prop- erty in the county under such rules and regulations as shall be pre- scribed by law.^'*
The State Board for Equalization, etc., is composed of the State Treasurer, Auditor, and Secretary."
Such boards exist in many States by statute.
Article 36. State Debts
§ 360. Temporary Loans. — By the Constitutions of most States, the Legislature may authorize a temporary loan, to meet casual deficits, etc., not exceeding with all other such debts, S50,000;'^
* lU. ; Neb. 9,3. « Tex. 8, 13.
2 111. 9, 5 ; Neb. 9, 3 ; Tex. 8, 13. » Miss. 79.
3 La. 233. " Ida. 7, 12 ; Mon. 12, 15.
* Tex. » Wy. 15, 10.
« La. 12 Ariz. * Bill of Rts. 25 ; Md. 3, 34 ;
" Miss. 79. Mich. 14, 3; Ore. 11, 7; R. I. 4, 13.
^ La. 233.
PART III]
LEGISLATION
285
$100,000; » S200,000;2 $250,000 1^ $300,000;* $400,000 ;'^ $500,000;" $750,000;^ $1,000,000; « or the amount of such loans is not limited.*
But in Alabama, until such loan is paid, no new one can be nego- tiated. (The same follows in all States, unless the whole debt be less than the sum allowed.)
And in several, every such law shall provide annual taxes suffi- cient to pay the debt, principal and interest, in two years; '" in five years ; " in ten years ; '^ thirty years ; '^ when due ; ^* annual taxes sufficient to pay the interest.*^
Such provision for taxes and appropriation to meet the debt are irrepealable until the debt is paid.^" See § 362. For the method of enacting such laws, see § 315.
§ 361. Other Debts may, by the Constitutions of most of the States, be created for the following purposes only:^'' to repel in- vasion or suppress insurrection,^® to pay the State debt,^^ principal and interest,^'' or interest only.^^ The amount of such debts is not limited." Also, for the erection of public buildings "^ (but not to an amount over $50,000); for public improvements (not over the limit prescribed in § 360);^* for canals;-^ for the improvement of highways.^®
And debts for purposes not above mentioned, but distinctly speci-
1 Col. 11, 3 ; Mon. 13, 2 ; Neb. 14, 1 ; N. J. 4, 6, 4 ; S. D. 13, 2 ; Wis. 8, 6.
2 Ga. 7, 3, 1 ; N. D. 182 ; Tex. 3, 49 ; Utah, 14, 1.
3 111. 4, 18; lo. 7, 2; Minn. 9, 5; Mo. 4, 44.
* Ala. 213 ; Cal. 16, 1 ; Me. 9, 14 ; Nev. 9, 3.
« Wash. 8, 1 ; Okla. 10, 23.
« Ky. 49.
' O. 8, 1.
« Kan. 11, 5; N. Y. 7, 2; Pa. 9, 4. 9 Del. 8, 3 ; Ind. 10, 5 ; N. C. 5, 4 ; S. C. 10, 11; Va. 184; W. Va. 10, 4. So in the other States, the power to borrow money being inherent in their sovereignty.
'» Mo.
" Wis.
12 Minn.
» N. D.
" Kan.
15 Neb.
" Kan., Minn., Neb., Wis.
" I. e., exclusive of temporary loans.
18 Ala. 213; Cal.; Col.; Del. 8, 3 Fla. 9, 6 ; Ga. 7, 12, 1 ; Ida. 8, 1 ; 111. Ind.; lo. 7, 4; Kan. 11, 7; Ky. ; La, 46 ; Md. ; Me. ; Mich. 14, 4 ; Minn 9, 7 ; Mon. ; N. C. ; N. D. ; Neb. 14, 1 Nev.; N. J.; N. Y. 7, 3; O. 8, 2 Okla. 10, 24 ; Ore. ; Pa. ; R. I. ; S. D. Terr., U. S. 1886, 818; Tex.; Utah 14, 2; Va. ; Wash. 8, 2; W. Va. Wis. 8,7; Wy. 16, 1. See § 315.
19 Ala. ; Ark. 16, 1 ; Del.
N. Y.; O.
Fla.; Pa;
W. Va.
Ga. ; Ky. ; Mo. ; Terr.; Tex.; Va.
20 Va., W. Va.
21 Ind.
22 N. Y. 7, 4.
23 Col. See § 324. 2* Kan. 11, 5.
25 N. Y. 7, 10.
28 N. Y. 7, 12; Amt. 1905. Such debt may not exceed fifty million dol- lars, and counties may be required to pay thirty-five per cent and towns fifteen per cent of the cost, towards a sinldng fund of two per cent.
286 THE STATE CONSTITUTIONS [UOOK III
fied in the bill, may be incurred, in many States, if the law is passed and ratified according to §§ 315, 303, and provision for payment made according to § 302;' so, of debts exceeding the amount limited in § 30U." But otherwise no debts can be incurred except as in §§ 300, 301.^ The amount of such debts is limited to one per cent of valuation ; * one and one-half per cent.^
In INIaine, the Constitution authorized a special war debt of $3,500,000." Tliree States are forbidden to issue any interest- bearing treasury warrants or scrip ; ^ except for the redemption of bonds previously issued, or for such debts as are expressly author- ized by the Constitution.^ A recent Arkansas amendment forbids all interest bearing "evidences of indebtedness" both to the State, counties, cities, and towns, except on vote of the people, in cities of the first and second class.^
§ 302. Payment of Debts. — In several States, no debt '" can be contracted by the Legislature unless authorized by a law which shall at the same time make provision by taxation, etc., for its payment; thus : —
For its payment, principal and interest, when due ; " or within ten years ; '^ thirteen years ; '^ fifteen years ; " within twenty years ; '^ twenty-five years;'® thirty years; '^ thirty-five years; '^ or fifty years; '^ for the payment of the interest (only), when due.-"
And this part of the law, is, by the Constitutions of these States declared irrepealable until the debt is paid.-' In some States there are also constitutional provisions for a sinking fund.^^
§ 303. Ratification hij the People. — An act authorizing a State
» Cal. ; Ida. ; 111. ; lo. 7, 5 ; Kan. 9, 5 ; Mon. 13, 2 ; Neb. ; S. D. 13, 2 ;
11, 6; Ky. 50; Md. ; Mon.; N. C. ; Va. 187. N. J.; N. Y.; R. I.; S. C; Wash.; ^= S. D. 11, 1. Wy. '^ Me. ; Minn. ; Mo. 4, 44.
2 Cal., Mo., Mon., Nev., N. D., Okla., " Col. 11,4; Md. 3, 34 ; Mo. 4, 44. S. D. '= Cal. 16, 1 ; Ida. 8, 1 ; lo. 7, 5 ;
3 Ark. ; Col. ; Minn. 9, 7 ; Mo. ; Nev. 9, 3 ; Utah, 13, 2 ; Wash. 7, 1 ; Neb. ; O. 8, 3 ; Wis. 8, 4. 8, 3.
* Wy. 16, 1 ; Terr., U. S. 1886, 818, 3. '» Okla. 10, 4.
6 Ida. '' Ky. 50 ; N. D. 182.
« Me. 9, 15. '« N. J. 4, 6, 4.
' Ark. 16, 1 ; S. C. 10, 7; Va. 10, 13. '« N. Y. 7, 4.
« S. C. ; Va. ^° 111. 4, 18; N. C. 5, 4; S. C. 10, 11.
8 Ark. 1903, p. 484. ^i Qal. ; Col.; Ida.; 111.; lo. 7, 6;
" Except debts incurred to meet a Kan.; Md., Minn.; Mon.; N. D. ; casual deficit (§ 360), or except debts Nev.; N. J.; N. Y. ; S. D. The pro- incurred to repel invasion or suppress vision seems hardly necessary, insurrection (§ 361). ^- Ga. 7, 14, 1 ; Ky. 48; Mich. 14, 2;
" lo. 7, 6; Kan. 11, 5-6; Minn. Pa. 9, 11; Va. 10, 8.
PAKT III] LEGISLATION 287
debt, under §§ 361, 362, must in several States be ratified by the people at a general election ; ^ and it requires a two-thirds vote of the people.^
§ 364. Limitations on the State's Power to contract Debts. —
Rebellion Debts. — By the Constitutions of two Southern States, the State shall never assume, pay, or authorize the collection of any debt or obligation, express or implied, incurred in aid of rebellion against the United States.^ See § 31, and compare U. S. C. Amt. XIV, 4. So, no county, city, or municipal corporation shall levy or collect any tax for the payment of any debt created for the purpose of aiding rebellion against the State or the United States.*
All debts must be by State bonds of an amount not under $50 each, on interest, payable in not more than forty years.^
§ 365. Repiidiation. — The Constitution of North Carolina pro- vides that all debts authorized or bonds issued by the Legislature of 1868-1870, or under the Convention of 1868 (except such as were issued to fund the old debt), shall never be paid, unless the law pro- posing payment be ratified by the people at a special election.^ And the Constitution of Missouri provides that the claims audited by virtue of the Act of 1874 to adjust the war debt of the State or any similar act shall never be paid by the State until they are paid to the State by the United States.^
But in Arkansas, the Constitution prescribes that the Legislature shall, from time to time, provide for the payment of all just and legal debts of the State. ^ Compare also § 362. By an amendment, how- ever, the " Holford " bonds of 1869 are repudiated.^
Article 37. Municipal Debts
§ 370. Purposes. — (See also § 362. ) Some Constitutions provide that no county, city, or village shall contract debts except for county, city, and village purposes ; '° for making and repairing public roads and bridges; " for erecting necessary public buildings; '" for school,
' Cal.; Ida.; 111.; lo. ; Kan. 11, ^ Mo. 4, 52.
6; Ky.; Mon. ; N. J.; N. Y. ; Okla.; « Ark. 16, 2.
R. I. ; Wash. ; Wy. 16, 1. » Ark. 1879, p. 149.
2 Mo.; S. C. 10, 11. »» N. Y. 8, 10; Utah 14, 4; Wash.
' Ga. 7, 11, 1; N. C. 1, 6. 8, 6.
* N. C. 7, 13. » Col. 11, 6; Mo. 1905, p. 39.
« S. C. 10, 11. '2 coi^ ]^io
« N. C. 1, 6.
288 THE STATE CONSTITUTIONS [BOOK III
water, sanitary, and ligliting.' No comity can borrow money for the purpose of taking stock (§ 345) ; ^ so no county can contract debts in the construction of railways, canals, or works of internal improve- ment, except as in § 340.^ No county, city, or other nmnicipality can ever issue interest-bearing evidences of indebtedness, except in payment of debts previously (to 1S74) existing.* In Texas, counties and cities bordering on the Gulf may levy taxes and issue loans for the erection of sea-walls, breakwaters, and for sanitary purposes.* In Colorado, school-districts may contract a loan upon a majority vote of the tax-payers therein.* In Louisiana, various purposes are particularly specified, and in IMichigan, county roads.^
The Legislative Assembly shall have no power to pass any law authorizing the State, or any county in the State, to contract any debt or obligation in the construction of any railroad, nor give or loan its credit to or in aid of the construction of the same.^
§ 37L Amount. — There is an increasing tendency to limit by Constitution the amount of municipal debts; thus, in Virginia no county or city can in the aggregate be indebted or contract debts to an amount exceeding 18 per cent on its assessed valuation ;° in New York, 10 per cent on the realty; ^° in others, S per cent; " 7 per cent ; ^^ 5 per cent ; '^ 4 per cent ; ^* 3 per cent ; ^^ 2 per cent ; ^* 1 ^ per cent ; " j\ P^r cent or jq P^r cent in counties having a valuation under $5,000,000.^^ In Kentucky there is a sliding scale according to six classes of cities ranging from 10 per cent to 2 per cent of valu- ation;^^ in California no county, city, or town is permitted to con- tract any debt in excess of the annual expenditure except by vote of the people.'" No county in Oregon may create debts to exceed S5,000.-^ In South Carolina there is also a provision that there may be no debt upon any " territory " (of overlapping municipalities)
> Ida. 12, 4. Mo. 10, 12 ; Mon. 13, 6 (of counties) ;
2 Ind. 10, 6. N. D. 183; Okla. 10, 26; W. Va. 10, 8;
3 Md. 3, 54. Wis. 11, 3.
* Ark. 16, 1. " Utah 14, 4 (of cities and towns
« Tex. 11, 7. only).
' Col. 11, 7. 15 Col. 11,8; Mon. 13, 5; S. D. 13, 4
^ La. 281; 1906, 122; Mich, 1899, (of cities and towns only in Colorado).
p. 478. 18 Ind. 13, 1 ; Mon. 13, 6 ; Wy. 16, 3.
^ Mon. 5, 38. Utah 14, 4 (of counties only).
« Va. 127. 1^ Wash. 8, 6.
" N. Y. 8, 10. >8 Col. 11, 6.
" S. C. 8, 7. >» Ky. 158.
'' Ga. 7, 7, 1 ; Pa. 9, 8 ; Wash. 8, 6. ^o g^e § 372.
" 111. 9, 12; lo. 11, 3; Me. Amt. 22; ^i Qre. 11, 10.
PART III] LEGISLATION 289
over 15 per cent.' All bonds in excess of this limit are usually declared void.^
Except, in Oregon, to repel invasion or suppress insurrection; or, in Indiana, to provide for the protection of the people in time of war or great public calamity, on a petition of a majority of the property- owners in number and value; or, in ^Missouri, to erect a court-house or gaol ; or, in New York, North Dakota, Wyoming, and Colorado, to supply water to the city or town ; or in North Dakota, sewerage works ; or, in Montana, of cities and towns for sewerage or water supply owned by the municipality, by act of Legislature, and on popular vote.^ Such water bonds may only run 20 years, with sinking-fund, etc.*
But in Colorado, counties, in Oklahoma and North Dakota cities and towns, may incur debt to a greater amount than as above limited by a majority vote of the tax-payers in such county.^ In Oklahoma such debts may be created for "purchasing or constructing public utilities to be owned by the city," etc. So any county, town, etc., may incur an additional indebtedness not exceeding 10 per cent " upon the valuation of the year preceding (1) for the purpose of providing water and sewerage for irrigation, domestic uses, and other purposes; provided that a city where the population is 8,000 or more may incur an additional debt not exceeding 8 per cent for the purpose of constructing electric railways, electric lights, or other lighting plants, provided further that no county, town, etc., shall be included within such district without the majority vote of the electors, and no such debt shall be incurred for any of the purposes in this section pro%dded unless by a majority vote of the electors of such county, town, etc. ;'' (2) for water, light, and sewerage works owned by the municipality; ^ (3) for county roads.^
§ 372. Voting. — No municipality can, in a few States, con- tract any debt (except a temporary debt, incurred in antici- pation of income) without the assent of two thirds of its voters at a special election; ^"^ or a majority; '^ of tliree fifths, at any elec-
' S. C. 10, 5. ^ S. D. 13, 4, as amended.
2 Mon. ; N. D. ; N. Y. ; Okla. 10, 29. * Utah 14, 4 ; Wash. 8, 6. ^ But not over 4 per cent on the * Three per cent (Mich. 1899, p.
valuation (N. D., Wy.). 478).
* N. Y. '" Ga. 7, 7, 1 ; Ida. 8, 3 ; Ky. 157 ; ' But only to double such amount Mo. 10, 12 ; 9, 19.
(Col.) or 8 per cent instead of 5 per '' Cal. 1891, p. 523; Mon. 14, 5; cent and by a two-thirds vote (N. D.). Wy. 16, 4.
* Eight per cent (Utah).
19
290 THE STATE CONSTITUTIONS [BOOK III
tion ; ' of a majority of the tax-pa i/rrs ; • botli in nninlxT and anionnt;^ of the electors, and under a law;^ on a petition hy a niajoritv of the freeholders; and they must have paid all taxes, State and local, for the preceding year.^
§ 373. Payment. — A municipality creating a debt must, by the Constitutions of several States, at the same time provide for its payment, principal or interest, and make provision for a tax or a sinking-fund therefor, to be fully paid, when due, or at maturity;" within fifteen years ; ^ twenty years ; * twenty-five years ; " thirty years;'" thirty-four years ; " forty years.'- The sinking-fund must be of two per cent annually.'^
§ 374. Collection of Municipal Debts. — By the Constitutions of several Western States, private property shall not be liable to be taken and sold for the payment of corporate debts of municipal corporations." The New England law is otherwise.
§ 375. No bond or evidence of debt of any county, or bond of any township or other political subdivision shall be valid unless the same have indorsed thereon a certificate signed by the county auditor, or other officer authorized by law to sign such certificate, stating that said bond, or evidence of debt, is issued pursuant to law and is within the debt Umit.'^
Article 39. IMatter of Legislative Power
§ 390. The State Legislatures during the Revolution had un- limited legislative power. They are now restrained, principally, by Articles I. 10, II. 1, and IV., and Amendments XIII., XIV., and XV. of the Federal Constitution (but see Appendix, Z, AZ), and by the State Constitutions, and in the latter we find an ever-increasing tendency to limit legislative power. See Book I ; Book III. § 1.
§ 391. In General. — Some of the older States have provisions in the Constitution attempting to define generally the duties of the
» Okla. 10, 26 ; Wash, (does not ap- » Ida. ; 111. 9, 12 ; Mo. 10, 12 ;
ply to debts under the lower limit in Wis. 11, 3. § 371) ; W. Va. 10, 8. » Okla.
2 Col. 11, 8; La. 281; S. C. 2, 13; '» Ga. 7, 7, 2; Pa. 9, 10. Utah 14, 3. " W. Va. 10, 8.
« La. »2 Cal. ; Ky. 159 ; La.
* Ala. 104. " Tex. 11, 5.
« S. C. " Cal. 11, 15; Col. 10, 14; 111. 9, 10;
« N. D. 184; S. C. 8, 7; S. D. 13, 5. Mo. 10, 13; Mon. 12, 8; Neb. 9, 7;
^ Col. 11, 8 (of a city or town only). Wy. 11, 13.
'5 N. D. 187 ; Wy. 16, 8.
PART III] LEGISLATION 291
Legislature and the purposes and objects of legislation ; ' as, " for the redress of public grievances, and for making such laws as the public good may require;"- or, "all manner of wholesome and reasonable order, laws, statutes, ordinances and directions as they may judge for the benefit and welfare of this State." ^ "To encourage private and public institutions, rewards, and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manu- factures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety and all social affections and generous sentiments, among the people." * So, in several States, the Legisla- ture are to pass such laws as may be necessary to carry into effect the provisions of the Constitution.^ The Legislature are to pass such laws as will foster and aid the agricultural, mining, and manufacturing interests of the State.*^ They shall provide, as far as practicable, by general laws, for all matters usually appertaining to private or local legislation.'^ So, for all matters specified in § 395.^
But no law or tax may, in jMichigan, be enacted by the State or any municipal corporation for any internal improvement except by the city of Grand Rapids to improve its river navigation."^
The legislative power of the Territories extends to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States. ^°
The allowable province of legislation other than its general con- stitutional limitations will, however, be best defined by the limita- tions and restrictions on legislation contained in this chapter,
§ 392. Suspending Laics }^ — By the Constitutions of most States, laws can only be suspended by the Legislature ^- or by authority
' Ga. 3, 7, 22; Me. 4, 3, 1; Vt. Miss. 88; N. J. 4, 7, II ; N. Y. 3, 18;
2, 9. S. C. 3, 34 ; W. Va. 6, 39 ; Wis. 4, 32.
2 N. H. 1, 31. » Mich. 1893, p. 431. See also § 324.
3 N. H. 2, 5; Mass. 2, 1, 1, 4. '° U. S. R S. 1851.
* N. H. 2, 82. " This matter has been fully dis-
* Col. Sched. 4; 111. Sched. 19; lo. cussed in Book I. The dispensing 12, 1 ; Md. 3, 56 ; Mo. Sched. 15 ; power of the king was claimed by N. D. 68 ; N. J. 10, 12 ; Okla. 5, 45 ; James II. ; denied in a memorable Tex. 3, 42; W. Va. Sched. 22 ; Wy. 21, speech by Chief Justice Jones, who 14. The question whether a State was thereupon dismissed ; and finally Constitution is self-executing is else- prohibited in the Bill of Rights a few where discussed; see § 2, note. years later. See § 127 for habeas cor-
* Ark. 10, 1. pus; § 88 for stay laws.
' Me. 4, 3, 13. '- Ala. 21; Ark. 2, 12; Del. 1, 10;
8 Ala. 104; lo. 3, 30; Md. 3, 33; Ind. 1,26; Ky. 15; La. 188; Mass. 1,
292 THE STATE CONSTITUTIONS [BOOK III
derived from the Legislature ; ' and not for the benefit of any private association, corporation or incHvidual.^
§ 393. Laivs Impairing Cojiirads.^ — By the Constitutions of nearly all, the Legislature are forbidden to pass laws impairing the ob- ligation of contracts,* or destroying the remedy for their enforcement, and cannot revive any rights or remedy barred by lapse of time, etc.*
By that of Louisiana, vested rights may not be divested, unless for purposes of public utility, adequate compensation being first made (compare Article 9). So, in one other, no laws taxing retro- spectively sales, purchases, or other acts previously done, can be passed.^ But the Legislature may, in Ohio, by general laws, au- thorize courts to carry into effect, upon such terms as are just and equitable, the manifest intention of parties and officers, by curing omissions, defects, and errors in instruments and proceedings arising out of their want of conformity with the laws of the State. ^ In New Hampshire retrospective laws for the decision of civil causes are forbidden ; ^ so of retrospective laws taking away a cause of action, or destroying a defence.^
§ 394. Laws to be General}^ — In many States, the Constitution provides that there shall be no special, local, or private law in any case for which provision has been (or can be ") made by general law.^' Or, in several, in any case where the relief sought can be given by any State court. '^ And whether a general law can be made applicable or not is declared, in Missouri, Minnesota, Kansas, and Alabama, to be a judicial question, despite any legislative assertion to the con-
20 ; Md. Decln. of Rts. 9 ; Me. 1, 13 ; Tex. 1, 16 ; Utah 1, 18 ; Va. 58 ; Wash. 1,
N. C. 1, 9; N. H. 1, 29; N. M.* 1851, 23; AV. Va. 3, 4; Wis. 1, 12; Wy. 1, 35. July 12. § 19; O. 1, 18; Ore. 1, 22; « Ala. 95; Okla. 5, 52. See § 630. Pa. 1, i2; S. C. 1, 13; S. D. 6, 21; « N. C. 1, 32. Tex. 1, 28; Va. 7; Vt. 1, 15. ' O. 2, 28.
1 Del., Ky., La., Mass., Md., Me., » N. H. 1, 2, 3.
N. H., N. M.,* Ore., Pa., S. C, S. D., Vt. » Ala. ; Fla. 3, 33 ; Okla. 5, 52.
2 Ala. 108; Va. 64. >° Compare also §§ 17, 391.
' U. S. C. 1, 10. See § 141, note 1. " Cal. ; 111. ; Ky. ; Minn. 1891, p. 19;
* Ala. 22; Ark. 2, 17; Ariz.* Bill of Mo.; Tex.; Wy. ; Okla.
Rts. 19; Cal. 1, 16; Col. 2, 11; Fla. '- Ala. 105, 109; Ark. 5, 25; Cal.
Decln. of Rts. 17; Ga. 1, 3, 2; Ida. 4,25; Col. 5,25; Ga. 1,4, 1; 111.4,22
1, 16. ; m. 2, 14; Ind. 1, 24; lo. 1,21; Ind. 4, 23; Kan. 2, 17; 1905,543
Ky. 19; La. 166; Me. 1, 11; Mich. Ky. 59; Md. 3, 33; Miss. 87; Mo
4,43; Minn. 1,11; Miss. 16; Mo. 2, 15 ; 4, 53; Mon. 5, 26; N. D. 70; Neb
Hon. 3, 11 ; N. D. 16, 5 ; Neb. 1, 16 ; 3, 15 ; Nev. 4, 21 ; Pa. 3, 7 ; S. C. 3, 34
Nev. 1, 15; N. J. 4, 7, 3; N. M.* 1851, S. D. 3, 23; Okla. 5, 59; Terr. U. S
July 12, § 14; O. 2, 28; Okla. 2, 15; 1886, 818; Tex. 3, 56; Utah 6, 26
Ore. 1, 21; Pa. 1, 17; R. I. 1, 12; Va. 51; W. Va. 6, 39; Wy. 3, 27.
S. C. 1, 8; S. D. 6, 12; Tenn. 1, 20; '^ Ala.; Ark.; Ky. 60; Miss.; Pa.
Va. 5,20; W. Va.
PAET III] LEGISLATION 293
trary. In some, every statute is a public law unless otherwise de- clared in the statute itself.'
Nor can the Legislature indirectly enact a special or local law by the partial repeal of a general law.- But laws repealing local or special laws may be passed.^ A general law is one which applies to the whole State.*
So, in Georgia, no general law affecting private rights can be varied in any particular case, by special legislation, except with the free consent, in writing, of all persons to be affected thereby.^ And in Texas, no man, or set of men, shall ever, by special law, be exempted or relieved from any public duty imposed by general laws.* In New Jersey, no general law shall embrace any provision of a private, special, or local character.^ No special law may exempt any person etc., from the operation of any general law.^
§ 395. Local or Special Laws ^ in most States and in many cases are forbidden by the State Constitutions.
Land: Thus, in detail, are forbidden, in the several States, all such laws laying out or opening roads or highways ; '" vacating streets, roads, plats, and public squares ; " authorizing or pro-
' Ind. 4, 27 ; Ore. 4, 27 ; S. C. 6, 4. fifty different restrictions in one State
2 Ala. ; Ky. 60 ; La. 49 ; Miss. ; alone. The most concise classification
Mo. ; Minn. ; N. D. ; Pa. 3, 7. the author has been able to make
* Ky. ; La. ; Mo. ; Minn. ; N. D. ; mounts up to one hundred and twenty Pa. ; S. D. 14 ; Utah. matters upon which special legislation
* Ala. 1 10. is forbidden, throughout the States and
* Ga. 1, 4, 1. Territories. The statement in the ® Tex. 16, 43. text is beheved to be substantially ^ N. J. 4, 7, 4. accurate, though it would be well in
* Ala. 104. any case where a State is referred to,
* The distrust of the people of their to consult the exact wording of the representatives is in nothing more constitutional provision to which shown than in the increasing number reference is made.
of matters they are forbidden to meddle '" Cal. 4, 25 ; Col. 5, 25 ; Del. 2, 19
with; these restrictions will be found Ida. 3, 19; 111. 4, 22; Ind. 4, 22; lo
generally noted under their several 3, 30; Ky. 59; La. 48; Minn. 4, 33
subjects. The growing adoption of the Amt. 1881, p. 22; 1891, p. 19; Miss
initiative and referendum (see § 309) 90 ; Mo. 4, 53 ; Mon. 5, 26 ; N. D. 69
is a more noteworthy instance still. Neb. 3, 15; N. J. 4, 7, 11 ; N. Y. 3, 18
FinaUy, the Southern and Western Okla. 5, 46; Ore. 4, 23; Pa. 3, 7
States have found it necessary to Terr. U. S. 1886, 818; Tex. 3, 56
expressly forbid their Legislatures Utah 6, 26; Wash. 2, 28; W. Va. 6, 39
from passing local or special laws in an Wis. 4, 31 ; Wy. 3, 27.
immense variety of matters. Connec- " Ark. 5, 24 ; Cal. ; Col. ; Del.
ticut, Massachusetts, New Hampsliire, Fla. 3,20; Ida.; 111.; Ind.; lo. ; Ky.
and Vermont have no such restrictions. La. ; Mich. 4, 23 ; Minn. ; Mo. ; Mon.
but otherwise they are now common N. D. ; Neb.; Nev. 4, 20; N. J.
to every State in the Union, and in N. Y. ; Okla. ; Ore. ; Pa. ; S. D. 3, 23
some instances extend to forty or Terr.; Tex.; Utah; W. Va. ; Wy.
294 THE STATE CONSTITUTIONS [BOOK III
viding for the sale or conveyance of real estate; ' or of any {prop- erty;" and so, in others, "providing for the sale or conveyance of the real estate of persons under disability;""' so of their personal estate;' and in a few others, "providing for the sale of real estate of persons under disability by executors, administrators, guardians, or trustees;"'* or "affecting the estates of minors or persons under disability ; " ® or providing for the sale of church property, or property held for charitable use.^
Draining swamps:^ or for ditches;' relating to fences;'" or the straying of livestock ; " declaring streams navigable ; " or relat- ing to water-courses.'^
Changing the law of descent: " giving effect to informal or invalid deeds or wills ; '^ authorizing deeds to be made for lands sold for taxes.'"
Liens: authorizing the creation, extension, or impairing of liens. '^
Relating to cemeteries, graveyards, or public grounds not of the State. '«
Money: in relation to interest on money.'"
Persons: legitimating any children (in Tennessee, any person) not born in lawful wedlock ; "" changing the name of any person ; ^* or of any place ; " or corporation ; -^ adopting any child; -* constitut-
> Ala. 104 ; Ark. ; Mich. >« W. Va.
2 Ala. »' Cal., Ida., Ky., Mo., Mon., N. D.,
^Cal.; Col.; Fla. ; Ida.; 111.; Okla., Pa., Tex., Wy.
Ky. 63; Minn.; Miss.; Mon.; Neb.; >» Mo., Okla., Pa., Tex.
Nev.; N.J. 4, 7, 7; Utah; Va. ; Wash. '« Ala., Cal., Col., Ida., 111., Ind.,
W. Va. ; Wis. ; Wy. Ky., La. Minn., Miss., Mo., Mon., N. D.
^ Minn., Miss., Wash., Wis. Neb., N. Y., Ore., Pa., Tex., Utah, Va.,
« Ind. ; Md. 3, 33 ; Ore. Wash., W. Va., Wy.
« Cal., Ida., La., Minn., Mo., Mon., ^o Ala.; Ark.; Cal.; Fla.; Ida.;
N. D., Okla., Pa., Terr., Tex., Wash., Ky. ; La. ; Minn. ; Miss. ; Mo. ; Mon. ;
Wy. N. C. 2, 11 ; N. D. ; Okla. ; Pa. ; S. C. 3,
^ W. Va.; S. C. Amt. 1905, 482. 34; Tenn. 11, 6; Terr.; Tex.; Wy.
8 N. Y. " Ala., Ark., Cal., Fla., Ida., 111.,
» Del. Ind., lo., Ky., La., Md., Minn., Miss.,
'° Del., Ky., Va. Mo., Mon., N. C, N. D., Neb., Nev.,
" Del., Ky., Va. N. Y., Okla., Ore., Pa., S. C, S. D.,
>= Ky., Va. Tenn., Tex., Terr., Utah, Va., Wash.,
" Ala. Wis., Wy.
" Ala., Cal., Col., Ida., 111., Ky., -^ Cal., Ida., 111., Ky., Minn., Miss.,
La., Minn., Miss., Mo., Mon., N. D., Mo., Mon., Neb., Okla., Pa., S. C,
Neb., N. J., Okla., Pa., Terr., Tex., Tex., Utah, Wy., or lake or river : Minn.
Utah, W. Va., Wy. ==^ Ala., Mon., N. D., S. D., Va.
•5 Ala., Cal., Col., Fla., Ida., Ky., =■• Ala., Cal., Fla., Ida., Ky., La.,
La., Md., Minn., Mo., Mon., N. D., Md., Minn., Mo., Okla., Pa., S. C,
Okla., Tex., Wash., Wy. Tenn., Tex.
PART III] LEGISLATION 295
ing one person the heir of another ; * declaring any person of age ; ^ "emancipating minors;" ^ reheving femes coverts.*
Divorce: granting divorces ; '^ concerning alimony.*
Franchises : granting to any person or corporation any exclusive privilege, immunity, or franchise ; ^ or any special exemption from a general law.^
Granting to any person or corporation the right to lay down rail- road tracks ; ® to railroads, bridges, etc., conferring power of eminent domain ; ^^ for granting State lands." Providing for building bridges, or chartering bridge companies ; '^ except bridges across streams forming the boundary of the State. '^
Chartering or licensing ferries: ^* booms, dams, or fisheries. ^^
Chartering, or licensing roads or turnpike companies : ^® incorpo- rating railroads; '^ or other works of internal improvement.^^
Creating corporations, generally (Ida., Minn., S. C, Wash.), or amending, renewing, extending, or explaining the charters thereof; ^^ remitting forfeiture of the charter of a private corporation except, etc.-" See §§ 501, 504. Authorizing the construction of street railways.-^
Regulating labor, trade or manufacturing,^^ mining,-^ or agri- culture.-* Creating banks -^ (see § 550); insurance companies;-" or loan and trust companies.^^
Debts: providing or changing methods for the collection of debts,
' Fla., Minn., Miss., S. D., Utah, Miss., Mo., Mon., N. D., Neb., N. Y.,
Wash., Wis. Okla., Pa., Tex., W. Va., Wy.
=^ Ala., CaL, CoL, Ida., Ky., Minn., '^ La., Mo., N. Y., Pa., Tex., or the
Mo., Mon., N. D., Okla., Tex., Wash., Hudson or East River (N. Y.).
