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Full text of "A treatise on the constitutional limitations which rest upon the legislative power of the states of the American union"

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ACT 



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L 



■^■</^ ,''.-^: (■■ I ^ U!>'' 



TREATISE 



CONSTITUTIONAL LIMITATIONS 



WHICH BEST 1 



THE LEGISLATIVE POWEK OF THE STATES 
OF THE AMERICAN UNION. 



THOMAS M. COOLEY, 



SECOND EDITION, 
ADDinoira, oimiQ thi besvltb or tbx ixccmt oaaxb. 



BOSTON: 

LITTLE, SHOWN, AND COMPANY. 

1871. 



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Entered acoordlDg tb A(!t of Coagiw, In tbe y^t 1871, hj 
la the Office of the Libnrian of Congreai at Waihingtoo. 



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PREFACE. 



In the Preface to the first edition of this work, the author stated 
its purpose to be, to furnish to the practitioner and the student of 
the lav such a presentation of elementarj constitutional principles 
as should serve, with the aid of its references to judicial decisions, 
legal treatises, and historical events, as a convenient guide in the 
examination of questions respecting the constitutional limitations 
vhich rest upon the power of the several State legislatures. In 
the accomplishment of that purpose, the author further stated that 
he had faithfully endeavored to give the law as it bad been settled 
hj the authorities, rather than to present liis own views. At the 
Bune time, he did not attempt to den; — what he supposed would 
be sufficiently apparent — that he had written in full sympathy 
with all those restraints which the caution of the fathers had im- 
posed upon the exercise of the powers of goTemment, and with 
faith in the checks and balances of our republican system, and in 
correct conclusions by the general public sentiment, rather than 
in reliance upon a judicious, prudent, and just exercise of authority, 
when confided without restriction to any one man or body of men, 
whether sitting in l^slative capacity or judicial. In this sympa> 
tby and faith be had written of jury trials and the other safeguards 
to personal liberty, of liberty of the press and of vested rights } 
and be bad also endeavored to point out that there are on all sides 
definite limitations which circumscribe the legislative authority, 
independent of the specific restrictions which the people impose by 
their State constitutions. But while not predisposed to discover in 
any part of onr system the rightful existence of any unlimited 
power, created by the Constitution, neither, on the other hand, had 
be designed to advance new doctrines, or to do more than clearly 



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and with reasoDable conciaeDeas to Btato the principles to be de- 
duced from the judicial decisions. 

The unexpected favor with which the work has been received 
haying made a new edition necessary, the author has reviewed 
every part of it with care, but without finding occasion to change 
in any important particular the conclusions before given. Further 
reflection baa only tended to conflrm him in bis previouB views of 
the need of constitutional restraints at every point where agents 
are to exercise the delegated authority of the people ; and he is 
gratified to observe that in the judicial tribunals the tendency is 
not in the direction of a disregard of these restraints. The reader 
will find numerous additional references to new cases and other 
authorities ; and some modifications have been made in the 
phraseology of the text, with a view to clearer and more accurate 
expression of his views. Trusting that these modifications and 
additions will be found not without value, be again submits liis 
work " to the judgment of au enlightened and generous pro- 

TH0MA8 BL COOLBT. 



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TABLE OF CONTENTS. 



CHAPTER I. 

DEFINITIOira. 

Definition of a state, natioQ, people, BOTereigntjr, and sovereign atate 1 

What sovereignty conaists in 2 

Apportionment of sovereignty in America 2 

Definition of constitution and constitutional government . . . . 2, 8 
Of anconatitutional law 8, 4 

CHAPTER n. 

THE COMSTITnnOM OF THE UNITED STATES. 

What the Uoilod States government the snccessor of; Colonial con- 

federaciea 5 

The Continental Congress , 6, 6 

limitations npoo its power ; the Articles of Confederation, and the 

supersession thereof by the Constitution 7, 8 

Adf^tion of the Constitution by North Carolina, Rhode Island, and 

the new States ; United States government one of enumerated 

powers 9 

General purpose of this government 10 

Powers conferred upon Congress 10, 11 

Esecntive and judicial power of the nation 11 

Consdtntion, laws, and treaties of United States to be snprema ; 

final decision of qaestions under, to rest with national judiciary 12 
Bemoral of causes from State courts ; decisions of State courts to 

be followed on points of State law 18 

Bestrictiona upon the States 1!h-17 

Gnaran^ of republican' government 17 

Implied prohibitions on the States 18 

Beservalion of powers to States and people ; statutes necessary to 

jurisdiction of national courts 19 



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VI TABLB OF CONTENTS. 

OHAPTEB in. 

THE FORMATION AND AHENDKENT OF BTATB CONSTITtmOIfS. 

State governments in existence when ConBtitntion of Uoited States 

Adopted 21 

Common law in force ; what it consiata in 21-25 

Eaglish and Colonial legislation 25 

Colonial charters and reTolutioaary constitutions 26 

Constitntions of new State 27 

Sovereignty of the people 28-30 

Proceediaga in the fcH-mation and amendment of conatitutiona . 30-8i 
Restraints imposed thereon by Constitution of United States ... 33 
What generally to be looked for in State constitutions .... 31-36 
Bights are protected hy, bnt do not come from them 36 

CHAPTER IV. 

CONSTBOenON OP STATE CONSTITUTIONS. 

Interpretation and construction 38 

Who first to construe constitutions 38-43 

Final decision generally with the courts 43—16 

The doctrine of ra adjudiecUa and itare deeutt 47-54 

Construction to be nniform 54 

The iulent to govern 55 

The whole instrument to be examined 57 

Eftect to be given to the whole 58 

Words lo be understood in their ordinary meaning 58-60 

Common law to be kept in view 60 

Words sometimes employed in different seDses 62 

Operation of laws to be prospective 62 

Implied powera 63 

Consideration of the miachief to be remedied 65 

Frooeedings of Coastitutional Convention may be examined ... 66 
Force of contemporaneous and practical conatruction .... 67—71 

Unjust provisions not invalid 72 

Duty in case of doubt on constitutional qneetiona 73 

Directory and mandatory provisions 71-83 

Conatitutionat provisions are imperative 79-83 

Danger of arbitrary rates of construction 83 



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TXBLM OF CONTENTS. TU 

CHAPTER V. 

THE P0WEB3 WHICH THE LEGISLATIVE DEPABTMENT HAT EXEBaSE. 

Fower of Americaa legislatorea compared to th&t of British Far- 

lUment 85-87 

Grant of legiaUtive power is grant of the complete power . . 87 

Bat not of executive or judicial power 67-90 

Definition of legislative and judicial antbority 89-92 

Declaratoi7 statutes 9S-95 

Statute setting onde judgments, granting new trials, &c> ... 95 

Recitals in statutes do not bind individuals 96 

Statutes conferring power on guardians, &c., to sell lands . . 97-104 
Statutes which assnme to dispose of disputed rights . . 103-106 

StAtutes validating irregular judicial proceedings .... 107, 108 

L^islative divorces 109-114 

Legislative encroachments upon executive power .... 114-116 

Legislative power not to be delegated 116-125 

Conditional legislation 117-125 

Irrepealable lawe not to be passed 125-127 

Terrilorittl limitations upon State legislative authority . . . 127 

Other limitations by express provisions 128 

Limitations springing from nature of free govemmeot . . . . 129 

CHAPTER VI. 

THE BHACrUENT OP LAWB. 

Importance of forms in parliamentary law 130 

The two houses of the legislature 131,182 

Contested elections, rules of proceeding, punishing disorderly 

behavior 133 

Contempts ; privileges of members 134 

Legislative committees ; jonmal of proceedings 135 

Corrupt contracts to influence legislation 136 

Counsel before legislature ; lobby agents 136 

The introduction and passage of bills 137 

Three readings of hills 189 

Teas and nays 140 

Vote required for the passage of a bill 141 

Title of statutes 141-151 



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TIU TABLE OF COHTEHTS. 

Pit* 

Amend&toi; statutes 151 

Signing of bilU b; presiding officers ,. 152 

Approval of bills b; the govemor 153 

Other legislative powers of the goveroor 155 

When acts to take effect 155-158 

CHAPTER "VII. 

THB CIRCUUSTANCBS UNDER WHICH A LEQIBLATITE ACT HAT BE 
DECLARED DNCONBTITCTIONAL. 

Authority to declare statutes ancoDstitutional a delicate one . . 159 

Will not be done bj bare qnornm of court 161, 162 

Nor unless a decision upon the point is necessary 168 

Nor on objection by a party not interested 163 

Nor solely because of unjust or oppressive provisious .... 164-169 

Nor because conflicting with fundamental principles .... 169 

Nor becanae opposed to spirit of the constitution 171 

Extent of legislative power 172 

Difference between State and national governments .... 173 

A statute in excess of legislative power void 174 

Statutes invalid as encroaching on executive or judicial authority 174 

Or conflicting with the bill of rights 175,176 

Legislative forms are limitations of power 177 

Statutes unconstitutional in part 177-181 

Constitutional objection may be wuved 181 

Judicial doubts on constitutional questions 182-186 

Inquiry into legislative motives not permitted 186 

Consequences if a statute is void 188 

CHAPTER VIII. 

THE SEVERAL GRADBa OF MCNICIPAL aOTBRNHENT. 

The American system one of decentralization 189 

State constitutions framed in reference to it 190 

Local government may be delegated to dtizeos of the munici- 
pality 191 

Legislative control of municipalities 192 

Powers of public corporations 194 

Strict construction of charters 195 

Contracts «i^ virea void 4 '96 



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TABLE OF COHTENTfi. IX 

FM» 
Corporations by preecription and implication .... . 197 

Hnnicipal by-laws 198-203 

Delegation of powers by municipality notTadmiseibl« .... 204 

Irrepealable municipal legislation cannot be ai}opt«d .... 206 

Prasninption of correct action 208 

Power to indemnify officers 209, 210 

Powers to be construed with reference to purposes of tbeir 

creation 211 

Anthority confined to corporate limits ......... 213 

Hnnicipal subscriptions to works of internal improvement . . 213-219 

Negotiable paper of corporations 215, note 

Hnnicipal military bounties 219-229, 234 

Legislative control of municipal taxation ........ 280-235 

Legislative control of corporate property 235-240 

Towns and counties 2'40 

Cilizens of, held liable for corporate debts 241-247 

Not liable for neglect of official duty 247 

Difierent rules govern chartered corporations 247 

In what respect the charter a contract 248-234 

Validity of corporate organizations not to be questioned collat- 
erally 254 



CHAPTER IX. 

PROTECTION TO PEHSON AND PEOPEETT UNDEE THE CONSTITUTION OP 
THE ITNITBQ STATES. 

Bill of lUgfata, importance of 256 

Addition of, by amendments to national Constitution .... 259 

Bills of attainder 259-264 

Ex pott facto lava 264-273 

Laws impairing the obligation of contracts 273-294 

What charters are contracts 279 

Contracting away powers of sovereignty 260-284 

Obligation of a contract, what it is 285 

Uodiflcation of remedies always admissible 287 

Appraisal laws 290 

Stay laws, when void 291,292 

Validating imperfect contracts 293 

State insolvent laws 293, 294 

The thirteenlh and fourteenth amendments 294 



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TABLE OF CONTENTS. 



THE CONSTITUTIONAL PBOTEOTIONS TO PERSONAL LIBEBTT. 

Pig. 

VilleinBge in England 295 

In Scotland 298 

Id America 299 

Unreasonable aearcbes and eeizures 299-308 

Kveiy man's house his castle 299-304 

Search warranto 30»-308 

Inviolability of papers and correspondence . . 806, 307, and uofea 

Quartering soldiers in private houses 308 

Criminal accusations, how made 300 

Ban to persons accused of crime 810 

Prisoner standing mute 811 

Trial to be speed; 311 

To be public 312 

Not to be inquisitorial 318 

Prisoner's statement and confessions 313-317 

Confronting prisoner with witnesses 818 

Prisoner to be present at trial 319 

Trial to be by jury 819 

Number of jurors ; right of challenge 819 

Jury to be of the vicinage 310 

Verdict to be unanimous and free ■ ■ 820 

Instructions of the judge, how limited 320 

Power of jury to judge of law 321-825 

Accused not to be twice pat in jeopardy S25-328 

Excessive fines and cruel and unusual punishmenU .... 328-336 

Right to counsel 880-330 

Protection of professional confidence 334 

Duty of counsel 835 

Whether to address the jury on the law 336 

Punishment of misconduct in attorneys 337 

Writ of habeat eorpui 3:18-348 

Legal restraints upon personal liberty 339-342 

Necessity of Saheaa Corpu* Act 342-845 

What cuurtH issue the writ 84S 

General purpose of writ, and prncllce upon 847, 348 

Bight to discussion and pelilion 849 

Kgbt to bear arms 350 



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TABLE OF CONTENTS. Zl 

CHAPTER XI. 

OP THB PBOTECnOK OF PBOPBRTT BY THE " LAW OF THE LAND." 

Hagoa Charta, chap. 29 S51 

CoDstitntional provisions ioBaring protection " by the law of 

the land" S51, note 

Meaning of " dne process of law " and " law of the land " . . 353-357 

Vested rights not to be disturbed 357 

What are vested rights 358-361 

Interests in expectancy are not S59 

Legislative modification of estates 360 

Control of rights springing from marriage 360, 361 

Legislative control of remedies 861 

Vested rights of action are protected 362 

Confiscation of rights and property 363 

Statntea of Umitation 364-367 

Alteration in the rules of evidence 367 

Retrospective laws 369-384 

Coring irregularities in legal proceedings 371-374, 362 

Validating imperfect contracts 374-381 

Pendency of suit does not prevent healing act 379 

What the healing statute must be confined to 881 

StatDtory privilege not a vested right 383 

Consequential injuries from changes in the laws 384 

Betterment Uws 386 

Unequal and partial legislation 389 

Local laws may vary in different localities 390 

Saapension of general laws 391 

Equality the aim of the law 398 

Strict construction of special grants 395 

Privilege* and immunities of citizens 397 

Judicial proceedings void if jurisdiction wanting 397, 398 

What constitutes jurisdiction 396 

Consent cannot confer it 399 

Jurisdiction in divorce cases .' 400 

Necesnty for process 402 

Process by publication 404 

Courts of general and special jurisdiction 406 

Effect of irregularities in judicial proceedings 406,409 

Judicial power not to be delegated 410 

Judge not to sit in his own cause 410-413 



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Zn TABLE OF CONTENTS. 

CHAPTER Xn. 

LIBERTY OF SPEECH AHD OF THE PRESS. 

Pip. 

Protection of by the Constitution of the United Stat«8 . . . 414 

State conslitutional provisions 414, not«. 

Not well protected nor defined at common law 417 

Censorehip of the press ; publication of proceedings in Parlia- 
ment not formerly snffered 418 

Censorship of the press in America 418 

Secret sessions of public bodies in United States 419 

What-liberty of thepress consiBtsiD 420-422 

Common-law rules of liability for injurious publications ■ ■ . 422-425 

Cases of prmleged communications 425, 426 

Libels on the government, whether punishable 426-430 

Sedition law 427 

Further cases of privilege ; criticism of officers or candidates 

for office 481-441 

Petitions and other pablicalions in matters of public concern . 434 

Statements in course of judicial proceedings 441-445 

by witnesses 441 

by complainant, &c 441,442 

by counsel 442 

Privileges of legislators 445 

Publication of privileged communications through the press . . 448 

Accounts of judicial proceedings, how far protected .... 448, 449 

Privilege of publishers of news 451 

Publication of legislative proceedings 457 

The jury as judges of the law in libel cases . 460 

Mr. Fox's Libel Act 462 

" Good motives and justifiable ends," burden of showing is on 

defendant 464 

What is not sufficient to show ' 465, 466, notes. 

CHAPTER XIII. 

BELIQIOUB LIBERTY. 

Care taken by State constitutions to protect 467-470 

Dislinguisbed from religions toleration 467 and note. 

WLui it precludes 469 



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TABLE OP CONTENTS. ziii 

Does not preclude recognition of auperinteadiog Providence by 

public authorities 470 

Nor appointment of chaplains, fast days, &c., nor recognition of 

fact that the prevailing religion is Christian 471 

The maziiA that Chriatianity is part of the law of the laud . . 472-477 

Puabhment of blasphemy . 472 

And of other profanity 476 

Sunday laws, how justified . . . .' 476, 477 

Bespect for religious scruples 477, 478 

Beligions belief as afiecting the competency or credibility of 

witnesses , . . . 478 



CHAPTER XIV. 

THE POWEB OP TAXATION. 

Untimited nature of the power 479-485 

Exemption of national agendes from State taxation .... 480-484 
Exemption of State agencies from national laxation .... 488, 484 
Limitations on Slate taxation by national Constitution . . . 485 

Power of States to tax subjects of commerce 466 

IMscrimioations in taxation between citizens of different States . 487 

Elements essential to valid taxation ; purposes must be public . 487 

Legislature to judge of purposes 488-490 

Unlawful exactions 490-494 

Necessity of apportionment 495 

Taxation with reference to benefits in local improvements . . 497 

Local assessments distinguished from general taxation . 498 

Apportionment of the biwden in local assessments 498-511 

Taxations must be uniform throughout the taxing districts . . 502, 504 

Koad taxes in labor 512 

Inequalities in taxation inevitable 513 

Legislature must select subjects of taxation 514 

Exemptions admissible 514,515 

Constitatioual provisions forbidding exemptions 516 

Legislative authority requisite for every tax 517-520 

Excessive taxation 520 

The maxim de minimit Ux non ewrat In tax proceedings . . . 521 

What errors and defects render tax sales void 521, 522 



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XIV TABLE OP CONTENTB. 

CHAPTER XV. 

THE EHINENT DOMAIN. 

Ordin^ domain of State distingaished from ominent domain . 523, 524 

Definition of eminent domain 524 

Not to be bargaiued awa; ; general rights vested in the States . 525 

How far possessed hj the geueral goTemmeDt 525, 526 

What property subject to the right 626 

Legislative authority requisite to its exercise 527 

Strict compliance with conditions precedent necessary . . . 528 
Statutes for exercise of, not to be extended by intendment ; par- 
pose must be public 530 

What is a public purpose 531-536 

Whether milldams are 584 

How property to be taken 536-538 

Determining the necessity for 638 

How much may be taken 539-541 

What constitutes a taking 541-667 

Consequential injuries do not 541—544 

Appropriation of highway to plank road or railroad .... 545-657 

Whether the fee in the land can be taken , 667-559 

Compensation to be made 569 

Time of making 660-564 

Tribunal for assessing 66S 

Principle on which it is to be assessed 565-571 

Allowance of incidental injuries and benefits 566-571 

What the assessment covers 570 

Action where work improperly constructed 671 



CHAPTER XVI. 

THE POLICE POWER OP THE STATE3. 

Definition of police power 672 

Pervading nature of 672-577 

Exercise of, in respect to charter contracts 574-581 

License or prohibitioq of sales of intoxicating drinks .... 581-684 
Payment of license f^ to United States gives no right in oppo- 
sition to State law 584 

Harbor regulations by States 585 



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TABLE OF CONTENTS. XV 

. ^^ 

IMatinction betwMn proper police ro^lBtiou aod an interference 

with commerce £86 

State taxes npon commerce 586-588 

Sunday police regolations 588 

BeguUtion of higfawars by tbe States 588, 589 

Conbrol of naTigable waters : . 589 

Wliat are navigable 589-591 

CoogresBtonal r^:nIatiotis of . 591 

Monopolies of, not to be granted by States 591, 692 

Power in the Stales to improve and bridge 592 

And to establish farries and permit dams 593 

Regulation of speed of vesseb ; destruction of buildings to pre- 

Tent spread of fire 591 

Bstsblisfament of fire limits and wharf lines ; abatement of nui- 

aances, &e 595 

Other Sute regulatioDS of police 595, 596 

Power of Slates to make breach thereof a crime 596, 597 

OHAPTEE XVn. 

THE EZPBESSION OP THE POPULAR WILL. 

Peopb possessed of the sovereign^, but can only exercise it 

under legal forms ; elections the mode 598 . 

Who to participate in elections ; conditions of residence, presence 

at the polls, Am 599 

Beridenoe, domicile, and habitation defined 600 

Registration of voters 601 

Other regulations 602 

Preliminary action by anthorides, notice, proclamation, &c. . 602, 603 

Modeof voting; the ballot 601 

Importance of secrecy ; secrecy a personal privilege .... 605 

B^ot must be complete in itself 606 

Parol explanations by voter inadmissible 607 

Names on ballot should be full 608 

Abbreviations, initials, &c 608, 609 

Erroneous additions do not affect 610 

Evidence of snrronading circamstanoes to explain ballot . . . 611,612 

Boxes for different votes ; errors in depositing 613 

Rnrality to elect 614 

Freedom of elections, bribery, treating electors, calling out mili- 
tia, service of process, betting on elections, contracts to 

influence them, &c 614, 615 



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m TABLE OF COHTBNTS. 

Pis. 
Electors not to be deprived of votes ; liability of officers for re- 
fusing votea 616 

Elector's oath when condonve ; conduct of election .... 617 

Effect of irregularitie 617-621 

Effect if candidate is ineli^ble 620 

CaovasB and retnm of votes ; canvassers act miaisterially . . 622 

Contesting elections ; final decision npon, rests with the conrts . 623 
Canvasser's certificate conclusive in collateral proceedings ; 

courts may go behind . . ' 624 

WLat proofs admissible 626 

Whether qnaMcation of voter may be inquired into by courts . 627 



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TABLE OF CASES CITED. 



Tbe flgons girai In tbe ibllowing t«blg iDdkate Ihe paging it Iha lop of the page. 


A.. 


P«g« 


Px. 


Sih-era 


179, 182 


AbboU p. Lindenbower 882 


Alley p. Edgcombe 


219 


Abell B. DonglaM 23 


Almy B. People 
AlTord p. Coffin 


466 




620 


Aberdeen Academj v. Aberdeen 239 


Alton Woods, Case of 


867 


Abington V. North Bridgew»ter 601 


Amftnn v. Damm 


426 


Ableman v. Booth 2, 3«, 347 


Amberg e. Rogers 


868 


AduDB r. Aduna 348 


Amboy b. Sleeper 


199 


t>. Beale 68 




199 


0. Field 62 


American Print Works p. Lawrence 694 


p. H«cket 283, 883 


American Ri»er WaUr Co. p. 


■>. Bamel 596 


Amsden 


690 


p. Ptlmer 113, 284 


Ames V. Boland 


897 


p. People 127 
e. lUJdn 424 


p.'Port Hnron LogDriying 


p. Kive™ 667 


Amey p. Alleghany City 


18, 119 




Amy V. Smith 


16 


p. VoM 848 


Aoable b. Patch 


860 


p. WiBC«wetB«nk 240, 244,247 


Anderson p. Dunn 


138 


Ad Hine Stewner p. Treror 18 


B. Jackson 


60 


AU r. Gldm 226. 872 


p. Kerns Draining 


Co. 638 


A]ab«m», Ac., Im. Co. p. Boykin 377 
Albany Street, Malt«r of 164, 367, 630. 


B, Millikin 


894 




216 


688, 640, 661, 669 


Andres p. Wells 


464 


Alcock p. Cook 857 


Andrew p. Bible Society 


471, 473 


Alcorn e. Uamer 118 




688,696 


AUrich p. ChMhire R.R. Co. 668, 670 


Andrews p. Russell 


876 


p. Kinney 16. 404 


p. State 


819 


p. Printing Co. 486 


Annapolis p. State 


144 


Aldridge p. Williama 66 


Annis p. People 


317 


Alejtmder p. AlexMider 422 




361 


p. Milwaukee 206. 641, 644 


Arbegust b. Loubrille 


499 


P. Taylor 49 


Armington «. Bamet 280, 479, 626. 637 


e. Worthington 66. 64 


Armstrong p. Harshaw 


404 


Allhyer p. State 62. 370 


0. Jackaon 


177,889 


AU«gh»ny City p. Mcaorkan 216 


P. State 


319, 828 


Allen D. Aldrich 839 


Arnold p. Arnold 


478 


p. Archer 371 


B. Mundy 


690 


p. Arden 119 


AiTowsmith p. Bartingiin 
Arundel e. McCullw* 


863 


B. AnnstTong 868, 382 


690 


p. McKeen 250 


Aah p. People 202 


686.596 


B. Staplea 304 




192 


0. Tannton 212 


Astley p. Younge 


441 



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TABLE OP CASES CITED, 



Artrom t. HunmODd 187 


Bakere. Bnnian 163.180, 




p. Cbcinnati 


AtkiDioD p. Bemu 197 


p. Gordon 


0. DunUp 95, 36£, 370 


p. Johnaon 658, 


B. Miriett* & Cincinnati 


p. Kelly 


R.R. Co. 529 


. p. Kerr 


Atlantic & Ohio R.R. Co. v. Sul- 


p. Lewis 


livant £29 


r. IJattocka 


Attorney-General c. Barstow 622, 623 


p. People 


e. Brown 115, 162. 


r.R.na 


187 


p. State 327. 


0. Brunrt 62 


Baldwin p. Bank of Newberry 


e. Cambridge 19S 


e. Green 


e. Detroit & 


p. Hale 293. 


ErinPlMk 


p. New YoA 


Road Co 66, 


0. North Branford 191, 


67 


Ball 0. Gilbert 


t.. Ely 608. 610. 618, 


Ballou p. York County Conunis- 


622. 623. 626 


aioners 


e. Eieter 242 




v.Uoma&Ei- 


Co. 


■ex R.R. 


p.Eschbadi 


Co. 646 


p. Sute 65, 69, 166, 


e. New York 206 


182, 183, 186, 390, 






orSt. Clair 616 


Co. t.. Neabit 


e. Winnebago. 


Bancroft V. Damu 


&c., PliSlk 


p. Lynnfield 


Road Co. 603 


Banea v. Snow 
Bank p. Soperriaora 


Atwater v. Woodbrige 245. 280 


Atwood p. Wellon 477 


Bank of Chenango p. foown 119, 


AuTd V. Butcher 286. 366 




Bank of Columbia p. Okely 366, 


Aurora F. West 47,119 


Bank of Commerce p. New York 


Anstea v. MiUer 14 


Bank of Hamilton v. Dudley 177, 


Avttinetal.,xnre 337 


Bank of Republic c. Hamilton 


Auatin e. Murray 200, 202, 204 


Bank of Rome p. TUIago of Rome 


Aycock p. Mardn 291 


Bank of the Stale p. Cooper 


A^B 1-. Methodirt Church 471, 474 


p. Dalton 




p. Bank of Cape 




Fear 


B. 


Bank of United States p. Halitead 




p. Norton 


Babcock p. Camp 47 


Bank of Utica p. Mersereau 


Bat^elder p. Bachelder 402 


Bank Tai Case 


Backui p. Lebanon 278, 280, 410 


Bankers' Case 


Bacon v. Arthur 694 




p. Callender 361, 381. 389 


Baaka, Ex parte 


V. Wayne County 334 


Banks, The p. The Mayor 


Bagnall v. London &N. W. R. Co. 663 


Banning p. Taylor 

Baptirt Church e. WetbereU 


IX:'^!^ "'S 


Barber v. People 


Bailey c. Fiake 893 


e. Root 


p. Miltenberger 628 


Barbour p. Barbour 


B. New York 239.248,277 


p. Camden 


p. Philadelphia, Ac, R. R. 


Barclay o. Howell's Lessee 


Co. 47,676,678 


Barker v. People 18, 


Bunes e. Atchison 498 


p. Pittaburgh 



DiB.1izedOyGoO<^lc 



TABLE OF CiSKB CITED. 



BuDftrd r. Bartlett S07, 3( 

BAmei p. Atchison 11 

c. Firat Puish in Falmouth ( 

Biuret V. Barnet 377, 3'i 

Barrett c. Crane 4( 

Barring v. Commonwealth 5i 

Barron r. Baltimore ] 

Barronet, Hatter of 310, 3] 

Barrow v. Page ^i 

Barr^, Ex p<vU 346, J! 

E. Lauck 60S, 608, 61 

V. Mercien 316, 3< 

Barthelemy p. People 4i 

Bartbolomfw r. Harwinton 222, 22 
8" 

Bvtiet V. Knight « 

Bartiett c. Crozier 2' 

». Morrig I 
BartOD. Himrod 117, 120, 121, 11 
Barton v. Srraciue 208, 218, 2; 

Bartruffc. Rame^ 8' 

Basi e. Fontleroj i; 

Bates D. DeUvan 4> 

V. Kimball 4C, 90, 1 

E. Rtlfjea 

luld V. Fox 2! 

Batman e. Magowan 6' 

Batre o. State 323, 3: 

Battle c, Howard 1 

Baagfaer p. Nelson 2' 

Baom V. Clause 1 

Baxter, Matter of 2 

V. Winooski Turnpike 2' 

Beach v. Ranney 4 

t.. Walker 370, 8 

Beal V. Nason 3 

Beanl v. Beard 404, 1 

Beardalej d. Bridgeman 1 

e. Smi£ 240, 2 

Beat; V. Knowler 1 



, 95, 167, 168, 176, 



423 



Beebee t>. Sute 9 

682 
Beecfaer e. Baldy 182 

Beeching's Case 343 

Beekman v. Saratoga, &c., K.R. 

Co. 624, 530, 631, 587 

Beene o. Sute 337 

Beers tr. Beera 110 

D. Bot^ford 244 

B. Haoghton 287 

BeU V. Clapp 803, 305 

r. Horrlson 366 

BelleriUe R.R. Co. v. Gregory 57, 

146 



BeUinger ■>. New Tork Central R. 

R. Co. 657 

Bellows p. Persons 68 

Bellport, Parish of, p.Tooker 467 

p. Nashna 542 

Benedict v. Goit 545 

I. Vanderbilt 585 

Bennett r. Birmingham 195, 202 

!. Bull 168 

I. Deacon 426 

0. Fisher 371 

D. Now Orleans 208 

!>. State 478 

Bensley p. Mountain Lake, &c., 

529 
119, 171, 172 
166. 236, 239, 
277, S76, 580 
BentoD p. Bnrgot 16 

Berlin d. Gorhun ' ' " 

Berry v. Carter 

p. Ramsdell aoo 

Bibb Countj Loan Association p. 

Richards 140 

Bidwell o. Whittaker 55 

Bigelow p. Randolph 248 

Bigi;B, Ex parte 337 

Billings p. Dettea 882 

BiUnieyer v. Evana 29S 

Bimelar v. Dawson 16, 404, 407 

BinghamtonBridgeCase 278,281,384, 
394, 895, 396 
Bird, Ez parte 688,596 

Bird p. Daggett 216 

>. Smith 690 

Birdsall v. Carrick 156 

Bishop D. Marks 612 

Bishop's Case, The 349 

Bissell p. Br^ga 404 

V. JefiersoDville 216 

B. Penrose 69 

Black t. Black 403 

827 

Blackford n. Peltier 366 

Blackwood p. Van Vleet 290 

Blain V. Bailey 152 

Blair g. Forehand ■ 696 

. Milwankee, Ac. R.R. Co. 676 
. Ridgeley 262 

Blake p. Dubuque 563 

p. Rich 568 

p. St. Louis 248 

Blanchard p. Stearns 616 

Bkndford S<;hool District p. Oibbs 620 
Btanding P. Burr 119 

Blauhley p. Moser 199 

Bleakneyp. BankofGrcencastle 372, 



375 



DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



Blin ». Campbeii 397 


Boyce v. Sinclair 


875, 379 




Boyd r. State 


316 


V. Hosmer 526 


Boyland v. New York 


248 


V. Kraua 190 


Boyle, Matter of 


157 


Block e. JmcksonviUe 684 


Boyle B. Zacharie 


294 


Blocker V. Bumess 478 


Bracket! v. Norcroas 


361.389 


BloodgDod D. Mohawk & Hudson 


Bnddee b. Brownfield 


168 


E.R. Co. 160, 628, 530, 631, 637. 


Bradford v. Brooks 


95 


660, 561 


r.Cary 


277 


Bloodworth It. Gray 428 


B. Stevens 


581 


Bloom V. Bichsrda 23, 467, 471, 476, 


Bradley, Ex parte 


337 


596 


Bradley t>. Baxter 


117 


Bloomer v. Stolley 125 


B. Buffalo, Ac.. H.R 


Co. 678 


Board ofCommiewoners v. Bright 379 


e. Heath 426 


433.445 


D. Brearsa 226 


V. New York & N. H. R. 


Board of Eicbe o. Barrie 283, 383. 


R. Co. 394, 395 


631,637 


681, 584 


r. People 


482 


Board of Supervisors o. Heenan 143 


Bradshaw t>. Heath 16 


402. 404 


Boardmani.. Beckwith 371 


B.Rogers 


569 


Bodee. Sute 581,582 


Bradt f . Towsley 
Brady b. New York 


423, 424 


Bodwell V. Osgood 432 
Bogardus i.. i^inity Church 23 


216, 217 


p. Northwestern Insnraace 


Bogga V. Merced, &c., Co. 623 
BoUmaa & Swartout, Ex parte 348 


Co. 


594 




397 


Bolton r. JohnB 379 


Bragg e. Merer 
Bnunard p. Culchester 


14 


Bombaugh v. Bombaugh 360 


280 


B. Prentice 339 


V. Gowing 


334 


Bonaparte v. Camden & Araboy 
R.R. Co. 18, 537 


Brandon p. State 


145 


Branham v. Lange 116 


134. 162 


Bond V. Appleton 63 


Braynard b. Marshall 


12 


e. Kenosha 498. 499, 520 




291 


Bonner v. McPhatl 4^2 




365 


Bonsall v. Lebanon 588 




243 


Boom B. Utica 264 


Brcnrster b. Hough 


126.280 


Boon D. Bowers 50, 103 


D. Syracuse 144, 


146, 379, 


BcKHieville D. Ormrod 562 




491 


Booth 0. Booth 372 


Briok Presbj-terJan Church b 


New 


V. Woodbury 226, 488, 559 


York 126, 206 


283, 594 


Borden B. Fitch 16, 402 


Bridge a. Ford 


406 


Borough of Dunmore'a Appeal 193, 


Bridge Company B. Hoboken Com- 


232, 234, 278 


pany 
Bridgeport p. HoUMtonic 


278 


Boaiej e. Mattingley 55 


l.R. 


Bossier v. Steele 146 


Co. 


119, 37$ 


Boston r. Cumniins 168, 266 


Bridgewater p. Plymouth 


384 


Boston, Concord & M. R.R. Co. 


Brig Aurora v. United SUtes 


117 


V. State 660 


Briggs V. Georgia 


78 


Boston & t^well R.R. Co. v. Sa- 


B.Hubbard 


866. 370 


fcin & Lowell R.R. Co. 281 


Brighani p. Miller 


71, 113 


Boston & Roibury Mill-dam Cot^ 


Bright p. Boyd 


387 


poration p. Newman 636, 637 


p. McCulloeh 


144, 496 


Boston Water Power Co. ». Bos- 


Brighton p. Wilkinson 


191, 192 


ton & Worcester R.H. Co. 281, 626 


Brinkmeyer r. Evansville 


248 


Bostwiek 0. Perkins 397. 398 


BrintoD p. Seevers 


378 


Bourland r. llildreth 129, 600, 618 


Briscoe b. Bank of Kentiickj 


9. 14, 


Bourne v. The King 329 




162 




Bristol B. New Chester 193 


236, 237 




p. Supervisors, &c. 


361,381 


Bowman e. Middlt/lon 165, 175, 357 


Britain p. Kinnaid 


407 



DiB.1izedOyGoO<^lc 



TABLE OF CABE8 CITED. 



British Plate Manu&cturing Go. v. 

Meredith 6 

Britton e. Ferry 

Broftdbent v. State 3 

Bn&dfbot's Caaa S 

Brock V. MilliKan 4 

Brockway v. Kinnej 
Brodheftd t>. MUwftukee S23. 4 

Bromley c. People 127, 1 

Bron«on e. Kinzte 286, 288, 2 

V. Newberry 2 

Brook e. Montague 4 

BrDok«r V. ColEn 4 

Brooklyn Central R.R. Co. v. 

Brooklyn City R.R. Co. 198, « 
5 
Brooklyn & Newtown R.B. Co. t>. 

Coney Island R.R. Co. 5 

Brooka v. Mobile School Commis- 



Brower v. O'Brien 622 

BrawD r. Beatty £24, 563 

e. Buian 182 
D. CayDga & Susqaehanoa 

R.fi. Co. 663 

B. Cbadbouriie 689 

V. Coinroonwealth 594 

K. Duplewia 661 

V. Fifield 60 

». Foster 407 

B. GroTer 599 

». Hnmniel 278 
IT. Maryland 485, 466, 581, 587 

». Providence, W. & B. 

R.R. Co. 670 
V. Smith 499 
p. 8tat« 318, 319, 399 
e. Storm 887 
V. Wilcox 62 
e. Worcester 661 
Browne s. ScIio6eld 589 
Browning r. Sprioglield 248 
Bniffeu V. Great Western R.R. Co. 278 
Bnunagim c. TillingEiagt 486 
Bmniiiz e. N. O. Canal & Bank- 
ing Co. 529 
Brans K. Crawford 291 
Brush D. Keeler 614 
Bryan e. Caitell 277 
D. Walker 362 
Bryson e. Brvson 113, 114 
P.Campbell 113 
r. Pbilailelphia 208 
BackiDgham e. Davis 412 
I. Smith 526, 530 
Bodd p. State 391 
BneU p. Ball 500 



BuSklo p. Holloway i 

p. Webster I 

BufTab, &c., R.R. Co. t>. Burket i 
Buffalo Bayou, &u.,B.R. Co. v. 

Ferris ( 

Buffalo & N. Y. R.E. Co. e. 

Brainerd t 

BufTalo & Niagara R.R. Co. p. 

Buffalo . I 

Buffington p. Day 4 

Buford V. Wible 4 

Buikley p. New York & N. H. R. 

R. Co. 678, 1 

BuU c. Conroe 883, ; 

p. R«a<l 117, 118, I 

Bullock V. Carry 212, : 

Bumgardner v. Circuit Court i 

Bunn p. Gorgas i 

p. RLcker i 



Burch p. Newberry 
Bnrdett v. Abbott 
Burdeno c. Aiiiperse 
Burgess p. Clark 

p. Piie 69, US 

'Burgett p. Burgett 
Burghanlt n. Turner 
Burke v. Gaines 
Burlingame p. Burlingame 
Burlington v. Kellar 198 

Burnet p. Sacramento 498 

Burnett, Ex parte 20C 

Bamham p. Boston 

p. Morrissey 133 

p. Stevens 
Burns p. Clarion County 193 

Burrel p. Associated Beform 

Church 
Burrill p. West 

Burt 0. Williams 9J 

Burton V. Burton 
Bush P. Seabury , 

p. Shipman 277 

BuiheU's Case 
Bushnell's Case 

BuMhnelU. Beloit 119 

Butler p. Dunham 119 

p. Farasworth 

p. Palmer 286, 200 

p. Pennsylvania 

p. Porter 

p. Toledo 
Butlerfield e. Buffam 
Buttrick p. Lowell 
Buys o. Gillespie 
Byers p. Commonwealth 
Byrne v. Missouri 



DiB.1izedOyGoO<^lc 



TABLE OP CASES CITED. 



C&belU. Cabell 11 

Calaveras Co. v. BroukwBj- 623, 6i 
Calcote V. SUnton 
Calder c. Bull 9, 89, 169, 31 

p. Kurbr 2) 

Caldwell V. Gale { 

V. Ju«ticea of Burke l: 

California Telej>raph Co. r>. Alca 

Telegraph Co. 2( 

CalkJDg V. Baldwin G60, 5t 

CalkJDB V. Sumner 4' 

Call t>. Cbadbourne 1 

p. Hagger 288, 366, 3f 

Callendar'g Can Si 

Callender v. Marah 206, 5' 

C&lliaon V. Hediick 660, 61 

Calvin V. Reed H 

Cambridge v. Lexington IS 

Camden & Ambo^ R.R. Co. c. 

Briggs 6' 

Canipau v. Detroit 179, II 

Campbell v. Morria Id, 397, it 

n.-Quinlin I 

V. State 3: 

c. UniooBank 106, 168, r 

Canal Co. v. Railroad Co. II 

Canal Trusteea u. Chicago 4! 

Cancemi v. People 319, Si 

Cannon o. Hemphill 1^ 

Cantwell v. Owens J 

Capen ». Foster 601 , 602, 6: 

Carew D. Western Union Telegraph 

Co. 21 

Carey c. Giles 106, 168, 1) 

Cargill V. Power 180. 2! 

Carleton v. People 11 

Carlalake v. Mapleaomm 4! 

Carmann. SteubenviUe & Indiaiia 

R.E. Co. 6. 

Came D. Litchfield 3 

Carpenter o. Dane County 31 

e. Landaff 667, 669, 6: 

V. Montgomery 166, 1' 

n. Oawego & Syracuse 

R.R. Co. b- 

D. Pennsylvania 266, 3; 

t>. People 3; 

r. Snelling 466, 4) 

Carr c. Northern Libertiea 3J 

D. St. Louis 1! 

Carroll v. Otmstead's Leuce 1( 

V. St. Louis 2: 

Caraon v. Carson 266, 21 

t>. Colfman 5> 

V. McPhetridge 6: 

Carter v. Dow 202, 51 



Carter t>. Walker 409 

Oasborus v. People 327 

Case V. Dean 365, 369, 620 

v. Reeve 49 

V. Borabacker 133 

t). Thompson 660 

V. Wildndge 6S 

Cash, Appellant 105 

Cash V. WbitworUi 633 

CassD. Dillon 119,215 

Casdeberry c. Kelly 422 

Cat«s V. Wadlington 689 

Cathcart v. Robmson 23 

Cattin n. Smith 29 

Caulfield v. Bullock 616 

Cayuga Bridee Co. c.Magee 396 

Central Bridge Corporation v. 

Lowell 278, 626 

Central Ohio R.R. Co. v. Holler 570 
Central Park Extension, Matter of 633 
Central Plank Road Co. v. Han- 

naman 146 

Central R.R. Co. v. Rockafellow 478 
Cbadwick v. Moore 291 

Chagrin Falls, Ac, Plank Road 

Co. c. Cane 645 

Chambcriaib v. Lyell 182 

Chamberlain of London o. Comp- 

toD 200, 202 

Chambers v. Fisk 69 

p. State 160 

Champaign v. Patterson 254 

Chandler v. Nash 89, 410 

Chapin v. Paper Works 396 

Chnpmanr. Albany & Schenectady 



:. Co. 



562 



V. Calder 
V. Morgan 397 

V. Smitt 47 

Chappee v. Thomas 403 

Charles River Bridge e. Warren 

Bridge 265, 884, 894. 562 

Charleaton v. Benjamin 476 

Charlestown Brani;h R.R. Co. r. 

Middlesex 561 

Charlton v. Alleghany City 542 

p. Wfltto^i 448 

Chase's Case 462 

Chase c. Chase 400 

D. Cheney 467 

V. Merrimac Bank 243 

V. Miller 800 

Cheaney v. Hooser 118, 2^6, 233, 488, 

491 

Cheever o. Wilson 16 

Chenaitgo Bridge Co. d. Bingbam- 

ton Bridge Co. 278,281,384.894, 

396, 396 



DiB.1izedOyGoO<^lc 



TABLE OP CASES CITED. 



Cbtrokee Nstioo v. Georgia 1 , 62 

CSKMpeake & Ohio Canal Co. c. 

Baldmore & Ohio R.B. Co. 526 

Chertnut o. Shane's Lessee 376 

CbetiTynd v. Chetwfiid 346 

Clucago e. Lamed 498, 501 

V. RobbiDS 14, 248 

V. Wheeler 563 

Chicago, Burlington, & Q. R.R. 

Co. e. Wilson ■ 540 

Chicago, &c., R.B; Co. p. Trip- 

lett 580 

Chidsey r. Canton 247 

Child e. Boaton 264 

Child's Case 347 

Childs r. Shower 185, 369 

Chilca D. Drake 146 

V. Monroe 146 

Chilvera o. People 203, 693 

Chisfaolm v. Georgia 5, 23 

Chrisman c. Bruce 616 

ChHst Church d. Fbikdelphia 280, 264 
Christmu c. Buasell 16 

Chorch e. Chapia 47 

Cindnnsti p. Brjton 202 

p. Eice 477 

Cincinnati Gazette Co. e. Timber- 
lake 448,450 
Cincinnati, &c., R.B. Co. v. Com- 
missioners of Clinton Co. 90, 117 
Cincinnati Gaa Light Co. v. State 202 
Ctaflin P. Bopkinton 219 
CUpp c. Cedar Countf 119, 216, 217 
V. Elj 95 
Clark, Matter of 15 
Clai^ r. Baltimora 870 
V. Buchanan 623 
V. CUrk 111, 113, 284, 361, 370, 
400 
t>. Crane 75 
e. Davenport 516 
V. X>es Moines 194, 196, 212, 
215, 216 
r. Ellis 177 
D. Holmea 406, 407 
v. Irwin 73 
V. JanesTiUe 119, 156, 157, 217 
p. Le Cren 200, 202 
p. Martin 286, 291 
p. McCrearr 361 
p. People 66, 182, 183 
p.Sammona < 47 
p. Washington 206, 248, 260 
CUrk's Adm'r v. Hannibal & St. 

Joseph B. B. Co. 680 

Clarke v. Hocbeiter 118, 186 

t. SUte 266, 269 

V. Van Sorlay 101 



Clay D. Smiih 294 

Clegg p. Laffer 423 

Clemm e. State 823 

Clemens p. Conrad 4S4 

Clement p. Mattison 839 

Cleveland p. Rogers 406 
Clinton v. Cedar Rapids, &&, B. 

R. Co. 558 

0. Draper 14S 

Cliffinger v. Hepbaugh 137 

Clirion V. Cook 618 

Clough p. Unity 663 

Coats V. New York 127, 206, 594 

Cobbett's Case 347 

Cobbett P. Hudson 34? 

Cobum D. Ellenwood 197 

Cochran's Case 839 

Cochran p. Van Surler 66, 101, 105, 

168, 172 

Cockftgne v. Hodgkisson 426 

Coe P. Scbultz 594 

Coffin p. Coffin 1»4, 446 

p. Tracy 897 

Coffman p. Bank of Kentncky 291 

p. Keightley 226 

Cohen v. Barrett 141 

V. Wright ■ 263 

Cohens p. Virginia 12, 68 

Colbum p. Woodwfnth 47 

Cole p. Bedford 228 

p. Medina 248 

Coleman p. Carr 108 

Coles p. Madison Obnnty 191, 277 

CoUier p. Frierion 30 

Colt p. Eves 18, 78 

Colton p. CoromiMioners of Leon 



Co. 



168 



ColmnbuB Ins. Co. P. Curtenius 693 
p.PeoriaBridge 



Co. 



693 



Commercial Bank of Natchez p 

Sute 278 

CommiMioners, &c, p. Bowie 661 

p. Cox 216 

V. DuckeU 208, 

248,251 

p. Martin 247 

Commisiionera of Homochitto 

lUver p. Withers 669 

Commiesioneia of Knox Co. p- 

Aspinwall 119, 216 

Commissioners of Knox Co. p. 

Wallace 119 

Commissioners of St Joseph Co. 

p. Pidge 689, 693 

Commonwealth p. Alderman 825 

p. Alger 572, 694 



DiB.1izedOyGoO<^lc 



TABLE OF CASE9 CITED. 



Cknnmonwealtii t> 



t>. Antheg 323 




v. Archer 810 


474 


t>. Austin S3E 


f>. Knowlton 23 


V. AvM 348 


p. Leech 624 


V. Bacon 276 


e. Lisher 477 


e. Billinga 325 


p. Lodge 23 


V. Bird 280, 383 


V. Lottery Tickets 304 


t>. Blinding 420 


P.Mann 276 


e. Blood 16 




e. Bonner 464 


p. Maxwell 168, 177 


0. Bowden 327 


e. McCloskey 167 


V. BKed 536, 592 


p. McCombs 187 


V. Brickett 340 


V. McLane 411 


t>. Chapin 589 


p. McWiUiams 117. 


t>. Charlestown 690 


119, 124 


V. CUp 424, 439 


p. Meeser 624 


V. CUpp 177, 582 
V. Colton 696 


p. Morey 316 


r. Mullen 317 




p. New Bedfoid 


Ac. 361 


Bridge 289 


e. Cook 326 


p. Nichols 454 


e. County Cmmo»- 


p. Olds 827 


Bionen 618 


p. Painter 119 


v. Crottr 304 


p. Patch 198, 200, 596 


V. Cullen 278 


p. Pittsbni^ 234 


t>. Cummiucn 321 


p. Kttsbnrg, &c., 
R.R. Co. 395 


t. Curtis 314, 816. 


316, 317 


p. Pomeroy 177 


«. Dailej 319 


p. Porter 323. 336 


«. Dana 309 


V. Putnam 402 


V. Dewey 146 


p. RandaU 340 


e. Duane 861,381 


p. Reed 411 


e. Imerr 411 
e. Erie'R-R. Co. 486 


e. Bichter 642 


p. Roby 328 
p. Rock 323 


». Erie & North- 


east. R.R.CO. 196, 


p. Roxbuiy 189 


198, 645, 647 


e. Ryan 411 


o. FeHs 327 


p. Semmea 310 


e. Fisher 477. 669 


p. Snelling 465 


V. Gamble , 277 


p. Stodder 202 


e. Gas Company 200 


p. StoweU 327 


V. Goddard 327 


p. Taylor 316,316 


t). HeJI 272 


p. Tewk8but7672,694 


V. Harman 316 


p. Towles 15 


r. Hartman 173 


p. Tuck 325 


V. Hartnett -52 




r. Hitchlngs 177,178 


p. Van Tuyl 823 


p. Holbrook 684 


p. Waite 696 


P. Howe 682 


p. Wilkinson 645 


t. Hunt 23 


p. Williams 367 


V. Judges of Quar- 


p. Wolf 477 


ter SesBionB 118. 


e. Wood 326 


119 


p. WortMBter 200, 688 


p. Kendall 682 


Commonwealth Bank p. Griffith 13 


». KimbaU 177, 309, 
361.381 


Company of Free Fishers v. Gann 623 
CoucMd 0. Boicawen 212 


e. Koapp 316, 323. 


Concord R.R. Co. o. Greeley 630 


330 


Cone P. Cotton 404 



DiB.1izedOyGoO<^lc 



TABLI OF CABE8 CITED. 





S62 


Coyner p. Lynde 


Conkej' e. Hart 


286. 288. 292 


Craft p. State Bank 


Cmnecticot M. L. Inannnce Co. 


Craig p. Burnett 


p. Cross 


28 


V. Dimock 


Connell o. Coniwll 


S76 




Conner p. Elliott 


16 




e. New York 


143, 146. 276 


R.R. Co. 647 


Connor r. Fnlwlni 


226 


Crandallp.Jamea 47 


Comd 0. Itluea 


248 


p. Nevada 




Tone V. 


p. People 


. Ash 


197 


P.Stat* 16, 


CoDwar f>. Cable 


368, 370, 383 


Cnne p. Megiunis 113, 114. 
Crawford p. Delaware 642, 643, 


p. T^lort Ex'r 
p. Wiveriy 


593 


620 


P. Wibon 


Conwell P. O'Brien 


198 


Creal p. Keokuk 206, 264. 


Cook p. Hill 


433 


Crenthaw p. Slat« Biver Co. 168, 


p. Moffat 


11,294 


Crone p. AngeU 


p. Vimont 


49 


CroniM p. CroniiO 113. 


Cooley p. Board of Wardens 485. 687 


Crosby p. Hanover 


Cooliage r. Williuna 


396 


e. I^on 
Crowell V. Hopkinton 219, 226. 


Cooper p. Barber 


467 


p. Cooper 


402 




p. Greeley 
p. McJunldn 


424,467 


p. RandeU 


940 


Crowley o. Copley ' 612 


p. Stone 


■ 457 


Croiier p. Cudney 


p. Snnderland 


406,407 


Cubbison e. McCreary 


p. TelCur 


89,- 169, 182 


Cummiog V. Police Jury 


p. Williama 


626.680 






u-xuuu^ , ^^ 


day 


680 


Currao p. Scbattack 669, 


Cope* p. Charie«OD 


119 


Currier p. Marietta & CIncinnaU 


Corbin P. HiU 


369 


R.R. Co. 


CoifieU p. Coryell 


16, 397, 486 


CuTTT p. Walter 


CorieU p. Ham 


286 


Curtis p. Curtis *' 


CorliM p. Corlui 


78 


p. Gibbs 


Corning p. Greene 


118. 119 


p. LeaTitt 298, 362, 


CorwitTp. New York & Erie R.R. 


p. Mussey 


Co. 


678, 679 


P. State 


Cortar p. Bnuh 


281 


Coslunan o. Smith ' 


Corter p. New Jervey R.R. Co. 669 


Curie V. Douglus 288, 


Cote* p. DaTenport 


264 


Cutlip p. Sheriff 146, 




Cutts P. Harde 




168, 182 




Conch «. UcKee 


866 


Cypres* Swamp Draining Co. e. 
Hooper §32. 488, 


Couant p. People 


65, 69. 182 


Corer o. Baytown 


219 




CoTington p. Southgate 


882. 491, 493. 

499 

. 472 




Cowan p. Milbonm 


D. 


Coward p. WellinglOQ 


435 




Cowen p. We»t Troy 


198 


Dade 0. Medcalf 


CowKill »■ Long 
Cowlea p. Haita 


381 


DaJley p. Reynolds 


49 


Daily Post Co. v. McArtfanr 
Dakm D. Hudson 


Coi p. Bimkor 


424 


p. Coleridge 


313 


Dalby p. Wolf 


Cose p. Martin 


291 


Dale t. Lyon 

p. The Governor 




426 



DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



Dale e. St«te 8 

Dalryinple v. Mead 5 

DincMter r. HewaoD 4 

Dane Count]' v. Dunning 4 

Darcy n. Allain 3 

Dargan v. Mobile 2 
Damngton v. State Bank of Al- 

Dart V. Houitrn 2 

Dartmouth College v. Woodward 

126. 192, 236, 260, 276. 278, 2t 

3.53, 5 

Dath e. Van Kleek 62, 92, 94, 2t 



De CordoTa v. GalveatoD 
Dedham v. Natick 
De Jarnette v. Ha^Dea 
Dekraft p. Barney 
Delaplaine c. Cook 
Delegal e. HigUey 



Delmonico v. New York I 

De MiU D. Lockwood ; 

De Mow V. Newton '. 

Dempacy v. People ! 

Den V. Downam I 

V. Dubois 

D. Bdd 

t>. Scbenck 
Denbam v. Holeman 
DenisoD v. Hyde ' ■ 

Denning d. Oorwin 
Denny o. Mattooa 108, : 

Denton c. Jackaon 197, 212. : 

E. Polk 
Depew V. Trustee! of W. ft E. 

Canal 25, 689, 692, , 

Derby Turnpike Co, e. Parka 



DaTies t>. McKeeby 64, 


367, 363. 


Detroit v. Blackeby 


248 




699 


V. Corey 


248, 262 




200 


Detroit Free Proas p. McArthur 457 


Davis V. Bank of Fulton 


143 


Deutzel x. Waldie 


377 


0. Holbrook 


614 


De Varaigne v. Fox 
Devon Witehes, Caae of 


559 


V. Minor 


365 


318 


V. New York 


206.207 


De Voas v. Richmond 


216 


e. State 116, 143, 146 


162, 177 


Devoy p. New York 
DevneB v. Phillips 


185 


c. SUte Bank 103 


372, 377 


316 


p. Wood 


49 


140 


Dans'B Lessee i>. Powell 


146 


Dewey e. Detroit 


■ 248 


389 


Dexter v. Taber 


422 


Davison v. Duncan 


459 


Dibdin p. Swan 


457 


D. Johoanot 


103,390 




667,669 


Dawson ». Coffinan 


23 


Dickinson p. Hayes 


47 


p. Duncan 


455 


Dickey e. Hurlburt 


619 


V. Shaver ' 


168 


e. Tennison 


631, 662 


c. State 


269 


Dicks t. Hatch 


397 


Day ». Buffington 


484 


Dickson V. Dickson 


113 


V. Galli? 


13 


DJkeman t. Dikemaa 


200 


t=. Jonea 


600 


DiUingbam «. Snow 


197. 620 


D. Kent 


618 


Dimes V. Proprietors of 


Grand 


0. Munaon 


53 


Jnnction Canal 


411,412 


Dean it. Gleaaon 


382, 516 


Dingier n. Boston 


533.558 


, V. Sullivan R.R. Co. 


638, 563 


Disbon p. Smith 602, 618, 622, 623 


Dearborn p. Boston. C. & M. E.R. 


Diatrict Township e. Dubuque 66, 67, 


Co. 


670 




64,76 


Deaton b. Polk Co. 


670 


Ditson V. Ditson 


402,406 


Deblois 0. Barker 


688 


Diveley p. Cedar Falls 


215, 411 


Debolt V. Ohio Life Ins. & Trust 


Dixon V. Pannelee 


334 


Co. 


126 





Co. 



482 



p. State 

Dodge p. Connty Commissioners 570 

p. Gridley 152 

p. Woolaey 12, 126, 280 

Doe V. Beebe 62fi 

p. Braden 12 

p. Douglass 26, 102, 168 

p. McQuilkin 520 



DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



Dole r. The Governor 




280 


E. 


Done e. People 
DoniwDr D Sum 




454 


Pf 




328 


Eakin v. Rarob 66 




318 


Earle v. Picken 314 


DoTf^ t. Boston 




499 


Eailev V. Mom 426 


Dorl»n V. East Braodjwiiie, 


Ac. 




Eaion p. State 182 


R.R. Co. 




570 


East & West India Book, &c., Co. 


Dorr, Ex parte 

Dorranco Street, Matter of 


345 


346 


V. Gattke 663 




588 


East Hartford v. Hartford Bridge 
Co. 206, 239, Zn 


Doraey, Matter of 




64 


Doner v. Doner 




402 


Eastman e. McAlpin 141 
p. Meredith 240, 247 


t>. GUbert 




103 


DoM D. Ckmnnonwedth 




323 


East Saginaw Salt Mannf. Co. V. 
East Siginaw 280, 284, 383 


Doth«ge t. Stewart 




389 


Donglitr V. Hope 


78 


402 


East St. LotiiB e. Wehmng 20* 


e. Somerville & Eastern 






R.R.CO. 565 


567 


570 


Eaton t>. United States 361, 361 


Donglasa v. Plwwrrille 


191 


195 


Eddings e. Seabrook &41, 542 


V. Turnpike Co. 




545 


Echols V. Staunton 630 






592 


Edgarton r. Hart 409 


Dow'a Cate 




15 


Edwards v. Jaggeri S78 


Dow r. Norri. 168 


182 


184 


t>. James 78 


Downing v. Porter ■ 




304 


p. Pope 104, 106 


e. WilsoD 




424 


Edward's Lessee v. Darby 69 


DoTle 9. O'Dobertv' • 
Dnke r. Philadelphia, Ac., 




442 


Eels r. People 178. 180 


R.K 




ERvptian Le* ee Co. •. Hardin 496, 511 


Co. 




579 


Eiraer o. Richards 47 


Drehman p. Stifle 360 


262 


289 


Elam r. Bad(;er 425 


Drennan v. People 




52 


Eldridge e. Smith 626. 531 


Drew e. Da>iB 




520 


Election Law, MaUer of 614 


Dronbereer b. Reed 




662 


Elijah B. State 327 


Druliner ». Slate 




605 


Elliot P. Ailsburj- 423 






423 


Elliott B. FairhaTen A Westrille 


Dubois v. McLean 


13 


104 


R.R. Co. 660 


Dnbnque Co. r. Rjulroad Co 


119 


217 


t>. People 329 
Ehnendorf B. Cannichaei 96 


Dncat e. Chicago 




16 


Duchew of RincntoD's CiM 
Dodley B. Mayhew 




.47 


B New York 78 




897 


Else r. Smith 804 


Dnke «. Rome 




208 


Elwell 0. Shaw 520 


Didany<> Leuee r. 'nighinan 


376 


S77 


Ely e. Thompson 177, 186, 360 


Dnncan r. Thwaite* 




448 


Emery p. Gas Co. 499 






442 


Embury o. Cooner 163, 181. 182,-630, 


Dancombe e. DanieU 




437 


640 


». Prindle 




145 


Emerson b. Atwater 50. 62 


Dnnden e. SnodgraM 




S71 


Empire City Bank. Matter of 402, 404 
Endfield Toll Bridge Co. v. Hart- 
ford & N. H. R.R. Co. 281 




200 


202 


t>. Power* 




441 


Dnoman r. Bigg 




425 


English p. New Haven, Ac., Co. 384 


Dunn V. Sargeanl 




361 


Engle p. Shurtz 362, 381 


V. Stale 




318 


Erie Railroad Co. t>. New Jersey 486 


Dnrach'a Appeal 
Dorant e. ^*ex Co. 




190 
61 


t. People 




817 


Ernst B. Kunkle 607 


Dnrham b, Lewuton 96 


168 


391 


Ervine's Appeal 90, 106, 106. 176. 852, 


DoTerge'i Heir. v. Salter 




151 


363 


Drckmanr. NewTork 




407 


Esmon b. State 328 


Djer >. Morris 




423 


Essex Co. B. Padfic Mills 70 


e. Tiucalooia Bridge Co. 


396 


Essex Witehe^ CaM of 3U 



DiB.1izedOyGoO<^lc 



TABLE OP CASES CITED. 



Ette ». Strons 49 

Eitep r. Hut^man 103, 104 

Est/ c. WettiuiQister 228 

Etberidge b. Oibom 47 

Evani c. Montgoiuerr 265, 287 

e. Myen 69 
Eraiuville, &c.. B.R. Co. c. Dick 644 

Ewing V. FillBy 618, 624 

Ezchloge Bulk e. Hines 177, 493 

Esekiel c. Disoa A5 



Facey b. Fuller 407, 

Fiirbeld c. Rateliffa 

Fairhurste. I/ewia 

FairiDBB d. Ivea 

F«Iconer v. Campbell ' 

Fales V. Wadsworth 

Fanning c. Gregoria 

Farmers & Mechauica Bank e. 

Butcher* & Drovers B&nk 
Farntera & Uechtnica Bank «. 

Smith 69, 18^ 

Farney d. Towie , 

Famsworth e. Vance 
Farnum v. Concord 
Farr v. Sbermin 
Fawoett p. Fowlisi 

e. York & North Mid- 
land O-E. Co. fi 

Fenton v. Garlick 13, 

Fenwick c. Gill 
Ferguion v. Landraw 






630 



Ferraria v. Vaaconcelloi 

Fetter, Matter of 15 

Field V. Gibba 16 

V. People 63, 115 

Fifield V. Cloae 463 
Fire Department e. Helfunstein 15 
: Noble 



e. Wri^t 
ation t>. Loun: 



15 



570 



Fiiher c. McGiir 177, 306, b8S, 594 
Fisher's Leasee e. Cockerell 13 

Fiaher'a Negroei o. Dobbs 370 

Fiahkill v. Fithkill & Beekman 

Plank Boad Co. 144, 146 

Fiske n. Hazzard 219 

V. Franaingham Manuf. Co. 536 
Fitchbnrg B.B. Co. p. Grand 

Junction E.R. Co. £76, 679 



Flanagan e. Fbiladelphia 694 

Fletcher u. Aubuin & SrracuBe B. 

R. Co. 560 

V. Lord Somen 60 

D. Oliver 63, 142, 146 

V. Peck 88, 169, 182, 260, 266. 
274, 559 
Flint o. Pike 448 

Flint River Steamboat Co. c. Fos- 
ter 167, 182 
FlopenUne r. Bartan 101, 102 
Floumoy v. JefferaonviUe 410 
Floyd B. Mintsey 49 
Foley B. F>:ople 310 
V. ijtate 14«, 149, 310 
Fonvard b. Adanu 423 
Foote r. Fire Department 594 
Forbea d. Halaoy 368 
Ford B. CUcago & N. W. R.B. 

Co. 588, 648 

Fort Dodge v. Diatrict Township 616 
Forward b. Hampshire, Ac., Canal 



Co. 



463 



D. Kenosba 5 
o. Neilson 

t>. Scarffe 602, 6 

Fowler b. Chatterton S 

p. Daovers 2 

c. Halbert 3 

p. Peirce 1 

Fox, Ex parte S 

Fox p. Ohio 18. 2 

e. W. P. Railroad Co. 5 

B. State 2 

Franklin a. State 3 

Franklin Bridge Co. p. WoM 168. 1 

Frankfort v. Winterport 138, 2 

Fraiy p. Frary 4 

Freeborn o. Pettibone 2 

Free Fiahers'' Co. v. Gaan 5 

Free Holders. &c., b. Barber 2 

Freeland c. Hasting 228, 4 

Freeman b. Hardwick 6 

Frees p. Ford 1 

FreleJKh p. State 2 
French p. Braintree Manuf. Co. 5 



P.Camp 
p. Kirkli 



land i 

Frisbie b. Fowler ' 

Frolickstein p. Mobile 
Frost p. Belmont 135, 191, ! 

Fry p. Bennett 
Fuller p. Dame 137, 



DiB.1izedOyGoO<^lc 



TABLE OF CABB8 CITED. 



Fuller e.'GrotoD 210 

V. Hampton 245 

Fnllertonr. Bank of United Sutea 13 

Fulton V. DaTenport fiOO 

i>. McAffee 13 

Ftirmui V. Nev Yoii 55 

r. Nicbol 384 

Fnnnui Street, Matter of 498, 542, 
667 

FnrniN e. Hudson River B.R. Co. 563 



6. 

Gabbert v. BaJlroad Co. 144, 146 

Gaioes p. Buford 386 

tt. Oatnei 1 13 

V. Bobb 119 

Gale V. Mead . 78 

V. South Berwick 311 

Galen e. Clyde & Roie Flank Road 



Co. 



247 



Galena & Chicago Union R.R. Co. 

e. Appleb; 676, 

Galena & Chicago Vntoa %R. Co. 

V. Dill oau 

Galena & Chicago Union R.R. Co. 

V. Loomii G76, 560 

Gallatin n. Bradford 200, 202 

Gantlej'i Leesee n. Ewing 289 

Giirbelt, Ex parU 



J.Lee 



12 



Gaidocr r. Newbing 626, 6SS, 567, 
660,561 
p. Ward 616 

Garland, £xj>ar<e 260,262,266,266 
Garr v. Selden 441, 446 

Garrard Co. Court v. Eentuckj- 

Rirer Narigatioo Co. 179, 216, 393 

GarreU c. Beaumont S70 

V. Doe 370 

p. St. Lotna 506 

GarriMMt e. New Yoi^ 248 

V. 'nUinghait 486 

Gaacoigne e. Ambler 423 

GaskiU V. Dudley 246 

Guei D. Neal 616 

Giihcn»le V. Miall 489, 440, 467 

Gaulden r. State 337 

Geebrick r. State 117, 123, 124 

Gelpecke e. Duboqne 119, 215 

Gentile e. State 129, 594 

Gentry v. Griffilb 133, 172 

George e. Gillespie 47 

Geoicia,&c.,R.R. Co. e. Harris 397, 

399 

Gerard p. People 327 

Gennan, &e., Cong. v. Fressler 46? 



German Reformed Chnrcb e. 

Seither 467 

GcrriBh v. Brown 689 

Gibbons e. Mobile, &c„ RR. Co. 

119, 379 

e. Ogden 9, 68, 591 

Gibbi V. Gale 367 

Gibson, Ex parte 348 

0. Armstrong 467 



0. Bibbard 378 

s. Uaton 866 

Giesr o. Cindonati, W. & Z. R.R. 

Co. 641,568,670 

Giffofd V. Railroad Co. 146 

Gilbert V. People 442, 446 

Oildersleeve t. Petite 408 

Gilkeson v. Frederick Jnatices 190 
Gill p. Parker ' 682 

Gillespie e. Palmer 616, 619 

p. State 146, 149 

Oiltilaud t. Sellers's AdinY, 397 

GiUlniTater p. Mississippi & Allan- 
tic R.R. Co. 41,528 
GUman p. Lockwood 294 
t. Philadelphia 9 
p. Sheboygan 280 
Gilmer p. Lime Point 525, 529, 537, 
561, 662 
Ginn p. Rogers 397 
Girard e. Philadelphia 192 
Gladden p. State 319 
Gleuon t. Uodd 16, 404 
p. Gleason 402 
Glover p. Powell 646, 590 
Godard, Petitioner 198, 200, 688 
Goddard p. Jacksonville 681 
Goddin p. Cnimp U9 
Goenan p. Schroed«r 290 
Good e. Zercher 876 
Goodell p. Jackson 50 
Goodenough, In re 348 
Goodman e. State 817 
Goodrich p. Detroit 196 
p. Winchester, £c., Co. 498 
Goodtitle p. Eibbee 626 
p. Otway 60 
Gordon p. Appeal Tax Court 126, 280 
V. Caldcleugh 13 
p. Farrar 616 
p. lograham 90 
Gorham p. Campbell 618 
p. Springfield 118 
Goshen ». Richmond 884 
p. Stonington 167, 373, 376, 
879 



DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



Gotling e. Teler 200 

Gosiler P. G«oi^town 206, 512 

Gnuld r. HudsoQ River R.R. Co. 611, 
641 
V. Sterling 196, 215, 216, 879 
Gove v. Epping 219 

GoTeroor v. Porter 94 

GraluiD, Ex parte 62, 870 

Gnunrasr Scbool 0. Burt 278 

Granby n. ThuntoD 191 

GraDd Rspida v. HarliM 195 

GraniiAban o. Huwibftl, &c., R.R. 

Co. 676, 680 

Grant e. Brooklfii 252 

V. Courter 119, 172 

V. Leach 396 

Gra<rei n. BUnchet 423 

V. Olia 206, 642 

Graf t>. First Diririon, See. 647 

v. PenOand 483, 433 

D. Stale 394 

Graf's Leuee c. Askew 62 

Great Western E.R. Co. ». Deca- 



Great Palls UanuGuitaring Co. i 

Femald 
Green v. Biddle 

v. Chapman 

V. Coliiiu 

ti. Custard 

, o. Mayor, &c. 
D. NeaPs Lessee 
V. Portland 
V. Reading 
V. Sarmiento 
V. Van Buskirk 
0. Weller 
Grecncaatle, Ac., Co. e. State 



578 



Gn;enca3tle Township t 



Black 67. 68, 

72,78 
905, 852, 410 



Greene c. Briggs 

V. James t; 

Greenlaw v. Greenlaw 40£ 

Greenough d. Oreenaugh 90, 91, 106, 



V. Purtlow 
Grier o. Shaekieford 
Gnifin c. Martin 

V. McKenxie 

V. New York 
V. Ranney 
e. Wilcox ; 

GiifiSth t>. Crawford Co. 



Grim r. Weisenberg School Dis- 
trict 373, 
Grimes v. Coyle 426, 

Grogan v, San Franinsco 
Groabeck b. Seelej' 865, 

Grosvenor c, Cbesley 
Guard p. Rowan 
Quenther v. People 
Guild B. Rogers 286, 

Guilford D. Cornell 146, : 

r, Superriaors of Che- 
nango 210, ^7, ! 
278, 879, 
Guillotte V. New Orleans 
Gutick ti. New 

O.Ward 
Gut o. State 18, 



H. 

Hadden v. Chom 467 

r. The Collector 141 

Hadduck'B Case 197 

Hadley r. Albany 623, 624 

Hadsell o. Hancock 210 

Hagentown v. DecherC 180 

Haggard r. Hankins 146, 146 

Haighc p. Grist 481 

Haines v. Leiin 110 

Hakewell. Matter of 948 

Hale e. Lawrence 626, 694 

Haley b. Clark 115 

e. Taylor 340 

Hall r. Brune 146 

t>. Marks 410 

o. Washington County 334 

V. Williams 16, 404 

Hallock D. Franklin Countr 663 

p. Miller ' 424 

Halstead c. New York 194,210,211. 

216 

Ham D. McClaws 165 

e. Salem 633 

Hamilton p. Carthage 254 

p. Eueeland 28 

p. St. Louis County Court 87, 

66 

Hammond p. Anderson SO 

p. People 348 

Hampshire p. Franklin 193, 331, 232, 

491 

Hampton p. Coffin 563 

I V. McOonnell 16 

I Hamrick p. Rouse 127 

I Hand p, Ballon 368 

Handy n. Chatfield 288, 292 



DiB.1izedOyGoO<^lc 



TABLE OF OABE» CITED. 



Handje. State 
Hanef t). ManbRl) 
HadiicI v. Smidi 
Hanbrer r. Turner 
Hansen e. Vemon 



Hani r. Nearing 866, 956 

Hardenbiirg o. Lockirood 545 

Hudiman B. Downer 2SS 

Harding v. Aldeu 402, 405, 406 

V. Goodlet &3S 

Hardwick v. Pawlet 840 

Hare o. Hare 402 

e. HeUor 433 

Harlan k. People ' 18 

Harp V. Osf^ 840, 841 

Harper v. Ridunbon 561 

Harrineton v. Conntr Commia- 

rionera 563 

Harria v. Dennie 12 

c. HaninKton 432 

«. Harria 47 

e. InhabitantflofUarblehead 389 
v. Morris 339 

V. Roof 137 

t>. ButledgB S78 

HamsoD v. Bridgeton 192, 193, 289 
D. Buab 426, 426 

e. Harriaon 402, 406 

r. State 168 

Harrison Justices v. Holland 191 

Harrow r. Mjera 58 

Hart D. Albanr 204, 572, 594 

V. Brooklyn 248, 588 

D. Evans 610 

V. Jewett 47 

c. Henderson 369 

Hartean v. Harteau 402 

Hartford Bridge Co. v. Union Fer- 
ry Co. 168, 182 
Hartland r. Church 499 
Hartt B. Harvey 622 
HartuDg r. People 269,329,361,381 
HaWey r. Lackawaaa, &c., R.R. 

Co. 041, 543 

r. Thomas 867, 581 

Harwood r. Astley 438 

Hasbrouck c. Milwaukee 213, 230, 879, 

381 

V. Sblpman 291 



Hawkins e. Barney's Lessee 



Hawthorne v. Calef 
Hay V. Cohoes Company 536, i 
Hayden v. Foster i 

V. Noyea 200, ; 

Hayes V. Beese 

Hayner v. Tbomaa I 

Hays V. Risher i 

Haywood e. SaTaanali 
Hazen r>. Eases Company i 

Head v. Providence, &c., Co. ! 

Heath, Ex parte 78, 616, 618, 621, t 
Hector d. State '. 

Hedley v. Franklin County 1 

Heguman c. Western R.B. Co. I 
Hendriuk'B Case 

Hendrickion n. Decow < 

V. Hendrickson 166, 1 

Henley k. Lyme Regis 248, 1 

Henry t. Chester i 

r. Dubuque & Pacific R.R. 



Co. 



66S, 562, 567 



v. lilson 
Hensbaw r. Foster 83, i 

Henton r. State 
Hepburn's Case 

Hepburn B. Curts 361, . 

Herber v. State 

Herrick v. Randolpb 280, ' 

Hersey v. Supervisors of Milwau- 
kee -615, 620, . 
Herahaw v. Taylor 
Hess c. Wertz 
Hewitt F. Prince 
Heydt^nfeldt v. Towns 
Heyrron, Exparte 
Heywird v. Judd 286, 
D. New York 164, 181,6 

Hibbsrd D. People 306.. 

Hickerson d. 6enson i 

Hickey r. Hinsdale 
Hickie v. Starke 



'ins V. Chicago £ 

iligb's Case 6 

Hildreth v. Lowell 6 

Hill, £i parte 3 

Hill's Case 3 
Hill V. Boyland 

i>. Comaiissioners 1 
V. Higdon 498, 606, 507, 609, 6: 



V. Hill 
V. Kessler 



DiB.1izedOyGoO<^lc 



xzxii 


TABLE OP CASES CITED. 






Pw. 




P.W 


Hill t. People 


319, S98. 399 


Hottentot Venna Caae 


347 


r. SunSerknd 


95 




23 


V. WellB 


•ill 


House p. Rocheiter 


640 


HUlywd r. MiUer 


37'J 


Houston p. Moore 


18 




899 


Howard. Ex parte 
Howard v. SBielda 


116 


Hine, The, v. Treror 


18 


618 


Hinea c. LMvenworth 


498.507 




432 


Hingluim, Ac-., Turnpike Co. o. 


p. Zoyer 


389 


Norfolk Co. 


164 


Howell V. Buffalo 


S54 


Hingle V. Slate 


142, 143 


Hoiie e. Wright 
Hoyt r. Sheldl,n 


16,404 


Hin»en ». Lott 


486 


13 


Hlrn e. Sute 


162, 288 


Hubbard p. Brainerd 


362, 870 


Hi» B. B«rtlett 


133 


Hubbell p. Hubbell 


402,405 


HoftK f . Uatdi 


422 


Huckle D. Money 


307 


How r. Wood 


444,445 


Hudaon p. Thome 


200 


Hosre v. SUverlock 


448 


Hudspeth c. Davla 


291 


Hoboken D. dinner 


At, 119, 168 


Huff V. Bennett 


448,464 


517 


Hughes p. Hnghea 




Hodgea V. Buffalo 


194. 211 


Hughey'a Lessee o. Horrell 
Hull p. Hull 


882,499 


HodgBon p. Millwani 


362, 363 


402,406 


». Scarlett 


443 




699, 624 


Hoffman v. Locke 


409 


Bumea p. Tabor 


304 


V. State 


321 


Humphries r. Brogdea 
Hunsaker e. Wright 


673 


Hogg V. Zaheiville Canal M&nuf. 


126, 515 


(^ 


23,694 


Hunscom d. Hunscom 


478 




354 


Huutp. Bennett 


436,437 


Hotbrook V. Finnef 


360 


p. Luoaa 


362 


V. Muiray 


16 


Hunt's leasee r. McMahon 


389 


Holdeu e. James 168 


, 366, 390, 391 


Hunter, Ex parte 


268 


Holder p. State 


322 


Hunter p. Cobb 


484 


Holland r. Oagood 


78 


Huntsville p. Phelps 


202 


Holle; V. Burgesa 


423 


HunUinger v. Brock 


286 


Hollirter B. Hollister 


402 


Hurley p. Van Wagner 


614 


HoUowfty V. Sherman 


287, 361 


Hurrtp. Smith 


348 


Holinan'< Heir, p. Bank of No.- 


Huae t>. Merriam 


519 


folk 


101, 404. 405 


Hutcheson p. Peck 


840 


Holmei V. Holme* 


284,406 


HuUon 0. New YoA 


248 


t. Jenniaon 


13 


Hyatt p. Bates 


47 


Holtr. Scolefield 


422 




248 


tp. State 


269 


Hyde p. Melvin 


616 


Home e. Beotinck 


442 


p. White 


163 


Home of the Frieodleai 


p. Etouae 280 






Hood 0. Finch 


662 


I. 




V. Lynn 
Hooker r.^ew Haven, 


211 




Ac., Co. 541, 


Igoe p. State 


146 




543, 544 


Uege 


Hooper D. Emery 
Hoover v. Wood 


195 


p. Cooper 
Ulinois A Michigan Canal p 
cago & R. I. R.R. Co. 


198 


162 


Chi- 


Hope p. Jackaon 


.861 


282 


Hopkini D. Beedle 


422 


lUinois, Ac. Co. p. Peoria 


Ac., 


p. HopUna 


402 




692 


Hopple p. Brown 


196. 216, 240 


Imlay p. Union Bran<i R.R. Co. 548, 


Hopps r. People 


309 




651 


Hopiou, In re 


346 


Indiana Central R.R. Co. p. 


Potta 82, 


Horn p. Atlantic & St 


Lawrence 


143 


144, 149 


R.R. Co. 


678, 679 




O. D. 


Hosmer p. LoveUnd 


435,446 


Eercbeval 283 


672. 675, 


HotchkiM p. Oliphaot 


,463,464 




578, 579 



DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



IndikDftpolia, &c, B.R. Co. v. Town- 
send 67S, 579 
lagaUa v. Cole 55 
Inge e. Police Jurjr 633 
Inglee D. Coolidge 12 
iDei^ham v. ReMn 63 
Ii£abitanta of Springfield o. Con- 
necticut KverK.E. Co. 626,645,547 
Innun v. Foster 454 
V. Ritehle 381 
B. Y»rd 616 



Jack e. Thompaon 
Jftckowfty t). Denton 
Jackson, Matter of 
Jackson e. Butler 
r. Chew 



o. Lvon 361 

p. Mnnaon 262 

e. KutUnd & B. R.R. 

Co. 669, 679 

e. Shawl 129 

V. Vedder 49 

o. Walker 614 

V. Winn's Heir* 660 

D. Toung 78 

Jacob V. Louis-rifle 570 

Jacobfl V. Cone S19 

r. Fyler 422 

V. Smallwood 291 

Jamea c. Commonwealth 18 

t. Rej^olds 364 

V. Stull 290 

Jameson e. People 197 

Jane c. Commonwealth 18 

Janson v. Stewart 433 

Jarria v. Hathewftr . 442 

Jefferson Branch Bank v. Skellej 13, 

32, 126 

Jefferson City c. Conrtmire 200 

Jeffries V. Ankeoy S94, 616 

D. William* 573 

Jennings p. Paine 441, 446 

r. Stafford 406 

Jerome v. Roas 526 

Jett r. Commonwealth 18 

Joannes v. Bennett 426 

John & Chenj Streets, Hatter or367, 

530 

Jofauon p. Bentler 374 

p. CampbeU 227 

p. Common Conncil S17 

«. Commonwealtli 167 



Johnson p. Jones Si 

V. Hi^^ns 146, 186, 286, 2! 
p. Joliet & Chicago R.R 

Co. 71, 129, 11 

p. Philadelphia 195, 2 

p. Rich i: 

p. Riley 

p. Stack 1 

p. SMrk County 2 

Joliet & Northern Indiana R.R. 

Co. p. Jones 5 

Jolly 0. Twre Haute Drawbridge 

Co. 26, 6' 

Jones p. Carter . 3. 

p. Cavins 1. 

D. Colurobus 1 

p. Fletcher 3 

p. Galena, &c., R.R. Co. 6 

p. Harris 4 

p. Hutchinson 1S4, 1 

p. Jones 1 

p. Keep's Estate 4 

D. New Haven 3 

V. People 5 

p. Perry 92, 104, 3 

p. Richmond 190, 2 

p. Robbins 179, 4 

p. State 6' 

Jordan p. Woodward 6 

Joameay e. Gibson 877, 3 

Joy p. Tbompaon 2 

Joyner r. Scnool District 6 

Judson p. Bridgeport 6 



K. 

Kaine, Matter of 
Kane p. Baltimore 

p. People 
Kamey p. Poialey 
Kavanao^ p. Brooklyn 
Eayser p. Bremen 
Eean ». McLaughlin 

p. Stetson 
Kearney, Ex parU 
Kearney p. Taylor 
Keen p. Stete 
Keene p. Clarke 
Keitb p. Ware 
Keller p. State 
Kelley p. Corson 

p. McCarthy 

p. Partingten 

P.Pike 

p. Sherlock 

p. Tinting 
Kellogg, £'zj)ar<e 1 



DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



Kellogg t>. Oibkoib 1 

V. UoioD Co. 6' 

Eelae; u. Bang 5. 

Kemp, Inre 9 

Kemper c. McClelland fil9, 5; 

EeodiU V. Dodge 3i 
V. Ein^on 40, 182, 3< 
V. llDited States 

Eendillon v. Maltby 4: 

Kennett'a Petition 541, & 
Kentucky n , Denmian 

Kenyon v. Stewart 2! 

Ker c. Kitchen K 

Kennott V. Ayer ! 

Kerr, Matter of S' 
Kerr v. Union Bank 

D. Kerr 41 

Kershaw v. Bailer * 

Kervrhacker e. Cleveland, C. & C. 

E.R. Co. 5 

Ketcbam n. Buffalo 1! 

Kettering v. Jacksonville 251, 51 

Keyser r. Stanaifer 41 

Kibby v. Chetwood's Adm'ra H 

Kidder n. Parkburtt 4 

Kilbum V. Woodworth 16, 4( 

Kjlham t>. Ward 6 

KimbaU ti. KimbftU 4< 
Kimble d. White Water Valley 

Canal ' Si 

Kine ti. Sewall 4- 

King c. Dedham Bank 90, 2' 

». Root 437, 468, 464, 4( 

King, The, n. Abingdon 4J 

r. Oarlile 448, * 

o. Carliale ' 4- 

p. Clewes 3 

D. Cooper 8' 

p. Cox I 

c. Creevy 448, 4J 

V. De Maonerille 3^ 

0. Dunn 8: 

V. Ellia S: 

e. Enoch 8: 

p. Fisher 4J 

p. Fletcher 3! 

V. Foxcroft 6: 

D. Gardner 21 

tt. Hagan 31 

V. Howes S: 
t). Inhabitants of Hard- 

wicke 2( 
p. Inhabitants of Hips- 
well 1 
p. Inhabitants of St. 

Gregory 'i 
ff. Inbabitanta of Wcv- 

bnrn 2^ 



V. Lockadale ' 
e. Mayor of Stratford- 
upon-Avon 196, II 
0. Partridge 3 
e. Richan^ 8 
p. Rivers 3 
o. Simpson 8 
p. Smith 3 
V. St. Olave's & 
p. Sutton ! 
p. Taylor 4; 
p. Thomas 3 
p. Tubbs 2! 
p. Waddington 472, 41 
p. Walkley 3 
p. Webb 8 
p. Withers 6 
p. Woolston 473, 4' 
p. Wright 4J 
p. Younger i 
Kingiley p. Cousins 21 
Kinney e. Beverley 8i 
Kinsworthy u. Mitchell 6! 
Kip e. Patterson 2( 
Kirby p. Sbaw 173, 231, 4! 
Kirk e. Nowell 21 
P. State 3 
Kneass's Appeal li 
Kneeland p. Milwaukee 60, 63, 78,5' 
Knight p. Gibbs 41 
Knoop P. Fiqua Bank 21 
Knowles p. People 316, 3! 
P. Yeatos 6 
Knowlton p. Supervisors of Rock 

Co. 601. 6 

EnoK P. Cleveland 3i 

Knox Co. p. Aspinwall 2: 

Kohlheimerp. State 3! 

Kraft ». Wiekey 4( 

Kramer p. Clereland & P. R.R. 

Co. 628, 6i 

Kuckler p. People 2'. 

Knnkle p. Franklin S: 

Kyle p. Malin 1! 



Lackland p. North Missouri R.R. 

Co. 191, 196, 644, 645 

Laconr e. New York 25-1 

Lacey p. Davis 368, 520 

Ltefon p. Dufoe 146 

La Fayette c. Bush 206, 642 

p. Cox 194, 195, 216 

p. Jenners 182 



DiB.1izedOyGoO<^lc 



TABLB OF CABE8 CITED. 



U F«7ett« Flank Road Co. v. 

tKew Albany & Salem B.R. Co. 5^ 

Lake Erie, &c., R.R. Co. c. 

Heath 41 

Laab t. Lane fit 

V- Lyud i; 

Larabertson r. HoKin ! 

I^ndon ti. LitcbfieTd 21 

Lane County r. Oregon 

Lane V. Uorman 1(H, 182, S; 

Laogdon c. Appiegate 53, IJ 

Langwonhy c. Dabuqne 192, 5( 

Lanier c. Gallataa 95, 613, 6 

Lanning o. CarpentAr 254, 6: 

Ijuining V. Laneing 6! 

c. Smith 5- 

D. Stone : 

La Plaiaance Bay Harbor Co. e. 

Monroe 

Larlin v. Saginaw Co. 2l 

Lathrop e. MilU 1' 

Latless V. Holmea li 

Lauer v. State 1' 

Laral e. Myen 6 

Law, Ex parte 2i 

Lawler e, Earle 4' 

Lawrence, In re 3i 
p. Great Northern R.B. 

Co. 6' 

Lawrencebarg v. Waeat 1 

Lawyer o. Clifferty 4 

Layton v. New Orieaua 19S, 232, 2 
L^tr. Lea 

Leacb v. Money 3 
League o. Egery > 

o. Joumeay 5 

LeaTCnworth o. Rankin 2 

e. Norton 1 

Lebanon c. Olcott 5 

Le Claire v. Davenport 6 

Lee IT. Sandy Hill 2 

0. TiUotson 1 

Leefe, Matter of 4 

Le Fever r. Detroit 4 

Leffingwell e. WaiT«n 13, 14, 3 

L^ett s. Hunter ~ 88. 1 

LeEman r. McBride 152, 6 

Leilb r. Leilh 4 
Leland r. Wilkinson 



Leonard s. Wifeman 
Leslie c. Stale 
Lerint p. Sleator 
Levy D. State 
Lewis i>. Chapman 

D. Clements 

p. Few 



Lewis D. Garrett's AdmiDiatrator 403 
p. Levy 448, 460 

p. Lewia 292 

p. McElvain 361, 374 

P. Walter 448 

B. Webb 95, 109. 168, 365, 391 

Lexington v. Long 667, 669. 570 

o. McQuillan's Heirs 498, 



ipeoc 

P. Smith 410, 581, 582, 6) 

p. Tower 

Lindenmuller p. People S88, 51 

Lindsay p. Commissionen 1( 

Lindsey p. Coats I 

p. Smith 4: 

Linford p. Fitchroy 9. 

Ltoney p. Malton 4! 

Lin Sieg p. Washburn 390, 486, 50 

51 

Linton v. Stanton 

Litchfield 0. McComber 2i 

p. Vernon 4) 

Little p. Fitts 3: 

D. Smith 
Little Miami R.R. e. Collett . gi 
Live Stock, &<:., Association v. 

Crescent City, ifec, Co. 5' 

Livingston P. New York 498, 5 

Livingston's Lessee nt Moore 
Lloyd B. New York 248, 251, 2 

Locke p. Dane 265, 3 

Lockwood P. St. Louis 4 

Logue o. Commonwealth 3 

Ijondonderry d. Andover 1 

Long's Case 3 

Longworlh P. Worthington 3 

Loomis r. Watlhama 4 

Lord V. Chadbourne 3 

Lorillard b. Monroe • 2 

Lonnan p. Benson 23, 5 

Louisville v. Commonwealth 2 

p. University 2 

Lonisville, &c.. Co. v. Ballard 1 
Louisville, &c., B.R. Co. v. David- 
son 119, 6 
Louisv'dle & Nashville R.R. Co. 

B. County Court 6 

Louisville & Nashville R.R. Co. 

p. Thompson 5 

Love p. Moynahan 3 

p. Shortzer 3 

Low B. Galena & Chicago U. R,R, 



DiB.1izedOyGoO<^lc 



TABLE OF CASEB CITED. 



Lowell B. Hadley 78. 688 


Mark p. State 


166, 186 


r. Oliver 222. 226 


Marlow p. Adams 


389 


Lowrj V. Fnncis 275 


Mamh p. Chestnut 


76 


p. New York ft Erie 


R.R. 


Lucas p. Sawyer S61 
V. Tucker 372 


Co. 


679 


p. Putnam 


294 


Ludlow p. Jackson 361 


e. Supervisors of Fulton Co. 


Ludlow'B Heirs d. Johnson 66 




217 


Lumsden t>. Cross 368, 488. 499, 607 


Marshall c. Baltimore ft 


Ohio 


Luni'a Case 168 


R.R. Co. 


138 


Luiher V. Borden IS, 29 


p. Grimes 


185 


L>-le V. Kichards 23 


p. Harwood 


134 


Lirman e. Boston & Worcester 


p. Eems 616. 62J 


. 623. 624 


R.R. Co. 678 


MarshaU Co. Court v. Calloway 


V. Mower 361 


Co. Court 


193 


Lynch V. State 323. 336 


Martin's Appeal 
Martin p. Broach 


106 


Lyon V. Jerome 626, 638. 560 


146 


V. Lyon 402 


p. Brooklyn 


248.264 




p. Hunter's Lewee 


9, 12, 18, 
67.89 


M. 


P.Martm 


366 




p. Mott 


41 


Michir D. Moore 614 


e. Van Schaick 


454 


Mackaboy t>. Commonweidth 408 
Macon & Wealem R.R. Co. v. 


0. Wade 


138 


Mason, MaUer of 


348 


DaviB 168, 182 


p. Haile 


287, 288 


Macon v. Macon & Western R.R. 


p. Kennebeck, ftc, 


R.R. 


Co. 196 


Co. 


663, 670 


Macready P. Wolcott 340 
Macyo. Indianapolia 642 
MadiBOD & Ind. B.R. Co. e. Nor- 


p. Messenger 


404 


p. Wait 


88.104 


Massindll p. Bowns 


13 


wich Savings Society 216 


Mather p. Chapman 


372. 381 


MadiBOn & Ind. R.R. Co. p. 


P.Hood 


408 


Whiteneck , 146. 168, 678 


Mathews p. Beach 


448 


Madox V. Graham 47 


Maihus p. Shield 


491 


Magee p. Commonwealth 607 


Matter of Election Law 


614 


Magruder. Expartt 263 


Maxey P. Loyal 


287.288 


Maguire p. Maguire 284. 402, 406. 


r. Wise 


376 


406 


Maxwell P. Newbold 


13 


Mahala p. State 327 


May t. HoldredM . 
Mayberry p. Kelly 


379 


Maher p. People 308. 317, 326 


162 


Mahon p. New Yorit Central R.R. 


Mayer, ExpaHt 
Maynes p. Moore 


383 


Co. 647 


286 


Maiden p. Ingersoll 12 


Mayo D. Freeland 


622 


Maize r. State 117, 124. 168. 179 


p. Sheffield 


254 


Malone r. Clark 409 


p. Wilson 


23 


c. Stewart 423 


Mayor. &c. p. Mcdbury 


688 


MaloT D. Marietta 41. 498. 606, 618, 


Mayor of Hull p. Homer 


197 


619 


Mayor of London's Case 


344 


Maltbui p. Shields, 491 


Mayor of Lyme e. Turner 


218, 251 


Manley p. Manley 402, 404 


441 


Manlv P. State 67, 68, 66 


Mays p. Cinrianati 191 


200,518 


Mansfield v. Mclntj-re 402. 406 


McAdoo p. Benbow 


67 


Mapes p. Weeks 454 


McAffee's Heirs p. Kennedy 


636 


Marbury p. Madison 45 


McAllister v. Hoffman 


614 


Marcbant p. Langwoithy 78 




R.R. 


Marietta e. Feanng 277 


Co. 


129. 146 


Marion p. Epler 498. 606 


MoBrayer p. Hill 


423 



DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



HcBride 0. ChicBgo 


498 


McMillan v. Birch 


444 


McCoffbrty r. Guyer 


64. 599 


V. Lee County 


194 


McCanu p. Sierra Co. 


• 361 


e. McNieU 


18,294 


McCwdle, £j:p<ir(e 95 


187, 381, 


McMillen v. Boyle* 


119, 379 




383 


McMinn s, Whelan 


621 


McCarthy v. Hoffman 


379 


McMuUen v. Hodge 


33,73 


McCawley d. Brooks 
McClaurfry v. Wetmore 
McCloud V. Selby 




McPhersoD e. I^onard 


81 


442 


e. State 


328 


245 


McSpeddonf. New York 


211 


McCluskey r. Cronnrell 


6fl 


Meicbam v. Dow 


616 


McClure v. Owen 


216 


». Fitchburg R.R 


Co. 669 


McCollutn, Ex paHe 


182 


Mead p. Walker 


410 


HcComb D. AkroD 


542 


Meagher o. Storey County 


187 


p. B«I1 


503 





p. Gilkey 1 

UcCool p. Smith 1 

McCormick p. Ruach 291, S 

McCoy p. Grandy 3 

e. Huffnun S 

p. Mithei* 3 

McCracken t>. Hayward 2S5, 286,. 21 
2 

Mi,-Ci«ady T. Sexton 8 
McCuUoch p. Maryland 11. 18, ( 
479, 4S0, 4 

p. State 80, 134, 135, i: 
177, 1 

McDaniel p. CorreU 107. 3 

McI)ennott> Appeal 4 

McDonald p. Redwing 526, 5 
McDonougb o. Millandon 

Mi^adJen p. Comniouwealth S 

MeFarland r>. Butler 2 

McGatrick v. Wason 4 

McGear p. Woodruff 3 

Mt-Gee p. Mathia S 

McOehee v. Mathis 498, S 

McGiffdrt p. McGiffert 400, 4 

Mt-Ginnis v. Watson 4 

McGinity p. New York 2 

McGlinch c. Barrows 3 

McGowen v. Sute S 

McGuffie r. State 320, 3 

McKee e. McKee 190, 6 

p. People 3 

p. Wilcox 
. McKeeo p. Delancy'a Leasee 

McKim p. Odom 1 

p. Weller 
UcKinney v. Carroll 

p. O'Connor 613, fi 



McKune e. Weller 
McLawTine p. Monroe 
McLean p. Hugarin 
KIcLeod's Case 
McManns p- Carmichael 



nich 



202 



Mechanics & Traders' Bank i 

DeboU 126, 280 

Mechanics & Traders' Bank v. 

Thomas 280 

Meddock e. Williams 376 

Medford c. Learned 369, 370 

Meeker t. Van Renaseloar 684, 694 
Meighen p. Strong 379 

Melizct's Appeal 113 

Memphis & Charleston R.R. Co. 

p. Payne 562 

Memphis p. Winfield 200 

Mendota e. Thompson 254 

Menges r, Westman 371, 372, 376 

Mercer p. McWilliams 560 

Merchants' Bank p. Cook 243 

Merrick o. Amherst 213, 493 

Merrill v. Plainfield 210 

K. Sherburne 93, 95, 369 

Meshmeier p. State 117, 124, 179, 185, 
582,583 
Methodist E. Church p. Wood 467 
Metropolitan Board or Exnise p. 

Barrie 283. 383, 581, 684 

Mctz^er, Matter of 348 

Mewherter p. Price 146, 148 

Mever c. Muscatine 215 

Michigan Stale Bunk p. Hastings 27S 
Milan, &c., Plank Road Co. p. 

llusted 280 

Milbnm v. Cedar Rapids, &c., 

R.a. Co. 653 

Milhau p. Sharp 195, 202, 207, 208, 

646 



lller's Case 


460 


iller p. Craig 
t>. Gable 


594, 696 


467 


p. Graham 


381,382 


p. Grandy 


228,490 



DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



MiUer V. New York & Erie R.R. 


Moore v. Houston 




Co. 676, 577 


p. Maxwell 




t>. NieboU 12 


p. Meagher 




e. Parisb 423 


p. New York 




p. State 79. 95, 134. 135, 139, 


V. People 


18, 


149, 162, 327 


p. Sanborne 


689, 


e. State. 8 GUI 95 






0. TrooBt 536 


p. State 




Miller's Ex'r r. Miller 40* 


Moreau p. Detcbamendy 




UWWpay, Ex parte 308,319 
Mills V. Brooklj'n S4B, 254 






Morey p. Brown 




p. Duiyeft 16 


p. Newfane 


247, 


». GlenBon 194, 521 


Morford r. Barnes 




t.. Jeffewon 157 


p. Unger 118,144 


146, 


c. St. Cliir County 396 


382, 487 


494, 


V. Williams 191, 277, 278, 280 


Morgan v. BnfGngton 




MiUa, Matter of 33T 


P. Dudley 




Milwaukee Gaa Light Co. t. 


p. King 23, 567 


689, 


Steamer Gamecock 26 








p.'piumr 




City 193 




622, 


Minere- Bank t>. United Sutes 106, 278 


p. Smith 




Mitchell's Case 384 


p. State 




Mitchell 0. Deeds 371, 373 


Morril «. Haines 




p. Harmony &30 


Morris p. Barkley 




p. Williams 596 


p. People 


168, 


Uithoffr. CarroUtoD 5S3 


p. State 




Moberly v. Preston 423 


Morris Canal & Banking Co. v. 


Mobile V. Allaire 199 


Fisher 




B. Rouse 199 


Morris & Essex R.R. Co. p. 


New- 


p. Yuille 202. 596 


ark 




MobHe & Ohio R.R. Co. d. SUte 152, 


Morrissey v. People 




163. 177, 181, 182 


Morrison t. Springer 
Morse 0. Goold 


168, 


Moers e. Reading 6'J, 119 


287. 


Mohawk Bridge Co. v. UUea & 

Schenecisdy R.R. Co. 396 
Mohawk & Hudaon R.R. Co., 


Morton, Matter of 




Morton p. Sharkej- 


366, 


e. Valentine 




Matter of 78 


Mose p. State 




Monell E. Dickey 405 


Moses V. Pittsburg, Fort Wayne, 


Money e. Brown 696 


& C. R.R. Co. 




w. Leach 303 


Moses Taylor, The, p. Hammons 


Monongahela Navigation Co. p. 


Moaier p. Hilton 




Coons 641, 543 


Mott p. Feonsylvama R.R. Co. 






127, 


Monroe c. Collins 64, 599, 602. 616 






Montee v. Commonwealth ■ 323 


Mount Carmel p. Wabash 






Mount Pleasant d. Breeze 




D. Meredith ' 370 


Mount Washington Road 


Co.'s 


V. State 823. 463 


Petition 637. 562 


,569, 


Montpelier t. East Montpelier 192, 


Mounts c. State 


325. 


239, 278 


Mower p. Leicester 


243, 




p. Watson 422 


,442, 


193 


Klundy p. Monroe 


ISO. 


Moodalay o. East India Co. 260 


Munger b. Tonawanda R.R. Co. 


Moon V. Durden 62 


Munfcipality p. Wheeler 




Moore, Slatter of 337 


p. White 


498, 




Munn p. Pittsburg 




Works 898 







DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



Mnrphey e. Menard 1^ 

Marphf, Exparte 6! 

r. Chicago 6'. 

«. Commoiiwealth SI 

e. State 3i 

Hurrar v. CommiBaioDen of Berk- 

ehira 64£, K 

s. McCarthy ] 

e. Menifee 541, & 

e. Sharp 6j 

MuiraT'a Leuee e. Hoboken Land 

Co. 862, 4( 

Mnrtangb r. St. Loois 2^ 

Matnal Aisurance Co. e. Watts ] 

Mjen D. English II 

r. JohnioD County 2'. 

v. Manhattan Bank '. 

M;^tU V. Washburn 4! 

Mjrick r. Ha^ey i 

V. La Crosve C' 



N. 

National Bank e. Commonweal tb 482 

Nations v. Jobnson 402, 404 

Na^lor D. Field 152 

Neadeibouaer v. State 594 

NeaM p. Uerc«r 2S8 

Nebraska e. Campbell 248 

NeiU V. Keeae 897 

Neb t>. State 828 

Nelson p. Allen 60, 389 

e. Milford 209, 210 

V. Ronntree 883 

V. State 323 

Nesmith v. Sheldon 13 

New Albany & Salem R.R. Co. v. 

O'Daily 643, 662 

New Albany & Salem R.R. Co. v. 

Maiden 678 

New Albany ft Salem R.R. Co. e. 

McNamara 678 

New Albany ft Salem R.R. Co. v. 

Tilton 672, 678 

Newbeny ». Trowbridge 47 

New Boston p. Dnnbarton 197 

Newby c. Platte Coanty 667, 569 

Newby's Adm'r v. Blakey 866 

Newcutle, ftc., R.R. Co. D. Fern 

ft Indiana R.R. Co. 526 

Hewcomb v. Peck 16 

V. Smith 636 

Newcnm v. Kirtley 620, 623 

Newell 0. Newton 404 

e. People 66, 57 

t>. Sfflhh 536 



Pit* 

New Jersey v. Wibion 126, 280 

Newland v. Marsh 90, 168, 182, 184 
New London c. Brainerd 194, 211 
Newman, Ex parte 168, 196 

New Orleans e. De Annas 18 

p. Poutz 265 

p. Southern Bank 152 
p. St. Rowe's 78 

p. Turpin 190 

New Tork, Matter of 498 

p. Buley 254 

p. Furze 248 

- P.Hyatt 199 

p. Kerr 562 

V. Lord 694 

0. MUn 486, 687 

p. Nichols 198, 300, 202 
r. Ryan 190 

p. Second Avenue R.R. 



Co. 



206 



N. Y. ft Harlaem R.R. Co. 
New York 208,546 

U. Y. ft N. Haren B.R. Co. e. 
New York 208 

Nicbol p. NashviUe 119 

Nidiols p. Bertram 278 

p. Bridgeport 498, 628,567,570 
p. Guy 42$ 

p. Mudgett 614 

p. Somerset, &c., R.R. 



Co. 



660 



Nicholson p. N. Y. ft N. Haven 

R.R. Co. 649, 667 

Nickerson p. Howard 340 

Nicolb p. Ingersol 341 

Nightingale's Case 596 

Nightingale p. Bridges 357 

Noel p. Ewing 118, 361 

Nolin p. Franklin 596 

Norman c. Heist 379 

Norris p. Abingdon Academy 168,278 

p. Beyea 361, 370 

p. Boston 177 

p. Clymer 69, 108 

p. Crocker 381 

p. Doniphan 361, 363 

p. Harrw 23 

p. Newton 346 

Norristown, ftc, Co. p. Burket 410 

Northern Liberties v. St. John's 

Church 498 

Northern Indiana R.R, Co. n. Con- 
nelly 497, 498, 606, 507, 619 
North Hempstead p. Hempstead 197, 
212 
North Missouri B.R. Co. p. Gott 538 
e. Lack- 
landfiSS 



DiB.1izedOyGoO<^lc 



TABLE OF CASES OITBD. 



Norton P. FettiboDo 
Norwich v. County Comi 

Norwood V. Cobb 
Noyes v. Butler 

Nngeot c. State 
NuDQ V. State 





p. State 


367 


Oakland v. Carpentier 2(H 
Oakley v. Aspinwall 72, 412 


Osborne p. Humphrey 


280 


p. Jainei 


366 


Oatman r. Bond 289 


p. United States Bank 482 


O'Conner e. Wamer 94 


Overslrcet p. Brown 


397 


O'Connor v. Pittabupg 208, 542 


Oviatt P. Pond 


582, 683 


O'Donaghue v. McGovem 438 


Owings p. Norwood's Lessee 


11, 12 


O'Donnell t>. Baiiey 280 


Owners of Ground p. Albany 


688 


O'PaiTBll p. Colby 622 


Owners of the James Grayp 


Own- 


Ogdeu e. Blackledge 92, 94 


era of the John Fraier 


685 


p. Saunders 62,68,182,265, 






285, 286. 287, 288, 298, 






2»4, 867 


P. 




tt. Strong 65, 57 






Ohio & Lexington R.R. Co. p. Ap- 


Pacific R.R. Co. p. Chrystal 


667, 669 




Packet Co. P. Sickles 


47 


Pacquetto p. Pickness 


389 


Clelland 283, 572, 678, 580 


Pad more p. Lawrence 


442,445 


Ohio Life In.. & Trust Co. o. De- 


Page p. Fazackerly 


696 


bolt 126, 280 


p. Fowler 


47 


O'Kane e. Treat 503,615 


Pune's Case 


426 


O'Kelly 0. Athens Manufac. Co. 362 


Palmer v. OommissionerB of Cuv- 


Oldknow 0. Wainwright 619 


..F.S"°- 


25, 692 


O'Leary e. Cook County 146 


669 


P. Lawrence 


60 


' 495 


p. Napoleon 


520 


Oliver, Lee & Co.'i Bank, Matter 


p. Stumph 

Palmer Co. r. Ferrill 


499,507 


of S3, 37, 62 


569 


■ Olmatead e. Camp 636, 637 


Parish p. Eager 
Parker p. Bidwell 


365 


Olmsted P. Miller 424 


840,341 


Obey V. Harvey 192 
One House p. State 682, 683 


p. Commonwealth 117 


123, 124 


p. Colter Mill-dam C 


594 


Onslow e. Hone 438 


P.Kane 


18 


Opinions of Judges (18 Pick.) 29 


p. Redfield 


280 


(62 Me.) 222 


p. SunbuiT & Erie R.R. 


(30 Conn.) 599 


Co. 


394 


(6 Cush.) 30 
(44 N. H.) 600 


Parkins's Case 


331 


Parkinson p. State 


67, 146 


(41N.H.) 319 




667 


(6 Shep.) 78, 82 


p. Goodwin 


78 


(38 Me.) 609, 610, 


Parmele p. Thompson 


96 


620 


Pannelee p. Lawrence 


372, 375 


(8 R. I.) 95 

(4 N. H;) 101 


Parsons p. Goshen 


211, 212 


p. Howe 


629 


(46 N. H.) 153,600 


p. Russell 


362 


(37 Vt.) 600 


Paschal P. Perez 


286 


(16 Me.) 113 


p. Whitsett 


361 


(99 Mmb.) 153 


Passenger Cases 


573, 587 


(7 Mass.) 602 


Patten p. People 


308 



Opinions of Judges (16 Mass.) 6 

Oriental Bank p. Freeze 361, 8 

Ormichund v. Barker 4 

Ormond p. Martin 3 
Orphan House p. Lawrence 

Ortmanp. Greemuan 1 

OrtoD p. Noonan 3 

Csbom P. Hart 3 

p. Jhines 3 



DiB.1izedOyGoO<^lc 



TABLE OP CASES CITED. 




Pise 




Pattenon ». Hiilbrook 


371 


People 0. Coleman 16, 52, 


0. Wilkinson 


421 


p. Collins 117, 


Puterson City o. Society,* 
Patleson v. Jones 


. 118, 192 


p. Colraan 


425 




P«td»on r. Tuba 


65, 119 


p. Comstock 


Paul V. Virpnia 


16 


p. Cook (10 Mich.) 325, 
p. Cook (U Barb. & 8 N. 


PawUng e. Bird's Executors 


16.402 


». Wilson 


404 


Y.) 76. 606, 608, 609, 


Faxson r. Sweet 


688 


613,618,622.623. 


Payne u. TreadweU 


376 


p. Corning 


Fajson e. Fay son 


402 


F. Cowles 82. 


Pearc« t). Atwood 


411 


V. Croswell 


t. Oloey 


16 


p. Dean 


p. Patton 


365 


V. DPTlin 


PcMe e. Chicago 


228 


p. Dill 


Feavey v. Robbins 


616 


p. Doe 


Pear E. Duncan 
Feck V. B&tavid 


47 


P. Draper 46, 87,170, 171, 


248 


190, 192. 


p. Freeholder of Essex 410 


0. Dubois 


p. Lockwood 


202 


p. Furguson 608, 609, 


p. Weddell 


117. 618 


P. Fisher 


Pekin p. Newell 


254 


p. Garbutt 309. 


E. Rejnolds 


216 


p. Gates 


Pemble v. Clifford 


23 


p. GalLw;her 172. 173, 




p. GooTwin 327, 




c. Gordon ' 


Fenn'i Case 


821 


p. Green 560, 


Pennock e. DUlogne 


52 


p. Httrtwell 78, 602, 


7anal 


p. Hatch 132. 




395 


p. Hawes 232, 


FeDDsylvania R.R. Co. p. 


Coin- 


p. Hawley 




486 


V. Hayden 




p. Hennessey 




670 


P. Hijtgins 609, 618, 623, 


Penrice p. Wallace 


669 


p. Hill 


Penrose p. Erie Canal Co. 


287.288 


V. Hilliard 


People p. Alameda 


232 


p. Holden 608. 


p. Allen 


78 


p. HoUey 


p. AuditoisGeneral 


284 


p. Imlay 


p. Banvard 


277 


B. Jackson & Michigan 


P.Barrett 


326 


PlanfcE. Co.a78,291.« 


e. Bates 606 


613, 618 




P. Bircham 


116 


p. Jenkins 688, 


p. Blakeley 


834 


P. Jenness 


p. BlodgeU 65, 65 


183,600 


p. Jones 622, 


p. Bowen 


168 


P. Keenan 




602 




V. Brighton 


528 


p. Kerr 541, 550, 552, 


V. Brooklyn 232, 479, 497, 498. 


p. Klldoff 605, 


605 


511, 559 


p. Koeber 


V. Bunia 


67 


B. Kopplekom 601, 


p. Butler 


273 


P.Lamb 


p. Campbell 


80,139 


p. Lambart 


p. Csnal Appraisers 


556 


p. Umbier 


•.Casselli "^ 


348 


p. Lawrence 78, 81, 142, 1 


p. Cicotta 51, 606, 


606. 608, 


177. 186, 


610, 612, 61B. 


619. 620. 


V. Looniis 


624, 625 


626, 637 


p. Lott 



DiB.1izedOyGoO<^lc 



TABLE OF OABEB CITED. 



c. Mahaney 133, 184, 143, 144, 


PeoplBP. Sullivan 227, 


151, 152, 170, 619 


p. Supervisor, &a. 


e. Manhattan Co. 278 


p. Superriaors, &c. 


V. Martin 602 




e. Matteson 606, 612, 623, 624 


134, 232, 382, 


V. Maynard 78, 264, 616 


p. Superriflora of Greene 


V. Mayworm 608 
p. McCann 146, 147. 309 
e. McGowan 325, 328 


p. Saperriaora of Now 
York 90, 93, 94, 


168, lf3. 


V. McMahon 313. 315, 316 


0. McManiu 606, 612, 618 


p. Tallman 


V. McNealy 327 


p. Tasewell County 


0. Medical Society of Erie 204 


p. Tbomaa 313, 


p. Melien 144. 146 


p. Tburber 


V. Merceio 348 


p. Tisdale 608, 609, 


V. Merrill 127 


0. Towoihip Board of Sa- 


p. Mitchell 232, 379 


(em 215, 393, 


p. Morrell 66, 88 


0. Toynbee 168. 
p. Tyler (Mich.) 182, 


o. Mania 175, 192, 236,250, 


277 


p. Tyler (Cal.) . 


». Murray 181 


p. Nearing 633 


p. Tan ClcTe 622, 623, 


P. New York 282, 624, 626, 676, 


p. Tan Epg 
p. Van Home 


593 


p. N. T. Central B-B. Co. 


p. Tan Slyck 6^2, 


65, 68. 66, 168, 172, 173, 


p. Webb 325. 


186 


Peoria p. Kidder 498, 


V. Pease 606, 606. 609, 612, 


Peoria County p. Harvey 


616, 622, 626, 626, 629 


Perkint p. Lewis 


e. Peck . 78 


p. MitcheU 


p. Pbelpg 272 


p. Perkins 119, 


e. I^ne 323 


Perine p. abeBapeake& Delaware 


p. Pinkney 192 


Canal Co. 


p. Hatt 275 


p. Farr 


p. Porter 314, 476, 602 


Perry's Case 266, 


p. Power 191, 232, 234, 277 


Persons p. Jones 


p. Pritchard 161 


Festerfields i>. Tickers 


e. Purdy 55, 56, 57, 78, 163 
p. Reed 594 


Peters v. Iron Mountain R.R. Co. 




p. Revisen 325 




p. Roe • 688.594 


Peterson v. Lothrop 

Pettibone v. La Crosse & Mil- 


p. Roper 280, 383 


B. Royal 321 


waukee R.R. Co. 


p. Rupglet 472. 473, 474 




e. RanEel 78 


Phihdelphia V. Commonwealth 


p. Sackett 621 


p. Dickaon 


p. Salem 215, 393, 536 


p. Dyer 


p. Salomon 616 


p. Tryon 


p. Sazten 606, 608 


Wood 


p. Schermeriiom 75 


p. Seaman 606, 608, 623 


Philadelphia & Reading R.R. Co. 


p. Seymour 373 


p. Yeiser 


p. Smith 310, 538 




p. Stame ' 82, 139 


Case of 


p. State Aaditora 383 


Philips p. Wictham 
Phillips p. Allen 


p. Stevena 199 


f. Stewart 323 


p.Berick 


p. Stout 117, 121 


p. Bury 



DiB.1izedOyGoO<^lc 



TABLE OP CABES CITEI}. 



PhOUpsp. Corington, &c, Co. 146 
p. Wiley 423 

Phippa V. State fi94 

e. Allen 836 

PbtEDix InsnraDce Co. v. Common- 
wealth 15 
PUtt B. People 618 
PIcqaet, Appellant 95, 391 
Keree v. State ' 323 
Piereon p. SUte 23 
Pike v. Megonn 68 
PUkey e. Gleason 157 
Pirn V. Nicholson 81, 189. 149. 162 
Pingrey o. Washburn 137, 676, 677 
Piper V. Chappell 202 
nqna Branch Bank e. Knoop 126, S78. 
280 
Htcataqua Bridge v. Nev H&mp- 

ifatre Bridge 280, 281, 884, 526 

Ktlaburg 0. Grier 248. 254 

r. Scott 530, 531 

Piiley ». Clark 673 

Planters' Bank v. Sharp 126, 278 

Platner v. Best 47 

Pleasant u. Kost 613 

V. Kohren 365 

P. State 323 

Pledger V. Hitchcock 423 

PliU r. Cox 555, 659 

Plumb V. Sawyer 861, 370 

Flutnmer v. Flummer 69 

Pljmpton 0. Somereet 319 

Pocopion Road 531 

Poe e. GreTer 423 

Police CommisMoners v. Lonisrille '572 
■ " " 192 



)CTn 
& M. 



R.R. 



548 



Pomeroy t>. Chicago 

Co. 
Pood t. Negua 

p. People ayo 

Ponder B. Graham 113 

Pope p. Macon 389 

Popham r. Fickbam 469 

Porter r. Sawyer 614 

Portland Bank v. Aptfaorp 479 

Potter V. Hitcos 406 

Powers p. Bean 561, 562 

e. Bergen 106 

p. Dougherty Co. 119 

p. Djboia 424 

Pratt B. Brown 53, 383, 530, 636, 537 

p. Donovan 403 

B. People 615 

«. Teflt 361 



Prentiss b. Holbrook 
Presbyterian Society b. Anbum 

& Rochester R.R. Co. 5 

Prescott B. Trustees of IHinois & 

Michigan Canal 1 

Preston p. Boston 3 

Frettyman b. Superviaora, &c. 11 

2 

Price o. Hopkin 156, 3 

p. Mott 

e. New Jersey R.R. Co. 5 
p. State 325, 327, 3 

Prichard's Case 1 

Prigg p. Pennsylvania 1 

Pritchetl e. Slate . 3 

Proprietors, &o. p. liaboree 8 

B. Nashua and 
Lowell R.R. 
Co. 669, 6 
Prother v. Lexington 2 

Protho B. Orr 82, 1 

Protzmau p. Indianapolis & Cin- 
cinnati R.R. Co. 543. 6 
Front B. Berry 

Providence v. Clapp 2 

Providence Bank b. Billings 280, 3i 

Purdy p. People 

Furrear b. Commonwealth 18, S 

Putnam p. Flint 

p. Johnson 6 



Qnackenbusb p. Danks 287, 288. 370 
Queen, The p. Badger 311 

p. Collins 426. 428 

V. Justices of Hert- 
fordshire 412 
p. Justices of London 412 
B. Justices of Suffolk 412 
0. Millis 61 
p. Newman 465 
p. Pikesley 313 
Quick B. Whitewater Township 67 
Qnimby p. Vermont Central R.R. 



Raddiffe's Execnton p. Brooklyn 208. 
641, 642 
Ragatz P.Dubuque 561 

Baa V. Potts 616 

Railroad Co. d. Commissioners of 

Clinton Coun^ 117. 119 

Railroad Co. b. Ferris 569 



DiB.1izedOyGoO<^lc 



TABLE OP CASES CTTED. 







13 




Raleigh, &c., R.B. Co. 


P. Davia fi87 


K.R. Co. 


541. 




p. Reid 280 


V. Welcome 




Ralston b. Loth«n 




361 


Richland 0. Lawrence 191 


193, 


Ramsey o. People 




73 










272, 273 


Ritjimond, &C., Co. o. Rogers 


541. 


Rindolph, Ex parU 




163 






Randolph CouDty e. Ralls 


409 


Richmond, Ac, R.R. Co. p. 


Lon- 


Randolph V. Good 




262 


iaa. &e.,R.R.Co. 


394, 


Ranger c. Goodrich 




424 


lUchmond p. Long 




0. Great Wests 


■nR. 


411 


Riddle p. Proprietors of Locks, &c. 


Rape c. Heaton 


16 


404,407 




243, 


Rathbun D.Wheeler 




361 


Ridge Street, In, re 




RaWky e. People 




271, 272 


Riggin's Ei'rB c. Brown 




Rowley 0. Hojker 




289 


Riggs n. Dennis ton 




R»y V. Gage 




370 


V. Wilton 




Read's Case 




341 


Riley's Case 


273, 


Reames ■>. Eems 




412 


Riley P. Rochester 




Reardon p. St. Louis 




247 


Ring, Matter of 




Reciprocity Bank, Matter of 




Ring p. Wheeler 




Rector ». Smith 




426, 442 


Rison p. Farr 64, 286, 288 


362, 


Red River Bridge Co. c. 


ClarksviUe 526 


V. Fletcher 




Reddall V. Bryan 
Redfield 0. Florence 




13. 533 


Robbing 0. State 






614 


Roberta p. Caldwell 




Red way v. Gray 




423 


B*«.„:Sx.. 


206. 


Reed V. Rice 




■ 18 




0. State 




146 


p. Rockford 119 


191. 


e. Toledo 




195 


Robie p. Sedgwick 




Reeves v. Treasurer 




364 


Robinson, Exparte 




of Wood 


Robinson v. Bank of Darien 




County 498, 506, 


511, 


630, 631. 


p. BidweU 


123, 






533 


p. Commonwealth Insur- 


Regents of Oniversityo 


Williams 106. 


ance Co. 








127, 165 


p. Howe 




Regnier p. Cabot 
ReSoboth V. Hunt 




424 


p. N. Y. & Erie 


R.R. 




275 


Co. 




Reid V. De Lorme 




433 


p. Richardson 






94 


p. Robertson 




Reitenbangh v. Chester TsUey 


p. Skipworth 




R.R. Co. 




528 


p. State 




Respublicae. Denoie 




430 


p. Ward's Es'rs 


16. 


": GibST 




594 


p. West 






614 






Revis V. Smith 




441 


Rochester White Lead Cc 




Rex. See King, The 






Rochester 218 


252, 


Rexford p. Knight 


569 


660, 661 




287. 


Reynolds v. Baldwin 




192 






0. Geary 




582 


V. Wearing 


364, 


Rhines t.. Clark 




410 


Rogers p. Bradshaw 




Rhodes t.. Otis 




689 


p. Burlington 


119. 


Rice V. Foster 


117 


123, 124 


p. Goodwm 




V. Parfcman 




98, 105 


P. Jones 




V. State 




129, 160 


p. State 




0. Turnpike Co. 
Rich D. Flanders 132 




570 






367 


370, 381 


Rosier c. Hale 








412 


Ross's Case 


273, 


0. Morgan 




498, 512 


Ross p. Irving 




6. Roberts 




424 


p. Madison 





DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



Boss c. Whitman 

Bouah t>. Walter 

RontsoDg n. Wolf 

RowsD e. BuueU 

Bowe V. Granite Bridge Corpora 



.. People 

Bumnef o. Ke^es ) 

Rumsey c. People ! 