Wy. '* Ala., Cal., Col., Ida., 111., Ky.,
3 La. La., Minn., Miss., Mo., Mon., N. D.,
* Ky. Neb., Okla., Pa., S. D., Tex., Utah,
5 Ala. ; Ark. ; Cal. ; Col. ; Fla. Ida.; in.; Ind. ; Ky. ; La.; Md. Miss.; Mo.; Mon.; N. C. 2, 10 N. D. ; Neb.; Nev. ; O. ; Okla.; Ore. Pa.; S. D. ; Tenn. 11, 4; Tex.; Utah
Wash., W. Va., Wis., Wy. '* Ky., Miss., Va.
'" Ala., Cal., Ida., Ky., Miss., Mon., N. D., Wy. " Okla., Tex. Va. ; W. Va. ; Wy. '» Okla., Tex.
» N. C. See also § 430. '^ Ala., Ky., La., Minn., Miss., Mo.,
' Cal., Col., 111., La., Minn., Mo., Pa., S. C, Terr. U. S. R. S. 1889, Va., Mon., N. D., Neb., N. J., N. Y., Pa., Wis.
|
S. D., Terr., Utah, Va., Wy. See |
=» Va. |
|
§ 16. |
21 La. |
|
» Va. |
=2 Ky., La., Mo., Pa., Tex., Va. |
|
» Col., 111., Ky., Miss., Mo., Mon., |
" Ky., Mo., Pa., Tex., Va. |
|
N. D., Neb., N. J., N. Y., Pa., Terr., |
=" La. |
|
Wy. |
^' Ala. 247 ; Mon. ; N. Y. 8, 4 ; S. C. ; |
|
•» Miss. |
Wy. |
|
" Ala., Miss. |
2« Mon., Wy. |
|
^ Ala., Cal., Col., Ida., 111., Ky., La., |
27 Mon., Wy. |
296
THK STATE CONSTITUTIONS
[book III
enforcing judgments, or prescribing the effect of judicial sales of real estate.' Exempting property from execution.^
Ojfwrrs: legalizing the unauthorized or invalid acts of any officer or agent of the State or a municipality/ except as acja'uist the State.*
Criminal: regulating the jurisdiction, fees, powers, or duties of aldermen, justices of the peace, constables, magistrates, etc.^
Juries: selecting or impanelling grand or petit jurors;" or ex- empting from jury duty.^
Any laws for the punishment of crimes and misdemeanors ; ^ pardoning or commuting the sentence of any criminal; " concern- ing li(pior or allowing local option ; '° remitting fines, penalties, or forfeitures ; " restoring to citizenship any person convicted of in- famous crime. ^^
For the protection of game or fish.'^ But in others, such laws may be enacted to apply only to localities specially designated.'*
Municipal: laws locating or changing county seats; '^ or erecting new townships or counties ; '" or changing county or township lines; '^ or school districts.'*
"Providing for the bonding of cities, towns, or other municipali- ties." '^
Incorporating villages and towns ; -" towns only ; -' or cities."^ Or, in several, amending the charters thereof. ^^ "For the organization
» La., Mo., Pa., Tex., Va.
2 Ala.
3 Cal., Ida., Ky., La., Mo., N. D., Wash.
* Cal., Ky., N. D., Wash.
' Ala., Cal., Col., Fla., Ida., 111., Ind., Minn., Miss., Mo., Mon., N. D., Neb., Nev., Ore., Pa., Terr., Tex., Utah, Wy.
« Cal., Col., Fla., Ida., Ind., Ky., Miss., Mon., N. D., Neb., Nev., N. J., N. Y., Okla., Ore., S. C, Tex., W. Va., Wy.
' Ala., Terr.
« Ala., Cal., Fla., Ida., Ind., Ky., Mon., N. D., Nev., Ore., Terr., Utah, Va., Wy.
« Ariz.,* Bill of Rts. 28. '« Ky.
" Ala., Cal., Col., Ida., 111., Ky., La., Minn., Mo., Mon., N. D., Neb., Okla., Pa., S. D., Terr., Tex., Utah, Wash., W. Va., Wy.
'2 Ala., Cal., Ida., Ky., Mon., N. C, N. D., Terr., Wy.
'3 Col., 111., Ky., Neb., S. C.
" Cal. Amt. ; Tenn. 11, 13 ; Tex. 3, 56.
'5 Ala., Cal., Col., Ida., lU., lo., Ky., Minn., Mo., Mon., N. D., Neb., N. Y., Okla., S. D., Terr., Tex., Utah, Va., Wash., W. Va., Wis., Wy.
'« Ga., Mo., N. Y., Pa.
'' Ga. 11, 1,3; Mo.; Pa.; Va. 128; Wash. ; Minn.
i« Ala., Del., S. C.
19 Ala., Neb.
^° Ala. ; 111. ; Minn. ; Mo. ; N. D ; Neb. ; N. Y. ; Okla. ; Pa. ; S. C. ; S. D. Terr.; Tex.; Utah; Va. 117; Wash.; W. Va. ; Wy.
21 111., lo.. Mo., Neb., Pa., S. D., Tex., W. Va., Wis., Wy.
=2 Ala., lU., lo.. Mo., N. D., Neb., Okla., Pa., S. C, S. D., Terr., Tex., Utah, W. Va., Wy.
"3 Ala., m.. Mo., N. D., Neb., Okla., Pa., S. C, S. D., Terr., Tex., Utah, W. Va., Wy., Wis.
TART III] LEGISLATION 297
and classification of municipal corporations." * Authorizing mu- nicipal corporations to pass laws inconsistent with general laws."
llegulating county and township business ; ^ or the affairs of mu- nicipalities generally ; * or the election of county or township offi- cers ; ^ or their compensation ; " in relation to the fees and salaries of any officer; ^ except, that compensation may be suitably graded in proportion to population and necessary services required.^
Creating or altering fees or salaries during the term for which the officer is appointed ; '•* regulating costs, charges, or fees ; '" author- izing extra compensation to any public officer, agent, or contractor after his service has been rendered or the contract entered into.'^ Creating offices, or prescribing the powers and duties of municipal officers.'"
Taxes, schools: for the assessment or collection of taxes for either State or municipal purposes ; '^ or for a private purpose ; " ex- empting property from taxation ; '^ or from levy or sale ; '^ exempt- ing any person from jury, road, or civil duty.'^
Providing: for the management of the common schools; '^ or for their support ; '^ or for the apportionment of the school fund.""
For extending the time for the collection of taxes; ^^ for other- wise relieving any assessor or collector of taxes from due perform- ance of his duties, or his sureties from liability.-"
Refunding money paid into the State treasury.-^
' S. C. 8, 1. Nev. ; N. J. 4, 7, 12 ; Ore. ; Terr. ;
2 Ala. 89. Tex. 8, 3 ; Utah ; Va. ; Wash. ; Wis. ;
3 Cal., Col., Ida., III., Ind., Mo., Wy. Mon., N. D., Neb., Nev., N. J., Pa., " Minn.
S. D., Tex., Utah, W. Va., Wy. '^ Ala. ; Cal.; Ida.; La.; Minn.;
* Mo., Okla., Tex. Miss. ; Mo. ; Mon. ; N. Y. ; N. D. ;
5 Cal., Fla., 111., Ind., Ky., Minn., Neb. 9, 2; Okla.; Pa.; Tex.; Va. ;
N. D., Neb., Nev., N. J., N. Y., Ore., Wy. Wy. '^ Miss.
« lU. 10, 12 ; Ind. ; S. C. (county " Miss. ; S. C. Amt. 1905, 482. only) ; Minn. '« Cal., Col., Ida., 111., Ky., La.,
' Cal, Col., Fla., Ind., Ky., Minn., Minn., Mo., Mon., N. D., Neb., N. J.,
Mon., N. D., Okla., Wy. Okla., Pa., S. D., Terr., Utah, Wash.,
» Ind. Wy.
'Ida.; 111. 4, 22; Neb.; N. J. ; '» Ind., La., Minn., Mo., N. J., Okla.,
N. Y.; S. D.; Terr.; Utah; Va. See Ore., Pa., Tex. § 214. -» Minn., Wash., Wis.
'» Ala. 96. -' Cal., Ida., La., Md., Minn., Mo.,
" Mich. 4, 21; Va. See also § 214. Mon., N. D., Okla., Tex., Va., Wash.,
" Cal., Fla. (except municipal), Wis., Wy. Ida., Minn., Mo., Mon., N. D., Okla., - Ky., La., Mo., Okla., Tex. Pa., Tex., Wy. "^ Cal., Ida., Ky., La., Md., Miss.,
>^ Ala. ; Cal. ; Fla. ; Ida. ; Ind. ; Mo., Mon., Nev., Okla., Pa., Tex., Va. lo. ; Ky. ; Minn. ; Mo. ; Mon. ; N. D. ;
298 THE STATE CONSTITUTIONS [BOOK III
Releasing persons Ironi dehts due to the State, or to any niuniei- pality tlierein ; ' or to any person or corporation therein ; - unless such special law is recomnieiuled by the governor or treasury depart- ment.^ See § 323.
Releasing taxes or title to forfeited lands."*
Regarding elections.^
Procedure: regulating the practice in the courts ; " or their juris- diction; ' except as to municipal courts.^ Concerning any civil or criminal actions. °
Providing for the change of venue in civil/" or in criminal proceed- ings."
Changing the rules of evidence in judicial proceedings.^^
Prescribing the limitations of civil ^^ or criminal actions.^*
Granting pensions.'^
§ 396. Laws to be Uniform. — All general laws, or laws of a public nature, must by the Constitutions of many States be uniform in their operation throughout the State. ^®
Article 40. Land Laws
§ 400. Tenure. — By the Constitutions of a few States all land is declared allodial.'^ And so, in four, the ultimate property in land is declared to vest in the people, by right of sovereignty.^^
And all land to which the title fails by defect of heirs reverts '® or
> Ida.; Ky. 52; Md. ; Mon. ; Neb., Nev., N. J., N. Y., Okla., Ore., N. D. ; S. D. 3, 23 ; Nev. ; Utah 6, Pa., Terr., Tex., Utah, Va., Wy. 27; Va.; Wash.; Wy. '- Col., La., Mo., Mon., N. D., Okla.,
^ Cal. Pa., Tex., Va. Wy.
3 Md. 13 Ala., Cal., Col., Ida., Ky., Mo.,
* W. Va. Mon., N. D., Okla., Tex., Wash., Wy.
'* Ala., Ida., Ky., Okla., Tex., Wash. '^ Va. »« Ariz.* Bill of Rts. 17; Cal. 1, 11
Ala.; Cal.; Col.; Fla. ; Ida. 111. ; Ind. ; Ky. ; La. ; Minn. ; Mo. Mon.; N. D. ; Neb.; Nev.; N. Y. Okla.; Ore.; Pa. 3, 7; 8, 7; Terr.
Tex.; Va.; W. Va. Fla. 3, 21; Ga. 1, 4, 1; Ind. 4. 23
« Cal., Col., Fla., 111., Ida., Ind., lo. 1, 6; 3, 30; Kan. 2, 17; N. D. 11
Ky., La., Miss., Mo., Mon., N. D., Nev. 4, 21; O. 2, 26; Okla. 5, 59
Neb., Nev., Okla., Ore., Pa., Terr., S. C. 3, 34; Utah 1, 24; Wis. Amt.
Tex., Utah, Va., W. Va., Wy. 4, 32; Wy. 1, 34.
' Ky., Mo., Okla. >^ Ark. 2, 28; Minn. 1, 15; N. Y.
* Fla. 1, 12; Wis. 1, 14.
* La. 18 N. Y. 1, 10 ; S. C. 14, 3 ; Wis. 9, 3. *" (As below, except in Arkansas). ^^ This word is improperly used, and " Ala., Ark., Cal., Fla., Ida., 111., misleading. See § 401, note 7.
Ind., Ky., La., Miss., Mo., Mon., N. D.,
PART III]
LEGISLATION
299
escheats to the people.* The proceeds of escheated lands (or other property) are, by many State Constitutions, to be applied to the public schools.^
So the property of the State liquor dispensary.''
§ 401. Feudal Tenures. — With all their incidents, are abolished by the Constitutions of a few States.*
So, in two, all fines, quarter-sales, and like restraints upon aliena- tions are especially declared void.^
Except in one, rents and certain services heretofore lawfully created; " and except the liability to "escheat" ' for lack of heirs.**
§ 402. Entails, Primogeniture, and Perpetuities. — Entails are, by declaration in two of the Territories, entirely abolished ; ^ so, in two States, the Legislature is to regulate entails so as to prevent perpetuities.*''
By the Constitutions of several States perpetuities " are forbid- den ; *' except for eleemosynary purposes.*^
And the law of primogeniture may never be in force.**
§ 403. Mortmain.^'" — The Constitution of Maryland declares all
' Mich. 13, 3 ; N. Y. ; S. C. ; Wis. = Cal. 9, 4; Col. 9, 5; Fla. 12, 4;
10. 9, 2, 3; Kan. 6, 3; Mich.; Mo.
11, 6; Neb. 8, 3; Nev. 11,3; Ore. 8, 2; S. C. 11, 11; W. Va. 12, 4.
3 S. C. 11, 12.
* Ark. 2, 28; Minn. 1, 15; N. Y. 1, 11; Wis. 1, 14.
« N. Y. 1, 14; Wis.
« N. Y.
^ Land being allodial (§ 400), it fol- lows that there can be, properly speak- ing, no escheat. The word is, however, commonly used in America, and will hereafter be used in this book, to mean both escheat proper and the vesting of the State's title by right of sovereignty.
« N. Y. 1, 13.
« Ariz.* Bill of Rts. 23 (except as in § 1313); N. M.* 1851, July 12, § 17.
'" N. C. 2, 15; Vt. 2, 36.
'' Compare also § 580.
>- Ark. 2, 19; Cal. 20, 9; Mon. 19, 5 ; N. C. 1, 31 ; Nev. 15, 4 ; N. M.* ; Okla. 2, 32; Tenn. 1, 22; Tex. 1, 26; Wy. 1, 30.
'3 Cal., Mon., Nev.
'^ N. M.* ; Okla. 2, 32 ; Tex.
*^ No corporation shall be created or licensed in this State for the purpose of buying, acquiring, trading, or deal-
ing in real estate other than real estate located in incorporated cities and towns and as additions thereto ; nor shall any corporation doing business in this State buy, acquire, trade, or deal in real estate for any purpose except such as may be located in such towns and cities and as additions to such towns and cities, and further except such as shall be necessary and proper for carrying on the business for which it was chartered or licensed, nor shall any corporation be created or hcensed to do business in this State for the purpose of acting as agent in buying and selling land : Provided, However, That cor- porations shall not be precluded from taking mortgages on real estate to secure loans or debts or from acquiring title thereto upon foreclosure of such mortgages or in the collection of debts, conditioned that such corporation or corporations shall not hold such real estate for a longer period than seven years after acquiring such title : And Provided, Further, That this section shall not apply to trust companies taking only the naked title to real estate in this State as a trustee, to be held solely as security for indebtedness pursuant to such trust : And Provided,
300 TUE STATE CONSTITUTIONS [BOOK III
gifts, sales, and (Icvises ot" land or [HMsoiial projxirty to religious sects or for religious uses, without the prior or subsequent sanction of the Legislature, void ; ' so of devises and legacies oidy.-
Except, in two States, a sale, etc., of land for a church, parsonage, or cemetery, and actually so used;^ but such land must not, in Maryland, exceed five acres in extent.
The United States laws provide that in the Territories no religious or charitable association or corporation shall hold real estate of a greater value than $50,000.*
§ 404. Monopolies are by the Constitutions of several States declared odious and forbidden; see § 580. But municipahties etc., may regulate slaughtering in Louisiana.
§ 405. Long Leases. — In a few States there are constitutional provisions forbidding leases or grants of agricultural land reserving rent, for a longer period than twelve years ; ^ fifteen years ; ® or twenty-one years. ^
§ 406. Record of Conveyances. — In Vermont the Constitution provides that all conveyances of land shall be recorded ; ^ so, in Louisiana, all mortgages ; ^ all deeds and mortgages recorded are prima facie evidence of their proper execution.'"
So, in Louisiana, all "privileges" on real estate; but privileges for expenses of last illness or taxes need not be recorded, and they lapse in three years.
§ 407. Lands of the United States. — The new States have con- stitutional provisions to forbid the Legislature from interfering with the title of the United States to its lands in the State ; " or from inter- fering with any laws Congress may find necessary for securing the title of such land to bona fide purchasers.'"
In the Territories, no law can be passed "interfering with the primary disposal of the soil." '^ The Indian reservations are secured to National Government control.'*
Further, That no public service cor- * Wis. 1, 14.
poration shall hold any land, or the ^ Minn. 1, 15.
title thereof, in any way whatever in * Vt. 2, 35.
this State, except as the same shall be ^ La. 186.
necessary for the transaction and *" Fla. 16, 21.
operation of its business as such public " Ida. 21, 19; Kan. Ordinance
service corporation. Okla. 22, 2. Minn. 2, 3 ; Mo. 14, 1 ; N. D. 203 (2)
' Md. Decln. of Rts. 38. Nev. Ordinance ; Okla. 1, 3 ; S. D. 22, 1
^ Miss. 270. Utah 3, 2 ; Wash. 26, 25 ; Wis. 2, 2.
3 Md. ; Mo. 2, 8. " Kan., Minn., Mo., Wis.
* U. S. R. S. 1890. " U. S. R. S. 1851.
« Mich. 18, 12 ; N. Y. 1, 13. " Ida., N. D., Okla., S. D., Wash.
PAET III] LEGISLATION 301
§ 408. Public Lands. — In four States the Constitution provides that no pubhc land of the State shall be sold or granted except to actual settlers;* and not donated to private corporations or indi- viduals or railroads." I^ands and public tracts are only sold at market value.^ The price may not be less than $10 an acre.*
The settler must occupy the land for three years in order to per- fect his title.^
The amount granted is eighty acres to a single man, one hundred and sixty to the head of a family ; ^ one hundred and sixty acres to any individual ; ^ eighty acres to any settler ; ^ three hundred and twenty acres. ^
The right of the State to mines and minerals is, in Texas, released by the Constitution; *" but in Arizona "the precious metals are the jewels of sovereignty, and inhere in the sovereign power ; no person can acquire absolute title to any public domain in which such metals may be found without the express consent of such power." **
In Texas the State may grant lands to railway companies, under special restrictions.*^
No entry by warrant can now be made, and possession for ten years or payment of taxes for five years since 1865 gives good title as against the State.*^ There are similar numerous provisions in the newer States as to School land ; ** but practically all the State land is now taken up. In New York, there are constitutional provisions rendering invalid purchases or contracts for the sale of lands with Indians.*^ There are frequently Commissioners of Public Lands pro- vided for.*"
No claim to any public lands by any trespasser thereon by reason of occupancy, cultivation, or improvement thereof, shall ever be rec- ognized; nor shall compensation ever be made on account of any improvement made by such trespasser.*^
1 Cal. 17,3; Fla. 16,5; Mon. 19, 7; * Ida., Mon.
Tex. 14, 4. = Tex. 14, 6.
= Ala. 99; Miss. 95; S. C. 3, 31. « Tex.
Nor sold at a less price than to in- ^ Ida.
dividuals. Tliis, however, shall not ^ Fla.
prevent the Legislature from granting * Cal.
a right of way, not exceeding one '" Tex. 14, 7.
hundred feet in width, as a mere " Ariz. Bill of Rts. 21.
easement, to railroads, across State '^ Tex. 14, 3-5.
land, and the Legislature shall never " W. Va. 13, 2 & 3.
dispose of the land covered by said '^ S. D. Art. 8.
right so long as such easement exists: '* N. Y. 1, 15.
Ala. ; Miss. 95; S. C. 3, 31. '« Wash. 3. 24. See § 201.
3 Mon. 19, 3 ; S. D. 8, 7 ; Utah 20, 1 ; " N. D. 1G3 ; S. D. S, 10. Wash. 16, 1.
302 THE STATE CONSTITUTIONS [BOOK III
§ 400. A Forest Preserve "as now fixed by law" is to be kept wild and never leased, sold, or timber eut, or be taken by any corpo- ration pnblic or private.'
The Legislature shall enact laws to prevent the destruction of and to j)reserve the forests on the lands of the State, and upon any part of the public domain, the control of which may be conferred by Congress upon the State.-
State Highways may be provided for by law ; ^ so, in Michigan the Constitution provides for county or town roads and for State wagon roads ; * and in many States for a State highway Commission.^
Article 41. Navigable Waters and Easements
§ 410. Navigable Waters, by the Constitutions of a few States, shall forever remain public highways, free to the citizens of the States and the United States, without impost or toll.®
So, the Constitution declares that no person or corporation can obstruct the navigation of the navigable waters of the State ; ^ and no navigable stream can be dammed or bridged without authority of law; and no law shall prejudice the right of individuals to the free navigation of such stream, or preclude the State from further improvement of it.^
§ 411. Special Streams. — The Constitutions of some States specially declare certain streams navigable, and forever free, as in four States the Mississippi ; ^ and in three of them, navigable waters leading into the Mississippi ; '" and in one, navigable waters lead- ing into the St. Lawrence; ^' and so, navigable waters bordering the State, with the rivers leading into the same.''
§ 412. Jurisdiction. — In several States the Constitution pro- vides that the State shall have concurrent jurisdiction on all rivers bordering on the State so far as they form the boundary of the State and any other State.'^ The State owns the tide and shores of natural
' N. Y. 7, 7. ' Cal. 15, 2; Miss. 81.
2 Col. IS, 6 ; Mon. 19, 3 ; Utah, 18, 1. » Mich. 18, 4.
3 Cal. 1901, p. 960; Minn. 1897, 333 ; » Minn. 2, 2 ; Mo. 1, 1 ; Tenn. 1, 29 ; N. Y. 1903, p. 1454. Wis. 9, 1.
* Mich. 1893, p. 434, 1899, p. 478; '» Minn., Mo., Wis.
Mich. 1905, p. 531. " Wis.
« See § 202. '^ Miss., N. C.
« Ala. 24; Minn. 2, 2; S. C. 1, 28; '' Ind. 14, 2; Minn. 2, 2; Mo. 1, 1;
14, 1 ; Wis. 9, 1. See Book I., Cliap. II. S. C. 14, 1 ; Wis. 9, 1.
PART III] LEGISLATION 303
waters to high-tide line, and on natural rivers and lakes to ordinary high water.'
§ 413. Water Front. — By the Constitution of California, the right of eminent domain exists in the State to all frontages on navi- gable waters; and no person or corporation can exclude the right of way to such water, when required for a public purpose ; and all tide lands within two miles '" of any incorporated city or town, front- ing on the waters of any harbor used for navigation, shall be withheld from grant or sale to any person or corporation ; ^ so of water front, and rights beyond the harbor lines; and wharf leases may not be for more than 30 years.*
§ 414. Wharves. — In two States, the Constitutions provide that no tax, toll, impost, or wharfage shall be imposed, demanded, or received from the owner of any merchandise or commodity, for the use of the shores, or any wharf erected on the shores, or in or over the waters of any navigable stream, unless the same be authorized by the Legislature.^
§ 415. Drains. — In two States the Legislature are authorized to pass laws permitting the owners or occupants of lands to construct drains and ditches for agricultural and sanitary purposes across the lands of others.®
§ 416. Franchises. — (See §§ 502, 536.) The right to collect rates for water furnished to a municipality is declared to be a franchise, not to be exercised except by authority of law and in the manner by law prescribed.^ The county commissioners may empower reason- able maximum rates for the use of water, whether furnished by per- sons or corporations ; ^ so, in Idaho, the Legislature ; ^ and in Texas, the right to regulate tolls or freights, for the use of roads, bridges, ferries, landings, or wharves, shall always remain in the Legislature.'"
No railway, gas, water, telephone, light, etc., company shall con- struct its works in, over, or under the streets without consent of the municipal authorities is first obtained ; " so, in California, the Legis- lature shall pass laws to regulate the charges of telegraph or gas com- panies, wharfingers, and warehousemen, where there is a public use.''
' Wash. 17, 1. § 92. Drainage is declared a public use
2 So, substantially, witliin one mile (S. D., 1903, 70).
(Wash. 15, 1-2). ■' Cal. 14, 2 ; Ida. 15, 2.
3 Cal. 15, 3. » Col. 16, 8. * Wash. 15, 2. « Ida. 15, 5. « Ala. 24; S. C. 1, 28. '" Tex. 12, 3. 0 111. 4, 3, 1 ; N. Y. 1, 7. See also " Ky. 163.
»2 Cal. 4, 33.
304 THE STATE CONSTITUTIONS [BOOK III
"No municipal corporation sliall ever grant, extend, or renew a franchise, without the approval of a majority of the (piahfied electors residing within its corporate limits, who shall vote thereon at a gen- eral or special election ; and the legislative body of any such corpora- tion may submit any such matter for approval or disapproval to such electors at any general municipal election, or call a special election for such purpose at any time u{)on thirty days' notice; and no fran- chise shall be granted, extended, or renewed for a longer term than twenty-five years.
"Whenever a petition signed by a number of qualified electors of any municipal corporation equal to twenty-five per centum of the total number of votes cast at the next preceding general municipal election, demanding that a franchise be granted, extended, or re- newed, shall be filed with the chief executive officer of said corpora- tion, the chief executive oflScer shall, within ten days thereafter, call a special election, at which he shall submit the question of whether or not such franchise shall be granted, extended, or renewed, and if, at said election, a majority of the said electors voting thereon shall vote for the grant, extension, or renewal of such franchise, the same shall be granted by the proper authorities at the next succeeding regular meeting of the legislative body of the city.
"Every municipal corporation within this State shall have the right to engage in any business or enterprise which may be engaged in by a person, firm, or corporation by virtue of a franchise from said corporation." ^
§ 417. Hunting and Fishing. — The Constitution of Vermont provides that the inhabitants shall have liberty at seasonable times to hunt, fish, and fowl on lands not enclosed."
The Legislature may establish fish and game districts and laws to regulate the same.^
§ 418. Use of Water. — Several Western Constitutions declare that the water of every natural stream (not heretofore lawfully ap- propriated) within the State is the property of the public* But the right to divert the unappropriated waters of any such stream to bene- ficial uses shall never be denied ; priority of appropriation shall give the better right as between those using the water for the same pur-
' Okla. 18, 5. 3 cal. 1901, p. 948.
* Vt. 2, 40. William Rufus three * Ariz.* Bill of Rts. 22 ; Col. 16, 5 ; times promised his people the right of Ida. 15, 1 ; Wy. 8, 1. free hunting, which was claimed as an English liberty.
PART III]
LEGISLATION
305
pose; and if the water is insufficient, those using it for domestic purposes have the preference; and those using it for agricultural purposes have the preference over manufacturers.' No individual or corporation shall have the right to appropriate streams or ponds exclusively to their own private use except as may be provided by law.^
The use of the waters of the State for irrigation, mining, and manu- facturing purposes shall be deemed a public use.^
The use of all waters now appropriated, or that may hereafter be appropriated for sale, rental, or distribution ; also of all water origi- nally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented, or distributed, is hereby declared to be a public use, and subject to the regulation and control of the State in the manner prescribed by law.* For Idaho, see also note.^
All flowing streams and natural water-courses shall forever re-
' CoL 16, 6.
2 Ariz.*
3 Wash. 21, 1.
^ Ida. 15, 1 ; Mon. 3, 15.
^ " And in any organized mining district, those using the water, for mining purposes or milling purposes connected with mining, shall have preference over those using the same for manufacturing or agricultural pur- poses. But the usage by such subse- quent appropriators shall be subject to such provisions of law regulating the taking of private property for public and private use, as referred to in section fourteen of Article I., of this constitution." (Ida. 15, 3.)
"Whenever any waters have been, or shall be, appropriated or used for agricultural purposes, under a sale, rental, or distribution thereof, such sale, rental or distribution shall be deemed an exclusive dedication to such use ; and whenever such waters so dedicated shall have once been sold, rented or distributed to any person who has settled upon or improved land for agricultural purposes with the view of receiving the benefit of such water under such dedication, such person, his heirs, executors, adminis- trators, successors, or assigns, shall
not thereafter, without his consent, be deprived of the annual use of the same, when needed for domestic purposes, or to irrigate the land so settled upon or improved, upon payment therefor, and comphance with such equitable terms and conditions as to the quantity used and times of use, as may be prescribed by law." (Ida. 15, 4.)
"Whenever more than one person has settled upon, or improved land with the view of receiving water for agricultural purposes, under a sale, rental, or distribution thereof, as in the last preceding section of this article, provided, as among such persons priority in time shall give superiority of right to the use of such water in the numerical order of such settlements or improvements; but whenever the supply of such water shall not be sufficient to meet the demands of all those desiring to use the same, such priority of right shall be subject to such reasonable limitations as to the quantity of water used and times of use as the Legislature, having due regard, both to such priority of right and the necessities of those sub- sequent in time of settlement or improvement, may by law prescribe." (Ida. 15, 5.)
20
306 THE STATE CONSTITUTIONS [BOOK III
main the property of the State for mining, irrigating, and manufactur- ing purposes.'
Water being essential to industrial prosperity, of limited amount, and easy of diversion from its natural channels, its control must be in the State, which, in providing for its use, shall equally guard all the various interests involved.-
All existing rights to the use of any of the waters in this State for any useful or beneficial purpose, are hereby recognized and con- firmed.^
Municipal corporations shall have the same right as individuals to acquire rights, by prior appropriation and otherwise, to the use of water for domestic and municipal purposes, and the Legislature shall provide by law for the exercise upon the part of incorporated cities, towns, and villages of the right of eminent domain for the purpose of acquiring from prior appropriators, upon the payment of just compensation, such water as may be necessary for the well-being thereof and for domestic uses.*
The Legislature shall have power and shall provide for a system of levees, drains, and ditches and of irrigation in this State when deemed expedient, and provide for a system of taxation on the lands affected or benefited by such levees, drains, and ditches and irriga- tion, or on crops produced on such land, to discharge such bonded indebtedness or expenses necessarily incurred in the establishment of such improvements; and to provide for compulsory issuance of bonds by the owners or lessees of the lands benefited or affected by such levees, drains, and ditches or irrigation.^
§ 419. Riparian Rights. — There are special provisions for levees, etc., in Louisiana.^
Article 42. Personal Property
§ 420. Record. — By the Constitution of Louisiana, " privileges " may exist without record, except in cases where the Legislature pre- scribe otherwise.''
§ 42L Seal. — By the Constitution of Arkansas private (i. e. not corporate) seals are abolished, and no distinction shall exist between
» N. D. 210. * Okla. 16, 3.
^ Wy. 1, 31. « La. 290.
3 Utah 17, 1. ' La. 187. * Wy. 13, 5.
PART III] LEGISLATION 307
sealed and unsealed instruments, in contracts between individuals, until otherwise provided by law/
§ 422 Interest} — The Constitution of Tennessee provides that the Legislature may fix the rate of interest, and such rate shall be uniform throughout the State, and may also provide for a conven- tional {i. e., to be specially contracted for) rate of interest not to exceed ten per cent.^ So, in Arkansas, the Constitution fixes the legal rate, in contracts where no rate is specified, at six per cent; but shall pass a law limiting the rate for which individuals may contract to ten per cent/ In Texas the legal rate is, by the Constitution, made six per cent; the special contract rate is limited at ten per cent; and all over ten per cent is declared usurious, and the Legislature are to pass usury laws/ In Maryland the legal rate is six per cent until otherwise provided by the Legislature."
§ 423. Money. — The Constitutions of New Hampshire and IMassachusetts provide that the money mentioned in the Constitution shall be computed at 6^. 8f/. to the ounce of silver.''
§ 424. Trust Funds. — By several State Constitutions, the Legis- lature is forbidden to pass laws to authorize the investment of trust funds in the bonds or stock of private corporations.^
§ 425. Stock-jobbing. — The California Constitution provides that the liCgislature shall pass laws to regulate or prohibit the buying or selling of the shares of the stock of corporations in any stock board ; * and that all contracts for the sale of stock on a margin or for future delivery are void, and the money paid therefor may be recovered.
§ 426. Lotteries. — Are prohibited by the Constitutions of nearly all; and in all these States (except R. I., Wis., Neb., Md., Fla., Ida., S. D., and Wash.) the sale of lottery tickets is forbidden; '^ so, in several of "gift enterprises; " pool selling; ^^ or all other forms of gambling."
1 Ark. Sched. 1. 3, 28; Kan. 15, 3; Ky. 226; La. 178
2 See also § 395. Md. 3, 36; Mich. 4, 27; Minn. 4, 31 » Tenn. 11, 7. Miss. 98; Mo. 14, 10; Mon. 19, 2 * Ark. 19, 13. N. D. Amt. 1 ; Neb. 3, 21 ; Nev. 4, 24 ^ Tex. 16, 11; Amt. 1891, p. 196. N. J. 4, 7, 2; N. Y. 1, 9; O. 15, 6 » Md. 3, 57. Ore. 15, 4 ; R. L 4, 12 ; S. C. 17, 7 ' Mass. 2, 6, 3; N. H. 2, 96. S. D. 3, 25; Tenn. 11, 5; Tex. 3, 47 « ALa. 74; Col. 5, 36; Mon. 5, 37; Uta. 6, 28; Va. 60; Wasli. 2, 24
Pa. 3, 22 ; Wy. 3, 38. See also § 519. W. Va. 6, 36 ; Wis. 4, 24.
» Cal. 4, 26. " Ala., Cal., Col., Ill, Mo., Mon.,
>« Ala. 65; Ark. 19, 14; Ariz.* Bill Neb., S. D., Tex., W. Va.
of Rts. 27; Cal. 4, 26; Col. 18, 2; '^ Del., N. Y.
Del. 2, 17; Fla. 3, 23; Ga. 1, 2, 4; " Del., Neb., N. J., N. Y.
Ida. 3, 20; 111. 4, 27; Ind. 15, 8; lo.
308 THE STATE CONSTITUTIONS [BOOK III
Article 43. Law of Persons
§ 430. Marriage. — By the Constitutions of many States, the Legislature can grant no divorce,' noi- allowance of alimony;- and in one all absolute divorces are forbidden.-'
But in two, the Legislature may enact general laws regulating divorce and alimony;^ so, of course, in all other States. In one, no contract of marriage otherwise duly made shall be invalid for want of conformity to the requirements of any religious sect.^ In one, no absolute divorce can be granted except on the concurrent verdicts of two juries at different terms of the court; and the last jury shall determine the disabilities and rights of the parties."
§ 431. Age of Consent. — "No unmarried woman shall legally (sic) consent to sexual intercourse who shall not have attained the age of 14." '
§ 432. Names. — In Tennessee the Legislature has no power to change the names of persons, or to pass acts adopting or legitimat- ing persons, but shall confer this power on the courts.**
§ 433. Warehouses. By the Constitutions of two States all ele- vators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared public warehouses.^
The owners or managers of public warehouses are required to make public statements of grain or goods stored, and the warehouse receipts issued ; and are not to mix grain with grain of inferior grade ; and the owner is to be always at liberty to examine such property stored, and the books of the warehouse relating thereto.^"
§ 434. Warehouse Receipts. — The Constitution of Illinois de- clares that the Legislature shall pass laws to prevent the issue of false and fraudulent warehouse receipts; " and (in Kentucky also) laws for the inspection of grain, ^- and "for the protection of pro- ducers," etc.^^
» Ga. 6, 15, 1-2. ' S. C. 3, 33.
« Tenn. 11, 6. See § 395. 111. 13, 1 ; Ky. 206.
> Del. 2, 18; lo. 3, 27; Kan. 2, 18 Mich. 4, 26 ; Minn. 4, 28 ; N. H. 2, 75 N. J. 4, 7, 1; N. Y. 1, 9; O. 2 32 S. C. 17, 3; Tenn. 11, 4; Wash. 2, 24 Wis. 4, 24. See also § 395. >" 111. 13, 2 & 3
2 Del. " 111. 13, 6.
3 S. C. '2 III. 13, 7 ; Ky. 206 * N. C. 2, 10 ; Tenn. " Ky.
' Cal. 20, 7.
TART III] LEGISLATION 309
§ 435. Drawbacks and Rebates. — (See also § 41G.) By the Constitution of Texas, all drawbacks and rebatement of insurance, freight transportation, carriage, wharfage, storage, compressing, bal- ing, repairing, or for any other kind of labor or service, of or to any cotton, grain, or other produce, to any carrier, shipper, merchant, or factor not the owner thereof, are prohibited.'
§ 436. Carriers. — The Constitution of Illinois provides that all railroads and other common carriers shall weigh or measure grain at points where it is shipped, and receipt for the full amount, and shall be responsible for the delivery of such amount to the owner or con- signee thereof at the place of destination. -
§ 437. Cattle and Stock. — The Legislature may pass laws for the regulation of live-stock and the protection of stock-raisers, having a local application; and also pass general and special laws for the inspection of cattle, stock, and hides, and the regulation of brands; provided that any local law thus passed shall be submitted to the freeholders of the section to be affected thereby and approved by them.^
§ 438. Physicians. — The Constitutions of three States provide that laws may be passed prescribing the qualifications of medical practitioners, and to punish for malpractice (but, in Texas, that no preference shall be given to any one school of medicine).*
Article 44. Health and Morality
§ 440. Live Stock. — The Legislature shall pass all necessary laws to provide for the protection of live stock against the introduc- tion or spread of pleuro-pneumonia, glanders, splenetic or Texas fever, and other infectious or contagious diseases. The Legislature may also establish a system of quarantine or inspection, and such other regulations as may be necessary for the protection of stock owners and most conducive to the stock interests within the State.^
§ 44L Board of Health (see also § 202). —There shall be es- tablished by law a State board of health and a bureau of vital sta- tistics in connection therewith, with such powers as the Legislature may direct.^ Boards of Health shall be created by the Legislature wherever they may be necessary, with power to make such regu-
' Tex. 16. 25. See also § 524. * La. 178; Tex. 16, 31 ; Wash. 20, 2.
- 111. 13, 4. » Ida. 16, 1 ; Wy. 19, 1.
3 Tex. 16, 23. « Wash. 20, 1.
310 THE STATE CONSTITUTIONS [BOOK III
latlons as shall protect the health of the community and abate nuisances.*
§ 442. — Inspection Laws. — No State office sluiii l)e continued or created for the inspection or measuring of any merchandise, manu- facture or commodity ; but any county or municipality may appoint such officers when authorized by law.-
§ 443. Dealing in Futures. — The pernicious practice of dealing or gambling in futures on agricultural products or articles of neces- sity, where the intention of the parties is not to make an honest and bona fide delivery, is declared to be against public policy; and the Legislature shall pass laws to suppress it."*
§ 444. Fire Protection. — The Legislature shall enact laws to secure the safety of persons from fires in hotels, theatres, and other public places of resort.*
§ 445, Liquor Traffic, General Regulation of, is declared to belong to the police jurisdiction; and the State may enact laws regulating their sale and use ^ or regulating and prohibiting their sale.**
§ 446. Prohibition of the manufacture and sale (or giving away) of intoxicating liquors is found in several State Constitutions.^
Except for medical, mechanical, and scientific purposes ; ^ and ex- cept cider.®
In Colorado only the sale of spurious or drugged liquors is for- bidden.i"
§ 447. Local Option. — Some Constitutions provide that the Legislature shall enact a law whereby the qualified electors of any city, county, town, or precinct may, by a majority vote, prohibit the sale of liquors within the prescribed limits."
In other States they may do so *^ or the dispensary system may be established.*^
The County Commissioners, not oftener than once in two years upon petition of one fourth the registered voters, must call an election (special) to determine whether or no intoxicating liquors or beer shall be sold in the county.**
* S. C. 8, 10. p. 95 (separate article applying to the
2 Ala. 77. whole State); N. D. 217; O. 15, 9.
3 La. 189. » Kan., Me., N. D., Okla.
* Miss. 83. " Me.
* La. 181. '» Col. 18, 5.
« S. C. 8, 11; W. Va. 6, 46; Va. 62. " Ky. 61; Fla. 19, 1; Tex. 1891,
^ lo. Amt. 1882, p. 178; Kan. Amt. p. 196. 1881, p. 323; Me. Amt. 1885, p. 339; '- Va. 62; Del. 13, 1. Okla. 1, 7 (as to Indian reservations) ; " Va.
" Fla. 19, 1.
PAET III] LEGISLATION 311
§ 448. Dispensary System. — This is expressly authorized under the Constitution of a few States, and has been carried into execution in South CaroUna, as to sales exceeding one half-pint, between sun- rise and sunset, not to be drunk on the premises.^
§ 449. Vagrant Laws are required to be enacted by tlie Consti- tution of Texas.^
Poor Laws. — There are in a few States constitutional provisions for the support of the poor by counties, and for State asylums for orphans, deaf, bhnd, insane, or inebriates.^
Article 45. Labor
§ 450. General Principles. — The Legislature shall pass neces- sary laws for the protection of persons working in mines, factories, and other employments dangerous to life and deleterious to health ; and fix pains and penalties for the enforcement of same.*
The rights of labor shall have just protection through laws calcu- lated to promote the industrial welfare of the State.^
The Legislature shall prohibit the political and commercial con- trol of employees.^
The Legislature shall provide for the protection of the employees of all corporations doing business in this State from interference with their social, civil, or political rights by said corporations, their agents or employees.^
"The Legislature, by appropriate legislation, shall provide for the enforcement of the provisions of this article." ^
§ 45L Day's Work. — A few Western Constitutions prescribe an eight-hour day in all public work.^
1 S. C. 8, 11. 1903, ch. 49; Ida. 13, 2; Mon. 1903,
2 Tex. 3, 46. 49 ; Okla. 23, 2 ; Utah 16, 6 ; Wy. 19, 1.
3 Ala. 88 ; Ark. 19, 9 & 19 ; Col. 8, 1 ; Statutes to this effect exist in several Fla. 13, 1 & 3; Ida. 10, 1; Kan. 7, 4; other States. For the general subject La. 174; Miss. 86; Mon. 10, 1; Okla. of labor legislation see the author's 17, 3; Amt. 1887; Nev. 13, 1 & 3; " Handbook to the Labor Laws of the N. C. 11, 8-10;- S. C. 12, 1 «fe 3; Tex. United States." No American legisla- 11, 2; 16, 8 & 42 & 54; S. D. 14, 1 ; ture has yet ventured to prescribe the Wash. 13, 1. hours of labor of adult males in general
* Ida. Amt. 13 ; Okla. 23, 5 ; Wash, occupations, and it would be clearly 2, 35. See also § 14. unconstitutional. The last English law
* Utah 16, 1. of the sort was under Ehzabeth (see ® Utah 16, 3. Book II). The same is true of the ^ Miss. 191. regulation of wages by law. The labor ® Utah 16, 7. of minors may be regulated or prohib-
* Cal. 20, 17; Amt. 1901, 959; Col. ited in any or all occupations; and so
312 THE STATE CONSTITUTIONS [bOOK III
§ 452. Wages. — The Louisiana Constitution prescribes that no hiw shall be passed fixing the price of manual lal)()r.'
§ 453. Public Work. — But in New York, by a recent amend- ment, "the Legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, safety, and welfare of persons employed by the State or by any county, city, town, village, or other civil subdivision of the State, or by any contractor or subcontractor performing work, labor, or services for the State or for any city, county, town, village, or other civil division thereof." ^
§ 454. Special Employments. — A few Western States provide in their Constitutions for an eight-hour day in mines,^ smelters,^ or underground employment generally ; ^ or even in mills or factories,^ or in dangerous employments.^
§ 455. Women and Children. — Children under sixteen,^ twelve," or fourteen,'" may not work in mines, " workshops, or factories ;^^ nor, if under fifteen, in places dangerous to life or health or injurious to morals." The Kentucky Constitution specifies (unnecessarily) that the Legislature may fix such age.'*
No women or girls of any age may work in mines. '^
§ 456. Wage-payments. — All wage-earners in this State em- ployed in factories, mines, workshops, or by corporations, shall be paid for their labor in lawful money. The general assembly shall prescribe adequate penalties for violations of this section.'^
§ 457. Liens. — The Constitutions of tliree States provide that mechanics, artisans, and material men of every class shall have a lien upon the building and articles repaired by them for the value of their labor or material." And in two, also, upon personal property,
of women ; at least as to vmhealthy or * Mon. ; Okla. 24, 4.
immoral trades, except perhaps in the ® N. D. 209 ; Col. 16, 3.
women-suffrage States or those whose ^° Utah 16, 1 ; Wy. 9, 3.
Constitutions require identical laws for *' Mon., N. D., Col.
the two sexes (see §§ 20, 23-25). '- N. D.
1 La. 51. " Okla. 23, 3.
2 N. Y. 12, 1 ; Amt. 1905. " Ky. 243. 'Col. 1901, 48; Mon. 1903, 49; '^ Utah, Wy.
Wy. 19, 1. Similar laws are constitu- "^ Ky. 244. In the absence of a
tional when their object is to protect constitutional provision, statutes to
the health of the public ; if only that this effect have usually been held un-
of the men employed, quaere. constitutional ; but not so in Massa-
* Col, Mon. chusetts; and there is old English
* Col., Mon. precedent for the principle. See His-
* Mon. torical Digest.
7 Col, Mon. " Cal. 20, 15; N. C. 14, 4; Tex. 16,
PART III] LEGISLATION 313
for labor done upon it; ' or, in others, upon the subject-matter of their labor.^
So, in two others, that the I>egislaturc shall pass laws to protect laborers on public works, railroads, and canals against failure of the contractors to pay their current wages when due, and to make the corporation or individual for whose benefit the work is done respon- sible for their ultimate payment.^
§ 458. Blacklists. — The exchange of blacklists by railroad companies or other corporations, associations, or persons, is prohibited.*
§ 459. Strikes and Boycotts. — There is as yet no Constitutional provision relating to these matters. For injunctions, contempts, etc., see § 662.
§ 460. Factories, Mines, etc. — The Legislature are required to pass laws for the protection of miners ^ (as by escapement shafts, ventilation, etc.), or workmen in factories," or employments danger- ous to life and deleterious to health,'' or on railroads.*
§ 461. State Inspectors of mines,^ factories, etc., are in some States provided for in the Constitution.
§ 462. Employers' Liability. — (See also § 535. ) The right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be sub- ject to any statutory limitation.''^
The defence of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.''
37. Statutes to this effect are uni- hereof, a right of action shall accrue
versal. to the party injured, for the damage
' Cal., N. C. sustained thereby, and in all cases in
^ Ida. 13, 6. this state, whenever the death of a
^ La. 185 ; Tex. 16, 35. person shall be caused by wrongful act,
* Utah 16, 4; N. D. 212; Wy. 1, neglect or default, such as would, if 22. death had not ensued, have entitled
^ Ark. 19, 18; Col. 16, 2; Ida. 13, the party injured to maintain an
2; 111.4,29; Utah 16, 6; Wash. 2,35; action to recover damages in respect
Wy. 9, 2 ; Okla. 23, 5. So, for their thereof, the person who, or the corpo-
drainage (Col. 16, 3). ration which would have been liable, if
^ Wash., Ida., Okla. death had not ensued, shall be liable
' Wash., Ida. to an action for damages notwithstand-
* Okla. ing the death of the person injured, and ® Wy. 9, 1. See § 202. the legislature shall provide by law at
^° N. Y. 1, 18 ; Okla. 23, 7 ; Utah 16, 5 ; its first session for the manner in which
Wy. 10, 4. So, "for any injury to per- the right of action in respect thereto
son or property caused by wilful failure shall be enforced." In mines only (Wy.
to comply with the provisions of this 9, 4). article, or laws passed in pursuance " Okla. 23, 6.
314 THE STATE CONSTITUTIONS [BOOK III
Any provision of a contract, express or implied, made by any person, by which any of the benefits of tliis Constitution is sought to be waived, shall be null and void; and so of any such pro- vision stipulating for notice or demand other than such as may be provided by law, as a condition precedent to establish any claim, demand, or liability.'
It shall be unlawful for any person, company, cr corporation to require of its servants or employees, as a condition of their employ- ment or otherwise, any contract or agreement whereby such persons, company, or corporation, shall be released or discharged from lia- bility or responsibility on account of personal injuries received by such servants or employees while in the service of such person, com- pany, or corporation, by reason of the negligence of such person, company, or corporation, or the agents or employees thereof; and such contracts shall be absolutely null and void.-
§ 463. Prison Labor. — All labor of convicts confined in the State's prison, shall be done within the prison grounds, except where the work is done on public works under the direct control of the State.^ So the contracting out of prison labor is prohibited.*
§ 464. Alien Labor. — No person, not a citizen of the United States, or who has not declared his intention to become such, shall be employed upon, or in connection with, any State or municipal works.^
§ 465. Arbitration. — The Legislature may establish boards of arbitration, whose duty it shall be to hear and determine all differ- ences and controversies between laborers and their employers which may be submitted to them in writing by all the parties.'' Such boards of arbitration shall possess all the powers and authority in respect to administering oaths, subpoenaing witnesses, and com- pelling their attendance, preserving order during the sittings of the board, punishing for contempt, and requiring the production of papers and writings, and all other powers and privileges, in their nature applicable, conferred by law on justices of the peace.'
» Okla. 23, 8-9. * Miss. 223 ; Okla. 23, 2 ; Utah 16,
2 Mon. 15, 16; Wy. 10, 4; 19, 1. 3.
3 Ida. 13, 3; Ky. 253; Utah 16, 3. ' Ida. 13, 5; Wy. 19, 1. Such pro- The Legislature shall provide by gen- visions may, if a treaty exists, contra- eral law for the working of public roads vene the Federal Constitution.
by contract or by county prisoners, or * Ida. 13, 7 ; Wy. 19, 1.
both. Such law may be put in opera- ^ Ida. So, the Legislature shall pro-
tion only by a vote of the board of su- vide by law for a Board of Labor, Con-
per\asors in those counties where it may ciliation and Arbitration, which shall
be desirable (Miss. 85). fairly represent the interests of both
PART III] LEGISLATION 315
Article 50. Private Corporations
§ 500. Definition. — The word corporation , as here used, is de- clared by the Constitutions of many States to mean all associations or joint stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships.'
§ 501. General Principles. — All powers and franchises of cor- porations are derived from the people and are granted by their agent, the government, for the public good and general welfare, and the right and duty of the State to control and regulate them for these purposes is hereby declared. The power, rights, and privileges of any and all corporations may be forfeited by wilful neglect or abuse thereof. The police power of the State is supreme over all corpora- tions as well as individuals.- (See § 506, also.) "Being creatures of the State endowed for the public good with a portion of its sov- ereign powers, they must be subject to its control." ^ The size and functions of all corporations should be so limited and regulated as to prevent fictitious capitalization, and provision should be made for the supervision and government thereof.* No exclusive privi- leges can be granted to a corporation.^
§ .502. Creation. — By the Constitutions of most States, the Legislature is forbidden, generally, to create corporations ^ or to
capital and labor. The Board shall per- * lo. 8, 12 ; Territories. See also
form duties, and receive compensation § 16.
as prescribed by law (Utah 16, 2). By « Ala. 229; Ark. 12, 2; Cal. 12, 1
statute, such boards exist in many & 7 ; Col. 15, 2 ; Del. 9, 1 ; Fla.
States. 1S99, p. 1357; Ida. 11, 2; 3, 19; Ind.
' Ala. 241; Cal. 12, 4; Ida. 11, 16; 11, 13; 111. 11, 1; lo. 8, 1 ; Kan. 12,
Kan. 12, 6 ; Ky. 208 ; La. 268 ; Mich. 1 ; La. 275 ; Me. 4, 3 ; Md. 3, 48 ; 1890,
15, 11; Minn. 10, 1; Miss. 199; Mo. 12 195; Mich. 15, 1 & 8; Minn. 10, 2;
11; Mon. 15, 18; N. Y. 8, 3 ; N. C. 8, Miss. 178, 179; Mo. 12, 2; Mon. 15, 2;
3; N. D. 144; Okla. 9, 1; Pa. 16, 13; Neb. 13, 1; Nev. 8, 1 ; N. J. 4, 7, 11;
S. C. 9, 1; S. D. 17, 19; Utah 12, 4; N. Y. 8, 1 ; N. C. 8, 1; N. D. 131;
Va. 153; Wash. 12, 5. In Delaware O. 13, I; Okla. 9, 38; Ore. 11, 2;
(9, 4) nothing in the Constitution ap- R. L Amt. 9; S. C. 9, 2; S. D. 17, 1;
phes to rehgious corporations, whose Tex. 12, 1; Tenn. 11, 8; Utah 12, 1;
rights remain unaltered except where Va. 154, 167; W. Va. II, I; Wash.
therein otherwise provided. Okla- 12, 1; 2,28; Wis. 11, 1; Wy. 10, 1;
homa and Virginia except municipal Territories U. S. R. S. 1889; 1886,
corporations from this article and de- 818. In Rhode Island an exception
fine the term charter and license — the is made of corporations created with
latter term, in Virginia, referring to the power to exercise the right of emi-
foreign corporations (§ 505). nent domain or acquire franchises in
- Wy. 10, 2. the streets and highways, which must
^ Wy. 1, 30. be created by special Act upon peti-
* N. H. 2, 82. tion and notice according to law (§ 302).
816 THE STATE CONSTITUTIONS [nOOK III
license foreign corporations' by special act. (See also § 395.) 1 >; I II kiii<^ corporations may, however, in three States still he created by special act.*
So, the Legislature "shall provide by general laws" for the crea- tion of municipal,^ educational/ charitable, religious, and literary * corporations, or for manufacturing," mechanical,' industrial,^ min- ing,® agricultural,'" draining," "other useful companies," '- or for the creation of corporations generally '^ (this last would follow from the principal provision above), or for conducting the business of in- surance, banks of discount and deposits (but not of issue), loan, trust, and guaranty associations, railroads, wagon roads, irrigating ditches, the colonization and improvement of lands in connection therewith.'* Nor can the Legislature by special act change or amend any franchise or charter (save as to corporations above excepted),'^ or remit the forfeiture of a charter now existing.'"
The Legislature shall pass no law for the benefit of a railroad or other corporation (or any individual or association of individuals) retrospective in its operation, or which imposes on the people of any municipality a new liability in respect to transactions or consider- ations already past.''
In Delaware a general or special incorporation act must have a
two-thirds vote of all the members elected in each house; in Rhode
Island it must be continued to the next Legislature, and public
And in other States an exception is ^ Del., Ind., Md. made of municipal corporations (Col., ^ Cal. 11, 6. Del., Ida., La., Md., Me., Mich., Mon., * Fla. 3, 25; Territories. Minn., N. C, N. D., Nev., N. Y., Ore., « Territories. S. C, Tex., Wis., Territories U. S. 1878, « Territories. 168) "which are under the control ' Fla. of the State" (Col., Ida., Mon., N. D.) ; » Territories, of cases where there is no general act * Fla., Territories. (Me., Md., N. C, N. Y., Wis.); of " Fla. educational, charitable, penal, or re- " Territories, formatory corporations (Ark., Col., '- Fla.
Del., Ida., 111., Mo., Mon., Neb., N. D., '^ Ala., Miss., N. D., S. C, S. D., S. C, S. D.) ; but such corporations Va. if specially chartered must, except in '* Territories.
Montana, be under State control. It '^ Ala., Cal., Col., Del., Ida., 111., will be noted that in the northern and La., Mich., Miss., Mo., Mon., Neb., eastern States the whole matter of Nev., S. C, S. D., Utah, Va., Wash, corporations is left to the Legislature And see §§ 503, 395. to determine by law; while the follow- "^ Ala.; Cal.; La. 262; Miss.; Mo. ing States endeavor to cover the subject 12,3; Mon.; N. D. 13,3; S. C. 9, 17; substantially in their Constitutions: S. D. 17, 3; Utah; Wash. See, how- Del., La., Ky.. Ida., Mon., Okla., N. D., ever, § 503.
S. C, S. D., Utah, Wash., Va., Wy. '^ Col. 15, 12; Ida. 11, 12; Mo. 12,
' Okla. 19 ; Mon. 15, 13.
PART III] LEGISLATION 317
notice given of its pendency.' No law can create, renew, or expend the charter of more than one corporation.^ In Georgia the Legis- lature has no power to create private corporations, but shall pre- scribe the manner in which such powers shall be exercised by the Secretary of State.^ So in ^^irginia, charters are granted by the Corporation Commission (see § 532, note 6).*
§ 503. Repeal. — And all general ^ or even special ^ laws for the creation of corporations may be altered or repealed. So (see also § 16), no law shall be passed granting irrevocably any franchise, privilege, or immunity.^ But in Arizona no corporation can be dis- solved or its rights impaired except by judicial proceedings.^ In others, the Legislature shall by general law provide for the revo- cation or forfeiture of the charters of all corporations for the abuse, misuse, or nonuser of their corporate powers, privileges, or fran- chises, any procedure for such forfeiture, etc., to be taken by the attorney-general.'* All privileges or franchises, and rights to collect freights, fares, tolls, or wharfage are subject to control.^'* But they are not to be repealed, etc., so as to impair or destroy vested cor- porate rights,^' or work injustice to the corporators or the corpora- tion's creditors.'" In Iowa and Michigan such repeal, etc., must have a vote of two-thirds present '^ or elected" in each house of the Legislature. All corporations must organize and commence busi- ness within two years of the charter, etc., or it becomes void.'^
§ 504. Existing Corporations. — Some newer State Constitutions specifically provide that no general or special law,'^ or no exemption
» Del. 9, 1 ; R. I. 4, 17. S. D., Utah, Wash., Wis., Wy. And so
' S. D. 17, 9. doubtless in the others. 3 Ga. 3, 7, 18; Amt. 1891, p. 59. ' Ala. 22; Ky. 3; S. D. 6, 12;
* Va. 156. Utah 1, 23; Wash. 1, 8. For other
5 Ala. 229, 238; Ark. 12, 6; Cal. States see § 16, notes 1 & 2.
11, 6; 12, 1; Col. 15, 3; Ga. 1, 3, 3; » Ariz.* B. Rts. 29.
12, 1,5; Ida. 11,2 &3; 12, 1; lo. 8, 12; » Del. 9, 1 ; Ky. 205; Va. 154. Kan. 12, 1; Me. 4, 3, 14; Md. 3, 48 "> Tex. 1, 17; 12,5. See also §§ 416, (except banks) ; Miss. 88, 178; Mon. 501,506.
15, 3; Mich. 15, 1; N. J. 4, 7, 11; N. " Ga., Ore., Tenn.
Y. 8, 1 ; Nev. 8, 1; Neb. 13, 1; N. C. '- Ala., Ark., Col., Ga., Ida., Miss.,
8, 1; N. D. 131; O. 13, 2; Okla. 9, Okla., Pa., S. D. (as to corporations
47; Ore. 112; Pa. 16, 10; S. C. 9, existing when the Constitution was
2; S. D. 17, 9; Tenn. 11, 8; Utah adopted). These provisions would
12, 1 ; Va. 154 ; Wash. 12, 1 ; Wy. seem meaningless.
10, 1 ; Wis. 11, 1. See also § 394. But '^ lo. 8, 12.
only by general law: Del., Me., N. D., '* Mich. 15, 8.
S. C. Compare § 502. '^ Miss. 180.
« Ark., Del., Md., Me., Miss., Mon., '« Ala. 231 ; Ark. 17, 8; Ga. 4, 2, 3;
Nev., N. Y., N. C, Okla., Ore., Pa., Ida. 11,7; Ky. 190; La. 262 ; Md. 1890,
318 THE STATE CONSTITUTIONS [BOOK III
or remission of forfeiture,' or renewal or extension,^ or alteration or amendment ^ of a charter shall be enacted except on condition that any corporation availing itself of it shall thereafter hold its charter subject to the provisions of the Constitution. So, no corporation can do business until it accepts the Constitution.' The acceptance of any amendment usually brings the corporation under the general law,^ These restrictions do not of course apply to municipal corporations."
Existing charters or grants of special or exclusive privileges under which a bona fide organization had not taken place at the time of the adoption of the Constitution, or twelve months thereafter,'' are declared void.^ The property and franchises of corporations are subject to eminent domain like that of individuals.*
§ 505. Foreign Corporations. — Several States provide that no corporation organized out of the State shall be allowed to transact business within the State which is forbidden to domestic corpora- tions,'" or, on more favorable conditions than are prescribed by law to similar corporations organized in the State." But such companies may be licensed, or taxed, on a different principle from home corpora- tions,'- so it be uniform, or other conditions may be imposed.'^ No foreign corporation can condemn land,'* or conduct the business of a public service corporation within the State. '^ They must usually
p. 195; Miss. 179; N. D. 133 ; Okla. 9, » Va. 159. For other States see
11 ; Pa. 16, 2 ; S. C. 9, 17 ; S. D. 17, 3 ; § 97.
Utah 12, 2. This is applied specifically " Okla. 9, 44 ; Va. 163.
also to railroads: Ala. 246; Col. 15, 7; " Ark. 12, 11; Cal. 12, 15; Ida. 11,
Mo. 12, 21; Mon. 15, 8; Tex. 10, 8; 10; Ky. 202; Mon. 15, 11; Okla.;
Wy. 10, 6; or express or transports^ Va. ; Utah 12, 6; Wash. 12, 7. No
tion companies : Mon., Wy. Or tele- point of constitutional law is more
graph : Wy. vexed than this. Does a foreign cor-
' Ala., La., Md., Miss., N. D., S. C, poration come into a State with all
S. D. its charter powers, or only such as the
^ Del. 9, 2 ; La. ; Mich. 15, 8 ; Va. State law permits its own corpora-
158. tions? It is clear that a State may
^ Ala., Del., La., Miss., N. D., S. C, by express statute exclude such cor-
S. D., Va. poration entirely. Otherwise, the better
* Wy. 10, 5; 10, 10(6). opinion is that a definite prohibition
* Md., Miss., Okla., S. C. of such powers, or a clear line of poUcy
* Ida., Mich. forbidding such corporations of its ^ Ala. 230 ; Miss. 180. own creation, will also suffice so to ® Ark. 12, 1 ; Col. 15, 1 ; Ida. 11,1; limit or exclude foreign companies.
111. 11, 2; Ky. 191; Mo. 12, 1; Mon. ^-^ Ark. 12, 11; La. 242.
15, 1 ; N. D. 132 ; Neb. 13, 6 ; Okla. '^ Okla. 9, 44 ; Va.
9, 46; Pa. 16, 1; S. D. 17, 2; S. C. '* Ark.
9, 16; Utah 12, 2; Wash. 12, 2; Wy. '^ Va. 10,3; W. Va. 11, 3.
PART III] LEGISLATION" 319
file a copy of their charter, etc., with the Secretary of State,' or other official. In Virginia no foreign corporation can do business in the State until it has obtained a license from the corporation comnrission.' In Texas no such corporation except a national bank can do banking or discounting business in the State,^
§ 506. Business, Ultra Vires, etc. — All corporations doing business in a State may as to such business be regulated, limited, or restrained by law* (see also § 503); so, the police power of the State shall never be so abridged or construed as to permit corpora- tions to conduct their business in such manner as to infrino-e the equal rights of individuals or the general well-being of the State.^ No corporation can engage in any business other than that expressly authorized by its charter or the law under which it was formed : ® and not in more than one line of business.^
"The Legislature shall provide for the protection of the employees of all corporations doing business in the State from interference with their social, civil or political rights by said corporations or their agents or employees." ^
§ 507. Office in the State, Reports, etc. — A few State Constitu- tions provide that railroads," or all business corporations '° doing business in the State must have an office in the State for the trans- action of business, where transfers of stock may be made and the stock books shall be kept open. They must file a list of officers and stockholders with the Corporation Commission showing addresses and amount of stock held by each."
And foreign corporations in particular must have an author- ized office and agent in the State upon whom process may be served.'^
Failure to pay franchise taxes or make reports for two successive
» Ala. 232 ; Utah 12, 9. See § 507. ' Wy.
2 Va. 157. « Miss. 191.
3 Tex. 190.3, p. 249. » Ark. 17, 2; 111. 11, 9; La. 273; * Utah, 12, 1; Wash. 12, 1; Wy. Mo. 12, 15; Neb. 11, 1; N. D. 140;
10, 1. Pa. 17, 2 ; S. D. 17, 12 ; Tex. 10, 3.
' CaL 12,8; Col. 15, 8; Ga. 4, 2, " Cal. 12, 14; Ky. 194; La. 264;
2; Ida. 11, 8; Ky. 195; La. 263; Mon. 15, 11; S. C. 9, 4 ; Utah 12, 9.
Miss. 190; Mo. 12, 5; Mon. 15, 9; N. (£^xcepf mercantile corporations: S. C.)
D. 134 ; Pa. 16, 3 ; S. D. 17, 4 ; Va. And so of canals (Ark. Pa.) ; turnpikes
159. (Ark.) ; banks (Kan. 13, 6.)
« Ala. 233 ; Cal. 12, 9 ; Ky. 192 ; '^ Okla. 9, 43.
La. 265; Mo. 12, 7; N. D. 137; Pa. '- Ark. 12, 11; Ala. 232; Col. 15,10;
16, 6; S. C. 9. 12; S. D. 17, 7; Utah, Del 9, 5; Ida. 11, 10; 111.; Ky. ; La.;
12, 10; Wy. 10, 6. This is but the Mon.; N. D. 136; Okla.; S. C. ; S. D.
common law. 17, 6; Utah.
320 THE STATE CONSTITUTIONS [BOOK III
years operates a revocation or annulment of its cliarter, or, if a foreign corporation, its license (§ 50')).'
§ 508. Suits. — All corporations may sue and be sued in the courts like natural persons." Suits may be brought against a foreign corporation in any county where it does business,^ and service be made on an agent anywhere within the State.' Every license or charter granted to a mining or pul)lic service corporation, foreign or domestic, shall stipulate that it will submit any difference with its employees to arbitration as shall be provided by law.''
§ 509. Liabilities of Stockholders. — (For banks, see § 555.) The Constitutions of several States provide that stockholders shall in no case be liable otherwise than for unpaid stock ow'ned by them ; " so, each stockholder is liable for the amount of stock held or owned by him.^ In Nevada no stockholder is individually liable for the debts of the corporation.^
But in a few he is liable over and above his stock to a further sum equal in amount to such stock ; ^ in California, for his aliquot share for all the debts and liabilities of the corporation ; '" and in Michigan he is individually liable for all labor performed for the corporation or association."