Boich V. DaveLport ', 

Ruah B. Cavenangh ! 

Biusell D. JefTeraoDville i 

t>. Men of Devon 197, 242,! 

o. New York 626, t 

D. Pyland ( 

r. Rumsey i 

V. Whiting f 

Bnrt r. GoU < 

Ratland v. Mendon 

Bjan r. Tfaonias 

Rjegate v. Wardsboro 

RfenoD t>. Utley 144, 119, 493, i 



Sacramento r. Crocker & 

Sadler v. LauG^am 69, 71, 180, 5S 
531,6 
Saillj V. Smith 3 

Sammons e. Hollowaj 4 

San Antonio c. Jones 1 

Sanborn v. Deerfield 2 

c. Bii-e 234, 493, 4 

Sanders v. Hill sboro' Ins. Co. 2 
Sandford e. Nichols 3i 

Sands o. Kimbark 4 

Sanford r. Bennett 454, 4. 

Santo V. State 117, 121, 168. 177, & 
Saier c. Burlington & M. P. Plank 

B. Co. 5i 

Satt«rlee v. Mathewaon 265, 376, 3^ 
t>. San Francisco * 1 

Saunders v. Cabaniss 

e. Haynes 6 

V. Mills 4 

V. Bodwaj a 

D. Springstein 4' 

e. WiUon 3 

Sarage v. Waishe 

Savannah v. Hartridge 1 

t>. State 1 

Saftngs Bank e. Allen 8 

r. Bates 3 

Sanngs Society e. Philadelphia 1 
Sawjer e. Alton 6 



Scbiner v. People 308 

Si'hool District v. Merrilla 519 

J.Wood 240,241,242 
Schooner Paulina's Cargo p. United 

States 65 

Schooner Bachel v. United Stales 361, 
S81 
28 

' 047 



Co. 



Scott t). Clark 

V. Detroit Young Men's So- 
ciety's Lessee 28 
V. Jones 13 

c. Manchester 248 

t>. Mather 889 

V. Smart's Ex'rs 168 

V. Willson 589 
Scoville V. Cleveland 497, 506, 507 
Sears (.. Cottrell 88, 173, 182, 356 

0. Terry 407 

Sedgwick V. Stanton 137 

Selby 0. Bardons 50 

Selin V. Snyder 407 

Selman d. Wolfe 590 

Selshy t>. Redlon 372 

Semayne's Case 803 

Sequestration Cases 291 

Seven BiBfaaps' Case, The 349 

Seiton V. Todd 423 

Sbackford v. Newington 490 

Shackleford v. Cofiey 636 

Shannon v. Frost 467 

Sharp V. New York 146 

D. Spier 498 

Sharp's Exr's v. Donoyan 491 
Sharplessp.Mayor, &e. 119, i 



Shaw t). Charlestown 

e. Crawford 

o. Dennis 



490 
563 



491, 514 
127 



V. Moore 

t>. Norfolk B.B. Corp. 379 

p. Thompson 839 

Shawnee County e. Carter 75 

Sliehan's Heirs v. Bamet's Heirs 103 
Sheldon e. Wright 406, 407, 408 

Shepardson v. Milwaukee, &c., 

R.B. Co. 186, 561, 662, 663 

Shepherd V. People 271 

Sherburne v. Yuta Co. 247, 248 



DiB.1izedOyGoO<^lc 



TiBLB OF CISBS CITED. 



Sbemu t>. Story 




135 




156,366 






436 


t>. Mome 


193,204 


Shippe. Miller 




13 


e. Packard 286 


287. 291 


Sbipperp FeDosflvutU R.R. 


Co. 


15 


e. People 


399 


Shore 0. State 




310 


V. Rice 


406 


Shorter, Matter of 




262 


V. Short 


483 


e. People 




308 


. t). Silence 


424 


V. Smith 




281 


V. Smith 


402 


Shouk V. Brown 




379 


V. Stewart 


423 


Shovero. State 


477 


596 


p. Thonuw 


425' 


Shrunk p. SchuvkiU N«. Co 




541 


e. Tbureby 


65 


Sbumwajr v. StillnutD 




16 


p. Washington 


206.642 


Sidgreaves v. Mystt 




423 


Smoot c. Wetumpka 


248 


Sigoumey o. Sibley 




412 


Smj-th P. McMasters 


614 


Sill o. Corning 


168 


173 


Snow p. State 


191 


Silliman c. Cummiiu 




376 


Snowhill V. Snowhill 


103 


Sills V. Brown 




318 


Snyder v. Bull 


379 


Simond's Ex'rs i-. GraU 




477 


p. Pennsylvania R.R 


Co. 548 


Simmons v. Hobter 




422 


Society, &c. r. Wheeler 


366, 389 


Simpson o. State 




23 




Sinclair v. Jackson 


163 


164 


Somerville p. Hawking 


426 


Skelding r. Whitney 




47 


V. Eastern R.R. 


Co. 


Skildinlt.. Herrick 




47 


ads. Doughty 


665, 587. 


Skinner, Ex paHt 

V. HWfbid Bridge 




348 




670 


Co. 


206. 




297, 298 






642 


Sorocco p. Geary 


626, 694 


Slack e. Eailroad Co. 62 


119 


217, 


Southardp. Central R.R. Co 


378 




232 


488 




198 






15 


SouthwarkBankti. Commonwealth 55, 


V. People 




200 




134 


SlaoBon 0. Racine 




179 


South-western R.R. Co. e. Paulk 580 


Slajton V. HuJings 


74,78 


South worth p. Palmyra & Jackson- 


Sleght V. Kane 




262 


burgh R.R. Co. 


141 


Sloan c. State 




191 


Soutier V. Madison 


292 


Smalley c. Anderson 




423 


Spangler'a Case 


12. 346 


Smead r. Indianapolis, &c.. 


R.R 




Spanglor p. Jacoby 


134, 140 


Co. 




216 


Sparrow p. Kingman 


52 


&wib,Expa.TU 




lo 


Spears p. State 


316 


Matter of 




18 


Specht p. Commonwealth 


476, 696 


PelJtion of 




348 


Speer p. Plank Road Co. 


162 


Smith, Mary, Case of 




314 


P. School Directors 


222.488 


Smith e. Adrian 




123 


Spencer p. McMaaters 


423 


e. Ballentyne 




292 


V. State 


65, 152 




49 


Spooner p. McOonnell 25, 28, 126 


p. Brown 




298 


Sporrer p. Elfler 


484 


e. Bryan 






Sprague p. Birdsall 


896 


t.. Cheshire 




215 


p. Norway 


618 


t>. aeveland 




382 


p. Worcester 


542, 643 


e. Connolley 

e. Eaatem R.R. Co. 




536 


Spreckerp. Wakelee 287 


288,865 




578 


Spriggina p. Houghton 


616 


r. Gonld 




298 


Springer e. Foster 


294 


e. Henry Co. 
e. Hunter 




215 
13 


Springfield p. Connecticut River 
R^R. Co. 626. 545, 547 


V. Judge 


89 


173 


Stackhouse p. I>a Fayette 


248 


D. Levmus 




190 


Stacy p. Vermont Cenfl B.R 


Co. 


V. Man'land 
D. McCarthy 
V. Merctumd's Es'rs 




18 




628 


119 


163 


St. Albans e. Bush 


404 




372 


Sianfield o. Boyer 


423 



DiB.1izedOyGoO<^lc 



TABLE OF CABES CITED. 







628 




if a 


aton 






96 


Co. 




119 


SUDler, Ex parte 




311 


p. CommiaHioners 


of 


Han- 


V. Stanley 




680 


cock 




119 


e. Webb 




448,160 




af Perry 179 






16, 404 




f School, 


Starin v. Genoa 




119 


&c., lands 




291 


Starr v. Feue 




111, 114 


B. Connor 




327 


SUte e. Adanu, 2 Stew. 




624 


0. Cooper 




328 


e. Aduu, 44 Mo. 


90, »6. 263 


V. CopeUnd 


117 


124, 177 


0. AUen 


S23 


366,463 


e. County Judge of Davis 143, 


ff. Alman 




319 






144 


0. Ambs 




477, 696 


0. Cowan 




191, 199 


e. ArHn 




266. 267 


c. Coi 




177, 319 


t.. Ashley 




168 


p. Croteau 




823 


e. Atwood 




63, 370 


V. Crowell 




467 


•- ATeiT 




623 


D. CummingB . 




263 


e. Aaditor, &c 




361,370 


p. Curtis 




327 


B. Bailey 




166 


t>. Daley 
p. Danforth 




361 


t>. Bufaee 




62, 370 






V. Barker 




276 


V. Dean 




498 


o.Baraett 




18,340 


p. Demorest 




226 


r. Bartlett 




816 


p. Denton 




819 


«. Battle 




327 


p. Donehey 




632 


V. Beoeke 




117, 120 


B. Doron — 




66.66 


e. Beuham 






p. Dunning 




116 


p. Benioady 




263 






178 


0. Berry 




162 


0. Elwood 


606 


610, 612 


V. Binder 




619 


p. Ephraim 




826. 327 


e. BiueU 




119 


P. Everett 




319 


V. BladBdeU 




66 


p. Ferguson 


194 


195,' 204 


e.Bond 




601 


e. Fetter 




623 


e. Bonny 




397 


p. Field 




121, 124 


r. Bostick 




816 


p. Fleming 




94 


r. Bowert 




146 


p. Freeman 




818 


t. Branin 




192 


p. Fry 




113 


r. BreDoaii's liquon 


308 


p. Gareache 




263 


■>. Brooks 




327 


P. Georgia Medical Socie^ 198 


F.Brown 




322 


V. Giles 




620 


8. Branetto 




318 


p. Gleason 




90 






23 


p. Goeue 




602 


s. Burlington, &c. 


R.R. Co. 667 


p. Governor 




622 


f,. Bnmh^ 


426 


486,446 


p. Graves 206 


207 


669, 562 


B. Buma 




322 


p. Green, 16 Iowa 




325 






326, 827 


p. Greeu, 32 Ind. 




484 


D. Cameron 




316 


p. Guild 


314 


316. 316 


t-.Carew 




291 


p. Guiterei 




173 


». Carr 




264 


c. Gut 




146 


t>. Caven 




613 


P. Haben 




236, 493 


ff. (handler 


471 


472, 473 


p. Hairston 




674 


P.Clarke 




198 


p. Harris 




228 


V. Clerk of Passai 




622. 623, 


P.Harrison 




146, 623 






624 


V. Hawthorn 




283, 289 


e.CUck 




78 


p. Hayward 
0. Hifmantel 




278 


V. Coleman and Maxy 


356 




601,620 


V. Collector of Jersey City 616 


0. Hitchcock 




129 




of 


Bafti- 


p. Hudson Countj 




247 


more 


7a 


, 177, 890 


0. Ingersoll 




160 



DiB.1izedOyGoO<^lc 



TABLE OF CABES CITED. 



State V. J»ck«oii 


226, 482 


State c. North 






619 


B. Jarrett 


133 


r. Northern Central R.R. Co. 95 


V. Jersey City 200, 204, 498, 578 


V. Norvell 






325.327 


P.John/on 


623 


e. Norwood 




361 


378, 381 


e. Jones. 19 Ind. 


602, 618 


p. Noyes 


106. 


123, 


190, 278. 


V. Jonee, 6 Ala. 


328, 326 




283 


626 


676, 677 


IT. Jones, 21 Md. 


366 


E. Olin 






606, 614 


V. Judge, &c 


624 


«. Orris 






602 


e. Judge of Co. Court 
V. Juaticea of Middlese 


185 


B. Parker 


117 


121 


123. 515 


X 623 


0. Parkinson 






68, 129 


V. Kmouae 


322 


r. Patterson 






825 


V. Kwon 


327 


n. Peace 






323 


c. Kattlemann 


938 


«. Pendergrass 




340 


P. Keith 


32,266 


9. Peterson 






819, 410 


V. Kemp 


322 


p. Phalen 






283.289 


c. Eemton 


6&, 116 


e. Portage 






509 


•>. King 


66 


e. Powers 






144 


e. Kirfe 


337 


V. Prescott 






582 


e. Kirfcley 


117 


p. Prince 






327 


V. Kittle 


328 


p: Quarrel 






319 


;.S' 


127 


p. Quick 






.IIS 


394 


p. Redman 






327 


r. Kruttschnitt 


167 


p. Reed 






325 


V, Lartyette Co. Oonrt 


149 


p. Reynolds 




119 


123. 321 


c. Lean 


,77, 157 


P.Rich 






164 


r. Lehre 


420 


0. Richmond 






348 


e. Leiber 


696 


p. Robb 






616 


D. Linn Co. Court 


119 


P.Roberta 






200, 316 


V. Little 


325 


p. Robinson, 


1 Kansas 


168, 182 


::K 


168 


p. RobinsoD, 


49 Me. 


581 


66 


p. Robinson, 


33 Me. 


683 


V, Slacon County Court 


62 




14 Minn. 


819 


p. Main 


127, 128 


t. RockafeUow 




310 


c. Manning 
e. Mansfield 


272, 981 


V. Rollins 






23 


319 


p. Rutledge 






614 


0. Marlow 


623 


P.Ryan 






272 


0. Marler 


309 


P.Scott 






119. 408 


ti. MatbewB 


133. 575 


c. Shattuck 






348 


V. Mayhew 


69,70 


p. Simonda 






190 


e. Majnard 










352.355 


t). McAdoo 


263 


p. Slack 






327 


V. Mi:Bride 


30,141 


p. Smith 






620 


e. McGinley 


78 


p. Snow 






177, 323 


e. McGinnia 


320 


p. Spier 






325, 327 


v. Medbury 


16. 397 


p. Squires 


129 


149 


370, 381 


D. Mercbanta' Ins. Co. 


503 


p. Staley 






315 


V. Measmore 


277 


p. Stateu 64 


171, 


262, 


352. 855, 


p. Metiger 


406 








363,699 


t>. Miller 


82 


p. Sterling 






283 


V. Molfitt 


134. 590 


p. St, Jowph 






619 


V. Morristown 


194 


p. St Louia Co. Court 


239 


ti. Neal 


32 


p. Stumph 






618 


V. Ned 


825 


V. Summons 






310 


p. Neill 


190 


p. Swiaher 






117. 121 


e. Nelson 


325 


::&°^ 






64. 599 


e. Newark 


873, 378 






322 


V. Newton 


326 


p. Taylor 






322 


t.. New York 


207 


p, Thomas 






317 



DiB.1izedOyGoO<^lc 



TABLE 07 CASES CITED. 



State V. ThompMn 


62 


St. Loaia t>. Weber 


198,200 


D. Tombeckbee Buk 


278,291 


St. Louia, &c., R.B. Co. o. 


Etich- 


•. Towle 


S48 


ardaoa 


669 


e. Trenmrap 


152 




e.TniBteea of Union 


119, 144 


Stockdale t. Hanurd 133 


467, 459 


r. Tomer 


399 


Stocking V. Hunt 


286,288 


». Union 


373 


V. State 168 


182, 823 


n. Vaignenr 


816 


Stoddard V. Martin 


614 


t>. Van Home 


119 


Stoddart 0. Smith 


168 


V.Walker 


827 


Stokes t>. Scott Co. 


216 


e. Wapello Co. 


216, 219 


Stone v-Baaaett 


290 


e.Wamn 


379, 623 


e. Cooper 


424,457 


v.Wbeeln 


177, 682 


e-DanS 


904 


V.White 


465 


e. Sute 


819 


v. Wilcox 117, 119 


121, 190 


Stoner c. Life Innirance Go 


216 


v.Wilkinaon 


328 


Storra e. Utica 


261 


r.Willianw,6Wi». 


64 


Storey p. Fnnnan 


286 


t>. WilliatDS, 2 Uch. 


268,272 


Story 0. Challands 


426 


B.Woodniff 


29 


Stout V. Keyes 


US 


r.Tonng 


603 


StoweU B. Lord Zouch 


67 


Staten e. Hulinga 


75,78 


St. Paul, &c., R.R. Co. V. Parcher 280 


Steanu d. Gittinsi 


866,366 


Strader v. Graham 


26 


Stebbini e. Jeou^n 


197 


Strahl, Ex parte 
Strauch e. Shoemaker 


848 


Steele e. Smith 


16 


371 


fl. Southwick 


423, 424 




Stan o. Borden 


264 




662,666 


V. MobUe 


110 


Streety p. Wood 


483,436 




288 


Slreubdo.Milwankee, &c., 


RJt. 


StetMH) c. Eempton 


191. 219 


Co. 


861 


Sterena e. Andrews 


291 


Striker v.KelleT 

Stringfenow e. State 


78 




637 


314 


Steward e. Jefferaon 


H9 


Strong p. Daniel 


187 


Stewart V. Griffith 


103 


e. State 


266,268 


0. Howe 


423 


Btrond p. Philadelphia 


688 


r. Laird 


67,69 


Stnart ». Clark 


689 


V. Mayor, &e. 


410 


p.Einaelht 


149 


t>. Mechanici' & Fannert' 


Storgeon v. Hitchtna 


146 


Bank 


411 




, 66. 287, 


e.NewOrleana 


248 




288, 366 


Stilei t>. Nokes 


448 




198,580 


Stawell e. Kellogg 


410 


SucceMioD oFLanzetti 


146 


Stine e. BenneU ' 


166 


Suffolk Witchee. Caie of 


314 


Stioaoit». Smitli 


163 


SuUiTgn p. Adams 


185 


Stipp «. Brown 
Sii^noav. United States 


865 


Sumner p. Hicks 


13 




p. MiUer 


381 


8l Joieph V. Anthonr 

K. 0'DonoW« 


498 


Son Mntoal Ina. Co. p. Kew York 143. 


498.607 




18S 




8uobnry4ErieB.R. Co. 0. 


Coo- 


Pidge 589 
St. Toaeph. Ac., R.R. Co. e. 


Snnbnrr&Erie R.R.Co. p. 


186 
aum- 


Coontj Court 


64,119 


mel 


644 


St. Louia V. Alexander 


119 




143 


B.Allen . 


191. 194 




ti. Beutz 


199 


feeady 


166 


t>. CafieraU 


192, 199 


BuperriBors of Schnyler Co. p. 


V. Gomo 


208 


People 136, 189 


140, 146 


V. RnneU 190, 191 


192,239 




69 


».Tiefa 


148,144 




right 64S 



DiB.1izedOyGoO<^lc 



TABLE OF OABBS CITED. 



Sutherhod V. De Leon 


861 


Thomas p. Crostrell 423 


Sutton i>. Tiller 


630 


p. Dakin 197 


Sutton Hospital, Cbm of 
Sutton'g HeirB r. LouIbt 


197 


p. Hubbel) 49 


Ue 669, 670 


p. LeUnd 119,231.234,379. 


Suj-duu c. Broadnax 


294 


381, 479, 491, 611 


r. Moore 


676, 679 


p. Owens 64 


0. Williamson 


14, 101 


Tbomaason r. State 681 


r. Buck 


152 


Thompson P. Alexander 870 


Swan B. Williams 


637 


p. OaldweU 866 


Swift c. Fletcher 


286 


p. Carr 262 


e. TvBoa 


14, 23. 90 


p. Circuit Judge 622 
p. Grand Gulf R.R. Co. 177 




196, 217 


Swindle 0. Brooks 


383 


p. Lee County li9, 379 


Symonds b. Carter 


423 


p. MoiTtan 376, 379 


Sjraiiise Bank s. Davis 


371, 374 


p. Pacific R.B. Co. 482 
p. I^illipt 13 


T. 




p. Sute 402, 406 
p. Steamboat Morton , 897 


Tabor e. Cook 


410 


Thorn p. Blanchard 432 


Talbot V. Dent 


119. 218 


p. Com-ra of Miami Co. 216 


0. Hudson 


182, 633. 661 


Thome p. Cramer 117 


Tallman p. JanesviUe 


879, 382 




Tanner p. Albion 


190, 696 


Thornton p. McGrath 370 


Tarieton r. Baker 


614 


p. Turner 361, 366 


Tarlton d. P^gs 


154 


Thorpe p. Fleminft 105 


Tarploj «. Hamer 
Tash 0. Adams 


287 




211 


R.R. Co. 88, 126, 280. 


Tatett. StooltifooB 


377 


282, 673, 674. 680 


Tate's ExV p. BeU 


168 


Thurberp. Blachboum 16 


Tayloe, Matter of 


810 


ThuMfield p. Jones 261 


Taylor e. Chambers 


47 


Tbnrrton p. Little 520 


p. French 


63 


p. Thurston 103 


n. Marcy 


660,561 


Tide Water Canal Co. p. Archer 567 


p. MeCradten 


49 


Tift p. Griffin 368 


V. Naahville, Ac. 


E.E. Co. 630 


T^man p. Shackleton 62 


t>. Newbern« 


119 


'Hms p. 8tat« 185 


t). Place 


90, 96, 109 


Tinicum Fishing Co. p. Carter 641 


r. Porter 88, 92, 353, 367, fi24. 


Tinsman p. Behidere & DeUware 




631 


R.R. Co. 644 


e. Steams 


291 


Todd p. Hawkins 426 


K. Taylor 66 


618, 619. 623 


p. Kerr 402, 405 


p. Thompson 


226 


Toledo Bank p. Bond 280 


Teft p. Griffin 


368,406 


Tolen B. Tolen 402 


p.Teft 


111, 390 


Tonawauda R.R. Co. p. Hunger 644, 


Temple p. Mead 
T«n Eyck V. Keokuk 


82,606 


^ 679 


216 


Tong p. Marvin 62, 361 


Tenney p. Lenz 


202 


Torrey p. Field 442 


Terrett p. Taylor 166, 


176, 236, 275, 


p. Milburv 76, 520 




278 


Towlo p. Forney 103 


Terrill p. Rankin 


861 


Town of Pawlet p. Clark 236, 276, 278 


Territory b. Pyle 
Terry p. Bright 
ThaAer p. Hawk 


277 


Townsend p. Griffin 113, 406 


423 


B. Kendall 406 


394 


Tower p. Lamb 409 


Thames Bank r. LoveU 


692 


Treat v. Lord 690 


Thames Manuf. Go. p. Lathrop 78, SS2 


Trcmain v. Cohoes Co. 644 


Thein p. Vo^Uandle 


536 


Trevett p. Weeden 26, 161 


Thomas p. Board of Con 







DiB.1izedOyGoO<^lc 



TABLR OF CASBS CITED. 



Trott ». WMfron 197 


United States v. Hudwm 19, 


TroDp «. Haifdrt €9 


r. Jone* 


Troy & BonoD R.R. Co. s. Lee 567 


e. l^gold 


Trar ft Botton B.R. Co. v. North- 


eraTampikeCo. 643 


p. Minne>ot< &C., 


Tnic B. Plumley 422 


R.R. Co. 


TraehArt e. Addicka 618 




Traeman *. T»ylor 424 


e. Morris 


Tnuteei of Cmi o. Daion 222. 228 


p. New Bedford 


Trustees of Erie Ac«deniy p. Gty 


Bridge 


of Erie 192 


B. Palmer 


Tnuteea c. McCangfaer S61, 371, 374 
D. McCtmneif 515 


e. Passmore 861, 
e. Purcbeman 


rrTirtee«ofPari.e. Cberrj- 119 


e. Peres 


Ac, e. Shoemaker 119 




Tnuteea of Schools r. Tumw 191, 


192, 193, 2S», 277 


c. Rector 


Tm«tee« of W. & E. Canal o. 


9. Riley 823. 


Spean 544 
Tucker t>. Harris 265 


p. Samperyao 
o. WilBon 


e. MagM S40 


United States Bank «. Halslead 


«. Virginia City 195, 212 


D.Norton 


p. Planter's 


wick ' 289 


Bank 


Tnrberille v. Stampe 573 


UniTersi^ of North Carolitu e. 


Tnrley e. Ugan Co. 134 


Foy 


Tanipike Co. e. People 62 




e. Sute 384 


Upton p. South Beading Branch 
%.E. 669, 




161 


Usher p. Colchester 


Tattle e. Stront 146 


Utiey p. CampbeU 


Twnably tr. Henley 49 






Trier v. People 127, 168 


V. 


B. Tyler 52 




Ty«m e. School Director* 227, 370, 


Tan Allen p. Assessors 


487,490 


Tan Alstyne p. Indiana P. & C. 
R.R.CO. 






VwiAnkinp.WestJall 






U. 


Tan Bokkelin p. Ingersnll 

Tan Camp v. Board of Ednca^on 

Vanderbilt p. Adams 283, 686, 




Uhris r. St. LoDis 606 






Underbill r.Welton 428 


Van HoSinan v. Qaincy 


Underwood p. Lilley 372, 377, 379 


Tan Home ». Dorrance 


Union Bank r. Hill 483 


Van Kleek p. Egglerton 






Tan Nest p. Pacard 


B. Battiflte 823 


Tan RensseUer p. Ball 


e. CeHendu 336, 428 


p. Dole 


».CooIidge 19 


P.Hays 


V.Cooper 428 
0. Defritt 9,673 


p. Kearney 

P. Snyder 286, 


t>. Fiiber 66, 63 


Tan Wyek e. Asnmwall 

Tan Zanl p. WaddeU 362, 364. 


». French 348 


g. HamUloa 310 


Tarick V. Smith 168. 


t>. HaiweU 428 


Teazle v. China 



DiB.1izedOyGoO<^lc 



TABLE OF CASES CITBD. 



VeAzie V. TAkjo S75, 

ffi Moore 
Veute Bank v. Fenno 482, 

Veeder r, Lima 196, 

VidftI e. Ginrd'a £x*n 
Vilu c. Milwaukee St M. R.B. 

Co. 
TiDcenneg v. lUcbardi 206, 

Tinceunea UniTenity v. lodiana 
Yincent v. Nantucket - 
Tiolett B. Violett 
Vischer r, Vischer 
Viae c. Hamilton Co. 
VoglewDg n. Stata 477, 

Voorhieft, Matter of 
Von e. Morten 



W. 

Waba«h, Ac., Co. e. Been 
Wade D. Richmond 
Wadleigh e. Gilman 
Wadaworth's Adm'r e. Smith 
Wager o. Troy Union E.R. Co. 



0. Bjeri 
V. Swampaoott 
Waldo e. Portland 
Waldron e. RenaieUer i 

R.R. Co. 
Walea p. Ljon 

o. Stetson 
Walker c. Caldwell 
e. Danham 
p. Taylor 
Wall 0. Sttte 

V. TnmbaQ 
Wallace, /n re 
Wallace t>. Mnacatine 

r. Shelton 
Wally'a Heirs e. Kennedy 
Walpole e. EUiott 
Walston c. Commonwealth 
Walter e. Bacon 
Walther p. Warner 
Walton'a Leaeee e. Bailer 
Walt* V. Waltz 
Wammack c. HoUowar 
Wautlan o. Wbite 
Ward n. Briinerd 
o. Morris 
v. State 

Wardlaw v. Buzzard 
Ware u. Hylton 
Warrickahall's Case 
Warner p. Paine 



Warner p. People 276 

V. Scott 47 

t>. Suie S23 

Warren o. Charlertown 177 ,'179 

0. Glynn 409 

D. Henley fi09 

o. Lvona City 237 

V. McCarthy 16 

e. Paul 463 

0. Sherman £7 

V. State 823 

Warten MaaoT. Co. e. JEtna Lu. 
Co. 16 

Waahbum v. Cooke 425 

p. FnuikUn 862, 375 

Waahington p. Murray 69, 81, 149 
V. NashvUle 588 

WaaHngton Bridge Co. p. State 676, 
678 

Waahington Co. v. Berwick 222 

Waahington Inmraoce Co. p. Frice411, 



Waahington Uniwrrity 


p. Room 280 


Watkins, Ex parte 


348 


Watkins p. Haight 


370 


p. Holman'a Lesaee 102 


0. Walker Co. 


626 


Wstaon V. McCarthy 


423 


V. Mercer 26£ 


, 976, 377, 381 


0. Tharber 


62 


Watta p. Greenlee 


423 


p. State 


311 


Wayman p. Southard 


90 


Weaver e. Cherry 


212 


p. I-apaley 


82, 95, 149 


Webbp. Baird 


334,893 


p. Den 


367,368 


Wobater p. Cooper 


13 


p. French 


78 


P. Harwinton 


189, 191. 219 


p. R«id 


404,407 


Weed p. Foater 


424 


Weeka p. Milwaukee 


192, 382, 493, 


499, 503, 608, 611 


515, 519, 596 


Weet p. Brockport 


248 






264 


Weiater p. Hade 9, 


173, 182, 227, 




872, 479 


Welch p. StoweU 


683 




16 


293, 362, 872, 




375 


Walker p. Potter 


129 


Wellington, Petitions 


164, 177, 182 


Wella p. Burbank 


620 


p. Scott 


409 


p. Someraet, &c. 


K.B. Co. 626 



DiB.1izedOyGoO<^lc 



TABLE OF CABES OTED. 



WeUfP. Weston 382, 499 

Wendell e. Troj 254 

West o. Bucrofl 564 

Weatem College t>. Cleveland 206 

Weiteni FQnd Sariug Society e. 

Philadelphia 261 

Weaterrelt t>. Gragg 866, 360, 361 
c. hew 16 

Wetton e. Charleitoa 18, 482 

r, Foster 658 

Weat Biver Bridge Co.e. Dtx S81, 628 
WetniDi^ Uavor of p. Whiter 119 



WbeatoQ c. Peters 

Wbeeler e. Chicago 
V. Ghubbuck 
v. Bochester, Ac., 



10 



p.WiOl 1 
e. Worcester S 
Wlieeliiis Brit^ Case £91, 6 
Wbeel<x£ e. Toung 6 
Whipler e. HcCnne 6 
V. State S 
Whipple e. Farrv S 
Wlihe e. Buchanan 397, S 
V, Commisaionen of Nor- 
folk Co. 5 
». Flynn 3 
e. Kendrick S 
p. Kent £ 
e. Scott 1 
«. White 6 

WUtebread v. The Qneen 3 
WhitBBun's Ezhv e. Wilmington, 

Ac., R.R. Co. 6 
Whit« Biver Turnpike Co. p. Ter- 

moDt Central R.R. Co. 62«, 6 

White School Houm i>. Post 8 

Wbitmg e. Barney 8 

p. Earie 3 

V. Ht. Pleasant 144, 1 

V. Sheboygan R.R. Co. 2 

Whitoun «. Boston A Maine -R.R. 

Co. 5 

e. Hu^tood 8 

Whitney e. Richardson 9 

Whittaker «. Johnson Co. 

Whittington v. Polk 47, I 

Wfarta r. Kashnlle S 

Wilby p. Elston i 

Wilcox e. Kaasick 4 

P.Wilcox 4 

Wilder tt. Case 

WOdea s. Tan TootUoa S 



i. 101, 106, 166, 
176 



Wiley p. Farmer 
Wilkes's Case 
Wilkes V. Wood 
Wilkins p. MiUer 
Wilkinson p. Leland S 



Wniard p. Killin^orth 
p. Lonintreet 
p. People 
Willcox B. KsMlok 
Williams e. Bryant 
P. Csrleton 
p. Commonwealth 
P. Detroit 168, 497, 498,607, 



191 



178, 180 
16 



423 



611 

p. Hunes 287 

p. HUl 424 

e. Johnson 870 

p. Natural Bridge Plank 

Road Co. 545 

p. New York Central 

E.R. Co. 647 

p. Norris 12 

0. OliTer IS 

«. Payson 146, 177 

p. People 146 

p. School District 78, 616,632 

p. Wickerman 630 

Williamson p. Beny 14 

p. Cariton 164 

p. ^nrdam 101 

p. Williamson lOS 

WHlistoa p. Colkett 371 

Wilson's Case 344 

Wilson V. Blackbird Creek Marah 

Co. 486,681,637,591,694 

p. Collins 442 

p. Crockett 630 

p. Franklin 630 

p. Hardesty 376 

p. New York 616, 642 

p. Runyan 423 

p. State 337 

Wincbell p. State 819 

Winchester p. Ayres 899 

Windham p. Portland 198 

Windgate o. Binder 479 

Winona, &d.. R.R. Co. P. Denman 670 

Winona & St. Paul RJt. Co. p. 

Waldrou 667, 678 

Winsor V. The Queen 337 

Winter p. Jones 284 

Wires p. Farr 365 

Withers p. State 837 

Witbington p. Corey 389 

Witt p. Sute 219 

Woart p. Winnick 266,266,366,370 
Wolcott p. People 486 



DiB.1izedOyGoO<^lc 



TABLE OF CASES CITED. 



Woloott t. Kckej 


S40 


Wright p. Hawkina 


361 


Wolcctt Woo^n Mannf. 


67,78 


p. Le Claire 


47 


Co. p. 


p. Oakley 


366 


Uplam 


634 


«. Paige' 


422 


Wolfe c. Cofingtou & Lexington 


p. State 


326,327 


R.R. Co. 


647 


p. Woodgate 


426 


Wood V. Brooklyn 
p. Kennedy 


198 


p. Wright 


113 


293. 376 


Wroth p. Johnson 


614 


e. McCmn 


137 


Wynehamerp. People 89, 168, 171, 172. 


V. RftodaU 


409 


364, 366, 364 


662,668 


0. Stephen 


49 






p. Wstkinson 


16 






Woodbridge t7. Detroit 498, SOI, 608. 


T. 




Woodbuiy V. Thompson 
Woodcock v. Bennett 


423, 424 


Tale, Ex parU 


263 


863 


Yates e. People 


808 


WoodfaU'a Cue 


460 


p. Yates 


402 


Woodfolk 1.. NMhTJIle E.R. Co. 670 


Yeaker e. Yeaker 


12 


Woodhull e. Wagner 


294 


Yeatman p. CrandeU 


498, 612 


Woodruff e. Fisher 


. 611 


Yost p. Stont 


680 


p.Neal 


644 


Yoat'a Report 
Young p. Black 


371 


V. TrapnsU 


11,284 


47 


Woodward v. Lander 


433 


p. McKenzie 


631 


p. Tremere 


16 


p. State Bank 


95 


Woodworth p. Spring 


406 






Woolsev c. Dodge 


13 






Work p. State 


319, 399 


Z. 




Worth p. BuUer 


423 






Wray, ExvarU 

V. Pittsboi^ 


310 




119 


«8. 607 


ZanesTiUe v. Auditor of Muskm- 


Wreford v. People 


204 


gum 


617 


Wrif^t p. Carter 


646 


Zimmerman p. Union Canal Co. 641. 


r. Chicago 


498 




692 


p. Cradlebangh 


869 


Zottman t>. San Francisco 


211 


p. De Fraes 


187 


Zumhoff 0. State 


682 


p. Dunham 


868 


Zylata'aCaae 


865 



DiB.1izedOyGoO<^lc 



CONSTITUTIONAL LIMITATIONS. 



v.Gooi^lc 



DiB.1izedOyGoO<^lc 



CONSTITUTIONAL LIMITATIONS. 



CHAPTER I. 



DEFINITIONS. 



A State is a bod7 politic, or society of men, anited together for 
the purpose of promoting their mutual safety and advantage by the 
joint efforts of their combined strength.^ Tlie terms nation and 
jSbife are frequently employed, not only in the law of nations but 
in common parlance, as importing the same thing ;^ but the term 
nation is more strictly synonymous with people, and while a single 
State may embrace different nations or peoples, a single nation will 
eometimes be eo divided politically as to constitute several States. 

In American constitutional law the word State is applied to the 
several members of the American Union, while the word nation is 
applied to tJie whole body of the people embraced within tlie juris- 
diction of the Federal government. 

SovereigTttff, aa applied to States, imports the supreme, absolute, 
uncontrollable power by which any State is governed.^ A State is 
called a sovereign State when this supreme power resides within 
itself, whether resting in a single individual, or in a number of in- 
dividuals, or in the whole body of the people.* In the view of 
inteniational law, all sovereign States are and must be 
eqnal in rights, * since from tlie very definition of sover- [* 2] 

• VMtel, b. 1, c. 1, § 1; Story oa Conrt. § 207; Wbe*t. Int. Law. pt. 1, 
e. 2, S 2; Halleck, Int. Law, 63; Bout. Law Diet. " State." "A multitude of 
people noited together by a communion of interest, and by common Uwa, to 
wliicli they mbmit with one accord." Burlamoqui, Politic Law, c. 6. 

• Thompion, J., in Cherokee Nation o. Georgia, 5 Pet. 62; Tattel, mpra. 

' StoTj on Conat. § 207 ; 1 Black. Com. 49 ; Wheat. Int. Law, pt. 1, c. 2, 
% 5 ; Halledc, Int. Law, 63, 64 ; Chipman on Govemroent, 137. " The right of 
commanding finally in dvil society." Burlamsqui, Politic Law, c. 6. 

• Vattel, h I.e. 1, §2; Story on Const. § 207; HaUeck, Int. Law, 6.5. In 
olber word*, when i; ia an indqmidail State. Chipman on Goveniment, 137. 

[1] 



DiB.1izedOyGoO<^lc 



• 2 CONBTITtmONAL LIMITATI0S8. [CH. I. 

eigii State, it is impossible that there should be, in respect to it, 
any political superior. 

The Boveroigiity of a State commonly extends to all the subjects 
of government within the territorial limits occupied by the associa- 
ted people which compose it; and, except upon the high seas, 
which belong equally to all men, like tlie air, and uo part of which 
can rightfully be appropriated by any nation,' the dividing line 
between sovereignties is usually a territorial line. In American 
constitutional law, however, there is a division of the powers of 
sovereignty between t)ie national and State governments by sub- 
jects : the former being possessed of supreme, absolute, and uncon- 
trollable power over certain subjects throughout all tlie States and 
territories, while the States have tlie like complete power, within 
thoir respective territorial limits, over other subjects.* In regard 
to certain other subjects, the States possess powers of regulation 
which ate not sovereign powers, inasmuch as they are liable to be 
controlled, or for the time being to become altogether dormant by 
the exercise of a power vested in the general government in respect 
to tho same subjects. 

A Constitution is sometimes defined as the fundamental law of a 
State, containing the principles upon which the government is 
founded, regulating the division of the sovereign powers, and 
directing to what persons each of tliese powers is to be confided, 
and the manner in whicli it is to be exercised.^ Perhaps an 
equally complete and accurate definition would be, that body of 
rules and maxims in accordance with which the powers of sover- 
eignty are liabitnally exercised. 

In a much qualified and very imperfect sense every State may 
be said to possess a constitution ; that is to say, some leading prin- 
ciple has prevailed in tlie administration of its government, 
until it has become an understood part of its system, to which 

' Vattel, b. 1, c. 23, § 281 ; Wheat. Int. Law, pt. 2, c. 4, § 10, 
* McLean, J., in LiceoBe Cases, 5 How. £88. " The powers of the general 
government and of Ihe State, although both exist and are exercised within llie 
same territorial limits, are yet separate and distinct sovereignties, acting sepa- 
rately and independently of each oiher, witbin their respectivo spheres. And the 
sphere of action sppropriated to tlie United States is as far beyond the reach of 
the judicial process issued by a State judge or a State court, as if the line of 
division was traced by landmarks and monuments visible lo the eye." Taney, 
Ch. J., in Ableman c. Booth, 21 How. 616. 
' 1 Bouv. Inst. 9 ; Duer, Const. Juris. 26. 
[2] 



DiB.1izedOyGoO<^lc 



CH. I.] DEFINTTIONS. • 8 

obedience * is expected and habitually fielded ; like the [* 3] 
hereditary principle in most monarchies, and the cuBtom of 
choosing the chieftain by the body of the people which prevails 
among some barbarous tribes. But tlie term constitutional govern- 
ment is applied only to tliose whose fundamental rules or maxims 
not only locate the sovereign power in individuals or bodies desig- 
nated or chosen in some prescrilied manner, but also define the 
limits of its exorcise so as to protect individual rights, and shield 
them against the assumption of arbitrary power. The number of 
these is not great, and tbe protection they afford to individual 
rights is far from being uniform.' 

In American constitutional law the word Constitution is used in 
a restricted sense, as implying the written instrument agreed upon 
by the people of the Union, or of any one of the States, as the ab- 
solute rule of action and decision for all departments and officers 
of the Government, in respect to all the points covered by it, until 
it shall be changed by the authority which establislied it, and in 
opppsitiou to which any act or regulation of any such department 
or officer, or even of the people themselves, will be altogether void, 

Tbe term uncorutitutional law must vary in its meaning in differ- 
ent Slates, according as the powers of sovereignty are or are not pos- 
sessed by the individual or body which exercises the powers of ordi- 
nary legislation. Where the law-making department of a State is 
restricted in its powers by a written fundamental law, as in the 
American States, we understand by unconstitutional lav one wliich, 
being opposed to the fundamental law, is therefore in excess of legis- 
lative authority, and Toid. Indeed, the term unconstitutional law, 
88 employed in American jurisprudence, is a misnomer, and im- 
plies a contradiction ; that enactment which is opposed to the Con- 
stitution being in fact no law at all. But where, by the theory of 

' Abiolute monarclu, auder & preBiare of □ecesrit]', or to win tbe favor of 
their people, cometimeB gntitlfaem what is called a conatitation ; but this, so long 
aa tbe power of the monarch ia recognized as supreme, can be no more than his 
promiae that be irill observe its provisioos, and conduct the govornmeot accord- 
inglj. ^Hm mere gnnt of a constitution does not make tbe government a con- 
stitutional government, until the monarch is deprived of power to set it aside at 
will. Tbe mere grant of Magna Charts did not make the English a constitu- 
tional monarchy; it was only al^ar repealed violations and confirmations of that 
instmment, and after a further disregard of its provisions had become dangerous 
to the Crown, that fundamental rights could be said to have constitutional guar- 
■ntisi, and the government to be oonatitutional. 

[8] 



DiB.1izedOyGoO<^lc 



• 8 CONSTITDTIOKAL LHCITATIONB. [CH. I. 

tlie government, the complete eovereignty is vested in the same io- 
dividual or body which enacts the ordinary laws, any law, being 
an exercise of power by the sovereign authority, conld not be void, 
but if it conflicted with any existing constitutional principle, must 
have tlie effect to modify or abrogate such principle, instead of 
being nullified by it. This must be so in Great Britain with every 
law not in hannony with pre-existing constitutional principles ; 
since, by the theory of its government, Parliament exercises sove- 
reign authority, and may even change the Constitution 
[* 4] * at any time, as in many instances it has done, by declaring 
its will to that effect.^ And when thus the power to control 
and modify the Constitution resides in the ordinary law-making 
power of the State, the term unconstitutional law can mean no 
more than this : a law which, being opposed to the settled maxims 
upon which the government has habitually been conductedj ou§rht 
not to bo, or t« have been, adopted. It follows, therefore, that in 
Croat Britun, constitutional questions are for the most part to be 
discussed before the people or the parliament, since the declared 
will of the parliament is the final law ; but in America, after a 
constitutional question has been passed upon by the legislature, 
there is generally a right of appeal to the courts when it is at- 
tempted to put the will of the legislature in force. For the will 
of the people, as declared in the Constitution, is the final law ; and 
the will of the legislature is only law when it is in harmony with, 
or at least is not opposed to, that controlling instrument which 
governs the legislative body equally with the private citizen.' 

> 1 Bl&ck. Com. 161 ; De Tocqneville, Democracj in America, o. 6 ; Broom, 
Const. Law, 795. 

■ See Chapter VII. jmt. 



DiB.1izedOyGoO<^lc 



CH. n.3 THE COKSTITDTION OP THE TJNTFBD STATES. * 5 

•CHAPTER II. [*5] 

THE COHSTmraON OF THE UNITED STATES. 

Thb government of the United States is the existing represent- 
ative of the national government which has always in some form 
existed over the American States. Before tlie Revolution the 
powers of government, which were exercised over all the coloaies 
ID common, were so exercised as pertaining either to the Grown of 
Great Britun or to the Parliament ; but the extent of those powers, 
aod how far vested in tlie Grown and how far in the parliament, were 
qaestiobs never definitely settled, and which coustituted subjects 
of dispute between the mother country and tlie people of the colo- 
nies, .finally resulting in hostilities.^ That the power over peace 
Bod war, the general direction of commercial intercourse with other 
nations, and the general control yf sncli subjects as fall within the 
province of international law, were vested in the home government, 
and that the colonies were not, therefore, sovereign States in tlie 
full and proper sense of that term, were never seriously disputed 
in America, and indeed were often formally conceded ; and the dis- 
putes related to questions as to what were or were' not matters of 
internal regulation, the control of which the colonists insisted 
should be left exclusively to themselves. 

Besides the tie uniting the several colonies through the crown 
of Great Britain, there had always been a strong tendency to a 
more intimate and voluntary union, whenever circumstances of 
danger threatened them ; and tliis tendency led to the New Eng- 
land Confederacy of 1643, to the temporary Congress of 1690, to 
the plan of union agreed upon in Convention of 1754, but rejected 
by the Colonies as well as the Crown, to tlie Stamp Act Congress 
of 1765, and finally to the Continental Cougreas of 1774. When 
the difficulties with Great Britain culminated in actual war, the 

■ 1 FiUdn'a Qst U. S. c. 6 ; Life «nd Works of John Adamt, Vol. I. pp. 
122. 161 ; Vol. II. p. 311 ; Works of Jeffenon, Vol. IX. p. 294 ; 2 MarahaU'i 
WuhingtoD, c. 2 ; Declaration of BighU by Colonial Congreaa of 1765 ; Ram- 
M^'f Bevolation in South CaroUna, pp. 6-11; 5 Bancroft'a 17. S. c. IB; 1 
Webiter'a Wotka, 128 ; 8(017 <>» Const. § 18S, <t leq. 

[6] 



idByGoOl^lc 



•5 coNBTrmnoKAL umitatioks. [ch. n. 

Gougress of 1775 assumed to itself tlioee povers of external con- 
trol which before had been conceded to the crown or to 
[•6] the 'ParHament, together with such other powers of bov- 
ereiguty,aa it seemed eBseiitial a general gOTemmeiitahould 
exercise, and became the national government of the United Colo- 
nies. By this body, war was conducted, independence declared, 
treaties formed, and admiralty jurisdiction exercised. It is evi- 
dent, therefore, that the States, though declared to be " sovereign 
and independent," were never strictly so in their individual 
character, but that they were always, in respect to the liigher pow- 
ers of sovereignty, subject to the control of a ceutral power, and 
were never separately known as members of the family of nations.^ 
The Declaration of Independence made them sovereign and 
independent States, by altogether abolishing the foreign juris- 

' " All the cDuntiy now poa^essed by the United States wts [prior (o the 
Revolalion], A p»t of the dominious appertaining to Ihe Crown of Great Britain. 
Every acre of land in this country was then held, mediately or immi'diaCely, by 
grants from that crown. All the people oflhi* country were then subjects of the 
king of Great Britain, and owed allegiance to him ; anil all the civil authority 
then existing or exercised here tlotred from the head oftbo Briti:ib empire. They 
were in a strict sen«e fellow- lubjects, and in a variety of respects one people. 
When the Revolution commenced, the patriots did not assert that only the same 
Affinity and social conneclion subsisted between the people of the colonic?, which 
■ubsisted between the people of Gaul, Britain, and Spain wbilc Roman provinces, 
namely, only that affinity and social conneclJon which result from the mere cir- 
cnmslance of being governed by one prince ; different ideas prevailed, and gave 
occasion to the CongreBS of 1774 and 1775. 

"The JUvolution, or raiberthepeclaration of Independence, found the people 
already united ior general purposes, and at the same time providing fur tbeir 
more domestic concerns by State conventions and other temporary arrangements. 
From the Crown of Great Britain the sovereignty of their country passed to the 
people of it; and It was not then an uncommon opinion that the unappropriated 
lands which belonged to the Crown passed, not to the people of the colony or 
State within whose limits they were situated, but to the whole people. On what- 
ever principles this opinion rested, it did not give way to the other, and thirteen 
sovereignties were considered as emerged from the principles of the Revolution, 
combined with local convenience and considerations; the people, neverthtless, 
continued to consider themselves, in a national point of view, as one people ; and 
they continued without interruption to manage their national concerns accord- 
ingly. Afterwards, in the hurry of the war, and in the warmth of mutual conG- 
dence. they made a confederation of the States the basis of a general government. 
Experience disappoinled the expectations they had formed from it; and then the 
people, in their collective capacity, established the present Constitution." Per 
Jan. Ch. J., in Chisliolm v. Gcoi^ia, 2 Dall. 470. 
[6] 



idByGoOl^lc 



CH. n.] TBB CONSTITDTION OP THE DNITED BTATES. *6 

diction, and subatituting a national government of their own 
creation. 

But while national powers were asaamed by and conceded 
to t the Gougreaa of 1775-70, that body was nevertheleas ['7] 
strictly revolutionary in its character, and like all revolu- 
tionary bodiea, ita authority was undefined, and could be limited 
only, firtt, by instructiona to individual delegates by the States 
choosing tliem ; second, by the will of the Congresa, and third, by 
the power to enforce that wiU.^ As in the latter particular it was 
esseutially feeble, the neceaaityfor a clear specilication of powers 
which should be exorcised by the national government became 
speedily apparent, and led to the adoption of the Articles of Con- 
federation. But those articles did not concede Uie full measure of 
power easential to the efficiency of a national government at home, 
the enforcement of respect abroad, or tiie preservation of tlie pub- 
lic faith or public credit ; and the difficulties experienced, induced 
the election of delegates to the Constitutional Convention held in 
17S7, by which a Constitution was formed which was put into opera- 
tion in 1789. As much larger powera were vested by this instrument 
in the general government tlian had ever been exorcised in thia 
country, by either the Crownj the Parliament, or the Revolutionary 
Congress, and larger than those conceded to the Congress under 
the Articles of Confederation, the assent of the people of the sev- 
eral Statea waa essential to its acceptance, and a provision 
was inaerted in the Constitution that the ratification * of [* 8] 
the conventions of nine States should be sufficient for the 
eatablishment of the Constitution between the States so ratifying 
the same. In fact, the Conatitntion was ratified by conventions of 
delegates chosen by the people in eleven of tlio States, before the 
new govenimeut was oi^nized under it; and the remaining two. 
North Carolina and Bliode Island, by their refusal to accept, and 
by the action of the others in proceeding separately, were excluded 
alt(^ether from tiiat national jurisdiction which before had embraced 
tbem. Tliis exclusion was not warranted by any thing contained 
in the Articles of Confederation, which purported to be articles of 
" perpetual union " ; and the action of the eleven Statea in making 
radical revision of their Constitution, and excluding their associ- 

' See remarki of Ireddl, J., in Peahallow v. Doane's AdiiiV, 3 Dall. 91, ood 
ot Blair, J., ID the lame case, p. 111. The true doctrine on this subject is verj 
deartj ezpl&ined bj Chase, J., in Wore t>. Hyttou, 3 Dall. 231. 

[7] 



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* 8 CONSTITdTIONAL LIHITATIONB. [OH. n. 

atea for refusal to aaseut, vas really reTolutionary in character, and 
011I7 to be defended on the same ground of necessity on which all 
revolutionary action is justified, and which in this case, vas the ab- 
solute need, fully demonstrated by experience, of & more efficient 

general government.* 
[* 9] * Lefl at liberty now to assume complete powers of sover- 

eignty as independent governments, these two States saw fit 
soon to resume their place in the American family, under a per- 

' " Two queEtions of & veiy delicate nature preacnt themselves on thia occa- 
tioD; 1. On what principle the confedenlion, which stands in the form of a 
solemn compact among the States, can be supeneded without the unanimous con- 
sent of the parties to it; 2. What relation is to subsist between the nine or more 
States ratifj'ing the Constitution, and the remuning few who do not become 
parties to it. The first question is answered at once by recurring to the absolute 
necesBtty of the case ; to the great principle of self-preservation ; to the tran- 
scendent law of nature and of nature's God, which declares that Hie safelj and 
happiness of society are the objects at which all political institutions aim, and 
to which ail such institutions must be sacrificed. Peihapa, also, an answer may be 
found without searching beyond the principles of the compact itself. It has been 
heretofore noted, among the defects of the confederation, that in many of the 
States it had received no higher sanction than a mere legislative ratification. 
The principle of reciprocality seems to require that its obligation on the other 
States should be reduced to the same standard. A compact between independent 
sovereigns, founded on acts of legislative' authority, can pretend to no higher 
validity than a league or treaty between the parties. It is an established doc- 
trine on the subject of treaties, that all of the articles are mutually conditions of 
each other ; that a breach of any one article is a breach of the whole treaty ; and 
that a breach committed by either of the parties absolves the others, and author- 
izes them, if they please, to pronounce the compact violated and void. Should 
it unhappily be necessary to appeal to these delicate truths for a justification for 
dispensing with the consent of partii^utar States to a dissolution of the federal 
pact, will not the complaining parties find it a difficult task to answer the multi- 
plii^d and important infractions with which they may be confronted? The time 
has been when it waa incumbent on us all to veil the ideas which this paragraph 
exhibits. The sceue is now changed, and with it the part which the same motives 
dictate. The second question is not less delicate, and the flattering prospect of 
Its being merely hypothetical forbids an over-curious discussion of it. It is one 
of those cases which must be lefl to provide for itself. In general it may be 
observed, that although no political relation can subsist between the assenting 
and dissenting States, yet the moral relations will remain uncancelled. The 
claims of justice, both on one side and on the other, will be in force and must be 
fulfilled; the rights of humanity roust in all cases be duly and mutually respected; 
whilst considerations of a common interest, and above all the remembrance of 
the endearing scenes which are past, and the anticipation of a speedy triumph 
over tlie obstacles to reunion, will, it is hoped, not urge in vain moderation on 
one side, and prudence on the other." Federalist, No. 4S (by Jtf<n£uon). 
[8] 



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CH. II.3 THE COKSTITUTION OF THE DNTIXD STATES. * 9 

mission coDtained in the ConBtitution ; and nev States have since 
been added from time to time, all of them, with the exception of 
one, organized by the cooBont of the general government and em- 
bracing territory previously under its control. The exception was 
Texas, which had previouBly been an independent sovereign State, 
bat which, by the conjoint action of its government and that of the 
United States, was received into the Union on an equal footing 
with ^e other States. 

Without therefore discusBing, or even designing to allude to any 
abstract theories as to the precise position and actual power of the 
several States at the time of forming the present Constitution,' it 
may be said of them generally that they have at all times been sub- 
ject to Bome common national government, which has exerciBod 
control over the subjects of war and peace, and other matters pei> 
taining to external sovereignty ; and that when the only three States 
which ever exercised complete sovereignty, accepted the Constitution 
and came into the Union, on an equal footing with all the other States, 
they tliereby accepted the same relative position to the general gov- 
ernment, and divested themselves permanently of those national 
powers which the others had never exercised. 

The government of the United States is one of enumerated 
poisert; the national Constitution being the instrument which 
specifies them, and in which authority should be found for the 
exercise of any powe; which the national government assumes to 
posseaa.^ In tliis respect M diSers from the constitutions of 
the * Beveral States, which are not grants of powers to the [* 10] 
States, but which apportion and impose restrictions upon 
tiie powers which the States inherently possess. The general pur- 

' See tbis mibje«t disciused in Gibbous e. Ogden, 9 Wheat. 1. 

* * ' llio goTemment of the United SUtee c&n claim no powers which ar« not 
gtmnted to it hj the Constitution ; and the powers actually granted must be such 
as are exprewlir given, or given by neceuaiy implication." Per Marikall, Ch. J., 
in Alartin n. Hunter's Leasee, 1 Wheat. 326. "This instrument contains an 
OtumeratioD of the powers expressly granted by the people to their goTernment." 
MarAaU, Ch. J., in Gibbons o. Ogden, 9 Wheat. 187. See Cslder t>. Bull, S 
Dall. 386 ; Briscoe v. Bank of Kentucky, 1 1 Pet. S57 ; Gilman v. Philadelphia. 
S Wal. 713 ; WeisUr p. Hade, 62 Penn. St. 477. The t«nth amendment to the , 
CoDstitntion provides that " The powers not delegated to the United States by 
the CoDsdtation, nor prohibited by it to the States, are reserved to the States 
respectirely, or to the people." No power is conferrad by the Constitution upon 
Congress to establish mere police regnlations witlun the SCat«s. United Stktea 
t. Dewiu, 9 Wal. 41. 

[93 



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•10 COfJSTITtrTIONAL LIKITATIOSS. [CH. U. 

pose of the CoiiBtitution of the United States is declared by its 
foanders to be, "to form a more perfect union, establisli justice, 
insure domestic tranquillity, provide for the common defence, pro- 
mote the general welfare, and secure the blessings of liberty to 
ourselves and our posterity." To accomplish these purposes, the 
Congress is empowered by the eighth section of article one: — 

1. To lay and collect taxes, duties, imposts and excises; to 
pay the debts and provide for the common defence and general wel- 
fare of the United States. But all duties, imposts and excises, shall 
be uniform tliroughout the United States. 

2. To borrow money on the credit of the United States. 

3. To regulate commerce with foreign nations and among the 
several States, and with the Indian tribes. 

4. To establish a uniform rule of naturalization, and uniform 
laws on the subject of bankruptcy, throughout the United States. 

5. To coin money, regulate the value thereof, and of foreign coin, 
and fix the standard of weights and measures. 

6. To provide for the punlsliment of counterfeiting the securities 
and current coin of the United States. 

7. To establisli post-offices and post-roads. 

8. To promote the progress of science and the useful arts, by 
securing for limited terms to authors and inventors the exclusive 
right to their respective writings and discoveries. 

9. To constitute tribunals inferior to the Supreme Court. To 
define and puuisli piracies and felonies committed upon the high 
seas, and offences against the law of nations. 

10. To declare war, grant letters of mai-qne and reprisal, and 
make rules concerning captures on land and water. 

11. To raise and support armies ; but no appropriation of money 
to that use shall be Tor a longer term than two years. 

12. To provide and maintain a navy. 

13. To make rules for the government and regulation of the 

laud and naval forces. 
[* 11] * 14. To provide for calling forth the militia to execute 
the laws of the nation, suppress insurrections, and repel 
invasions. 

15. To provide for oi^nizing, arming, and disciplining the 
militia, and for governing such part of them as may be employed 
in the service of the United States, reserving to the States re- 
spectively the appointment of the officers, and the authority of 
[10] 



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CB. n.] THE coNsnnmoir or the itnited states. *11 

traiDing the militia according to the disGipline prescribed by 
CoDgreBs. 

16. To exercise exclusive legislation in all cases whatsoever, 
over such district not exceeding ten miles square as may, by ses- 
noQ of particular States, and the acceptance of Congress, become 
the seat of government of the United States ; and to exercise like 
anthorlty over all places purchased by the consent of the legisla- 
tore of the State in which the same shall be, for the erection of 
forts, magazines, arsenals, dock-yards, and other needful buildings. 

17. To make all laws which shall be necessary and proper for 
carrying into execution tlie foregoing powers, and all other powers 
vested by the Constitution in the government of the United States, 
or in any department or officer thereof. ' 

Congress is also empowered by the thirteenth, fourteentl), and 
fitleenth amendments to the Constitution to enforce tlie same by 
appropriate legislation. The thirteentli amendment abolialies 
sUvery and involuntary servitude, except as a punishment for 
crime, throughout the United States and all places subject to 
their jurisdiction. The fourteenth amendment has several objects. 
1. It declares all persons bom or naturalized in the United States, 
and subject to the jurisdiction thereof, to be ciUzeus of the United 
States and of the State wherein they reside ; and it forbids any 
State to make or enforce any law which shall abridge the privi- 
leges or immunities of citizens of the United States, or to deprive 
any person of life, liberty or property, without due process of law, 
or to deny to any person within its jurisdiction the equal protec- 
tion of tlie laws. 2. It provides that when the right to vote at 
any election for the choice of electors for president or vice-presi- 
dent of the United States, representatives in Congress, the execu- 
tive 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 Congi-essional representation 
therein shall be reduced in the proportion which Uie number of 
such male citizens shall bear to the whole number of male citizens 
twen^-one years of age in such State. S. It disqualifies from 
holding Federal or State offices certain persons who shall have en- 
gaged in insurrection or rebellion against the United States, or 
given aid or comfort to the enemies thereof. 4. It declares the 

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•11 CONSTrrDTIONAL UHITATIONB. [CH. II. 

inTiolabitity of the public debt of the United States, and forbids 
the Uuited States or aay State assuming or paying any debt or 
obligation incurred in aid of insurrection or rebellion against the 
United States, or any claim for the loss or emancipation of any 
slave. Tiie fifteenth amendment declares that the right of citizens 
of the United States to Tote shall not be denied or abridged by the 
United Stetes or by any State, on account of race, color, or pre- 
viotu condition of Bervitude. 

Tlie executive power ie rested in a president, who is made 
commander-in-chief of the army and navy, and of the militia of 
the several States when called into the service of the United 
Statea ; and who lias power, by and with tlie consent of the Senate, 
to make treaties, provided two-thirds of the Senate concur, and 
with the same advice and consent, to appoint ambaasadorB and 
other public ministers and consuls, Judges of the Supreme Court, 
and otfaer officers of tlie United States, whose appointments are 
not otherwise provided for.* 

The judicial power of the United Stetes extends to all cases in 
law and equity arising under the national Constitution, the laws 
of the United States, and treaties made, or whicli shall be made, 
under tlieir authority ; to all cases affecting ambassadors, other 
public ministers and consuls ; to all cases of admiralty and mar- 
itime jurisdiction ; to controversies to which the United Stetes shall 
be a party ; to controversies between two or more States ; between 
a Stete and citizens of another State ; between citizens of dif- 
ferent States ; between citizens of the same State claiming 
lands under grante of diETerent Stetes; and between a 
[* 12] * State or citizens thereof and foreign Stetes, citizens, 
or subjects.^ But a Stete is not subject to be sued in 
the courte of the United Stetes by the citizens of another Stete, 
or by citizens or subjects of any foreign State.^ 

The Constitution and the laws of the Uuited Stetes, made in 
pursuance thereof, and all treaties made under the authority of the 
United States, are declared to be the supreme law of tlie land ; and 
Qi6 judges of every Stete are to be bound thereby, any thing in the 
constitution or laws of any State to the contrary notwitbstending.* 

' U. S. Const, art. 2. ' U. S. Coort. art 3, § 2. 

* U. S, Comt. 11th Amendment. 

* U. S. Const, art. 6 [ OwingB u. NoFwood's Lessee, 6 Cranch, 518 ; McCul- 
loch t>. Maryland, 4 Wheat. SI6 ; Foster v. Neileon, 2 Pet. 263, 314 ; Cook o. 

. [12] 



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OH. n.] THE CX>KSTITnnON OF THE UNITED BTATES. * 12 

It is esBential to the protection of the national jurisdiction, and 
to preveQt colUaioa between State and national authority, that the 
final decision upon all questions arising in regard thereto should 
rest with the Courts of the Union ;' and as such questions must 
frequently arise first in the State Courts, provision is made by the 
Judiciary Act of 1789 for remoTing to the Supreme Court of the 
United States the final judgment or decree in auy suit, rendered in 
the highest court of law or equity of a State in which a decision 
coald be had, in which was drawn in question the validity of a 
treaty, or statute of, or authority exercised under, the United States, 
and the decision was against their validity ; or where was drawn in 
question the validity of a statute of, or an authority exercised un- 
der, any State, on the ground of their being repugnant to the Con- 
stitution, treaties, or laws of the United States, and the decision 
was in favor of such their validity ; or where was drawn in ques- 
tion the construction of auy clause of the Constitution, or of a 
treaty, or statute of, or commission held under the United 
States,, and the decision was against the right,* title, [* 13] 
privilege, or exemption specially set up or claimed by either 
party under such clause of the said Constitution, treaty, statute, or 
commission .3 

But to aatliorize the removal under that act, it must appear by 
the record, either expressly or by clear and necessary intendment, 
that some one of the enumerated questions did arise in the State 
Court, and was there passed upon. It is not suflicient that it 
might have arisen or been applicable.' And if the decision of the 

Hofikt, 6 How. 285 j Dodge v. WooIk;, 18 How. 331. Wlien a treaty hu been 
mified b7 the proper fomutlitics, it ii, b^ the Conatitution, (he supreme law of 
dte land, and the conrta have no power to inquire into the authority of the per- 
KMU t^ whom it wai entered into on b«half of the foreign nation; Doe v. Braden, 
16 How. 635, 657 ; or the powers or rights recogniied bj it in the nation with 
wlidi it waa made ; Uaiden v. Ingenoll, 6 Mich. 37S. A State Ikw in conflict 
witb it nnut give way to its snperior authority. Ware e. Hyllon, 3 DalL 99 ; 
Yeaker t. Teaker, 4 Het. Kj. 83. See further, United State* v. Aiedondo, 
6 Fet. 691 ; United States t>. Percheman, 7 Pet. 51 ; Garda c. Lee, 12 Pet fill. 
' Martin v. Hunter's Lewee, I Wheat. 304. 834 ; Cohens r. Virginia. 6 Wheat. 
S64; Bank of United States v. Norton, SMareh. 423; BraTnard r. Marshall, 
S Rck. 196, per Parker, Ch. J. ; Spangler's Case, 11 Mich. 298. 

* 1 StatutM at lArge, 83 ; Brightly's Digest, 259. 

* Owingg V. Norwood's Lessee, C Crandi, 344 ; Martin ». Hunter's Leslee, 
1 Wheat. 304 ; Inglee tr. Coolidge, 2 Wheat S63 ; Miller e. Nicholls, 4 WheaL 
211; Williams v.Norrif, 12 Wheat. 117; Hickiep. Starke, 1 Pet. 98; Harriiv. ' 

[18] 



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* 13 OOBSimmOKAL LIHITATIOMS. [cH. II. 

State court is in faror of the light, title, privilege, or exemption bo 
claimed, the Judiciary Act does not authorize such removal.* 
Neither does it where the Talidity of the State law is drawn in 
question, and the decision of the State court is against its validity.^ 
But the same reasons which require that the final decision upon 
rU questions of national jurisdiction should be left to the national 
courts will also hold the national courts bound to respect the de- 
cisions of the State Courts upon all queatioiis arising under the 
State constitutions and laws, where no question of national au- 
thority is involved, and to accept those decisions as correct, 
and to follow them whenever the same questions arise in the 
national courts.* With tho power to revise the decisions of tho 

Dennie, 3 Pet. 292 ; Fisber's Leasee c. Cockerel!, 6 Pet. 256 ; New Orleans e. 
De Armas, 9 Pet. 223, 234 ; Keene v. Clarke, 10 Pet. 291 ; Crowell t>. Randell. 
10 Pet. 368 ; McKiony ». Carroll, 12 Pet. 66 ; HolmeB v. Jennison, 14 Pet. 640 ; 
Suott V. Jones, 6 How. 348 ; Smith v. Hunter, 7 How. 738 ; Williatui e. Oliver, 
12 How. Ill ; Calcote c. Sunton, 18 How. 243; Maxwell n. Newbolil, 18 How. 
611; HoytD. Shelden, 1 BUck, 518; Farnejr e. To»te, 1 Black, 350; Day p. 
Gallop, 2 Wal. 97. It it not sufficient that the presiding judge of Ac State 
conrt certiSes that a right dsimed under the national authoritj waa brought in 
question. Railroad Co. c Rock, 4 Wal. 177. 

' Gordon t. Caldcleugh, S Craoch, 368 ; McDonougli e. Millaudon, 9 Bow. 
693 ; Fulton e. McAffee, 16 Pet) U9 ; Liaton c. Stanton, Vi How. 423 ; Burke e. 
Gaines, 19 How. 388; ReddaU d. Brj'an, 24 How. 420; Roosevelt o. Meyer, 
1 Wal. 512 ; Ryan t>. Tbomaf, 4 Wal. 603. 

■ Commonwealth Bank v. Gnffitb, 14 Pet 56 ; Walker v. Taylor, 5 How. 64. 
We take no nodce berB of the statutes for the removal of caases from the State 
to the Federal courts for tha purposes of original trial. 

' That this is the rule of the Federal courtji, the following caaei will show. 
McKeen n. De Lancy'e Leasee, 5 Crancb, 22 ; Polk's Lessee e. Wendal, 9 Cranch, 
87 ; Mutual Atanrance Society c. Watts, 1 Wheat. 279 ; Shipp v. Miller, 2 Wheat. 
316 ; Jackson v. Chew, 12 Wheat. 153 ; Fnllerton v. Bank of United SUtes, 
I Pet. 604; Green v. Neal's Lessee, 6 Pet. 291 ; Rowan r. Runels, 5 How. 139; 
Massingill v. Downs. 7 How. 767 ; Nesmitli ti. Sheldon, 7 How. 812 ; Van Reus- 
aelaer v. Kearney, 11 How. '297; Webster n. Cooper, UHnw. 488; Luiher o. 
Borden, 7 How, 1 ; Beauregard p. New Orleans, 18 How. 497 ; Parker r, Kane, 
22 How. 1 i league v. Egerj-, 24 How. 264 ; Aniey v. Allegheny City, 24 How. 
364; Leffingwell e. WarKn, 2 Block, 599; Sumner v. Hicka, 2 Black, 532; 
Greene r. James, 2 Curt. 189 ; Dn Bois «. McLean, 4 McLean, 488 ; Woobey 
V. Dodge, 6 McLean, 150 ; Thompson n. Phillips, Baldw. 246 ; Jefferson Branch 
Baqk p. Skelley, 1 Black, 436 ; Lane Co. e. Oregon, 7 Wal. 71 ; Gut p. Slate, 
9 Wal. 35. The Judieiary Act of 1789 recognixes tbb prindple, in providing 
that " tfao lawa of the several States, except where the Constitution, treaties, or 
statutes of the United States shall otherwise require or provide, shall be regarded 
aa rules of decision in trials at common law in the courts of the United States, 
[14] 



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OH. n.] TH# CONBTITUTIOIT OP THE UNITED STATES. * 13 

State • courts in the cases already pointed out, the due [• 14] 
observance of this rule will prevent tiiose collisions of ju- 
dicial authority which would otherwise be inevitable, and 
whicli, besides being unseemly * would be dangerous to the [* 15] 
peace, harmony, and stability of the Union under our pe- 
culiar system. 

Besides conferring specified powere upon the national govern- 
tnent, the Constitution contains also certain restrictions upon tlie 
action of the States, a portion of them designed to prevent en- 
croachments upoQ the national authority, and another portion 
to protect individual rights against possible abuse of State 
power. Of the first class are the following : Mo State shall en- 
ter into any treaty, alliance, or confederation, grant letters of 
marque or reprisal, coin money, emit bills of credit,^ or make 
any thing hut gold and silver coin a tender in payment of debts. 
No State shall, without the consent of Congress, lay any imposts 
or duties upon imports or exports, except what may be absolutely 

where they apply." S«c. 34, In Suydam p. Williftinaon, 24 How. 427, the 
Sapreme Court of the UniteJ States overruled eeveral of its former deciaiona, 
io order to make ila rulings confonn to a more rei.'eDt dedaion in the State of 
New York, — the question involved being one of real estate iwv in that State. 
And ia LefBngwel) t>. Warren, 2 Black, 599, the court reiterate the doctrine of 
former caaca, that if the bigheet tribunal of a State adopt new views on a ques- 
tion of Slate atatutory law. reversing its former deciaiong, the Supreme Court of 
the United States will follow the latest settled adjudications. See also Greeo v. 
Neal*s Lessee, 6 Pet. 291. But questions of private right depending solely upon 
the (.-ommOD law, and not being questions of title to property, will be determined 
by the Federal tribonala on their view of the common law alone: Chicago e. 
Bobbins, 2 Black, 418. And questions of general commercial law are not re- 
garded as questions of local law upon which the decisions of the State courts 
■boold be of l»nding force. Robinson r. Commonwealth Insurance Co., S Sum. 
220; Swift v. Tyson, 16 Pet. 1. See further as to exceptions to the general 
rule, Austen v. Miller, 6 McLean, 153 ; Williamson e. Berry, 8 How. 495 ; Bragg 
p. Meyer. 1 UcAll. 408. 

' To constitute a bill of credit wltbin tbe meaning of the Constitution, it must 
be issued by a State, involve tbe faitb of tbe State, and be designed to circulate 
as money on the credit of the State in the ordinary uses of business. Briscoe n. 
Bank of Kentncky, II Pet. 257 ; Woodruff e. Trapnall, 10 How. 209. The 
fkctfl that a State owns the entire capital stock of a hank, elects the directors, 
makes its bills rec^vable for the public dnes, and pledges its faith for their 
redemption, do not make the bills of such bank " bills of credit " in the constita- 
tkMud sense. Uarrington c. State Bank of Alabama, 13 How. 12. See further, 
Craig ■>. Missouri, 4 Pet. 410 ; Byrne o. Missouri, 8 Pet. 40 ; Morean v. Detdi- 
UDendy, 41 Mo. 431. 

i 15 ] 



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* 15 CONBTITOnONAL UHrTATIONB. ' fCH- n. 

necesaary for ezeoutiog ita iBspection laws ; and the net produce 
of all duties and imposts laid hj any State on imports or exports, 
shall be for the use of the treasury of the United States, and all 
such laws shall be subject to the revision and control of Congress. 
No State shall, without tlie consent of Congress, lay any duty of 
tounuge, keep troops or ships of war in time of peace, enter into 
any agreement or compact with anotlier State or with a foreign 
power, or engage in war, unless actually invaded, or in such immi- 
nent danger as will not admit of delay. Of the second class are 
the following: No State shall pass any bill of attainder, ex post 
facto law, or law impairing the obligation of contracts,^ or make or 
enforce any law which shall abridge the privileges or immuuitieB 
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 (o any person within its jurisdiction the equal protection of 
the laws.^ 

Otlier provisions have for their object to prevent discriminations 
by the several States against the citizens and public authority and 
proceedings of other States. Of this class are the provisions that 
the citizens of each State shall be entitled to all the privileges 
and immunities of citizens in the several States ; ' that fugitives 

' Const, of U. S. art. I. g 10. 

' Const, of U. S. 14th AmeDdment. 

* Const, of U. S. art. 4. " What are tlie prinlegea and imnmnities of cili- 
zena in the several States? We feel no betitation in confining these expressions 
to those privileges ftnd immunities which are in their Datnre /undamental ; which 
belong of right to the citizens of all free governments ; and which have, at oil 
times, been enjoyed bjr the citizens of the several States vbich compose this 
Union, from the time of their becoming free, iudependeot, and •overcign. What 
those fundamental prindplea are, it would perhaps be more tedious than difficult 
to enumerate. They may, however, be all comprehended under the following 
general heads : protection by llie government, the enjoyment of life and lib- 
erty, with the right to acquire and possess property of every kind, and to punue 
and obtain happiness and safety, (abject nevertheless to such restraints as the 
government may justly prescribe for the general good of the whole. The right 
of a dtiien of one State to pass through, or to reside in any other State, for 
purposes of trade, agriculture, professional pursuits, or otherwise, to claim the 
benefit of the writ of habeas corpus ; to institute and maintain actions of every 
kind in the courts of the State; to take, bold, and dispose of property, either 
real or personal ; and an exemption from higher taxes or impositions than are 
paid by the citizens of the other State, may be mentioned as some of the partic- 
ular privileges and immunities of citizens, which are clearly embraced by the 
general description of privileges deemed to be fundamental ; to which may be 
[16] 



DiBtsd By Google 



CH. II.] THE CONSTITDTIOS OF TBE UNITED STATES. " 15 

from jastice shall "be delivered up,' and that full faith [*16] 

added the elective franchise as regulated and CBtablished hy the lairs or conetitu- 
tioD of the State in vbkh it is to be exercised. These, and many others which 
night be mentioned, are, strictly speaking, privileges and immunities, and the 
enjojment of them by the citizens of each State in every other Stale, was mani- 
festly calculated (to use the expreaeions of the preamble of the corresponding 
provision in the old Articles of Confederation) ' the better to secure and perpet- 
uate mutual friendship and intercourse among the people of the differeiit States 
of the Union.' " Washington. J., in Corfeld v. Coryell, 4 Wash. C. C. 380, 
The Supreme Court nill not describe and define those privileges and immunities, 
in a general classiGcation ; preferring to decide each case as it may come up. 
Conner t>. Elliott, 18 How. 591. For discussions upon this subject, see Slurray 
r. MeCarty. 2 Munf. 393; Lemraon p. People, 26 Barb. 270, and 20 N. Y. 563; 
Campbell r. Morris, 3 Har. & M'H. 554 ; Amy d. Smith. 1 Lit. 326 ; Crandall 
t. State, 10 Conn. S40; Butler e. Famsworth, 4 Wash. C. C. 101; Common- 
wealth r. Tonles, 5 Leigh, 743 ; Haney v. Marshall, 9 Md. 194 ; Slaughter t>. 
ConuDcnwealth, 13 Grat- 767 j Sute c. Medbury, 3 R. I. 138 ; People c, Imlay, 
20 Barb. 6S ; People k. Coleman. 4 Cal. 46 ; People c. Thurber, 13 III. 544 ; 
nisnix Insurance Co. r. Coramonvrealth, 5 Bush, G8 ; Ducat v. Chicago, 4B HI. 
172 i Firo Department v. Noble, 3 E. D. Smith, 441 ; Same v. Wright, ib. 
453; Same v. Holfenstein, 16 Wis. 136. The constitutional provision does not 
apply to Corporations. Warren Manuf. Co. e. JEtna Ins. Co. 2 Paine, 501. 
A discrimina^on between local freight on railroads and that which is extra-terri- 
torial, is not personal, and therefore not forbidden by this clause of the Consti- 
totioQ. Shipper o. Pennsylvania R.E. Co. 47 Penn. St. 338. The requirement 
of a license fee of persons not permanent residents of Baltimore, who offer or 
eipOM for sale goo^s, &c, within that city, does not violate this provision. 
Ward D. State, 31 Md. 279. And see further, Paul v. Virginia, 8 Wal. 168. 

' For decisions under this clause, see Ex parte Joseph Smith, 3 McLean, 
133 ; Dow's Case, 16 Penn. SL 39 ; Matter of Clark, 9 Wend. 221 ; Johnson t>. 
Rikty, 13 Geo. 97 ; Matter of Fetter, 8 Zab. 311. The three cases last cited 
decide that the alleged offence need not be an offence at the common law; it is 
sufficient that it be a crime against the State from which the accused has fied. 
But it most have been actually committed within the State reclaiming the alleged 
offender, and he must have been an actual fugitive therefrom. Ex parte Smith, 
npra. The whole subject was considered in Commonwealth of Kentucky r. 
Dennison, 24 How. 66. One Lago was indicted in Kentucky for enticing and 
assisting a slave to escape from hia master, and a requisition was made upon the 
governor of Ohio for his surrender to the Kentucky authorities as a fugitive from 
JQitice. The governor of Ohio refused to surrender him, on the ground that the 
act with which he was charged was not an offence known to the laws of Ohio, and 
not an act affecting the public safety, or regarded as malum in ee by the general 
judgment and conscience of civilized nations. Application was then made to the 
Supreme Court of the United States for a mandamus to compel the governor of 
Ohio to perform this duty. Tbe application was denied, on the ground that, 
although the governor erred in his refusal, no power was delegated to the general 
2 [17] 



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• 16 CONSntDTIOKAL LIMITATIOSS. [CH. H. 

[* IT] and credit shall be giren in * eacli Stato to the public acts, 
records, and judicial proceedings of every other State.' 
The last provisions that we shall here notice are that the United 
States shall guarantee to every Stato a republican form of govern- 
ment,^ and that no State shall grant any title of nobility.' The 
purpose of these is to protect a Union founded on republi- 
[* 18] can principles, aud composed entirely of * republican mem- 
bers against aristocratic and moiiarchial innovations.* 

government, either through the judicial or anj other departneDt, to employ any 
coerciTB means to compel him. See Matter of Toorbies. S3 N. J. 141. 

' Const, of U. S. art. 4. This cl&use of the Constitution has been the sub- 
ject of * good deal of discuMJon in the courts. It is well settled that if the record 
of a judgment sbom that it wu rendered without service of process or appear- 
ance nf the defendant, or if that fact can be shown without contradicting the red- 
tala of the record, it will be treated as void iti any other State, notwithstanding 
this constitutional provision. Benton v. Burgot, 10 S. & E. 242 ; Thurber c. 
BUckbourne, 1 N. H. 242 ; Hall v. Williams, 6 Pick. 232 ^ Aldriih p. Kinney, 

4 Conn. S80j Brsdshaw o. Heath, 13 Wend. 407 ; Robinson v. Ward's Enecn- 
tors, 6 Johns. 86; Fenton o. Garlick, ib. 194; Kilboum v. Woodworth, 6 
Johns. 37 ; Pawling tt. Bird's Executors, 13 Johns. 192 ; Starbuek v. Murray, 
fi Wend. IGl; Noycs v. Butler, 6 Barb. 618; Woodward e. Tremere, 6 Pick. 
354; Lincoln t). Tower, 2 Mcl-^n, 473; Wealeryelt p. I^wis, ib. 611; Bi'me- 
lar V. DawBoa, 4 Scam. 636 ; Gleason n. Dodd. 4 Met. 333 ; Warren v. M'Oarthy, 
26 ID. 95; Bape p. Heatoa, 9 Wis. 328; Wood v. Watkinson. 17 Conn. 500; 
Norwood V. Cobb, 34 Texas, 561; McLaurine v. Monroe, 30 Mo. 462; Com- 
monwealth V. Blood, 97 blasB. 538. But whether it would be competent to show, 
ill opposition to the recitals of the record, that a judgmeut of another State was 
rendered without jurisdiction having been obtained of the person of the defend- 
ant, is not settled by the anthorities. Many cases hold not. Field t>. Gibbs, 
1 Pet. C. C. 166; Green v. Sarmiento, ib. 76; Lincoln r. Tower. 2 McLean, 
473; Westervelt K. Lewis, t5. 511; Pearce c. Ulney, 20 Conn. 544; Hoxie v. 
Wright, 2 Vt. 263 ; Newcomb v. Peck, 17 Vt. 302 ; Willcox ». Kassick, 2 Midi. 
165 ; Bimelar e. Dawson, 4 Scam. 636 ; Welch v. Sykes, 3 Gil. 107 ; Roberts v. 
Caldwell, 5 Dana, 612. Other cases admit such evidence. Starbuek v. Murray, 

5 Wend. 148 ; Holbrook v. Murray, i&. 161 ; Shumway v. Siillman, 6 Wend. 
447 ; Borden e. fitch, 16 Johns. 121 ; Hall v. Williams, 6 Pick. 232 ; Aldrich c. 
Kinney, 4 Conn. 380; Bradshaw e. Heath, 13 Wend. 407 ; Gleason v. Dodd, 
4 Met. 3SS; Norwood o. Cobb, 24 Texas, 561. The tame defences may be 
made to a judgment when sued in another State which could have been made to 
it in the Sute where rendered. Uampt«n b. McConnel, 3 Wheat. 234; Mills v. 
Duryea, 7 Crancb. 484; Steele v. Smith, T W. & S. 447 ; Bank of the State v. 
Dalton, 9 How. 628. But no others : Green v. Van Buskirk. 7 Wal. 139 ; Christ- 
mas V. Russell, 5 Wal. 290 ; Cheever ». Wilson, 9 Wal. 108. 

• Const, of U. 8. art. 4, § 4. * Const, of U. S. art 1, S 10. 

* Federalist, Nos. 43 and 44. It does not fall within our province to divcnss 

[18] 



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CH. n.] THE COMBnTirnON of the UNn?ED BTAIES. * 18 

So far as a particular consideration of the foregoing proTisiona 
falls witbin tlie plan of our present work, it will be more convenient 
to treat of them in another place, especially as sncb of them as 
have for their object the protection of person or property are 
QSually repeated in the bills of rights contauied in the State consti- 
tutions, and will require some notice at our hands as a part of 
State constitutional law. 

Where powers are conferred upon the general government, the 
exercise of tlie same powers by the States is impliedly prohibited, 
wherever the intent of the grant to the national government would 
be defeated by such exercise. On this ground it is held that the 
States cannot tax the agencies or loans of the general government ; 
Muce the power to tax, if possessed by the States in regard to these 
objects, might be so exercised as altogether to destroy sucli agen- 
cies and impair or even destroy the national credit.^ And where by 
the national constitution jurisdiction is given to the national courts 
with a view to the more efficient and harmonious working of the 
system oi^uized under it, it is competent for Congress in its wis- 
dom to make that jurisdiction exclusive of the State courtfi.' On 
some other subjects State taws may be valid until the power of 
Congress is exercised, when they become superseded, either wholly, 
or BO far as they are found inconsistent. The States may legislate 
(HI the subject of bankruptcy if there be no law of Congress which 
will conflict." State laws for organizing and disciplining the mili- 
tia are valid except as they may conflict with national legislation ;* 
and the States may' constitutionally provide for punishing tlie coun- 
terfeiting of coin^ and the passing of counterfeit money," since 

Ute*e proriaioni. Thej have been much diacuued in Cougreas within a few 
yun, but in s partj, radier th&ii a judicial spirit, 

■ McCuUodi e. Maryland, 4 Wheat. 818, 427 ; Weiton r. Clurleatoa. 2 Pet. 
449. See cues collected, j)o«<, p. 482. 

■ Mutin e. Hunter'* LeaMe, 1 Wheat. 884 ; The Mose* Taylor c. Hammoiu, 
4 Wal. 411 ; The Ad Hiue e. Trevor, ib. 566. And tee note to theie cuea in 
the We*ltm Jarul, Vol. I., p. 241. 

■ Stui^a e. Crowninsbield, 4 Wheat. 122; McMOlaa v. McNeill, &. 209. 
And MiepoH, pp. 293-94. 

• HoQiton «. Moore, 6 Wheat. 1, 61. 

• Hariaa p. People, 1 Doug. Mich. 207. 

' Foxo. Ohio, 6 How. 410; United States v. Marigold, 9 How. 560. And 
•ee Hflidrick's Cace, 6 Leigh, 707 ; Jett d. Commonwealth, 18 Grat. 983 ; Uoora 
«. People, 14 How. 13. 

[19] 



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• 18 C0N8T1TDTI0NAL LIMITATIONB. [CH. 11. 

tlieBe acts are offences against the State, notwithstauding tliey ma; 

be offences against tlie nation also. 
[* 19] * The tenth amendment to tlie Constitution provides that 
the pothers not delegated to the United States by the Con- 
stitution, nor prohibited by it to tlie States, are reserved to the 
States respectively, or to the people. And it is to be observed of 
this instrument, that being framed for the establishment of a national 
government, it is a settled rule of construction that the limitations 
it imposes upon the powers of government are in all cases to be 
underatood as limitations upou the government of the Union only, 
except where the States are expressly mentioned.^ 

With other rules for the construction of the national Constitu- 
tion, -we shall have little occasion to deal. They liave been the 
subject of elaborate treatises, judicial opinions and legislative de- 
bates, which are familiar alike to the legal profession and to the 
pubUc at large. So far aa that instrument apportions powers to 
the national judiciary, it must be understood, for the most part, as 
simply authorizing Congress to paas the necessary legislation for 
the exercise of those powers by the Federal courts, and not as 
directly, of its own force, vesting them with that authority. The 
Constitution does not, of its own force, give to national courts 
jurisdiction of th'e several cases which it enumerates, but an act 
of Congress is essential, first, to create courts, and afterwards to 
apportion the jurisdiction among them. The exceptions are of 
those few cases of which the Constitution confers jurisdiction 
upon the Supreme Court by name. And although the courts of 
tlie United States administer the common law in many cases, they 
do not derive authority from the common law to take cognizance 
of and punish offences against the government. Offences against 



' Barron v. Baltimore, 7 Pet. 243 ; Livingstones Lessee e. Moore, 7 Pet. 661 ; 
Fox V. Ohio, 5 How. 432; Smith v. Maryland, 18 How. 71 ; Buonaparte e. Cam- 
den & Amboy R.R. Go. Boldw. 220 ; James v. Commonwealth, 12 S. & R. 221 ; 
Barker e. People, 8 Cow. 686 ; Colt c. Eves, 12 Conn. 243 ; Jane u. Common- 
wealth, 8 Met. (Ky.) 18; Lincoln tt. Smith, 27 Tt. 336; Matter of Smith, 10 
Wend. 449 ; State v. Barnelt, 3 Kansas, 260 ; Reed c. Bice, 2 J. J. Marah. 45 ; 
Furrear i*. Commonwealth, 6 Wal. 476 ; Tnitchell v. Commonwealth, 7 Wal. 321. 
For instance, though the right of trial hy jury is preserved by the Constitution of 
the United States, the States may, nevertheless, if they choose, provide for the 
trial of all ofiencea against the States, as well as the trial of civil caaes in tlka 
State courts, without the intervention of a jury. 
[20] 



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CB. n.] THE COHSTlTtmON OP THE UNITED BTATBB. * 19 

the nation are defined and their punishment prescribed by acts of 
Congress.^ 

' Demorrer to an Indictment for ■' libel apon the President and Congress. Sy 
the court: "The only qaeBtion which this case presents is, whether the circuit 
courts can exercise a common-Ian jurisdiction in criminal cases, . . . The gen- 
eral acquiescence of legal men shons the prevalence of opinion in lavnr of tihe 
negative of the proposition. The course of reasoning which leads to this coa- 
dusion is simple, obvious, and admits of bnt little illustrstion. The powers of 
the geneni government are made up of concessions from the several States ; 
whatever is not expressly given to tjie former, the latter expressly reserve. The 
judicial power of the United States is a constitutional part of tliese concessions : 
that power is to be exercised by courts organized for the purpose, and brought 
into existence by an effort of tbe legislative power of the Union. Of M the 
conrts which the United States may, under their general powers, constit-ute, one 
only, the Supreme Court, possesses jurisdiction derived immediately from the 
Constitution, and of which the legislative power (iannot deprive it. AH odier 
courts, created by the general government, possess no jurisdiction but what is 
given them by the power that created tbem, and can be vested with none but 
what the power ceded to tbe general government will authorise theni to conl^. 
It is not necessary to inquire whether the general government, in any and what 
extent, possesses the power of conferring on its courts a jurisdiclion in cases 
similar to the present ; it is enough that such jurisdiction has not been conferred 
by any legislative act, if it does not result to those courts as a consequence of 
their creation." United States o. Hudson, 7 Cranch, S3. See United States t). 
Coolidge, 1 Wheat. 415. " It is clear there can be no common law of the United 
States. The Federal government is composed of twenty-four sovereign and 
independent States, each of which may have its local usages, customs, and com- 
mon law. There is no principle which pervades the Union, and has the authority 
of law, that is not embodied tnlhe Constitution or laws of the Union. The com- 
mon law could be made a part of our Federal system only by legislative adop ■ 
tion." Per McLean, J., in Wheaton v. Peters, 8 Pet. 658. See, also, Kendall 
t. United States, 12 Pet. 521. As to the adoption of the common law by the 
Stales, see Van Nest r. Pacard, 2 Pet. 141, per Story, J. ; post, p. 23, and 
cases cited in notes. 

[21] 



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CONBTrrtmONAL LIHITATIONS. [CB. m. 



[•21] •CHAPTER m. 

THB FOBUATIOM AND AM£NDUENT OF STATE CONSHTDTIONa. 

The Constitution of the United States assnmeB the ezisteuce 
of thirteen distinct State governmebta, orer whose people its au> 
thority was to be extended if ratified by coDveutions cliosea for 
the purpose. Each of these States was excrcisiog the powers of 
goTernmeut under some form of written constitution, and that 
instrument would remain unaffected by the adopUou of tlie national 
Constitution, except in those particulars in which the two would 
come in conflict ; and as to those, the latter would modify and 
control the former. But l)e6ides this fundamental law, every Stat« 
had also a body of laws, prescribing the rights, duties, and obligan 
tjons of persons within its jurisdiction, and establishing those mi- 
nute rules for the various relations of life which cannot be properly 
incorporated in a constitution, but must be left to the regulation of 
the ordinary law-making power. 

By far the larger and more valuable portion of that body of laws 
consisted of the common lato qf England, which had been trans- 
planted in the American wilderness, and which the colonists, now 
become an independent nation, had found a shelter of protection 
during all the long contest with tlie mother country, brought at 
last to so fortunate a conclusion. 

The common law of England consisted of those maxims of 
freedom, order, enterprise, and thrift which had prevailed in the 
conduct of public affairs, the management of private business, the 
regulation of the domestic institutions, and the acquisition, con- 
trol, and transfer of property from time immemorial. It was the 
outgrowth of the habits of thought and action of the people, and 
was modified gradually and insensibly from time to time as those 
habits became modified, and as civilization advanced, and new 
inventions introduced new wants and conveniences, and new 
modes of business. Springing from the very nature of the people 
themselves, and developed in their own experience, it was obvi- 
ously the body of laws best adapted to their needs, and as they 
[22] 



DiB.1izedOyGoO<^lc 



CB. ni.] POHMATION AKD AMENDMENT OF CONSTITDTIOKB. * 21 

took with t)iem their nature, bo ftleo tliey would take with them 
these laws whenever they should transfer their domicile from one 
country to another. 

•To eulogize the common law is no part of our pros- ["22] 
ent purpose. Many of its features were exceedingly harsh 
and repulsive, and gave unmistakable proofs that they had their 
ori^D ill times of profound ignorance, superstition, and barbar- 
ism. The feudal system, which was essentially a system of vio- 
lence, disorder, and rapine,^ gave birth to many of the maxims of 
the common law; and some of these, long after that system has 
passed away, may still be traced in our law, eapocially in the rnles 
which govern the acquisition, control, and enjoyment of real 
estate. The criminal code was also marked by cruel and absurd 
features, some of which have clung to it with wonderful tenacity, 
even after the most stupid could perceive their inconsistency with 
justice and civilization. But on the whole, the system was the 
beat foundation on which to erect an enduring structure of civil 
liberty which the world has ever known. It was the peculiar 
excellence of the common law of England that it recognized the 
worth, and sought especially to protect the rights and privileges of 
the individual man. Its maxims were those of a sturdy and inde- 
pendent race, accustomed in an unusual degree to freedom of 
thought and action, and to a share in the administration of public 
afiairs ; and arbitrary power and uncontrolled authority were not 
recognized in its principles. Awe surrounded, and majesty clothed 
the king, but the humblest subject might shut the door of his 
cottage against him, and defend from intrusion that privacy wliich 
was as sacred as the kingly prerogatives.^ The system was the 
opposite of servile ; its features implied boldness, and independent 
self-reliance on the part of the people ; and if the criminal code 
was harsh, it at least escaped the inquisitorial features which 
fastened themselves upon criminal procedure in other civilized 
countries, and have ever been fruitful of injustice, oppression, and 
terror. 

' " A feud&I kiDgdom wu a confederacj of a nmneronB body, irho lived in a 
lUte of war against «acb other, and of rapine Mwards all nankiDd, Id which ihe 
Iting, according to lua abilit/ and vigor, was either a cipher or a tjrant, and a 
great portion of the people were reduced to personal slavery." Mackintosh, 
Ui*tory of England, c. 3. 

' Seepoti, p. 299. 

[23] 



DiB.1izedOyGoO<^lc 



* 22 CONSTITDTIONAL LIUITATIONB. [CH. m. 

For Beveral Imndred years, tiowever, changes bad from time tx) 
' time been made iii tlie common law by means of statutes. Origi- 
nally tlio purpose of general fitatutea was mainly to declare and 
re-affirm such common-law principles as, by reason of usurpations 
and abuses, had come to be of doubtful force, and whioli, 
[• 28] tlierefore, • needed to be authoritatively announced, that 
king and subject alike might understand and observe 
them. Such was the purpose of tlie first great statute, promul- 
gated at a time when the legislative power was exercised by tlie 
king alone, and which is still known as the Magna Cliarta of King 
John. Such also was the purpose of the several confirmations of 
tliat charter, as well as of the Petition of Right,' and the Bill of 
Rights,^ each of which became necessary by reason of usurpations. 
But furtlier statutes also became needful because old customs' and 
modes of business were unsuited to new conditions of tilings, 
when property had become more valuable, wealth greater, com- 
merce more extended, and when all these changes had brought 
with them new desires and necessitieB, and also new dangers 
against which society as well as the individual subject needed pro- 
tection. For this reason the Statute of Wills," and the Statute 
of Frauds and Perjuries* became important; and the Habeas 
Corpus Act ^ was also found necessary, not so much to change the ' 
law,^ as to secure existing principles of tlie common law against 
being habitually set aside and violated by those in power. 

From the first tlie colonists in America claimed the benefit and 
protection of the common law. In some particulars, however, the 
common law as then existing in England, was not suited to their 
condition and circumstances in the uew country, and those partic- 
ulars they omitted as it was put iu practice by them.' Tliey 

' 1 Cbarlesl. c. 1. 

' I William & Maiy, Sen. 2, c. 2. 

' 82 Henry VIII. e. 7, and 34 and 36 Henty VIH. c. 6. 

* 29 Cliarles U. c. 3. , 

> 31 Cliarlea II. c. 2. 

' " I dare not advise to cast tbe laws into a new mould. The work which I 
propouiid tendeth to the pruning and grafling of the law, and not tbe plowing 
up and planting it again, for «uch a reinove I should hold for a. perilous innova- 
tion." Bacon's Works, Vol. U. p. :J3I. Phil. Ed. 1852. 

' " The common law of England is not to be taken, in all reapecta, to be that 
of America. Our anceslora brought with them its general principles, and 
daimed it as their birthright ; but the; brought with them and adopted only that 
[24] 



DiB.1izedOyGoO<^lc 



CH. II!,] FOBHiLTION AND AMENDMENT OP CONSTITDTIONS. * 23 

also claimed the benefit of * Bucli statutes as from time to [* 24] 
time had been enacted in modification of this body of 
rules.' And when tho difficulties with the home government sprung 
up, it was a source of immense moral power to tho colonists tliat 
they were able to show that the rights they claimed were conferred 
by the common law, and that the king and Parliament were seeking 
to deprive them of the common birthright of Englishmen. Did 
Parliament attempt to levy taxes in America, the people demanded 
the benefit of that maxim with wliich for many generations every 
intelligent subject had been familiar, that those must vote tlie tax 

portion -which wu applicable to tlieir coDditton." Slorg, J., in Tan Neat v. 
Packard, 2 Pet. 144. " The settlera of colonies in America did not carry with 
them tbe lam of the land as being bound by them wherever they should settle. 
Thej left the realm to avoid the inconveniences and hardabipg they were under, 
where some of these laws were in force ; particularly eccleaiastical laws, those 
for payment of tithes and others. Had it been andcrstood that they were to 
carry these lava with them, they had better have stayed at home among their 
friends, unexposed to the risks and toils of a new settlement. They carried with 
them a right to such parts of laws of the land as they should judge advantageous 
or useful'to them ; a right to be free from those they thought hurtful, and a right 
to make such othcra as they should think necessary, not infringing the general 
rights of Englishmen ; and such new laws they were to form as agreeable as 
might bo to Uie laws of England." Franklin, Works by Sparks, Vol. IV. p. 271. 
See, also, Chisholm n. Georgia, 2 Dall. 485; Commonwealth n. Knowlton, 2 
Mass. 534 ; Commonwealth v. Hunt, 4 Met. 123 ; Mayo r. WiUon, 1 N. H. 58 ; 
Houghtonr. Page,2N. H. 44; State c. Rollins. 6 N.H. 650; State ». Buchanan, 
5H. & J. 356 ; Lindsey v. Coats, 1 Ohio, 245 ; Bloom c. Richards, 2 Ohio, k. e. S90 ; 
Lyle V. Richards, 9 S. & R. 330 ; Craft r>. State Bank. 7 Ind. 219 ; Dawson o. 
CoffhiaD, 28 Ind. 220; Bogardus d. Trinity Church, 4 Sandf. Ch. 757; Morgan 
r. King, 30 Barb. 9 ; Lansing c. Stone. 37 Barb. 15 ; Simpson n. State, 5 Yerg. 
356 ; Stout p. Keyes, 2 Doug. Mich. 184 ; Lorman v. Benson. 8 Mich. 18 ; Piei^ 
son r. State, 12 Cal. 149 ; Norris v. Harris, 15 C&L 226 ; Hamilton e. Eneeland, 
1 Nev. 40. The courts of one State will presume the common law of a sister 
Stale to be the same as their own in the absence of evidence to tbe cdntrary. 
Abell V. Douglass, 4 Denio, 305 ; Kermott 0. Ayer, 11 Mich. 181 ; Suhurman e. 
Harley. 29 Ind. 458. 

' The acta of Parliament passed al\er the settlement of a colony were not in 
force therein, nnless made so by express words, or by adoption. Commonwealth 
o. Lodge. 2 Grat. 679 ; Pemble r. Clifford, 2 McCord. .11. See Swift v. Tousey, 
5 Ind. 196 ; Baker v. Mattocks, Quincy, 72 ; Cathcart o. Robinson, 5 Pet. 280. 
Those Amendatory of the common law, if suited to the condition of things in 
America, were generally adopted by tacit consent. For the differing views taken 
hy English and American statesmen upon the general questions here discussed, 
see (be observations by Governor Pownall, and the comments of Franklin 
tbenon, 4 Worka ofFranklin, by Sparks, S71. 

[25] 



DiB.1izedOyGoO<^lc 



• 24 CONOTITDTIOSAL LIMITATIONB. [CH. HI. 

who are to pay iL^ Did Parliament order offenders againat the laws 
in America to he sent to England for trial, every American was 
ronsed to indignation, and protested against tlie trampling under 
foot of that time-honored principle that trials for crime must be by 
a jury of tlie vicinage. Contending thus behind the bulwarks of 
the common law, Englishmen would appreciate and sympathize 
witli their position, and Americane would feel doubly strong in a 
cause that was right not only, but the justice of which must be 
confirmed by an appeal to the consciousness of their enemies thom- 
selves. 

Tlie evidence of the common law consisted in part of the declare 
atory statutes we have mentioned,^ in part of the commentaries of 
such men learned in tlie law as had been accepted as authority, 
but mainly in the decisions of the courts applying tlie 
[•25] "law to actual controversies. While colonization con- 
tinued, — that is to 8ay,antil the war of the Revolution ac- 
tually commenced, — these decisions were authority in the colonies, 
and the changes made in the commou law ap to the same period were 
operative in America also if suited to the condition of things here. 
The opening of the war of the Bevolution is the point of time at 
which the continuous stream of the common law became divided, 
and that portion which had been adopted in America Sowed on by 
itself, no longer subject to changes from across Uie ocean, but 
liable still to be gradually modified through changes iti the modes 
of thought and of business among the people, as well as through 
statutory enactments. 

' ' ■ Tbfl blesring of Judah uid Isaacluu- will never meet ; tliat the sune people 
or nation should be both the lion'a whelp and the ■(■ between burdens ; neither 
will it be that a people overlaid with taxes should ever become valiant and niar- 
tial. It is true that taxes levied hy consent of the State do abate men's courage 
less, BJt it bath been seen notably in the eserdse of the Low Countries, and in 
■ome degree in the subsidies of England, for yoa must note that we speak now 
of the heart and not of the purse ; so that although the same tribute or tax laid 
b; consent or by imposing be all one to the purse, yet it works diversely upon 
the courage. So that you may conclude that no people overcharged with tribute 
is fit for empire," Lord Bacon on the True Greatness of Kingdoms. 

' These stalntea upon the points which are covered by them, are the best 
evidence possible. They are the living charters of English liberty to the present 
day ; and as the forerunners of the American constitutions and the source from 
which have been derived many of the most important articles in their bills of 
rights, they are constantly appealed to when personal liberty or private ri^its 
are placed in apparent antagonism to the chums of government. 
[26] 



DiB.1izedOyGoO<^lc 



CH. ni.} FORMATION AND ABIENDHENT OF CONSTITUTIONS. * 25 

The colonies also Iiad legiataturea of their own, by which laws 
had been passed which were in force at the time of the separation, 
and wliich remained unaffected thereby. When, therefore, they 
emei^ed from the colonial condition into that of independence, the 
laws which governed them consisted, firtt, of the common law of 
Eogland, so far as they bad tacitly adopted it as suited to their 
condition ; aecond, of the statutes of England, or of Great Britain, 
amendatory of the common law, which they had in like manner 
adopted ; and third, of the colonial statutes. The first and second 
constituted tlie American common law, and by this in great part 
are rights a^udged and wrongs redressed in the American States 
to this day.i 

' A few of tbe States, to get rid of confaBion in the Ibit, deemed it desirable 
to repeal the acta of Parliament, and to re-enact such portiont of them as were 
Unaided important here. See the Michigan repealing statute, copied from that 
ofVii^ia, in Code of 1820, p. 4£9. In same of Hie new States there were also 
other laws in force tbin those to which we have above alluded. Although it lias 
been said in La Plaisance Bay Harbor Co. r. The City of Monroe, Wal. Ch. 155. 
and Depew r. Trustees of Wabash & Erie Canal, 5 Ind. 8, that the ordinance of 
17S7 was BUpeneded in each of the States formed oat of the North- West Territory 
hj the adoption of a State constitution, and admission to th^ Union, yet the 
weight of judicial antbority is probably the other way. In Hogg e. The Zanes- 
TJlle Canal Manufacturing Co. 5 Ohio, 410, it was held that the provision of Uie 
ordinance that the navigable waters of the territory, and the carrying-places 
between should be common highways and for ever free, was permanent in its 
oUigation, and could not be altered without tbe consent both of the people of 
the State, and of the United Slates, given through their representatives. " It is 
•a article of compact; and until we assume the principle that the sovereign power 
of a State is not bound by compact, this clause must be considered obligatory," 
JiiaticeB McLean and Letmtf, in Spoonerp. McConnell, 1 McLean, 337, examine 
Hat aahject at considerable length, and both arrive at the same conclusion wiUi 
tbe Ohio court. Tbe view taken of the ordinance in (hat case was, that such 
parts of it aa were designed temporarily to regulate the govemtnent of the tern- 
tory, were abolished by the change from a territorial to a State government, 
iriiile the other parts, which were designed to be perrnanent, are unalterable 
except by common ctmsent. Some of these, however, being guaranteed by the 
Federal Constitution, aRerwards adopted, may be regarded as practically an- 
nolled. while any others which are opposed to tbe constitution of any Slate formed 
out of the territory, must also be considered as annnlled by common consent; 
tbe people of the Slate assenting in forming their constitution, and Congress in 
admitting tbe State into the Union tmder it. The article in regard to navigable 
waters is therefore still in force. Tbe same was also said in regard to tbe artide 
pnAibiiing alavety, though that also may now be regarded as practically annulled 
by tbe amendment to the Federal Constitution covering the same ground. The 
like opinion waa anbaequently expressed in Palmer v. Commiuioners of Cuyahoga 

[27] 



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* 26 COSSTTTDTIONAL LtHITATIONS. [CH, IH. 

[* 26] * Every colony had also its charter, emaaating from the 
Grown, and constituting its colonial constitution. All but 
two of those were swept away by the whirlwind of revolution, and 
others substituted which had been framed by the people themselves, 
through the agency of conventions which they had chosen. Tlie 
exceptions were the States of Connecticut and Rhode Island, each 
of which had continued its government as a State under the colo- 
nial charter, finding it sufficient and satisfactory for the time being, 

and accepting it as the constitution for the State.^ 
[• 27] New States have since from time * to time, formed con- 
stitutions either regularly in pursuance of enabling acts 
passed by Congress, or irregularly by the spontaneous action of 
the people, or under the direction of tho legislative or eiecutive 
authority of the Territory to which the State succeeded. Where 
irregularities existed, they must be regarded as having been cured 
by the subsequent admission of the State into the Union by Congress ; 
and there were not wanting in the case of some States plau- 
[•28] sible reasons for insisting that such admission 'had be- 
come a matter of riglit, and that tlie necessity for an 

Co. 3 MtLean, 226. and in JoWy e. Terra Haute Drawbridge Co. 6 McLean, 
237. See also Strader n. GrahuD, 10 Uov. 62 ; Doe ti. Douglau, S Blackf. 
12; Conoecticut Mutual Life Ins. Co. e. Croaa, 18 Wis. 109; Milwaukee Gm- 
ligbt Co. V. Sc-hooner Gamecock, 23 Wis. 144. In the cases in the first and third 
McLean, however, the opinion was expressed that the Slates might UnruUy im- 
prove the navigable waters and the carrying-places between, and charge tolls 
upon the use of the improvement to obtain reimbursement of their ozpenditures. 

In some of the States formed out of the territory acquired by the United States 
from foreign povrers, traces will be found of the laws existing before the change 
of government. Louisiana has a code peculiar to itself, based upon the civil law. 
Much of Mexican law, and especially as regards lands and land titles, is retained 
in the systems of Texas and California. In Michigan, when the acts of Parlia- 
ment were repealed, it was also deemed important to repeal all laws derived from 
France, through the connection with the Canadian provinces, including the 
Coutume de Paris, or ancient French common law. In the mining States and 
Territories a peculiar species of common law, relating to mining rights and titles, 
has sprung up, having it« origin among the miners, but recognized and enforced 
by the court*. 

' It is worthy of note, that the first case in which ■ legislative enactment was 
declared nnconstitutioual and void, on the ground of incompatibility with the 
constitution of the State, was decided under one of these royal charters. The 
case was that of Trevett v. Weeden, decided by the Superior Court of Rhode 
Island in 1766. See Arnold's History of Rhode Island, Vol. II. & 24. The 
case ia further referred to,;osf, p. 160, n. 
[28] 



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CH. m.] FORMATION AHD AHENDUENT OF CONBTTTCTIONB. * 28 

enabling act by Congress, was dispensed vith by the previous stip- 
ulations of tbe national government in acquiring the Territory from 
which such States were formed.^ Some of these constitutions 
pointed out the mode for their own modification ; otliers were 
silent on that subject ; but it has been assumed that in such cases 
the power to originate proceedings for that purpose, rested with 
the legislature of tlie State, as the department most uearly repre- 
seuUng its general sovereignty ; and this is doubtless the correct 
■new to take of this subject.' 

The theory of our political system is that the ultimate sover- 
eignty is in the people, from whom springs all legitimate authority." 
The people of the Union created a national constitution, and 
conferred upon it powers of sovereignty over certain subjecto, aud 
the people of each State created a State government, to exercise the 
remaining powers of sovereignty so far aa they were disposed to 
allow them to be exercised at all. By the constitution which they 
v^tabliflh, they not only tie up the hands of their official agencies, but 
their own hands as well, and neither the officers of tiie State, nor 
the whole people as an aggregate body, are at liberty to take action 
in opposition to this fundamental law. But in every State, although 
all persons are under the protection of the government, and obliged 
to conform their action to its laws, there are always some who are 
altogether excluded from participation in the government, and are 
compelled to submit to be ruled by an authority in tlie creation of 
wliich they have no choice. The political maxim, tiiat government 
rests upon the consent of the governed, appears, therefore, to be 
practically subject to many exceptions ; and when we say the sov- 
ereignty of the State is vested in the people, the question very nat- 

' Thu vu the claim nude on beh&lf of Michigui ; it being insisted tfaat the 
dtizcDi, under the provisions of the ordinance of 1787, whenever the Tenitoiy 
ftcqaired the requisite population, had an absolute right to form a constitution 
and be admitted to the Dnion under it. See Scott v. Detroit Young Men's 
Sodetj's Lessee, 1 Doug. Mich. 119, and the contrary opinion in Myers c. Man- 
hattan Bank, 20 Ohio, 2S3. The debates in the Senate of the United States on 
tlie admission of Michigan to the Union go fully into this question. See Benton's 
Abridgment of Congressional Debates, Yol. XIII. pp. 69-7S. And aa to the 
right of the people of a Territory to originate measures looking to an application 
for admission to the Union, see Opinions of Attorneys-General, Vol. II. p. 726, 

* See Jameson on Constitutional Conventions, c. 8. 

' McLean, J., in Spooner t>. McConnell, 1 McLean, 347. 

[29] 



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" 28 CONSTITDTIONAL UMITATIONS. [CB. HI. 

urally presents itself, What are we to understand by The People as 

used in tlm coonection ? 
[• 29] • What should be the correct rule upon this subject, it 

does not fall within our province to consider. Upon this 
men will theorize ; but the practical question lies back of the form- 
atioi) of the conatitution, and is addressed to the people them- 
selves. As a practical fact, the sovereignty is Tested in those 
persons who are permitted by the constitution of tlie State to 
exercise the elective franchise. These persons may have been des- 
ignated by description in the enabling act of Congress permitting 
the formation of tlie constitution, if any such there were, or the 
convention which framed the constitution may have determined 
the quali&cations of electors without external dictation. In either 
case, however, it was essential to subsequent good order and satis- 
faction with the government, that tliose classes in general sliould be 
admitted to a voice in its administration, whose exclusion on the 
ground of want of capacity or of moral fitness, could not reason- 
ably and to the geimral satisfaction be defended. 

Certain classes have been almost universally excluded, — the 
slave, because he is assumed to be wanting alike in the intelligence 
and the freedom of will essential to the proper exercise of the 
right ; tlio woman, from mixbd motives, but mainly perhaps, be- 
cause, in the natural relation of marriage, she was supposed to be 
under the infinence of her husband, and, where the common law 
prevailed, actually was in a condition of dependence upon and sub- 
jection to him ; the infant, for reasons similar to those which 
exclude the slave ; the idiot, the lunatic, and the felon, on ob- 
vious grounds ; and sometimes other classes for whose exclusion 
it is difficult to assign reasons so generally satisfactory. 

The theory in these cases we take to be that classes are ex- 
cluded because they lack either the intelligence, the virtue, or the 
liberty of action essential to the proper exercise of the elective 
franchise. But the rule by which the presence or absence of these 
qualifications is to be determined, it is not easy to establish on 
grounds the reason and propriety of which shall be accepted by all. 
It must be one that is definite and easy of application, and it must 
be made permanent, or an accidental majority may at any time 
change it, so as to usurp all power to themselves. But to be defi- 
nite and easy of application, it must also be arbitrary. The infant 
of tender years is wanting in competency, but he is daily acquiring 
[SO] 



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CH. lU.] FOBUATION AND AMEMDHENT OF COMSTmmONB. * 29 

it, and a period is fixed at wliicb he sliall conclusively be presumed 
to possess wliat is requisite. The alien may know nothing of 
our political system and laws, and be is excluded until 
[* 30j * he has heen domiciled in tlie country for a period judged 
to be sufficiently long to make him familiar with its insti- 
tutions ; races are sometimes excluded arbitrarily ; and there have 
been times when in some of tlie States the possession of a certmn 
amount of property, or the capacity to road, were regarded as es- 
sential to satisfactory proof of sufficient freedom of action and in- 
telligence.' 

Whatever the rule that is once established, it must remain fixed 
nntil those who by means of it have the power of the State put 
into their hands see fit to invite others to participate with them in 
its exercise. Any attempt of the excluded classes to assert their 
right to a share in the government, otherwise than by operating 
upon tlie public opinion of those who possess the right of suffrage, 
would be regarded as an attempt at revolution, to be put down by 
the strong arm of the government of the State, assisted, if need 
be, by the military power of the Union.' 

Id regard to the formation and amendment of State constitu- 
ti<HiB, tlie following appear to be settled principles of American 
constitutional law : — 

I. Ttie people of the several Territories may form for them- 
selves State constitutions whenever enabling auts for that purpose 
are passed by Congress, but only in the manner allowed by such 
enabling acts, and through the action of such persons as the en- 
abling acts shall clothe with the elective franchise to that end. 
If the people of a Territory shall, of their own motion, without 
such enabling act, meet in convention, frame and adopt a consti- 
tatiou, and demand admission to the Union under it, such action 
does not entitle them, as matter of right, to be recognized as 

■ SUU V. Woodruff, 2 Dky, 501 ; Catlin o. Smith, 2 S. £ R. 367 ; Opiniom of 
Judge*, 18 Fick. 575. For some loiral electjons it is quite common still to require 
propertj quiliGcatioa or the p&jment of taxes in the voter ; but itatutet of thia 
description are generally construed liberally. See Crawrord n. Wilson, 4 Barb. 
501. Manj ipeinal statutea. Tefeniog to the people of a mnnicipalitjr the qnea- 
tion of voting aid to internal improTements, have confined the light of voting on 
tbe question to tax-payeni. 

* The case of Rhode Island and the " Dorr Rebellion," so popularly known, 
will be fresh in tbe nunds of all. For a discussion of smne of the legal aspecta 
of the case, lee Luther v. Borden, 7 How. 1. 

[81] 



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• 80 CM>M8TIT0TI0NAL LIBIITATIONB. [CH. IH. 

a State ; but the power that can admit can also refuse, and the 
territorial status must be continued until Congress shall be satis- 
fied to suffer tliQ Territory to become a State. Tliere are always 
in these cases questions of policy as well as of constitutional law 
to be determined by the Congress before admission becomes a 
matter of right, — whether the constitution formed is republican ; 
whetlier tlie proper State boundaries have been fixed upon ; 
whether the population is sufficient ; whether tlie proper qualifi- 
cations for the exercise of the elective francliise have been agreed 
to ; whetlier any inveterate evil exist in the Territory which is 
now subject to control, but which miglit be perpetuated under a 
State government, — these and the like questions, in which the 
wliole country is interested, cannot be finally solved by the people 
of the Territory for themselves, but the final decision must rest 
with Congress, and the Judgment must be favorable before admis- 
sion can be claimed or expected. 

II. In the original States, and all others subsequently admitted 
to the Union, the power to amend or revise their constitutions 
resides in the great body of the people as an organized body poli- 
tic, who, being vested with ultimate sovereignty, and the source 
of all State authority, have power to control and alter the law 
which they have made at their will. But the people, in the legal 
sense, must be understood to be those who, by the existing consti- 
tution, are clothed .with political rights, and who, while that in- 
strument remains, will be the sole organs through which the will 
of ttie body politic can be expressed. 

III. But the will of tlie people to this end can only be ex- 
pressed in the legitimate modes by which sucli a body politic can 
act, and which must either be prescribed by the coustitutioQ 
whose revision or amendment is sought, or by an act of Uie legis- 
lative department of the State, which alone would he autliorized 
to speak for the people upon this subject, and to point out a mode 
for the expression of their will in the absence of any provision for 
amendment or revision contained in the constitution itself.^ 

' OpinionsorUie Judgea, eCusb. 573; Collier e. Frieraon, 24 Ak. 100. The 
first constitution of Nbit York contained no provision for its onn ameodment, 
tnd Mr. Hammond, in his Political Hietoiy of New York, Vol. I. c. 26, gives a 
T^ry intereating account of tbecontroverayberore the legiaUture and in the ccmn- 
cil of revision as to tbe power of the legislature to call a convention for revision, 
and as to the mode of aubmitling its work to the people. In Collier t. Frienon, 
[82] 



DiB.1izedOyGoO<^lc 



CH. mJ] FOBHATIOlf AND AHENDHENT 07 COKBTTTDTIOMS. * 32 

* IV. In accordance with nniTeisal practice, aDd from the [• 32] 
rery necessity of the case, amendments to an existing oon- 
stitntion, or entire revisions of it, must be prepared and matured by 
some body of repreeentaUvea chosen for the purpose. Itis obviously 
impossible for the vhole people to meet, prepare, and discuss the 
proposed alterations, and there seems to be no feasible mode by 
which an expression of their will can be obtained, except by asking 
it upon the single point of assent or disapproval. But no {lody of 
representatives, unless specially clothed with power for that pur- 
pose by the people when clioosing them, can rightfully take 
definitive action upon amendments or revisions ; they must submit 
the result of their deliberations to the people — who alone are com- 
petent to exercise the powers of sovereignty in framing the ftindar 
mental law — for ratification or rejection. The constitutional con- 

S4 Ah. 106, it appeared that the le^datnre bad proposed eight different amend- 
BCDta to be submitted to the people at the same time ; the people had approved 
tfaero, and all the requisite proceedings to make them a part of tiie constitution 
had been bad, except that in the Bubseqaent legislature the resolution for their 
ntificatjon had bj mistake omitted to recite one of them. On the question 
wbetber this one had been adopted, we quote from the opinion of the court : 
" Tbe constitution can be amended in but two wajs ; either bj- the people who 
onginall}' framed it, or in tbe mode prescribed hy the instrament itself. IT the 
last mode is pursued, the amendments must be proposed by two-thirds of each 
house of the General Assembly ; they must be published in print, at least three 
months before the next general election for representatives ; it must appear trom 
tbe returns made to the Secretary of State that a majority of those voting for 
repreaentatires have voted in favor of the proposed amendments, sod they muat 
be ratiSed by two-thirds of each house of the nest General Aasembly after such 
electioD, voting by yeas and nays, the proposed amendments having been read at 
eadi sesuou three times on three several days in each house. We 
donbt that to change the constitution in any other mode than hy a 
everj requisition which is demanded by the instnimeDt itself must be observed, 
aod the omisaioD of any one is fatal to the amendment. We scarcely deem any 
argument necessary to enforce this proposition. The constitution is tbe supreme 
and paramount law. The mode by which amendments are to be made under it 
is dearly defined. It has been said that certain acts are to be done, certain 
requis^ons are to be observed, before a change can be effected. But to whit 
porpose are those acta required or those requisitions enjoined, if the legislature or 
any department of the government can dispense with them P To do so would be 
b> violate tbe instrument which they are sworn to support, and every principle of 
public law and sound coDStJtutional policy requires tbe coarts to pronounce against 
any amendment which is not shown to lisve been made in accordance with the 
rales preacribed by the fundamental law." See also State p. McBride, i Ho. 



[88] 

DiB.1izedOyGoO<^lc 



• 32 CONSTITUTIONAL LIMITATIONS. [CH. HI. 

vention is the representative of sovereignty only in a very qualified 
aeuse, and for the speci&c purpose, and with the restricted autliority 

to put in properform the questions of amendment upon which 
[* 83] the people are to pass ; but the changes in the * fundamental 

law of tlie State must he enacted by the people themselves.^ 
y. The power of the people to amend or revise tlieir constitu- 
tions is limited by the Constitution of the United States in the 
following particulars : — 

1. It must not atwlish the republican form of governmeut, since 
such act would be revolutionary in its character, and would coll 
for and demand direct intervention on the part of the government 
of the United States." 