In others, dues from corporations or their stockholders are to be secured in a manner provided by law.'"
Trust Funds. — No act of the Legislative Assembly shall authorize the investment of trust funds by executors, administrators, guardians, or trustees in the bonds or stock of any private corporation.'^
§ 510. Voting. — Stockholders have one vote for each share, for each person to be elected, by person or by proxy," and may cumu- late their votes on one candidate or distribute them as they see
» Va. 157. « Nev. 8, 3.
2 Ala. 240; Cal. 12, 4; Kan. 12, 6, » Kan. Amt. 1905, 542; Utah 12, Mich. 15, 11; Minn. 10, 1; Mon. 15, 18; Wash. 12, 11 (of banks, insurance, 18 ; Neb. 13, 3 ; Nev. 8, 5 ; N. Y. 8, 3 ; and joint stock companies) ; S. C. 9, N. C. 8, 3; Utah 12, 4; Wash. 12, 5. 18 (of banks). Except in railway cor-
3 Ala. 232 ; Cal. 12, 16. porations (Kan.). * Ala., Okla. Or in the county of '" Cal. 12, 3.
the plaintiff's residence or where the " Mich. 15, 7.
cause of action arose (Okla.). ^^ Ala.; Cal. 12, 2; Ida. 11, 17;
^ Okla. 9, 42. A striking clause. Ind. 11, 14; Kan.; Mon. 15, 19; Mo.;
« Ala. 236; Ida. 11, 17; O. Amt. Nev.; N. C. 8, 2; Tex. 12, 2.
1902, p. 961 ; S. C. 9, 18 ; Wash. 12, 4. " Ala. 74 ; Mon. 5, 37 ; Wy. 3, 38.
Except banking, or insurance com- " Cal.; Ida. 11, 4; 111. 11, 3; Ky.
panies (Wash.). 207; Miss. 194; Mon. 15, 4; Mo. 12,
' Minn. 10, 3 (except in mechanical 6; N. D. 135; Neb. 13, 5; S. C. 9, 11;
or manufacturing companies). S. D. 17, 5; W. Va. 11, 4.
PART III]
LEGISLATION
321
fit.* But no person engaged or interested in a competing business, either as director, stockholder, or individually, may so be elected without a majority stock vote."
§ 511. Directors are liable jointly and severally to creditors and stockholders for moneys embezzled or misappropriated by officers of the corporation during their term of office.^
§ 512. Issue of Stock. — The usual constitutional provision is that no corporation may issue stock or bonds except for money, labor done, or money or property actually received ; * and all fictitious increase of stock or indebtedness shall be void.^ In a few States stock can only be issued to actual subscribers therefor.*' Whenever any issue of stock or bands is made the corporation must file a detailed statement of the plans, payments, etc., of such issue with the Corporation Commission.^
§ 513. Increases of Stock may only be made under general laws with the consent of a majority of the stock,^ given at a special meet- ing after due notice " (usually thirty '" or sixty " days).
And the same law applies in a few State Constitutions to an increase of bonded indebtedness.''
1 Cal. ; Ida. ; 111. ; Ky. ; Miss. ; Mon. ; Mo.; N.D. ; Neb.; Pa. 16, 4; S. C. ; S. D. ; W. Va.
2 Miss.
8 Cal. 12, 3.
* Ala. 234; Ark. 12, 8; Cal. 12, 11; Col. 15, 9; Del. 9, 3; 1901,1; Ida. 11, 9; Ky. 193; La. 266; Mo. 12, 8; Mon. 15, 10 ; N. D. 138 ; Okla. 9, 39 ; Pa. 16, 7; S. D. 17, 8; Tex. 12, 6; Utah 12, 5. So in others, of railroads only: 111. 11, 13; Neb. 11, 5; S. C. 9, 10; Miss. 196; Wash. 12, 6; or " transportation companies " (Miss.). Such money or property must further be applied to the purposes for which the corporation was created, and not be received at greater value than the market price (Ky.).
' Ark., Ala., Cal., Col., Ida., 111., Ky., La., Miss., Mo., Mon., Neb., N. D., Okla., Pa., S. C, S. D., Tex., Utah, Wash. And the corporation issuing it forfeits its charter (La.).
« Utah, Wash.
^ "The Legislature shall enact gen- eral laws regulating and controlling all issues of stock and bonds by corpora-
tions. Whenever stock or bonds are to be issued by a corporation, it must file with the State Corporation Com- mission a sworn statement setting forth fully and accurately the basis, or finan- cial plan upon which such stock or bonds are to be issued ; and where such plan includes services or property (other than money), received or to be received, it must accurately specify and describe, in the manner prescribed by the Commission, the services and prop- erty, together with the valuation at which the same are to be received " (Va. 167).
» Ala. 234; Ark. 12, 8; Cal. 12, 11; Col 15, 9; Ida. 11, 10; La. 267; Mon.; Mo. 12, 8; Okla. 9, 38; Pa. 16,7; S. D. 17, 8; Utah; Wash.; Va. 167. In others the restriction only ap- plies to railroads (111. 11, 13; Neb. 11, 5).
« Okla., Utah, Wash.
•" Ala., Col., La.
» Ark., Cal., Ida., 111., Mo., Mon., Neb., N. D., Pa., S. D.
12 Ala., N. D., Okla., S. D.
21
322 THE STATE CONSTITUTIONS [BOOK III
§ 514. Preferred i<focIc cannot he issucil without the consent of two thirds/ or even iill,^ of the stockholders.
§ 515. Time. — A few State Constitutions hmit the duration of corporations to tliirty,^ or ninety-nine * years.
§ 51G. Real Estate may be held hy any corporation, usually such as it actually occupies in the exercise of its franchises,^ or as is necessary and proper for the carrying on of its legitimate business." Otherwise no corporation may hold land for more than a limited period of time.^ The Mississippi Constitution simply provides that the Legislature may limit or restrict the acquiring or holding of land by corporations.^
§ 517. Assignment of Franchise. — "Western States provide that the Legislature shall pass no law permitting the leasing or alienation of any franchise so as to relieve it or the property held thereunder from the liabilities of the lessor or grantor, lessee or grantee, con- tracted or incurred in the operation and use of such franchise or any of its privileges.®
§ 518. Consolidation, Combination, etc. (see also Article 58). — In Georgia the strict principle is laid down that the Legislature may not authorize any corporation to buy shares or stock in any other corporation in the States or elsewhere, or to make any contract or agreement with such corporation with the effect or purpose of lessening competition or encouraging monopoly, and all such con- tracts etc., are void." In Oklahoma, it may not o\\ti stock in any corporation engaged in the same line of business, or competitive, unless pledged, etc., and then it may not be voted and must be sold within a year."
So, no incorporated company, or any association of persons or stock company in the State shall directly or indirectly combine or make any contract with any other incorporated company, foreign or domestic, through their stockholders or the trustees or assignees of such stockholders, or in any manner whatsoever for the purpose of fixing the price or regulating the production of any article of com- merce or of produce of the soil, or of consumption by the people,
» Ala. 237. ' Thus, five years (Cal., Ky.), six
^ Mo. 12, 10. years (Mo.), or ten years (La., Mich.).
^ Mich. 15, 10 (except railroads, * Miss. 84.
plankroads, and canals). » Cal. 12, 10; Ida. 11, 15; Ky. 203;
* Miss. 178. Hon. 15, 17; Utah 12, 7; Wash. 12, 8.
« Mich. 15, 12. " Ga. 4, 2, 4.
« Cal. 12, 9 ; Ky. 192 ; La. 265 ; " Okla. 9, 41. Mo. 12, 7; S. D. 17, 7.
PAKT III] LEGISLATION 323
and the Legislature are required to pass laws for the enforcement thereof, by adequate penalties, to the extent, if necessary for that purpose, of the forfeiture of their property and franchise,' and, if foreign corporations, prohibiting them from carrying on business in the State.^ (See § 581.)
"No corporation, company, person, or association of persons in the State shall directly combine or form what is known as a trust." ^
"^Monopolies and trusts shall never be allowed in this State."'* So, "the Legislature shall enact laws preventing" such combina- tions, etc' (See § 581.)
"There shall be no consolidation or combination of corporations of any kinds whatever to prevent competition, to control or influence productions or prices thereof, or in any manner to interfere with the public good and general welfare." ®
"No person, corporation, etc., engaged in the production, manu- facture, distribution, or sale of any commodity in general use shall for the purpose of creating a monopoly or destroying competition discriminate between different persons or corporations, or different sections, communities, or cities, by selling at a lower rate in one than in another, allowance made for the difference if any in the grade, quantity, or quality, and in the actual cost of transportation from the point of production or manufacture."''
§ 519. Taxation of Corporations. — (See § 330.) By the Vir- ginia Constitution,^ provision shall be made by general laws for the payment of a fee by every domestic corporation, upon the granting, amendment, or extension of its charter, and by every foreign cor- poration upon obtaining a license to do business; and also for an annual registration fee of from $5 to $25, irrespective of other taxes, upon every corporation for the privilege of carrying on its business in the State (and this seems to apply to foreign corporations as well), and upon failure to pay the tax for two years the license to do busi- ness is revoked or the charter annulled.
"The Legislature shall, by general law, provide for the payment to the State of a franchise tax by corporations organized under the
• Ida. 11, 18; Mon. 15,20; S. D. ' Ala. 103; Ky. 198; La. 190; 17,20; Wash. 12, 22. Or "regulating Miss. 198; N. H. 2, 82; Okla. 5, 44; the transportation thereof" (Mon., S. C. 9, 13: Va. 1G5. See Art. 58.
S. D., Wash.). 6 Wy. 10, 8.
' Mon. 7 Okla. 9, 45.
3 Mon. 8 Va. 157.
* S. D., Wash.
324 THE STATE CONSTITUTIONS [BOOK III
laws of this State, wliicli sliall Ix- in ])r()portion to tlie amount of capital stock; and lor the payment of a franchise tax by foreign cor- porations, but such franchise tax sliall be based on the actual ainoimt of capital employed by this State. Strictly benevolent, educational or religious corporations shall not be required to pay such a tax.^ In other States corporations are taxed on their property in like man- ner as individuals.^
"The word property as used in this article is hereby declared to include moneys, credits, bonds, stocks, franchises, and all matters and things (real, personal, and mixed), capable of private owner- ship, but this sliall not be construed so as to authorize the taxation of the stocks of any company or corporation when the property of such company or corporation represented by such stocks is within the State and has been taxed." ^ (See § 331.)
Shares of stock of Delaware corporations "owned by persons or corporations without the State shall not be subject to taxation by any law now existing or hereafter to be made." ^
Article 52. Railroads (See, for General Provisions, Article 50.)
§ 520. Highways. — The Constitutions of many States declare all railroads to be public highways ; ^ and so, in a few, canals ^ or turnpikes; ^ and "free to all persons for the transportation of their persons or property thereon under the regulations prescribed by law."^
§ 521. Carriers. — - And these State Constitutions usually, with others, declare railroads to be common carriers," and so also of canal,'" pipe line," express,'- telegraph and telephone,'^ or other transportation companies," or sleeping cars.'^
1 Ala. 232. 'Ala.; Ark. 17, 1; Cal. 12, 17;
2 Miss. 181; Fla. 16, 16. See also Col. 15,4; Ida. 11,5; La.; Miss. 184, § 330. 195 ; Mo. ; Mon. ; N. D. 142 ; Pa. ;
3 Mon. 12, 17; Utah 13, 2. S. C. 9, 3; S. D. ; Tex.; Utah 12, 12; ^ Del. 9, 6. Wash. 12, 13, and 19; Wy. 10, 7.
s Ala. 242 ; Ark. 17, 1 ; Col. 15, 4 111. 11, 12; Ida. 11, 15; La. 272 Miss. 184; Mo. 12, 14; Mon. 15, 5 Neb. 11, 4; N. D. 142; Okla. 9, 6 Pa. 17, 1 ; S. D. 17, 15 ; Tex. 10, 2 ; W
Ala., Ark., Cal., Ida., Mon., Pa. S. C, Wash.
" Okla., Wy.
'- Ala., Ida., Mon., Miss., N. D. S. C, Wy.
Va. 11, 9; Wy. 10, 10 (2). '» Ala. ; Ky. 199; Miss.; Mon.:
6 Ala., Ark., Pa. S. C. ; Wash. ; Wy.
' Ark. '* Ala., Cal., Ida., Miss., Mon., N. D.
« Ark. 17, 3; Col. 15, 6; 111.; Neb.; S. C, S. D., Utah, Wash., Wy.
W. Va. " Ida., Miss.
PART III] LEGISLATION 325
And as such they are subject to legislative control,' taxation," and liability,^ which last can never be limited by law, nor shall a carrier be permitted to contract himself out of it.*
In Oklahoma and Virginia this applies to all public service cor- porations; and the terms "transmission" and "transportation" company are defined.
§ 522. Legislative Control. — The newer State Constitutions give the legislature express power to make laws establishing reason- able maximum rates of fare and freight,^ or generally to control or regulate the rates within the State.^ In other States, to correct abuses and prevent unjust discrimination or extortion.^ This power may never be surrendered nor abridged.'^ In a few, this power is or may be given to the railroad ^ or corporation commission.^" And it extends also to transportation," steamboat,'- express,'^ or " trans- mission" (telegraph and telephone) companies,'* canals,'" or pipe lines. '^ But always with appeal to the courts; '^ and the rate fixed stands, pending appeal.'^ In Oklahoma the Constitution requires a two-cent rate for passengers, unless the corporation commission exempt a railroad because unable at that rate to earn a "just compensation." '*
In California, a railroad, having once lowered its rates to com- pete with another carrier, cannot put them up again without the consent of the railroad commissioners.^"
§ 52.3. Short-Haul Clause. — By a few State Constitutions no
railroad may charge, for freight or passengers, a greater amount
for a less distance than a greater, in the same direction,^' of which
' Cal. ; Ida.; Ky. ; Miss. 186; Mon. ; « Cal. 12, 22; Ky. 209; Tex. 1889,
N. D.; S. D.; Utah; Va. 1G4; Wash. p. 171. See § 532.
2 S. C. '0 Neb. 1905, 233; Okla. 9, 4 ; S. C,
* S. C. 9, 13 ; Va. (subject to the paramount
* Ky. 196 ; Neb. ; S. C. authority of the Legislature). ^ Ala. 243; lU. 11, 12; Ida. 11, 5; '"■ Ida., IVIiss.
Mich. 19 A, 1; Mo. 12, 14; Neb. 11, 4; ^- Ky.
Tex. 10, 2; Wash. 12, 18; Utah 12, ^^ Ida., Miss.
15; W. Va. 11, 9; Va. 158. " Okla., Va.
» Mon. 15, 5; N. D. 142; S. D. 17, '^ Ala., Ark.
15 ; Va. 164 ; S. C. 9, 13. '« Okla. So, all public service com-
^ Ark. 17, 10, 1897, p. 92; Ala. 243; panics: Fla., Okla., Va.
Fla. 16, 30; 111. 11, 15; Ky. 196; Ga. '' N. D., Okla., Va.
4, 2, 1; Miss. 186; Mo. 12, 14; Neb. >« N. D., Okla., Va. See § 532. 11, 7; N. D. ; Tex. 10, 2; Utah; i» Okla. 9, 37.
Wash.; W. Va. 11, 9; S. C. 9, 13; '" Cal. 12,20.
5. D. 17, 17. 21 Ark. 17, 3; Cal. 12, 21; Ida. 11, 8 Va. It may be enforced if neces- 6; Ky. 218; Mo. 12, 12; Mon. 15, 7;
sary by forfeiture of the franchise Okla. 9, 30; Pa. 17, 3; S. C. 9, 5; (S. C). Wash. 12, 15; Va. 160.
326 THE STATE CONSTITUTIONS [BOOK III
the lesser is part; and as to freight, etc., of the same class.* But the railroad commission may make order exempting from this condition,- as at competitive points,^ etc. In Oklalioma and Virginia this principle a})plies to both transportation or "transmis- sion " companies.
§ 524. Discrimination. — Besides the general prohil)ition of § 522, we find a usual constitutional provision that no (undue or unreasonable *) discrimination in charges or facilities for trans- portation shall be made by any railroad '^ between places or persons, or in the facilities for the transportation of the same classes of freight or passengers," or by abatement, drawback, rebate,'' etc.
All individuals, associations, and corporations similarly situated, shall have equal rights to have persons or property transported on and over any railroad, transportation, or express route in this State ^ (except that preference may be given to perishable property "), and to employees and ministers.'"
No railroad, express, or transportation company, nor any lessee, manager, or other employee thereof, shall give any preference to any individual, association, or corporation, in furnishing cars or motive power," or for the transportation of money or other express matter.'-
All railway lines shall receive, load, unload, transport, haul, de- liver, and handle freight of the same class for all persons, associa- tions, or corporations from and to the same points and upon the same conditions, in the same manner and for the same charges, and for the same method of payment.'^
No railway, transfer, belt line, or railway bridge company
* Expressed in a few, but doubtless * Ark.; Cal. ; Col.; Ida. 11, 6. implied in all. "This section shall not ^ Or transportation (Ida. ; La. 286; prevent the Railroad Commission from Mon. 15, 7; S. C. 9, 5; Wash. 12, 15; making such competitive rates as shall, canal (Pa.) ; express (Ida., Mon.) ; turn- in their judgment, be just and equita- pike (Ark.) ; or transmission (telegraph, ble between the railroads and the pub- etc.) company (S. C. ; Va.). lie, at all junctional and competitive "^ Ark.; Cal. 12,21; Col.; Ida.; La.; points or at points where water com- Mon. ; Pa. 17, 3 ; S. C. ; Wash, petition controls the traffic, or at points '' Ala. 245; Cal.; Ida.; Mon.; Pa.; where the competition of points located S. C. ; Wash. in other States may make necessary * Ida. 11,6; Mon. 15,7. the prescribing of different rates for ® Ida. the protection of the commerce of this " Wy. 10, 2.
State.': (S. C.) So, substantially, in '^ Ark. 17, 6; Col. 15, 6; Ida.;
Oklahoma. Mo. 12, 23 ; Mon. ; Pa. 17, 7.
2 Okla., Ky., S. C, Va. '- Ida., Mon.
3 Okla., Va. " Ky. 215.
PAET III] LEGISLATION 327
shall make any exclusive or preferential contract or arrangement with any individual, association, or corporation for the receipt, / transfer, . delivery, transportation, handling, care, or custody of any freight, or for the conduct of any business as a common carrier.^
The Legislature shall pass laws against abuses, discrimination, and excessive charges by railroads, canals, and turnpike companies for freight or passengers.^
"No rebate or bonus shall be paid, directly or indirectly, or any act done which shall mislead the public as to the real rates charged or received for freight or passage."^ (See also § 435.)
Common carrier corporations, enjoying a right of way, shall carry the productions of the country on equal terms.*
§ 525. Passes, Commutations, etc. — But excursion or commu- tation tickets may be issued at reduced rates ^ and charitable service rendered free of cost.®
Free passes, or reduced rates, to State officials or members of the Legislature are in a few States forbidden by the Constitution ; ' and so to anybody, except officers or employees,^ or ministers.^ Acceptance of such a pass causes forfeiture of the office.'"
§ 526. Connections. — Li many States railroad companies are given a constitutional right to connect with or cross any other; " to construct and operate its railroad between any designated points
» Ky. 214. So in Washington (12, « La., Okla.
21): "Railroad companies now or ^ Ala. 244; Ark. 17, 7; Cal. 12, 19;
hereafter organized or doing business Mo. 12, 24; Ky. 197; La. 191;
in this State, shall allow all express Fla. 16, 31; Miss. 188; Okla. 9, 2;
companies organized or doing business Wash. 2, 39; 12, 20; N. Y. 13, 5; Va.
in tliis State, transportation over all 161. And so as to steamboats (La.,
lines of railroad owned or operated by Ky.) ; telegraph or telephone (La.,
such railroad companies upon equal N. Y.', Va.) ; or any public service
terms with any other express com- corporation or common carrier (Ky.,
pany, and no railroad corporation or- La.).
ganized or doing business in this * Okla. 9, 13 ; Pa. 17, 8 ; La. 287.
State shall allow any express corpora- ' La., Okla.
tion or company any facihties, privi- '" Ala., Cal., Ky., La., Mo., N. Y.,
leges, or rates for transportation of men Va. ; Wis. 1901, 437. It is made a
or materials or property carried by crime (Okla.).
them, or for doing the business of such '' Ala. 242 ; Ark. 17, 1 ; Cal. 12, 17;
express companies, not allowed to all Col. 15, 4; Ida. 11, 5; Ky. 216; La.
express companies." 271; Miss. 184; Mo. 12, 13; Mon. 15,
2 Ark. 1897, p. 92 ; Ky. 196 ; Utah 5 ; N. D. 143 ; Okla. 9, 2 ; Pa. 16, 12 ;
12, 15; Wash. 12, 18. Compare § 522. S. C. 9, 6; S. D. 17, 16; Tex. 10, 1 ; Va.
' Ga. 4, 2, 5. 166; Wash. 12, 13; Wy. 10, 10 (1).
* Minn. 10, 4. "In such a manner as to transfer cars"
^Ark. ; Cal.; Ida.; La. 287 ; Mo.; (Ky., Wash.). Mon. ; Okla. 9, 30 ; Pa. ; S. C. ; Wash.
328 THE STATE CONSTITUTIONS [BOOK III
within the State' and to connect with railroads of other States at the State Hnc.'
And in several States this principle is extended to telegraph or telephone ^ companies and canals.'' Any such company must receive and transport the passengers and freight ° (or even the cars, loaded or empty"), of such other company without delay or discrimination.
A railway must deliver grain at any elevator or warehouse which can be reached by its tracks and allow other warehouses or coal- banks to make connection.'
§ 527. Consolidations and Combinations. — Most State Consti- tutions provide that no railroad may consolidate with a competing or parallel line,^ or acquire it by purchase, lease, or otherwise," or own or control its stock,'" or pool its earnings with it," or operate it; '^ nor may the officers of one act as the officers of the otlier.'^
In two States no railroad may consolidate with another organ- ized in another State." In other States it may do so, but will still be liable to the home jurisdiction.'^
Nor shall any railroad company or other common carrier com- bine or make any contract with the owners of any vessel that leaves or makes port in this State, or with any common carrier, by which combination or contract the earnings of one doing the carrying are to be shared by the other not doing the carrying.'"
Notice of a proposed consolidation must be given to all the stock- holders of both roads, '^ usually sixty days.'^ An attempt to evade
' Ida., Miss., Mon., N. D., Okla., transportation (Mon., S. C.) ; or "any
S. D., Wash., Wy. other corporation" (Mon.). Any public
' Ida., Miss., Mon., N. D., Okla., service company (Okla.). And it ap-
S. D., S. C, Wash., Wy. plies also to corporations of other
' Ala., Col., Pa., Okla., S. C. States, or of the United States, having
* Ala. lines in the State (Okla.).
« Ark.; Ala.; Cal. ; Ky. 213; La.; » Ark., Mo., Okla., Pa., S. C, Tex.,
Mich. 19 A, 1 ; Miss. ; Mo. ; N. D. ; W. Va.
Okla.; Pa.; S. C. ; S. D. ; Tex.; Utah '» Okla., S. C. 9, 19.
12, 12 ; Va. ; Wash. ; Wy. '' Ky., Mon.
" Okla., S. C, Va. '^ i^y^ ^gn.
' 111. 13, 5. " Ark., Mo., Mon., Okla., Pa., Tex.
« Ark. 17, 4; Col. 15, 5 and 13; 111. '* Okla. 9, 9; Tex. 10, 6; S. C. 9, 8.
11, 11; Ky. 201; Mich. 19 A, 2 ; Mo. >= Col. 15, 14; Ida. 11, 14; Ky. 200; 12,17; Mon. 15, 6 & 7 & 14; Neb. 11, La. 274; Mo. 12, 18; Mon. 15, 11. 3; N. D. 141; Okla. 9, 8; Pa. 16, 12; And so of telegraph (Col., Ky., Ida., S. C. 9, 7 ; S. D. 17, 14 ; Tex. 10, 5 ; Utah Mon.) ; telephone (La.) ; express (Ky.,
12, 13; Wash. 12, 16; W. Va. 11, 11. Ida., Mon.); transportation (Mon.) ; or And so of telegraph companies (Ala. any other corporation (Ky., Ida.). 239 ; Col. ; Ky. ; Neb. ; Pa. ; S. C. ; S. D. '" Cal. 12, 20 ; Ky. 201 ; Wash. 12, 14. 17, 11); telephone (Ala., Ky., Mon.); " 111., Mich., Neb., N. D., Mo., S. D. canals (Ark., Pa.) ; bridges (Ky.) ; ex- '^ La., N. D., S. D.
press (Mon.) ; common carrier (Ky.) ; or
PART III] LEGISLATION 329
the provisions of this section, by lease or otherwise, forfeits the charter.^ The question whether the roads are parallel or compet- ing is one of fact, to be determined by a jury.^ The provisions of this article may not be evaded by holding companies, control of stock, etc.^
§ 528. The Rolling Stock and movable property of railroads are declared to be personal property; and the Legislature may pass no law exempting it from execution,^ or ordinary direct taxation.^ And so its earnings are subject to ordinary attachment or trustee process.®
§ 529. Location. — No railroad, etc., organized in another State can exercise the right of eminent domain or acquire land or right of way until duly incorporated in the State.'' (See also §§ 505, 538.)
No railroad company shall construct or operate a railroad within four miles of any existing town or city without providing a suitable depot or stopping place at the nearest practical point for the con- venience of said town or city, and stopping all trains doing local business at said stopping place. No railroad company shall deviate from the most direct practical line in constructing a railroad for the purpose of avoiding the provisions of this section.^ Proper depots must be maintained for freight and passengers; and protecting devices at grade crossings.^
The exclusive right to build or operate railroads parallel to its own or any other line of railroad shall not be granted to any company.^"
§ 530. O^ce and Oncers, Reports, etc. — "Every railroad corporation organized or doing business in this State under the laws or authority thereof shall have and maintain a public office or place
1 N. D., S. D. Miss. 185 ; Mo. 2, 16 ; Neb. 11, 2 ; Okla.
2 Ark., Mo., Pa., S. C. 9, 7 ; S. D. 17, 13; Tex. 10, 4; W. Va.
3 Notliing prohibited in this Article 11, 8; Utah 12, 14; Wash. 12, 17. shall be permitted to be done by any * Utah, Wash.
corporation or company, persons or ' Ky.
person, either for its or their own ' Ky. 211; Neb. 11, 8; Okla. 9, 31.
benefit or otherwise, by its or their ^ Wy. 10, 10 (9). So, not within
holding or controlling in its or their half a mile of a town of three hundred
own name or other\vise, or in the name people (W. Va. 11, 10); and "it may
of any other person or persons, or not pass within three miles of a county
other corporation or company whatso- seat, without passing through the
ever, a majority of the capital stock, same" if the town will give right of
or of bonds having voting power, of any way, etc., unless prevented by natural
railroad or transportation company, or obstacles (Miss. 187 ; Okla. 9, 14 ; Tex.
corporation created by or existing 10, 9).
under the laws of this State, or doing » Okla. 9, 26 & 27.
business within this State (S. C. 9, 19). i" Va. 166. * Ark. 17, 11; 111. 11, 10; Ky. 212 ;
330 THE STATE CONSTITUTIONS [DOCK III
in tills State for the transaction of its business, where transfers of its stock shall he made, and in which shall be kept for public inspection books in which shall be recorded the amount of capital stock sub- scribed, and by whom ; the names of the owners of its stock, and the amount owned by them respectively; the amount of stock paid in, and by whom; the transfers of said stock; the amount of its assets and liabilities ; and the names and place of residence of its officers. The directors of every such railroad corporation shall annually make a report, under oath, to the auditor of public accounts or some officer or officers to be designated by law, of all their acts and doings, which report shall include such matters relating to railroads as may be prescribed by law, and the Legislature shall pass laws enforcing by suitable penalties the provisions of this section." ^
"Every railroad corporation or association operating a line of railroad within this State shall annually make a report to the auditor of State of its business within this State, in such form as the Legisla- ture may prescribe." ^
A majority of the directors must be resident in the State.^
No president, officer, director, agent, or employee of a railroad or canal shall be interested, directly or indirectly, in furnishing it material or supplies, or in the business of transportation of freight or passengers as a common carrier over the company's works.*
§ 53L Ultra Vires. — No company doing the business of a common carrier can engage in mining or manufacturing articles for transportation over its works; nor directly or indirectly engage in any other business ; nor hold land except such as is necessary to its business.^
§ 532. Railroad Commissioners are established by the Constitu- tions of several States^ (see also § 202). In Oklahoma, Virginia, and South Carolina the " Corporation Commission " have charge of all "transporting and transmitting companies."^ But in Oklahoma,
^ N. D. 140 ; Okla. 9, 6 (report to be fe?5r own railways or canals not ex- made to the Corporation Commission) ; ceeding fifty miles in length (Pa.). S. D. 17, 12. And so of all public ser- « Cal. 12, 22 ; Ky. 209 ; La. 283 ; vice corporations (Okla.). Neb. 1905, 233 ; S. C. 9, 14. So, "they
2 Ark. 17, 13; W. Va. 11, 7; Wy. may be estabhshed by the Legisla-
10, 10 (3). ture," N. D. 142; Tex., 1889, p. 171,
' 111. 11. 11. 1893, p. 213; Wash. 12, 18.
* Ark. 17, 5 ; Cal. 12, 18 ; Mo. 12, 22 ; ' The Virginia and Oklalioma Con- Pa. 17, 6. stitutional provisions concerning the
^ Ky. 210; Okla. 9, 12; Pa. 17, 5. Corporation Commission are so prolix
But mining or manufacturing com- that it is impossible to give more than
panies may carry their product over an abstract in the note. Briefly stated
PART III]
LEGISLATION
331
the legislature may repeal Art. 9 §§ 18-34, being practically all constitutional provisions relating to railroads, after January, 1909 (9, 35).
they are as follows: The State Cor- poration Commission consists of three members appointed by the Governor (Va.) , elected by the people (Okla.), for six years respectively, one going out each two years. No person can hold office as a member of such Commission while employed by or holding any office in any transportation or transmis- sion company or financially interested therein (Okla., Va.), or engaged in practising law (Va.), or in any other business (Okla.), although at least one of the Commission must have the cjuali- fications prescribed for a judge of the Circuit Court of Appeals (Va.). Then there are provisions much like the Massachusetts statutes concerning the Railroad Commission as to their rules, sittings, officers, etc. : Okla. 9, 16-19 ; Va. 155. After 1908 the Legislature may provide for the election, instead of the appointment, of the members of such Commission (Va.).
The Corporation Commission issues all charters and amendments or exten- sions thereof for domestic corpora- tions and all licenses to do business for foreign corporations (Va.) and has general supervision and control, with power to require evidence and reports, etc. (Okla., Va.). They may prescribe rates, charges, classifications of traffic, and rules and regulations, and may require railroads, etc., to estabhsh such pulalic services as may be reasonable, and all other rates or charges shall be void, and may inspect books and papers, require evidence under oath, etc. (Okla. 9, 28; Va.). Before fixing any rate or making any order directed against one or more companies by name, such com- pany shall be given ten days' notice with an opportunity to be heard ; and of general orders directed not against any specific company, there must be four weeks' publication in a capital news- paper with notice of hearing (Okla., Va.). Notliing in this section is to interfere with the paramount authority of the Legislature (Va.). But the authority of the Commission to make rates, subject to appeal to the courts,
is paramount (Okla.). Nor to impair any right heretofore or hereafter con- ferred by law upon the authorities of any city, town, or county to fix rates or prescribe regulations, etc., as to rates of public service corporations therein (Okla., Va.). The Commission has the general powers of a court of record, may administer oaths, compel the at- tendance of witnesses and the produc- tion of papers, and punish for contempt, etc. (Okla. 9, 19; Va.). From any action of the Commission prescribing rates, charges, or other ortlers an appeal may be taken by the corporation or by the Commonwealth to the Supreme Court but prior to the reversal of such order by the Court no action of the Commission is delayed or sus- pended until a suspending bond shall first have been executed and filed with and approved by the Commission, pay- able to the Commonwealth to secure all charges which such company may collect or receive pending the appeal in excess of those fixed by the final decision. All such appeals have prece- dence in the Court of Appeals. No new evidence may be introduced upon the appeal. If the Court reverse the order of the Commission affecting rates, etc., it shall substitute therefor such order as it deem reasonable, which substituted order has the same force and effect as if entered by the Com- mission originally. The right of any person to institute in the ordinary courts any action or suit against any transportation or transmission com- pany for any claim or cause of action is not extinguished or impaired by reason of any fine or other penalty wliich the Commission may impose upon such company, but in no such proceeding shall the reasonableness or justness of any rate or order, etc., made by the Commission within the scope of its authority and then in force, be questioned. The Commission makes annual reports to the Governor, etc. (Va. 156-157; Okla. 9, 20-25). And in Oklahoma they must report the cost of road, rebuilding cost or "re-
332 THE STATE CONSTITUTIONS [hOOK III
The ronstitutioii of TiOuIsiaiiii providers for a Railroad, Express, Telcplioiie, Tclograpli, Stcainhoat, and Sk'cpin<;^ Car Coinini.s.sion to be composed of three iiu-iiiht'rs to be elected IVoiii the State Districts, which Commission has power to adopt or change reasonable and just rates, charges, and regulations, to govern the tariffs and service of such several companies, to prevent them from charging any greater compensation in the aggregate for the like kind of property or passengers for a sliorter than a longer distance over the same line unless specially authorized by the Commission; to require suitable depots, switches, and appurtenances, to inspect railroads and require them to keep their tracks, etc., in a safe condition, and to fix and adjust rates between branch or short lines and the great trunk lines with which they connect. The Commission may further adopt reasonable rules, regulations, etc., may hear and determine com- plaints, and regulate investigations, and compel the attendance of witnesses and compel the production of testimony, etc., and punish for contempt as fully as is provided by law for the district courts. Railroads and other companies dissatisfied with the decision or rate may appeal to the Supreme Court of the State. The powers of the Commission go only to matters within the State lines. ^
The Legislature is empowered to add to or enlarge the powers of such Commission; and no person in the service of any such rail- way or other company can be a Commissioner.^
§ 534. Liabilities. — The fellow-servant doctrine as to em- ployees of railroads is done away with by some new State Constitu- tions ; ^ and railroads are responsible for all damages to persons or property to their employees as to others.*
The Constitution of Arkansas provides that all railroads shall be responsible for all damages to person or property, under such regula- tions as are prescribed by the Legislature ; and that the Legislature shall require, by suitable laws, the necessary means and appliances to secure the safety of passengers on railroads and other public conveyances.^
valuation," debt, stock, bonds, prices * La. 283-285.
received therefor, salaries and wages ^ La. 287, 288.
paid, etc., at once to the Attorney ^ Okla. 9, 36; S. C. 9, 15; Va. 162; General, and in their annual reports Miss. 193. And also of mines (Okla.).
(Okla. 9, 29). And they must in- ^ S. C, Miss,
vestigate and report, when necessary, ^ Ark. 17, 12 ; 19, 18. to the Interstate Commerce Commis- sion (Okla. 9, 32).
PART III] LEGISLATION 333
And it is unlawful for any person or corporation to require of its employees, as a condition of their employment or otherwise, any contract or agreement whereby the company is released from lia- bility on account of personal injuries received by such employees while in its service, by reason of the negligence of the company or its servants; and such contracts are void.'
§ 535. Damages for Death. — (See also § 462.) Four new Constitutions provide for damages for death whether instantaneous or not, in cases where damages would be liable had death not occurred ; and contracts to waive the benefit of this section are made void.-
The Constitutions of other States provide that every person or corporation that may commit a homicide, tlirough wilful act or omission or gross neglect, shall be responsible in exemplary dam- ages to the surviving husband, widow, or heirs, notwithstanding any criminal proceedings that may or may not be had.^
And in others, that no act of the Legislature shall limit the amount to be recovered for injuries resulting in death, or for injuries to person or property; and in case of death resulting therefrom, the right of action shall survive for the benefit of such persons as the Legislature may prescribe (see § 402) .* And also, that no act shall prescribe
* Col. 15, 15 ; Wy. 10, 4. gerous or unsafe cars or engines volun-
- Okla. ; S. C. 9, 15; Va. 161 ; Miss, tarily operated by them. When death
193. Thus: "Every employee of any ensues from any injury to employees,
railroad corporation shall have the the legal or personal representatives
same rights and remedies for any in- of the person injured shall have the
jury suffered by Mm from the acts or same right and remedies as are allowed
omissions of said corporations or its by law to such representatives of other
employees as are allowed by law to persons. Any contract or agreement,
other persons not employees, when the expressed or imphed, made by any
injury results from the negUgence of a employee to waive the benefit of tliis
superior agent or officer, or of a person section, shall be null and void ; and
having a right to control or direct tliis section shall not be construed
the services of a party injured, and to deprive any employee of a corpora-
also when the injury results from the tion, or liis legal or personal repre-
negligence of a fellow servant engaged sentative, of any remedy or right that
in another department of labor from he now has by the law of the land,
that of the party injured, or of a fellow The General Assembly may extend
servant on another train of cars, or the remedies herein provided for to
one engaged about a different piece any other class of employees." (Miss.
of work. Knowledge by any employee 193 ; S. C. 9, 19.) Other provisions
injured of the defective or unsafe are substantially similar (Okla. 9, 36;
character or condition of any ma- Va. 162).
chinery, ways, or appliances shall be ^ Ky. 241 ; Tex. 16, 26 ; Wy. 10, 4.
no defence to an action for injury * Ark. 5, 32; Ky. 54; Pa. 3, 21.
caused thereby, except as to con- The Legislature are to prescribe to
ductors or engineers in charge of dan- whom the damages belong (Ky.).
334 THE STATE CONSTITUTIONS [BOOK III
any limitation of time within wliicii such suits shall be brought against corporations, different from those fixed by general laws for actions against natural persons.'
Whenever the death of a person sliall result from an injury in- flicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative. The same shall form part of the personal estate of the deceased person. -
§ 53G. Street Railways. — The Constitutions of several States provide that no law shall be passed authorizing the construction of a street railroad ^ in a town or city without the consent of one-half in value of the abutting property owners,^ or the consent of the local authorities^ or of the electors,^ and this consent is also re- quired for gas, water, telephone, light companies, etc.,'' or any public service. Except, however, a petition may be brought, in New York, in the Supreme Court, in case the consent of property owners cannot be obtained.
§ 537. Telegraph Companies. — Any association or corporation organized for the purpose, or any individual, shall have the right to construct and maintain lines of telegraph and telephone within this State, and connect the same with other lines; and the Legislature shall, by general law of uniform operation, provide reasonable regulations to give full effect to this section.^ No telegraph or tele- phone company shall consolidate with any other, etc. (See § 527.)
Cities and towns may, however, control the location of such companies.^
Said companies shall receive and transmit each other's messages without delay or discrimination. ^°
Railroad corporations organized or doing business in this State shall allow telegraph and telephone corporations and companies to
' Pa. 8 Neb. 13, 2.
^ Ky. 241. 7 Ala., Ky. See note 5.
3 And so of telegraph or telephone » Ala. 239; Ida. 11, 13; Ky. 199; (N. D., S. C, Utah, Wy.), electric Men. 15, 14; S. D. 17, 11; Wash. 12, (S. C, Wy.), gas (S. C), or water com- 19; Wy. 10, 10 (7). panies (S. C). » Ky.
* N.Y. 3,18;Tex.lO,7; W.Va. 11,5. '° Ky. ; N. D. 142 ; Okla.9,5; S. D. ;
« Ala. 220; Col. 15, 11; Ga. 3, 7, Wash. 12, 19. See also § 526. 20; 111. 11, 4; Ky. 163; Mo. 12,20; Okla. 9, 10; Pa. 17, 9; S. C. S, 4.
PART III] LEGISLATION 335
construct and maintain telegraph lines on and along the rights-of- way of such railroads and railroad companies, and no railroad corporation organized or doing business in this State shall allow any telegraph corporation or company any facilities, privileges, or rates for transportation of men or material, or for repairing their lines, not allowed to all telegraph companies. The right of eminent domain is hereby extended to all telegraph and telephone companies. The Legislature shall, by general law of uniform operation, provide reasonable regulations to give effect to this section.^
§ 538. Foreign railroads (see also §§ 505, 529) or teiegraph lines shall do no business within this State without having an agent or agents within each county through which such railroad or telegraph line shall be constructed upon whom process may be served."
In South Carolina and Mississippi no foreign road can operate in the State. (See also § 529.) ^
§ 539. Local Aid. — Neither the State, nor any county, town- ship, school district, or municipality shall loan or give its credit or make donations to or in aid of any railroad * or telegraph line.'^ Provided, that this section shall not apply to obligations of any county, city, township, or school district, contracted prior to the adoption of this Constitution." (See also §§ 326, 335, 345, 370.)
§ 540. Taxation. — (See § 528.) State franchise taxes may be imposed, and the Legislature in its discretion may make the same in
' Wash. 12, 19. become a domestic corporation of this
^ Wy. 10, 10 (8). State. No general or special law shall
^ "The General Assembly shall not ever be passed for the benefit of any grant to any foreign corporation or foreign corporation operating a rail- association a license to build, operate, road under any existing license of this or lease any railroad in this State ; but State or under any existing lease, and in all cases where a railroad is to be no grant of any right or privilege and built or operated, or is now being no exemption from any burden shall operated, in this State, and the same be made to any such foreign corpora- shall be partly in this State and partly tion, except upon the condition that in another State, or in other States, the owners or stockholders thereof the owners or projectors thereof shall shall first organize a corporation in first become incorporated under the this State under the laws thereof, and laws of this State ; nor shall any foreign shall thereafter operate and manage corporation or association lease or the same and the business thereof operate any railroad in this State, or under said domestic charter." (Miss, purchase the same or any interest 197; S. C. 9, 8.) therein. Consolidation of any railroad * Mon. 5, 37 ; Wy. 3, 39 ; 10, 5. lines and corporations in this State ^ Wy. with others shall be allowed only ^ Wy. where the consolidated company shall
33G THE STATE CONSTITUTIONS [BOOK III
lieu of taxes upon otluT j)rop(Tty of a transportation, industrial, or commercial corporatioii ; hut wlini such franchise tax is inijxiscd upon a corporation doini^ husiness in the State, or whenever all the capital, however invested, of a State cor{)oration is taxed, tlie shares of stock shall not be further taxed.'
"The franchise, roadway, roadbed, rails, and rolling stock of all railroads oj^erated in this State shall be assessetl by the State Board of Equalization at their actual value, and such assessed valuation shall be apportioned to the counties, cities, towns, townships, and districts in which said roads are located, as a basis for taxation of such property, in proportion to the number of miles of railway laid in such counties, cities, towns, townships, and districts." -
"The Legislative Assembly may, by law, provide for the payment of a per centum of gross earnings of railroad companies to be paid in lieu of all State, county, township, and school taxes on property exclusively used in and about the prosecution of the business of such companies as common carriers, but no real estate of said corporations shall be exempted from taxation in the same manner and on the same basis as other real estate is taxed, except roadbed, right of way, shops, and buildings used exclusively in their business as common carriers; and whenever and so long as such law^ providing for the payment of a per centum on earnings shall be in force, that part of § 179 of this article relating to assessments of raih'oad property shall cease to be in force. " ^
In Virginia the State Corporation Commission are to assess the real estate, rolling stock, and personal property of railroads, the canal bed, real estate, and boats of canals, and such property shall be taxed for State, county, city, town, and district purposes as authorized by law at such rates of taxation as may be imposed by them respectively on the real estate and personal property of natural citizens, provided that no tax shall be laid upon the net income; but such railway or canal shall also pay an annual State franchise tax equal to one per centum upon its gross receipts, which tax shall be in lieu of all other taxes or charges upon the franchises or shares of stock or property except the annual fee, etc. When the road or canal does not lie wholly within the State, the tax shall be equal to one per cent of the gross transportation receipts earned wathin the State, ascertained by determining the average gross per mile over its
» Va. 170. See O. 1904, p. 652. ^ n. D. 176.
2 Mon. 12, 16; N. D. 179.
PAP.T III] LEGISLATION 337
whole extent and multiplying the result by the number of miles operated in the State, with a reasonable deduction for excess of value for terminal facilities, etc., in other States.^
§ 541. Switches etc. — The Oklahoma Constitution provides that any person or corporation may construct spur tracks to its mine, mill, etc., and compel the railway to maintain the switch.^
Article 55. Banks
§ 550. State Baiiks Forbidden. — The Constitutions of a few States forbid the creation or renewal of corporations with banking or discounting privileges.^ And in several, any act establishing banks must first be approved by a majority of the people, at a general election.* State banks are forbidden in Illinois; and, in other States, the State may not hold stock in any bank.^ See also § 326. Any banking law may be amended or repealed.^ But in others, such corporations may be formed under general laws,^ though such banking law must receive a two-thirds vote of the Legislature.^
So, in a few, no special charter can be granted for banking pur- poses.® (See also § 395 and § 502.)
§ 551. Money and Banknotes. — In several, no corporation or individual can circulate as money anything but the lawful money of the United States.^" So, all banknotes must be redeemable in the lawful money of the United States," or in gold and silver.'- No note can be issued of less than one dollar.'^ Banknotes are allowed, secured by State or United States bonds.'*
§ 552. Specie Payments. — In several, the Legislature can pass no law sanctioning the suspension of specie payments by banks. '^
» Va. 176-179. * Minn.
^ Okla. 9, 33. » Ind. 11, 2; Kan. 13, 1; N. Y.
3 Ore. 11, 1; Wis. 11, 4. 3, 4; S. C.
* lo. 8, 5; 111. 11, 5; Kan. 13, 8; '° Ark. 12, 10; Cal.; Nev. 8, 6;
Mich. 15, 2; Mo. 12, 26; O. 13, 7; Ore.; Wash. 12, 11.
Wis. 11. 5. " Kan. 13, 4.
« Ala. 253; Ind. 11; 111.; Kan. 13, '- Ala. 249.
5; Mo. 12, 25. '^ Kan. 13, 7.
« Kan. 13, 9. '* Ala. 248; S. D. 18, 1.
' Ala. 248; Cal. 12, 5; Minn. 9, »' Ala. 249; Ind. 11, 7; 111. 11, 7;
13; Miss. 181; Okla. 14, 1; S. C. 9, 9; lo. 8, 11; Mich. 15, 6; Minn. 9, 13;
Tex. 1904, p. 249; W. Va. 11, 6; Wy. N. Y. 8, 5. 3,27.
22
338 THE STATE CONSTITUTIONS [bOOK III
§ 553. Security of Nofcs. — (See also § 551.) In many, the Legislature are to provide by law for the rej^istry of all bills or notes issued as money, and shall recjuiie ample .security for their redemption in specie.'
§ 554. Insolvencij of Banks. — The Constitution makes it a crime for any officer or owner of a private or public bank to assent to the reception of deposits or the creation of debts by such bank after he has knowledge that it is in insolvent or failing circumstances, and he is individually responsible for such debts or deposits.' The bill- holders have preference over all other creditors of an insolvent bank.^
§ 555. Stockholders of a bank are, in a few States, individually liable for its debts, over and above their stock, to the amount of the stock held by them."* But in others, they are liable only to the amount of their unpaid stock.^ In one, to double such amount of stock." And in one, they are liable for all debts of the bank con- tracted while they are officers or such stockholders, each for his proportion, according to the amount of stock owned by him.''
§ 556. Interest. — The Constitution of Indiana provides that no bank shall receive, directly or indirectly, a greater rate of interest than is allowed to individuals loaning money.*^ In Oklahoma, the article on banking provides that it shall be six per cent, or by contract, ten per cent.*
§ 557. Limitation of Charter. — By the Constitutions of two, every bank shall be required to cease all banking operations within twenty years from the time of its organization and promptly close its business.'"
§ 558. Trust Companies and individuals are included in the provisions of the banking law.'' No trust company or bank may own or hold stock in another such company except by bona fide pledge, and then must dispose of the same within one year as in § 518.'^
1 Ind. 11, 3; 111. 11, 8; lo. 8, 8; p. 249; Utah 12, 18; Wash. 12, 11.
Kan. 13, 2 ; Mich. 15, 4 ; Minn. 9, 13 ; For a year after they sell their stock.
N. Y. 8, 6; N. D. 145; Pa. 16, 9; S. D. (S. D., Tex.) Stock must be paid up
18, 20. in cash (Tex.). (See also § 512.)
» Ky. 204 ; La. 269 ; Mo. 12, 27 ; « Kan. ; Md. 3, 39.
Wash. 12, 12. " Minn. 9, 13.
3 Ala. 250; To. 8, 10; Ind. 11, 8; ' Mich. 15, 3.
Mich. 15, 5; Minn. 9, 13; Kan. 13, 4; « Ind. 11, 9.
N. Y. 8, 8. ' Okla. 14. 2.
* (See also § 509.) Ind. 11, 6; 111. 11, " Ind. 11, 10; S. D. 18, 2.
6 ; lo. 8, 9 ; Neb. 13, 7 ; N. Y. 8, 7 ; " Ala. 255.
S. C. 9, IS; S. D. 18, 3; Tex. 1904, '= Okla. 9, 41.
PART III] LEGISLATION 339
§ 559. Reports (semi-annual) must be made to the State banking ofEcer.'
Article 56. Insurance Companies
§ 560. Deposit. — The Georgia Constitution provides that all foreign or domestic Hfe-insurance companies doing business in the State shall deposit $100,000 in good securities with the comptroller of the insurance commissioners of this State or the State where they are chartered; and all companies must make semi-annual reports.^
Article 57. Miscellaneous Corporations
§ 570. Religious. — In one State, no religious corporation can be established in the State except such as may be formed under a general law for the purpose of holding title to such real estate as may be allowed them by law.^ In one other, the title to all property of religious corporations vests in trustees, elected by their members.* The Legislature shall not grant a charter of incorporation to any church or religious denomination, but may secure the title to church property to an extent to be limited by law.^
§ 571. Co-operative. — The Legislature shall provide by suitable legislation for the organization of mutual co-operative associations or corporations.®
Article 58. Trusts, Monopoly, etc.
§ 580. General Principles. — (See also §§ 518, 526.) "It shall be the duty of the General Assembly from time to time, as necessitv may require, to enact such laws as may be necessary to prevent all trusts, pools, combinations, or other organizations, from combining to depreciate below its real value any article, or to enhance the cost of any article above its real value." ^
"The General Assembly shall enact laws to prevent all trusts, combinations, contracts, and agreements against the public welfare."^
1 Ala. 254. " Va. 6, 47.
2 Ga. 3, 12, 1 & 3 & 5. « Wy. 10, 10. ' Mo. 2, 8. 7 xy. 198.
* Kan. 12, 3. « S. C. 9, 8; Miss. 198; Va. 165.
340 THE STATE CONSTITUTIONS [f.OdK III
"Full and fair competition in the trades and industries is an inherent and essential right of the people, and should he protected against all monopolies and conspiracies which tend to hinder or destroy." '
The Legislature shall define what is an unlawful combination, monopoly, trust, act, or agreement, in restraint of trade, and enact laws to punish persons engaged in any unlawful combination, mo- nopoly, trust, act, or agreement, in restraint of trade, or composing any such monopoly, trust, or combination. ~
§ 581. Monopolies and Perpetuities are "contrary to the genius of a free State and should not be allowed." ^ And so, in others, of "monopolies and trusts," * or monopolies simply.^
In California, the Constitution declares that the holding of large tracts of land, uncultivated and unimproved, by individuals or corporations, is against the public interest, and should be discouraged by all means not inconsistent with the rights of private property.®
Any combination between individuals, corporations, associations, or either, having for its object or effect the controlling of the price of any product of the soil or any article of manufacture or commerce, or the cost of exchange or transportation, is prohibited and hereby declared unlawful and against public policy,^ and any and all franchises heretofore granted or extended, or that may hereafter be granted or extended in this State, whenever the owner or owners thereof violate this article, shall be deemed annulled and become void.^
All just power possessed by the State is hereby granted to the General Court to enact laws to prevent the operations within the State of all persons and associations, and all trusts and corporations, foreign or domestic, and the officers thereof, who endeavor to raise the price of any article of commerce or to destroy free and fair com- petition in the trades and industries tlirough combination, con- spiracy, monopoly, or any other unfair means; to control and regulate the acts of all such persons, associations, corporations, trusts, and officials doing business within the State; to prevent
» N. H. 2, 82. Decl. Rts. 41; Okla. 2, 32; Tenn. 1,
» Okla. 5, 44. 22; Tex. 1, 26; Wy. 1, 30.
3 Wy. 1, 30. (See also § 518.) « Cal. 17, 2.
* S. D. 17, 20; Wash. 12, 32. ^ N. D. 146; Utah 12, 20. So in
^ Ark. 2, 19 ; Ida. 2, 32 ; N. M. Minnesota, but as to food products
*1851, July 12, § 17; La. 276 (except only (Minn. 1889, 1).
slaughtering businesses which may be * N. D. So the legislature shall
regulated by cities); N. C. 1, 31; Md. pass laws to forfeit, etc. (Utah.)
PART III] LEGISLATION 341
fictitious capitalization; and to authorize civil and criminal pro- ceedings in respect to all the wrongs herein declared against.'
The Legislature shall provide by law for the regulation, prohi- bition, or reasonable restraint of common carriers, partnerships^ associations, trusts, monopolies, and combinations of capital, so as to prevent them or any of them from making scarce articles of neces- sity, trade, or commerce, or from increasing unreasonably the cost thereof to the consumer, or preventing reasonable competition in the calling, trade, or business.-
It shall be unlawful for persons or corporations, or their legal representatives, to combine or conspire together, or to unite or pool their interests for the purpose of forcing up or down the price of any agricultural product or article of necessity, for speculative purposes; and the Legislature shall pass laws to suppress it.^
Article 60. Municipal Corporations *
§ 600. Local Government. — It is in many States provided that the Legislature shall provide by general law for the organization of cities, towns, and municipalities, their powers and duties.^ The same would follow in other States from § 395 and § 502.
And so, in several, that the Legislature shall create a uniform system of county, town, and municipal government;® not dividing cities into more than four classes,^ or three classes,* or six.^
So, in others, the Legislature may confer upon organized town- ships, incorporated cities and villages,'" and upon the board of super- visors of the several counties," such powers of a local, legislative, and administrative character as they deem proper.
"The Legislature shall not delegate to any special commission, private corporation or association any power to make, supervise, or interfere with any municipal improvement, money, property, or
1 N. H. 2, 82. 18, 1, 9; Utah 11, 4; Va. 117; Wash.
^ Ala. 103. 11, 10 ; Wis. 1891, p. 731 ; Wy. 11, 2 & 4.
» La. 190. 8 Cal. 11, 4 ; Fla. 3, 24 ; Ga. 11, 3, 1 ;
* For financial provisions, see Arts. Ida. ; Ky. 156 ; Mo. 9, 7 ; Nev. 4, 25 ;
34, 37. Okla. 18. 1; S. D. ; Utah 11, 5; Wis.
« Ark. 12, 3; Cal. 11, 6; 1895, p. 4, 23; Wy.
450 ; Ida. 12, 1 ; 18, 5 ; 1895, p. 257 ; ' S. D. 10, 1.
lU. 10, 5 ; Kan. 12, 5 ; Ky. 156 ; Mich. » N. Y. 12, 1.
15, 13; Miss. 88;»Mo. 9, 7; Neb. 10, « Ky.
4 and 5 ; N. D. 167, 170 ; N. C. 8, 4 ; '» Kan. 2, 21 ; Mich. 4, 38 ; Wis. 4, 22.
Nev. 8, 8; 0.13,6; Okla. 10, 4; S. D. " Kan.; Mich.; N. Y. 3, 27; Wis.
342 THE STATE CONSTITUTIONS [BOOK III
efTccts, whether held in trust or otherwise, to le\'}' taxes, to select a capitol site, or to perform any municipal functions." '
In a few States the Constitution provides that any county may by vote adopt the township form of governmcnt.-
Counties are usually to be governed by a board of county com- missioners; ^ called, in INIicliigan, the "board of supervisors."
Townships are, in one, governed by a board of trustees, consisting of a clerk and two justices of the peace, elected by the voters thereof.*
In a few, the Constitution provides that the Legislature may charter cities in towns having more than 10,000,^ 12,000," or 20,000' inhabitants.
In two, any city having a population of more than 20,000 * or 100,000 ° may frame a charter for itself (by a special process, sub- ject to certain restrictions). And the States are rapidly adopting constitutional provisions permitting all cities and towns to frame their own charters.'"
§ COl. Municipalities. — The Constitutions of a few States provide that each organized county shall be a body corporate, with such powers and immunities as shall be established by law; " and so each organized township.'"
All suits and proceedings by or against a county or township shall be in the name thereof.'^
* Utah 6, 29 ; Wy. 3, 37 ; Mon. 5, class are contained in a Constitutional 36; S. D. 3, 28. Amendment which provides further
- Cal. ; 111. ; Mo. 9, S ; Neb. 10, 5 ; that it may at any time be amended
N. D. 170; Wash. 11, 4. [or abohshed?] by the voters of the
* Ida. 18, 10 ; Ind. 6, 10 ; 111. 10, respective cities. It also provides for 6; Miss. 170; Mon. 16, 4; Nev. 4, 26; the ov/nership and operation of public N. Y. 3, 26; N. D. 172; Mich. 10, 6; utilities. (Col. 1901, p. 46.)
Pa. 14, 7; Wash. 11, 5. In Minnesota (1895, p. 4), a charter
^ N. C. 11, 5. may be adopted by a board of fifteen
® Mass. C. Amt. 2. freeholders and a four-sevenths vote. « Pa. 15, 1; Tex. 11, 4. In Missouri (1901, p. 263), by thir-
' Minn. 11, 2. teen, with a three-fifths vote.
* Wash. 12, 10. In Oregon, on initiative petition, » Cal. 11, 8; Mo. 9, 16. June 4, 1906, Art. 11, § 2 of the Con-
'° Thus, California has a novel pro- stitution was amended so that any
vision, followed in Oklahoma, whereby municipality is given the exclusive
any city or town may, through a board right to enact and amend its charter,
of fifteen chosen freeholders, frame its subject only to the Constitution and
own charter, which, if approved by the criminal laws.
the Governor as constitutional, is then Town Organization (Mo. 1901, p.
submitted to the electors and adopted 267) is elaborately provided for.
by a majority vote. (Cal. 1889, p. 231; " Ga. 11, 1, 1; Mich. 10, 1; Okla.
1891, p. 533; 1901, p. 950; Okla.) 17, 1 ; S. C. 7, 9.
In Colorado the charters of the '^ i\iici-,_ n, 2 ; N. C. 7, 4.
city of Denver and all cities of the first '^ Ga., Mich.
PART III] LEGISLATION 343
Any county, city, town, or township may make and enforce within its limits all local, police, sanitary, and other regulations not in con- flict with general laws.^
No municipal corporation can be authorized by the Legislature to pass laws inconsistent with the general laws of the State."
§ 602. Officers. — The following persons are, by the Constitu- tion, declared ineligible to hold municipal offices: persons in de- fault as collectors or custodians of money or property of such municipality.^ In cities or counties having more than 200,000 in- habitants, no person can at the same time have a State office and a municipal office, or two municipal offices together in any muni- cipality.* The fees or salaries of municipal officers cannot, in two States, be increased or diminished during their terms.^ They must reside in their respective counties or towns.^ In one, they must have so resided one year.^ They must be qualified electors.^
§ 603. Citizens' Rights. — By the Constitution of Arkansas, any citizen of any county, city, or town may institute suits in behalf of himself and all others interested to resist an illegal exaction.^
§ 604. Specified Systems of City, County, or Town Government exist in the Constitutions of a few States. ^"^
§ 605. Franchises.^^ — The right to collect rates for water fur- nished to a municipality is, in California, declared to be a franchise, not to be exercised except by authority of law and in the manner by
' Cal. 11, 11; Ida. 12, 2; Wash, after the Mayor returns such bill to 11, 11. the House, passing it on to the Gov- - Ala. 89. ernor with his certificate stating ^ 111. 9, 11. whether the city has or has not ac- * Mo. 9, 18. cepted the same. The Legislature may ® Cal. 11, 19; III. provide for the concurrence of the ^ Ore. 6, 8. legislative body in cities of the first ^ Col. 14, 10. class. In both the other classes the ^ Col. Mayor and legislative body must act ^ Ark. 16, 13. concurrently. If a bill relate to more *" Thus, the New York Constitution than one city, it must be sent to all. divides cities into three classes : the If it be not accepted or returned with- first class above 250,000, the second out acceptance, it may, nevertheless, class above 50,000, and the third class again be passed by both branches of below 50,000. All laws relating to the Legislature, and shall then be sub- cities are divided into general and ject only to the action of the Governor, special city laws; general city laws (N. Y. 12,2.)
being those which relate to all the Municipal elections must be held
cities of one or more classes, and special on the Tuesday succeeding the first
city laws those which relate to a single Monday in November in the odd year,
city or to less than all the cities of a but this does not apply to cities of the
class. No special city law can be third class nor to elections of judicial
passed except a certified copy be sent officers. (N. Y. 12, 3.)
to the Mayor, and fifteen days there- " See also §§ 435, 536.
344 THE STATE CONSTITUTIONS [BOOK III
law prescribed.* So, in Colorado the county commissioners, and in Idaho the Legislature, may empower reasonable maximum rates for the use of water, whether furnished by persons or corporations.* And in Texas the right to regulate tolls or freights, for the use of roads, bridges, ferries, landings, or wharves, shall always remain in the Legislature.^ So, in California the Legislature shall pass laws to regulate the charges of telegraph or gas companies, wharfingers, and warehousemen, where there is a public use.*
"The rights of no city or town in and to its water front, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, and other public places, and its gas, water, and electric works shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all the members elected to the council, or to each branch thereof where there are two, and under such other restrictions as may be imposed by law ; and in case of the veto by the mayor of such an ordinance or resolution, it shall require a recorded affirmative vote of three-fourths of all the mem- bers elected to the council, or to each branch thereof where there are two, had in the manner heretofore provided for in tliis article, to pass the same over the veto. No franchise, lease, or right of any kind to use any such public property or any other public property or easement of any description, in a manner not permitted to the gen- eral public, shall be granted for a longer period than thirty years. Before granting any such franchise or privilege for a term of years, except for a trunk railway, the municipality shall first, after due advertisement, receive bids therefor publicly, in such manner as may be provided by law, and shall then act as may be required by law. Such grant, and any contract in pursuance thereof, may pro- vide that upon the termination of the grant the plant as well as the property, if any, of the grantee in the streets, avenues, and other
1 Cal. 14, 2; Ida. 15, 2. So, "No Provided, That nothing herein con- municipal corporation sliall, directly tained shall be construed to prevent or indirectly, lease, sell, alien, or dis- any such municipal corporation from pose of any water-works, water-rights, exchanging water-rights, or sources or sources of water supply now or of water supply, for other water-rights hereafter to be owned or controlled or sources of water supply of equal by it ; but all such water-works, water- value, and to be devoted in like manner rights, and sources of water supply now to the public supply of its inhabitants." owned or hereafter to be acquired by (Utah 11, 6.) any municipal corporation, shall be ^ Col. 16, 8; Ida. 15, 6. preserved, maintained, and operated ^ Tex. 12, .3. The common law; by it for suppljang its inhabitants see Book I. with water at reasonable charges : * Cal. 4, 33.
PART m] LEGISLATION 345
public places shall thereupon, without compensation to the grantee, or upon the payment of a fair valuation therefor, be and become the property of the said city or town ; but the grantee shall be entitled to no payment by reason of the value of the franchise; and any such plant or property acquired by a city or town may be sold or leased, or, if authorized by law, maintained, controlled, and operated by such city or town. Every such grant shall specify the mode of de- termining any valuation therein provided for, and shall make ade- quate provision by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates, and the maintenance of the property in good order throughout the term of the grant. Nothing herein contained shall be construed as pre- venting the General Assembly from prescribing additional restric- tion on the powers of cities and towns in granting franchises or in selling or leasing any of their property, or as repealing any addi- tional restriction now required in relation thereto in any existing municipal charter." ^
No franchises may be granted for more than a fixed period of time, twenty - or thirty ^ years, and there must always be due adver- tisement and a public bidding.*
§ 606. Police Power. — Any county or incorporated city or town may make and enforce, within its limits, all such local, police, sani- tary, and other regulations as are not in conflict with its charter or with the general laws.^
* Va. 125. 6000 population, and except railroads 2 Ky. 164. other than street (Ala.).
* Ala. 228; Va. Of cities, etc., over * Ky.
' Cal. 11, 11; Ida. 12,2.
346 THE STATE CONSTITUTIONS [BOOK III
Tart IV
JUDICIAL SYSTEM
Article G5
§ 650. General Principles. — Nearly all States provide in their Constitutions for the separation into three departments, and all in fact apply the common law, though Louisiana preserves its French Code ^ and New Mexico some Spanish law.
§ 651. Courts. — The system of all the States is substantially the same, except that the older States are more apt to leave the establishment of courts to the Legislature than to prescribe it in the Constitution. Only seven States apparently still have a separate Court of Chancery.^ In many States, however, like Massachusetts, equity jurisdiction, though administered in the Supreme Court or Superior Courts, is kept separate from the common law^; and different sittings are held. In other States ^ common law and chan- cery are declared to be fused. Nearly all the States have a Supreme Court and Superior, Circuit, or District Courts. Some States * interpose a Court of Appeals between the Superior Courts and the Supreme Court, while in New York there is a Court of Appeals above the Supreme Court. The words "Circuit" or "District" are in some States used for the courts correspond- ing to the County Courts in other States, which are below the Superior Court. INIost States have a separate Probate, Orphans' or Surrogate's Court, but in the West probate jurisdiction is com- monly given to the superior courts or the county courts. There are furthermore many city, municipal, police, or corporation courts, frequently, in the large cities, created by special law; while in the country there are justices of the peace or magistrates with, in the West, minor jurisdiction in civil cases not involving the title to real
» See §§ 76, 200. ' Cal., Ct., Ga., Ida., Mich., N. C,
=> Ala. 139; Del. 4, 1; Mich. 6, 1; N. Y., O., S. C. See § 671.