2. It must not provide for titles of nobility, or assume to violate 
the obligation of any contract, or attaint persons of crime, or pro- 
vide ex pott facto for the punishment of acts by tlie courts which 
were innocent when committed, or contain any other provision 
which would, in effect, amount to the exercise of any power ex* 
pressly or impliedly prohibited to the States by the Constitution 
of the Union. For while such provisions would not call for the 
direct and forcible intervention of the gbvernment of tlie Union, 
it would be the duty of the courts, both State and national, to re- 
fuse to enforce them, and to declare them altogether void, as 
much wiien enacted by the people in their primary capacity as 
makers of the fundamental law, as when enacted in the form of 
statutes through tlie delegated power of their legislatures.' 

yi. Subject to the foregoing principles and limitations, each 
State must judge for itself what provisions shall be inserted in its 
coDstitutioo ; how the powers of government shall be apportioned 
in order to their proper exercise ; what protection shall bo thrown 
around the person or property of the citizen ; and to what ex- 
tent private rights shall he required to yield to the general 

' See upon thie Bnbject Jameson on the ConsUtutioiuJ ConTcntion, gg 415-118, 
and 479-520. This work is ao complete ftnd iatisractory in its treatmcDt of the 
general subject, as to leave little to be said by one wfao shall aAerwards attempt 
to cover the same ground. The Supreme Court of Missouri have expressed the 
opioioD that it i*aa competent for a convention to put a new constitution in force 
without submitting it to the people. State c. Neal, 42 Mo. 119. But this was 
obiter. 

* Const, of U. S. art. 4, g 4 ; Feaeralist, No. 43. 

* Cumminga e. Missouri, 4 Wal. 277 ; Jeflerson Branch Bank r. Skclly, 1 
Black, 4S6 ; SUte v. Eeiih, 68 N. C. 140 ; Jackoway t^. Denton, 26 Ark. S2&. 

[3*3 



DiB.1izedOyGoO<^lc 



CH. m.] FOBHAnON AND AMENDMEHT OF CONSTITUTIONS. * 38 

good.' • And the courts of the State, still mora the courts [• 34] 
of the Union, vould be precluded from inquiring into the 
justice of their action, or questioning its validity, because of any 
supposed conStct witli fundamental rules of right or of gorem- 
ment, unless they should be able to show collision at some point 
between the instrument tlius formed and that paramount law 
which constitutes, iii regard to the subjects it covers, the funda- 
mental rule of action throughout the whole United States.' 

How far the constitution of a State shall descend Into the par* 
ticulars of government is a question of policy addressed to the 

■ Matter ofthe Reciprocity Bank, 22 N. T. 9 ; McMaUen v. Hodge, 5 Teua, 
34 ; Matter of Oliver Lee and Co.'a Bonk, 21 N. Y. 9. In the case iast cited, 
Dmio, J., says : " The [constitutional] convention was sot obliged, like tbe legia- 
lattve bodies, to look carefully to tbe preservation of vested rights. It was com- 
petent lo deal, subject to ratification by the people, and to the Conslitation of 
the Federal government, with all private and social rights, and with all the exist- 
ing laws and institutions of tbe State. If the coovention had so willed, and the 
people liad concurred, all former charters and grants might have been annihilated. 
When, therefore, we are seeking for the true conelruclion of a constitutional pro- 
vision, we are constantly lo bear in mind that its authors were not executing a 
delegated authority, limited by other constitutional restraints, but are to look 
npoo ibem as the founders of a State, intent only upon establishing such pria<^ 
plef as seemed best calculated to produce good government and promote the pub- 
lic happiness, at the expense of any and all existing institutions which might 
stand in their way." 

* All the State constitutions now contain within themselves provisions for their 
ameodinent. Some require the question of calling a convention to revise the 
constitution to be submitted to tbe people at statedperiods ; others leave it lo the 
leKirUture to call a convention or to submit to the people the question of calling 
one; while the major part allow the legidlalure to mature specific amendments to 
be submitted to the people separately, and these become a part of the constitution 
if adopted by the requisite vote. 

When the late rebellion had been put down by the military forces of the United 
States, and the State governments wiiich constituted a part of the disloyal sys- 
tem had been displaced, serious questions were raised as to tbe proper steps to 
be taken in order to restore the States to their harmonious relations to the Union. 
Tbese questions, and the controversy over them, constituted an important part of 
the history of our country during the administration of President Johnson ; but 
■a it is tbe hope and trust of our people that the occasion for discussing such 
questions will never arise again, we do not occupy space with them in this work. 
It suffices for the present to say, that Congress claimed, insisted upon, and 
enforced the right to prescribe tbe steps to be taken and the conditions to be 
observed in order to restore these States to their farmer positions in the Union, 
and the right also to determine when the prescribed conditions had been com- 
plied mib, so as to eotiile them to representaUon in Congress. 

[35] 



DiB.1izedOyGoO<^lc 



* 34 CONBTITDTIONAL LIUITATIOMB. [CH. m. 

convention which forioB it. Certain things are to be looked for 
in all these itiBtriiinents ; though even as to these there is great 
Tarietjr, not only of suhstance, but also in the minuteuess of their 
provisions to meet particular cases. 

I. We are to expect a general framework of government to be 
designed, under which the sovereignty of the people is to be exer- 
cised by representatives chosen for the purpose, in such manner 
as the instrument provides, and with such reservations as it 
makes. 

II. Generally tlie qualifications for the right of suffrage will 
be declared, as we^ as the conditions under which it shall be 
exorcised. 

III. Separate departments will he created for the exercise. of 
legislative, executive, and judicial power, and care taken to keep 
the three as separate and distinct as possible, except so far as 
each is made a check upon the other to keep it within proper 

bounds, or to prevent hasty and improvident action. The 
[* 35] executive • is a check upon the legislature in the veto 
power, which most States allow ; the legislature is a check 
upon both the other departments through its power to prescribe 
rules for the exercise of their authority, and through its power 
to impeach their officers ; and the judiciary is a check upon the 
legislature by means of its authority to annul unconstitutional 
laws. 

ly. Local self-government having always been a part of the 
English and American systems, we shall look for its recognition in 
any such instrument. And even if not expressly recognized, it is 
still to he understood that all these instruments are framed with 
its present existence and anticipated continuance in view. 

T. We shall also expect a declaration of rights for the protec- 
tion of individuals and minorities. This declaration usually con- 
tains the following classes of provisions ; — 

1. Those declaratory of the general principles of republican 
government ; such as, that alt freemen, when they form a social 
compact, are equal, and no man, or set of men, is entitled to ex- 
clusive, separate public emoluments or privileges from the com- 
munity, but in consideration of public services ; that absolute, 
arbitrary power over the lives, lilwrty, and property of freemen 
exists nowhere in a republic, not even in the largest majority ; 
that alt power is inherent in (he people, and all free governments 
[86] 



DiB.1izedOyGoO<^lc 



CH. m.] FORMA.TIOK Am) AHEKDHENT OF OOKSITTDTIONa. * 35 

are founded on their aatliority, and inatituted for tbeir peace, 
safety, bappinesB, security, and the 'protection of property; that 
for the adrancemeut of these ends they have at all times an io- 
alienable and indefeasible right to alter, reform, or abolish their 
government in such manner as they may think proper ; that all 
elections shall be free and equal ; that no power of suspending 
the laws shall be exercised except by the legislature or its author^ 
ity ; that standing armies are not to be maintained in time of 
peace ; tliat representation shall be in proportion to population ; 
that the people shall have the right freely to aaaemble to consult 
of the common good, to iustruct their representatirea, and petition 
for redress of grievances ; and the like. 

2. Those declaratory of the fundamental rights of the citizen : 
as tliat all men are by nature free and independent, and hare cer^ 
tain inalienable rights, among which are those of enjoying and 
defending life and liberty, acquiring, possessing, and protecting 
property, and pursuing and obtaining safety and happiness ; that 
the right to property is before and higher than any consti- 
tutional * sanction ; that the free exercise and enjoyment of [* 86] 
religious profession and worship, without discrimination 
or preference, shall for ever be allowed ; that every man may freely 
speak, write, and publish his sentiments on all subjects, being re- 
sponsible for the abuse of that right ; that every man may bear 
arms for the defence of himsplf and of the State ; that the ti(()it 
of the people to be secure iu their persons, houses, papers, and 
effects against unreasonable searches and seizures shall not be 
violated, nor shall soldiers be quai-tered upon citizens in time of 
peace ; and the like. 

S. Those declaratory of the principles vhich insure to the citi- 
zen an impartial trial, aud protect him in his life, liberty, and 
property against the arbitrary action of those in authority : as that 
no bill of attainder or ex pott faeto law shall be passed ; that the 
right to trial by jury shall be preserved ; that excessive bail shall 
not be required, nor excessive punishments inflicted ; that no per- 
son shall be subject to be twice put in jeopardy for the same 
offence, nor be compelled in any criminal case to be a vituesa 
against himself, nor be deprived of life, liberty, or property with- 
out due process of law ; that private property shall not be taken for 
public use vithout compensation ; and the like. 

Oilier clauses are sometimes added declaratory of tlie principles 

[87] 



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• 86 CONSTITCnONAL LIMITATIONfl. [CH. in. 

of morality and virtue ; and it is also sometimes expressly de- 
clared — what indeed is implied witliout the declaration — that 
every thing in the declaratioa of righta contained is excepted out of 
tlie general powers of government, and all laws contrary tliereto 
shall be void. 

Many other things are commonly found in these charters of 
government ; ' but since, while they continue in force, they are to 
remain absolute and unchangeable rules of action and decision, it 
is obvious that they should not be made to embrace within their 
iron grasp those subjects in regard to which the policy or interest 
of tiie State or of its people may vary from time to time, and 
which are therefore more properly left to the control of tlie legis- 
lature, which can more easily and speedily make the required 
changes. 
In considering State constitutions we must not commit the mis- 
* take of supposing that, because individual righta are guarded and 
protected by tliem, tliey must also be considered as owing their 
origin to them. These instruments measure the powers of the 
rulers, but they do not measure the rights of the gov- 
[*3T] erned. *"What is a constitution, and what are its ob- 
jects ? It is easier to tell what it is not than what it is. 
It is not the beginning of a community, nor the origin of private 
rights ; it is not the fountain of law, nor the incipient state of gov- 
ernment ; it is not the cause, but consequence, of personal and 
political freedom ; it grants no rights to the people, but is the crea- 
ture of their power, the instrument of their convenience. Designed 
for their protection in the enjoyment of the rights and powers 
which they possessed before the constitution was made, it is but 
the framework of the political government, and necessarily baaed 
upon the pre-existing condition of laws, rights, habits, and modes 
of thouglit. There is nothing primitive in it: it is all derived 
from a known source. It presupposes an organized society, law, 

' " This, tlien, is the ofGce of a written constitution : to delegate to various 
public functionaries such of ths powers of government as tbe people do not 
intend to exercisa for themselves ; to classify these powers, according to their 
nature, and to commit them to separate agents ; to provide for the choice of these 
agents by the people ; to ascertain, limit, and define the extent of the authority 
thus delegated ; and to reserve to the people their sovereignty over all things not 
expressly committed to their representatives." E. P. Huribut in Haman Kightt 
and their Political Guaranties. 
[38] 



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CB. in.] F0R]fA.TI01( AJ4D AIIENDHENT OF COKfiTmiTIOKS. * 37 

order, property, personal freedom, a love of political liberty, and 
enough of cultiyated intelligence to know liow to guard it against 
the encroachments of tyranny. A written constitution ia in every 
instance a. limitation upon the powers of government in the hands 
of agents ; for there never was a written republican constitution 
vhich delegated to functionaries all the latent powers which lie 
dormant in every nation, and are boundless in extent, and incapor 
ble of definition." ^ 



J. St. Louis County Court, 15 Mo. 13, per Ba(e$, ar^endo. And 
■ee Uaiter of Oliver Lee & Co.'s Bank, 31 N. Y. 9. " Written conetitatioDi 
tanctify and confirm great principlea, bnt the latter are prior in exiitence to the 
rormer." 2 Webster's Works, 392. See, also, 1 Bl. Com. 124. 

[89] 



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COHSTirnTIONAL UHITATIONB. [CH. IT. 



•CHAPTER IV. 



S CONSTRUCnON OF BTATE CONBTITDTIOira. 



The deficienciea of human language are sucli that if written 
iDStrtimenU were always careful]}' drawn, and bj persons skilled 
in tJie use of words, we should not be surprieed to find their mean- 
ing often drawn in question, or at least to meet with difficulties in 
their practical application. But these difiSculties are greatly 
increased when draughtsmen are careless or incompetent ; aud they 
multiply rapidly when the instruments are to be applied, not only 
to the subjects directly within the contemplation of those who 
framed them, but also to a great variety of new circumstances 
which could not have been anticipated, but which must neverthe- 
less be governed by the general rules which the instruments estab- 
lish. Moreover, the different points of view from which different 
interests regard tliese instruments, incline them to different views 
of the instruments themselves. AU these circumstances tend to 
render the subjects of interpretation aud construction prominent tn 
the practical administration of the law, and often suggest questiooB 
of no little difficulty. 

Interpretation differs from construction in that the former " is tbo 
act of finding out the true sense of any form of words ; that is, the 
sense which their author intended to convey ; and of enabling oth- 
ers to derive from them the same idea which tho author intended 
to convoy. Construction, on the other hand, is the drawing of con- 
clusions respecting subjects that lie beyond the direct expressions 
of the text, from elements known from and given in the text ; con- 
clusions whicli are in the spirit, though not in the letter of the 
text. Interpretation only takes place if the text conveys some 
meaning or oth^r. But construction is resorted to when, in com- 
paring two different writings of the same individual, or two differ- 
ent enactments by the same legislative body, there is found 
contradiction where there was evidently no intention of such con- 
tradiction one of another, or where it happens that part of a writ- 
[40] 



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CH. TV/] COItBTEtnCTION OF STATE CONSTITnnONS. * 58 

ing or declaration contradicts the rest. Wlien tliis is the case, 
and the nature of tlie document or declaration, or whatever else it 
maf be, is such as not to allow us to consider the whole as being 
invalidated by a partial or other contradiction, then resort must be 
had to construction ; so, too, if found to act in cases which have 
not been foreseen by the framers of those rules, by which we are 
nevertheless obliged, for some binding reason, faitlifully to regulate 
as well as we can our action respecting the unforeseen case." ' In 
common use, however, the word construetion ie generally employed 
in the law in a sense embracing all that is properly covered by 
both when used in a sense strictly and technically correct; and 
we shall so employ it in the present chapter. 

From the earliest periods in the history of * written law, [* 89] 
roles of construction, sometimes based upon sound rea- 
son, and soeking the real intent of the instrument, and at other 
times altogether arbitrary or fanciful, have been laid down by 
those who liave assumed to instruct in the law, or who have been 
called upon to administer it, by the aid of which the meaning of 
the instrument was to be resolved. Some of these rules have been 
applied to particular classes of instruments only; others are more 
general in their application, and so far as they are sound, may be 
made use of in any case wliere the meaning of a writing is in dis- 
pute. To such of these as seem important in constitutional law 
we shall refer, and illustrate them by references to reported cases, 
where they have been applied. 

A few preliminary words may not be out of place, upon the 
questions, who are to apply these rules ; what person, body, or 
department is to enforce the construction ; and how far a deter- 
mination, when once made, is to be binding upon other persons, 
bodies, or departments. 

We have already seen that we are to expect in every constitu- 
tion an apportionment of the powers of government. We shall 
also find certain duties imposed upon the several departments, as 
well as upon specified officers in each, and we shall likewise dis- 

' lieber. Legal vid Political Hermeneutics. See Smitli on Stat, and Conat. 
Coiulraction, 600. BouTier deGnei the two terms succinctly as follows : " Initr- 
prtiation, the tliscoveir and representation of the trne meaning of anj- signs used 
to conrejr ideas." " Conttmction, in practice, dclenniniDg the meaning and 
application *■ to the case in question of tlie proTisions of a constitution, statute, 
will, or other instrument or of an oral agreement." Law Die. 

[41] 



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• 89 COKBTITtmONAL LIMITATIONS. [CH, IV. 

cover tliat the constitution h^ sought to hedge about their action 
in various ways, vith a view to the protection of individual rights, 
and the proper separation of duties. And vberever any one is 
called upon to perform auy constitutional duty, or to do any act 
in respect to which it can he supposed that the constitution has 
spoken, it is obvious that a question of construction may at once 
arise, upon which some one must decide before tlie duty is per- 
formed or the act done. From the very nature of the case, tliis 
decision must commonly be made by the person, body, or depart- 
ment upon whom the duty is devolved, or from whom the act 
is required. 

Let UB suppose that the constitution requires of the 
[*40] legislature, *that, in establishing municipal corporations, it 

shall restrict their powers of taxation ; and a city charter 
is proposed which confines the right of taxation to the raising of 
money for certain specified purposes, but in regard to those pur- 
poses leaves it unlimited ; or wliich allows to the municipality 
unlimited choice of purposes, but restricts tlie rate ; or which 
permits persons to be taxed indeiioiteiy, but limits the taxation of 
property : in either of tliese cases the question at once arises, 
whether the limitation in the cliarter is sucli a restriction as the 
constitution intends. Let us suppose, again, that a board of su- 
pervisors is, by the constitution, authorized to borrow money upon 
the credit of the county for any county purpose, and they are 
asked to issue bonds in order to purchase stock in some railway 
company which proposes to construct a road across tlio county; 
the proposition is met witli the query. Is this a county purpose, 
and can the issue of bonds be regarded as a borrowing of money, 
within the meaning of the people as expressed in the constitu- 
tion ? And once again ; let us suppose that the governor is 
empowered to convene the legislature on extraordinary occasions, 
and lie is requested to do so in order to provide for a class of 
private claims whose holders are urgent ; can this witli any pro- 
priety be deemed an extraordinary occasion ? 

In tliese and the like cases our constitutions have provided no 
tribunal for the specific duty of solving in advance the questions 
which arise. In a few of the States, indeed, tlie legislative de- 
partment bos been empowered by the constitution to call upon 
the courts for their opinion upon the constitutional validity of a 
proposed law, in order that, if it be adjudged without warrant, 

[42] 



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Ce. IV.] CONSTRDCnON OP STATE CONBTITCnON9. . * 40 

&e legiBlature may abstain from enacting it.^ But those pro- 
visions are not often to be met with, and judicial decisions, espe- 
cially upon delicate and difficult questions of constitutional lav, 
can seldom be entirely satisfactory when made, as they com- 
monly will be under such calls, without the benefit of argument 
at tlie bar, and of that light upon the points involved 
which might * be afforded by counsel learned in the law, [*41} 
and interested in giving them a thorough investigation. 

It follows, therefore, that every department of the government 
and every official of every department may at any time, wlien a 
duty iS'to be performed, be required to pass upon a question of 
constitutional construction.^ Sometimes tlie case will be such 
that the decision wlicn made must, from the nature of things, be 
conclusive and subject to no appeal or review, however erroneous 
it may be in the opinion of other departments or other officers ; 
but in other cases the same question may be required to be passed 
upon again before tlie duty is completely performed. The first of 
these classes is where, by the constitution, a particular question is 
plainly addressed to the discretion or judgment of some one 
department or officer, so that the interference of any other de- 
partment or officer, with a view to the substitution of its own 
discretion or judgment in the place of that to which the consti- 
tution has confided the decision, would be impertinent and intra- 
uve. Under every constitution cases of this description are to 
be met with ; and though it will sometimes be found difficult to 
classify them, there can be no doubt, when the case is properly 
determined to be one of this character, tliat the rule must pre- 
vail which makes the decision final. 

' By tbe conatttDtionB of MtiDe, New Hampshire, and M^assftchuaettg, the 
jndgea of tfae Sapreme Court are required, when c&lied apoD by the goTomor, 
Goirocil, or either house of the legislature, to give their opinioos " upon impor- 
tant queBtionB of law, and upon solemn occasions." In Miuouri, they are U> 
gtte their opinions " upon important questions of constitutional law, and upon 



* " It is argued that the legislature cannot give a construction to the constitO' 
tion relatiTe to prirate rights secured by it. It is true that the legislature, in 
consequence of their constraction of the constitution, cannot make laws repng- 
Bant to it. But ever/ department of goTernment, invested with certain consti- 
tntional powers, must, la the first instance, but not exclusively, be the judge of 
its powers, or it could not act." Parson*, Ch. J., in Kendall tr. Inhabitants of 
Kingston, 5 Mass. 533. 

[48] 



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• 41 . COKSTITUnOHAL LIMITATIOira. [CH. IV. 

We will suppose, again, that the coDstitution empowers tlie 
esecutive to cotivene the legislature on extraordinar; occasions, 
and does not tu terms authorize the iiiterreation of any one else 
in determining what is and what is not such an occasion in the 
constitutional sense ; it is obvious that the question is addressed 
exclusively to the executive judgment, and neither the legislature 
□or the judicial department can intervene to compel action if he 
decide against it, or to enjoin action if, in his opinion, the proper 
occasion has arisen.' And again, if, by the constitution, 
[• 42] * laws are to take eflFect at a specified time after their pas- 
sage, unless the le^slature, for argent reasona, shall 
otherwise order, we must perceive at once tliat tJ]e legislature 
alone is competent to pass upon tlie urgency of the alleged rea- 
sons.' And to take a judicial instance : If a court is required to 
give an accused person a trial at the first term after indictment, 
unless good cause be shown for continuance, it is obvious that the 
question of good cause is one for the court alone to pass upon, 
and that its judgment when exercised is, and must be from the 

' In exercising bis powerto call out the militia in certain exigenciei, the Pre«i- 
dent is tbe exclusive and final jadge when the ezigenc/ h&a arisen. Hartin o. 
Mott, 18 Wheat. 29. 

* In Gillinnater v. Mistiseippi & Atlantic Rnilroad Co. 13 III. 1, it wia urged 
that a certain restriction imposed upon railroad corporations by the general rail- 
road l&TT was a violation of the provision of the conatitu I ion which enjoins it upon 
the legislature " to enconrage internal improvementB hj passing liberal general 
laws of incorporation for that purpose." The court say of this provision: *'ThiB 
is a constitutional command to the legislature, as obligatory on it as any other of 
the provisions of that instrument ; but it is one which cannot be enforced by the 
courts of justice. It addresses itself to the legislature alone, and it is not for us 
to say whether it has obeyed the behest in its true spirit. Whether the provisions 
of this law are liberal, and tend to encourage internal improvements, is matter of 
opinion, abont which men may differ ; and as we have no authority to revise legis- 
lative action on the subject, it would not become us to express our views tu rela^ 
tion to it. The law makes no provision for the construction of canals and turn- 
pike roads, and yet they are as much internal improvements as railroads, and we 
might as well be asked to extend whatne might consider the liberal provisions of 
this law to them, because they are embraced in the constitutional provision, as to 
ask us to disregard such provisions of it as we might regard as illiberal. Tbe ar- 
gument proceeds upon tbe idea that wo should consider that as done which ou^t 
to be done; but that principle has no application here. Like laws upon other 
subjects within legislative jurisdiction, it is for the courts to say what the law i*, . 
not wbat it should be." It is clear that courts cannot interfere with matters of 
legislative discretion. Maloy v. Marietta, U Ohio, n. 8. 699. 
[44] 



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CB. IV.] CONSTBUCriON OP STATE CONSTITDTIONS. • 42 

nftture of the case, final. And when in any of these and similar 
cases tho decision is once made, other departments or other 
officers, whatever may have beeu their ovq opinions, must assume 
the decisioD to be correct, and are not at liberty to raise any 
question concerniug it, unless some duty is devolved upon them 
which presents the same question anew. 

But there are cases where the question of constnictjon is 
equally addressed to two or more departments of the govern- 
ment, and it then becomes important to know whether tlie de- 
cision by one is binding upon the others, or whether each is to 
act upon its own judgment. Let us suppose once more that the 
governor, being empowered by the constitution to convene 
the * legislature upon extraordinary occasions, has re- [* 43] 
garded a particular event as being such an occasion, and 
has issued his proclamation calling tliem together with a view to 
the enactment of some particular legislation which the event 
seems to call for, and which he specifies in liis proclamatJoti. 
Now the legislature are to enact laws upon their own view of ne- 
cessity and expediency ; and tliey will refuse to pass the desired 
statute if they regard it as unwise or unimportant. But in so 
doing they indirectly review the governor's decision, aa in refus- 
ing to pass the law they also decide that the specific event was 
not one calling for action on their part. In such a case it is clear 
that, while the decision of the governor is final so far as to require 
the legislature to meet, it is not final in any sense that would bind 
tiie legislative department to accept and act upon it when they are 
called to enter upon the performance of their duty in the making 
of laws. 

So also there are cases where, alter the two houses of the legis- 
lature have passed upon the question, their decision is in a certain 
sense snbject to review by the governor. If a bill is introduced 
the constitutionality of which is disputed, the passage of the bill 
by the two houses must be regarded as the expression of their 
judgment that, if approved, it will be a valid law. But if the 
constitution confers upon the governor a veto power, tbe same 
qnestioii of constitutional authority will be brought by the bill be- 
fore him, since it is manifestly his duty to withhold approval from 
any bill which, in his opinion, the legislature ought not for any 
'reason to pass. And what reason so valid as tliat the coustitutioa 
confers upon them no authority to that end ? In all these and the 

[45] 



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• 48 coNsrrnmoMAL lmptations. [ch. it. 

like cases, eacli department must act upon its own judgment, and 
caunot be required to do that wliich it regards as a violation of the 
constitution, on tlie ground solely tliat another department which, 
in the course of the discliarge of its own duty, was called upon 
first to act, has reached the conclusion that it will not be violated 
by the proposed action. 

But setting aside uow those cases to which we have referred, 
where from the natiire of things, and perhaps from explicit terms 
of the constitution, the judgmeut of the department or officer 
acting must be final, we shall iind the general rule to be, that 
wheneTer aQ act is done which may become the subjectof a proceed- 
ing ill court, any question of constitutional authority tiiat 
[* 44] might have been raised when the act was done will be * open 
for consideration in such proceeding, and that as the courts 
must finally settle the controversy, so also will they finally deter- 
mine the question of constitutional law. 

For the constitution of the State is higher in autliority than any 
law, direction, or decree made by any body or any officer assuming 
to act under it, since such body or officer must exercise a dele- 
gated authority, and one that must necessarily be subservient to 
the instrument by which the delegation is made. In any case of 
conflict the fundamental law must govern, and the act iu conflict 
with it must bs treated as of no legal validity. But no mode has 
yet been devised by which these questions of conflict are to be dis- 
cussed and settled as abstract questions, and their determination 
is necessary or practicable only when public or private rights 
would be aflected thereby. They then become the subject of legal 
controversy, and legal controversies must be settled by the courts. 
The courts have thus devolved upon them the duty to pass upon 
the constitutional validity, sometimes of legislative, and some- 
times of executive acts. And as judicial tribunals have authority, 
not only to judge, but also to enforce their judgments, the result 
of a decision against the constitutionality of a legislative or 
executive act will be to render it invalid through the enforce- 
ment of the paramount lav iu the controversy which has raised 
the question.' 

> •' When lam conflict in actual cases, tbe^ [the courts] must decide which is 
the nperior law, and which must yield ; and as we have «een that, according to 
our principles, everj officer remains anewerable for what he officially does, a citi- 
zen, believing that tho law he enTorcea is incompatible with the superior law, the 
[46] 



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CH. IV.] C0N8TEUCTI0N OF BTATB CONSTTTDTIONB. •^45 

" The game conclusion is reached by stating in consecu- [* 45] 
tive order a few familiar maxims of the law. The adminis- 
tration of public justice is referred to the courts. To perform this 
duty, the first requisite is to ascertain the facts, and the next to de- 
termine the law that is applicable. The constitution is the funda- 
meutai law of the State, in opposition to wliich any other law, or any 
direction or decree, must be inoperative and void. If, therefore, 
Buch other law, direction, or decree seems to be applicable to the 
facts, but on comparison with the fundamental law it is found to be 
in conflict, the court, in declaring what the law of the case is, must 
necessarily determine its invalidity, and thereby in effect anuul 
it' The riglit and the power of the courts to do tliis arer so plain, 

constitiition simplj^ sues the officer before the proper court as having unlawfullj 
aggrieved bim ia the particular case. Tbe court, bound to do juatiqe to every 
one, is bonnd also to de;;icle tbis case as a eloiple caae of conflicting laws. The 
court does not decide directly upon the doinga of the legislature. It simply de- 
cidefl for the esse in hand, nhether there actually are conflicting Ism, and if so 
iriiicfa is the higher Ian that demands ohedience, when both msy not be obeyed 
at the came time. As, however, tbis decision becomes the leading decision for 
alt fature cases of the same import, until, indeed, proper and legitimate authority 
■bould rsTerse it, the question of constitutionality is virtually decided, and it ia 
decided in a natural, easy, legitimate, and safe manner, according to the prin- 
ciple of tbe Bupreraacy of the Ian, and the dependence of justice. It ia one of 
the most interesting and important evolutions of the government of law, and one 
of the greatest protections of the citizen. It may well be called a very jewel of 
Anglican liberty, and one of tbe best fruits of our political civillzatjoa." Liebor, 
Civil Liberty and Self-Government. 

" Whenever a law which the judge holds to be unconstitutional is argued in a 
bibunal of the United States, he may refuse to admit it as a rule ; this power is 
the only one which is peculiar to tbe American magistrate, but it gives rise to 
iminense political influence. Few laws can escape tbe searching analysis; for 
there are few which are not prejudicial to some private interest or other, and 
none which nay not be brought before a court of justice by the choice of par- 
tin, or by the necessity of the caae. But from the time that a judge bas refused 
to apply any given law in a case, that law loses a portion of its moral sanction. 
He penona to whose interest it is pipjudicial learn that means exist for evading 
its authority; and similar suits are multiplied until it becomes powerless. One 
of two alternatives must then be resorted to, — the people must alter the con- 
■titDtion, or the legtslature must repeal the law." De Tocqueville, Democracy 
in Americ*, c. 6. 

' "It is idle to say that the authority of each branch of the government ia 
defined and limited by the constitution, if there be not an independent power 
able and willing to enforce the limitations. Experience proves that tbe consti- 
tution is thoughtlessly but habitually violated ; and the sacrifice of individual 
rights ia too remotely connected wiUi tbe objects and contests of the masses to 

[47] 



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• 46 CONSTITUTIONAL LIMITATIONS. [CH. IT, 

[* 46] * and the duty is so generally — we may almost say uni- 
veraally — conceded, that we should not be justified in 
wearying the patience of the reader in quoting from the very 
numerous authorities upon tlie subject.^ 

Attract their attention. From its -very position it is apparent that the conierva- 
tive power is lodged in the judiciaiy, which, id the exercise of its undoubted 
rights, is bound to meet any emergency; else causes would be decided, not onlj 
bf the legislature, but sometimes without hearing or evidence." Per Qibaon, Ch. 
J., in De Chastellox e. Fair^ild, 16 Fenn. St. 18. 

" Nor will this conclusion, to use the langna^ of one of onr most eminent 
jurists and Btatesmen, bj' any means suppose a superiority of the judicial to the 
legislative power. It will only be supposing that the power of the people is 
superior to both ; and that where the will of the legislature, declared in its stat- 
utes, stands in oppoaition to that declared by the people in the constitution, the 
judge* ought to be gOTemed by the latter rather than the former. They ought 
to regnUte their decisions by the fundamental laws rather than by those which 
are not fundamentaL Neither would we, in doing this, be understood a* im- 
pugning the honest intentions, or sacred regard to justice, which we most cheer- 
fully accord to the legislature. But to be above error is to possess an entire 
attribute of the Deity ; and to spurn its correction, is to reduce to the same 
degraded level the most noble and the meanest of his works." Bates o. Kimball, 
2 Chip. 77. 

" Without the limitations and restraints usually found in written constitutions, 
the government could hare no elements of permanence and durability ; and the 
distribution of its powers and the vesting their exercise in separate departments 
would be an idle ceremony." Brown, J., in People e. Draper, 15 K. Y. 658, 

' 1 Kent, 500-S07 ; Marbury d, Madison, 1 Crancb, 137 ; Webster on the 
Independence of the Judiciary, Works, VoL in. p. 29. In this speech Mr. Web- 
ster has forcibly set forth the necessity of leaving with the courts Ihe power to 
enforce ooustitutioual restrictions, " It cannot be denied," says be, " that one 
great object of written constitutions is, to keep the departments of government 
as distinct as possible; and for this purpose to impose restraints designed to 
have that effect. And it is equally true that there is no department on which it 
is more necessary to impose restraints than upon the legislature. The tendency 
of things is almost always to augment the power of that department in its rela* 
tiou to the judiciary. The judiciary is composed of few persons, and those not 
such as mix habitually in the pursuits and objects which most engage public men. 
They are not, or never should be, political men. They bave oflen unpleasant 
duties to perform, and their conduct is often liable to be canvassed and censured 
where their reasons for it are not known or cannot be understood. The lej^a- 
ture holds the public purse. It fixes the compensaUou of all other departments ; 
it applies as well as raises all revenue. It is a numerous body, and necessarily 
carries along with it a great force of public opinion. Its members are public 
men, in constant contact with one another and with their constituents. It would 
seem to be plain enough that, without constitutional provisions which should be 
fixed and certain, such a department, in case of excitement, woald be able to 
[48] 



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CH. IT.] C0N8THDCTI0N OP STATE COHSTITDTIONS. " 47 

• The Doctrine ofrea adjudieata and stare decisis. [• 47] 

But a qaestion wliicli has arisen and been passed upon in one 
case may arise ^ain in another, or it may present itself under 
difibrent circumstances before some other department of the gov- 
erument. Will the principle once declared be held conclusive 
upon other courts and other departments, or does it settle onlj 
the particular controversy, and may a diSerent decision be looked 
upon as possible in an; new controversy that may arise ? These 
qnestions resolve themselves into two others : When can a matter 
be said to be ret adjudieata ? and what is the extent of the doc- 
bine known in tlie books as stare decisis? 

And as to the first, we understand the rule to be, that a deci- 
sion once made in a case, by the higliest court empowered to pass 
apon it, is conclusive upon tliQ parties to the controversy and 
their privies, who are not allowed afterwards to revive it in a new 
proceeding for the purpose of raising tho same or any other ques- 
tions. Tlie matter in controversy has Iwcome res judicata, a 
thing definitely settled by Judicial decision; and the judgment 
of the court imports absolute verity. Whatever the question in- 
volved, — whether the interpretation of a private contract, the 
legality of an individual act, or the validity of a legislative enact- 
ment, — the rule of finality is the same. The controversy has 
been adjudged, and once finally passed upon is never to be re- 
newed.' It must frequently happen, therefore, that a question 

CBcroacb on the jndicuuy." " The constitution being the supreme law, il follom, 
of conne, that ever; act of the lagialature contrary' to that law must be void. 
But who ahall decide this questioaP Shall the legislature itnelf decide it? If 
•0, then the constitution ceases to be a legal, and becomes only a moral restraint 
Bpon the legislature. If they, and they only, are to judge whether their sets be 
conformable to the conslitution, then the constitution is sdmonitoiy or advisoiy 
only, not legally binding ; because if tlie construction of it rests wholly with 
them, their discretion, in particular cases, may be in favor of very erroneous 
and dangerous constructions. Hence the courts of law, necegsarily, when the 
CMS aiisea, most decide on the validity of particular acts." " Without this check, 
BO certain limitation could exist on the exerdse of legislative power." See also, 
aa to the dangers of legislative encroachraenia, De Tocqueville, Democracy in 
America, c. 6. The legisUtore, though possetting a larger share of power, no 
more represents the sovereignty of the people than either of the other depart- 
menla ; it derives its authority from the same high source. Bailey n. Fhilsdel- 
^ua, &c., Raibroad Co. 4 Harr. 402 ; Whittington o. Folk, 1 H. & J. 244. 

■ Ducheas of Kingston's Case, 2 Smith's Load. Cas. 421; Etheridge c. Osborn, 

* [49] 



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* 47 CONSTTTDTIONAL UMITATIONa. [CH. TV. 

of conetitutional law will be decided in a private litigation, and 
the parties to tlie controverBy, and all others subsequently acquir- 
ing rights under them, in tlie subject-matter of the suit, will 
thereby become absolutely and for ever precluded from renewing 
the question in respect fo the matter then involved. Tlie rule 
of conclusiveness to this extent is one of the most inQexi- 
[" 48] ble principles • of tlie law ; insomuch that even if it were 
subsequently held by the courts that the decision in the 
particular case was erroneous, such holding would not authorize 
the reopeuing of the old controversy in order that tlie final conclu- 
sion might be applied thereto.^ 

But if important principles of constitutional law can be tlius 
disposed of in suits involving only private rights, and when 
private individuals and tlieir counsel alone are heard, it becomes 
of interest to know how far, if at all, otiier individuals and the 
public at lai^e are affected by the decision. And here it will be 
discovered that quite a different rule prevails, and that a Judi- 
cial decision has no such force of absolute conclusiveness as to 
other parties as it is allowed to possess between the parties to 
the litigation in which the decision has been made, and those 
who have succeeded to their rights. 

IS Wend. 899 ; Hnyea v. Reese, 34 Barb. 151 ; Hyalt c. B&tes, 36 Barb. 30S ; 
Harris v. Harris. 36 Barb. 88; Young v. Black, 7 Cranch. 667 ; Chapman n. 
Hmith, 16 Hon. 114 ; Wales e. Lyon, 2 Mich. 276 ; Prentiss v. Holbrook. 2 Mich. 
972; YauKleekt). Eggleston, 7 Mich. 611; Newberrro. Trowbridge, 13 Mich. 
278; Crandall tf.'James, 6 R. I. 144; Babcock v. Camp. 12 Ohio. n. b. 11; 
Warner v. ScaU. 39 Penn. St. 274 ; Kerr v. Union Bonk, 18 Md. 896 ; Eitner c. 
Richards, 26 III. 289 ; Wright c. Leclaire, 3 Iowa, 241 ; Wbittaker t>. Johnson 
County, 12 Tova, 696 ; Peny t). Duncan, 20 Ark. 86 ; Madox v. Graham, 2 Met. 
(Ky.) 66; George v. Gillespie, 1 Greene (Iowa), 421; Clark v. Sammons, 12 
Iowa, 368 ; Taylor v. Chambera, 1 Iowa, 134 ; Skelding t>. Whitney, 3 Wend. 
164; Aurora City c. West. 7 Wal. 82. A judgment, however, is conclusive aa 
an estoppel as to those facts without the exislence and proof of whicb it could 
not hava been rendered ; and if it might have been given on any one of several 
grODuds, it Is conclusive between the parties as to neither of them. Lea v. Lea, 
07 Mass. 498. And see Dickinson it. Hayes, 31 Conn. 417 ; Church v. Cbapin, 
35 Vt. 233 ; Packet Co. t>. Sickles, S Wal. 680. 

■ McLean n. Hugarin, 13 Johns. 164; Morgan o. Plumb, 9 Wend. 287; 
Wilder e. Case, 16 Wend. 683 ; Baker v. Rand, 13 Barb. 162 ; Kelley e. Pike, 
SCusb. 484; Hart v. Jewett, 11 Iowa, 276; Coibum v. Woodworth. 31 Barb. 
881 ; Newbeny v. Trowbridge, 13 Mich. 278 ; Skililin o. Harrick. 8 Wend. 154 ; 
Brockway n. Kinney, 2 Johns. 210 ; Plainer v. Best, 11 Johns. 630 ; Phillips t>. 
Berick. 16 Johns. 186; Page v. Fowler, 37 Cal. 100. 
[60] 



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CH. IT.] CONffKDOnOS OP STATE COHSTTTDTIONS. • 48 

A party is estopped hj a judgmeiit against him from disputing 
its correctness, so far as the point directly involved in the case 
was concerned, vbetlier the reasons upon which it was based ware 
sound or not, and even if no reasons were given therefor. And if 
the parties themselves are estopped, so also should be all those 
who, since the decision, claim to have acquired interests in the 
subject-matter of tlie judgment from or under the parties, as per- 
sonal representatives, hcirs-at-lav, donees, or purchasers, and who 
are tlierefore considered in the law as privies. But if strangers 
who have no interest in that subject-matter are to bo in like man- 
ner concluded, because their controversies are supposed to involve 
the same question of law, we sliall not only be forced into a series 
of endless inquiries, often resulting in little satisfaction, in order 
to ascertain whether the question is the same, but we shall also be 
met by the query, whetlier we are uot concluding parties by deci- 
sions which otliers have obtained in fictitious controversies and by 
collusion, or suffered to pass without sufficient consideration and 
discussion, and which might have been given otherwise had these 
parties had an opportunity of being hoard. 

" We have already seen tliat the force of a judgment [* 49] 
does not depend upon the reasons given therefor, or upon 
the circumstance that any were or were not given. If there were, 
they may have covered portions of the controversy only, or they 
may have had such reference to facts peculiar to that case, that in 
any other controversy, (liough somewhat similar in its facts, and 
apparently resembling it in Its legal bearings, grave doabto might 
arise whetlier it ought to fall witliln the same general principle. 
If one judgment was absolutely to conclude the parties to any 
similar controversy, wo ought at least to be able to look into the 
judicial mind, in order that we might ascertain of a surety that all 
those facts which influence the questions of law were substantially 
the same in each, and we ouglit also to be able to see that the first 
litigation was conducted in entire good &ith, and that all those 
considerations were presented to the court which could properly 
have weight in the construction and application of the law. All 
these things, however, are manifestly impossible; and the law 
therefore wisely excludes judgments from being used to tlie preju- 
dice of strangers to the controversy, and restricts their conclusive- 

[61] 



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• 49 COSSTITDTIOKAL LIMITATIONS. [CH. lY. 

ness to parties thereto and their privies.^ Evea pardee and privies 
are bound only so far aa regards tlie subject-matter then involved, 
and would be at liberty to raise the same queationa anew in a dis- 
tinct controversy afiecting some distinct subject-matter.' 

All judgmeute, however, are supposed to apply the existing law 
to the facts of the cose ; and tlie reasons which are sufficient to 
influence the court to a particular conclusion in one case ought to 
be Buflicient to bring it or any other court to tlio same conclusion 
in all otlier like cases wliere no modification of the law has inter- 
vened. There would tlius be uniform rules for the administratiou 

of justice, and the same measure that is meted out 
[* 50] • to one would be received by all others. And even if the 

same or any other court, in a subsequent case, should be 
in doubt concerning the correctness of the decision which has been 
made, there are consequences of a very grave character to be con- 
templated and weighed before the experiment of disregarding it 
should be ventured upon. That state of things, when judicial 
decisions conflict, so that a citizen is always at a loss in regard to 
his rights and his duties, is a very serious evil ; and the alterna- 
tive of accepting adjudged cases as precedents in future controver- 
sies resting upon analogous facts, and broagbt within the same 
reasons, is obviously preferable. Precedents, therefore, become 
important, and counsel are allowed and expected to call the atten- 
tion of the court to them, not as concluding controversies, but as 
guides to the judicial mind. Chancellor Kent says : " A solemn 
decision upon a point of law arising in any given case becomes an 
authority iu a like case, because it is the highest evidence which 
we can have of the law applicable to the subject, and the judges 
are bound to follow that decision so long as it stands unreversed, 

■ Burrin t>. West, 2 N. U. 190; Davu o. Wood, 1 Wliot. 6; Jackfioa v. 
Tedder, 3 JoIidb. 8 ; Case e. Reeve, 14 Johns, 79 ; Alexander v. Taylor, 4 Denio, 
302 ; Van Bokkelin v. Ingenoll, C Wend. 815 ; Smith v. Ballantyne, 10 Paige, 
101 ; Orphan House e. Lawrence, II Paige, 80 ; Thomoi p. Uubbell, 15 N. Y. 
406; Wood V. Stephen, 1 Serg. &R. 175; Peterson v. LoUirop, S4 Penu. St. 
22S ; Twambljr t>. Henlejr, 4 Maw. 441 ; Este v. StroDg, 2 Ohio, 401 ; Coirlea D. 
Harts, 3 Conn. 516 ; Floyd c. Uintsey, S Rich. 361 ; Riggina's Ex'rs v. Broirn, 
12 Geo. 271 ; Persona v. Jones, tb. 371. 

* Van Alstine d. Railroad Co. 34 Barb. 28 ; Taylor v. McCracken, 2 BUckC 
260; Cook V. Timont, 6 T. B. Monr. 284. 
[62] 



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CB. IV.] CONSTROCnON OP STATE C0NaTITDTI0N3. '50 

nnless it can be shown that the lav vas misanderBtood or misap- 
plied in that particular case. If a decision has been made upon 
solemn argument and mature deliberation, the presumption is in 
favor of its correctness, and the community have a right to regard 
it as a just declaration or exposition of the law, and to regulate 
their acUons and contracts by it It would therefore be extremely 
inconvenient to the public if precedents were not duly regarded, 
and implicitly followed. It is by the notoriety and stability of 
such rules that professional men can give safe advice to those who 
consult them, and people in general can venture to buy and trust, 
and to deal with each other. If judicial decisions were to be 
lightly disregarded, we should disturb and unsettle the great land- 
marks of property. When a rule lias once been deliberately 
adopted and declared, it ought not to be disturbed unless by a 
court of appeal or review, and never by the same court, except for 
very ui^nt reasons, and upon a clear manifestation of error; and 
if the practice were otherwise, it would be leaving us in a perplex- 
ing uncertainty as to tlie law." ^ 

' 1 Kent. 475. And lee Cro. Jac. 527 ; Goodtitie v. Olway, 7 T. R. 416 ; 
Sclbj 6. B&rdoni, 3 B. & Ad. 17 ; Fletcher p. Lord Somers, 3 Bing. 586 ; Ajidei>- 
MD ». Jackson, 16 Johns. 402 ; Uoodell r. Jackson, 20 Jofaiia. 722 ; Bates v. 
BeUfM, 2S Wend. 310; Emerson r. Atwater, 7 Mich. 12; Nelson c. Allen, I 
Terg. 376 ; Palmer r. Lawrence, 5 N. Y. 389 ; KDcelaod v. Milwaukee, 16 Wis. 
458 ; Boon o. Bowers, 80 Miss. 246 ; ttez ■>. Cox, 2 Burr. 787 ; King v. Younger, 
5 T. R. 4oO; Hammond n. Anderion, 4 B. & P. 69 ; Broom's Maxims, 109. Dr. 
Lieber dunks the doctrine of the precedent especiftlly Taluable in a free country. 
" Ubertj and steady progresgion require the prini^iple of the precedent in all 
spherM. It is one of the roots with which the tree of liberty fastens in the soil 
of real life, and through which it receives the sap of fresh existence. It ia the 
weapon by which ioKriereuce ia warded off. The principle of the precedent is 
eminently philosophical. The English Constitution would not have developed 
Itself without it. What is called the English Constitution consists of the funda- 
mentals of the British polity, laid down in custom, precedent, decisions, and stat- 
ntea ; and the common Isw in it is a far greater portion thai the statute law. 
The English Constitution is chiefly a common-law constitution; and this reflex 
of a continuous society in a continuous law is more truly philosophical than the 
theoretic and systematic, but lifeless constitutions of recent France." Civ. Lib. 
and 8elf-Gov. See also his chapter on precedents in the Ilermeneutics. In 
Nelson r. Allen, 1 Yerg. 376, where the consUtutionality of the " Betterment 
Law " came under consideration, the court (_W/iite, J.) say; " Whaterer might 
be my own opinion upon this question, not to assent to its settlement now, aiter 
two solemn decisions of this court, the last made upwards of fourteen years ago, 
and not only no opposing decision, but no attempt even by any case, during all 

[58] 



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• 51 CONSTITDTIOHAL LIMITATI0M8. [CH. IT. 

[• 51] *The doctrine of stare decisit, hovever, is only appiica* 
ble, in ita full force, within tlie territorial jurisdiction of 
[* 52] tlie courts making * the deciaions, aince there aione can 
such decisions be regarded aa having established any 
rules. Rulings mado under a similar legal system elsewhere may 
be cited and respected for their reasons, but are not necessarily to 
be accepted as guides except in so far as those reasons commend 
themselTes to the Judicial mind.^ Great Britain and the thirteen 
original States had each substantially tho same system of common 
law originally, and a decision now by one of the higher courts of 
Great Britain as to what the common law is upon any point is cer- 
tainly entitled to great respect in any of the States, though not 
necessarily to be accepted as binding authority any more than the 
decisions in any one of the other States upon the same point. It 
gives us tlie opinions of able judges as to what the law is, but its 
force as an authoritative declaration must be confined to the coun- 

thu time, to call tbe point agun in controveny, fonnlng a complete acquiescence, 
would b«, at tbe leatt, inconstfltent, perhaps mischievoDB, and uncalled for hy a 
correct discharge of afGcial dutj. Much respect has always been paid to tbe 
contemporaneona construction of statutes, and a forbidding caution bath alwaja 
accompanied any approach towards unsettling it, dictated no doubt by easily 
foreseen consequences attending a sudden change of a rule of property, neces- 
■arjly introductory at least of confusion, increased litigation, and tbe disturbance 
of the peace of society.' The most able judges and the greatest names on the 
bench have held this view of the subject, and occasionally expressed themselves 
to that effeit, either laciliy or openly, intimating that if they had held a part in 
thi! first conslrui'tion tiiey woijd have been of a different opinion ; but the con* 
Btructlon having been made, they give their assent thereto. Thus Lord ElXen- 
borough, in 2 East, 302, remarks; * 1 think it is better to abide by that deter- 
mination, than to introduce uncerbunty into this branch of the law, it being often 
more important to hare the rule settled, than to determine what it shall be. I 
am not, however, coDTinced by the reaeoning in this case, and if the point were 
new I should think otherwise.' Lord Manxfidd, in 1 Burr. 419, says : ' Where 
solemn determinations acquiesced under had settled precise cases, and a rule of 
property, they ought, for the sake of certainty, to be observed, as if they bad ■ 
originally formed a part of the text of the statute,' And Sir Jamei Mantfidd, 
in 4 B. & P. 69, says : * I do not know how to distinguish this from the case 
before decided in tbe court. It is of greater consequence that the law should be 
as uniform as possible, than that the equitable claim of an individual should be 
attended to.'" And see People v. Cicotte, 16 Mich. 288. 

A judgment rendered by a court is authority notwithstanding it was one given 
under the law of necessity, in consequence of an equal division of tbe court, 
Regina t>. Millis, 18 M, & W. 261 ; Durant r. Essex Co. 7 Wal. 107. 

' Caldwel! V. Gale, 11 Mich. 77. 
[54] 



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CH. IT.] CONSTBOCnOH OF STATE CONaTITUTIONB. * 52 

try for which the court sits aud judges. But au English decision 
before the BoTolutioo is in tlie direct liue of authority ; and where 
a particular statute or clause of the constitution has been adopted 
in one State from the statutes or constitution of aootlior, after- a 
judicial construction had been put upon it in such last-mentioned 
State, it is but just to regard tho construction to have been 
adopted, as well as the words, and all the mischiefs of disregard- 
ing precedents would follow as legitimately here as in any other 
case.' 

It will of course sometimes happen that a court will find a 
former decision so unfounded in law, so unreasonable in its deduc- 
tions, or so mischievous in its consequences, as to feel compelled 
to disregard it. Before doing so, however, it will be well to con- 
sider whether the point involved is such as to have become a rule 
of property, so tliat titles liave been acquired in reliance upon it, 
and vested rights will be disturbed by any change ; for in such a 
case it may be better that the correction of the error he left 
to the legislature, which can control its action so * as to [* 53] 
make it prospective only, and thus prevent unjust conse- 
quences.* 

' Commomrulth o. Hartnett, 3 Gr&y, 450 ; Bond v. Appleton, S iiMa. 472 ; 
Batbod V. UendoD, 1 Pick. 164 ; C&upbel] v. QuioUn, 3 Scorn. 288 ; Little e. 
Smith, 4 Sc*D). 402; Riggs o. Wilton, 18 111. IS; Ingrsham r. Regan, 23 Mira. 
213; Tfler r. Tyler, 19 111. 151; Pvnnock v. Diologae, 2 Pet. IS; Adams p. 
Field, 21 Yt.2«6; Turnpike Co. d. People, 9 Barb. 167; Drennan n. People, 
10 Mich. 169; Hyrick v. Haacy, 27 Me. 9; People v. Coleman, 4 Cal. 46; 
Attoniey-Uenenl v. Brunat, 3 Wis. 787 ; Langtlon v. Applegate, & Ind. 327. 
But it does not neceiaarilj follow that the prior decision cooatruing the law must 
b« inflexibly followed, since the circumstancea in the State adopting it maj be 
ao different as to require a different construction. Little o. Smith, 4 Scam. 402; 
Leasee of Gray e. Aakew, 3 Ohio, 479. 

' " After an erroneous decision touching rights of property haa been followed 
durty or forty yean, and even a much less time, the courta cannot retrace their 
atepa without committing a new error nearly aa great as the one at the Srat." 
BronMtm, J., in Sparrow d. Kingman, 1 N. Y. 260. See also Emerson n. Atwa- 
ter, 7 Mich. 12. "It ia true that when a principle of law, doubtful in its char- 
acter or uncertain in the subject-matter of its application, ha* been aettled by a 
•eriea of judicial decisions, and acquiesced in for a considerable IJme, and impoi^ 
taot rights and interests have become established under such decisions, courta 
will hesitate long before they will attempt to overturn the result so long eatab- 
lished. Bnt when it is apparently indilFurent which of two or more rules is 
adopted, the one which shall have been adopted by judicial sanction- will be 
adhered to, though it may not, at the moment, appear to be the preferable rule. 

[55] 



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• 53 COHSTITDTIOKAL LIMITATIONS. [CB. IV. 

Whenever the case is such that judicial decisiooB which have 
been made are to be accepted as law, atid followed b; the courts 
in future cases, it is equally to be expected timt they will be fol- 
lowed by other departments of the goremmeDt also. Indeed in 
the great majority of cases tlie officers of other departments have . 
no option ; for the courts possess the power to enforce their con- 
struction of the law as well as to declare it ; and a failure to 
accept and foUow it in one case would only create necessity for 
new litigation with similar result. Nevertheless, there are excep- 
tions to tliis rule which embrace all those cases where new action 
is asked of another department, which that department is at lib- 
erty to grant or refuse for any reasons which it may regard as 
sufficient. We cannot conceive that, because the courts have 
declared an expiring corporation to have been constitutionally 
created, the legislature would be bound to renew its charter, or 
the executive to sign an act for that purpose, if doabtful of the 
consUtutional authority, even though no other adverse reasons ex- 
isted. In the enactment of laws the legislature must act upon its 
own reasons ; mixed motives of power, justice, and policy influ- 
ence its action; and it is always justifiable and laudable to lean 
against a violation of the constitution. Indeed cases must some- 
times occur when a court should refrain from declaring a 
[*54] statute 'unconstitutional, because not clearly satisfied 
that it is so, when if the judges were to act as legislators 
upon the question of its enactment, they ought with the same 
views to withhold their assent, from grave doubts upon that subject. 
The duty is different in the two cases, and presumptions may control 
in one which do not exist in the other. But those cases where new 

But when ft queitjon iuvolving important public or private rights, exleod- 
ing througli all coming time, has been paiaed upon on a ningle occasion, md 
irhich decision can in no just sense be said to have been acquiesced in, it is not 
only the right, but the duty of the court, irhen properly called upon, to re-exam- 
ine the questions involved, and again subject them to judicial scrutiny. We are 
by no means unmindful of the salutary tendency of the rule stare decisU, but at 
the same time we cannot be unmindful of the lessons furnished by our own 
consciousness, as well as by judicial history, of the liability to error and the 
advantages of review." For Smith, J,, Pratt v. Brown, 3 Wis, C09. And sea 
Kneeland v. Milwaukee, 16 Wis. 458 ; Taylor v. French, 19 Vt 49 ; Bellows v. 
Parsons, 13 N. H. 256; Hanncl v. Smith, 15 Ohio, 134; Day b. Munson, 14 
Ohio, M. s. 488 ; Green Oas(l«, &c., Co. c. StaU,28 Ind. 382; Harrow p. Myers, 
29 lud. 469. 

[561 



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Ca. IT.] COKSTEUOTION 0? STATE CONBTITUTIONS. ' * 64 

legialation is Bought etand by themselvea, and aro not precedents for 
tlioae which inToka oulj constderationB concerning tlie constitu- 
tional validitj of existing enactments. The general acceptance of 
jadicial decisions as authoritative, by each and all, can alone pre- 
vent confiisiou, doubt, and uncertainty, and any other course is 
incompatible with a true government of law. 



Construction to be Uniform. 

A. cardinal rule in dealing with written instruments is that 
they are to receive an unvarying interpretation, and that their 
practical construction is to be uniform. A constitution is not to 
be made to mean one thing at one time, and another at some sub- 
sequent time when the circumstances may have so clmnged as 
perhaps to make a different rule in the case seem desirable. A 
principal share of tlie benefit expected from written constitutions 
would be lost if the rules they established were bo flexible as to 
bend to circumstances or be modified by public opinion. It is 
with special reference to the varying moods of public opinion, and 
with a view to putting the fundamentals of government beyond 
their control, that these instruments are framed ; and there can 
be no Bueh steady and imperceptible change in their rules as in- 
heres in the principles of the common law. Tbose beneficent 
maxims of the common law which guard person and property 
have grown and expanded until they mean vastly more to us tlian 
they did to our ancestors, and are more minute, particular, and 
pervading in their protections ; and we may confidently look 
forward in the future to still further modifications in the direc- 
tion of improvement. Public sentiment and action effect such 
changes, and the courts recognize them ; but a court or legislature 
which should allow a change in public sentiment to influence 
it in giving construction to a written constitution not warranted 
by the intention of its founders, would be justly chargeable with 
jeckless disregard of official oath and publi&duty; and if its course 
could become a precedent, these instruments would be of 
* little avail. The violence of public passion is quite as [* 66} 
likely to be in the direction of oppression as in any other ; 
and the necessity for bills of riglits in our fundamental laws lies 
mainly in the danger that the legislature will be influenced by 
temporary excitements and passions among the people to adopt 

[67] 



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• 65 CONSTITOTIONAL LIMITATIONS. [CH. IT. 

oppressire enactments. What a court is to do, therefore, is to 
declare the law as tmtten, leaTing it to the people tliemselves 
to make such changes as new circumstances ma; require.^ The 
meaning of tlie constitution is fised when it is adopted, and it is 
not different at any subsequent time when a court lias occasiou 
to pass upon it.' 

The Intent to govern. 

The object of construction, as applied to a written constitution, 
ia to give effect to the intent of the people in adopting it. In the 
case of all written laws, it is the intent of tlie lawgiver that is to 
be enforced. But this intent is to be found in the instrument 
itself. It is to be presumed that language has been employed 
with sufficient precision to coDvey it, and unless examination de- 
monstrates that the presumpUon does not hold good in the partic- 
ular case, nothing will remain except to enforce it. " Wiiere a 
law is plain and unambiguous, wlietber it be expressed in general 
or limited terms, the legislature should be intended to mean what 
they have plainly expressed, and consequently no room is left for 
construction." ' Possible or even probable meanings, when ono 

' People e. Morrell, 2X Wend. 684 ; NeweU v. People, 7 N. Y. 109 ; McKom 
0. DerrieB, 3 Barb. 196. 

■ Campb^, J., in People v. Blodgett, 13 Mich. 138. 

■ United States e. Fuber, 2 Crancli, 399 ; BosUy n. Mattingley, 14 B. Monr, 
89 ; Slur^is n. Crowninshield, 4 Wheat. 202 ; Schooner Paulina's Cargo v. United 
States, 7 Cranch. 60 ; Ogden v. Strong, 2 Paine, C. C. 584 i United States o. 
Ragadale, 1 Hemp. 497; Sontfawark Bank e. Commonwealth, 26 Penn. St. 446; 
Ingalls t). Cole, 47 He. 530 ; McCluake^ t>. Cromwell, 11 N. Y. 693 ; Furman v. 
New York. 5 Sandf. 16 ; JTowell t,. People, 7 JT. Y. 83 ; People r. N. Y. Central 
B.R. Co. 24 N. 7. 492 ; Bidwell e. Whittaker. I Mich. 479 ; Alexander r. 
Worthington. d Md. 471 ; C&ntwell v. Owens. 14 Md. 215 ; Ca*e t>. Wildridge, 
4 Ind. 61 ,- Spencer v. Sute, 5 Ind. 49 ,' Putnam v. Flint, 10 Fick. 504 ; Hein 
of Ludlow p. Johnson, 3 Ohio, 563 ; District Township c, Dubuque, 7 Iowa, 
262 ; Psttison o. Yuba, 13 Cal. 176 ; Ezekiel c. Dixon. 3 Kelly, 146 ; /n n 
Murphy, 3 Zab. 180 ; Attorney- Geaeral v. Detroit & Erin P. R. Co. Wal. Cb. 
394 ; Smith v. Thursby, 28 Md. 244 ; Stale v. Bladsdel, 4 Nev. 241 ; State p. 
DoTvn, 6 Nov. 399. The remarks of Mr. Justice Bvomoa in People r. Purdy, 
2 Hill, 35,^Bre very forcible in showing the impolicy and danger of looking 
beyond the instrnmeDt it«elf to ascertain id meaning, when the terms employed 
are positive and free from all ambiguity. ■> It ia said that the Constitution doe* 
not extend to public corporations, and therefore a majority vote was sufficient. 
I do not ao read the Coajtitntiou. The language of the clause ii : ' The assent 

[58] 



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CH. IT.] C0M8TBUCTI0K OP BTATE CONSTITUTION 8. " 55 

is * plainly declared io the instrument itself, the courts [* 56] 
are not at liberty to search for elsewhere. 

of two-thirda of the mcmbero elected to each bnmch of the legislature ahtdl be 
requiiite to every bill creating, continuiDg, altering, or renewing oni/ bod; politic 
or corporate.' Tbeie words are u broad ht their signification as any which 
coold have been selected for the occasion from our vocabular;, and there is not 
a ijllable in the whole JDRlrument tending in the slightest degree to limit or 
qualify the uniTersalitj of the language. If the clause can be so constrned that 
it shall not extend alike to all corporationi, whether public or private, it ma;' 
then, I think, be set down aa an established fact that the English language is too 
poor for the framing of fundamental laws which shall limit the powers of the 
legislative branch of the government. No one has, I believe, pretended that 
the Constitution, looking at that alone, can be restricted to anj particular clau 
or description of corporations. But it is said that we may look beyond the in- 
Mniment for (he purpose of ascertaining the mischief against vhith the clauge 
wu directed, and thus restrict its operation. But who shall tell ua what that 
mischief was ? Alifaough most men in public life are old enough to remember 
the time when the Constitution was framed and adopted, the; are not agreed 
concerning the particular evils against which this clause was directed. Some 
suppose the clause was intended to guard against' legislative corruption, and 
Others that it was aimed at monopolies. Some are of opinion that it only extends 
to private witboat touching public corporations, while others suppose that it onlj 
restricts the power of the legislature when creating a single corporation, and not 
when they are made by the hundred. In this way a solemn instrument — ibr so 
1 thhik the Constitution should be considered — is made to mean one thing by 
one man and something else by another, until, in the end, it is in danger ofbeing 
rendered a mere dead letter; and that, too, where the language is so plain and 
explicit that it is impossible to mean more than one thing, unless we first lose 
sight of Ifae instrument itself, and allow ourselves to roam at large in the bound- 
less fields of speculation. For one, I dare not venture upon such a course. 
WiiUen eonititutiona of government will soon come to be regarded iis of little 
value if their injunctions may be thus lightly overlooked ; and the experiment of 
setting a boundary to power will prove a fulure. We are not at liberty to pre- 
nme that the framers of the Constitution, or the people who adopted it, did not 
understand the force of language." See also same case, 4 Hill, S84, and St»ta 
e. Kinf^, 44 Mo. S85. Anotlier Court has said ^ "This power of conatmo- 
tion in courts is a mighty one, and, unrestrained by settled ruleg, would tend to 
tkrow a painful uncertainty over the effect that might be given to the most plainly 
warded statutes, and render courts, in reality, the legislative power of the State. 
Instances are not wanting to confirm this. Judge-made law has overrode the 
legislative department. It was the boast of Chief Justice PeniberUm, one of the 
judges of the despot Charlea II., and not the worst even of Aose times, that he 
kad entirely outdone the Parliament in making law. We think thft system of 
jnnspmdence best and safest which controls most by fixed rules, and leaves least 
to the discretion of the judge ; a doctrine conatitnting one of the pointa of aupe- 
riority in the common law over that sj-stem wbieb has been administered in 
France, where authorities had no force, and the law of eadi case was what the 

[59] 



DiB.1izedOyGoO<^lc 



* 57 coHsrmjTioNAi, limitationb. [ch. it. 

[• 57] • " Whether we are considering an agreement between 
parties, a statute, or a constitution, with a Tiow to its iu- 
terpretation, the tiling which we are to seek is (ke thovght which it 
expreiies. To ascertain this, tlie first resort in all cases is to the 
natural signification of the words employed, in the order of gram- 
matical arrangement in which the framers of the instrument have 
placed them. If thus regarded the words embody a definite mean- 
ing, which involves no absurdity and no contradiction between 
different parts of the same writing, then that meaning, apparent 
on the face of the instrument, is tlie one which alone we are at 
liberty to say was Intended to be conveyed. In such a case there 
is no room for construction. That which the words declare is the 
meaning of the instrument, and neither courts nor le^slaturea 
have a right to add to or take away from that meaning." ^ 

The whole Instrument to be examined. 
Nor is it lightly to be inferred that any portion of a written law 
is BO ambiguous oe to require extrinsic aid in its construction. 
Ever? such instrument is adopted as a whole, and a clause which, 
standing by itself, might seem of doubtful import, may yet be 
made plain by comparison with other clauses of portions of the 
same law. It is therefore a rule of construction, that the whole it 
to be examined with a view to arriving at the true intention of 
each part ; and this Sir Edward Coke regards the most natural 
and genuine method of expounding a statute.^ " If any section 
[of a law] be intricate, obscure, or doubtful, tl»e proper mode of 
discovering its true meaning is by comparing it with the other 

judge of the rue saw fit to mike it. We admit that the ezemBS of an unlimited 
discretion ma^, in a particular inatance, be attended with a salutary result; still 
biatorj informs as that it lias often been the case that the arbitrarj* discretion of 
sjudge wuthelawofa tyrant, and warns u« that it may be so again." Spencer 
0. State, fi Ind. 76. "Judge-made law," as here employed, is that made by 
judicial decisions which construe away the meaning of statutes, or £nd meaoingH 
in them the legislature never held. The phrase is aometimes used as meaning, 
limply, the law that becomes established by precedent. The uses and necessi^ 
of judicial legislation are considered at length) by Mr. Austin, in his Province 
of Jurispnideuce. 

■ NewelPc. People, 7 N. Y. 97. And see Den t>. Reid, 10 Pet. 524 ; Green- 
cafUe Township v. Black, 5 Ind. 569 ; Bartlett o. Morris, 9 Port. 26fi ; Leonard 
V. Wiseman, 31 Md. 20i, patBarlol, Ch. J.; UcAdoo 0. Benbow, 63N. C. 464; 
Broom's Maxims (5th Am. ed.), 651, marg. 

■ Co. Lit. 381, a. 

[60] 



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CH. IT.] CONSTBCCnOH OP STATE CONSTTICTIONS. * 57 

sections, and fiadiug out the sense of one clause hy the words or 
obvious intent of another." ^ And in making this comparison it 
is not to be supposed that any words have been employed without 
occasion, or without intent that they should have effect as 
part of * the law. The rule applicable here is, tliat effect [* 58] 
ia to be given, if potaible, to the whole itutrument, and to 
every section and clause. If diSerent portions seem to conflict, 
the courts must harmonize them, if practicable, and lean in favor 
of a construction which will render every word operative, rather 
than one which may make some idle and nugatory.' 

This rule is especially applicable to written constitutions, in 
which the people will bo presumed to have expressed themselves 
in careful and measured terms, corresponding with the inmiense 
importance of the powers delegated, leaving as little as possible to 
implication.^ It is scarcely conceivable that a case can arise 
where a court would be justifiable in declaring any portion of a 
written constitution nugatory because of ambiguity. One part 
may qualify another so as to restrict its operation, or apply it 
otherwise than the natural construction would require if it stood 
by itself ; but one part is not to be allowed to defeat another, if 
by any reasonable construction tlie two can tie made to stand to- 
gether.* 

In interpreting clauses we must presume that words have been 
employed in their natural and ordinary meaning. Says Marthallf 
Ch. J. : *' The framers of the Constitution, and the people who 

■ Slowell o. Lord Zoacb, Plowd. 365 ; Broom's Maxima, 521. 

■ AttoniqMienenl e. Detroit wd Erin Flank Road Co. 2 Mich. 13S ; People 
«. Bnnia, fi Mich. 114 ; District Township c. Dubnque, 7 tona, 26S ; Manlj" v. 
Stale, 7 Md. 133; PukioMii e. Sute, 14 Md. 184; BeUeville RaUroad Co. t>. 
Gregory, 15 BL 20; Ogden v. StroDg, 2 Paine, C. C. 684; Ryegate p. Wards- 
boTO, 30 Tt. 746 ; Brooks e. Mobile School Commissioners, 31 Ala. 227 ; Den 
e. Dobois, 1 Harrison, 286 ; Den v. Schenck, 3 Halat. 34. 

• Wolcott V. Wigton, 7 Ind. 49 ; People e. Purdy, 2 Hill, 36, per Brtituon, J. j 
Greencwtle Township v. Black, 5 Ind. 670 ; Green v. Welter, 82 Miss. 650. 

' It ia a general rnle, in the constrnction of writings, that, a general intent 
^ipearing, it ihM control the particular intent ; but this rule mast sometimes 
give my, and effect must be given to a particular intent plainly expressed in one 
part of a constitution, though apparently opposed to a general intAit deduced 
from other parts. Warren v. Sherman, 5 Texas, 441. In Quick v. Whitewater 
Township, 7 Ind. 670, it was said that if two provisions of a written constitutioa 
are irreconciiably repagnant, thai which ii last in order of time and in local post- 
tioD is to be preferred. 

[61] 



idByGoOl^lc 



• 68 CONBTITUnOHAL LDHTAHONS. [CH. IV. 

adopted it, must be understood to have employed vords in their 
natural sense, and to have understood what the; meant." ' Tliis 
is but saying that no forced or unnatural conetruction is to be put 

upou tlieir language ; and it seems so obvious a truism 
[*5d] that one * expects to see it universally accepted without 

question ; but the attempt is so often made by interested 
subtlety and ingenious refinement to induce tlie courts to force 
from these instniments a meaning vhich their framere never held, 
that it frequently becomes necessary to re-declare tliis fundamen- 
tal maxim.* Narrow and technical reasoning is misplaced when 
it is brought to bear upon en iuatrument framed by the people 
themselves, for themselves, and designed as a chart upon which 
every man, learned and unlearned, may be able to trace the lead- 
ing principles of government. 

But it must not be forgotten, iu construing our constitutions, 
that in many particulars they are but the legitimate successors of 

' Gibbons o. Ogdcn, 9 Wheat. 188. 

' Stale p. Mace, 5 Md. 337 ; Manly v. State, 7 Md. 135; Green p. Weller, 
33 Mifi«. 650 i Greencastle Towmhip v. Black, 6 Ind. 670 ; People v. N. T. Cen- 
tral R&ilro&d Co. 34 Barb. 137. and 24 N. 7. 4S8; Story on Const. § 453. 
"The true aenaa in irLicfa irorda are used in a atatute ia lo be ascertained gen- 
erally by taking them in tlieir ordinary and popular signification, or if tbey be 
terms of art, in their, technical signification. But it is also a cardinal rule of 
exposition, that the intention is to be deduced from the nhole and every part of 
the statute, taken and compared together, from the worda of the context, and 
Bucb a construi'tion adopted as will best effectuate the inteution of the lawgiver. 
One part is refiirred to in order to help the construction ,of another, and the 
intent of the legiblature is not to be collected from any particular expression, 
but from a general view of the whole act. Dwarris, 658, 698, 703, 70S. And 
when it appeara that the franiera have used a word in a particular sense gener- 
ally in the act, it will be presumed tbat it was intended to be used in the same 
sense throughout the act, nnlesa an inten^oD to give it a different aignificatioa 
plainly appL-an in the particular part of the act alleged to be an exception to 
the general meaning indicated. Ibid. 704, el teq. When words are used t« which 
the legislature has given a plain aod definite import in the act, it would be dan- 
gerous to put upon them a construction which would amguat to holding that the 
leipslature did not mean what it has expressed. It follows from titese principles 
that the atatute itaelf furnishes the best means of its own exposition ; and if the 
aenae in which woids were intended to be used can be clearly ascertained from 
all its parts and provisions, the intention thus indicated shall prevail, without 
resorting to other means of aiding in tlie oonstruction. And these familiar rules 
of construction apply with at least as much force to the construction of written 
constitutions as to statutes ; tike former being presumed to be framed with much 
greater care and consideration than the latter." Green d. Weller, 32 Miss. 678. 
[62] 



DiB.1izedOyGoO<^lc 



CH. IT.] CON8TED0TION OP STATE COHSTHOTIONS. * 59 

tlie great chartera of Englisli liberty, whose proviBions declaratory 
of tlie rights of the subject have acquired a well-understood mean- 
ing, which the people must be supposed to have had in view in 
adopting (hem. We cannot understand these provisions unless we 
understand their history ; and when we find them ex- 
pressed in * technical words, and words of art, we must [*60] 
' suppose these words to be employed in their technical 
sense. When the constitution speaks of an ex post facto law, it 
means a law technically known by that designation ; the meaning 
of tlie phrase having become defined in the history of constitu- 
tional law, and being so familtur to the people that it is not neces- 
sary to employ language of a more popular character to designate 
it. The technical sense in these cases is the sense popularly un- 
derstood, because tliat is the sense fixed upon the words in legal 
and constitutional history where they have been employed for the 
protection of popular rights.^ 

The Common Law to be kept in View. 

In the same connection it may be remarked that the constita- 

tions are to be construed in tlie light of the common law, and of the 

fact that its rules are still left in force. By this we do not mean 

' It ia quite poisible, however, in applj'iDg conatitutional mftsimB, to overlook 
entirely tbe reaBon upon whicb they rest, &nd ''considering merely the letter, go 
but akin deep into the meaning." On tbe great debate on the motion lor nith- 
drawing tbe confideoce of Farilament from the ministers, After the lurrLnder of 
Comwalb's, — a debate which called oat the best abilities of Fox and Fitt as well 
«* of the miniatry, and necessarily led to the diicuaaion of the primary principle 
in free goTerament, that taxation and representation Ehall go together, — Sir 
James Mariott rose, and wit^ great gravity proceeded to say, that if taxation 
■nd rcpreaenlation were to go hand in hand, then Britain had an undoubted 
right to tax America, because she was represented in the British Farliament. 
^e was represented by the members for the county of Kent, of which the thir- 
teen prorinces were a part and parcel; for in their charters they were to hold of 
Ibe manor of Greenwich in Kent, of which manor they were by charier to be 
parcel ! The opinion, it is said, " raised a very loud laugh," but Sir James con- 
tintied to support it, and concluded by declaring that he would give tbe motion 
« hearty negate. Thus would he have setded a great principle of constitn- 
tional right, for which a seven years' bloody war had been waged, by putting it 
in the form of a meaningless legal fiction. Hansard's Debates, Vol. XXII., 
p. 1184. Lord Hahon, following Lord Campbell, refers the origin of this won- 
derful argument to Ur. Hardinge, a Welsh judge, and nephew of Lord Camden. 
7 Mahon's Hist. 139. He was said to have been a good lawyer, but most have 
read the history of his- country to little purpose. 

[68] 



DiB.1izedOyGoO<^lc 



•60 CONBTITOTIONAL UM1TATI0N8. [CH. IT. 

that tlie common lav is to control tbe constitution, or that the 
latter is to be varped and perverted in its meaning in order that 
no inroads, or as few as possible, uaj be made in tbe system of 
oommon-law rules, but only that for its definitions we are to draw 

from that great fountain, and that, in judging what it means, 
[* 61] we * are to keep in mind tliat it is not the beginning of 

law for tlie State, but tliat it assumes the existence of a 
vell-underatood system, which is still to remain in force and be 
administered, but under such limitations and restrictions as that 
instrument imposes. It is a maxim with the courts that statutes 
in derogation of the common law shall be construed strictly ; ' a 
maxim which we fear is sometimes perverted to the overthrow of 
tbe legislative intent ; but the same maxim could seldom be prop- 
erly applied to constitutions. When these instruments assume to 
make any change in the common law,*tlie change designed is gen- 
erally a radical one ; but as they do not go minutely into particu- 
lars, like tiie statutes, it will sometimes be easy to defeat a provis- 
ion, if courts are at liberty to say that they will presume against 
any intention to alter the common law further than is expressly 
declared. A reasonable construction is what such an instrument 
demands and should receive ; and the real question is, what the 
people meant, and not how meaningless their words can be mado 
by the application of arbitrary rules.^ 

■ Broom'* Maxims, 93 ; Sedg. on Stat. & Const. Law, 913. 

* Under a clause of the CoDStitution of Michigan which proTided that "the 
real and personal estate of every female acquired before marriage, and all prop- 
erty to which she may afterwards become entitled, by gilt, graot. inheritance, or 
devise, shall be and remain the estate and property of such female, and shall not 
be liable for the debts, obligations, or engagements of her husband, and may be 
devised or bequeathed by her aa if she were unmarried," it was held that a mar- 
ried woman could not sell her personal property without the consent of her 
husband, inasmuch as tbe power to do so was not expressly conferred, and the 
clause, being in derogaticm of the common law, was not to be extended by con- 
struction. Brown v. Fifield, i Mich. 323. The danger of applying arbitrary 
rules in the conatruction of constitutional principles might well, as it seems to us, 
be illustrated by this case. For while on the one band it might be contended 
that, as a provision in derogation of the common law, the one quoted should 
receive a strict construction, on the other hand it might be insisted with perhaps 
equal reason that, aa a remedial provision, in furtherance of natural right and 
justice, it should be liberally construed, to effect the beneficial purpose had in 
view. Thus arbitrary rules, of directly opposite tendency and force, would be 
contending for the mastery in the same case. The subsequent decisions under 
[64] 



,0001^19 



OH. IF.] CONSTBircnON OF STATE CONSTmiTIONS. * 62 

* As a general thing, it is to be supposed that the same [*-62] 
vord is used in the same sense wherever it occurs in a 
constitution. Here again, however, groat caution must be observed 
in applying an arbitrary rule ; for, as Mr. Story has well observed, 
" It does not follow, either logically or graiumatically, that because a 
word is found in one connection in the Constitution with a de&nite 
sense, therefore the same sense is to be adopted in every other 
connection in which it occurs. This would be to suppose that the 
framera weighed only the force of single words, as philologists or 
critics, and not whole clauses and objects, as statesmen and prac- 
tical reasonera. And yet nothing has been more common than to 
subject the Constitution to this narrow and mischievous criticism.^ 
Meu of ingenious aud subtle minds, who seek for symmetry and 
harmony in language, having found in the Constitution a word 
used in some sense, which falls in with their favorite theory of 
interpreting it, have made that tlie standard by which t« measure 
its use in every other part of the instrument. They have thus 
stretched it, as it were, on the bed of Procrustes, lopping oST its 
meaning when it seemed too large for their purposes, and extend- 
ing it when it seemed too short. Tliey have thus distorted it to 
tlie most unnatural shapes, and crippled where they have sought 
only to adjust its proportions according to their own opinions." ' 
And be gives many instances where, in the national Constitution, 
die same word is very plainly used with different meanings. So 
that, while the rule may be sound as one of presumption merely, 
its force is but slight, and it must readily give way to a different 
intent appearing in the instrument. 

tbe same provirion do not appe&r to bava followed this lead. See Wbit« v. Zane, 
10 Midi. 333 ; McEee v. Wilcox, 11 Micb. 368 ; Farr r. Sherman, 11 Mich. 33 ; 
Wataon r. Thurber, 11 Mich. 457 ; Burdeno P. AmperBC, 14 Micb. 91 ; Tong p. 
Harrin, 15 Hicb. 60; Tillman o. SbacUeton, 16 Micb. 447. Tbe common law 
ia eeruinly to be kept in view in tbe interpretation of sucb a claiue, elace otbei^ 
viae ne do not aacertain the evil designed to be remedied, ftnd perhaps are not 
able to Mly andentaad and expluQ the terma emplo;red ; but it is to be looked 
M with ft view to the real iiit«nt, rather than for the purpose of arbitrarily 
mtnuning it. 

' See remarks of Johnton, J., in Ogdeu e. Saundera, 12 Wheat. S90. 

■ Storj on Conat. § 454. And see Cherokee Nation e. Georgia, 5 PeL 19, 
6 [66] 



DiB.1izedOyGoO<^lc 



coNBrmrrioNAL likitatiohs. [ob. 



Operation to be Praapedive. 

We shall venture also to express the opinion that a constitution 
thould operate proipectivelp only, unless the words employed show 
a. clear intention that it should have a retrospective effect. This 
is the rule in regard to statutes, and it is " one of such obvious 
convenience and justice, that it must always be adhered to in the 
constructiou of statutes, unless there is something on the face of 
the enactment puttingit beyond doubt tltat the legislature meant 
it to operate retrospectively." ^ Retrospective legislation, 
[* 63] except ' wbeu designed to cure formal defects, or otlier- 
wise operate remedially, is commonly objectionable in 
principle, and apt t«) result in injustice ; and it is a sound rule of 
construction which refuses lightly to imply an intent to enact it. 
And we are aware of no reasons applicable to ordinary legislation 
which do not, upon this point, apply equally well to constitiitions.^ 

' Moon 0. Darden, 2 Excfa. SS. See Dub e. Vm Kleek, 7 Johns. 477 ; 
Sayre e. Wisner, 8 Wend. 661; State ». Atwood. II Wis. 422; Hutings r. 
Lane, 8 Sbep. 134 ; Brown v. Wilcos, 14 S. & M. 127 ; Price v. Mott, 62 Penn. 
St. 315; Ex parte Grtitt-m, 13 Rich. 277; Broom's Maxima, 28. 

' In Allbj'er c. State, 10 Obio, n. e. 688, a question arose under tbe prorision 
of the constitution that "all laws of a general nature shall have a uniform opera- 
tion tbrougbout the State." Another clause provided tbat all laws then m force, 
not iDConsiatent with the conalitulion, should continue in force until amended or 
repealed. Allbjrer was convicted and sentenced to imprisonment under a crimes 
act previously in force, applicable to Hamilton County only, and the question 
was, whether that act was not inconsistent with the provision aboTB quoted, and 
tberefore repealed by it. The count held that the provision quoted evidently had 
regard to future and not to past legislation, and therefore was not repealed. A 
similar decision was made in Stal« t. Barbee, 3 Ind. 258. See also State v. 
Thompson, 2 Kansas, 432; Slack v. Maysville, &c., R.K. Co. 13 B. Monr. 1; 
State t>. MacoD County Court, 41 Mo. 4fi3. In Matter of Oliver Lee & Co.'a 
Bank, 21 N. Y. 12, Dmio, J., says : " The rule laid down in Dash v. Van Eleek, 
7 Johns. 477, and other cases of that class, by which the courts are admonished 
to avoid, if possible, such an interpretation as would give a. statute a retrospect- 
ive operation, has but a limited application, if any, to Ihe construction of a con- 
stitution. When, therefore, we read in the provision under consideration, that 
the stockholders of every banking corporation shall be subject to a certain lia- 
bility, we are to attribute to the language its natural meaning, wiihout inquiring 
whether private interests may not be prejudiced by sach a sweeping mandate." 
The remark was toiler, as it was found that enough appeared in the constitntion 
to show clearly that it was intended to apply to existing, as well as to aubae- 
qnently created banking institutions. 

[66] 



DiB.1izedOyGoO<^lc 



CB. IT.] CON8tRD(7nOH OP BTATB OONSTITUTIONS. 



Implicationi. 

The impHcatioDB from the provisions of a coDstitution are some- 
times exceedingly important, and have large influence upon its 
conBtruction. In regard to the Constitution of the United States 
the rule has been laid down, that Where a general power is con- 
Carred or duty enjoined, every particular power necessary for the 
exercise of the one, or the performance of the other, is also con- 
ferred.' The same rule has been applied to the State constitution, 
with an important modification, by the Supreme Court of Illinois. 
"That other powers than those expressly granted may be, and 
often are, conferred by implication, \& too well settled to 
be * doubted. [Jnder every constitution implication must [* 64] 
be resorted to, in order to' carry out the general grants of 
power. A constitution cannot from its very nature enter into a 
minute specification of all the minor powers naturally and obvi- 
ously included in and flowing from the great and important ones 
which are expressly granted. It is therefore established as a gen- 
entl rule, that when a constitution ^ves a general power, or enjoins 
a duty, it also gives, by implication, every particular power neces- 
sary for the exercise of the one or tlie enjoyment of the otlier. 
The implication under this rule, however, must be a necessary, not 
a conjectural or ai^mentative one. And it is furtlier modified by 
anotlier rule, that where the meauH for the exercise of a granted 
power are given, no other or different means can be implied, as 
being more effective or convenient.".^ The rule applies to the ex- 
ercise of power by all departments and all officers, and will be 
touched upon incidentally hereafter. 

Akin to this is the rule that " where a power is granted in gen- 
eral terms, the power is to be construed as co-exteusive with the 
terms, unless some clear restriction upon it is deducible [ex- 
pressly or by implication] from the context."" This rule has 
been so frequently applied in restraining the legislature from en- 
croaching upon the grant of power to the judiciary, that we shall 

■ Btoij on Const. § 4S0. See also United State* v. Fisber, 2 Cranch, 358 ; 
UoCnllocli V. MurUnd, 4 Wlieat 428. 

' Field D. People, 3 Scun. 83. See Fletcher v. Oliver, 3S Ark. 298. 
* 8toi7 OD CoDBt. S§ 424-426. 

[67] 



DiB.1izedOyGoO<^lc 



" 64 coMSTinmoNAL umrATioiirs. [ch. it. 

content ourselveB in thie place with a reference to the cases col- 
lected upon this subject and given in another chapter. 

Auotlier rule of construction is, that when the constitution de- 
fines the circumstances under which a right may be exercised or 
a penalty imposed, the specification is an implied prohibitiou 
against legislative iutorferonce, to add to the condition, or to ex- 
tend the penalty to other ca^es. Ou this ground it has been held 
by the Supreme Court of Maryland, that where the constitution 
defined the qualifications of an officer, it was not in the power of 
the legislature to change or superadd to them, unless the power to 
do so was expressly or by necessary implication conferred by the 
constitution itself.' 

[• 65] • The Light which the Purpote to be accomplithed man 
afford in Construction. 

The considerations thus far suggested are snch as have no regard 
to extrinsic circumstances, but are those by the aid of which we 
seek to arrive at the meaning of the constitution from an examina^ 
tion of the words employed. It is possible, however, that after we 
shall have made use of all the lights which the instrument itself 
affords, there may still be doubte to clear up and ambiguities to 
explain. Then, and only tiien, are we warranted in seeking else- 
where for aid. We are not to import difficulties into a constitution, 
by a consideration of extrinsic facts, when none appear upon its 
foce. If, however, a difficulty really exists, which an examination 
of every part of the instrument does not enable us to remove, 
there are certain extrinsic aids which may be resorted to, and 
which are more or less satisfactory in the light they affisrd. 
Among these aids is, a contemplation of the object to be accomplithed 
or the mifchief detigned to be remedied or gvarded againat by the 
clause in which the ambiguity is met with.^ "When we once 
know the reason which alone determined the will of the law-mak- 

' Thomaa o. Owens, 4 Md. 189. To the aome effect see Muter of Doney, 
7 Fort. 29S. So the leguUture cuiDOt add to the conatitution&l qiulificBtioni of 
voter*. RiaoD ti. Fur, 24 Ark. 161 ; St. Joa«pli, &&, R.R. Co. v. Bachknon 
County Court, 39 Mo. 485 ; State v. WilliaiiiB, 6 Wia. 308 ; Monroe v. Collina, 
17 Ohio, M. B. 666; SbLt« P. S;mODdB, 57 Me. 148; State e. Staten, 6 Cold. 
S43 ; Datie «. McKeebj, 6 Ner. 869 ; HcCafferty «. Gn^er, 57 Fenn. St. 109. 

■ Alezuder v. Worthiiigtrai, 6 Md. 471 ; District Tovoaliip t>. Dubuqoc^ 7 
low*, 262. 

[68] 



DiBfedOyGoO<^lc 



ca. IT.] coNsraoenOM op statb cONsnTonoHs. • 65 

era, m ongbt to interpret and apply the words used ia a manner 
mitsble and consonant to that reason, and as will be beat caleu* 
lated to eflectuate the iutent. Qreat caution should always be 
obeerred in the application of this rule to particular ^ven cases ; 
that is, we oi^bt always to be certain that we do know, and have 
acttuUy ascertiuned, the true and only reason which induced the 
act. It is never allowable to indulge in vi^ue and uncertain con- 
jecture, or in supposed reasons and views of the framers of an act, 
where there are none known with any degree of certainty."' The 
prior state of the law will sometimes furnisli the clue to the real 
meuiing of the ambiguous provision,^ and it is especially impor- 
tant to look into it if the constitution is the succesaor to another, 
and in the particular in question essential changes hare apparently 
been made.' 

• Proete^ngB of (Ae ConttiiAiiMmaX ConimAwn. [• 66] 

When the inquiry is directed to ascertaining the mischief de- 
signed to be remedied, or the purpose sought to be accomplished by 
a particular provision, it may be proper to examine the proceedings 
of the convention which framed the instrument.* Where the 
proceedings clearly point out the purpose of the provision, the aid 
will bo valuable and satisfactory ; but where the question is one of 
^ratract meaning, it will be difficult to derive from tliis source 
mncb reliable assistance in interpretation. Every member of such 
a convention acts upon such motives and reasons as influence him 
personally, and the motions and debates do not necessarily indicate 
tlie purpose of a majority of a convention in adopting a particular 
clause. It is quite possible for a clause to appear bo clear and 
UDamb^ous to the members of a convention as to require neither 
discussion nor illustration ; and the few remarks made concerning 
it in the convention might have a plain tendency to lead directly 

' Smith on SUt. and Conit. Constrnction, 6S4. See &lac remarks of Broruon, 
J., in Furdf e. People, 2 Hill. 36-37. 

t Baltimore v. State, 15 Md. 876 ; Hani7 e. Tilion, 21 Vt. 486 ; HsmUton ■>. 
St. Loait County Court, 15 Mo. 30^ Story on Const. S 438. 

' People V. Blodgett, 13 Mich. 147. 

• Per WaUoorih, ChanoeUor, Coutaut tf. People, 11 Wend. 618, and Clark t. 
People, 36 Wend. 602 ; Per Brotuon, J., Purdjr o. People, 2 HiU, 87 ; People 
«. N. T. CeDltal Railroad Co. S4 N. Y. 4S6. S«e Stat« v. Kennon, 7 Ohio, 
«. 8. MS. 

[«9] 



jdo'vGoOf^lc 



* 66 CO M BT I TPTI O HAL LIHITATIONB. [CH. IT. 

avaj from the meaning in the minda of the majority. It is equally 
possible for a part of the members to accept a clause in one sense 
and a part in another. And even if wc were certtun we had 
attained to the meaning of the convention, it is by no means to be 
allowed a controlling force, especially if that meaning appears not 
to be the one which the vorda would most naturally and obviously 
convey.^ For as the constitntion does not derive its force from the 
convention which framed, but from the people who ratified it, the 
intent to be arrived at is that of the people, and it is not to be 
supposed that they have looked for any dark or abstruse meaning 
in the words employed, but rather that they have accepted them in 
the sense most obvious to the common understanding, and ratified 
the instrument in the belief that that was the sense designed to be 
conveyed.' Tliese proceedings therefore are less conclusive of tlie 
proper construction of the instrument than are legislative proceed- 
ings of the proper consthiction of a statute ; since in the 
[• 67] latter case it is the intent of the * legislature we seek, 
while in the former we are endeavoring to arrive at the 
intent of the people through the discussions and deliberations of 
their repreaeutatives. The history of the calling of the convention, 
the causes which led to it, and the discussions and issues before 
the people at the time of the election of the delegates, will some- 
times be quit« as instructive and satisfactory as any thing to be 
gathered from the proceedings of the convention. 

CofOemporantout and Practical Conttmetion, 

An important question which now su^esta itself is this : How 
far the contemporaneous construction, or the subsequent practical 
construction of any particular provision of the constitution, is to 
have weight with the courts when the time arrives at whicl) a 
judicial decision becomes necessary. Contemporaneous construc- 
tion may consist simply in the understanding with which the 
people received it at the time, or in the acts done iu putting it in 
operation, and which necessarily assume that it is to be construed 
in a particular way. In the first case it can have very little force, 
because the evidences of the public understanding, when nothing 

> Taylor v. Taylor. 10 Minn. 1S6. And aee Eakin e. lUcob, 12 S. A R. SSS ; 
Aldridge r. Williama, 3 How. 1 ; State e. Doron, 5 Ner. 399. 
* Stftla e. Hace, 6 Ud. 348 ; Manly v. StAte, 7 Md. 147. 
[70] 



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CH. IV.] C0N8TRDOTI0N OP STATE CONSTITDTIONS. • 67 

hu been doue under the provisioa ia questioa, must always 
necessarily be vague and indecisive. But where there has been a 
practical construction, which hae been acquiesced in for a consider- 
able period, considerations in favor of adhering to this construction 
Bometimes present themselvea to tlie courts with a plausibility and 
force which it is not easy to resist. Indeed, where a particular 
oonsiruction has been generally accepted as correct, and especially 
when this has occurred contemporaueously with the adoption of 
tbe constitution, and by those who bad opportunity to understaod 
the intention of tbe instmiDent, it is not to be denied that a strong 
presumpUou exists that the construction rightly interprets the 
iulentioD. Especially where this has been given by officers in the 
discharge of their duty, and rights have accrued in reliance upon 
it, which would be divested by a decision that the construction was 
erroneous, the argument a£ iriconvementi is sometimes allowed to 
have very great weight 

The Supremo Court of the United States has had frequent 
occasion to consider this question. In Stewart v. Laird, ^ decided 
in 180S, Uiat court sustained the authority of its members to sit as 
circuit judges on the ground of a practical construction, 
* commencing with the oi^anization of the government. In [* 68] 
Martin v. Huuter's Lessee,^ Justice Ston/, after holding that 
the appellate power of the United States extends to cases pending 
in the State courts, and that the 25th section of the Judiciary Act, 
which authorized its exercise, was supported by the letter and 
spirit of the Constitution, proceeds to say: "Strong as this 
conclusion stands upon the general language of tlie Coustitution, it 
may still derive support from other sources. It is an historical 
&ct, that this exposition of the Constitution, extending its appellate 
power to State courts, was, previous to its adoption, uniformly and 
publicly avowed by its friends, and admitted by its enemies, as the 
basis of their respective reasonings both in and out of the State 
conventions. It is an historical fact, that at the time when tbe 
Judiciary Act was submitted to the deliberations of the First 
Congress, composed, as it was, not only of men of great learning 
and ability, but of men who had acted a principal part in fram- 
ing, supportiug, or opposing that Coustitution, tbe same exposition 
was explicitly declared and admitted by the friends and by the 

' 1 Cnwch, 299. • 1 Wheat. 361. 

[71] 



DiB.1izedOyGoO<^lc 



*68 coKsrmmoNAL LiHiTATioNa. [ch. ir. 

opponents of that sjBtem. It ii an historieal fact, tliat the 
Supreme Court of the United States have from time to time 
sustainetl this appellate jurisdiction in a great variety of cases, 
brought from the tribunals of many of the most important States 
Id the Uuion, and that no State tribunal has ever breathed a 
judicial doubt on the subject, or declined to obey the mandate of 
the Supreme Court until the present occasion. This weight of 
contemporaneous exposition by all parties, this acquiescence by 
enlightened State courts, and these judicial decisions by the 
Supreme ' Court through so long a period, do, as we think, place 
the doctrine upon a foundation of authority which cannot be 
shaken witliout delivering over the subject to perpetual and 
irremediable doubts." The same doctrine was subsequently sup- 
ported by Chief Justice MarahaU in a case involving the same 
point, and in which he says that " great weight has always been 
attached, and very rightly attached, to contemporaneous ex- 
position." ' 

In Bank of United States v. Halstead* the question was made, 
whether the laws of the United States authorizing the courts of 
the Union bo to alter the form of procera of execution used in the 

Supreme Courts of the States in September, 1789, as to 
[* 69] subject to * execution lands and other property not thus 

subject by the State laws in force at that time, were consti- 
tutioual ; and Mr. Justice Thompa<m, in language similar to that of 
Chief Justice MarthaU in the preceding case, says : " If any doubt 
existed whether tlio act of 1792 vests such power in the courts, or 
with respect to its constitutionality, the practical constructioD 
given to it ought to have great weight in determining both ■ 
questions." And Mr. Justice Joknton assigns a reason for this 
in a subsequent case : " Every candid mind will admit that this is 
a very difierent thing from contending that the frequent repetition 
of wrong will create a right. It proceeds upon ^e presumption 
that the contemporaries of the Constitution have claims to our 
deference on the question of right, because they had the best 
opportunities of informing themselvee of the understanding of the 
framers of the Constitution, and of the sense put upon it by the 
people when it was adopted by them." ' 

' Cobem t>. Virginia. 6 WbeM. 418. • 10 Wheat. 63. 

* Ogden V. Saunders, 12 Wbeal. 230. S«e Pike e. Megono, 44 Mo. 499; 
State V. Pukiuon, 5 Nev. IS. 
[72] 



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OB. IT.] COHSTBDOnON OP STATE CONSTITDTIONB. * 69 

Great deference -has been paid ia all cases to the action of the 
executive department, where its officers have been called upon, 
under the responsibilities of tlieir official oaths, to inaugurate a 
new system, and where it is to be presumed, they have carefully 
and conscientiously weighed all considerationa, and endeavored to 
keep within the letter aud the spirit of the Constitution. If the 
question involved is really one of doubt, the force of their judg- 
ment, especially m view of ^le injurious consequences that may 
result from disregarding it, is fairly entitled to turn the scale in 
the judicial mind.' 

Where, however, no ambiguity or doubt appears in the law, we 
think the same rule obtains here as in other cases, that the court 
sboold confine its attention to the law, and not allow extrinsio 
circumstances to introduce a difficulty where the language is plain. 
To allow force to a practical construction in such a case would be 
to suffer manifest perversions to defeat the evident pur- 
pose of the * law-makers. "Contemporary construction [*TOJ 
. . . can never abrogate the text ; it can never fritter 
away its obvious sense ; it can never narrow down its true limita- 
tions ; it can never enlarge its natural boundaries." ^ WliUe we 
conceive this to be the true and only safe rule, we shall be obliged 
to confess that some of the cases appear, on first reading, not to 
have observed these limitations. In the case first cited of Stewart 
V. Laird,^ the practical construction was regarded as conclusive. 
To the otgection that the judges of the Supreme Court had no 
right to sit as drcuit judges, the court say : " It is sufficient to 
observe that ]»aotice aud acquiescence under it for a period of sev- 
pral years, commencing with the oi^nization of the judicial sys- 
tem, affords an irresistible answer, and has indeed fixed the 

' Union InBursnce Co. v. Hoge, 21 Haw. 66; Edmrd'i Lessee e. Dftrbj, 12 
'Whett. 210i Hughes c. Hughes, i T. B. Monr. 42 ; Cbambera v. Fisk, 22 TezM, 
SM; BriUon o. Ferry, U Mich. 66 ; Flummer v. Flammer, 37 Miss. 165 ; Bm- 
gett p. Pue, 2 Gill, 11 ; State p. M»yhew, i6. 487 ; Coutant o. People, 11 Wend. 
Sll; Bdlimore V. State, Ifi Md. 376; Fanners uiA Mechanics Bank e. Smith, 
SS. AR. 63; Norris c. Clyiner, 3 Fenn. St. 277; Moers v. City of Beading, 
« Penn. St. 18S ; Washington «. Mnrnj, 4 CaL 388 ; Sai^tt «. Lapice, 8 How. 
SS; Biwell ■>. Penrose, A. 336 ; Troup s. Haight, Hopk. 267. 

■ 8tof7 on Const. § 407. And see Evans t>. Uyen, 20 Penn. St. 116; 
S*dler V. Langham, 34 Ala. Sll ; Bamei p. First Parish in Falmonth, 6 Mass. 
417. 

* 1 Cranch, 299. , 

[7aa 



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• 70 CONSTITUTIONAL LIMITATIONS. • [CH. IT. 

construction. It is a contemporary interpretation of the most 
forcible nature. This practical exposition is too strong and obsti- 
nate to be shaken or controlled. Of course tbe question is at rest, 
and ouglit not now to be disturbed." Tliis is certainly very strong 
language ; but that of a yery similar character was used by the 
Supreme Court of Massachusetts in one case where large and val- 
uable estates depended upon a particular construction oPa statute, 
and very great mischief would follow from changing it. The court 
said that, " altliough if it were now rea Integra, it might be very 
difficult to maintain such a construction, yet at this day the argu- 
ment ah inoonvenierai applies with great weight. We cannot shake 
a principle which in practice has so long and so extensively pre- 
vailed. If the practice originated in error, yet the error is now ho 
common that it must have the force of law. The legal ground on 
which this provision is now supported is, that long and continued 
usage furnishes a contemporaneous construction which must pre- 
vail over the mere technical import of the words." ^ Language 
nearly as strong was also used by the Supreme Court of Maryland, 
where the point involved was the possession of a certain power by 
the legislature, which it had constantly exercised for nearly seventy 
years.' 

It is believed, however, that in eaoli of these cases an examina- 
tion of the Constitution lefl in the minds of the judges 
[* 71] sufficient * doubt upon the question of its violation to war- 
rant their looking elsewhere for aids in interpretation, 
and that the cases are not in conflict with the general rule as 
above laid down. Acquiescence for no length of time can legalize 
a clear usurpation of power, where the people have plainly ex- 
pressed their will in the constitution, and appointed judicial tribu- 
nals to enforce it. A power is frequently yielded to merely 
because it is claimed, and it may be exercised for a long period, 
in violation of the constitutional prohibition, without tlie mischief 
which tlie Constitution was designed to guard against appearing, 

■ Rogera o. Goodwiu, 2 Mm9. 478. 

' State V. Mayliew,'2 Gill, 487. In Essex Co. o. Pa<^fic Mills, 14 Allen, 339, 
the Supreme Court of MuBichuBetts expressed tbe opioion tliat.the conatitu- 
tionality of tbe acts of Congcess making treasury notes a legal tender, ought not 
b) be treated bj a State court as opeo ta discuaeion after the notei had practi- 
cally coDsUtuted the currency of the country for fire years. At a sUU later day. 
Iiowever, the Supreme Court « the Uoitgd States held these. acts void. 
[74] 



DiB.1izedOyGoO<^lc 



CH. IV.] CONBTRDOnON OF STATE CONSTTrOTIONS. ' 71 

or without any one being sufficiently interested in the subject to 
raise the qiiestiou ; but tliese circumstances cannot be allowed to 
sanction a clear infraction of the Constitution.^ We think we allow 
to contemporary and practical construction its full legitimate force 
when we suffer it, where it is clear and uniform, to solve in its 
own favor the doubts which arise on reading the instrument to be 
construed.' 

' See furtlier, oa Uiu subject, the caae of Sadler t>. Langhara, S4 Ala. 311, 
SM. 

■ There are caies which clearlj go further than any we have quoted, and 
which Buatain legislative action which the}' hold to be luurpation, on the lole 
lircHiDd of long acquiescence. Thu« in Brigham v. Miller, 17 Ohio, 446, the 
queition was. Has the lefpslaturb power to grant divorces P The court say: 
" Oar legislature have aeaumed and exercised this power for a period of more 
than forty years, although a clear and palpable assumption of power, and an 
eDOtutchment upon the judicial department, in violstion of the Constitution. To 
deny this long^xercised power, and declare all the consequences resulting from 
it void, is pregnant with fearful consequences. If it affected only the rights of 
property, we should not hesitate \ but second marriages have been contracted 
and children bom, and it would bastardize all these, although bom under the 
lanction of an apparent wedlock, authorized by an act of the 'legislature before 
they were bom, and in consequence of which the relation was formed which gare 
them birth. On account of these children, and for them only, we hesitate. 
And ID view of this, we are constrained to content onrselvcs with simply declaf' 
ing that the exercise of the power of granting divorces, on the part of the legis- 
lature, is unwarranted and unconstitutional, an encroachment upon the duties of 
the judiciary, and a striking down of the dearest rights of individuals, withont 
anthority of law. We trust we have said enough to vindicate the Constitution, 
and feel confident that no department of state has any disposition to violate it, 
•nd that the evil will ceas%." So in Johnson v. Joliet and Chicago Kailroad Co. 
23 m. 207, the question was whether railroad corporations could be created by 
special law, without a special declaration by way of preamble that the object to 
be accomplished could not be attained by general law. Tbo court say: "It is 
now too late to make this objection, since by the action of the General Assembly 
nnder this clause, special acts have been so long the order of the day and the 
mling passion with every legislature which has convened under the Constitution, 
imtil their acts of this description fill a huge and misshapen volume, and impor- 
tant and valuable rights are clumed under them. The clause has been wholly 
disregarded, and it would now produce far-spread ruin to declare such acts un- 
constitutional and void. It is now safer and more just to all parties, to declare 
that it must be understood, that in the opinion of the General Assembly, at the 
time of passing the special act, its object could not be attained under the general 
law, and this without any recital by way of preamble, as in the act to incorpo- 
rate the Central Railroad Company. That preamble was placed there by the 
writer of this opinion, and a strict compliance with this clause of the Constitn- 
tion wonld have rendered it necessary in every subsequent act. But the legisla- 



[76] 

v.Gooi^lc 



CONeTTTCnONAL LIKITATIONB. 



[" T2] • Vnjutt Proviaiont. 

We hare elsewhere expressed the opinion that a statute cannot 
be declared void because opposed to a supposed geoertJ intent 

ture, in their windom, b&ve thoagfat differentlj, and have acted difisMntljr, until 
no* oar special legislation and iu miBchiefB are bejond recovery or T«medj'." 
Tbete caaei certainly preMioted very strong motives for declaring the law to ba 
what it was not ; but it would have been intereBting and luefal if either of these 
learned coarCa had eDomented die evila that mnit be placed in the oppoiito scale 
when the question is whether a conttitudonal rule shall be disregarded ; not the 
least of which is, ihe encouragement of a disposition on the part of legislative 
bodies to set aside constitutional restrictions, in the belief that, if the unconsti- 
tutional law can once be put in force, and large interests enlisted nnder it^ the 
courta will not ventnre to declare it void, but will submit to the usurpation, no 
matter bow gross and daring. Wa agree with the Supreme Court of Indiana, 
that in construing constitutions, courts have nothing to do with the argument a6 
inconeenienii, and should not" bend tiieCoDStitnlion to suit the law of the hour." 
Greencastle Township v. Black, 5 Ind. 665; and with Bronton, Ch. J., in what 
he says in Oakley n. Aspinwall, S N. Y. 568 : " It it highly probable that incon- 
veniences will result &om following the Constitution as it is written. But that 
ooDsideration can have no force with me. It is not for us, but for those who 
made the in«trument, to supply its defects. If the legislatnre or the courts may 
take that office upon themselves, or if, under color of construction, or upon any 
other specious ground, they may depart from that which is plainly declared, the 
people may well despair of ever being able to set any boundary to the powers of 
the government. Written constitutions will be more than useless. Believing as 
I do that the success of free institutions depends upon a rigid adherence to the 
fundamental law, I have never yielded to considerations of expediency in ex- 
pounding it. There is always some plausible reason for latitudinarian construe- 
tiona which are resorted to for Ihe purpose of acquiring power ; some evil to be 
avoided or some good to be attained by pushing the powers of the govemment 
beyond their legitimate boundary. It is by yielding to such influences that con- 
stitutions are gradually undermined and finally overthrown. My rule has ever 
been to follow the fiindamental law as it is written, regardless of consequences. 
If the law does not work well, the people can amend it ; and inconveniences can 
be borne long enough lo await that process. But if the legislature or the courta 
undertake to cure defects by forced and unnatural constructions, they inflict a 
wound upon the Constitution which nothing can heal. One step taken by the 
legislature or the judiciary, in enlarging the powers of the government, opens 
the door for another which will be sure to follow; and so the process goes on 
until all respect for the fundamental law is lost, and the powers of the govern- 
meat are just what those in authority please to call them." Whether there may 
not be circumstances under which the Staid can be held justiy estopped from 
alle^ng tlie invalidity of its own action in apportioning the political divisions of the 
State, and imposing burdens on citizens, where such action has been acquiesced 
[ '6 ] . V 



idByGoOl^lc 



CB. IT.] COHSTBDOnON OF STATE CONBTimTIONS. * 73 

or * aprit which it is thought perrades or lies concealed [" 78] 
in the CouatitutioD, but vbolly unexpressed, or because, 
in the opinion of the court, it violates fuudamental rights or 
principles, if it was passed in the exercise of a power which the 
Constitution confers. Still lees will the injustice of a constitu- 
tional provision authorize the courts to disregard it, or indirectly 
to annul it by construing it away. It is quite possible that the 
people may, under the influence of temporary prejudice, or mis- 
taken view of public policy, incorporate provisions in their charter 
of government, infringing upon the right of the individual man, or 
upon principles which ought to be regarded as sacred and fuuda- 
mental in republican government; and quite possible also that 
obnoxious classes may bo unjustly disfranchised. The remedy for 
such injustice must rest with the people tliemselves, through an 
amendment of their work wlien better couusels prevail. Snch pro- 
visions, when free from doubt, must receive the same construction 
as any other. We do not say, however, that if a clause should be 
found in a constitution which should appear at first blush to de- 
mand a construction leading to monstrous and absurd conse- 
quences, it might not be the duty of the court to question and 
croBB-qaestion such clause closely, with a view to discover in it, if 
possible, aome other meaning more consistent with the general 
purposes and aims of these instruments. When such a case arises, 
it will be time to consider it.' 

Duty in Caae of Dovht. 

But when all the legitimate lights for ascertaining the mean- 
ing of the Constitution have been made use of, it may still happen 
that tlie construction remains a matter of doubt. In such a case 
it seems clear that every one called upon to act where, in 
bis • opinion, the proposed action would be of doubtful [* 74] 
constitutionality, is bound upon the doubt alone to abstain 
from acting. Whoever derires power from the Constitution to 
perform any public function, is disloyal to that instrument, and 
grossly derelict in duty, if he does that which ho is not reasonably 

in for ■ eonaidenble period, and rights h&ve been acqwred Ihraagh bearing die 
bardesa under it, aee Samiey e. People, 19 N. T. 41 ; People n. Maj^ard, 15 
Hkb. 470; Kneelfnd o. Uilwaakee, IS Wis. 454. 

> McUnllen D. Hodge, II Tesu, M. See Clarke v. Irwin, h Ne*. 111. 

[77] 



DiB.1izedOyGoO<^lc 



• 74 CONSTBimONAL LIMITATIONS. [CH. IT. 

satisfied the Coustitution permits. Whether ttie poveP be legielsr 
tire, executive, or judicial, there is manifest disregard of constitu- 
tional and moral obligation by one who, having taken an oath to 
observe that instrument, takes part in an action vhich he cannot 
say he believes to be no violation of its provisions. A doubt of the 
constitutionality of any proposed legislative enactment should in 
any case be reason sufficient for refusing to adopt it ; and, if legis- 
lators do not act upon this principle, the reasons upon which are 
based the judicial decisions sustaining legislation in very many 
cases will cease to be of force. 



directory and MandatMy Frovisiant. 

The important question sometimes presents itself, whether we 
are authorized in any case, when the meaning of a clause of the 
Constitution ii arrived at, to give it such practical construction as 
will leave it optional with the department or officer to which it is 
addressed to obey it or not as he shall see fit. In respect to 
statutes it has long been settled that particular provisions may be 
regarded as director^/ merely ; by wfaich is meant that they are to 
be considered as giving directions which ought to be followed, but 
not as so limiting the power in respect to which tlie directions are 
given that it cannot be efiectually exercised without observing 
them. The force of many of the decisions on this subject will be 
readily assented to by all ; while others are sometimes thought to 
go to the extent of nullifying the intent of tlie legislature in 
essential particulars. It is not our purpose to examine the several 
cases cntically, or to attempt — what we deem impossible — to 
reconcile them all; but we shall content ourselves with quoting 
from a few, witli a view, if practicable, to ascertaining some line of 
principle upon which they can be classified. 

There are cases where, whether a statute was to be regarded as 
merely directory or not, was made- to depend upon the employing 
or failing to employ negative words which imported that tlie act 
should be done in a particular manner or time, ami not 
[*76] 'otherwUe.^ The use of such words is often very con- 
clusive of an intent to impose a limitation ; but their 

■ Slaj-ton n. Hulings, 7 Ind. 144 ; King v. Inhabitanta of St. Gregorj, 2 Ad. 
& El. »9 ; King e. lobabiUDts of Hipsnell, 8 B. & C. 466. 
[78] 



DiB.1izedOyGoO<^lc 



OB. IT.] CONBTBOOnON OF STATE CONBTITUTIOKS. * 75 

absence is Vj no means equally conclueiTe that the statute was not 
destined to be mandatory.^ Lord Mansfield -would have the 
question whether mandator; or not depend upon whether that 
wbicb was directed to Im done was or was not of the essence of the 
thing required.^ The Supreme Court of New York, in an opinion 
afterwards approved hj the Court of Appeals, laid down the rule as 
one settled by authority, that " statutes directing the mode of 
proceeding by public officers are directory, and are not regarded as 
essential to the validity of the proceedings themselves, unless it be 
so declared in the statute."' This rule strikes us as very general, 
and as likely to include within its scope, in many cases, things 
which are of the very essence of the proceeding. The questions in 
tiiat case were questions of irregularity under election laws, not in 
any way hindering the complete expression of the will of the 
electors ; and tlie court was doubtless right in holding that the 
election was not to be avoided for a failure in the officers appointed 
for its conduct to comply in all respects with the directions of the 
statute tliere in questiou. The same court in another case say : 
" Statutory requisitions are deemed directory only when they 
relate to some immaterial matter, where a compliance is a matter 
of convenience rather than of substance." * The Supreme Court 
of Michigan, in a case involving the validity of proceedings on the 
sale of lands for taxes, laid down the rule that " what the law 
requires to be done for the protection of the tax-payer is mandatory, 
and cannot be regarded as directory merely." ^ A similar rule was 
recognized in a recent case in Illiuois. Commissioners had been 
appointed to ascertain and assess the damage and recompense due 
to the owners of laud which might be taken, on the real estate of 
the persons benefited by a certain local improvement, in proportion 
as uearly as might be to the benefits resulting to each. By the 
statute, when tlie assessment was completed, the com- 
missioners were to sign and return the same to the * city [* 76] 
council vitbin forty days of their appointment. This i 

■ Diitrict Tovnihip e. Dnbaque, 7 Iowa, 284. 

■ Rex V. Lock(dftle, 1 Burr. 447. 

* People r. Cook, 14 Barb. 290 ; ume case, 8 N. T. 67, 

* People e. Schermerhom, 19 Barb. 558. If a ttatnte impoaea a dutj and 
gives tfae meana of performing tbat duty, it must be beld to be mandatory, 
Veazie e. China, 50 Me. 618. 

* Clark e. Crane, 6 Mich. 164. See also Shawnee Conntj t>. Carter, 2 Kan- 
na, 115. 

[79] 



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* • 76 COKSTlTOnOHAL LIHITATIONB. [CH. IV. 

provision wae not complied witli, but return was made afterwards, 
and tlie qnestion was raised as to its validity when thus made. In 
the opinion of the court, this question was to be decided hj 
ascertaining whether any advantage would be lost, or right 
destroyed, or benefit sacrificed, either to the public or to aay 
individual, by holding the provision directory. After remarkii^ 
that they bad held an assessment under the general revenue law, 
returned after the time appointed by law, as void, because the 
person assessed would lose the benefit of an appeal from the 
assessment,* they say of the statute before the court : " There are 
uo negative words used declaring that the functions of the 
commisaioDerB shall cease after the expiration of the forty days, or 
that they shall not make their return after tliat time ; nor have wo 
been able to discover the least right, benefit, or advantage which 
the property owner could derive from having the return made 
within that time, and not after. Ko time is limited and made 
dependent on that time, within which the owner of the property 
may apply to have the assessment reviewed or corrected. The 
next aectioD requires tlie clerk to give ten days' notice that the 
assessment has been returned, specifying the day when objections 
may be made to the assessment before the common couucil by 
parties interested, which hearing may be adjourned from day to 
day i and the common council is empowered in its discretion to 
confirm or annul the assessment altogether, or to refer it back to 
the same commissioners, or to others to be by them appointed. As 
the property owner has the same time and opportmiity to prepare 
himself to object to the assessment and have it corrected, whether 
the return be made before or after the expiration of the forty days, 
the case difiera from that of Chestnut v. Marsh,' at the very point 
on which that case turned. Nor is tliere any other portion of tlie 
chapter which we have discovered, bringing it within the principle 
of that case, which is the well-recognized rule in all the books." ° 
. The rule is nowhere more clearly stated than by Chief Justioe 
Skate, in Torrey v. Milbury,* which was also a tax case. 
[" 77] " In " considering the various statutes regulating the as- 
sessment of taxes, and the measures preliminary thereto, 
it is not always easy to distinguish which are conditions precedent 

> Mush V. Cbeatnut, 14 lU. 22S. > Ibid. 

• Wheeler t*. Chicago, 24 Bl. 106. ' 81 Pick. 67. 

[80] 



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CO. 17.] COHSTBUOnON OP STATE COHSTITCTIONB. * 77 

to the l^ality and validity of the tax, aud which are directory 
merely, and do not constitute conditions. One rule is very plain 
and well settled, that all those measures that are intended for the 
security of the citizen, for insuring equality of taxation, and to 
enable every one to know with reasonable certainty for what polls 
•od for what real estate he is taxed, aud for what all those who are 
liable with him are taxed, are conditions precedent ; and if they 
are not observed, he is not legally taxed ; and he may resist it in 
any of the modes authorized by law for contesting the validity of 
tiie tax. But many regulations are made by statutes designed for 
the information of assessors and officers, and intended to promote 
method, system, and uniformity in the modes of proceeding, a com- 
pliance or nou-oompliance with which does in no respect affect the 
rights of tax-paying citizens. These may be considered directory. 
Officers may be liable to legal animadversion, perhaps to punish- 
ment, for not observing them ; but yet their observance is not a 
condition precedent to the validity of the tax." 

We shall quota further only &om a single other case upon this 
point. The Supreme Court of Wisconsin, in considering the 
validity of a statute not published within the time required by law, 
** understand the doctrine concerning directory statutes to be this: 
that where there is no substantial reason why the thing to be done 
might not as well be done after the time prescribed as before, no 
presumption that by allowing it to be so done it may work an 
iujuiy or wrong, nothing in the act itself, or in other acts relating 
to tiie same subject-matter, indicating that the legislature did not 
intend that it should rather be done after the time prescribed than 
not to be done at all, there tiie courts assume that tlie intent was, 
that if not done within the time prescribed it might be done after- 
wards. But when any of these reasons intervene, then the limit is 
established." ' 

These cases perhaps sufficiently indicate the rules, so far as any 
of general application can be declared, which are to be made use of 
in determining whether the provisions of a statute are mandatory 
or directory. Those directions which are not of the essence of the 
thing to bo done, but which are given with a view merely 
* to the proper, orderly, and prompt conduct of the [* 78] 
buunesa, aud by a failure to obey which the rights of those 

> Bute ti. Lean, 9 Wii. S93. 

6 [81] 



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• 78 CONHTITOnONAL LIMITATIONS. [CH. IT. 

interested will aot be prejudiced, are not commonly to be regarded 
as mandatory ; and if tlie act is performed, but not ia the time or 
ill the precise mode indicated, it may still be sufficient, if that 
which is done accompUshes the substautial purpose of the statute.' 
But this rule presupposes that no negative words are employed in 
the statute which expressly or by necessary implicatioD forbid the 
doing of the act at any otlier time or in any other manner than as 
directed. Even as thus laid down and restricted, the doctriue is 
one to be applied with mucli circumspection ; for it is not to be 
denied tliat the courts have sometimes, in their anxiety to sostaio 
the proceedings of careless or iucompetent officers, gone very far 
in substituting a judicial view of what was essential for that 
declared by the legislature." 

But tlie courts tread upon very dangerous ground wlien they 
venture to apply the rules which distinguish directory and mandar 
tory statutes to the provisions of a constitution. Constitutions do 
not usually undertake to prescribe mere rules of proceeding, 
except when such rules are looked upon as essential to the thing 
to be done ; and they must then be regarded in the light of limita- 
tions upon the power to be exercised. It is the proviuce of aa 
instrument of this solemn and permanent character to establish 
those fundamental maxims, and fix those unvarying rules, by 

' The folloiring, in addition to those cited, ire aome of^e eaiea in thig coun- 
try in which Btatutea have been declared directory only : Pond v. Negui, 3 Mau. 
230 ; Williama v. School District, 21 Pick. 75 ; City of Loirell e. lladley, 8 Met. 
180 ; Holland v. Osgood. 8 Vt 280 ; Corliu o. CorUw, ib. 390 ; People v. Aiha. 
6 Wend. 486 ; Marchaut e. Langworthj, 6 Hill, 646 ; Ex parte Heath, 3 Hill. 
43 ; People v. Holley. 12 Wend. 4SI ■ Jackson v. Young, 5 Cow. 269 ; Sinker 
r. Kelley, 7 Hill, 9 ; People v. Feck, 11 Wend. 604 ; Matter of Hohawk and 
Hudson Railroad Co. 19 Wend. 143 ; People v. Bunkel, 9 Johns. 147 ; Gale d. 
Mead, 2 Uenio, 160 ; Doughty v. Hope, 3 Denio, 252 ; Elmendorf t>. Mayor. &c., 
of New York, 25 Wend. 696 ; Thames ManuFicturing Co. v. Lathrop. 7 Conn. 
660; Colti>. Eres. 12Conn. 243; People c. Doe, 1 Mieh. 451 ; Parks t>. Good- 
win, 1 Doug. (Mieh.) 66 ; Hiukey v. HLnsdale, 8 Mich. 267 ; People o. Harlweil, 
12 Mich. 5(J8; Btaie o. McGinley, 4 Ind. 7; Siayton v. Hulinga. 7 Ind. 144; 
New Orleans v. St. Bowes, 9 La. An. 573; Edwards e. James, 18 Texas, 52; 
Suteo. Click, 2 Ala. 26; Savage v. Walihe, 26 Ala. 620; Webster c. Fiendi, 
12 HI. 302 ; MeKim v. Weller, 11 Cal. 47 ; Sute p. Co. Commissionen of Bal- 
timore, 29 Md. 516. The list might easily be largely increased. 

' See upon this subject the remarks of Mr. Sedgwick in his work on Statu- 
tory and Constitutional Law, p. 375, and those of ^tiMord, J., in Briggs «. 
Geoi^ia, 16 Vt. 72. 

[82] ' 



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CH. IT.] COHSTBDCTnON OP STATE COBBTITUTIONB. * 78 

vhich all 'departments of tlie goveniment must at all [*79] 
timeB shape their conduct ; and if it descends to prescribing 
mere rules of order in unessential matters, it is lowering the proper 
dignit/ of such an instrument, and usurping the proper province of 
ordinary legislaUon. We are not therefore to expect to find in a 
constitution provisions which the people, in adopting it, have not 
r^arded as of high importance, and wortlij to be embraced in an 
instrument which, for a time at least, is to control alike the 
government and tlie governed, and to form a standard hj which is 
to be measured the power wliich can. be exercised as well by the 
det^ate as by the sovereign people themselves. If directions are 
given respecting the times or modes of proceeding in which a 
power should be exercised, there is at least a strong presumptiou 
that the people designed it should be exercised in that time and 
mode only ; and we impute to the people a want of due appreciation 
of the purpose and proper province of such an instrument, when 
we infer tliat such directions are given to any other end. Especially 
when, as has been already said, it is but fair to presume that the 
people in their constitution itave expressed tliemselves in careful 
and measured terms, corresponding with the immense importance 
of the powers delegated, and with a view to leave as little as 
possible to implication.' 

There are some cases, however, where the doctrine of directory 
statutes has been applied to constitutional provisions; but they are 
at variance with the weight of authority upon the precise points 
considered, and we do not think, tlierefore, we should b& warranted 
in saying that the judicial decisions as they now stand sanction 
the application. In delivering the opinion of the New York Court 
of Appeals iu one case, Mr. Justice WUlard had occasion to 
consider the constitutional provision, that on the final passage of a 
bill the question shall be taken by ayes and noes, which shall be 
duly entered upon the journals ; and he expressed Uie opinion that 
it was only directory to the legislature.' The remark was tAUer 
dUtum, as the court had already decided that the provision had 
been folly complied with; and those familiar with the reasons 



' Wrfeott It. Wigton, 7 Ind. 49 ; Per Bronion, J., in People n. Purdy, 2 Hill, 
; Greem'Htle TuwDship v. Black, 6 Ind. 666 ; Opinions of Judges, 6 Shep. 
i. See People e. L&wrence, 96 Barb. 177. 
■ People «. Enperriaon of ChenanKO, 8 fi. T. 326. 

* [88] 



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• 79 COMSTITDTIONAL UMITATIONS. [CH. IT. 

which have induced ttie iuBertion of this clause in oar 
[* SP] * conetitutions will not readily concede that its sole design 

was to establish a mere rule of order for legislative pro- 
ceedings, which might be followed or not at discretion. Mr. Chief 
Justice Tkurmany of Ohio, in a case not calling for a discussion of 
the subject, has considered a statute whose validity was assailed on 
the ground that it was not passed in the mode prescribed by the 
Constitution. " By the term mode" he says, " I do not mean to 
include the authority in which the law-making power resides, or the 
Dumber of votes a bill musto^ceive to become a law. That the 
power to make laws is vested in the Assembly alone, and tliat no 
act has any force tliat was not passed by the number of votes 
required by the Coustitution, are nearly, or quite, self-evident 
propositions. These essentials relate to the authority by which, 
rather than the mode in which, laws are to be made. Nov 
to secure the careful exercise of this power, and for other good 
reasons, the Constitution prescribes or recognizes certain things to 
be done in the enactment of laws, which things form a course 6t 
mode of legislative procedure. Thus we find, inter alia, the 
provision that every bill shall be fully and diatiuctly read on three 
different days, unless, in case of urgency, three-fourths of the house 
in which it shall be pending shall dispense witli this rule. This is 
an important provision without doubt, but, nevertheless, there is 
much reason for saying that it is merely directory in its character, 
and tliat its observance by the Assembly is secured by tbeir sense 
of duty and official oaths, and not by any supervisory power of the 
courts. Any other construction, we incline to think, would lead 
to very absurd and alarming consequences. If it is in the power 
of every court ( and if one has tlie power, every one has it ) to 
inquire whether a bill that passed the Assembly was " fully " and 
" distinctly " read three times in each house, and to hold it 
invalid if, upon any reading, a word was accidentally omitted, or the 
reading was indistinct, it would obviously be impossible to know 
what is tlie statute law of the State. Now the requisition that bills 
shall be fully and distinctly read is just as imperative as that 
requiring them to be read three times ; and as both relate to the 
mode of procedure merely, it would be difficult to find any 
sufficient reason why a violation of one of them would be less fatal 
to an act than a violation of the other." ^ 

> Miller p. SUte, 3 Obio, n. a. 183. « 

[84] 



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CH. IT.] CONSTRUCnOH OP STATE CON8TITOTI0N3. • 80 

A requirement that a law shall be read distinctly, whether 
'mandatory or directory, is, from the very nature of the ['SI] 
case, addressed to the judgment of the legislative hody, 
whose decision as to what reading is sufficieutly distinct to be a 
compliance cannot be subject to review. But in the absence of 
authority to tlio contrary, we sliould not have supposed that the 
requirement of throe succeasive readings on different days stood 
upon the same footing.' To this extent a definite and certain rule 
is capable of being, and has been, laid down, which can be literally 
obeyed; and the legislative body cannot suppose or adjudge it to 
have been done if the fact is otherwise. The requirement has an 
important purpose, in making legislators proceed in their action 
vith caution and deliberation ; and there cannot often be difficulty 
in ascertaining from the legislative records themselves if the 
constitution has been violated in this particular. There is, 
therefore, no inherent difficulty iu the question being reached and 
passed upon by tlie courts in the ordinary mode^ if it is decided 
that the constitution intends legislation shall be reached through 
the three readings, and not otherwise. 

The opinion above quoted was recognized as law by the Supreme 
Court of Ohio in a case soon after decided. In that case the court 
proceed to say : " The . . . provision . . . that no bill shall con- 
tain more than one subject, which shall be clearly expressed iu 
its title, is also made a permanent rule in the introduction and 
passa^ of bills through the houses. The subject of the bill is 
required to be clearly expressed in the title for the purpose of 
advising members of its subject, when voting in cases in which the 
reading has been dispensed with by a two-thirds vote. The 
provision that a bill shall contain but one subject was to prevent 
combinations by which various and distinct matters of legislation 
should gain a support which they could not if presented separately. 
As a rule of proceeding in tlie General Assembly, it is manifestly 
an important one. But if it was intended to effect any practical 
object for the beneEt of tlie people in the examination, construction, 
or operation of acts passed and published, we are unable to 
perceive it. The title of an act may indicate to the reader its 
subject, and under the rule each act would contain one subject. To 
suppose that for such a purpose the Constitutional CouveutioQ 

* Sm Feople d. CunpbeU, 8 Gilm. 466 ; UcCuUocli o. State, 11 Ind. 432. 
« , [85] 



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• 81 coNermmoNAL limitatiohs. [ch. it. 

adopted the rule under consideratiou, vould impate to them a most 
minute proviaioa for a very imperfect heading of the 
[* 82] chapters of laws and their aubdiviBion. This * proyision 
being intended to operate upon bills in their prepress 
through the General Assemblj, it must be held to be directory 
only. It relates to bills, and not to acts. It would be most 
mischierouB in practice to make the validity of every law depend 
upon the judgment of every judicial tribunal of the State, as to 
whether an act or a bill contained more ^an one subject, or 
whether this one subject was clearly expressed in the title of the 
act or bill. Such a question would be decided according to the 
mental precision and mental discipline of each justice of tlie peace 
and judge. No practical benefit could arise from such inquiries. 
We are therefore of opinion that in general the only sareguard 
against the 'violation of these rules of the houses is their regard 
for, and their oath to support, the constitution of the State. We 
say, in general, the only safeguard ; for whether a manifestly gross 
and fraudulent violation of these rules might authorize Uie court 
to pronounce a law unconstitutional, it is unnecessary to determine. 
It is to be presumed no such case will ever occur." ■ 

If the prevailing doctrine of the courts were in accord with this 
decision, it might become important to consider whether the object 
of the clause in question, as here disclosed, was not of such a 
character as to make the provision mandatory even in a statute. 
But we shall not enter upon that subject here, as elsewhere we 
shall have occasion to refer to decisions made by the highest 
judicial tribunals in nearly all of the States, recogniung similar 
provisions as mandatory, and to be enforced by the courts. And 
we concur fully in what was said by Mr. Justice Emmot, in 
speaking of this very provision, that " it will be found upon full 
consideration to be difficult to treat any constitutional provision as 
merely directory and not imperative." ^ And with what is said by 
Mr. Justice Lumpkin, as to the duty of the courts: " It has been 

> Pim V. Nicholson, 6 Obio, n. b. ITS. See also the case of Waihingtoa v. 
Murray, 4 Cal. 388, for similar views. Id HitI o. Borland, 40 Miss. 618, a pro- 
vision requiring of all oflifers an oath to support the constitution, mu held not 
to invalidste the acts of officials who had neglected to take such an oath. And 
in Mcpherson v. Leooard, 29 Md. 377, the provision that the stylo of all l&ws 
shall be, "Be it enacted by the General Assembly of Maryland," was held 
directory, 

' People p. Lawrence, 36 Barb. 186. 
[86] 



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CH. IT.] CONSTBUCTION OP STATE COH8TITDTION3. * 82 

Bu^^t^d tliat the prohibition in the Beventoentb section of tlie first 
articte of the constitution, ' Xor sliall any law or ordinauco pass 
containing an; matter different from what is expressed in the title 
tiiereof,' is directory only to the legislative and executive or law- 
makiug departments of tlie government. But ve do not so 
understand it. On the contrary, we consider it as much a 
* matter of judicial cognizance as any other provision in [* 83] 
that instrument. If the courts would refuse to execute a 
law suspending the vnt oUtabeaa corpus wh&a the public safotydid 
not require it, a law violatory of the freedom of the press, or trial 
by jury, neither would tbey enforce a statute which contained mat- 
ter different from what was expressed in the title thereof." ' 

We have thus indicated some of the rules which we think are 
to be observed in the construction of constitutions. It will be 
perceived that we have not thought it important to quote and to 
dwell upon those arbitrary rules to which so much attention is 
Bometimes given, and which savor rather of the closet than of 
practical life. Our observation would lead us to the conclusion 
tiiat they are more often resorted to as aids in ingenious attempts 
to make the constitution seem to say what it does not, tliau with 
a view to make that instrument express its real intent. All extern 
nal aids, and especially all arbitrary rules, applied to iustrumeuta 
of this popular clutracter, are of very uncertain value ; and we do 
not r^^ard it as out of place to repeat here what we have had 
occasion already to say in the course of this ch^ter, that they 
are to he made use of with hesitation, and only with much 
circumspection.* 

' Pntho r. OiT, 12 Geo. 36. See klao Opinioni ot Judges, 6 Shep. 45S; 
Indiwia Central Railroad Co. c. Potfai, 7 Ind. 68S ; People e. Stuue, 36 III. 121 ; 
State r. MiUer, 45 Mo. 49S ; Weaver v. Lapsley, 4S Ala. 224. 

' See People d. Cowles, 13 N. T. 360, per Johruon, J. ; Temple n. Mead, 
4 Yt. 540, per WiUiavu, J. " Id conatruing so importaot an iDStrument ai a 
coiutitatioQ, eapeciallj' thoie parts nhicb aSecC the vital principle of repablican 
govemnteiit, tlie elective frBnchiae, or the nunner of ezerciaing it, we are not, 
on Uie one hand, to indulge ingenious apecnlatioiu which naj lead ua wide from 
the true sense and apirit of the instrainent, nor, on the olher, to apply to it such 
narrow and conatrajned viewg aa may exclude the real object and intent of tboae 
who framed it. We are to suppose that the authors of sndi an instrument bad 
a thorough knowledge of the force and extent of the words they employ; that 
they had a beneficial end and purpose in view ; and that, more especially in any 
apparent lestriction upon tlie mode of exercising tlw right of suffiage, there was 

[87] 



DiB.1izedOyGoO<^lc 



* 88 COMBTRUnONAL LUITITIONB, [CH. IT. 

(ome exiBting or anticipsted evil which it «m their pmpoie to SToid. 'If an en- 
luged Kiue of any particulkr form of expressIoD should be DSceuary lo accom* 
pliah so great in object aa a coDTeuieut exercise of the fundamental privilege or 
right, — that of election, — such sense mnst be attributed. We are to suppoie 
that those who were delegated to the great business of distributing the powen 
which emanated from the sovereigiitj of ths people, and to the establiabment of 
the rules for the perpetual securit/ of the rights of person and proporlf, had the 
wisdom to adapt their language to future as well as existing emergencies, so that 
words competent to the then existiog stale of the communitj', and at the same 
time capable of being expanded to embrace more extensive reUtioos, should not 
be restrained to their more obvious and immediate sense, if, consistentlj witii the 
general object of the aathora and the trae prindples of the compact, thejr can be - 
extended to other retaUons and circumstances which an improved stale of sociely 
may produce. Qui hceret tn litera haret m eortice a a familiu' maxicn of the law. 
The letter killeth, but the spirit maketh alive, is the more forcible expression of 
Scripture." Parker, Cb. J., in Henshaw v. Foster, 9 Pick. 316. 

[88] 



DiBlBsdByGoOl^lc 



CB. T.] POWEBS EXERCISED BT LtX3I8LATITB DEPABTMENT, 



•CHAPTER V. ['SS] 

OP THB POWEBS WHICH THE LEaiSLATTTE DEFABTfilENT BIAT EXERCISE. 

In conBidering the powers which may be exercised by the legis- 
latire departmeat of one of the American States, it is natural that 
we ebould recar to those possessed by the Parliament of Great 
Britain, after which, in a measure, the American legislatures have 
been modelled, and from which we derive our legislative usages 
and customs, or parliamentary common law, as well as tbe prece- 
dents by which the exercise of legislative power in this country 
has been governed. It is natural, also, that we should incline to 
measure the power of the le^slative department in America by 
tbe power of the like department in Britain ; and to concede 
without reflection tliat whatever the legislature of tlie country 
from which we derive our laws could do, might also be done by 
the department created for the exercise of legislative authority 
in ibis country. But to guard against being misled by a compari- 
son between the two, we must bear in mind the important dis- 
tinction already pointed out, that with the Parliament rests prao- 
tically the sovereignty of the country, so that it may exercise all the 
powers of the government if it wills so to do; while on the other 
hand the legislatures of the American States are not the sovereign 
authority, and, though vested with the exercise of one branch of 
the sovereignty, they are nevertheless, in wielding it, hedged in 
on all sides by important limitations, some of which are imposed 
in express terms, and others by implications whicli are equally im- 
perative. 

" The power and jurisdiction of Parliament," says Sir Sdwqrd 
Colce^ " is so transcendent and absolute, that it cannot be con- 
fined, either for persons or causes, within any bounds. And of 
this high court it may truly be stud : ' Si antiquitatem spectes, 
est vetustissima; si dignitatem est honoratissima ; si jurisdic- 
tionem, est capacissima.' It hatli sovereign and uncontrolled 
authority in the making, confirming, enlarging, restraining, abro- 

> 1 Inn. 36. 

[89] 



DiB.1izedOyGoO<^lc 



* 85 - CONSTITUTIONAL UWTATIOMS. [CB. T. 

gating, repe&liog, reTiring, and expounding of laws, concerning 
matters of all possible denominations, ecclesiastical or 
[*86} temporal, "civil, military, maritime, or criminal; this 
being tlie place where that absolute despotic power, which 
must in all gorernments reside somewhere, is entrusted b; the 
constitution of these kingdoms. All mischiefs and grievances, 
operations and remedies, tliat transcend the ordinary course of the 
laws, are within the reach of this extraordinary tribunal. It can 
regulate or new-model the succession to the Crown, as was done in 
the reign of Henry VIII. and William III. It can alter the 
established religion of the land; as was done in a variety of 
instances, in the reign of £ing Henry YIII. and his three children. 
It can change and create afresh eren the constitution of the king- 
dom and of Parliaments themselves, as was done by the Act of 
Union, and the several statutes for triennial and septennial elec- 
tions. It can, in short, do every thing that is not naturally impos- 
sible ; and therefore some have not scrupled to call its power, by a 
figure rather too bold, the omnipotence of Parliament. True it is, 
that what the Parliament doth, no authority upon eartli can undo; 
BO that it is a matter most essential to the liberties of tliis king- 
dom that such members be delegated to this important trust as are 
most eminent for their probity, their fortitude, and their knowl- 
edge ; for it was a known apothegm of the great Lord Treasurer 
Burleigli, ' tliat England could never be ruined but by a Parlia- 
ment' ; and as Sir Matthew Mate observes : ' This being the higliest 
and greatest court, over which none otlier can have jurisdiction 
in tlie kingdom, if by any moans a misgoverument should fall 
upon it, the subjects of this kingdom are left without alt manner 
of remedy.' " ^ 

The strong language in which the complete jurisdiction of 
Parliament is here described is certainly inapplicable to any 
authority in the American States, unless it he to the people of 
the States when met in their primary capacity for the formation 
of their fundamental law ; and even then there rest upon them 
the restraints of tlie ConsUtution of the United States, which 
bind them as absolutely as they do the governments which they 
create. It becomes important, therefore, to ascertain in what 
respect the State legislatures resemble the Parliament in the 



[90] 

DiB.1izedOyGoO<^lc 



CH. T.] POWEBfl EXERCISED BT LEOISLATIVB DEPARTMENT. * 86 

powers they exercise, and how far we may extend tlie compansoD 
witbout losing sigtit of the fundamental ideas and principles of 
the American system. 

*Tbe first and most notable difference is that to which [* 87] 
we bare already alluded, and which springs from the dif- 
ferent theory on wliioh tlie British Constitution rests. When Par- 
liament is recc^ized as possessing the sovereign power of the 
country, it is evident that the resemblance between it and Ameri- 
can legislatures in regard to tbeir ultimate powers cannot he car- 
ried very far. The American legislatures only exercise a certain 
portion of the sovereign power. The sovereignty is in the people ; 
and the legislatures wliich they have created are only to discharge 
a trust of which they have been made a depository, but with well- 
defined restrictions. 

Upon this difiTerence it is to be observed, that while Parliament, 
to any extent it may choose, may exercise judicial authority, one 
of the most noticeable features iu American constitutional law 
is, the care taken to separate legislative, executive, and judicial 
functions. It has evidently been the intention of the people in 
every State that the exercise of each should rest with a separate 
department The different classes of power have been appor- 
tioned to difierent departments ; and this being all done by the 
same instrument, there is an implied exclusion of each department 
from exercising the functions conferred upon the others. 

Tiiere are two fundamental rules by which we may measure the 
extent of the legislative authority in the States : — 

1. In creaUng a legislative department and conferring upon it 
the legislative power, the people must bo understood to have con- 
ferred the full and complete power as it rests in, and may be exer- 
cised by, the sovereign power of any country, subject only to such 
restnctions as tliey may have seen fit to impose, and to the limita- 
tions which are contained in the Constitution of the United States. 
The legislative department is not made a special agency, for the 
exercise of specifically defined legislative powers, but is entrusted 
with the general authority to make laws at discretion. 

2. But the apportionment to this department of legislative 
power does not sanction the exercise of executive or judicial 
functions, except in those cases, warranted by parliamentary usage, 
whore they are incidental, necessary, or proper to the exercise of 
legislative authority, or where the constitution iteelf, in specified 

[91] 



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• 87 coNsrmmojiAL limitatiojis. [ch. t. 

cases, may expressly permit it. Executive power is so iatimately 
coDnected with legislative, tliat it is not easy to draw a liae of 
separation ; but the grant of tlie judicial power to the 
[• 88] department 'created for tlie purpose of exercising it must 
tie regarded as an exctusivo grant, covering the whole 
power, subject onty to the limitations which the constitutions 
impose, and to the incidental exceptions before referred to. 
While, therefore, the American legislatures may exercise the legis- 
lative powers which the Parliament of Great Britain wields, except 
as restrictions are imposed, they are at the same time excluded 
from other functions which may be, and sometimes habitually are, 
exercised by the Parliament. 

"The people in framing the constitation," says Senio, Cb. J., 
" committed to the legislature the whole law-making power of 
the State, which they did not expressly or impliedly withhold. 
Plenary power in the legislature, for all purposes of civil govern- 
ment, is the rule. A prohibition to exercise a particular power is 
an exception. In inquiring, therefore, whetlier a given statute is 
constitutional, it is for those who question its validity to show that 
it is forbidden. I do not mean that the power must be expressly 
inhibited, for there are but few positive restraints upon the legisla- 
tive power contained in the instrument. The first article lays 
down tiie ancient limitations which have always been considered 
essential in a constitutional government, whether monarchical 
or popular ; and there are scattered through the instrument a few 
other provisions in restraint of legislative autliority. But the 
affirmative prescriptions and the general arrangements of the 
constitution are far more fruitful of restraints upon the legisla- 
ture. Every positive direction contains an implication against 
every thing contrary to it, or which would frustrate or disappoint 
the purpose of that provision. The frame of the government, the 
grant of legislative power itself, the organization of Uie executive 
authority, tiie erection of the principal courts of justice, create 
implied limitations upon the law-making authority as strong as 
though a negative was expressed in each instance ; but indepen- 
deutiy of these restraints, express or implied, every subject within 
the scope of civil government is liable to be dealt witii by the legis- 
lature." ' 



[92] 



) Feople c. Draper, Ifi N. Y. 54S. 



DiB.1izedOyGoO<^lc 



CH. T.] POWEBS EXEECISED BT LEGISLATIVE DEPAHTMENT. * 88 

- " It bu never been questioned, so far aa I know," sa^s RedfieUl, 
Ch. J., " that the American legislatures hare the same unlimited 
power in regard to legislation which resides in the British Parlia- 
in«Dt, except where they are restrained by written consti- 
tutions. * That must be conceded, I think, to be a funda- [* 89] 
mental principle in the political organization of the 
American States. We cannot well comprehend how, upon princu< 
pie, it should be otherwise. The people mast, of course, possess 
all legislative power originally. The; have committed this in the 
most general and unlimited manner to the several State legisla- 
tures, saving only such restrictions as are imposed by the Consti- 
tution of the United States, or of the particular State in question." ^ 
" I entertain no doubt," says Conutocky J., " that aside from 
the special limitations of the Constitution,' the legislature cannot 
exercise powers which are in their nature essentially judicial or 
executive. These are, by the Constitution, distribated to other 
departments of the government. It is only the ' legislative power' 
which is vested in the senate and assembly. But where the con- 
stitution is silent, and there is no clear usurpation of the powers 
distributed to other departments, I think there would be great 
difficulty and great danger in attempting to define the limits of 
this ^wer. Chief Justice Marihall said : ' How far the power of 
giving the law may involve every other power, in cases where the 
constitution is silent, never has been, and perhaps never can be, 
definitely stated.' ^ That very eminent judge felt the difficulty ; 
but the danger was less apparent then than it is now, when theo- 
ries, allied to be founded in natural reason or inalienable rights, 
bat subversive of the just and necessary powers of government, 
attract the belief of considerable classes of men, and when too 
much reverence for government and law is certainly among the 
least of the perils to which our institutions are exposed. I am 
reluctant to enter upon this field of inquiry, satisfied, as I am, 
that no rule can be laid down in terms which may not contain the 
germ of great mischief to society, by giving to private opinion and 

■ Thorpe e. Batkod, & Borlingtoti BAilroad Co., 27 Tt. 142. See also Leg- 
gett V. Hunter, 19 N. T. 446 ; Cochnn «. Vu Sarl&y, 20 Wend. S6.5 ; People 
e. MoTTcU, 81 Wend. 669 ; Sean v. Cottrell, 5 Mich. 251 ; Muon c. Wait, 4 
Scan). 134 ; People t>. SaperriioM of Orange, 27 Barb. 593 ; Tsjlor p. Porter, 
4 BiU, 144, per Brmuott, J. 

■ Fletcher v. Feck, 6 Crancb, 136. 

[98] 



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* 89 CONSTirUTIOMAL LIMITATIONB. [OH. T. 

speculation a licenae to oppose themaeWea to the just and legiti- 
mate powers of government." ^ 

Numeroua other opinions might be cited to the same 
[* 90] effect with * those from which we have here quoted ; hut 
as we shall have occasion to refer to them elsewhere, in 
considering the circumstauces under which a statute majr he 
declared uiiconstitntioual, we shall refrain from further references 
in this place. Nor shall we enter upon a disciissioD of the ques- 
tion BUfgested hy Chief Justice Marshall as above quoted ; ^ siuce, 
however interesting it may be as an abstract question, it is made 
practically unimportant b; the careful separation of duties between 
the several departments of the government which has been made 
by each of tiie State constitutions. Had no such separation been 
made, tlie disposal of executive and judicial duties must have 
devolved upon the department vested with the general authority 
to make laws ; ^ but assuming them to be appoitioued alread) , we 
are only at liberty to liken the power of tlie State legislature to 
tliat of the Pad i a moot, when it confiiies its action to au exercise 
of legislative functions; aud such authority as is in its nature 
either executive or judicial is beyond its constitutional powers, 
with the few exceptious to wliich we have already referred. 

It will be important therefore to consider those cases where 
legislation has been questioned as encroaching upon judicial 
authority ; and to this eud it may be useful, at the outset, to en- 
deavor to define legislative and judicial power respectively, tiiat 
we may the better be enabled to point out the proper line of dis- 
tinction when questions arise in their practical application to 
actual cases. 

Tlie legislative power is the authority, under tlie Constitutioa, to 
make laws, and to alter and repeal them. Laws, in the sense in 
which tiie word is here employed, are rules of civil conduct, or 

' Wynehimer e. People. 18 N. Y. 891. 

' The power to diitribute the judicial power, except «o far m tluU hu been 
done by the congtituCton, restt wJih the legislature ; but when the conaUtution 
has conferred it upon certain apeciGed courts, this niiigt be understood to embrace 
tbe whole juditial power, and the legislature cannot vest any portion of it else- 
where. Slate e. Maynard, U 111. 420 ; Gibsoa v. Emerson, 2 Rag. ITS ; Chand- 
ler V. Nasb, & Mich. 409. 

1 Calder v. Bull, 2 Root, 360, and 3 Dall. 386 ; Rosa t>. Whilnun, 6 Cal. S61 ; 
Smith 0. Judge, 17 Cal. 647 ; per Paiterton, J., in Cooper c. Telliur, 4 Dall. 19 ; 
Martin v. Hanier'i Leasee, 1 Wheat. 804. 
[M] 



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CB. T.] POWERS EXERCISED BT LBOISLATITE DEFABTUENT. * 90 

statntea, which the legislative will has prescribed. " Tlie laws of 
a State," observes Mr. Justice jS^^, "are more usnally under- 
stood to mean the rules and enactments promulgated by the legis- 
lative authority thereof, or long-established local customs 
having *the force of laws."* "The dlETereuce between ['SI] 
the departments undoubtedly is, that tlie legislature 
makes, the executive executes, and the judiciary construes, the 
law."^ And it is said that that which distinguishes a judicial 
from a legislative act is, that the one is a determination of wliat 
tlie existing law is in relation to some existing thing already done 
or happened^ while the other is a predetermination of what the law 
shall be for tlie regulation of all future cases falling under its pro- 
visionB.' And in another case it is said : " The legislative power 
extends only to the making of laws, and in its exercise it is limited 
and restrained by tlie paramount autliority of the Federal and 
State constitutions. It cannot directly reach the property or 
vested rights of the citizen by providing for their forfeiture or 
traDsfer to another, without trial and judgment in the courts : for 
to do so would be the exercise of a power which belongs to another 
branch of the government, and is forbidden to the legislative."* 
*'Tliat is not legislation which adjudicates in a particular case, 
prescribes the rule contrary to the general law, and orders it to be 
enforced. Such power assimilates itself more closely to despotic 
rule than any otlier attribute of government." ' 

On the other hand, to adjudicate upon, and protect, the rights 
and interests of individual citizens, and to that end to construe 
uid apply the laws, is the pecuHar province of the judicial depart- 
ment.^ "No particular definition of judicial power," says Wood- 

' Swift D. Tygon, 16 Pet. 18. 

* Per MarahaU, Cb. J., in Wftjntian v. Sonlbard, 10 Wheat. 46; Per Oibaoa, 
Cb. J., in Greenougli v. Greenoogh, 11 Feon. St. 494. See Stkte r. Gleasoii, 
12 Fla. 190. 

' Bates p. Ehnball, 2 Chip. 77. 

* Newland d. Manih, 19 III. 882. 

* ErriDe'a Appeal, 16 PeiiD. St. 266. See also Greenough c. Greenough, 11 
Feon. St. 491 ; Dechastellux v. Faircfaild, 16 Penn. St. 18. 

* Cinc-innali, Ac, Railroad Co, c, Oommisaioners of ClinUin Co. 1 Ohio 
a. 8. 81. See alio King c. Dedham Bank, 15 Mass. 454 ; Gordon e. Ingrafaam, 
1 Gnwt'i Cases, 163 ; People c. Supervisors of New York, 16 N. Y. 432 ; Beebe 
r. State, S lud. 616; Greenough c. Greenough, 11 Penn. St. 494; Taylor o. 
FUc«, 4 B. I. 824. In State r. Adams, 44 Mo. 670, a legislative act wtuch 

[95] 



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• 91 CONBTITDTrONAL LIMITATIONB. [CH. V. 

huiy, J., " is given in the constitution [of New Hampshire], and, 
considering the general nature of the instrument, none was to be 
expected. Critical statameiits of the meanings in which all im< 
poilAnt words were employed would have swollen into volumes ; 
and when those words possessed a customary significatioa, a defi- 
nition of them would have been iiaeless. But ' powers 
[•92] judicial,' •'judiciary powers,' and 'judicatures' are all 
phrases used in the consUtntion ; and though not particu- 
larly defined, are still so used to designate with clearness that 
department of government which it was intended should inter- 
pret and administer the laws. On general principles, therefore, 
those inquiries, deliberations, orders, and decrees, which are 
peculiar to such a department, must in their nature be judicial 
acts. Nor can they be both judicial and legislative ; because a 
marked diSerence exists between the employment of judicial and 
legislative tribunals. The former decide upon the legality of 
claims and conduct, and the latter make rules upon which, in con- 
uection witli the constitution, those decisions shoiild be founded. 
It is the province of judges to determine what is the law upon 
existing cases. In fine, the law is applied by the one, and made 
by the other. To do the first, therefore, — to compare the claims 
of parties with the law of the land before established, — is in its 
nature a judicial act. But to do the last — to pass new rules for 
the regulation of new controversies — is in its nature a legislative 
act ; and if these rules interfere with the past, or the present, and 
do not look wholly to the future, they violate the definition of a 
law as ' a rule of civil conduct ; * ^ because no rule of conduct can 
with consistency operate upon what occurred before the rule itself 
was promulgated. 

" It is the province of judicial power, also, to decide private 
disputes between or concerning persons; but of legislative power 
to regulate public concerns, and to make laws for the benefit and 
welfare of the State. Kor does the passage of private statutes 
conflict with these principles ; because such statutes, when lawful, 
are enacted on petition, or by the consent of all concerned ; or else 



declared certain college officers to huvo vaoted tlieir office* by failure 
an oath preecribed bj a proTious act, and which proceeded to appoiat 
was held void as an exercise of jadicinl power. 
■IB. Com. 44. 
[96] 



DiB.1izedOyGoO<^tc 



CH. T.] POWERS EXERCISED BY LEOISLATITB DEPAB7VENT. * 92 

tbef forbear to interfere with past transactions and rested 
rights." ' 

With these definitions and explanations, we shall now proceed 
to consider some of the cases iu which the courts have attempted 
to draw the line of distinction between the proper fuuctions of the 
legislative and judicial departments, in cases where it has been 
claimed that Uie legislature have exceeded tlieir power hj invading 
the domiuu of judicial authority. 

• Declaratory Statutes. [• 93] 

LegislattoD is either introductory of new rules, or it is de- 
clarator; of existing rules. " A declaratory statute is one which 
is passed in order to pat an end to a doubt as to what is tlie com- 
mon law, or the meaning of another statute, and which declares 
what it is and ever has been.' Such a statute, therefore, is always 
in a certain sense retrospective ; because it assumes to determine 
what the law was before it was passed ; and as a declaratory statute 
is important only in those cases where doubts have already arisen, 
the statute, wlien passed, may be found to declare tlie law to be 
different from what it has already been adjudged to be by the 
courts. Thus Mr. Fox's Libel Act declared that, by the law of 
England, juries were judges of the law in prosecutions for libel ; it 
did not purport to introduce a new rule, but to declare a rule 
already and always in force. Yet previous to the passage of this 
act tlie courts had repeatedly held that the jury iu these cases were 
only to pass upon the fact of publication and the truth of 
the innuendoes ; and wiiether the publication was libellous or not 
was a question of law which addressed itself exclusively to the 
court. Thus the legislature declared tlie law to be what the courts 
had declared it was not So in the State of New York, after the 
courts liad held that insurance companies wore taxable to a certain 
extent under an existing statute, the legislature passed auotlier 
act, declaring that such companies were only taxable at a cei'taiu 
other rate ; and it was thereby declared that such was the iuteution 

' Merrill o. Sherbnnie, 1 N. H. 201. See Jones p. Peny, IOTerg-69; Tay- 
lor D. PorWr, 4 Hill, 144 ; Ogden v. Bhckledge, 2 Crtuich, 372 ; Dash d. Van 
Kkek, 7 Joiiiu.498; \VllkiiucHi r. Leiand, 3 Fet.6S7; Leland e. Wilkinsoa, 
10 Pet. 897. 

■ Bouv. Law IMc. "Statota." 

7 [97] 



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• 93 ' CONSnTUnOHAI, LIMlTAnONB. [CH. Y. 

and true construction of the original statute.' In these eascB it 
will be perceived that the courts, in the due exercise of their 
aathority as interpreters of the laws, have declared what the rule 
established by the common law or by statute is, and that the 
l^slature has then interposed, put its own construction upon the 
existing law, and in effect declared the judicial interpretation to be 
unfounded and unwarrantable. The courts in these oases have 
clearly kept within the proper limits of their jurisdiction, and if 
they have erred, the error has been one of Judgment only, and haa 
not extended to usurpation of power. Was the legislature also 
within the limits of its authority when it passed the declaratory 

statute? 
[•94] *The decision of this queaUon must depend upon the 

practical application which is sought to be made of the 
declaratory statute, and whether it is designed to hare practically 
B retrospective operation, or only to establish a construction of the 
doubtful law for the determination of cases that may arise in the 
future. It is always competent to change an existing law by a 
declaratory statute; and where it is only to operate upon future 
cases, it is no objection to its validity that it assumes the law to 
have been in the past what it is now declared that it shall be in the 
future. But the legislative action cannot be made to retroact upon 
past controversies, and to reverse decisions which the courts, in Uie 
exercise of their undoubted authority, have made ; for this would 
not only be the exercise of Judicial power, but it would be its 
exercise in the most objectionable and offensive form, since the 
legislature would in effect sit as a court of review to which parties 
might appeal when dissatisfied with the rulings of the courts.' 

' People e. SuperriBOrs of New York, 16 N. Y. 424. 

' Id several diSereut casea the courts of PennsylTania bad decided that a 
testator's mark to his name, at tbe foot of a testamentaTj paper, but mthout 
proof that the name was written hj his express directioQi was not the signature 
required by the statute, and the legislature, to use the language of Chief Justice 
&S)ton, " declared, in order to oTerrule it, that every last will and testament 
heretotbre made, or herealler to be made, except such as nrny have been fuUjr 
adjudicated prior to the passage of thb act, to which the testator's name is aub- 
(cribed by his direction, or to which the teit&tor has made bis mark or cross, shall 
be deemed and taken to be valid. How this mandate to the courta to establish 
a particular interpretation of a particular statute, can be taken for any thing elae 
tiian an exercise of judicial power in settling a question of interpretation, I know 
not. The judiciary had certainly recogniied a legislative int«rpTetation of a 
[S8] 



DiB.1izedOyGoO<^lc 



Ce. v.] POWERS EXERCISED BY LEQIBLATIVE DEPARTMENT, * 94 

As the legislature cannot set aside tlie construction of the lav 
already applied by the courts to actual cases, neither can it compel 
the courts for tlie future to adopt a particular construction of a law 
vhich tlie legislature permits to remain in force, " To declare 
vbat the law it, or hat been, is a judicial power ; to declare what 
the law Bhall be, is legislative. One of the fundamental principles 
of all our -governments is, that the legislative power 
• shall be separate from the judicial." ^ If the legislature [* 95] 
woald prescribe a different rule for the future from that 
which the courts enforce, it must be done by statute, and cannot be 
done by a mandate to the courts, which leaves the law unchanged, 
but seeks to compel the courts to constrae and apply it, not 
according to the judicial, but according to the legislative 
judgment,' But in any case the substauee of the legislative 
action should be regarded rather than the form ; and if it appears 
to be the intention to establish by declaratory statute a rule of 
conduct for the future, the courts should accept and act upon it, 
witliont too nicely inquiring whether the mode by which the new 
rule is established is the best, most decorous and suitable that 
could have been adopted or not. 

If the legislature cannot thus indirectly control the action of the 
courts, by requiring of them a construction of the law according to 
its own views, it is very plain it cannot do so directly, by sotting 
aside their judgments, compelling them to grant new trials, 
ordering the discbarge of offenders," or directing what particular 

atetute before it had itaelf act«d, utd coDwqaentlj before a purcbaser bad been 
muled hj its jadgni«nt ; but he mfght have paid for a Utle on the uDmisukablfl 
meuuDg of plain words; and for the legislature subsequently to distort or per- 
vert it, and to enact that white meant black, or that black meant while, would 
in the same degree be an exercise of arbitrorj and uDconstitutional power." 
GreenOQgh o. Greenongh, 11 Peon. St. 494. The act in this case was held void 
•o far as its operation was retrospective, but valid as to future cases. And see 
Beiser r. Tell Assodation, 39 Penn. Bt 1S7. 

' Dash IT. Tan Eleek, 7 Johns. 498, per Tkomptm, J. ; Ogden v. Blackledge. 
2 Cnuich. 272. 

' Governor v. Porter, 6 Humph. 165 ; People t>. Sapervisors, &c,, 16 N. T. 
424 ; Beiser n. Tell Association, 89 Peon. St. 137 ; O'Cooner v. Warner, 4 W. 
ft S. 227 ; Lambertson v. Hogui, 2 Penn. St, 26. 

* In State o. Fleming, 7 Humph. 152, a legislative resolve that " no fine, for- 
i^tore, or imprisonment, should be imposed or recovered under the act of 1837 
[then in force], and that all causes pending in anjr of the courts for such offence 
abould be dianuBsed," was held void as an invasion of judicial authori^. The 

[99] 



DiB.1izedOyGoO<^lc 



• 95 CONSTlTDnOHAL LIMITATIONS. [CH. T. 

BtepB shall be taken in the progress of a judicial inquiry.' 
[* 96} * And as a court must act as an organized body of judges, 

and, where differeuces of opinion arise, (hey can only 
decide by majorities, it has been held tliat it would not bo iu the 
power of the legislature to provide that, in certain contingencies, 
the opinion of the minority of a court, vested with power by the 
constitution, should prevail, so that the decision of the court 
in such cases should be rendered against the judgment of its 
members.' 

legiel&ture cannot declsre a forfeiture of a rj^t to set as curators of a college. 
State c. Adams, 44 Mo. 670. But to Uke away by statute a statutory right of 
appeal is not an exercise of judicial authority. Ex parte McCardle, 7 Wal. 
606. And it has been held that a statute aliening an appeal in a particular case 
was valid. Prout v. Berry. 2 GtU, 147 ; State o. Northern Central R.R. Co. 
18 Md. 193. But see cases dted in next note. 

' Opinions of Judges on the Dorr case, 3 R. I. 399. In the case of Ficquet, 
Appellant, 6 Pick. 64, the Judge of Probate Lad ordered letters of administration 
to i^sue to an applicant therefor, on his giving bond in the penal sum of (50,000, 
with sureties within the Common wealth, for the fiiilhrul performance of his duties. 
He was unable to give the bond, and applied to the legislature for relief. There- 
upon a resolve was passed "empowering" the Judge of Probate to grant the 
letters of administration, provided the petitioner should give bond with his 
brother, a resident of Paris, France, as surety, and " that soch bond shonld be 
in lieu of any and all bond or bonds by any law or statute in this Commonwealth 
DOW in force required," &c. The Judge of Probate refused to grant the letters 
on the terms ipeciGed in this resolve, and the Supreme Court, while holding that 
it was not compulsory upon biro, also declared their opinion that, if it were so, it 
would be inoperative and void. In Bradford r. Brooks, 2 Aik. 284, it was de- 
cided thit the legislature had no power to revive a commission for proving claims 
against an estate after it had once expired. See also Bagg's Appeal, 49 Penn. 
St. 612. In Hill V. Sunderland, 3 Vt. 607 ; and Burch v. Newberry, 10 N. Y. 
374, it was held that the legislature had no power to grant to parlies a right to 
appeal after it was gone under the general law. Besides the authorities referred 
to, to show that the legislature cannot grant a new trial, see Lewis e. Webb, 
8 Greenl. 326 ; Durham f. Lewiston, 4 Greenl. 140 ; Bates e. Kimball. 2 Chip. 
77; Staniford D. Barry, 1 Aih, 314; Merrill d. Sherburne. 1 N.H. 199; Dechaa- 
Ullux t>. Fairchitd, 16 Fenu. St. 18 ; Taylor v. Place, 4 R. I. 324 ; Young v. 
Stale Bank, 4 Ind. 301 ; Lanier v. Gallatas, 13 La. An. 176 ; Miller d. State. 8 Gill, 
145 ; Beebe d. State, 6 Jnd. 616 ; Atkinson d. Dunlap. 60 Me. Ill ; Weaver 
V. Lapsley, 43 Ala. 224 ; Saunders v. Cahaniss, tb. 173. In Burt o Williams, 
24 Ark. 91, it was held that the granting of continuances of pending cases was 
the exercise of judicial authority, and a legislative auC assuming to do this was 

* In Clapp V. Ely, 3 Dutch, 622, it was held that a statute which provided that 
no judgment of the Supreme Court should he revened by the Court of Errors 
[100] 



DiB.1izedOyGoO<^lc 



CH. T.] P0WB88 BIEECTaBD BT LBGIBLATTTB DEPABTBTENT. * 96 

Nor ia it in the power of the legislature to bind individuals hj a 
recital of facts in a statute, to be used as evidence against the 
parties interested. A recital of facts in the preamble of a statute 
ma; perhaps be evidence, where it relates to matters of a public 
nature, as that riots or disorders exist in a certain part of the 
country ; i but where the facta concern the rights of individuals, 
the legislature cannot adjudicate upon them. As private statutes 
are generally obtaiued on the application of some party interested, 
and are put in form to suit bis wishes, perhaps their exclusion 
from being made evidence against any other party would result 
from other general principles ; but it is clear that the recital could 
have no force, except as a judioial finding of facts; and that 
such finding is not within the legislative province.^ 

* We come now to a class of cases in regard to which [*97} 
there has been serious contrariety of opinion ; springing 
from the fact, perhaps, that tlie purpose sought to be accomplished 
by the statutes is generally effected by Judicial proceedings, so that 
if the statutes are not a direct invasion of judicial authority, they 
at least cover ground whicli the courts usually occupy under gen- 
eral laws wbioh confer the jurisdiction upon them. We refer to 

Stattitei conferrinff Power upon Guardiant and other Trustees to 
»ell Lands. 
Whenever it becomes necessary or proper to sell the estate of 
a decedent for the payment of debts, or of a lunatic or other 
incompetent person for the same purpose, or for future support, 
or of a minor to provide the means for his education and nurture, 
or for the more profitable investment of the proceeds, or of ten- 
ants in common to effectuate a partition between them, it will 

■nd Appeal*, unless k majaritj' of those members of the court who were com- 
petent to sit on the hearing and decision sbould concur in the reversal, was 
nnconstitulionst. Its effect would be, if the court were not full, to make the 
opinion of the minority in favor of affirmance oontrol that of the majority in 
&Tar of reversal, nnlesa the latter were a majority of the whole court. Stich a 
provision in the constitution might be proper and unexceptionable j but if the 
eonslilution hu created a Court of Appeals, without any restriction of this char- 
acter, the ruling of this case is tbat the legislature cannot impose it. The court 
was nearly eqaallj divided, standing seven to six. 

■ Rex p. Sutton, 4 M. & S. 532. 

■ Elmondorf v. Carmichael, 3 LiU. 478; Fannelee v. Thompson, 7 Hill, 60. 

[101] 



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" 97 CONSTITUTIONAL LIMITATIONS. [CH. T. 

probably be found in every State tliat some court is rested with 
jurisdiction to make the necessary order, if the facts seem to 
render it important after a hearing of the parties in interest. 
The case is eminently one for judicial investigation. There are 
facte to be inquired into, iu regard to which it is always possible 
that disputes may arise ; the party in interest ia often incompetent 
to act on his own behalf, and his interest is carefully to be 
inquired into and guarded ; and as the proceeding wilt usually be 
ex parte, there is more than the ordinary opportunity for fraud 
upon the party interested, as well as upon the authority which 
grants permission. It is highly and peculiarly proper, therefore, 
that by general laws judicial inquiry should be provided for 
these cases, and that tliese laws should provide for notice to all 
proper parties, and an opportunity for the presentation of any 
facts wliich might bear upon the propriety of grauting the applica- 
tions. 

But it will sometimes be found that the general laws provided 
for these cases are not applicable to some which arise; or if appli- 
cable, that they do not always accomplish fully all that seems 
desirable ; and in these cases, and perhaps also in some otliers 
witliout similar excuse, it has not been unusual for legislative au- 
thority to intervene, and by special statute to grant tlie power 
which, under tlie general law, is granted by the courts. 
[* 98] The * power to pass such statutes has pften been disputed, 
and it may be well to see upon what basis of authority as 
well as of reason it rests. 

If in fact judicial inquiry is essential in these cases, it would 
seem clear that such statutes must be ineffectual and void. But 
if judicial inquiry is not essential, and the legislature may confer 
the power of sale in such a case upon an ex parte presentation of 
evidenco, or upon the representations of the parties without any 
proof wliatever, then we must consider the general laws to be 
passed, not because the cases fall within tlio province of judicial 
action, but because the courts can more conveniently consider, 
and properly, safely, and inexpensively pass upon such cases, than 
the legislative body, where the power primarily rests.^ 

' There srt: cons titational provisions in Kentuckj, Virginia, Missouri, Oregon, 
Nevada, Indiana, Maryland, New Jersey, Arkansaa, riorida, and Michigan, for- 
bidding special Isira licensing the sate of the lands of minora and other persona 
under legal disability. Ferhapi the general provision in tome Other a 

[102] 



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CH . r.] POWEBS EZERCtBED BT LEOISUTITG DEPABTHENT. * 98 

The rule apoa this subject, as we deduce it from tlie authorities, 
seems to be this : If the party standing in position of trustee 
applies for perinisBioQ to make the sale, for a purpose apparently 
for Uie interest of Uie cettui que tru»t, and there are no adverse 
interests to be considered and adjudicated, the case is not one 
irbicb requires judicial action, but it is optional vitli tiie legisla- 
ture to grant the relief by statute, or to refer the case to the 
courts for consideration, according as the one course or the other, 
on considerations of policy, may seem desirable. 

In the case of Rice v. Parkman,^ it appeared that, certain mi- 
nore having become entitled to real estate by descent from their 
mother, the legislature passed a special statute ompovering their 
&ther as guardian for them, and, after giving bond to the judge 
of probate, to sell and convey the lands, and put the proceeds at 
interest on good security for the benefit of the minor owners. 
A sale was mode accordingly; but the children, after coming of 
age, brought suit against the party claiming under the sale, insist- 
ing that the special statute was void. There was in force at the 
time this special statute was passed a general statute, under which 
license might have been granted by the courts ; but it was held 
that this general law did not deprive the legislature of that 
full • and complete control over such oases which it would [• 99] 
have possessed bad no such statute existed. " If," say 
the court, " the power by which the resolve authorizing the sale in 
this case was passed were of a judicial nature, it would be very 
clear tliat it could not have been exercised by the legislature with- 
out violating an express provision of the constitation. But it 
does not seem to us to he of this description of power ; for it was 
not a case of controversy between party and party, nor is there 
any decree or judgment affecting the title to property. The 
only object of the authority granted by tlie legislature was to trans- 
mute real into personal estate, for purposes beneficial to all who 
were interested therein. This is a power frequently exercised by 
the legislature of tliis State, since the adoption of the constitution, 
and by the legislature of the province and of the colony, while 
under the sovereignty of Great Britain, anal(^ua to the power 
exercised by the British Parliament on similar subjecte, time out 

titms, forbidding special lurs in cases wlere B general law could be made appli- 
cable, might also be held to ezclnde such special authorization. 
' 16 Maw. 326. 

[108] 

DiB.1izedOyGoO<^lc 



• 99 COHBTITUnOHAL LIMITATIONS. [CH. T. 

of mind. Indeed, it aeema absolutely necessary for the interest ot 
those who, b; the general rules of law, are incapacitated from dis- 
posing of their property, that a power should exist somevliere of 
converting lands into money. For otherwise many minora might 
suffer, although having property ; it not being in a condition to yield 
an income. This power must rest in tlie legislature, in tins Com- 
monwealth ; that body being alone competent to act as the general 
guardian and protector of those who are disabled to act for them- 
selves. 

" It was undoubtedly wise to delegate this authority to other 
bodies, whose Bessions are regular and constant, and whose struc- 
ture may enable them more easily to understand the merits of tlie 
particular application brought before them. But it does not fol- 
low tliat, because the power has been del^ated by the legislature 
to courts of law, it is judicial in its character. For aught we see, 
tlie same authority might hare been given to the selectmen of 
each town, or to tlie clerks or registers of the counties, it being a 
mere ministerial act, certainly requiring discretion, and some- 
times knowledge of law, for its due exercise, but still partaking 
in no degree of Uie characteristics of judicial power. It is doubt- 
less included in the general authority granted by the people to 
the legislature by the constitution. For full power and authority 
is given from time to time to make, ordain, and establish all 

manner of wholesome and reasonable orders, laws, stat- 
["100] utes, and ordinances, directions and restrictions (so as 

the same be not repugnant or contrary to the constitu- 
tion), as they shall judge to be for the good and welfare of the 
Commonwealth, and of the subjects thereof. No one imagines 
that, under this general authority, the legislature could deprive a 
citizen of his estate, or impair any valuable contract in wliich he 
might he interested. But there seems to be uo reason to doubt 
that, upon Ills application, or the application of those who properly 
represent him if disabled from acting himself, a beneficial change 
of his estate, or a sale of it for purposes necessary and convenient 
for the lawful owner, is a just and proper subject for the exercise 
of that authority. It is, in fact, protecting him in his property, 
which the legislature is hound to do, and enabling him to derive 
subsistence, comfort, and education from property which might oth- 
erwise be wholly useless during that period of life when it might 
be most beneficially employed. 
[104] 



v.Gooi^lc 



CH. T.] POWEES EXEBCIBED BT LEGISLATIVE DEPAHTMEKT. • 100 

"If tills be not true, then the general laws, under wliicb so 
man^ estates of minors, persons non campog mentU, and otbers, 
hare been sold and converted into money, are unauthorized hj 
the constitution, and void. For the courts derive their authority 
from tbo legislature, and, it not being of a judicial nature, if the 
legislature bad it not, they could sot communicate it to any 
other body. Thus, if there were no power to relievo those from 
actual distress who had unproductive property, and were dis- 
abled from conveying it themselves, it would seem that one of the 
most essential objects of government — that of providing for the 
welfare of the citizens — would be lost. But the argument wliicb 
has most weight on the part of the defendants is, that the legisla- 
ture has exercised its power over this subject in the only consti- 
tutional way, by establishing a general provision ; and that, having 
done Uiis, their autliority has ceased, tbey having no right to 
interfere in particular cases. And if the question were one of 
expediency only, we should perhaps be convinced by the argu- 
ment, that it would be better for all such applications to be made 
to the courts empowered to sustain tliem. But as a question of 
right, we think the argument fails. The constituent, when he 
baa delegated an authority without an interest, may do tlie act 
himself which he has authorized another to do ; and especially 
when tliat constituent is the legislature, and is not prohibited 
by the constitution from exercising the authority. In- 
deed, the * whole authority might be revoked, and tlie [* 101] 
legislature resume the burden of tbe business to itself, if 
in its wisdom it should determine that the common welfare required 
it. It is not legislation which must be by general acts and rules, 
but tbe use of a parental or tutorial power, for purposes of kind- 
ness, withoat interfering with or prejudice to the rights of any but 
those who apply for apecific relief. The title of strangers is uot in 
any degree affected by suoli an interposition." 

A similar statute was sustained by the Court for the Correction 
of Errors in Kew York. " It is clearly," says the Chancellor, 
" withiu the powers of the legislature, as parent patricgy to proscribe 
Buch rules and regulations as it may deem proper for the superin- 
tendeuce, disposition, and management of tbe property and effects 
of infants, lunatics, and other persons wboare incapable of managing 
their own aGhirs. But even that power cannot constitutionally be 
so far extended as to transfer the beneficial use of tlie property to 

[105] 



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• 101 CONSTITUnONAL LIMITATIONS. [CH. V. 

anoUier person, except in those cases where it can legally be 
presamed the owner of the property would himself have given the 
use of his property to the other, if lie had been in a situation to act 
for himaelf, as in the case of a provision out of the estate of an 
infant or lunatic for the support of an indigent parent or other 
near relative." ' 

' CDchran V. Tan SurUy, 20 Wend. 373. See the same c«e in the Supreme 
Coart, lub jtom. Clarke t>. Yan Surlay, 16 Wend. 436. See abo Suydam r. 
Williamaon, 24 How. 427 ; Williamson p. Suydam, 6 Wal. 723 ; Heirs of Hol- 
mann. Bank of Norfolk, 12 Ala. 369; Florentine p. Barton. 2 Wal. 210. In 
OpiDions of the Judges, 4 N. H. 672, the validitj of such a special statute, under 
the constitution of NciT Hampshire wu denied. The judges saf : "The objec- 
tion to the exercise of such a power by the legislature is, that It is in it* nature 
both IcgiaUlive and judiciaL It is the province of the legislature to prescribe the 
rule of law, but U> apply it to particular cases is the business of the courts of law. 
And the thirty-eighth article in the Bill of Rights declares that ' in the government 
of theStatethe three essential powers thereof, to wit, the legislative, executive, and 
judicial, ought to be kept as separate from, and independent of, eai:h other as the 
nature of a free government will admit, or as consistent with that chain of con- 
nection that binds the whole fabric of the constitution in one indissoluble bond of 
nnion and amity.' The eiercise of euch a power by the legislature can never be 
necessary. By the existing laws, judges of probate have very extensive juris- 
diction to license the sale of real estate of minors by their guardians. If the 
jurisdiction of the judges of probate be not safficiently extensive to reach all 
proper cases, it may be a good reason why that jurisdiction should be extended^ 
but can hardly be deemed a sufficient reason for the particular interposition of the 
legislature in an individual case. If there be a defect in the laws, they should be 
amended. Under our ins^utioni all men are viewed as equal, entitled to enjoy 
equal privileges, and to be governed by equal laws. If it be fit and proper that 
license sbould be given to one guardian, under particular circumstances, to sell 
the estate of bis ward, it is fit and proper that all other guardians should, under 
dmilar ci ream stances, have the same license. This is the very genius and spirit 
of our institutions. And we are of opinion that an act of the legislature to 
authorize the sale of the Und of a particular minor by his guardian cannot be 
easily reconciled with the spirit of (he article in the Bill of Rights which we have 
just cited. It is true that the grant of such a license by the legislature to the 
guardian is intended as a privilege and a benefit to the word. But by the law of 
the land no minor is capable of assenting to a sale of his real estate in such a 
manner as to bind himself. And no guardian is permitted by the same law to 
determine when the estate of his ward ought and when it ought not to be sold. 
In the contemplation of the law, the one has not sufficient discretion to judge of 
the propriety and expediency of a sale of his estate, and the other is not to be 
intrusted with the power ofjudging. Such being tbe general law of the land, it 
is presumable that the legislature woald be unwilling to rest tbe juetilicatioD of an 
act authorizing the sale of a minor's estate apon any assent which the guardiui 
or the minor could give in the proceeding. The qnestioo dien is, as it aeemi to 
[100] 



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CH. v.] POWEia EXEBCISED BY LEGISLATIVE DEPABTMENT. • 102 

* The same ruling has been made in analogous cases. [ *102 ] 
In Oliio, a special act of the legislature authorizing commis- 
siooers to make sale of lands held in fee tail, by devisees under a 
will, in order to cut off the entailment and effect a partition 
between them, — the statute being applied for by the mother of the 
devisees and the executor of the will, and on behalf of tbe 
devisees, — was held not obnoxious to constitutional objection, and 
as sustainable on immemorial legislative usage, and on the same 
ground which would support general laws for tlie same purpose.' 
In a case in the Supreme Court of the United States, where an 
executrix who had proved a will in New Hampshire made sale of 
lands without autliority in Rhode Island, for the purpose of 
satisfying debts against tile estate, a subsequent act of the 

Bhode Island legislature, * coiiCirining the sale, was held [* 103J 
not au encroachment upon the judicial power. The land, 
it was said, descended to the heirs subject to a lien for tlie payment 
of debts, and there is uotliing in the nature of tlie act of authorizing 
a sale to satisfy the lien, which requires that it should be performed 
by a judicial tribunal, or that it should bo performed by a delegate 
rather tlian by tlie legislature itself. It is remedial in its nature, 
to give effect to existing rights.^ Xhe case showed the actual 
existence of debts, and indeed a judicial license for the sale of 
lands to satisfy them had been granted in New Hampshire before 
the sale was made. The decision was afterwards followed in a 
carefully considered case in tlie same court.^ In each of these 
cases it is assumed that the legislature does not by the special 
statute determine the existence or amoujit of the debts, and 

at. Can & ward be deprived of his inberit&nce without his coneent by aa set of 
tbe legislature which is intended to apply to no other individual? The fineeDtb 
irtii-le of tbe Bill of Rights declares that no subject ahill be deprived ofhia prop- 
ertr but bj tbe jndgment of his peers or the law of the land. Can an act of the 
kgislature, intended to authorize one man to sell tbe land of anolber without hia 
coDHnt, be ' the law of tbe land ' in a free country P If the question proposed 
(o us can be resolved into these qnesliors, as it appears to us it may, we feel en- 
tirejv confident that the representatives of tbe people of this State will agree 
with na in ihe opinion we feel ourselves bound to express on tbe question sub- 
nuited to tts, that tbe legislature cannot authorise a guardian of minors, by a 
■pecial act or resolve, to make a valid conveyance of the real estate of his wards." 
> Carroll V. Lessee of Olmsted, 16 Ohio, S5I, 

* Wllkinton v. Leland, S Pet. 660. 

* Walkins v. Holmoa's Lessee, 16 Pet. 25-60. See also Florentine o. Bar- 
ton, 3 Wal. 210; Doe v. DoDgUts, 8 Blackf. 10. 

[107] 



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• 103 CON9TITIJTI0IJAL LIMITATIONS. [CH, T. 

disputes conceniiiig them would be determinable in tlie usual 
modes. Many other decisionB have been made to tlie same eSect.^ 

Tills species of legislation ma; perhaps he properly called prero- 
gative remedial legislation. It hears aud determines no riglits ; it 
deprives no one of his property. It simply authorizes one's real 
estate to be turned into personal, on the application of the person 
representing his interest, and under such circumstances that the 
consent of tlie owner, if capable of giving it, would be presumed. 
It is in the nature of the grant of a privilege to one person, which 
at the same time affects injuriously the rights of no other.^ 

But a different case is presented when the legislature assumes to 
authorize a person who does not occupy a fiduciary relation 
[*104] to -*the owner, to make sale of real estate, to satisfy 
demands which he asserts, but which are not judicially 
determined, or for any other purpose not connected with tlie con- 
venience or necessity of the owner liimself. An act of tlie legislature 
of Illinois undertook to empower a party who had applied for it to 
make sale of the lands pertaining to the estate of a, deceased 
person, in order to ruse a certain specified sum of money which the 
legislature assumed to be due to him and another person, for 
moneys by them advanced and liabilities incurred oa belialf of the 
estate, and to apply the same to the extinguishment of their claims. 
Now it is evident tliat this act was in the nature of a judicial . 
decree, passed on the application of parties adverse in interest to 
the estate, and in effect adjudging a certain amount to be due tliem, 
and ordering lauds to be sold for its satisfaction. As was well said 



' Thurston r. Thuraton, 6 R. 1. 296 ; WilliamBon u. WilliaiDBon, 9 S. & M. 715 ; 
McComb D. Gilkej, 29 Misi. 146 ; Boon t>. Bovers, 30 Mas. 246 ; Stewart o. Grif- 
fith, 33 Mo. 13; Estep o. Hutchman, 14 S.&R.435; Saowhill n. Snowhill, 2 
GreCD.Ch. 20; Dorsey p. Gilbert, 11 G. & J. 87; Norris o. Cljmer, 2 Penn. St. 
277 ; Coleman v. Cvr, Walker. 258 ; Davison u. Johonnot. 7 M«t. 388 ; Tuwie v. 
Forney, 14 N. Y. 423 ; Leggelt e. Hunter, 19 N. Y. 445 ; Kibby o. Chetwood's 
AdDi'ra, 4 T, B. Monr. 94; Shehan's Hein v. Barnett'a Heire, 6 T. B. Monr. 
594; Davis v. State Banlc, 7 lud. 316. In Moore ». Maxwell, 18 Ark. 469, a 
special statute authorizing the administrator of one who held the mere nskiid 
legal title to convey to the owner of the equitable title waa held valid. In Stan- 
ley V. Colt, 5 Wal. 119, an act permitting the sale of real estate which had b«en 
devised to charitable uses was sustained — no diversion of the gifl being made. 

* It would be equally competent for the legislature to authorize a person under 
legal disability — t. g. an ioTant — to convey bis estate, as to authorize it to be 
conveyed by guardian. MoComb v. Gilkey, 29 Miu. 146. 
[108] 



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CH. T.} POWERS EXERCISED BT LEGISLATIVE DEPABTUENT. • 104 

b; the Supreme Court of lUinois, in adjudging the act void : " If 
this is not the exercise of a power of inquiry into, and a determina- 
tiou of facts, between debtor and creditor, and that, too, ex parts 
and summary in its character, we are at a loss to understand the 
meaning of terms ; nay, tliat it is adjudging and directing the ap- 
plication of one person's property to another, on a claim of 
indebtedness, without notice to,, or hearing of, the parties whose 
estate is divested by the act. That tlie exercise of sucli power is 
in its nature clearly judicial we think too apparent to need 
ai^ument to illustrate its truth. It is so self-evident from the facts 
disclosed tliat it proves itself." ' 

• A case in harmony with the one last referred to was [• 105] 
decided by the Supreme 'Court of Michigan. Under the 
act of Congress " for the relief of citizens of towns upon the lands 

' Lane c. Dorrou), 8 Scam. 212. In Dubois e. McLean, ^McLean, 486, Judge 
Pope asgnmea tliat the cue of Lane t). Dorman decides a special act, authorizing 
an executor to aell lands of the testator to pay debts against his estate, would 
be nnconstilutioual. We do not so understand that decision. On the contrary, 
another case in the same volume, Edwards o. F'p>, p. 465, fully sustains the 
cases before decided, distitiguishing tliem from Lnne c. Dorman. But that indeed 
is also done in the principal case, where the court, after referring to similar cases 
in Kentucky, say : " These cases are clearly distinguished from the case at bar. 
The acts were for the benefit of all the creditors of the estates, without dislinc- 
' tion ; and in one case, in addition, for the purpose of perfecting titles contrailed 
to be made \>j the intestate. The claims of the creditors of the intestate were to 
be eatablisbed by judicial or other aatisfactory legal proceedings, and, in truth 
io the esse last cited, the commissioners were nothing more than special com- 
miasioner*. The legislative department, in passing tbese acts, investigated 
nothing, nor did an act which could be deemed a judicial inquiry. It neither 
examined proof, nor determined the nature or extent of claims ; it merely an- 
Iborized the application of the real estate to the payment of debts generally 
discrimiiiating in favor of no one creditor, and giving no one a preference over 
another. If ot so in the case before us ; the amount is inveatigated and ascer- 
tained, and the sale is directed for the benefit of two persons exdusively. The 
proceeds are to be applied to the payment of such claims and none other, for 
liabilities said to be incurred but not liquidated or satisfied ; and those, too, 
created after the death of the intestate." See also Mason r. Wait, 4 Scam. 127- 
131. The case of Estep o. Hutchmun, 14 S. & R. 435, would seem to be 
more open to question on this point than any of the otherii before cited. It was 
the case of a special statute, authorizing the guardian of infant heirs to con- 
vey their lands in satisfaction of a contract made by their ancestor; and 
which wa* austahied. Compare this with Jones e. Perry, 10 Yer^. &9, where 
an act autborizing a guardian to sell landa to pay the ancestor's debts was held 



[109] 

DiB.1izedOyGoO<^lc 



• 105 coNsnronoNAL limitations. [cb. t. 

of the United States, under certain circumBtaDces," approved May 
23, 1844, and wliicU proTided that the tniat under said act should 
be conducted under such rules and regulations ba may be prescribed 
by the legislative authority of the State,'' i&c., the l^slature passed 
an act authorizing the trustee to give deeds to a person named 
tlierein, and those claiming under him ; thus undertaking to dispose 
of the whole trust to the person thus named and his grantees, and 
authorizing no one else to be considered or to receive any relief. 
This was very plainly an attempted adjudication upon the rights of 
the parties concerned ; it did not establish regulations for the 
administration of the trust, but it adjudged the trust property to 
certain claimants exclusively, in disregard of any rights which 
might exist in others ; and it was therefore declared to be 
' [' 106j void.' And it has also been held that, whether a * corpo- 
ration has been guilty of abuse of authority under its 

■ Cash, Appellant, 6 Hied. 193. The case of Poirera c. Bergen, 6 N. Y. 368, 
if perhaps to be referred to another principle than that of encroachment upon 
judicial authority. That waa a case where the legislature, bj special act, had 
undertaken to authorize the sale of property, not for the purpose of gatiafying 
liens upon it, or of meeting or in any way proTiding for the neceasities or 
wants of the owners, but solely, after paying expenses, for the investment of 
the proceeds. It appears from that case that the executors under the will of the 
former owner held the lands in trust for a daughter of the testator during her 
natural life, with a vested remainder in fee in her two children. The special act' 
assumed to empower tbem to sell and convey the complete fee, and apply the 
proceeds, ^rs^, to (he payment of their commissions, costs, and expenses ; second, 
to the discharge of assessments, liens, charges, and incumbrances on the laud, 
of whidi, however, none were shown to exist; and, tkird, to invest the proceeds 
and pay over the income, after deducting taxes and charges, to the daughter 
during her life, and after her decease to convey, assign, or pay over the same to the 
persons who would be entitled under the will. The court regarded this as an nn> 
authorized interference with private property upon no necessity, and altogether 
void, as depriving the owners of their property contrary to the " law of the land." 
At the same time the authority of those cases, where it has been held that the 
legislature, acting as the guardian and protector of those who are disabled to act 
for themselves by reason of infancy, lunacy, or other like cause, may constitution- 
ally pass either general or private laws, under which an effectual disposition of 
their property might be made, was not questioned. The court cite, with appar- 
ent approval, the cases, among others, of Rice v. Parkman, 16 Mass. 326 ; Coch- 
ran V. Van Surlay, W Wend. 365] and Wilkinson e. Leiand, 2 Pet. 6fi7. The 
case of Ervine's Appeal, 16 Fenn. St. 256, was similar, in the principles involved, 
to Powers s. Bergen, and was decided in the same way. See also Kneasa's Ap- 
peal, 31 Fenn. St. 87, and compare wirfi Kcr o. Kitchen, 17 Penn. St. 438; 
Martin's Appeal, 23 Penn. St. 437 ; Tharp e. Fleming, 1 Houitou, 592. 
[110] 



DiB.1izedOyGoO<^lc 



CH. T.] FOWEBS BXGBOISED BT LEQISLATirS DEPARTMENT. * 106 

charter, bo rb juBtly to subject it to forfeiture,^ and whether a 
widow is entitled to dower in a specified parcel of land,^ are judicial 
queBtioDs which cannot be decided by the legislature. In tbese 
cases there are necesBorily adverse parties ; the questions that would 
arise are essentially judicial, and orer which the courts possess 
jnrisdicdou at the common law ; and it is presumable that legisla- 
tive acts of this character must hare been adopted carelessly, and 
without a due consideration of the proper boundanes which mark 
the separation of legislative from Judicial duties.' 

* We have elsewhere referred to a number of cases where [• 107] 
statutes have been held unobjectionable which validated 

legal proceedings, notwitlistandlDg irregularities apparent in them.f 
These statutes may as properly be made applicable to judicial as 
to ministerial proceedings; and although, when tliey refer to 
such proceedings, tliey may at firBt seem like an interference with 
judicial authority, yet if they are only in aid of judicial proceed- 

■ Stite o. Koyea, 47 Ue. 189 ; CampbeU v. Union Bonk, G Hair. (MisB.) 661 ; 
CwuJ Co. V. Bailrosd Co. 4 G. & J. 122 ; Regents of Univeraity o. Williwns, 9 
G. & J. 966. la MinerB B&uk of Dubuque r>. Umted StaUs, 1 Moms, 432, a 
clnse in s charter autboHziog the legidature to repeal it for any abuae or mia- 
naer of corporate pnvileges was held to refer ibe qaeation of abuse to the legiela- 
tive judgment. The appoiDtmeot of a receiver by the legielatnre for an insol- 
' Tent bank mu auatained in Carey o. Giles, 9 Geo. 253. 

* Edirarda v. Fop«, 8 Scam. 465. 

* The injustice and dangerous character of legislation of this description are 
well stated by the Supreme Court of Pennsylvania : " When, in the exercise of 
proper legislative powers, general laws are enacted which boar, or may bear, on 
the whole community, if tbey are uojust and against the spirit of the constitu- 
tion, the whole commnnity will be interested to procure tlieir repeal by a voice 
potential. And that u the great securi^ for Just and fair legtslatioo. But 
when individnals are selected from the mass, and laws are enacted affecting 
their proper^, without summons or notice, at the instigation of an interested 
party, who Is to stand up for them, thus isolated from the mass, in injury and in- 
JDstioe, or where are they to seek relief from snch acts of despotic power P They 
have no refuge but in the courts, the only secure place for determining conflict- 
ing rights by due course of law. But if the judiciary give way, and, in the lan- 
guage of tfae CSiief Joatice in Greenongh v. Greenongh, in 11 Fenn. St. 494, 
' confesoee itself too weak to stand against the antagonism of the legislature and 
the bar,' one independent co-ordinate branch of the govemment will become the 
subservient handmaid of the other, and a quiet, insidious revolution will be 
eflected in the administration of the government, whilst its form on p^er re- 
mains the same." Ervme's Appeal, 16 Peon. St. 268. 

' Seejwsf, pp. 871-381. 

[HI] 



DiB.1izedOyGoO<^lc 



• 107 CONSTITUTIONAL LIMITATIONS. [CH. T. 

ing8, and tend to tlieir support by precluding parties from taking 
advautoge of errors wliicli do not affect their Bubstantial riglits, 
tliey cannot be obnoxious to the chai^ or usurping judicial power. 
The legislature does, or may, prescribe the rules under wliich the 
judicial power is exercised by the courts ; and in doing so, it may 
dispense witli any of those formalities which are not essential to 
the jurisdiction of the court; and whatever it may dispense with 
by stutute anterior to the proceedings, we believe it may also dis- 
pense with by statute aller the proceedings have been taken, if the 
court has failed to observe any of those formalities. But it would 
not be competent for the legislature to authorize a court to pro- 
ceed and adjudicate upon the rights of parties, without giving 
them an opportunity to be heard before it ; and, for the same rear 
son, it would l>e incompetent for it, by retrospective legislation, to 
make valid proceedings which had been had in the courts, but 
which wepo void for want of jurisdiction over the parties. Such a 
legislative enactment would be doubly objectionable: first, &b an 
exercise of judi'.:ial power, since, the proceedings in court being 
void, it would lio ilie statute alone which would constitute au 
adjudication upon the rights of the parties; and, second, because, 
in all judicial proceedings, notice to parties and an opportunity 
to defend are essential, — both of which they would be deprived 
of in such a cas^.' And for like reasons a statute validatuig 

' In McDaniel t>. Correll, 19 III. 226, it appeftrcd tb&t a (tatnte bad been passed 
to make valid certain legal proceedings by whiih sn allegtd trill was adjudged 
void, and nhitb were had against non-rtaident defendanta, over wbom the courta 
had obtained uo jurisdiction. Tbe court taj: " If it waa competent for tbe legis- 
lature to make a void proceeding valiJ, then it bas beeo done in this case. 
Upon tliia question we cannot for a moment doubt or hesitate. They can no 
morij impart a binding efficacy to a void proceeding, than tbey can take one mkn's 
property from him and give it to another. Indeed, to do the one ia to accomplish 
the other. By tbe decree in this case the will in qufstion wu declared void, 
and, consequently, if effett be given to tbe decree, the legacies given to thoae 
abeeiit defendants by the will are takon from them and given t4> others, according 
to our stBlule ofdeactnta. Unlil the passage of 'he act in question, they were 
not bound by tbe verdiit of the jury in ibis caie, and it could not form the basis 
of a valid di-cree. Uad tbe decree been rendered before the passage of the act, it 
would have been as competent to make that valid aa it was to validate the ante- 
cedent proci-edings upon which alone the decree could rest. The want of joriv- 
diution over the defendanrs wo* as fatal to tlie one as it could be to the other. If 
we assume the act to be valid, then tbe legacies which before belonged to Ibe 
legatees have now ceased to be theirs, and this result baa been brought about 
[112] 



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CH. T.] POWEBS EZEBCISED BY LEOISLATIVB DEPABTUENT. * 108 

proceedings *had before an intruder into a judicial office, [*108} 
before wbom no one ia authorized or required to appear, 
and who oonld hare jurisdictiou neither of the parties nor of the 
subject-matter, would also be void.* 

hj the Ugisladve act ftlone. The effect of the act upon them ia precisely the 
nme as if it had declared in direct terms that the legacies bequeathed by this will 
to these defendantA should not go to them, but should descend to the hein-at-U? 
of the testator, according to our law of descents. This it will not be pretended 
that tbey could do diiectiy, and they hod no more authority to do it indirectly, 
by making proceedings binding upon them which were void in law." 

' In Denny d. Mattoon, 2 Allen, 361, a judge in insolvency had made certain 
orders in a case pending in another jurisdiction, and which the courts subse- 
quently declared to be void. The legislature tben passed an at-t declaring that 
they " are hereby confirmed, and the same shall be taken and deemed good and 
Talid in law, to all intents and purposes whatsoever." On the question of tbe 
validity of this act tbe court lay : " The precise question is, whether it can be 
held to operate so as to confer a jurisdiction OTer parties and prooecdings which 
it has been judicially determined does not exist, and give validity to acts and pro- 
cesses which have been adjudged void. The statement of this question seems to 
ns to suggest the obvious and decisive objection to any construction of the statute 
lAich would lead to suL-h a conclusion. It would be a direct exercise by the 
legislature of a power in its nature clearly judicial, from the use of which it is 
expressly prohibited by the thirtieth article of the DeclsMtion of Eights. The 
line which marks and separates judicial from legislab've duties and functions is 
often indistinct and uncertain, and it is sometimes difficult to decide within whidi 
ot the two classes a particular subject falls. All statutes of a declaratory nature, 
which are designed to interpret or give a meaning to previous enactments, or to 
eonfirm tbe rights of parties either under their own contracts or growing out of 
tbe proceedings of courts or public bodies, which lack legal validity, involve in 
a certain sense the exercise of a judicial power. They operate npon subjects 
which might properly come within the cognizance of the courts and form the 
basil of judicial consideration and judgment. But they may, nevertheless, be sup- 
ported as being within the legitimate sphere of legislative action, on the ground 
that tbey do not declare or determine, but only confirm rights ; that they give 
effect to the acts of parties according to their intent ; that they furnish new and 
Bore efficacions remedies, or create a more beneficial interest or tenure, or, by 
■applying defi;cts and curing informalities in the proceedings of courts, or of 
public officers acting within the scope of their authority, they give effect to acts to 
which there was tbe express or implied assent of the parties interested. Statutes 
which are intended to accomplish such purposes do not necessarily invade tbe 
promote, or directly interfere with the action of judicial tribunals. But if we adopt 
the broadest and most comprehensive view of the piiwer of tbe legislature, we 
mnat place some limit beyond which the authority of the legislature cannot go 
witbont trenching on the clear and well-defined boundaries of judicial power." 
" Althongb it may be difficult, if not impossible, to lay down any general nde 
whi^ may serve to detennine, in all cases, whether the limits of constitutional 
8 [ 113 ] 



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• 109 COHSTlTUnONAL LIMITATIONS. [OH. T. 

[* 109} " Legiaiative IHvorees. 

There is another clasB of cases in which it would seem that 
action ought to be referred exclusively to the judicial tribunals, 

but in respect to which the prevailing doctrine seems to be, 
[•110] that the legislature • has complete control unless specially 

restrained by the State constitution. The granting of di- 
vorces from the bonds of matrimony was not confided to the courts 
in England, and from the earliest days the Colonial and State leg- 
islatures in tliis country Itave assumed to possess the same power 
over the subject which was possessed by the Parliament, and from 
time to time tliey have passed special laws declaring a dissolution 
of the bonds of matrimony in special cases. Now it is clear that 
" the question of divorce involves investigations which are properly 
of a judicial natttre, and the jurisdiction over divorces ought to be 

reitfaint are oTerstepped by the exerciBe hj one branch or the goverament of 
powent exclusively delegated to another, it certainly is practicable to apply to 
each caae as it arises some test by vhich to ascertain whether tliis fundamental 
principle is violated, ir, for example, the practical operation of a statute is to 
determine adversary suits pending between party and party, by subatituting in 
place of the well-settled rules of law the arbitrary will of the legislature, and 
ijiereby controlling the action of (he tribunal before which the suits are pending, 
no one can doubt that it would be on unsathoriEed act of legislation, because it 
directly infringes on the peculiar and appropriate functions of the judiciary. It 
is the exclusive province of the courts of justice to apply established principles 
to cases within their jurisdiction, and to enforce their jurisdiction by rendering 
judgments and exi^cnting them by saitablo process. The legislature hare no 
power to interfere wich this jurisdiction in such manner as to cliange the decision 
of coses pending before courts, or to impair or set aside their judgmenta, or to 
take coses out of the settled course of judicial proceeding. It is on this principle 
tliat it has been held, that the legislotnte have no power to grant a new trial od 
direct a reheoring or o cause which hos been once judicially settled. The right 
to a review, or to try anew facts which have been determined by a verdict or 
decree, depends ou fixed and well-setiled principles, which it is the duty of the 
court to apply in the exercise of a sound judgment and discretion. These can- 
not be regulated or governed by legislative action. Tnylor d. Place, 4 R. I. S24, 
837 ; Lewis v. Webb, 3 Me. 326 ; Dechastellui v. Fairchild, 15 Penn. St. 18. 
A fortiori, on act of the te^aloture cannot set aside or amend final judgments 
or decrees." The court further consider the general subject at length, and 
adjudge the particular enactment under consideration- void, both as an exorcise of 
judicial authority, and also because, in declaring valid the void proceedings in 
insolvency againot the debtor, under which assignees had been appointed, it took 
away from the debtor his property, " not by due process of law or the law of tfae 
lond, but by an arbitrary exercise of legislative will." 

[lU] 



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CH. T.] POWERS EXBBC18BD BY LEGISLATIVE DBPABTMENT. * 110 

confined exclusively to the judicial tribunals, under the limitations 
to be prescribed hj taw ; " ' and so strong is the general couvio- 
tiou of this fact, that the people in framing their constJtuUons, in 
a majority of the States, have poBitively forbidden any such special 

18W8.3 

' 2 Kent. 106. See Levins r. Sleator, S Greene (lom), 607. 

* The following are conatitutiooKl provisions : — AUdmnta : Divorces froin tbe 
bonds of m&trimon}' shall not be granted but in the cases by lair provided for, 
and bj suit in chancery ; but decrees in chancery for divorce shall be final, un- 
less appealed from in the manner prescribed by law, within three months from the 
date of the enrolment thereof. Arkaiuat : The General Assemblj' shall not 
have power to pass'any bill of divorce, but may prescribe by law the manner in 
whk-bflucbcasesmaybeinveBtlgBtedin the courts of justice, and divorces granted. 
CoU/bniM : No divorce shall be granted by the legislatare. The proriuon is 
tbe same or similar in Iowa, Indiana, Maryland, Michigan, Mnnesota, Nevada, 
Nebraska, Oregon, New Jersey, Texas, and WUconeio. Florida ; Divorces from 
the bonds of matrimony shall not be allowed but by the judgment of a court, as 
ahall be prescribed by law. Georgia : The Superior Court shall have exclusive 
jnriadiL-tion in all cases of divorce, both total and partial. Illinois .- Tbe Gen- 
eral Assembly shall not pass . . . special laws ... for granting divorces. £a>i- 
MW : And power to grant divorces is vested - in the District Conrta subject to 
regulations by law. Keatvciy .- Tbe General Assembly shall have no power to 
grant divorces, . . . but by genend laws shall confer such powers on the courts 
of jnstice. Louiaiaaa: Thelegialaturemay enact general laws regalating the , . . 
granting of divorce; but no special laws shall be enacted relating to particular 
or individnal cases. Matsaekiutilt : All causes of marriage, divorce, and alimony 
. . . shall be heard and determined by the Governor and Council, until the legis- 
lature ihall by law make other provision. Mistisiippi : Divorces from the bonds 
of niaferimcMiy shall not be granted but in cases provided for by law, and by 
suit in dtancery. Nae MarKptMre : All causes of marriage, divorce, and alimony 
. . . shall be beard and tried by the Superior Court, until the legislature ahall 
by law make other provision. Nats York : No law s^iall be passed abiidging tbe 
right of the people peaceably to assemble and petition the government, or any 
department thereof, nor shall any divorce be granted otherwise than by due 
jniUcial proceedingi. North Carolina: Ttia General Assembly shall have power 
to pasB general laws regulating divorce and alimony, but shall not have power to 
grant a divorce or secure alimony in any particular case. Ohio : The General 
Assembly shall grant no divorce, nor exercise any judicial power, not herein 
expressly conferred. Pemaylvania : Tbe legislature sboU not have power to 
enact laws annulling the contract of marriage in any case where bylaw the courts 
of this Commonwealth are, or hereafter may be, empowered to decree a divorce. 
Ttnntnee : The legislatnre ahall have no power to grant divorces, but may audior- 
ize tbe courts of justice to grant them for snch causes as may be specified by 
law ; but such laws shall be general and uniform in their operation throughout 
the State. Virginia: The legislature shall confer on the courts tbe power to 
grant divorces, . . . but shall not, by special legislation, grant relief in such 

[116] 



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• 111 C0N8TITOTI0HAL LHHTATIONS. [CH. T. 

[•Ill] *0f the judicial decisions on the snbject of legialetiTe 
power over dirorces there seem to be three classes of cases. 
The doctrine of the first class seems to be this : Tlie granting of a 
divorce may be eitlier a legislative or a judicial act, according as 
the legislature shall refer its consideration to the courts, or reserve 
it to itself. Tlie legislature has the same fall control over the ata- 
ttit of husband and wife which it possesses over tlie other domestic 
relatious, and may permit or prohibit it according to its own vievs 
of what is for the interest of the parties or the good of the public. 
In dissolving the relation, it proceeds upon such reasons as to it 
seem sufficient ; and if inquiry is made into the f^cts of the past, 
it is no more than is needful when any change of the law is con- 
templated, with a view to the establishment of more salutary rules 
for the future. The inquiry, therefore, is not judicial in its nature, 
and it is not essential that there be any particular finding of mis- 
conduct or unfitness in the parties. As in other cases of legisla- 
tive action, the reasons or the motives of the legislature cannot be 
inquired into ; the relation which the law permitted before is now 
forbidden, and the parties are absolved from the obligations grow- 
ing out of that relation which continued so long as the relation 
existed, but wliich necessarily cease with its termination. Mar- 
riage is not a contract, but a status; the parties cannot have vested 
rights of property in a domestic relation ; therefore the legislative 
act does not come under condemnation as depriving parties 
[* 112} of * rights contrary to the law of the laud, but, as in other 
cases within the scope of the legislative authority, the leg- 
islative will must be regarded as sufficient reason for the rule 
which it promulgates.^ 

cues, or in ttny other Cbm of whicb the ccmrta or other tribnnala nwj hare jorit- 
diction, Mitiouri! He legieUtnre sball not pus special Iftwi dirorcing anj 
named parties. Under the Constitution of Michigan it was held that, a* the 
legislature was prohibited from granting divorces, thej could pass no special act 
authorizing the courta to divorce for a cause whidi was not a legal cause for 
divorce under the general lawt, Teft v. Tefl, 8 Mich. 67. See also Clai^ «. 
Clark, ION. H. 987. 

' The leading case on this snbject is Starr v. Pease, 8 Conn. Ml. On tbe 
question whether a divorce is necessarily a jadicial act, the court say : "A fur- 
ther objection is urged agninst tUs act ; tIz., that, by tbe new constitution of 181S, 
there ie an entire separation of the legislative and judicial departmeDts, and that 
tbe legieUture can now pass no act or resolution not dearly warranted bj thkt 
constitution ; that tbe constitution is a grant of power, and not a limitatiint of 

[116] 



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CH. T,] POWBBS EXEBOISJSD BT LBOIBLATIVE DEPABTMENT. * HZ 

• The second oloBS of caaes to which we have alluded [ • 113 ] 
hold that dirorce ia a judicial act in tlioae cases upon 
which the general lawa confer on the courts power to adjudicate ; 
powers ili«ady poueased ; and, in sbort, that tiiere ii no reserved pover in the 
leguUtoTQ since the adoptiou of tbi* conatitution. Fredaely tlie opposite ortbis 
it true. From tbe Mttlement of the State there have been certain fundamental 
raka bj which power has been exercised. These rules were embodied in an 
instrument called by some a constitution, by others a charter. All agree that it 
was tbe first constitution ever made in Connecticut, and made, too, by the people 
tbenuelves. It gave very extensive powers to tbe legiilature, and left too much 
(for it left eveiy thing almost) to their will. The constitution of 18 IS proposed 
to, and in ikct did, limit that will. It adopted certain general principles by a 
preamble called a Declaration of Rights ; provided for tbe election and appoint- 
inent of certain organs of the government, such as the legislative, executive, and 
judicial departments ; and imposed upon them certain restr^nts. It found the 
State aovereign and independent, with a legislative power capable of making all 
lawB neoeaaary for the good of tbe people, not forbidden by tbe Constitution of 
tbe United Stat«B, nor opposed to the sound maxims of legblation; and it left 
diMn in the same condition, except so far as limitations were provided. There 
is now and baa been a law in force on the subject of divorces. The law was 
passed a hundred and thirty years ago. It provides for divorces a vinculo tnalri- 
mrmii in four cases i viz., adultery, jraudalent contract, wilful desertion, and seven 
jeara* absence unheard of. Tbe law has remained in substance the same as it 
was when enacted in 1667. I>UTing all this period the legislature baa interfered 
like tbe Parliament of Great Britain, and passed special acts of divorce a o/n- 
tulo matrimonii; and at almost every session since the Constitution of the United 
States went into operation, now forty-two years, and for tbe thirteen years of 
dte existence of tbe Constitution of Connecticut, snch acts have been, in mulri- 
plied esses, passed and sanctioned by the constitttted authorities of our State. 
W« are not at liberty to inquire into the wisdom of our existing law upon Ibis 
iobject; nor into tbe expediency of such frequent interference of the legislature. 
We <Aa only inquire into the constitutionality of the act under consideration. 
Hie power is not prohibited either by the Constitution of tbe United States or 
bj tbat of this State. In view of tbe appalGng consequences of declaring tbe 
gmeral law of the State, or the repeated acta of our legislature, unconstitutional 
and void, conaequencea easily perceived, but not easily expressed, — such as 
bastardiaiiig tbe issue and subjecting tbe parties to punishment for adultery, — 
the court should come to tbe resnlt only on a solemn conviction that their oaths 
of office and these constitutions imperiously demand it. Feeliug myself no sucb 
conviction, I nnnot pronounce the act void." Per Daggett, J., IJotmer, Cb. J., 
and BiMstU, J., concurring. Pdera, J., dissented. Upon the same subject, see 
Crane e. Meginnis, IG. & J. 463; Wright o. Wright, 2 Md. 429; Gaines d. 
Gaines. 9 B. Monr. 295 ; Cabell v. Cabell, 1 Met. (Ey.) 319 : Diikson t>. Dick- 
•on, 1 Yerg. 110; Melixet's Appeal, 17 Ponn. St. 449; Cronise n. Cronise, 5i 
Peno. St. 255; Adams v. Fabner, b\ Me. 480; Townsend r. Griffin, 4 Harr. 
440; Noel v. Ewing, B Xnd. 37; and the examination of the whole subject by 
Hr. Bishop, in bis work on Marriage and Divorce. 

[117] 



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•113 CONSTITDTIONAL LIMITATIONS. [C^. T. 

and that consequently in tliose cases the legislature cannot pass 
special laws, but its full control over the relation of marriage will 
leave it at liberty to grant divorcee in otiier cases, for such causes 
as shall appear to its wisdom to justify them.' 

A tliird class of cases deny altogether the authority of these 
special legislative enactments, and declare the act of divorce to 
be in its nature judicial, and not properly within the province of 
the legislative power.* The most of tliese decisions, however, 
lay more or leas stress upon clauses in the constitutions other 
than tliose which in general terms separate the legislative and 
judicial functions, and some of them would perliaps have been 
diflferently decided but for those other clauses. But it Is safe to 
say, that the general sentiment in the legal profession is against 
the rightfulness of special legislative divorces ; and it is believed 
that, if the question could originally have been considered by the 
courts, nnembarrassed by any considerations of long acquiescence, 
and of the serious consequences which must result from affirming 
their unlawfulness, after ho many had been granted and new 
relations formed, it is highly probable that these enactments would 
have been held to be usurpations of judicial authority, and we 
should have been spared the necessity for the special constitu- 
tional provisioDs which have since been introduced. Fortunately, 
these provisions render the question now discussed of little prac- 
tical importance ; at the same time that they refer the 
[* 114] decision * upon applications for divorce to those tribunals 
which must proceed upon inquiry, and cannot condemn 
without a hearing.' , 

The force of a legislative divorce must in any case be confined 

■ Levins «. Sleator, 2 Greene (Iow&), 604; Opiaioos of Judgea, 16 Mo. 479; 
Adams e. Palmer, 51 Me. 480. See s]>0 Towrtsend o. OHffin. 4 Harr. 440. In 
a well-reaaoned case in Eeotucky, it waa held that a legialative divorce, ob- 
tained on the application of one of the partiea while suit for divorce was pend- 
ing in a court of competent jurisdiction, would not affect the rights to propert}^ 
of the other, growing out of the relation. Galnea c. Giaines, 9 B. Monr. 29&. 

• Brigham V. Miller, 17 Ohio, 446; Clark v. Clark, 10 H. H. 880; Ponder 
e. Graham. 4 Flor. 23 ; State v. Fry, 4 Mo. 120 ; Brj-Boa v. Campbell, IS Mo. 
498; BrjiBonv. Bryson, 17 Mo. 690. See also Jonea o. Jonea, 13 Penn. St. 
353, 864. 

' If marriage is a natural right, then it would seem that any particular mar- 
riage that parties might lawfully form they muat hare a lawful right to continue 
in, unless by misbehavior they subject themselves to a forfeiture of the right. 
And if the legislature can annul the relaticm in one caw, wilhont any finding 
[118] 



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CH. T.J FOWEBS EZEBCISSD BT LCaiSLAXtTE DEPABTHENT. * 114 

to a dissolution of the relation ; it can only be justified on the 
gronnd tliat it mere); lays down a rule of conduct for the parties 
to observe towards each other for tlie future. It cannot inquire 
into the past, with a view to punish the parties for their oSences 
against the marriage relation, except so far as the divorce itself 
can be regarded as a puniahment. It cannot order the payment of 
alimouy, for that would be a Judgment ; ^ it cannot adjudge upon 
conflicting claims to property between the parties, but it must leave 
all questions of this character to the courts. Those rights of 
property wliich depend upon the continued existence of the relation 
will be terminated by the dissolution, but only as in any other case 
rights iu the future may be incidentally affected by a change in 
tlie law.^ 

Legislative Uncroachmentt upon Executive Power. 

If it is difficult to point out the precise boundary which sep- 
arates legislative from judicial duties, it is still more difiicult to 
discriminate, in particular cases, between what is properly legis- 
lative and what is properly executive duty. The authority that 
makes the laws has large discretion in determining the means 
through which they shall he executed ; and the perform- 
ance of * many duties which they may provide for by law, [* 115] 
they may refer either to the chief executive of the State, 
or, at their option, to any other executive or ministorial officer, or 
even to a person specially named for the duty. What can be defi- 
nitely sud on this subject is this : That such powers as are specially 
conferred by the constitution upon the governor, or upon any 
specified officer, the l^islature cannot authorize to be performed 

lliftt a breach of the maniige contract has been committed, t))eii it would seem 
that they might annul it in eTeiy case, and even prohibit all parties from entering 
into the same relation in the future. The recognition of a full and complete 
control 1^ the relation in the legislatnre, to be exerci^d at its will, leada in- 
eritably to this conclnaion ; so that, under the " rightful powers of legisladon " 
which avx constitutionE confer upon the legislative department, a relation essen- 
tial to organized civil society might be abrogated entirely. Single legislative 
divorces are but single steps towards this barbariam which the application of the 
same principle to every individjal case, by a general law, wonld necessarily bring 
upon ns. See what is said by the Supreme Court of Missouri in Brjson v. Bry- 
*0D. 17 Mo. 593, S94. 

■ Crane o. Meginnis, 1 G. ft J. 463. 

■ SUrr V. PeaM, 8 Conn. 645. 

[119] 



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• 115 CONSTITDTIONAL UM1TATI0N8. [CH. T. 

b; any other officer or authority ; and from those duties which the 
constitutioa requires of him he cannot be excused by law.^ But 
other powera or duties the ozecative cannot exercise or assume 
except by legislative authority, and the power wliich iu its diaoro- 
tion it confers it may also witlihold or confer in other directions.^ 
Whether in those cases where power is given by the constitutioa 
to the governor, the legislature have the same authority to make 
rules for the exercise of the power, that they have to make rules 
to goveru the proceedings in the courts, may perhaps 
[* 116} be a question.^ It would seem * that tliis must depend 

' Attomey-Generd o. Brown, I Wis. 622. " Wliatever power or duty is 
expreasly given to, or imposed upon, the executive department, is altogether free 
from the iDtetforence of the other branufaes of the government. ' Especially is 
this the cue where the sabject is committed to the ducrelton of the chief executive 
officer, either by the conatitution or by the l&ws. So long aa the power ia vested 
in him, it ia to be by him exercised, and no other branch of the government can 
control ita exercise.'" Under the Constitution of Ohio, which forbids the exercise 
of any appointing power by the legislature, except as therein authorized, it wia 
held that the legislature could not, by law, constitute certain designated persons 
a State board, with power to appoint commissioners of the State Honae, and 
directors of the penitentiary, and to remove aucfa directors for cause. State V. 
Eennon, 7 Ohio, N, 8. 546. And see Davis c. State, 7 Md. 161. 

' " In deciding this question [as to the authority of the governor], recurrence 
must be had to the constitution. That furnishes the only rule by which the court 
can be governed. That ia tbe charter of the governor's authority. All the pow- 
ers delegated to him by, or in accordance with that instrument, he is entitled to 
exercise, and no others. The constitution is a limitation upon the powers of the 
legislative department of the government, but it is to be regarded as a grant of 
powers to the other departments. Neither the executive nor the judiciary, 
therefore, can exercise any authority or power except such as is clearly granted 
by tbe conatitution." Field r. People. 2 Scam. SO. 

* Whether tbe legialature can constitutionally remit a fine, when the pardon- 
ing power ia vested in the governor by the constitution, has been made a qnesljon ; 
and tiie cases of Haley o. Clarke, 26 Ala. 139, and People c. Biniham. 12 Cal. 
60, are opposed to each other upon the point. If tbe fine is paj-able to the 
State, perhaps the legislature ahoald be considered as having tbe same ri^t to , 
discharge it that they would have to release any other debtor to the State from 
his obligation. In Morgan v. BuffingtoD, 21 Mo. 549, it was held that the State 
Auditor waa not obliged to accept aa conclusive the oert^cate fVom the Speaker 
of the Uouae ss to the sum due a member of the House for attendance upon it, 
but that he might lawfully inquire whether the amonnt had been actually earned 
by attendance or not. The legislative rule, therefore, cannot go to the extent 
of compelling an executive officer to do sometbtng else than his duty, undec any 
pretence of regulation. Tbe power to pardon offenders is vested by the several 
State constitutions in the governor. It is not, however, a power wliich necea* 
[120] 



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CH. ▼.] POWERS EXERCISED BT LEGISLATIVE DEPARTMENT. * 116 

generally upon the nature of the power, and upon the ques- 
tion whether tlie conatitutiou, in conferring it, has furnished a 
sufficient rule for its exercise. If complete power to pardon is 
conferred upon the executire, it may be doubted if the legislature 
can impose restrictioua under the name of rules or regulations ; 
bat when the governor is made commander-in-chief of the military 
forces of the State, his authority must be exercised under such 
proper rules as the l^i;islature may prescribe, because the military 
forces are themselves under the control of the legislature, and 
military law is prescribed by that department. There would be 
tliis clear limitation upon the power of the legislature to prescribe 
rules for the executive department, that they must oot be such as, 
under pretence of regulation, divest the executive of, or preclude 
his exercising, any of his constitutional prerogatives or powers. 
Those matters which the constitution specifically confides to him 
the I^slature cannot directly or indirectly take fix>m hia control. 



Delegating Legislative Power. 

One of the settled maxims iu constitutioDal law ia, that the 
power conferred upon the legislature to make laws cannot be 
delegated by that department to any other body or authority. 
Where the sovereign power of the State has located the autliority, 
Uiere it must remain ; and by the constitutional f^ncy 
alone 'the laws must be made until the constitution [*11T3 
itself is changed. The power to whose judgment, wis- 
dom, and patriotism this high prerogative has been intrusted 
cannot relieve itself of the respooaibility by choosing other ageo- 
des upon which the power shall be devolved, nor can it substitute 

Mrilj mberea in the executiTe. St»te v. Dunning, 9 Ind. 22. And Beversl of 
the State conttitotions h»Te provided tbst it shall be exercised under such regu- 
Utioni M ihall b« pre*eribed b^ law. There are provisions more or leea broad 
Vo tfaia purport in those ofKaniaa, Florida, Alabama, Arkansas, Texas, MissisBippi, 
Oregon, Indiana, Iowa, and Virginia. In State c. Dnnning, 9 Ind. 20, an act of 
the l^slatuT« r«quiriDg the applicant for tbe remission of a fine or forfeiture 
Ip (brwaid to tbe governor, with his application, the opinion of certain counlf 
officvn MB to the propriety of the remission, was sustained as an act within 
tbe pcMrcT conferred hy the constitution upon the legislature to prescribe regu- 
latioDC in tbeM cases. And see Braoham v. Laoge, 16 Ind. 600. The power 
V> rqniave ii not indnded in tbe power to pardon. Ex parte Howard, 17 'S. H. 
M6. 

[121] 



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* 117 CONSTITUTIONAL LIMITATIONS. [CH. T. 

the judgment, wisdom, and patriotism of any other body for those 
to which alone the people have seen lit to coufide this sovereigii 
trust.^ 

But it la not always essential that a legislatire act should be a 
completed statute which must in any event take effect as law, at the 
time it leaves the hands of the legislative department. A statute 
may be conditional, and its taking effect may be made to depend 
upon some subsequent event^ Affirmative legislation may in some 
cases be adopted, of which the parties interested are at liberty to 
avail themselves or not at their option. A private act of incor^ 
poration cannot be forced upon the corporators ; they may refuse 

the franchise if they bo choose.^ In these cases the !eg- 
[* 118] islative * act is regarded as complete when it has passed 

through the constitutional formalities necessary to per- 
fected legislation, notwithstanding its actually going into operation 

* " These are the bounds which the trust that is put in them by the society, and 
the law of God and nature, have set to the legislative power of every commoo- 
wealth, in all forms of government : — 

' ' Fifiit. They are to govern by promulgated established lavs, not to be varied 
in particular cases, but to have one rule for nch and poor, for the favorite at 
court and the countryman at plough. 

" Secondly. These laws also ought to be designed Ibr no other end ultimately 
but the good of the peuple. 

" Thirdly, Tbey must not raise taxes on the property of the people wiiltout 
the consent of the people, given by themselves or their deputies. And tluB 
properly roneems only such governments where the legislative is always in being, 
or at least where the people have not reserved any part of the legislative to 
deputies, to be from time to time chosen by themselves. 

" Fovrtkly. The legislative neither must nor can transfer the power of making 
laws to anybody else, or place it anywhere but where the people have." Locke 
on Civil Government, § 143. 

That legislative power cannot be delegated, see Thome v. Crnmer, 15 Barb. 
112 ; Bradley e. Baxter, ib. 122 ; Barto v. Himrod, 8 N. Y. 483 ; People e. Stout, 
2S Barb. 349; Ri::e v. Foster, 4 Harr. 479; Sanio v. State, 2 Iowa, 165; Gee- 
brick t>. State, 5 Iowa, 491 ; State o. Beneke, 9 Iowa, 203 ; People v. Collins. 
S Mich. 243 ; Railroad Co. e. Commiiaionere of Clinton County, 1 Ohio, k. a. 
77 ; Parker r. Commonwealth, 6 Penn. St. 507 ; Commonwealth v. MuWilUama, 
11 Penn. 8t. 61 ; Maize v. Stale, 4 Ind. 342 ; Meshmeier c. State. 11 Ind. 482 ; 
State 0. Parker, 26 Vt. 362 ; State e. Swisher, 17 Texas, 411 ; State v. Copeland, 
8 R. I. 33 i Stale v. Wilcox, 45 Mo. 458. 

* Brig Aurora D. United States, 7 Crancb, S82 ; Bull v. Read, 13 Grat. 78 ; 
Bute D. Parker, 26 Vt. 857 ; Peck t>. Weddell, 17 Ohio, n. a. 271 ; State t>. 
Kirkley, 29 Md. 86. 

' Angell and Ames on Corp. § 81, 

[122] 



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CB. T.] POWERS EXERCISED BT LBGISLATITE DEPARTUENT. * 118 

as law may depend upon its subsequent acceptance. We have 
elsewhere spoken of municipal corporations, and of the powers of 
l^slation which may he and commonly arg bestowed upon Uiem, 
and the bestowal of which is not to he considered as trenching 
upon the maxim that legislatiTe power is not to be delegated, since 
that maxim is to be underatood in the light of the immemorial 
practice of this country and of England, which has always recog- 
nized the propriety of Testing in the municipal organizations cer- 
tain powers of local regulation, iu respect to which the parties 
immediately interested may fairly be supposed more competent to 
judge of their needs than any central authority. As municipal 
oi^nizations are mere auxiliaries of the State government in the 
important business of municipal rule, the legislature may create 
them at will ttom its own views of propriety or necessity, and 
without consulting the parties interested ; and it also possesses the 
like power to abolish them, without stopping to inquire what may 
be the desire of the corporators on that subject.^ 

Nevertheless, as the corporators have a special and peculiar 
interest in the terms and conditions of the charter, in the powers 
conferred and liabilities imposed, as well as in the general ques- 
tion whether they shall originally be or afterwards remain incor- 
porated at all or not, and as the burdens of municipal government 
must rest upon their shoulders, and especially as by becoming 
iucorporated they are held, in law, to contract to discharge the 
duties the charter imposes, it seems eminently proper that their 
voice should be heard on the question of their incorporation, and 
tJiat their decision -should be conclusive, unless, for strong reasons 
of State policy or local necessity, it should seem important for the 
State to overrule the opinion of the local majority. The right to 
refer any legislation of this character to the people peculiarly 
interested does not seem to be questioned, and the reference is by 
no means unusual.' 

' CityofPattertonti. 8o<aety,&c.,4Zftb. 886;Cbeany r. Hooser, 9B.Monr. 
S30 ; Berlin v. GorhRm, 94 N. H. 266. Tbe question of « levee tax m&j lawfully 
be reTerred to the voters of the district of tenilory over which it Is proposed to 
(preid the tu, regardleaB of municipal diviBions. Aloom v. H&mer, 38 Miu. 
6A2. And «ee in general, Angell and Ames on Corp. g 81 and note ; also post, 
pp. 190-192. 

■ Ball V. Read, 13 Grat. 78; Coming P. Greene, 23 Barb. S3; Morford 0. 
Unger, 8 Iowa, 82 ; City of Pattereon n. Society, &c., 4 Zsb. 3S5 ; Gorham 
p. Springfield, 31 Me. 58; CommoDwealthe. Judges of Quarter Sessions, 8 Feno. 

[123] 



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• 119 cONSrmmoHAL limitatiomb. [ch. t. 

[• 119] * For the like reasons the question whether a county or 
township shall be divided and a new one formed,^ or two 
townships or school districts formerly one be reunited,^ or a county 
seat located at a particular place, or after its location removed 
elsewhere,^ or the municipality contract particular debts, or engage 
in a particular improvement,* is always a question which may 

St. 391 ; Commonwealth n. Punter, 10 Peno. St. 214 ; Call b. Chsdbourre, 46 
Me. 206 ; State v. Scott, 17 Mo. 521 ; State v. Wilcox, 46 Mo. 458 ; Hobart p. 
Saperviaors, &c., 17 Cal. 23 ; Bank of Chenango o. Brown, 26 N. T. 467 ; 
Steward V. Jefferson, 8 Harr. SS5; Burgess o. Pae, 2 Gill, 11. The right to 
refer to the people of vevertLl municipalities the queition of their consoUdatioa 
was disputed in Smith v. McCarthy, 56 Penn. St. 359, but suataiDed by the 

' SUte F, Reynold*, 5 Gilm. J. 

' Commonwealth r. Judges, &c., 8 Penn. St. 391 ; Call v. Chadboume, 46 
Ue. 206. 

' Oommonwealth v. Painter, 10 Penn. St. 214. 

' The following are casen in which municipal Subscriptions to works of inter- 
nal im prove meot, under statutes empowering them to be made, have been sus- 
tained: Gaddia v. Crump, 8 Leigh, 120; Bridgeport i>. Housatonic Railroad 
Co. 15 Conn. 475 ; Thomas v. Leland, 34 Wend. 66 ; Clarke s. Rochester, 24 
Barb. 446; Benson c, Mayor, &c., of Albany, 24 Barb. 248; Corning e. Greene, 
28 Barb. 33 ; Grant t>. Courier, 24 Barb. 232 ; Starin t>. Genoa, 29 Barb. 442. 
and 23 N. Y. 439 ; Bank of Rome e. Village of Rome. 18 N. T. 38 ; Pretty- 
man p. Supervisors, &p., 19 111. 406 ; Robertson r. Rockford, 21 III. 461 ; John- 
son V. Stack, 24 111. 76 ; Perkins u. Perkins, ib. 208 ; Bushnell v. Beloit, 10 Wis. 
195 ; Clark e. Janesville, ib. 136 ; Stein v. Mobile, 24 Ala. 591 ; Major of We- 
tumpka p. Winter, 29 Ala, 651; Pattison o. Yuba, 13 Cal. 176; Blanding v. 
Ban, ib. 348; Hobart d. Supervisors, &e., 17 Cal. 23; Dubuque County p. 
Railroad Co. i Greene (Iowa), 1; State v. Bissell, ib, 328; Clapp d. Cedar 
County, 5 Iowa, 15 ; Gwces p. Robb, 8 Iowa, 193 ; McMillen v. Boyles, 6 Iowa, 
304; Taylor v. Newberne, 2 Jones Eq. 141 ; Caldwell v. Jueticea of Burke, 4 
Jones Eq. 323 ; Louisville, &c., Railroad Co. v. Davidson, 1 Sneed, 637 ; Nichol 
p. Mayor of Nashville, 9 Humph. 262 ; Railroad Co. p. Commissioners of Clinton 
Co. 1 Ohio, H. 8. 77 ; Trustees of Paris v. Cherry. 6 Ohio, ». 8. 561 ; Cus 
D. Dillon, 2 Ohio, k. 8. 607 ; State p. Commissiouers of Clinton Co. 6 Ohio, 
M. B. 280 ; State d. Tan Home, 7 Ohio, n. 8. 327 ; State p. Trustees of Union, 
8 Ohio, N. s. 394 ; Trustees, &c. p. Shoemaker. 12 Ohio, K. a. 624 ; State p. 
Commissioners of Hancock, 12 Ohio, n. a. 596 ; Powers c. Dougherty Co. 23 
Geo. 65 ; San Antonio p. Jones, 28 Texas, 19 ; Commonwealth v. McWilliama, 
U Penn. St. 61 ; Sharpless P. Mayor, &c., 21 Penn. St. 147 ; Moera p. Reading, 
ft. 188 ; Talbot v. Dent, 9 B. Monr, 526 ; Slack v. Railroad Co. 13 B. Monr. 1 ; 
City of St. Louis v. Alexander, 23 Mo. 483; City of Aurora p. West, 9 Ind. 74; 
Cotton p. Commissioners of Leon, 6 Flor. 610; Copes p. Charleston, 10 Rich. 
491 ; Commissioners of Knox County p. Aspinwall, 21 How. 539, and 24 How. 
SS£ ; Same e. Wallace. 21 How. 547 ; Zabriske P. Railroad Co. 28 How. 381 ; 
[124] 



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CH. T.] POWBBS EXBBCISBD BT UJOIBLATITB DEPARTKENT. •119 

iri& propriety be referred to the voters of the municipality Tor 
decision. 

The question then arises, whether that which may be 
done in * reference to any municipal organization within [* 12Uj 
the State may not also be done in reference to the State 
ftt large ? Hay not any law framed for the State at lai^e be made 
conditional on an acceptance by the people at large, declared 
.through the ballot-box ? If it is not unconstitutional to delegate 
to a single locality the power to decide whether it will be governed 
by a particular charter, must it not quite as clearly be within the 
power of the l^Ulature to refer to the people at large, from whom 
all power is derived, the decision upon any proposed statute affect- 
ing the whole State ? And can that be called a delegation of power 
which consists only in the agent or trustee referring back to the 
principal the final decision in a case where tlie principal is the party 
concerned, and where perhaps there are questions of policy and 
propriety involved which no authority can decide so satisfactorily 
and so conclusively as tlie principal to whom they are referred. 

If the decision of these questions is to depend upon the weight 
of judicial authority up to the present time, it must be held tliat 
there is no power to refer the adoption or rejection of a general law 
to the people of the State, any more than tliere is to refer it to any 
other autliority. Tlie prevailing doctrine in the courts appears to 
be, that, except in those cases where, by the constitution, the 
people have expressly reserved to themselves a power of decision, 
the function of legislation cannot he exercised by them, even to the 
extent of acceptii^ or rejecting a law which has been framed for 
tlieir consideration. " The exercise of tliis power by tlie people in 
other cases is not expressly and in terms prohibited by the consti- 
tution, but it is forbidden by necessary and unavoidable implication. 
The Senate and Assembly are the only bodies of men clothed with 

Aniey e. Mayor, Ac., 24 Dow. 365 ; Gelp«cka v. Dubuque, 1 Wal. 175 ; Thomp- 
MD 0. Lee CoudQ', 3 WaI. 327 ; Rogers d. Burliogton, ib. 654 ; Butler v. Dun- 
iuun, 27 HI. 474 ; Gibbons D. Mobile & Great Nortbern Railroa'I Co. 36 Ala. 
110; St. Joseph, &c. Railroad Co. v. Buchanan Co. Court, 39 Mo. 465; State 
p. LioD Co. Court, 44 Mo. 501. In several of tbem the power to authorize the 
mnnicipalitiea to dedde upon such subscriptiooa baa been contested as a delega- 
tion of legislative authority', but tbe courts — even tbose which hold the subscrip- 
tioni void on other gronnda — do not look upon these cases as being obnoxious 
to the cwistitutional principle referred to in tbe text. 

[125] 



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• 120 CONSTITUTIONAI, LIMITATIONS. [CH, T. 

the power of general legislation. They possesH the entire power, 
with the exception above stated. Tiie people reseryed no part of it 
to themseires [ with that exception ] , and can therefore exercise it 
in no other case." It is therefore held that the legislature have no 
power to submit a proposed law to the people, nor have the people 
power to bind each otlier by acting upon it. They voluntarily 
surrendered that power when tltey adopted the constitution. The 
goverument of the State is democratic, but it is a representative, 
democracy, and in passing general laws the people act only through 

their representatives in the legislature.^ 
[* 121] * Nor, it seems, can such* legislation be sustained as 

legislation of a conditional character, whose force is to 
depend upon the happening of some future event, or upon some 
future change of circumstances. " The event or change of circum- 
stances ou which a law may be made to take effect must be such 
as, in the Judgment of the legislature, affects the question of the 
expediency of the law ; an event on which the expediency of the law 
in Uie opinion of the law-makers depends. On this question of 
expediency, the legislature must exercise its own Judgment 
deliuitivety and finally. When a law is made to take effect upon 
the happening of such an event, the legislature in effect declare the 
law inexpedient if the event should not happen, but expedient if it 
should happen. They appeal to no other man or men to Judge for 
them in relation to its present or future expediency. They exer- 
cise that power themselves, and then perform the duty which the 

■ Per Sagglea, Ch. J., in Barto c. Himrod.SN. Y. 489. It ia wortlif of con- 
siduratbu, liovrever, wheCber tbere ia any thing ia the referenee of a statute to 
the people for acceptttni^ or rejection which ia inconaiatent with the representa- 
tive ayateni of government. To refer it to the people to frame and agree upon 
a statute for tbemaelvea would be equally impracticable and inconaistent yritb 
the represvntativo system ; but to take the oplDion of the people upon a bill 
already framed by represeotativea and submitted to them, ia not only practicable, 
but is in predse accordance with the mode in which the constitution of the State 
is adopted, and wilh the action which is talcen in many other cases. The repre- 
sentative in these cases baa fulfilled preciaely thoae funi'tiona which the people aa 
a democracy could not fulfil; and where the case has reached a atage when the 
body of the people can act without confusion, the representative haa stepped 
aside to allow their opinion to be expreaeed. The legislature is not attempting 
in such a case to delegate its authority to a new agency, but the trustee, veated 
with a lai^c diacrctionary authority, is taking the opinion of the principal upon 
the necessity, policy, or propriety of an act which is to govern the principal 
himself. 

[126J 



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CH. T.] POWEEtS EXE8GI8ED BT LEOiaLATiVB DEPABTHENT. * 121 

oonstitution imposes upon tliem." But it was held that in the case 
of the submission of a proposed free-school law to the people, no 
such event or change of circumstances aBecting the expediency of 
the law was expected to happen. The wisdom or expedienc; of the 
School Act, abstractly considered, did not depend on the vote of the 
people. If it was unwise or inexpedient before that vote was taken, 
it was equally bo afterwards. The event on which the act was to 
take effect was nothing else than the vote of the people on tlie 
identical question which the constitution makes it the duty of the 
legislature itself to decide. The legislature has no power 
to make a statute dependent on such a 'contingency, [*1223 
because it would be confiding to otlters that legislative 
discretiou which tliey are bound to exercise themselves, and which 
they canuot delegate or commit to any other man or men to be 
exercised.' 

' Per JtuggUt, Ch. J., in Barto v. Himrod, 8 N. T. 490. And see Santo e. 
State, 2 Iowa, 165 ; State n. Beneke, 9 Iowa, 203 ; State n. Swisher, 17 Texas, 
441 ; State c. Field, 17 Mo. 529 ; Bank of Chenango v. Brown, 26 N. Y. 470 ; 
People V. Stout, 23 Barb. 349 ; Stale v. TVilcoi, 46 Mo. 468. But upon this 
point there is great force in what is said bj Bedfield, Ch. J. in State v. Parker, 
S6 Yt. 3fi7 : " If the operation of a law may furly be made to depend upon a 
future coatiDgeD(.7. then, in my apprebenaion, it makes do easential difference 
what is the natiiri> of the contiiigen(y, go it be an equal and fair one, a moral and 
legal one, not opposed to sound policj', and so far connected with the object and 
purpose of the statute as not to be a mere idle and arbitrary one. And lo us the 
(ontingeni^y, upon which the present statute was to be suspended until another 
legislature sfaonld meet and have opportunity of reconsidering- it, was not only 
fTOper and legal, and just and moral, but highly commendable and creditable to 
tbe legislature who passed the statute; for at the very threshold of inqitiry into 
the expediency of such a law lies the other and more important inquiry, Are the 
poople prepared for such a tawP Can it be successfully enforced? These qnes- 
tioni beisg answered in the affirmative, he must be a bold man who would even 
Tote agatnst the taw; and something more must be be who woald, after it had 
been pasam) with ^at assurance, be willing to embarrass its operation or rejoice 
at its defeat. 

" Alter a fiill examination of tbe arguments by which it is attempted to be 
SDStaJDed that atatutes made dependent upon such contingencies are not valid 
laws, and a good deal of study and reflection, I mnat declare that I am fully 
oonTiTtced — although at firat, without much examination, somewhat inclined to 
tbe sane opinion — rbat the opinion is the result of false analogies, and so founded 
npon a latent fallacy. It seems to me that the distinction attempted between 
the contingency of a popular vote and other future conlingendes is without alt 
just fbnndation in sound policy or sound reasoning, and tiiat it has too olten been 
■lade more from necessity than choice, — rather to escape from an overwhelming 
analogy than from any obvioug dlSerence in principle in tbe two classes of cases ; 

[127] 



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• 128 OOKSTITDTIONAL LIMITATIONS. [CH. T. 

[* 123] * The same reasons which preclude the original enact- 
ment of a law from being referred to the people would 
render it equall; incompetent to refer to their decision the ques- 
tion, wliether an existing law should be repealed. If the one la 
" a plain surrender to the people of the law-making power," so olao 
is the other.' It would seem, however, that if a legislative act is, 
bf its terms, to take effect in any contingeuc;, it is not unconstitu- 
tional to make the time when it sliall take effect depend upon the 
event of a popular vote being for or against it, — the time of its 
going into operation being postponed to a later day in the latter 
contingency.* It would also seem that if the question of the 
acceptance or rejection of a municipal charter can be referred to 
tho voters of the locality specially interested, it would be equally 
competent to refer to them tlie question whether a Stat« law estab- 
lishing a particular police regulation should be of force in such 
locality or not. Municipal charters refer most questions of local 

for . . . one maj' find any number of cases in the legislation of Congress, wbere 
sUtatet have been made depcDdent apon the shifting character of the revenue 
laws, or the navigation laws, or commercial rules, edicts, or restrictions of other 
countries. In some, perhaps, these lavs are made by representative bodies, or, 
it may be, by the people of these States, and in others by the lordu of the treas- 
ury, or the boards of trade, or by the proclamation of the Bovereign ; and in all 
these cases no qtieetion can be made of the perfect legality of our acta of Congress 
being made dependent upon such contingencies . It is, in fact, the only possible 
mode of meeting them, unless Congress is kept constantly in session. The same 
is true of acts of Congress by which power is *ested in the President to levy 
troops or draw money from the public treasury, npon the contingency of a decl^ 
ration 6r an act of war committed by some foreign state, empire, kingdom, prince, 
or potentate. If these illustrations are not sufficient to show the fallacy of the 
argument, more would not avail." See also State v. Noyea, 10 Fost. 292; BuU 
V. Read, la Grat. 78 ; Johnson n. Rich, 9 fiari). 680 ; State e. Beynolds, 6 Gilm. 
1 ; Robinson t>. Bidwell, 22 Cal. 349. 

■■Geebrickn. State, 5 Iowa, 491; lUce r. Foster, 4 Harr. 492*; Parker v. Com- 
monwealth, 6 Penn. St. 607. 

■ State V. Parker, 26 Vt. 367. The act nnder consideration in that case was, 
by its terms, to take effect on the second Tuesday of March after ita passage, 
unless the people, to whose votes it was submitted, should declare against it, in 
which case it ahould take effect ia the following December. The case was dis- 
tinguished from Barto c. Himrod, 8 N. Y. 4S3, and the act sustained. At the 
same time the court express their dissent from the reasoning upon which the New 
Yo:l case rests. In People v. Collins, 3 Mich. 343, the courtwas equally divided 
in a case similar to that in Vermont, except that in the Michigan case the law, 
which was passed and submitled to the people in 1863, was not to go into efiect 
mttil 1870, iftlie vote of the people was against it. 
[128] 



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CH. T.] POWEBS EMBCIB^D BY LEGISLATITE DEPABTUENT. * 128 

goTerament, mdudiog police regulations, to the local authoritiea ; 
on tbe supposition that they are better able to decide for them- 
selvefi upon the needs, as well as the sentiments, of their constitu- 
mts, than the legislature possiblj can be, and are therefore more 
competent to judge what local regulations are important, and also 
how far the local sentiment will assist in their enforcement. The 
same reasons would apply in favor of permitting the people of the 
locality to accept or r^ect for themselves a particular police regu- 
lation, since this is only allowing them less extensive powers of 
local government than a munioipal charter would confer ; and the 
&fit that the rule of law on that subject might be different 
in different * looalilaes, according as the people accepted or [* 124] 
Kjected the regulation, would not seem to affect the prinoi- 
}de, when the same result is brought about by the different regula- 
tions which municipal corporations establish for themselves in the 
exercise of an undisputed authority.' It is not to be denied, 
however, that there is considerable authority agaiimt the right of 
legislative delegation in these cases. 