Miss. 152; N. J. 6, 1; Tenn. 6, 1; Vt. ■* Cal., Ga., 111., La.
2, 4. See, however, § 671.
PART IV] JUDICIAL SYSTEM 347
estate, or in criminal cases not amounting to felony, but always with appeal to a higher court.
It might be wished that the States could adopt a more uniform system or at least adopt the same names; in this book the terms "Supreme Court," "Superior Court," "County Court," "Probate Court," "Chancery Court," or "Justices of the Peace" have been used as typical names for the system above described; when there is a Court of Appeals above the Supreme Court that term is used. In New Hampshire alone there are no constitutional pro\isions affecting the establishment of courts, the whole matter being left to the Legislature ; ' while in Kentucky, and presumably others, the Legislature may establish no courts except those provided in the Constitution.^ A few State Constitutions provide that land registra- tion courts may be established by the Legislature.^ In the absence of such a provision it may be questioned whether such courts, which purport to deprive a land owner of his title without notice and hearing, are constitutional in States, or in any case consistent with the Fourteenth Amendment.*
§ 652. Jurisdiction. — The general division of jurisdiction has been indicated above. When there is a Court of Appeals above the Supreme Court, it has only appellate jurisdiction, and in most States the Supreme Court has no original jurisdiction except to issue habeas corpus, mandamus, prohibition, certiorari, procedendo, quo warranto, injunction, supersedeas, and other prerogative or rem- edial writs; and in some States it has jurisdiction of suits against the State.^
In a few States the opinion of the Supreme Court may be required upon important questions of law and upon solemn occasions by either branch of the Legislature or by the governor and council.® This practice of requiring opinions from the Supreme Court was copied from the English Parliament; but it may be questioned whether it is advisable or, when required by statute, even constitu- tional. At all events such opinions are not regarded as a binding precedent, and being given without the argument of counsel and
» N. H. 2, 4. « Col. (Amt.) 6, 3 ; N. H. 2, 73;
2 Ky. 135. Mass. 2, 3, 2; Me. 6, 3; R. I. Amt. 12.
' Fla. 5, 17; S. D. 5, 21; Va. 100. By the Governor, upon questions con-
* Tyler v. Judges, 175 Mass. 71; s. c. cerning the State Constitution: Fla.
179 U. S. 405. 4, 13 ; or concerning important ques-
5 Ida. 5, 10 ; Neb. 6, 2 ; N. C. 4, 9. tions of law : S. D. 5, 13. So, often, by statute ; and see § 75.
348 THE STATE CONSTITUTIONS [BOOK III
the light that comes from a real issue between the litigant parties are entitled to little more respect than if given by the judges in their private capacities; indeed they have given rise to a singular amount of doubtful law, notably that in Massachusetts upon a compulsory weekly payment law, and that in Colorado against the eight-hour law in mines. ^
§ 653. Opinions on Appeal. — When a judgment or decree is reversed or confirmed by the Supreme Court, every point fairly aris- ing upon the record of the case shall be considered and decided, and the reasons therefor shall be concisely stated in writing, signed by the judges concurring, filed in the office of the clerk of the Supreme Court, and preserved with a record of the case. Any judge dis- senting therefrom may give the reasons of his dissent in wTiting over his signature.^
It shall be the duty of the court to prepare a syllabus of the points adjudicated in each case, which shall be concurred in by a majority of the judges thereof, and it shall be prefixed to the published reports of the case.^
§ 654. Judges. — Generally speaking, the States have not followed the example of Massachusetts and of both the English and the United States Constitution, in making all judges independent of popular election and irremovable during good behavior. Four States only still provide that all judges shall be appointed by the governor * or by the governor and council ; ^ but a few other States require this specially of the judges of the Supreme Court,^ though they must be confirmed by the Senate or, in Connecticut, the Legislature. In tliree other States Supreme Court judges are elected by the two Houses of the Legislature in joint conven- tion,' and in the Territories and District of Columbia appointed by the President and confirmed by the Senate. In all the other States the judges of the Supreme Court are elected by the people of the entire State. Yet, in 1798, none of the States chose their judges by popular election, and in most States their tenure was for life (Smith, View of Constitutions, p. 33).
1 Re Eight-Hour Law, 39 Pac. 328; * Del. 4, 3.
Op. Justices, 163 Mass. 589. See James * Mass. 2, 2, 1, 9; Me. 5, 1, 8; N. H.
B. Thayer's Legal Essays, Chapter 2. 2, 45.
2N. D. 101; S. C. 5, 8; Utah 8, 25; « Ct. Amt. 26; Miss. 145; N. J.
W. Va. Amt. 1, 5. See § 666. 7, 2, 1.
3 N. D. 102. These provisions, if ^ R. L 10, 4; S. C. 5, 2; Va. 91;
statutes, would hardly be constitu- Vt. 2, 9; Amt. 10. tional.
PART IV] JUDICIAL SYSTEM 349
Judges of the Superior Courts are in all the States except the four above mentioned elected by the people, though in several they are elected by the Legislature in joint convention/ and in others appointed by the Governor and confirmed b''^ the Senate.^ And so generally of the minor judges.
The terms of office of judges vary from a life tenure as in Massachu- setts, New Hampshire, and Rhode Island, through definite periods ranging from twenty-one years in Pennsylvania to two years in Vermont; but the usual term seems to be six years in the case of judges of the Supreme Court, and four years for judges of the Superior Court, and two years for justices of the peace.
The Constitutions usually provide that a judge of the Supreme Court shall be of a certain age, varying from twenty-five to thirty-six, and that he must be a citizen of the United States or the State. A few State Constitutions provide that he shall be learned in the law ; ^ others that he shall have practised a certain number of years. By the Constitutions of nearly all the States, judges must receive a reg- ular fixed compensation, but no other fees or perquisites; and this may not be increased nor diminished during their term of office. Four States provide for the retirement of judges after they have at- tained the age of seventy years.* Some State Constitutions prescribe that no judge can sit in a case where he is interested or related to the parties.^ In like manner a few State Constitutions provide that no judge shall practise law or act as attorney ; ® and that he shall not sit in appeal upon any decision made by him or by any Court of which he was at the time a member,'' or in which he acted as counsel.^ If a judge absent himself from the State for sixty days, he forfeits his office.* For appeals, see § 78.
' Ga. 6, 3, 2 ; N. J. 7, 2, 2 ; S. C. 5, able his judgment would be reversed
13 ; Va. 96. upon appeal.
2 Fla. 5, 8, 1901, p. 360; Miss. 153; « Ark. 7, 25; Cal. 6, 22; Col. 6, 18; N. J. 7, 2, 1. Ala. 162; Kan. 3, 13; Neb. 6, 14; N. Y.
3 This principle was early estab- 6, 20; N. D. 117; S. D. 5, 31; Va. lished in England. See Historical 105; Wash. 5, 19; W. Va. 8, 16; Wy. Digest, Book II. 5, 25.
* Ct. Amt. 12; Md. 4, 3; N. H. 2, ' Ark.; 111. 6, 11; Md. 4, 15; N. J.
77; N. Y. 6, 12. 6, 2, 5; N. Y. 6, 3; Ore. 7, 6; S. C. 5,
5 Ark. 7, 20; Del. 4, 16; Md. 4, 7; 6; W. Va. 8, 29; Utah 8, 13. Miss. 165; N. D. 100; Tenn. 6, 11; « Ark.; Md. 4, 7; S. C; Tenn. 6,
S. C. 5, 6; Tex. 5, 11; Utah 8, 15. This 11; Tex. 5, 11; Utah 8, 13. constitutional provision seems hardly ^ Cal. 6, 9; Mon. 8, 37. So ninety
necessary, it being the judicial duty of days, but the governor may give him
a judge in any such case to recuse him- leave of absence " in case of extreme
self; if he were not to do so, it is prob- necessity " (Utah 8, 27; Wash. 4, 8).
350 THE STATE CONSTITUTIONS [BOOK HI
Article GG. Remedial Laws
§ 6C0. Laws General. — All laws relating to courts must, by a few of the Constitutions, be general and of uniform operation.* So, in several, the jurisdiction of all courts of the same grade or class, so far as regulated by law.^ So, also, the practice of such courts.^ And the effect of their judgments, decrees, or process, sliall be uniform.*
§ CGI. Arbitration. — The Constitutions of several States provide that the Legislature shall pass laws allowing parties to determine suits by arbitration.^ So, in others, that the Legislature may estab- hsh "courts of conciliation." * So, in one, that they may refer suits to a practising lawyer as referee.'' But such arbitrators, referees, or courts may not render final judgment obligatory on the parties, except upon submission by the parties and their agreement to abide such judgment.^ So there must always be an appeal to the Supreme Court from boards of compulsory arbitration.^
§ 662. Contempts. ^° — The Legislature may regulate the exercise by the courts of the right to punish for contempt ; " in Oklahoma, it shall do so.^" In one it is provided that the Legislature shall have power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience of process.*^ Punishment may not extend to imprisonment in peni- tentiary.^*
"The Legislature shall pass laws defining contempts and regulat- ing the proceedings and punishment in matters of contempt: Pro- vided, That any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or estaint (sic), made or entered by any court
» Col. 6, 28; Ga. 6, 9, 1; Ida. 5, 26; « Ind., N. D., O., Wis., Wy.
111. 6, 29; Mon. 8, 26; Neb. 6, 19; Pa. » Mon. 8, 36; Wy. 5, 28.
5, 26; S. D. 5, 34. See § 395. " The origin of the Chancellor's
^ Col., Ga., 111., Neb., Pa. power to enforce the writ of injunction
^ Col., Ga., 111., Neb., S. D. has been fully discussed in Book I. A
* Col., Ga., 111., Neb., Pa., S. D. bill similar to the Oklahoma statute
® Ala. 84; Col. 18, 3; Ky. 250; La. has for many years been before Con-
176; S. C. 6, 1; Tex. 16, 13. gress.
« Ida. 13, 72; Ind. 7, 19; Mich. 6, " Va. 63.
23; N. D. 120; O. 4, 19; Utah 16, '- Ga. 1, 1,20; La. 177; Okla. 2, 25.
2; Wis. 7, 16; Wy. 5, 1; 19, 1. '^ Ark. 7, 26.
' Fla. 5, 20. " S. C. 1, 19.
PART IV] JUDICIAL SYSTEM 351
or judge of the State shall, before penalty or punishment is im- posed, be entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt until an opportunity to be heard is given." ^
§ 663. Attorneys. — By the Constitution of Indiana, every person of good moral character, being a voter, shall be entitled to admission to practise in the courts." But in most States they must have some education in the law, or pass an examination.
§ 664. Codes. — (See also § 308.) The Constitutions of a few States provide for codes of civil and criminal practice.^ So, in three, for codes of the general laws.* The Constitution of one State pro- vides that no general revision of the laws shall hereafter (1850) be made, and that, when a reprint is necessary, the Legislature shall appoint a suitable person to collect such acts as are in force and arrange them without alteration.^ But in several, the Constitution provides that there shall be a revision and digest every ten years ; ® every twelve years, beginning with 1902.^
§ 665. Speedy Decisions. — The Constitution of California pro- vides that no judge of the Supreme or Superior Courts shall receive his salary until he make affidavit that no cause in his court remains undecided that has been submitted for decision for the period of ninety days.^ So he must decide all cases within ninety days "after submission." ^ So, in one other, such judges must file their decisions within sixty days after the end of the term at which the causes were heard,'" so, thirty days," or six months.'^ And in Georgia, the Supreme Court must dispose of every case at the first or second term after the writ of error is brought.'^ Every point in the record must be decided, and the reason concisely stated in writing."
§ 666. Opinions. — All judges must state the law and reasons of their decisions.'^ Concurring and dissenting opinions must not be published ; '^ in other States, they may be.'^ Reports are provided
» Okla. 2, 25. " S. C. 4, 17.
2 Ind. 7, 21. " Ida. 5, 17.
3 Ind. 7, 20; O. 14, 2; S. C. 6, 5; ''- Okla. 7, 5. Wis. 7, 22. '^ Ga. 6, 2, 6.
* Ala. 85; Ind.; S. C. " Okla. 7, 5; Wash. 4, 2. See also
^ Mich. 18, 15. § 653. Such provisions have been held ^ Mo. 4, 41 (1875) ; S. C. ; Tex. 3, 43 unconstitutional when made by statute.
(1879). 1^ Cal. Nov. 8, 1904; La. 91; N. D.
■' Ala. 85. " La. 92. See also § 653.
« Cal. 6, 24. " N. D., Utah. » Wash. 4, 20.
352 THE STATE CONSTITUTIONS [rOOK III
for by the Constitution.' Judges must prepare a "syllabus."- A majority or quorum is necessary to any decision.' Upon a constitu- tional question or one involving State or Federal rights, the Supreme Court may call for the advice of the judges of the Circuit Court.*
Article C7. Procedure*
§ 670. Forms of Action. — In several States, the Constitution provides that there shall be but one form of civil action."
§ 671. Equity. — (See also § 651.) In several States, the Constitution provides that the Legislature shall abolish tlie distinc- tion betv^een law and equity proceedings.' So, in two others, law and equity may be administered in the same action.^ And in Georgia, the Legislature may confer (and has conferred) upon the common-law courts all the powers of courts of equity.^ But in Iowa, the Constitution provides that the law and equity jurisdiction (though often vested in the same courts) shall be kept distinct.'" In two States, the testimony in equity is to be taken in the same manner as at law."
§ 672. Feigned Issues are abolished by two State Constitutions.'^
§ 673. Juries: Qualifications. — (For religious qualifications, see § 45.) The Constitution of Tennessee provides that no politi- cal test can be required for jurors;'^ in New Hampshire, that great care should be taken that none but qualified persons should serve on juries, and that they should be fully compensated; '' so, in Ver- mont, that great care should be taken to prevent corruption or partiality in the choice of juries.'^
§ 674. Disqualifications. — By the Constitution of one State, no person can serve on a jury who is not a qualified elector of the State, or cannot read and write. '^ And so, in others, the Legislature are
' La.; Mon. 8, 32; N. Y. 6, 21; ' Ida. 5, 1; Mich. 6, 5; N. C. 4, 1;
S. D. 5, 12; Utah 8, 23; Wash. 4, 21. O. 14, 2; S. C. 6, 3.
- N. D. 102; Utah 8, 26. See p. 233, « Mon. 8, 28; Nev. 6, 14.
n. 14. » Ga. 6, 4, 2.
3 Cal. 6, 2; Ida. 5, 3; Mon. 8, 5. »" lo. 5, 6.
N. D.; R. I. Amt. 12; Okla. 7, 3; S. D. " N. Y. 6, 3; Wis. 7, 19.
7, 5; Utah; Wy. 5, 5; Wash. 4, 2. '^ jja. 5, 1; N. C. 4, 1.
* S. C. 5, 12. " Tenn. 1, 6.
= See also §§ 137, 535, and Arts. 12, " N. H. 1, 21.
13, 14, 15, generally. '* y^ o, 31.
« Ida. 5, 1; Mon. 8, 28; N. C. 4, 1; '^ ^ligg. 264. Nev. 6, 14; O. 14, 2; Utah 8, 19.
PART IV] JUDICIAL SYSTEM 353
to pass laws excluding persons from serving on juries in the same cases in which they are excluded from voting.'
In detail, all persons convicted of bribery are excluded from serving on juries." All persons convicted of treason; ^ of perjury; * of forgery ; ^ of larceny ; * generally, all persons convicted of in- famous crimes; ^ of "other high crimes "; ^ all persons "under inter- diction." ' Unless they are restored to civil rights.^*'
§ 675. Charging the Jury. — Several State Constitutions pro- vide that the judge shall not charge juries as to matter of fact," nor comment thereon,'- but they may state the testimony and declare the law.'^ So, they shall declare the law.'* So, the judges of the Supreme Courts shall instruct the jury in the law.'^
§ 676. Amendments are, by the Constitution of Delaware, to be allowed by the courts on such terms as they deem reasonable, in civil cases.'*
§ 677. Witnesses : Parties. — The Constitutions of two States provide that parties may be witnesses.'^ And in one, that parties may be compelled to testify by the opposing party.'^
Criminating evidence may be required in bribery cases, the witness being immune.'*
§ 678. Parties Deceased. — But in one State, in actions by executors, administrators, and guardians in which judgment may be rendered either for or against them, neither party shall be allowed to testify against the other as to any transactions with, or statements to, the intestate, testator, or ward, unless called to testify thereto by the opposite party or required by the Court.'"
§ 679. Depositions. — The Constitution of Delaware provides that evidence of witnesses aged or infirm, or about to leave the State, may be taken on interrogatories; and, that the courts shall have power to obtain evidence from without the State."'
' Cal. 20, 11; Nev. 4, 27; Tex. '' Wash.
16, 2. » Cal., Nev., S. C, Tenn.
=* La. 159; Nev.; Tex. '* Ark. Wash.
^ La. >5 R. I. 10, 3.
* La., Nev., Tex. '« Del. 4, 24. A provision of this
* La., Nev., Tex. sort appears first in the Mass. Body of ' Nev. Liberties, 1641.
' La. '7 Ark. Sched. 2; lo. 1,4.
« Nev., Tex. " lo.
» La. >» La. 184.
"> Nev. 20 Ark. Sched. 2.
" Ark. 7, 23; Cal. 6, 19; Del. 4, 22; ^i Del. 4, 24. See also § 124. La. 179; Nev. 6, 12; S. C. 5, 26; Tenn. 6, 9; Wash. 4, 16. See also § 132.
28
354 TUK STATE CONSTITUTIONS [ROOK III
§ CSO. Limitations. — The I^egislature has no power to revive any right or remody wliich may have become Ijarred hy lapse of time or any statute.' In Wisconsin, no appropriation can be made for any cUiim against the State, except judgments, unless filed within six years after the claim accrued.'-' In Tennessee, the time between May G, 1861, and Jan. 1, 1SC7, shall not be com- puted in any case affected by the Statutes of Limitation, nor shall any writ of error be affected by such lap.se of time.-' So, in Florida, as to civil .suits, the time between Jan. 10, ISGl, and Oct. 25, 18C5.'' There is no prescription against the State, in civil matters.^'
§ 681. Payment into Court may, by the Constitution of Delaware, be made by the defendant at any time pending an action for debt or damages; and the plaintiff not accepting it shall recover no costs, if he recover no greater sum on the final decision."
§ 682. Abatement. — The Constitution of Delaware provides that no action of which the cause survives shall abate by the death of a party.'
« Miss. 97. See also § 395. » La. 193; Miss. 104.
=» Wis. Amt. 8, 2. « Del. 4, 25.
» Tenn. Sched. 4. ^ Del. 4, 26.
* Fla. 15, 3.
PART V] CONSTITUTIONAL AMENDMENTS ' 355
Pakt V
CONSTITUTIONAL AMENDMENTS
Article 99. Process of Amendment
§ 990. How Proposed in the Legislature. — Amendments to the Constitution may, in most States, be proposed in either house.^ But in one, they can only be proposed in the senate, and only on every tenth year, beginning with 1880.^ In one other, they can only be proposed in the house.^ They must be ratified by a majority of the members present in each house,* or elected ; ^ by three fifths of the elected members of each house ; ® by two thirds of a quorum of each house ; ^ by two thirds of the elected members of each house ; ^ by a majority of the elected members of each house of two successive Legislatures ; '^ by a majority of the senators and two thirds of the representatives, present and voting thereon, of two successive Legislatures; ^'^ by a majority of the elected members of each house and two thirds of the members of each house of the next succeeding Legislature ; " by three fifths of the first Legislature and two thirds of the next, as in Tennessee ; ^^ by two thirds of the elected members of the first Legislature, and also of the next ; ^^ by two thirds of the elected senators and a majority of the elected members of the house, in the Legislature proposing them, and by a majority of the elected
» Ala. 284; Ark. 19, 22; Cal. 18, 1; » Ark.; Mo. 15, 1-2; Okla. Col. 19, 2; Del. 16, 1; Fla. 17, 1; Ga. « Ala.; Fla.; Ky.; Md. 14, 1; Neb.
13, 1, 1; Ida. 20, 2; 111. 14, 2; Ind. 15, 1; O.; S. D.
16, 1; lo. 10, 1; Kan. 14, 1; Ky. 256; ' Me. 10, 2; Miss. 273.
La. 321; Mass. Amt. 9; Md. 14, 1; » Cal. 18, 1; Col.; Ga.; Ida.; 111.;
Mich. 20, 1; Minn. 1897, 185; Mon. Kan.; La.; Mich.; Mon.; Nev.;
19, 9; N. D. 202; Nev. 16, 1; N. J. Amt. 1887, p. 170; S. C; Tex. 17, 1;
Art. 9; N. Y. 14, 1; O. 16, 1; Okla. Utah; W. Va.; Wash.; Wy.
24, 1; Ore. 17, 1; Pa. 18, 1; S. C. 16, » Ind.; lo.; N. D.; Ore. 17, 1;
1; S. D. 23, 1; Tenn. 11, 3; Utah N. J.; N. Y.; R. I. 13, 1; Va.; Wis.
23, 1; Va. 196; Wash. 23, 1; W. Va. '° Mass. Amt. 9.
14, 2; Wis. 12, 1; Wy. 20, 1. " Tenn. 11, 3.
2 Vt. Amt. 25, 1. " N. C. 13, 2.
3 Ct. Art. 11. >3 Del., Pa. * Minn. 14, 1.
356 THE STATE CONSTITUTIONS [BOOK III
members of each house of tlie next Legishiturc.' After being pioposed as above, they are to be published and must be ratified by two thirds of each house at tlie next Legishiture.^ In New Ibimpshire tliere is no provision for proposing single amendments.
§ 991. Ratification hij ike People. — In all the States except Delaware the proposed amendment, having passed the Legislature according to § 690, must then be ratified by a majority vote of the people at the next election,^ or by a three-fifths vote at such election,* or a two-thirds vote.^
§ 992. Ratificatio7i by the Legislature. — And in one State, the proposed amendment, having passed both the Legislature and the people according to §§ 990, 991, must again be ratified by a majority of the elected members of each house of the next Legislature after the election by the people ratifying it.® But quaere whether this is valid.
§ 993. Restrictions. — In two, the Legislature cannot propose amendments to more than one article in any one session ; ^ nor to the same article oftener than once in four years.^ Not more than two ^ or three '" can be voted upon at the same time. The same amendment cannot be submitted to the people oftener than once in five years ; " once in six years. ^^ Not more than three can be so sub- mitted at the same election.*^ If two or more are submitted at the same time, the electors must be permitted to vote on each sepa- rately.^* While an amendment approved by one Legislature is awaiting the action of the next, no other can be proposed. ^^ No amendment shall relate to more than one subject.'®
§ 994. General Revision. — There is, in most States, provision
for a general revision of the Constitution by a convention called for
that purpose. Thus, whenever two 'thirds (or in Alabama, Iowa,
Kentucky, Michigan, Missouri, New Hampshire, New York,
Tennessee, Virginia, Wisconsin, West Virginia, a majority; and in
Nebraska, three fifths) of the elected members of each house of the
' Vt. » N. J. ; Pa.
2 Ct. '2 Tenn.
^ For citations, see § 990. " Ark., Kan., Mon.
* R. I. Art. 13. '« Fla. 17, 1; Ga. 13, 1, 1; Ida, 20, 2
» N. H. 2, 98. Ind. 16, 2; lo. 10, 2; Kan.; Ky.; La.
« S. C. 16, 2. Md. ; Minn. ; Mon. ; Neb. ; N. J. ; N. D.
' Col, 111., not more than three, O.; Okla.; Pa.; S. C. 16, 2; S. D.
Mon. Utah; Wash.; W. Va.; Wis.; Wy.
« 111. '« Ind.
» Ky. " Ky. » Mon.
PART V] CONSTITUTIONAL AMENDMENTS 357
Legislature vote that such convention is necessary, the question is referred to the people ; if they vote at the next election '■ for the con- vention, the Legislature is to provide for holding the same.^ In Oklahoma the Constitution may be revised at any time if the Act calling the convention be approved by the people, on a referendum or upon an initiative petition therefor.^ And in some, the question of holding such a convention is regularly submitted to the people at stated times, at a general election; as, every ten years, beginning with 1870; ^ every twenty years, beginning with 1916; ^ with 1871 ; ' with 1887;' every sixteen years, beginning with 1866;^ every seven years. ^ The delegates to such constitutional convention are, in all these States, to be elected by the people. They must be double the number of the Legislature,'" or the same as the House," or thrice the Senate, and fifteen at large.'- Such provisions are interesting, but frequently not effective. One generation can hardly bind the next, even to vote upon a new Constitution ; if the Legislature fail to set the machinery in motion, nothing can be done.
§ 995. Ratificatiofi. — The Constitution, as so amended by the convention, must then be ratified by the people at a general election ;'^ at a special election called for the purpose." In others, apparently, it goes into effect at once.
§ 996. Amendments to the United States Constitution may not, by the Constitutions of Florida and Tennessee, be ratified by any convention or assembly (Legislature) of the State which was not elected after such amendment was submitted.'^
* The popular vote for the conven- * lo.
tion must equal one-fourth of that * N. Y.
thrown at the last election (Ky.). * O. 16, 3.
- Ala. 286; Cal. 18, 2; Col. 19, 1; ' Md. 14, 2.
Del. 16, 2; Fla. 17, 2; Ga. 13, 1, 2; * Mich.
Ida. 20, 3; 111. 14, 1; lo. 10, 3; Kan. » N. H. 2, 98, 99 (beginning 1903).
14, 2; Ky. 258 (by a majority of two *" Ida., Wy.
successive houses); Me. 4, 3, 15; Mich. " Mon., Utah., Wash.
20, 2; Minn. 14, 2; Mo. 15, 3; Mon. " n Y.
19, 8; N. C. 13, 1; Neb. 15, 2; Nev. »* Md.; Neb.; O.; W. Va. 14, 1.
16,2; N. H. 2, 98; N. Y. 15, 2; 0.16, '^Cal.; Col.; Ida. 20, 4; 111.; Mo.;
2; S. C. 16, 3; S. D. 23, 2; Tenn.; Mon.; N. Y.; Utah 23, 3; Wash.
Utah 23, 2; Va. 197; Wash. 23, 2; 23, 3; Wy. 20, 4.
W. Va. 14, 1; Wis. 12, 2; Wy. 20, 3. ** Fla. 16, 19; Tenn. 2, 32.
» Okla. 23, 2 & 3.
INDEX
ABATEMENT, of Actions, III, § 6S2. ACCUSED PERSONS,
not to give criminating evidence. III, § 136.
of crime, to hear cause, etc., pp. 18, 19, 21, 77; III, §§ 120, 123.
right to counsel, p. 76; III, § 134.
witnesses, evidence, p. 76; III, § 135. ACT OF SETTLEMENT, ANNE, pp. 3, 46, oO, 76-89; III, § 102 n. 10. ACTIONS,
equity and common law mixed, § 671.
for death, survive, III, § 535.
one form of. III, § 670. ACTON BURNEL, Statute of, p. 93.
"ADMINISTRATIVE LAW," does not exist with us, pp. l"l, 16. ADMINISTRATORS AND EXECUTORS, may not invest in corporate se- curities, p. 70; III, §§ 424, 509. ADMIRALTY JURISDICTION, early jealousy of, pp. 14, 98. ADOPTING CHILDREN, special laws forbidden. III, § 395. AFFIRMATIONS, III, § 47. AGE OF CONSENT, in women, III, § 431.
AGRICULTURAL CORPORATIONS (See Corporations), III, § 502. AGRICULTURE,
regulating, special laws forbidden. III, § 395.
State Commissioner of. III, § 202.
State may not engage in. III, § 6. ALFRED, LAWS OF, p. 13. ALIENS {See Mongolians),
general provisions against. III, § 22.
rights of, III, § 102.
voting rights, § 240 ; labor of, § 464. ALLEGIANCE, to U. S., Ill, § 191. ALLODIAL TENURE {See Land). AMENDMENTS,
in actions, to be allowed. III, § 676.
of laws, etc. {see Legislation, Constitutions). AMENDMENTS OF CONSTITUTIONS,
frequent, III, § 1 {see Preface).
how proposed, § 990; ratified by people, §§ 991, 995; by legislature, §§ 990, 992; restrictions and form of, § 773; new Constitutions by convention, § 994. APEXING, law of, new, p. 71. APOLOGY, form of, p. 103.
360 INDEX
APPEAL (See Wiut of Error),
constitutional rif^ht to, in all causes, III, § 78, 137, 139, 145.
to governinent in criminal cases, ill, § 137 n. APPRENTICES, allowed. 111, § 32.
APPROPRIATION, Constitutional doctrine of, of moneys, III, § 320, n. APPROPRIATION BILLS, form and passage of, III, §§ 301, 311, 312, 313.
APPROPRIATIONS,
purposes, etc.. Ill, §§ 311, 312.
required before money paid from treasury, § 320; not lonn;cr than two years, § 320; virements forbidden, p. 37; III, §§ 31G, 320; not in excess of taxes, ib.; private, § 322; charitable and sectarian, § 323; internal improvements, §§ 324, 326; immigration forbidden, § 325; war, §S 320, 325; loans of credit, § 326; for buying stoclc or bonds, ib.; disburse- ment of State funds, §§ 328, 680. AQUEDUCTS, land may be taken for, III, § 92. ARBITRARY POWER, forbidden to government, p. 51; III, § 182. ARBITRATION (See Labor),
compulsory on mining or public service corporations, III, § 508.
provision for, in labor cases. III, §§ 565, 661. ARMIES (See Standing Armies), in America, pp. 42, 43, 67, 83. ARMS, right to bear (See Martial Law, Standing Army), pp. 42, 43, 82, 83;
III, § 62. ARMY AND NAVY, rights of, to vote, etc.. Ill, § 243. ARREST, cause of, to be told (see Bail, Indictment), pp. 18, 19. ARREST AND SEARCH (See Search Warrants), HI, § 71. ARREST, FREEDOM OF,
electors. III, § 237; legislators, p. 49, § 273. ARTISANS' LIENS, no exemption from. III, § 81. ASSEMBLY, right of, pp. 43, 49, 86, 102; III, § 64. ASSESSMENT (See Taxation).
ASSISTANCE, writs of (See Search Warrants), III, § 71 n. ASSIZES, under Magna Carta, p. 17. ATHEISTS, disqualified for office. III, § 45. ATTACHMENTS, property exempt from, III, § 81. ATTAINDER, bills of, forbidden, pp. 23, 50, 79, 101; III, §§ 138, 142. ATTAINT (See Corruption of Blood).
of juries, for finding verdict against evidence. III, § 131. ATTORNEYS AT LAW, qualifications for, p. 98; III, § 663. ATTORNEY-GENERAL, in States, III, § 202. AUDITOR, in State governments, III, § 202.
B
BAIL, right to, not excessive, etc., pp. 20, 22, 77, 78; III, § 122.
BAILABLE OFFENCES, III, § 121.
BAKERS, statute of, p. 93.
BALLOT, votes by (see Elections), p. 49; III, § 231.
BANISHMENT (See Transportation), forbidden, pp. 18, 22, 78.
BANKRUPTCY,
Federal power over, p. 62.
in England, laws against, p. 101.
INDEX 361
BANKS,
creating, special laws forbidden. III, § 39.5.
must have office in State, § 507; creation of, § ooO; banknotes and money, § 551-553; insolvency of, § 554; liability of stockholders, § 555; interest allowed to, § 556; duration of charters; § 557; reports, § 559; State examiner of, § 202. State {see Corporations), p. 71; III, §§ 502, 550-559. BARRATRY, made criminal, III, § 155. BETTERMENTS,
not to be counted, in land takings. III, § 95. taxation for, allowed, pp. 37; III, § 343. BETTING ON ELECTIONS, cause of disfranchisement, III, § 255. BIBLE, prohibited, to women, etc., pp. 101, 102. BIGAMY (See Polygamy), p. 92.
BILL OF RIGHTS (See also Declaration of Rights), pp. 3, 21, 22, 37, 75-89. of the States, pp. 69-70; III, §§ 3-165. Civil, III, §§ 10-103. construction of, III, § 5. criminal, III, §§ 120-165. irrepealable, III, § 4. BILLETING SOLDIERS, forbidden, p. 82; III, Art. 29. BILLS (for laws, see Legislation). BILLS OF ATTAINDER, etc. (See Attainder, etc.). BLACKLISTS (See Labor), prohibited. III, § 458. BOARDS (See Commissions). BODY OF LIBERTIES (See Massachusetts). BONDING OF CITIES, special laws forbidden. III, § 395. BOYCOTTS, laws against, p. 27; III, § 459.
BRIBERY, a felony (see Office, Suffrage), III, §§ 152, 254, 674, 677. BRIDGES,
special laws forbidden, III, § 395. tolls may be regulated. III, § 605. BUSINESS CORPORATIONS (See Corporations). BY-LAWS, unlawful, of guilds, p. 100.