The legislature of Delaware, in 1847, passed an act to authorize 
tbe citizens of the several counties of the State to decide by ballot 
whether tbe license to retail intoxicating liquors should be permit- 
tod. By this act a general eieoUou was to be held : and if a 

' In New Uunpshire ui aciwa* pawed declutng bow1ing-&ll0}'s, sitaste nitbtn 
tweotj-five rods of m dweUing-bouBe, noisanceB ; but the statute wm to be in 
force only in those towns in irhich it should ba adopted in town meeting. In 
StMe V. "Sojtt, 10 FoBt. 293, this act was held to be constitutional. " AsBumlng," 
uj tke court, " that the legislature has tbe rigbt to confer the power of local 
regnlatian upon cities and towns, that is, the power to pass ordinances and by- 
laws, in such terms and with snch pnmsions, in die classes of cases to which the 
power extends, as they may think proper, it seems to ns hardly possible seriously 
to contend that the legislature may not confer tbe power to adopt within such 
mnnidpalitj a law drawn up and framed by themselves. If tbey may pass a 
law authoricing towns to make ordinances to punish tbe keeping of billiard-rooms, 
bowling-alleys, and other places of gambling, they may surely pass laws to punish 
Ibe same acts, subject to be adopted by the town before they can be of force in 
it." ' And it seems tons difficult to answer this reasoning, if it be confined to sacb 
lam as fall within the proper province of local government, and which are there- 
fore usually referred to the judgment of the municipal authorities or their constit- 
uency. A similar question arose in Smith t>. Village of Adrian, 1 Mich. 495, bat 
WM not decided. In Bank of Chenango d. Erown, 26 N. Y. 467, it was held 
competent to antfaolize the electors of an incorporated village to determine for 
themselres what sectiotu of the general act for the incoi^ratioD of villages should 
applv to their village. 

8 [129] 



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• 124 CONBTITUTIOHAL LmiTATIONS. [CH. Y. 

majority of votes in any county sbotild be cast against license, it 
should not thereafter be lawful for any person to retail intoxicat- 
ing liquors within aucb county ; but if the majority should be cast 
in favor of license, then liccDses might be granted in the county 
so voting, in the manner and under the regulations in said act 
prescribed. The Court of Errors and Appeals of that State held 
this act void, as an attempted delegation of the trust to make laws, 
and upon the same reasons whicli support the cases before cited, 
where acts liave been held void whicli referred to the people of the 
State for approval a law of general application.^ The same de- 
cision was made near the same time by the Supreme 
[• 125] • Court of Pennsylvania,^ followed afterwards in an elabo- 
rate opinion by the Supreme Court of Iowa.* 
By statute in Indiana it was enacted that no person should 
retail spirituous liquors, except for sacramental, mechanical, chem- 
ical, medicinal, or culinary purposes, without the consent of the 
minority of the legal voters of the proper township who might cast 
tlieir votes for license at tlie A.pril election, nor without filing with 
the county auditor a bond as therein provided ; upon the filing of 
which tlie auditor was to issue to the person filing tlie same a 
license to retail spirituous liquors, which was to be good for one 
year from the day of the electioa. Tliis act was held void upon 
similai' reasons to those above quoted.* This case follows the 
decisions in Pennsylvania and Delaware,^ and it has since been 
followed by another decision of the Supremo Court of that State, 
except that while in the first case only that portion of the statute 
which provided for submission to the people was held void, in the 
later case that unconstitutional provision was held to afiect tlie 
whole statute with infirmity, and render the whole invalid.^ 

Irrfpealable Law». 
Similar reasons to those which forbid the legislative department 
of tlie State from delegating its authority will also forbid its pass- 
■ Rice D. Foater, 4 Hut. 479. 

* Parker t>. Commonwullh, 6 Penn. St. 507. 

* Geebriuk v. State, 6 lova, 496. 

* Maise V. Sl«te, 4 iDd. S42. 

' Parker v. Commonwealth, 6 Penn, St. 507 1 Kce v. Foater, 4 Harr. 479. 
See also State v. Field, 17 Mo. 629; Commonwealth e. McWilliams, 11 Peon. 
St. 6t ; State v. Copeland, S R. I. 33. 

* Meshmeier v. State, 11 Ind. 484. 

[130] 



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CH. T.] POWERS EXERCISED BY LEQISIATIVE DBPABTMENT. • 125 

ing any irrepealable law. The couBtitution, in confening the leg- 
islative authority, has prescribed to its exercise any limitations 
which the people saw fit to impose ; and no other power than tlie 
people can superadd other limitations. To say that the legislature 
may pass irrepealable laws, is to say that it may alter the very 
constitQtioQ from which it derives its authority ; since in so far as 
one legislature could bind a subsequent one by its enactments, it 
could in the same degree reduce the legislative power of its succes- 
sors, and the process might be repeated until, one by one, the sub- 
jects of legislation would be excluded altogetlier from 
their control, and the constitutional provision, that the 'leg- [•126] 
islative power shall be vested in two Iiouaes, would be to a 
greater or leas degree rendered ineffectual.' 

"Acts of Parliament," says Blackstone, "derogatory to the 
power of subsequent Parliaments, bind not; so the statute 11 
Henry YII. c. 1, which directs that no person for assisting a 
king de facto shall be attainted of treason by act of Parliament or 
otherwise, is held to be good only as to common prosecutions for 
high treason, but it will not restrain or clog any parliamentary 
attainder. Because the legislature, being in truth the sovereign 
power, is always of equal, and always of absolute autliority ; it 
acknowledges no superior upon eartli, which the prior legislature 
must have been if its ordinances could bind a subsequent Parlia- 
ment. And upon the same principle, Cicero, in his letters to Atti- 
cus, treats with a proper contempt those restraining clauses which 
endeavor to tie up the hands of succeeding legislatures. ' When 

' " Unlike the decision of a court, a legislativiS act does not bind a subsequent 
l^julitare. Each body possesses the tame power, and baa a right to exerdae 
the ume discretion. Meaaares, though oden rejected, may receive legislative 
Mnction, There is no mode by which a legislative act can be made irrepealable, 
except it aMume the form and substADce or a contract. If in any line of 
legitlatioD, a pennanent character could be given to acta, the most injurious 
consequences would result to the country. Its policy would become fixed and 
nncbangeable on great national intereata, which might retard, if not destroy, the 
public pmsperity. Every legislative body, unless restricted by the conatitution, 
may mpdiiy or abolish the acts of its predecesaon ; whetbcr it would be wiao to 
do so, u a matter for legislative discretion." Bloomer t>. Stolley, 6 McLean, 
16L See this sabject considered in Wall t>. StAtc, 3S Ind. IfiO. In Kellogg v, 
Oihkosh, 14 Wis. 623, it waa held that one legislature could not bind a future 
one to a particular mode of repeal. 

[181] 



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• 126 CONSTITUTIONAL UMITATIONa [CH. T. 

you repeal the law itself,' Bays he, ' you at the same time repeal 
the prohibitory clause which guards against such repeal.' " ^ 

Although this reasouiug does not in all its particulars apply to 
the American legislatures, the principle applicable iu each case is 
the same. There is a modification of the principle, however, hj 
an important provision of the Constitution of the United States, 
forbidding the States from passing any laws impairing tlie obliga- 
tion of contracts. Legislative acts are sometimes in substance 
contracts between the State and the party who is to derive some 
right under them, and they are not the less under the protection 
of the clause quoted because of having assumed tliis form. Char* 
ters of incorporation, except those of a municipal character, — 
and which as we have already seen are mere agencies of 
['127} government, — *are held to be contracts between the State 
and the corporators, and not subject to modification or 
change by the act of the State alone, except as may be authorized 
by the terms of the charters themselves.^ And it now seems to be 
settled, by the decisions .of the Supreme Court of the United 
States, that a State, by contract to tliat effect, based upon a con- 
sideration, may exempt tlie property of an individual or corpora- 
tion from taxation for any specified period or permanently. And 
it is also settled, by the same decisions, that where a charter con- 
taining an exemption from taxes, or an ^reement that the taxes 
shall be to a specified amount only, is accepted by the corporators, 
the exemption is presumed to be upon sufficient consideration, 
and consequently binding upon the State.^ 

' 1 Bl. Com. 90. 

■ Dsrtmoutb College o. Woodward, 4 Wheat. 618 ; FluteM Bank c. Sbaip, 
6 How. 801. 

' Gordon p. Appeal Tax Court, 3 How. 183 ; New Jersey p. Wilson, 7 Craocli, 
161 ; Piqua Branch Bank v. Knoop, 16 How. S69 ; Ohio Life Ins. and Trost Co. 
V. Debolt, 16 How. 416, 482 ; Dodge v. Woolaey, 18 How. 331 ; Mechanics and 
TradertBankcDeboIt, 18 How. 381; Jefferson Branch Bank n.Skelly, 1 Black, 
436. See also Hunaaker p. Wright, 30 III. 146 ; Spooner r. McConnell, 1 McLean, 
347. The right of a State legislature to grant away llie right of t&xation, whidi 
ie one of the eueotial attributes of sovereign^, haa been strenuously demed. 
Debolt V. Ohio Life Ins. and Trust Co. 1 Ohio, N. B. £63; Mechanics and 
Traders Bank t>. Debolt. (6. 591 ; Brewster v. Hough, 10 N. H. 148 ; Mott u. 
Fennsylvania Railroad Co. 80 Peon. St. 9. And see Thorpe v. Rutlsnd and B. 
Kailroad Co. 27 Vt. 146. In Brick Presbj-terian Chnrch e. Mayor, &c., of 
New York, 5 Cow. £38, it was held that a munidpal coiporation had no power, 
[132] 



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CH. v.} POWERS BZEB0I3ED B7 LEOISLATITE DBPASTHENT. 



TerritoruU Limitation to Slate Legitlative AuUiority. 

The legislative authority of every State must spend its 
force 'within the territorial limits of the State. The [*128] 
l^slature of one State cannot make laws by which people 
outside the State mast govern their actions, except as they may hare 
occasion to resort to tlie remedies which the State provides, or to 
deal with property situated within the State. It can have no 
authority upon the high seas beyond State lines, because there is 
the point of contact with other nations, and all international qnes- 
tions belong to the national government.^ It cannot provide for the 
punishment aa crimes of acts committed beyond the State boundary, 
because Buch acts, if offences at all, must be offences against the 
sovereignty within whose limits they have been dono.^ But if the 
consequences of an unlawful act committed outside the State have 
reached their ultimate and injurious result within it, itseema that 
the perpetrator may bo punished as an offender against such 
State.' 

u a partj, to m&ke a, contract vtncb abonid control or embamM ita diecharg« 
of legislatiTe duties. And Bee pott, p. 206. In Coats v. Mayor, &c., of New 
Toil. 7 Cow. J}85, it wu decided that though a municipal corporation grimt lands 
fin- oetatiery purposes, and covenaal for their quiet enjoyment, it will not thereby 
be estopped afterwards t« forbid the use of the laud, by by-law, for that purpose, 
when such nae l>e<»mea or is likely to become a nuisance. See also, on the 
■ame subject, Morgan o. Smith, 4 Minn. 104 ; Hamrick v. Rouse, IT Geo. 56, 
where it was held that the legislature could not bind its successors not to remove 
kcoontyseat; Bass o. Fontleroy, II Texaa, 698; Sfaaw t>. Macon, 21 Geo. 280; 
Regents of Dniversity e. Williams, 9 G. & J. 390; Mott r. Pennsylvania Rail- 
road Co. SO Feno. St. 9. In Bank of Republic o. Hamilton, 21 111. 53, it was 
held (bat, in construing a statute, it will not be intended that the legislature 
designed to abandon its light as to taxation. This subject is considered fur- 
ther, post, pp. 280-284. 

< 1 Biah. Cr. Law, g 120. 

* State V. Knight, 2 Hayw. 109; People v. Merrill. 2 Park. Cr. R. 590; 
Adams t>. People, 1 N. Y. 17S; Tyler v. People, 8 Mich. 320; Morrissey o. 
People, 11 Mich. 327; Bromley t>. People, 7 Mich. 472 ; State v. Main, 16 Wis. 
398. 

' In Tyler r. People, 8 Mich. 320, it was held constitutional to punish in 
Michigan a homicide committed by a mortal blow in Canadian waters, from which 
death resulted in the State. In Morrissey v. People, 11 Mich. 327, the court 
was divided on the question whether the State could lawfully provide for the 
ptmiihtnent of persons who, having committed larceny abroad, brought the stolen 

[133]^ 



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• 128 coNSTrrtmoNAL limitatioks. [ch. t. 

Other lAmitationt of Legislative Authority. 

BeaideB the limitatiooB of legislative authority to which we have 
referred, others exist which do not seem to call for special remark. 
Some of these are prescribed by constitutions,^ but 
[• 129] • others spring from the very nature of free government. 
The latter must depend for their enforcement upon legis- 
lative wisdom, discretion, and conscience. The legislatu^ is to 
make laws for the public good, and not for the benefit of individuals. 
It has control of the public moneys, and should provide for dis- 
bursing them only for public purposes. Taxes should only be 
levied for those purposes which properly constitute a public 
burden. But what is for the public good, and what are public 
purposes, and what does properly constitute a public burden, are 
questions which the legislature must decide upon its own Judgment, 
and in respect to which it is vested with a large discretion wliicli 
cannot be controlled by the courts, except perhaps where its action 
is clearly evasive, and where, under pretence of a lawful authority, 
it has assumed to exercise one that is unlawful. Where the power 
which is exercised is legislative in its character, tlie courts can en- 
force only those limitations which the constitution imposes, and not 
those implied restrictions which, resting in theory only, the people 
have been satisfied to leave to the judgment, patriotism, and sense 
of justice of theii" representatives. 

property within the State. And see Bromley n. People, 7 Mich. 472; State o. 
Main, 16 Wis, 398. 

' The reetrictiona upon State legislative auUiority are much more extensive in 
Home constitutions than in others. TheCoDBtitutionof Misaouri has the following 
provision: "The General Assembly shall not pus epecial lawa divorcing any 
named parties, or declariiig any named person of age, or authorizing any named 
minor to eell, lesae, or encumber his or her property, or providing for the sale 
of the real estate of any named minor or other person laboring nnder legal 
disability, by any executor, administrator, guardian, trustee, or other person, or 
establiahing, locating, altering the course, or effecting the construction of roads, 
OF the building or repairing of bridges, or establishing, altering, or vacating any 
street, avenue, or alley in any city or town, or extending the time for the assess- 
ment or collection of taxes, or otherwise relieving any assessor or collector of 
taxes from the due performance of his official duties, or giving effect to infortnal 
or invalid wills or deeds, or legslizing, except as agvnst the State, the unauthor- 
ized or invalid acts of any officer, or granting to any individual or company the 
right to lay down railroad tracks in the streets of any city or town, or exempting 
any property of any named person or corporation from taxation. The General 
[184] 



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CH. v.] POWERS £ZBBOISED BT LEGISLATIVE DEPABTHENT. * 129 

AAMmbly sball pass no special Uw for anjr case for wfaich proTision can be made 
hj a general law, but Bhall pan general laws providiog, so far u it may deem 
necesssrj, for the casea enumerated in this section, and for all otber caaea where 
& gCDCrAl law can be made applicable." Cons^tution of Misaouri, art. 4, g 37. 
We abonld suppose that so stringent a proviaion would, in aome of theae cases, 
lead to the passage of general laws of doubtful utilit]' in order to remedy the 
hardships of particular cases. Aa to when a general law can be made appli' 
cable, aee Thomas v. Board of Commissioners, 6 Ind. 4; Slate d. Squirea, 26 
Iowa, 340 ; Johnson e. Railroad Co. 23 LI. 202. In 8Ute c. Hitchcock, 1 Ean- 
MJ, 17B, it was held that the constitutional proviaion, that " in all case; where a 
general law can b« made applicable, no special law shall be enacted," left a dis' 
cretion with the le^slature to determine the cases in which special laws should 
be passed. See to the same effect, Gentile e. SUte, 29 Ind. 409, overruling 
Tfaonus V. Board of Commissioners, supra. A constitnlional provision that 
requires all laws of a general tuttnre to have uniform operation throughout the 
SUte, ia complied with in a statute applicable to all cities of a certain clasa hav- 
ing leas than one hundred thousand inhabitants, though in fact there be but one 
dty in the State of that claaa. Welker d. Potter, 18 Ohio, m. s. 65. See fui^ 
Iter, Bouriand c. Hildreth, 26 Cal. 162; Brookar. Hyde, 37 Cal. 366; HcAurich 
D. Misussippi, Ac, R.R. Co. 20 Iowa, 838 ; Rice k. State, S Kansas, 141 ; 
Jacksou r. Shawl, 29 Cal. 267 ; GentUa t>. State, 29 Ind. 409 ; State v. Park- 
inson, S Nev, 16. 

[185] 



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GONSTITnnOKAL UMITAnONS. [CH. TI. 



[•130] •CHAPTER VI. 

OP THE EKACni£NT OF LAWS. 

When the supreme power of a country is wielded by a single 
man, or by a single body of men, few questions can arise in the 
courts concemiug the manner of its exercise, and any discussion of 
rules by which it is to he governed, in the enactment of laws, can be 
of very little practical value. For whenever the sovereign power 
expresses its will that a certain rule shall be established, that 
expression must be conclusive, whether such forms have been 
observed in making the declaration as are customary and proper or 
not. We may query whether the will has been declared ; we may 
question and cross-question the words employed, to ascertain the 
real sense that they express ; we may doubt and hesitate as to the 
intent ; but when discovered, it must govern, and it is idle to talk 
of f^rms that should have surrounded the expression, but do not. 
But when the legislative power of a State is to be exercised by a 
department composed of two branches, or as, in most of the 
American States, of three branches, and these branches have their 
several duties marked out and prescribed by the law to which they 
owe their origin, and which provides for the exercise of their 
powers in certain modes and under certain forms, there are other 
questions to arise than those of the mere intent of the law-makers, 
and sometimes forms become of the last importance. For in such 
case not only is it important that tlie will of the law-makers be 
clearly expressed, but it is also essential that it be expressed in 
due form of law ; since nothing becomes law simply and solely be- 
cause men who possess the legislative power will that it shall be, 
unless they express their determination to that effect, in the mode 
pointed out by the instrument which invests them with the power, 
and under all the forms which that instrument has rendered 
essential. And if, when the constitution was adopted, there were 
known and settled rules and usages, forming a part of the law of 
the country, in reference to which the constitution has evidently 
been framed, and these rules and usages required the observance of 
particular forms, the constitution itself must also be understood as 
[136] 



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CH. TI.] OP THE ENACTMENT OP LAWS. " 180 

reqairing them, because id assuming their existence, and 
being * framed with reference to them, it lias in effect [*131] 
adopted them as a part of itself, as much as if they were 
expressly incorporated in its proTisions. Where, for an instance, 
the legislative power is to be exercised by two bouses, and by 
settled and well- understood parliamentary law, these two bouses 
are to hold separate sessions for tlieir deliberations, and the deter- 
mination of the one upon a proposed law is to be submitted to the 
separate determination of the other, the constitution, in providing 
for two houses, has evidently spoken In reference to this settled 
custom, incorporating it aa a rule of constitutional interpretation ; 
BO that it would require no prohibitory clause to forbid tlie two 
honses from combining in one, and Jointly enacting laws by the 
vote of a majority of all. All those rules which are of tlie essentials 
of law-making must he observed and followed ; and it is only the 
customary rules of order and routine, such as in every deliberative 
body are always understood to be under its control, and subject to 
constant change at its will, that the constitution can be understood 
to have left as matters of discretion, to be established, modified, or 
abolished by the bodies for wliose government in non-essential 
matters they exist. 

Oftke two Homes of the Legislature.^ 

In the enactment of laws the two houses of the legislature are 
of equal importance, dignity, and power, and the steps which result 
in laws may originate indifferently in either. This is the general 
rule ; but as one body is more numerous than the other and more 
directly represents the people, and in many of tlie States, is 
renewed more often by elections, the power to originate all money 
bills, or bills for the raising of revenue, is left esclnsively, by the 
constitutions of some of the States, with this body, in accordance 
with the custom in England which does not permit bills of this 
character to originate with the House of Lords.^ To these 

■ The wisdom of a division of the legislative department hu been demon- 
stnted by tbe leading writers on conatituUonal law, as well as by general expe- 
rience. See De Lolme, Const, of England, b. 2, c. 3 ; Federalist, No. 22 ; 1 
Kent, 208 ; Story on Const. §§ 646-670, The early eiperiments in Pennsylvania 
aad (leorgia, based on Franklin's views, for which see bis Works, Vol. T. p. 166, 
are tike only ones made by any of the American States with a single house. 

' ^ere axe provisions in the ConstituUone of Massachusetts, Delaware, MJn- 

cm] 



DiB.1izedOyGoO<^lc 



* 132 OONBTITUTIONAL LIMITATIONS. [CH. Yl. 

[• 132] • bills, however, the other house may propose alterations, 
and the; require the assent of that house to their passage, 
the same as other bills. The time for the meeting of the legisla- 
ture will be such time as is fixed by the constitution or by statute ; 
but it may be called together by the executive in special session as 
the constitution may prescribe, and the two houses may also 
adjourn any general session to a time fixed by them for the holding 
of a special session, if an agreement to that effect can be arrived 
at ; and if not, power ia conferred by a majority of the constitutions 
upon the executive to prorogue and adjourn them. And if the 
executive in any case undertake to exercise this power to prorogue 
and adjourn, on the aBsumption that a disagreement exists between 
the two houses which warrants his interference, and his action is 
acquiesced in by those bodies, who thereupon cease to hold their 
regular sessions, the legislature must be held in law to have 
adjourned, and no inquiry can be entered upon as to the rightful- 
ness of the governor's assumption that such a disagreement 
existed.' 

neiota, Miasiasippi, Nen Humpghire, New Jenej, Pennsylvanu, South Caroliiui, 
Vermont, Itidinnft, Oregon, Kentucky, Louiaiatia, and Maine, requiring revenue 
bills to ori^nate in the more popular branch of the legislature, but allowing the 
Senate the power of amendment usual in other cases. During the second ses- 
sion of the forty-firat Congreai, the House of Representatives by their TOte 
denied the right of the Senate under the Constitutioa to OTigiuate a bill repealing 
a law imposing taxes; but the Senate did not assent to this conclusion. In 
England the Lords are not allowed to amend money bills, and by resolutions of 
fith and 6th July, 1860, the Commons deny their right even to reject tfaem. 

' This question became important and was passed upon in People t>. Hateh, 
33 m. 9. The Senate had paesed a resolution for an adjoumtnent of the session 
sin« die on a day named, which was amended by the House by fixing a different 
day. The Senate refused to concur, and the House then passed a reaolutioo 
expressing a desire to recede from its action in amending the resolution, and 
requesting a return of the resolution by the Senate. While matters stood thus. 
the governor, assuming that such a disagreement existed as empowered him to 
interfere, sent in his proclamation, declaring the legislature adjourned to a day 
named, and which was at the very end of the oStual term of the members. The 
message created excitement; it does not seem to have been at once acquiesced 
in, and a protest agaiost the governor's authority was entered upon the journal ; 
but for eleven days in one house and twelve in the other no entries were made 
upon their journals, and it was unquestionable that practically they had acqui- 
esced in the action of the governor, and adjourned. At the expiration of the 
twelve days, a portion of the members came together again, and it was claimed 
by them that the message of the governor was without authority, and tho two 
[138] 



DiB.1izedOyGoO<^lc 



CH. VI.] OP THE ENACTMENT OP LAWS. * 133 

*Ttiere are certain matters "which each house deter- [*133] 
mines for itaelf, aud in respect to vhich its decision is 
conclusive. It cboosea its own officers, except where, b; constitu- 
tion or statute, it is otlierwiae provided ; it determiaea its own 
rules of proceeding, it decides upon the election and qualilicatioii 
of its own members.' These powers it is obviously proper should 
rest with the body immediately interested, as essential to enable it 
to enter upon and proceed with its legislative functions, without 
liability to interruption and confusion. In determining questions 
concerning contested seats, the house will exercise judicial power, 
but generally in accordance with a course of practice which has 
spruug from precedents in similar cases, and no other authority is 
at liberty to interfere. 

Each liouse has also the power to pnnish members for disor- 
derly behavior, and other contempts of its authority, as well as to 
expei a member for any cause which seems to tlie body to render 
it unfit that he continue to occupy one of its seats. This power 
is generally enumerated in the constitution among those which 
the two houses may exercise, but it need not be specified in that 
instrument, since it would exist whetlier expressly conferred or 
not It is " a necessary and incidental power, to enable the honse 
to perform its high functions, and is necessary to tlie safety of 
the State. It is a power of protection. A member may be phys- 
ically, mentally, or morally wholly uu&t; he may be affected with a 
contagious disease, or insane, or noisy, violent, and disorderly, or in 

faoasea nmrt be conaidered m having been, in point of Uir, in lesaion during the 
iatervening period, and lliat consequenllj anj bills which had before been passed 
by them and sent to the goreroor for his approval, and which he bad not returned 
within ten days, Sunday! excepted, had become laws under the constitution. 
The Supreme Court held tbat, as the two houses had practically acquiesced in 
the action of the governor, the session had come to an end, and that the mem- 
bers had no power to re-convene on their own motion, as had been attempted. 
The case is a very full and valuable one on several pobts pertaiuing to legisla- 
tive proceedings and authority. 

' In People e. Mahaney, 13 Mich. 481, it was held that the correctness of a 
decision by one of the houses, that certain penona bad been chosen members, 
conld not be inquired into by the courts. In that case a, law was assailed as void, 
on the ground tbat a portion of the members who voted for it, and without whose 
votes it would not have had the requisite majority, had been given their seals in 
the House in defiance of Uw, and to the exclusion of others who had a majority 
of legal votes. See the same principle in State p. Jarrett, 17 Md. 309. See 
alM> Lamb e. Lynd, 44 F«id. St. 8S6. 

[139] 



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* 133 CWNSTITtJTIONAL UMITATTONB. [CB. YI. 

the habit of using profane, obscene, and abusire language." And, 
" independeutly of parliamen^y customs and usages, our legisla- 
tive houses have the pover to protect themselres by the punish- 
ment and expulsion of a member"; and the courts cannot inquire 
into the justice of the decision, or even so much as examine the 
proceedings to see whether opportunity for defence was furnished 

or not.* 
[* 134] * Each house may also punish contempts of its authority 
by other persons, without express authority from the con- 
stitution therefor ;^ but where imprisonment is imposed as a pun- 
ishment, it must terminate with tlie final adjournment of the house, 
and if the prisoner t>e not then discharged by its order, he may be 
released on habeas corpus.^ 

By common parliamentary law, the members of the legislature 
are privileged from arrest on civil process during the session of 
that body, and for a reasonable time before and after to enable 
them to go to and return from the same. By the constitutions of 
some of the States this privilege has been enlarged, so as to 
exempt the persons of legislators from any service of civil process,* 
and in others their estates are exempt from attachment for some 
prescribed period.* For any arrest contrary to the parliamentary 
law or to these provisions, the house of which the person arrested 
is a member may give summary relief by ordering his discharge, 

' Hist V. BirtleU, 3 Gny, 468. And see Anderson e. Dunn, 6 Wheat. 204. 

1 Anderson n. Dunn, 6 Wbe&t. 201 ; Butdett v. Abbott, 14 East, 1 ; Stock- 
dais t>. Hansard, 9 Ad. & El. S31; Burnhtun o. MorisBej, 14 Graf, 326; Sute 
t>. Matthews, 87 N. H. 450. 

* JeSerson'd Manual, g 18; Frichard's Case, 1 Lev. 16S. 

* " Senators and representatives shall, in all cases except treason, felanj, or 
breach of ihe peace, be privileged from arrest. They shall not be subject to 
any civil process during the leasion of the legislature, or for fiFt«cn days next 
before the commencement and after the termination of each seasion." Con^t. of 
Mich. art. 4, g 7. The same exemption from civil process is found in the Con- 
stitution of Kansas, art. 2, § 2a ; in tliat of Nehraaka, art. 2. §15 ; and in that 
of Tennessee, art 1, g 13. Exemption from arrest is not violated by the service 
of citations or declarations in civil cases. Gentry v. Griffith, 27 Texas, 461 ; Case 
V. Rorabacker, 15 Mich. 637. 

' The Constitution of Rhode Island provides that " the person of every mem- 
ber of the General Assembly shall he exempt from arrest, and his estate from 
atCacliment, in any civil action, during the session of the General Assembly, and 
two days before the commencement and tivo days after the termination thereof^ 
and all process served contrary hereto shall be void." Art. 4, § S. 
[140] 



DiB.1izedOyGoO<^lc 



CH. TI.] OP TEE ENACTMENT OP LAW8. * 134 

and if the order is not complied with, hj punishing the persouB 
concerned in the arrest as for a contempt of its anthority. The 
remedy of the member, however, is not confined to this mode of 
relief. His privilege is not the privilege of the house merely, but 
of the people, and is conferred to enable him to discharge the trust 
confided to him by his constituents ; ' and if the house neglect to 
interfere, the court &om which the process issued should set it 
aside on the facts being represented, and any court or officer 
having authority to issue writs of habeas corpus may also 
• inquire into the case, and release the party from the un- [• 135] 
lawful imprisonment.^ 

Each house must also be allowed to proceed in its own way in 
the collection of such information as may seem important to a 
proper discharge of its functions, and whenever it is deemed 
desirable that witnesses should be examined, the power and 
authority to do so is very properly referred to a committee, with 
any such powers short of final legislative or judicial action as 
may seem necessary or expedient in the particular case. Such a 
committee has no authority to sit during a recess of the house 
which has appointed it, without its permission to that efTect ; but 
the bouse is at liber^ to confer such authority if it see fit.^ A 
refusal to appear or to testify before such committee, or to pro- 
duce books or papers, would be a contempt of the house ; * but 
tiie committee cannot punish for contempts; it can only report 
tJiB conduct of the offending party to the house for its action. 
The power of the committee will terminate with the final dissolu- 
tion of the house appointing it. 

Each house keeps a journal of its proceedings, which is a public 
record, and of which the courts are at liberty to take judicial 
notice.' If it should appear from these journals that any act did 

' Coffin r. CoSiD, 4 Mms. 27. 

* On this subject, Ciuliing on Lttw and Practice of PftrliamentAtj Assemblies, 
§5 546-597, will be consulted with profit. 

* Branbun t>. Lange, 16 Ind. 197 ; Marshall b. Harwood. 7 Md. 466. See 
*Im ptriiamentuy cases, 5 Gt«7, 374; 9 Grey, 350; 1 Chandler, 50. 

* Bamham v. Woxrwaej, 14 Gray, 226. 

* Spangler D. Jacoby, 14B1.297; Miller e. State, 3 Ohio, M. a. 475r People 
D. Habauey, 13 UJcb. 481 ; Southwark Bank v. Conunonwealth, 2 Peun. St. 446 ; 
HeCnlloch V. Sute, 11 Ind. 430 ; State r. Moffitt, 6 Ohio, S58 ; Turley v. Logan 
Co. 17 DL 161 ; People r. Saperriaon of Chenango, 8 N. Y. 317 ; Jones v. 
Hntchinson, 48 lU. 721. 

[141] 



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• 135 coNSTironoHAL limitations. [ch. yi. 

not receive the requisite majority, or that in rtfspect to it the legis- 
lature did not follow any requirement of the constitution, or that 
in any other respect the act was not conBtitutionally adopted, 
the courts may act upon this evidence, and adjudge the statute 
void.^ But whenever it is acting in the apparent performance 
of legal functions, every reasonable presumption is to be made 
in favor of the action of a legiBlative body ; it will not be pre- 
sumed in any case, from the mere silence of the journals, that 

either house has exceeded its authority, or disregarded a 
[*136] * constitutional requirement in the passage of legislative 

acts, unless where the constitution has expressly required 
the journals to show the action taken, as, for instance, where it 
requires the yeas and nays to be entered.^ 

The law also seeks to cast its protection around legislative ses- 
sions, and to shield them against corrupt and improper influences, 
by making void all contracts which have for their object to influ- 
ence legislation in any other manner than by such open and pub- 
lic presentation of facts and ai^uments and appeals to reason as 
are recognized as proper and legitimate witli aU public bodies. 
While counsel may be properly employed to present the reasons 
in favor of any public measure to tlie body authorized to pass 
upon it, or to any of its committees empowered to collect facts 
and hear arguments, and parties interested may lawfully contract 
to pay for this service, yet to secretly approach the members of 
sncli a body with a view to influence their action, at a time and 
in a manner tliat do not allow the presentation of opposite views, 
is improper and unfair to the opposing interest ; and a contract 
to pay for this irregular and improper service would not be en- 
forced by the law.^ 

' See ewes cited m preceding note. AlsoPrescott v. Tmsteeaof HI. &Mich. 
Canal, 19 III. dU. The cue of Sbemuui v. Story, 30 Cal. 253, appears to be 

■ Miller c. State, SOliio, m.b. 476; McCnUoch d. State, lllnd. 424; Soper- 
yJBors p. People, 25 III. 181. 

' Thie whole Bubjeot was very fully coaaidered in the case of Frost v. Inbabi- 
tants of Belmont, 6 Allen, 16S, whidi wa^ a bill filed to restrain the payment by 
the town of demands to the amoant of nearly #9000, which the town bad voted 
to pay as expenses in obtaining their act of incorporation. By the court. Chap- 
man, J.: "It is to be regretted that any pcnone should have att«mpted to 
procure an act of legislation in this Commonwealth, by such means as some of 
these items indicate. By the regular course of legislation, organa are provided 
[142] 



idByGoOl^lc 



CH. Tl.] OP THE EIACTMENT OP LAWS. 



■ The Iniroduction and Passage of Bills. [* 137] 

Any member may introduce a bill in tbe house to which be 
belongs, in accordance with its rales ; and this he may do 

throDgh irhich any parties maj fairly and openly approach the legislature, and 
be heard with proofs and argumenta respecting any legifllative acta which they 
may be interested in, whether public or private. These organs are the TariouR 
committeei appointed to consider and report upon the matters to be acted upon 
by the whole body. When priTate interests are to he affected, notice is given 
of the hearings before these committeea ; and thus opportunity is given to 
adverse parties to meet face to face and obtain a fair and opeo hearing. And 
though these committees properly dispense with many of the rules which regu- 
late bearings before judicial tribunals, yet commou fairness requires that neither 
party shall be permitted to have secret consultations, and exercise secret influ- 
ences that are kept from the knowledge of the other party. The business of 
' lobby mcmbera ' is not to go fairly and openly before the committees, and present 
■tatements, proofs, and arguments that the other side has an opportunity to meet 
and refute, if they are trrong, but to go secretly to the members and ply them 
with statements and arguments that the other side cannot openly meet, however 
erroneous they may be, and to bring illegitimate influences to bear npon them. 
If tbe ' lobby member ' is selected because of his political or personal influence. 
It aggravates the wrong. If his business is to unite various interests by meana 
of projects that are called ' log rolling,' it is still worse. The practice of pro- 
caring members of the legislature to act under the influence of what they have 
eaten and drank at houses of entertainment tenia to render those who yield to 
*ncb induences wholly unlit to act in such cases. They are disquaUlied from 
acthig fairly towards interested parties or towards the public. The tendency 
and object of these influences are to obtain by corruption what it is supposed 
cannot be obtained fairly. 

*' It is a well-established prindple, that all contracts which are opposed to 
poblic policy, and to open, upright, and fair dealing, are illegal and void. Tbe 
principle was fully discussed in Fuller e. Dame, 16 Pick. 472. In several other 
States it haa been applied to cases quite analogous to tbe present case. 

" In Fingrey e. Washburn, 1 Aiken, 261, it was held in Vermont that an 
agreement, on the part of a corporation, to grant to individuals certain privileges 
in consideration that they would withdraw their opposition to the passage of a 
legislative act touching the interests of the corporation, is against sound policy, 
prejudicial to just and correct legislation, and void. In Gulick e. Ward, 5 Halst. 
87, it waa decided in Kew Jersey that a contract which contravenes an act of 
Cougresc, and tends to defraud the United States, is void. A. bad agreed to 
give B- 9100, on condition that B, would forbear to propose or offer himself 
to the Foilmaster- General to carry the mail on a certain mail route, and it waa 
held that the contract was against public policy and void. The general principle 
as to contracts contravening public policy was discussed in that case at much 
length. In Wood c. UcCann, 6 Dana, 366, the defendant had employed the 

[143] 



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• 137 CONSTITDTIOMAL LIHITATIONB. [CH. VI. 

[* 138] at any * time when the house ia iii sessioQ, unless the 
coustitution, the law, or tlie rules of the house forbid. 

plaintiS* to assist him in obMiniDg a legisUtJTe act in Kentucky legalizing his 
divorce from a former irife, and his marriage with his present irife. The court 
BBj: * A lawjer mty be entitled to compensation for writing a, petilion, or even 
for making a public argument before the legislature or a committee thereof; 
but the laiT shonld not hold him or any other person to a recompense for exer- 
cising any personal influence in any way, iu any act of legislation. It is certainly 
important to just and wise legislation, and therefore to the most essential interest 
of the public, that the legisUtur« should be perfectly free from any extraneous 
influence which may either corrupt or deceive the members, or any of them.' 

" In Clippinger c. Hepbaugh, 5 Watts & 8. 815, it was decided in Pennsyt- 
vania that a contract to procure or endeavor to procure the passage of an act of 
the legislature, by using personal influence with the members, or by any sinister 
means, was void, as being inconsistent with public policy and the integrity of 
our political institutions. And an agreement for a contingent fee to be paid on 
the passage of a legislative act was held to be illegal and void, because it would 
be a strong incentive to the exercise of personal and sinister influences to effect 
the object- 

" The subject has been twice adjudicated upon in New 7ork. In Harris d. 
Roof, 10 Barb. 489, the Supreme Court held that one could not recover for ser- 
vices performed in going to see individual members of the house, to get them to 
aid in voting for a private claim, the services not being performed before the 
house as a body, nor before its authorized committees. In Sedgwick v. Stanton, 
4 Keman, 289, the Court of Appeab held the same doctdne, and stat«d its proper 
limits. Sdden, J., makes the following comments on the case of Harris v. Roof: 
' Now the court did not mean by this decision to hold that one who has a claim 
against the State may not employ competent persons to aid him in properly pre- 
senting such claim to the legislature, and in supporting it with the necessary 
prools and arguments. Mr. Justice Sand, who delivered (he opinion of the court, 
very justly distinguishes between services of the nature of those rendered in that 
case, and the procuring and preparing the necessary documents in support of a 
claim, or acting as counsel before the legislature or some committee appointed 
by that body. Persons may, no doubt, be employed to conduct an application to 
the legislature, as well as to conduct a suit at law ; and may contract for and re- 
ceive pay for their services in preparing documents, collecting evidence, making 
statements of facts, or preparing and making oral or written arguments, provided 
all these are used or designed to be used before the legislature or some committee 
thereof OS a body ; but they cannot, with propriety, be employed to esert tbeir 
personal influence with individual members, or to labor in any form privately with 
such members out of the legislative halls. Whatever Is lud before the legislature 
in writing, or spoken openly or publicly in its presence or that of acommittee, if 
false in fact, may be disproved, or if wrong in argument may be refuted; but 
that which is whispered into the private ear of individual members is frequently 
beyond the reach of correction. The point of objection in this class of cases then 
is, the personal and private nature of the services to be rendered.' 
[144] 



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CB. YI.] OP THE ENACTMENT OP lAWS. * 188 

The Constitution of Michigan * provides that no new bill [* 1S9] 
shall bo introdaced into either house of the legislature 
after the first fifty days of the session shall hare expired ; ^ and the 
Constitution of ]tfaryland provides that no bill shall originate in 
eitlier house within the last ten days of the session.^ Tho purpose 
of these clauses ia to prevent hasty and improvident legislation, 
and to compel, so far as any previous law can accomplish that 
result, the careful examination of proposed laws, or at least the 
affording of opportunity for that purpose ; which will Dot always be 
done when bills may be introduced up to the very hour of adjoum- 
ment, and, with the concurrence of the proper nugority, put 
immediately upon their passage.^ 

"In Fuller e. Dame, cited above, Shmo, Cfa. J., recognizes the well-CBtablished 
rigtit to contract and pnj for profeaaional services nhen the promisee ia to act si 
tcOanKy and counsel, but remarks that ' the Ut^t appearing that penona do so act 
prerenti any injurious efibcta rrom such proceeding. Such counsel is considered 
as atanding in the place of his principal, and his arguments and representations 
are weighed and congidared accordingly.' He also admits the right of disinter- 
ested perMins to volunteer advice ; as when a person is about to make a will, one 
naj r«preaent to him the propriety and expediency of making a bequest to a par- 
ticalar per«on ; and so may one volunteer advice to another to marry another 
penoD ; bnt a promise to pay for sack service is void. 

" Applying the principles stated in these cases to the bills which the town voted 
to payi it is manifest that some of tbe money ^as expended for objects that are 
contrary to public policy, and of a most reprehensible character, and which could 
not, therefore, form a legal consideration for a contract." 

See further a full discussion of the same subject, and reaching the same con* 
dnsion, by Mr. Jnadce Orier, in Marshall o. Baltimore & Ohio R.R. Co. 16 How. 
3U. See alto Hatzfield e. Gulden. 7 Watts, 162 ; Frankfort r. WJnterport, U 
Me. 250. A contract to assist by money and influence to secure tbe election of 
■ candidato to a public office in consideration of a share of tta emoluments, in the 
event of election, is void as opposed to public policy, and if voluntarily rescinded 
by the parties, a recovery cannot be had of the moneys advanced under it. Mar- 
tin V. Wade, S7 Cal. 166. 

' Art. 4, i 28. » Art. 3, g 26. 

' A practice has sprung npof evading these cons^Iuttonal proviiions byintro 
(hiang a new bill after the time has expired when it may constitutioDally bo 
done, as an amendment to some pending bill, tbe whale of which, except the 
enacting clause, is struck out to make way for it. Thus, the member who thinks 
be may possibly have occasion for the introduction of a new bill after the const!- 
taitional period has expired, takes care to introduce sham bills in due season 
which he can use as stocks to graft upon, and which he uses irrespective of their 
character or contents. The sham bill is perhaps a bill to incorporate the city of 
Siam. One of the member's constituenla applies to him for legislative pennission 
10 [ 145 ] 



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• 189 CONBTITUTIOBAL LIMITATIONS. [CH. VI. 

For the same reason it is required hj the constitutions of several 
of the States, that no bill shall have the force of lav until on three 
several dajs it be read in each house, and free diacussioa allowed 
tbereon ; unless, in case of urgency, four-fifths or some other 
specified majority of the house shall deem it expedient to dispense 
witli this rule. The journals which each house keeps of its 
proceedings ought to show whether this rule is complied with or 
not ; but in case they do not, the passage iu the manner provided 
by the constitution must be presumed, iu accordance with the 
general rule which presumes the proper discharge of official 
[* 140] duty.^ * As to what shall constitute a reading of a bill, it 
seems to be held sufficient to read the written instrument 
that is adopted by the two houses ; ^d if any thing else becomes law 

to construct a dam acroM the Wild Cat lUver. Forthwith, by ammdmeni, &e 
bill entitled a biU to incorporate the city of Siam has all after theeDacting clause 
stricken out, and it ii made to proride, as its sole object, that John Doe may con- 
struct a dam ai^rosa the Wild Cat. Wilh tbia title and in this form it is paued; 
but the house then consideratel]' amends the title to correspond with the purpose 
of the bill, and the law ia passed, and tlie constitution at the same time saved ! 
This dodge ia so transparent, and so clearly in violation of the constitution, and 
the evidence at tlie same time so fully spread upon the record, tbat it is a matter 
of Burprise to find it so often lesorted to. 

' Supervisors of Schuyler Co. d. People, 26 JU. 181 ; Miller v. Statfl, 3 Ohio, 
M. e. 480. In People v. Slame, 35 Ul. 121, it is said the courts should not 
enforce a legislative act unless there is record evidence, from the journals of the 
two houses, that every material requirement of the constitution has been satisfied. 
The clause in the Constitution of Ohio is : '* Every bill shall be fully and dis- 
tinctly read on three different days, unless, in case of urgency, three-fourllia of 
the house in which it shall be pending sball dispense with this rule " ; and in Mil- 
ler V. Sute, 3 Ohio, m. s. 461, and Pim v. Nicholson, 6 Ohio, H. s. 178, tliia 
provision was held to be merely directory. The distinctneat with vhkh any bill 
must be read cannot possibly be defined by any law ; and it must always, from 
the necessity of the case, rest with the house to determine finally whether in llus 
particular the constitution has been complied with or not ; but the rule respect- 
ing three several readings on different days is specific, and capable of being 
precisely complied with, and we do not see how, even under the rules applied to 
statutes, it can be regarded as directory merely, provided it has a purpose beyond 
the mere regular and orderly transaction of business. That it has such a pur- 
pose, that it is designed to prevent hasty and improvident legislation, and ia 
therefore not a mere rule of order, but one of protection to the public intaretta 
and to the citizens at large, is very clear ; and independent of the question whether 
definite constitutional principles can be dispensed with in any case on the ground 
of their being merely directory, we cannot see how this can be treated as uij 
thing bat mandatory. See People e. Campbell, 3 Gilm. 466 ; UcCuUoch v. 
State, 11 Ind. 434. 
[146] 



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CH. Tl,] OP THE ENACTMENT OP LAWS. • 140 

in consequence of its paas^e, and by reason of being referred . 
to in it, it is ueyertheleBS not essential that it be read with the 
reading of the bill.' Thus, a statute which incorporated a military 
company by refereoce to its constitution and by-laws, was held valid, 
notwithstanding the constitution aud by-laws, which would acquire 
the force of law by its passage, were not read in the two houses as a 
part of it.* But there cannot bo many cases, we should suppose, 
to which this ruling would be applicable. 

It is also provided in the constitutions of some of the Stales, that 
on the final passage of every bill the yeas and nays shall be entered 
on the journal. Such a provision is designed to serve an important 
purpose in compelling each member present to assume as well as 
to feel his due share of responsibility in legislation ; and also in 
furnishing definite and conclusive evidence whether the bill has 
been passed by the requisite majority or not. " The constitution 
prescribes this as the test by which to determine' whether the 
requisite number of members vote in the afSrmative. The office of 
the journal is to record the proceedings of the house, and authen- 
ticate and preserve the same. It ihust appear on the face of 
the journal that tlie biU passed by a constitutioual majority. 
These directions are all clearly imperative. They are 
* expressly enjoined by the fundamental law, and cannot be [* 141] 
dispensed with by the legislature." ' 

For the vote required in the passage of any particular law, 
the reader is referred to the constitution of his State. A. sim- 
ple majority of a quorum is sufficient, unless the constitution 
establishes some other rule ; and where, by the constitution, a two- 
thirds or three-fourths vote is made essential to the passage of any 
particular class of bills, two-thirds or three-fourths of a quorum 

' Dew V. CniuiiiighfUD, 28 Ala. 466. 

* Bibb Conntj Loaa AstocUUon r. Ricbards, 21 G«o. fi92. 

» Spangler v. Jaeobj, 14 lU. 297 ; Superruora of Schuyler Co. v. People, 25 
HL 183. Tbere have been cues, u we happen to know, in which ■ercral billi 
hare been put on thur passage together, the yeas and nays being once called foi 
tbem all, though the joomal is made to state falsely a separate vote on each. Wa 
need hardly say that this is a manifest Tiolation of the constitution, which requires 
•epuate action in every case, and that when resorted to, it is usually for the pur- 
pose of avoiding another proviuon of the constitution which seeks to preclude 
" log-rolling " l^isla^n, by forbidding tlie incotporation of distinct measures 
in ono and the tame statute. 

[147] 



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• 141 coNSTrnrnoNAL LimTATioHS. [ch. ti. 

will bo understood, nnleSB it is expresBly declared that tbis propor- 
tion of all tbe members, or of all those elected, shall be 
requisite.' 

The Htle of a StaivsU. 
The title of au act was formerly considered no part of it ; and 
althougb it might be looked to as a guide to the intent of the law- 
makers when tlie bod; of the statute appeared to be in any respect 
ambiguous or doubtful,' yet it could not enlai^e or restrain the 
prorisioQS of the act itself,' and the latter might therefore be 
good when that and the title were in conflict. The reason for this 
was tliat anciently titles were not prefixed at all, and when after- 
wards tbey came to be introduced, they were usually prepared by 
the clerk of the house in which the bill first passed, and attracted 
but little attention from the members. They indicated the clerk's 
understanding of the contents or purpose of the bills, rather than 
that of the house ; and they therefore were Justly regarded as 
furnishing very little Insight into the legislatiTe intention. Titles 
to legislative acts, howeverj have recently, in some States, come to 
possess very great importance, by reason of constitutional pro- 
visions, which not only require that they shall correctly indicate 
the purpose of the law, but which absolutely make the title to 
control, and exclude every thing from effect and operation as law 
which is incorporated in the body of the act but is not within the 
purpose indicated by the title. These provisions are given in the 
note, and it will readily be perceived tliat they make a very great 
change in the law.* 

' Southworth r. Palmyra ft Jacksonbui^ Railroad Co. 2 Midi. 287 ; State c, 
McBride, 4 Mo. 303. Wliere a majoritj of all tlie membera eUded is required 
in the paaaage of a law, an ineligible person is not on tliat account to be excluded 
in the count. Satterlee t>. San Francisco, 22 Cal. 314. 

' United States o. Palmer, 3 Wheat. 610; Burgett r. Borgett. 1 Ohio, 480; 
Eutman d. McAlpin, 1 Kelle;. IfiT ; Cohen e. Barrett, 6 Cal. 195. See Dwania 
on Statute!, 502. 

* Hadden v. Tbe Collector, 6 Wal. 107. 

* The ConBtitutiona of Minneaota, Kanaaa, Maijland, Kentucky, Nebnuka, 
Ohio, and Funntjlvania provide that " no law shall embrace more than one anb- 
ject, whidi ghaU be eipreased in ita title." Those of Michigan, Lonisiana, and 
TexM are the same, substituting the word otgect for tubject. He Constitutjotu 
of South Carolina, Alabama, TeunesseeiMaryland, and California contain similar 
provisions. The Constitution of Kew Jersey piovidea that, " to avoid improper 

[148] 



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CH. TI.] OP THE ENACTMENT OP LAWS. * 142 

*In considering these provisions it is impo^taQt to re- [*142] 
gard,— 

1. The evil* designed to be remedied. The Constitution of 
New Jersey refers to these as " the improper influences which 
m&7 result firom intermixiog in one and the same act such 
things as have no proper relation to each other." In the 
language of the Supreme Court of Louisiana, speaking of the 
former practice : " The title of an act often afforded no clue to its 
contents. Important general principles were found placed in acts 
private or local in their operation ; provisions concerning matters 
of practice or judicial proceedings were sometimes included in 
the same statute with matters entirely foreign to them, the result 
of which was that on many important subjects the statute law 
had become almost unintelligible, as they whose duty it has been 
to examine or act under it can well testify. To prevent any fur- 
ther accumulation to this chaotic moss was the object of the 
constitutional provision under considei-ation." ^ The Supreme 
Court of Michigan say : " The history and purpose of this con* 
atitutional provision are too well understood to require 
any * elucidation at our hands. The practice of bringing [* 143] 
together into one bill subjects diverse in their nature and 

infloencea which may result from intermixiog in one and the same act sneh things 
•a have no proper relation to each other, every law shall embrace but one object, 
and that ihall be expressed in the title." The Coostitution of Miasouri contaios 
a similar provision, with the addition, that, " if any subject embraced in an act 
be not expressed in the title, such act shall be void only as to so much thereof as 
is not so expressed." The ConstitutioDsoflndiana and Iowa provide that "every 
act shall embrace but one subject, and matters properly connected therewith, 
which subject shall be expressed in the tide. But if any subject shall be embraced 
in an act which shall not be expressed in the title, such act shall be void only as 
to so TOufAi thereof aa shall not be expressed in the title." The Constitution of 
Nevada provides that " every law enacted by the legislature shall embrace but 
one subject, and matters properly connected therewi^, which sabjeet shall be 
loiefly expressed in the title." The Constitutions of New York and Wisconsm, 
provide that " no private or local bill which may be passed by the legislature 
shall embrace more than one subject, and that shall be expressed in the title." 
The Constitution of lUinois is in this regard nearly identical with Ihat of Missouri, 
Whether the word deject is to have any difierent construction irom the word *ufr- 
jtel, as used in these proviaions, is a question which may some time require dis- 
cossioa; bnt as it is evidently employed for precisely (he same purpose, itwonld 
seem that it ought not to have. Compare Ulngle v. State, 24 Ind. 28, and People 
g. Lawrence, 36 Barb^l92. 

■ Walker v. CaldweU, 4 U. An. 298. See Fletcher t>. Oliver, 25 Ark. 298. 

[149] 



DiB.1izedOyGoO<^lc 



" 143 OOHSTmrnONAL LUnTAnONS. [CH. TI. 

having no necesBiirj connection, vith a view to combine in their 
favor the advocates of all, and thus secure the passage of several 
measures, no one of which could succeed upon its own merits, was 
one both corruptive of the legislator and dangerous to the State. 
It was scarcely more so, however, than another practice, also 
intended to be remedied by this provision, by which, through 
dexterous management, clauses were inserted in bills of which the 
titles gave no intimation, and their passage secured through legis- 
lative bodies whose members were not generally aware of their 
intention and effect. There was no design by this clause to em- 
barrass l^islation, by making laws Qonecessarily restrictive in their 
scope and operation, and thus multiplying their number ; but the 
framers of the constitution meant to put an end to legislation of 
the vicious character referred to, which was little less than a fraud 
upon the public, and to require that in every case the proposed 
measure should stand upon its own merits, and that the legislature 
should be fairly satisfied of its design when required to pass upon 
it." ^ The Court of Appeals of New York declare the object of this 
provision to be *' that neither the members of the legislature nor 
the people should be misled by the title." ' The Supreme Court 
of Iowa say : " The intent of this provision of the constitution 
was, to prevent the union, in the same act, of incongruous matters, 
and of objects having no connection, no relation. And with this 
it was designed to prevent surprise in legislation, by having matter 
of one nature embraced in a bill whose title expressed another." ' 
And similar expressions will be found in many other reported 
cases.* It may therefore be assumed as settled that the purpose 
of these provisions was : first, to prevent hodge-podge, or " log,- 
roUing" legislation; aectmd, to prevent surprise or fraud upon 
the legislature, by means of provisions in bills of which 
[*144] the titles *gav6 no intimation, and which might therefore 

■ People D. Mshane)', 13 Mich. 494. And im Board of Snperrisorsc. Heeoui, 
2 Minn. 336 ; DavU e. Bank of Fulton, 31 Geo. 69 ; St. Louia v. Ti«fel, 42 Mo. 
678. 

• Sun Mutual Inturanc© Co. ti.'Mayor, &c., of New York, 8 N. T. 253. 
> State D. County Judge or Davis Co. 2 Iowa, 282. 

* See Conner r. Mayor, &c., of New York, 6 N. Y. 293 ; Davia p. State, 7 Md. 
161. The Supreme Court of Indiana also understand the prOTision in the con- 
stitution oftfaat State to be designed, among other things, to assist in the codifi-^ 
cation of the laws. Indiana Central Railroad Co.o. Fotts, 7 Ind. 685 i Hingle 
V. State, 24 Ind. 28. 

[150] 



DiB.1izedOyGoO<^lc 



OH. TI.3 OP THE EHACTHENT 07 LAWS. ' 144 

bo oTerlooked and carelessly and unintentionally adopted ; and, 
third, to fairly appnso the people, through such publication 
of legislatire proceedings as is usually made, of the subjects of 
le^slation that are being considered, in order that they may have 
opportunity of being heard thereon, by petition or otherwise, if 
tbey shall so desire. 

2. The particularity required in itating the object. The gen- 
eral purpose of these provisions is accomplished when a law has 
bnt one general object, which is fairly indicated by its title. To 
require every end and means necessary or convenient for the 
accomplishment of this general object to be provided for by a 
sepanito act relating to that alone, would not only be unreason- 
able, but would actually render legislation impossible. It has 
accordingly been held that the title of " an act to establish a 
police government for the city of Detroit," was not objectionable 
for its generality, and that all matters properly connected with 
the establishment and efficiency of such a government, including 
taxation for its support, and courts for the examination and trial 
of offenders, might constitutjonally be included in the bill under 
this general title. Under any different ruling it was said, " the 
police government of a city could not be organized without a dis- 
tinct act for each specific duty to be devolved upon it, and tliese 
could not he passed until a multitude of other statutes had taken 
the same duties from other officers before performing them. And 
these several statutes, fragmentary as they must necessarily be, 
would often fail of the intended object, from the inherent diffi- 
culty in expressing the legislative will when restricted to such 
narrow bounds." ^ The generality of a title is therefore no objec- 
tion to it, so long OS it is not made a cover to legislation incongruous 
in itself, and which by no fair intendment can be considered. 
as having a necessary or proper connection.^ The legislature 
must determine for itself how broad and comprehensive shall be 
the object of a statute, and how much particularity shall be 
employed in the title in defining it.' One thing, however, is 

< People V. MRhaoer, 13 Mich. 495. See aUo Morford v. Uoger, 8 Iow&, 83, 
and Whiting v. Mount Pleuant, 11 Iowa, 482 ; Bright d. McCulloch, 27 Ind. 
S2S ; Major, &c., of Annapolis v. StaU, 30 Md. 112 ; State e. Union, 33 N. J. 
354. 

• Indiana Central Railroad Co. d. Potta, 7 Ind. 681. 

■ In State o. Powert, 14 Ind. 1D5, an act came under consideration the title 

[151] 



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* 145 C0N8T1TDTI0NAL LIMITATIONS. [CH. TI. 

[* 145] Tery • plain ; that the use of the worda " other purposes," 
which has heretofore been so commoD in the title to acts, 
with a view to cover any and ev^ry thing, whether conoected with 
the main purpoae indicated by the title or not, can no longer be of 
any avail where these provisions exist. As was said by the Su- 
preme Court of New York, in a case where these worda had beea 
made use of in the title to a local bill : " The words ' for other 
purposes' must he laid out of consideration. They eipress 
nothing, and amount to nothing as a compliance with this consti- 
tutional requirement. Nothing which the act could not embrace 
without them can be brought in by their aid." ^ 

3. What is embraced by the title. The repeal of a statute on a 
given subject, it is held, is properly connected with the subject- 
matter of a new statute on the same subject ; and therefore a 
repealing section in the new statute is valid, notwithstanding 
the title is silent on that subject.' So an act to incorporate a roil- 
to wfticb WM, " An act to amend the first secUos of an act entitled * An act 
concerning licenseB to vend foreign mercliacdiBe. to exliibit tn]' caravan, men? 
agerie, drcus, rope and wire dancing puppet-shows, and legerdemain,' approved 
June IS, 1852, and for the encouragement of agriculture, and concerning tbe 
licensing of stock and exchange brokers." It was held that the subject of the 
act was licenses, and that it was not unconstitutional as containing more than 
one subject. But it was held also that, as the licenses which it authorized and 
required were specified in the title, the act could embrace no others, and conse- 
quently a provision in the act requiring concerts to be licensed was void. In 
State D. County Judge of Davis County, 2 Iowa, 280, the act in question was 
entitled " An act in relation to certain State roads therein named." It contained 
sixty-sis sections, in which it established some forty-six roads, vacated some, and 
proTtded for the re-location of others. The court sustained the act. " The 
object of an act may be broader or narrower, more or less extensive ; and the 
broader it is, the more particulars will it embrace. . . . There is undoubtedly 
great abjection to uniting so many particulars in one act, but so long at they are 
of the same nature, and come legitimately under one general detemunation or 
object, we cannot say that tbe act is unconstitutional" P. 284. Upon this sub- 
ject see Indiana Central Railroad Co. v. Potts, 7 End. 684, where it is considered 
at length. Also Brewster t>. Syracuse, 19 N. Y. 116 ; Hall v. Bunte, 20 Ind. 
301. An act entitled " Anactfixing the time and mode of electing State printer, 
, defining his duties, fixing e6mpensation, and repealing all laws coming in conflict 
with this act," was sustained in Walker t. Dunham, 17 Ind. 483. 

■ Town of Fishkill v. FisfakiU and Beekman Plank Road Co. 22 Barb. 643. 
See, to the same efiect, Eyerson p. Utiey, 16 Mich. 269; St. Louis v. TSefel, 42 
Mo. 578. An act entitled " An act to repeal certain acta therein named," is 
void. People r. MeElen, 82 III. 181. 

* Gabbert d. Railroad Co. II Ind. 865. The constitution under which thii 
[152] 



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CH. TI.] OP THE ENACTMENT OP LAWS. * 146 

road * company, it has been held, may authorize counties to [* 146] 
subscribe to its stock, or otherwise aid the construction of 
the road.^ So an act to incorporate the Firemen's Benevolent Asso- 
ciation may lawfully include under this title provisions for levying a 
tax upon the income of foreign insurance companies, at tlie place 
of its location, for the l)enefit of the corporation.^ So an act to 
provide a homestead for widows and cliildren was held valid, 
though what it provided for was the pecuniary means sufRcient to 
purchase a homestead.^ 80 an act " to regulate proceedings in the 
county court " was held to properly embrace a provision giving an 
appeal to the District Court, and regulating the proceedings therein 
on the appesl.^ So an act entitled " an act for the more uniform 
doing of township business " may properly provide for the oi^ani- 
zatioQ of townships.^ So it is held that the changing of the boun- 
daries of existing counties is a matter properly connected with 
the sul^ect of forming uew counties out of those existing.*' So a 
provision for the organization and sitting of courts in new counties 
is properly connected witli the subject of the formation of such 
counties, and may be included in " an act to authorize the form- 
ation of new counties, and to change county boundaries." ^ Many 
other cases are referred to in the note which will further illustrate 
tlie views of the courts upon this subject. There has been a general 

deciiion wm nuide reqaired the Uw to contain but one anbject, and maUer* 
prvperly amneettd tkereieiih ; but the same deduoQ wu made noder the New 
York coottitation, which omita the words here itttlicazed ; knd it may well be 
doubted whetiier the Ie|;Al effect of the provialoii is vvied b; the additjon of 
OMMe words. See Guilford c. Cornell, 18 Barb. 640. 

* Snperrisors, Ac. e. People, 25 HI. 181. So a proviaion for the costs on 
appeal from a justice, is properl/ connected with the sabject of an act entitled 
of " the election and qualification of justices of the peace, and deCoing th^ 
jnriadicdon, powen, and duties in civil cases. " Bobioaon v. Skipworth, 23 Ind. 
311. 

* Firemen's Association v. Iiounsbuiy, 21 Dl. 511. 

* Succession of Lanzetti, 9 La. An. 829. 

* Morphea e. Menard, 11 Texas, 673. 
■ Clinton t>. Draper, 14 Ind. 295. 

* Haggard e. Hawldos, li Ind. 299. And see Duscombe v. Prindle, 13 
Iowa, t. 

' Brandon o. State, 16 Ind. 197. In tlus case, and also in State e. Bowers, 
14 Ind. 198, it was held tbatif the title to an original act is sufficient to embrat^ 
the matters covered bj the provisions of an act amendatory thereof, it is un- 
necEHary to inquire whether the title of an amendatory act wonld, of itself, be 
snffident. And see Morfbrd C. Unger, 8 Iowa, 82. 

[ 163 ] 



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• 146 COMSTITDnONAL LIMITATI0N8. [CH. TI. 

dispoBition to conatrue the constitational proTisioo liberally, rather 
than to embarrass legislatioii by a construction whose strictness is 
UDnecessary to the accomplishmeot of the beneficial purposes for 
which it has been adopted.^ 

' Green v. Major, &a.. B. M. Chsrit. SeSj MRrtin e. Bro*di, 6 Geo. 21 ; 
Protho D. OiT, 12 Geo. 36 ; Wheeler e. State, 23 Geo. 9 ; Hill v. Commissionen. 
' 22 Geo. 208 ; Jones v. Columbus. 2fi Geo. 610 ; Deohsm t>. Holeman, 26 Geo. 
182; Cannon u. HemphJU, 7 Teias, 184; Battle o. Howard, 13 Texas, 345; 
Robinson e. State, 16 Teiaa, 3U ; Conner p. Mayor, &c., of New York, 2SMidf. 
355, and 6 S. Y. 285 ; Fishkill v. Plank Road Co. 22 Barb. 634 ; Brawster v. 
Syracuse, 19 N. Y. 116 ; People v. McCann, 16 H. Y. 68 ; WiUiams b. People, 
24 N. r. 406 ; People o. Lawrence, 36 Barb. 177 ; Sharp v. Mayor, &c., of New 
York, 31 Barb. 672; Davis v. Sute, 7 Md. 61 ; Keller d. State, 11 Md. 625; 
Firkinaon e. State, 14 Md. 184; Bosaier c. Steele, 13 La. An. 433; Lieron «. 
Dnfoe, 9 La. An. 829; Sutec. Harrison, 11 La. An. 722; Williams c. Payson, 
14 La. An. 7 ; Fletcher t>. OliTer, 2S Ark. 298 ; Hewherter v. Price, 11 Ind. 199 ; 
Gabbert ». Eailnaad Co. ib. 865 ; Railroad Co. c. Whiteneck, 8 Ind. 217 ; WU- 
ktns p. Miller, 9 Ind. 100 ; Foley v. State, ib. 363 ; Gillespie c. State, A. 380 ; 
Henry V. Henry, 13 Ind. 250; Igoe c. State, 14 Ind. 239; Hi ggard c. Hawkins, 
ib. 299 ; Eeed v. State, 12 Ind. 641 ; Sturgeon e. Hit^chens, 22 Ind. 107 ; Lauer 
e. State, i6. 461 ; Central Plank Road Co. v. Hannaman, ih. 484; Gifford p. 
Raiboad Co. 2 Stockt. 171; Johnson r. Higgins, 3 Met. (Ey.) 566; Chiles 
D. Drake, 2 Met. (Ky.) 146 ; Louisrille, An., Co. o. Ballard, ib. 166 ; Phillips p. 
Covington, &c., Co. ib. 219; Cbilea v. Monroe, 4 Met. (Ey.) 72; Common- 
wealth D. Dewey, 16 Grat. I ; Whiting v. Mount Pleasant, 11 Iowa, 482 ; Tuttie 
t>. Strout, 7 Minn. 466; Supervisors, &c. v. Heenan, 2 Minn. 930; RaihviadCo. 
e. Gregory, 16 lU. 20 ; People v. Mellen, 32 111. 181 ; Cullip o. Sheriff, 3 W. Va. 
688; McAonich v. Mississippi, &c., R.R. Co. 20 Iowa, 388; Bute e. Gut, 13 
Minn. 341. 

In Davis 0. Woolnough, 9 Iowa, lOJ:, an act entitled "An act for revising 
and consolidating the laws incorporating the city of Dubuque, and to establish 
a dty court therein," was held to express by its title but one object, which 
was, the reviling and consolidating the laws incorporating the city ; and the 
(uty court, not being an unusual tribunal in such a municipality, might he pro~ 
vided for by the ad,, whether mentioned in the title or not. *' An act to enable 
the luperrisors of the city and county of New York to raise money by tax," 
provided for raising money to pay judgments then existing, and also any there- 
after to be recovered ; and it also contabed the further provision, that whenever 
the controller of the city should have reason to believe that any judgment then 
of record or thereafter obtained had been obtained by collusion, or was founded 
in fraud, he should take the proper and necessary means to open and reverse the 
same, &c. This provision was held constitutional, as properly connected with 
the subject indicated by the title, and necessary to con&ne the payments of the 
tax to the objects for which the moneys were intended to be raised. Sharp p. 
Mayor, &c., of New York, 31 Barb. 572. In O'Leary p. Cook Co. 28 lilt 634, 
it was held that a clause in an act incorporating a college, prohibiting the sale 
[164] 



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CH. TI.] OP THE ENACTMENT OF LAWS. • 147 

*4. IR« effect if the title embrace more than one object. [• 147] 
Perhaps in those States where this constitutional provision 
is limited * in its operation to private and local bills, it [* 148} 
might be held that an act vas not void for embracing two 
or more objects which were indicated b; its title, provided one of 
them only was of a private and local nature. It has been held in 
New York that a local bill was not void because embracing general 
provisions also ; ^ and if they may constitutionally be embraced in 
the act, it is presumed they may also be constitutionally embraced 
in the title. But if the title to the act actually indicates, and the 
act itself actually embraces, two distinct objects, when the consti- 
tution says it shall embrace but one, the whole act must be treated 
as void, from the manifest impossibiUty in the court choosing 
between the two, and holding the act valid as to the one and void 
as to the other. 

6. The effect where the act it broader than the title. But if the 
act is broader tlian the title, it may happen that one part of it can 
stand because indicated by the title, whUe as to the object not in- 

oT ardeot spirit) within a diitance of four mileB, wu bo germane to the primaiy 
object of tlie duller u to be properl; included within it. By the Grst section 
of "an act for the relief of the creditors of the Lockport and Niagara Falls 
R^nisd Companv," it was made the duty of the president of the eorporatioQ, or 
one of the directors to be appointed by the president, to adrertige and sell the 
real and personal estate, including the franchise of the company, at public auction 
to the highest bidder. It was then declared that the sale should be absolute, 
' and that it should vest in the purchaser or purchasers of the property, real or 
persona], of the company, all the franchise, rights, and privileges of the cor- 
poration, as fully and as absolutely as the same were then possessed by the 
company. The money arising from the sale, after paying costs, was to be applied, 
Grst, to the payment of a certain jndgment, and tlien to otlier liens according 
to priority ; and the surplus, if any, was to be divided ratably among the otber 
creditors, and then if there should be an overplus, it was to be divided ratably 
among the then stockholders. By the second section of the act, it was declared 
that tfi« purchaser or purchasers should have the right to sell and distribute 
stock to tbc full amount which was authorized by the act of incorporation, and 
die several amendments thereto; and to appoint an election, choose directors, 
and organize a corporation anew, with the same powers as the existing company. 
There was then a proviso, that nothing in the act should impair or affect the 
subscriptions for new stock, or the obligations or liabilities of the company 
sAich bad been made or incurred in the extension of the road <n>m Lockport to 
Rochester, Ac. The whole act was held to be constitutional. Mosier c. Hilton, 
le Barl). 657. 

> People V. McCann, 16 N. T. 68. 

[166] 



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• 148 CONBTITUTIONAL LIMITATIONS. [CH. TI. 

dicated by the title it must fail. Some of the State constitutions, 
it will be perceived, have declared that this shall be the rule ; but 
the declaration vas unnecessary ; as Uie general rule, that so much 
of the act as is not in conflict with the constitutioa must be sus- 
tained, would have required the same declaration from the courts. 
If by striking from the act all that relates to the object not 
indicated by the title, that which is left is complete in itself, 
sensible, capable of being executed, and wholly independent of that 

which is rejected, it must be sustained as constitutiooal. 
[• 149] • The principal questions in each case will therefore be, 

whether the act is in truth broader than the title ; and if 
BO, then whether the other objects in the act are ho intimately 
connected with the one indicated by the title that the portion of the 
act relating to them cannot be rejected, and leave a complete and 
sensible enactment which is capable of being executed. 

As the legislature may make the title to an act as restrictive as 
they please, it is obvious that tliey may sometimes so frame it as 
to preclude many matters being included in the act which might 
with entire propriety have been embraced in one enactment with 
the matters indicated by the title, but which must now be excluded, 
because the title baa been made unnecessarily restrictive. The 
courts cannot enlarge the scope of the title ; they are vested with 
uo dispensing power ; the constitution has made the title the con- 
clusive index to the legislative intent as to what shall have 
operation ; it is no answer to say that the title might have been 
made more comprehensive, if in fact the legislature have not seen 
fit to make it so. Thus, " An act concerning promissory notes and 
bills of exchange " provided that all promissory notes, bills of 
exchange, or other inetrumenta in wrUing, for the payment of 
money, or for the delivery of specific articles, or to convey property, 
or to perform any other stipulation therein mentioned, should be 
negotiable, and assignees of the same might sue thereon in their 
own names. It was held that this act was void, as to all the 
instruments mentioned therein except promissory notes and 
bills of exchange ; ^ though it is obvious - that it would have 
been easy to frame a title to the act which would have em- 
braced them all, and which would have been unobjectionable. 
It has also been held that an act for the preservation of 
the Muskegon B^iver Improvement could not lawfully provide 

' Mewherter t>. Price, XI Ind. 199. 
[156] 



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CH. Tl.] OP THE ENACTMENT OP LAWS. * 149 

for the levy and collection of tolls for tlie payment of the 
expense of cotutructing the improvement, as the operation of 
the act was carefully limited by its title to the future.^ So also it 
has been held that *' an act to limit the number of grand Jurorsi 
and to point out the mode of their selection, defining their 
jurisdiction, and repealing all laws inconsistent therewith," could 
not constitutionally contajn provisions which should authorize 
a defendant in a criminal case, on a trial for any ofifenoe, 
to be found guilty of any lesser offence necessarily 
* included therein.* These cases must suffice upon this [* 150] 
point; though the cases before referred to will furnish 
many similar illustrations. 

In all WD have said upon this subject we have assumed the con- 
stitutional provisiou to be mandatory. Such has been the view of 
the courts almost without exception. In California, however, a 
different view has been taken, the court saying: "We regard this 
section of the constitution as merely directory ; and, if we were in- 
clined to a different opinion, would be careful how we lent 
ourselves to a construction which must in effect obliterate almost 
every law from the statute-book, unhinge the business and destroy 
the labor of the last three years. The first legislature that met 
under the constitution seems to have considered this section as 
directory ; and almost every act of that and the subsequent BessiDnB 
would be obnoxioQB to tills objection. The contemporaneous 
exposition of the first I^islature, adopted or acquiesced in by 
every subsequent legislature, and tacitly assented to by the courts, 
taken in connection with the iact that rights have grown up under 
it, BO that it has become a rule of property, must govern our 
decision." ' Similar views have also been expressed in the State 
of Ohio.* These cases, and especially what is said by the Califor^ 
nia court, bring forcibly before our minds a fact, which cannot be 

' BjenOD 0. Utlej, 16 Mich. 269. See further Weaver r. L^nley, 48 Ala. 
S29 ; Tiucalooca Bri^e Co. v. Olmateftd, 41 Ala. 9 ; Btoart e. EinaellR, 14 ICiin. 
£24. In Cntlip o. Sheriff, S W. Vi. 688, it was held that iron act embraces two 
objects, oalf ooe of which is specified in the title, the whole is void ; bnt this 
ia oppoced to the authorities generally. 

■ TtAtj V. State, 9 Ind. S63 ; Gillespie e. State, tb. 880. See also Indians 
Cent. Railroad Co. r. Potts, 7 Ind. 681 ; Sble e. Squires, 26 Iowa, S40 ; State 
9. Laftfette Co. Court, 41 Mo. 89. 

* Washington o. Mamj, 4 Cal. 388. 

* Miller V. State, 3 Ohio, h. a. 476 ; Pim v. Nicholson, 6 Ohio, m. a. 177. 

[157] 



DiBfedBvG00<^IC 



• 150 CONSTITDTIONAL LUdTATIONS. [CH. TI. 

kopt out of view ia conaidering this subject, aud whicli has a very 
important bearing upon the precise point which these decisioiiB 
cover. The fact is this : that whatever constitutional provision can 
be looked upon as directory merely is very likely to be treated by 
legislature as if it was devoid even of moral obligation, and to be 
tberefore habitually disregarded. To say that a provision is 
directory seems, with many persons, to be equivalent to saying 
that it is not law at all. That this ought not to be so must be con- 
ceded ; that it ia bo we have abundant reason and good authority 
for saying. If, therefore, a constitudonal provision is to be enforced 
at all, it must be treated as mandatory. And if the l^slature habit- 
ually disregard it, it seems to us that there is all the more urgent 
necessity that the courts shoold enforce it. And it also 
[* 151] seems to us that there are few evils which * can he indict- 
ed by a strict adherence to the law, so great as that which 
is done by the habitual disregard, by any department of the 
government, of a plain requirement of that instrument from which 
it derives its authority, and which ought, therefore, to be scrupu- 
lously observed and obeyed. Upon this subject we need only refer 
here to what we have said concerning it in another place.^ 



Amendatory Slaiutet. 

It has also been deemed important, in some of the States, to 
provide by their constitutions, that " no act shall ever be revised 
or amended by mere reference to its title ; but the act revised or 
section amended shall be set forth and published at full length."' 
Upon this provision an important query arises. Does it mean 

> Ante, p. 74. 

' Tbu is the proTisioii as it it found id the ConBtitotiona of Indiana, Nerada, 
Oregon, Texas, and Virginia. In Eanaaa, Ohio, Nebraska, Michigan, Louiaiana, 
Wisconsin, Missouri, and Maryland there are proriaiona of Bioailar import. In 
Tennessee the provision ia: "All acta which revive, repeal, or amend former 
laws, shall recite in their caption or otherwise, the title or substance of the law 
repealed, raTived, or amended." Art- 1, % 17. 

Id Texas it appears to be held that the legialature ma^ repeal a definite por- 
tion of a section without the re-enactment of the section with such portion omitted. 
Chambers n. State, 25 Texas, 307. But ^are of this. An; portion of a section 
amended which is not contained in the amendatorj section ai aet forth and pab- 
lithed is repealed. State v. Ingeraoll, 17 Wia. 631. 
[158] 



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CH. TI.] OP THE ENACTUEKT OP LAWS. * 151 

that the act or secUon revised or amended shall be aet forth and 
published at full length as it stood before, or does it mean only 
that it shall be set forth and published at full length as amended 
or revised ? Upon this questioa perhaps a consideration of the 
purpose of the provision may throw some light. " The mischief 
deajgoed to be remedied was the enactment of amendatory stat- 
utes in terms so blind tliat legislators themselves were sometimes 
deceived in regard to their effects, and the public, from the' diffi- 
culty in making the necessary examination and comparison, failed 
to become apprised of the changes made in the laws. An 
amendatory act which purported only to insert certain words, or to 
substitute oue phrase for another in an act or section which was 
only referred to, but not published, was well calculated to mis- 
lead the careless as to its effect, and was, perhaps, sometimes 
drawn in that form for the express purpose. Endless confusion 
was thus introduced into the law, and the constitution wisely pro- 
Itibiled such legislation." ^ If this is a correct view of the pur- 
pose of the provision, it does not seem to be at all important to 
its accomplishment that the old law should be republished, if the 
aw as amended is given in full, with such reference to the old 
law as will show for what the new law is substituted. 
Nevertheless,* it has been decided in Louisiana that the [• 152] 
constitution requires the old law to be set forth and pub- 
lished ; ^ and the courts of Indiana, assuming the provision in their 
own constitution to be taken from that of Louisiana after the deci- 
sions referred to had been made, at one time adopted and followed 
them as precedents.^ It is believed, however, that the general 
understanding of the provision in question is different, and that it 
is fully complied with in letter and spirit, if the act or sectioa 
revised or amended is set forth and published as revised or amended, 
and that any thing more only tends to render the statute unneces- 
Barily cumbrous.* Statutes which amend others by implication, 
however, are not within tliis provision ; and it is not essential that 

■ People V. Mabuer, 13 Mick 497. 

■ Walker v. CkldweU, i La. An. 297 ; Hein of Dnverge e. Salter, 6 La. An. 
M. 

* Langdon r. Applegate, 5 JnA. 327; Rogers e. State, 6 Ind. 81. Theto 
cuet were ovemded in Gr«eiica«tle, &&, Co. t>. State, 2B Ind. 882. 

* See Toicaloou Bridge Co. v. Olmstead, 41 Ala. 9 ; People d. PrHcbard, SO 



[169] 

DiB.1izedOyGoO<^lc 



• 152 cosBTmrriONAL UHiTAnOKS. [oh. n. 

they even refer to the acts or sections which hj implication they 
amend.^ 

It was a parliamentary rule that a statute should not be re- 
pealed at the same session of its enactment, unless a clause per- 
mitting it was iuserted in the statute itself;^ but this rule did 
not apply to repeals by implication,^ and it is possibly not recog- 
nized in this country at all, except where it is incorporated in the 
State constitution.* 

Signing of BUU. 

When a bill has passed the two houaes, it is engrossed for the 
signatures of the presiding oflicers. This la a constittttioaal re- 
quirement in most of the States, and therefore cannot be dis- 
pensed with ; though, in the absence of any such requirement, it 
would seem not to be essential.^ And if, by the consli- 
[ 'ISS] tution of " the State, the governor is a component part of 
the legislature, the bill is then presented to him for his 
approval. 

Approval of Laws. 

The qualified veto power of the governor is regulated by die 
constitutions of those States which allow it, and little need be 
said here beyond referring to the constitutional provisions for 
iiiformatiou concerning them. It has been held that if the gov- 
ernor, by statute, was entitled to one day, previous to tlie adjourn- 
ment of the legislature, for the examination and approval of laws, 

' People p. Mahsney, 13 Uieh. 496 ; Spencer e. Sute, 5 Ind. 41 ; BnDb*m v. 
Luge, 16 Ind. 4ST ; Lehman e. McBiide, 15 Ohio, M. s. 673. Repeats hj im- 
j^catioD, hoireTer, are not favored. Ibid. And see Naylor v. Field, 6 Dutch. 
287; State p. Berry. 12 Iowa, 58; Attomey-Gdneral c. Brown, 1 Wis. 525; 
Dod^ t>. Gridle;, 10 Ohio, 177 ; Hira v. Stale, 1 Ohio, it. B. 20; McCool t>. 
Smith, 1 Black, 4£9 ; New Orleaoi v. Southern Bank, 15 La. An. 89 ; Blain o. 
Bailey, 25 Ind. 165 ; Swana r. Buck, 40 Mias. 268 ; Davij p. State, 7 Md. 151 ; 
St&tCD. The Treaiurer, 41 Mo. 16. 

■ Dwarris on Statotea, Vol. I. p. 269 ; Sedgw. on Sut. and Conat. Law, 122 ; 
Smith on Sut. and Conat. Conatniction, 908. 

' Ibid. And see Spencer p. State, 6 Ind. II. 

* Spencer e. State, 5 Ind. 41 ; Attorne7.<jeneraI p. Brown, 1 Wia. 513 ; Smith 
on Stat, and Conat. Conttraction, 908; Mobile & Ohio Bailroad Co. e. State, 29 
Ala. 573. 

■ Speer v. Flank Road Co. 22 Penn. St. 376. 

[160] 



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CB. TI.3 07 THE ENACmENT OF LAWS. * 15S 

this is to be underBtood as a full day of twenty-four hours, before 
the hour of the final adjourumeut.^ It has also beeu held that, 
in the approval of laws, the governor is a component part of the 
legislature, aud that unless the constitution allows further time 
for the purpose, he must exercise bis power of approval before 
the two houses adjourn, or his act will bo void.* But under a 
provision of the constitution of Minnesota, that the governor may 
approve and sign " within three days of the a^ournment of the 
legislature any act passed during the last three days of the ses- 
sion," it has been held that Sundays were not to be included as 
a part of the prescribed time;^ and under the coustitntion of 
New York, which provided that, " if any bill shall not be returned 
by the governor within ten days, Sundays excepted, after it shall 
liave beeu presented to him, the same shall be a law, iu like man- 
ner as if he bad signed it, unless the legislature shall, by their 
adjournment, prevent its return, in which case it shall not be a 
law," it was held that the governor might sign a bill after the 
adjournment, at any time within the ten days.* The governor's 
approval is not complete until the bill has passed beyond his 
control * by the constitutional and customary mode of leg- [* 154] 

' Hyde u. White, 24 Teww, 137. Tha five daya allowed in New Hwopsbire ■ 
fer the governor to retam bills which have not received his aasent, include days 
on wbidithe legislatim is aot in session, if it hat not finally adjonmed. Opinions 
of Judges, 45 N. H. 607. . But the day of presenting the bilt to the governor 
should be excluded. Ibid. 

Neither house cao, without the consent of the odier, recall a bill after its 
tnnsmission to the governor. People t>. Devlin, SS N. Y. 269. 

The delivery of a bill passed by the two houses to the secretaiy of tha 00m- 
iDODwealth according to custom, is not a presentation to the governor for his 
apjHDval, within tite meaning of llie constitutioual claoee which limits him to a 
certain number of days after Uie presentation of the bill to veto it. Opinions of 
the Justices, 99 Mass. 696. 

■ Fowler c. Peirce, 2 Cal. 166. The coart also held in this case ^lat, notwith- 
standing an act purported to have been approved before tha actual adjournment, 
it was competent to show by parol evidence that the actual approval was not 
■mtil the next day. In support of thia ruling. People v. Furdy, 2 Hill, 81, was 
cited, where it was held tliat the court might go behind the statute-book and in- 
qnirc whether an act to which a two-thirds vote was esaential had constitutionally 
passed. That, however, would not be in direct contradiction of the record, 
bat it would be inquiring into a fact concerning which the statute was silent, and 
olber records supplied the needed information. 

■ Stinson p. Smith, 8 Minn. 366. 
* People V. Bowen, 80 Batb. 24. 

11 [ 161 ] 



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• 154 CONSTITUTIONAL LIHITATIONB. [CH. VI. 

isl&tion ; and at any time prior to that he may recoDBider and retract 
any approval previously made.^ His disapproval of a bill is com- 
manicated to the houae in which it originated, with liis reasons ; 
aiid it is there recoasidered, and may be again passed over the 
veto by such vote as the constitution prescribes.^ 

' People v. Hatch, 19 SI. 2S8. Ad act apportioning the representativeB wu 
passed by ttie legialature and transmitted to the governor, who signed his appro- 
val thereon bj mistake, supposing at the time that he was BubacHbing one of 
several other bills then lying before him, and claiming bis official attention ; his 
private eetretary thereupon reported the bill to the iegialature as approved, not 
by the spucial direction of tlie governor, nor with hia' knowledge or special assent, 
but merely in his usual routine of customary duty, the governor not being con- 
scious that he had placed his signature to the bill until alter inrormstion was 
brought to him of its having been reported approved; whereupon he sent a mes- 
sage to the speaker of the house to which it was reported, stating that it had 
been inadvertentlj signed and not approved, and on the same day completed a 
veto message of the bill which was partially written at the time of signing his 
approval, and transmitted it to the house where the bill originated, having first 
erased his signature and approval. It was held that the bill had not became a 
law. It had never passed out of the governor's possession after it was received 
hj him until after he bad erased his signature and approval, and the court was 
of opinion that it did not pass from his control until it bad become a Ian by the 
lapse often days under the constitution, or by his depositing it with his approval 
in the office of the secretary of state. It had long been tbe practice of the gov- 
ernor to report, formerly through the secretary of state, but recently through his 
private secretary, to the house where bills originated, hia approval of them; but 
this was only a matter of formal courtesy, and not a proceeding necessary to the 
making or imparting vitality to the law. By it no act could become a law which 
without it would not be a law. Had the goremor returned the bill itself to the 
house, with his message of approval, it would have passed beyond his control, 
and the approval could not have been retracted, unless the bill had been willi- 
drawn by consent of the house ; and the same result would have followed his 
filing the bill with the secretary of slate with his approval subscribed. 

The constltuUon of Indiana provides, art. 6, § 14, that, " if -any bill shall not 
be returned by the governor within three days, Sundays excepted, after it shall 
have been presented to him, it shall be a law without his signature, unless the 
general adjournment sbal) prevent its return ; in which case it shall be a lav 
unless the governor, within five days next alter the ailjournntcnt, shall file such 
bill with his objections thereto, in tbe office of the secretary of stAte," &c. Under 
this provision it was held that where tbe governor, on the day of the final ad- 
journment of the legislature, and aller the adjournment, filed a bill received that 
day, in the office of tbe secretary of state, without approval or objections thereto, 
it thereby became a law, and be could not file objections afterwards. Tarlioa p. 
Peggs, 18 Ind. 24. 

* A bill which, as approved and signed, differs in important particulars from 
the one signed, is no law. Jones v. Hutchinson, 43 Ala. 721. 
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CH. TI.] OF THB ENACrTHENT OF LA.WB. 



* Other Powert of (he Governor. l*15S] 

The power of the governor as a braiich of the legislative de- 
partment is almost excInsiTelj confined to the approval of bills. 
A3 executive, he communicates to the two houses information 
concerning the condition of the State, and ma; recommend 
measures to their consideratiou, but he cannot originate or intro- 
duce bills. He may convene the legislature in extra sesaioa 
whenever extraordinary occasion seems to have arisen ; but their 
powers when convened are not confined to a consideration of the 
sul^ects to which tbeir attention is called hy bis proclamation or 
his message, and tbey maj legislate on an; subject as at the 
regular sessions.' An exception to this statement exists in those 
States where, b; the express terms of the constitution, it is pro- 
vided that when convened in extra session the legislature shall 
coiiaider no subject except that for which the; were specially 

ir tbe governor sends back a bill vrhich has been submitted to bim, sta^ng 
thkt he cannot act upon it bec&nse of some supposed informalit}' in its paMage, 
this is in effect an objection to the bill, and it can only become a law by further 
•etioD of the legislature, even though the governor may have been mistaken ■> 
to tbe supposed infonnality. Birdsall u. Carrick, 3 Nev. 154. 

Tn practice the veto power, althougb very great and exceedingly important in 
tiu« coontry, b obsolete in Great Britain, and no king now ventures to resort to 
it. As the Ministry must at all times be in accord irith the House of Commons, 
— except where the responsibility is taken of dissolving the Parliament and 
appealing to tbe people, — it must follow tbat any bill which the two houses have 
passed must be approved by the monan^b. Tbe approval has become a matter 
of coarse, and tbe governing power in Great Britain is subBtantially in the House 
of Commons. 1 Bl. Com. 1B4— 5, and notes. 

' The constitution of Iowa, art. 4, § II, provides that the governor " may, 
on extnordinaiy occasions, convene the General Assembly by proclamation, and 
shall state to both houses, when assembled, the purpose for which they have been 
convened." It was held in Morfard c. Unger, 8 Iowa, 82, that the General 
Assembly, when thus convened, were not cor.ftued in their legislation to the pur- 
poaea specified in the message. " When lawfully convened, wbether in virtue of 
tbe provision in the constitution or the governor's proclamation, it is the ' General 
Assembly' of the State, in which the full and exclusive legislative authority of 
tbe State is vested. Where its business at such session is not restricted by some 
constitutional provision, tbe General Assembly may enact any law at a special or 
extra sessioa that it might at a regular session. Its powers, not being derived 
from the governor's proclamation, are not conGned to the special pui^tose for 
which it may have been convened by bim." 

[163] 



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• 155 CONSTITUTIONAL LIMITATIONS. [CH. TI. 

called together, or which may have been submitted to them bj 
special mesBa^ of the goveraor.' 

JVhen AcU are to take Effect. 

The old rule vos fliat Btatutee, anlees otherwise ordered, look 
effect from the first day of the Beseion on which thej were 
[* 156] paased ; ' * but this rule was purely arbitrary, based upon 
no good reason, and frequently working very serious 
injustice. The present rule is that an act takes effect from the 
time when the formalities of enactment are actually complete 
under the constitution, unless it is otherwise ordered, or unless 
there iB Bome constitutional or statutory rule on the subject 
which prescribes otherwise. By the constitution of Mississippi,' 
" no law of a general nature, unless otherwise provided, shall be 
enforced until sixty days after the passage thereof." By the 
constitution of niinois,* no act oS the General Assembly shall 
take effect until the first day of July next after its passage, unless 
in case of emei^ncy (which emergency shall be expressed iu 
the preamble or body of the act) the General Assembly shall, 
by a vote of two thirds of all the members elected to each house, 
otherwise direct. By the constitution of Michigan,* no public, 
act shall take effect, or be in force, until the expiration of ninety 
days from the end of the seseioii at which the same is passed, 
unless tite legislature shall otherwise direct by a two-thirds vote 
of the members elected to each house. These and similar pro* 
visions are designed to secure, as far as possible, the public 
promulgation of the law before parties are bound to take notice 
of and act under it, and to obviate the injustice of a rule which 
should compel parties at their peril to know and obey a law of 
which, in the nature of things, they could not possibly have heard ; 
they give to all parties tiie lull constitutional period in which to 
become acquainted with the terms of the statutes which are passed, 
except when the legislature has otherwise directed ; and no one 
is bound to govern his conduct by the new law unUl that period 

' Provisions to this effect will be found ia (he L-onBtiCutioni of DUdoie, Hichi- 
gftD, Missouri, and Nevada ; perhtipg in Rome others. 

■ 1 Lev. 91 ; Latlecs v. Holmeg. 4 T. R. 660. Thii is changed bj S3 Geo. 
m. C 13, bj which statutes since pssaed take effect from the day when they 
receive the royal assent, unless otherwise ordered therein. 

' Art. 7, § 6. * Art. 3, § 2$. • Art. 4, g 20. 

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CH. TI.] OF THE EHA.CTUENT OF LAWB. * 156 

has elapsed.^ And the fact that, hj the termfl of the statute, 
something is to be done under it before the expiration of the 
constitutional period for it to take effect, will not amount to a leg- 
islative direction that the act shall take effect at that time, if the 
act itself is silent as to the period when it shall go into opera- 
tion." 

•The constitution of Indiana provides' that "no act [^IST] 
shall take effect until the same shall have been published 
and circnlated in the several counties of this State, by authority, 
except in case of emergency ; which emei^ncy shall be declared 
in ttie preamble, or in the body of the law." Unless the 
emei^ncy is thus declared, it is plain that the act cannot take 
earlier eSect.* But the courts will not inquire too nicety into the 
mode of publication. If the laws are distributed in bound vol- 
umee, in a manner and shape not substantially contrary to the 
statute on that subject, and by the proper authority, it will be 
held sufficient, notwithstanding a failure to comply with some 
of the directory provisions of the statute on the subject of 
publication.^ 

■ Prioe 0. Hopkin, 18 Mich. Sl!t. S«e, howerer, Smith e. Morrlion, 22 Hck. 
430 ; Sttne v. Bennett, 13 Mian. 153. Where a law has f&iled to take eSTect for 
want of publication, all partJea are cbargeahle with notice of that fact. Clark 
V. Janeiville, 10 Wifl. 136. 

* SaperriBon of Iroquois Co. e. Keady, S4 III. 29S. An act for the removal 
of 1 count}' teat provided for taking the vote of the electors of the count/ upon 
it on the 17th of March, 1863, at which time the Icgiilature had not adjourned. 
It WH not exprewlf declared in the act at what time it should take effect, and it 
was therefore held that it would not take effect until slstj daja from the end of 
the session, and a vote of the electors taken on the 17th of March was void. 
And it was also held in this case, and in Wheeler v. Chubbuck, 16 Dl. 361, that 
" the direcdoD most be made in a clear, distinct, and unequivocal provision, and 
eonld not be helped out by any sort of int«odment or implication," and that th^ 
act nnst all take effect at once, and not bj piecVneal. 

» Art. 4, S 28. 

* Carpenter v. Montgomety, 7 Blackf. 415 ; Hendiickson tr. Hendricksou, 7 
Ind. 13 ; Mark v. Stal«, IS Ltd. 98. The legislature must necessorttx in these 
eases be judge of the existence of the emergency. Carpenter c. Montgomery, 
n^a. The constitution of Tennessee provides that "No law of a general 
nature shall take effect nntil forty days after its passage, unless the same, or the 
caption, shall state that the public welfare requires that it should take efl^ 
•omter." Art. 1, § 20. 

' State V. Bailey, 16 Ind. 46. See further, as to this constitutional provision, 
Jones V. Cavins, i Ind. 306. 

[165] 



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• 157 corranTDTiosAL UMiTAnoNS. [ch. ti. 

The constitution of Wiscouaia, on the other band, providea ^ 
that "' no general law shall be in force until publiahed " ; thua 
leaving the time when it should take effect to depend, not alone 
upon the legislative direction, but upon the further fact of puhli- 
catJou. But what shall be the mode of publicatioD seems to be 
left to the legislative determination. It has been held, however, 
that a general law was to be' regarded as publithed ^though 
printed in the volume of private laws, instead of the volume of 
public laws as the statute of the State would require.^ But an 
unauthorized publication — as, for example, of an act for the in- 
corporation of a city in two local papers instead of the State 

paper — is no publication in the constitutioual sense.^ 
[•158] * The constitution of Iowa provides that "no law of tlie 
General Assembly, passed at a regular session, of a public 
nature, shall take effect until the fourth day of July next after the 
passage thereof. Laws passed at a special session shall take 
effbct ninety days after the adjournment of the General Assembly 
by which they were passed. If the General Assembly shall deem 
any law of immediate importance, they may provide that the same 
shall take effect by publication in newspapers in the State."* 
Under this section it is not competent for the legislature to 
confer upon the governor the discretionary power which the 
constitution gives to that body, to fix an earlier day for the law to 
take effect.' 

' Art. 7, § 21. 

• Matter of Boyle, 9 Wis. 264. Under tliia proTiwon it hu been decided that 
a latT eetabliahing a municipal court in a city is a general law. Matter of Boyle, 
tupra. AUo a statute for the removal of a county seat.- State V- L«aii, 9 Wis. 
279. Also a statute incorporating a manicipaLty, or aalborizing it to ianie bonds 
in aid of a railroad. Clark P. Janearille, 10 Wis. 136. And see Scott v. Clark, 
1 Iowa, 70. 

■ Clark t>. Janesvitlc, 10 Wi* 136. See further, MiUi v. J«fleraon, 20 Wis. 
50. 

• Art. 8, § 26. 

' Scott v. Clark, I Iowa, 70 ; Pilkey v. Gleason, ib. 622. 
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CH. Vn.] DBCLABINa STATUTES UNCONSTITUTIONAL. 



•CHAPTER VII. ['ISg] 

OF THE CIRCUB1STANCE8 UNDEB WQICH A LEGISLATIVE ENACTMENT 
UAT BE DECLABED UNCONSTITUTIONAL. 

We have now examined Bomewhat briefly the legislative power 
of the State, and the bounds which expressly or by implication are 
set to it, and also some of the conditions necessary to its proper 
and valid exercise; In so doing it has been made apparent that, 
ander some circumstances, it may become the duty of the courts to 
declare tliat what the legislature has assumed to enact ia void, 
either from want of constitutional power to enact it, or because the 
constitutional forms or conditions have not been observed. In the 
farther examination of our subject, it will be important to consider 
what the circumstances are under which the courts will feel im- 
pelled to . exercise this high prerogative, and what precautions 
should be observed before assuming to do so. 

It moat be evident to any one that the power to declare a legisla- 
tive enactment void is one which the judge, conscious of the 
fallibility of the human judgment, will shrink from exercising in 
any case where he can conscientiously and with due regard to duty 
and official oath decline the responsibility. The legislative and 
judicial are co-ordinate departments of the government, of equal 
dignity ; each is a]ike supreme in the exercise of its proper 
fuuctioDS, and cannot directly or indirectiy, while acting within the 
limits of its authority, be subjected to the control or supervision of 
the other, without an unwarrantable assumption by that other of 
power which, by the constitution, is not conferred upon it. The 
constitution apportions the powers of government, but it does not 
make any one of the three departments subordinate to another, 
when exercising the trust committed to it. The courts may declare 
legislative enactments unconstitutional and void in some cases, but 
not because the judicial power is superior in degree or dignity to 
the legislative. Being required to declare what the law ia in the 
cases which come before them, they must enforce the con* 
stitutiou as the paramount law, whenever a le^Iative *en- [* I6O3 

[167] 



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• 160 CONBTTrtmOBAL UWTATIONS. [CH. VH. 

actment comes in conflict with it.' But the courts sit, not 
to review or revise the legislative action, but to enforce the 
legislative will ; and it is onlj where they find that tiie legislature 
has failed to keep within its constitutional limits, that they are at 
liberty to disregard its action ; and in doing so, they only do what 
every private citizen may do in respect to the mandates of the 
courts when the judges assume to act and to render judgments or 
decrees without jurisdiction. "In exercising this high authority, 
the judges claim no judicial supremacy ; they are only tlie admiuifr- 
trators of the public will. If au act of tlie legislature is held void, 
it is not because tlie judges have any control over the legislative 
power, but because the act is forbidden by the constitution, and 
because the will of the people, which is therein declared, is 
paramount to that of their representatives expressed in any 
law."> 

Nevertheless, in declaring a law unconstitutional, a court must 
necessarily cover the same ground which has already been covered 
by the legislative department in deciding upon the propriety of 
enacting the law, and they must indirectly overrule the decision of 
that co-ordinate department. The task is therefore a delicate one, 
and only to be entered upon with reluctance and hesitation. It is 
a solemn act in any case to declare that that body of men to whom 
the people have committed tlie sovereign function of making the 
laws for the commonwealth, have deliberately disregarded the 
limitations imposed upon this delegated authority, and usurped 
power which the people have been careful to withhold ; and it is 
almost equally so when the act which is adjudged to be unconstitu- 
tional appears to he chargeable rather to carele,8S and improvident 
action, or error in judgment, than to intentional disregard of 
obligation. But tJie duty to do this in a proper case, though at one 
time doubted, and by some persons persistently denied, it is now 
generally agreed that the courts cannot properly decline, and in its 
performance they seldom fail of proper support if they proceed with 
due caution and circumspection, and under a proper sense as well 
of their own responsibility, as of the respect due to the action and 
judgment of the law-makers.^ 

< RiM t>. St&te, 7 Ind. 934 ; Bloodgood v. Mobawk and Hodaon Bailrosd Co. 
18 Wend. 63. 

* LindsBj' e, CommiBBionan, &c., 2 Baj, 61. 

* Hen are &t least two cues in American judicial histoi; where judges have 

[168] 



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CH. TM.] DBOLARINQ STATUTES UNOONSTITDTrOHAL. * 161 

*I. In view of the conBiderattonB which liave been Bug- [* 161] 
gested, the rule which is adopted by aome courts, that tliej 

be«n inipeacbed as criniDals for refusing to enforce unconstitutional enactments. 
One of these — the cue of Trevett c. Weedon, decided by the Superior Court of 
Bltode Istutd in 1786 — is particularly interesting as being the first case in nhich 
k legislative enactment was declared unconititutional and void on the ground of 
incompatibilitj with the State coostitutioo- Mr. Arnold, in his history of Rhode 
Island, Tol. 2, ch. 24, giTes an account of this case ; and the printed brief in 
opposition to the law, and in defence of the impeached judges, is in po.^session 
of the present writer. The act b question was one which imposed a heavy 
penalty on anj one who should reTDSe to reeeiTe on the same termi as specie the 
bills of a bank chartered hy the Blate, or who should in any way discourage 
the <nrcn]atii»i of such bills. The penalty was made collectible on summary 
conviction, without jiny trial ; and the act was held void on the ground that jury 
trial was expreMly given by the colonial charier, which then constituted the 
constitntion of the State. Although the judges were not removed on impeach- 
ment, the legislature reAised to re-elect them when their terms expired at the 
end of the year, and supplanted them by more pliant tools, by whose aesistance 
the paper money was forced into circulation, and public and private debts eitio- 
gaished by means of it. Concerning the other case, we copy from the Western 
Law Monthly, " Sketch of Hon. Calvin Pease," vol. 5, p. 8, June, 1863 : " The 
first session of the Supreme Court [of Ohio] under the constitution was held at 
Warren, Trumbull County, on the fimt Tuesday of June, 1803. The State waa 
divided into three circuits. . . . The Third Circuit of the Slate was composed of 
tbe counties of Washington, Belmont, JeSerson, Columbiania, and Trumbull. 
At this session of tbe legislature, Mr. Pease was appointed President Judge of 
the Third Circuit in April, 1803, and though nearly twenty-seven years old, he 
WIS very youthhl in his appearance. He held the office until March 4, 1810, 
iriien be sent his resignation to Governor Huntingdon. . . . During his renn of 
service upon tbe bench many interesting qnestions were presented for decision, 
and among tbem the constitutionality of some portion of the act of 180S, defining 
the duties of justices of tbe peace ; and he decided that so much of tbe fiflh 
section as gave justices of the pesce jurisdiction exceeding $20, and so much of 
the twenty-ninth section as prevented plaintiffs from recovering costs in actions 
commenced by original writs in the Court of Common Pleas, for sums betwe«i 
$20 and 9&0, were repugnant to the Constitution of the United Slates and of 
the State of Ohio, and therefore null and void. . . . The clamor and abuse to which 
this decision gave rise was not in tbe least mitigated or diminished by the circum- 
stance that it was concurred in by a majority of tbe judges of the Supreme Court, 
Messrs. Huntingdon and Tod. ... At the session of the legislature of 1807-8, 
Steps were taken to impeach him and tbe judges of the Supreme Court who con- 
curred with him ; but the resolutions introduced into the bouse were not acted 
upon during the session. But the scheme waa not abandoned. At an early day 
of tbe next session, and with almost indecent haste, ■ committee was appointed 
to inquire into tbe conduct of the offending judges, and with leave to exhibit 
articles of impeadtment, or report otherwise, as tbe facts might justify. Tbe 

[169] 



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• 162 OONSTITtmONAL LIMITITTONS. [CH. YU. 

[• 162] will not * decide a legislatiTe act to be uuconetitutional by 
a majority of a bare quorum of the judges only, — less thau 
a majority of all, — but vill iustead postpone the argument until 
the bench is full, seems a' very prudent and proper precaution to 
be observed before entering upon questions so delicate and ho 
important. The benefit of the wisdom and deliberation of every 
judge ought to be had under circumstances so grave. Sometliing 
more thau private rights are involved ; the fundamental law of the 
State is in question, as well as the correctness of legislative action ; 
and considerations of courtesy, as well as the importance of the 
question involved, should lead the court to decline to act at all, where 
they cannot sustain tlie legislative action, until a full bench has beeu 
consulted, and its deliberate opinion is found to be against it. But 
this is a rule of propriety, not of constitutional obligation; and 

committee witbout delsy reported article! of impeachment against Mcssra. Feue 
knd Tod, but not ^puuat Huntingdon, who in the mean time had been elected 
governor of the State. . . . The articles of impeachment were preferred bj the 
House of Representatires on the 23d ilaj of December, 1808. He waa sum- 
moned at once to appear before the Senate as a high conrt of impeachment, and 
be promptly obeyed the aummoos. The managers of the prosecution on the 
part of the House were Thomaa Morris, afterwards Senator in Congress from 
Ohio, Joseph Sharp, Jamea Fritcbard, Samuel Marrett, and Otbniel Tooker. , . , 
Several days were consumed in the investigation, but the trial resulted in tiie 
acquittal of the respondent." Sketch of Hon. George Tod, August number of 
aamo volume : " At the session of the legislature of 1808-9, he*wa8 Jmpeaihed 
for concurring in decisions made bj Judge Pease, in the counties of Trumbull 
and JeOir.uon, that certain provisions of the act of the legislature, passed in 
1805, defining the duties of justices of the peace, were in conflict with the Con- 
stitution of the United States and of the Stale of Obio. and therefore void. 
These decisions of the courts of Common Fleas and of the Supreme Court, it 
was insisted, were not only an assault upon the wisdom and dignity, but also 
upon the snpremacj of the legislature, which passed the act in tiuestiot). This 
could nOt be endured; and the popular fury against the judges rose to a vec7 
high pitch, and the senator from the county of Trumbull in tie legislatur« at 
that time, Calvin Cone, Esq., took no pains to soothe the offended dimity of the 
members of that body, or their sympathizing constituents, but pressed a con- 
trary line of conduct. The judges must be brought to justice, be iosistcd 
vehemently, and be punished, so that others might be terrified by the example, 
and deterred from committing similar offences in the future. The charges against 
Mr. Tod were substantially the same as those against Mr. Pease. Mr. Tod was 
first tried, and acquitted. Tbe managers of the impeachment, as well as the 
result, were the same in both cases." In the Rhode Island case, although the 
judges were not removed, they went refused a re-election. 

[170] 



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CH. Vn.] DBCLABIHG STATDTBS UNCONSTITUTIONAL. • 162 

though generally adopted and observed, each court vill regulate, in 
its own discretion, its practice in this particular.' 

* II. Neither will a court, as a general rule, pass upon a [* 163] 
conBtitutioual question, and decide a statute to be invalid, 
unless a decision upon that very point becomes necessary to the 
determination of the cause. " While the courts cannot shun the 
discussion of constitutional questions when fairly presented, tliey 
will not go out of their way to find such topics. Tliey will not seek 
to draw in such weighty matters collaterally, nor on trivial occa- 
sions. It is both more proper and more respectful to a co-ordinate 
department to discuss constitutional questions only when that is 
the very Hs mota. Thus presented and determined, the decision 
carries a weight with it to wliicb no extra-judicial disquisition is 
entitled." ^ In any case, therefore, where a constitutional question 

' BHscoe V. Commonweattli Bank of Kentucky, 8 Pet. 118. It has been 
intiinated tbat mferior conrts ahoald not preeume to pass upon constitutional 
qnestions, but ought in all cases to treat Etstutes as valid. Ortman o. Grcenman, 
4 Micb. 291. But no tribunal can exerciae judicial power, unless it i% to decide 
accoriiing to its judgment ; and it is difficult to discover any principle of justice 
which can require a m^atrate to enter upon the execution of a statute when he 
believea it to be inTslid, especially when be must thereby subject himself to 
pTotecntion, without any indemnity in the law if it proves to be invalid. Ua- 
doabledly when the highest courts in the land hesitate to declare a law uncon- 
■titiitional, and allow much weight to the legislative judgment, the inferior courts 
should be still more reluctant to exercise this power, and a becoming modesty 
would at least be expected of those judicial officers who have not been trained 
to the investigation of legal and constitutional questions. But in any case a 
judge or justice, being free from doubt in his own mind, and unfettered by aoy 
judical dedsion properly binding upon him, must follow his own sense of duty 
upon constitutional as well as upon any other questions. See Miller n. State, 
SOfaio, M.S. 48S; Pirn v. Nicholson, 6 Ohio, k. e. 180; Mayberrj o. Kelly, 
1 Kansas, 116. In the case last dted it is said : " It is claimed by counsel for 
the plaintiff in error, tAat the point raised by the instruction is, that inferior 
conTts and ministerial officers have no right to judge of the constitutionality of a 
law passed by a legislature. But is this lawF If so, a court created to interpret 
tho law must disregard the constjtu^on in forming its opinions. The constitution 
is law, — the fundamental law, — and must as much be taken into consideration 
by a justice of the peace as by any other tribunal. When two laws apparently 
conflict, it is the duty of all courts to construe them. If the conflict is Irrecon- 
cilable, they must decide which is to prevail ; and the constitution is not an 
exception to this rule of construction. If a law were passed in open, flagrant 
violation of the constitution, should a justice of the peace regard the law, and 
pay no attention to the constitutional provision P If that is his duty in a plain 
CKie, is it less so when the constmction becomes more difficult P " 

' Hoover v. Wood. 9 Ind. 287. 

[171] 



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• 168 CONBTnUTIONAL UStlTATIONS. [CH. TH. 

is raised, though it may be legitimately presented by the record, 
yet if the record also presents some otlier and clear groaud upon 
which the court may rest its judgment, and thereby render the 
constitutional question immaterial lo the case, that course will be 
adopted, and the question of constitutional power will be leCl for 
consideratiou until a case 'arises which cannot be disposed of 
without considering it, and when consequently a decision upon 
such question will be unavoidable.' 

III. Nor will a court listen to an objection made to the constitu- 
tionality of an act by a party whose rights it does not affect, and 
who has therefore no interest in defeating it. On this ground it 
has been held that the objection that a legislatire act was 
unconstitutional, because divesting the rights of remainder-men 
against tlieir will, could not be successfully urged by the owner of 

the particular estate, and could only be made on behalf 
[* 164] • of tlie remainder-men themselves.^ And a party who has 

assented to his property being taken under a statute 
cannot afterwards object that the statute is in violation of a 
provision in the constitution designed for tlie protection of private 
property.^ The statute is assumed to be valid, until some one 
complains whose rights it invades. ^* Prima facie, and on the face 
of the act itself, nothing will generally appear to show that the act 
is not valid ; and it is only when some person attempts to resist its 
operation, and calls in the aid of the judicial power to pronounce it 
void, as to him, his property or his rights, that the objection of un- 
constitutionality can be presented and sustained. Respect for the 
legislature, therefore, concurs with well-established principles of 
law in the conclusion that such an act is not void, but voidable 
only ; and it follows, as a necessary legal inference from this 
position, that tliis ground of avoidance can be taken advantage of 
by those only who have a right to question the validity of the act, 
and not by strangers. To this extent only is it necessary to go, in 
order to secure and protect the riglits of all persons agtunst the 

' Ex partt Rwidolph, 2 Brock. 447 ; Frees v. Ford, 6 N. Y. 177. 178 ; 
Wbito p. Stott, 4 Barb. 66; Mobile Mid Ohio Railroad Co. p, State, 29 
Ala. 573. 

* Sioulair D. Jackaon, 8 Cow. 543. See also Smilii v. McCarthy. 56 Penn. 
St. 359. 

* Embury D.' Conner, 3 N. Y. fill ; Baker v. Bram&n, 6 Hill, 47 ; Mobile and 
Ohio Railroad Co. t>. Sute, 29 Ala. 586. 

[172] 



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CB. Tlr.] DECLARINO STATDTE8 DHCONSTITUTIONAL. * 164 

anwarranted exerciBe of legialatiTA power, and to this extent only, 
therefore, are courts of justice called on to interpose." ^ 

lY. Nor can a court declare a statute unconstitutional and void, 
solely on the ground of unjust and oppressive provisioiiB, or 
because it is supposed to violate the natural, social, or political 
rights of the citizen, unless it can be shown that Buch injustice is 
prohibited or such rights guaranteed or protected by the constitu- 
tion. It is true there are some reported cases in wliich judges 
have been understood to intimate a doctrine different from what 
is here asserted ; but it will generally be found, on an examination 
of those cases, that what is said is rather by way of argument and 
illustration, to show the unreasonableness of putting upon coiisti- 
tutious such a construction as would permit legislation of the 
objectionable character then in question, and to induce a more 
cautious and patient examination of the statute, with a view 
to * discover in it, if possible, some more just and [* 165} 
reasonable legislative intent, than as laying down a rule 
by which courts would be at liberty to limit, according to their own 
judgment and sense of justice and propriety, the extent of 
legislative power in directions in which the constitution had 
imposed no restraint. Mr. Justice Story, in one case, in examin- 
ing the extent of power granted by the charter of Rhode Island, 
which authorized the General Assembly to make laws in the most 
ample maimer, " bo as such laws, &c., be not contrary and repug- 
nant unto, but as near as may be agreeable to, the laws of 
England, considering the nature and constitution of the place and 
people there," expresses himself thus : " What is the true extent 
of the power thus granted must be open to explanation as well by 
usage as by construction of the terms in wliich it is given. In a 
government professing to regard the great rights of personal 
liberty and of property, and which is required to legislate in 
subordination to the general laws of England, it would not lightly 
be presumed that the great principles of Magna Charta were to be 
disregarded, or that the estates of its subjects were liable to be 
taken away without trial, without notice, and without ofiFence. 

' Wellington, PetitJoner, 16 Rck. 96. And iee Hinghim. &c., Turnpike Co. 
o. Morfblk Co. 6 Allen, 353 ; De J&rnette v. H&ynes, 23 Miss. 600 ; Sinclair v. 
J«ck»on, 8 Cow. 543, 679; Hey ward r. Mayor, &c., of New York, 8 Barb. 489; 
HaUer of Albany St., II Wend. 149 ; Williamson c. Garltan, 51 }S.a.U9; State 
«. Kidi, SO MiM. 393. 

[173] 



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• 165 CONSTITTJTIONAL LIMITATIOHB. [CH. VH. 

Even if euch authority could be deemed to hare been confided bj 
the charter to the General ABsembly of Rhode Island, as an exer- 
cise of transcendental sovereigntj before the Revolution, it can 
scarcely be imagined that that great event could have left the 
people of that State subjected to its uncontrolled and arbitrary 
exercise. That government can scarcely be deemed to b6 free, 
where the rights of properly are left solely dependent upon the will 
of a legislative body, without any restraint. The fundamental 
maxims of a free goveniment seem to require that the rights 
of personal liberty and private property should be held sacred. At 
least no court of justice in this country would be warranted in 
assuming that the pover to violate and disregard them — a power 
so repugnant to the common principles of justice and civil liberty 
— lurked under any general grant of legislative authority, or ought 
to be implied from any general expressions of the will of the 
people. The people ought not to he presumed to part with rights 
so vital to their security and well-being, without very strong and 
direct expressions of such an intention." " We )niow of no case in 
which alegislative act to transfer the property of A. to B., vlthont 

his consent, has ever been held a constitutional exercise of 
[" 166] legislative power in any State in * the Union. On the 

contrary, it has been constantly resisted, as inconsistent 
vith just principles, by every judicial tribunal in which it has been 
attempted to be enforced."^ The question discussed by the 
learned judge in this case is perceived to have been, What is the 
scope of a grant of legislative power to be exercised in conformity 
with the laws of England ? Whatever he says is pertiuent to that 

> Wilkinson o. Leland, 2 Pot. 6fi7. See also what is said by tbe same judge 
in Tdrrelt o. Taylor, 9 Cranch, 43. " It is dear that stalutee passed ngainst plain 
and obTioua principles of common right and common reason are absolutelj null 
and void, ao far as ihej are calculated to operate agaiuBt thoie principlea." Ham 
0. McClavs, 1 Bay, S8. But the question in that caae was one of conttruction ; 
whether the coort should give to a statute a conBtruction which should make it 
operate agvnst common right and common reason. In Bowman o. Middleton. 1 
Bay, 282, the court held an act which divested a man of liis freehold and passed 
it over to anotlier, to be void " as against common right as well as against Magna 
Charta." In Regents of Univenity d. WiUianie, 9 Gill & J. S65, it was said 
that an act was void ai opposed to fundamental principles of right and justice 
inherent in the nature and apirit of the social compact. But the court bad 
already decided that the act was opposed, not only to the constitution of the 
State, but to that of tbe United States also. See Mayor, &c., of Baltimore f . State, 
15 Md. 376. 

[174] 



jdoyGoof^lc 



OH. Til.] DECLARISa STATUTES DN00N9nTUT!0NAL. * 166 

qneBtiou; and the cOQsiderattonB he suggeste are by way of 
argument, to show that the power to do certain unjust and 
oppreesire actB was not covered by the grant of legislative power. 
It is not intimated that if they were within the grant, thej would 
be impliedly prohibited because unjust and oppressive. 

In another case arising in the Supreme Court of New York, 
one of the Judges, in considering the rights of the city of New 
York to certain corporate property, has said : " The inhabitants 
of the city of New York have a vested right in the City Hall, mar- 
kets, water-works, ferries, and other public property, which cannot 
be taken from them any more than their individual-dwellings or 
storehouses. Their rights, in this respect, rest not merely vpon 
the e(m»tUution, but upon the great piinciples of eternal justice 
which lie at the foundation of all free governments."^ The great 
principles of eternal justice which affected the particular case 
bad been incorporated in the constitution, and it therefore be- 
came unnecessary to consider what would otherwise have been 
the rule; nor do we understand the court as intimating any 
opinion upon that subject. It was sufficient for the case, 
to &nd * that the principles of right and justice had been [* 167] 
recognized and protected by the constitution, and that tlie 
people had not assumed to confer upon the legislature a power 
to deprive tlie city of rights wliich did not come from the oonstitu- 
tiOD, but from principles antecedent to and recognized by it. 

So it is said by Hosmer, Ch. J., in a Connecticut case : " With 
those judges who assert the omnipotence of the legislature iu all 
cases where the constitution has not interposed an explicit re- 
straint, I cannot agree. Should there exist — what I know is not 
only an incredible supposition, but a most remote improbability — 
a case of direct infraction of vested rights, too palpable to be ques- 
tioned and too unjust to admit of vindication, I could not avoid 
considering it as a violation of the social compact, and within the 
control of the judiciary. If, for example, a law were made with- 
out any cause to deprive a person of his property, or to subject 
him to imprisonment, who would not question its legality, and 
who would aid in carrying it into eBect ? On the other hand, I 
cannot harmonize with those who deny the power of the legisla- 
ture, in any case, to pass laws which, with entire Justice, opei'atd 
on antecedent legal rights. A retrospective law may be Just and 
• BeMon e. Mayor. Ac, of New York, 10 Barb. 244. 

[175] 



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• 167 CONSTITDTIONAL LOIITATIONB. [CH. Tn. 

reasonable, and the right of the legislature to enact one of tbla 
description I am not speculatist enough to question." ^ The cases 
here supposed of unjust and tyrannical enactments would probably 
be held not to be witliin the power of any le^Iative body in the 
Union. One of them would be clearly a bill of attainder ; the 
other, unless it was in the nature of remedial legislation, and sus- 
ceptible of being defended on that theory, would be an exercise of 
judicial power, and therefore in excess of legislative authority, be- 
cause not included in the apportionment of power made to that 
department. No question of implied prohibition would arise in 
either of these cases ; hut if the grant of power had covered them, 
and there had been no express limitation, there would, as it seems 
to us, be very great probability of unpleasant and dangerous con- 
flict of authority if the courts were to deny validity to legistaUve 
action on subjects within their control, on the assumption that 
the legislature had disregarded justice or sound policy. The mo- 
ment a court Teutures to substitute its own judgment for that of 
the legislature, in any case where the constitution has vested the 

legislature with power over the subject, that moment it 
[* 168] enters * upon a field where it is impossible to set limits to 

its authority, and where its discretion alone will measure 
the extent of its interference.^ 

The rule of law upon this subject appears to be, that, except 
where the constitution lias imposed limits upon the legislative 

■ Goshen V. Stonington, 4 Conn. 225. 

* " ir the legiiUture should pua a law in plain and unequivocal language, 
witiiin the general scope of their conatitutional powers, I know of no authority 
in thJB government to pronounce such an act void, merely beuauae, in the opin- 
ion of the judicial tribunals, ic was contrary to the principles of natural justice ; 
for this would be Testing in the court a Istitudinsrian authority which might be 
abused, and would necessarily lead to collisions between the legislative and ju- 
dicial departments, daogerous to the well-being of society, or at least not in har- 
mony with the structure of our ideas of natural govemmeoL" Per Bogera, J,, 
in Commonwealth v. McCloskey, 2 Rawie, 874. " All the courts can do with 
odious statutes is to chasten their hardness by construction. Such is the impei^ 
fection of the best human institutions, that, mould them as we may, a large dis- 
cretion must at last be reposed somewhere. The best and in many cases the 
only Bccurity is in the wisdom and integrity of public servants, and their identity 
with the people. Governments cannot be administered without committing powers 
in trust and confidence." Beebe r. State, 6 Ind. 528, per Stuart, J, And •«« 
Johnston D. Commonwealth, 1 Bibb, 603 ) Flint River Steamboat Co. v. Foster, 
6 Geo. 194; State v. Kruttscbnitt, 4 Ner. 178. 
[176] 



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CH. Tn.] DECLARING STATUTES HNCONSTITDTIONAL. • 168 

power, it must be coasidered as practically absolute, whether it 
operate according to natural justice or not in any particular case. . 
The courts are not the guardians of the rights of the people of the 
State, except as those rights are secured by some constitutional 
proTtaion which comes within the judicial cognizance. The protec- 
tiou against unwise or oppressiTc legislation, within constitutional 
bounds, is by an appeal to the justice and patriotism of the repre- 
sentatiTes of the people. If this fail, the people in their sovereign 
capacity can correct the evil; but courts cannot assume their 
rights.' The judiciary can only arrest the execution of a statute 
when it conflicts with the constitution. It cannot run a race of 
opinions upon points of right, reason, and expediency with the 
law-making power.^ Xny legislative act which does not encroach 
upon the powers apportioned to the other departments of the gov- 
ernment, being ^rima/acie valid, must be enforced, unless restric- 
tions upon the legislative authority can be pointed out in the 
constitution, and tlie case shown to come within them.^ 

' BenneU t). Bull, Baldw. 74. 