CABINET, English, not in Constitution, p. 9. CADE, JACK, rebellion of, pp. 11, 19, 27, 99. CANAL BOARD, in States, III, § 202. CANAL COMPANIES,
are carriers, § 521; rates may be fixed, § 522; connections, § 526.
must have office in State, III, § 507. CANON LAW (See Roman Law),
in England, pp. 6, 11, 12, 90. CAPITAL OFFENCES,
general provisions concerning, pp. 76, 79.
not bailable. III, § 121. CARDINAL RIGHTS (See Individual Rights), pp. 10, 67, 75. CARRIERS (See Railroads). CARTER, JAMES C, quoted, pp. 3, 4, 72. CATTLE, provisions for health of. III, §§ 437, 440.
362 INDEX
CEMETERIES, special laws forbidden, III, § 395.
CENTRALIZATION {See States, Rights of; Federal and State Power).
CHALLENGES, of voters {see Suffrage).
CHANCERY,
contempts of injunctions, p. 72; III, § GG2.
courts, separate in a few States, III, §§ Gol, G71.
jurisdiction, history of, pp. 11, 12, 14, 24-29, 72, 94-9G; III, § 247. CHARGES (See Rates, Trial by Jury). CHARITABLE INSTITUTIONS, require special vote of Legislature, III, § 59.
corporations (see Corporations), election of, III, § 502. CHARITABLE USES (<See Mortmain). CHARITIES, State Boards or Commissioners, III, § 202. CHARTERS {See Magna Carta, etc.).
municipal, may be framed by inhabitants, III, § 601. CPIARTERS OF LIBERTIES, Hen. I, Hen. II, pp. 14, 90. CHILD LABOR (See Labor), provisions against. III, § 455. CHILDREN,
custody of, in husband or wife, III, § 27.
legitimating any, special laws forbidden, III, § 393. CHINESE (See Mongolians).
CHRISTIANITY {See Religious Rights) part of the common law, p. 36. CHURCH,
compulsory support of, forbidden, III, § 42. allowed, III, § 44.
established, none, p. 101; III, §§ 43, 44.
not to be chartered, III, § 43. CHURCH LAW, Courts {see Canon Law). CITIES AND TOWNS (See Municipal Corporations).
general law for charters, p. 72; III, § 600.
taxation of, §§ 340-346; debts of, §§ 370-374 (see Debts). CITIZENS,
may unite to resist illegal tax, etc., Ill, § 603.
who are, p. 76; III, § 100. CIVIL LAW (See Roman Law). CIVIL RIGHTS (See Cardinal Rights).
common to all, in States, III, §§ 20, 21, 183.
of laborers and employees, III, § 506. CIVIL WAR,
acts done during, no liability. III, § 157.
debts incurred in. States, etc., not to pay, III, §§ 325, 364. CLARENDON, Constitutions of, pp. 12, 90.
CLASS LEGISLATION {See Civil Rights, Equality, Privilege), pp. 41, 72. CLOTHS, Statute of, p. 95. CODES (See Legislation). CODES of the law, provided for. III, § 664. COKE, disgraced, p. 104. COLOR (See Race Distinctions). COMBINATIONS (See Corporations, Trusts). COMMERCE (See Trade), rights of, pp. 31, 32. COMMISSIONS (See Corporation, Railroad).
commissioners, objected to in England, pp. 15, 45, 80.
in municipal government, forbidden. III, § 600.
in U. S., p. 53.
INDEX 363
COMMONS, House of, power to legislate (see Parliament), p. 94. COMMON CARRIERS (See Rates, Railroads),
rates of, fixed by law in 1691, pp. 6, 38.
who are. III, § 521. COMMON LAW (See Law), always required, pp. 11, 15, 26, 79, 98; III, § 70.
right to, preserved, pp. 72, 80; III, § 76.
COMMON PLEAS, to be held locally (see Courts), p. 17. COMMON SCHOOLS (See Schools). COMMUNISM, may be unconstitutional, p. 61. COMMUTATIONS OF SENTENCE (See Pardons).
COMPETITION, right to (see Trusts, Railroads, etc.), Ill, § 580.
provisions for among corporations III, §§ 510, 518. COMPTROLLER, in States, III, § 202.
CONCEALED WEAPONS, may be forbidden (see Arms), III, § 62. CONFIRMATION OF CHARTERS, Edw. I, pp. 3, 37, 93.
excepted out of general powers of government. III, § 4. CONFISCATION (See Forfeiture). CONGRESS, sessions of, p. 44.
CONSCIENCE, rights of (see Religion), III, §§ 4, 40. CONSOLIDATION (See Corporations, Railroads, Trusts). CONSPIRACIES (See Boycotts, Trusts), eariy law, pp. 93-95. CONSTITUTION, American (See Federal), pp. 75-89; III, § 3.
English, pp. 1, 8-9.
Federal, continuation of English, 6-8,51; III, § 3; liistory of adoption, pp. 68, 69.
how guarded, p. 92.
supreme, § 190; "unwritten," p. 6. CONSTITUTIONAL GOVERNMENT, defined, III, § 182 n.
CONSTITUTIONS, State, pp. 68-72 ; III.
division of, III, § 1.
extend previous laws. III, § 77.
how amended, pp. 57, 59; III, Art. 99.
mandatory or self-executing, III, §§ 2.
no veto of amendments to, § 304.
territories becoming States, irrevocable provisions. III, § 51. CONTEMPTS,
punished by legislatures, p. 49.
regulated by law, etc., pp. 20, 26, 28; III, §§ 124, 662. CONTRACT,
freedom of, discussed, pp. 33-35.
obligation of, clause discussed, p. 62; in States, III, § 393. "CONTRACTING OUT," forbidden, as to employees, etc. (see Labor), III,
§§ 534, 535. CONTRACTS, obligation of, etc., pp. 62, 79. CONVEYANCES,
public, open to all. III, § 21.
to be recorded, III, §§ 406, 420.
CONVICTS (See Prison Labor), letting by contract, work on roads, etc.,
Ill, § 140. COOLIES (See Slavery).
CO-OPERATIVE ASSOCIATIONS, III, § 571. CORN LAWS, early, p. 99.
364 INDEX
CORPORATION COMMISSION {See Corporations, State, etc.).
created, III, §§ 202, 525, 532.
powers of, §§ 502, 512. CORPORATIONS {See Banks, Railroads, Tklkgraph Companies, Munici- pal Corporations),
alien, when majority of stock owned, III, § 102.
books and papers, no immunity to produce, III, § 136.
bribery by, forfeits charter. III, § 222.
changing name of, special laws forbidden. III, § 395.
creating, special laws forbidden. III, § 395.
earliest in England, pp. 103, 104.
employees of, may not hold office. III, § 222.
franchise, may be taken in eminent domain. III, § 97.
general law of, pp. 38, 39, 103. CORPORATIONS, State Constitutional Provisions, III, §§ 500-580.
bonds and stock of, trustees may not invest in, § 509.
bonds, issue of, § 513.
charters {see below. Creation Franchises), §§ 502, 504.
consolidation of, combinations, etc., § 518.
control of, by State, § 501.
creating, special laws forbidden, III, § 395.
creation of, §§ 502, 503.
definition of, § 500; employees, rights of, § 506; existing corporations, § 504.
directors, liability of, § 511.
dissolution of, §§ 503, 515.
exclusive privileges, § 501.
fares {see Rates). Foreign corp>orations, §§ 501 n., 505, 507, 508.
forfeiture of charter, etc., § 501.
franchises, subject to control, may be forfeited, etc., §§ 501-503. may not be aHenated, § 517.
freights {see Rates), general principles, regulation of, p. 71; § 501.
land, holdings of by, § 516; land companies, forbidden, § 403 n.
license, of foreign companies, § 501 n.
mining companies, must arbitrate, § 508; taxation of, § 330.
miscellaneous companies, §§ 570, 571.
objects of, § 502; office in State, etc., § 507.
pohce power, supreme, §§ 501, 506; public service, §§ 505, 508.
rates {see Railroads, etc.), § 503; fixed by State, § 522.
repeal of charters, etc., § 503; renewal of, § 504.
retrospective laws concerning, forbidden, § 502.
stock, provisions regulating issue of, § 512. increase of, or decrease, § 513. preferred, § 514.
stockholders, liability of, p. 70; § 509.
suits by and against, § 508.
taxation {see Taxation), §§ 519, 330 n.
tolls {see Rates).
ultra vires, §§ 506, 516.
votes, voting, at elections, § 510.
vi^harfage {see Rates). CORRUPT LEGISLATION, offence of {see Lobbying), III, § 154. CORRUPTION IN OFFICE (See Corrupt Legislation, Bribery), III, § 218. CORRUPTION OF BLOOD, none in United States, p. 79; III, § 142. COSTS (See Fees and Costs, Fines). COSTS, not to be excessive, III, § 140.
INDEX 365
COUNCIL, ENGLISH, powers of, etc., p. 11. COUNCIL, in States, III, §§ 202, 281; of the Realm, pp. 37, 48. COUNSEL, right to (see Accused Persons), p. 23; III, § 134. COUNTIES (See Municipal Corporations),
government of, III, §§ GOO, GOl.
special laws forbidden, III, § 395.
taxation of, §§ 340-34G, debts of, §§ 370-375 (see Debts). COUNTY COURTS, in England, p. 48. COUNTY SEATS, special laws forbidden, III, § 395.
COURTS,
general system of, in States, III, § 651.
laws relating to must be general, III, § 6G0.
local, right to trial in (see Venue), pp. 12, 13, 17, 76, 78, 81; III, § 130 n.
to be open, III, § 70.
CREDIT, loans of, by States, cities, etc. (see State. Debts, Tax, etc.).
CRIMES, (See Accused Persons, Bribery, Perjury, etc.). injunctions against, p. 27.
CRIMINAL CASES,
pleas of the Crown, in King's Courts, III, § 130 n. special laws forbidden, III, § 395.
CRIMINATING EVIDENCE (See Accused Persons), pp. 45, 46, 78; III, §§ 136, 677.
CRUEL AND UNUSUAL PUNISHMENTS FORBIDDEN (See Punish- ments), III, § 140.
CUMULATIVE VOTING, allowed, in corporations. III, § 510.
CUSTOM, CUSTOMS (See Liberty, Labor, Law, right to, Common Law).
D
DAMAGES (See Labor), for death, III, § 535. DAMS, special laws forbidden. III, § 395. DAWES ACT, of United States, p. 19.
DEBTORS, property of, exempt (see Exemption), III, §§ 81, 88. DEBTS (for State Debts, see State; see also Debtors, Garnishment, Im- prisonment FOR Debt, Stay Laws, Tax, Taxation, etc.). collection of, special laws forbidden, III, §§ 315, 395. of counties, cities, towns, school districts, or other municipal corporations,
III, §§ 344, 345. of Bills for, two-thirds vote, § 315; loans of credit, etc., §§ 316, 324, 326, 345; exceptions, § 346; purposes of debt, § 370; amount limited, § 371; referendum on, § 372; payment of, sinking funds, etc., § 373; liability of private property for, § 374; bonds when valid, § 375.
DECISIONS OF JUDGES, time required for. III, § 666.
DECLARATION OF INDEPENDENCE, pp. 15, 16, 17, 21, 22, 32, 38, 42, 47,
50, 76-89; III. §§ 3, 51. DECLARATION OF RIGHTS (See also Bill of Rights), of the States, III, §§ 1-165.
DE DON IS, statute, p. 93.
DEEDS, invalid, special laws forbidden, III, § 395.
366 INDEX
DEFAMATION (See Libel).
DEFECTIVE MACHINERY (See Labor, Damages), knowledge of, etc., Ill,
§ 535. DEODANDS, abolished, III, § 144.
DE ODIO ET ATIA, writ of, pp. 19, 77, 92; III, § 125. DEPOSITION, witnesses may give, and be set at large. III, §§ 124, G79. DESCENT, special laws forbitlden, III, § 395. DIRECTORS (See Corporations). DISCRIMINATION (See Railroads), general constitutional provisions against,
III, § 435. DISFRANCHISEMENT (See Suffrage). DISPENSARY SYSTEM (See Liquor). DITCHES, corporations for (see Corporations), III, § 502.
special laws forbidden. III, § 395. DIVORCE,
Legislature may not grant, etc., p. 71; III, § 430.
special laws forbidden, III, § 395. DOMESDAY BOOK, laws of, p. 13. DRAINS, general system provided for, III, § 418. DRAINAGE, special laws forbidden, III, § 395.
works for a public use, land taken for, III, §§ 91, 92, 415.
corporations for (see Corporations), III, § 502. DRAWBACKS, forbidden (see Railroads). DROIT D'AUBAINE, abolished, p. 93.
DUELLING, forbidden (see Office, Suffrage); III, §§ 151, 253. f'DUE PROCESS OR COURSE OF LAW,"
in the English Constitution, history and meaning of, pp. 16, 21, 30, 75, 96.
in the State Constitutions, pp. 16, 76, 77, 81; III, §§ 70, 130. DUTIES, complained of in early times, pp. 93, 99.
E
EDUCATION,
general right to, p. 45; III, § 50. superintendent of. III, § 202. EDUCATIONAL CORPORATIONS, creation of (See Corporations), III,
§ 502. EDUCATIONAL INSTITUTIONS,
qualifications for voting (see Suffrage), III, § 245. require special vote of Legislature, III, § 59. EDWARD THE CONFESSOR, laws of, p. 13. ELECTIONS,
general provisions concerning, III, §§ 230-248. of legislature, governor, etc.. Ill, §§ 203, 210. purity of, bribery, etc.. Ill, § 152. special laws forbidden. III, § 395. to be free, open, etc., pp. 44, 87, 92, 103; III, § 230. votes by ballot, § 231; voting machines allowed, i6. ; secrecy of ballot, tb., § 235; plurality vote sufficient, § 232; Australian ballot, § 233; cumu- lative voting, ib.; ejection day, § 234; conduct of elections, § 235; registration laws, § 236; freedom from arrest, § 237. ELECTORS,
contests of elections, § 238; suffrage, § 240 (g. v.); municipal elections,
§ 249; states control, p. 67. presidential, how chosen, III, § 217.
INDEX 367
ELECTRIC COMPANIES (See Corporations); rights in streets, III, § 535.
ELEVENTH AMENDMENT, U. S. Const., p. 63.
EMBEZZLEMENT, of public funds, criminal (see Office), III, §§ 15G, 328.
EMERGENCY, in legislation, defined. III, § 308.
EMIGRATION, right of, pp. 18, 75, 97; III, § G5.
EMINENT DOMAIN, general principles, pp. 36, 83, 84; III, §§ 90-97, 330.
by corporations (see Railroads, Telegraph Companies, etc.).
not by foreign, § 505. EMPLOYER AND EMPLOYEE (See Labor, Railroads). ENGINEER, state. III, § 202.
ENGLISH STATUTES, in force in States, III, § 76. ENGROSSING (>See Forestalling). ENTAILS (See Land), forbidden, III, § 402. EQUAL RIGHTS {See Civil Rights, Equality, Class Legislation), p. 90;
III, § 20. EQUALITY,
men born, etc., pp. 16, 42; III, § 10. 11.
under the law, pp. 16, 41, 80, 90; III, §§ 20, 183. EQUITY (See Chancery).
ERROR, writ of (see Writ), given in all cases, III, § 139. ESCHEAT (See Land), III, §§ 400, 401. EVIDENCE (See Accused Persons, Witnesses, Oaths), pp. 76-78.
special laws forbidden. III, § 395. EXCLUSIVE PRIVILEGES, (see Monopoly, Class Legislation), III,
§§ 16, 501. EXECUTION,
property exempt from (see Exemption), III, § 81.
special laws forbidden. III, § 395. EXECUTIVE,
in States (see Governor, etc.), Ill, § 202.
powers of (see King, President, Governor), pp. 48, 53; III, §§ 231, 280. EXECUTORS (See Administrators), may not invest in stocks or bonds. III,
§426. EXEMPTION, of property from attacliments or executions, p. 22; III,
§§81, 82. EXPORTS, early forbidden, pp. 95-99. EX POST FACTO LAWS, forbidden, p. 79; III, § 141. EXPRESS COMPANIES, are common carriers, III, § 521.
rates may be fixed, § 522; discrimination, § 524; subject to railroad commissions, § 532. EXTORTION, forbidden, pp. 38; III, § 524.
F
FACTORIES (See Labor).
FACTORY ACTS (See Labor).
FARES (See Corporations, Railroads).
FEDERAL AND STATE POWER, pp. 7, 60-67, 68-69.
FEES AND COSTS, not to be demanded of accused persons. III, § 146.
FELLOW-SERVANT DOCTRINE (See Labor), done away with, etc.. Ill,
§ 534. FELONY,
disfranchisement for (see Office, Suffrage), III, § 253. what is, III, §§ 152, 153, 154, 156, 158.
368 INDEX
FENCES, special laws forbidden, III, § 395. FERlUi:S,
special laws forbidden, III, § 395.
tolls may be regulated. III, § G05. FIFTH AMENDxMENT, U. S. Const., pp. 16, 17, 23, 32, 61, 67. FINES,
not to be excessive, etc., pp. 22, 92; III, § 140.
remitted by Governor, etc., § 164. special laws forbidden, III, § 395. FIRE, provisions for protection against {see Forest), III, § 444. FISH, protection of, special laws forbidden. III, § 395. FISHING {See Hunting), III, § 417. FLAG, U. S. only to be carried, III, §§ 63, 299. FLUMES, land may be taken for, III, § 92. FOREIGN CORPORATIONS (See Corporations), III, § 506. FORESTALLING, etc., early statutes against, pp. 3, 6, 38, 93-96. FOREST, law of, objected to, p. 42, FORESTS, State reservations. III, § 409. FORFEITURES,
forbidden, p. 79; III, § 142.
remitted by pardon, § 164. FORNICATION, unlawful for girls under 14, III, § 431. FOURTEENTH AMENDMENT, discussed, pp. 17, 32, 34, 41, 48, 61, 64, 76, 77;
III, § 157. FOURTH AMENDMENT, p. 46. FRANCHISES,
may be taken under eminent domain, III, § 97.
never irrevocable (see Corporations), or alienable, III, §§ 503, 517.
special laws forbidden, III, § 395.
what are, pp. 31, 38; III, §§ 416, 605. FRANCE, laws of, people not subject to, p. 94. FRAUD, by debtors, arrest allowable, pp. 97, III, § 80. FRAUDS, Statute of, p. 104.
FRAUDULENT CONVEYANCES (See Bankrupts), p. 102. FREE, men are bom, etc.. Ill, § 10. FREE CUSTOMS, recognized in Magna Carta, III, § 10. FREEDOM of Trade, Labor, etc. (see Liberty),
of legislatures, pp. 43, 49, 100; § 272.
of Speech, pp. 43, 44, 87, 100.
of Speech and of the Press in State Constitutions, pp. 43, III, § 60. FREE SCHOOLS (See Schools),
age of scholars, attendance, etc., Ill, §§ 53, 55.
established, III, §§ 51, 52.
language, English or French, III, §§ 57, 103.
must be unsectarian (see Sect, etc.). Ill, § 54.
special laws forbidden. III, § 395.
time of holding. III, § 52. FREIGHTS (See Corporations, Railroads). FUNDAMENTAL PRINCIPLES,
governing legislation, III, § 391.
recurrence to, necessary, p. 45; III, §§ 5, 6, 185. FUTURES, dealing in, forbidden (see Stockjobbing), p. 71; III, § 443.
INDEX 369
G
GAMBLING, made criminal, III, §§ 155, 426. GAME LAWS,
early, p. 93.
protection of, special laws forbidden, III, § 395. GAOL, gaols, to be healthy, etc., Ill, § 140. GAOL DELIVERY, commissions for, prohibited. III, § 139. GARNISHMENT, not allowed of wages. III, § 88. GAS COMP.\NIES (See Cokporations), rights in streets, III, § 535. GENERAL LAWS ONLY, in certain cases (see Special Laws), III, § 502. GENERAL VERDICTS (See Verdicts).
GENERAL WARRANTS (See Search Warrants), p. 45; III, § 71. GERRYMANDERING, forbidden. III, § 21G. GOD, belief in, necessary for office, etc., Ill, § 45. GOLD AND SILVER, exports forbidden, p. 97. GOVERNMENT,
object of, p. 36; III, § 183; separation of departments. III, 201. (see Three Functions).
powers of, depend on consent of people, pp. 47-51, 87-89; III, § 121. GOVERNOR,
corruption of, § 154; veto power, §§ 304-306; appropriations, § 310.
of State, elected, etc., Ill, §§ 202, 232.
powers and duties of, §§ 280, 281; reports to, § 281; commands militia, § 297.
qualifications of, § 205. "GRANDFATHER" clause as to voting (see Election), III, § 246. GRAND JURY (See Indictment), pp. 12, 19, 76; III, §§ 127, 128. GRAND REMONSTRANCE, the, p. 104.
GUARANTY ASSOCIATIONS (See Corporations), III, § 502. GUARDS, armed (see Pinkerton Men), III, § 63. GUILDS, in England (see Liberty, Trade, Labor), pp. 18, 31, 95-97, 99, 100.
H
HABEAS CORPUS,
Act, pp. 23, 77, 104; III, § 125.
history of, pp. 3, 18, 19, 20, 77, 104.
suspension of, III, § 126. H.\LLAM, quoted, pp. 16, 20. HAPPINESS, a natural right. III, § 12. HARV.\RD COLLEGE, recognized in the Constitution of Massachusetts,
p. 70. HEALTH,
provisions for public. III. §§ 438, 440-442.
State Boards of, 111, §§ 202, 441. HEREDITARY PRIVILEGES, forbidden, p. 41; III, § 17 (See Privilege). HERESY, laws against, p. 98. HIGHWAYS,
special laws forbidden. III, § 395.
State roads, provided for in Constitutions, III, § 409.
24
370 INDEX
HOMESTEAD,
alienation of, when allowed, III, § 84.
does not avail against certain liens, III, § 83.
laws for reijuired, III, § 32.
to be reconled, duration of, etc., Ill, §§ 85, 86. HOURS OF LABOR (See Labor), p. 7L HOUSE OF REPRESENTATIVES,
Congress,
State, III, §§201, 203, 204. HUNTING AND FISHING, general right to (see G.\me Laws), III, § 417. HUSBAND AND WIFE (See Women).
not to testify against each other, III, § 136. HUSBAND, Life insurance policy of, exempt against creditors, III, § 81.
IMMIGRATION,
encouraged or prohibited, III, §§ 66, 202, 325.
State Commissioner of. III, § 202. IMMUNITIES (See Privilege),
special laws forbidden, III, § 395. IMMUNITY (See Criminating Evidence), required where evidence is com- pelled, p. 46. IMPEACHMENT,
effect of, § 263; removal by governor, etc., § 265.
in England, p. 96.
in United States, pp. 49, 56, 67; III, §§ 260-263.
not pardonable (see Pardons), p. 49; § 161. IMPRISONMENT, for debt, forbidden, pp. 23, 41; III, § 80. INALIENABLE RIGHTS, pp. 76-77; III, § 12. INCOME TAXES, III, § 339.
INCORPORATING VILLAGES, special laws forbidden, III, § 395. INDETERMINATE SENTENCES, allowed, III, § 140. INDIANS, right to vote (see Citizens), III, § 240. INDICTMENT,
history of. III, § 127, notes.
necessary, pp. 16, 20, 21, 76, 77, 95. INDIVIDUAL RIGHTS, governments instituted to protect, pp. 10, 36, 51,
69, 76, 77; III, §§ 6, 183. INDUSTRIAL CORPORATIONS (See Corporations), III, § 502. INFAMOUS CRIME (See Felony).
INFORMATION, allowed instead of indictment, pp. 16, 19; III, § 127. INHERENT, implied Federal powers, discussed, pp. 65, 66. INHERITANCE TAXES (See Tax), III, § 339.
INITIATIVE AND REFERENDUM (See Legislation), pp. 48, 55-57, 69, 70; III, §§ 1,201, 309.
effect of State Constitutions, p. 69.
in cities and towns (see Revenue, Taxation, Debt), III, §§ 600, 601; on State debt law, §§ 316, 361, 363; internal improvements, § 324; taxes, § 341; loans of credit, § 346; on municipal debts, §§ 370, 372.
referendum forbidden, § 308. INJUNCTIONS (See Chancery), history of, pp. 11, 15, 24-29, 99. INQUEST, of life and limb, p. 77.
INDEX 371
INQUISITIONS, forbidden (see Search Warrant, Ceiminating Evidence). INSPECTION LAWS, forbidden, III, § 441. INSTRUMENT OF GOVERNMENT, the, p. 104. INSURANCE COMMISSIONER, in States, III, § 202. INSURANCE COMPANIES (See Corporations), III, §§ 502, 560.
creating, special laws forbidden. III, § 395. INSURANCE, life, of husband exempt against creditors, III, § 81. INTEREST ON MONEY, rate allowed, p. 103; III, §§ 422, 556. INTERNAL IMPROVEMENTS,
land may be taken for. III, § 92.
special laws forbidden. III, § 395.
State may not engage in, §§ 324, 391; nor town, §§ 345, 370. INTERSTATE COMMERCE CLAUSE, discussed, pp. 62-65. INTIMIDATION, of Labor, etc., Ill, § 14. INTOXICATING LIQUORS,
constitutional provisions, pp. 70, 71; III, §§ 445-448.
laws may regulate traffic, § 445; constitutional prohibition, § 446; local option, § 447; dispensary system, § 448. IRRIGATION,
a public use, III, § 92.
corporations for (see Corporations), III, § 502.
new provisions concerning, p. 71 ; III, § 418. ISSUES, feigned, abolished, III, § 672.
JAIL (See Gaol).
JEOPARDY, twice in, principle of, pp. 23, 76, 78; III, § 137.
JEWS, early laws against, pp. 93-95.
JUDGES,
appointments and terms of, pp. 50, 67, 80, 81, 103, 104; III, § 654.
must know tlie law, pp. 17, 80.
opinions by, to legislature or governor. III, § 652.
opinions to be in writing, etc., and speedy. III, §§ 653, 665, 666.
publication of reports, etc., § 666.
removal of. III, §§ 265, 266, 267. JUDICIAL SYSTEM, of States, p. 72; III, Arts. 65, 66. JUDICIARY ACT, of United States, p. 24.
"JUDGMENT OF HIS PEERS" (See Trial by Jury, Due Process OF Law).
special laws forbidden. III, § 395. JURIES,
charges to, not on facts, etc.. Ill, § 675.
constitution of (see Verdicts), number, etc.. Ill, §§ 74, 132, 673, 674.
punishment of by attaint, p. 21.
religious test for, none, III, §§ 45, 673.
special laws forbidden. 111, § 395. JURY (See Trial by Jury, Grand Jury), right in Constitutions, pp. 75-77. JUSTICE, an object of government, III, § 10. JUSTICES OF THE PEACE, first instituted in England, pp. 26.
in State Constitutions, III, § 651.
372 INDEX
KING,
encroachments of, pp. 4, 54. power of, p. 8; III, § 200 n.
L
LABOR,
foundation of the right to property. III, § 13.
freedom of (see Liberty), pp. 18, 27, 30-35, 75-76, 101.
hours of, regulation, pp. 33, 34, 71, 99, 101.
unhivvful, § 451 n. injunctions in labor cases, pp. 24, 25. protection of by-laws, p. 71. regulating, special laws forbidden. III, § 395.
right to (see Freedom, supra), III, §§ 14, 450-465, 506, 509, 535, 536. State Commissioner of (see Arbitration), III, § 202. wages of, may not be fixed by law, pp. 34, 71, 99; III, § 14. LABOR LAWS, provided for, as to factories, mines, etc., Ill, §§ 450, 460, 401; day's work, § 451; wages, § 452; in pviblic work, § 453; in special em- ployments, § 454; of women and children, § 455; payment of wages, p. 34, § 456; truck laws, ib.; lien laws, § 457; of contractors, ib.; blacklists, § 458; strikes, etc., §459; employer's liability, § 462; contracting out, ib.; prison labor, § 463; alien labor, § 464; arbitration, §§ 465, 661. LABORERS (See Servants).
debts due, no exemption against, III, §§ 81, 83. political control of, § 450. statute of, pp. 27, 95-96, 102. LAND,
companies, forbidden. III, § 403 n. Federal government no general power to own, p. 61. laws concerning, p. 71.
monopoly in holding, forbidden. III, §§ 404, 581. ownership of, forbidden to Chinamen, aliens, etc.. Ill, §§ 22, 102. special laws forbidden. III, § 395. State Commissioner or land-office. III, § 202.
tenure of, allodial, p. 71; III, § 400; escheat, §§ 400, 401; feudal tenures abolished, § 401; restraints on alienation, ib.; entails, § 402; perpetu- ities, ib.; primogeniture, ib.; mortmain, § 403; monopoly of, §404; long lease, § 405; record of deaths, § 406; public lands of United States, § 407; of States, § 408; forests, § 409. LAND-GRANTS, English, not valid in New York, III, § 76. LAND REGISTRATION, courts of. III, § 651. LANGUAGE, taught in schools, records, etc.. Ill, §§ 57, 103. LAW (See Common Law),
English view of, as opposed to continental, pp. 4, 6, 11-17, 75-77, 80, 81. right to, general. III § 70; "Law of the Land," etc., § 130. LAWS (see Legislation),
for the good of the whole. III, § 11.
in force before Constitution, remains valid, III, § 77.
must be general, III, §§ 394, 660.
people must consent to. III, § 10.
private or local, when forbidden, III, § 395.
public, what are (see Private Laws), III, § 394.
unconstitutional, are void, pp. 7-9; III, § 3.
INDEX 373
LAWS, GENERAL, may not be suspended by the king, pp. 52, 79; III, § IG;
by the legishiture, p. 79. may be suspended by, when, III, § 392. impairing contracts, forbidden. III, § 393. none passed except by bill, § 300. LEASES, period of, limited, III, § 405. LEGISLATION, early history, pp. 4-5, 98, 102-104. allowable subject of, III, §§ 390, 391.
bills for, § 300; must pass both Houses, ib. ; form of, § 301 ; must relate to one subject, expressed in title, ib.; technical words avoided, ib.; codes enacted, ib.; reference to committee, § 302; these rules are directory merely, § 302 n.; bills not passed after time limit, ib.; § 306; reading of, ib. ; private or local bills, ib. ; majority vote of quorum or full house, § 303; names to be entered on journals, ib. ; private interest of members disclosed, §§ 154, 303; reconsideration, § 303; veto of bills, §§ 304, 305; amendments, repeals, and revisions, § 307; defeated bill not to be re- introduced, § 306; territorial legislation approved by Congress, ib.; special sessions legislation limited to call, ib.; laws take effect, when, § 308; referendum forbidden, § 308; revenue bills, §§ 310-315; two- thirds vote, § 313; matters of legislative power, § 390. by the people {see Initiative), pp. 4, 5, 48; III, § 1. in England, pp. 6, 12, 52; III, § 300 n. in State legislatures, III, §§ 300-316. LEGISLATURES,
State, deprived of responsibility by modern State constitutions, pp. 70, 71; III, §§ 1, 395 n. constitution of, pp. 55, 56; III, § 201. corruption of, punished, etc.. Ill, § 154. pay of, § 206; qualifications for, § 204. powers of, generally, pp. 44, 48, 49, 56; III, § 270; may determine con- tested elections, §§ 238, 270; choose officers, § 270; punish for contempt, §§ 270, 276; expel members, § 276. restrictions on, generally, III, Arts. 39-58; may not charter corporations,
III, § 502. quorum in, § 271; free speech in, § 272; freedom from arrest, § 273; sessions of, must be open, § 274; journals to be kept, § 275; time and date of session, p. 48; III, § 277; pay limited, ib.; duration of sessions limited, ib.; extra sessions, ib.; adjournment, § 278; place of session, § 279; time of, p. 37. LEGITIMACY,
children of slaves, II, § 22. of children, early law, 6. LEVEES, provided for, III, § 418. LIBEL, truth may be given in evidence, etc.. Ill, § 61. LIBERTY,
a national right (see Slavery, Habeas Corpus), pp. 20, 76-80, 100; III,
§§ 5, 10, 12, 183. English ideas of, pp. 4, 18-23, 25, 75-77, 100. of labor or trade {see Labor). of the press, etc. {see Freedom), III, §§ 10, 14. under the U. S. Const., pp. 9, 66, 69. under written constitutions, pp. 75-77. LIBR.4RL\N, STATE, III, § 202. LIBRARIES, public, provided for, III, § 58. LICENSE TAXES (See Taxes). LIENS (See Artisans, Mechanics, Labor). special laws forbidden. III, § 395.
374 INDEX
LIEUTENANT GOVERNOR, in many States, duties of, III, §§ 202, 282. LIFE INSURANCE, policy when exempt against creditors. III, § 8L LIFE, right to, p. IS; III, § 12.
LIMITATIONS OF ACTIONS, special laws forbidden, III, §§ 395, 680. LINCOLN, ABRAHAM, signed Thirteenth Amendment, p. 51. LIQUOR BUSINESS,
special laws forbidden, III, § 395.