* Perkint, J., in Madison & Indianapolis Kailroad Co. c. Whiteneck, 8 Ind. 
232. 

» Sill 8. Village of Coming, 15 N. Y. 303; Varick p. Smith, S Paige, 137 j 
Cochran p. Van Surlay, 20 Wend. 366 ; Morris v. People, 3 Danio, 381 ; Wyno- 
hamerp. People, 13 N. T. 430; People e. Sapervisore of Orange. 17N. Y. 236; 
People e. New York Central Railroad Co. 3-t Barb. 138; People v. Toynbee, 2 
Park. Cr. H. 490 ; Dow p. Norris, 4 N. H. 16 ; Derby Turnpike Co. p. Parks, 10 
Conn. 522, 543 ; Hartford Bridge Co. v. Union Ferry Co. 29 Conn. 210 ; Holden 
V. James, 11 Mass. 3U6 ; Norwich p. County Commissioners, IS Pick. 60 ; Daw- 
aon P. SbaTCT, 1 Blackf. 206 ; Beanchamp p. State, 6 Bkckf. 306 ; Doe c. Doug- 
taw, 8 Btackr. 10 ; Maize v. State, 4 Ind. 942 ; Stocking v. Stale, 7 Ind. 327 ; 
Be«be v. Sta(«, 6 Ind. 528 ; Newland e. Marsh, 19 111. 376, 381 ; Bliss p. Com- 
monwealth, 3 Lltt. 90 ; State p. Ashley, 1 Ark. 513 ; Campbell p. Union Bank, 
6 How. Miss. 672 ; Tate's ExV p. Bell, 4 Yerg. 206 ; Whittington e. Polk, I Harr. 
ft <f. 23G ; Norris c. Abingdon Academ.v, 7 Gill. & J. 7 ; Harrison p. State, 22 
Ud. 491 ; State p. Lyiea, 1 McCord, 238 ; Myers v. English, 9 Cal. 341 ; Ex 
parte Newman, ifi. 602 ; Hobart v. Supervisors, 17 Cal. 23 ; Crenshaw p. Slate 
BiTer Co. 6 Rand. 245 ; Lewis e. Webb, 3 Grcenl. 326 ; Durham p. Lewislon, 
4Greenl. 140; Lunt'a Cue, 6Greenl. 412; Scott p. Smart's Ex'rs, 1 Mich. 306; 
Wniiams v. Detroit, 2 Mich. 660 ; Tyler p. People, 8 Mich. 330 ; Cotton v. Com- 
nuHioneTB of Leon County, 6 Flor. 610 ; Stale c. Robinson, 1 Kansas, 27 ; Santo 
V. State, 2 Iowa, 166 ; Morrisoa p. Springer, 16 Iowa. 304 ; Stoddart n. Smith, 
6 Binn. 366 ; Moore v. Houston, 3 S. & K. 169 ; Braddee p. Brownfield, 2 W. ft 
8. 271 ; Harvey p. Thoraas. 10 Watts, 63 ; Commonwealth p. Maxwell, 27 PeoD. 
St. 456 ; Carey p. Giles, 9 Geo. 263 ; Macon and Western Railroad Co. v. Davit, 
li Geo. 68; Franklin Bridge Co. p. Wood, 14 Geo. 80; Boston p. Cummins, 16 
12 [ 177 j 



DiB.1izedOyGoO<^lc 



• 169 OOHffnTDTIONAL LHHTATIOMS. [CH. Til. 

[* 169] * y. If the courts are not at libei:t7 to declare statutes 
Toid because of their apparent injustice or impoUcj, neither 
can they do so because they appear to the minds of the judges to 
violate fundamental principles of republican government, unless it 
shall be found that those principles are placed beyond legislatire 
encroachment by the constitution. The principles of republican 
government are not a set of inflexible rules, vital aod active in 
the constitution, though unexpressed, but they are subject to 
variation and modification from motives of policy and public 
necessity ;Cand it is only in tliose particnlara in which experience 
has demonstrated any departure from the settled practice to work 
injustice or confusion, that we shall discover an incorporation of 
them in the constitution in sueh form as to make tiiem definite 
rules of action under all circumstancesT^ It is undoubtedly a 
maxim of republican government, as we understand it, that 
taxation and representation should be inseparable ; but where die 
legislature interferes, as in many cases it may do, to compel taxa- 
tion by a municipal corporation for local purposes, it is evident 
that this maxim is applied in the case in a much restricted 
[* 170] and very imperfect sense only, since the * representation 
of the locality taxed is but slight in the body imposing 
the tax, and the burden may be imposed, not only agunst the pro- 
test of the local representative, but against the general opposition 
of the municipality. The property of married women is taxable, 
notwithstanding they are not allowed a voice in choosing repre- 
sentative.' The maxim is not entirely lost sight of in auch cases, 
hut its application in the particular case, and the determination 
how far it can properly and justly be made to yield to considerations 
of policy and expediency, must rest exclusively with the law-making 
power, in the absence of any definite constitutional provisions so 
embodying the maxim as to make it a limitation npon legislative 
authority. It ia also a maxim of republican government that local 
concerns shall be managed in the local districts, which shall choose 
their own administrative and police ofEcers, and establish for them- 
selves police regulations ; but this maxim is subject to such excep- 
tions as the legislative power of the State shall see fit to make ; and 
when made, it must be presumed that the public interest, con- 

Oeo. 103 { Vaa Horn o. Domnce, S DaU. 809; Calder t. BnU, 8 Dftll. SM; 
Cooper «. Telftir, 4 DM. 18 ; Fletcher r. Peck, 6 Cnitch, 138. 
^ Wheeler v. WaU, « AUod, 568. 
[178] 



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CH. Tn.] DBOLABISO 8TATDTBS DHCOKanTUTiONAL. * 170 

▼wiieDce, and protection are subBwred thereby.^ The State may 
interfere to eatabliah new regutationa against the will of the local 
ooDBtitueDcy ; and if it shall think proper in any case to aaeume 
to itself those powers of loeal police which should be executed by 
the people immediately concerned, we must suppose it has been 
done because the local Bdministration has proved imperfect and 
ineffioiflnt, and a regard to the general well-being has demanded 
tbe change. In these cases the maxims which have prevailed in 
the government address themselves to the wisdom of the legis- 
Uture, and to adhere to them as far as possible is doubtless to 
keep in the patii of wisdom ; but they do not constitute restrictions 
so as to warrant the other departments in treating the exceptions 
vbich are made as unccmstitutional.' 

■ People o. Dnper, 15 N. Y. 647. See pott, p. 191-193. 

* In People c. MjJiunef , 13 Mich. 500, where the Metropolitan Police Act of 
Detroit wu claimed to be uncoiudtutiou&l on vftrioua grauada, the coartsa^: 
"Besides the specific objections made to the act m opposed to the provbions of 
tbe conatitntion, the counsel for respondent attacks it on 'general principles,' and 
aspeoaUy beeauM violating fundamental principles in onr system, that govero- 
Hients exist hy consent of the governed, and that taxation and representation go 
together. Tlie taxation under the act, it is Said, is really in tbe bands of a police 
board, a body in the choice of which the people of Detroit have no voice. This 
argument is one which might be pressed D[HDn the legislative depai:tinent with 
great force, if it were true in point of fact. But as ^e people of Detroit are 
really represented thronghoat, the difficalty suggested can hardly be regarded aa 
fimdamentaL Tbey were represented in the legialatnin which passed the act, 
and had the same proportionate voice there with the other municdpalitiea in the 
State, all of which rec^ve fVom that bodji' their powers of local government, and 
such only aa its wisdom ab&U prescribe within the constitutional limit. They were 
represented in that body when tbe present police board were appointed by it, 
and the governor, who is hereafter to fill vacancies, will be chosen by the State 
M laige, including their city. There is nothing in the maxim that taxation and 
rapesentation go together which requires that the body paying the tax shall alone 
be oonsulted in its asseasmeot ; and if there were, we should find it violated at 
every turn in our ayatem. The State legiaUture not only bas a control in tins 
respect over inferior municipalities, which it exercises by general lawa, but it 
■ometimes finds it necessary to interpose its power in special cases to prevent 
mjnat or bnrdenw>me taxation, as well aa to compel the performanoe of a clear 
duty. The constitution itself, hj one of the clauses referred to, requires the 
legislature to exercise its conbt)! over the taxation of municipal corporations, by 
restricting it to what that body may regard ai proper bounds. And municipal 
bodies are frequently compelled most unwillingly to levy taxes for tbe payu>etit 
of claims, by the judgments or mandates of courts in whicb their representation 
is qnit« as remote aa that of the people of Detroit in this police board. 



[179] 

DiB.1izedOyGoO<^lc 



* 171 COMSTmmONAL LIMITATIONB. [ch. tii. 

["171] *VI. Nor are the courts at liberty to declare an act 
void, because in their opiuion it is opposed to a ^irit sap- 
posed to pervade the coDBtitution, but not expressed in words. 
" When the fundamental law has not limited, either in terms or by 
necessary implication, the general powers conferred upon^t)ie legis- 
lature, we cannot declare a limitation under the notion of having 
discovered something in the tpmt of the conatitntion which is 
not even mentioned in the instrument."^ "It is difficult," sayg 
Ur. Senator Verplauck, " upon any general principles, to limit 
the omnipotence of the sovereign legislative power by judicial 
interposition, except so far a» the express words of a written con- 
stitution give that authority. There are indeed many dicta and 
some great authorities holding that acts contrary to the first 
principles of right are void. The principle is unqueetiou- 
[* 172] ably * sound as the governing rule of a legislature in rela- 
tion to its own acts, or even those of a preceding legislature. 
It also affords a safe rule of construction for courts, in the inter- 
pretation of laws admitting of any doubtful construction, to pre- 
sume that the legislature could not have intended an unequal and 
unjust operation of its statutes. Such a construction ouglit never 
to be given to legislative language if it be susceptible of any other 
more conformable to justiee ; but if the words be positive and 
without ambiguity, i can &nd no authority for a court to vacate or 
repeal a statute on that ground alone. But it is only in express 
constitutional provisions, limiting legislative power and controlling 
tlie temporary will of a majority, by a permanent and paramount 
law, settled by the deliberate vrisdom of the nation, that I can 
find a safe and solid ground for the authority of courts of justice 
to declare void any legislative enactment. Any aasumption of 
authority beyond this would be to place in the hands of the 
judiciary powers too great and too undefined either for its own 
security or the protection of private rights. It is therefore a 
most gratifying cireumstance to the friends of regulated liberty, 

not therefore be avd that the maxims referred to hMe been entirely dliregaided 
by the legiaUture in the psuage of this act. But as counsel do not claim that, 
in so far as they bare been departed from, the constitution has been Tiolated, we 
cannot, with propriety, be asked to declare an act void on any sudi general 
objection." And see Wynehamer o. People, IS N. Y. 429, per Sdden, J.; 
Benson v. Msyor, &c., of Albany, 24 Barb. 266 el leq. ; Baltimore V. State, 15 
Md. 376 ; People c. Draper, 16 N. Y. 632. 

> People v. Fisher, 24 Wend. 220; State v. Staten, 6 Cold. 293. 
[180] 



DiB.1izedOyGoO<^lc 



CH. vn.] DECLAEINO STATUTES CHOONBTITCTIONAL. \172 

that in every change in their oonstitational polity which has yet 
taken place here, whilst political power has been more widely 
diffused among the people, stronger and better-defined guards 
have been given to the nghts of property." And after quoting 
certain express limitations, he prooeeds : " Believing that we are 
to rdy apoD these and similar provisions as the best saf^^rds 
of our rights, as well as the safest authorities for judicial direction, 
I cannot bring myself to approve of the power of courts to annul 
any law solemnly passed, either on an assumed ground of its 
being contrary to natural equity, or from a broad, loose, and 
vague interpretation of a constitutional provision beyond ita 
natural and obvious sense." ' 

The accepted theory upon this subject appears to be this: In 
every sovereign State there resides an absolute and uncontrolled 
power of legislation. In Qreat Britain this complete power rests 
in the Parliament ; in the American States it resides in the people 
themselves as an organized foody politic. But the people, 
by * creating the Constitution of the United States, have [• 173] 
delegated tliis power as to certain subjects, and under 
certain restrictions, to the Congress of the Union ; and that 
portion they cannot resume, except as it may be done through 
amendment of the national Constitution. For the exercise of the 
legislative power, subject to this limitation, they create, by their 
St^e constitution, a legislative department upon which they confer 
it ; and granting it in general terms, they must be understood to 
grant the whole legislative power which they possessed, except so 
far as at the same time they saw fit to impose restrictions. While, 
tiierefore, the Parliament of Britain possesses completely the abso- 
lute and uncontrolled power of l^islation, the legislative bodies of 
Uie American States possess the same power, except, p-»ty as it 
may have been limited by the Constitntion of the United States ; 
and, second, as it may have been limited by the constitntion of 
the State. A legislative act cannot, tlierefore, be declared void, 
onlesB its conflict with one of these two instruments can be pointed 
ont.« 

' Cochran r. Van SurUy, 20 Wend. 381-383. See alao People p. Gallagher, 
4 l£ch. 244; Benson c. Major, &c., of Albany, 24 Barb. 252 el geq. ; Grant v. 
Conrter, tl>. 23S; Wynehamer c. People, 13 N. Y. 391, per Conufocit, J. ; <b. 
p. 463, per Sdien, J, ; id. p. 477, per Joknaon, J. 

■ People c. New York Central Railroad Co. 34 Barb. 138 ; Genlty o. Grif- 
fidt, 27 Texas, 461. And lee the catea cited, anU, p. 168, note 4. 

[181] 



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• 173 COHSTITDTIONAL LIMITATIONS. [CH. Vn. 

It is to be borne in mind, bowever, that there is a broad dif- 
fereuoe between the CouBtitution of tlie United States and the 
oonstitutionB of the States as regards the pover which may be 
exercised nnder them. The goTemment of the United States is 
one of erkumerated powers ; the gorernments of the States are 
possessed of all the general powers of legislation. When a law 
of Congress is assailed as void, we look in the national Constitu- 
tion to see if the grant of specified powers is broad enough to 
embrace it; bnt when a State law is attacked on the same ground, 
it is presumably valid in any case, and this presamption is a coo- 
clusive one, unless in the Constitution of the United States or of 
the State we are able to discover that it is prohibited. We look 
in the Constitution of the United States for grants of legislaliTe 
power, but in the constitution of the State to ascertain if any 
limitatiotu have been imposed upon the complete power with 
which the legielatiTe department of the State was vested in its 
creation. Congress can pass no laws but such as the GoD8(itut)<ak 
authorizes either expressly or by dear implication ; while the 
State legislature lias jurisdiction of all subjects on wbich its 
le^slation is not prohibited.' " The law-making power of 
[* 174] the * State," it is said in one case, " reoc^izee no re- 
straints, and is bound by none, except such as are imposed 
by the Constitution. That instrument has been aptly termed a 
legislative act by the people themselves in their sovereign capacity, 
aud is therefore tlie paramount law. Its object is not to grant 
legislative power, but to oonfine and restrain it. Without tba 
constitutional limitations, the power to make laws would be abso- 
lute. These limitations are created and imposed by express words, 
or arise by necessary implication. The leading feature of the con- 
stitution is the separation and disbibution of the powers of the 
government. It takes care to separate the executive, legislative, 
and judicial powers, and to define their limits. The executive can 
do no legislative act, nor the legislature any executive aot, and 
neither can exercise judicial authority."" 

■ Sill V. Vilkge of Coming, 16 N. Y. 803 ; People e. Supermor* of Ontnge, 
S7Birb.fi93; Feopie v. Gallagher, 4 Mich. 244; Searae.Gattrell.S Miefa. 307; 
People V. N«w York CeDtral B&ilroad Co. S4 N. Y. 497, 604; People o. 
Tojnbee, 2 Park. Cr. R. 490 ; State r. Gntien-ez, 15 La. An. 190 ; Walpole V. 
Elliott, 18 Iiid. 256 ; Smith «. Judge, 17 Cal. 547 ; Commonwealth e. Hartman, 
17 Pent). St. 119 ; Elrby v. Shaw, 19 Fenn. St. 260 ; Weiater t>. Hade, 62 Peim. 
St. 477. ' SiU ». Coming, 15 N. Y. 308. 

[1821 



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OH. Vn.] DBCLAEINO STATUTES DNCONSTTrUTIONAL. * 174 

It does not follow, however, that in every case the courts, be- 
fore tliey can set aside a law as invalid, must be able to fiud in 
the constitution some specific inhibition which has been disre- 
garded, or some express command which lias, been disobeyed. 
Prohibitions are only important where they are in the nature of 
exceptions to a general grant of power ; and if the authority to 
do an act has not been granted by tlie sovereign to its represent- 
ative, it cannot be ueoeasary to prohibit its being done. If in 
one department was vested the whole power of the government, 
it might be essential for the people, in the instrument delegating 
this complete authority, to make careful and particular exception 
of all those cases whicli it was intended to exclude from its cog- 
uizance; for without such exception the government might -do 
whatever the people themselves, when met in their sovereign 
capacity, would have power to do. But when only the legislative 
power is delegated to one department, and the judicial to anotlier, 
it ie not important that tlie one should be expressly forbidden to 
try causes, or t!ie other to make laws. The assumption of judi- 
cial power by the legislature in such a case is uucoiistituttonal, 
because, though not expressly forbidden, it is nevertheless 
• iouousistent with the provisions which have conferred [• 175] 
upon another department the power the legislature is 
seeking to exercise. And for similar reasons a legislative act 
vhich should undertake to make a judge the arbiter in his own 
controversies would be void, because, though in form a proviaioa 
for the exercise of judicial power, in substance it would be the 
creatiou of an arbitrary and irresponsible authority, neither legis- 
lative, executive, nor judicial, and wholly unknown to constitu- 
tional government. It could not be necessary to forbid the judioi- 
aiy to render judgment without suffering the party to make defence ; 
because it is implied in judicial authority that there sliall be a 
bearing before condemnation. Taxation cannot be arbitrary, be- 
cause its very definition includes apportionment, nor can it be for 
a purpose not public, because that would be a contradiction in 
terms. The bills of rights iu the American constitutions forbid 
that parties shall be deprjved of property except by the law of the 
land ; but if the prohibition had been omitted, a legislative enact- 
ment to pass one mau's property over to another would neverthe- 
less be void. If the act proceeded upon the assumption that such 
other person was justly entitled to the estate, and tlierefore it waa 

[188] 



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• 175 CONSTITUTIONAL UMITATIOMB. [CH. TH. 

transferred, it would be void, because judicial in its nature ; and if 
it proceeded without reasoDS, it would be equally void, as neither 
legislative nor judicial, but a mere arbitrar; fiat.^ There is no 
difficulty in saying that any such act, which, under pretence of 
exercising one power is usurping another, is opposed to the consti- 
tution and void. It is assuming a power which the people, if they 
have not granted it at all, have reserved to themselves. The max- 
ima of Magna Charta and the common law are the interpreters of 
conatitutioual grants of power, and those acts which by those max- 
ims the several departments of government are forbidden to do 
cannot be considered within any grant or apportionment of power 
which the people in general terms have made to tliose departments. 

The Parliament of Great Britain, indeed, as possessing the 
[• 176] sovereignty " of the country, has the power to disregard 

fundamental principles, aud pass arbitrary and unjuat en- 
actments ; but it cannot do this rightfully, and it basihe power to 
do BO simply because tliere is no written constitution from which 
its authority springs or ou which it depends, and by which the 
courts can test the validity of its declared will. The rules which 
confine the discretion of Parliament within the ancient landmarks 
are rules for the construction of the powers of the American leg- 
islatures ; and however proper and prudent it may be expressly to 
prohibit those things which are not understood to be within the 
proper attributes of legislative power, such prohibition can never 
be regarded as essential, when the extent of tlie power apportioned 
to the legislative department is found upon examination not to be 
broad enough to cover the obnoxious authority. The absence of 
such prohibition cannot, by implication, confep power. 

Nor, where fundamental rights are declared by the constitution, 
is it necessary at the same time to prohibit Uie legislature, in ex- 
press terms, from taking them away. The declaration is itself a 
prohibition, and is inserted in the constitution for the express 

' Boirimu) v. Middleton, 1 Bay, 252 ; WilkinMD v. Leiand, 2 Pet. 65T ; Ter- 
rett B. Taylor, 9 Crancb. 43 ; Ervinu's Appeal, 16 Penn. St. 266. '• It ia now 
considered a.a univerBal and fundamental proposicion in every well-regulated and 
properly administered government, whether embodied in a (.'onstitutional form 
or not, that private property rannot be taken for a* Btrictly private pnrpoge nt all, 
nor for public without a just compensation ; and that the obligation of contracts 
cannot be abrogated or eaaendally impaired. These and other veated rights of 
the citizen are held eacrtid and inviolable, even agajnat the plenitude of power in 
the legislative department." Ndton, J., in People d. Morris, 13 Wend. 328. 
[184] 



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CH. Til.] DECLABINQ 8TATDTE8 DHCONBTITUTIONAL. * 178 

porpoee of operating as a reBtrictioii upon legislative power.' 
Many things, indeed, which are contained in the billB of rights to 
be found in the American coustitutions are not, and from the very 
nature of the case cannot be, so certain and definite in character as 
to form rules for judicial decisions ; and they are declared rather 
as guides to tlie legislative judgment tlian as marking an absolute 
limitation of power. The nature of the declaration will generally 
enable ns to determine without difficulty whether it is the one thing 
or the other. If it is declared that all men are free, and no man 
can be slave to another, a definite and certain rule of action is 
laid down, which the courts can administer ; but if it be said that 
" the blessings of a free government can only be maintained by a 
firm adherence to justice, moderation, temperance, frugality, and 
virtue," we should uot be likely to commit the mistake of sup- 
posing that this declaration would authorize tha courts to substitute 
their owu view of justice for that which may have impelled the 
legislature to pass a particular law, or to iuqulre into the modera- 
tion, temperance, frugality, and virtue of its members, with a view 
to set aside their action, if it should appear to have been 
influenced by the opposite qualities. It is plain that ' what [* 177] 
in the one case is a rule, in the other is an admonition 
addroBsed to the judgmeut and the conscience of all persons in 
snthority, as well as of the people themselves. 

So the forms prescribed for legislative action are in the nature ' 
of limitations upon its authority. The constitutional provisions 
which establish them are equivalent to a declaration that the 
legislative power shall be exercised under these forms, and shall not 
be exercised under any other. A statute which does not observe 
them will plainly be ineffectual.^ 



Statvtea uncotutitutvmal in Part. 

It' will sometimes be found that an act of the legislature is 
opposed in some of its provisions to the constitution, while others, 
standing by themselves, would be unobjectionable. So the forms 
observed in passing it may be sufficient for some of the purposes 

■ Beebe e. Sute, 6 Ind. 618. Thia piindple ii verj often ocMd npon when 
not espreiilj decUred. 
* See tadt, p. 130 et »eq. 

[185] 



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* 177 OONBTirUnONAL UMITATrONS. [CH. TU. 

sought to be accomplished by it, bnt insufficient for others. In any 
such case the portion which coDflicts with the coustitution, or in 
regard to which the necessary conditious have not been observed, 
must be treated as a nullity. Whether the other parts of the 
statute must also be adju(^ed void because of the association must 
depend upon a consideration of the object of Uie law, and in what 
manner and to what extent the unconstitutional portion affects the. 
remainder. A statute, it has been said, is judicially held to be 
tinconatitutional, because it is not within the scope of legislative 
authority ; it may either propose to accomplish something pro- 
hibited by the constitution, or to accomplish some lawful, and even 
laudable object, by means repugnant to the Constitution of the 
United States or of the State.^ A statute may contain some such 
provisionB, and yet the same act, having received the sanction of all 
branches of the legislature, and being in the form of law, may 
contain other useful and salutary provisions, not obnoxions to any 
just constitutional exception. It would be inconsisteut with all 
just principles of constitutional law to adjudge these euactments 
void, because they are associated in the same act, but not connected 
with or dependent on others which are unconstitutional.' 
[* 178] Where, therefore, a part of a * statute is unconstitutional, 

' Commonwealth v. Clapp, 5 Gr&v, 100. " A law that is uucoDititutional ii 
BO because it h either an wsumption of power Dot legislative in its nature, or 
because it is inconsistent with some provision of the Federal or State Constitn- 
tioD." Woodworth, J., in Commonwealth s. Maxwell, 27 Fenn. St. 466. 

* Commonwealth t). Clapp, 6 Gra/, 100. See, to the satne effect, Fisher v. 
McGitT, 1 Gray, 1; Warren v. Mayor, &c., of Charlestown, 2 Gray, 84; W«J- 
linglon. Petitioner, 16 Pick. 96 ; Commonwealth v. Hitchingt, 6 Gray, 462 ; 
Commonwealth ». Pomeroy, 6 Gray, 486 ; State d. Copeland, 3 R. I. 33 ; State v. 
Sdow, 3 R. I. 64 ; Armstrong v. Jackson, I Blaokf. 374 ; Clark n. GUis, 3 Blackf. 
248; McOuUoch v. StaM, 11 Ind. 432; People v. Hill, 7 Cal. 97; Latfarop v. 
Milb, 19 Cal. 613; Thomson c Grand Gulf Railroad Co. 3 How. Miss. 240; 
Campbell v. Union Bank, 6 How. Miss. 626 ; Mobile and Ohio Railroad Co. v. 
State, 29 Ala. 573 ; Santo v. State, 2 Iowa, 166 ; State n. Cox, 3 Eng. 436 ; 
Mayor, Ac., of Savannah v. State, 4 Geo. 26 ; Exchange Bank u. Hinea, 3 Ohio, 
N. a. 1 ; Robinson r. Bank of Darien, 18 Geo. 66 ; State s. Wheeler, 26 Cwm. 
290; People n. Lawrence, 36 Barb. 190; Williaois c. Fayson, 14 La. An. 7; 
Ely V. Thompson, 3 A. K. Manb. 70 ; Davis v. State, 7 Md. 151 ; State p. Com- 
missioners of Baltimore, 29 Md. 621 ; Bank of Hamilton c. Dudley's Lessee, 2 
Pet. 626. ' ' To the extent of the coltinon and repagDaucy, the law of tbe Stat* 
must yield ; and to that extent, and no further, it is rendered by such repng- 
nancy inoperative and void." Commonwealth d. Kimball, 24 Pick. 361, per 
Shaw, Ch. J. ; Norm v. Boston, 4 Met. 288. 
[186] 



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CH. Vn.] DECLABIHO STATUTES TJSC0N8TITDTI0NAL. • 178 

that fact do«a uot aathorize the courts to declare the re- 
mainder void aUo, nnleas all the provisioQS are connected in 
subject-matter, depending on each other, operating t(^ther for the 
same purpose, or othervise so connected together in meaning, that 
it cannot be preaamed the legislatare would have passed the one 
without ^e other.i The ooustitntional and unconstitutional pro- 
visions may even be contained in the same section, and yet be 
perfectly distinct and separable, so that the first may stand though 
the last fall. The point is not whether they are contained in tlie 
Biune section ; for the distribution into sections is purely artificial ; 
but whether they are essentially and inseparably connected in sub- 
stance.^ If, when the unconstitutional portion is strickrai out, 
that which remains is complete in itself, and capable of being 
executed in accordance with the apparent legislatJTe intent, wholly 
independent of that which was rejected, it must be sustained. The 
difficulty is in determining whether the good and bad parts of the 
statute are capable of being separated within the meaning of this 
rale. If a statute attempts to accomplish two or more objects, and 
is void as to one, it may still be in every respect complete and valid 
as to the other. But if its purpose is to acoompllBh a single object 
only, and some of its provisions are void, the whole must fail 
unless sufficient remains to efiect the object without the aid of 
the invalid portion.^ And if they are bo mutually connected 

' CommoDweBlth v. Hitchings, 5 Gra^, 486. 

■ CDmrnonwealtli t>. Hitchings, 5 Gray, 480 ; Willkrd v. People. 4 Sum. 470; 
Eelb o. People, 4 Scam. 512 ; Bobinson v. Bidwell, S3 Cat. 879 ; State v. Eaatei^ 
brook. 3 Ner. 17S. 

* Santo V. State, 2 Iowa, 165. But periiapa tLe doctrine or siutaining one 
part of a atatate when tbe other is Toid was carried to an extreme in this caae. 
A probibitoi7 liqnor law bad been pused which wu not objectionable on conrti- 
tutional gronndi, except that the last aectiou provided that " the queation of pro- 
Ubiling tfae lale and maunractare of intoxioating liqnor" ahonld be anbrnitted to 
die elector* of the State, and if it ghould appear " that a majority of the votet 
eaat ±a aforesaid, upon gud question of prohibition, shall be for the prohibitory 
liqnor law, then this act shall take effect on the first day of July, 1855." The 
court held this to be an attempt by the legislature to shift tbe exercise of legis- 
lative power from themselves to the people, and therefore void ; bat they also 
faeld that the remainder of tbe act was complete without thu section, and moat 
therefore be sustained on the rule above given. The reasoning of the court by 
which tbey are bronght to this conclusiou Is ingenious; but one cannot avoid 
feeliDg, especially aller reading the dissenting opinion of Chief Justice Wright, 
that by tbe dacision the court gave effect to an act which the legislature did tiot 

[187] 



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• 179 CONSTITUTIONAL LIMITATIONS. [CH. TO. 

[* 179] with and * dependent on each other, as conditions, cod- 
aiderations, or compensations for each other, as to warrant 
the belief that the legislature intended them as a whole, and if all 
coald not be carried into effect, the legislature would not pass the 
residue independently, then if some parts are unconstitution^, all 
the provisions which are thua dependent, conditional, or connected 
must fall with them.^ 

It has accordiuglj been held where a statute submitted to the 
voters of a county the question of the remoral of their county seat, 
and one section imposed the forfeiture of certain vested rights in 
case the vote was against the removal, tliat this portion of the act 
being void, the whole must fall, inasmuch as the whole waa sub- 
mitted to the electors collectively, and the threatened forfeiture 
would naturally affect the result of the vote.' 

And where a statute annexed to the city of Racine certain lauds 
previously in the township of Bacine, but contained an express 
provision that the lands so annexed should be taxed at a different 
and less rate than other lands iii tlie city ; the latter provision 
being hold unconstitutional, it was also held that the whole statute 
must fail, inasmuch as such provision was clearly intended as a 
compensation for the annexation." 

And where a statute, in order to obtain a jury of six 
[* 180] persons, • provided for the summoning of twelve jurors, 
from whom six were to be chosen and sworn, and under 
tlie constitution the jury must consist of twelve, it was held that 
the provision for reducing the number to six could not be rejected 
and the statute sustained, inasmuch as this would be giving to it a 
construction and effect different from that the legislature designed ; 
and would deprive the parties of the means of obtaining impartial 
jurors which the statute bad intended to give.* 

demgn ahould take efibct unless the resiilt of the uDconatitutional Bubraisnon la 
the people was id its favor. For a timilar ruling, see Uaize v. State, 4 lud. 342 ; 
overruled in Meibmeier v. State, 11 Ind. 4^2. 

' Warren d. Major, &c., of Cfaarlegtown, 2 Graj, 99 ; State r. CommitBionen 
of Perry County, 6 Ohio, N. 8. 607 ; Slauaon f. Racine, 13 Wis. 398 ; Allen 
County Commissioners c. Silvera, 22 lud. 491 ; Garrard Co. Court ». Navigation 
Co. 10 Am. Law Keg. K. 8. 160. 

* State e. Commisuoners of Perry Coun^, 6 Oltio, K. B. 507. And see 
Jones V. RobbiuB, 8 Gray, S3S. 

' SlauKin p. Rarane, 13 Wis. 898. 

' Campan o. Detroit, 14 Mich. 273. 

[188] 



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CH, 711.] DECLAtUNO STATUTES DNC0N8T1TDTI0NAL. * 180 

On the other hand, — to illustrate how iiitim&tely the valid and 
invalid portions of a statute may be associated, — a section of the 
criminal code of Illinois provided that " if any person shall harbor 
or secrete any negro, mulatto, or person of color, the same being 
a slave or servant, owing service or labor to any other persons, 
whether they reside in this State or in any other State, or Territory, 
or district, within the limits and under the jurisdiction of the 
TTuited States, or shall in any wise hinder or prevent the lawful 
owner or owners of such slaves or servants from retaking them in 
a lawful manner, every person so offending shall be deemed guilty 
of a misdemeanor," &c., and it was held that, although the latter 
portion of the section was void within the decision in Prigg v. 
Pennsylvania,' yet that the first portion, being a police regulation 
for the preservation of order in the State, and important to its well- 
being, and capable of being enforced without reference to the rest, 
was not affected by the invalidity of the rest.^ 

A legislative act may be entirely valid as to some classes of cases, 
and clearly void as to others. A general law for the punishment 
of offences, which should endeavor to reach; by ite retroactive 
operation, acts before committed, as well as to prescribe a rule of 
condact for the citizen iu the future, would be void so far as it was 
retrospective, but such invalidity would not affect the operation of 
the law in regard to the cases wliich were within the legislative 
control. A law might be void as violating the obligation of exist- 
ing contracts, but valid as to all contracts which should be entered 
into subsequent to its passage, and which therefore would have no 
legal force except such as the law itself would allow." In any such 
case the uuconstitiitioiial law must operate as farasitcan,^ 
and it will not be held invalid on the objection • of a party [* 181j 
whose interests are not affected by it in a manner which 
tlie constitution forbids. If there are any exceptions to this rule, 
they must be of cases only where it is evident, from a contempla- 
tion of the statute and of the purpose to be accomplished by it, that 

■ 16 Pet. £39. 

■ Willard r. People, 4 Scam. 470 ; £elli t>. People, ib. S12. See HagentowD 
t>. Dechert, 32 Md. 369. 

■ Mundy ti. Monroe, 1 Mich. 68 ; Gu^U v. Power, 1 Mich. 369. 

• Baker u. Braman, 6 Hill, 47. The case of Sadler e. Laogham, 84 Ala. 333, 
appears to be opposed to this principle, but it also appears to ub to be based 
npon cases whi<;h are not applicable. 

[189] 



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* 181 coNSTTrnriONAL liutatiomb. [ch. vn. 

it Tonld not have been passed at all, except as an entirety, and 
that the general purpose of the legislature will be defeated if it shall 
be held valid as to some cases and void as to others. 



Waiving a ConstUtUional Ofy'ection. 

There are cases where a law in its application to a particular 
case must be sustained, because the party who makes objection has, 
hy prior action, precluded faimsetf from being heard against it. 
Where a constitutional provision is designed for the protection 
solely of the property rights of the citizen, it is competent for him 
to waive the protection, and to consent to such action as would be 
invalid if taken against his will. On this ground it has been held 
that an act appropriating the private property of one person for the 
private purposes of another, on compensation made, was valid if he 
whose property was taken assented thereto ; and that he did assent 
and waive the constitutional privilege, if he received the compensa- 
tion awarded, or brought an action to recover it.^ So if an act 
providing for the appropriation of property for a public use shall 
authorize more to be taken than the use requires, although such act 
vrould be void without the owner's assent, yet with it all objection 
on the ground of unconstitutionality is removed." And where 
parties were authorized by statute to erect a dam across a river, 
provided they should first execute a bond to the people conditioned 
to pay such damages as each and every person might sustain in 
consequence of the erection of the dam, the damt^s to be assessed by 
ajustice of the peace, and the dam was erected and damages assessed 
as provided by the statute, it was held, in an action on the bond to 
recover those damages, that the party erecting the dam and who had 
received the benefit of the statute, was precluded by his action from 
contesting its validity, and could not insist upon his right to a 
common-law trial by jury." In these and the like cases 
[* 182] the statute must be read with * an implied proviso that the 
party to be affected shall assent thereto ; and such consent 
removes all obstacle, and lets the statute in to operate the same 

> Baker v. Bramao, 6 Hill, 47. 

* EmbuTj V. Conner, 3 N. Y. 611. Aod see Heyward v. Mnj'or, &o.. of 
New York, 6 Barb. 489 ; Mobile aod Obio Railroad Co. v. State, 29 Ala. 686. 

> People ti. Marnj, 6 Hill, 468. S«e Lee i>. TiUoteon, 24 Wead. 339. 

[180] 



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OH. TII.J DECLARINQ STATUTES CNCOMSTITimONAL. * 182 

as if it had in terms conttdned the condition.^ In criminal esses, 
however, tlie doctrine that a ooDStitational privilege may be waived, 
must be true to a very limited extent only. A party loay consent to 
waive rights of property, but the trial and punishment for public 
offences are not witliin the province of individual consent or 
agreement. 

Judicial Dovbti on Constitutional Quettiont. 

It bas been said by an eminent jurist, that when courts are called 
upon to pronounce the invalidity of an act of legislation, passed 
with all the forms and ceremonies requisite to give it the force of 
law, they will approach the question with great caution, examine it 
in every poaeible aspect, and ponder upon it as long as deliberation 
and patient attention can throw any new light upon the subject, 
and never declare a statute void, unless the nullity and invalidity 
of the act are placed, in their judgment, beyond reasonable doubt.' 
A. reasonable doubt must be solved in favor of the lefpslative 
action, and the act be sustained.^ 

" The question whether a law be void for its repugnancy to the 
constitution is at all times a question of much delicacy, which 
ought seldom, if ever, to be decided in tiio afiSrmative in a doubt- 

■ Embory ». Conner, 3 If. Y. CIS. And see Matter of Albany St. 11 Wend. 
149 ; Chauiberlam v. Lyell, 3 Mich. U8 ; Beecher o. Baldy, 7 Mich. 488 ; Mo- 
bOa and Ohio Railroad Co. c. SUte, 29 Ala. 686. 

■ Wellrngton, Petitioner, 16 Pick. 95, per SAou, Ch. J. S«Q Brown v. 
Bosan, 24 Ind. 194. If an act may be valid or not according to the circnm- 
Mancea, a court would be bound to presume that such circumstances existed ta 
would render it valid. Talbot d. Hudaon, 16 Gray, 417. 

* Cooper o. Telfair, 4 DaU. 18; Dow c. Norrie, 4 N. H. 16; Flint BJTer 
Steamboat Co. t>. Foster, 5 Geo. 194; Carey c. Giles, 9 Geo. 25S; Macon and 
Western Railroad Co. p. DaTis, 13 Geo. 68; Franklin Bridge Co. p. Wood, 14 
Geo. 80; Keodall t). Kingston, fi Mass. 524; Foster c. Essex Bonk, 16 MasB. 
245; Norwich c. County Commissioners of Hampshire, 13 Pick. 61; Hartford 
Bridge Co. v. Union Feny Co. 29 Conn. 227 ; Rich v. Flanders, 39 N. H. 312 ; 
Eaaon v. State, 6 Eng. 481 ; Hedley v. Commissioners of Franklin Co. 4 BUckf. 
116 ; Stocking o. SUM, 7 Ind. 327 ; La Fayette «. Jennera, 10 Ind. 79 ; ExparU 
McCollum, 1 Cow. 664; Contaot v. People, 11 Wend, fill; Clark v. People, 
26 Wend. 606 ; Morris t>. People, 3 Denio, 381 ; Baltimore t>. State, 16 Md. 
376; Cotton n. Commissioner* of Leon Co. 6 Flor. 610; Lane t>. Dorman, 8 
Scam, 238; NewEand v. Marsh, 19 111. 381; Farmers and Mechanics Bank d. 
South, 3 S. & R. 63 ; Weister v. Hade, 62 Penn. St. 477 ; Sears v. CoUrell, 6 
Uich. 251 ; People c. Tyler, 8 Mich. 320 ; Allen Connty C 
lers, 23 Ind. 491 ; State e. RobinsoD, 1 Kansas, 17. 



[191] 

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• 182 CONSTITUTIONAL LIHITATIONS. [CH. YH. 

ful case. The coart when impelled by duty to render sacli a 
judgment would be unworthy of ita station could it be 
[*183] unmindful ''of the solemn obligation wltich that station 
imposes; but it is not on slight implication and vague 
conjecture that the legislature is to be pronounced to have 
trakbscended its powers, and its acts to be considered as void. The 
opposition between the constitution and the law should be such 
that the judge feels a clear and strong conviction of their incom- 
patibility with each other." > Mr. Justice Washingttm gives a 
reason for this rule, whicli has been repeatedly recognized in 
other cases which we have cited. After expressing the opinion that 
the particular question there presented, and which regarded the 
constitutionality of a State law, was involved in difficulty and 
doubt, he says : " But if I could rest my opinion in favor of the 
constitutionality of the law on which the question arises, on no 
other ground than this doubt so felt and acknowledged, that alone 
would, in my estimation, be a satisfactory vindication of it. It is 
but a decent respect due to the wisdom, the integrity, and the 
patriotism of the legislative body by whicli any law is passed, to 
presume in favor of its validity, until its violation of the constitu- 
tion is proved beyond all reasonable doubt." ^ 

The constitutionality of a law, tlien, is to be presumed, because 
the legislature, which was first required to pass upon the question, 
acting, as they must bo deemed to have acted, with integrity, and 
with a just desire to keep witliin the restrictions laid by the con- 
stitution upon their action, have adjudged that it is so. They are 
a co-ordinate department of tlie government with the judiciary, 
invested with very high and responsible duties, as to some of 
which their acts are not subject to judicial scrutuiy, and they 
legislate under the solemnity of an official oath, which it is not to 
be supposed they will disregard. It must, therefore, be supposed 
that their own doubts of the constitutionality of their action have 
been deliberately solved in its favor, so that the courts may with 
some confidence repose upon their conclusion as one based upon 
their best judgment. For although it is plain, upon the au- 
thorities, that the courts should sustain legislative action when 
not clearly satisfied of its iuvahdity, it is equally plain in i-eason 
that the legislature should abstain from adopting such action if 

■ Fletcher v. Peck, 6 Crancb, 128, per MarsJudl, Ch. J. 
* Ogdea o. Skundera, 12 WheU. 270. 
[192] 



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CH. Tn.] DBCLA.BINO STATUTES UNCOMSTITDTIONAL. * 183 

not fdllj assured of their authority to do so. Respect for tho 
instrument under vhich they exercise their power should 
impel the •legislature in every case to solve their doubts ["184] 
in its favor, and it is only because we are to presume 
they do bo, that courts are warranted in giving weight in any 
case to their decision. If it were understood that legislators 
refrained from exercising their judgment, or that, in cases of 
doubt, they allowed tliemselvet to lean in favor of the action they 
desired to accomplish, the foundation for the cases we have cited 
would be altc^ther taken away. 

As to what the doubt shall be upon which the court is to act, 
we conceive that it can make no difference whether it springs from 
an endeavor to arrive at the true interpretation of the constitution, 
or fix>m a consideration of the law after the meaning of the consti- 
tution has been judicially determined. It has sometimes been 
supposed that it was the du^ of the court, first, to interpret the 
constitution, placing upon it a construction that must remain 
unvarying, and then test the law in question by it ; and that any 
other rule would lead to differing judicial decisions, if tlie legis- 
lature should put one interpretation upon the constitution at one 
time and a different one at another. But the decided cases do 
not sanction this rule,* and the difficulty suggested ia rather 
imaginary than real, since it is but reasonable to expect that, 
where a construction has once been placed upon a constitutional 
provision, it will be followed afterwards, even though its original 
adoption may have sprang from deference to legislative action 
rather than from settled convictions in the judicial miud.^ 

The duty of the court to uphold a statute when the conflict 
between it and the constitution is not clear, and the implication 
which must always exist that no violation has been intended 
by the legislature, may require it in some cases, where tlie mean- 
ing of the constitution is not in doubt, to lean in favor of such a 
constructiou of t)ie statute as might not at first view seem most 
,obvions and natural. For as a conflict between the statute and the 
constitution is not to be implied, it would seem to follow, where 
the meaning of the constitution is clear, that the court, if poggible, 
mtut give the ttatute aucA a amatmction at wUl enable it to have 

■ Sun UutuBl Inaannce Co. e. New York, 6 Sandf. U ; Clark v. People, S6 
Wend. 606 ; Baltimore c. StaU, Ifi Md. 467. 

■ Peopla V. Blodgett, 13 MicL 163. 

IB [ 198 3 



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•184 coNSTinmoNAL umitations. [ch. vn. 

f^eirf. This is oul; sajdng, in uiotber form of words, tbat the 

court must construe the statute iu accordance with the 

[* 185] legislative " intent ; since it \a always to be presumed 

the legislature designed the statute to take effect, and 

not to be a nullity. 

The rule upon this subject is thus stated hy the Supreme 
Court of Illinois : " Whenever an act of the legislature can be 
so construed and applied as to avoid* conflict with the constitution 
and give it the force of law, such construction will be adopted bj 
the courts. Therefore, acta of the legislature, in terms retro- 
spective, and which, literally interpreted, would invalidate and 
destroy vested rights, are upheld by giving them prospective 
operation only ; for, applied to, and operating upon, future acts 
and transactions only, tliey are rules of property under and 
subject to which the citizen acquires property nghta, and are 
obnoxious to no constitutional limitation ; but as retroactive laws, 
they reach to and destroy exiating rights, through force of the 
legislative will, without a hearing or judgment of law. So will 
acts of the legislature, having elements of limitation, and capable 
of being so applied and administered, altiiough the words are 
broad enough to, and do, literally read, strike at the right itself, 
be construed to limit and control the remedy ; for as such they 
are valid, but as weapona destructive of vested rights they are 
TOid ; and such force only will be given the acts as the l^^latnre 
could impart to them."^ 

The Supreme Court of New Hampahire, where a similar ques- 
tion is involved, recognizing their obligation " so to construe 
every act of the legislature as to make it consistent, if it be 
possible, with the provisions of the constitution," proceed to the 
examination of a statute by the same rule, " without stopping to 
inquire what construction might be warranted by tiie natural 
import of the language used." * 

And SarrU, J., delivering the opinion of the majority of the 
Court of Appeals of New York, says' : " A legislative act is not, 
to be declared void upon a mere conflict of interpretation between 
the legislative and the judicial power. Before proceeding to 
annul, by judicial sentence, what has l>een enacted by the law- 
making power, it should clearly appear that the act cannot be 



[194] 

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OH. vn.} DBCLAWHO 8TATDTB8 miCONHTITDTIOHAL. • 185 

anpported by auy reasonable intendment or allowable preBump- 

tion." ' And the Supreme Court of New York consider 

this but * tlie application of tbe familiar rule, that in [* 186] 

tiM exposition of a statute, it is the duty of tbe court 

to seek to ascertain and carry out tbe iatentioQ of tbe legislature 

in il« enactment, and to give full effect to suob intention, and 

they are bound so to construe tbe statute, if practicable, as to 

give it force and validity, rather tiiau to avoid it, or render it 

nugatory.^ 

The rule is not different when the question is whether any por^ 
tion of a statute is void, than when the whole is assailed. The 
excess of power, if tiiere is any, is the same in either case, and is 
not to be impUad in any instance. 

And on this ground it has been held that where the repealing 
clause in an unconstitutional statute repeals all incoosistent acta, 
tiie repealing clause is to stand and have effect, notwithstanding 
tbe invalidity of the rest.' But other cases hold that such repeal- 
iug clause is to be understood as designed to repeal all conflicting 
provisions, in order that those of the new statute can have eflect ; 
and that if tbe statute is invalid, nothing can conflict with it, and 
therefore nothing is repealed.* Great caution is necessary in 
some cases, or the rule which was designed to ascertain and 
effectuate the legislative intent will be pressed to the extreme of 
giving effect to part of a statute exclusively, when the legislative 
intent was that it should not stand except as a component part of 
tiie whole. 

Inquiry into Legislative Moiivet. 

From what examination has been given to tliis subject-, it ap- 
pears that whether a statute is constitutional or not is always a 
question of power ; that is, whether the legislature in the partic- 
ular case, in respect to tbe subject-matter of the act. tbe manner in 

' People p. Superrisorj of Orange, 17 N. Y. 241. 

■ Clarke e. Kooherter, 24 B&rb. 471. See Mirshnll v. Gnmos. 41 UUa. 37. 

* Mesbroeiwii. Sute, 11 Ind. 489; BI7 r. Thompson, 3 A. £. Marsh. 70. 

* Shepardson v. Milwaukee and Beloit Kailroad Co. 6 Wu. 605; SuCe e. 
Judge of Coimtr Court, 11 Wia. 50 ; Tims v. Sute, 26 Ala. 165 ; Sullivaii p. 
AdaiDB, 3 Gray, 476 ; Devoy p. Mayor, Ac., of New York, 35 Barb. 264 ; Cam- 
pan D. Detroit, 14 Mich. ii76; OIiil<b j>. Sbower, 18 Iowa, 261 ; Uarbeck v. New 
York. 10 Bosw. 366. 

[195] 



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• 186 COKSnrDTIONAL LIMITATIONS. [CH. TH. 

which its object is to be accomplished, and the mode of enacting it, 
has kept within the constitutional limits and observed the constitu- 
tional conditions. In any case in vhich this question is answered 
in the affirmative, the courts are not at liberty to inquire into the 

proper exercise of the power. They must assume that 
[• 187] legislative discretion has been properly exercised.' • If 

evidence was required, it must be supposed that it was 
before the legislature when the act was passed ;^ and if any special 
finding was required to warrant the passage of the particular act, 
it would seem that the passage of the act itself might be held 
equivalent to such finding.^ And although it has sometimes been 
urged at the bar tliat the courts ought to inquire into the motives 
of the legislature wliere fraud and corruption were alleged, and 
aimul their action if the allegation were established, the argu- 
ment has ill no case been acceded to by the judiciary, and they 
have never allowed the inquiry to be entered upon.^ The reasons 

' People D. Lawrence, 36 Barb. 19S ; People c. New York Central Railrowl 
Co. 34 Barb. 137 ; Baltimore v. State, 15 Md. 376. 
* De Camp v. Eveland, 19 Bsrb. 81. 

■ Johnson v. Joliet and Chicago Railroad Co. 23 111. 207. The constitution 
of IllinoiB provided that " corporations not poMeeeiag banking powers or prir- 
ileges may be formed under general laws, but shall not be created by special 
acts, except for municipal purposes, and in cases where, in the judgment of tbe 
General Assembly, the objects of the corporation cannot be attained under 
general laws." A special charter being passed without any legislative declara- 
tion that its object could not be attained tinder a general law, the Supreme Court 
sustaioed it, but placed their dei'ision mainly on tbe ground that the clause had 
been wholly disregarded, " and it would now produce fai^spread ruin to declare 
such acts unconstitutional and void.^ It is very clearly intimated in the Qpinioo, 
that the legislative practice, and this decision sustaining it, did violence to tha 
intent of the constitution. A provision in the constitution of Indiana that " no 
act shall take effect until the same shall have been published and circulated in 
die several counties of this State, by authority, except in case of emergency," 
adds the words, " which emergency shall be declared in tbe preamble, or in tba 
body of the law ; " thus clearly makbg tbe legialatire declaration necessaij. 
Carpenter v. Montgomer}', 7 Blacfcf. 416 ; Mark e. State, 15 Ind. 98 ; Uendrick- 
Bon V. Hendrickson, 7 Ind. 13. 

< Sunbury and Erie Railroad Co. e. Cooper, 33 Penn. St. 278 ; Ex parte New- 
man, 9 Cal. 502 ; Baltimore v. State, 15 Md. 376 ; Johnson c. Biggins, 3 Met. 
(Ky.) 566. " The courts cannot impute to the legislature any other but public 
motives for their acts." People v. Draper, 15 N. Y, 545, per Dtnio, Ch. J. 
" We are not made judges of the motives of the legislature, and the court will 
not Dsurp the inquisitorial office of inquiry into the bona Jida of that body in 
discharging ila duties." Shanldaitd, J., in same caae, p. 656. " The powoi of 
[196] 



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CH. Vn.] DECLABINO 8TATDTE8 DNCONSTTrDTIONAL. * 187 

are the same here as those vhich preclude aa inquiry iuto the 
motives of the gorenior in the exercise of a discretion vested in 
him exclusively. He is responsible for his acts in such a case not 
to the courts but to the people.^ 



* Cotuequences if a Statute w Void. [• 188] 

When a statute is adjudged to be unconstitutional, it is as if it 
bad never been. Rights cannot be built up under it ; contracts 
which depend upon it for their consideration are void ; it consti- 
tute a protection to no one who has acted under it, and no one 
can be punished for having refused obedience to it before the deci- 
sion was made.^ And what is true of an act void in toto is true 
also as to any part of an act which is found to be unconstitutional, 
and which, consequently, is to be regarded as having never, at any 
time, been possessed of any legal force. 

tbe three departments are not merelv equil ; thej are excIusiTe m respect to the 
daties usigned to each. Thej are absolutely I'ndependeDt of each other. It ia 
BOW propoaed that one of the three powen shall institute bd inquiiy into the 
conduct of another department, and form an issue to try by what motiTea tbe 
legislature were governed in the enactment of a law. If this may be done, we 
may also inquire by what motives the executive is induced to approve a bill or 
withhold his approval, aod in case of withholding it corruptly, by our mandate 
compel iti approval. To institute the propoaed inquiry would be a direct attack 
npoD the independence of tbe legislature, and a usurpation of power Bubversive 
of the coDstitDtion." Wright v. Defrees, 6 Ind. 302, per Gookint, J. " We are 
not at liberty to inquire into the motives of the Jep'slature. We can only ex- 
amine into its power under the constitution." Per Chate, Ch. J., io Ex parte 
UcCaidle, ? Wal. 614. And see McCulloch v. Stat«, 11 Ind. 431. 

< Attorney-General v. Brown, 1 Wis. 522 ; Wright c. Defreea, 8 Ind. 302. 

* Strong D. Daniel, b Ind. 348; Astrom e. Hammond, 3 McLean, 107; 
Ueagher e. Storey Co. 5 Nev. 244. But one acting as an of&cer under an un- 
constitutional law was held in Commonwealth v. McCombs, 66 Fenn. St. 436, to 
be an officer At facto. This could hardly be so, however, if the law creating 
the office was unconititational. There can be no officer de facto when there ii 
no office. See Carlelon v. People, 10 Mich. 250. 

[197] 



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ooNsrmmoNAL LnoTAirois. [ch. vm. 



[•189] •CHAPTER Vm. 

THE 8ETEBAL ORADES OF HUNICIFAL OOTERMUENT. 

In the examination of American constitutional law, we- Bball 
not fail to notice the care taken and the means adopted to bring 
the agencies bj which power is to be exercised as near as possible 
to the subjects upon which the power is to operate. 

In contradistinction to those gorernments where power is con- 
centrated in one man, or one or more bodies of men, whose 
supervision and active control extend to all the objects of gov- 
ernment within the territorial limits of the State, the American 
system is one of complete decentraltjation, the primary and vital 
idea of which is, that* local aSairs shall be managed by local 
authorities, and general affairs only by the central authority. It 
was under the control of this idea that a national constitution 
was formed, under which the States, while yielding to the national 
government complete and exclusive jurisdiction over external 
affairs, conferred upon it such powers only, in regard to matters 
of internal regulation, as seemed to be essential to national union, 
strength, and harmony, aud without which the purpose in organ- 
izing the national authority might have been defeated. It is 
this, also, that impels ihe several States, as if by conunon arrange- 
ment, to subdivide their territory into counties, towns, road and 
school districts, and to confer upon each the powers of local le^la- 
tion, and also to incorporate cities, boroughs, and villages where- 
ever a dense population renders different rules important &om 
those which are needful for the rural districts. 

The system is one which almost seems a part of the very nature 
of the race to whioh we belong. A similar subdivision of the 
realm for the purposes of municipal govemment has existed in 
England from the eariiest ages ; ' and in America, the first set- 
tlers, as if instinctively, adopted it in their frame of govem- 

> Crsbbe's Histor}- of Engluh Law, c. S ; 1 Bl. Com. 114 ; Hallun'a Middle 
Agu, c. 8, pt. 1 ; 2 Kent, S78 ; Viugbui'B Revolutions in English Histoi?, b. 8, 

[198] 

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CH. Tin.] THE GRADES OP MUNICIPAL GOVERNMENT. * 189 

ment, and 'no other has ever supplanted it, or even [*190] 
found advocates. In most of the colonies the central 
power created and provided for the organization of the towns ; ^ in 
one at leaat the towns preceded and creat«d the central authority ;^ 
bat ill all, the 6nal result was subHtaiitially the same, that towns, 
villages, boroughs, cities, and counties exercised the powers of 
local government, and the Colony or State the powers of a more 
general nature.^ 

The several State constitutions have been framed with this 
system in view, and the delegations of power which they make, 
and the express and implied restraints which they impose there- 
upon, can only be correctly understood and construed hy keeping 

' For an interesting hiBtorj' of tbe legislation in Connecticut on thig subject, 
■ee Webster v. Hsririnton, 32 Conn. 131. In Neir Hampshire, see Bow p. 
AIl«nstoifn, 34 N. H. 3ol. Tbe learned note to Comin on wealth u. Roxbury, 9 
Gray, 503, will give similsr information concerning the organization and authority 
of towns in the Masiachu setts provinces. Mr. Elliott weU says: "The prime 
strength of New England and of the whole republic was and iit in the municipal 
governments and in tbe homes." And he adds, that among the earliest thing! 
decided in Massachusetts was, " that trivial things should be ended in towns." 
(1635.) Elliott's New England, Vol. I. p. 162. 

* Rhode Island ; see Arnold's History, c. 7. 

' " The townships," says De Tocqueville, " are only subordinate to the State 
in tboie interests which I shall term 3ocial. as they are common to all of tbe 
citizens. They are independent in all that concerns themselves, and among the 
inhabitants of New England, I believe that not a man is to be found who would 
acknowledge that the State has any right to interfere in their local interests. The 
towns of New Sngland buy and sell, proieoute or are indicted; augment or 
diminish their rates, without the slightest opposition on tbe part of the adminis- 
trative authority of the State. They are bound, however, to comply with the 
demands of the community. If a Stat« ii in need of money, a town can neither 
give nor withhold the supplies. If a State projects a road, tbe township cannot 
refuse to let it cross its territory ; if a police regulation is made by the Stat« it 
moat be enforced by the t«wn. An uniform system of instruction is organized 
all over the country, and every town is bound to establish the schools which the 
law ordains. . . . Strict as this obligation is, the government of the State im- 
poaes it in principle only, and in its performance tbe township aasumes all ita 
independent rights. Thus taxes are voted by the State, but they are assessed 
and collected by the township; the existence of a school is obligatory, but the 
township builds, pays, and supericitends it. In France, the State collector re- 
ceives tbe local imposts ; in America, the town collector receives the taxes of the 
Stole. Thus the French government lends its agents to the commune ; in Amer- 
ica, tbe township is the agent of the government. The fact alone shows the 
extent nf tbe differences which exist between the two nations." Democracy in 
America, c. 5. 

[199] 



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• 190 coNBTirnnoNAL limitations. [ch. rni. 

in view its present existence and anticipated continuance. There 
are few of the general rules of coiiatitutional law that are 
not more or less affected by the fact that the powers of govern- 
ment are not concentrated in any one body of men, but are 

carefully distributed, with a view to being easily, cheaply, 
[•191] and •intelligently exercised, and as far as possible by 

the persons more immediately interested. 
We have already seen that the l^islature cannot delegate its 
power to make laws ; but fundamental as this maxim is, it is so 
qualified by the customs of our race, and by other maxims which 
regard local government, that the right of the legislature, in the 
entire absence of authorization or prohibition, to create towns and 
other inferior municipal organizations, and to confer upon them 
the powers of local government, and especially of local taxation 
and police regulation usual with such corporations, would always 
pass unchallenged. The legislature in these cases is not regarded 
as delegating its authority, because the regulation of such local 
affairs as are commonly left to local boards and officers is not un- 
derstood to properly belong to the State ; and when it interferes, 
as sometimes it must, to restrain and control the local action, 
there must be reasons of State policy or dangers of local abuse 
to warrant the interposition.^ 

The people of the municipalities, however, do not define for 
thcmselTes their own rights, privileges, and powers, nor is there 
any coiumon law which draws any definite line of distinction be- 

■ " It seems to be generally conceded tbat paireni of local legislatiun may be 
granted to i:iljeii, towni, and other municipal corporations. And it would requiru 
fltrong reasons to stLtiafy lu that it could have been the design of the framers of 
our constitution to take from the legislature a power which has been exercised in 
Europe by governments of all classes from the earliest history, and the exercise 
of which has probably done more to promote civilization than all other causes 
combined ; which has been lonstantly exercised in every part of our country 
ftom its earliest settlement, and which has raised up aroong us many of our most 
valnable institutions." State u. Noyes, 1U Fost. 292, per Sellt J. See also 
Tannerc. Trustees of Albion, 5 HiU, 121; Dalby n. Wolf, 14 Iowa, 228; State 
e. Siioonds. S Mo. 414; McKee v. McKee, 8 B. Monr. 433; Smith c. I^vinus, 
8 N. Y. 472 ; People o. Draper, 16 N. Y. 632 ; Burgess v. Pue, 2 Gill, 11 ; New 
Orleans v. Turpin, 13 La. An. 66; Gilkeson v. The Frederick Justices, 13 Grat. 
677; Mayor, Ac. of New York n. Ryan, 2 E. D. Smith, 368; St. Louis v. 
Russell, 9 Mo. 503; Bliss e. Kraus, 16 Ohio, s.B. 55; TrigaUy V. Memphis, 
fl Cold. 382 ; Burach's Appeal, 63 Penn. St. 491 ; State v. Wilcoi, 45 Mo. 458 ; 
Jones V. Richm<md, 18 Grat. 617 ; State v. Neill, 24 Wis. 149. 
[200] 



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CH. Yin.] THE 0RADE8 OF MUNICIPAL GOTERNHBNT. * 191 

tweQn the powers which ma; be exerciBed by the State and those 
which must be left to the local governments.' The municipalities 
must look to the State for such charters of government a^ the 
legislature shall see fit to provide ; and they cannot prescribe for 
themselves the details, though they have a right to expect that 
those charters will he granted with a recognition of the 
general "principles with which we are familiar. The [*192] 
charter, or the general law under which they exercise 
their powers, is their oonatitutioD, in which they must show 
authority for the acts they assume to perform. Tliey have no 
inherent jurisdiction to make laws or adopt regulations of gov- 
ernmeut; they arc governments of eunmerated powers, acting 
by a delegated autliority ; so that while the State legislature 
may exercise such powers of government coming within a proper 
designation of legislative power as are not expressly or im- 
pliedly prohibited, the local authorities can exercise those only 
which are expressly or impliedly conferred, and subject to such 
regulations or restrictions as are annexed to the grant.' 

The creation of municipal corporations, and the conferring 
upon them of cert^n powers and subjecting tliem to correspond- 
ing duties, does not deprive the legislature of the State of that 
complete control over their citizens which was before possessed. 
It still has authority to amend their charters, eulat^ or diminish 
their powers, extend or limit their boundaries, consolidate two or 
more into one, overrule their action whenever it is deemed unwise, 
impolitic, or unjust, and even alwlish them altogether in the legis- 
lative discretion.' The rights- and franchises of such a corpora- 



1 Ian affecting these corporate existences, and the effect 
of nsage, see 2 Kent, 278, 279. 

* Stetson V. Eempton. 13 Mass. 272; Willard v. Eillingworth, 8 Conn. 264; 
Abendroth v. Greemrich, 29 Conn. 363 ; Baldwin e. North Branford, 32 Coon. 
47; WebBter e. HanrintoD, ib. 131; Dooglass v. Placerville, 18 Cal. 643; Lack- 
land 0. Northern Miesouri Railroad Co. 31 Ma. ISO ; Ma^s e. Cincinnati, 1 Ohio, 
M. S. 268; FroBtp. Belmont, 6 Allen, 162. 

■ St. Louis n. Allen, 13 Mo. 400 ; Coles o. Madison Co., Breese, 116 ; Rich- 
Und Couaty v. Lawrence Connty, 12 HI. 1 ; Truataes of Schools c. Tatman, 13 
111.27; Robertson e.Rockfi>rd, 21111. 1; People v. Power, 25 EI. 187; St. Louis 
V. Riinell, 9 Mo. 003 ; State v. Cowan. 29 Mo. 330 ; McKim n. Odom, 3 Bland, 
407 ; Granby v. Thunton, 33 Conn. 416 ; Harrison Justices o. HoUsnd, 3 Grat. 
247 ; Brighton v. Wilkinson, 2 Allen, 27 ; Sloan o. State, 8 Blaokf. 361 ; Mills 
ff. Williams, 11 Ired. fi58; Langworthy b. Dabaque, 16 Iowa, 271; Weeks e. 

[201] 



DiB.1izedOyGoO<^lc 



" 192 CONBTITCTIONAL LnCITATIOHS. [CH. Tin. 

tion, being granted for the piirposeB of the gOTornmeDt, 
[* 193] can never * become such Tested rights as against the 

State that the; cannot be taken away ; nor does tlie char- 
ter constitute a contract in the sense of the constitutioDal provision 
which prohibits the obligation of contracts being violated.^ Be- 
straints on the legislative power of control must be found in the 
constitution of the State, or they must rest alone in the legislative 
discretion.' If the legislative action in these cases operates inju- 

Miliraukee, 10 Wis. 242 ; State v. Branin. S Zab. 484 i Patterson v. Society, &c., 
4 Zab. 386 ; Atchison v. Bartholow, 4 Eaniu, 124 ; City of St. Louis c. Cafle- 
rata, 24 Mo. 94; People v. Draper, 15 N. T. 532; ABpinwall p. Commissioners, 
&c., 22 How. 364. The legislature may in its discretion recall to itself and exer- 
ciM SO much of such potters as it has conferred upon municipal corporations as 
is QOt secured to them by the constitution. People v, Pinkney, 32 N. Y. 377. 
The creditors of a county cannot prevent the legislature reducing its limits, not- 
withstanding their security may be diminished thereby. Wade v. Richmond, 18 
Grat. 683. This poirer is not defeated or affected by the circumstance that the 
municipal corporation was by its charter made the trustee of a charity ; and in 
such case, if the corporation is abolished, the Court of Ch'anuery may be em- 
powered and directed J>y the repealing act to appoint a new trustee to take chai^ 
of the property and execute the trust. Montpelier v. East Montpelier, 29 Yt. 
12. Aod see Harrison v. Bridgeton, 16 Mass. 16 ; Montpelier Academy v. 
George, 14 Jm. An. 406 ; Reynolds v. Bafdwin, 1 La.' An. 162 ; Police Jury t>. 
Shrereport, 6 La. An. 665. But neither the identity of a corporation, nor ils 
right to take property by devise, i^ destroyed by a change in its name, or en- 
largement of its area, or an increase in the number of its corporators. Giraid 
o. Philadelphia, T Wal. 1. Changing a borough into a city does not of itself 
abolish or affect the existing borough ordinances. Trustees of Erie Academy o. 
City of Erie, 31 Fenn. St. fit6. Nor will it affect the indebtedness of the cor- 
poration, which will continue to be its indebtedness under its new organization. 
Obey V. Harvey. 60 lU. 453. 

' This principle was recognized by the several judges in Dartmouth College 
D. Woodward, 4 Wheat. 518. And see People v. Morris, 13 Wend. 331 : St. 
Louis p. Russell, 9 Mo. 607 ; Montpelier r. East Montpelier, 29 Vt. 12 ; Trustees 
of Schools t>. Tatman, 13 111. 30 ; Brighton c. Wilkinson, 3 Allen, 27 ; Reynolds 
[>. Baldwin, 1 La. An. 162 ; Police Jury r. Sbreveport, 6 La. An. 6G6 ; Mt. Cai^ 
mel p. Wabash County, 50 111. 69. 

■ "Where a corporation is the mere creature of legislative will, established 
for the general good, and endowed by the State alone, the legislature may, at 
pleasure, modify the law by which it was created. For in that case there would 
be but one party affected, — the government itself, — and therefore not a ccm- 
tract within tite meaning of the constitution. The trustees of such a corporation 
would be the mere mandatories of the State, having no personal interest involved, 
Rnd could not complain of any law tliat might abridge or destroy tbeir agency." 
Montpelier Academy n. George, 14 La. An. 406. In Trustees of Schools d. 
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CH. Vra-j THE GRADES OP MUHiaPAL GOVERNMENT. * 198 

rioualy to individualB, the remedy is not with the courts. They 
have DO power to interfere, and the people must be looked to, to 
r^ht through the ballot-box all these wrongs.^ This is the general 
rule ; and the exceptions to it are not numerous, and will be iadi* 
eated hereafter. 

Titouui, 13 lU. 30, the court saj: " Public corporations are but parts of the 
raachinerj employed in carryJDg on the affairs of the State ; and tbey are subject 
to be changed, modified, or destroyed, aa the exigenf:ies of the public may 
demand. The State may exercise a general superintendence and control over 
them and their rights and efiects. ho that ttieir property is not diverted from the 
nsei and objects for whith it was given or purchased." It is a lawful exercise 
of legislative authority upon the division of counties, towns, &c., to confer a 
put of the corporate property of the old corporation npon tbe new, and to 
direct the old body to pay it over to the new. Harrison o. Bridgeton, 16 Maw. 
16 ; Bristol V. New Chester, 8 N. H. 524 ; Milwaukee Town e. Milwaukee City, 
12 Wis. 93; MarshaU Co. Court v. Calloway Co. Court, 3 Bush, 93. But it 
seems that this apportionment of property can only be made at the time of the 
division. Windham v. Portland, 4 filass. 390 ; Hampshire o. Franklin, 16 Masa. 
76. See Ridiland v. Lawrence, 12 Dl. 8; Bowdoinham p. Richmond, 6Greenl. 
112. In the latter case, it was held that the apportionment of debts between 
an old town and one created from it was in the nature of -a contract ; and it was 
not in the power of the legislature afterwards to release the new township from 
payment of its share as thus determined. But the case of Layton d. New Orleans, 
12 La. An. 515, is contra. See also Borough of Dunmore's Appeal, 62 Penn. St. 
374, which in prindple seems to accord with the Louisiana case. In Bums e. 
Clarion County, 62 Penn. St. 422, it was held the legislature had the power 
to open a settiement made by county creditors with the county treasurer, and to 
compel them to settle with him on principles of equity. See further Cambridge 
o. Lexington, 17 Pick. 222 ; Attorney- General o, Cambridge, 16 Gray, 247. 

1 "The correction of these abuses is as readily attained at the ballot-box 
as it would be by subjecting it to judicial revision. A citizen or a number of 
citiEens may be subtracted Irom a county free from debt, having no taxation for 
county purposes, and added to an adjacent one, whose debts are heavy, and 
wbuse taxing powers are exercised to the utmost extent allowed by law. and thit, 
loo, without consulting their wishes. It is done every day. Perhaps a majority 
of the people thus annexed to an adjacent or thrown into a new county by the 
division of an old one may have petitioned the legislature for this change ; but 
this is no relief to the outvoted minority, or the individual who deems himself 
oppressed and vexed by the change. Most we, then, to prevent such occasional 
hardsbipa, deny tbe power entirely? 

" It must be borne in mind that these corporations, whether established over 
dtie*. counties, or townships (where such incorporated subdivisions exist), are 
never intrusted>and can never be intrusted with any legislative power inconsist- 
ent or conflicting with the general laws of the land, or derogatory to those righta 
either of person or property which the constitution and the general laws guarantee. 
They are strictly subordinate to the general laws, and merely created to carry 

[ 203 ] 



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COHSriTDTIONAL LIMITATIONS. [CH. Vm. 



[•194] 'Powers of Public Corporationa. 

The powers of these corporations are either express or implied. 
The former are those which the legislative act under which they 
exist confers in express terms ; the latter are Buch as are neces- 
sary in order to carry into effect those expressly granted, and 
which must, therefore, be presumed to hare been within the in- 
tention of the legislative grant.' Certain powers are also inci- 
dental to corporations, and will be possessed unless expressly or 
by implication prohibited. Of these an English writer has said: 
*' A municip^ corporation has at common lav few powers beyond 
those of electing, governing, and removing its members, and reg- 
ulating its franchises and property. The power of its governing 
officers can only extend to the administration of the by-laws and 
other ordinances by which the body is regulated."' But without 
being expressly empowered so to do, they may sue and be sued ; 
may have a common seal ; may purchase and hold lands 
[• 195] and other • property for corporate purposes, and convey the 
same ; may make by-laws whenever necessary to accom- 
plish the design of the incorporation, and enforce the same by 
penalties ; and may enter into contracts to effectuate tlie corporate 
purposes." Except as to these incidental powers, and which need 
not be, though they usually are, mentioned in the charter, the 
charter itself, or the general law under which they exist, is the 
measure of the authority to be exercised. 

And the general disposition of the courts in this country has 
been to confine muuicipalities within the limits that a strict con- 

ont the purposes of those l&ws vith more certainty and efficiency. Thej m&y 
be and lometimeB ara intruated -with poworB which properly appertftia to private 
corporations, and in sach matters their power as mere municipal corporationi 
ceues." City of St. Louie v. Allen, 13 Mo. 414. 

' 2 Kent, 278, note ; Halstead t>. Mayor, &c., of New York, 3 N. Y. 433 ; 
Hodges e. Bufhlo, 2 Denio, 112; New London c. Brainerd, 22Cona. 552; State 
r. Ferguson, S3 K. H. 424 ; McMillan e. r.,ee County, 3 Iowa, 311 ; La Fayette 
V. Cox, 5 Ind. 38 ; Clark r. Dei Moinee, 19 Iowa, 212 ; State t). Morristown, 
33 N. J. 63 ; Beaty o. Knowler. 4 Pet. 162 ; Mills u. Gleason, 11 Wis. 47a In 
this last case, it was bald that these corporations bad implied power to borrow 
money for corporate purposes. And see also Ketchnm p. BufiUo,*14 N. Y. 356. 

* Willcock on Municipal Corporations, tit. 769. 

* Angell and Ames on Corp. §§ 111, 289; 2 Eyd on Corp. 102; States. 
Feiguson, 33 N. H. 430. 

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CH. Till.] THE QBADEB OP MUNICIPAL GOTBKNMBNT. * 195 

struction of the grants of powers in their charters will asBign to 
them ; thus applying substantially the aame rule that ie applied 
to charters of private incorporation.' 

" It must follow that, if in any case a party assumes to [• 196] 
deal with a corporation on the supposition that it possesses 
powers which it does not, or to contract in any other manner thaa 
is permitted by the charter, he will not be allowed, notwithstand- 
ing he may have complied with the undertaking on Ins part, to 
muntain a suit against the corporation based upon ita unauUiorized 
action. Even where a party is induced to enter upon work for a 

' Under a city charter which authorized the common council to appoint auea- 
■ora for the purpo«e of awarding damages to those through whose property a 
nreet might be opeoed, and to assess such damages on the property benefited, 
it -was decided that the council were not empowered to levy a taa to pay for the 
Other ezpemtCB of opening the street. Reed v. Toledo, 18 Ohio, 161. So a 
power to enact by-laws and ordlnanceB to abate and remove nuisances will not 
authorize the psasing of an ordinance to prevent nuisances, or to impose penalties 
for the oreatio[i thereof. Rochester t. Collins, 12 Barb. &S9. A power to impose 
penalties for obtlnteiiotu to streets would not authorize the like penalties for 
encroachmenU upon streets, where, under the general laws of the State, the 
offences are recognized as different and distinct. Grand Rapids i>. Hughes, 16 
Mich. 54. Authority to levy a tax on real and personal estate would Dot warrant 
an income tax, especially when such a tax is unueual in the State. Mayor of 
Savannah e. Hartridge, 8 Geo. 23. It will appear, thereforei that powers near 
akin to those expressly conferred are not, for that reason, to be taken by impli- 
cation. And see Commonwealth v. Erie and N. E. Railroad Co. 27 Peon. St. 
339. This rule has often been applied where authority has been asserted on 
behalf of a municipal corporation to loan its credit to corporations fonned to 
construct works of internal improvement. See La Fayette v. Cox, fi Ind. 38. 
A power to pass ordinances to prohibit the sale or giving away of intoxicating 
liquors in certain specisl cases is an Implied exclusion of the power to prohibit 
lite sale or giving away in other cases. State c. Ferguson, S3 N. H. 424. In 
Dnnbam r. Rochester, 5 Cow. 46fl, it is said : " For all the purposes of jurii- 
diction corporations are like the inferior courts, and must show the power given 
them in every case. If this be wanting, their proceedings must be holden void 
wboiever they come in question, even collaterally ; for they are not judicial and 
subject to direct review on certiorari. 2 Eyd on Corp. l(M^107." See also 
Milhan o. Sharp, 17 Barb. 435, 28 Barb. 228, and 27 H. ^- 611 ; Douglass t>. 
Placerville, 18 Cal. 6418 ; Mount Pleasant o. Breeze, 11 Iowa, 899 ; Hooper e. 
&nery, 14 Me. 376 ; Mayor, Ac, of Macon P. Macon and Western R. R. Co. 
7 Geo. 224 ; Hopple c. Brown, 13 Ohio, k. b. 311 ; Lackland t>. Northern Mis- 
souri Railroad Co. 31 Mo. 180 ; Smith c. Morse, 2 Gal. 524 ; Bennett v. Borougb 
of Birmingham, 31 Pcnn. St. 16 ; Tucker o. Virginia City, 4 Ner. 20 ; Leaven- 
worth t>. Norton, 1 Kansas, 432 ; Kyle t>. Malin, 8 Ind. 34 ; Johnson v. FhUadel- 
phu, 60 Fenn. St. 451. 

taos] 



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• 196 CONSTITDTIONAL LIMITATIONB. [CH. Vm. 

corporatioii by the false repreeentationR of corporate officers, in 
regard to the existence of facts on which by lav the power of the 
corporatioQ to enter upon the work depends, these false representa- 
tions cannot have the effect to give a power wliich in the particular 
case was wanting, or to validate a contract otherwise void, and 
therefore can afford no ground of action against the corporation ; 
but every party contracting with it must take notice of any want 
of authority which the public records would show.^ This is the 

' The commoD council of Williamsburg bad power to opon, regnlate. grade, 
and pave itrecb, but only upon petition signed by one third of the persons own- 
ing lands within the asiessmant limits. A party entered intA a contract witli the 
corporation for improving a street upon the falee representations of the coundl 
tliat snch a petition had been preiented. Held, that the provision of the law 
being public, and all the proceeding! leading to a determiuatkin by the council 
to make a particular improvement being matten of record, all persona were 
chargeable with notice of the law and snch proceedings ; and that, notwithstand- 
ing the false representations, no action would lie against the city for work done 
under the contract. Swift e. Williamabui^, 24 Barb. 427. "If the plaintiff can 
recover on the siat« of facta he has stated in his complaint, the restrictioiu and 
limitations which the legislature sought to impose upon the powers of the com- 
mon council will go for nothing. And yet, these provisions are matters of 
snbsta&ce, and were designed to be of same service to the constitaents of the 
CMunon coundl. They were intended to protect the owners of lands and the 
tax-payers of the city, as well against the frauds and impoaitians of the con- 
tractors who -mig^t be employed to make local improvements, as against the 
illegal acts of the common council themselves in employing the contractors. 
But if the plaintjffcan recover in this action, of what value or effect are all these 
lafegoards ? If the common council desire to make a local improvement, which 
tbe persons to be benefited thereby, and to be assessed therefor, are unwilling 
to have made, the consent of the owners may be wholly dispensed with, accord- 
ing to the plaintiff's theory. The common council have only to repreeeat that 
the proper petition has been presented and tbe proper proceedings have been 
taken, to warrant the improvement. Tbey then enter into tbe contract. Hie 
improvement is made. Those other aafeguards for an assessment of the ex- 
penses and for reviewing the proceedings may or may not be taken. But when 
the work is completed and is to be paid for, it is found that tbe common coundl 
have no authority to lay any assessment or collect a dollar from the proper^ 
benefited by the improvement. The contractor then brings his action, and 
recovers from the dty the damages he has sustained by the failure of the dty to 
pay him the contract price. The ground of his action is the falsity of the repn- 
sentations made to him. But the truth or falsity of such representations might 
have been asccrtaiued by the party with tbe use of the most ordinal; care and 
diligence. The existence of the proper petition, and the taking of the necessary 
initiatory steps to warrant the improvement, were doubtless referred to and 
redled in the contract made with the plaintiff. And he thus became again directiy 
[206] 



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CH. Tm.] THE GRADES OF MUNICIPAL GOrEHNHENT. * 196 

general mle, and the cases of uuauthorized action which may bind 
the corporatioQ are exceptional, and will be referred to furtlier on. 



* Corporations by Preicription and Implication. [* 197] 

The origin of many of the corporate privileges asserted aod 
enjoyed in England is veiled in obscurity, and it is more than 
probable that in some instances they had no better foundation 
than an uninterrupted user for a considerable period. In other cases 
the regal or baronial grant became lost in the lapse of time, and 
the evidence that it had ever existed might rest exclusively upon 
reputation, or upon the inference to be drawn from the exercise of 
corporate functions. In all these cases it seems to be the law that 
the corporate existence may be maintained on the ground of 
prescription; that 'is to say, the exercise of corporate righte for a 
time whereof the memory of man runneth not to the contrary, is 
sufficient evidence that such rights were once granted by com- 
petent authority, and are therefore now exercised by right and not 
by usarpatioii.^ And this presumption concludes ^e crown, not- 
chargeable with notice of tbe contents of sU these papers. It is obTioue that die 
reatrictions and linnitnlioiis impOBed hj the Uw cannot be thus evaded. The 
consent of tbe parties interested in such improvements cannot be dispensed irith; 
the responiibilitj, which the conditions precedent created by the statute impose, 
cannot be thrown off in thia manner. For the effect of doing so is to shift en- 
tirely the bnrden of maJduf; these local improvements, to relieve those on -nhooi 
tbe law sought to impose tbe expense, and to throw it on othion who are not lia- 
ble either in law or morals." 

So where the charter of Detroit provided that no public work should be con- 
traetcd for or commenced until an assessment hati been levied to defray die 
expense, and that no nich work should be p«d or contracted to be paid for, 
except out of the proceeds of die tax thus levied, it was held, that the city cor- 
poration bad no power to make itself responnble for the price of any public 
work, and that such work could only be paid for by fonds actually in the hands 
of the city treasurer, provided for the specific pnrpose. Goodrich n. Detroit, 12 
Uich. 279. 

Parties dealing with the agents or officers of mnnicipal corporations must, at 
their own peril, take notice of the limits of the powers both of the municipal 
corporation, and of those assuming to act on its behalf. State n. Kirkley, 29 
Hd. 85 ; Goold t>. Sterling, 23 N. Y. 464 ; Clark «. Des Moines, 19 Iowa, 209 ; 
Teeder v. Lima, 19 Wis. 260. 

' Introdnction to Willcock on Municipa] Corporations ; The King d. Mayor, 
&C., of Stratford upon Avon, 14 East, 360; Robie v. Sedgwick, 35 Barb. S26. 
See Londonderry v. Andover, 26 Vt. 416. 

[ 207 ] ■ 



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•197 CONBTITUnONAL LlflllTATIONB. [CH. THI. 

withstanding the maxim that the crown shall lose no rights hj 
lapse of time. If the right asserted is one of wliich a gr&iit might 
he predicated, a jury is bound to presume a grant from that 
prescription.^ In this particular the claim to a corporate franchise 
stands on the same ground as any claim of private right which 
requires a grant for its support, and is to be sustained under 
the same circumstances of continuous assertion and enjoyment.^ 
And even the grant of a charter by the crown will not preclude 
the claim to corporate rights hy prescription ; for a new charter 
does not extinguish old privileges.^ 

A corporation may also be established upon presumptive evidence 
that a charter has been granted within the time of memory. Such 
evidence is addressed to a jury, and though not conclusive upon 
them, yet if it reasonably satisfies their minds, it will justify them 
in a verdict finding the corporate existence. ," There is a great 
difference," says Lord ManajUld, "between length of time which 
operates as a bar to a claim, and that which is only itsed by way of 
evidence. A jury is concluded by length of time which operates 
as a bar ; as where the statute of limitations is pleaded to a debt ; 
though the jury is satisfied that the debt is still due and unpaid, it 
is still a bar. So in the case of presumption. If it be time out of 
mind, a jury is bound to pi-eclude the right from that prescription, 
if there could be a legal commencement of the right. But any 
written evidence showing that there was a time when the prescrip- 
tion did not exist, is an answer to a claim founded on prescription. 
But length of time used merely by way of evidence may be left to 
the consideration of the jury, to be credited or not, and to draw 
their inference one way or the other according to circumstances."* 
The same ruling has been had in several cases in the courts of this 
country, where corporate powers bad been exercised, but no charter 
could be produced. In one of these cases common reputation that 
a charter bad once existed was allowed to be given to the jury ; the 
court remarking upon the notorious fact that two great fires in the 

' Mayor of Hull o. Homer, Cowp. 108, per Lord Manefidd. 

• 2 Kent, 277 ; Angell and Ames on Corp. § 70; 1 Kyd on Corp. U. 

' Hadduck'B Cue, T. Rjiym. 439; The King v. Kbyor, &c., of Stniibrd upon 
Avon, U East, 360 ; Bow d. AllenitowQ, 34 N. H. 366. See JuaesoD v. People, 
16 III. 269. 

* Mayor of Hall v. Horner, Cowp. 108, 109 ; citing, among other cuea, Bedls 
e. Btud, 12 Co. G. 

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CH. vrn.] THE OBADfa OF MUNICIPAL GOTBBNMENT. • 197 

capital of the colony had destroyed many of the public records.' 
In other cases there was evidence of various acts which could only 
lawfully and properly be done by a corporation, covering a period of 
thirty, forty, or fifty yeara, and done with the knowledge of the 
State and without question.' The inference of corporate povcrs, 
however, is not one of law; but is to be drawn as a fact by the jury.' 

Wlierever a corporation ia found to exist by prescription, the 
same rule as to couatruction of powers, we apprehend, 
would apply as in other caaes. * Tlie presomption aa to [* 198] 
the powers granted would bo limited by the proof of the 
usage, and nothing could be taken by intendment whicli tlie usage 
did not warrant. 

Corporations are also said sometimes to exist by implication. 
When that power in the State which can create corporations, grants 
to individuals such property, rights, or franchises, or imposes upon 
them such burdens, as can only be properly held, enjoyed, con* 
tinued, or borne, according to the terms of the grant, by a corporate 
entity, tlie intention to create such corporate entity is to be 
presumed, and corporate capacity is held to l>e conferred so far as 
is necessary to efiectuate the purpose of the grant or burden. On 
this subject it will be sufficient for our purpose to refer to authoi> 
ittes named in the note.* In these cases the rule of strict 
construction of corporate powers applies with unusual force. 

Municipal By-Laws. 
The power of municipal corporations to make by-laws is limited 
in various ways. 

' Dtlliiigbam v. Snow, & Mais. fifiS. And we Bow v. Allemtown, S4 N. H. 
351. 

■ Stockbri'lge r. Weat Stockbridge, IS Mus. 400; New Bostoo n. Dunbuton, 
13 N. H. 409, &nd 15 N. H. 201 ; Bow t>. Allenstown, 34 N. H. 351 ; Trott D. 
Wureo, 2 Fairf. 227. 

* New Boston r. Dunbarton, 16 N. H. 301 ; Bow e. AlleDrtown, 94 N. H. 351 ; 
Mayor of Hull e. Hurner, 11 Eaet, 102. 

* Djer, 400, dted by Lord Kmyon, in Ruuell «. Men ofDevon, 2 T. R. 672, 
•lul in 2 Kent, 276; Yiner'aAbr. tit. "Corporation"] Conserralon of River Tone 
e. Alb, 10 B. & C. S49; Same cue, ib. 383, citing case of Sutton Hospital, 10 
Co. 28; per Kail, Chancellor, ia Denton e. Jackson, 2 Johns. Cb. 325 ; Cobum 
ff. EUenwood, 4 N. H. 101 ; Atkinson e. Bemia, 11 N. H. 46 ; North Hempstead 
V. Hempalead, 8 Wend. 109 ; Thomas e. Dakln, 22 Wend. 9 ; per Sham, Ch. J., 
in Stebbioi v. Jennings, 10 Pick. 188. 

14 [ 209 ] 



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• 198 COKSTITDTIOIIAI, UHITATI0H8. [CH. Tin. 

1. It is controlled by the Constitution of the United States and 
of the State. The restrictions imposed hy those instranients, and 
which directly limit the legislative power of the State, rest equally 
upon all the inatruments of goTenunent created hy the State. K a 
State cannot pass an ex post facto law, or lawimpainng tlie obliga- 
tion of contracts, neither can any agency do so which acts \inder the 
State with delegated authority.' By-laws, therefore, which in their 
operatioQ would be <x poai facto, or violate contracts, are not 
wiUiin the power of municipal corporationB ; and whatever the 
people by the State constitution hare forbidden the State govern- 
ment from doing, it cannot do indirectly through the local govern- 
menta. 

2. Municipal by-laws must also be in harmony with the general 
laws of the State, and with tlie provisions of the municipal charter. 
Whenever they come in conflict with either, the by-law must give 
way.^ The charter, however, may expressly or by necessary im- 
plication exclude the general laws of the State on any particular 
subject, and allow the corporation to pass local lawa at discretion, 
which may differ from the rule in force elsewhere." Sot in these 
cases the control of the State is not excluded if the l^islature 

afterward see fit to exercise it ; nor will conferring a power 

[* 199] upon a * corporation to pass by-laws and impose penalties 

upon any speci&ed subject necessarily supersede tJie State 

' Angell uid Ames on Corpontiout, g 3SS ; Stu^eiant v. Mayor, &., of New 
Yoil, 7 Cow.fiSS; BrooklTU Central R&ilroad Co. o. Brooklyn Citj Railroad 
Co. 32 Barb. S68\ IlUiioii Conference Female College v. Cooper, 25 lU. 148. 
The last naa a caie where a by-law of an educational corporation was held Toid, 
aa violating the obligation of a contract previonstj entered into by the corport- 
^on in a certificate of icholarship irbich it had iiaued. See abo I^venport, &c. 
Co. p. Davenport, 13 Iowa, 229 ; Baring Society t>. Philadelphia, 81 Fenn. St. 
176 ; Haywood v. Saraiuuh, 12 Goo. 404. 

* Wood o. Brooklyn, 14Barb. 428^ Mayor, &c., of New Tork ti.Nkholi,4 
Bill, 209; Fetenburg p. McUker, 21 Ui. 205; Southport e. Ogdcn, 23 Conn. 
128 ; Carr t>. Bt. Louia, 9 Mo. 191 { Commonwealth d, Erie and Northeast Rail* 
road Co. 27 PenD. St. 889 ; Burlington c. Sellar, 18 Iowa, 59 ; Conwell v. O'Brien, 
11 Ind. 419. See Baldwin r. Green, 10 Mo. 410 ; Cowen c. West Troy, 43 
Barb. 48 ; State r. Georgia Medical Society, 38 Geo. 629 ; Penerfield r. Tickers, 
3 Cold. 206. 

* State V. Clarke, 1 Dutch. 64. Peculiar and exceptional regnlationa may 
even be made applicable to particular portiona of a dty only, and yet not be 
invalid. Goddard, Petitioner, 16 Pick. 604; Conunonwealth v. Patch, 97 UaM. 
222, per Soar. J. ; St. Louia v. Weber, 44 Mo. 547. 

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CH. Vni.] THB GRADES OF MDNICTPAL OOVIKNMENT. • 199 

law OQ the same subject, but the State law and the by-law may 
both stand together if not inconsistent.* Indeed, the same act 
may constitute an o&bnoe both against the State and the municipal 
corporation, and both may punish it without violation of any 
constitutional [oinciple.^ 

> Ci^ of St. Lonu V. B«nti, 11 Uo. 61 ; C'Oj of St. LonU tr. CaS^rata, 24 
Ho. 97 ; Bogen e. Jone*, 1 Wend. 261 ; Lev; o. State, 6 lud. 381 ; Mayor, &c, 
of Mobile p. Allaire, 14 Ala. 40U. 

* Such it tlie clear weight of aathorit;', though the deoBioDS are not tmifomi. 
In Bogera o. Jonea, 1 Wend. 261, it ii laid : " But it is Bud that the by-law of a 
towD or coiporatioa ii void, if the legislature have regulated the subject by law. 
IT the l^ilature have pasted a law regulating u to certain things in a city, I 
apprehend ibe corporation are not thereby restricted .from making further rega- 
lations. Cues of this kind have' occurred and nerer been questioned on that 
gronad ; it is only to notice a case or two ont of many. The legislature hare 
imposed a penalty of one dollar for servile labor on Sunday ; the corporation of 
New Yori: have passed a by-law imposing the penalty of five dollanfbr tbe same 
offence. As to storing gunpowder in New York, the legislature and corporation 
have each imposed the same penalty. Suits to recover tbe penal^ Have been 
sustained under ^e corporation law. It is beUeyed that the ground has never 
been taken that there was a vonflict with tbe State law. One of those cases is 
reported in 12 Johns. 123. The question was open for discussiou, but not noticed." 
Id Mayor, &c., of Mobile v. Allaire, 14 Ala. 400, tbe validity of a mnnicipal by- 
law impofiog a fine of fifty dotlan, fbr an assault and battery committed within 
the dty, was brou^t in question. Collier, Cb. J., says, p. 403 : " Tbe object of 
tbe power conferred by the charter, and tbe purpose of the ordinance itself, was, 
not to punish for an offence against tbe criminal jastioe of tbe country, but to 
provide a mere pdiee reg\datiott, for the enforcement of good order and quiet 
within tbe limits of tbe corporation. So fkr as an offence has been committed 
agunst the public peace and morals, the corporate aatborities hare no power to 
inflict panishment, and we are not informed that they have attempted to arrogate 
it. It is altogether immaterial whether tbe State tribunal bas interfered and 
exercised its powers in bringing tbe defendant before it to answer for tbe assault 
and battery ; for whether he has (here been panished or acquitted is alike unim- 
portant. The offence against the corporation and tbe State we have seen are 
distingoishable and wholly disconnected, and the prosecution at tbe suit of eadb 
puMecdi apon a different hypothesis ; tbe one contemplates tbe observance of the 
peace and good order of the city; the othrr has a more enlarged object in view, 
the maintenance of the peace and dignity of the State." See also Mayor, &e., 
of MobQe tr. Bouse, 8 Ala. 515; Intendant,&c., of Greensboro o.Mollins, 13 Ala, 
S41 ; Mayor, &e., of New York p. Hyatt, 9 E. D. Smith, 166 ; Beople e. Stevens, 
19 Wend. 341 ; BlatcUey v. Moser, 16 Wend. 216 ; Lery v. State, 6 Ind. 281 ; 
Ambrose o. State, ib. 861; I^wrencebarg o. Waest, 16 Ind. 337; Amboy o. 
Sleeper, 31IU. 499 ; St. Loois p. Bents, 11 Mo. 61 ; St. Lotiis v. Cafferata, 24 
Mo. 91. On the other band, it was held in State e. Cowan, 29 Mo. 930, that 
where a mnnidpal corporation was aotboiiied to take cognizance of and panish 

[211] 



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* 200 coHBrmmoNAL lhutatioks. [ch. tih. 

[*200] * 8. Muuicipal by'JawB muBt also be reasonable. When- 
erer they appear not to be so, the court mast, as a matter 
of law, declare them void.' To render them reasonable, thej 
an act as an offence against its ordinancea which was abo an offence agaiuat the 
general laws of the State, and diia power wu ezerciaed and the partj puoiibed, 
he could not afterwards be proceeiiled sgainst under the State law. " The con- 
■titutioQ," Bay the coort, " forbids that a person shall be tmlee punished for the 
same offence. To hold that a party can be prosecuted for an act under the State 
laws, tSter he has been punished for the same act by the municipal corporation 
within whose limits the act was done, woald be to oTerthrow the power of the 
General Auembly to create corporations to aid in the management of the affairs 
of the State. For a power in the State to puniih, after a pntiisbment had been 
inflicted by the coiporate authorities, could only find a support in the aasumption 
that all the proceedings on the part of the corporation were null and roid. The 
circumstance that the municipal authorities have not ezcluiive jurisdiction over 
the acts which constitute offences within their limits does not affect the question. 
It is enongfa that their juriadiction is not excluded. If it exists, — although it 
may be concurrent, — if it is exercised, it is Talid and binding so long as it is a 
constitutional principle that no man may be punished twice for the same offence." 
This case seems to stand alone, though the case of Slaughter v. People, cited 
below, goes still further. Those which hold that the party may be punished under 
both the State and the municipal law are within the principle of Fox e. State, 5 
How. 410 ; Moora r. People, 14 How. 13. In Jefferson City v. Courtmire,9 Mo. 
692, it was held that authority to a municipal corporation to " regulate the police 
of the city," gave it no power to pass an ordinance for the punishment of indict- 
able offences. And in Blaughter v. People, 2 Dong. (Mich.) 334, it was held 
not competent to punish, under cily by-laws, an indictable offence. 

Where an act is expressly or by implication permitted by the State law, it can- 
not be forbidden by the corporation. Thus, the statutes of Kew York established 
certain regulations for the putting up and marking of pressed hay, and provided 
that such hay might be sold without deduction for tare, and by the weight as 
marked, or any other standard weight that shoidd be agreed upon. It was held 
that the city of New York had no power to prohibit under a penalty the sale of 
such hay without inspection ; this being obviously inconsistent with the statute 
which gave a ri^t to sell if its regulations were complied with. Mayor, &c., of 
New York e. Nichols, 4 Hill, S09. 

' 2 Kyd on Corporations, 107 ; Daries v. Morgan, 1 Cromp. & J. 587 ; Cham- 
berlain of London v. Compton, 7 D. & B. 697 ; Clark v. Le Cren, 9 ft. A C. &3 ; 
Gosling t>. Veley, 12 Q. B. 847 ; Dunham o, Rochester, C Cow. 462 ; Mayor, &c., 
of Memphis v. Winfield, S Humph. 707 ; Hayden v. Noyes, 5 Conn. 891 ; Ex 
parte Burnett, 80 Ala. 461 ; Craig v. Bonett, 82 Ala. 728 ; Austin c. Murray, 16 
Kck. 121; Godard, Petitioner, it. 604; Commonwealth v. Worcester, 8 Pick. 
462; Commonwealth V. Gas Co. 13Fenn. St. 818; State e. Jersey City, 6 Dutch. 
170 ; Gallatin if. Bradford, 1 Bibb, 209 ; Carew o. Western Union Telegraph Co. 
IS Mich. 526 ; St. Lonia v. Weber, 44 Mo. 650. But where the question of the 
reasonableness of a by-law depends upon evidence, and it relates to a subject 
widiin the jurisdiction of the corporation, the court will presume it to be reason- 
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CH. Tm.] - THE QBADES 0? BTmnClPAL QOTE&NHENT. * 200 

should tend in some degree to the accoiDplishmeDt of the 
objectB for which the corporatioQ * was created and its [* 201] 
powers conferred. A by-law, that persons chosen annu- 
al\y as stewards of the Society of Scriveners should furnish a 
dinner on election day to the freemen of the society, — the free- 
men not being the electors nor required to attend, and the ofSce 
of steward being for no other purpose bat that of giving the 
dinner, — was held not connected with the business of Uie cor- 
poration, and not tending to promote its objects, and therefore 
unreasonable and Toid.^ And where a statute permitted a mn- 
nicipal corporation to license the sale of intoxicating drinks and 
to charge a license fee therefor, a by-law requiring the payment 
of a license fee of one thousand dollars . was held void as not 
advancing the purpose of the law, but as being in its nature 
prohibitory.^ And if a corporation has power to prohibit the 
carrying on of dangerous occupations within its limits, a by-law 
which should permit one person to carry on such an occupation 
and prohibit another, who bad an equal right, from pursuing the 
same business ; or which should allow the business to be carried 
on in existing buildings, but prohibit the erection of others for it, 
would be unreasonable." Aud a right to license an employment 
does not imply a right to chai^ a license fee therefor with a view 
to revenue, unless such seems to be the manifest purpose of the 
power ; but the authority of the corporation will be limited to 
such a charge for the license as will cover the necessary expenses of 
issuing it, and the additional labor of officers and other expenses 
thereby imposed. A license is issued under the police power ; 
but the exaction of a license fee with a view to revenue would be' 
an exercise of the power of taxation ; and the charter must plainly 
show an intent to confer that power, or the municipal corporation 
cannot assume it.* 

able nntil the contru; ti ibown, ConunoDweftlth v. FaUb, 97 Uua, 221. And 
Me St. Loois ti. Weber, 44 Mo, 647. 

■ Socie^ of ScriTenen v. Brooking, 3 Q. B. 96. 

* ExparU Bnmett, 30 AU. 461 ; Craig e. Bnniett, 82 Ala. 728. 

* Majror, Ac., of Hudson e. Tliome, 7 Paige, 261. A power to prevent and 
regulate tbe canjing on afmaaaractureB dangerous in causing or promoting firei 
does not authorize an ordinance prohibiting the erection of wooden bnildmga 
within the ci^, or to limit the uze of buildings which indiTidnala shall be per- 
mitted to erect on their own premises. Ibid. 

* Bute V. Boberti. II Gill A J.JHK; Ma^io. Cincinnati, 1 Ohio, m. b. 268; 

[218] 



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* 202 CONBTITCTIONAL LIHITATIOHS. [CH. Tm. 

[* 202] A. by-law to be reosooable Blionld be certiun. If it afSxes 
a penalty for its violatioD, it would seem that such penalty 
should be a fixed and certain sum, and not left to the discretion 
of the officer or court which is to impose it on conricdon ; though 
a by-law imposing a penalty not exceeding a certain sum has been 
held not to be void for uncertainty.^ 

So a by-law to be reasonable should be in harmony with the 
general principles of the common law. If it is in general re- 
straint of trade, — like the by-law that do person shall exennse 
the art of painter in the city of London, not being free of the 
company of painters, — it will be void on this ground.^ So it 
has been held that a by-law of a bank, that all payments made 
or received by the bank must be examined at the time, and 
mistakes corrected before the dealer leaves, was unreasonable and 
invalid, and that a recovery might be had against the bank for 
an over-payment discovered afterwards, notwithstanding the by- 
law.' So a by-law of a town, which, under pretence of regulating 

Cincimiiti o. Btyion, U Ohio, 6Sfi ; Freeholders t. Barber, 2 Halrt. 64 ; Kip t>. 
Pateraon, 2 Dutch. 298 ; Bennett d. Borough or Birminghun, 31 . Feiin. St. 15 ; 
Commonwealth e. Stodder, 2 Caih. 662 ; Cbilvera t>. People, 11 Mich. 13 ; M^jor, 
Ac., of Mobile v. YuiUe, 3 A1&. 141 ; Johnaoo v. Pbikddpbia, 60 Peim. St. 161. 
Neverthden, the eonrta will not inquire verj doiely into the experiH ofa ficenM 
with a view to adjadge it a tax, where it does not ai^ear to be unreaBotiable in 
amount in view of it* purpose at a regulaUon. Ash e. People, 11 Uich. 317 ; 
Johnson D. PhiladelphiB, 60 Penn. St. 461. And in some cases it baa been held 
that license fees might he imposed under the police power with a new to operate 
a* a restriction npon the business or thing licensed. Carter d. Bow, 16 Wis. 299 ; 
Tenney c. Lenz, (6. 667. Bnt in such cases, where the right to impose audi 
license fees can he fairly deduced from the charter, it would perfaapi be safer and 
lest liable to lead to confusion and difficult/ to refer the corporate authority to 
the taxing power, rather than exclusivdy to the power of regulation. See Dun- 
ham e. Tmsteei of Bocbester, 6 Cow. 162, npon the extent of the police power. 
Fees which are imposed under the inspection laws of the Stai« are akin to license 
fees, and if exacted not for revenoe, but to meet the expenses of regulation, are 
to be referred to the police power. Cincinnati Gat Light Co. e. State, 18 Uhio, 
N. s. 213. I 

' Mayor, &c., of Hunteville t>. Phdps, 27 Ala. 66, oremiling Mayor, Ac., of 
Mobile e. Yuilte, 3 Aht. 141. And see Piper t>. Chappdl, 14 M. & W. 624. 

* Claims. LeCren, 9B. &C. 62; Chamberlain of London o. Compton, 7 D. 
& E. 697. But a by-law is not void, aa in restraint of trade, whidi requires 
loaves of bread baked for sale to be of specified weight and properly stamped, 
orwhidi requirei bakera to be licensed. Mayor, &c., of Mobile v. Tuille, 3 
Ala. 137. 

* Medianici and Fanners Bank v. Smith, 19 Johns. 116 ; Gallatin t. Brad- 

[214] 



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OH. Tm.] TSE OBA.DEB OP MITNICIPAL QOTEBNMENT. * 202 

the fishery of clams and oysters within its limits, prohibits all 
persons exoept the inhabitants of the town from taking shell-fish in 
a navigable river, is void as in contravention of common 
riglit.' "And for like reasons a by-law is void which ["SOS] 
abri^es the rights and privileges conferred by the general 
taws of the State, unless express authority therefor can be pointed 
out in the corporate charter.' And if it assumes to be a police 
regulation, bnt deprives a party of the use of his property without 
regard to the public good, under the pretence of the preservation 
of healtli, wlian it is manifest that such is not the object and 
purpose of the regulation, it will be set aside as a clear and 
direct infringement of the right of property witliout any com- 
pensating advantages.' 

ford, 1 Bibb, 209. Althoagh tbew kre cuei of privkta corporationi, tlie^ an 
dtod bere becaiue the mlet goTeming tlie ■uthorit}' to nuike bj-ltite axe the 
•Bute with both cUuea of corponttioiiH. 

' Hsfden v. Noyet, 6 Coqd. 39L A( it had been previoaBly held that eveij 
person haa a common-lair right to fish in a navigable river or ann of the aea, 
antil by voine legal mode of impropriation this common right wu extioguiabed, 
— Feck r, Lockwood, 5 Day, 22, — tha by-law in effect deprived every dljzen, 
except reiideota of the tAwnihip, of righti which were verted, eo far aa from the 
natute of the mm a right could be vested. That a right to rtgvlaU doea not 
inclade a right to prohibit, lee alio Ex parte Burnett, 30 Ala. 461 \ Austin ti. 
Hurray, 16 Rck. 121. And see Milhau t>. Shaip, 17 Barb. 43fi, 28 Barb. 228, 
andKN.T. 611. 

* Donham v. Tnuteea of Bocbeater, 6 Cow. 462 ; Mayor, &o., of New York 
p. Nidiola, 4 Hill, 209. 

* By a by-law of the town of Charleitown all peraona were prohibited, with- 
out license from the aelectmen, from burying any dead body brought into town 
on any part of their own premiaes of elsewhere within the town. By the 
coart, Wilde, J. : "A by-law to be valid must be reasonable ; it must be legi, 

fida, ratUmi etnuima. Kow if this regulation or prohibition had been limited 
to the populous part of the town, and were made in good faith for the purpose of 
preserving the health of the inhabitants, which may be in some degree exposed 
to danger by the allowance of interments in the midst of a dense popnlatlon, it 
would have been a very reasonable regulation. But it cannot be pretended that 
this by-law was made for the preservation of the health of the inhabitants. Its 
restraints extend many miles into the country, to the utmost limits of the town. 
How audi an annecessaiy restraint apon the right of interring the dead we think 
eaaentiaUy onreasonable. If Charlestown may lawfully make such a by-law as 
this, aU the towns adjoining Boston may impose similar restraints, and couse- 
quently all those who die in Boston must of necessity be interred within the 
predncts of the dty. That this would be prejudicial to the health of the inhab- 
itants, espedally in the hot seasons of the year, and when epidemic diseases 

[216] 



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CONSTITDTIONAL UMITATIOHS. [CH. Tin. 



[•204] * Delegation of Municipal Potoen. 

Another and very important limitation which rests upon muni- 
cipal powers is, that they shall be executed by the municipality 

pnvail, seems to be & well-established opinion. IntenuenU, therefore, in ci^es 
and large populous towns, ought to be discountenanced, and no obstacles should 
be permitted to the establishnietit of cemeteries at suitable places in tho vicinity. 
The by-law in question is therefore an unreasouablc restraint upon many of the 
citizens of Boston, who are desirous of burying their dead without the city, and 
lor that reason roid. And this by-law would seem to be void for another reason. 
A by-law for the total restraint of one's right is void ; as if a man be barred of 
the use of his land. Com. Dig. By-Law, C. 4. The land where the bodies 
were interred wa« the land of the Catholic Bishop of Boston, pnrcbased by faim 
in 1830, and then consecrated as a Catholic burying-ground, and has ever since 
been used as such, for the interment of Catholics dying in ChvleaCown and 
Boston. It is true tho by-law does not operate to the total restraint or depriva- 
tion of the bishop's right, but it is a total restraint of the right of the burying 
the dead in Boston, for wluch a part of the burying-ground was appropriated. 
The illegality of the by-law is the same, whether it may deprive one of the ose 
of a part or the whole of his property ; no one can be so deprived, unless the 
public good requires it. And the law will not allow the right of private property 
to be invaded under the guise of a police regulation for the preservation of 
health, when it is manifest that snch is not the object and purpose of the regula- 
tion. Now we think this is manifest from the case stated in regard to the by-law 
in question. It is a clear and direct infringement of the right of property, 
without any compenaatiog advantages, and not a police regulation made in good 
faith for the preservation of health. It interdicts, or in its operation necessarily 
intercepts, the sacred use to which the Catholic burying-ground was appropriated 
and consecrated, according to the forms of the Catholic religion ; and such an 
interference, we are constrained to say, is wholly unauthorized and most unreason- 
able." Austin e. Murray, 16 Rck. 125. So in Wreford v. People, 14 Mich. 41, 
the common count^il oF Detroit, under a power grnnted by statute to compel the 
owners and occupants of slaughter-bouses to cleanse and abate them whenever 
□ecesaary for the health of the inhabitants, assumed to pass an ordinance alto- 
gether prohibiting the slaughtering of animals within certain limits in the dty; 
and it was held void. See further. State t>. Jersey City, 5 Dutch. 170. Upon 
the whole subject of municipal by-laws, see Angcll and Ames on Corp. c. 10; 
■ Grant on Corp. 76 tt uq. See also Redfield on Railways {3d ed.). Vol. I. p. 88. 
The subject of the reasonableness of by-laws was considered at some length 
inPeopIeo. Medical Society of Erie, 21 Barb, 570, and Same v. Same, S2N. Y. 
187. In the first case, it was held that a regulation subjecting a member of the 
County Medical Society to expulsion, for charging leas than the established fees, 
was unreasonable and void. In the 8e(»nd, it was decided that where a party 
had the prescribed qualifications for admission to the society, he could not be 
refused admission, on the ground of bis having previous to that time biled to 
[216] 



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CH. Tin.] THE GRADES OF MUNICIPAL GOTEKNHENT. * 204 

itself, or hj such agencies or officers as the statute has pointed 
oat. So far oa its functions are legislative, they rest ia the dis- 
cretion and judgment of the municipal body intrusted with thorn, 
and that body cannot refer the exerciee of the power to the dis- 
cretiou and judgment of its subordinates or of any other author- 
ity. So strictly is this rule applied, that when a city charter 
authorized the common council of the city to make by-Uws and 
ordinances ordering and directing any of the streets to be pitched, 
levelled, paved, flagged, £c., or for the altering or repair- 
ing tJie * same, " within such time and in such manner as [* 205} 
they may prescribe under the superintendence and direction 
of the city superintendent," and the common council passed an 
ordinance directing a certain street to be pitched, levelled, and 
flagged, " in such manner as the city superintendent, under the 
direction of the committee on roads of the common council, shall 
direct and require," the ordinance was held void, because it lefl; 
to the city superintendent and the committee of the common 
council the decision which, under the law, must be made by the 
council itself. The trust was an important and delicate one, as 
the expenses of the improvement were, by the statute, to be paid 
by the owners of the property in front of which it was made. It 
was in eS^ect a power of taxation, which is the exercise of sover- 
eign authority ; and nothing short of the most positive and explicit 
language could justify the court in holding that the legislature 
intended to confer such a power oo a city oflicer or committee. 
The statute iu question not only contained no such language, 
but, on the contrary, clearly expressed the iutention of conflding 
the exercise of this power to the common council, the membei-s 
of which were elected by and responsible to those whose property 
they were thus allowed to tax.* 

This restriction, it will be perceived, is the same which rests 
upon the I^islative power of the State, and it springs from the 

obMTTe the code of medical ethics prescribed hy the aocict; Tor its membera. 
Municipal bf-lawrmaj impose penaltiea on parties guilty of a violation thereof,- 
but they cannot impoie forfNture of propertj' or rights, without express legis- 
lative anllioritjr. Sute v. Fergnsoa, 33 N. II. 430; Phillips v. Allen, 41 Fenn. 
St. 481. See also Kirk v. IToireU, 1 T. K. 124; Hart p. Albany, 9 Wend. 
£68. 

' TbompsOD V. Schermerhom, 6 N. T. 92. See also Smith o. Morse, 2 Gal. 
624; OaklMid v. Carpentier, 13 Cal. 640; Whjte v. Nashville, 2 Swan, 864; 
East St. Louis v. Wehnuig, 60 111. 28. 

[217] 



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• 205 COKsnrunOHAL UMlTATIONa. [CH. Tin. 

aatne reasouB. The people in the one case in creating the legis- 
lative department, and the legislature in the other in conferring 
the corporate powers, have selected the depository of the power 
which they have designed should he exercised, and in confiding it 
to snch depository liare impliedly prohibited its being exercised 
by any other agency. A trust created for any public purpose 

cannot be assignable at the will of the trustee.' 
[* 206] * Eqaally incumbent upon the State legislature and these 

municipal bodies is the restriction that they shall adopt no 
irrepealable le^slation. No legislative body can so part with its 
powers by any proceeding as not to be able to continue the 
exercise of them. It can and should exercise them again and 
again, as often as the public interests require.^ Such a body has 
no power, even by contract, to control and embarrass its legislative 
powers and duties. Ou this ground it has been held, that a grant 
of land by a municipal corporation, for the purposes of a cemetery, 

' The charter of Wtehington gave tlie corporatioD autboritj " to aothoriie 
the drawing of lotteries, for effecting any important improTement in the citj. 
iThir:h the ordinary funds or revenue thereof will not accomplish ; provided that 
the amount raised in each year sbaU not exceed ten thousand dollars. And 
provided also tiiMt the object for which the money is intended to be raised shall 
be first submitted to the President of the United States, and shall be approved 
by him.'' Per Marihati, Ch. J., speaking of this aulhorityr " There is great 
weight in the argument that it is a trust, and an important troat, confided to 
the corporation itaclf, for the purpose of effecting important improvements in the 
<atj, and ought, therefore, to be executed under the immediate aathority and 
inspection of llie corporation. It is reasonable to suppose that Congress, when 
granting a power to authorize gaming, would feel some soUdtode respecting the 
fairness with which the power should be used, and would take as many precau- 
tions against its abuse as was compatible wilh its beneficial exercise. Accordingly, 
we find a limitation upon the amount to be raised, and on the object for which 
the lottery may be authorized. It is.to be for any important improvement in the 
eity, which the ordinary funds or revenue thereof will not accomplish ; and it is 
subjected to the judgment of the President of the United States. The power 
thus cautiously granted is deposited with the corporation itself, without an indi- 
cation tiut it is assignable. It is to be exercised like other corporate powers, 
by the agents of the corporation under iu control. While it remains where 
Congress has placed it, the character of the corporation affords some securi^ 
against its abuse, — some security that no oiher mischief will result from it 
than is inseparable from the thing itself. But if the management, control, and 
responsibility may be transferred to any adventurer who will purchase, all the 
secnrity for fairness which is furnished by character and responsibility is lost." 
Clark p. Washington, 13 Wheat 64. 

' East Hartford r. Hartford Bridge Co. 10 How. 535. 
[218] 



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CB. Tin.] THG QBADBS 0? HtTHIOIPAL aOTEBIIHENT. * 206 

with a covenant for quiet enjoTtnent by the grantee, could not 
preclude the corporation, in the exercise of- its police powers, 
from prohibitiag any fdrUier use of the land for cemeteiy parpoaes, 
when the advance of population threatened to make each use a 
pablic nuisance.^ So when " a lot is granted as a place of deposit 
for gunpowder, or other purpose innocent in itself at the time ; 
it is devoted to that purpose till, in the prepress of population, it 
becomes dangerous to the property, the safety, or the lives of 
hundreds ; it cannot be that the mere form of the grant, because 
the parties choose to make it particular instead of general and 
absolute, should prevent the use to which it is limited being 
regarded and treated as a nuisance, when it becomes so in fact, 
la this way the legislative powers essential to the comfort and 
preservation of populous communities might be fnttered 
away into * perfect insignificance. To idlow rights thus [* 207] 
to be parcelled out and secured beyond control would fix 
h principle by which our cities and villages might be broken up. 
Nuisances might and undoubtedly would be multiplied to an 
intolerable extant." ' 

And on the same ground it is held, that a municipal corporation, 
having poi(er to establish, make, grade, and improve streets, 
does not, by once establishing the grade, preclude itself from 
changing it as the public needs or interest may seem to require, 
notwithstanding the incidental injury which must result to tliose 
individuals who have erected buildings with reference to the 
first grade." So a corporation having power under the charter to 
establish and regulate streets cannot under this authority, without 
explicit legislative consent, permit individuals to lay down a 

' Brick Preabyterian Chordi r. aiy of New York, fi Cow. MO ; New Toti 
v. Se«oiidAveniieR.B. Co. 82N.T. 261. 
. ' Coata D. Mayor, &c., oTNew York, 7 Cow. 605. See alio Davii v. Mayor, 
*«., of New York, 14 N. Y. 606 ; Attorney-General o. Mayor, &c., of New 
Yco-k. S Duer, 119; State v. Gntvei, 19 Md. 61; Gonle v. Georgetown, 6 
Wbeat 597. 

* Callender v. Manh, 1 Pick. 417 ; O'Connor r. Pitttbnrg, 18 Penn. St. 187 ; 
Smith r. Waihiogton, SO How. 135 ; Skinner u. HartTord Bridge Co. 29 Coau. 
623 ; GraveB t>. Otia, 2 Hill, 466 ; La Fayetta p. Bnih, 19 Ind. 926 ; Creal cr. 
Keokok, 4 Green (Iowa), 47 ; KoberU e. Chicago, 26 111. 249. And ice pott, 
ch. 15. A dij ie not liable for consequential injnriea in the repair of atreeta or 
die conitrnction of diaini, aewen, &a., where no negligence is chat^able. Vin- 
cennei v. Ricbardi, 23 Ind. 381 ; Alexander e. Milwaukee, 16 Wis. 247. 

[219] 



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• 207 C0N8TmJTI0NAL LIMIIATIONS. [CH. Tm. 

railway in one of its streets, aud confer privil^s exclusive in 
tlieir cliaracter and designed to be perpetual in duration, la 
a case where this was attempted, it has been said by the court : 
" The corporation has the exclusire right to control and regulate 
the nse of the streets of the city. In this respect, it is endowed 
with legislative sovereignty. The exercise of that sovereignty 
has no limit, so long as it is within the objects and trusts for 
which the power is conferred. An ordinance regulating a street 
is a legislative act, entirely beyond the control of the jadicial 
power of the State. But the resolution in question is not such 
an act. Tliough it relates to a street, and very materially afiects 
the mode in wliich that street is to be used, yet in its essential 
features it is a contract. Privileges exclusive in their nature 
and designed to he perpetual in their duration are conferred. 
Instead of regulating the use of the street, the use itself to the 
extent specified in the resolution is granted to the associates. 
For what has been deemed an adequate consideration, the corpo- 
ration has assumed to surrender a portion of their municipal 
authority, and has in legal effect t^reed with the defendants that, 
so far as they may have occasion to use the street for the purpose 
of coDstructiDg and operating their rulroad,*tlie ri^t to 
[* 208] regulate * and control the use of that street shalt not be 
exercised. ... It cannot be that powers vested in the 
corporation as an important public trust can thus be frittered 
away, or parcelled out to individuals or joint-stock associations, 
and secured to them beyond control." ^ 

So it has been held, that the city of Philadelphia exercised a 
portion of tlie public right of emineut domain in respect to the 
streets within its limits, subject only to the higher control of the 
State and the use of the people ; and tlierefore a written license 
granted by the city, though npon a valuable consideration, author- 

> Milbau e. Shaip, 17 Bub. 435; S&mc cue, 38 Barb. 228, and 27K. T. 611. 
S«e also DariB t>. Mayor, Ac., of New York, 14N.T.506; State n. Mayor, &c., 
3 Ihier, 119; Stat« e. Graves, IS Md. S51. The consent of the legutatnre in 
any such caae woald relieve it of all difficulty, except so far as qaeslions might 
arise concerning the right of individuals to compcnsatiou, as to which see pott, 
ch. 15. In the case of Milhau v. Shaqi, above cited, it was also held that, nnder 
authority " Irom time to time to regulate the rates of fare to be charged for the 
carriage of personB," the corporation could not pass a resolution that, in respect 
to the carriages employed on a street-raUway therein aathoriied to be conatmcted. 
that power should never be exercised. 
[220] 



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CH. Tin.] THE QBADE3 OF MUNICIFAL OOVEBNMENT, * 208 

izing the holder to connect his property with the city railway by a 
turoout and track, was not Buch a contract aa would prevent the 
city from abandoning or removing the railway wherever, in 
the opinion of the city authorities, such action would tend to 
tlie benefit of its police.' 

Thua hedged in by the limitations which control the' legislative 
power of the State, these corporations are also entitled to the same 
protection wbicli surrounds the exercise of State legislative power. 
One of these is that no right of action shall arise in favor of an 
individual for incidental injury suffered by him in consequence of 
their adopting or failing to adopt legislative action.^ Another is 
that the same presumption tliat they have proceeded upon sufficient 
ioformation aud with correct motives shall support their legislative 
action which supports the statutes of the State, and precludes 
judicial inquiry on these points.^ These rules, however, 
must be confined to those cases where the corporation * is [* 209] 
exercising a discretionary power, and where the reasons 
which are to determine whether it shall act or not, and if it does, 
what the acUou shall be, are addressed to the mnnicipat body 
exclusively. 

Among the implied powers of such an oi^uizatioa appears to be 
the power to defend and indemnify its officers where they have 
incurred liability in the b<ynafide discharge of their duty. It has 
been held that, where irregularities occurred in the assessment of 
taxes, in consequence of which the tax was void, and the asseesors 
refunded to the persons taxed the moneys which had been collected 
and paid into tlie town, county, and State treasuries, tlie town had 
authority to vote to ruse a aum of money to refund to the assessors 
what had been so paid by them, and that sucli vote was a legal 
promise to pay, on which the assessors might maintain action 
agunat the town. "The general purpose of this vote was just 
and wise. The itihabitanta, finding that three of their townsmea 

' BrjKHi V. Hiilidelphia, 47 Fenn. St 329. 

' Bjwicliffe'a Eit'ra r. Mayor, &o., ofBrooklyn, 4 N. T. 195; Duke p. Mayor, 
Ac. of Rome, 20 Geo. 665; Larkin o. Sagin&w County, 11 Mich. 68; St.Louit 
«. Gnrao, 12 Mo. 414; Griffin t>. Mayor, &c. of New York. 9N.T. 466; B«n- 
ikU r. New Orleini, 14 U. An. 120 ; Weiglitman v. Waahington, 1 Black, 39 ; 
Weateni College e. Cleveland, 12 Ohio, w. B. 37£ ; Barton v. Syracuse, 37 Barb. 
292; ComniisaioDera o. Duckett, 20 Md. 468. 

■ Milhau D. Sharp, 15 Barb. 193 ; New York and Haricm Railroad Co. c 
Mayor, Ac., of New York, 1 HntOD, 662. 

[221] 



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*209 CONSTITUTIONAL LIMITATIONS. [CH. Till, 

who had been elected by tliemselves to an ofi^, which they could 
not, without incurring a penalty, refuse to accept, had innocently 
and inadvertently committed an error which in strictneBB of law 
annulled their proceedings, and exposed them to a, loss perhaps to 
the vbole extent of their property, if all the inhabitants individu- 
ally shoald' avail themselves of their strict legal rights, — finding 
also that the treasury of the town bad been supplied by the very 
money which these unfortunate individuals were obliged to refund 
from their own estates, and that, so far as the town tax went, the 
very persons who bad rigorously exacted it from the assessors, or 
who were about to do it, had tbemselves shared in due proportion 
the benefits and use of the money which had been paid into the 
treasury, in the shape of schools, highways, and various other 
objects which the necessities of a municipal institution call for, — 
concluded to re-assess the tax, and to provide for its assessment in 
a manner which would have produced perfect justice to every 
individual of tiie corporation, and would have protected the 
assessors from the eCEects of their inadvertence in the assessment 
which was found to be invalid. The inhabitants of the town had a 
perfect ri^ht to make this re-assessment, if they had a right to raise 
the money originally. The necessary supplies to the treasury of a 
town cannot i>e intercepted, because of an inequality in the mode 
of apportioning the sum upon the individuals. Debts must be 

incurred, dutiea must be performed, by every town; 
[* 210] * the safely of each individual depends upon the execution 

of the corporate duties and trusts. There is and must be 
an inherent power in every town to bring the money necessary for 
the purposes of its creation into the treasury ; and if its coarse is 
obstructed by the ignorance or mistakes of its agents, they may 
proceed to enforce tlie end and object by correcting the means ; and 
whether this be done by resorting to tiieir original power of voting 
to raise money a second time for the same purposes, or by direct- 
ing to re-assess the sum before raised by vote, is immaterial; 
perhaps the latter mode is best, at least it is equally good." ^ 

It has also been held competent for a town to appropriate money 
to indemnify the school committee for expenses incurred in defend- 
ing an action for an allied libel contained in a report made by 
them in good faith, and in which action judgment had been 

> Fer Parker, Cb. J., in NeboD v. Milfoil, 7 E^ck. 23. 
[222] 



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CH. TIU.3 TBE G&ADBS OF UDNICIPAL OOTEBNMENT. * 210 

reQdered ia tlieir favor.^ And although it should appear that the 
officer had exceeded his legal right and authority, jet if he lias 
acted in good faith in an attempt to perform duty, the town has 
the right to adopt his act and to bind itself to iudemuify 
him.^ * And perhaps tlie legislature may even have power [* 211] 
to compel the town, in each a case, to reimburse its 
officers the expenses incurred by them in the honest but mistaken 
discharge of what they believed to be their duty, notwithstanding 
the town, by rote, has refused to do ao.^ 

Construction of Municipal Powers, 

The powers conferred upon municipalities must be construed 
with reference to the object of their creation, namely, as agencies 

' Fuller p. Inhabitant* of Groton, 11 Gnj, S40. See also Hadaell v. Inhatn- 
taota of Hancock, 8 Gray, 626. 

* A ■orveyor of highiriys cut a drain for llie purpoaa of railing a legal quea- 
tion aa to tbe bonnda of tiie highway, and the town appointed a committee to 
defend an action bronght against the surveyor theTefor, and voted to defray the 
upenies incurred bj Ihe committee. Bj the court: " It ia the djty of a town 
to repair all hlghwaya within its bounds, at tbe expense of the inhabitants, so that 
tbe aame may be safe and conTcnient for travellers ; and we think it has the 
power, a« incident to this duty, to indemnify lbs surveyor or other agent against 
any charge or liability he may incur in the bona fide discharge of this duty, 
altbongh it may turn out on investigation that he mistook hii legal rights and 
authority. The act by which the sun-eyor iucurred a liability was the digging a 
diuix, as a drain for the security of the highway ; and if it was done for tbe pur- 
poae of railing a legal question as to the bounds of the highway, as tbe defend' 
ants offered to prove at the trial, the town had, nevertheleai, a right to adopt 
the act, for tbey were interested in the snbject, being bound to keep the bj^way 
in repur. Tbey bad, therefore, a right to determine whether tbey would dcfi'nd* 
the lurveyor or not; and having determined the question, and appointed the 
plaintifii a committee to carry on the defence, tbey cannot now be allowed to 
deny their liability, after the committee have paid the charges incurred under 
tbe antbority of the town. The town bad a right to act on the subject-matter 
which waa within their jurisdiction ; and their Totes are binding and create a 
I^al obligation, although tbey were under no previous obligation to indemnify 
tbe anrveyoT. That towns have an authority to defend and indemnify their 
agenta who may incur a liability by an inadvertent error, oi in the performance 
of tbur duties imposed on them bylaw, is fully maintained by the case of Nelson 
«. HiUbrd, 7 Kck. 18." Bancroft e. Lytinfield, 18 Pick. 666. 

' Guilford V. Superriiors of Chenango, 13 N. Y. 143. But where officen 
make tbemaelves liable to penalties for refusal to perform duty, the corporation 
baa no antbority to indemnify tbem. Halstead t. Mayor, &c., of New Tork, 8 
N. Y. 430 ; Merrill g. Flaiufield, 4fi N. H. 126. See Froit e. Belmont, 6 Allen, 
US. 

[228] 



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• 211 CONSnTDTIONAL LlMlTAnONS. [CH. Vm. 

of the Stata iu local goTernment.' The State can create, them for 
no otlier purpose, and it can confer povere of government to no 
other etid, without at once coming in conflict with the conetitution- 
al maxim, that legislative power cannot be delegated, or with other 
maxima designed to confine all the ageucies of government to the 
exercise of their proper functions. And wherever the miinicipolity 
shall attempt to exercise powers not witliiu the proper province of 
local self-government, whether the right to do so be claimed under 
express legislative grant, or by implication from the charter, the 
act must be considered as altogether ultra vires. 

A reference to a few of tlie adjudged cases will perhaps best 
illustrate this principle. The common council of tha city of 
Buffalo undertook to provide an entertainment and ball for its 
citizens and certain expected guests on the 4th of July, and for 
that purpose entered into contract with a hotel keeper to provide 
the entertainment at bis house, at the expense of the city. The 
entertainment was furnished and in part paid for, and suit was 
brought to recover the balance due. The city had authority, under 
its charter, to raise and expend moneys for various specified pur- 

' A >oniewh«t peculiar qnes^on was involved in tbe case of Jonea v, Riub- 
mond, 16 Gnt. 617. In antii'ipation of the evacuation of the city of RtchmoDd 
hy the Confedente autborilies, and oodt^r the apprehension that icenes of disorder 
might follow, which would be ftsgravated by the opportunity to obtain intoxicating 
liquors, the common eouni-il ordered the seizare and disstniction of all such liquors 
Tiihin the citj, and pledged the fuitb of ihe i-iiy to the pay meat of the value. 
The Court of Appeals of Virginia afterwards decided that the city might be held 
liable on the pledge in an attion of assumpsit. Riva, J., says : *' Uy its char- 
ter the council is specially empowered to ' pass all by-laws, rules, and reguJa- 
tions which they shall deem neuessary for the peace, comfort, convenience, good 
order, good morals, health, or safely of siid city, or of the people or property 
therein.' It is hard to conceive of larger terms for the grant of sovereign leg- 
islative powers 10 the speciRed end than those thus employed in the charter ; and 
they must be taken by necessary and unavoidable intendment to comprise the 
powers of eminent domain within these limits of prescribed jurisdiction. There 
were two modes open to the council : Grst, to direct the destmclion of these 
stores, leaving the question of the city's liability therefor to be afterwards liti- 
gated and determined ; or, secondly, assuming their liability, to contract for the 
values destroyed under their orders. Had they pursued the first mode, the corpo- 
ration would have been liable in an action of trespass for the damages ; but tbnj 
thought proper to adopt tbe latter mode, make it a matter of contract, and ap- 
proach theu- citizens, not as trespassers, but with tbe atnicable proffer of a formal 
receipt and the plif;hted faith of ihe city for the payment. In thii they seem (o 
me to be well justified." 
[224] 



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CH. Tin.] TBE GBADE3 OF MDNICIPAL G0TER5MBNT. * 211 

posea, and also " to defraj the contingent and other expenses of the 
city." But providing an entertainmeut for its citizens is no 
part of municipal self-government, and it liaa never been 
considered, "where the common law has provwled, tliat [*212] 
the power to do so pertained to the government in any of 
its departments. The contract was therefore held void, as not 
within the province df the city govenimeot.' 

The supervisors of the city of New York refiised to perform a 
duty imposed upon them by law, aud were prosecuted severally 
for the penalty which the law imposed for such refusal, and judg- 
ment recovered. The board of supervisors then assumed, on 
behalf of tlie city and county, the payment of these Judgments, 
tc^tlier with tlie costs of defending the suits, and caused dral'ts 
to be drawn upon the treasurer of the city for these amounts. 
It w:a8 held, that these drafts upon the public treasury to indem- 
nify officers for disregard of duty were altogether unwarranted 
and void, and that it made no difference that the officers had 
acted conscientiously in refusing to perform their duty, and in 
the honest belief that the law imposing the duty was unconstitu- 
tional. Tlie city had no interest in the suits against the super- 
visors, and appropriating the public funds to satisfy the judgments 
and costs was not within either tlie express or implied powers 
conferred upon the hoard. ^ It was in fact appropriating the pub- 

' Hodges B. BufTftlo. 2 Di;nio, 110. See also the case of New London e. 
Brainard, 22 Conn. 662, which followa and Approves tbia case. Tbe riaea dilTiT 
in tbia only, tbftt in tlie first suit was brought to enforce the Illegal t-otitrai-t, 
while in the second rhe titv was enjoined from paying over moneys which it had 
appropriated for the purposes of the celebration. The cases of Tssh n. Adamsi, 
10 Curii. 252, and Hood v. Lynn, 1 Allen, 103, are to the same efiTei't. A town 
cannot lawfully be asscBsed to pay a reward offered by a vote of the town for the 
apprebension and conviction of a person supposed to have committed murder 
therein. Gale v. South Berwick, 61 Me. 171. Nor under ita general authority 
to raise money for ■' ne'-essary town charges," is a town authorized to raise and 
expend moneys to Fend lobbyists to the legislature. Frankfort v. Winterpurt, 
64 Me. 2sO. Where a municipal corporation enters into a contract ultra vira, 
no implied contract arises to compensate the controi.'tor for any thing he may have 
done under it, notwithstanding the corporation may have reaped a benefit there- 
from. McSpcdon p. New York, 7 Bosw. 601 ; Zottman c. San Francisco, 20 
Cal. 96. 

■ HalatcMd t>. Mayor, &c., of New York, 3 N. Y. 430. See a similar case in 
People e. Lawrence. 6 HiU, 2U. See also Can«U v. St. Louis, 12 Mo. 444; 
Vincent o. Nantucket, 12 Cush. 103 ; Parsons v. Goshen, 11 Pick. 396. 
16 [ 225 ] 



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•212 CONSTITDTIOKAL LIMITATIONS. [CH. vm. 

lie money for private purposes, and a tax levied therefor mast 
consequently be invalid, on general principles controlling the right 
of taxation, which will be considered in another place. In a recent 
case in Iowa it is said: "No inntance occurs to us in which it 
would be competent for [a municipal corporation] to loan its 
credit or make its accommodation paper for the benefit of citizens 
to enable them to execute private enterprises";* and where it 
cannot loan its credit to private undertakings, it is equally 
[* 21S] without * power to appropriate the moneys in its treasury, 
or by the conduct of its officers to subject itself to implied 
obligations.' 

The powers conferred upon the municipal governments must 
also be construed as confined in their exercise to the territorial 
limits embraced within the municipality ; and the fact that those 
powers are conferred in general terms will not warrant their exer- 
cise except within those limits. A general power " to purchase, 
hold, and convey estate, real and personal, for the public use " of 
the corporation, will not authorize a purchase outside the corpo- 
rate limits for that purpose.^ Without some special provision they 
cannot, as of course, possess any control or rights over lands lying 
outside ;* and the taxes they levy of their own authority, and tlie 
moneys they expend, must be for local purposes only.' 

' CUrk V. Des Moinea, 19 Iowa, S21. 

* "In determiniag whether the aubject-matterie within Uie legitimate authority 
of the tavn, one or the tests is to ascertain whether the expenses were incurred 
in relation to a subject specialljr placed by law in other hands. ... It is a 
dedaive teBt against the validitj of all granti of money by towns for objects 
liable to that objeetion, but it does not settle queatioDS arising upon expenditures 
for objects not spec'ially provided for. In such cases the question will still recur, 
whether the expenditure was wiihia the jurisdiction of tbe town. It may be 
safely assumed that, if the subject of tbe expenditure be in funheraoce of some 
duty enjoined by statute, or in exoneration of the citizens of the town from a 
liability to a common burden, a contract made in reference to it will be valid and 
binding upon the town." Allen o. Taunton. 19 Kck. 487. See Tucker v. Vir^ 
ginia City, 4 Ner. 20. 

* Kley p. Rochester, 9 N. Y. 64. 

< Fer Kent, Chancellor, Denton r. Jackson, S Johns. Ch. 336. And see Bul- 
lock V. Curry, 2 Met. (Ky.) 171 ; Weaver 0. Cherry, 8 Ohio, N. 8. 664 ; North 
Hempstead p. Hempstead, Hopk. 294 ; Concord r. Boicawen, 17 K. H. 465. 

* In FaTSons «. Goshen, 11 Pick. 396, the action of a town appropriating 
money in aid of tha construction of a county road, was held void and no protec- 
tion to the officers who had expended it. See aUo Concord v. Boscawen, 17 
N. H. 466. 

[226] 



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CH. Vm.] THE OBADES OF UUNICIPAL GOTERNUENT. * ^13 

But it is ODother question how far the legislature of the State 
ma; authorize the corpotation to extend its action to objects out- 
«de ihe city limits, and to engine in enterprises of a public 
nature irhicb ma; benefit the citizens of the municipality in 
common with the people of the State at large, and also in some 
special and peculiar manner, but which nevertheless are not under 
the control of the corporation, and are so far aside from the ordi- 
nary purposes of local goTcr'nments that assistance by the munici- 
pality in such enterprises would not be warranted under any 
general grant of power for municipal government. For a few years 
past the sessions of the legislative bodies of the several 
States have been prolific in a " species of legislation which [* 214] 
has flooded the country with municipal securities issued 
in aid of works of public improvement, to be owned, controlled, 
and operated by private parties, or by corporations created for the 
purpose ; the works themselves being designed for the conveuienoe 
of the people of the Stat« at lai^, but being nevertheless supposed 
to be specially beneflcial to certain localities because running near 
or through them, and therefore justifying, it is supposed, the impo- 
sition of a special Imrden by taxation upon such localities to aid in 
their construction.^ We haVe elsewhere^ collected the cases in 
which it has been held that the legislature may constitutionally 
authorize cities, townships, and counties to subscribe to the stock 
of railroad companies, or to loan their credit to these enterprises, 
and to tax their citizens to pay these subscriptions, or the bonds or 
other securities issued, where a peculiar benefit to the municipality 
was anticipated from the improvement. The rulings in those cases, 
if sound, must rest upon the same right which allows such muni- 
cipalities to impose burdeus upon their citizens to construct local 
streets or roads, and they can only be defended on the ground that 
*' the object to be accomplished is so obviously connected with the 
[municipality] and its interests as to conduce obviously and in a 
special manner to their prosperity and advancement." ^ But there 
are authorities which deny their soundness. 

■ Id Merrick tt. lobabituiU of Amherst, 13 Allen, 600, it wM held competent 
for tbe legiilature to anthorize a town to raiie moaej hy taxation for a State 
igricnltnral college, to be located therein. Hie caje, however, we think, stands 
on different reatooa from those where aid hat been voted bj munictpalitiea to 
public iroproTementa. 

■ Ante, p. 119. 

■ Talbot o. Dent, 9 B. Monr. 626. See Haabronck 0. Uilwaakee, 13 Wit. 

r 227 ] 



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* 215 COHSnTDTIONAL UHITATIOKS. [OH. TUI. 

{* 215] * ABsaming that taty such subscriptions or securities 
maj be aathorized, the first requisite to their validity 
would seem, then, to be a special legialatiTe authorit; to make or 
issue them ; an authority which does not reside iu the general 
words in which the powers of local self-goTemment are usually 
conferred,^ and one also wliich must be carefully followed by the 
municipality in all essential particulars, or the subBcription or 

U. " I confesB it appem to me, uotwilliBtuidiDg the weight of Bnthori^ Od 
tbu head, that a delegstion of the poirer to manicipal corporatioiu to tax their 
dlizetii for wortu of luch a large and general ntJIiiy at railroad* cannot be fairiy 
called a taxtt^on for local purposes, nor justified on ^t ground. The road maj 
benefit the locality, but it \» not eaqr to tee how it can properly be called a local 
object." Sedgwick on Statutory and ConaL Iiaw, 464. See abo Caaa t>. Dillon, 
2 Ohio, K. a. 624, per Thurmaa, J. ; diaaenting opinion of Ranneg, J., in same 
cace; Griffiths. Conunisaioaen of Crawford County, 30 Ohio, 609, per SpaiUd- 
mg, J. And aee the following caaei in Iowa, where it ban been held inconipelent 
under tike conatitution of that State to confer any «acfa power upon the munici- 
pality : Stokea r. Scott County, 10 Iowa, 166 ; State B. WapeUo County, 13 Iowa, 
388 ; Ifyera e. Johnson County, 14 Iowa, 47 ; Smith e. Henry Couuty, 1>^ Iowa, 
8S6; Ten Eyck e. Mayor, Ac, of Keokuk, i6. 4B6i Clui: v. Dca Moinea, 19 
Iowa, 212; HcClure e. Owen, 26 Iowa, 243, and the more recent case of Hho- 
■en e. Temon, 27 Iowa, in which an elaborate and able oinnion was delivered by 
Ch. J. Diilon. See also Whiting c. Kieboygan R. R. Co. in tbe Snpreme Court 
of Wiscouun, 9 Am. Law Begiater, m. s. 1M ; People v. Township Board of 
StJem in Supreme Court of Michigan, 20 Mich, and 9 Am. Law Register, n. s. 
467, and notes thereto by Judges DilUm and Redjidd; and Garrard County 
Court r. Kentucky River Navigation Co., recently decided by the Court of 
Appeals of Eentncky. The case of the People c. Township Board of Salem 
denies tiiat the intadental benefits whicfa the municipality expects or receives from 
the construction of a railroad in the hands of a private corporation, can consti- 
tute a ground for taxation any more than con similar benefits in the case of the 
establishment of a mauufsctory, a store, or any other private enterprise. This 
case has elicited a good deal of criticiim, both commendatory and the contrary ; 
the ableat of the latter class which has foUeo under our observation being that 
contained in the American Law Review for October, 1870. 

' Bullock e. Curry, 2 Met. (Ky.) 171. A general power to borrow mon^ 
or incur indebtedness to aid in the construction of " any road or bridge " must be 
noderstood to have reference only to the roads or bridges within the mnnicipality. 
Stokea t>. Scott County, 10 Iowa, 173 ; State n. Wapello County, 13 Iowa, 388; 
La Fayette v. Cox, fi Ind. 38. There are decisions in the Supreme Court of 
the United States which t^ipeor to be to the contrary. The city charter of Mus- 
Oa^e ooulerred in detail the usual powers, and then authorized the city " to 
borrow money for any object in its discretion," after a vote of the city in favor 
of the loan. In Meyer e. Muscatine, 1 Wal. 884, the court leem to have con- 
Btmed tins clause as authorizing a loan for any o^eet vAatever ; whereas we think 
iuch phrases ore nnderstood nsually to be confined in tlieir scope to the specific 
[228] 



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CH. nil.] THE 0BADE3 OP UUNIOIFAL OOTEKNHinfT. * 215 

aecurity will be void. And while mere irregolaritiea of action, not 
going to the essentials of the power, would not prerent parties who 
bad acted in reliaace upon the securitieB enforcing them, 7et aa 
the doings of these corporations are matters of public record, and 
they have no general power to issue negotiable securitieB, anj one 
who becomes holder of such securities, even though thej be negoti- 
able in form, will take them with constmctive notice of any want 
of power in the corporation to issue them, and cannot enforce them 
when their issue was unauthorized.^ 



objecU before enumerated; or at least to tboie embraced vidun the ordinary 
functions of municipal govemmentt. This case was followed in Rogers e. Bur- 
lington, 3 Wal. 654, four justices dissenting. A municipal corporation baring 
power la borrow money, it is held, may maVe its obtigatioDS payable wherever it 
shall agree. Meyer e. Muscatine, 1 Wal. SSi. There are cases, however, 
which hold that such obligations can only be made payable at the corporation 
treasury, unless there is express legislative autiorily to make them payable else- 
where. People n. Tazewell County, 32 Dl. 147 ; Fekin o. Reynolds, 31 III. fi29. 
Sudi corporationB cannot give their obligations all the qualities of negotiable 
paper, without express legialatire pennission. Dively e. Cedar Falls, 21 Iowa, 
665. 

' There is considerable confusion in the cases on this subject. If the corpo- 
ration has no authority to issue negotiable paper, or if the officers who assume 
lo do so have no power under the charter for that purpose, there can be no doubt 
that the defence of want of power may be made by the corporation in any suit 
brought on the serarities. Smith v. Cheshire, IS Gray, 818 ; Gould v. Sterling, 
23N.Y. 468; Andovero. Grafton, 7 N.H. 298; Clark r. Dea Moines, 19 Iowa, 
209. And in any case, if the holder has received the securities with notice of 
any valid defence, he takes them subject thereto. But where the corporation haa 
power to issue negotiable paper in some cases, and ita officers have assumed to 
do so in caaes not within the charter, whether a bona fide bolder would be charge- 
able with notice of the want of authority in the particular case, or, on the other 
hand, would he entitled to rely on the securities themselves as sufficient evidence 
that they were properly issued when nothing appeared on their face to apprise 
him of the contrary, is a question stitl open to some dispute. 

In Stoney v, American Life Insurance Co. 11 Paige, 636, it was held that a 
negotiable secnri^ of a corporation which upon its face appears to have been 
duly issued by such corporation, and in conformity with the provisions of iti 
charter, is valid in the hands of a bona fide holder thereof without notice, 
althongh such security was in fact issued for a purpose and at a place not author- 
ited by the charter of the company, and in violation of the laws of the State 
where it was actually iinied. In Gelpecke e. Dubuque, 1 Wal, 203, the law i« 
staled as follows : " Where a corporation has power, under any ciroumstanoei, 
to isiae negotiable MCurities, the bona fide holder has a right to presume titey 
were issued under the drcnmstances which give the requisite authori^, and 
they are no more liable to be impeached for any infirmity in the hands of gndl 

[229] 



DiB.1izedOyGoO<^lc 



* 216 COHSTITDTIONAL UIOTATIONS. [CH. VIII. 

[* 216] *In Bome of the caaeB inToIriiig the validity of the sabscrip- 
tions made or bonds issued by municipal corporatiouB in 

holder than anj- other commercuJ paper." See aiUo CommiBBionen of Knox 
Co. tJ. Aspinwall, 21 How. 539 ; Buaaell v. JefierEonville, 24 How. 287 ; Thorn 
r. ConuuisnoDere of Miami Co. 2 Black, 722 ; De Toss r. Bichmand, 18 Grat. 
336. In Fannen and Uechaoica Bank v. The Batcben and Drorers Bank, 
U N. T. 135, it is said : " A citjzen who deali direct]]^ with a corporation, or 
who lakes its negotiable paper, ia presumed to know the extent of its corporate 
powers. But when the paper is, upon its face, in all respects such as the cor- 
poraden has authority to issue, and its only defect consists in some extrinsic 
Cwrt, — such as the purpose or object for which it was iasned, — to hold that the 
person taking the paper must inquire as to such extrimeoaB Act, of the existence 
of which be is in no way apprised, would obviously conflict with the whole policy 
of the law in regard to negotiable paper." In Madison and Indianapolis Rail- 
road Co. n. The Norwich Savings Society, 24 Ind. 461, this doL-trine is approved, 
and a distinction made, in the earlier case of Bmead d. Indianapolis, &c.. Rail- 
road Co. 11 Ind. 104, between paper executed ultra vim and that executed 
within the power of the corporaUou, but, fay an abuse of the power in that 
particular instance, was repudiated. In Halstead v. Mayor, Ac, of New York, 
A Barb. 218, action was brought upon warrants drawn by the corporation of 
New York upon its treasurer, not in the course of its proper and legitimate busi- 
ness. It was held that the corporation under its charter had no general power to 
issue negotiable paper, though not being prohibitod by law it might do bo for 
any debt contracted in the coune of its proper legidmste business. We quote 
from the opinion of Edwardt, J. : " It was contended on the argnment, that the 
rule of the law merchant which protects the bonaJUU holder of negotiable p!q>er, 
without notice, was of universal application ; and that, if the defendants had a 
right to isBue negotiable paper, it must ex necasitale be subject to the same rules 
BS the negotiable paper of an individual. This view seems plausible, but will it 
bear the test of examination P In the first place, the defendants have no general 
power, either express or implied, to issue negotiable paper. They have only a 
special or conditional implied power for that purpose ; that it is necessar}- as 
a condition precedent to the validity of such paper that the debt which forms 
the consideration should be contracted in the proper legitimate business of the 
defendant. The act under which they were incorporated is declared to be a 
public act. Every person who takes their negotiable paper ia bound to know 
the extent of their powers, and is presumed to receive it with a full knowledge 
that they have only a limited and conditional power to issue it. He ia thus pat 
on his inquiry, and takes it at his peril. The circumstances under which a bona 
jide holder, without notice, receives the negotiable paper of a natural person, or 
of a corporation having the general express power to issne negotiable paper, 
are very different. In both those instances, the power to issue such paper is 
general and unconditional ; and hence the rules which have been established by 
commercial policy, for the purpose of giving curreocy to mercantilo paper, are 
applicable. It results from the views which have been expressed, that the drafts 
in question, not having been igauoU by the defeodants in their proper and legiti- 
[230] 



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CH. Vlll.] TQE OBADES OF UUNICIPAL OOTERNUEHT. * 216 

aid of internal * improTetnents, there has been occasion [""SIT] 
to consider causes in the State coastitutions designed ' 

msto bulinesB, are void in the banda of the plaiptiff, although received bj him 
wiihout actaal notice of tbw craside ration." Tbia deciaion ww sffinni'd in 3 
N. Y. 490. In Gould t>. Toirn of Stirling, 23 N. Y. 464, it, was held that when 
a town had issued negotiable bonds, which could onlj be issued when the written 
assent of two-thirds of the resident penone toi^ in the town had been olitaiiied 
and filed in the county clerk's office, the bonds issued without such assent were 
invalid, and that the piuphaaer of them could not rely upon the recital in the 
bonds that sudi assent had been obtained, but must ascertain for himself at his 
peril. Say the court : " One who takes a negodable promissory note or bill of 
exchanije, parporiiag to be made by an agent, is bound to inquire as to the power 
of the agent. Where the ag<tnt is appointed and- the power conferred, but the 
right to exercise the power has been made to depend upon the existence of facta 
of which the ageut may be supposed to be in an especial manner cognizant, the 
bona Jide holder is protected ; because he is presumed to have taken the pa|)Cr 
upon the faith of the repregentation as to those facts. The mere fiiut of executing 
the note or bill amounts kt itself, in such a case, to a representation by the a^^cnt 
to every person who may take the paper that tbe requisite facts exist. But the 
holder has no such protection in regard to the existence of the power it.''elf. La 
that respect the subsequent bona Jide holder is in no better situaUon than the 
payee, except in so far as the latter would Appear of necessity to have had 
cognizance of facta which the other cannot [must?] be presumed to have known." 
And the case is distinguished from that of the Farmers and Mechanics Bank e. 
Butchers and Drovers Bank, 16 N. T. 125, where the extrinsic fact affecting the 
KDlbority related to the state of accounts between the bank and one of its cub* 
tomera, which could only be known to the teller and other officers of the bank. 
See also Brady v. Mayor, &u.. of New York. 2 Bosw. 173; Hopple e. Brown 
Township, 13 Ohio, s. s. 311 ; Yeeder p. Lima, 19 Wis. 280. The subject is 
reviewed in Clark v. City of Des Mobes, 19 Iowa, 209. The action was brought 
upon city wairants, negotiubic in form, and of which the plaintiff claimed to be 
bona jide assignee, without notice of a^y defects. The city offered to thow that 
the warrant* were issued without any authority from the city council, and without 
mny rote of the council authorizing the same. It was held that the cvidt.'nce 
■bould have been admitted, and that it would constitute a complete defeni'c. See 
farther. Head v. Providence, &e., Co. 2 Cranch, 169 ; Royal British Bank u. 
Torqnand, 6 El. & BI. 327 ; Knox County o. Aspinwall, 21 How. 544 ; Bissell 
F. Jeffersonville, 24 How. 287; Sanborn u. Deerfield, 2 N. H. 254; Alleghany 
City E. UcClurkan, 14 Penn. St. 83 ; Morris Canal and Bauking Co. v. Fisher, 
1 Stock. 667 ; Clapp v. Cedar Co. 5 Iowa, 15 ; Commissioners, &c. v. Cox, 
6 Ind. 403 ; Madison and Indianapolis R. R. Co. v. Norwalk Savings Society, 2( 
Ind. 457 ; Bird e. Daggett, 97 Maes. 494. It is of course impossible to recon- 
tile these authorities ; but the doctrine in the case of Gould v. Town of Stirling 
appears to ui to he sound, and that, wherever a wont of power exists, a purchaser 
of the securities is chargeable with notice of it, if the defect is diaclodcd by 
the corporate records, or, as in that case, by other records where the power is 

[231] 



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* 217 COBBTITUnONAL LHOTATIONB. [CH. Till. 

[ • 218] to limit the power of the • legialatuie to incur indebtedneaa 
' on bohalf of the State, and which clauses, it has been 
urged, were equally imperative in restraining indebtedness on 
bohalf of the several political divisions of the State. Tlie Constitu- 
tion of Kentucky prohibited any act of tlie legislature authorizing 
any debt to be contracted on behalf of the Commonwealth, except 
for certain specified purposes, unless provision should be made in 
sucli act for an anuual tax suflicieut to pay such debt within thirty 
years; and the act was not toliare effect unless approved by the 
people. It was contended that this provision was not to apply to 
the Commonwealth as a mere ideal abstraction, anconnected with 
her citizens and her soil, but to the Oommonwealtli as composed of 
her people, and their territorial organizations of towns, cities, and 
counties, which make up the State, and that it embraced in prin- 
ciple every legislative act which authorized a debt to be contracted 
by any of the local organizations of wliich the Commonwealth was 
composed. The courix of that State held otherwise. " The clause 
iu question," they say, " applies in terms to a debt contracted 
on behalf of the Commonwealth aa a distinct corporate body; 
and the distinction between a debt on behalf of the Commonwealth, 
and a debt or debts on behalf of one county, or of any number of 

counties, is too broad and palpable to admit of the sup- 
[* 219] position that the latter class of * debts was intended to bo 

embraced by terms specifically designating the former 
only." ^ The same view has been taken by the courts of Iowa, 
Wisconsin, and Illinois of the provisions in the constitutions of 
those States restricting the power of the legislature to contract 
debts on behalf of the State in aid of internal improvements;' 

required to be shown. That tlie power* of the tgenti of munidpal corpontions 
are matters of record, and the corporation not liable for on unauthorized act, lee 
further, Baltimore v. £*chbach, 18 Md. 276 ; JobnaoD r. Common Council, 16 
Ind. 227. Those who deal with a corporation must take notice of the restrictions 
in its charter, or in the general law, and see to it that the contracts on which 
they rely are entered into in the manner the law autlioriies. Bradj t>. Mayor, 
&c., of New York, 2 Bosw. 173 ; same case, SO N. Y. S12 ; Swift r. Williams- 
burg, 24 Barb. 127; Harsh v. Snperviaors of Fulton Co., recently derided hy 
the Supreme Court of United States. If they are not, no subsequent ratification 
by the corporation can make them valid. Leavenworth r. Rankin, 2 Kansas, 
3J7. 

> Slack p. Railroad Co. 19 B. Monr. 16. 

* Dubuque County o. Hailroad Co. 4 Greene (Iowa), 1 ; Clapp v. Cedar 
County, 6 Iowa, 16 ; Clark d. Janesville, 10 Wis. 136 ; Boshnell r. Beloit, ib. 
[282] 



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CH. Tm.] THE GRADES OF UDNICIPAL GOTERNMENT. * 219 

but the decisioQB of the first-named State hare since been 
doubted.' 

Another class of legislation has recently demanded the attention 
of tbe courts, which has not been less troublesome, from the new, 
Toried, and peculiar questions involved, than that in relation to 
municipal subscriptions in aid of internal improvements. As the 
power to declare war and to conduct warlike operations rests in the 
national government, and that government is vested with unlimited 
control of all the resources of tbe country for those purposes, the 
duty of national defence, and, cotiseqaently, to defend all the 
citizens as well as all the property of all the municipal organiza- 
tions in the several States, rests upon the national authorities. 
This much is conceded, though in a qualilied degree, also, and 
subordinate to the national government, a like duty rests doubtless 
upon the State governments, which may employ the means and 
services of tlieir citizens for the purpose. But it is no part of the 
duty of a township, city, or county, as such, to ruse men or money 
for warlike operations, nor have they any authority, without ex- 
press I^slative sanction, to impose upon their people any burden 
by way of taxation for any such purpose.* Nevertheless, when a 



195 ; Prettymui e. Sui>ervisore, 19 111. 406 ; Robertflon e. Rockford, 21 HI. 451 ; 
Johiuon p. Stark Couaty, 24 HI. 75 ; Perkins o. L«vris, ib. 208 ; Butler c. Dun- 
bam, 27 III. 174. 

< State V. Wapello County, 13 Iowa, 388. And see People v. Supervisor, &c. 
16 Uich. S54. He hiitory of these constitu^ooal proTisions -would doubtlen 
throw light upon their proper construction. Where a constitutional provigjon is 
adopted forbidding the State to engage in internal improvements, and tbe history 
of the times sbowB that it was adopted bf way of establishing as a rule of Slate 
policy the principle that such imprOTements should be left to be constructed, 
coDtroIlcd, and managed by prirate enterprise, and not by the public authorities, 
it is difficult to perceive on what ground it can be held that though the State, 
in its soTeriiign capacity, may not burden its citizens with the coat of these works, 
every inferior subdiyision, deriving from the State its whole authority, may 
nevertheless be allowed to do so. We cannot construe a constitution with the 
aame strictness as a criminal statate, and hold nothing to be within its meaning 
which is not exactly included in its words; such an instrument establishes gen- 
eral principles in comprehensive terms, and should be construed with liberality 
to eSbctuata the intent of the people wherever that intent is sufficiently ap- 

■ Stetson V. Eempton, 13 Mass. 273 ; Gove e. Epping, 41 N. H. 545 ; Crowell 
■. Hopkinton, 46 N. H. & ; Baldwin v. North Branford, 82 Conn. 47 ; Webster v. 
Harwinton, t6. 181. See also Claflin v. Hopkinton, 4 Gray, 503 ; Cover v. Bay- 

[233] 



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•219 COHSTITtmONAL "UMITATIOSS. [CH. TBI. 

v&r arises which taxes all the eDorgies of the Dation, which makes 
it necessary to put into the field a lai^ proportion of all the able- 
bodied mea of the country, and which renders imperative a resort 
to all available means for filling the ranks of the army, recruiting 
the nary, and replenishing tlie national treasury, the queS- 
[* 220] tion * becomes a momentous one, whether the local organ- 
izations — those which are managed most immediately by 
the people themselves — may not be made important auxiliaries to 
the national and State governments in accomplishing the great 
object in which all alike are interested so vitally ; and if so, whether 
there is any constitutional principle which would be violated by 
making use of these organizations in a case where failure on the 
part of the central authority would precipitate general dismay and 
ruin. Indeed, as the general government, with a view to con- 
venience, economy, and promptness of action, will be very likely to 
adopt, for any purposes of conscription, tlie existing municipal 
divisions of the States, and its demand for men to recruit its armies 
will assume a form seeming to impose on the people whose muni- 
cipal organization embraces the territory covered by the demand, 
the duty of meeting it, the question we have stated may appear to 
be one rather of form than of substance, inasmuch as it would be 
difficult to assign reasons why a duty resting upon the citizens ofa 
municipality may not be considered as resting upon the corporation 
itself of which they are the constituents, and if so, why it may not 
be assumed by the municipality itself, and tlien be discharged in 
like manner as any other municipal burden, if the legislature shall 
grant permission for that purpose. 

One difficulty that suggests itself in adopting any sucli doctrine 
is, that, by the existing law of the land, able-bodied men between 
certain specified ages are alone liable to be summoned to tlie per- 
formance of military duty ; and if the obligation is assumed by the 
municipal organizations of the State, and discharged by the pay- 
ment of money or the procurement of substitutes, the taxation 
required for this purpose can be claimed, with some show of reason, 
to be taxation of the whole community for the particular benefit of 
that class upon whom by the statutes the obligation rests. When 
tlio public funds are used for the purpose, it will be insisted that 
they are appropriated to discharge the liabilities of private individ- 
towD, 12 Minn. 124 ; Fiske v. Hftzzard, 7 B. I. 438 ; Alle; v. Edgecomb, 63 Me. 
446. 

[284] 



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CH. Tin.] THB GRADES OF MUNICIPAL aOTEBNHENT. * 220 

nals. Those who are already paat the legal age of serriqe, and 
-who have stood their chance of being called into the field, or per- 
haps have actually rendered tlie requiied service, will be able to 
urge with considerable force that the State caa no longer honorably 
aod justly require them to contribute to the public defence, but 
ought to insist tiiat those within the legal ages should perform their 
legal duty ; and if any upon whom that duty rests shall actually 
have enrolled themselveB in the army with a view to discharge it, 
such persons may claim, with eren greater reason, that 
every consideration of " equality and justice demands that [* 221] 
the property they leave behind them shall not be taxed to 
relieve others from a duty equally imperative. 

Whatever may be the abstract reasoning ou this subject, there 
can be no question, in the light of the judicial decisions which have 
been made, that the people of any municipal corporation or polit- 
ical division of a Stato have such a general interest in relieving that 
portion of their fellow-citizens who are liable to the performance of 
military duty, as will support taxation or render valid indebtedness 
contracted for the purpose of supplying their places, or of filling 
any call of the national authorities for men, with volunteers who 
shall be willing to enter the ranks for such pecuniary inducements 
aa may be ofiered ibem. The duty of national defence it is held 
rests upon every person under the protection of the goverotnent 
who is able to contribute to it, and not solely upon those who. are 
within the legal ages. The statute which has prescribed those 
ages has for its basis the presumption that those between the limits 
fixed are best able to discharge the burden of military service to 
the public benefit, and others are not absolved from being sum- 
moned to the duty, if at any time the public exigency should seem 
to demand it. Exemption from military duty is a privilege rather 
than a right, and, like other statutory privileges, may be recalled at 
any time when reasons of public pohcy or necessity seem to demand 
the recall.' Moreover, there is no valid reason, in the nature of 
things, why those who are incapable of performing military service, 
by reason of age, physical infirmity, or other cause, should not 
contribute, in proportion to their abihty, to the public defence by 
such means as are within their power ; and it may welt happen 
that taxation, for the purpose of recruiting the armies of the nation, 

• See port, p. 383. 

[286] 



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• 221 coNSTmrnoNAL limitations. [ce. Tin. 

will distribute the bardeo more equally and justly among all the 
citizens than any other mode which could be devised. Whether it 
will be just and proper to allow it in any instance must rest with 
the legislature to determine ; but it ia unquestionably competent, 
with legislative permission, for towns, cities, and counties to nuse 
money by loans or by taxation to pay bounty moneys to those who 
shall volunteer to fill any coll' made upon such towns, cities, or 
counties to supply men for the national armies.^ 

' " The power to create a public debt, and liquidate it hj taxatioD, is too dear 
for diBput«. The questjon U therefore narroired to a single point : Ib the purpose 
in thJB inatance a public one P Does it concern the common welfare and interest 
of the municipality P Let ni eee. Civil war was raging, and Congress prorided 
in the second section of the act of 24th February, 1864, that the quota of the 
troops of each ward of a city, town, township, precinct, &c., should be as nearly 
aa possible in proportion to tbe number of men resident therein liable to render 
military service. Section three provided that all volunteers who may enlist after 
a draft shall be ordered shall be deducted from the number ordered to be drafted 
in such ward, town, &o. Volunteers are dierefore by law to be accepted in re- 
lief of the municipality from a compulsory service to be determined by lot or 
chance. Does the relief involve the public welfare or interest? The answer 
rises spontaneously in the breast of every one in tbe community liable to the mili- 
tary burden. It is given, not by the voice of bim alone who owes the service, 
but swells into a cbonis from bis whole family, relatives, and friends. Military 
service is the highest duty and burden the citizen is called to obey or to bear. It 
Involves life, limb, and health, and is therefore a greater ' burden ' than the tax- 
ation of property. The loss or the injury is not confined to Hie individual him- 
self, but extends to all the relations he sustains. It embraces those bound to him 
in the ties of consanguinity, friendship, and interest; to the community which 
mnst furnish support to his family, if he cannot, and which loses in him a member 
whose Ubor, industry, and property contribute to its wealth and its resources ; 
who assists to bear its burdens, and whose knowledge, skill, and public spirit con- 
tribute to the general good. Clearly the loss of that part of the population upon 
whom the greatest number depend, and who contribute most to the public wel- 
fare, liy their industry, skill, and property, and good conduct, is a common loss, 
and therefore a general injury. These are alike subject to the draft. The blind 
and relentless lot respects no age, condition, or rank in life. It is therefore 
clearly the interest of the community that those should serve who are willing, 
whose loss will sever tbe fewest ties, and produce the least injury. 

" Tbe bounty is not a private transaction in which the individual alone is beo- 
efited. It benefits the public by inducing and enabling those to go who feel they 
can best be spared. It is not voluntary in those who pay it. The community is 
subject to the draft, and it is paid ta relieve it from a burden of war. It ii not 
a mere gilt or reward, but a consideration for services. It is therefore not a 
confiscation of one man's property for another's use, but it is a contribution irom 
the public treasury for a general good. In short, it is simply taxation to reliev* 
[286] 



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CH. Tin.] THB QBADffi OF HtTNlClPAL GOTBRNMENT. • 222 

• Belief of Uie communitj from an impending or possible [• 222] 
draft is not, bovever, the sole consideration wliich will Bup- 
port taxation hy tlie municipai corporatious of the State to raise 
money for the purpose of paying bounties to soldiers. Gratitude 
to those who hare entered the military service, whether as 
volunteers or drafted men, or as substituteB for others who 
were drafted or were * liable to be, is a consideration [• 223] 
which the State may well recognize, and it may compensate 
tiie service either by the payment of bounty moneys directly to such 
persons or by provision for the snpport of those dependent upon 
them while they shall be absent from tlieir homes. Whether we 
regard such persons as public benefactors, who, having taken upon 
themselves tho most severe and dangerous duty a citizen is ever 
called upon to perform, liave thereby entitled themselves to public 
reward as an incentive to fidelity and courage, or as persons who, 
having engaged in the public service for a compensation inadequate - 
to the toil, privation, and danger incurred, are deserving of the 
bounty as a further recognition on tlie' part of the community of 
the worth of their services, there seems in either case to be no 
BufGcient reason to question the right of the legislature to authorize 
the muuicipal divisions of the State to raise moneys in any of the 
usual modes, for the purpose of paying bounties to them or 
their families in recognition of such services.^ 'And if a [*224] 

the innnicipftlitjr (rom Ibe ftem denuuidt of war, ood avert a public injury ki tlie 
lou of those who contribute most to the public weinue." Speer v. School l)i- 
rectora of BlaimiUe, 50 Peno. St. 159. See also Waldo v. Portland, S3 Conn. 
863; Bartholomew r, Harwinton, ib. 406; Fowler v. Danvere, 8 Allen, 80; 
Low«ll D. Oliver, ib. 247; Wuhington Count]' c. Berwick, 56 Fenn. St. 466; 
Trustees ofCasse. Billon, 16 Ohio, N. e. 38. Also Opinion* of Justices, 5S Me. 
S95, in which the view is expressed that towns cannot, under the power to raise 
tDOoey for " necessary town cba^^s," raise and pay L-omiiiutation moneys to re- 
lieve persons drafted into the military service of the United States. 

> The act under which the Pennsylvania case, cited in the pre(.'eding note, was 
decided, autiioTized the borough to contract a debt for the payment of three 
IiQndred dollara to each non-commissioned officer and private who might there- 
after volunteer and enter the service of the United States, and be credited upon 
the quota of the borough nnder an impending drall. The whole purpose, there- 
fore, was to relieve the community from the threatened conscription. But in the 
case of Brodhead v. Milwaukee, 19 Wis. 652, it was held constitutional, not only 
to provide for the fiitare by ludi municipal taxation, but also to raise moneys to 
pay bounties to volunteers previously enlisted, as well as to those who should 
diereafier procure substitutes for themselves, and have them credited on the 
muuicipal quota. Chief Justicie Dixmi, in delivering the opinion of the conrt, 

[287] 



DiB.1izedOyGoO<^lc 



* 224 CONSTITOTIONAL LmiTATIONS. [CH. Tin. 

rauiiicipal corporation sliall liave voted moneys for such pur- 
pose without legislative authority, it is ' competent for the 

sftja: " I think the coagideration of gratitude alone to tlie Boldier for his lervicee, 
be he volunteer, BubxCitute, or drafted man, irill austain a tas for bounty money 
to be paid to him or bia family. Certainly no stronger conaideration of gratitude 
can possibly esist than that nhich ariaea from the bardships, privationa, and dan- 
gers vhich attend the citizen in tbe military service of hia country ; and all na- 
tions have ever ao regarded it. Wbo will say that the legislature may not, in 
coneiderafion of sucb aervicca, either directly or indirectly, or tbrongh the Agency 
of the municipality or district to which be ia credited, give to the soldier or his 
family a suitable bounty alter his enlistment, or even after his term of aerricebas 
expired ? I certainly cannot. It ia a matter which intimately coDcema the pub- 
lic welfare ; and that nation will live longest in fact, aa well aa in history, and be 
most prosperous, whose people are most sure and prompt in the reasonable and 
proper acknowledgment of such obligations. 

*' But the act provides for paying tbe same bounties ' to persons who shall pro- 
cure substitutes for themselves before being drafted, and have them credited to 
such town, city, or village upon its quota,' under the then pending call of the 
President, or any call which should thereafter bo made ; and it is said that 
clbarly no debt of gratitude is due to such persons. To my mind it is not quite 
so clear. Suppose that during the late rebellion citizens enough in the loyal 
States, liable to military service, had furnished substitutes so aa promptly to have 
answered the calla of the President, and kept thearmiea of tbe Union replenished 
with new soldiers, and so as to have avoided the evils and expenses of ths drafls ; 
is it dear that all the communities thus relieved would have been under no obli- 
gation ofgratitude to such citizens? Suppose still furtfai^r, that, under the system 
of apportionment adopted by Congress, a sufficient number of such citizens had 
been found in any town, dty, or election precicict to have filled iia quota by sub- 
stitutes; would there have been no cause for thankfulness on the port of the 
inhabitants of such town, city, or precinct for their having done so F I must con- 
fess that I tliink there would. War, though often unavoidable, ia always a most 
deplorable public misfortune ; and among its calamities, not the Iwot, I may say 
the grealeat. ia the forcible separation of husbands, fathers, sons, and brothers 
from their homes, kindred, and friends, to be made bloody sacrifices on the field 
of battle, or to die of loathsome diseases contracted in camps or upon campaigns ; 
and those who avert the evils of such forcible separation, I care not from what 
motive of private or individual interest, so that the duty of furnishing men for the 
army ia performed, cannot but be regarded as in some sense public benefactors. 
" But it 19 not for those who have furnished substitutes in the post that the set 
provides bounties, but fur those who sball do ao under a pending call before being 
drafted, and have them credited to the town, city, or village, so as to avoid or help 
to avoid an approaching draf^. In such case tbe power to tax may not rest upon 
the ground ofgratitude. It can be susttuned upon consideration of tbe benefit 
accruing to tbe town, cUy, or Tillage from the credit, which is direct and palpa- 
ble. The procuring of substitutes was lawful and proper in itself. The act of 
Congress authorizes it, and the credit to the town, city, or village. Sabstitntes 
most be persons not li^Ie to the draft, so as not to affect tbe mt«resta of those 
[2S8] 



DiB.1izedOyGoO<^lc 



CH. tin.] THE GHADS8 OP MUITICIPAL OOYERNMENT. * 225 

* legislature afttirwards to legalize tlieir action if it eliall [* 225] 
so choose.' 



who were, othcnritc than by directly relieving Ibcm from the burdeu of it. The 
proTision for subitilut^B waa a ncccasitj. Other obligations exist as strong, some- 
tiiiiea nlmoiit Btronger, than that of carrying arms in the public defence ; and they 
could not be ignored. Some were «a liluited that personal service sBemed im- 
pouible. Others might not go witli^ut greater loss to the community at home 
than gain to the public at luge. The procuring of substitutes was therefore not 
only proper, but in many cases commendable. Persons procuring them per- 
formed their whole duty under the law. They furnished soldiers for the field, 
and relieved the conununities in which they resided, the same as if they bad them- 
•elvei enlisted. So far aa the public interest is concerned in being relieved from 
the draft, I can see no distinction between paying bounties to them and to those 
who volunteer. Both contribute predsely in the tame degree to such relief. The 
error of conosel, I think, consists in looking exclusively to the motives of private 
advantage by which the persons were governed. That such motives existed, and 
were moat frequently the predominant cause of their procuring substitutes, will 
not be denied. But there is no public good without at the same time some pri- 
vate gain ; and in tbe language of Chief Justice Black, it is enough ^at we can 
see any pouible public interest iu the act, or public benefit to be derived from it. 
All beyond that is a questioD of espediency for the legislature, not of law, mucb 
lew of constitutional Uw to be determined by the courts." 

' Tie town of Woodbury, being subject to a call for thirty-two men for ser- 
vice in the national army, passed a resolution appropriating six tliousand four 
hundred dollars from tbe treasury of t^e township for the purpose of procuring 
Bubstitntea to fill such call. There was no legislation at the time which would 
warrant this resolution, but a special statute was afterwards passed authorizing 
the town to confirm this action, which it did by vote of a legal meeting called 
for the purpose. Bill being filed to restrain action under these votes, it was 
alleged that they were illegal, unjust to the tax-payers, unconstitutional, and dis- 
loyal to the government of tbe United States ; that they were intended to defeat 
the proper effect of the law of the United States and tbe call of the President; 
and that Ibe town thereby unlawfully undertook to ^wisfer the individual liability 
of each person drafted by the United States to widows, orphans, and non-mili- 
tlry subjects, aa well as to those liable in their own persons to do military duly 
on behalf of the United States. The court state the question iflvolved in tbe 
case to be this : " Whether it is competent for the State legislature to give gra- 
toitia to such of its citizens aa are mlled, under the allegiance they owe to the 
national government, and independent of the allegiance they owe to the State 
government, by distinctive and independent national enactments, to render to 
that national government Satinet and independent military service, and tax the 
citizens generally therefor. For if they have the power to do it, they may im- 
pose the doty or confer the power of doing it upon the towns." And after saying 
that the State constitutions do not, in express terms, confer any such power, nor 
expressly forbid it, and that the question therefore is, whether it is within the 
grant of legislative power, they proiMed to show that the special statute was not 

[289] 



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* 226 CONBTITUnONAL LIUITATIOMS. [CH. Vni. 

[* 226] * The cases to irhich we liavo referred in tlie aotea 
asaume th'at, if the purpose is one for which the State 

such an inrringement of nitaral justice m woald vrarrant the court in holding it 
inoperative, a« io exceM of legislative Rulhority, for severml reosoos. 

" In the first place, if it be conceded that it is not competent for tfa« legiila- 
dve power to make a gift of the common property, or of a sum of moaey to be 
rained by taxation, where no possibie public benefit, direct or indirect, can be 
derived therefrom, Buch exercise of the legislative power muat be of an extraor- 
dinary character to justify the interference of the judiciary. And tliia is not that 
case. 

" Second. If tJjere be the least poasiliility that making the gift will be pro- 
motive in any degree of the public welfare, it becoineg a question of policy, and 
not of natural justice; and the determination of the legislature ia conclusive. 
And such is this case. Such giAs to unfortunate classes of loeiety, as the indi- 
gent blind, the deaf and dumb, or iusaue, or grants to particular collies or 
sclioob, or grants of pensions, swords, or other mementoes for past sertices, 
involving the general good indirectly and in slight degree, are frequently made 
and never questioned. 

"Third. The govemmeDt of the United States was constituted by the people 
of the State, although acting in concert with the people of other States, and the 
general good of the people of this State is involved in the maintenance of tliat 
general government. In many conceivable ways the action of the town of Wood- 
bury migbt not only mitigate the burdens imposed upon a class, but render the 
service of that class more efficient to the general government, and therefore it 
must be presumed that the legislature found that the public good was in fai-t 
theri'by promoted. 

" And fourth, it is obviously possible, and therefore to be intended, that the 
General Assembly found a clear equity to justify their action. 

" Every citizen is bound to take up arms wfaOi necessary- in defence of his 
government; not as a matter of strict law, but as an incident of citiKenship ; and 
the selection of a ilass only of a certain age, of whom that service is to be im- 
mi'diattly demanded in a particular case, although wise, is arbitrary, not hascd 
on any peculiar or special obligation resting upon the class, or on their liability 
alone to rendiT the service, or to render it with lesa pecuniary or social sacrifice, 
but on the wants of tlie government, and the supposed fitness of the class to 
subserve the purposes of the government with more efficiency than others. But 
if all owe the service, and it is for the common good, and there is the usual pro- 
vision that it may be rendered by substitute or commutation, it is not easy to see 
why men above forty-Sre years of age, if able-bodied, may not be called upon 
as welt as those of lesi age. If not as able to endure the hardships of the field, 
tbey may answer equally well for garrison duty, or as details, and presumptively 
they are better able to procure substitutes, or commute, for they have mom gen- 
erally accumulated property or received it by inheritance. Indeed, if substitu- 
tion and commutation are made elements of the conscription, — and they were of 
the law in question, — the ability to procure a substitute or nnnmute may well 
be an element without regard to age, and therefore when all above a certain age 
are exem|it, they are favored ; and it is clearly equitable and just that they equal- 
[240] 



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CH. Tm.] THE 0BA.DE8 OF HUNICIFAL GDTEBtlHENT. * 228 

might properly levy a tax upon its citizens at large, the legislature 
wwild also have power to apportion and iinpose the duty, or confer 
the power of aesuming it upon the towns and other municipal or 
political divisions. And tlie rule laid down is one which opens 4 
broad field to legislative discretion, allowing ae it does the 
raising and "appropriation of moneys, whenever, in the [* 227] 
somewhat extravagant words of one of the cases, there is 
"the least possibUity that it will be promotive in any degree of the 
public welfare." ^ The same rule, substantially, has been recognized 
by the Court of Appeals of New York. " The legislature is not 
confined in its appropriation of the public moneys, or of the sums 
to be raised by taxation in favor of individuals, to cases in which a 
legal demand exists agEunst the State. It can thus recognize 
■claims founded in equity and justice in the largest sense of these 
terms, or in gratitude or charity. Independently of express con- 
stitutional restrictions, it can make appropriations of money when- 
ever the public well-being requires or will be promoted by it, and 
it is the judge of what is for the public good. It can, moreover, 
under the power to levy taxes, apportion the public burdens among 

iie the harden by bonnCiBS to thou yiba are dr&fted and serve, or hj makiiig 
proTisioD for the support of their fknulies. On thii obvious equity rests th« 
general law makiiig provision for the families of all drafted men and their sub- 
■tHat«B.^ 

The court were therefora of opinion that it was competent for the General 
Assembly to pass votes m reference to all the drafted men of the State like those 
which thia town had passed, and that it «aa equally competent for them to dele- 
gate that power to the towns, and of conrse to anthorice the towns to ratify votet 
of that character whkh they bad before adopted. Booth v. Town of Woodbury, 
32 Conn. 118. See, to Che same effect, Bartholomew p. Harwinton, 33 Conn. 408 ; 
Crowell p. Hopklnton, 45 N. H. 9; Shackfonl v. Newington, 46 N. H. 415; 
Lowell P. Oliver, 8 Allen, 247; AUv. Gleim, 62 Feun. St. 48!; Weisterc.Hade, 
A. 474; CoSnan v, Keightley, 34 Ind. 600; Board of Conimisstoners v. Brearsa, 
S5 Ind. 110 ; Comior v. Fuliom, 13 Minn. 318 ; State c. Demorest, 32 N. J. 528 j 
Taylor n. Thompson, 42 HI. 9. In State e. Jackson, 83 N. J. 460, a statute 
antborizing a town to raise money by tax to relieve its inhabitants from the bur- 
den of a draft nnder a law of Congress, was held void aa tending to defeat the 
porpote of sncb law. The decision was made by a bare majority of a bench of 
eleven judges. 

■ Booth V. Woodbuiy, 82 Conn. 128, per BvOer, J. " To make a tax law 
miconstitntional on tlua grotind, it must be apparent at first blnsh that the com- 
mnnity taxed can have no possible interest in the purpose to which their atojmj 
is to be applied." Shaiplesa p. Mayor, Ac SI Fenn. St. 174, following Cbeaney 
V. Hooter, 9 fi. Monr. 346. 

16 [ 241 3 



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• 227 CONSTITOTIOMAL LIMITATIONS. [CH. Tin. 

all the tax-paying oitizeoB of the State, or among tliose of a partic- 
ular section or political divisioD." ' And wliere citizens have vol- 
uutarily advanced moneys for the purpose of paying bounties to 
recruits who fill the quota of a municipal corporation, on an uader- 
standiug, based upon informal corporate action, that the moneys 
should be refunded vhen a law should be passed permitting it, a 
subsequent act of the legislature authorizing taxation for this pur- 
pose is valid.^ 

However broad are the terms employed iu describing the legis- 
lative power over taxation in these cases, it is believed that no oue 
of them has gone so far as to sanction taxation or the appropri- 
ation of the public revenue in order to refund to individuals 
moneys which they may have paid to relievo tliomselves from an 
impending draft, or may have voluntarily contributed to any public" 
purposes, from motives purely personal t{» themselves, without 
any reason to rely upon the credit of the State, or of any munici- 
pal corporation, for reimbursement, and where the circumstances 
are not such as fairly to challenge the public gratitude. Taxation 
in such a case, where no obligation, honorary or otherwise, rests 
upon the public, would bo nothing else than a naked case of appro- 
priating the property of the tax-payer for private purposes, and 
that without reference to anticipated public benefits." 

■ Guilford ti. SupcrviBors of Chenaugo, 13 If. Y. 149. 

■ Weister e. Hade, £2 Fenn. St. 474. And eee People v. Sullivan, 43 HI. 
413; JoliDSOii c. Campbell, 49 III. 316. 

* TjROD t). School Directors, &c. fil Pcnn. St. 9. A meeting of persona liable 
to draft under the law of the United States was oiled, and an association formed, 
called the Halifax Bountj Association, which levied an assessment of thirty dol- 
lars on each person liable to military duty in the township, and solicited contn- 
buUons from others. Afterwards, an act was passed by the legislature, with a 
preantblc reciting that certain citizens of Halifax township, associated as the 
Halifax Bounty Association, for freeing tlie said township from the late drafts, 
advanced moneys, which were expended in paying bounties to volunteers to fill 
the quota of the township. The act IJien autborized and required Ihe school 
directors to borrow such sums of money ss would fully reimburse the said Hali- 
Ijix Bounty Association for moneys advanced to free said township Irom the 
draft, and then further authorized the school directors to levy and collect a tax 
to repay the sums borrowed. The court say: " We are bound to regard tbe 
statute as an authority to reimburse what was intended by the Associatioa as 
advances made to the township with the intent or understanding to be reimbursed 
or returned to those contributing. This was the light in which the learned judge 
below regarded the terms used ; and unless this appears in support of the present 
levy by the school directois, they are acting without authority. But the learned 

[242] 



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CB. Tin.] THE GRADES OP MDNICIPAL GOVEBKMENT. • 228 

* But it lias been held by the Supreme Court of Maasa- [* 228] 
chusetts that towuB miglit be authorized by the legislature 
to raise moneys by taxation for tlie purpose of refunding sums 
contributed by individuals to a common fund, in order to (ill the 
qnota of such towns under a call of the President, notwitlistaud- 
ing such moneys might have been contributed without promise or 
expectation of reimbursement. The court were of opiniou 
that such contributions * might well be considered as ad- [* 229] 
vancements to a public purpose, and, being such, the leg- 
islature might well recognize the obligation and provide for its 
discharge.' 

judge, if I properly comprehend his meaning, did not give BuffidenC importancu 
to lliese terms, and hence, I apprehend, he fell into error. He does not seem to 
have considered it essential whether the Association paid its money -voluntarily 
in aid of its own members, or expressly to aid the township in saving its people 
from a draft, vith ihe onderatanding that it was advanced in the character of a 
loan if the legislature ehose to direct its repayment, and the school directors 
cliose to act on the authority conferred. Thia we cannot agree to. Such an 
enactment would not be legislation at all. It would bq in the nature of judicial 
action, it is true ; but wanting tlie justice of notice to the parties to be affected 
by the hearing, trial, and all tliat gives sanction and force to regular judicial 
proceedings, it would much more resemble an imperial rescript than constitational 
legblation ; first, in declaring an obligation where none was created or previously 
existed; and next, in decreeing payment by directing the money or property of 
the people to be sequestered to make the payment. The legialature can exercise 
no aucb despotic functions ; and as it is not apparent in the act that they attempted 
to do BO, we are not to presume that they did. They evidently intended the 
adornictments to be reimbursed to be only such as were made on the faith that 
they were to be returned." See also Crowell v. Hopkinton, 45 N. H. 9 ; Miller 
o. Grandy, 13 Mich. 540 ; Pease d, Chicago. 21 lU. COS ; Ferguson v. Landraw, 
5 Bush, 2S0; Esty r. Westminster, 97 Mass. 324; Cole v. Bedford, ib. 326; 
Usher r. Colchester, 33 Conn, 5G7. In Freeiand e. Hastings, lU Allen, 570, it 
was held that the legislature could not empower towns to raise money by tax- 
ation for the jjurpoBc of refunding what had been paid by individuals for substi- 
tutes in military service. In Cass v. Dillon, 16 Ohio, N. 8. 38, it was held that 
taxea to refund bounties previously and' voluntarily paid might be authorized. 
See also State r. Harris, 17 Ohio, m. s. 608. 

' Freeiand a. Hastings, 10 Allen, 585. The court, ailer considering the gen- 
eral subject of the power to authoriie the towns io raise money by tax for the 
payment of bounties to volunteers, proceed to say: "It would aeem to follow 
aa a necessary consequence, that not only was the payment of bounties by the 
Commonwealth, and by cities and towns, for the purpose of procuring volunteers, 
a proper and legitimate object of expenditure of public money, raised or to be 
raised by taxation, but also that money contributed voluntarily by individuals to 
raiae a fund for the same purpose may well have been considered by the legio- 

[243] 



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• 230 CONBTmiTlONAL LIMITATIONS. [CH. vnl. 

[* 280] * Whether the legislature has power, agaiuBt the will of 
a municipal corporatioo, to compel its citizens to aasume 

Uture U an advancement of money for a public object. When in tlie summer 
of 1864 it became neceaaaiy to faroisli a Lirf;a additional number of soldiers to 
tbe army of the United States by filling the quutaa allotted to the Heveral cities 
and towns, a public exigency had arisen for which no adeqoate ptovision had 
been made by the legislature. The alternative was presented to the people of 
the Commonwealth of procuring volunteers to enlist by the payment of bounties, 
or of submitting to the evils and hardships attendant upon an attempt to recruit 
the anny by a draft. In moat if not all of the cities and towns, it was deemed 
to be wise and expedient, and most for the interest of the inhabitants, to em- 
brace the former branch of this alternative ; and accordingly, as no authority 
was then vested in towns or cities to raise money by taxation or otherwise for 
the payment of bounties, resort was had to the method of procuring voluntary 
contributions to raise a fund in each town for each purpose. But these contribu- 
tions, though voluntarily made, and without any legal claim on tbe town or dty 
for reimbursement, or any expectation of legislative sanction, were nevertheless 
given in aid of the performance of a public duty, which devolved on the city or 
town, and for which it would have been competent for the legislature, in anticipa- 
tion of the exigency, to authorize money to be raised, by taxation or otherwise, 
on the credit of a town or city. In this view the question as to the validity of 
the statute resolves itself into this : whether it was competent for the legishiture 
to anlhorjze towns and cities to repay to individuals money which, in the opinion 
of the legislature, they had advanced in a pressing public exigency to enable a 
town or city to discharge a duty which was legally devolved upon it, and which 
it could not have performed without such adventitioua aid. Upon the best con- 
uderation which we have been able to give the subject, we can see no legal or 
constitutional objection to the action of the legislature. We arc not called upon 
to determine the wisdom or expediency of the act. Confining ouraelvee to the 
question whether the legislature have transcended their authority in paasing it, 
we are of opinion that no private right is invaded, and no constitutional barrier 
overttepi>ed, in giving authority to citii'S and towns to raise money by taxation 
to reimburse individuals for contributions made in aid of an object of a public or 
municipal nature ; or, in other words, that as it is competent for the legislature 
to authorise the imposition of taxes to raise money to be expended for a public 
purpose, so it is competent for them to sanction an expenditure already made 
for a like object, and to give authority for its repayment by means of taxation. 
If these views are correct, then it follows that tbe statute under consideration is 
not obnoxious to the objecljons to its validly* urged by the petitioners. It cannot 
in any juat seme be said that the legislature aulhoriied an assessment, by means 
of which money could be capriciously taken from one individual or class and 
given to another, or that it sanctioned the appropriation of public money to 
the payment of claims which had no just or equitable existence. Tbe clear and 
decisive answer to all such objections is, that the money which the statute author- 
ized towns to repay by means of taxation was raised and contribnted for a 
public object. This seems to os not only to constitute a test by which the validity 
of the statute is proved, but also a safe limit by which the power of tbe legislature 
[244] 



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CH. Tni.] THE QaA.DE8 OF UDNICIFAI, QOTSSNUENT. * 2S0 

ao obligation, and to discbarge it hj taxation, where the obligatioa 
is one which it would not ioll within the ordinary functions of mu- 
nicipal government to enter into, is a question which, if it is to be 
decided by authority, is not entirely free from difficulty. There 
are cases which deny to tlie legislature the possession of any such 
power ; and which claim for the municipal oi^uizations the same 
exemption from CQmpuIsory hurdeoB, outside the circle of their 
ordinary legal duties, that protects tbe individual citizen. And 
even where a moral obligation may fairly be said to rest upon the 
municipality, it is denied, in Bome oases, that tbe legislature can 
convert it into a legal demand, and enforce its payment, though 
it is conceded that the State may authorize the citizens of the 
municipality to assume the burden and discharge it if they choose 

to do 80.^ 

to utharize taxation for repkymonti or reimbnrseineiits of mone; *dT&nced 
withoat ItigiaUtive Eanclion nuj be restrained." This case abould be compared 
ftod coDtraated ^ith that of TyBon e. School Directors, 51 Penn. St. 9, given 
fiilly in a preceding note. 

' lu Hasbrouck r. Milwaukee, 18 Wis. 37, it appeared that the city of Mil- 
irankee had been authorized t« iMue bonds to an amonnt not exceeding filly 
tboiuand dollars, to raise money to expend in the construction of a harbor in 
that tatj. The city authorities entered into a contract for that purpose, at a 
coat largely exceeding the limit thus Gxed. Subsequent acta of the legislature 
extended the authority to issue bonds to such an amount as should be neceesaiy 
to complete the harbor. Whether these acta had the effect to render valid the 
contract before entered into by the city waa made a question in the court. It 
did not appear that the city petitioned for such anbacqueDt acta, or had in any 
way expr«sied its assent to them. " Under these drcumstances," say the court, 
* ' the question is. Can the legislature, by recognizing the existence of a pre- 
viously void contract, and authorizing its dis<^arge by the dty, or in any other 
way, coerce the city against its will into a performance of it ; or does the law 
require the assent of the ci^' as well as of the legislature, in order to make the 
obligatioa binding and efficacious 9 

"I must say that, in my opinion, the latter act, as well as the former, ia 
necessary for Uutt purpose, and that without it the obligation cannot be enforced. 
A contract void for want of capacity in one or both of the contracting parties to 
enter into it is aa no contract ; it is as if no attempt at an agreement had ever 
been made. And to admit that the legislature, of ita own choice, and against the 
wishes of either or both of the contracting parties, can give it life and vigor, is 
to admit that it is within the scope of legislative authority to divest settled rights 
of proper^, and to take the property of ono individual or corporation and 
Iransfbr it to another. It is certunly unnecessary at this day to enter into an 
argument, or to cite authorities, to show that under a constitutional goTemment 
like ours the legislature has no such power. 

[245] 



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• 231 CONSTITDTIONAL LIMITATIONS. [OH. Tin. 

[* 231] * Tliere are other oases, however, which appear to go to 
the extent of holding that municipal corporations and 
organizations are bo completely under the legislative control, that, 
whatever the legislature may permit tliem to do, with a view to the 
general benefit, it may compel them to do, whether their citizens 
arc willing or not. If, for instance, the legislature may constitu- 
tionally autliorizo a town or city to tako stock in a railroad enter- 
prise, for the convenience and benefit of its citizens, and on the 
supposition that the work, though not local in its character, will 
be productive of local benefits, it may also compel such action by 
the town or city, or oblige it to refund moneys which individuals 
may have advanced for the purpose. And where a State or county 
building is to be erected, the effect of which may be locally bene- 
ficial, the legislature, on the principle of equalizing, as far as 
practicable, the benefits and the burdens, may oblige the town 
where it is to be built to contribute to that object such sum as it 
shall deem just, over and above tlie ratable proportion as assessed 
upon the State or county at large.' 

" It ia undDubtedlj true that, in cases like the present, where there is a itrong 
moral, but no legal obligation to pay, courts bave oflen seized, and may again 
leixe upon very slight circumetanceB of assent in order to give effect to the con- 
tract. And in this case, if it appeared that the city did by some authorized 
action procure the passage of the act, or had subsequently acquiesced In it by 
ratifying the contract, there would be little difficulty in the way of holding it 
bound by its terms. In such cases it is the contemporaneous or subsequent 
assent of die parties to be hound, coupled with the power or ability on iheir 
part to give sncb assent, which makes the contract obligatory. But the giving 
of such assent ia a matter which depends upon their own free will. It is a volun- 
tary act which they may do or not as they see fit, and in caie tbey think proper 
to withhold it, tlie legislature has no power to compel it." See also Hampshire 
n. Franklin, 16 Mass. 63, for somewhat similur views. 

■ Kirby v. Shaw, 19 Penn . St. 268. In this case, by an act of April 3. 1848, 
the commissioners of Bradford county were to add five hundred dollars annually, 
until 1857, to the usual county rates and levies of the borough of Towanda in 
■aid county, for the purpose of defraying tlie expenses of eret-ting the court- 
house and jail, then in process of erection in ths.t borough. The act was held 
constitutional, on the principle of assessment of benefits. In Thomas e. Leiand, 
34 Wend. 67, it appeared that certain citizens of Uttca had given their bond to 
the people of the State of New York, conditioned for the payment into the canal 
fund of the sum of thirty-eight thousand six hundred and fifYeen dollars, the 
estimated difference between the cost of connecting the Chenango Canal with 
the Erie at Utica, instead of at Whitesborough, as the canal comtnissionera had 
contemplated; and it was held within the constitutional powers of die legishiture 
[246] 



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CH. Till.] THE GRADES OF HDMICIPAL OOTBBNHENT. * 232 

* If ttiesfl cases, vhicli are referred to in the note, are [* 232] 
Bound, the limitations whicli rest upon the power of the 

to require this sum to be usessed upon the taxable property of the city of Utica, 
Bupposed to be benefited by the canal connection. The court treat the case as 
" the ordinarf one of loca.1 taxation to make or improve a public highway. If 
anch in act," saja Coteen, J., " be otherwise conBtitutional, we do not aee how 
the circometance that a bond bad been bi'fore gifea securing the same money 
can detract from its validity. Should an individual volunteer to secure a sum of 
money in itself properly leviable by way of tax on a town or county,' there would 
be nothing in the nature of such an arrangement which would preclude the legis- 
lature from resorting,, by way of tax, to those 1^0 are primarily and more justly 
liable. Even sbould he pay the money, what is there in the constitution to pre- 
clude his being reimbursed by a tax ? " The same general views have been 
acted upon in other cases, nhich assert the complete power of the legislature over 
tlie subject of taxation, and that it must determine what sums shall be raised, 
dther in the State at large, or In any particular portion of the State, and also to 
what objects the sums so raised ehall be applied. See particularly Guilfordo. 
Supervisors of Chenango, 18 Barb. 615 ; same case, 13 N'. Y. 143 ; People v. 
Sfitcbell, 45 Barb. 208 ; same case, 36 N. Y. 561 ; Feople c. Power, 25 111. 167 ; 
People p. Mayor, &C., of Brooklyn, 4 N. Y. 419; Slack tf. Maysviile and Lexing- 
ton Railroad Co. 18 B. Monr. 26; Cheaney o. Hooser, 9 B. Monr. SSO; Cypress 
Pond Draining Co. r. Hooper, 2 Met (Ky.) 353. See also Borough of Dunmore's 
Appeal, 52 Penn. St, 374. In that case it appeared that a township which was 
considerably indebted, bad had four boroughs carved out of it. Afterwards ao 
act was passed by which the Court of Common Fleas was directed to appoint 
three commissioners, for the purpose of ascertaining the indebtedness of the 
township, and what amount, if any, was due and owing from the boroughs, and 
make an equitable adjustment thereof between them all, and allowing no appeal 
by 'the borougha from their decision. It was held that the act was valid. Per 
Woodworlh, Cb. J. ; "This legislation is unprecedented, and perhaps severe; 
but it denies trial by jury only to municipal corporations, who, being creature* 
of the legislative power, are subject to the legislative will in a manner and to an 
extent to which citizens are not. The constitutional guaranties of the citizen 
were respected in giving him a right of appeal; the municipal corporations, having 
no nicb guaranties, the right of appeal was not given to them. The-theory of 
the act was therefore unexceptionable, and we have no reason to doubt that its 
operation in the peculiar circumstances of the case will be beneficent and just." 
See also People r. Alameda, 26 Cal 641 ; Bums v. Clarion County, 62 Penn. 
St. 4S3. Similar views were expressed by the Supreme Court of Louisiana in 
Layton B. New Orleans, 12 La. An. 515. In consolidating three distinct muni- 
cipalities into one, the statute bad provided that the territory which had been 
embraced in each should pay the pre-existing debts. Afterwards a statute was 
passed that no tax ^ould be levied, " except the same be equal and uniform 
within the entire limits of the city." This was held to be constitutional. By the 
court: "As respects municipal corporations, it has always been.beld that the law 
of the State treating them, and conferring npon their officers a part of the 
sovereign authority as mandataries of the government, is not a contract, and 

[247] 



DiB.1izedOyGoO<^lc 



* 282 OONSTITDTIONAL LIUITATIONB. [CE. Tin. 

[* 23S] legislature to compel * muaicipol corporations to assume 
and discharge obligatious, can only be Bueh as spring from 
the general principles goremlng taxation, namely, that the demand 
or purpose for which the tax ifi levied shall be such as to constitute 
a proper charge or burden upon the State or portion of the State 
taxed to pay or to accomplish it. But upon this question the legis- 
lature is vested with discretionary and compulsory power, and its 
decisions are not subject to review in the courts. They must be 
final, unless in clear cases, where, there being no ground to adjudge 
the purpose to be a proper one for taxation, the legislature may be 
held to have proceeded unwarrantably. And perhaps there is still 
a furtlier limitation, that if the claim is unadjusted and in dispute, 
the legislature hare no authority to adjudicate upon it, but must 
leave the exercise of the judicial function to the ordinuy tri- 
bunals.^ 

U a contequeace that the legiriatnre may modiry «uch acts of iocorporatioii U 
ita pleuure. If it bu the power to create, modiiy, or abolish, it haa the power to 
provide in irhat manner the taxea shall be levied for their support, and how thdc 
debts shall be paid upon their dissolution. This is a discretion vested in tbelegis- 
lature (with whom is Tested the power of judging of the neoesuty of lasatioD), 
and nothing prevents it from chanpng ita policy if it shall deem the necessities 
of the public so require. The courts can only interfere when it has overstepped 
the limits prescribed by the Constitution." The Pennsylvania and Louisiana 
cases above qaoted are directly opposed to the case of Hampshire v. Franklin, 
16 Mass. 83, <ated in the preceding note. 

' The courts of New York have perhaps gone further than any others in 
holding that the legislature has complete control over the subject of municipat 
taxation. Nevertheless it was held, in People v. Hawes, 37 Barb. 440, that the 
legislature had no ri^ to direct a municipal corporation to satisfy a claim made 
against it for damages for breach of contract, out of the funds or property of such 
corporation. In citing the cases of Guilford o. Supervisors of Chenango, 13 
N. Y. 143, and People r. Supervisors of Kew York, 11 Abb. 114, a distinction is 
drawn by which the cases are supposed to be reconciled with the one then under 
dedsion. " Those cases and many others," say the court, p. 4Gfi, " related, not 
to the right or power of the legislature to compel an individual or corporation to 
pay a debt or claim, but to the power of the legislature to raise money by tax, 
and apply such money, when so raised, to the payment thereof. We could not, 
under the decisions of the courts on this point, made in these and other caaes, 
now hold that the legislature had not authority to impose a tax to pay any claim, 
or to pay it out of the Slatetreasuiy; andfortfais purpose to impose a tax upon 
the property of the State, or upon any portion of the State. This was fully set- 
tled in People 0. Mayor, &c., of Brooklyn, 4 N. Y. 419 ; but neither that case nor 
the case in 13 N. Y. 148, in any manner gave a warrant for the opinion, that the 
legislature had a right to direct a municipal corporation to pay a claim for dam- 
[248] 



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CH. Tm.] THE GBADE8 OF MUNICIPAL GOYEBNMENT. * 234 

• Those cases which hold that the State may raise [• 284] 
bounty moneys by taxation, to be paid to persons in the 
military service, we think stand by themselves and are supported 
on different principles ii-om any which can &irly be summoned to 
the aid of some of the other cases wliioh we hare cited. The 
burden of the public defence unquestionably rests uptm the whole 
community ; and the l^^lature may properly provide for 
its apportionment and * discharge in such manner as its [* 236] 
wisdom may prescribe. But those cases which hold it 
competent for the legislature to gire its consent to a municipal cor^ 
poratioa engaging in works of public improTement outside its ter- 
ritorial limits, and becoming a stockholder in a private corporation, 
have cert^nly, as we think, gone to the very limits of constitutional 

agei for breacli of a contract, ont of the fund* or property of tie corporation, 
frithoot & Bubmissiou of Buch clum to a judicial tribunal." If by this is meant 
that the legislature baa power to compel a corporation to tax ita citizens for the 
payment of a demand, but bu not the authority to make it a cha^^e againri the 
corporalJon in any other mode, the distinction Beems to be one of form ratlier 
than of anbatance. It ia no protection to the rights or property of a municipal 
Goiporation to hold that the legislature cannot determine upon a claim against 
it, if at the same time the corporation nay be compelled by statute to assume and 
discharge tbe obligation through the levyof a taxfor its Batisfaction. Eut if it is 
only meant to declare that the legisUtare oannot adjudicate upon disputed claioiSf 
there can be no good reason to find fault with the decision. It ia one thing to 
determine that the nature of a claim ia Budi as to make it proper to satisfy it by 
taxation, and another to adjudge how much is justly due upon it. The one is Ute 
exercise of legiBlativs power, tiie other of judicial. Sea Sanborn e. Rice, 9 Minn. 
273 \ Commonwealth v. Pittsburgh, M Penn. St. 496. But the power to decide 
upon the breach of a contract by a corporation, and the extent of tiie damages 
which have resnlled, is less objectionable and less likely to lead to oppression, 
than the power to impose through taxation a claim upon a corporation which it 
never was concerned in creating, against which it protests, and wfaicb is uncon- 
nected with the ordinary functiona and purposes of mnnicipal government; as 
was the case in Thomas n. Leland, 24 Wend. 67. In Borough of Dunmore's Ap- 
peal, 6S Penn. St. 374, a decision was made which seems to conflict with that in 
People c. Ha wes, tupra; tad witii the subsequent case of Baldwins. Mayor, Ac., 
of New York, 43 Barb. 649. The Pennsylvania court decided Ibat tbe constitu- 
tional guaranty of the right to jury trial bad no application to muDioipal oorpon- 
tions, and a conunimion might be created by the legislature to adjust the demands 
between them. See alao Layton e. New (>leans, IS La. An. S16. In People t. 
Power, 26 HI. 187. it was held competent for the legislature to apportion the 
taxes collected in a conn^ between a city therein and the renuunder of tbe 
county, and that Ota county revenues " ronat necessarily be within the control of 
the legislature for political purposes." 

[249] 



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* 235 COMSTITDrriOHAL LIMITATIONS. [CH. Tin. 

power in tliis direction ; ' and to hold that the le^Blature may go 
oren further, and, under its power to control the taxation of the 
political diviaions and organizations of the State, may compel them, 
ag^nst the will of their citizens, to raise money for such purposes, 
and invest their funds in these exterior undertakings, seems to us 
to be introducing new principles into our system of local self-gov- 
ernmeut, and to be sauctioniog a centralization of power not witliiu 
the contemplation of the makers of the Amerioaa constitutions. 
We think where any such forced taxation is resisted by the manic- 
ipal organization, it will be very difficult to defend it as a proper 
exercise of legislative authority in a government where power is 
distributed on the principles which [o^vail here. 



Legiilative Control of Corporate Property. 

Tlie legislative power of the State controls and disposes of the 
property of the State. How far it can also control and dis- 
pose of the property of those agencies of government which it 
has created and endowed with corporate powers is a question 
which happily there has been very little occasion to discuss in the 
courts. Beiug a mere agency of government, it is evident that 
the municipality cannot itself have that complete and absolute 
control and power of dispoaition of its property which is possessed 
by individuals over their own. For it can hold and own property 
only for corporate purposes, aud these purposes are liable at any 
time to be so modified by legislation as to render the property 
no longer available. Moreover, the cliartered rights may be 
altogether taken away ; and in that case the legislature has 
deprived the corporation of its property by depriving it of cor- 
porate capacity to hold it. And in many ways, white the 
corporation holds aud enjoys property, the legislature must pos- 
sess power to interfere with its control at least incidentally ; for 
the mere fact that the corporation possesses property cannot 
deprive the State of its complete authority to mould and change 

' When the firtt edition of thia work wu pnbliihed, there were reaaoDs which 
precluded a more definite expression of opinion on the part of the author than is 
here made. Since then he has had occasion to unite in a decision npon the point 
in question. See reference to the cue — People o. Township Board of Salem — 
in note to p. 2U. 
[260 



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CH. Tni.] THE GRADES OF MUNICIPAL OOTBRNHENT. * 236 

* the corpor&te organizatioD, and enlarge or dimmish its [* 236] 
powers, which it poBaessed before. Bat whether the State 
can directly intervene and take away the corporate property, or 
convert it to other uses than those for which it was procured, or 
whether, on repealing a charter of incorporation, it can take to 
itself the corporate property, and dispose of it at its discretion, 
are different questions from any raised by the indirect and inciden- 
tal interference referred to. 

In the leading case, in which it was decided by the Supreme 
Court of the United States that a private charter of incorporation, 
granted by a State, was a contract between the State and the 
corporators, not subject to modification or repeal, except in pur- 
suance of a right expressly reserved, but that the charter of a 
municipal corporation was not such a contract, it was at the same 
time declared, as the opinion of the judges, that the legislature 
could not deprive such municipal corporations of their vested 
riglits in property. " It may be admitted," says one of the judges, 
" that corporations for mere public government, such as towns, 
cities, and counties, may in many respects bo subject to legislative 
control. But it will hardly be contended, that even in respect to 
BQCh corporations, the legislative power is so transcendent that it 
may, at its will, take away the private property of the corporation, 
or cliange the uses of its private funds acquired under tho public 
faith. Oan the legislature confiscate to its own use the private 
funds which a municipal corporation holds under its charter, 
without any default or consent of the corporators ? If a mu- 
nicipal corporation bo capable of holding devises and legacies 
to charitable uses, as many municipal corporations are, does tho 
l^slature, under our forms of limited government, possess tho 
authority to seize upon those funds and appropriate them to otiier 
uses, at its own arbitrary pleasure, against tlie will of the donors 
and donees ? From the very nature of oar government, the 
public faith is pledged the other way, and that pledge constitutes 
a valid compact ; and that compact is subject only to judicial 
inquiry, construction, and abrogation."^ "The government has 
no power to revoke a grant, even of its own funds, when given to 
a private person or corporation for special uses. It cannot recall 
its own endowments, granted to any hospital or college, or 

> BUin/, J., in Dartmonth College t>. Woodward, 4 Wheat. 694, 695. 
[251] 



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•286 C0N8TITDTI0NAL LIMITATIONS. [CH. YIII. 

[• 237] city or town, for the use of such corporations. • The only 
autliority remaining to tiie government is judicial, to as- 
certain the validity of the grant, to enforce its proper uses, to sup- 
press frauds, and, if the uses are charitable, to secure their 
regular administration through the means of equitable tribunals, 
in cas^s where there would otherwise be a failure of justice." ^ 

"In respect to public corporations," Bays another judge, 
" which exist only for public purposes, such as towns, cities, &c., 
the legislature may, under proper limitations, change, modify, 
enlarge, or restrain them, securing, however, the property for the 
use of tliose for whom and at whose expense it was purchased." ^ 
These views had been acted upon by the same court in preceding 
cases.^ They draw a distinction between the political rigltts aud 
privileges conferred on corporations, and which are not vested 
rights in any sense implying constitutional permanency, aud 
such rights in property as tlie corporation acquires, aud whicli 
are protected by the same reasons which shield similar rights 
in individuals.^ 

When the municipal divisions of the territory of the State are 
changed in their boundaries, two or more consolidated in one, or 
one subdivided, it is conceded that the legislature possesses the 
power to uxttka such disposition of the corporate property as nat- 
ural equity would require in view of the altered eondition of 
things. The fact that a portion of the citizens, before entitled to 

' Stori/, J., in Dartmouth College e. Woodward, 1 Wheat. 698. 

• Washington, J., Dartmouth College o. Woodward, 4 Wheat. 663. 

' Terrett e. Taylor, 9 Cranch, 43 ; Town oT Pawlet o. Clark, t6. 292. See 
alio State v. Haben, 22 Wis. 660, in which it iras held that iiione}-8 raised by a 
citf for the erection of a school building coald uot conatitutJonally be devoted by 
the legielatare to tite conatruction of a State Normal (chool building eren at the 
same place. 

* " Itia an Dnsoand and even absurd proposition that political power conferred 
hy tite legislature can become a vested right, ai arjaimt the government, in any 
individual or body of men. It is repugnant to the genius of our institutiooa, 
and the aptiit Uid meaning of the Constitution ; for by that fundamental law, all 
political rights not there defined and taken out of the exercise of legislative dis- 
cretion were int«nded to be left subject to its regulation. If corporations can set 
up a vested right as against the government to the exercise of this species of 
power, because it has been conferred upon them by the bounty of the legislature, 
BO may any and every officer under tbe government do tbe same." NeUon, J., in 
Peopleo. Morris, 13 Wend. 331. And see Bristol p. New Chester, 3 N. H. 532 ; 
Bensou v. Mayor, &c., ofNew York, 10 Barb. 344. 

[ 262 ] 



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CH. Vni.] THE GB4DES OF MDNiaPAL GOVERNMENT. * 237 

tlie beuefita springing from the nee of Bpecilic property for public 
-purposes, wilt nov be deprived of that benefit, cannot affect the 
validity of the legislative act, which is siipposed in some other 
way to compensate them for the incidental loss.' And 
in many * other cases the legislature exercises a similar [' 238] 
power of control in respect to the corporate property, 
and may direct its partition and appropriation, in order to ac- 
commodate most justly and effectually in view of new circum- 
stances the purposes for which it was acquired. 

The rule upon the subject we take to be this : when corporate 
powers are conferred, there is an implied compact between the 
State and the corporators that the property which they are 
given the capacity to acquire for corporate purposes under their 
charter shall not bo taken from them and appropriated to 
other usea.^ If the State grants property to the corporation, 
the grant is an executed contract, which cannot be revoked. 
The rights acquired, either by such grants or by any other 
legitimate mode in which such a corporation can acquire prop- 
erty, are vested rights, and cannot l>e taken away. Neverthe- 
less if the corporate powers should i}e repealed, the corporate 
ownership would necessarily cease, and even when not repealed, 
a modification of those powers, or a change in corporate bounds, 
might seriously affect, if not altogtjther divest, the rights of 
individual corporators, so far as they can be said to have any 
righto in public property. And in other ways, incidentally as 
well as by direct intervention, the State may exercise authority 
and control over the disposition and use of corporate property, 
according to the legislative view of wliat is proper for tlie pub- 
lic interest and just to tlie corporators, subject only — as we 
think — to this restriction, that the purpose for wliich the prop- 
erty was originally acquired should be kept in view, bo far as 
the circumstances will admit, in any appropriation tliat may be 
made of it." 

■ BriBlol D. New Cheater, S N. H. 6S3. And aee ante, 282-234, notes. 
' If land is dedicated u a public sqnare, and accepted as Buch, a law deToting 
it to other oiet ii void, becauie TioUting the obligition or contracts. Warren 
V. hjoB* Citj, 22 Iowa, SSI. A* there was no attempt in that case to appro- 
priate the land lo such other naes under the right of eminent domuo, the qoea- 
tion of the power to do so was not considered. 

* ■ ■ That the State ntsj make a contract with, or a grant to, a public mnntcipal 
corporation, which it could not snbBeqaentlyiinpuror.resame, is not denied; but 

[ 258 ] 



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• 289 00N9TITDTI0NAL LIMITATIONS. [CH. Tin. 

[* 239] * This restricHon is not the lesa applicable where corpo- 
rate powers are aboliBhed than it is in other cases ; and 
wiiatever might be the nature of the public property which the cor- 
poration liad acquired, and whatever tlie purpose of the acquisition, 
the legislature, when by taking away the corporate authority it 
became vested with the control of the property, would be under 
obligation to dispose of it in such manner as to give the original 
corporators the benefit thereof, by putting it to the use designed, if 
still practicable, or to some kindred or equally beneficial use having 
reference to the altered condition of things. The obligation is one 
which, from the very nature of the case, must rest for its enforce- 
ment in great measure upon tlie legislative good faith and sense of 

in Bucli s case the corporation is to be' regarded u a private company. A grant 
may fie made to i. public corporation for purposes of prirate advantage; and 
although Uie public may also derive a common benefit tberefrom, yet the corpora- 
tion standa on the same footing, as respects such grant, as would any body of per- 
BODS upon whom like privileges were conferred. Public or manicipal corporations, 
however, which exist only for public purposes, and poascaa no poivers except such 
as are bestowed upon them for public political purposes, are subject at all times to 
the control of the legislature, which may alter, modify, or abolish them at plcas- 
nre." TrambuU, J., in Richland County a. Lawrence County, 12 111. 8- " Pub- 
lic corporations are but parts of the machinery employed in carrying on iha 
afikirs of the State j and they are subject to be changed, modified, or destroyer), 
as the exigencies of the public may demand. The State may exercise a general 
superintendence and control over them and tbeir rights and effcL'ts, so that tlicjr 
property is not diverted from the nses and objects for which it was given or pur- 
chased." Trustees of Schools p. Tatman, 13 111. 30, per Treat, Ch. J, And see 
Harrison v. Bridgeton, 16 Mass. 16 ; Montpelier c. East Montpelier, 27 Yt. 704 ; 
Same o. Some, 29 Yt. 19; Benson e. Mayor, £c., of New York, 10 Barb. 223. See 
also City of Louisville v. University, 15 B. Monr. 643. In State v. Sl Louis County 
Court, 34 Mo. 572, the following remarks are made by the court, in considering 
the cause shown by the county in answer to an applicadon to compel it to meet 
a requisition for the police board of St. Louis : " As to the second cause sboirn 
in the return, it is understood to mean, not that there is in fact no money in the 
treasury to pay this requisition, but that as a matter of law all the money which 
is in the treasury was collected for specific purposes from which it cannot be 
diverted. The specific purposes for which the money was collected were those 
heretofore directed by Uie legislature; and this act, being a later expression of the 
will of the legislature, controls [he subject, and se far as it conflicts with previous 
acts, repeals them. The county is not a private corporation, but an agency of 
the State government; and though as apubliccorporation it holds property, such 
holding is subject to a large extent to the will of the legislature. Whilst the 
legislature cannot take away from a county its property, it has full power to 
direct the mode in which the property shall be used for the benefit of the 
county." 

[264] 



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CH. Tin.] TBE 0RADB3 OF MDNICIPAL GOTEBIfHENT. * 289 

justice ; and it could only be in those caaee where there had been a 
clear disregard of the rights of tlie original corporators, in the use 
attempted to be made of the property, that relief coiild be had 
through judicial action. 

No such restriction, hoverer, can rest upon the legislature in 
regard to the rights and privileges which the State grants to mu- 
nicipal corporations in the uature of franchises, and which are 
granted only as aids or convenieuces to the municipality in efiect- 
ing the purposes of its incorporation. These, like the corporate 
powers, must be understood to be granted during pleasure.' 

* Townt and CouiUiea. [* 240] 

Thus . far we have been considering general rules, applicable 
to all classes of municipal organizations possessed of corporate 
powers, and by which these powers may be measured, or the 
duties which they impose defined. In regard to some of these 
ot^lianizations, however, there are other and peculiar rules which 
require separate mention. Some of them are so feebly endowed 
with corporate life, and so much hampered, controlled, and directed 
in the exercise of the functions which are conferred upon them, 
that tliey are sometimes spoken of as nondescript in character, and 
as occupying a position somewhere between that of a corporation 
and a mere voluntary association of citizens. Counties, townships, 
school districts, and road districts do not usually possess corporate 
powers under special charters ; but they exist under general laws 
of the State, which apportion the territory of the Stat« into 

> East Hkrtfonl v. Hartford Bridge Co. 10 How. 685. Od this subject, aee 
c. 9, pott. Tbe cue ofTTuatees of Aberdeen Academy v. Mayor, &c., of Aber- 
deen, 13 S. & M. 646, appears to be contra. Bj the charter of the tovru of 
Aberdeen in 1637, tbe legialatiire granted to it tbe sole power to grant license! 
to hII vioous and apiritooua liquors within the corporate limits thereof, and to 
appropriate tbe money arising tberefrom to city purposes. In 1848 an act wai 
paaaed giving these moneys to the Aberdeen Female Academy. The act was 
held Toid, on tbe ground that the original grant was of a franchise which consti- 
tuted property, and it could not be transferred to another, though it might be 
repealed. Tbe case cites Bailey v. Mayor, Ac 3 Hill, 641, and St. Louis v. Rus- 
aell, 9 Mo. 607, which seem to have little relevancy. Also, i Wheat. 663, 698, 
699 ; and 2 Kent, 305, note, for tbe general rule protecting municipal corpora- 
tions in their vested rights to property. The case of Benson e. Mayor, Ac, of 
New York, 10 Barb. 23S, also holds tbe grant of a ferry franchise tea municipal 
corporation to be irrevocable. 

[265] 



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* 240 coNSTmmoNAL limitations. [ch. Tin. 

political divisions for convenieDoe of government, and require of 
the people residing vitliin tliose diviaions the performance of cer- 
tain public duties as a part of the machiuery of the State ; and, in 
order that they may be able to perform these duties, Test them vith 
certain corporate powers. Whether they shall assume those duties 
or exercise those powers, the people of the political divisions are 
not allowed the privil^e of choice ; the legislature assumes this 
division of the State to be essential in republican goTorninent, and 
the duties are imposed as a part of the proper and necessary burden 
which the citizens must bear in maintaining and perpetuating 
constitutional liberty. Their functions, therefore, are wholly of a 
public nature, and there ia no room to imply any contract between 
them and the State, in their organization as corporate bodies, ex- 
cept that which springs from the ordinary rules of good faith, and 
which requires that the property they shall acquire by local taxation 

or otherwise, for the purposes of their organization, shall 
[* 241] not be seized by the State, and appropriated * in other 

ways. They are, therefore, sometimes called quasi corpo- 
rations,^ to distinguish them from the corporations in general, 
which possess more completely the functiouB of an artificial entity. 
Chief Justice Parker, of MaAsachusetts, in speaking of school 
districts, has said : " That they are not bodies politic and corporate, 
with the general powers of corporations, must be admitted ; and 
the reasoning advanced to show their defect of power is com^lusive. 
Tlie same may be said of towns and other municipal societies ; 
which, although recognized by various statutes, and by immemo- 
rial usage, as persons or aggregate corporations, with precise duties 
which may bo enforced, and privileges which may he maintained 
by suits at law, yet are deficient in many of the powers incident to 
the general character of corporations. They may be considered, 
under our institutions, as quasi corporations, with limited powers 
co-extensive with the duties imposed upon them by statute or us^e, 
but restrained from the general use of authority which belongs to 
these metaphysical persons by the common law. The same may 
be said of all the numerous corporations which have been from time 
to time created by Tarious acts of the legislature ; all of them en- 

■ Riddle c. Froprietora, &c. 7 Mus. 186, 187 ; School Diatrict v. Wood, 13 
Mass. 192; Adung v. Wiscasaet Bank, 1 Greenl. S61 ; Denton v. Jsckson, 2 
Johns. Cb. S25; Beardsley c. Smith, 16 Conn. 867; Eastman o. Meredith, S6 
N. H. 296 ; Hopple v. Brown, 18 Ohio, n. a. 911. 
[256] 



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Ca. Tm.] THE QBADBS OF HUNICIPAL OOVBBNHENT. * 241 

joying the power which is expressly bestowod upon them, and 
perhaps, in all instances where the act is silent, poaseasing, by 
necessary implication, the authority which is requisite to execute 
tJio purposes of their creation." " It will not do to apply the strict 
principles of law respecting corporations in all cases to these 
aggregate bodies which are created by statute in this Common- 
wealth. By the several statutes which have been passed respecting 
school districts, it is manifest that the legislature has supposed 
that a diTision of towns, for the purpose of maintaining schools, will 
promote the important object of general education ; and this valua^ 
ble object of legislative care seems to require, in construing their 
acts, that a liberal view should be had to the end to be effected. " ^ 
Following out this view, the courts of the New England States have 
held, that when judgments are recovered against towns, parishes, 
and school districts, any of the property of private owners 
within * the municipal division is liable to be taken for [* 242] 
their discharge. The reasons for this doctrine, and the 
custom upon which it is founded, are thus stated by the Supremo 
Court of Connecticut : — 

" We know that the relation in which the members of munic- 
ipal corporations in this State have been supposed to stand, in 
respect to tlie corporatiou itself, as well as to its creditors, has 
elsewhere been considered in some respects peculiar. We have 
treated* them, for some purposes, as parties to corporate proceed- 
ings, and their individuality has not been considered as merged in 
their corporate connection. Though corporators, they have been 
holden to be parties to suits by or against the corporation, and 
individually liable for its debts. Heretofore this has not been 
doubted as to the inhabitants of towns, located ecclesiastical 
societies, and school districts. 

" From a recurrence to a history of the law on this subject, we 
are persuaded that the principle and usage here recognized and 
followed, in regard to the liability of the inhabitants of towns and 
communities, were very early adopted by our ancestors. And 
whether they were considered as a part of the common law of 
England, or ori^nated here, as necessary to our state of society, 
it is not very material to inquire. We think, however, that the 
principle is not of domestic origin, but to some extent was 
operative and applied in the mother country, especially in cases 
> Scbool DiBtrict v. Wood, 13 Mm>. 192. 

17 [ 257 ] 



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* 242 coNsnTnnoirAL lihitatioms. [ch. toi. 

where a statute fixed a liabilitj upon a municipality vhich bad 
no corporate funds. The some reason and necessity for the appli- 
cation of such a principle and practice existed in both countries. 
Such corporations are of a public and political character ; they 
exercise a portion of the gororning power of the State. Statutes 
impose upon them important public duties. In the performance 
of these, they must contract debts and liabilities, which can only 
be discharged by a resort to individuals, either by taxation or 
execution. Taxation, in moat cases, can only be the result of the 
voluntary action of tlie corporation, dependent upon the con- 
tingent will of the majority of the corporators, and upon tlieir 
tardy and uncertain action. It affords no security to creditors, 
because they have no power over it. Sucli reasons as these prob- 
ably operated witli our ancestors in adopting the more efficient 
and certain remedy by execution, vhich has been resorted to in 
the present case, and which they had seen to some extent in oper- 
ation in the country whose laws were their inheritance. 
[* 243] * " The plaintiff would apply to these municipal or 
juost corporations the close principles applicable to private 
corporations. But inasmuch as they are not, strictly speaking, 
corporations, but only municipal bodies, without pecuniary funds, 
it will not do to apply to them literally, and in all cases, the law of 
corporations.' 

" The individual liability of the members of quasi oorpolntions, 
though not expressly adjudged, was very distinctly recognized in 
the case of Russell v. The Men of Devou.^ It was alluded to as a 
known principle in the case of the Attorney-General v. The Oity of 
Exeter,^ applicable as well to cities as to hundreds and parishea. 
That the rated inhabitants of an English parish are considered as 
the real parties to suits against the parish is now supposed to be 
well settled ; and so it was decided in the case of The King v. The 
Inhabitants of Woburn,* and The King v. The Inhabitants of Hard- 
wick." And in support of this principle, reference was made to 
the form of the proceedings ; as that they are entitled ' against the 
inhabitants,' &a. 

" In the State of Massachusetts, from whose early institutions 
we have borrowed many valuable specimens, the individual re> 

' School District v. Wood, 13 Mass. 192. * 2 Term Eep. 660. 

* 2 Rau. 45. • 10 But, 395. ■ 11 Eut, 57T. 

[ 258 ] 



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CH. Tm.] THE ORADBS OF BTUNIOIPAL OOTERNHENT. * 243 

spousibility of tbe inhabitants of towns for town debts has long 
been established. Distinguished counsel in the case of tbe Mer- 
chants Bank v. Cook,' referring to municipal bodtea, say : ' For a 
century past the practical construction of tbe bar has been that, in 
an action by or against a corporation, a member of the corpo- 
ration is a party in the suit.' In several other cases in that State 
the same principle is repeated. In tbe case of Kiddle v. The Pro- 
prietors of the Locks and Oanele on Merrimack River,^ Pardons, 
Ch. J., in an allusion to this private responsibility of corporators, 
remarks : ' And the sound reason is, that having no corporate 
fund, and no legal means of obtaining one, each corporator is 
liable to satisfy any judgment obtained against the corporation.' 
So in Brewer v. Inhabitants of New Gloucester,' the court say : 
' As the law provides that, when judgment is recovered against the 
inhabitants of a town, execution may be levied upon the property 
of any inhabitant, each inhabitant must be considered as a party.' 
In the case before referred to of the Merchants Bank v. 
Cook, * Parker, Ch. J., expresses the opinion of the court [* 244] 
upon this point thus : ' Towns, parishes, precincts, &c., 
are but a collection of individuals, with certain corporate powers 
for political and civil purposes, without any corporate fund, from 
which a judgment can be satisfied ; but each member of the com- 
munity is liable, in his person and estate, to the execution which 
may itfsne against the body ; each individual, therefore, may be 
well thought to be a party to a suit brought against them by their 
collective name. In regard to banks, turnpikes, and other corpo- 
rations, the case is different.' The counsel concerned in the case 
of Mower i>. Leicester,^ without contradiction, speak of this prac- 
tice of subjecting individuals as one of daily occurrence. The law 
on this subject was very much considered in the case of Chase v. 
The Merrimack Bank,^ and was applied and enforced against the 
members of a territorial parish. ' The question is,' say the court, 
' whetlier, ou an execution against a town or parish, the body or 
estate of any inhabitant may be lawfully taken to satisfy it. Tliis 
question seems to have been settled in the affirmative by a series 
of decisions, and ought no longer to be considered as an open 
question.' The State of Maine, when separated from Massachu- 
aetts, retained most of its laws and usages, as they had been 

' 4 Rok. 405. » 7 Mmb. 187. ' 14 Maaa. 216. 

• 9 MuB. 247. • 19 Pick. 664. 

[259] 



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• 244 CONSTITDTIONAL LtMITATIONB. [CH. TIU. 

recognized ia the parent State ; and, among others, the one in 
question. In Adams v. Wiscasset Bank,' Metlen, Ch. J., says: 
< It is veil known that all judgments against q&asi corporadons 
may be satisfied out of the property of any individual iubabitant.' 

" The courts of this State, from a time beyond the memory of 
any living lawyer, have sanctioned and carried out this usage, as 
one of common-law obligation ; and it lias been applied, not to 
towns only, but also, by legal analogy, to territorial ecclesiastical 
societies and school districts. The forms of our process against 
these communities have always corresponded with this view of the 
law. The writs have issued against the inhabitajUt of towns, 
societies, and districts a> parties. As early in the history of our 
jurisprudence as 1805, a statute was enacted authorizing com- 
munities, such as towns, societies, &c., to prosecute and defend 
suits, and for this purpose to appear, either by themielvei, ^ents, 
or attorneys. If the inhabitants were not then considered as 
parties individually, and liable to the consequences of judgments 
E^inst such communities as parties, there would have 
[* 245] been a glaring " impropriety in permitting them to appear 
and defend by themselves ; but if parties, such a right was 
necessary and indispensable. Of course this privilege has been 
and may be exercised.* 

" Our statute providing for the collection of taxes enacts that 
the treasurer of the State shall direct his warrant to tlie col- 
lectors of the State tax in the several towns. If neither this 
nor the further proceedings against the collectors and the select- 
men authorized by the statute shall enforce the collection of 
the tax, tlie law directs that then the treasurer shall issue his 
execution against the inhabitants of such town. Such an exe- 
cution may be levied upou the estate of the iuhabitants ; and this 
provision of the law was not considered as introducing a new 
principle, or enforcing a novel remedy, but as being only in 
conformity with the well-known us^e in other cases. The levy 
of an execution under this statute produced the case of Beers 
V, Botsford.8 There the execution, which had been issued 
against the town of Newtown by the treasurer of tlie State, had 
been levied upon the property of tlie plaintiff, an inhabitant of 
that town, and he had thus been compelled to pay the balance 

> 1 Greenl. 861. • 1 Swia's SyMom, 227. » 3 Day. 169. 

[260] 



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CH. Tm.] THE 0BADE3 OF ICDNICIPAL QOTERNUENT. * 245 

of a State tax due from the town. He sued the town of New- 
town for the recovery of the moae; so paid hy him. The most 
distiogutshed professional gentlemen in the State were engaged 
as counsel in that case ; and it did not occur, either to them 
or to the court, that the plaintiff's property had been taken 
without right : on the contrary, the case proceeded throughout 
on the conceded principle of our common lav, that the levy 
was properly made upon the estate of the pluntiff. And with- 
out tliia the plaintiff could not have recovered of the town, hut 
must have resori^ed to his action against the officer for his ille- 
gal and void levy. In Fuller v. Hampton,' Petert, J., remarked 
that, if costs are recovered against a town, the writ of execu- 
tion to collect them must have heen issued against the property 
of the inhabitants of the town ; and this is the invariable prac- 
tice. The case of Atwater v. Woodbridge' also grew out of this 
ancient usage. The ecclesiastical society of Bethauy had been 
taxed by the town of Woodbridge for its moneys at interest, 
and the warrant for the collection of the tax had been levied 
upon the property of the plaintiff, and the tax had thus been col- 
lected of him, who was an inhabitant of tlie located society 
of Bethany. Brainerdf J., w]\o drew up the 'opinion of [*246] 
the court, referring to this proceeding, said : ' This prac- 
tice, with regard to towns, has prevailed in New England, so 
far as I have been able to investigate the subject, from an early 
period, — from its first settlement, — a practice brought by our 
forefathers from England, which had there obtained in corpo- 
rations similar to the towns incorporated in New England.' 
It will here be seen that the principle is considered as applica- 
ble to territorial societies as to towns, because the object to be 
obtained was the same in both, — * that the town or society 
sbonld bo brought to a sense of duty, and make provision for 
payment and indemnity ' j a very good reason, and very appli- 
cable to the case we are considering. 

"The law on this subject was more distinctiy brought oat 
and considered by this court in the late case of McGloud v. 
Selby," in which this well-known practice, as it had been ap- 
plied to towns and ecclesiastical societies, was extended and 
sanctioned as to school districts ; ' else It would be breaking in 
upon the analogies of the law.' * They are communities for 
' 6 Conn. 417. ' 6 Conn. 223. » 10 Conn. 39&-39a. 

[26X] 



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• 246 ' CONSTITUTIONAL LIMITATIONS. [CH. Tin. 

different purposes, but easeutially of the same character.' Aud 
no doubt can remain, since the decision of this case, but that 
the real principle, in all of the cases on this subject, has been, 
and is, that the iuhabitants of quasi corporations are parties 
iodividuall;, as well as in their corporate capacities, to all the 
actions in which the corporation is a party. Aud to the same 
effect is the language of tlie elementary writers." ^ 

So far as this rule rests upon tlie reason that these organiza- 
tions bare no common fund, and that no other mode exists 
by which demands against thesa can be enforced, it cannot 
be considered applicable in those States wliere express provision 
is made by law for compulsory taxation to satisfy any judgment 
recovered against the corporate body, — the duty of levying the 
tax being imposed upon some officer, who may be compelled by 
mandamus to perform it. Nor lias any usage, so far as we are 
aware, grown up in any of tlie newer States, like that 
[•247] which had so early an origin' in New England. 'More 
just, convenient, and inexpensive modes of enforcing 
Buc^ demands have been established by statute, and the rules 
concerning them are conformed more closely to those which are 
established for otlier corporations. 

On the other hand, it is settled that these corporations are not 
liable to a private action, at the suit of a party injured by a neglect 
of its officers to perform a corporate duty, unless such action is 
given by statute. This doctrine has been frequently applied where 
suits liave been brought against towns, or the liighway officers 
of towns, to recover for damages sustained in consequence of 
defects in the public ways. Tlie common law gives no such 
action, aud it is therefore not sustainable at ali, unless given 
by statute. A distinction is made between those corporations 
which are created as exceptions, and receive special grants of 
power for the peculiar convenience and benefit of the corpo- 
rators, on the one hand, and the incorporated inhabitants of a 
district, who are by statute invested with particular powers, without 

' Beardsle^ o. Smttb, 16 Conn. 875, dting 2 Kent, 231 ; Angell and Ames on 
Corp. S74; 1 Svift'a Dig. 73, 794; b Duie'a Abr. 158. Itwu held constitu- 
tional in this cue to extend the aame principle to incorporated dtiea ; and ui act 
of the legislature permitting the enforcement of city debts in the same mode waa 
•Dstaioed. For a more recent caae in Massadiaaetti than these cited, see Gaaldll 
v. Dudley 6 Met. 551. 
[262] 



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CH. Tin.] THE 0EADB8 OF MUKICIPAL QOVEENMBNT. • 247 

their consent, on the other. In the latter case, the State may im- 
pose corporate duties, and compel their performance, under 
penalties ; but the corporators, who are made such whether 
they will or no, cannot be considered in tlie light of persona 
who have voluntarily, and for a consideration, assumed obli- 
gations, so as to owe a duty to every person interested in the 
performance.^^ 

The reason which exempts these public bodies from liability 
to private actions, based upon neglect to perform public obli- 
gations, does not apply to villages, boroughs, and cities, 
which accept special •charters from the State. The [•248] 
grant of the corporate franchise, in these cases, is usually 
made only at the request of the citizens to be incorporated, and 
it is justly assumed that it confers what to ttiem is a valuable 
privilege. This privilege is a considferatiou for the duties which 
the charter imposes. Larger powers of self-government are given 
than are confided to towns or counties ; lai^r privileges in tiie 
acquisition and control of corporate property ; and special authority 
is conferred to make use of the public highways for the special and 
peculiar convenience of the citizens of the municipality in varioua 
modes not permissible elsewhere. The grant by the State to the 
municipality of a porUon of its sovereign powers, and theif accept- 
ance for these beneficial purposes, is regarded as raising an implied 
promise, on tlie part of the corporation, to perform the corporate 
duties ; and this implied contract, made with the sovereign power, 

■ Mower V. Leicester, 9 Mui. ^50 ; Bartlett v. Crozier, 17 Johns. 439 ; Par- 
num V. Concord, 2 N. H. 892; Adams t>. Wiacueet Bank, 1 Greenl. 861; 
Baiter o. Winooslri Turnpike, 22 Vt. 123; Chid«By v. Canton, 17 Conn. 476; 
Commisiioners of HighwaTi v. Martin, 4 Mich. 567 ; Morej v. Newlane, 8 Barb. 
«46; Lorillard D. Manrt>e, UN. 7.392; Galen o. Clyde and Hoae Plank Road 
Co. 27 Barb. 648 ; Reardon n. St. Louii, 36 Mo. 655 ; Slierbume t>. Yuba Co. 
21Ca]. 113; Stale n. County of Hudson, 1 Troom, 137. Tbeee cases follow the 
leading English case of Russell c. Men of Devon, 2 T. R. 667. la the very care- 
fully considered case of Eastman t). Meredith, 36 N. H. 284, it was decided, on 
the principle above stated, that if a building erected by a Iowa for a town-house is 
10 imperfectly uonstmcted that the flooring gives way at the annual town-meeting, 
and an inhabitant and legal voter, in attendance on the meeting, receives thereby 
a bodily injury, he cannot maintain an action against the town to recover 
damages for this injary. The case is carefully distinguished from those where 
corporations have been held liable for the n^ligent use of theEr own property 
by means of which others are injured. The familiar maxim that one shall so nse 
his own a» not to injure lltat which belongs to another is of general application. 

[268] 



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" 248 OONSTITUTIONAL LIMlfATIONS. [CH. mi. 

enures to tlie bene&t of every individual interested in its perform- 
ance.' In this respect these corporations are looked upon as occu- 
pjing the Bame position as private corporations, which, having 
accepted a valuable franchise, ou condition of the performance of 
certain public duties, are held to contract by the acceptance for 
the performance of these duties. In the case of public corpo- 
rations, however, tJie liability is contingent on the law affording 
the means of performing the duty, which, in some cases, by 
reason of restrictions upon the power of taxation, tliey might not 
possess. But assuming the corporation to be clothed with suffi- 
cient power by the charter to that end, the liability of a city or 

' Seldm, J., in Weet r. Brockport, 16 N. Y. 161, note. See abo Mayor of 
Lj-me r. Turner, Cowp. 86 ; Henley c. Lyme Regis, 6 Bing. 91 ; Same case in 
error, 3 B. .& Adol. 77, and 1 Bing. N. C. 222; Mayor, &c., of New York P. 
Furze, 3 Hill, 612 ; Rocheater Wbite Lead Co. r. Bocheater, 3 N. Y. 464 ; Hul> 
son V. Mayor, &c.. of New York, 9 N. Y. 163; Conrad v. Itliaca, 16 N. Y. 168; 
MillflD. Brooklyn, 82 N.Y. 489; Barton p. Syracuse. 36 N. Y. 54 ; Leeu. Sandy 
Hill, 40 N. Y. 4+2 ; Clark ». Washington, 12 Wheat. 40 ; Riddle v. Proprietoni 
of Locks, &c., 7 Mass. 183 ; Bigelow e. Inhsbitanta oT Randolph, 14 Gray, 541 ; 
Mears v. Ooiamissi oners of Wilmington, 9 Ired. 73; Browning v. Springfield, 
17 111. 143 i Pittsburg o. Grier, 22 Penn. St. 54 ; Jones d. New Haven, 34 Conn. 
1 ; StackhouBo v. I.*iayette, 26 Ind. 17 ; Brinkmeyer t. EvansviUe, 29 Ind. 187 ; 
Sawyer t. Corse. 17 Grat 241; Richmond v. Long, ib. 376; Blake o. St. 
Louis, 40 Mo. 669 ; Scott c. Mayor^ &c., of MancheBt«r. 37 Eng. L. & Eq. 495 ; 
Srooot V. Wetumpka, 24 Aln. 112 ; Detroit v. Corey, 9 Mich. 165 ; Ruach p. 
Davenport, 6 Iowa, 443; Oommissionen n. Duckett, 20 Md. 468; Wd^tman 
s. Washington, 1 Black. 41 ; Chicago v. Robbing, 2 Black. 418 ; Nebraska e. 
Campbell, ib. 590. lu the recent case of Detroit d. Blackeby, SO Mich., diis 
whole sabject is considered at lengtli ; and the conrt (one judge dissenting) deny 
the sonndness of the principle stated in the text, and hold that municipal corpo- 
rations existing under special charters are not liable to individuala for injuries 
caused by neglect to perform corporate duties, unless ezpresaly made so by 
statute. In Murtaugh v. St. Louis, 44 Mo. 480, Gurria-, J., says: "Ilie 
general result of the adjudications seems to be this; When the ofBcer or servant 
of a municipal corporation is in the exercise of a power conferred upon the 
corporation for its private benefit, and injury ensues irom the negligence or 
miafeasance of such officer or servant, the corporation is liable, as in the case of 
private corporations or parties ; bat when the acts or omissions complained of 
were done or omitted in the exercise of a corporate franchise conferred upon the 
corporation for the public good, and not for the private corporate advantage, 
then the corporation is not liable for the consequences of such acts or omissions." 
Citing Bailey v. New York, 8 Hill. 531 ; Martin c. Brooklyn, 1 Hill. 550 ; 
BJchmond v. Long's Adm'r, 17 GraL 375 ; Sherburne o. Yuba Co, 21 Oal. 113 ; 
Dargan v. Mobile, 31 Ala. 469 ; Stewart v. New Orleans, 9 La. Ad. 461 ; Frother 
v. Lexington, 13 B. Monr. 569. 
[264] 



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CH. vm.] THE 0B4DE8 OP MnNICIPAL G07BENMENT. • 248 

Tillage, Tested vith coDtrol of its streets, for any neglect to keep 
them iu repair, or for any improper construction, has been 
determined iu many caees.^ And a similar liability would exist 
in otiier cases where the same reasons would be applicable. 

• But if the ground of the action is the omiesion by the [• 249] 
corporation to repair a defect, it would seem tbat notice 
of the defect should be brought home to the corporation, or to 
officers charged with some duty respecting the streets, or that facts 
should appear sufficient to show that, by proper vigilance, it must 
hare been knovn.^ 

In regard to all those powers which aro conferred upon the 
corporation, not for the benedt of the general public, but of the 
corporators, — as to construct works to supply a city with water, or 
gas-works, or sewers, and the like, — the corporation is held to a 
Btill more strict liability, and is made to respond in damages to the 
parties injured by the negligent manner in which the work is 
constructed, or guarded, even though, under its charter, the agents 
for the construction are not chosen or controlled by the corpora- 
tion, and even where the work is required by law, be let to tlio 
lowest responsible bidder. 

In Bailey v. Mayor, &g., of New York,' an action was brought 

' Weet t>. Brockpon, 16 N. Y. 161, note; Hickok e. PlitMburg, ib. 168; 
Moray v. Newfane, 8 Barb. 645; Browning o. Springfield, IT lit. US; Hjatt ». 
Eondout, 44 Barb. 885 ; Lloyd p. Mayor, &c., of New York, 6 N. Y. 369 ; 
Rusch p. Uavenport, 6 Iowa, 443. The cages of Weet t>. Brotkport, and Hickok 
V. Platttburg, were criticised by Mr. Justice Marvin, in the cue of Peck v. 
Batavia, 32 Barb. 634, where, as well as in Cole v. Medina, 27 Barb. 218, he 
held tbat a village merely aulkorited to make and repair sidewalks, but not in 
terms absolutely and imperatively required to do so, had a discretion conferred 
npon it in respect lo snch walks, and was not responsible for a refusal to enact 
ordinances or by-laws in relation thereto ; nor, if it enacted such ordinances or 
by-laws, waa it liable for damages arising from a neglect to enforce them. The 
doctrine that a power thus conferred is discretionary does not seem consistent 
with tbe ruling in some of the other cases cited, and is criticised in Hyatt v. 
Rondout, 44 Barb. 392. Calling public meetings for political or philantbropic 
purposes is no part of Ae business of a municipal corporation, and it is not liable 
to one who, in lawfully passing by where the meeting is held, is injured by the 
discharge of a cannon fired 1^ persons concenied in the meeting. Boylaod t>. 
Mayor, &c., of New York, 1 Sandf. 27. 

' Hart V. Brooklyn, 86 Barb. 226 ; Dewey v. City of Detroit, 16 Miuh. 309 ; 
Garrison v. New York, 5 Bosw. 497 ; McGinity v. Mayor, Ac, of New York, 6 
Duer, 674. 