State may engage in {see Intoxicating Liquors), III, §§ 6, 448. LITERARY CORPORATIONS (^ccCokpohations), III, § 502. LITERATURE, to be encouraged. III, § 50. LIVESTOCK,
health of, III, § 440.
special laws forbidden. III, § 395. LOAN AND TRUST COMPANIES, creating, special laws forbidden. III,
§395. LOAN ASSOCIATIONS (See Corporations), III, § 502. LOBBYING, a felony, III, § 153. LOCAL BILLS {See Private Bills, Laws).
LOCAL SELF-GOVERNMENT (See States Rights, Courts, etc.), p. 69. LOCAL OPTION {See Intoxicating Liquors), III, § 447. "LOG-ROLLING," a felony. III, § 154.
LONDON, freedom of, liberties of, pp. 14, 31, 84, 93; III, § 10. LORD'S DAY (See Sunday). LOTTERIES, prohibited, III, § 426. LYNCH LAW (See Mobs).
M
MAGNA CARTA, pp. 1, 5, 13, 14, 16, 17, 19, 21, 22, 30, 32, 36, 37, 46, 48,
75-89, 91; III, §§ 3, 10. MAJORITIES, not omnipotent, III, § 182.
MAJORITY VOTE, when necessary {see Elections), III, § 232. MANUFACTURING CORPORATIONS (See Corporations), III, § 502. MANUFACTURING, regulating, special laws forbidden, III, § 395. MARINERS (See Sailors). MARKET TOWNS, laws concerning, 6. MARRIAGE,
laws concerning, III, § 436.
of negroes (see Miscegenation), III, § 22.
of priests, p. 101. MARRIED WOMEN (See Women, Husband and Wife). MASSACHUSETTS,
Body of Liberties, pp. 16, 20, 21, 22, 23, 26, 36, 37, 40, 41, 42, 45, 50, 75-89.
Declaration of Rights, pp. 46, 76-89. MARTIAL LAW, under constitutional documents, pp. 82-83. forbidden, pp. 15, 20, 42; III, §§ 126, 293.
military power subordinate, p. 42 ; § 292. MECHANICAL CORPORATIONS {See Corporations), III, § 502. MECHANICS' LIENS, property not exempt from. III, §§ 81, 83. MERCANTILE CORPORATIONS (See Corporations). MERCHANTS, liberties of (see Trade), pp. 31, 32, 77-89, 93, 98. MERTON, Statute of, pp. 6, 92.
INDEX 375
MIDDLEMEN, early laws against, p. 102.
MILITARY LAW (See Militia, Martial Law), pp. 42, 43, 76; III, § 294.
applies only to army, etc.. Ill, § 293; billeting soldiers, § 295. MILITARY, STAxNDING ARMIES, p. 42; III, §§62,^93.
prohibited, p. 42; III, §§ 293, 294. MILITIA,
general provisions and historj', pp. 41, 42, 82, 83-90; III, § 290.
privileges of, § 296; governor commands, § 297; when called out, § 278; flag and drill, § 299.
State, III, §§ 290-299; how made up, § 291; under civil power, § 292. MILLS (See Labor).
MINERS, hours of labor, etc., Ill, §§ 450, 454. MINES (See Labor), State Commissioner of, III, § 202. MINING, regulating, special laws forbidden. III, § 395. MINING CORPORATIONS (See Corporations), III, §§ 502, 508. MISCEGENATION, of blacks and whites forbidden, III, § 22. MOBS, lynching a person, officer liable for, county liable. III, § 165. MONEY,
special laws forbidden, III, § 395.
value of the sliilhng, p. 94; III, § 423. MONGOLIANS,
Chinamen may not hold land, etc., Ill, § 22.
may not vote or hold office, III, §§22, 240.
immigration of, discouraged. III, § 22.
labor of, forbidden, III, § 22. MONOPOLIES (See Corporations, Trusts), forbidden, pp. 71, 103; III,
§§ 404, 518, 580, 581. MONOPOLIES, STATUTE OF, Jac. I, pp. 3, 39, 103. MONOPOLY, early principles against, pp. 18, 31, 38, 39, 84; in U. S., p. 67. MORALITY, an object of government. III, § 5. MORTGAGES, taxable, etc. (see Privileges), III, § 330. MORTMAIN (See Land), p. 93; III, § 403. MULATTO, definition of. III, § 22.
MUNICIPAL COAL YARDS, unconstitutional. III, § 6. MUNICIPAL CORPORATIONS, III, §§ 502, 600-606.
citizens may bring suit to test laws, § 603 ; loans of credit by (see Debts), §§ 345, 346.
may frame own charters, § 600; police power of, § 601. MUNICIPAL DEBTS, TAXATION (See Debts, Tax, etc.). MUNICIPAL GOVERNMENT, general system of, p. 72; III, § 604. MURDER, not bailable. III, § 121. MUTINY ACT, in England, p. 43.
N
NAMES,
changing, special laws forbidden. III, § 395.
may be changed by legislature. III, § 432. NATIONAL AND STATE POWERS (See Federal Powers, States),
pp. 60-67, 106-118. NATURAL RIGHTS,
in State Constitutions, p. 76; III, Arts. I-IV.
recognized as above the Constitution, p. 7; III, § 4.
376 INDEX
NAVIGABLE STREAMS (See Wateii), are free, etc., pp. 31, III, §§ 410, 411.
NAVY (See Army and Navy).
NEGROES (See Race Distinctions, Miscegenation, Suffrage).
immigration of, forbidden, III, § 22. NEWSPAPERS, libels by, where tried. III, § Gl. NINTH AMENDMI<:NT, U. S. Const., discussion of, p. 7. NOBILITY (See Titles), forbidden in States, III, § 17.
o
OATH (See Evidence, Test, Witness),
necessary, form of. III, § 47.
of office, required, III, § 223. OBLIGATION OF CONTRACTS (See Contracts). OBSCENE BOOKS, no right to publish, mail, etc.. Ill, § 60. OFFICERS,
election of, special laws forbidden. III, § 395.
servants of the people, etc., p. 48; III, § 184. OFFICES,
appointments to, how made, p. 55; III, § 210.
disqualifications for, III, §§ 151, 152, 154, 204, 222.
farming of, forbidden, pp. 14, 49; III, § 215.
not to be paid after death, § 322.
oaths for, § 223 ; official bonds, § 224; political tests forbidden, § 225; im- peachment and removal of, §§ 260-265, 268.
open to all, III, § 21.
pay of officers, legislatures, § 206; other officers, § 213; extra pay, § 214.
plurality of offices forbidden, pp. 49, 55.
qualifications for. State legislatures, § 204 ; Governor, § 205 ; other offices, §§ 220, 221.
religious test for, none. III, § 45.
tenure of. III, § 212.
vacancies in, III, 202, 211. ONSLOW, Speaker, rebukes Elizabeth, p. 16. OPINIONS, of Judges (see Judges). ORDEAL BY BATTLE, abolished in 1213, pp. 12, 21. ORDEAL, trial by, abolished, p. 91. OUTLAW,
meaning of term, p. 12.
no citizens to be. III, § 141. OYER AND TERMINER, commissions for, forbidden. III, § 139.
P
PARDON,
effect of, § 162; reprieves, § 163; fines and forfeitures released, § 164. of duelHng, § 151; not in advance of trial, p. 52; nor for impeachment,
p. 52. power to, in Governor or Board, III, §§ 160, 161. PARLIAMENT (See Legislation), powers of, etc., pp. 12, 48, 87, 93, 94, 96,
101. PAROLE, of prisoners, allowed. III, § 140. PATENTS, first granted, p. 103.
INDEX 37
PAYMENT INTO COURT, to stop action, etc., Ill, § 681.
PAY {See Offices, Salaries).
PEERS (See Jury).
PENAL SERVITUDE, III, § 30.
PENSIONS,
special laws forbidden. III, § 395.
when allowed or forbidden in States, III, § 18. PEONAGE LAWS, p. 25. PEOPLE,
are sovereign in U. S., pp. 9, 47, 61.
customs of, the law, etc.. Ill, § 130.
powers of, in government, etc., pp. 87-89; IJI, § 181.
powers reserved to, pp. 8, 9, 51, 60, 65; III, §§ 4, 5, 193.
PERPETUITIES (See Land, Monopolies), forbidden. III, §§ 402, 404, 581. PERSONAL PROPERTY (See Property), in early times, p. 36. PERQUISITES, forbidden. III, § 213. PETITION,
of right, 1627, pp. 3, 15, 20, 37, 45, 77-89; right of, p. 86.
of 31 Articles, 1406, pp. 14, 49.
right to (see Assembly), pp. 43, 44, 86; III, § 64. PINKERTON MEN, forbidden, p. 43; III, §§ 63, 299. PIPE LINES, are common carriers. III, § 521; rates may be fixed, § 122. POCKETED BILLS {See Legislation), III, § 305. POLICE POWER,
general, pp. 33, 37, 38.
in States, reserved, p. 67.
of cities and towns. III, §§ 600, 601, 606. POLITICAL PROVISIONS, of State Constitutions, III, §§ 180-299. POLYGAMY AND BIGAMY, not excused by religion, III, §§ 41, 155. POOLSELLING, prohibited. III, § 426. POOLS (See Trusts). POOR LAW,
history of, p. 101; III, § 449 n.
States shall enact. III, § 449. POST-ROADS, federal power over, p. 62. POWERS {See Federal, State, Reserved Powers, etc.). PRAECIPE, writ of, in England, pp. 17, 81. PREAMBLE, to U. S. Const., p. 61. PREROGATIVE WRITS, what are, p. 11. PRESENTMENT (See Indictment). PRESIDENT,
general powers of (see Executive), pp. 52, 54.
manner of election of, III, § 217.
may suspend habeas corpus. III, § 126. PRESS (See Freedom of Speech), censorship of, p. 103. PRICES,
combinations to fix, unlawful {see Trusts), III, §§ 518, 580, 581.
fixed by law, pp. 92, 94. PRIMARIES, laws governing (see Elections), III, § 248. PRIMOGENITURE, forbidden. III, § 402. PRINTING PRESSES, free {see Freedom op Speech). PRISON (See Gaol), State Commissioner of. III. § 202. PRISON LABOR, allowed or forbidden {see Convicts), III, §§ 140, 463.
378 INDEX
PRIVACY, right to, pp. 41, 4G; III, §§ 71, 307.
PRIVATE BILLS {See Legislation), passage of, III, §§ 302, 313, 322, 395.
PRIVATE LAWS, forbidden as to many subjects. III, § 395.
PRIVATE RIGHTS {See Individual Rights, Liberty, Propeuty, etc.).
PRIVATE WAR {See Pinkerton Men), III, § 03 n. 5.
PRIVILEGE,
never irrevocable, § 503.
special or exclusive or hereditary, forbidden, pp. 41, 84; III, §§ IG, 17, 501. PRIVILEGES, to be recorded, III, § 420. PROCEDURE,
in courts. III, §§ 653, 6G0, G70-679. special laws forbidden. III, § 395. PROHIBITION {See Intoxicating Liquors), III, § 446. PROPERTY (See Eminent Domain),
a natural right, pp. 20, 30, 36-40, 66; III, §§ 12, 90, 183. in constitutional documents, pp. 76-77, 83. of women {see Women). PROPERTY QUALIFICATIONS, for office, III, §§ 204, 221. for voting. III, §§ 244, 246.
in tax laws, etc. {see Taxes, Tax, Taxation), III, §§ 343, 346. PROVINCE CHARTERS, sources of State Constitutions, III, § 3. PROXIES, in Corporations, III, § 510.
PUBLIC INFORMATION (See Freedom of Speech, Libel, etc.). PUBLIC LANDS (See Lands), of United States, III, § 507; of States, § 508. PUBLIC LIBRARIES, SCHOOLS, etc. (See Libraries, Schools). PUBLIC SERVICE CORPORATIONS (See Corporations, Railroads). PUBLIC USE (See Eminent Domain); a judicial question. III, §§ 91, 94. PUBLIC WAREHOUSES, duties of, etc.. Ill, §§ 433, 434. PUBLIC WORK (See Labor), commissioner of. III, § 202. PUBLISH, right to (see Freedom of Speech). PULLMAN COMPANY (See Sleeping Car). PUNISHMENTS,
capital, preserved, p. 61 ; III, § 140.
cruel and unusual (see Penal Servitude), pp. 22, 79; III, § 140. transportation forbidden. III, §§ 134, 141. PURCHASE MONEY, debts for, no exemption against, III, § 81. PURE FOOD LAW, eariiest, p. 93.
Q
QUARTERING TROOPS, forbidden, etc., p. 82 ; III, § 295.
QUIA EMPTORES STATUTE, p. 93.
QUO WARRANTO, early law, p. 93; writ. III, § 660.
R
RACE DISTINCTIONS (See Color, Negroes, Mongolians, Suffrage), for- bidden, p. 41; III, §§ 20, 21.
RAILROAD COMMISSION (See Corporation Commission), III, §§ 202, 532, 533. may fix rates, §§ 522, 523.
INDEX 379
RAILROADS (See Corporations),
created under general law, § 502; are highways, § 520; common carriers, § 521; subject to control, ib.; rate may be fixed by State, ih., or com- mission, I, pp. 16, 53; III, § 522; "sliort-haul" clause, §§ 523, 532; dis- crimination, §§ 524, 52G; rebates, ib.; cars and motive power to be furnished, ib. ; to all express companies, ib. ; commutations and passes, § 525; connections, § 526; crossings, ib.; consolidations and combina- tions, § 527; reports, etc., § 530; officers, ib.; to allow locations to telegraph companies, § 537; foreign railroad companies, § 538; switches §541.
fee of land taken remains in owner, III, § 92.
general provisions concerning, p. 71; III, §§ 520-559.
incorporating, special laws forbidden, III, § 395.
liability to employees, § 534; for death, § 535.
local aid to, etc., § 539.
location of (see Eminent Domain), III, §§ 408, 529, 532.
office in State, etc., §§ 507, 530.
passes forbidden, § 525.
rates (see above), not to be excessive, § 524.
rolling stock, personal property, taxable, etc., § 528.
stations must be established in or near towns, § 529.
street, § 536.
taxes or forced subscription for, forbidden. III, § 92.
taxation of, §§ 330, 540.
tracks, laying down, special laws forbidden. III, § 395.
ultra vires, not to engage in other business, etc., §§ 530, 531. RAPE, made criminal, p. 92. RATES {See Corporations, Railroads, Franchises),
combination to fix or control, vmlawful, III, § 518.
regulation of, generally, pp. 6, 37, 38, 92, 95.
to be equal and not excessive, p. 92; III, §§ 524, 605. REAL ESTATE, sale of, special laws forbidden. III, § 395. REBATES (See Railroads, Discrimination). REBELLION (See Civil War),
is criminal under Fourteenth Amendment, III, § 157.
suspension of habeas corpus in, III, § 126. RECALL, discussed, p. 59. RECORD, of conveyances. III, § 406. REFERENDUM (See Initiative), III, § 309.
on State debts, § 316. REGISTRATION OF VOTERS (See Elections), III, § 236. REGULATION OF CHARGES (See Rates, Railways, Franchise). REGRATING (See Forestalling).
RELIGION, rights to, general, pp. 45, 86, 101; III, §§ 4, 40-48. RELIGIOUS CORPORATIONS (See Corporations), p. 101; III, §§ 502, 570. RELIGIOUS SOCIETIES, recognized, p. 101; III, § 50. RELIGIOUS TEST,
forbidden, III, § 45.
in schools. III, § 55. REMOVAL OF OFFICERS (See Impeachment), III, §§ 265, 268. REPEAL, of laws creating corporations, III, § 503. REPORTS, to State officers (see Corporations, Railroads). REPRESENTATION,
according to population, p. 44; III, § 186.
must be equal, III, § 20.
380 INDEX
REPRESENTATIVE GOVERNMENT (Sec Initiative, Legislation), pp. 44,
80, 92; III, § 10; departed from, in Okhilioina, etc., pp. 55, 6G, 09; III,
§ 182. REPRESENTATIVES, House of, State, III, §§ 201, 203, 204. REP11I1':VES {See Pardons).
REPUBLICAN FORM OF GOVERNMENT, pp. 43, 47, 51, 01, 6G; III, § 182. REPUDIATION, in State Constitutions, III, § 365. REPUTATION, a natural right, pp. 41, 42; III, § 15. RESERVED POWERS, to the people or the States, III, §§ 4, 193 (.see Ninth
Amendment). RESOLUTIONS, joint, subject to same rules as bills, III, §§ 303. RESTRAINT OF TRADE {See Monopolies, Trusts, Forestalling), pp. 3,
32, 38, 99. RETAINERS, forbidden in middle ages (see Pinkerton Men), p. 43; III,
§ G3n. RETROACTIVE LAWS (See Ex Post Facto). REVENUE, bills for (see Tax, Taxation), pp. 37, 98. REVOLUTION, right to, III, § 181. RIGHTS {See Civil, Natural, Religious Rights, etc.. Liberty, Property,
Assembly, Arms, etc.). RIOTS AND DISORDERS (See Soldiers, Militia, Mobs), pp. 14, 26, 49,
100; III. RIPARIAN RIGHTS, III, § 419. RIVERS (See Water),
rights in, p. 98; III, §§ 410-412. ROADS,
chartering, special laws forbidden. III, § 395. corporations for, under general law. III, § 502.
ROMAN CHURCH, in England, pp. 6, 92.
ROMAN LAW, jealousy of in England, pp. 6, 11, 12, 14, 97.
ROTATION IN OFFICE, provided for, pp. 44, 51; III, § 212.
S
SAFETY, a natural right. III, § 12.
SAILORS, trial by jury modified as to. III, § 73
SALARIES (See Office, etc.),
not to be increased during term, III, § 206.
to be fixed and reasonable, § 213; extra forbidden, § 214, SALADIN TITHE, p. 37. SCHOOLS,
lands, provisions for. III, § 408.
public, to be established {see Free Schools), III, § 50, debts allowed for, III, §§ 370, 371. taxes for, III, §§ 337, 338, 342. to be open to all, III, § 21.
white and colored not to be taught together. III, § 22, SCIENCE, to be encouraged. III, § 50. SEAL, abolished in State Constitution, III, § 421, SEAMEN, contracts of, regulated, p. 34. SEARCH WARRANTS, must be specific, etc., pp, 45, 86, 104; III, § 71.
INDEX 381
SECESSION,
forbidden, III, § 192.
when {)crmitted, p. 66. SECRETARY, of State, in States, III, § 202. SECRET SOCIETIES, forbidden. III, § 61. SECTARIAN APPROPRIATIONS, etc. (see Religious Rights). SECTS,
gifts to, or for sectarian purposes. III, § 44.
no preference of, or appropriation for, III, §§ 43, 44, 54.
sectarian worsliip forbidden (see Chukch, Religion, School). SENATE,
federal, senators how elected, III, §§201, 217.
State (see Legislature), III, §§ 201, 203, 204. SENATORS, State's rights to two, inalienable, p. 66. SEPARATION OF THE POWERS (See Three Functions, etc.). SERVANTS (See Laborers),
debts due, no exemption against, III, § 81.
wages not attachable. III, § 88. SERVICE, long tenns forbidden, III, § 33. SERVICES, religious, no appropriation for. III, § 44. SETTLERS (-See Public Lands), III, § 408. SEVENTH AMENDMENT, U. S. Const., p. 15.
SEWERAGE SYSTEM, town and city debts for, etc., Ill, §§ 370, 371. SEX DISTINCTIONS (See Suffrage), p. 41; III, §§ 23-25.
as to custody of children, III, § 27.
as to property, III, § 26.
forbidden in States, III, §§ 20, 25, 26.
in labor or trade. III, § 25.
in schools, III, §§ 23, 50.
in voting (see Woman Suffrage), III, § 22. "SHERMAN" (anti-trust), acts of 1890, 1906, p. 38. SHIPS AND VESSELS, early shipping laws, pp. 94, 97, 104; contracts of
railroads with, forbidden. III, § 527. SHORE (See Water), front reserved for State, tide lands, etc.. Ill, § 413. SLAVERY (See Liberty, Race Distinctions, Peonage, Villeins), III, § 30.
" coolieism " declared a form of, III, § 22.
forbidden in all American territory, p. 63.
in England, pp. 19, 41.
in U. S., pp. 21, 41, 75, 76. SLAVES,
children of, legitimate, III, § 22.
compensation for, forbidden, III, § 31.
SLEEPING CAR COMPANIES, common carriers, etc.. Ill, §§ 521, 532.
SMITH, WILLIAM, "A View of the State and Federal Constitutions," pp. 10,
50. SOCIAL CONTRACT, idea embodied in State Constitutions, III, §§4, 11, 12. SOCIALISM,
forbidden in State Constitutions, p. 61; III, § 6.
in Oklahoma, III, §§ 6, 335.
SOCIAL RIGHTS (See Civil Rights).
SOLDIERS (See Army, Martial Law, Militia, Military), billeting of, for- bidden, III, § 295.
military companies other than militia forbidden. III, §§ 63, 299. when brought into State, etc.. Ill, § 63.
382 INDEX
SOVEREIGN POWER, in the U. S., pp. 7, 8, 47. 61.
SPANISH LAW, in West, etc., p. 71.
SPECIAL LAWS, forbidden. III, §§ 395. 502.
SPECIFIC PERFORMANCE, doctrine of, pp. 24, 25.
SPEECH (See Freedom of Speech).
STAMFORD, Statute of, p. 94.
STANDING ARMIES (See Army), principle against, pp. 42, 82, 104.
STAPLE,
laws abolished, pp.. 94, 95.
statutes of, p. 32. STAR CHAMBER, Court of, pp. 15, 24, 26, 100. STATE CONSTITUTIONS, irrepealable provisions, III, § 155 n. STATE DEBTS,
amount limited, §§ 360, 30 1; temporary loans, § 360; permanent debt, § 361; annual tax or sinking; fund, § 360; purposes, § 301; other debts on special vote, § 361 ; term of bonds, § 362; referendum on, § 363; rebellion debts, illegal, § 364.
general principles, III, §§ 360-365. STATE GOVERNMENTS,
checks and balances, § 328.
frame of, III, §§ 180-299. STATE SOCIALISM, allowed in Oklahoma, III, § 6. STATES' RIGHTS (See Federal and State), pp. 60-67.
preserved, III, § 193. STATE, STATES,
accounts. III, § 321.
claims against, § 322.
debts, due to, may not be released, § 322, 680.
debts of (see Debt), may not loan credit. III, § 316; nor engage in inter- nal improvements, §§ 324, 326; nor assume debts of corporations, ib. ; nor issue bonds to railroads, ib. ; nor subscribe to stocks or bonds, lb.; nor issue money or credits, § 327; taxations, taxes, (see Taxation).
rights of (see Federal and State Power), pp. 7, 60, 65, 67-69; III, § 4.
suits against. III, §§ 75, 652, 680.
STATISTICS, State commissioners of. Ill, § 202. STATUTES (See Law, Legislation, and various titles of).
early English, pp. 13, 90. STAY LAWS, forbidden (see Debt), III, § 87. STEAMBOAT COMPANIES, subject to R. R. Coram., rates may be fixed, etc.,
Ill, §§ 522, 532. STOCKJOBBING, buying on margins, future delivery, prohibited, p. 71;
111, § 425. STOCK, stockholders (see Corporations). STREAMS (See Water).
navigable, special laws forbidden. III, § 395. STREET RAILWAYS, authorizing construction of, special laws forbidden,
HI, § 395. STREETS, vacating, special laws forbidden, III, § 395. STRIKES, legality of, p. 49; III, § 14. SUFFRAGE,
confined to whites. III, §§ 22, 240. disqualifications for, III, §§ 151, 152, 250-256.
educational qualifications, III, §245; property qualifications, §244; army and navy, § 243.
INDEX 383
SUFFRAGE (Continued),
female, III, §§ 23, 240.
general qualifications, p. 44; III, §§ 240-256.
given to all. Ill, §§ 21, 240 n.
grandfather clause, p. 41; 111, § 246.
residence requirements, §§ 241, 242, 243.
restored by pardon, § 1G2.
riglit of, history, pp. 48, 87, 99. SUICIDE, no forfeiture for, 111, § 143. SUMPTUARY LAWS, in England, pp. 94, 95, 96. SUNDAY, should be observed. III, §§ 43, 48. SUPREME COURT, of U. S., p. 8. SURVEYOR, State, 111, § 202.
SURVIVAL OF ACTIONS, for death, etc.. Ill, § 535. SUSPENSION OF LAWS, by executive, III, § 126.
T
TARIFF (See Duties, Taxation). TAX,
bills for, originate in lower house. III, § 310.
senate may amend, ib.; governor may veto items, ib.; object must be stated, § 314; two-thirds vote necessary, ib. TAXATION (See Taxes),
Federal and State, pp. 61, 67.
general principles, in State Constitutions, III, §§ 330-339.
origins and history of, pp. 5, 12, 37, 38, 85, 86, 90, 91.
power inalienable, § 330; exemptions from, § 332; amount of, limited in
States, § 336. special, § 337; valuation and assessment, § 334. of Corporations, generally, III, § 519. Franchise, § 519. on capital stock, § 519. on property, § 519. TAXES (See Taxation),
boards of equalization. State, III, § 354. by general laws, §§ 314, 330; uniform, § 333. collection of, III, §§ 350-354.
in States, must be levied for public purposes. III, §§ 330 n, 335. may not be released, § 330; nor delegated, ib.; property taxable, § 331; poll, ift., § 338; inheritance, § 330; residence, ift. ; franchise, t6.; special, § 337; school, ib.; income, § 339; license or occupation, ib. no exemption against levy for, III, § 81.
sales for, § 350; list required, § 350; redemption, § 352; titles, § 353. special laws forbidden. 111, § 395. TAXES IN COUNTIES, CITIES, TOWNS, etc.. Ill, §§ 340-346.
legislature vests authority, § 341; counties to pay cash, ib.; amount of tax limited, § 341; purposes of, § 342; general power restricted, § 344; loans of credit forbidden, § 345. TAXPAYERS, only, may vote in certain cases (see Loans, Debts, etc.). TAX SALES (See Taxes).
TELEGRAPH AND TELEPHONE COMPANIES (See Railroads), III, § 537. are common carriers, § 521; rates may be fixed, §§ 522, 532. connections, § 526; rights in streets, § 536.
384 INDEX
TENTH AMENDMENT, U. S. Const., pp. 60, GO.
TENURE (See Land), III, §§ 23, 372.
TERMS OF OFFICE, State, III, § 202.
TERRITORIES,
acts of Congress admitting, III, § 51.
delegates of, elected, III, § 217.
"Federal jurisdiction over," p. G3.
legislation of, approved by Congress, § 306; public lands in, § 307.
TESTIFY, right to (see Witnesses, Evidence, Oaths), III, § 20.
TEST OATHS, forbidden (see Religious Test), III, § 45.
THAYER, JAMES B., quoted, p. 8.
THIRTEENTH AMENDMENT, pp. 51, 63.
THREE FUNCTIONS OF GOVERNMENT,
in State Constitutions, § 200.
legislative, executive, and judicial principle discussed, pp. 7, 8, 9, 44, 48, 50, 51, 52, 55, 66, 80, 89; III, § 200 n. TITLES FORBIDDEN {See Privilege), p. 41; III, § 17. TOLLS {See Corporations, Rates, Railroads). TORTURE, forbidden, pp. 22, 78; III, § 123 n. TOWN MEETING, discussed, p. 59.
TOWNS {See Municipal Corporations).
general laws for, p. 72; III, §§ 600, 601.
may frame own charters, § 600.
taxation in, §§ 340-346; debts of, §§ 370-374. TRADE,
among the States {see Interstate Commerce), p. 67.
freedom of {see Liberty, Labor), pp. 18, 30-35, 75, 83, 84, 94, 95, 96; III, § 14. TRADES-UNIONS {See Guilds, Union Labor), p. 99. TRAMPS {See Vagabonds, Vagrants). TRANSPORTATION,
forbidden {see Banishment, Punishment), III, § 141.
for trial, complained of, p. 81. TRAVEL {See Conveyances). TREASON, definition of {see Attainder), pp. 50, 61, 79, 102; no attainder for,
p. 79; no pardons for, p. 79; III, § 161; not bailable, § 121. TREASURERS, in States, III, § 202. TREATIES, power to make, p. 55; III, §§ 150, 191 n.
TRIAL BY JURY,
in civil cases, pp. 12, 15, 16, 18, 20, 21, 22, 75-76, 78, 80, 81, 90, 94; III, §§ 72, 73, 74.
in criminal causes, pp. 12, 21; III, §§ 130, 131.
in taking under eminent domain. III, §§ 94, 96.
may be waived, III, §§ 74, 131. TRIAL BY ORDEAL, battle, III, § 131 n. TRIAL, must be in county where suit brought. III, § 79. TRUANTS {See Free Schools), laws against, to be enacted. III, § 55. TRUST, breach of, cause of imprisonment. III, § 70. TRUST COMPANIES {See Corporations, Banks), III, §§ 502, 558. TRUSTEES {See Administrators). TRUST FUNDS, may not be invested in corporate securities. III, §§ 424, 509.
INDEX 385
"TRUSTS" (See Monopolies),
by combining corporations, III, § 518.
general subject of, pp. 38, 39, 40, 71 ; III, §§ 580, 581. TRUTH, a defence in libel suits (see Libel), III, § 61. TURNPIKE COMPANIES, chartering, special laws forbidden. III, § 395. TYLER, WAT, rising of, pp. 19, 32.
U
"UNFAIR" COMPETITION," forbidden (see Railroads, Trusts), III, § 518. UNION LABOR, recognition of, in statutes, pp. 35, 71. UNITED STATES [See Constitution),
sovereign power of. III, §§ 190-192. UNIVERSITIES,
Harvard, Yale, William and Mary, Southern, and Leiand Stanford recog- nized in State Constitutions, III, § 56.
State, provided for, III, § 56. "UNWRITTEN LAW," antiquity of, p. 12. USURY (See Interest),
early law, p. 101.
forbidden in Stat. Merton, p. 6.
VACANCIES, in offices, how filled, III, §§ 202, 211. VAGABONDS, laws against, pp. 97, 103. VAGRANT LAWS, State shall enact, III, § 449. VENUE,
change of. Ill, § 133.
must be in county, etc., pp. 76, 81; III, §§ 79, 130 n., 133.
special laws forbidden. III, § 395. VERDICTS,
general, history of. III, §§ 61, 132.
of juries, need not be unanimous (see Juries), III, §§ 74, 131, 132. VETO,
of bills (see Legislation), p. 56; III, § 304.
of president, discussed, p. 55. VICINAGE, jury of, etc. (see Venue), pp. 17, 78. VILLAGES (See Towns).
incorporating, special laws forbidden. III, § 395. VILLEINS, villeinage, pp. 19, 26, 27, 31, 96.
VIRGINIA BILL OF RIGHTS, pp. 17, 21, 22, 42, 44, 45, 46, 48, 51, 76-89. VOTERS, voting (see Suffrage, Corporations, Legislation). VOTING MACHINES, allowed, p. 49.
W
WAGES (See Labor),
not attachable. III, § 88.
payable in money, etc., p. 31; III, § 456. WALES, statute of, pp. 21, 93.
WAREHOUSES, warehouse receipts, III, §§ 433, 4*34.
25
386 INDEX
WARRANTS (See Appropriations, Search), III, § 320.
must have, for arrest, etc., pp. 20, 104; III, § 120. WATER,
debts for, specially allowed to towns, etc.. Ill, § 371.
drains, § 415.
front, §413; special streams, §411; jurisdiction over, §412; wharves, §414.
irrigation, p. 71; III, § 418.
navigable waters, rights in. III, §§ 410-413.
ownership of, in public, etc.. Ill, § 418.
power to tax for, unlimited, § 344.
rates for, to be fixed, III, §§416, 605.
works for, a public use, p. 71; III, § 91. WATER COMPANIES (See Corporations), III, § 536. WAYS OF NECESSITY, land may be taken for. III, § 92. WEBSTER, DANIEL, quoted, p. 8.
WEIGHING AND GAUGING, offices for, forbidden. III, § 202. WESTMINSTER I, statute of, pp. 20, 92.
II, p. 93. WHARFAGE (See Corporations, sub. v. Rates). WHARVES, rights to maintain, tolls, etc., Ill, § 414. WILLIAM THE CONQUEROR, charters of, p. 13. WILLS, Statute of, p. 101. WINCHESTER, statute of, p. 93. WITCHCRAFT, laws against, p. 101. WITENAGEMOTES, early use of, pp. 57, 58. WITNESSES (See Accused Persons, Evidence),
evidence of deceased parties admitted. III, § 678.
not to be unreasonably detained, etc.. Ill, § 124.
right to be. III, §§ 20, 21, 677.
right to, pp. 21, 23, 50, 76.
two necessary in treason, etc., pp. 78, 79. WOMEN (See Sex Distinctions, Labor),
hours of labor limited, pp. 33, 71; III, § 455.
separate property of. III, § 26. WOMAN SUFFRAGE, denied or permitted. III, §§ 23, 240 WRITS OF ERROR, a writ of right, III, § 139. WRITS OF RIGHT, habeas corpus a. III, § 125.
YORK, Statute of, p. 94.
The University Press, Cambridge, U. S. A.
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