> B Hill, fiSl ; 2 Denio, 483. 

[265] 



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• 249 CONSTITDTIOHAL LIMITATIONS. [CH. YIII. 

against the city by one who had baeu injured in his property by the 
careless constrtictioii of the Grotoii dam for the purpose of supply- 
iug the city witli water. The work was constructed under the 
control of water commissiouers, in whose appointment the city had 
no voice ; and upoD this ground, among others, and also on tho 
ground that the city officers were acting in a public capacity, and, 
like other public ^enta, not responsible for the misconduct 
[• 250] of " those oeceesarily appointed by them, it was insisted 
the city could not be held liable. Nelson, Ch. J., examin- 
ing the position that, " admitting the water commissioners to be 
the appointed agents of tlie defendants, still tlie latter are not 
liable, inasmuch as they were acting solely for the State in 
prosecuting the work in question, and therefore are not responsible 
for the conduct of those necessarily employed by them for that 
purpose," says : " We admit, if the defendants are to be regarded as 
occupying tliis relation, and are not chargeable with any want of 
diligence in the selection of agents, the .conclusion contended for 
would seem to follow. They would then be entitled to all the im- 
munities of public officers charged with a duty which, from its 
nature, could not be executed, without availing themselves of the 
services of others ; and the doctrine of respondeat mperior does not 
apply to such cases. If a public officer autliorize the doing of an 
act not within tlie scope of his authority, or if he bo guilty of 
negligence in the discharge of duties to be performed by himself, 
he will be held responsible ; but not for the misconduct or 
malfeasance of such persons as he is obliged to employ. But tliis 
view cannot be maintained on the facts before us. The powers 
conferred by the several acts of the legislature, authorizing the 
execution of this great work, are not, strictly and legally speaking, 
conferred for tho benefit of the public; the grant is a special, 
private &ancliise, made as well for the private emolument and ad- 
vantage of the city as for public good. The State, in its sovereign 
character, has no iuterest in it. It owns no part of the work. Tho 
whole investment, under the law, and the revenue and proGta to be 
derived therefrom, are a part of the private property of the city, as 
much so as the lands and bouses belonging to it situate within its 
corporate limits. 

" The argument of the defendants' counsel confounds the powers 
in question with those belonging to the defendants in their 
character as a municipal or public body, — such as are granted ex- 
[266] 



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CH. TIU.] THE ORADES OF MUNICIPAL OOTEBNHENT. * 250 

clueiTelf for public purpoaee to counties, citieB, tovna, and villages, 
where the corporations have, if I may so speak:, no private estate or 
interest in the grant. 

** As the powers in question havo been conferred upon one of 
these public corporations, tlins blending, in a measure, those con- 
ferred for private advantage and emolument with those already 
possessed for public purposes, there is some difficulty, I 
'admit, in separating tliem in the miud, and properly dis- [*251] 
tinguishing tlie one class from the other, so as to distribute 
the responsibility attaching to the exercise of each. 

'* But the distinction is quite clear and well setfled, and the pro- 
cess of separatiou practicable. To this end, regard should be had, 
not BO much to the nature and character of the Tarious powers con- 
ferred, as to the object and purpose of the legislature in conferring 
them, If granted for public purposes exclusively, they belong 
to the corporate body in its public, political, or municipal character. 
But if the grant was for purposes of private advantage and emolu- 
ment, though the public may derive a common benefit therefrom, the 
corporation qw> ad hoc is to be regarded as a private company. It 
stands on tiie same footing as would any individual or body of 
persons upon whom the like special franchises had beau con- 
ferred.^ 

" Suppose the legislature, instead of the franchise in question, 
had couferred upon the defendants banking powers, or a charter 
for a railroad leading into the city, in the usual manner in wliich 
suoh powers are conferred upon private companies, could it be 
doubted that they would hold them iu the same character, and be 
subject to the same duties and liabilities ? It cannot be doubted but 
they would. These powers, iu the eye of the law, would bo entire- 
ly distinct and separate from those appertaining to the defendants 
as a municipal body. 3o far as related to the cliarter thus con- 
ferred, they would be regarded as a private company, and be 
subject to the responsibilities attaching to that class of institutions. 
The distinction is well stated by tlie Master of tlie Rolls, in 
Moodalay v. East India Co.,^ in answer to an objection made by 

■ DartmoDtb College o. Woodward, 4 Wlieat. 668, 673; PhiUips n. Bury, 1 
Ld. RAym. 8 ; 2 T. R. 352, s. c. ; Allen c. McEeen, 1 SDmn. 297 ; People t>. 
Morris. 13 Wend. 331-338 ; 2 Kent's Com. 276 (4th ed.) ; United States Bank 
r. PUntera Bank, 9 Wheat. 907 j aark o. Corp. of WaehingtOQ, 12 it. 40; 
Moodalay v. Eait India Co. 1 Btt)wn'« Ch. R. 469. 

' 1 Brown'a Ch. R. 469. 

[267] 



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• 251 OOMSTITDTIONAL LlUITATrONB. [CH. Vm. 

counsel. There the pluntiff had takeu a lease from the company, 
granting him permission to supply the inhabitants of Madras with 
tobacco for ten years. Before the expiration of tliat period, the com- 
pany dispossessed him, and granted the privilege to another. The 
plaintiff, preparatory to bringing an action against the com- 
[* 252] pany, filed a bill of discovery. One of the objections * taken 
by the defendant was, that the i-emoval of the plaintiff 
was incident to tlieir character as a sovereign power, the 
exercise of which could not be questioned in a bill or suit at law. 
Tlie Master of the Bolls admitted that no suit would He against a 
sovereign power for any thing done in that capacity ; but he denied 
that the defendants came within the rule. ' They have rights,' he 
observed, ' as a sovereign power ; they have also duties as individ- 
uals ; if they enter into bonds in India, the sums secured may be 
recovered here. So in tliis case, as a private company, tliey have 
entered into a private contract, to whicli they must be liable.' It is 
upon the like distinction that municipal corporations, in their 
private character as owners and occupiers of lands and houses, are 
regarded in the same light as individual owners and occupiers, and 
dealt with accordingly. As such, tliey are bound to repair bridges, 
highways, and churches; are liable to poor-rates; and, in a 
word, to the discharge of any other duty or obligation to which an 
individual owner would be subject." ' 

In Stoors v. City of Utica,^ it was held that a city, owing to the 
public the duty of keeping its streets in a safe condiUon for travel, 
was liable to persons receiviug injury from the neglect to keep 
proper lights and guards at niglit arouud an excavation which 
had been made for the construction of a sewer, notwithstanding it 

' 2 Inst. 709 ; Thunfield n. Jones, Sir T. Jones, 1S7 ; Bex v. G&rdner, Cavrp. 
79 ; Mayor of Lytae v. Turner, ifr. 87 ; Henley v. Mayor of Lyme, S Bing. 91 ; 
1 Biug. N. C. 222, s. c. in House of Lords. See also Lloyd v. Mayor, Ac, of 
New York, 5 N. Y. 369[ CommiaioDars e. Duckett, 20 Md. 468. " The cor- 
poration of the city of New York poaseasea two kinds of powers, — one goTern- 
mental and public, and, to the aitent tley are held and exercised, is clothed with 
sovereignty ; the other private, and, to the extent they are held and exercised, 
is a legal individual. The former are given and used for publiu purposes, the 
latter for private purposes. While in the exercise of the former, the corporation 
is a municipal govemmeot, and while in the exercise of the latter is a corporate, 
legal individuaL" Ibid, per Foot, J. See upon this point also. Western Fund 
Savings Society v. Philadelphia, 31 Fenn. St. XTo ; Louisville v. Commonwealth, 
1 Duvall. 295. 

» 17 N. Y. lOt. 
[268] 



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CB. Tni.] THE GRADES OF MUNICIPAL QOTEBKUENT. * 252 

had cootracted for all proper precautiotie with the persons execut- 
ing the work. And in the City of Detroit v. Corey ' the corpo- 
rfttion was held liable in a similar case, notwithstauding tbe work 
was required by the charter to be let to the lowest bidder. Man- 
nitiff, J., in speaking to the point whether the contractors were, to 
be considered as the agents of the city, so that the maxim rewpon- 
deat wperior should apply, says : " It is ^ be observed 
that the * power under which they acted, and which made [* 263] 
that lawful which would otherwise have been unlawful, 
was not a power giren to the city for governmental purposes, or a 
public municipal duty imposed on tlie city, as to keep its streets 
in repur, or the like, but a special legislative grant to the city for 
private purposes. The sewers of the city, like its works fqr sup- 
plying the city with water, are the private property of the city ; 
they belong to the city. The corporation and its corporators, the 
citizens, are alone interested in them ; the outside public or people 
of the State at large have no interest in them, as they have in the 
streets of the city, which are public highways. 

*' The donee of sach a power, whether the donee be an indi- 
vidual or a corporation, takes it with the understanding — for such 
are the requirements of the law in tlie execution of the power — 
that it shall be so executed as not unnecessarily to interfere with 
the rights of the public, and that all needful and proper measures 
will be taken, iu the execution of it, to guard against accidents to 
persons lawfully using the highway at the time. He is individ- 
ually bound for the performance of these obligations ; he cannot 
accept the power divested of them, or rid himself of their perform- 
ance by executing them through a third person as his agent. 
He may stipulate with the contractor for their performance, as 
was done by tlie city in the present case, but he cannot thereby 
relieve himself of his personal liability, or compel an injured 
party to look to his agenf, instead of himself, for damages." 
And in answer to the objection that the contract was let to the 
lowest bidder, as the law required, it is shown that the provision 
of law to that effect was introduced for the benefit of the city, to 
protect it against frauds, and that it should not, therefore, relieve 
it from any liability.^ 

< 9 Mich. 16^. 

■ See aUo Rochester White Lead Co. e. City of Rocheiter, 3 HT. Y. 468; 
GntDt t. City of Brooklyo, 11 Barb. SSI ; City of Buffalo v. Holloway, U Barb. 

[269] 



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• 264 CONBTITDTrONAL LIMITATIONS. [CH. YHI. 

[* 254] * We have not deemed it important, in considering the 
subject embraced within this chapter, to diacitss the vari- 
ous questions which might be suggested in regard to the val- 
idity of the proceedings by which it is assumed in any case that a 
municipal corporation baa become constituted. These questions 
are generally questioos between the corporators and the State, 
with which private individuals are regarded as having no concern. 
In proceedings where the question whether a corporation exists or 
not arises collaterally, the courts will not permit its corporate 
character to be questioned, if it appear to be acting under color of 
law, aud recognised by the State as such. Such a question should 
be raised by the State itself, by quo warranto or other direct pro- 
ceediug.i And the rule, we apprehend, would be no diiTerent, if 
the constitution itself prescribed tlie manner of incorporation. 
Even in such a case, proof that the corporation was acting as 
such, under legislative action, would be sufficient evidence of 
right, except as against the State ; and private parties could not 
enter upon any question of regularity. And the State itself may 

101, and 7 N. Y. 493 ; Lloyd v. Maj-or, Ac, of New York, 6 N. Y. 369 ; Del- 
monii^o c. Mayor, &c, of Ne<r York, 1 Sandf. 223; Barton v. Syrauuae. 37 
Barb. 292. For further illustration of the rule* of liability to which munidpal 
corporations are subject for the oegligeat dischai^ of corporate duties, or the 
improper construction of corporAte works, gee Wallace v. Muscatine, 1 Greene 
(Iowa), 373 ; Creal e. Keokuk, ib. 47 ; Cotes n. Davenport, 9 Iowa, 227 ; Mayor 
V. Sheffield, 4 Wal. 189 ; Child t. Boston, 4 Alleu, 41 ; W»lcott v. Swiimpscolt. 
1 Allen, 101 ; Buttrick r. Lowell, ib. ITi ; Munn o. Pittsburgh, 40 Penn. St. 364 ; 
Pekin v. Newell, 26 III. 320 ; Weighcman v. Washington. 1 Black, 39 ; KaTa- 
naugh V. Brooklyn, 38 B&rb. 232; Wendell v. Troy, 39 Barb. 329; Milla e. 
Brooklyn, 32 N.Y. 489; Stein «. Burden, 24 Ala. 130; Cily of Providence c. 
Clapp', 17 How. 161 ; Champaign t>. Patterson, 50 Hi. 62 ; Ross v. Madison, 
llnd. 281; Mayor, &c.,ofNBw York o. Bailey, 2 Denio, 433; Kochester White 
Lead Co. p. Rochester. 3 N. Y. 463 ; Wheeler o. City of Worcester, 10 Allen, 
591 ; Bumham p. Boston, ib. 390 ; Boom e. City of Utica, 2 Barb. 104 ; Martin 
t>. Mayor, Ac, of Brooklyn, 1 Hill, 54.^; MowpU v. Buffalo, 15 N.Y. 612; 
Lacourp. Mayor, Ac, of New York, 3 Duer, 40G; Pittsburgh c.Grier, 22 Penn, 
St. 64 ; Erie City v. Scbwingle, ib. 384. A rauniiipal corporation is not liable 
for neglect to devise and construct a proper system of drainage. Carr c. North- 
ern Liherties, 35 Penn. St. 324. 

' State V. Carr, 5 N. H. 367 ; President, &c., of MendoU v. Thompson, 20 
HI. 200; Hamilton r. President. &c., of Carthage, 24 III. 22. .These were 
proeecutiona by municipal corporations for recovery of penalties imposed by 
by-laws, and where the plea of md lid corporation was interposed and over- 
ruled. See also Kayier v. Bremen, 16 Mo. 88 ; Kettering v. Jacksonville, 60 
ni.39. 

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CH. Tin.] THE 0BADB9 OF BIONICIPAL OOTEBNUENT. * 254 

jtiBtl; be precluded, on the principle of estoppel, from raising such 
an objection, where there has been long acquiescence and recog- 
nition.' 

' Id People t>. Mnyoftrd, 15 Mich. 470, where the invalidity of an act organ- 
ixing a county, passed leveral yeara before, wai suggested od constitutional 
gTOvnds, Campb^, J., lays : " If this question had besn raised immediately, we 
are not prepared to say that it would have been altogether free from difficulty. 
But inasmuch as the arrangement there indicated had been acted upon for ten 
years before the recent legislation, and had been recognized as valid by all 
parties interested, it cannot now be disturbed. Even in private associations the 
»CtB of parties interested may often estop them from relying on legal objec- 
tions, which might have availed them if not waived. Bat in public affairs, where 
the people havi organized themselves under color of law into the ordinary 
munidpal bodies, and have gone on year after year raising taxes, making im- 
provemenls, and exercising their usual franchises, their rights are properly 
regarded as depending quite as much on the acquiescence as on the regnlanty 
of their origin, and do ex pott facto Inquiry can be permitted to undo their 
corporate existence. Whatever may be the rights of individuals before such 
general acquiescence, the corporate standing of the community can no longer be 
Open to question. See Rumsey c. People, 19 N. Y. 41 ; and Lanning v. Car* 
penter, 20 N. T. 474, where the effect of the invalidity of an original county 
o^anization is very well considered in its public and private bearings. There 
have been direct legislative recognitions of the new division on several occasions. 
The ezerciie of jnrisdiction being noloriooa and open in all snch cases, the 
State as well as county and town taxes being all levied under it, there is no 
principle which could justify any court, at this late day, in going back to inquire 
into the regularity of the law of 1857." 

[271] 



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COHBTTTUTIOSAL LIMITATIONS. [CH. II. 



[•255] •CHAPTER IX. 

PROTECTION TO PERSON AND PROPERTY UNDER THE C0N8TITDTI0N OP 
THE DNITED STATES. 

As the government of tlie United States was one of enumerated 
powers, it was not deemed important hj the framers of its Gonsti- 
tutioii that a hill of rights should he incorporated apiong its pro- 
visions. If, among the powers conferred, there was none which 
would authorize or empower the government to deprive the citizen 
of an; of those fundamental rights which it is the object and the 
duty of the government to protect and defend, and to insure 
which is the sole purpose of bills of rights, it was thought to be at 
least unimportant to insert negative clauses in that instrument, 
inhibiting tlie government from assuming an; such powers, since 
tlie mere failure to confer them would leave all such powers 
beyond the sphere of its constitutional authority. And, as Mr. 
Hamilton argued, it might seem even dangerous to do so. " For 
why declare that things shall not be done wliicli there is no power 
to do ? Why, for instance, should it be said that the liberty of 
tlie press shall not be restrained, when no power is given by 
which restrictions may be imposed ? I will not contend tliat 
such a provision would confer a regulating power ; but it is evi- 
dent that it would furnish, to men disposed to usurp, a plausible 
pretence for claiming that power. They might urge, with a 
semblance of reason, that the Constitution ought not to he chai^d 
with the absurdity of providing against the abuse of an authority 
which was not given, and that the provision against reBtraining 
the liberty of the press afforded a clear implication that a right to 
prescribe proper regulations concerning it was intended to be 
vested in the national goveniment. This may serve as a speci- 
men of the numerous handles which would be given to the doctrine 
of constructive powers, by the indulgence of an injudicious zeal 
for bills of rights."^ 

It was also thought that bills of rights, however important 

1 Federalist, No. 84. 
[272] 



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CH. K.] FEDERAL PKOTECTION TO PERSON AND PROPEBTT, • 257 

"under a monarchical government, were of do mo- [*25T] 
ment in a constitution of goTerumeut framed hj the 
people for themBclves, and under which public afTairs were to be 
managed by means of agencies selected by the popular choice, and 
subject to frequent change by popular action. "It has been 
several times truly remarked, that bills of rights are, in their 
origin, stipulations between kings and their subjects, abridg- 
ments of prerogative in fiivor of privilege, reservations of rights 
not surrendered to the prince. Such was Magna Cliarta, obtained 
by the barons, sword in hand, from King John. Such were the 
subsequent confirmations of that charter by aucceediug princes. 
Such was the Petition of Bight, assented to by Charles the First, 
in the begiuiiing of bis reign. Such also was the Declaration of 
Bight presented by the Lords and Commons to the Prince of Or- 
ange in 1688, and afterwards thrown into the form of an act of 
Parliament, called the Bill of Rights. It is evident, therefore, 
that, according to their primitive signification, they have no appli- 
cation to constitutions professedly founded upon the power of the 
people, and executed by their immediate representatives and ser^ 
vants. Here, in strictness, the people surrender nothing ; and, as 
they retain every thing, they have no need of parti<hilar reservations. 
' Wb, tbe people of the United States, to secure the blessings 
of liberty to ourselves and our posterity, do ordain and eslablish 
this Constitution for the Uuited States of America.' This is a 
better rect^nition of popular rights than volumes of those aphor- 
isms which make the principal figure in several of our State bills 
of rights, and which would sound much better in a treatise of 
etliics than in a constitution of government."' 

Beasoning like this was specious, but it was not satisfactory to 
many of the leading statesmen of that day, who believed that " the 
purposes of society do not require a surrender of all our rights 
to our ordinary governors ; that there are certain portions of right 
not necessary to enable them to carry on an effective government, 
and which experieuce has nevertheless proved they will be con- 
stantiy encroachiug on, if submitted to tliem ; that there are also 
certain fences which experience has proved peculiarly efficacious 
against wrong, and rarely obstruotive of right, which yet the 
governing powers have ever shown a disposition to weaken and 

' Fedenliat, Ko. 84, b^ Hamilton. 

18 [ 273 ] 



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" 267 CONSTITDTIONAL LIMITATIONa. [CH. IX. 

remove."^ And these governing powers will be no less 
[* 258] disposed * to be aggressive when chosen by majorities than 

when selected bj the accident of birth, or at the will of 
privileged classes. Indeed if, during the long struggle for consti- 
tutional liberty in England, covering the whole of the seventeenth 
century, importance was justly attached to a distinct declaration 
and enumeration of individual rights on the part of the govern- 
ment, when it was stilL in the power of the governing authorities 
to infringe upon or to abrogate tliem at any time, and wlien, conse- . 
quently, the declaration could possess only a moral force, a similar 
declaration would appear to be of even moreraluo in the Gonsti- 
tntion of tlie United States, where it would constitute autlioritative 
law, and be subject to no modificatiou or repeal, except by tlie 
people themselves whose rights it was designed to protect, and in 
the manner by the Constitution provided.^ 

' Jefferson'B Works. Vol. 111. 201. 

' Mr. Jefferson sums up the objecfiona to a bill of rights in the ConstitutioD 
of tbe United Sutes, and answers them u follows: " 1. That the rights in 
question are reserved by the m&nuer in which the Federal powers ore granted. 
Answer: A constitutive act may oertAinly be so formed as to need no dcclara* 
tdoD of rights. The act itself has the force of a declaration, as far as it goes ; 
and if it goes to all material points, nothing more ia wanting. In the draft of a ' 
constitution which I had once a thought of proposing in Virginia, and printed 
afterwards, I endea\'ored to reai'h all tbe great objects of jiublic liberty, and did 
not mean to add a declaration of rights. Probably the object was imperfectly 
executed; but the deficieneies would have beeo supplied by others in the course 
of discussion. But in a constitutive act which leaves some precious articles 
unnoticed, and raises implications against others, a declaration of rights becomes 
necessary by way of supplement. This is the case of our new Federal Consti- 
tution. This instrument forms us inio one State, as to certain objects, and gives 
na a legislative and executive body for those objects. It should therefore guard us 
Bg^st their abuses of power, within the field submitted to them. 2. A positive 
declaration of some essential rights could not be obtained in the requisite latitude. 
Answer ; Half a loaf is belter than no bread. If we cannot secure all our rights, 
let OS secure what we can. 3. Tbe limited powers of the Federal governmeul, 
and jealousy of the subordinate govcmnients, afford a security, which exists in 
no other instance. Answer: Tlie first member of this seems resolvable into the 
first objection before stated. The jealousy of' the subordinate governments ia a 
precious reliance. But observe that those governments are only agents. They 
must have principles furnished them whereon to found their opposition. The 
declaration of rights will bo the text whereby they will try all the acta of the 
Federal government. In this view it is necessary to the Federal government 
also ; as by the same text they may try the opposition of the subordinate govem- 
ments. 4. Experience proves the inefficacy of a bill of rights. True. But 
[274] 



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CH; IS.] PEDEBAL PBOTECTION TO PERSON AND PROPEHTY. • 259 

" Tho want of a bill of rights wae, therefore, made the [* 259] 
ground of a decicled, earnest, and formidable opposition to 
the coiilirmatioii of tlie national OonRtitutioii by the ])eDple ; and its 
adoption was only secured in some of the leading States in con- 
nection with the recommendation of amendments whicli should 
cover the ground.' 

The clauses inserted in the original instrument, for the protection 
of person and property, had reference mainly to tlie action of the 
State governments, and were made limitations upon their power. 
The exceptions embraced a few cases only, in respect to which 
the experience of both Englisli and American history liad forcibly 
demonstrated the tendency of power to abuse, not when wielded by 
a prince only, but also when administered by the agencies of the 
people themselves. 

Bills of attainder were prohibited to be passed, either by the 
Congress^ or by tlie legislatures of the several States." Attainder, 
in a strict sense, means an extinction of civil and political rights 
and capacities; and at the common law it followed, as of conrso, 
on conviction and Beiitonce to death for treason ; and, in greater or 
less degree, on conviction and sentence for the different classes of 
felony. 

A bill of attainder was a legislative conviction for alleged crime, 
with judgment of death. Sucli convictions have not been un< 

though it is not' absolutely efficacious, under all circuTnatancee, it U of great 
potency aWays. and rarely ineffiL'acious. A brace the mora irill ot^n kevp up 
the building which would have fallen with that brace (he less. Tlicru is a re- 
markable tliflcrence betveen the characters of the JDConTeniencea wliicii attend a 
declaration of rights, and those which attend the want of it. The inconveniences 
of the declaration are, that it may cramp government in its useful exertions. But 
the evil of this is short-lived, modurate, and reparable. The inconvenien<cs of tho 
want of a di^claration are permanent, afilictive, and irreparable. Thity are in con- 
stant progri'iiaion frtpm bad to worsp. Tbe executive, in our governments, is not 
the sole, it h scarcely the principal, object of my jealousy. The tyranny of the 
legislatures is the moat formidable dread at present, and will be for m:iny years. 
That of the exetulive will come in its turn i bat it will be at a remote period." 
Letter to Madison, March 15, 17S9, 3 JefFcrson's Works, p. 4. See also same 
Tdnme, pp. 13 and lOi ; Vol. II. pp. 329, 368. 

■ For the various recommendations by Massachusetts, South Carolina, New 
Hampshire, Virginia, New York, North Carolina, and Rhode Island, see 1 Elliott's 
Debat«e. Si2-334. 

■ Constitution of United States, art. 1. § 9. 
* CoDStitution of United States, art. 1, § 10. 



[275] 

DiB.1izedOyGoO<^lc 



* 259 CONSTITOTIONAL LIMITATIONS. [CH. IZ. 

common under other goveruments, and the power to pasa tliese bills 
has been exercised by the Parliament of England at some periods 

in its history, under the most oppressive and unjustifiable 
[* 260] * circumstances, greatly aggravated by an arbitrary course 

of procedure, which had few of the incidents of a judicial 
investigation into alleged crime. Of late years in England no one 
bad attempted to defend it as a legitimate exercise of power ; and 
if it would be unjustifiable anywhere, there were many reasons why 
it would be specially obnoxious under a free government, and why 
consequently its prohibition, under the existing circumstances of 
our country, would be a matter of more than ordinary importance. 
Every one must concede that a legislative hody, from its numbers 
and organization, and from the very intimate dependence of its 
members upon the people, which renders tliem liable to be pecu- 
liarly susceptible to popular clamor, is not properly constituted to 
try with coolness, caution, and impartiality a criminal charge, es- 
pecially in those cases in which tlie popular feeling is strongly 
excited ; the very class of cases most likely to be prosecuted by this 
mode. And although it would be conceded that, if such bills were 
allowable, they should properly be presented only for oEfences 
against the general laws of the land, and be proceeded with on 
the sam^ full opportunity for investigation and defence which is 
afforded in the courts of the common law, yet it was remembered 
that in practice they were often resorted to because an obnoxious 
person was not subject to puuiahment under tlie general law,^ or 
because, in proceeding against him by this mode, some rule of the 
common law requiring a particular species or degree of evidence 
might he evaded, and a conviction secured on proofs that a jury 
would not be suffered to accept as overcoming tlie legal presump- 

' Cases oftbis description were moBt numerous UuriDg the reign of Heniy VIII., 
tnd among the victims waa Cromwell, who in said to liave first advised that mon- 
ari'h to resort to this objectionable proceeding. Even the dead were attainted, 
as in the case of Richard III., and later, of the heroes of the Commonwealth. 
The most atrocious instance in history, however, only relieved by its weakness 
and futility, wu the great act of attainder passed in 1688 by the Parliament 
of James II., assembled in Dablio, by which between two and three thousand 
persons were attainted, their property confiscated, and theinselves sentenced to 
death if they failed to appear at a. time named. And, to render the whole pro- 
ceeding as horrible in barbarity as possible, the list of the proscribed was care- 
fully kept secret until after the time fixed for their appearance 1 Macaulay's 
History of England, c. 12. 

[276] 



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Ce. IS.] FEDERAL PBOTECTION OP PERSON AND PHOPERTY. * 260 

tion of innocence. Whether the accused should necessarily be served 
with process ; what degree or species of evidence shoiild be 
required ; whether the rules of law should be • followed, [* 261] 
either in determining what constituted a crime, or in 
dealing with the accused after conTiction, — were all qucBtions 
which would necessarily address themselves to the legislative dis- 
cretion and sense of justice ; and tlie very qualities which are 
essential in a court to protect iadividuala on trial before them 
against popular clamor, or the hate of those in power, were pre- 
cisely those which were likely to prove weak or wanting in the 
le^slative body at such a time.^ And what could be more 
obnoxious in a free government than the exercise of such a power 
by a popular body, controlled by a mere majority, fresh from the 
contests of exciting elections, and quite too apt, under the most 
favorable circumstanceB, to suspect the motives of their adversaries, 
and to resort to measures of doubtful propriety to secure party 
ends? 

Legislative punishments of this severe character, however, were 
not the only ones known to parliamentary history ; but there were 
others of a milder form, which were only less obnoxious in that the 
consequences were less terrible. Those legislative convictions 
which imposed punishments less than that of death were called bills 
of pains and penalties, as distinguished from bills of attainder ; but 
the constitutional provisions we have referred to were undoubtedly 
aimed at any and every species of legislative punishment for 
criminal or supposed criminal offences ; and the term " bill of 
attainder" is used in a generic sense, which would include bills of 
pains and penalties also.' 

' Tbis was equally true,' whether the attunder wm at the command of the 
kiflg, as in the ca»e of Cardinal Pole's mother, or at tho instigation of the popu- 
iace, as in the case ol' Wentworth, Earl of StraSbrd. The last inflictioa of capi- 
tal punishment in England, under a bill of attainder, iras upon Sir John Fenwick, 
in the reign of William and Mary, It h worthy of not« that in the preceding 
reign Sir John had been prominent in the attainder of the nnhappy Monmouth. 
Macaulay'a Hiatory of England, c. H. 

» Fletcher r>. Peck, 6 Cranch, 138 ; Story on Constitution, § 1344 ; Cnmmings 
p. Missouri, 4 Wal. 277 ; Ex paHe Garland, i6. 338 ; Drehman v. Stifle. 8 Wal. 
601. " I think it will be found that the foUoidng comprise those essential 
elements of bills of attainder, in addition to those. I hare already mentioned 
[which were that they declared certain persons attainted and their blood cor- 
rapted, BO that it had lost all heritable property}, nhich distinguish tbem from 
Other legislation, and which made them so obnoxious to the statesmen who organ- 

[277] 



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* 262 CONSTITOnoNAL LIMITATIONS. [CH. IX. 

[• 262] * Tlie thoughtful reader will not fail to diBcover, in tha 
acts of the Americau .States during the Revolutionary 
period, Bufficient reason for this constitutional provision, even if 
the still more monitory liistory of the English attainders had not 
been so freshly remembered. Some of these acts provided for the 
forfeiture of the estates, within theCommonwealthi of those British 
subjects who had withdrawn from the jurisdiction because not 
satisfied that grievances existed sullicieutly scriuus to justify the 
last resort of an oppressed people, or because of other reasons not 
Botisfautory to the existing authorities; and the only investigation 
pnividi/d for was an inquiry into the desertion. Others mentioned 
particular persons by name, adjudged them guilty of adhering to 
the enemies of the State, and proceeded to inflict punishment upon 
them, so far as the presence of property within tho Commonwealth 
would enable the government to do so.^ These wore the resorts 
of a time of extreme peril ; and if possible to justify them in a 
period of revolution, when every thing was staked on success, and 
when the public safety would not permit too much weight to 
scruples concerning the private rights of those who were not aiding 
the popular cause, the power to repeat such acts under any possible 
circumstances in which the country could be placed again was felt 
to be too dangerous to be left in the legislative hands. So far as 
proceedings had been completed under those acts, before the treaty 
of 1783, by the actual transfer of property, they remained valid and 
effectual afterwards ; but so far as they were then incomplete, they 
were put au end to by that treaty.* 

izcd oiir government: I. They were convictiora and sentences pronounced by 
the legislative department of the government, instead of the judicial. ^. The 
EeDteiicu pronounced and the punishment inflicted were determined by no pre- 
vious law orfixi-d rule. 3. The inveGtigation into (he guilt of tb<s accused, if any 
such wtre made, was not necessarily or generally conilucted in his presence or 
that of his counsel, and no recognized rule of evidence governed the inquirv." 
Per Millei: J., in Ex parte Garland, i Wal. 388. 

' Ste Belknap's History of New Hampshire, c. 26 ; 2 Ramsay's History of 
Souili Carolina, HSl ; 8 Rhode Island Colonial Kcfords, OO0 ; 2 Arnold's History 
ofRhodelsland, 360, 449; Thompson f. Carr, 6 N. II. 610; Slogbte. Kane, 2 
Johns. Cas. 236. Un the general subject of bills of attainder, one would do well 
to coubult, in addition to the cases in 4 Wallace, those of Blair v. Ridgeley, 11 
Mo. 63, (where it was very elaborately examined by able counsel) ; State t. 
Stftten, 6 Cold. 248 ; Randolph v. Good, 3 VV. Va. 551 ; Ex parte Uw, decided 
by Mr. Justice Erakine, in the United States District Court of Georgia, May 
term, 1866. ' Jackson c. Muoson, 3 Cainea, 137. 

[278] 



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Ce. IX.] FEDERAL PROTECTION OP PER60N AND PBOPERTY. * 262 

The conviction of the propriety of this constitutional provision 
has been so auiveraal, that it has never been questioned, either in 
legislative bodies or elsewhere. Neyertheless, cases have recentlj 
ansen, growing out of tlie attempt to break up and destroy tlie 
government of the United States, in which the Supreme 
Court of • the United States has adjudged certain action of [• 263] 
Congress void as in violation of this provision.^ The action 
referred to was designed to exclude from practice in the United 

' Od tbe 3d of July, 1862, Congress, by " art act to prescribe an oatb of 
office, and for otlier purposes," enacted that " hereallcr every person elected or 
appointed to any office ot honor or profit under the government of the United 
States, either in tbe dvil, militarj-, or naval departments of the public service, 
excepting the President of the United States, shall, before entering upon the du- 
ties of such office, take &at\ subscribe the following oath or affirmation: I, A B, 
do solemnly swear or affirm that I have never voluntarily borne arms against tbe 
Unil«d States since I have been a citizen thereof', that I have voluntarily given 
no aid, countenance, coansel, or encouragement to persons engaged in armed hos- 
tility thereto ; that I have neither sought nor accepted, nor attempted to exercise, 
the functions of any office whatever, under any authority or pretended authority 
in hostility to the United States ; that I have not yielded a voluntary support to 
any pretended government, authority, power, or constitution within the United 
States, hostile or inimical thereto. And I do further swear or affirm that, to the 
best or my knowledge and ability, I will support and defend the Constitution of 
tbe United States against all enemies, foreign and domestic ; that I will bear true 
faith and allegiance to the same ; that I take this obligation freely, without any 
mental reservation or purpose of evasion ; and tliat I will nell and faithfully dis- 
charge the duties of the office on which I am about to enter, so help me God." 
On the 21th of January, 1865, Congress passed a supplementary act as follows; 
" No person after the date of this act shall be admitted to the bar of the Supreme 
Court of the United States, or at any time after the 4th of March next shall 
be admitted to the bar of any Circnit or District Court of the United States, or 
of the Court of Claims, as an attorney or counsellor of such court, or shall be 
allowed to appear and to be heard in any such court, by virtue of any previous 
admission, or any special power of attorney, unless be shall have first taken and 
■nbscribed the oath " aforesaid. False swearing, under each of the acts, was made 
pcijury. See 12 Statntes at Large, 502 ; IS ib. 424. In Ex parte Garland, i 
Wal. 333, a majority of the court held the second of these acts void, as jiartaking 
of the nature of a bill of pains and penalties, and also as being an ez posi/aelo 
law. The act was looked upon as inflicting a punishment for past conduct; the 
exaction of the oath being tbe mode provided for ascertaining tbe parties upon 
whom tbe act was intended to operate. See Drebman v. Stifle, 8 Wal. 597. 
The conclusion declared by the Supreme Court of tbe United States in Ex parte 
Garland had been previously reached by Mr. Justice Trigg, of tbe United States 
Circuit Court, in Matter of Baxter; by Mr. Justice Btuteed, of the District 
Court of Alabama, in Matter of Shorter et al. ; and by Mr. Justice Erskine, of 
the District Court of Georgia, in Et parte Law. 

[279] 



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• 2fi8 CONBTITimONAL LIHITATIONS. . [CH. IS. 

States courts all jjersons who liad taken up arms against the gov- 
ernment during flie recent rebellion, or wlio had voluntarily given 
aid and encoaragemeut to ita enemies; and the mode adopted 
to effect the exclueioii vas to require of all persons, before they 
should be admitted io tlie bai' or allowed to practise, an oath 
negativing any such disloyal action. This decision has not been 
universally accepted as sound ; and the Supreme Courts of West 
Virginia and of the District of Columbia have sine© refused to 
follow it, insisting that penuiasion to practise in the courts is 
[*'264] not a tight, but a privilege, and that the withholding * it for 
any reason of State policy or personal unfitness could not 
be regarded as the infliction of criminal punishment.' 

The Supreme Court of the United States have also, upon the 
same reasoning, held^ a clause in the Constitution of Missouri, 
which, among other things, excluded all priests and clergymen 
from practising or teaching unless they should first take a similar 
oath of loyalt?, to be void, overruling in so doing a decision of the 
Supreme Court of that State.' 

The same provisions of the national Constitution which we have 
cited' also forbid the passage eitlier by the States or by Congress of 
any expoatfacto law. 

At an early day it was settled by authoritative decision, in oppo- 
sition to what might seem the more natural and obvious meaning 
of the term expo»t faeto, that in their scope and purpose these 

' See the ca^ei of Ex parte Magnider, American Lan Begister, Vol. TI. N. e. 
p. 292; and fz parte EDnter.ifi. 410, 2W.ya. 122. SeealsoCohene. Wright, 
22 Cal. 293; Exparte Yale, 24 Cal. 241. 

* Cummingt p. Misaouri, 4 Wal. 277. See atao the cam of State v. Adams, 
44 Mo. 670, in which it wbb held that u legistative act declaring that the board 
of curators of St. Charies College had forieited thei> office, was of the nature 
of a bill of attainder and void. The Missouri oath of loyalty naa a very strin- 
gent one, and applied to elector!, State, county, city, and town officers, officers 
in any corporation, public or private, professors and teachers in educational iosti- 
tntiona, attorneys and counsellors, bishops, priests, deacons, ministers, elders, 
or other clergymen of aoy denomination. The Supreme Court of Missouri had 
held this provision valid in the following cases: Stal« v. Garescbe, 36 Mo. 256, 
case of an attorney ; State u. Cummings, 36 Mo. 263, case of a miniater, reversed 
as above stated; State o. Bemoudy, 3G Mo. 279, case of the recorder of St. 
Louia; State v. McAdoo, 36 Mo. 4.52, where it is held that a certificate of elec- 
tion iasued td one who failed to take the oath as required by the constituUon 
was void. 

* Constitution of United States, art. 1, gg 9 and 10. 

[280] 



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Ce. II.] PEDEB4L PBOTECnON OP PERSON AND PROPEBTT. * 264 

proTisioDS were confined to lawB respecting criminal punishments, 
and bad no relation whatever to retrospective legislation of any 
other description. And it has, therefore, been repeutedly held, 
that retrospective laws, when not of a criminal nature, do not 
come in conflict with the national Constitution, unless obnoxious 
to its provisions on other grounds than their retrospective char- 
acter. 

"The prohibition in the letter," says Chcue, J., in the leading 
case,' " is not to pass any law concerning or after the fact ; but 
the plain and obvious meaning and intention of the prohibition is 
this : that the legislatures of the several States shall not pass laws 
after a fact done by a subject or citizen, which shall have relation 
to such fact, and punish liim for having done it. The pro- 
hibition, * considered in tliis light, is an additional bulwark [* 265] 
in favor of tlie personal security of the subject, to protect 
his person from punishment by legislative acts haviug a retro- 
spective operation. I do not think it was inserted to secure the 
citizen in his private rights of eitlier property or contracts. The 
prohibitions not to make any thing but gold and silver coin a 
tender in payment of debts, and not to pass any law impairing 
the obligation of contracts, wero inserted to secure private rights; 
but the restriction not to pass any ex post facto lav was to 
secure the person of the subject from injury or punishment, in 
consequence of such law. If the prohibition against making ex 
pott facto laws was intended to secure personal rights from being 
alTected or injured by sucli law, and the prohibition is suffi- 
ciently extensive for that' object, the other restraints I have enu- 
merated were unnecessary, and therefore improper, for both of 
them are retrospective. 

" I will state what laws I consider ex pott facto laws, witliin 
the words and the intent of the prohibition. 1st. Every law that 
makes an action done before the passing of the law, and which 
was innocent when done, criminal, and punishes such action. 
3d. Every law that aggravates a crime, or makes it greater than 
it was when committed. 3d. Every law that changes the punish- 
ment, and inflicts a greater pnnisliment than the lav annexed to 
the crime when committed. 4tli. Every law that alters the legal 
rules of evidence, and receives less or different testimony than 

> C&lder 0. Bull, 8 Dall. 390. 

[281] 



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• 265 CONSTITDTIONAL LIMITATIONS. [CH. II. 

the law required at the time of the commiBsion of the offence, in 
order to convict the offender. All these and similar laws are 
manifestly unjust and oppressive. In my opinion, tlio true dis- 
tinctiou is betweeo ex pott facto laws and retrospective laws. 
Every ex pott facto law must necessarily be retrospective, but 
every retrospective law is not an ex post facto law ; the former 
only are prohibited. Every law that takes away or impairs rights 
vested, agreeably to existing laws, in retrospective and is generally 
unjust, and may be oppressive ; and there is a good general rule, 
tliat a law should have no retrospect ; but there are cases in 
wliicli laws may justly, and for the benefit of the community, and 
also of individuals, relate to a time antecedent to their commence- 
ment; as statutes of oblivion or of pardon. Tliey are certainly 
retrospective, and literally both concerning and after the facts 
committed. But I do not consider any law ex post facto, within 
the prohibition, tliat mollifies the rigor of tlie criminal 
[* 266] law ; but • only those that create or aggravate the crime, 
or increase the punishment, or chaago the rules of evi- 
dence for the purpose of conviction. Every law that is to have on 
operation before tlie making thereof, as to commence at an antece- 
dent time, or to save time ^m the statute of limitations, or to 
excuse acta which were unlawful, and before committed, and tlie 
like, is retrospective. But such acts may be proper and necessary, 
as the case may be. There is a great and apparent difference 
between making an unlawful act lawful, and the making an inno- 
cent act criminal, and punishing it as a crime. The expressions 
ex pott facto are technical ; they had been in use long before the 
Bevolution, and had acquired an appropriate meaning, by legis- 
lators, lawyers, and authors."' 

Assuming this construction of tlie constitutional provision to be 
correct, — and it has been accepted and followed as correct by the 
courts ever siuce, — it would seem that little need be said relative 

' See abo Fletcher e. Peck, 6 Cranch, 87 ; Ogden e. Sauoders, 12 Wheat. 
266; Satteriee v. Mubewaon, 2 Pet. 380; Watson e. Mercer, 8 Pet. 110; 
Charles River Bridge v. Warren Bridge, 11 Pet. 421 ; Carpenter o. Pennsyl- 
vania, 17 Hon. 46J ; Cumminga t>. Missouri, i Wal. 277 ; £'x parte GarlaDd, 
i"6. 333; Baugher e. NeUon, 9 Gill, 299; Woart v. Winnick, 8 N. H. 475; 
Locke V. Daoe, 9 Mass. 363 ; Dash c. Van Kleek, 7 Johns. 497 ; Evans o. Monir 
gomery, 4 W. & S. 218 ; Tucker ». Hams, 13 Geo. 1 ; Perry's Case, 3 Gr»t. 
632 ; jkunidpality No. 1 c. Wheeler, 10 La. An. 745 ; New Orlciuia t>. Poutz, 
14 La. An. 853. 
[282] 



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CH. IX.] FEDERAL PKOTECTION OP PEESON AND PBOPEaTT. * 266 

to the iirst, secoad, and fourth classes of ex post facto laws, as 
enumerated in tlie opinion quoted. It is not essential, libwever, in 
order to render a law invalid on tliese grounds, that it should 
expressly assume the action to which it relates to be criminal, or 
provide for its puuisliment on that ground. If it shall subject an 
individual to a pecuniary penalty for an act which, when done, 
involved no responsibility,^ or if it deprives a party of any valuable 
right — like the right to follow a lawful calling — for acts which 
were innocent, or at least not punishable by law when committed,^ 
the law will be ex post facto in the constitutional sense, notwith- 
standing it does not in t«rms declare the acts to which the penalty 
is attached criminal,^ But how far a law may change the punishment 
for a criminal oEfence, janci make the change applicable to 
past offences, is certainly a question of great * difficulty, [* 267] 
which has been increased by the decisions made concerumg 
it As the constitutional provision is enacted for the protection 
and security of accused parties gainst arbitrary and oppressive 
legislative action, it is evident that any change in the law which 
goes in mitigation of tlie punishment is not liable to this objection.^ 
But what does go in mitigation of the punishment ? If the law 
makes a fine less in amount, or imprisonment shorter in point of ' 
duration, or relieves it from some oppressive incident, or if it 
dispenses with some severable portion of the legal penalty, no 
embarrassment would be experienced in reaching a conclusion that 
the law was favorable to the accused, and tlierefore not ex post facto. 
But who shall say, when the nature of the punislimont is a1 together 
changed, and a fine is substituted for tlie pillory, or impi-isonmeut 
for whipping, or imprisonment at hard labor for life for tbe death 
penalty, tliat the punishment is diminished, or at least not increased 
by the change made ? What test of seventy does tbe law or reason 

' Falconer p, Campbell, 2 McLean, 212. 

» Cnmmings v. Missouri, 4 WaL 277 ; Ex parte Garland. 16. 333. But a 
dJTorce ia not a punishment, and it may therefore be authorized for causes hap- 
pening previous to the passage of the dlTorce act. Carson d. Carson, 40 Mies. 
349. 

* The repeal of an amnesty law by a Conatitntlonal Convention was held to 
be ez post facia as to the cases covered by the law in Slate v. Keith, 63 N. C. 
140. 

* Strong V. State, 1 Blackf. 193 ; Keen t>. State, 3 Chand. 109 ; Boston o. 
Cnnunins. 16 Geo. 102 5 Woart v. Winnick, 3 N. H. 473; State p. Arlin, 39 
N. H. 180 ; CUrke t>. State, 23 Miw. 261 ; Maul v. State, 25 Texas, 166." 

[288] 



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• 267 coNSTirnnoHAL limitations. [ch. ii. 

furnish in these cases ? and must the judge decide upon his own 
view of the pain, loss, ignominy, and collateral consequences usually 
attending the punishment ? or may he talie into view the pecuhar 
condition of the accused, and upon that determine whether, in his 
particular case, the punishment prescribed by the new law is 
more severe than that nnder the old or not ? 

In State v. Arlin,^ the respondent was charged with a robbery, 
which, under the law as if existed at the time it was committed, was 
subject to be punished by solitary imprisonment not exceeding six 
months, and confinement for life at hard labor in the State prison. 
As incident to this severe punishment, he was entitled by the same 
law to have connsel assigned him by the gorernment, to process to 
compel the attendance of witnesses, to a copy of his indictment, a 
list of the jurors who were to try him, Ac. Before he was brought 
to trial, the punishment for the offence was reduced to solitary im- 
prisonment not exceeding six months, and confiiiMQant at hard 
labor in the State prison for not less than seven nor more than thirty 

years. By the new act, the court, if they thought proper, 
[*26S] were to assign the respondent counsel, and 'furnish him 

with process to compel the attendance of witnesses in hia 
behalf; and, acting under this discretion, the conrt assigned the 
respondent counsel, but declined to do more ; while the respondent 
insisted that lie was entitled to all the privileges to which he would 
have been entitled had the law remained unchanged. The co'urt 
held this claim to be unfounded in the law. " It is contended," 
they say, " that, notwithstanding the severity of the respondent's 
punishment was mitigated hy the alteration of the statute, he is 
entitled to the privileges demanded, as incidents to the offence with 
which he is charged, at the date of its commission ; in other words, 
it seems to be claimed, that, by committing the alleged offence, the 
respondent acquired a vested right to have 'counsel assigned him, 
to be furnished with process to procure the attendance of witnesses, 
and to enjoy all the other privileges to which he would have been 
entitled if tried under laws subjecting him to imprisonment for life 
upon conviction. This position appears to us wholly untenable. 
We have no doubt the privileges the respondent claims were 
designed and created solely as incidents of the severe punishment 
to which his offence formerly subjected him, and not as incidents 
of the offence. When the punishment was abolished, its incidents 

' 39 N. H. 179. 
[284] 



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CH. IZ.] FEDERAL PBOTECTION OF PEBSON AND PROPEBTT. * 268 

fell with it; aud he might as well claim the right to bo punished 
under the former law as to be eutitled to the privilegou couuected 
with a trial under it." ' 

Id StroDg v. State,^ the plaintiff iit error was indicted 
aud convicted "of perjury, which, under tlie law as it [* 239] 
existed at the time it was committed, was punishable by 
not exccediug one hundred stripes. Before the trial, this punisli- 
meut was changed to imprisonment in the peiiitentiarynotexceed- 
ing seven years. The court held this amendatory law not to be «e 
pott facto, as applied to tlie case. " The words ex post facto have a 
definite, technical signification. The plaia and obvious meauiiig of 
this prohibition is, that the legislature shall not pass any law, after 
a fact done by any citizen, wliich shall liave relation to tliat fact, so 
as to punish tliat which wae innocent when done, or to add to the 
punishment of that which was criminal, or to increase the malig- 
nity of a crime, or to retrench the rules of evidence so as to make 
conviction more easy." " Apply this definition to the act under 
consideratJOD. Does this statute make a oew ofience ? It does not. 
Does it increase the malignity of that which was an offeDce before ? 
It does uot. Does it so change the rules of evidence as to make 
conviction more easy? This cannot be alleged. Does It then 
increase the punishment of tliat which was criminal before its 
enactment ? We think not." ^ 

' With great deference it may be auggeated whether tliis case doe» not over- 
look the important circumslance, that the new law, by taking fi'Om the accused 
that absolute right to defeace by counaol, and to the other privileges by which , 
the old law surrounded the trial, — all of which were designed as securJtieB 
against unjust convictions, — was dirt-ctly calculated to increase the i)artj's peril, 
and was in consequence brought within the reason of the rule which holda a law 
ae pott faeto which changes the rules of evidence after the fact, so as to make a 
less amount or degree sufficient. Could a law be void as «z post facto which 
made a party liable to conviction for perjuiy in a previous oath on tlie t^^atiuiuny 
of a Fingle witness, and another law unobjectionable on this score which deprived 
a party, when put on trial for a pruvioua ai.'t, of all the uaual opportunities of 
exhibiting the facts and establishing his innocence? Undoubtedly, if the parly 
accused was always guilty, and ceriain to be convicted, the new law must be 
regarded as mitigating the offence ; biit, assuming erery man to be innocent until 
be is proved to be guilty, could such a Jaw be looked upon as " mollifying the 
rigor" of the prior law, or as favorable to the accused, when its mollifjlng cir- 
cumstance is moic than counterbalanced by others of a contrary character? 

• 1 Blackf. 193. 

' Mr. Bishop says of this decision : " But cerhunty the court went far in this 
case." 1 Bishop, Crim. Law, % 219 (108). 

[285] 



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• 269 CONSTITUTIONAL LIMTTATIONB. [CH. TX. 

So in Texas it has been held that the inflietion of stripes, from 
the peculiarly degrading character of the punishment, was worse 
than the death penalty. "Among all nations of civilized man, 
from the earliest ages, the infliction of stripes has been considered 
more degrading than death itself."^ While, on the other hand, in 
Soutli Carolina, where, at the time of the commission of a forgery, 
the punishment was death, but it was changed before final 
judgment ,to fine, whipping, and imprisonment, the new law was 

applied to the case in passing the sentence.^ These cases 
[•270] illuBtrate "the difficulty of laying down any rule which 

will be readily and universally accepted as to what is a 
mitigation of pimishment, where its character is changed, and 
when from the very nature of the case there can be no common 
standard, by which all minds, however educated, can measure the 
relative severity and ignominy. 

In Hartung v. People,^ the law providing for the infliction of 
capital punishment had been so changed as to require the party 
liable to this penalty to be sentenced to confinement at hard labor 
in the State prison until the punishment of death should be in- 
flicted ; and it further provided that such punishment should not 
be inflicted under one year, nor until the governor should issue 
liis warrant for the purpose. Tlie act was evidently designed for 
the benefit of parties convicted, and, among other things, to enable 
advantage to bo taken, for their benefit, of any circumstances sub- 

' Herber ». State, 7 TexM, G9. 

' State V. Williams, 2 Kicb. 418. In aark c. State, 23 Mm. 261. defendant 
was convi(^«d or a inajhcni. Between the commission of the act and his-convic- 
lion, a statute had been passed, changing the punishment for this ofTence from 
the [lillorj- and a fine to imprisonment in the penitentiarj', but providing further, 
that " no oOcnee committi.'d, and no penalty and forfeiture incurred previous to 
the liinc when this act shall take efiect shall be affected by Ihia act, except that 
when any punishment, forfeiture, or penalty should have been mitijjated by it, 
its provisions should be applied to the judgment to be pronounced for offences 
committed before its adoption." In regard to this statute the court say : " We 
think that in every case of oficuce committed bi^fore the adoption of the peni- 
tentiary code, the prisoner has the option of selecting the punishment prescribed 
in that code in lieu of that to which he was liable before its enactment." But 
inasmuch as the record did not show that the defendant claimed a commutation 
or his punishment, the court confirmed a sentence imposed according to the terms 
of the old law. On this subject, see further the cases of Holt v. State, 2 Texas, 
363; Dawson v. State, 6 Texas, 847. 

• 23 N. Y. 105. 
t 286 ] 



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CH. IX.] FEDERAL PBOTECTIOK OF PEB30N AND PROPERTY. • 270 

sequently coming to light whicb might shov the injustice of tlie 
judgment, or throw any more favorable light on the action of the 
accused. Nevertheless, the court held the act inoperative as to 
offences before committed. " In my opinion," says Denio, J., " it 
would be perfectly competent for the legislature, by a general law,- 
- to remit any separable portion of the prescribed punishment. For 
instance, if the punishment were fine and imprisonment,, a law 
which should dispense with either the fine or the imprisonment 
- might, I think, be lawfully applied to existing offences ; and so, in 
my opinion, the term of imprisonment might be reduced, or tlio 
number of stripes diminished, in cases punishable in that manner. 
Any thing which, if applied to an individual sentence, would fairly 
fall within the idea of a remission of a part of tlie sentence, would 
not be liable to objection. And any change which should be refer- 
able to prison discipline or penal administration as its primary ob- 
ject might also be made to take effect upon past as well as future 
offences ; as changes in the manner or kind of employment of con- 
victs sentenced to hard labor, tho system of supervision, 
the means of restraint, or the like. Changes of this ' sort [* 271] 
might operate to increase or mitigate the severity of the 
punishment of the convict, but would not raise any question uuder 
the constitutional provision we are considering. The change 
wrought by tho act of 1860, in tho punishment of existing offences 
of murder, does not fall witliin either of these exceptions. If 
it is to be construed to vest in the goverjior a discretion to deter- 
mine whether the convict should he executed or remain a perpetual 
prisoner at hard labor, this would only he equivalent to what he 
might do under the authority to commute a sentence. But he can, 
under the Constitution, only do this once for all. If he refuses 
the pardon, the convict is executed according to sentence. If he 
grants it, his juriediclaon of the case ends. The act in question 
places the convict at the mercy of the governor in office at tlie 
expiration of one year from tlie time of the conviction, and of all 
of his successors during the lifetime of the convict. He may be 
ordered to execution at any time, upon any notice, or without 
notice. Under one of the repealed sections of the Revised Stat- 
utes, it was required that a period should intervene between the 
sentence and execution of not less than four, nor more tlian eight 
weeks. If we stop here, the change effected by the statute is be- 
tween an execution within a limited time, to be prescribed by the 

[287] 



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• 271 CONSnTOTIONAL LIMITATIONS. [CH. H- 

court, or a pardon or commutation of the sentence during tliat 
period, on the one liand,''and the placing the convict at tho mercy 
of tlie ezecutire magistrate for the time, and his successoi^, to be 
executed at his pleasure at any time after one year, on the other. 
The Bword is indefinitely enepended over his head, ready to fall at 
any time. It is not enough to say, if even that can be said, that 
most persons would probably prefer such a fate to the former cap- 
ital sentence. It is enough to bring the law within the condem- 
nation of the Constitution, tliat it changes tlie punishment after - 
the commission of the offence, by sabstituting for the prescribed 
penalty a different one. We have no means of saying whether 
one or the other would be the most severe in a given case. That 
wonld depend upon the disposition and temperament of tlie cou- 
vict. Tlie legislature cannot thus experiment upon the criminal 
law. The law, moreover, prescribes one year's imprisonment, at 
hard labor in the State prison, in addition to the punishment of 
death. In every case of the execution of a capital sentence, it 
must be preceded by the year's imprisonment at hard labor. 

True, tlie concluding part of the punishment cannot be 
[" 272] executed * unless the ggvernor concurs by ordering the 

execution. But as botli parts may, in any giveu case, 
be inflicted, and as the convict is consequeutly, under tliis law, 
exposed to the double infliction, it is, within both the deflnidons 
which have been mentioned, an ex post facto law. It changes the 
punishment, and inflicts a greater punishment than that wliicli 
the law annexed ta the crime when committed. It is enough, in 
my opinion, that it changes it in any vianner except by dispensing 
with divisible portions of it ; but upon the other definition an- 
nounced by Judge Chase, where it is implied that tho change must 
be from a less to a greater punishment, this act cannot be sus- 
tained." This decision has since been several times followed in 
the State of New York,' and it must now be regarded as tlie 
settled law of that State, tliat " a law changing the punishment for 
offences committed before its passage is ex post facto and void, 
under the Constitution, unless tlie change consists in the remission 
of some separable part of the punishment before prescribed, or is 
referable to prison discipline or penal administration as its primary 

' Shepherd v. People, 25 N. Y. 406; Ratikyo. People, 29 N. Y. 124; Kuck- 
ler r. People, 5 Park Cr. Rep. 212. 
[288] 



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CH. IX.] FEDEBAI. PBOTEOnOH OF PEBSON AMD PBOPEBTY. " 272 

object."^ And this rale seenis to us a somid and sensible one, 
vith perhaps this single qualification, — that the substitution of 
any other punishment for that of death must be regarded as a 
mitigation of the penalty.^ 

But 80 far as mere modes of procedure are concerned, a party 
has no more right, in a criminal than in a civil action, to insist 
that his case shall be disposed of under the law in force when the 
act to be investigated is charged to hare taken place. Remedies 
must always be under the control of the legislature, and it would 
create endless confusion in legal proceedings if every case was to 
be conducted only in accordance with the rules of practice, and 
heard only by the courts, in existence when its facts arose. The 
legislature may abolish courts and create new ones, and it may 
prescribe altogether different modes of procedure in its discretion, 
though it cannot lawfully, we think, in so doing, dispense with 
any of those substantial protections with which the existing law 
surrounds the person accused of crime. A law giving the gov- 
ernment additional challenges,^ and another which author- 
ized "the amendment of indictments,* have both been [•273] 
sustained as applicable to past transactions, as any similar 
law, tending only to improve the remedy, but working no injustice 
to the defendant, and depriving him of no substautial right, doubt- 
less would l>e. 

And a law is not objectionable as ex post facto which, in pro- 
viding for the punishment of future offences, authorizes the offend- 
er's conduct iu tlie past to be taken into the account, and tlie 
punishment to be graduated accordingly. Heavier penalties are 
oft«n provided by law for a second or any subsequent offence than 
for the first ; and it has not been deemed objectionable tliat, in pro- 
viding for such heavier penalties, the prior conviction authorized 

' Per Davia, J., in Ratikj P. People, 29 K. T, 124. 

* See 1 BUhop, Crim. Law, % 219 (108). ' 

■ WalBton V. CommoDwealdi, 16 B. Monr. 15; State o. Ryan, 19 Mion. 870. 

* Slate 0. HauniDg, 11 Texas, 402. The defeDdaiit in anj ca«e must be pro- 
ceeded BguoBt and pnnjahed under the law in force when the proceeding !■ had. 
SUte V. WiUiamB. 2 Rich. 41S ; Keeae v. State, 2 Chand. 109 ; People v. Phelpa, 
fi Wend. 9 ; Rand d. Commonwealth, 9 tirat. 738. A law u not onconstitntioDal 
which preclodei a defendant in a criminal case from taking advantage of vari- 
ancea which do not prejudice him. Commonwealth v. Hall, 97 Mam. 570. Nor 
one which, though passed after tlie commicsion of the offence, authorizes a change 
of venne to another count}' of the judicial district. Gat t>. State, 9 WaL 35. 

19 [ 289 ] 



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* 273 coNsnrmoNAL LiMixATiotra. [ch. ix. 

to be taken into the account may liare taken place before tlie lav 
was passed.^ In anch case, it is the second or subsequent offence 
that is punished, not the first ;' and the act would be void if tlie 
offence to be actually puniehed had been committed before it had 
taken effect, even though it was after its paseage.^ 



Laws impairing the Obligation of Contracts. 

The CoiiBtitution of the United States also forbids the States 
passing any law impairing the obligation of contracts.' It is 
remarkable that this very important clause was passed over 
almost without comment during the discussions preceding the 
adoption of that instrument, though since its adoption no clause 
which the Constitution contains lias been more prolific of liti- 
gation, or given rise to more animated and at times angry contro- 
versy. It is but twice alluded to in the papers of the Federalist ;^ 
and though its groat importance is assumed, it is evident that the 
writer had no conception of the prominence it was afterwards to 
hold in constitittional discussions, or of the very numerous cases 
to which it was to be applied in practice. 

The first question that arises under this provision is, 
[* 274] What Is a • contract in the sense in which the word is 
here employed ? In the leading case upon this subject, 
it appeared that the legislature of Geoi^a had made a grant of 
land, but afterwards, on an allegation that the grant liad been 
obtained by fraud, a subsequent legislature had passed another 
act annulling and rescinding the first conveyance, and asserting 
the right of the State to the land it covered, " A contract," says 
Ch. J. Marshall, " is a compact between two or more parties, 
and is either executory or executed. An executory contract 
is one in which a party binds himself to do or not to do a 
particular thing. Such was the law under which the conveyance 
was made by the governor. A contract executed is one in 
which the object of the contract is performed ; and this, says 
Blackstone, differs in nothing from a grant. The contract between 
Georgia and the purchasers was executed by the grant. A 

Boas's Cue, 2 Pick. 165; People t>. 

» Riley'a Case, 2 Pick. 172. 
• Federalist, Nos. 7 and 44. 
[ 290 ] 



'Riindr 


Commonwealth 


9 Grat. 7S8 


tier, 3 Cow. 347. 






■Bandt. 




9Grat 


738. 


' Const. 


rt. 1, § 10. 







DiB.1izedOyGoO<^lc 



CH. IX.] PEDBEAL PSOTECnOK OF PEB80N AND PROPERTT, • 274 

contract executed, ae veil as one which is executoiy, contains 
obligations binding on the parties. A grant, in its ovn nature, 
amounts to an extinguishment of the right of the grantor, and 
implies a contract not to reassert that right. A party is, therefore, 
always estopped by his own grant. Since then, in fact, a grant 
is a contract executed, the obligation of which still continues, 
and since the Constitution uses the general term ' contract,' with* 
out distinguishing between those which are executory and those 
which are executed, it must be construed to comprelieud the 
latter as well as the former. A law annulling conveyances 
between individuals, and declaring that the grantors should 
stand seized of their former estates, notwithstanding those grants, 
would be as repugnant to the Constitution as a law discharging 
the vendors of property from the obligation of executing tlieir 
contracts by conveyances. It would be strange if a contract to 
convey was secured by the Constitution, while an absolute convey- 
ance remained unprotected. If, under a fair construction of the 
Constitution, grants are comprehended under the term ' contracts,' 
is 8 grant from tlie State excluded from the operation of the 
provision ? Is the clause to be considered as inhibiting the State 
from impairing the obligation of contracts between two individuals, 
but as excluding from that inhibition contracts made with itself? 
Tlie words themselves contain no such distinction. They are 
general, and are applicable to contracts of every description. If 
contracts made with the State are to be exempted from their oper- 
ations, the exception must arise from the character of 
*tbe contracting party, not from the words which are [*27d] 
employed." And the court proceed to give reasons for 
their decision, that violence should not *' bo done to the uatural 
meaning of words, for the purpose of leaving to the le^stature 
the power of seizing, for public use, the estate of an individual, 
in the form of a law annulling the title by which he holds that 
estate." ^ 

It will be seen that this leading decision settles two important 
points : first, that an executed contract is within the provision, 
and second, that it protects from violation the contracts of States 
equally with those entered into between private individuals.^ 

> Fletcher v. Peck, 6 Cmnch, 1S3. 

* This decUJon bas been Tepeatedly followed. In tbe foandiDg of tbe Colony 
of Yirpnia, tbe religious eMabltshment of England was adopted, and before the 

[291] 



DiB.1izedOyGoO<^lc 



• 275 COHSriTDTIONAL LIBUTATIONS. [CH. H. 

And it has since been held that comp&cta between two States are 
in like manner protected.^ These decisions, however, do 
[* 276] not fully * determine what under all circumstances is to 
be regarded as a contract. A grant of land b; a State is 
a contract, because in making it the Stat« deals with the purchaser 
precisely as any other vendor might ; and if its mode of convey- 
ance is any different, it is only because, by virtue of its sover- 
eignty, it has power to convey by other modes than those which 

BeyolutioD the chnrches of that d^iomiiiatioD hod become ■vetUd, hj gmits of 
the crowQ or Colonj', with lai^ properties, which continuod in their possession 
■Her the constitution of the State had forbidden the creation or continuance of 
aoj religions establishment, possessed of ezclaaive rights or privileges, or the 
compelling the citizen* to worship under a stipulated form or discipline, or to pa; 
taxes to those whose creed they conld not conscientioualy believe. Bj statute in 
1801, the le^slature asserted their right to all the property of the Episcopal 
churches in the respective parishes of the State ; and, among other things, di- 
rected and authorized the overseers of the poor and their successors ill each 
parish, wherein any glebe land was vacant or shonld become so, to sell the same 
and appropriate the proceeds to the use of the poor of the parish. By ihis act, 
it will be seen, the State sooght in effect tn resume grants made by the sover- 
eignty, — a practice which had been common enough in English history, and of 
which precedents were not wanUng in the history of the American Colonies. 
The Supreme Court of the United States held the grant not revocable, and that 
the legislative act was therefore unconstitutional and void. Terrett v. Taylor, 9 
Cranch, 43. See also Town of Fawlet e. Clark, 9 Cronch, 935 ; People v. Flatt, 

17 Johns. 195 ; Montgomery o. Easson, 16 Cal. 169 ; Grogan o. San Francisco, 

18 Cal. 690; Rehoboth d. Hunt, 1 Tick. 224; Lowry v. Francis, 2 Yerg. 6»4j 
University of North Carolina e. Foy, 2 Hayw. 310 ; State r. Barker, 4 Kansas. 
379 and 43S, The lien of a bondholder, who has loaned money to the State on 
a pledge of property by legislative act, cannot be divested or postponed by a 
subsequent legislative act. Wabasb, Ac., Co. v. Beers, 2 Black, 448. 

' On the separation of Kentucky from Virginia a compact was entered into 
between the proposed new and the old 8Cat«, by which it was agreed " that all 
private grants and interests of lands, within the said district, derived from the 
laws of Virginia, shall remain valid and secure under the laws of the proposed 
Stat«, and shall be determined by the laws now existing in this State." After 
the admission of the new State to the Union, '* occupying claimant " laws were 
passed by its legislature, anch as were not in existence in Virginia, and by the 
force of which, under certain circumstances, the owner might be deprived of his 
title to land, unless be would pay the value of lasting improvements "lomle upon 
it by an adverse claimant. These acts were also held void ; the compact was 
held inviolable under the Constitution, and it was deemed no objection to its 
binding character, that its effect was to restrict, in some directions, the legislative 
power of the State entering into it. Green u. Biddle, 8 Wheat. 1. See also 
Hawkins v. Barney's Lessee, 6 Pet. 457. 
[292] 



DiB.1izedOyGoO<^lc 



OH. IZ.] PEDEBAL PSOTEGTIOH OF PEBSOH AND PROPBBTT. * 276 

tiie general lav opens to private individuals. But many things 
done by the State may seem to hold out promises to individuals, 
which ftfber all cannot be treated as contracts without hampering 
the legislatire power of the State in a manner that would soon 
leave it without the means of performing its essential functions. 
The State creates offices, and appoints persons to fill them ; 
it establishes municipal corporations, with large and valuable privi- 
leges for its citizens ; by its general laws it holds out inducements 
to unmigration ; it passes exemption laws, and laws for the 
encouragement of trade and agriculture ; and under all these laws 
a greater or less number of citizens expect to derive profit and 
emolument But can these laws be regarded as contracts be- 
tween the State and the officers and corporations who are, or 
the citizens of ^e State who expect to be, benefited by their pas- 
sage, so as to preclude their being repealed ? 

On'these points it would seem that there could be no difficulty. 
When the State employs officera or creates municipal corporations 
as the mere agencies of government, it must have the power 
to discontinue the agency whenever it comes to be regarded as 
no longer important. " The framers of the -Constitution did not 
intend to restrain the States in t^e r^:ulation of their civil 
institutions, adopted for internal government." ^ They may, 
therefore, discontinue offices and abolish or change the organi- 
zation of municipal corporations at any time, according to the 
existing legislative view of state policy, unless forbidden 
by their own constitations from doing so.^ And *al- [*277] 

> Dartino|ith College v. Woodward, 4 Wheat. 629, per MartkaU, Cb. J. 

* Butter D. FennBj-lvBDia, ]0 How. 402; Wamer c. People, 2 Denio, 372; 
Commonwealth t>. Bacon, 6 S. & K. 322 ; Cammanwealth t>. Mann, 6 W. & 8. 
418 ; Conner p. New York, 2 Sandf. 866, and 6 N. T. 286. '* Where an office 
il created bj statute, it ie whollj within the control of the legislature. The term,, 
the mode of appointment, and the compeuaation ma;^ be altered at pleasure, and 
the latter may be eren taken away without aboliahing the office. Such eitreme 
l^ialation u not to be deemed probable in any ca«e. But we are now ducusalng 
the legislative power, not its expediency or propriety. Haring the power, the 
k^lature wiU exercise it for the pablio good, and it u the sole judge of the ex- 
igency which demands iu iutarrerence." Per BcoK^ord, J., 2 Sandf. 368.^ " The 
■election of officers who are nothing more than public agents for the effectuating 
of public piuposes b matter of public convenience or necessity, and so, 'too, are 
tbe periods for the appointment of such agents, but neither the one nor the other 
of theae arrangements can constitute any obligation to continue such agents, or 
to reappoint them, after the measures which broaght diem into being shall have 

[293] 



jdoyGoOf^lc 



• 277 CONSTITUTIONAL LIMITATIONS. [CB. II. 

thdugh mnnicipal corporations, as respects the property which 
they hold, control, and manage for the benefit of their citizens, 
are governed by the same rules and subject to the same lia- 
bilities as individuals, yet this property, so far aB it has been 
derived from the State, or obtained by the exercise of the 
ordinary povers of goveniment, must be held subject 'to control 
by the State, but under the restriction only, that it is not to 
be appropriated to uses foreign to tliose for which it has been 
acquired. And the franchises conferred upon such a corporation, 
for the benefit of its citizens, must be liable to be resumed at 
any time by that authority which may mould the corporate 
powers at its will, or even revoke them altogether. The 
greater power will comprehend the less.' If, however, a 

been found nseleHS, Bh&II h&ve been fulfilled, or sball bare been abrogated u erea 
detrimental to the irell-being of the public. The promiBed compenuiioa for 
Bervicea actudly performed and aacepted, during the cantinuauce of the particu- 
lar agency, may undoubtedly be claimed, both upon principles of compa.ct and of 
equity ; but to insist beyond this upon the perpetuation of a public policy either 
useless or detrimental, and upon a reward for acts neither deaii'ed nor performed, 
would appear to be recunrilabla with neither common justice nor common sense." 
Daniel, J., in 10 How. 416. See also Barker v. PitUburgb, 4 Penn. St 49 j 
Territory p. Pyle, 1 Oregon, 149; Bryan r. Cattell, 16 Iowa, 538. But if the 
, term of an office is fixed by the Constitution, the legislature cannot remove the 
officer — except as that instrument may allow — either directly, or indirectly by 
abolishing the office. People v. Dubois, 2S 111. 547 ; State o. Messmore, 14 Wis. 
168 ; Commonwealth e. Gamble, 62 Penn. St. 343. Aa to control of municipal 
corporations, see further, Marietta v. Fearing, 4 Ohio, 427 ; Bradford v. Gary, 6 
Greenl. 389 ; Bush t>. Sbipman, 4 Scam. 186 ,' Trustees, &c. v. Tatman. 13 III. 
27; People r. Morris, 13 Wend. 325; Mills e. Williams, 11 Ired. 668; People 
V. Banvsrd, 27 Cal. 470. 

■ In East Hartford v. Hartford Bridge Co. 10 How. 633, Mr. Justice Wood- 
bwrg, in speaking of the grant of a ferry franchise to a mnnicipal corporation, 
says : " Our opinion is . . . that the parties to this grant did not by their 
charter stand in the attitude towards each other of making a contract by it, such 
as is contemplated by the Constitution, and as conld not be modified by subse- 
quent legislation. The legislature was acting here on the one part, and public 
municipal and political corporations on the other. They were acting, too, in 
relation to a public object, being virtually a highway across the river, over 
another highway up and down the river. From this standing and relation of 
these parties, and from the subjec^matteT of their action, we think that the 
doing! of the legislature aa to this ferry must be considered rather as public laws 
than as contracts. They related to public interests. They changed as those 
interests demanded. The grantees, likewise, the towns, being mere organizations 
for pnblic purposes, were liable to havo. their public powers, rights, and duties 
[294] 



DiB.1izedOyGoO<^lc 



CH. II.] PBDEBAL PROTECTION OP PERSON AND PROPERTT. * 277 

grant is made to a municipal corporation •chained [•278] 
with a trust in favor of an individual, private eorpora- 

modified or abolished at utj moment b; the legiilatare. Thejr are iocorporated 
for pablic, and not private objects. They are allowed to hold privileges or prop- 
erty only for public purposes. The merabera are not shareholderB nor joint part- 
aera in any corporate est&te, which they can aell or devise to others, or which 
can be attached and levied on for their dubts. Hence, generally, the doings 
between them and the tegiBlattire are in the nature of legislation rather than com- 
pact, and subject to all the legislative conditions just named, and therefore to be 
considered not violated by subsequent legislative changes. It is hardly possible 
to conceive the grounds on which a diETerent result could be vindicated, without 
destroying all legislative sovereignty, and checking most legislative improvemeati, 
as well as supervision over its subordinate public bodies." A different doctrine 
was advanced by Mr. Justice Barcvlo, in Benson v. Mayor, &c., of New York, 
10 Barb. 2S4, who cites in support of his opinion, that ferry grants to the city of 
New York could not be taken away by the legislature, what is said by Chancellor 
Kmtt (2 Kent's Com. OT5), that "public corporations . . . may be empowered 
to take and hold private property for municipal uses; and such property is 
invested with the security of other private rights. So corporate franchises, 
attached to public corporations, are legal estates, conpled with an interest, and 
are protected as private property." This is true in a general sense, and it is also 
true that, in respect to such properly and franchises, the same rules of responri- 
bility are to be applied as in the case of individuals. Bailey c. Mayor, Ac., of 
New Yoil, 3 Hill, 631. Bnt it does not follow that the legislature, under its 
power to administer the government, of which these agencies are a part, and for 
the purposes of which the grant has been made, may not at any time modify tlte 
municipal powers and privileges, by transferring the grant to some other agency, 
or revoking it when it seems tohave become unimportant. In People v. Power, 
25 D!. 190, Breae, J., in speaking of a law which provided that three-fourths of 
the taxes collected in the county of Sangamon, with certain deduLtioni, should 
be pud over to the dty of Springfield, which is situated therein, says ; " While 
private corporations are regarded as contracts, which the legislature cnnnot con- 
stitutionally impair, as the trustee of the public interests it baa the exclusive and 
unrestrained control over public corporatJons,' and as it may create, so it may 
modify or destroy, as public exigency requires or the public interests demand. 
Coles c. Madison County, Breese, 115. Their whole capacities, powers, and 
dirties are derived from the legislature, and subordinate to that power. If, then, 
the legislature can destroy a county, they can destroy any of its parts, and take 
from it any one of its powers. The revenues of a county are not the property 
of the county, in the sense in which revenue of a private person or corporation 
is regarded. The whole Stat« has au interest in the revenue of a county, and 
for the public good tie legislature must have the power to direct its application. 
The power conferred upon a county to raise a revenue by taxation is a political 
power, and its application when collected must necessarily be within the control 
of the kgislature for political purposes. The act of the legislature nowhere pro- 
poses to take from the county of Sangaibon, and give to the city of Springfield, 

[2951 



v.Gooi^lc 



* 278 COHBTITDnONAL LDUTATtOHS. [CH. IZ. 

[*279J tion, *or charity, the interest vhich the ce^ui tpu 
trust has under the grant may sustain it f^iust legis- 
lative revocation, a vested equitable interest being property in 
the same sense and enUUed to the same protection as a legal.' 

Tliose charters of incorporation, however, which are granted, not 
as a part of the machinery of the government, bat for the private 
bene&t or purposes of the corporators, stand upon a different foot- 
ing, and are held to be contracts between the legislature and tiie 
corporators, having for their consideration the liabilities and duties 
which the corporators assume by accepting them ; and the grant of the 
franchise can no more be resumed by the legislature, or its benefita 
diminished or impaired without the consent of the grantees, than 
any other grant of property or valuable thing, unless the right to 
do BO ia reserved in the charter itself.^ 

aoj' propertjr belonging to the connt;, or reTenuea collected for the use of the 
CODDt^. Sal if il did, it vxmid iiot be (^eclionable. But, on the contruy, it 
propOBU aJone to appropriate the revenne which ma.y be collected bj the county, 
bjr taxes levied on proper^ both in the dtj and count;, in certain proportion! 
ratably to the cttjr and county." And see Bush v. Shipman, 1 Scun. 190 ; EUch- 
Und County r. Lftwreuce County, 12 III. 1; Borough of Danmore's Appe&l, 63 
Peun. St. 374; Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 
N. Y. US ; ante, 235-239, and caaes died. 

' See Town of Pawlet v. Clark, 9 Cranch, 292. audTerrett u. Taylor, 9 Cranch, 
43. The municipal corporation holding property or rights in tnut loight even 
be abolished without affecting the grant ; but the Court of Chancery might be 
empowered to appoint a new trusted to take charge of the property, and to 
execute the trust. Montpelier r. East Montpelier, 29 Yt. 12. 

• Dartmouth College v. Woodward, 4 Wheat. 619 ; Tnuteea of Yincennea 
University n, Indiana, 14 How. 2G8 ; Planters Bank ». Sharp, 6 How. 301 ; Piqua 
Bank o. Knoop, 16 How. 969 ; Binghampton Bridge Case, 3 Wal. 61 ; Norris n. 
Trustees of Abingdon AcsMlemy, 7 G. & J. 7 ; Grammar School t). Bnrt, 11 Vt. 
633 ; Brown r. Hummel, 6 Penn. St. 86 ; State v. Heyward, 3 Rich. 389 ; People 
t>. Manhattan Co. 9 Wend. 951; Commonwealth p. Cullen, IS Peon. St. 133; 
Commercial Bank of Natchei D. State, 14 Hiss. 599 ; Backus e. Lebanon, 11 
N. H. 19 ; Michigan Slate Bank v. Hastings, 1 Doug. (Mkh.) 225 ; Bridge Co. 
p. Hoboken Co. 2 Beas. 81 ; Miners Bank n. United States, 1 Greene (Iowa), 
553 ; Edwards o. Jagers, 19 Ind. 407 ; State c. Noyes. 47 Me. 189 ; BnifieU v. 
G. W. B. B. Co. 26 III. 363 ; People o. Jackson and Michigan Plank Road Co. 
9 Midi. 285 ; Bank of the State c. Bank of Cape Fear, 13 Ired. 75 ; Mills v. 
Williama. 11 Ired. 658 ; Hawthorne t>. Caief, 2 Wal. 10 ; Wales v. Stetson, 
2 Mass. 146 ; Nichols c. Bertram, 3 Pick. S4-2 ; King v. Dedham Bank, 16 Mass. 
447; State v.Tombeckbee Bank, 2 Stew SO; Central Bridge t>. LoweU, 16 Gray, 
106. It is under ^e protection of the decision in the Dartmouth College Case 
that the most enormous and threatening powers in our country have been created ; 
[296] 



jdoyGoOf^lc 



CH. IX.] PEDBBAL PBOTBOTION OP PEBSON AND PKOPEBTT. • 280 

* Perhapa the most interestiDg questiou which arises ia [* 280] 
this discuBBionisiwhetber it is eompetent for the legislature 
to 80 Mod up its own bands b^^ a grant as to preclude it from 
exercising for the future any of tbe essential attributes of sovereignty 
in regard to any of the subjects within ita jurisdiction ; whether, for 
instance, it can agree that it will not exercise the power of taxation, 
or the police power of the State, or the right of eminent domain, as 
to certain specified property or persona ; and whether, if it shall 
undertake to do so, tbe agreemeut is not void oo the general 
principle that the legislature cannot diminish the power of its 
successors by irrepealable legislation, aud that any other rule 
might cripple and eventually destroy tbe goTernment itself. If the 
legislature has power to do this, it is certainly a very dangerous 
power, exceedingly liable to abuse, and m&j possibly come in time 

some of the great and irealthy corporaUons Mtually hanng gre&ter influence in 
tbe country at large and upon the legislation of the country than tbe States to wbic^ 
tbey owe their corporate existence. Every privilege granted or right conferred 
— no nutter by what means or on what pretenoa-— being made innokble by the 
Couatitution, the goTeminent is freqnently found strippted of iti authority in 
very important particnlan, hy unwite, careless, or corrupt legislation ; and a 
clause of the Federal Constitution, whose purpose was to preclude the repudia- 
tion of debts and just contracts, protects and perpetuates the evil. To guard 
against such calamities in tbe lutiire, it is cnstomsry now for the people in 
framing tbeir constitutions to forbid the granting of eorporal« powers except 
subject to amendment and repeal ; bnt the improvident grants of an early day 
an beyond their reach. 

In Mills r. Williams, 11 Ired. 661, Pearson, J., states the difierence between 
the acts of incorporation of public and private corporations as follows : " The 
snbatantial distinction is this. Some corporations are created by the mere will 
of the legislatufe, there being no other party interested or concerned. To this 
party a portion of the power of the legislature is delisted, to be exercised for 
tbe general good, and subject at all times to be modified, changed, or annulled. 
Otlwr corporations are the result of contract. The legislatore is not the only 
party interested ; for, although it his a public purpose to be accomplished, it 
chooses to do it by the iastrumeutality of a second ^axtj. These two parties 
make a contract. The legislature, for and in consideration of certain labor and 
outlay of money, confers upon the party of tlie second part the privilege of being 
a corporation, with certain power and capacities. The expectation of benefit to 
the public is the moving consideration on one side, that of expected remuneration 
lor the outlay is the consideration on the other. It is a contract, and therefore 
cannot be modified, changed, or annulled, without the consent of both parties." 
An incorporated academy, whose endowment oomes exclusively from tbe public, 
is a public corporation. Bart v. Houston, 22 Geo. £06. 

[297] 



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• 280 CONSTITUTIONAL LIMITATIOire. [CH. IX. 

to make the constitutioiid provision in question aa prolific of evil 
as it ever has been, or is likely to be, of good. 

So far as the power of taxation is concerned, it lias been so often 
decided by the Supreme Court of the United States, though not 
without remonstrance on the part of State courts,' that an agree- 
ment by a State, for a consideration received or supposed to be 

received, that certain property, rights, or franchises shall 
[* 281] be exempt from taxation, or be taxed only at acertain * ^reed 

rate, is a contract protected by the Constitution, that the 
question can no longer be considered an open one.' In any case, 
however, there must be a consideration, so that the State can be 
supposed to have received a beneficial equivalent ; for it is con- 
ceded on all sides that if the exemption is made aa a privilege 
only, it may be revoked at any time.' 

The power of the legislature to preclude itself in any case from 
exercising the power of eminent domain is not so plainly decided. 

' Methftnics and Tredera Bank r. Debolt, 1 Ohio, n. 8. 591 ; Toledo Bank o. 
Bond, t^. 622; Enoop i>. Piqiu Bank, ib. 603 ; Uilan and R. Plonk Boad Co. t>. 
Husted, 3 Ohio, n. b. 678 ; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 69 ; 
Brewjter v. Hough, 10 N. H. 143; Backus r. Lebanon, 11 N. H. 24; Thorpe 
V. R. & B. R.B. Co. 27 Vt. 140 ; Brainard v. Colchester, 31 Conn. 410 ; Mottc. 
Pennsylvania R.R. Co. 30 Penn. 8t. 9 ; East Saginaw Salt Manuf. Co. r. East 
SaginaiT, 19 Mich. 259. See also the diaaenting opinion of Mr. Justice Miller 
in Washington University v. Rouse, 8 Wal. 441, in which the Chief Justice and 
Justice Fidd concurred. Also Raleigh, &c., R.R. Co. v. Reid, 64 N. C. 155. 

' New Jersey v. Wilson, 7 Cranch, 164 ; Gordon v. Appeal Tax Court, 3 How. 
133 ; Piijua Bank v. Knoop, 16 How. 369 ; Ohio Life and Trust Co. c. D.:bolt. 
ib. 416 ; Dodge t>. Woolsey, 18 How. 331 ; MccfaanltB and Traders Bank c. Debolt. 
18 How. 360; Mechanics and Traders Bank v. Thomas, ib. 384: McGee v. 
Mathis, 4Wal. 143; Homeof the Friendless t>. Rouse, 8 Wal. 430; Washington 
University c. Rouse, ib. 431. See also Atwater t>. Woodbridge, 6 Conn. 223 ; 
Osborne o. Humphrey, 7 Conn. 335 ; Parker c. Redfield, 10 Conn. 495 ; Landon 
t). Litchfield, 11 Conn. 251 ; Herrick c. Randolph, 13 Vt. 525 ; Armington c. 
Baraet, 15 Vt. 761 ; O'Donnel! c. Bailey. 34 Miss. 886 ; St. Paul, Ac, R.R. Co. 
o. Parcher, 14 Min. 297. 

■ Christ's Church t>. Philadelphia, 24 How. 300; Brainard v. Colchester, 31 
Conn. 410. See also Commonwealth v. Bird, 12 Mass. 442 ; Dole o. The Gov> 
amor, 3 Stew. 387. If an exemption from taxation exists in any ca^e, it must 
be the result of a deliberate intention to rellnquub this prerogative of sover- 
eignty, distinctly manifested. Easton Bank v. Commonwealth, 10 Penn. St. 
450; Providence Bank v. Billings, 4 Pet. 531 ; Christ Church v. Philadelphia, 
24 How. 302 ; Oilman e. Sheboygan, 2 Black, 513 ; Herrick v. Randolph. 13 Vt. 
531 ; East Saginaw Salt Manuf. Co. o. East Saginaw, 19 Mich. 259 ; People e. 
Eoper,'26N. Y. 629. 
[298] 



DiB.1izedOyGoO<^lc 



CH. II.] PEDEHAL PROTECnON OP PEE80N AND PEOPEETT. * 281 

It mnst be conceded, under the authoritieB, that the State may 
grant exclusive franchises, — like the right to constrnct the only 
railroad which ehall be built between certain termini ; or the only 
bridge which sliall be permitted over a river between specified 
limits ; or to own the only ferry which shall be allowed at a certain 
point,' — but tlie grant of an exclusive privilege will not prevent 
the legislature from ex,ercisiug the power of eminent domain in 
respect thereto. Franchises, like every otlier thing of value, and 
in the nature of property, within the State, are subject to this 
power, and any of their incidents may be taken away, or themselves 
altogether annihilated by means of its exercise.^ And it is believed 
that an express agreement in the charter, that the power of 
eminent domain should not be so exercised as to impair or affect 
the franchise granted, if not void as an agreement beyond the 
power of the legislature to make, must be considered as only a 
valuable portion of the privilege secured by the grant, and as such 
liable to be appropriated under the power of eminent 
domain. The exclusiveneas * of the grant, and tlie agree- [* 282] 
ment agunst interference with it, if valid, constitute 
elements in its value to be taken into account in assessing, com- 
pensation ; but appropriating the franchise in such a case no more 
violates the obligation of the contract than does the appropriation 
of land which the State has granted under an express or implied 
agreement for quiet et^oyment by the grantee, but which never- 
theless may be taken when the public need requires. All grants 
are subject to this Implied condition ; and it may well be worthy of 
inquiry, whether the agreement that a franchise granted siiall not 
afterwards be appropriated can have any other or greater force 
than words which would make it an exclusive franchise, but 
which, notwithstanding, would not preclude a subsequent grant 
on making compensation.^ The words of the grant are aa much 

' Wett River Bridge Go. v. Dix, 16 Yt. 446, and 6 How. 607 ; BiDgfasinpton 
Bii>)ge Cftse, 3 Wal. 61 ; Shorter e. Smith, 9 Geo. 529 ; Fiscataqua Bridge e. 
N.H. Bridge, 7 N, H. 35; Boston Water Power Co. v. Boston and Worcester 
R.R. Co. 23 Pick. 360; Boston and LoweU E.R. v. Salem and Lowell R.R. 
3 Gray, 9 ; CosUr o. Bmsb, 25 Weqd. 628 ; CaliTomia Telegraph Co. v. Alta 
Telegraph Co. 22 Cal. 398. 

■ Mailer of Kerr, 42 Barb. 119; EndGeld Toll Bridge Co. t>. Hartford and 
N. H. E.R. Co. 17 Conn. 40, 464 ; West River Bridge Co. p. Dix, 16 Tt. 446, 
and 6 How. 607. 

» Mr. GreeuIeaT, in a note to bis edition of Cruiae on Real Property, Vol. II. 

[299] 



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* 282 ooNBTmmoKAL umTATioNa. [ch. iz. 

ia the way of the grant of a conflictiog frauchiBe ia the one case 
as in the other. 

It has also been intimated in a very able opinion that the 

[* 283] " police power of the State could not be alienated even by 

express, grant.^ And this opinion is supported by those 

p. 67, B^ya upon this mbject: " In regard to the position that tlie grant of tlie 
fHnchise of a feny, bridge, turnpike, or railroad, ia in its nature exclusive, so 
that the State cannot interfere with it by tlie creation of another similar franchise, 
tending materiallj to impsJr its value, it is i*ith great deference sabmitted that 
an important distinction should be observed between tfaoM powers of government 
which are essential attributes of sovereignty, indispensable to be always pre- 
served in fuO vigor, such as the power tfl create revenue* for the public purposes, 
to provide for the common defence, to provide safe and conrenient ways for the 
pnblic necessity and convenience, and to take private property fbr public uses, 
and the like, and those powers which are not thus essential, such as the power to 
alienate the lands and other property of the State, and to make contracts of 
service, and of purchase and sale, or the like. Powers of the former class are 
essential to the constitution of society, as without them no political community 
can well exist; and necessity requires that they should con^nue unimpaired. 
They are intrusted to the legislature to be exercised, not to be bartered away; 
and it is indispensable that each legislature should assemble with the some 
measure of soTereign power which was held by its predecessors. Any act of the 
legislature disabling itself from the future exercise of powera intmsted to it for 
the public good must be void, being in effect a covenant to desert its paramount 
duty to the whole people. It is therefore deemed not competent for a legislature 
to covenant that it wiU not, under any circumstances, open another avenue for 
the public travel within certain limits, or in a certain term of time ; such cov- 
enant being an alienation of sovereign powers, and a violation of public duty." 
See also RedHeld on Railways (3d ed.). Vol. I. p. 258. That the intention to 
relinquish the right of eminent domain is not to be presumed in any legislative 
grant, see People e. Mayor, &c., of New York, 32 Barb. 113 ; Illinois and 
Michigan Canal v. Chicago and Rock Island Railroad Co. 14 HI. 821. 

' " We think the power of the legislature to control existing railways in this 
respect may be found in the general control over the police of the conntry, which 
resides in the law-making power in all free States, and which is, by the fifth arti- 
cle of the Bill of Rights in this State, expressly declared to reside perpetually 
and inalienably in the legislature, which is, perhaps, no more than the enuncta- 
tion of a general principle applicable to all free states, and which cannot there- 
fore be violated so as to deprive the legislature of the power, even by express 
grant, to any mere public or private corporation. And when the regulation of 
the police of a city or town, by general ordinances, is given to such cities or 
towns, and the regulation of their own internal police is given to railroads, to be 
. carried into effect by their by-laws and other regulations, it is, of course, always, 
in all such cases, subject to the superior control of the legislature. That is a 
responsibility whi(^ legislatures cannot divest themselves of, if they would." 
Thorpe r. R. & B. R.R. Co. 27 Tt. 149, per Bed^dd, Ch. J. See also Indiau- 
[300] 



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CH. IX,] FBDEBiL PBOTKCTION OP PEHSON AND PBOPBBTT. * 283 

cases There it haa been held that licenses to make use of property 
in certain modes maj be revoked by the State, notwithstanding they 
may be connected with grants and based upon a consideration.' 
But this subject we shall recur to liereafter. 

It would seem, therefore^ to be the prevailing opinion, and one 
based upon sound reason, that the State could not barter away, 
or in any manner abridge or weaken, any of those essential powers 
which are inherent in all governments, and tlie existence of which 
in full vigor is important to the well-being of organized society ; 
and that any contracts to that end, being without authority, cannot 
be enforced under the provision of the national Constitution now 
under consideration. If tlie tax cases are to be regarded as an 
exception to this statement, the exception is perhaps to be consid- 
ered a nominal rather than a real one, since taxation is for the 
purpose of providing the State a revenue, and the State laWs 
which have been enforced as contracts in these cases have 
been supposed to be based upon consideration, * by which [* 284] 
the State receives the benefit wliich would have accrued 
from an exercise of the relinquished power in the ordinary mode. 

We have said in another place tliat citizens have no vested right 
in the existing general laws of the State which can preclude their 
amendment or repeal, and that there is no implied promise on 
the part of the State to protect its citizens against incidental 
injury occasioned by changes in the law. Nevertheless there may 
be laws which amount to propositions on the part of the State, 
which, if accepted by individuals, will become binding contracts. 
Of this class are perhaps to be considered bounty laws, by which 
the State promises the payment of a gratuity to any one who will 
do any particular act supposed to be for the State interest. TTn- 

apolu, &c., R.R. Co. e. Eerchevd, 16 Lid. 84; Obio, &c., R.R. Co. c. M'Clel- 
Und, 26 ni. 140. See State v. Noyei, 47 Me. 189, on the lame subject. 

' See, npon this mbject, Brick Presbyterian Chnrch o. Mayor, Ac, of New 
York, & Cow. 5S6 ; Tsnderbilt t>. Adsma, 7 Cow. 849 ; Him c State, 1 Obio, 
K. a. 15 ; Calder b. Eurby, 5 Gray, 597. Whether a State, after grantiDg licentea 
to leli liquors for which a fee is received, can revoke them by a general law for- 
bidding sales, u) in dispute upon the authorities. See Freleigh v. State, 8 Mo. 
606 ; Sute v. Sterling, ib. 697 ; State d. Hawthorn, 9 Mo. S89 ; State o. Phalen, 
SHarr. 441; Calder e, Earby, 6 Gray, 597; Adams «. Racket, 7 Post. 294; 
Metropolitan Board of Excise v. Barrie, 34 N. Y. 657. If it has the power, it 
would seem an act of had futh to exercise it, without refunding the money 
received for the license. Him c. State, 1 Ohio, s. s. 21. 

801] 



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* 284 COKSTITUnOKAL LIMITATIONS. [CH. IZ. 

questionably the State may repeal euch an act at any time ;' but 
when the propoaitiou has beeu accepted by the performance of the 
act before the law is repealed, the contract would seem to be com- 
plete, and the promised gratuity becomes a legal debt.^ And 
where a State was owner of tlie stock of a bank, and by the law its 
bills and notes were to be received in payment of all debts due to 
the State, it was properly held that tliis law constituted a contract 
with those who should receive the bills before its repeal, and that 
a repeal of the law could not deprive these holders of the right 
whicli it assured. Such a law, with the acceptance of the bills 
under it, " comes within tlie definition of a contract. It is a con- 
tract foimded upon a good and valuable consideration, — a cousid- 
eration beneficial to the State, as its profits are increased by 
sustaining, the credit, and consequently extending the circulation 
of the paper of the tiank."* 

That laws permitting the dissolution of the contract of marriage 
are not within the intention of the clause of the Constitution under 
discussion seems to be the prevailing opinion.* It has beeu inti- 
mated, however, that, so far as property rights are concerned, the 
contract must stand on the same footing as any other, and that a 
law passed after the marriage, vesting tlie property in the wife for 
her sole use, would be void, as impairing the obligation of 
[* 285] contracts.' * But certainly there is no such contract em- 
braced in the marriage as would prevent the legislature 
changing tlie law, and vesting in the wife solely all property 
which she should acquire thereafter; and if the property had 
already become vested in the husband, it would be protected in 
him, against legislative transfer to the wife, on other grounds than 
the one here indicated. 

" The obligation of a contract" it is swd, " consists ia its hind- 

' Christ Cburcb v. Philadelphia, 24 How. 300; Ea<t Slgmaw Salt Manuf. Co. 
e. EitsC Saginaw, 19 Mich. 2S9. 

• Ptople p. Auditor-General, 9 Mich. 327. See Montgomery u. Kasson, 16 
Cat. 189 ; Adams d. Palmer, 51 Me. 480. 

• Woodruff V. Trapnall, 10 Hew. 190. See Winter t>. Jones, 10 Geo. 190; 
Furmao v. Niabol. 8 Wa). 44. 

* Per Marshall, Ch. J„ Dartmbnth College ». Woodward, 4 Wheat. 629 ; 
Maguirs v. Magulre, 7 Dans, 1B3 ; Clark v. Clark, 10 N. H. 385 ; Croniae t>. 
Cronise, o4 Peon. St. 255 ; Carson c. Carson, 40 Miss. 349 ; Adams v. Palmer, 
51 Me. 480. 

* Holmes V. Holmes, 4 Barb. 295. 

[ 802 ] 



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OB. tZ.] FEDERAL PROTECTION OF FERBON AND FB0FEBT7. * 2H5 

iag force on the party who makes it. This depends upon the laws 
in existence when it is made ; these are necessarily referred to 
in all contracts, and forming a part of them as the measure of the 
obligation to perform them by the one party, and the right 
acquired by the other. There can be no other standard by which 
to ascertain tlie extent of either, than that which the terms of the 
contract indicate, according to their settled legal meaning; when 
it becomes consummated, the law de&nes the duty and the right, 
compels one party to perform the thing contracted for, and gives 
tlie other a nght to enforce the performance by the remedies then 
in force. If any subsequent law aSbct to diminish the duty, or to 
impair the right, it nocesaarily bears ou the obligation of the con- 
tract, in favor of one party, to the injury of the other ; hence any 
law which, in its operations, amounts to a denial or obstruction of 
the rights accruing by a contract, though professing to act only on 
the remedy, is directly obnoxious to the prohibition of the Consti- 
tution." ' " It is the civil obligation of contracts which [the Con- 
stitution] is des^ued to reach; that is, the obligatiou 
which is recognized * by, and results from, the law of the [* 286] - 
State in which it is made. If, therefore, a contract when 
made is by the law of the place declared to he illegal, or deemed 
to he a nullity, or a nude pact, it has no civil obligation, because 
the law, in such cases, forbids its having any binding efficacy or 
force. It confers no legal right on the one party and no corre- 
spondent legal duty on the other. There is uo means allowed or 
recognized to enforce it ; for the maxim is ex nudo paeto non oritur 

' McCrackeD v. Hayward, S Hoi*. 612. " The obligation of a contract . . . 
ii the law which binds the parties to pcrfomi their agreement. The law, then, 
which has this binding obligation, muit govern and control the contract, in every 
■hape in which it is intended to bear upon it, whether it affects its validity, coq- 
atntction, or discharge. It is, then, the municipal law of the State, whether that 
be written or unwritten, which is emphaticallj' the law of the contract made 
within the State, and must govern it throughout, whenever its perfbnnance is 
sought to be enrorced." Washington, J., in Ogden v. Sauodere, 12 Wheat. 259. 
" As I nodergtand it, the law of the contract forms iti obligation." Thompton, 
J., ib. 302. "The obligation of the contract consists in the power and efficacy 
of the law which applies to, and enforces performance of, the contract, or the 
payment of an equivalent for non-perfonnance. The obligation does not inhere 
•nd subsist in the contract itself, propria vigore, but in the law applicable to the 
contract. This is the sense, I think, in which the Constitution uech the term 
'obligation.'" Trimble, J., ib. 318. And see Van Batimbach v. Bade, 9 Wis. 
fi77 ; Johnson e. Higgins, 3 Met. (Ky.) 566. ' 

[808] 



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* 386 (XMIBTITimONAI. UHITATtOHS. [CE. IX. 

actio. But vhen it does not fall withiu ibe predicament of being 
eitlier illegal or Toid, its obligatory force is coextensive with its 
stipulations." ^ 

Such being the obligation of a contract, it is obvious that the 
rights of the parties in respect to it are liaUe to be affected in 
many ways by changes in the laws, whidi it coald not have been 
Ihe intention of the constitutional provision to preclude. *' There 
are few laws which concern the general police of a State, or the 
government of its citiiens, in their intercourse witli each other or 
with strangers, which may not in some way or other affect tlie 
contracts which they have entered into or may thereafter form. 
For what are laws of evidence, or which concern remedies, frauds, 
and peijuries, laws of r^stratioo, and those which a&ct land* 
lord and tenant, sales at auction, acts of limitation, and those 
which limit the fees of professional men, and the chaises of tav- 
em-keepers, and a multitude of otliers which crowd the codes of 
every State, but laws which affect the validity, construction, or 
duration, or disohai^ of contracts."' But the changes in these 
laws are not regarded as necessarily aSeoting the obligation of 
contracts. Whatever belongs merely to the remedy may be 
altered according to the will of tlie State, provided the alteration 
does not impair the obligation of the contract;" and it does not 
impair it, provided it leaves the parties a substantial remedy, 
according to the coarse of jusUce as it existed at the time the con- 
tract was made.* 
[*287] *It has accordingly been held that lavrs changing 

■ Stoi7 on CoRst. § 1380. 

' WaMn^on, J., in Ogden v. Saunder*, IS Wheat. 269. 

> BroncoD d. Einzie, I How. 316, per Taiiey, Ch. J. 

• Stocking 0. Hunt, 3 Denio, 274; Vui Banrobach n. Bade, 9 Wia. 678; 
Bronson v. Kiniie, 1 How. 316 ; UcCracken r. Hayward, 2 How. 60a; Butler V. 
Palmer, 1 Hill. 324; Van Rewelaer b. Snyder, 9 Barb. 802, and 13 H. Y. 299[ 
Conkey t). Hart, 14 N. Y. 22 ; Gnild ». Rogen, 6 Barb. 602 ; 8(017 v. Funnan, 
2fi N. Y. 214; Coridl o. Ham, 4 Greene (Iowa), 465; Heyward p. Judd, 4 
Minn. 4S3;Swifti>. Fletcher, 6 Mbn. 550; Maynes p. Moor, 16 Ind. 116; Smith" 
D. Packard, 12 Wii. 371; GroiTeDor d. Chealey, 48 Me. 869 ; Van Kentelaer o. 
Ball, 19 N. Y. 100; Van Betuelaer r. Haya, t6. 68; Litchfield v. McComber, 
42Sarb. 286; Paschal c. Fern, 7 Texaa, 965; Auld o. Butcher, 3 Kansas, 165; 
Kenyon d. Stewart, 44 Penn. St. 179 ; Clark ». Martin, 49 Penn. St. 299 ; Riaon 
0. Farr, 24 ArL 161 ; Sandera e. HUlsborough Insurance Co. 44 fi. H. 288 ; 
Huntzinger V. Brock, S.Grant't Casea, 243; Mechanics, &o., Bank Appeal, 81 
Conn. 63. 

[804] 



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CH. IZ.] FEDEEIAL PBOTECTION OP PERSON AND PROP&BTY. * 287 

remodies for the enforcement of legal contracts will be ralid, 
OTen though the new remedy be less convenient than the old, 
or less prompt and speedy.' 

*' Without impuring the obligation of the contract, the remedy 
may certainly be modified as the wisdom of the nation shall 
direct."^ To take a strong instance; although the law at the 
time the contract is made permits the creditor to take the body of 
his debtor in execution, there can be no doubt of the right 
to abolish all laws for this purpose, leaving the creditor to his 
remedy against property alone. '* OouSnement of the debtor may 
be a punishment for not performing his contract, or may be 
allowed as a means of inducing him to perform it. But the State 
may refuse to iqflict this punishment, or may withhold this means, 
and leare the contract in fnll force. Imprisonment is no part of 
the contract, and simply to release the prisoner does not impur 
the obligation."* Nor is there any constitutional objection to 
such a modification of those laws which exempt cert^n portions 
of a debtor's property &om execution as shall increase the 
exemptions, nor to the modifications being made applicable to 
contracts previously entered into. The State " may, if it thinks 
proper, direct that the necessary implements of agriculture, or the 
tools of the mechanic, or articles of necessity in household 
famiture, shall, like wearing apparel, not be liable to execution 
on judgments. Begulations of this description have always been 
UHisidered, in every civilized community, as properly belonging to 
the remedy, to be exercised or not, by every sovereignty, 
according to its own views of policy and humanity. 
It 'must reside in every State to enable it to secure its [*288] 

■ Ogden ■>. Sftanden, 12 Wbeat. 270 ; Beer* c. Haoghton, 9 Pet. 359 ; Bum- 
gardner v. Circuit Court, 4 Mo. 60 ; Tarple; v. Hjuner, IT Mibs. 310 ; Qoftck- 
enbiuh t). Danka, 1 Denio, 128, 3 Deuo, 594, and 1 K. Y. 129 ; BronsoD v. 
Kewberry, 2 Doug. Mich. 38 ; Bockwell d. HnbbelPs Adnt'ra, f&. 197 ; ETani v. 
MoDtgomeij, 4 W. & S. 218 ; Hollowaj e. Shermu, 12 Iowa, 262 ; Sprecker 
V. Vftkeley, 11 Wu. 432; Smith v. Packard, 12 Wis. 971 ; Morse r. Goold, 11 
S'. T. 281 ; Penrose v. Erie Canal Co. 56 Penn. St. 46. 

' Stm^ea D. Crowniuabield, 4 Wheat. 122, per JfonAofi, Ch. J. A atatnte 
alloiriiig the defence of want of coDaideration tn a waled inatnuDent prerioaslf 
given does not violate the obligation of contiacti. Willianu v. Haloes, 27 Iowa, 
251. 

* Sturgea v. Crownin shield, 4 Wheat. 122, per MarttioU, Ch. J. ; Mason «, 
Haile. 12 Wbeat. 870 ; Bronson e. Kewbeiry, 2 Doug. (Mich.) 38 ; Uaxe; o. 
Loval, 38 Geo. 540. 

20 [ 805 ] 



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• 288 ooNSnTunoKAL limitationb. [ch. ix. 

(Utisens from unjust and harassing litigation, and to protect 
tbetn in those pursuits vhich are necessary to the existence and 
well-being of every community."^ 

, And laws which change the rules of evidence relate to the 
remedy only ; and while, as we have elsewhere shown, such laws 
may, on general principles, be applied to existing cauBes of action, 
so, too, it is plain that they are not precluded from such application 
by the constitutional clause we are coDsidering.^ And it has 
been held that the legislature ma; even take away a common- 
law remedy altogether, without substituting auy iu its place, 
if another and efficient remedy remains. Tlius, a law abolishing 
distress for rent has been sustained as applicable to leases iu force 
at its passage ; ' and it was also helid that an express stipulation 
in the lease, that the lessor should have this remedy, would not 
prevent the legislature from abolishiug it, because this was a 
But^ect concerning which it was not competent for the paiiies to 
contract in such manner as to bind the hands of the State. In 
the language of the court : " If this la a subject on which parties 
can contract, and if their contracts when made become by virtue 
of the Constitution of the United States superior to the power of 
the legislature, then it follows that wliatever at any time exists as 
part of the machinery for the administration of justice may be 
perpetuated, if partis choose so to agree. That tliis can scarcely 
have been within the contemplation of the makers of the Gonsti- 

■ Broiuon V. Einzie, 1 How. 811, per Tmey, Ch. J. ; Rockwell v. Hubbell's 
Adm'rs, 2 Doag. (Mich.) 197 ; Quackenbush i>. Danks, 1 Denio, 128, 3 Denlo. 
69i, and 1 N. T. 129 ; Morse v. Goold. 11 N. T. 3S1 ; Sprecker d. Wnkeler, 11 
Wis. 432; Gusic v. Douglu, 3 Eadru, 12S; Mue}r v. hoytl, SS Geo. 531; 
Hardim&n t>. Jkiwner, 39 Geo. 425. The increaM in exemptions, however, mutt 
not go to the extent to render the remedy nugator}' or impracticable. Stephen- 
son e. Osborne, 41 Miss. 119. It has been decided that a bomefltead exemption 
maj be made applicable to previoasly existing contracts. Hill c. Kessler, 63 
N. C. 437 ; Hardiman e. Downer, 39 Geo. 426. " SUtates pertainingto the rem- 
edy are merely such as relate to the course and form of proceedings, but do not 
affect the substance of a judgment when pronounced." Per Merrick, Ch. J., 'in 
Morton v. Valeotiue, 15 La. An. 153. 

* Neass v. Meicer, 16 Barb. 318. On this mbject see the discussions in the 
Pederal courts; Sturges v. Crowninsbield, 4 Wheat. 122; Ogden e. Sanodera, 
12 Wheat. 218; Bronson v. Kinae, 1 How. 811; McCracken t>. Hayward, 2 
How. 608. 

> Van Benselaer o. Snyder, 9 Barb. 302, and 13 N. Y. 299 ; Guild ■>. Rogers, 
8 Barb. 602 ; Conkey v. Hart, 14 N. Y. 22. 
■ [ 306 ] 



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CH. II.] PEDEEAL PROTECTION OP TEHSON AND PEOPKETY. * 288 

tution, and that if it prevail as lav it will g^ve rise to grave 
incouTeniences, is quite obrioua. Every Buch stipulation is in its 
own nature conditional upon the lawful continuance of the 
process. The State ia no party to * their contract. It is [• 289] 
bound to afford adequate process for the enforcement of 
rights ; but it has not tied its own hands as to the modes by 
which it will administer justice. Those from necessity belong to 
the supreme power to prescribe ; and their continuance is not the 
subject of contract between private parties. In truth, it is not at 
all probable that the parties made their agreement with reference 
to the possible abolition of distress for rent. The first clause of 
this special provision is, that the lessor may distrain, sue, re-enter, 
or resort to any other legal remedy, and the second is, ^at in 
cases of distress the lessee waives the exemption of certain 
property from the process, which by law was exempted. This 
waiver of exemption was undoubtedly the substantial thing which 
the parties had in view ; but yet perhaps their language cannot be 
confined to this object, and it may therefore be proper to consider 
the contract as if it had been their clear purpose to preserve their 
legal remedy, even if the legislature should think fit to abolish it. 
lu that aspect of it the contract was a suliiject over which they had 
no control." ^ 

But a law which deprives a party of all legal remedy must 
necessarily be void. "If the legislature of the State were to 
undertake to make a law preventing the legal remedy upon a 
contract lawfully made, and binding on the party to it, there ia no 
question that such legislature would, by such act, exceed its legiti- 
mate powers. Such an act must neceaaarily impair the obligation 
of the contract within the meaning of the Constitution." ' This 
has been held in regard to those cases in which it was sought to de- 
prive certain classes of persons of tlie right to maintain suits, becliuse 
of their having participated in rebellion agunst the government^ 



' Conker V. Hut, U N.Y. 30 ; citing Handy o. Chatfield, 2S Wend. 85 ; 
Huon V. Htile, 12 Wbekt. 870 ; Stocking t>. Hunt, 8 Denio, 274 ; uid Van Ren- 
■elaer o. Sujder, 13 N. T. 299. 

* C*U V. Hagger, 8 Mom. 430. See CMffin e. Wilcox, 21 Ind. 870 ; PenroH 
0. £rie CmuJ Co. S6 FeDD. St. 46. In Jackowa^ v. Benton, 25 Ark. 641, ■ 
daase in the Conatitotion of Arkanga* declaring all contracta for the sale or 
parcbaie of alaves void was held inTalid. 

* Riion r. Fair, 24 Aric. 161 ; McFarland v. Bntler, 8 Minn. 116; Jackson 

[807] 



DiB.1izedOyGoO<^lc 



* 289 CONBTITDTIONAL LUnTAnONS. [CH. IZ. 

And where a statute doea uot leave a party a substautml remedy 
according to the course of justice as it existed at the time the 
contract vas made, but shows upon its face an intention to clc^, 
hamper, or embarrass the proceedings to enforce the remedy, so as 
to destroy it entirely, and thus impair the contract so far 
[* 290] as it is in the * power of tlie legislature to do it, such 
statute cannot be regarded as a mere regulation of the 
remedy, and is void.^ 

And where a statute dividing a town and incorporating a new 
one enacted that the new town should pay its proportion towards 
the support of paupers then. constituting a charge against the old 
town, it was held Uiat a subsequent statute exonerating the new 
town from this liability was void as impairing tlie contract created 
by the firet-mentioned statute.' And in any case the lawful repeal 
of a statute cannot constitutionally be made to destroy coQtracts 
which have been entered into under it, but being legal when made, 
they remain valid notwithstanding the repeal.* 

So where, by its terms, a contract provides for the payment of 
money by one party to another, and, by the law then in force, 
property would be liable to be seized, and sold on execution to the 
highest bidder, to satisfy any judgment recovered on such contract, 
a subsequent law, forbidding property from beuig sold on execution 
for less than two-thirds the valuation made by appraisers, pursuant 
to the directions contained in the law, though professing to act 
only on the remedy, amounts to a denial or obstruction of the 
righta accruing by the contract, and is directly obnoxious to the 
prohibition of the Constitution.* So a law which takes away from 
mortgagees the right to poasession under their mortgages until 
after foreclosure is void, because depriving them of the right to the 

0. Suae, a. 117. The cue of Dreliman c. Stifle, 6 Wal. 699, should be consid- 
ered ID connection with these. 
■ OatQuui V. Bond, 15 Wii. 28. 

* Bondoinhun ti. Bicbmond, 6 Grceol. 12. 

* Tnolumne Redemption Co. v. Sedgwick, 15 Cftl. 515 ; McCanlej n. Brooki, 
16 Cal. 11 ; Commonwealth u. New Bedford Bridge, 2 Gny, 339 ; State ». 
Phalen, 3 Hut. 141 ; State o. Hawthorn, 9 Mo. S89. 

* McCrackeu p. Hajward, 2 How. 608 ; Willard o. Longatreet, 2 Doug. (MicL) 
172; Rawley ■>. Hooker, 21 Ind. 144. So a law which, a« to existing mortgage! 
foreclosable by sale, prohibits the sale for less than half the appraised value of 
the land, is Toid for the same reason. Gantli^'s I.e8tee ti. Ewing, 3 How. 707 ; 
Bronson v, Eonzie, 1 How. 311. 

[308] 



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OH. IX.] FEDERAL PttOTECnOK OP PEBSON Ain) FBOPERTT. * 290 

rents and profits, which was a valuable portion of the right secured 
by the contract. " By this act the mortgagee is required to incur 
the additional expense of foreclosure, before obtaining possession, 
and is deprived of the right to add to his security, by the percep- 
tion of the rents and profits of the premises, during the time 
required to accomplish this and the time of redemption, and during 
that time the rents and profits are given to another, who may or 
may not appropriate them to the payment of the debt, as he 
chooses, and the mortgagee in the * mean time is subjected [* 291] 
to the risk, often considerable, of the depreciation in the 
valne of the security." ^ So a law is void which extends the tame for 
the redemption of lands sold on execution, or for delinquent taxes, 
after the sales have been made ; for in such a case the contract with 
the purchaser, and for which he has paid his money, is, that he 
shall have title at the time then provided by the law ; and to 
extend the time for redemption is to alter the substance of the 
contract, as much as would be the extension of the time for pay- 
ment of a promissory note.' So a law which shortens the time for 
redemption from a mortgage, after a foreclosure sale has taken 
place, is void ; the rights of the party being fixed by the foreclosure 
and the law then in force, and the mortgagor being entitled, under 
the law, to poBsebsion of the land until the time of redemption 
expires.' And where by statute a purchaser of lands fVom the 

< Mnndy e. Monroe, I Mich. 76 ; Blackwood o. T&HTleet, 11 Micfa. 252. Com- 
pare DikenuQ V. Dikemsn, 11 Faige, 481, and James n. Stall, 9 Barb. 483. In the 
last case it nu beld that a statute ehortening the notice to be given on rorecloaure 
of a mortgage under the power of sale, from twentj-four to twelve weeka, waa 
valid ai affecting the remedy oa[j ; and that a stipolation in a mortgage that on 
default being made in payment tbe mortgagee might sell " according to lav," 
meant according to tbe law as it should be when sale wat made. See also 
Batfaold V. Fox, 13 Minn. £01, in which it was decided that in the case of a mort- 
gage given while the law allowed the mortgagee posECssion during the period 
allowed for redemption after forecloHore, nich law might be so changed bs to take 
awaj this right. 

■ RobinsoD s. Howe, 13 Wis. 341 ; Dikeman e. Bikeman, 11 Paige, 4S4 ; Goe- 
oen D. Schroeder, 8 Minn. 3S7. But see Stone v. Basset, 4 Minn. 296 ; Hejward 
e. Judd, ib. 483 ; Freebom e. Pettibone, 6 Minn. 277. 

* Cargill 0. Power, 1 Mich. 369. The contrary ruling was made in Butler v. 
Palmer, 1 Hill, 324, by analogy to the statute of limitatJons. The statute, itwaa 
laid, was no more in effect than saying: " Unless fou redeem within the shorter 
time prescribed, yon shall have no action for a recovery of the land, nor shall 
your defence against an action be allowed, provided yon get possession." And 
in Robinson v. Howe, 13 Wis. 346, the court, speaking of a similar right in a 

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* 291 coMSTrmnoNAL umttatiohs. [ch. II. 

State had the right, upon the forfeiture of his contract of purchase 
for the non-payment of the sum due upon it, to reviTe it at any time 
before a public sale of the lands, b; tlie payment of all sums due upon 
the contract, with a penalty of five per cent, it was held that this 
right could not be ti^en avay by a subsequent change lu the law 

which subjected the forfeited lands to private entry aud 
[* 292] sale.^ And a statute which ^ authorizes stay of execution, 

for an unreasonable or indefinite period, on judgments 
rendered on pre-existing contracts, is void, as postponing payment, 
and taking avay all remedy during the continuance of tlie stay.^ 
And a law is void on this ground which declares a forfeiture of the 
charter of a corporation for acts or omissions which constituted no 
cause of forfeiture at the time they occurred.' And it liaa been 

party, Btj: "So far u hia right of redemption wu concerned, it was not derived 
from any contract, but was given by tlie kw only ; and tlie ^e ifitliin which he 
might exercise it might be shortened by the legislature, provided a reasonable 
(ime was left in which to exercise it, without impairing the obligation of any con- 
tract." And see Smith d. Packard, 12 Wis. 371, to the same effect 

' Slate e. CommiuioneTa of School and University lands, 4 Wis. 414. 

* Chadwick p. Moore. 8 W. & S. 49 ; Bunn o. Gorgas, 41 Penn. St. 441 ; 
Stevena d. Andrews, 31 Mo. 206 ; Hatbrouck v, Shipman, 16 Wis. 296. In Brei- 
tenbach v. Bush, 44 Penn. St. 91S, and Coie e. Martin, ib. 322, it was held that 
an act staying all dvil process against volunteers who had enlisted in the national 
service for three years or during the war was valid, — "during thewar"being 
construed to mean nnleia the war should sooner terminate. See also State v. 
Carew, 13 Rich. 498. A general law that all salts pending should be continued 
- until peace between the Confederate States and the United States, was held void 
in Burt t>. Williams, 24 Ark. 94. See also Taylor v. Steams, 18 Grat. 244 ; 
Hudspetli t>. Davis, 41 Ala. 389 ; Aycoek t>. Martin, 37 Geo. 124 ; CoSman t>. 
Bank of Kentucky, 40 Miss. 29 ; Jacobs v. Smallwood, 63 N. C. 113 ; Cutts v. 
Hardee, 38 Geo. 350 j Sequestration Cases, 30 Texas, 688. A law permitting a 
year's slay upon judgments where security is given, is valid. Famsworth v. 
Tance, 2 Cold. 108. But a statute was held void which stayed all proceedings 
against volunteers who had enlisted '* during the war," this period being indefinite. 
Clark V. Martin, S Grant's Cos. 39S. In Johnson d. Higgins, 3 Met. (Ky.) 566, 
it was held that the act of the Kentucky legislature of May 24, 1861, wbich for- 
bade tbe rendition, in all the courts of the State, of any judgment from date till 
January lat, 1802, was valid. It related, it was said, not to the remedy for 
enforcing a contract, hut to the courts which administer the remedy; and those 
courts, in a legal sense, consdtute no part of the remedy. A law exempting 
soldiers &om civil process until thirty days after their discharge from military 
service was held valid as to all contracts subsequently entered into, in Brans e. 
Crawford, 34 Mo. 830. And see McCormick n. Rosch, 15 Iowa, 127. 

' People r. Jackson and Michigan Plank Road Co. 9 Mich. 286, per Ckrittimtey, 
J. ; State c Tombeckbee Bank, 2 Stew. 30. 
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CH. IZ.] FBDEBAIi PfiOTBCnOK O? PEBBON AHD PBOFEBTT. * 292 

held that where a, statute authorized a municipal corporatioa to 
issue bonda, and to exercise the power of local taxation in order 
to paj them, and persona bought and paid value for bonds issued 
accordingly, this power of taxation is part of the contract, and 
cannot be withdrawn until the bonds are satisfied ; that an attempt 
to repeal or restrict it by statute is void; and that unless the 
corporation imposes and collects the tax iu all respects as if the 
subsequent statute bad not been passed, it will be compelled to do 
so by man^amus.^ And it has also been held that a statute 
repealing a' former statute, which made the stock of stockholders in 
a corporation liable for its debts, was, in respect to creditors exist- 
ing at the time of the repeal, a law impuring the obligation 
of contracts.' In each of these cases it is evident that 
substantial rights * were affected ; and where the laws [* 293] 
which were held void operated upon the remedy, they 
either had an efllecl: equivalent to importing some new stipulation 
into the contract, or they failed to leave the party a substantial 
remedy such as was assured to him by the law in force when t